Agenda Item No.

III-3

City of Wichita
City Council Meeting
September 14, 2010

TO: Mayor and City Council

SUBJECT: Public Hearing on the Establishment of a Community Improvement District for

Maize 54 Development (District V)

INITIATED BY: Office of Urban Development

AGENDA: New Business

Recommendation: Close the public hearing, place the ordinance on first reading and approve the
development agreement.

Background: On June 24, 2010, the City received a petition from developer Jay Maxwell on behalf of
Maize 54, LLC, requesting the creation of a Community Improvement District (CID) near the northeast
corner of the intersection of Kellogg Drive and Maize Road, to be called the Maize 54 CID. On August
3, 2010, the City Council adopted a resolution stating its intent to consider the establishment of the
proposed CID and setting September 14, 2010 as the time for a public hearing on this matter.

Analysis: Community Improvement Districts allow property owners to petition cities or counties to
create districts in which certain special taxes are imposed and the resulting revenue used to fund public
and private improvements and the payment of certain ongoing operating costs, within the districts. CID
projects may be funded by either special assessment taxes on real property within the CID or by a special
retail sales tax of up to two percent (2%) on all retail sales within the district, or both. Under the CID
Act, cities and counties may use the CID tax revenues to repay bonds, either full faith and credit (general
obligation) bonds or special obligation (revenue) bonds, issued to finance eligible improvements; or the
CID revenue may be passed through to developers to reimburse the cost of the improvements, or qualified
operating costs, on a pay-as-you-go basis. The maximum term of a CID is 22 years.

In April of 2010, the City Council adopted a policy which addresses how the City will utilize the tool and
outlined the approval process. The City’s CID Policy encourages the use of pay-as-you-go financing and
allows the use of special obligation bonds, but does not permit the use of general obligation bonds. The
CID Policy also requires a 100% petition and a public hearing.

Maize 54, LLC (“Developer”) plans a 40-acre mixed-use commercial development which includes a
90,000 square foot family entertainment center, called the “Bowllagio,” as its anchor, with bowling as the
primary attraction, as well as restaurant and bar operations and state-of-the-art gaming attractions. Plans
also include the development of hotels, restaurants, retail shops and parking facilities. The proposed CID
currently only includes land owned by the Developer which will accommodate the Bowllagio, a proposed
110-room hotel, a parking structure and some retail. The developer plans to expand the CID, by petition,
as additional adjacent land is acquired.

The CID financing is planned to be used for land acquisition and infrastructure construction within the
district, and any other costs allowed by the CID Policy, including eligible operating costs. The petitioned
maximum amount of CID financing is $75,000,000, which includes $22,000,000 in operating costs. The
petition proposes imposition of a two percent (2%) CID sales tax, which will be collected for up to 22
years or until the Developer has been reimbursed for all eligible costs, whichever is earlier. A table

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Maize 54 CID Petition
September 14, 2010
Page 2

identifying the sources and uses of funds is provided below:

Sources Uses
Developer Financing 53,000,000 Buildings and facilities $46,000,000
and Other Sources
Developer Equity 6,000,000 Drainage Improvements 2,000,000
CID 16,000,000 Site Improvements and Amenities 2,000,000
Public Street Improvements 1,000,000
Professional Design Services 2,000,000
Operating Expenses 22,000,000

75,000,000 75,000,000

Upon adoption of the Ordinance, the City will have created the improvement district and authorized the
imposition of a two percent (2%) sales tax to pay for eligible costs as identified in the development
agreement. The CID sales tax will start to be collected following the delivery of a certified copy of the
Ordinance to the Kansas Department of Revenue, upon instruction from the Developer.

The attached Development Agreement between the City and Maize 54, LLC provides the contractual
framework for CID. The Developer will be required to submit certified expenditures to the City for
reimbursement of eligible costs. The City will reimburse the Developer with CID funds for eligible costs
as expenditures are approved if sufficient funds are available or quarterly as funds become available if
funds are insufficient at the time.

Staff plans to present an amendment to the CID Policy in the near future, regarding use of CIDs in
residential developments. Consideration will be given to a disclosure policy for CIDs that includes
notices to existing occupants of CID districts and creation of a special website, linked to the City website,
which identifies all CIDs and provides descriptive information, including a map showing their locations.
In addition, the policy revision will address allowable assignments of CID funding to third parties.

