HomeMy WebLinkAbout1804 Consent to KCWFC Training, LLC and ACFC, LLC Assignment of Development Agreement BILL NO. 2021-047 ORDINANCE NO. 1 YD`/
AN ORDINANCE APPROVING AND AUTHORIZING THE CITY OF RIVERSIDE MISSOURI TO
CONSENT TO KCWFC TRAINING, LLC AND ACFC, LLC, ASSIGNMENT OF DEVELOPMENT
AGREEMENT.
WHEREAS,the CITY OF RIVERSIDE, MISSOURI ("City"). and KC WFC TRAINING, LLC,
a Kansas limited liability company ("KC WFC") and ACFC, LLC, a Delaware limited liability
company("ACFC"), (KC WFC and ACFC are collectively referred to as the"Developers"), The City,
KC WFC and ACFC are collectively referred to as the °Parties", entered into a Development
Agreement ("Agreement")as authorized by Ordinance No. 1797 passed and approved on the 171h
day of September, 2021; and.
WHEREAS, KC WFC and ACFC desire to assign the Plans, Development Agreement,
Incentives, Entitlements,Assessments and Intangibles(collectively. the"Assignment') as collateral
security for certain indebtedness to and for the benefit of Academy Bank, N.A. (together with its
successors and assigns, "Lender").
WHEREAS, the Agreement requires the City of Riverside to provide their consent to such
assignment: and
WHEREAS, City Staff recommend the City consent to the Assignment; and
WHEREAS,the Board of Aldermen find that the Consent and Acknowledgement, attached
hereto as Exhibit A, and incorporated herein, recommended by City Staff, fulfills a public purpose
and will further the growth of the City, facilitate the development of Riverside, improve the
environment of the City, increase the assessed valuation of the real estate situated within the City,
increase the sales tax revenues realized by the City, foster increased economic activity within the
City, increase employment opportunities within the City, enable the City to direct the development of
the Redevelopment Area, and otherwise be in the best interests of the City by furthering the health,
safety. and welfare of its residents and taxpayers: and, has authorized
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN AS FOLLOWS:
SECTION 1 — APPROVAL OF CONSENT AND ACKNOWLEDGMENT. The Consent and
Acknowledgement Is found to be in the best interests of the City and the orderly and lawful
economic development of the City and is hereby approved in substantially the form as Exhibit A
attached hereto and incorporated herein.
SECTION 2 — AUTHORITY GRANTED. The Mayor is authorized to execute and deliver the
Consent and Acknowledgement in substantially the form as Exhibit A. The Mayor, the City
Administrator, and other appropriate officers, agents and employees of the City are hereby
authorized to take such further actions and execute such other documents as may be necessary or
desirable to carry out and comply with the intent of this Ordinance, and to carry out, comply with
and perform the duties of the City with respect to the Agreement.
SECTION 3—EFFECTIVE DATE. This Ordinance shall be in full force and effect upon and after its
passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, PASSED
AND APPROVED by a majority of the Board of Aldermen a d APPROVED by the Ma or of the
City of Riverside, Missouri, this 19th day of October, 2021.
at een L. Rose, Mayor
ATTE T;-
Robin Kincaid, City Clerk
Approved as to form:
Spencer Fane LLP,
Special Counsel to the City
by Joe Bednar
2
JC 17503255.1
i
BE IT REMEMBERED that the above was read two times by heading only, PASSED
AND APPROVED by a majority of the Board of Aldermen a d APPROVED by the M or of the
City of Rive1rsidL,,Missouri, this 19"'day of October, 2021.
