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Lambertz Add TIF Development Agreement r" ,'\ ;'. >~ '" EXECUTION COPY J LAMBERTZ ADDITION TAX INCREMENT FINANCING DISTRICT DEVELOPMENT AGREEMENT by and between the CITY OF SALINA, KANSAS and SALINA PARTNERS, LLC DATED AS OF MARCH 17,2008 ~ Section 1.01. Section 1.02. Section 2.01 Section 2.02. Section 2.03. Section 2.04. TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Rules of Construction .............. ...... ........... ........................................................................ 1 Definitions of Words and Terms ....................................................................................... 2 ARTICLE II REPRESENTATIONS AND WARRANTIES Representations of City ............................................................... ............. ........................ 5 Representations of the Developer.......... ........................... ........... ..................................... 6 Developer's Acquisition of the Redevelopment District .................................................. 7 Conditions to the Effective Date of Agreement................................................................ 8 REIMBURSEMENT OF DEVELOPER'S REDEVELOPMENT PROJECT COSTS ARTICLE III Section 3.01. Section 3.02. Section 3.03. Section 3.04. Section 3.05. Section 3.06. Section 3.07. Section 4.01. Section 4.02. Section 4.03. Section 4.04. Section 4.05. Section 4.06. Section 4.07. Section 4.08. Redevelopment Project Costs, Generally ......................................................................... 8 Developer to Advance Costs...... ...... ........... ............................... ..... .................................. 8 City's Obligation to Reimburse Developer....................................................................... 8 Developer Reimbursement Process .................................................................................. 9 Right to Inspect and Audit ..............................................................................................1 0 Limitation on City's Payment Obligations ..................................................................... 10 The Redevelopment District and the Project Plan.......................................................... 10 ARTICLE IV THE REDEVELOPMENT PROJECT Scope of the Project....................................... ............................ ..................................... 10 Project Schedule..................... .~.... ...... ............................................................................ II Project Budget......................... ........................................................ ........... .................... 11 Design of Project.......................................... .................................................................. II Project Zoning, Planning, Platting and Construction ..................................................... 11 Rights of Access............... ................ .................................. ............................................ 13 Certificate of Full Completion....................... ................................................................. 13 Mid State Mall Site Access and Traffic Signal............................................................... 13 .. Section 5.01. Section 5.02. Section 5.03. Section 5.04. Section 5.05. Section 5.06. Section 5.07. ARTICLE V USE OF THE REDEVELOPMENT DISTRICT Tenants and Land Use Restrictions ..............................................................................16 Operation of Project........................................................... ...................................... ....... 17 Copies of All Leases and Agreements ............................................................................17 Sales Tax Information................................................ ..................................................... 17 Taxes, Assessments, Encumbrances and Liens............................................................... 18 Financing During Construction; Rights of Holders ........................................................18 Covenant for Non-Discrimination .................................................................... .............. 19 ARTICLE VI REIMBURSEMENT OF REDEVELOPMENT PROJECT COSTS; TAX INCREMENT FINANCING Section 6.01. Section 6.02. Section 6.03. Section 6.04. Section 6.05. Section 7.01. Section 7.02. Section 7.03. Section 8.01. Section 8.02. Section 8.03. Section 8.04. Section 9.01. Section 9.02. Section 9.03. Section 9.04. Section 9.05. Advanced Funds Account....................................................................................... ........ 19 Tax Increment Fund....................................................................................... .................20 City Administrative Service Fee ..........................................................................;.......... 21 TIF Obligations ............................. ............ .................... ....................,............................22 Developer Purchase ofTIF Obligations or Developer Pay As You Go ..........................24 ARTICLE VII ASSIGNMENT; TRANSFER Transfer of Obligations.......... ~.............................................. ..........................................25 Corporate Reorganization.................................................... .......................... .......... .......25 Prohibition Against Transfer of the Redevelopment District, the Buildings or Structures Therein .................................................................. ................25 ARTICLE VIII GENERAL COVENANTS Indemnification of City ............ ....................... ......................... ......................................26 Insurance.........................................................................................................................27 Obligation to Restore...................................................................................................... 29 Non-liability of Officials, Employees and Agents of the City ........................................ 30 ARTICLE IX DEFAULTS AND REMEDIES Developer Event of Default............................................................................................ 30 City Event of Default............................. ........................................... ..............................31 Remedies Upon a Developer Event of Default............................................................... 31 Remedies Upon a City Event of Default ........................................................................32 Excusable Delays........................ .................................................................................... 33 ii Section 9.06. Legal Actions................. ............... ........... ................................................ .......................33 Section 10.01. Section 10.02. Section 10.03. Section 10.04. Section 10.05. Section 10.06. Section 10.07. Section 10.08. Section 10.09. Section 10.10. Section 10.11. Section 10.12. Section 10.13. Section 10.14. Section 10.15. Section 10.16. Exhibit A. Exhibit B. Exhibit C. Exhibit D. Exhibit E. Exhibit F. Exhibit G. ARTICLE X GENERAL PROVISIONS Mutual Assistance.................................................................................... .......................33 Effect of Violation of the Terms and Provisions of this Agreement; No Partnership ............................. ......................................... ............................. .........33 Time of Essence. .................... ......................................................................................... 33 Amendments...... ........................................................................... ..................................33 Agreement Controls...................................................... .................................. .................33 Conflicts of Interest... ..................................................................................................... 34 Term................................................................................................................................34 Validity and Severability ................................................................................................ 34 Required Disclosures......................... ............................................................................. 34 Tax Implications......................... ...... ...... ........................................................................34 Authorized Parties.......... ...... ..... ................. ....................................................................34 Notice ............................................... ........... ................................................................... 35 Kansas Law ........................................... .~........................................................................ 35 Counterparts ................................................ ...................... .................................... .........35 Recordation of Agreement........... ............................... ...................... ..............................35 Consent or Approval................................................. ...... ..................................... ...........36 Legal Description of Redevelopment District Form of Certificate of Redevelopment Project Costs Form of Certificate of Full Completion Project Budget Design Standards Restricted Land Uses within the Redevelopment District Form of Certificate of Stocking, Staffing and Opening of Kohl's Department Storr I iii LAMBERTZ ADDITION TAX INCREMENT FINANCING DISTRICT DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by and between the CITY OF SALINA, KANSAS, a municipal corporation duly organized and existing under the laws of the State of Kansas as a city of the first class (the "City"), and SALINA PARTNERS, LLC, a limited liability company organized and existing under the laws of the State of Delaware (the "Developer," and together with the City, the "Parties"), and is dated as of March 17, 2008. RECITALS WHEREAS, on December 17, 2007, the City created the Lambertz Addition Tax Increment Financing Redevelopment District (the "Redevelopment District") pursuant to K.S.A. 12-1770 et seq. (the "Act") and Ordinance No. 07-10428 of the City; and WHEREAS, the Redevelopment District consists of approximately 10.79 acres generally located in an area bounded on the north by Midstate Plaza Addition, on the east by South Ninth Street, on the south by Belmont Plaza Addition, and on the west by Interstate 1-35, all in the City of Salina, Saline County, Kansas, and is legally described on Exhibit A attached hereto; and WHEREAS, pursuant to Ordinance No. 07-10428, the Redevelopment District consists of a single redevelopment project area the boundaries of which are the same as the boundaries of the Redevelopment District (the "Project Area"); and WHEREAS, the Developer submitted to the City the Redevelopment Project Plan for the Lambertz Addition Tax Increment Financing District, dated January 8, 2008 (the "Project Plan"), which was approved by the City on March 17, 2008, pursuant to Ordinance No. 08-10441; and WHEREAS, the City and the Developer desire to enter into this Agreement to address issues related to development of the Redevelopment District and implementation of the Project Plan. NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.01. Rules of Construction. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following rules of construction apply in construing the provisions. of this Agreement. A. The terms defined in this Article include the plural as well as the singular. B. All accounting terms not otherwise defined herein shall have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with generally accepted accounting principles. C. All references herein to "generally accepted accounting principles" refer to such principles in effect on the date of the determination, certification, computation or other action to be taken hereunder using or involving such terms. D. All references in this instrument to designated "Articles," "Sections" and other subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument as originally executed. E. The words "herein," "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. F. The Article and Section headings herein are for convenience only and shall not affect the' construction hereof. G. The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Section. The provisions of the Project Plan, and such resolutions and ordinances of the City introduced or adopted by the City Council which designate the Redevelopment District and the Project Area and adopt the Project Plan, and the provisions of the Act, as amended, are hereby incorporated herein by reference and made a part of this Agreement, subject in every case to the specific terms hereof. Section 1.02. Definitions of Words and Terms. Capitalized words used in this Agreement shall have the meanings set forth in the Recitals to this Agreement or they shall have the following . meanings: "Act" means the Kapsas Tax Increment Financing District Act, K.S.A. 12-1770 et seq., as amended and supplemented from time to time. "Additional Commercial Phase" means that portion of the Project exclusive of the Kohl's Phase and that includes at least 36,784 square feet of retail shopping center and all related public and private improvements, as further described in the Project Plan. "Administrative Service Fee" means that fee to the City provided by Section 6.03 hereof, equal to 1 % of all sums deposited in the Tax Increment Fund. "Advanced Funds" means initially the sum of $25,000.00, to be held by the City pursuant to Section 6.01. "Advanced Funds Account" means an account to be created, held and administered by the City all pursuant to Section 6.01. "Agreement" means this Lambertz Addition Tax Increment Financing District Development Agreement, as amended from time to time. "Applicable Law and Requirements" means any applicable constitution, treaty, statute, rule, regulation, ordinance, order, directive, code, interpretation, judgment, decree, injunction, writ, determination, award, permit, license, authorization, directive, requirement or decision of or agreement with or by Governmental Authorities. 2 r)"1" "Bond Counsel" means Gilmore & Bell, P.C. "Bond Proceeds" means proceeds of any TIF Obligations issued by the City, less costs of issuance, capitalized interest and any required reserves. "Certificate of Redevelopment Project Costs" means a certificate relating to Redevelopment Project Costs in substantially the form attached hereto as Exhibit B. "Certificate of Full Completion" means a certificate evidencing Full Completion of either the Additional Commercial Phase or the Kohl's Phase, in substantially the form attached hereto as Exhibit C. "City" means the City of Salina, Kansas. "City Event of Default" means any event or occurrence defined in Section 9.02 of this Agreement. "City Expenses" means the expenses described in Section 6.01 of this Agreement. "City Representative" means the Mayor or City Manager of the City, and such other person or persons at the time designated to act on behalf of the City in matters relating to this Agreement. "Construction Plans" means plans, drawings, specifications and related documents, and construction schedules for the construction of the Project, together with all supplements, amendments or corrections, submitted by the Developer and approved by the City in accordance with this Agreement. "County" means Saline County, Kansas. "Developer" means Salina Partners, LLC, a limited liability company organized and existing under the laws of the State of Delaware, and any successors and assigns approved pursuant to this Agreement. "Developer Event of Default" means any event or occurrence defined in Section 9.01 of this Agreement. "Developer Representative" means Christian Ablah and Steve Panko and such other person or persons at the time designated to act on behalf of the Developer in matters relating to this Agreement as evidenced by a written certificate furnished to the City containing the specimen signature of such person or persons and signed on behalf of the Developer. "Event of Default" means any event or occurrence as defined in Article IX ofthis Agreement. "Excusable Delays" means any delay beyond the reasonable control of the Party affected, caused by damage or destruction by fire or other casualty, power failure, strike, shortage of materials, unavailability of labor, delays in the receipt of Permitted Subsequent Approvals as a result of unreasonable delay on the part of the applicable Governmental Authorities, adverse weather conditions such as, by way of illustration and not limitation, severe rain storms or below freezing temperatures of abnormal degree or abnormal duration, tornadoes, and any other events or conditions, which shall include but not be limited to any litigation interfering with or delaying the construction of all or any portion of the 3 Project in accordance with this Agreement, which in fact prevents the Party so affected from discharging its respective obligations hereunder. "Full Completion" has the meaning set forth in Section 4.07. "Governmental Approvals" means all plat approvals, re-zoning or other zoning changes, site plan approvals, conditional use permits, variances, building permits, architectural review or other subdivision, zoning or similar approvals required for the implementation of the Project and consistent with the Project Plan, the Site Plan, and this Agreement. "Governmental Authorities" means any and all jurisdictions, entities, courts, boards, agencies, commissions, offices, divisions, subdivisions, departments, bodies or authorities of any type of any governmental unit (federal, state or local) whether now or hereafter in existence. "Incremental Tax Revenues" means the Real Property Tax Revenues and the Sales Tax Revenues. "Kohl's Phase" means that phase of the Project, excluding the Additional Commercial Phase, and which includes a minimum 64,000 square foot Kohl's Department Store, and all related public and private improvements, as further described in the Project Plan. "Pay As You Go" has the meaning set forth in Section 3.03. "Permitted Subsequent Approvals" means the building permits and other governmental approvals customarily obtained prior to construction which have not been obtained on the date that this Agreement is executed, which the City or other governmental entity has not yet determined to grant. "Plans" means Site Plans, Construction Plans and all other Governmental Approvals necessary to construct the Project in accordance with City code, applicable laws of Governmental Authorities and this Agreement. "Project" means the project described in the Project Plan, and consisting of the Additional Commercial Phase and the Kohl's Phase. "Project Area" means the Project Area within the Redevelopment District, approved by Ordinance No. 08-10441, the boundaries of which are contiguous with the boundary of the Redevelopment