Financial Considerations: Collection of the two percent (2%) CID sales tax on all taxable sales
occurring within the district will begin following transmittal of the Ordinance to the Kansas Department
of Revenue. The developer has requested pay-as-you-go financing, therefore the City will not issue debt
for this project. Proceeds will be held by the City and disbursed pursuant to the development agreement.
The City will withhold five percent (5%) of the CID revenues distributed by the State as an administrative
service fee, after giving credit for the application fee, and disperse the balance of the CID proceeds to the
developer until the maximum amount identified in the petition ($75,000,000) has been reimbursed or the
22-year term has expired, whichever is earlier.

Goal Impact: Economic Vitality and Affordable Living and Quality of Life. Business prospects and
workers seeking to relocate are attracted to a new city that takes care of its older sections.

Legal Considerations: State law allows community improvement districts to be established by

Ordinance following a public hearing. Copies of the resolution setting the public hearing were mailed, by
certified mail, to all owners of property in the district and published twice in the City’s official newspaper
according to state law. The ordinance and development agreement have been approved as to form by the
Law Department.

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Maize 54 CID Petition
September 14, 2010
Page 3

Recommendation/Action: It is recommended that the City Council close the public hearing, place on
first reading the Ordinance establishing a community improvement district for the Maize 54 CID, and
approve the Development Agreement.

Attachments: Ordinance and Development Agreement

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 028001 PUBLISHED IN THE WICHITA EAGLE ON SEPTEMBER 24, 2010

Ordinance No. 48-823

AN ORDINANCE OF THE CITY OF WICHITA ESTABLISHING

THE MAIZE 54 COMMUNITY IMPROVEMENT DISTRICT

WHEREAS, the provisions of K.S.A. 12-6a26, as amended, (the “CID Act”) set forth the
procedure for the establishment of a Community Improvement District (“CID”); and

WHEREAS, the CID Act provides that prior to creating any CID, the Governing
Body shall, by resolution, direct and order a public hearing on the advisability of creation of such
CID and the construction and expenditure of costs of community improvement district projects
relating thereto, and give notice of the hearing by publication once each week for two
consecutive weeks in the official City newspaper, the second publication to be at least seven days
prior to the hearing, and by the mailing of notice to the owners of property within the proposed
CID; and

WHEREAS, the Governing Body of the City adopted Resolution No. R-10-206 (the
“Resolution”) on August 3, 2010, directing that a public hearing on the proposed Maize 54 CID
be held September 14, 2010, and requiring that the City Clerk provide for notice of such public
hearing as set forth in the Act; and

WHEREAS; the Resolution was published once each week for two consecutive weeks in
the newspaper and notice of the hearing was given to all property owners within the proposed
CID as required by the CID Act; and

WHEREAS, the CID Act further authorizes the City, in order to pay the costs of such
projects, to impose a community improvement district sales tax on the selling of tangible
personal property at retail or rendering or furnishing of taxable services within a CID in any
increment of .10% or .25% not to exceed 2.0% and to reimburse the costs of community
improvement district projects from community improvement district sales tax; and

WHEREAS, on September 14, 2010, the Governing Body of the City conducted a public
hearing on the proposed “Maize 54 CID”, the proposed community improvement district projects
related thereto, the method of financing the same and the imposition of a community
improvement district sales tax; and

WHEREAS, the Governing Body of the City hereby finds and determines it to be
advisable to create the Maize 54 CID and set forth the boundaries thereof, authorize CID Projects
relating thereto, approve the maximum costs of such community improvement district projects,
approve the method of financing the same and impose the community improvement district sales
tax, all in accordance with the provisions of the CID Act;

NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE

CITY OF WICHITA, KANSAS:

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 Section 1. Creation of The Maize 54 CID District. The Governing Body hereby finds
and determines it is advisable to create the Maize 54 CID within the City and approve the
boundaries thereof, and, as such, hereby creates the Maize 54 CID and approves the boundaries
thereof. A legal description of the property within the Maize 54 CID is set forth in Exhibit B
attached hereto and incorporated by reference. A map generally outlining the boundaries of the
Maize 54 CID is attached hereto as Exhibit C and incorporated herein by reference.