ATT T; at een L. Rose, Mayor
Robin Kincaid, City Clerk
Approved as to form:
Spen ane LLP,
Special Cognsel to the City
by Joe Sednar
2
JC 17503255 1
EXHIBIT A
DEVELOPMENT PROPOSAL
3
is
EXHIBIT B
DEVELOPMENT AGREEMENT
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JC 17503255A
ASSIGNMENT OF PLANS, DEVELOPMENT AGREEMENT AND INCENTIVES
FOR VALUE RECEIVED, KC WFC Training, LLC, a Kansas limited liability company, having an
address of 1900 Shawnee Mission Parkway, Suite 315, Mission Woods, Kansas 66205 ("Borrower"), and
ACFC, LLC, a Kansas limited liability company affiliated with Borrower("Affiliate"), do hereby sell, assign,
pledge, transfer and set over unto Academy Bank, N.A., having an address of 1111 Main Street, Suite
1600, Kansas City, Missouri 64105 (together with its successors and assigns, "Lender"), all of their
respective right, title and interest in and to the following,whether now owned or hereafter acquired:
a) all plans, specifications, drawings, and surveys (collectively, the "Plans") pertaining to
various renovations of, and construction of various improvements in, an office building
and soccer training facility construction project (hereinafter called "Project") on
Borrower's real property located in Riverside, Platte County, Missouri (hereinafter, the
"Premises");
b) that certain Development Agreement dated September 17, 2021 (the "Development
Agreement") executed by Borrower, Affiliate, and City of Riverside, Missouri ("City");
c) all i) rights to payments and other rights and benefits of Borrower and Affiliate under the
Development Agreement, including but not limited to payments and operating fees due
Borrower and Affiliate from payments in lieu of taxes or ad valorem taxes relating to the
Premises; ii) all sales tax exemptions and other benefits in connection with certain
Taxable Industrial Revenue Bonds (Soccer Complex Project— Phase 1), Series 2021, in
the maximum principal amount of$23,600,000.00; and III) all obligations of the City under
the Development Agreement, including but not limited to the construction of certain
infrastructure and utilities benefitting the Premises(collectively, the"Incentives");
d) all building permits, entitlements, governmental and quasi-governmental approvals and
authorizations, zoning classifications, zoning variances, permitted use classifications,
licenses, permits, plats, plat applications, site plans, phasing agreements, and certificates
pertaining to the Project and/or the Premises (collectively, the"Entitlements"); and
e) all appraisals, assessments, impact studies, economic models, and financial projections
pertaining to any and all Projects and/or the Premises (collectively, the 'Assessments");
and
f) all trade-names and other general intangibles pertaining to any and all Projects and/or the
Premises(collectively, the"Intangibles").
The Plans, Development Agreement, Incentives, Entitlements, Assessments and Intangibles (collectively,
the "Assigned Assets") are assigned as collateral security for certain indebtedness owed by Borrower to
Lender, as evidenced by a certain Construction Loan and Security Agreement executed by Borrower and
Lender on or about even date herewith ("Loan Agreement"). Affiliate acknowledges having received and
reviewed the Loan Agreement, and all capitalized terms not expressly defined herein shall have the same
meanings provided for such terms as defined in the Loan Agreement.
Borrower and Affiliate agree that Lender does not assume any of their obligations or duties
concerning the Assigned Assets, including, but not limited to any obligation whatsoever under the
Development Agreement to the City or any other governmental or quasi-governmental entity that has
issued or conferred upon Borrower or Affiliate any Incentive or Entitlement, unless and until Lender shall
have given written notice to such entities that it has affirmatively exercised its right to complete or cause
the completion of the Project upon or after the occurrence and continuation of an Event of Default beyond
the applicable Cure Period, if any. In the event Lender does not personally undertake to complete the
Project, such obligations and duties shall be assumed by the person or entity so undertaking to complete
the Project as designated by Lender, and Lender shall have no liability whatsoever for the performance of
any such obligation or duty. For the purpose of completing the Project, Lender may reassign its right, title
and interest in the Assigned Assets to any persons or entities in Lender's discretion and without any
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4842-5062-6812.3
consent required from Borrower or Affiliate, and any such reassignment shall be valid and binding upon
Borrower and Affiliate as fully as if such entities had expressly approved the same.
Borrower and Affiliate hereby irrevocably authorizes Lender, following the occurrence of an Event
of Default that has continued beyond the applicable Cure Period, if any, to demand, receive and enforce
all of their rights and remedies with respect to the Assigned Assets, to collect payments and enforce
obligations under the Development Agreement, to make payments under the Plans and Assessments, and
to give appropriate receipts, releases and satisfactions for and on behalf of and in their names, or at the
option of Lender in the name of Lender, with the same force and effect as Borrower and Affiliate could do
if this Assignment had not been made.
Borrower and Affiliate hereby represent and warrant to Lender that a) they have made no previous
assignment of their interests in the Assigned Assets; b)they have full right, title and authority to make this
Assignment; and c) all necessary consents and approvals for this Assignment have been obtained to
render it fully enforceable and binding, including but not limited to the Consent and Acknowledgement
attached to this Assignment that has been duly executed by the City. Borrower and Affiliate agree not to
further assign, sell, pledge, mortgage or otherwise transfer or encumber their interest in the Assigned
Assets until the Loan has been repaid in full and Lender no longer has any obligation to advance any
funds or extend any credit to or for the benefit of Borrower.
This Assignment is presently effective, absolute and unconditional. Notwithstanding the foregoing,
Lender agrees that it shall have no right under this Assignment to enforce Borrower's or Affiliate's rights
with respect to the Assigned Assets until an Event of Default has occurred and continued beyond the
applicable Cure Period, if any. Upon the occurrence of any such Event of Default and the continuation
thereof beyond any applicable Cure Period, if any, Lender may, without affecting any of its other rights or
remedies against Borrower under any other Loan Document, exercise its rights under this Assignment or
in any other manner permitted by law, and in addition, Lender shall have and possess, without limitation,
any and all rights and remedies of a secured party under the Missouri Uniform Commercial Code or
otherwise as provided by law.