District, all legally described in Exhibit A hereto. "Project Budget" means the project budget as set forth in Exhibit D hereto. "Project Plan" means the Redevelopment Project Plan for the Lambertz Addition Tax Increment Financing District, dated January 8, 2008, as amended by the Amended Redevelopment Project Plan for the Lambertz Addition Tax Increment Financing District, dated March 5, 2008, which was approved by the City on March 17, 2008 pursuant to Ordinance No. 08-10441. "Real Property Tax Revenues" means the incremental increase in real property taxes within the Project Area, determined in accordance with the Act and the Project Plan. 4 "Redevelopment District" means the Lambertz Additio Tax Increment Financing Redevelopment District, created by the City on December 17, 2007 by th adoption of Ordinance No. 07- 10428, pursuant to the Act, and legally described on Exhibit A hereto. "Redevelopment Project Costs" means "redevelopment project costs" as defined in the Act and as set forth in the Project Plan and this Agreement, including all necessary reserves, capitalized interest and costs of issuance. "Redevelopment Project Costs Cap" means Three Million Dollars ($3,000,000.00). "Sales Tax Revenues" means (a) 100% of the incremental increase in revenue received by the City from (i) any transient guest and local sales and use taxes, (ii) franchise fees collected from utilities and other businesses using public right-of-way within the Redevelopment District, and (Hi) sales taxes within the Redevelopment District; and (b) 100% of the incremental increase in revenue received by the County from any transient guest, local sales and use taxes collected within the Redevelopment District; all determined in accordance with the Act and.the Project Plan. "Site Plan" means the final site plan for the Project Area submitted by the Developer to the City and approved by the City pursuant to applicable City ordinances, regulations and City code provisions, which may be approved as a whole or approved in phases or stages. "Tax Increment Fund" means the Lambertz Addition Tax Increment Fund, created pursuant to the Act and Section 6.02 hereof. . "TIF Obligation Conditions" means those conditions precedent to the City's obligation to issue TIF Obligations, as set forth in Section 6.04. "TIF Obligations" means bonds, notes or other obligations, singly or in series, issued by the City pursuant to the Act and in accordance with this Agreement. "TIF Term" means that period of time equal to twenty (20) years beginning on the date the ordinance approving the Project Plan becomes effective. ARTICLE II REPRESENTATIONS AND WARRANTIES . Section 2.01 Representations of City. The City makes the following representations and warranties, which are true and correct on the date hereof: A. Due Authoritv. The City has full constitutional and lawful right, power and authority, under current applicable law, to execute and deliver and perform the terms and obligations of this Agreement, and this Agreement has been duly and validly authorized and approved by all necessary City proceedings, findings and actions. Accordingly, this Agreement constitutes the legal valid and binding obligation of the City, enforceable in accordance with its terms. B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of the terms and conditions hereof do not and will not conflict with or result in a breach of any of the terms or conditions of any 5 agreement or instrument to which it is now a party, and do not and will not constitute a default under any of the foregoing. C. No Litigation. There is no litigation, proceeding or investigation pending or, to the knowledge of the City, threatened against the City with respect to the Project Plan or this Agreement. In addition, no litigation, proceeding or investigation is pending or, to the knowledge of the City, threatened against the City seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of this Agreement or which would in any manner challenge or adversely affect the existence or powers of the City to enter into and carry out the transactions described in or contemplated by the execution, delivery, validity or performance by the City of the terms and provisions of this Agreement. D. Governmental or Comorate Consents. No consent or approval is required to be obtained from, and no action need be taken by, or document filed with, any governmental body or corporate entity in connection with the execution and delivery by the City of this Agreement. E. No Default. No default or Event of Default has occurred and is continuing, and no event has occurred and is continuing which with the lapse of time or the giving of notice, or both, would constitute a default or an event of default in any material respect on the part of the City under this Agreement. Section 2.02. Representations ofthe Developer. The Developer makes the following representations and warranties, which are true and correct on the date hereof: A. Due Authority. The Developer has all necessary power and authority to execute and deliver and perform the terms and obligations of this Agreement and to execute and deliver the documents required of the Developer herein, and such execution and delivery has been duly and validly authorized and approved by all necessary proceedings. Accordingly, this Agreement constitutes the legal valid and binding obligation of the Developer, enforceable in accordance with its terms. B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of the terms and conditions hereof do not and will not conflict with or result in a breach of any of the terms or conditions of any corporate or organizational restriction or of any agreement or instrument to which it is now a party, and do not and will not constitute a default under any of the foregoing. C. No Litigation. No litigation, proceeding or investigation is pending or, to the knowledge of the Developer, threatened against the Project, the Developer or any officer, director, member or shareholder of the Developer. In addition, no litigation, proceeding or investigation is pending or, to the knowledge of the Developer, threatened against the Developer seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of this Agreement or which would in any manner challenge or adversely affect the existence or powers of the Developer to enter into and carry out the transactions described in or contemplated by the execution, delivery, validity or performance by the Developer, of the terms and provisions of this Agreement. D. No Material Change. (1) The Developer has not incurred any material liabilities or entered into any material transactions other than in the ordinary course of business except for the transactions contemplated by this Agreement and (2) there has been no material adverse change in the business, financial position, prospects or results of operations of the Developer, which could affect the 6 Developer's ability to perform its obligations pursuant to this Agreement from that shown in the financial information provided by the Developer to the City prior to the execution of this Agreement. E. Governmental or Corporate Consents. No consent or approval is required to be obtained from, and no action need be taken by, or document filed with, any governmental body or corporate entity in connection with the execution, delivery and performance by the Developer of this Agreement, other than Permitted Subsequent Approvals. F. No Default. No default or Event of Default has occurred and is continuing, and no event has occurred and is continuing which with the lapse of time or the giving of notice, or both, would constitute a default or an event of default in any material respect on the part of the Developer under this Agreement, or any other material agreement or material instrument to which the Developer is a party or by which the Developer is or may be bound. G. Aoorovals. Except for Permitted Subsequent Approvals, the Developer has received and is in good standing with respect to all certificates, licenses, inspections, franchises, consents, immunities, permits, authorizations and approvals, governmental or otherwise, necessary to conduct and to continue to conduct its business as heretofore conducted by it and to own or lease and operate its properties as now owned or leased by it. Except for Permitted Subsequent Approvals, the Developer has obtained all certificates, licenses, inspections, franchises, consents, immunities, permits, authorizations and approvals, governmental or otherwise, necessary to acquire, construct, equip, operate and maintain the Project. The Developer reasonably believes that all such certificates, licenses, consents, permits, authorizations or approvals which have not yet been obtained will be obtained in due course. H. Construction Permits. Except for Permitted Subsequent Approvals, all governmental permits and licenses required by applicable law to construct, occupy and operate the Project have been issued and are in full force and effect or, if the present stage of development does not allow such issuance, the Developer reasonably believes, after due inquiry of the appropriate governmental officials, that such permits and licenses will be issued in a timely manner in order to permit the Project to be constructed. I. Compliance with Laws. The Developer is in compliance with all valid laws, ordinances, orders, decrees, decisions, rules, regulations and requirements of every duly constituted governmental authority, commission and court applicable to any of its affairs, business, operations as contemplated by this Agreement. J. Other Disclosures. The information furnished to the City by the Developer in connection with the matters covered in this Agreement are true and correct and do not contain any untrue statement of any material fact and do not omit to state any material fact required to be stated therein or necessary to make any statement made therein, in the light of the circumstances under which it was made, not misleading. K. Proiect. The Developer represents and warrants that the Project Area is sufficient to construct the Project as contemplated in the Project Plan and this Agreement. Section 2.03. Developer's Acquisition of the Redevelopment District. At the time that this Agreement is executed, Developer represents that it has a legal, valid, binding and enforceable contractual right to acquire legal title to all of the real property in the Redevelopment District. All of the real property to be acquired by the Developer, subject to the rights of assignment under Article vn, shall be held in the name of~e Developer and shall be subject to the terms, conditions and covenants contained in this Agreement and in the Project Plan immediately upon acquisition and prior to any encumbrances placed thereon. In the event 7 the Developer fails to obtain fee simple title (subject only to title exceptions of record that have no effect the Developer's ability to construct the Project) to all of the real property in the Redevelopment District by December 31, 2009 the City may terminate this Agreement. Section 2.04. Conditions to the Effective Date of this Agreement. Contemporaneously with the execution of this Agreement, and as a precondition to the effectiveness of this Agreement, the Developer shall submit the following documents to the City: A. A copy of the Developer's Articles of Organization, certified by the Secretary of State of the State of Delaware; and B. A certified copy of the Operating Agreement of the Developer; and C. A legal opinion from counsel to the Developer in form and substance acceptable to the City covering: (i) the due organization of the Developer and the power and authority of the Developer to execute this Agreement, and (ii) the enforceability of this Agreement against the Developer; and D. A title insurance commitment, dated no earlier than six months prior to the date of execution of this Agreement, regarding the Developer's acquisition of a fee simple ownership to all real estate within the Redevelopment District, subject only to title exceptions of record that have no effect on the Developer's ability to construct the Project. ARTICLE III REIMBURSEMENT OF REDEVELOPMENT PROJECT COSTS Section 3.01. Redevelopment Project Costs, Generally. In consideration for the Developer's agreement to construct the Project, the City agrees to reimburse the Developer for Redevelopment Project Costs, up to the Redevelopment Project Costs Cap, subject to the terms of this Agreement. The City agrees to use its best efforts to issue TIF Obligations to provide such reimbursement to the Developer after the Developer's satisfaction of the TIF Obligation Conditions as set forth in Section 6.04. If, despite the City's best efforts, such TIF Obligations, are not issued, then the Developer shall be reimbursed on a Pay As You Go basis as further set forth in this Agreement. The City shall only be obligated to reimburse the Developer . from Bond Proceeds if TIF Obligations are issued, or from the Tax Increment Fund, if TIF Obligations are not issued. Section 3.02. Developer to Advance Costs. The Developer agrees to advance all Redevelopment Project Costs as necessary to complete the Project, all subject to the Developer's right to terminate this Agreement as set forth in Section 9.04. Upon or prior to execution of this Agreement, the Developer shall deposit with the City the funds set forth in Section 6.01 for the purpose of reimbursing the City for Redevelopment Project Costs related to City planning, legal, administrative and other costs associated with the Project. Section 3.03. City's Obligation to Reimburse Developer. A. Obligation to Reimburse. Subject to the terms of this Agreement and the conditions in this Section, the City agrees to reimburse Developer for Redevelopment Project Costs in a total amount not to exceed the Redevelopment Project Costs Cap. Developer may be reimbursed for Redevelopment Project Costs (I) from TIF Obligations as provided in Section 6.04 hereof, or (2) if TIF Obligations are not issued, 8 then from the Tax Increment Fund by the City as funds are collected in the Tax Increment Fund (the "Pay As You Go" method, as further set forth in Section 6.05). The Parties agree that all reimbursement to the Developer shall be made only from TIF Obligations or on a Pay As You Go basis. Nothing in this Agreement shall obligate the City to issue TIF Obligations to reimburse Developer for any cost that is not a "redevelopment project cost" as defmed by the Act. B. Timing of Reimbursement. 1. The City shall have no obligation to reimburse Developer until funds are available in the Tax Increment Fund or until the proceeds ofTIF Obligations are available. 2. If TIF Obligations are issued, the Bond Proceeds shall be released to the Developer as follows: a. Except as expressly set forth in subparagraphs (b) and (c) below, the City shall not reimburse the Developer for Redevelopment Project Costs in excess of $2,400,000.00 until the KoW's department store to be constructed in the Kohl's Phase shall be stocked, staffed, and open to the public for business for at least one day (which shall be evidenced by the City's receipt of a certificate in substantially the form attached hereto as Exhibit G). b. To the extent (i) Bond Proceeds are available and (ii) a temporary certificate of occupancy for the Kohl's department store is granted on or before December 31, 2008, the Developer shall be entitled to reimbursement for Redevelopment Project Costs equal to $2,800,000.00. c. To the extent (i) Bond Proceeds are available and (ii) the KoW's department store shall be stocked, staffed, and open to the public for business for at least one day (which shall be evidenced by a certificate in substantially the form attached hereto as Exhibit G), the Developer shall be entitled to reimbursement for Redevelopment Project Costs equal to $3,000,000.00. C. Source of Reimbursement. In the event that TIF Obligations are not issued, the City shall make payments from the Tax Increment Fund on a Pay As You Go basis in the order of priority set forth in Section 6.02. In the event that TIF Obligations are issued in accordance with Article VI of this Agreement, the Trustee for the TIF Obligations shall make payments from the appropriate account, in accordance with the applicable documents governing the TIF Obligations and paragraph (B) of this Section 3.03. in the order of priority set forth in Section 6.02. If TIF Obligations have been issued, Developer may be reimbursed on a Pay As You Go Basis to the extent that the Redevelopment Project Costs are not paid from the proceeds of the TIF Obligations. Payment to the Developer of Redevelopment Project Costs as described in the previous sentence shall be expressly subordinate to the payment of debt service on the Bonds. Section 3.04. Developer Reimbursement Process. A. All requests for reimbursement of Redevelopment Project Costs shall be made in a Certificate of Redevelopment Project Costs in substantial compliance with the form attached hereto as Exhibit B. Requests for reimbursement shall be submitted by the Developer to the City not more often than montWy. The Developer shall provide itemized invoices, receipts or other information reasonably requested, if any, to confirm that any such cost has been paid and qualifies as an Redevelopment Project Cost, and shall further provide a summary sheet detailing the costs requested to be reimbursed. Such summary sheet shall show the date such cost was paid, the payee, a brief description of the type of cost paid, and the amount paid. 9 The Developer shall provide such additional information as reasonably requested by the City to conftrm that the such costs have been paid and qualify as Redevelopment Project Costs. B. The City reserves the right to have its engineer or other agents or employees inspect all work in respect of which a Certiftcate of Redevelopment Project Costs is submitted, to examine the Developer's and others' records relating to all expenses related to the invoices to be paid, and to obtain from such parties such other information as is reasonably necessary for the City to evaluate compliance with the terms hereof. C. The City shall have 30 calendar days after receipt of any Certificate of Redevelopment Project Costs to review and respond by written notice to the Developer. If the submitted Certificate of Redevelopment Project Costs and supporting documentation demonstrates that (1) the request relates to the Redevelopment Project Costs; (2) the expense has been paid; (3) Developer is not in material default under this Agreement; and (4) there is no fraud on the part of the Developer, then the City shall approve the Certiftcate of Redevelopment Project Costs and make, or cause to be made, reimbursement from the Tax Increment Fund in accordance with Section 3.06 and Article VI hereof, within thirty (30) days of the City's approval of the Certificate of Redevelopment Project Costs. If the City reasonably disapproves of the Certificate of Redevelopment Project Costs, the City shall notify the Developer in writing of the reason for such disapproval within such 30-day period. Approval of the Certificate of Redevelopment Project Costs will not be unreasonably withheld. Section 3.05 Right to Inspect and Audit The Developer agrees that, up to one year after completion of the Project, the City, with reasonable advance notice and during normal business hours, shall have the right and authority to review, audit, and copy, from time to time, all the Developer's books and records relating to the Redevelopment Project Costs (including, but not limited to, all general contractor's sworn statements, general contracts, subcontracts, material purchase orders, waivers of lien, paid receipts and invoices). Section 3.06. Limitation on City's Payment Obligations. Nothwithstanding any other term or provision of this Agreement, the City's obligation to reimburse the Developer for Redevelopment Project Costs shall be limited to monies in the Tax Increment Fund or, to the extent TIF Obligations are issued, from Bond Proceeds, and shall not be payable from any other source. Section 3.07. The Redevelopment District and the Project Plan. The City shall not, under any circumstances other than by a future written agreement between the parties, terminate the Redevelopment District or take any action to reduce the TIF Term prior to such time as the Developer has been reimbursed for the total Redevelopment Project Costs Cap; except, provided that if all aspects of the Project are completed and the Developer has incurred eligible Redevelopment Project Costs equal to less than the Redevelopment Project Costs Cap, the City may terminate the TIF. ARTICLE IV THE REDEVELOPMENT PROJECT Section 4.01. Scope of the Project. Subject to the terms and conditions of the Project Plan and this Agreement, the. Developer shall construct, or cause to be constructed, the Project. The Project is expected to be completed in two phases: the Kohl's Phase and the Additional Commercial Phase. 