Section 2. Authorization of CID Projects. The Governing Body hereby finds and
determines that it is advisable to authorize the community improvement district projects
described on the attached Exhibit A, incorporated herein by reference, (the “CID Projects”)
within the Maize 54 CID and as such authorizes the CID Projects.

Section 3. Maximum Cost. The maximum cost of the CID Projects, exclusive of
administrative fees and costs to be paid to the State of Kansas and to the City, is $75,000,000.

Section 4. Method of Financing The CID Projects will be financed on a pay-as-you-go

basis from revenues received from the imposition of a community improvement district sales tax
in the amount of two percent (2%) (the “CID Sales Tax”) on the selling of tangible personal
property at retail or rendering or furnishing services taxable pursuant to the provisions of the
Kansas retailers’ sales tax act within the Maize 54 CID. There will be no special assessments
levied pursuant to the CID Act within the boundaries of the Maize 54 CID. There will be no
bonds issued pursuant to the CID Act.

Section 5. Imposition of the Community Improvement District Sales Tax. In order to

provide for the payment of costs of the CID Projects on a pay-as-you-go basis, the Governing
Body hereby imposes the CID Sales Tax within the Maize 54 CID in an amount of two percent
(2%) on the selling of tangible personal property at retail or rendering or furnishing services
taxable pursuant to the Kansas retailers’ sales tax act within the Maize 54 CID, with such CID
Sales Tax to commence following submittal by the City of a certified copy of the ordinance to
the Kansas Department of Revenue. Submittal to the Kansas Department of Revenue shall occur
following publication of the ordinance and written notice from the developer requesting
submittal. Such CID Sales Tax shall remain in effect for the maximum period provided for in
the CID Act, or such period as may be required for payment from CID Sales Tax revenues of the
maximum amount of costs approved for CID Projects in Section 3, above, whichever is the lesser
period.

Section 6. Collection of the Sales Tax. The collection of the CID Sales Tax shall be
made in the manner presented in the CID Act

Section 7. Segregation of the Sales Tax Revenues. All revenues derived from the
collection of the CID Sales Tax shall be deposited into a special fund of the City to be designated
as the Maize 54 CID Sales Tax Revenue Fund. Such revenues shall be used to pay the costs of
the CID Projects on a pay-as-you-go basis and related expenses, including administrative fees
and reimbursement to be paid to the State of Kansas and to the City.

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 Section 8. Effective Date. This Ordinance shall take effect from and after its passage by
the Governing Body, and its publication once in the official newspaper of the City.

ADOPTED at Wichita, Kansas, this 21st day of September, 2010.

ATTEST:

___________________________ ______________________________
Karen Sublett, City Clerk Carl Brewer, Mayor

Approved as to Form:

______________________________
Gary E. Rebenstorf, City Attorney

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 EXHIBIT A

PROJECT

The general nature of the proposed projects (the “Projects”) is to construct a mixed-use
commercial district with an estimated overall cost of $95 million over an estimated 5-year
development period and to finance the construction, maintenance, and procurement of certain
improvements, costs, and services within the District, including, but not limited to: land
acquisition, infrastructure related items, streets, sidewalks, parking lots and facilities, buildings,
facilities, tenant improvements, water management and drainage related items, landscaping,
lighting, art, water features and other cultural amenities, ongoing maintenance of the District,
marketing, advertisement and economic development, cleaning and maintenance, and the City’s
administrative costs in establishing and maintaining the District, and any other items permitted to
be financed within the District under the CID Act.