BORROWER HEREBY AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, LAWSUITS, JUDGMENTS,
AND COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS'
FEES) TO WHICH LENDER MAY BECOME EXPOSED, OR WHICH LENDER MAY INCUR, IN
EXERCISING ANY OF ITS RIGHTS UNDER THIS ASSIGNMENT EXCEPT TO THE EXTENT THE
FOREGOING ARISES FROM, IS CAUSED BY OR IS THE RESULT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF LENDER.
Subject to the aforesaid limitation on further assignment by Borrower and Affiliate,this Assignment
shall be binding upon and inure to the benefit of the heirs, legal representatives, assigns and successors
in interest of Borrower, Affiliate, Lender and all third parties. Without limiting the general operation and
effect of the foregoing, Lender may transfer and assign this Assignment to any third party (a "Successor
Tenant") in connection with the enforcement of Lender's remedies, including but not limited to a
foreclosure of the Leasehold Mortgage or conveyance in lieu thereof(either such event being defined as a
"Foreclosure Event"), and such Successor Owner shall thereafter be entitled to enforce this Assignment
in the full place and stead of Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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4842-5062-6812.3
IN WITNESS WHEREOF, Borrower and Affiliate have executed this Assignment as of this
day of October, 2021.
BORROWER:
KC WFC Training,LLC,
a Kansas limited liability company
By:
Print Nam
Title:
AFFILIATE:
ACFC,LLC,
a Kansas limited liability company
By: `
Print Name:
Title:
(SIGNATURE PAGE TO ASSIGNMENT OF PLANS,DEVELOPMENT AGREEMENT AND INCENTIVES)
CONSENT AND ACKNOWLEDGEMENT
OF
CITY OF RIVERSIDE, MISSOURI
City of Riverside, Missouri (the "City") hereby consents to the execution and delivery of the
foregoing Collateral Assignment of Plans, Development Agreement and Incentives dated October 1
2021 (the "Assignment"), by Borrower and Affiliate in favor of Lender. All capitalized terms not expressly
defined in this Consent and Acknowledgement shall have the same meanings provided for such terms as
defined in the Assignment.
Moreover, City hereby acknowledges that Borrower and Affiliate have the right to assign their
rights and interest in the Development Agreement, Incentives and Entitlements to Lender(or its designee
or nominee) pursuant to the Assignment without any further consent or acknowledgement of City, provided
City is provided notice of such assignment, which notice is hereby acknowledged.
City hereby further acknowledges that the interests of Borrower and Affiliate in the Development
Agreement, Incentives and Entitlements are assigned and transferred to Lender by way of collateral
security only, and, unless and until Lender or a Successor Tenant acquires ownership of Borrower's
leasehold interest in the Premises under its Lease Agreement with City (the "Leasehold Estate") and
expressly assumes Borrower's obligations under the Development Agreement, neither Lender nor
Successor Tenant shall be deemed to have assumed or become liable for any of the obligations or
liabilities of Borrower or Affiliate under the Development Agreement, Incentives or Entitlements by
Lender's acceptance hereof, operation of law, or otherwise.
City covenants and agrees that upon the acquisition by Lender or a Successor Tenant of the
Leasehold Estate through a Foreclosure Event, City shall recognize Successor Tenant as the successor to
all Borrower's and Affiliate's interests under the Development Agreement and shall confer the benefit of all
Incentives and Entitlements upon such entity so long as such entity fulfills and satisfies all obligations of
Borrower when and as required under the Development Agreement.
[Signature page follows]
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4842-5062-68123
IN WITNESS WHEREOF, City of Riverside, Missouri, has caused this Consent to be signed in its
name and behalf by its Mayor and the seal of the City to be hereunto affixed and attested by the Deputy
City Clerk, all as of October 2021.
City of Riverside, Missouri
kvBy:
Name: - L• ,
Title: Mayor
[SEAL]
ATTEST:
By:
Name: Robin Kincai
Title: City Clerk
ACKNOWLEDGEMENT
STATE OF sS.oUI
ss
COUNTY OF )
On this /q 5-day of October, 2021, before me personally appeared i A LLB �n
as Mayor of THE CITY OF RIVERSIDE, MISSOURI, and executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of said City, and that said
individual is authorized to execute said instrument on behalf of said City as its duly elected Mayor.
In witness whereof, I hereunto set my hand and official seal.
,•oY?U�••, ROBIN L KINCAID Notary Public for the St to of
NOTARY G�,'- MyC°mmissl°nExpires March 8,2023 My Commission Expires:
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4842-5062-6812.3