10 Section 4.02. Project Schedule. A. Promptly after execution of this Agreement and receipt of all applicable Governmental Approvals, the Developer shall commence or cause to be commenced and shall promptly thereafter diligently prosecute to completion the construction of the Kohl's Phase. The completion of the Kohl's Phase shall be evidenced by the City delivery of a Certificate of Full Completion regarding the Kohl's Phase in accordance with Section 4.06 of this Agreement. B. The Developer shall commence and complete each of its obligations under this Agreement with respect to the acquisition, construction and completion of the Additional Commercial Phase within three (3) years of the date the governing body of the City approves this Agreement. The completion of the Additional Commercial Phase shall be evidenced by the City's delivery of a Certificate of Full Completion regarding the Additional Commercial Phase in accordance with Section 4.06 of this Agreement. The Developer's failure to obtain a Certificate of Full Completion regarding the Additional Commercial Phase within three (3) years from the date of this Agreement shall not constitute an Event of Default for purposes of Section 9.01; but further provided that the Developer's failure to comply with this paragraph shall entitle the City to liquidated damages in the amount of any funds then held in the Advanced Funds Account, and if so used to remedy a default pursuant to this Section 4.02(B), such funds shall not be considered Redevelopment Project Costs. C. The City agrees to act in good faith and use its best efforts to timely process and review all Plans and consider the issuance of all necessary permits and other approvals, including building permits, rezoning approvals, preliminary and froal plat approval, and all other permits or approvals which are required for the Developer and businesses within the Redevelopment District to construct the Project. To the extent the City determines that any Plans or other documents or requests submitted by the Developer for the City's approval are unacceptable, the City shall provide a written description detailing the portions of the Plans or documents that are unacceptable. Section 4.03. Project Budget. The Project shall be constructed substantially in accordance with the Project Budget attached as Exhibit D hereto. Section 4.04. Design of Project. A. In order to further the development of the Redevelopment District, the City hereby authorizes the Developer to construct, or cause to be constructed, the Project according to the final Plans approved by the City. B. Developer shall comply or cause compliance with the design standards and requirements attached hereto as Exhibit E in the construction of the Project. Section 4.05. Project Zoning, Planning, Platting and Construction. A. Conformance with Proiect Plan. The Project Area shall be developed, and the Project constructed, in accordance with this Agreement and the Project Plan submitted by the Developer and approved by the City. No "substantial changes," as defined by K.S.A. 12-177080 shall be made to the Project, except as may be mutually agreed upon, in writing, between the Developer and the City, it being the intent of the Parties that the layout and size of particular buildings, parking facilities and private drives will likely change through the planning, zoning and marketing process. Any "substantial changes" shall be made only in accordance with the Act. 11 B. Site Plan. The Developer shall prepare and submit a Site Plan for the Project Area to the City for review and approval pursuant to the City Code. The Site Plan shall be in conformance with the Project Plan and this Agreement. C. Zonin!!. Plannin!! and Plattin!!. The City agrees to consider and act on any zoning, planning and platting applications by the Developer in due course and good faith. The Developer shall submit a rezoning application for a Planned Development District pursuant to Article 7, Chapter 42 of the City Code, which Planned Development District shall encompass the entire Redevelopment District. Such rezoning application shall p~ovide that the Planned Development District will contain covenants including but not limited to covenants contained in this Agreement regarding land use, infrastructure, buildings, design and other related provisions. The Developer shall diligently pursue approval of such application. Approval of such Planned Development District rezoning shall be obtained by the Developer prior to the Developer's request that the City consider the issuance ofTIF Obligations pursuant to Section 6.04(A)(9). D. Construction Plans. After approval of the Site Plan, the Developer shall submit Construction Plans for the Project for review and approval pursuant to City Code. Construction Plans may be submitted in phases or stages. The Construction Plans shall be in sufficient completeness and detail to show that construction will be in conformance with the Project Plan and this Agreement. The Developer agrees that all construction, improvement, equipping, and installation work on the Project shall be done in accordance with the Site Plan, Construction Plans and related documents to be approved by the City in compliance with City Code. E. Construction Permits and Approvals. Before commencement of construction or development of any buildings, structures or other work or improvements, the Developer shall, at its own expense, secure or cause to be secured any and all permits and approvals which may be required by the City and any other governmental agency having jurisdiction as to such construction, development or work. The City shall cooperate with and provide all usual assistance to the Developer in securing these permits and approvals, and shall diligently process, review and consider all such permits and approvals as may be required by law; except provided that the City shall not be required to issue any such permits or approval for any portion of the Project not in conformance with the Project Plan or this Agreement. F. Development Schedule. The Developer shall commence construction of the Project in good and workmanlike manner in accordance with the terms of this Agreement. The Developer shall cause the Project to be completed with due diligence. Upon reasonable advance notice, the Developer shall meet with the City to review and discuss the design and construction of the Project in order to enable the City to monitor the status of construction and to determine that the Project is being performed and completed in accordance with this Agreement. G. Continuation and Completion. Subject to Excusable Delays, once the Developer has commenced construction of the Project, or a particular phase of the Project as approved by the City, the Developer shall not permit cessation of work on the Project or such phase of the Project for a period in excess of 45 consecutive days or 90 days in the aggregate without prior written consent of the City. H. Antidiscrimination Durin!! Construction. The Developer, for itself, its successors and assigns, and any contractor with whom the Developer has contracted for the performance. of work on the Project, agrees that in the construction, renovation, improvement, equipping, repair and installation of the Project provided for in this Agreement, the Developer shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, age, sex, marital status, disability, national origin or ancestry. 12 I. No Waiver. Nothing in this Agreement shall constitute a waiver of the City's right to consider and approve or deny Governmental Approvals pursuant to the City's regulatory authority as . provided by City Code and applicable state law. The Developer acknowledges that satisfaction of certain conditions contained in this Agreement require the reasonable exercise of the City's discretionary zoning authority by the City's Planning Commission and Governing Body in accordance with City Code and applicable state law. Section 4.06. Rights of Access. Representatives of the City shall have the right of access to the Redevelopment District, without charges or fees, at normal construction hours during the period of construction, for the purpose of ensuring compliance with this Agreement, including, but not limited to, the inspection of the work being performed in constructing, renovating, improving, equipping, repairing and installing the project, so long as they comply with all safety rules. Except in case of emergency, prior to any such access, such representatives of the City will check in with the on-site manager. Such representatives of . the City shall carry proper identification, shall insure their own safety, assuming the risk of injury, and shall not interfere with the construction activity. Section 4.07. Certificate of Full Completion. Promptly after completion of the Project in accordance with the provisions of this Agreement, all with respect to the Additional Commercial Phase or the Kohl's Phase, the Developer may submit a Certificate ofFutl Completion to the City. Full Completion shall mean that the Developer shall have been granted a Certificate of Occupancy by the City Building Official and shall have completed all work as required by the Project Plan with respect to the applicable phase of the Project. The Certificate of Full Completion shall be in substantially the form attached as Exhibit C. The City shall, within ten (10) days following delivery of the Certificate of Full Completion, carry out such inspections as it deems necessary to verify to its reasonable satisfaction the accuracy of the certifications contained in the Certificate of Full Completion. The City's execution of the Certificate of Full Completion shall constitute evidence of the satisfaction of the Developer's agreements and covenants to construct the applicable phase of the Project to which the Certificate of Full Completion relates. Section 4.08. Mid State Mall Site Access and Traffic Signal. A. The Traffic Studv. The Developer shall commission a traffic study from a qualified traffic engineer acceptable to the City, to determine if the Traffic Signal Improvements (as defined below) are warranted. The Developer shall pay 100% of the costs of such traffic study. The scope of the traffic study shall be subject to the City's review and approval, and such scope shall include the following parameters: 1. Assume the trip generation rates produced by Kohl's and high volume retail and/or restaurants in the Additional Commercial Phase; 2. volume; Trip generation rates shall be conservative to account for the highest likely traffic 3. Compare the level of service at the unsignalized intersection of 9th Street and Key Avenue, to a signalized intersection with and without interconnection along the 9th Street corridor; 4. Consider level of service provided by cross-access across the Mid-State Property, without a signalized intersection at 9th Street & Key Avenue, 13 5. Traffic Signal Improvements shall be deemed required when the warrants shown in the latest edition of the MUTCD (Manual on Uniform Traffic Control Devices) are met. B. Imolementation of the Traffic Signal Improvements. 1. The "Traffic Signal Improvements" shall include all geometric and other improvements associated with signalization of the intersection of 9th Street and Key Avenue, installation of all improvements, including, but not limited to necessary hardware and software required to install a wired interconnection or similar improvements necessary to coordinate the signals from 9th Street and Broadway Boulevard on the north to 9th Street and Schilling Road on the south. The design of all such Traffic Signal Improvement shall be in accordance with the City's current standards and other standard practices and shall be subject to approval of the City Engineer. The Developer shall involve the City in all aspects of design of the Traffic Signal Improvements. The City shall have the right to review and approve all aspects of the Traffic Signal Improvements. 2. warranted: If the traffic study determines that the Traffic Signal Improvements are a. The Developer shall construct the Traffic Signal Improvements, to be completed on or before March 1,2009 or the date the Kohl's department store opens for business, whichever occurs first (the "Opening Date"). If the Traffic Signal Improvements are not complete by the Opening Date, then the Developer shall construct temporary improvements within the Existing Mid State Easement, the cost of which shall not exceed $20,000.00 (the "Temporary Improvements"). The Developer shall be allowed to use the Temporary Improvements to effectuate access to the Mid State Mall Property for a period of 90 days from the Opening Date. No full or temporary certificate of occupancy for the Kohl's department store shall be granted until the Temporary Improvements (if necessary) are complete. Any temporary certificate of occupancy for the Kohl's department store will not be converted to a full temporary certificate of occupancy until the Traftic Signal Improvements are complete. In the event that the Traffic Signal Improvements are not complete within 90 days from the Opening Date, the Developer shall pay the City the sum of$I,OOO.OO per day. b. The Developer's cost of constructing the Traffic Signal Improvements shall be financed by the City pursuant to the Improvement District Act, as. further set forth in this Section 4.08(D)(l). c. In lieu of the Developer constructing the Traffic Signal Improvements, the Developer may request, subject to City acceptance; that the City construct the Traffic Signal Improvements. No such request shall alter any of the other requirements of this Section 4.08(B). C. Imolementation of the Mid State Access Plan and the Street Improvements. If the traffic study determines that the Traffic Signal Improvements are not warranted and the Developer elects to utilize cross access on the adjoining Mid State Property: 1. The City and the Developer shall collaborate to develop a driveway/circulation plan with respect to the Mid State Mall Property that is acceptable to the City (the "Mid State Access Plan"). Upon the City's approval of a Mid State Access Plan, the Developer shall 14 complete the improvements required by the approved Mid State Access Plan on or before the date when the City issues a permanent certificate of occupancy for the Kohl's department store. 2. As of the date of joint execution of this Agreement, the Developer represents that it has secured certain cross-easements with the owner of the Mid State Mall Property (the "Existing Mid State Easement"). The City and the Developer acknowledge that additional cross- access easements with respect to the Mid State Mall Property are necessary to develop an acceptable Mid State Access Plan. 3. Upon completion of the improvements required by the approved Mid State Access Plan, the Developer's cost of constructing Planet Avenue from the southern boundary of the Redevelopment District to Key Avenue and Key Avenue between Planet Avenue and South 9th Street, all within the Redevelopment District, such improvements to be constructed pursuant to the City's public street design standards (the "Street Improvements") shall be fmanced by the City pursuant to the Improvement District Act, as further set forth in this Section 4.08(>>)(2). D. Petitions for the Imorovement Districts. Notwithstanding any other provisions of this Section 4.08, within 30 days after the Developer obtains fee simple title to the real estate within the Redevelopment District, the Developer shall file with the City Clerk Petitions to create the following Improvement Districts pursuant to K.S.A. 12-6aOl et seq. (the "Improvement District Act"): 1. The Developer shall file a Petition to create an Improvement District to construct and install the Traffic Signal Improvements (the "Signal Improvement District"). Such petition shall (i) acknowledge that the improvement district does not include all the property which may be deemed to be benefited by the proposed Traffic Signal Improvements and the Developer shall pay a portion of the costs ofthe proposed Traffic Signal improvements (the "Developer's Share") as set forth in the petition, (ii) acknowledge that the Traffic Signal Improvements are intended to be financed with the issuance oft3.xable general obligation bonds, (iii) specify that assessments to be levied against the property shall be payable in not more than 15 equal annual installments, and (iv) specify that 100% of the costs of the traffic signal at the intersection of 9th Street and Key Avenue and the cost of all of the related improvements at such intersection shall be paid by the Developer, 50% of the costs of interconnection shall be paid by the Developer, and the remaining 50% of the costs of interconnection shall be paid by the City at large. After such petition is filed, the City shall create the Signal Improvement District by adopting the resolution required by the Improvement District Act. 2. The Developer shall file a Petition to create an Improvement District to construct the Street Improvements (the "Street Improvement District"). Such petition shall (i) acknowledge that the improvement district does not include all the property which may be deemed to be benefited by the proposed Street Improvements (defined below) and the Developer shall pay 100% of the costs of the proposed Street Improvements as set forth in the petition, (ii) acknowledge that the Street Improvements are intended to be financed with the issuance of taxable general obligation bonds, and (iii) specify that assessments to be levied against the property shall be payable in not more than 15 equal annual installments. After such petition is filed, the City shall create the Street Improvement District by adopting the resolution required by the Improvement District Act. E. Termination ofthe Imorovement Districts. 