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 EXHIBIT B

LEGAL DESCRIPTION

TRACT A
That part of the SW1/4 Section 29, Township 27, South, Range 1 West of the 6th P.M. Sedgwick
County, Kansas described as Beginning at the N.E. corner of Lot 1, Block A, Kansas State Bank
Addition, Wichita Sedgwick County, Kansas being a common corner of the S.E. corner of Lot 8,
Verda Vista Sedgwick County, Kansas; thence N88°20'30" E along the common line as extended
East, 200 feet; thence S0l °18'15"E, 275 feet; thence N88°20'30" E, 399.5 feet; thence
N01 °18'15"W, 275 feet; thence N88°20'30"E, 205.96 feet; thence S14°10'35"E, 401.95 feet to a
point 40 feet North of the North line of U.S. 54 Highway as deeded on Film 2144, Page 1847;
thence N74°04'48"E parallel with and 40 feet North of said U.S. 54 Highway, 258.59 to a point
on the West line of Miles Lakewood Village Second Addition, Wichita Sedgwick County,
Kansas; thence S0l°28'11"E along the West line of said Miles Lakewood Village Second
Addition, and Davis Moore 12th Addition, Wichita Sedgwick County, Kansas, 41.31 feet to a
point on the North line of said U.S. 54 Highway; thence S74°04'48"W along said U.S. 54
Highway, 419.31 feet; thence S15°55'12"E, 125 feet; thence S71°17'23"W, 324.5 feet; thence
S76°05'36"W, 210.7 feet; thence S83°50'05"W, 19.89 feet to the S.E. corner Lot 1, Block A,
Quiktrip 10th Addition, Wichita, Sedgwick County, Kansas; thence N01°19'41"W, 236.41 feet to
the N.E. corner of said Quiktrip 10th Addition; thence S88°12'33"W along the North line of said
Quiktrip 10th and the North line of Lot 1, Block A, Quiktrip 8th Addition, Wichita, Sedgwick
County, Kansas, 236 feet to a bend point in the East line of said Quiktrip 8th Addition; thence
N01°18'15"W along the East line of said Quiktrip 8th Addition and said Kansas State Bank
Addition, 500 feet to the point of beginning.

Said tract contains 414,279 square feet more or less.

TRACT B

That part of the SW1/4 Section 29, Township 27, South, Range 1 West of the 6th P.M. Sedgwick
County, Kansas described as commencing at the N.E. corner of Lot 1, Block A, Kansas State
Bank Addition, Wichita Sedgwick County, Kansas being a common corner of the S.E. corner of
Lot 8, Verda Vista Sedgwick County, Kansas; thence N88°20'30"E along the common line as
extended East, 200 feet to the Point of Beginning thence continuing N88°20'30"E, 399.5 feet;
thence S0l°18'15"E, 275 feet; thence S88'20'30"W, 399.5 feet; thence N01°18'15"W, 275 feet to
the point of beginning;

ALONG WITH,

That part of the SW1/4 Section 29, Township 27, South, Range 1 West of the 6th P.M. Sedgwick
County, Kansas and Lot 5, Verda Vista, Sedgwick County, Kansas all being described as
Beginning at the N.E. corner of Lot 1, Block A, Kansas State Bank Addition, Wichita Sedgwick
County, Kansas being a common corner of the S.E. corner of Lot 8, Verda Vista Sedgwick
County, Kansas; thence N88°20'30"E along the common line as extended East, 659.8 feet to a
point on the West line of a Ponding and Overland Flowage Easement filed on DOC#/FLM-PG:
28652650; thence N12°55'02"W along said Easement, 59.72 feet; thence continuing along said

88
Easement N36°46'09"W, 96.11 feet; thence N51°17'57"W, 146.12 feet; thence N35°39'24"W,
95.48 feet; thence N16°26'04"W, 10l.68 feet; thence N1l°19'07"W, 120.39 feet along the West
line of a Ponding and Overland Flowage Easement filed on DOC#/FLM-PG: 28652650, and
DOC#/FLM-PG: 28652651; thence continuing N22°33'08"W, along said DOC#/FLM-PG:
28652651, 179.57 feet; thence N16°20'54"W, 124.1 feet; thence N25°52'23"E, 38.55 feet more
or less to a point on the South line of the North 40 acres of the SW1/4 of said Section 29; thence
S88°20'41"W along the South line of the North 40 acres of said SW1/4, 299.04 feet to a point
270 feet East of the West line of said SW1/4, said point being 30 feet North of the N.E. corner of
Lot 1, Verda Vista Sedgwick County, Kansas; thence S0l °18'15"E along the East line of said
Verda Vista, 450 feet to the N.E. corner of Lot 5, in said Verda Vista; thence S88°20'41"W, 220
feet to the N.W. corner of said Lot 5; thence S0l°18'15"E, 100 feet to the S.W. corner of said
Lot 5; thence N88°20'41"E, 220 feet to the S.E. comer of said Lot 5; thence S0l°18'15"E, 300
feet to the point of beginning.

Said tract contains 495,992 square feet more or less.

ALONG WITH,

TRACT C

Lot 7, Verda Vista, Sedgwick County, Kansas.

Said tract contains 22,000 square feet more or less.

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90
 DEVELOPMENT AGREEMENT

THIS DEVELOPMENT AGREEMENT (this “Agreement”), is made and entered into

this _____ day of __________, 2010 by and between the CITY OF WICHITA, KANSAS, a
municipal corporation duly organized under the laws of the State of Kansas (the “City”); and
MAIZE 54, LLC, (the “Developer”) (with the “Developer” and the “City” collectively referred
to as the “Parties” and each a “Party”).

RECITALS

A. The City has authority to create a community improvement district (“CID”),

pursuant to K.S.A. § 12-6a26 et seq. (the “CID Act”), for the purpose of financing certain public
and private improvements as defined therein. Under the CID Act, the owners of at least 55% of
the total assessed value and land area within the proposed CID boundaries may petition the City
to request the creation of a CID and to impose special assessments or a special sales tax to pay
the cost of eligible projects.

B. The Developer is the owner of certain land in the City located in the vicinity of
the intersection of U.S. Highway 400/54 and Maize Road within the City (the “Project”).

C. On June 24, 2010, the Developer, along with other property owners within the
Project, submitted a petition (the “Petition”) to the City requesting the formation of a community
improvement district (the “District”). A copy of the Petition is attached hereto as Exhibit A. A
legal description and map of the boundaries of the District is set forth on Exhibit B attached
hereto.

D. On September 21, 2010, the City approved the creation of the District through the
adoption of Ordinance No. ____ (the “CID Ordinance”). As was contemplated in the Petition,
the CID Ordinance approved certain public and private improvements within the District (the
“CID Improvements”), as well as certain administrative and operating expenses to be incurred
within the District, as more particularly described on Exhibit C attached hereto (collectively, the
“CID Costs”), to be financed with pay-as-you-go financing payable from revenues received from
the imposition of an additional 2% sales tax on all taxable sales within the District (the “CID
Sales Tax”). The CID Sales Tax shall commence following submittal by the City of a certified
copy of the ordinance to the Kansas Department of Revenue. Submittal to the Kansas
Department of Revenue shall occur following publication of the ordinance and written notice
from the developer requesting submittal.

E. The Parties now desire to enter into this Agreement to formalize the construction
and financing of the CID Improvements.

NOW, THEREFORE, in consideration of the foregoing and in consideration 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 hereby agree as
follows:

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 ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION

A. 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:

1. “Agreement” means this Agreement as may be amended in accordance

with the terms hereof.

2. “CID Act” means K.S.A. § 12-6a26 et seq.

3. “CID Bonds” means community improvement district special obligation

bonds issued by the City to finance all or a portion of the CID Projects, if any.

4. “CID Costs” means, collectively, the costs of the CID Improvements and
other eligible expenses related to the Project to the extent such expenses are “costs” of a
“project” as defined in the CID Act, the estimated amounts of which are shown in
Exhibit C, which also includes the City’s administrative service fee. In the event KSA
12-6a27(f) is subsequently amended or construed by a judicial or attorney general’s
opinion to include in the definition of “cost” interest accrued on borrowed money after the
period of construction, post-construction costs of private financing shall then also be deemed
included in “CID Costs.”

5. “CID Improvements” means the projects and related permissible

improvements as set forth in the CID Act and the CID Ordinance.

6. “CID Policy” means the policy of the City of Wichita governing the use of
CID financing within the City, as originally approved by the City Council on April 6,
2010 and as amended from time-to-time thereafter.

7. “CID Ordinance” means Ordinance No. _____ adopted by the City on

September 21, 2010.

8. “CID Sales Tax” means the community improvement district sales tax
authorized by the CID Act and the CID Ordinance.

9. “CID Sales Tax Fund” means the separate fund established by the City for
deposit of the CID Sales Tax received from the State collected within the District, and that
is used to finance the CID Costs pursuant to the CID Act.

10. “City” means the City of Wichita, Kansas.

11. “City Representative” means the City Manager or his or her designee as
evidenced by a written certificate furnished to the Developer containing the specimen
signature of such person or persons and signed by the City Manager.

12. “Developer” means Maize 54, LLC, and its successors and assigns.

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 13. “Event of Default” means any event or occurrence as defined in Article VI
of this Agreement.