15 1. Upon the completion of the Traffic Signal Improvements, the City shall take all steps necessary to terminate the Street Improvement District. 2. Upon completion of the improvements associated with the Mid State Access Plan and the Street Improvements, the City shall take all steps necessary to terminate the Signal Improvement District. 3. If this Agreement is terminated for any reason by either party prior to the date the City has entered into any contract for construction of the Street Improvements or the Traffic Signal Improvements, the City shall take all steps reasonably necessary to terminate the Street Improvement District and the Signal Improvement District. F. Notwithstanding anything to the contrary in this Section 4.08, throughout the term of this Agreement, the City shall retain full rights to review and approve any Mid State Access Plan. ARTICLE V USE OF mE REDEVELOPMENT DISTRICT Section 5.01. Tenants and Land Use Restrictions. At all times while this Agreement is in effect: A. Sales Tax Revenues. 100% of the total available square footage to be constructed as part of the Project shall be leased or sold for use by businesses that generate Sales Tax Revenues. B. No Tax-Exempt Ore:anizations. The Developer may not sell or lease property within the Redevelopment District to a tax-exempt organization, except that this prohibition shall not prevent the granting of any temporary or permanent easements necessary to facilitate the construction of the Project. C. Land Use Restrictions. The types ofland uses and retailers set forth in Exhibit F hereto are prohibited within the Redevelopment District, unless approved in writing by the City prior to the execution of a letter of intent, lease or prior to the sale of land. D. Tenant Oualifications and Pre-Approved Tenants. 1. The Developer will reasonably consult with the City to sell and/or lease property within the Redevelopment District to retailers and/or restaurants who are reasonably acceptable to the City. The Developer shall present all potential retailers and/or restaurants to the City within 20 days prior to the date when the Developer expects to enter into any legal obligation for the sale and/or lease of property within the Redevelopment District. The City shall respond to the Developer within 10 business days of the receipt of any such communication. The Developer shall promptly notify the City Manager and the Finance Director upon the execution of any such legal obligation for the sale and/or lease of property within the Redevelopment District. 2. All retailers and/or restaurants to be located within the Redevelopment District shall be consistent with those business located in typical first-class retail developments. 3. At least 80% of the total square footage within the Redevelopment District shall be leased to regional and/or national retailers. 16 4. The City shall have the absolute right to refuse any retailer and/or restaurant presented by the Developer within 24 months of the City's receipt of a Certificate of Full Completion for the Kohl's Phase and the Additional Commercial Phase, to the extent that such retailer and/or restaurant is duplicative of any existing retailer and/or restaurant already located within the city limits of the City or constitutes a relocation of any retailer and/or restaurant in business in the City within 60 days prior to the execution of any such legal obligation for the sale and/or lease of property within the Redevelopment District. 5. The City shall have the right to expressly waive any condition contained in Section 5.01(0)(4). in writing, provided to the Developer prior to the date such legal obligation for the sale and/or lease of property within the Redevelopment District is executed. 6. Notwithstanding any other rights of the City as otherwise provided in this Agreement, the City shall have the right to enforce the provisions of this Section 5.01(0) by seeking injunctive relief. The Developer expressly agrees to waive any bonding requirements for temporary injunctions as provided by K.S.A. 60-905(b) to the extent the Developer has failed to reasonably consult with the City or to the extent there is any dispute regarding the requirements contained in paragraph 4 of this Section 5.01(0). 7. The City Manager or his designee shall have authority to act on behalf of the City for purposes of making all determinations required of the City in this Section 5.01(0). Section 5.02. Operation of Project. The Project shall comply with all applicable building and zoning, health, environmental and safety codes and laws and all other applicable laws, rules and regulations. The Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City and any other governmental agency having jurisdiction for the construction and operation of the Project, including but not limited to obtaining all necessary rental licenses and paying any necessary fees to obtain required permits and licenses. Section 5.03. Copies of All Leases and Agreements. The City and its duly authorized agents shall have the right at reasonable times (during business hours), and upon reasonable notice to inspect copies of all leases, sale contracts and other material agreements between the Developer and any third party relating to the Project at the principal business office of the Developer, in a manner that maintains the confidentiality of such leases and agreements. Section 5.04. Sales Tax Information. A. The Developer shall provide the City Manager and the Finance Director written notice of all current tenants of the Project within 10 days of the opening or closing for business of any business within the Project, and at all other times upon the written request of the City Manager or the Finance Director. B. The Developer agrees to cause all assignees, purchasers, tenants, subtenants or any other entity acquiring property or occupancy rights in the Redevelopment District to be obligated by written contract (lease agreement or other enforceable document) to provide to the City Manager and the Finance Director simultaneously with submission to the Kansas Department of Revenue the monthly sales tax returns for their facilities in the Redevelopment District. This obligation shall be a covenant running with the land and shall be enforceable against all businesses operating in the Redevelopment District and shall only terminate upon the passage by the City of an ordinance terminating the Project Plan. The Developer hereby agrees that each such lease agreement shall provide that the City is an intended third party beneficiary of such 17 provisions and has a separate and independent right to enforce such provisions directly against such tenant or purchaser. C. To the extent it may legally do so, information obtained pursuant to this Section shall be kept confidential by the City in accordance with K.S.A. 79-3657. D. Developer agrees to obtain waivers consenting to the release by the City of aggregate Sales Tax Revenues generated within the Redevelopment District from all assignees, purchasers, tenants, subtenants or any other entity acquiring property or occupancy rights in the Redevelopment District throughout the term of this Agreement contemporaneously with the acquisition of such property or occupancy rights. Developer acknowledges that the City may.not be able to issue TIF Obligations without the receipt of such waivers from all businesses that generate Sales Tax Revenues within the Redevelopment District. Developer hereby agrees that each lease, sublease, purchase contract, or other document granting property or occupancy rights in the Redevelopment District shall incorporate the provisions of this paragraph. Section 5.05. Taxes, Assessments, Encumbrances and Liens. A. So long as the Developer owns the real property within the Redevelopment District, the Developer shall pay when due all real estate taxes and assessments on the Redevelopment District. Nothing herein shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax, assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto. The Developer and any other owners of real property in the Redevelopment District shall promptly notify the City in writing of a protest of real estate taxes or valuation of the Developer's or such other owners' property within the Redevelopment District. B. Subject to Section 5.07. Developer agrees that no mechanics' or other liens shall be established or remain against the Project, or the funds in connection with any of the Project, for labor or materials furnished in connection with any acquisition, construction, additions, modifications, improvements, repairs, renewals or replacements so made. However, the Developer shall not be in default if mechanics' or other liens are filed or established and the Developer contests in good faith said mechanics' liens and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom. The Developer hereby agrees and covenants to indemnify and hold harmless the City in the event any liens are filed against the Project as a result of acts of the Developer, its agents or independent contractors. Section 5.06. Financing During Construction; Rights of Holders. A. No Encumbrances Exceot Mortgages during Construction. Notwithstanding any other provision of this Agreement, mortgages are permitted for the acquisition, construction, renovation, improvement, equipping, repair and installation of the Project and to secure permanent financing thereafter. However, nothing contained in this paragraph is intended to permit or require the subordination of general property taxes, special. assessments or any other statutorily authorized governmental lien to be subordinate in the priority of payment to such mortgages. B. Holder Not Oblif/:ated to Construct Imorovements. The holder of any mortgage authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Project or to guarantee such construction or completion; nor shall any covenant or any other provision in the deed for the Redevelopment District be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the 18 Redevelopment District to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. C. Notice of Default to Mortl!al!e Holders: Ril!ht to Cure. With respect to any mortgage granted by Developer as provided herein, whenever the City shall deliver any notice or demand to De.veloper with respect to any breach or default by the Developer in completion of construction of the Project, the City shall at the same time deliver to each holder of record of any mortgage authorized by this Agreement a copy of such notice or demand, but only if City has been requested to do so in writing by Developer. Each such holder shall (insofar as the rights of the City are concerned) have the right, at its option, within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project (beyond the extent necessary to conserve or protect the Project or construction already made) without first having expressly assumed the Developer's obligations to the City by written agreement satisfactory to and with the City. The holder, in that event, must agree to complete, in the manner provided in this Agreement, that portion of the Project to which the lien or title of such holder relate, and submit evidence satisfactory to the City that it has the qualifications and financial responsibility necessary to perform such obligations. D. The restrictions on Developer financing in this Section are intended to and shall apply only to financing during the construction period for the improvements and any financing obtained in connection therewith. Nothing in this Agreement is intended or shall be construed to prevent the Developer from obtaining any financing for the Project or any aspect thereof. Section 5.07. Covenant for Non-Discrimination. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, disability, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Redevelopment District, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Redevelopment District. The covenant established in this Section shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City, its successors and assigns and any successor in interest to the Redevelopment District or any part thereof. The covenants contained in this Section shall remain for so long as this Agreement is in effect, or so long as TIF Obligations are outstanding, whichever is longer. . ARTICLE VI REIMBURSEMENT OF REDEVELOPMENT PROJECT COSTS; TAX INCREMENT FINANCING Section 6.01. Advanced Funds Account. A. Creation of Account: Initial Deposit. The City acknowledges receipt from the Developer of a prior deposit with the City equal to the sum of $25,000.00 (the "Advanced Funds"), to be held by the City in a separate, segregated account of the City to be known as the "Advanced Funds Account." The City may 19 invest the Advanced Funds in the same manner as other funds of the City are invested, and interest earnings shall remain in the Advanced Funds Account. B. Use and Reolenishment of Advanced Funds. The City may use the Advanced Funds for payment or reimbursement of City costs and expenses and legal and other third-party professional fees and expenses incurred by the City in connection with providing the necessary third party legal, financial and planning assistance, including consultants engaged by the City, to implement, administer and enforce this Agreement, create the Redevelopment District, adopt the Project Plan and issue TIP Obligations (the "City Expenses"). The City shall submit to the Developer an itemized statement of actual payments made from the Advanced Funds Account for such City Expenses on a regular periodic basis, but no more often than monthly and no less often than quarterly. The Developer shall advance to the City the amounts set forth on such statements within thirty (30) days of receipt thereof, which shall be deposited in the Advanced Funds Account so that the balance of the Advanced Funds Accountremains at $10,000.00. If such funds are not received, the unpaid balance shall be subject to a penalty of one and one half percent (1.5%) per month until paid, but in no event shall such penalty exceed eighteen percent (18%) per annum, and the City shall be relieved of any and all obligations hereunder until paid or may terminate this Agreement pursuant to Article IX hereof. Developer shall supply the Advanced Funds in a timely manner so that City activities may continue without interruption. As soon as Bond Proceeds sufficient to fully reimburse the Developer for the Redevelopment Project Costs Cap have been made available to the Developer, the Developer shall have no further obligation to pay City Expenses; except, provided that the Developer shall remain responsible for any accrued but unpaid City Expenses incurred up to the date such Bond Proceeds were first received by the City and further provided that the Developer shall remain responsible to maintain the balance of the Advanced Funds Account at $10,000.00 until thirty (30) days following the City's acceptance of the Certificate of Full Completion for the Additional Commercial Phase. C. Reimbursement of Advanced Funds. The initial deposit by the Developer to establish the Advanced Funds Account, the money paid by the City from the Advanced Funds Account, and any additional funds paid by the Developer to the City to replenish the Advanced Funds Account shall be Redevelopment Project Costs which may be reimbursed from the proceeds of TIP Obligations that have been issued, or if no TIP Obligations are issued, in the order of priority set forth in Section 6.02. The deposit of funds by the Developer pursuant to this Section does not in any way mitigate or lessen the Developer's obligation to pay or reimburse the City for certain fees and expenses to the extent otherwise required by this Agreement. D. Return of Advanced Funds. Thirty days following the City's acceptance of the Certificate(s) of Full Completion for both the Kohl's Phase and the Additional Commercial Phase, the City shall remit to the Developer any amounts that have been advanced under this Section (including interest earnings on such amounts) and which have not been spent for costs incurred by the City pursuant to this Section. Section 6.02. Tax Increment Fund. A. Creation of Fund: Deoosit of Incremental Tax Revenues. The City shall establish and maintain a separate fund and account known as the Lambertz Addition Tax Increment Fund (the "Tax Increment Fund"). All Incremental Tax Revenues shall be deposited into the Tax Increment Fund. B. Disbursements from Fund. All disbursements from the Tax Increment Fund shall be made only to pay Redevelopment Project Costs, including the payment of principal of and interest on any TIF Obligations issued by the City to fmance, in whole or in part, the Project. The City shall have sole control of the disbursements from the Tax Increment Fund. Such disbursements shall be made in the following manner and order of preference: 20 1. IfTIF Obligations Have Not Been Issued: a. Payment of the Administrative Service Fee to the City pursuant to Section 6.03; b. Reimbursement of Redevelopment Project Costs incurred by the City, if any; and c. Reimbursement of Redevelopment Project Costs incurred by the Developer. 2. IfTIF Obligations Have Been Issued: a. Payment of arbitrage rebate, if any, to the United States of America, owed under Section 148 of the Internal Revenue Code of 1986, as amended, , including any costs of calculating arbitrage rebate; b. Payment of scheduled principal of, premium, if any, and interest becoming due (by reason of maturity or redemption) on the TIF Obligations on each payment date; c. Payment of fees and expenses owing to any Trustee for the TIF Obligations, upon delivery of invoices to the City for such amount; d. Payment of the Administrative Service Fee to the City pursuant to Section 6.03; e. Funding or replenishing any deficiency in any reserve fund or account relating to the TIP Obligations; and f. After all TIP Obligations have been paid in full: (i) Reimbursement of Redevelopment Project Costs incurred by the City, ifany, not paid from the proceeds of the TIP Obligations; and (ii) Reimbursement of Redevelopment Project Costs incurred by the Developer, not paid from the proceeds of the TIF Obligations. The City may continue to use any surplus amounts of Incremental Tax Revenues that result after all of the above payments have been made, for any purpose authorized by the Act until such time as the Project is completed, but for not to exceed 20 years from the date of the approval of the Project Plan. Section 6.03. City Administrative Service Fee. The Developer shall pay to the City an Administrative Service Fee equal to 1% of the annual Incremental Tax Revenues. The Administrative Service Fee shall be used to cover the administration and other City costs curing the duration of the Redevelopment District, and shall be in addition to the costs identified in the Project Budget. The Administrative Service Fee may be paid annually from the Incremental Tax Revenues deposited in the Tax Increment Fund. The Administrative Service Fee shall be deemed a Redevelopment Project Cost. If TIP Obligations have been issued and there are insufficient funds available in the Tax Increment Fund to pay the Administrative Service Fee after payment of the costs specified in Section 6.02(B)(2) suboarae:raohs (a) 21 throul!h (c). then such Administrative Service Fee shall accrue and be paid to the City in full at such time as sufficient funds are available in the Tax Increment Fund. Section 6.04. TIF Obligations. A. TIF Obligation Conditions. After the following conditions have been satisfied, the Developer may make a written request to the City to issue TIF Obligations, and the City agrees to take all reasonably necessary steps to consider the issuance of TIF Obligations upon receipt of such written request and when the following conditions have been satisfied (collectively, the "TIF Obligation Conditions"): 1. Developer shall have obtained leases or such other binding occupancy agreements, in a form acceptable to the City's Underwriter and Bond Counsel, from businesses which will occupy 100% of the total available square footage to be constructed as part of the Kohl's Phase; 2. The City shall have received a feasibility study from an independent consultant, chosen by the City, which demonstrates that the projected Incremental Tax Revenues (less the Administrative Service Fee) to be derived from the businesses within the Kohl's Phase, will cover debt service on TIF Obligations, including costs of issuance, capitalized interest and any required reserves by at least 1.18 times; . 3. Businesses to be located within the Kohl's Phase which will generate Sales Tax Revenues shall have provided to the City signed agreements to stock, staff and open a Kohl's department store consisting ofa minimum 64,000 square feet within the Kohl's Phase; 4. If required by Bond Counselor the Underwriter, businesses to be located within the Redevelopment District which will generate Sales Tax Revenues shall have provided to the City waivers consenting to the City's release of aggregate Sales Tax Revenues of businesses within the Redevelopment District; 5. The Developer has provided the City with satisfactory evidence from a commercial lender providing that (a) the Developer has closed on a loan with the lender in an amount sufficient, when added to the equity available to the Developer (which equity Developer has verified is available), will be sufficient to cause the construction and completion of the Project, and on which projected Incremental Tax Revenues supporting the TIF Obligations are calculated; (b) such loan proceeds are available for disbursement without any material conditions, other than conditions customary on regular construction draws; 6. The Developer and/or Kohl's has entered into a construction contract for the Kohl's Phase, building permits have been issued for each store or stores comprising the Kohl's Phase, all Government Approvals have been received for the Kohl's Phase, footings and foundations have been inspected and approved by the City, and the contractor has taken delivery of construction materials and commenced the vertical construction of wall sections, as evidenced by Ii certificate of the City Building Official; 7. The Developer shall have obtained from the real property owner to the north of the Redevelopment District the necessary easements for sanitary sewer and storm drainage connection, and the connection of Planet Avenue; 8. The Developer shall have obtained fee simple title to all real property within the Redevelopment District, and at the time any request is made pursuant to this Section, the Developer's 22 title shall be subject only to title exceptions that have no effect on the Developer's ability to construct the Project; and 9. The Developer shall have obtained approval of Planned Development District rezoning for all real estate within the Redevelopment District pursuant to Article 7, Chapter 42 of City Code. 10. The Developer shall have obtained the City's approval of the Mid State Access Plan pursuant to Section 4.08(C) or the Developer shall have began construction of, or directed \ the City to begin construction of, the Traffic Signal Improvements set forth in Section 4.08(B). If the Developer desires to use projected Incremental Tax Revenues to be derived from businesses within the Additional Commercial Phase to meet the debt service coverage requirement provided in subparagraph A.2. above, then the following additional conditions shall be satisfied and shall be considered "TIF Obligation Conditions": 11. Developer shall have obtained leases or such other binding occupancy agreements, in a form acceptable to the City's underwriter and Bond Counsel, from businesses which will occupy 100% of the total available square footage to be constructed as part of the Additional Commercial Phase; 12. Businesses to be located within the Additional Commercial Phase which will generate Sales Tax Revenues shall have provided to the City signed agreements to stock, staff and open a store within the Additional Commercial Phase; 13. Ifrequired by Bond Counselor the underwriter, businesses to be located within the Redevelopment District which will generate Sales Tax Revenues shall have provided to the City waivers consenting to the City's release of aggregate Sales Tax Revenues of businesses within the Redevelopment District; 14. The Developer has entered into a construction contract for the Additional Commercial Phase, building permits have been issued for each store or stores comprising the Additional Commercial Phase, and the contractor has commenced the vertical construction of each such store, as evidenced by a certificate of the City Engineer; 15. The Developer has submitted complete applications for, or has received, all Government Approvals for the Additional Commercial Phase. Upon receipt of a written request to issue TIF Obligations from the Developer, the City shall evaluate the request, and determine whether the TIF Obligation Conditions have been satisfied. Nothing in this Agreement shall obligate the City to incur TIF Obligations. B. Terms of TIF Obligations. In the event the City determines that the issuance of TIF Obligations is reasonable, based upon then current market conditions determined by the City in consultation with its fmancial advisor, and further provided that the Developer has satisfied all of the TIF Obligation Conditions set forth in paragraph A of this Section 6.04. the TIF Obligations may be incurred up to an aggregate principal amount that will fund all Redevelopment Project Costs, capitalized interest, debt service reserves and costs of issuance. The TIF Obligations may be issued in one or multiple series, at the discretion of the City. TIF Obligations may include such capitalized interest as deemed necessary by the City, and nothing in this Agreement shall serve as a limit on capitalized interest. The final maturity of the TIF 23 Obligations shall not exceed the maximum term permissible under the Act. The City will approve the method of marketing the TIP Obligations and may require limitations on the denominations or types of purchasers. The TIF Obligations shall bear interest at such rates, shall be subject to redemption and shall have such terms (including required projected coverage ratios and reserve funds) as the City shall determine in its sole discretion. The City shall have the sole control of the disbursement of the proceeds of the TIF Obligations, subject to the requirements in the documents governing the TIF Obligations and this Agreement. C. Coooeration in the Issuance ofTIF Oblie:ations. 1. The Developer covenants to cooperate and take all reasonable actions necessary to assist the City and its Bond Counsel, the City's underwriter and financial advisors in the preparation of the fmancing documents, offering statements, private placement memorandum or other disclosure documents and all other documents necessary to market, sell and issue the TIP Obligations, including (i) disclosure of tenants within the Project and the non-fmancial terms of the leases between the Developer and such tenants; and (ii) providing sufficiently detailed estimates of Redevelopment Project Costs. The Developer will not be required to disclose to the general public or any investor the rent payable under any such lease or any proprietary or confidential fmancial information pertaining to the Developer, its tenants, or the leases with its tenants, but upon the execution of a confidentiality agreement acceptable to the Developer, the Developer will provide such information to the City's attorneys, the City's financial advisors, the underwriter and their counsel to enable such parties to satisfy their due diligence obligations. 2. The Developer further agrees to (i) provide a closing certificate (which shall include a certification regarding the accuracy of the information relating to the Developer and the Project); (ii) to cause its counsel. to provide a legal opinion; and (iii) to provide all information reasonably necessary in connection with the marketing, sale and issuance of the TIP Obligations, including compliance with any continuing disclosure obligations required in relation thereto. 3. The Developer agrees to execute, deliver and perform under any necessary continuing disclosure agreement reasonably requested by the Underwriter. D. City to Select Bond Counsel. Financial Advisor and Underwriter: Term and Interest Rate. The City shall have the sole right to select the designated Bond Counsel, financial advisor and underwriter (and such additional consultants as the City deems necessary for the issuance of the TIF Obligations), and shall have sole authority to determine the terms of the TIP Obligations, including, but not limited to, the interest rate on such TIP Obligations. E. Disbursement of Proceeds of TIP Oblie:ations. The City shall have sole control of disbursements of the proceeds of the TIF Obligations, which control shall be exercised in substantial accordance with this Agreement, and further subject to the provisions of any ordinance or resolution authorizing the issuance of TIP Obligations, and/or a bond trust indenture governing the rights and obligations of the City and holders of such TIF Obligations. Section 6.05. Developer Purchase of TIF Obligations or Developer Pay As You Go. m the event that legal or market conditions prevent the public sale of the TIF Obligations as referenced herein, the Parties agree that (a) the Developer may purchase the TIP Obligations (which shall be non-negotiable) at terms consistent with prevailing taxable municipal bond interest rates and including such other terms as shall be determined by the City at the time the Developer purchases such TIP Obligations; or (b) the Developer may elect to be reimbursed on a Pay As You Go Basis as monies become available in the Tax Increment Fund, in accordance with Sections 3.03 and 6.02 hereof. 24 ARTICLE vn ASSIGNMENT; TRANSFER Section 7.01. Transfer of Obligations. A. The rights, duties and obligations hereunder of the Developer may not be assigned, in whole or in part, to another entity, without the prior approval of the City Commission by resolution following verification by the City Attorney that the assignment complies with the terms of this Agreement. Any proposed assignee shall have qualifications and fmancial responsibility, as reasonably determined by the City Manager, necessary and adequate to fulfill the obligations of the Developer with respect to the portion of the Redevelopment District being transferred. Any proposed assignee shall, by instrument in writing, for itself and its successors and assigns, and expressly for the benefit of the City, assume all of the obligations of the Developer under this Agreement and agree to be subject to all the conditions and restrictions to which the Developer is subject (or, in the event the transfer is of or relates to a portion of the Redevelopment District, such obligations, conditions and restrictions to the extent that they relate to such portion). The Developer shall not be relieved from any obligations set forth herein unless and until the City specifically agrees to release the Developer. The Developer agrees to record all assignments in the office of the Register of Deeds of Saline County, Kansas, in a timely manner following the execution of such agreements. B. The Parties' obligations pursuant to this Agreement, unless earlier satisfied, shall inure to and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties as if they were in every case specifically named and shall be construed as a covenant running with the land, enforceable against the purchasers or other transferees as if such purchaser or transferee were originally a party and bound by this Agreement. Notwithstanding the foregoing, no tenant of any part of the Redevelopment District shall be bound by any obligation of the Developer solely by virtue of being a tenant; provided, however, that no transferee or owner of property within the Redevelopment District except the Developer shall be entitled to any rights whatsoever or claim upon the Tax Increment Revenues as set forth herein, except as specifically authorized in writing by the Developer. C. The foregoing restrictions on assignment, transfer and conveyance shall not apply to (a) any security interest granted to secure indebtedness to any construction or permanent lender, or (b) the sale, rental and leasing of portions of the Redevelopment District for the uses permitted under the terms of this Agreement. Section 7.02. Corporate Reorganization. Nothing herein shall prohibit (or require City approval to allow) the Developer from forming additional development or ownership entities to replace or joint venture with Salina Partners, LLC for the purpose of business and/or income tax planning; provided that Christian Ablah and Steve Panko own not less than 51 % of any new or restructured company. Section 7.03. Prohibition Against Transfer of the Redevelopment District, the Buildings or Structures Therein. A. During the term of this Agreement, the Developer shall not, except as permitted by this Agreement and in accordance with the Act, without prior written approval of the City which shall not be unreasonably withheld, conditioned or delayed, make any total or partial sale, transfer, conveyance, assignment or lease of the whole Redevelopment District or any of the individual buildings or improvements on the Redevelopment District except as permitted by this Agreement. This prohibition shall not be deemed to prevent the granting of temporary or permanent easements or permits to facilitate the development of the 25 Redevelopment District or to prohibit or restrict the leasing of any part or parts of a building, structure or land for a term commencing on completion. B. As a condition to such transfer, the City may require such transferee to agree to be bound, in whole or in part, by the provisions of this Agreement C. If said transfer is proposed after the issuance of TIF Obligations, the Developer may not transfer property to a tax exempt organization without also receiving the written approval of the Trustee for the TIF Obligations and an opinion from bond counsel that such a transfer is not injurious to bond holders. ARTICLE VIII GENERAL COVENANTS Section 8.01. Indemnification of City. A. Developer agrees to indemnify and hold the City, its employees, agents and independent contractors and consultants (collectively, the "City Indemnified Parties") harmless from and against any and all suits, claims, costs of defense, damages, injuries, liabilities, judgments, costs and/or expenses, including court costs and reasonable attorneys fees, resulting from, arising out of, or in any way connected with: 1. the Developer's actions and undertaking in implementation of the Project Plan or this Agreement; and 2. the negligence or willful misconduct of Developer, its employees, agents or independent contractors and consultants in connection with the management, design, development, redevelopment and construction of the Project. 3. any delay or expense resulting from any litigation filed against the Developer by any member or shareholder of the Developer, any prospective investor, prospective partner or joint venture partner, lender, co-proposer, architect, contractor, consultant or other vendor. This section shall not apply to willful misconduct or negligence of the City or its officers, employees or agents. This section includes, but is not limited to, any repair, cleanup, remediation, detoxification, or preparation and implementation of any removal, remediation, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substance or hazardous wastes including petroleum and its fractions as defined in (i) the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"; 42 U.S.C. Section 9601, et seq.), (ii) the Resource Conservation and Recovery Act ("RCRA"; 42 U.S.C. Section 6901 et seq.) and (iii) Article 34, Chapter 65, K.S.A. and all amendments thereto, at any place where Developer owns or has control of real property pursuant to any of Developer's activities under this Agreement The foregoing indemnity is intended to operate as an agreement pursuant to Section 107 (e) of CERCLA to assure, protect, hold harmless and indemnify City from liability. B. In the event any suit, action, investigation, claim or proceeding (collectively, an "Action") is begun or made as a result of which the Developer may become obligated to one or more of the City Indemnified Parties hereunder, anyone of the City Indemnified Parties shall give prompt notice to the Developer of the occurrence of such event 26 C. The right to indemnification set forth in this Agreement shall survive the termination of this Agreement. Section 8.02. Insurance. A. As used in this Section, "Replacement Value" means an amount sufficient to prevent the application of any co-insurance contribution on any loss but in no event less than 100% of the actual replacement cost of the improvements in the Project, including additional administrative or managerial costs that may be incurred to effect the repairs or reconstruction, but excluding costs of excavation, foundation and footings. Replacement Value shall be determined at least every year after the completion date of the Project by an appraisal or a report from an insurance consultant that is engaged by Developer for the Project ("Insurance Consultant"), or if the policy is on a blanket form, such other means as is reasonably acceptable to the Insurance Consultant. If an appraisal or report is conducted, a copy of such appraisal or report shall be furnished to the Trustee for the TIF Obligations, if any, and the City. B. The Developer shall comply, or cause its tenants to comply, with the insurance requirements set forth in this Section unless the Developer requests approval of substitute insurance requirements, based on insurance required by one or more lenders to Developer, and the City approves such request in writing. The Developer shall keep the Project continuously insured against such risks and in such amounts, with such deductible provisions as are customary in connection with the operation of facilities of the type and size comparable to the Project. The Developer, at the Developer's sole expense, shall carry and maintain or cause to be carried and maintained, and payor cause to be paid in a timely manner the premiums for at least the following insurance with respect to the Project, or applicable portions of the Project under the control of the Developer (unless the requirement therefore shall be waived by the Trustee, ifany, and the City in writing): 1. Builder's completed value risk insurance and, on and after the completion date of each structure, property insurance, in each case (a) providing coverage during the construction of the Project for financial losses of the Developer relating to continuing expenses, caused by property damage during the construction of the Project, (b) providing coverage (including increased costs from changes in building laws, demolition costs and replacement cost coverage) for those risks which is equal or broader than that currently covered by an all-risk policy covering all improvements, fixtures and equipment in the Project, (c) containing an agreed amount endorsement with a waiver of all co-insurance provisions, (d) providing for no deductible in excess of $500,000 (as increased each year by the increase in the CPI, if any, for the preceding calendar year) for all such insurance coverage, and (e) covering, without limitation, loss, including, but not limited to, the following: (a) fire, (b) extended coverage perils, (c) vandalism and malicious mischief, (d) water damage, (e) debris removal, (t) collapse, and (g) comprehensive boiler and machinery insurance, in each case on a replacement cost basis in an amount equal to the Project's Replacement Value; and 27 2. Commercial general liability insurance providing coverage for those liabilities which is equal or broader than that currently covered by a CGL policy (a standard ISO CGL form), including at least the following hazards: (a) premises and operations; (b) products and completed operations; (c) independent contractors; and (d) blanket contractual liability for all legal contracts; such insurance (x) to be on an "occurrence" form with a combined limit of not less than $4,000,000 in the aggregate and $2,000,000 per occurrence, and (y) with excess coverage of not less than Replacement Value; 3. Flood insurance, if the Project is located in an area identified as having "special flood hazards" as such term is defined pursuant to applicable federal law, initially in an amount of at least the Replacement Value (annual aggregate); 4. Workers' compensation insurance, with statutorily required coverage; and 5. Fidelity bond coverage with respect to the personnel and agents of the Developer. C. Developer shall contractually obligate any tenant, purchaser, transferee, developer, manager, contractor of subcontractor to comply with the provisions of this Section for all portions of the Project. Developer shall enforce the provisions of this section to the maximum extent permitted by law. Developer hereby agrees that every lease, sales contract or other contract regarding the Redevelopment District shall incorporate the provisions of this Section and further provide that City is an intended third party beneficiary of such provisions and as such, City has a separate and independent right to enforce such provisions directly against any such tenant or purchaser. Developer shall use its best efforts to enforce such contract rights. Upon written request by the City, the Developer shall execute such documents as are necessary to assign to the City all of the Developer's rights under any lease, sales contract or other contract regarding the Redevelopment District with respect only to those section of such lease, sales contract or other contract as are necessary to evidence compliance with and otherwise enforce the provisions of Sections 8.02 and 8.03 ofthis Agreement. D. The Developer shall, upon written request of the City, execute such documents as are necessary to assign to the City the Developer's contractual rights to obligate any tenant, purchaser, transferee, developer, manager, contractor of subcontractor regarding the provisions of this Section for all portions of the Project. D. The City does not represent in any way that the insurance specified herein, whether in scope, overall coverage or limits of coverage, is sufficient to protect the business or interests of the Developer. E. Each insurance policy obtained in satisfaction of the foregoing requirements: 1. shall be by such insurer or insurers as shall be financially responsible, and shall have a rating equal to or higher than A +/FSC IX (if such insurance relates to property damage) or A- (if such insurance relates to anything other than property) or better by Best Insurance Guide and Key Ratings or shall be acceptable to the Insurance Consultant as evidenced by a written certificate delivered to the City and the Trustee, and 2. shall be in such form and with such provisions as are generally considered standard provisions for the type of insurance involved as evidenced by a written report of the Insurance Consultant delivered to the City on or prior to the date that the City first incurs TIF Obligations and at the time of delivery of any replacement policies. 28 F. All such policies, or a certificate or certificates of the insurers that such insurance is in full force and effect, shall be provided to the City and, prior to expiration of any such policy, the Developer shall furnish the City with satisfactory evidence that such policy has been renewed or replaced or is no longer required by this Agreement; provided, however, the insurance so required may be provided by blanket policies now or hereafter maintained by the Developer if the Developer provides the City with a certificate from an Insurance Consultant to the effect that such coverage is substantially the same as that provided by individual policies. All policies evidencing such insurance required to be obtained under the terms of this Agreement shall provide for 30 days' prior written notice to the Developer and the City of any cancellation (other than for nonpayment of premium), reduction in amount or material change in coverage. G. It is anticipated that the insurance coverage required by this Section 8.02. for the Kohl's Phase will be provided by Kohl's Department Stores, Inc. and may be provided under a plan of self- insurance. Insurance on the Property in the Additional Commercial Phase may be provided by a plan of self-insurance in the event that the insuring party has a reportable net worth in excess of $10,000,000. Notwithstanding the foregoing, the Developer shall require that any owner, lessee or sublessee in the Redevelopment District who proposes to provide the insurance coverage required by this Section 8.02 pursuant to a plan of self-insurance provides the Developer, at the time such sales contract, lease, sublease or other agreement is executed, sufficient assurances that sufficient funds of the owner, lessee or sublessee are and throughout the lease term are expected to be available to comply with the provisions of Section 8.03(B). H. In the event the Developer shall fail to maintain, or cause to be maintained, the full insurance coverage required by this Agreement, the Developer shall promptly notify the City of such event and the City or the Trustee for the TIF Obligations, if any, may (but shall be under no obligation to) contract for the required policies of insurance and pay the premiums on the same; and the Developer agrees to reimburse the City or the Trustee to the extent of the amounts so advanced, with interest thereon at a rate of one and one half percent (1.5%) per month until paid, but in no event shall such penalty exceed eighteen percent (18%) per annum. Notwithstanding the foregoing, if the City shall advance to the Trustee the amounts necessary to contract for such insurance the Trustee shall promptly cause such insurance to be maintained or restored. I. Agreement. All policies of insurance required by this Section shall become utilized as required by this J. The City may request, from time to time, such reasonable evidence as may be necessary to ensure compliance with this Section, including, but not limited to, reports and appraisals of an Insurance Consultant. Section 8.03. Obligation to Restore. A. Restoration of Proiect bv Developer. The Developer hereby agrees that if any portion of the Project owned by it shall be damaged or destroyed, in whole or in part, by fire or other casualty, the Developer shall promptly restore, replace or rebuild the same, or shall promptly cause the same to be restored, replaced or rebuilt, to as nearly as possible the value, quality and condition it was in immediately prior to such fire or other casualty or taking, with such alterations or changes as may be approved in writing by the City, which approval shall not be unreasonably withheld. The Developer agrees that it shall include in any documents for Developer private financing a requirement that, in the event insurance covering fire or other casualty results in payment of insurance proceeds to a lender, the lender shall be 29 obligated to restore the Project in accordance with this Section. The Developer shall give prompt written notice to the City of any damage or destruction to any of the Project owned by it by fIre or other casualty, irrespective of the amount of such damage or destruction, but in such circumstances the Developer shall make the property safe and in compliance with all applicable laws as provided herein. B. Restoration ofProiect bv Third Parties. The Developer further agrees that each contract, lease or sublease relating to the development, ownership or use of any portion of the Project not owned or controlled by the Developer shall include a provision to the effect that if any portion of the Project controlled by such owner, lessee or sublessee shall be damaged or destroyed, in whole or in part, by fIre or other casualty, such owner, lessee or sublessee shall promptly either (i) restore, replace or rebuild the same (or shall promptly cause the same to be restored, replaced or rebuilt) to as nearly as possible the value, quality and condition it was in immediately prior to such fIre or other casualty or taking, with (such alterations or changes as may be approved in writing by the Developer and the City, which approval shall not be unreasonably withheld, conditioned or delayed or (ii) provide the Developer with all insurance proceeds realized as a result of such casualty to allow Developer to restore, replace or rebuild the same in accordance with this paragraph. To the extent that the Developer allows any owner, lessee or sublessee to provide the insurance coverages required by Section 8.02 pursuant to a plan of self-insurance, and such owner, lessee or sublessee opts not to restore, replace or rebuild that portion of the Project that was damaged or destroyed, such owner, lessee or sublessee shall provide the Developer with funds necessary to allow thee Developer to restore, replace or rebuild the same in accordance with this paragraph, from self-insurance reserves or from any other available funds of the owner, lessee or sublessee. The Developer agrees that each contract, lease or sublease relating to the development, ownership or use of any portion of the Project shall include a requirement that, in the event insurance covering fIre or other casualty results in payment of insurance proceeds to a lender, the lender shall be obligated to restore certain portions of the Project in accordance with this Section. Each owner, lessee or sublessee shall also be required to give prompt written notice to the Developer and the City of any damages or destruction to any of the Project owned by such person by fIre or other casualty, irrespective of the amount of such damage or destruction. C. Enforcement. The restrictions set forth in this Section are for the benefIt of the City and may be enforced by the City by a suit for specifIc performance or for damages, or both. In the event that the City institutes a suit for damages, the City may claim damages including, but not limited to, any amount of debt service on the TIF Obligations paid by the City on or after the date such fIre or other casualty occurred. Section 8.04. Non-liability of Officials, Employees and Agents oftbe City. No recourse shall be had for the reimbursement of the Redevelopment Project Costs or for any claim based thereon or upon any representation, obligation, covenant or agreement contained in this Agreement against any past, present or future official, officer, employee or agent of the City, under any rule oflaw or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officials, officers, employees or agents as such is hereby expressly waived and released as a condition of and consideration for the execution of this Agreement. ARTICLE IX DEFAULTS AND REMEDIES Section 9.01. Developer Event of Default. Except as further provided herein, and subject to Section 9.05. a "Developer Event of Default" shall mean a default in the performance of any obligation 30 or breach of any covenant or agreement of the Developer in this Agreement (other than a covenant or agreement, a default in the performance or breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 30 days after City has delivered to Developer a written notice specifying such default or breach and requiring it to be remedied; provided, that if such default or breach cannot be fully remedied within such 30-day period, but can reasonably be expected to be fully remedied and the Developer is diligently attempting to remedy such default or breach, such default or breach shall not constitute an event of default if the Developer shall promptly upon receipt of such notice diligently attempt to remedy such default or breach and shall thereafter prosecute and complete the same with due diligence and dispatch. Section 9.02. City Event of Default. Subject to Section 9.05. the occurrence and continuance of any of the following events shall constitute a "City Event of Default" hereunder: A. After closing of any TIF Obligations the Trustee suspends or revokes the right of the City to withdraw funds from the TIF Obligations for any reason (other than as a result of the Developer's failure to perform its obligations hereulider), and such suspension or revocation delay is not cured or corrected for a period of 45 consecutive days; or B. Default in the performance of any obligation or breach of any other covenant or agreement of the City in this Agreement (other than a covenant or agreement, a default in the performance or breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 30 days after there has been given to the City by the Developer a written notice specifying such default or breach and requiring it to be remedied; provided, that if such default or breach cannot be fully remedied within such 30-day period, but can reasonably be expected to be fully remedied and the City is diligently attempting to remedy such default or breach, such default or breach shall not constitute an event of default if the City shall immediately upon receipt of such notice diligently attempt to remedy such default or breach and shall thereafter prosecute and complete the same with due diligence and dispatch. Section 9.03. Remedies Upon a Developer Event of Default. A. Upon the occurrence and continuance of a Developer Event of Default, the City shall have the following rights and remedies, in addition to any other rights and remedies provided under this Agreement or by law: 1. The City shall have the right to terminate this Agreement or terminate the Developer's rights under this Agreement. 2. The City may pursue any available remedy at law or in equity by suit, action, mandamus or other proceeding to enforce and compel the performance of the duties and obligations of the Developer as set forth in this Agreement, to enforce or preserve any other rights or interests of the City under this Agreement or otherwise existing at law or in equity and to recover any damages incurred by the City resulting from such Developer Event of Default. B. Upon termination of this Agreement for any reason, the City shall have no obligation to (i) reimburse the Developer for any amounts advanced under this Agreement or costs otherwise incurred or paid by Developer or (ii) make any payments with respect to TIF Obligations held by the Developer or any assignee of the Developer. 31 C. If the City has instituted any proceeding to enforce any right or remedy under this Agreement by suit or otherwise, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the City, then and in every case the City and the Developer shall, subject to any determination in such proceeding, be restored to their former positions and rights hereunder, and thereafter all rights and remedies of the City shall continue as though no such proceeding had been instituted. D. The exercise by the City of anyone remedy shall not preclude the exercise by it, at the same or different times, of any other remedies for the same default or breach. No waiver made by the City shall apply to obligations beyond those expressly waived. E. Any delay by the City in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Section shall not operate as a waiver of such rights or limit it in any way. No waiver in fact made by the City of any specific default by the Developer shall be considered or treated as a waiver of the rights with respect to any other defaults, or with respect to the particular default except to the extent specifically waived. Section 9.04. Remedies Upon a City Event of Default. A. Upon the occurrence and continuance of a City Event of Default the Developer shall have the following rights and remedies, in addition to any other rights and remedies provided under this Agreement or by law: 1. The Developer shall have the right to terminate the Developer's obligations under this Agreement; 2. The Developer may pursue any available remedy at law or in equity by suit, action, mandamus or other proceeding to enforce and compel the performance of the duties and obligations of the City as set forth in this Agreement, to enforce or preserve any other rights or interests of the Developer under this Agreement or otherwise existing at law or in equity and to recover any damages incurred by the Developer resulting from such City Event of Default. B. If the Developer has instituted any proceeding to enforce any right or remedy under this Agreement by suit or otherwise, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Developer, then and in every case the Developer and the City shall, subject to any determination in such proceeding, be restored to their former positions and rights hereunder, and thereafter all rights and remedies of the Developer shall continue as though no such proceeding had been instituted. C. The exercise by the Developer of anyone remedy shall not preclude the exercise by it, at the same or different times, of any other remedies for the same default or breach. No waiver made by the Developer shall apply to obligations beyond those expressly waived. D. Any delay by the Developer in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this paragraph shall not operate as a waiver of such rights or limit it in any way. No waiver in fact made by the Developer of any specific default by the Developer shall be considered or treated as a waiver of the rights with respect to any other defaults, or with respect to the particular default except to the extent specifically waived. 32 ------, Section 9.05. Excusable Delays. Neither the City nor the Developer shall be deemed to be in default of this Agreement because of an Excusable Delay. Section 9.06. Legal Actions. Any legal actions related to or arising out of this Agreement must be instituted in the District Court of Saline County, Kansas or, if federal jurisdiction exists, in the United States District Court for the District of Kansas. ARTICLE X GENERAL PROVISIONS Section 10.01. Mutual Assistance. The City and the Developer agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications as may be reasonably necessary or appropriate to carry out the terms, provisions and intent of this Agreement and to reasonably aid and assist each other in carrying out said terms, provisions and intent. Section 10.02. Effect of Violation of the Terms and Provisions of this Agreement; No Partnership. The City is deemed the beneficiary of the terms and provisions of this Agreement, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. The Agreement shall run in favor of the City, without regard to whether the City has been, remains or is an owner of any land or interest therein in the Project or the Redevelopment District. The City shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Nothing contained herein shall be construed as creating a partnership between the Developer and the City. Section 10.03. Time of Essence. Time is of the essence of this Agreement. The Parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. Section 10.04. Amendments. This Agreement may be amended only by the mutual consent of the Parties, by the adoption of a resolution of the City approving said amendment, as provided by law, and by the execution of said amendment by the Parties or their successors in interest. Section 10.05. Agreement Controls. The Parties agree that the Project Plan will be implemented as agreed in this Agreement. This Agreement specifies the rights, duties and obligations of the City and Developer with respect to constructing the Project, the payment of Redevelopment Project Costs and all other methods of implementing the Project Plan. The Parties further agree that this Agreement contains provisions that are in greater detail than as set forth in the Project Plan and that expand upon the estimated and anticipated sources and uses of funds to implement the Project Plan. Nothing in this Agreement shall be deemed an amendment of the Project Plan. Except as otherwise expressly provided herein, this Agreement supersedes all prior agreements, negotiations and discussions relative to the subject matter hereof and is a full integration of the agreement of the Parties. 33 Section 10.06. Conflicts ofInterest. A. No member of the City's governing body or of any branch of the City's government that has any power of review or approval of any of the Developer's undertakings shall participate in any decisions relating thereto which affect such person's personal interest or the interests of any corporation or partnership in which such person is directly or indirectly interested. Any person having such interest shall immediately, upon knowledge of such possible conflict, disclose, in writing, to the City the nature of such interest and seek a determination with respect to such interest by the City and, in the meantime, shall no participate in any actions or discussions relating to the activities herein proscribed. B. The Developer warrants that it has not paid or given and will not payor give any officer, employee or agent of the City any money or other consideration for obtaining this Agreement. The Developer further represents that, to its best knowledge and belief, no officer, employee or agent of the City who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decision making process or gain insider information with regard to the Project, has or will have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project, or in any activity, or benefit therefrom, which is part of the Project at any time during or after such person's tenure. Section 10.07. Term. Unless earlier terminated as provided herein, this Agreement shall remain in full force and effect for twenty (20) years from the date of approval of the Project Plan. Section 10.08. Validity and Severability. It is the intention of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of State of Kansas, and that the unenforceability (or modification to conform with such laws or public policies) of any provision hereof shall not render unenforceable, or impair, the remainder of this Agreement. Accordingly, if any provision of this Agreement shall be deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modifY, in whole or in part, if necessary, the invalid or unenforceable provision or provisions, or portions thereof, and to alter the balance of this Agreement in order to render the same valid and enforceable. Section 10.09. Required Disclosures. The Developer shall immediately notifY the City of the occurrence of any material event which would cause any of the information furnished to the City by the Developer in connection with the matters covered in this Agreement to contain any untrue statement of any material fact or to omit to state any material fact required to be stated therein or necessary to make any statement made therein, in the light of the circumstances under which it was made, not misleading. Section 10.10. Tax Implications. The Developer acknowledges and represents that (1) neither the City nor any of its officials, employees, consultants, attorneys or other agents has provided to the Developer any advice regarding the federal or state income tax implications or consequences of this Agreement and the transactions contemplated hereby, and (2) the Developer is relying solely upon its own tax advisors in this regard. Section 10.11. Authorized Parties. Whenever under the provisions of this Agreement and other related documents, instruments or any supplemental agreement, a request, demand, approval, notice or consent of the City or the Developer is required, or the City or the Developer is required to agree or to take some action at the request of the other Party, such approval or such consent or such request shall be given for the City, unless otherwise provided herein, by the City Representative and for the Developer by any officer of Developer so authorized; and any person shall be authorized to act on any such agreement, request, demand, approval, notice or consent or other action and neither Party shall have any complaint 34 against the other as a result of any such action taken. The City Representative may seek the advice, consent or approval of the City Council before providing any supplemental agreement, request, demand, approval, notice or consent for the City pursuant to this Section. Section 10.12. Notice. All notices and requests required pursuant to this Agreement shall be sent as follows: To the City: To the Developer: City Clerk City Hall 300 West Ash St. Salina, Kansas 67401 Salina Partners, LLC Attn: Christian Ablah 8110 E. 320d Street, Suite 150 Wichita, KS 67226 With a copy to: and Greg Bengtson, City Attorney City Hall 300 West Ash St. Salina, Kansas 67401 Steven T. Panko V Land Corporation 321 N. Clark Street Suite 2440 Chicago, IL 60610 and With a copy to: Gina M. Riekhof Gilmore & Bell, P.C. 2405 Grand Blvd., Suite 1100 Kansas City, MO 64108 Sandra Watts White Goss Bowers March Schulte & Weisenfels 4510 Belleview, Suite 300 Kansas City, MO 64111 and Jonathan L. Neville Arnall, Golden & Gregory, LLP 171 1 ih Street NE, Suite 2100 Atlanta, GA 30363 / or at such other addresses as the Parties may indicate in writing to the other either by personal delivery, courier, or by registered mail, return receipt requested, with proof of delivery thereof. Mailed notices shall be deemed effective on the third day after mailing; all other notices shall be effective when delivered. Section 10.13. Kansas Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas. Section 10.14. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. Section 10.15. Recordation of Agreement. The Parties agree to execute and deliver an original of this Agreement and any amendments or supplements hereto, in proper form for recording and/or 35 indexing in the appropriate land or governmental records, including, but not limited to, recording in the real estate records of Saline County, Kansas. This Agreement shall be recorded by the Developer, and proof of recording shall be provided to the City. Section 10.16. Consent or Approval. Except as otherwise provided in this Agreement, whenever the consent, approval or acceptance of either Party is required hereunder, such consent, approval or acceptance shall not be unreasonably withheld, conditioned or unduly delayed. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 36 -1 THIS AGREEMENT has been executed as of the date first hereinabove written. CITY OF SALINA, KANSAS By: ~[_.~ Ma r (SEAL) ATTEST: ~. City Clerk ~ ACKNOWLEDGMENT STATE OF KANSAS ) ) SS. COUNTY OF SALINE ) On ~ ~~ 2~O.8~U~0~e me, the undersigned, a Notary Public in and for said state, personally appeared and .Li~l f ~ 6~, proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to e WIthin mstrument as Mayor and City Clerk, respectively, of the CITY OF SALINA, KANSAS, the city of the third class therein named, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. A. PENNY DAY. ~ Notary Public - ta e of Kansas My Appt. Expires My commission expires: lD1-7/ ~IO 37 THIS AGREEMENT has been executed as of the date first hereinabove written. SALINA PARTNERS, LLC, a Delaware limited liability co By ACKNOWLEDGMENT 6 'fA.. STATEOF~S 1iLL~ · COUNTY OF 8AiJNE ) ) SS. ) on~~200t. before me, the undersigned, a Notary Public in and for said State, personally appeared r. H:cl'lto , proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument as a managing member ofSALlNA PARTNERS, LLC and acknowledged to me that he executed the same in his authorized capacities, and that by such person's signature on the instrument the entity upon behalf of which the person acted, executed the instrument. ~\"'" ,.~!,," , . 1:~_vO;~ and official seal. ::~AO~AJ/~,~~ ~ ~ : ;;...., ~ EXPIRES \ rn ': : <C { GEORGIA I (f): ~ ': t- \ DEC. 22. 2011! : ~, ())....flJBt.\\;...'"r..~ Notary Public #.,,~ .........o~~:... '6 ALae " My comml~g~ Fffl~~ ~ 2:1, ;2111 38 EXHffiIT A LEGAL DESCRIPTION OF REDEVELOPMENT DISTRICT Lot One (1), Block One (I), Lambertz Addition to the City of Salina, Saline County, Kansas. A-I EXHIBIT B FORM OF CERTIFICATE OF REDEVELOPMENT PROJECT COSTS CERTIFICA TE OF REDEVELOPMENT PROJECT COSTS TO: City of Salina, Kansas Attention: City Manager Re: Lambertz Addition Redevelopment District Terms not otherwise defined herein shall have the meaning ascribed to such terms in the Lambertz Addition Tax Increment Financing District Development Agreement dated as of March -J 2008 (the "Agreement") between the City and the Developer. In connection with the Agreement, the undersigned hereby states and certifies that: 1. Each item listed on Schedule 1 hereto is an Redevelopment Project Cost and was incurred in connection with the construction of the Project after December 17, 2007. 2. These Redevelopment Project Costs have been paid by the Developer and are reimbursable under the Project Plan and the Agreement. 3. Each item listed on Schedule 1 has not previously been paid or reimbursed from money derived from the Tax Increment Fund or any money derived from any project fund established by the issuance of any TIF Obligations, and no part thereof has been included in any other certificate previously filed with the City . 4. There has not been filed with or served upon the Developer any notice of any lien, right of lien or attachment upon or claim affecting the right of any person, firm or corporation to receive payment of the amounts stated in this request, except to the extent any such lien is being contested in good faith. 5. All necessary permits and approvals required for the work for which this certificate relates were issued and were in full force and effect at the time such work was being performed. 6. All work for which payment or reimbursement is requested has been performed in a good and workmanlike manner and in accordance with the Agreement. 7. The Developer is not in default or breach of any term or condition of the Agreement, and no event has occurred and no condition exists which constitutes a Developer Event of Default under the Agreement. 9. All of the Developer's representations set forth in the Agreement remain true and correct as of the date hereof. B-1 Dated this _ day of Approved for Payment this _ day of CITY OF SALINA, KANSAS By: ,20_" SALINA PARTNERS, LLC, a Delaware limited liability company By: Name: Title: ,20_: Title: B-2 EXHmIT C FORM OF CERTIFICATE OF FULL COMPLETION Pursuant to Section 4.07 of the Agreement, the City shall, within ten (J 0) days following delivery of this Certificate, carry out such inspections as it deems necessary to verify to its reasonable satisfaction the accurancy of the certifications contained in this Certificate. CERTIFICATE OF FULL COMPLETION The undersigned, Salina Partners, LLC. (the "Developer"), pursuant to that certain Lambertz Addition Tax Increment Financing District Development Agreement dated as of March --' 2008, between the City of Salina, Kansas (the "City") and the Developer (the "Agreement"), hereby certifies to the City as follows: 1. That as of , 20-, the construction, renovation, repairing, equipping and constructing of the [Kohl's][Additional Commercial] Phase of the Project (as such term is defined in the Agreement) has been substantially completed in accordance with the Agreement. 2. The [Kohl's][Additional Commercial] Phase of the Project has been completed in a workmanlike manner and in accordance with the Construction Plans (as those terms are defined in the Agreement). 3. Lien waivers for applicable portions of the [Kohl's][Additional Commercial] Phase of the Project have been obtained, or, to the extent that a good faith dispute exists with respect to the payment of any construction cost with respect to the [Kohl's][Additional Commercial] Phase of the Project, Developer has provided the City with a bond or other security reasonably acceptable to the City. 4. This Certificate of Full Completion is accompanied by (a) the project architect's certificate of substantial completion on AlA Form G-704 (or the substantial equivalent thereof), a copy of which is attached hereto as Appendix A and by this reference incorporated herein), certifying that the [Kohl's][Additional Commercial] Phase of the Project has been substantially completed in accordance with the Agreement; and (b) a copy of the Certificate(s) of Occupancy issued by the City Building Official with respect to each building to be constructed within the [Kohl's][Additional Commercial] Phase of the Project. 5. This Certificate of Full Completion is being issued by the Developer to the City in accordance with the Agreement to evidence the Developer's satisfaction of all obligations and covenants with respect to the [Kohl's][Additional Commercial] Phase of the Project. 6. The City's acceptance and the recordation of this Certificate with the Saline County Recorder of Deeds, shall evidence the satisfaction of the Developer's agreements and covenants to construct the [Kohl's][Additional Commercial] Phase of the Project. C-l This Certificate shall be recorded in the office of the Saline County Recorder of Deeds. This .Certificate is given without prejudice to any rights against third parties which exist as of the date hereof or which may subsequently come into being. Terms not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement. IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this _ day of ,20_, SALINA PARTNERS, LLC a Delaware limited liability company By: Name: Title: ACCEPTED: CITY OF SALINA, KANSAS By: Name: Title: (Insert Notary Form(s) and Legal Description) C-2 EXHffiIT D PROJECT BUDGET Salina Partners LLC Project Budget Phase I Phase II Phase III Total Kohls Outlot Inline 4,500 ft & 64,320 ft 12,000 ft 14,400 ft Budget Land 1,100,000 600,000 575,000 2,275,000 Sitework 2,000,000 600,000 600,000 3,200,000 Building Shell 3,636,000 1,237,500 1,080,000 5,953,500 Tenant Finish 0 495,000 432,000 927,000 Governmental Fees 100,000 25,000 25,000 150,000 Architect/Engineering 145,000 75,000 80,000 300,000 Legal 200,000 70,000 30,000 300,000 Lender Fees and Closing Costs 125,000 10,000 10,000 145,000 Construction Interest 300,000 175,000 160,000 635,000 Construction Taxes and Insurance 20,000 10,000 10,000 40,000 Advertising IPromotionlMisc 10,000 10,000 10,000 30,000 General Conditions 30,000 10,000 10,000 50,000 Leasing Commissions 125,000 150,000 200,000 475,000 Construction Management 100,000 30,000 30,000 160,000 Contingency 300,000 100,000 100,000 500,000 Equity Placement Fee 125,000 125,000 Developer's Overhead & Fees 320,000 125,000 112,000 557,000 TOTAL PROJECT COST 8,636,000 3,722,500 3,464,000 15,822,500 Tax Increment Financing -3,000,000 Net Project Cost 5,636,000 3,722,500 3,464,000 12,822,500 EXHIBIT E DESIGN STANDARDS 1. Detention / Drainage - Buried storm pipelines, box culverts or other underground structures will be used to complete the storm drainage system. 2. Sidewalks - Planet Avenue will be extended as a public street and sidewalks are required to be constructed along Planet Avenue and Key Avenue. 3. Landscaping - The landscape plan shall be designed according to xeriscaping principles subject to , City staff review and approval. The area set aside for landscaping must be identified on the site plan as early as possible and said area shall comply with City Code regarding landscaping, such as but not limited to, amount of square footage of the front yard areas and islands set aside as green space for landscaping and the proposed location and variety of plantings for those areas, but the specific plantings can be identified later (deferred submittal). The Recommended Tree List for Salina is attached hereto as Schedule E-l. The landscape plan shall include a planting plan for City staff review and approval, including counts and species of all plantings. All landscaping must be maintained to a specified standard. 4. Signage - a. Separate sign permit applications must be submitted for freestanding signs and wall signs. Off-premise advertising signs are not permitted in the C-3 zoning district. b. Kohl's may have one pylon sign directed toward Interstate 135 and one pylon sign along S. 9th Street. A multi-tenant pylon shall be used, and shall include all businesses on the property including the outlots. c. Signage for the Outlots - Outlots are limited to one monument (ground) sign each. Pole signs are prohibited on the outlots. Each lot may have as much signage as the allowable sign area as calculated per the zoning ordinance will allow, and this can be a combination of wall and monument signage. 5. Site Lighting - A site lighting plan will be submitted for City staff review and approval that includes the following items: the location on the premises and the type of illuminating devices, fixtures, lamps, supports, reflectors and other devices; a detailed description of the illuminating devices, fixtures, lamps, supports, reflectors and other devices including manufacturer's catalog cut sheets and drawings and sections upon request; photometric data such as that furnished by the manufacturer showing the angle of cut off or light emissions. The goal is to minimize or eliminate light spill onto adjacent properties. City staff shall review the photometric data sheet and manufacturer's cut sheets for the light fixtures prior to approval of the proposed site lighting. Additional site lighting plans may be required as the outlots develop. 6. Exterior Building Material - City staff reserves the right to review and approve or deny the exterior building material(s). Without further review and approval as part of an integrated design/theme, exterior building material shall not include plain pre-cast concrete panels, metal siding, vinyl siding or lap siding; provided, however, that this list shall not limit the City's right to deny the use of other exterior building materials. E-l 7. Building Orientation - City staff reserves the right to review and approve the building orientations for each building in the Redevelopment District. 8. Building Setback - Required open spacelbuilding separation shall be provided by an acceptable building setback from the applicable property line(s) noted on the plat or a combination of platted building setback and execution of a no-build easement from the adjoining property owner of sufficient dimension prior to platting. 9. Building Height - Building height limits are 35 feet within the C-3 District. No building in the Redevelopment District shall exceed this height limit. 10. Outdoor Storage - Outdoor storage is prohibited. Outdoor patios are permitted. II. Parking - A cap of five parking spaces per 1,000 SF of building area will be placed on this development. Exceeding the City minimum requirements for parking may not result in providing less than the required amount oflandscaping. The cap offive parking spaces per 1,000 SF of building area is for retail development. The parking requirements for restaurants is outlined in Salina Code Section 42-553(2)0), and reads as follows: "Eating and drinking establishments: One (1) space for each fifty (SO) square feet of customer service or dining floor area or one (1) space for each three (3) persons based on the maximum occupancy at designed capacity, whichever is greater, provided that restaurants with drive-through service shall have eight (8) stacking spaces for each drive-up window with four (4) of such spaces located at the ordering station, and provided that drive-in restaurants shall have at least ten (10) parking spaces. All spaces shall be designed so as not to impede vehicle circulation on-site or on abutting streets" and to comply with City design standards. The language of Salina Code Section 42-553(b) describes the process for requesting a variance from the parking requirements, and reads as follows: "In addition, business and professional offices, dental and medical offices, eating and drinking establishments, furniture, hardware and appliance stores or retail stores shall not provide excessive parking. The number of parking spaces provided shall not exceed the requirement set out in these regulations by more than twenty-five (25) percent without approval by the board of commissioners or the board of zoning appeals. Applicants requesting to exceed this limitation shall provide data justifying the need for additional parking." 12. Parking Lot Connection Points to Planet Avenue - Planet Avenue will be extended as a public street. The Kohl's parking lot is limited to a maximum of three access points to Planet Avenue and these access points will be spaced appropriately as determined by City staff. 13. Screening - Screening of loading docks and trash dumpsters is required, including on the 1-135 side of the building. Screening is subject to review and approval by City staff. Trash dumpsters and loading docks may not be placed on the S. 9th Street side of the buildings. Screening materials shall be similar to the building material. 14. Detention / Drainage - The rights for the Lambertz Addition detention pond / drainage system to . continue onto adjacent property will be secured prior to the Planning Commission hearing on the plat. On- and off-site runoff as well as pre- and post-development runoff must be accounted for in the storm drainage system design. The detention pond must be designed as a dry detention pond. Perpetual detention pond maintenance will be addressed through a plat covenant. All the necessary easements will be indicated on the plat. 15. Sanitary Sewer - The design of on- and off-site sanitary sewer will be addressed through the plat process. The proposed sanitary sewer line from the Kohl's property across the Mid State Mall property to the existing Mid State Mall private sanitary sewer will be private. Kohl's would need to E-2 acquire an easement from the Mid State Mall. The existing 12-inch line across S. 9th Street will remain private and Kohl's will need to execute a maintenance agreement with Mid State Mall for that section of the shared line. Any proposed lift stations will be privately owned and maintained. Staff discourages the use of lift stations. City policy does not allow us to televise private sewer lines. 16. Water - The desi~n of on- and off-site water lines will be addressed through the plat process. Proposed water line improvements will ultimately be public improvements and located within public utility easements or City-owned right-of-way because these lines will also include fire hydrants, which will be served by public water lines. The proposed water lines will provide a looped connection from S. 9th Street to the existing water line on the south side of the Lambertz Addition. Water improvements shall be entirely contained on-site. , 17. Fire Hydrants - The location of on-site fire hydrants will be determined through the plat process because all water lines serving fire hydrants will be public water lines and located in public utility easements. All fire hydrants are considered public; 18. Vacation of the Existing Frontage Road - Vacation of the existing frontage road (40-foot right-of- way) will be addressed through the plat process. 19. Extension of Planet Avenue - The extension of Planet Avenue is intended to be a public street, although it is considered a frontage road and is thus permitted to have a 50-foot right-of-way. 20. Intersection of Planet Avenue and Key Avenue - The north leg of the intersection of Planet Avenue and Key Avenue shall be modified so that the private driveway is not designed to appear like an extension of the public street system. 21. Site Access - The existing and proposed drive entrances from S. 9th Street will be shown on the plat. The remainder of the east property boundary of the Lambertz Addition will be shown to have platted restricted access on the plat drawing. The proposed south drive entrance onto S. 9th Street will be constructed and labeled as a right-in, right-out drive entrance. 22. Sidewalks - Planet Avenue and Key Avenue will be extended as public streets and sidewalks are required to be constructed along Planet Avenue and Key Avenue. E-3 SCHEDULE E-l RECOMMENDED PLANTING LIST Low Water Use Landscape Plants for Salina Tall Deciduous Trees (over 45') Black Walnut Juglans nigra Bur Oak Quercus macrocarpa Chinkapin Oak Quercus muehlenbergii Common Hackberry, Celtis occidentalis Honey locust Gleditsia triacanthos inermis 'Skyline' and other cultivars Kentucky Coffeetree Gymnocladus dioicus Sawtooth Oak Quercus acutissima Medium Deciduous Trees (30 to 45') . Ornamental Pear Pyrus calleryana 'Aristocrat', 'Cleveland Select', 'Capital' Goldenrain Tree Koelreuteria paniculata Lacebark Elm Ulmus parvifolia Osage Orange, Mac/ura pomifera, thornless and fruitless White Mulberry, fruitless Morus alba Small Deciduous Trees (under 30') Amur Maple Acerginnala Flowering Crabapple Malus, various cultivars Eastern Redbud Cercis canadensis Oklahoma Redbud Cercis reniformis Sandhill Plum Prunusangustifolia Western Soapberry Sapindus drummondii Wild Plum Prunus americana Large Deciduous Shrubs (over 8') Autumn Olive Elaeagnus umbellata Chokecherry Prunus virginiana Common Buckthorn Rhamnus cathartica Elderberry Sambucus canadensis Lilac Syringa vulgaris Mountain Ninebark Physocarpus monogynus Ninebark Physocarpus opulifolius Rough-leafed Dogwood Cornus drummondii Siberian Pea Shrub Caragana arborescen Staghorm Sumac Rhus typhina Wahoo Enonymus atropurpureus Western Sandcherry Prunus besseyi Schedule E-I - Page 1 Medium Deciduous Shrubs (4 to 8') Butterfly Bush Buddleia davidii Dwarf Ninebark Physocarpus opulifolius nanus Flowering Quince Chaenomeles speciosa Fragrant Sumac Rhus aromatica Serviceberry Amelanchier spp. Shining Sumac Rhus copallina Three Leaf Sumac Rhus tri/obata Small Deciduous Shrubs (under 4') Alpine Currant Ribes a/pinum Bluemist Spirea Caryopteris clandonensis Common Bladder Senna Colutea arborescens Common Sea Buckthorn Hippophae rhamnoides Coralberry, Buckbrush Symphoricarpos orbicu/atus False Indigo Amorpha fruticosa Golden Currant Ribes odoratum Golden St. Johnswort Hypericum frondosum Gooseberry Ribes missouriense Leadplant Amorpha canescens New Jersey Tea Ceanothus ovatus Prairie Rose Rosa suffulta Pygmy Pea Shrub Caragana pygmaea Russian Sage Perovskia atriplicifolia Evergreen Trees Juniper Juniperus spp. Large Evergreen Shrubs Eastern Redcedar Juniperus virginiana Mugho Pine Pinus mugo Medium Evergreen Shrubs Junipers Juniperus various species Small Evergreen Shrubs Compact Mahonia Mahonia aquifolum 'Compacta' Compact Mugho Pine Pinus mugo various cultivars Juniper Juniperus various species Soapweed Yucca glauca Yucca Yucca filamemtosa Groundcover for Shade (beneath trees, shrubs, or along north walls) Bergenia Bergenia cordifola Bishop's Weed Aegopodium podagraria Mahonia, Creeping Mahonia repens Periwinkle Vinca minor Schedule E-l - Page 2 --~ Groundcovers for Full Sun Catmint Nepeta x faassenii . Cranesbill Geranium various species Creeping Junipers Juniperus various species Crownvetch Coronilla varia Daylily Hemerocallis various species Evergreen Candytuft lberis sempervirens . Goldenrod Solidago various species Gro-Low Fragrant Sumac Rhus aromatica 'GroLow' Lambs Ears Stachys byzantina Lilyturf Liriope spicata Periwinkle Vinca minor Phlox (Creeping) Phlox subulata Pussytoes Antennaria various species .Ribbon Grass Phalaris arundinacea var. picta Rock Soapwort Saponaria ocymoides Sedum, Stonecrop Sedum various species Silvermound Artemisia schmidtiana Snow in Summer Cerastium tomentosum Veronica, Rock Speedwell Veronica prostrata Wintercreeper Euonymus fortunei var. coloratus W ooly Yarrow Achillea tomentosa Ornamental Grasses Big Bluestem Andropogon gerardi Blue Oat Grass Helictotrichen sempervirens Feather Reed Grass Calamagrostis spp. Fountaingrass, annual Pennisetum setaceum Fountaingrass, perennial Miscanthus sinensis Indiangrass Sorgastrum nutans Little Bluestem Schizachyrim scorparium Oat Grass Arrhenatherum elatius Quaking Grass, annual Briza media Ravenna Grass Erainthus ravennae Ribbon Grass Phalaris arundinaceae Sideoats Grama Boutelona curtipendula Weeping Lovegrass Eragrostis curvula Perennials-all grow in full sun, (*) tolerates part shade Artemesia Sage Artemisia various species Blanket Flower Gaillardia puchella Blue Star, Amsonia Amsonia tabernaemontana Brown-eyed Susan, Rudbeckia Rudbeckia hirta . Butterfly Weed Asclepias tuberosa Coneflowers Rudbeckia various species Coreopsis Coreopsis, various cultivars Schedule E-l - Page 3 Creeping Phlox Phlox subulata . Crimson Clover Trifolium incarnatum Dianthus, Pinks Dianthus various species Dusty Miller Senecio cineraria Euphorbia Euphorbia various species Evening Primrose Oenothera missouriensis *False Indigo Baptisia australis Gaura Gaura, various species . * Goldenrod Solidago various species Gooseneck Loosestrife Lysimachia clethroides Hardy Hibiscus Hibiscus moscheutos Horehound Marrubium rotundifolia *Kansas Gayfeather Liatris pycnostachya Knotweed Polygonum capitatum Lavender Lavandula angustifolia Lavender Cotton Santolina chamaecyparissus Mullein Verbascum thapsis Penstemon Penstemon mexicali, P. eatonii, P. pinifolius Poppy Mallow Callirhoe involucrata Prairie Coneflower, Mexican Hat Ratibida columnifera Prairie Skullcap Scutellaria *Prickly Pear Cactus Opuntia humifusa Purple Coneflower Echinacea purpurea Rock Rose Helianthemum nummularium Salvia Salvia various species *Sedum Sedum various species Spiderwort Tradescantia virginiana *Spotted Deadnettle Lamium maculatum Wild Petunia - Ruellia humilis Yarrow Achillea millefolium Annuals-all grow in full sun, (*) tolerates part shade Coreopsis, annual Coreopsis tinctoria Cosmos Cosmos bipinnatus Morning Glory Ipomea purpurea *Nicotiana Nicotiana alata Portulaca Portulaca grandiflora Sunflower Helianthus annuus Vervain Verbena rigida Schedule E-l - Page 4 EXHIBIT F RESTRICTED LAND USES IN THE REDEVELOPMENT DISTRICT I. Any use which emits an obnoxious odor, noise, or sound which can be heard or smelled outside of any building in the Project (except that this provision shall not prohibit normal cooking odors which are associated with a first-class restaurant operation). 2. Any operation primarily used as a storage warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agricultural or mining operation; 3. Any "second hand" store" or "surplus" store, thrift shop or other business principally engaged in the sale of used merchandise; 4. Any mobile home park, trailer court, labor campy, junkyard or stockyards (except that this provision shall not prohibit the temporary use of construction trailers during periods of construction, reconstruction or maintenance); 5. Any dumping, disposing, incineration, or reduction of garbage (exclusive of garbage compactors located near the rear of any building); 6. Any fire sale, going out of business sale, bankruptcy sale (unless pursuant to a court order) or auction house operation; 7. Any central laundry, central dry cleaning plant or laundromat (except that this provision shall not prohibit nominal supportive facilities for on-site services oriented to pickup and delivery by the ultimate consumer as the same may be found in first-class shopping centers); 8. Any service station or automobile, truck, trailer or recreational vehicles sales, leasing, display, body shop or repair operation; 9. Any bowling alley or skating rink; 10. Any movie theater, night club or live performance theater; II. Any living quarters, sleeping apartments or lodging rooms; 12. Any veterinary hospital or animal raising facility (except that this prohibition shall not prohibit pet shops or pet supply superstores and veterinary services which are incidental thereto); 13. Any mortuary, funeral home or crematory; 14. Any adult book store, adult video store, adult movie theater or other establishment selling, renting or exhibiting pornographic materials or drug-related paraphernalia (except that this provision shall not prohibit the operation of a bookstore or video store which carries a broad inventory of books or videos and other materials directed towards the interest of the general public [as opposed to specific segment thereof]); IS. Any bar, tavern, restaurant or other establishment whose reasonably projected annual gross revenues from the sale of alcoholic beverages for on-premises consumption exceeds forty percent (40%) of the gross revenues of such business; provided, however, that the foregoing restriction shall not be construed to limit or prohibit the operation of national restaurants which current operation under the trade names "Chili's", "Applebee's" and "Ruby Tuesday's" and other national casual dining restaurants similar to such restaurants. 16. Any health spa, fitness center or athletic facility which occupies more than five thousand (5,000) square feet of Floor Area; . 17. Any flea market, amusement or video arcade, pool or billiard hall, car wash, tattoo parlor or dance hall (except that this provision shall not prohibit a restaurant from including three (3) or fewer video games as an incidental use to its operations); 18. Any training or educational facility, including, but not limited to, beauty schools, barber colleges, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to customers (except that this provision shall not prohibit on-site employee training [whether for employment at the Project or at another business location of such occupant] by an occupant incidental to the conduct of its business at the Project); F-l 19. Any church, school, day care center or related religious or educational facility or religious reading room; 20. Any massage parlor (except that this provision shall not prohibit massages in connection with a beauty salon, health club or athletic facility); and 21. Any casino or other gambling facility or operation, including but not limited to, off-track or sports betting parlors, table games such as black-jack or poker, slot machines, video gambling machines and similar devices, and bingo halls (except that this provision shall not prohibit government sponsored gambling activities or charitable gambling activities if such activities are incidental to the business operation being conducted by the occupant). 22. More than one fast food restaurant with a drive-thru; and in no event shall the Redevelopment District contain one or more fast food restaurants totaling more than 4,000 square feet. F-2 ---, EXIDBIT G FORM OF CERTIFICATE OF STOCKING, STAFFING, AND OPENING OF KOHL'S DEPARTMENT STORE CERTIFICATE OF STOCKING, STAFFING, AND OPENING OF KOHL'S DEPARTMENT STORE The undersigned, Salina Partners, LLC. (the "Developer"), pursuant to that certain Lambertz Addition Tax Increment Financing District Development Agreement dated as of March _,2008, between the City of Salina, Kansas (the "City") and the Developer (the "Agreement"), hereby certifies to the City as follows: 1. That as of ,20_, the Kohl's department store to be constructed as part of the Kohl's Phase of the Project (as such term is defined in the Agreement) has been stocked, staffed, and open to the public for business for at least one day, all in accordance with the Agreement. 2. This Certificate is being issued by the Developer to the City in accordance with the Agreement to evidence the Developer's satisfaction of certain obligations and covenants with respect to the Section 3.03(A)ofthe Agreement. Terms not otherwise defined herein shall have the meaning ascribed to such terms in the Agreement. IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this _ day of ,20_. SALINA PARTNERS, LLC a Delaware limited liability company By: Name: Title: ACCEPTED: CITY OF SALINA, KANSAS By: Name: Title: G-l