14. “Parties” means the City and the Developer.

15. “Pay-as-you-go financing” means pay-as-you-go financing, as that term is

defined in the CID Act, which financing shall be used to pay the CID Costs.

16. “State” means the State of Kansas.

17. “Term” means the earlier of twenty-two (22) years from the date the
Director of Taxation for the State of Kansas begins collecting the CID Sales Tax within
the District or when all CID Costs have been paid.

B. 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:

1. The terms defined in this Article include the plural as well as the singular.

2. 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 governmental accounting principles.

3. All references herein to “generally accepted governmental 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.

4. All references in this instrument to designated “Articles,” “Sections” and

other subdivisions are to the designated Articles, Sections and other subdivisions of this
instrument as originally executed.

5. 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.

6. The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.

ARTICLE II
DEVELOPMENT OF THE PROJECT

A. Completion of the CID Improvements. Any of the CID Improvements completed

by the Developer shall be in conformance with approved plans for such improvements, City
building codes, City Ordinances and all other applicable rules and regulations. Before
commencement of construction or development of any buildings, structures or other work or
improvement, the Developer shall obtain any and all permits which may be required by the City

93
and any other governmental agency having jurisdiction as to such construction, development or
work.

B. Cost of the Project. The Developer shall be responsible for and will bear all the
CID Costs, subject to the terms of this Agreement governing reimbursement for expenditures on
the CID Costs.

ARTICLE III
CID FINANCING

A. CID Sales Tax. The City shall deliver a certified copy of the CID Ordinance to
the Kansas Department of Revenue imposing the CID Sales Tax upon the receipt of written
notice from the Developer requesting such delivery. Except as otherwise set forth herein, all of
the CID Sales Tax shall be available for and dedicated to pay the CID Costs for the duration of
the Term.

B. CID Sales Tax Fund. During the existence of the District all CID Sales Taxes
generated within the District shall be deposited into a CID Sales Tax Fund, which shall be
established and administered by the City in compliance with the laws of the State of Kansas and
this Agreement and shall be held solely for the payment of the CID Costs and shall not be
otherwise expended or commingled with other funds.

C. Pay-as-you-go Financing of the CID Costs. The CID Sales Tax shall be used to
reimburse the Developer for the CID Costs, as described in Exhibit C. The City hereby agrees
that the estimates of expenses related to the CID Costs may change prior to and during the
expenditure of the CID Costs. Unless otherwise agreed by the Parties in writing, reimbursements
shall be made solely to the Developer unless otherwise set forth in this Agreement, except for
payment of the City’s administrative service fee, which will be deducted in advance by the City.

D. Certification of Expenditures. The Developer shall certify all costs and

expenditures to be made in connection with the CID Costs in accordance with the following:

1. The Developer shall submit to the City a Certification of Expenditure in the

form attached hereto as Exhibit D setting forth the amount for which reimbursement is
sought and an itemized listing of the related CID Improvement.

2. Each Certification of Expenditure shall be accompanied by such bills,

contracts, invoices, and other evidence as the City shall reasonably require to document
appropriate payment.

E. Reimbursement. The City shall have twenty (20) calendar days after receipt of
any Certification of Expenditure to review and respond by written notice to the Developer. If the
submitted documentation demonstrates that: (1) the Certification of Expenditure shows payment
by the Developer of the CID Costs; (2) the expense was incurred; (3) the 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 Certification of Expenditure and promptly reimburse the
Developer for the CID Costs pursuant to the terms of this Agreement if sufficient funds are
available in the CID Sales Tax Fund, and quarterly as funds become available in the event that

94
funds in the CID Sales Tax Fund are at that time insufficient. If the City reasonably disapproves
of the Certification of Expenditure, the City shall notify the Developer in writing of the reason
for such disapproval within such twenty (20) day period.

F. Payment of the City’s Administrative Service Fee. The City shall be paid from
the CID Sales Tax Fund an administrative service fee in an amount equal to five percent (5%) of
the total CID revenues generated within the District. The $5,000 application fee shall be applied
as a credit toward payment of the administrative service fee

ARTICLE IV
DEFAULTS AND REMEDIES

F. Defaults - General. The following events shall constitute an Event of Default

under this Agreement:

1. Subject to the extensions of time set forth in subsection F below (Enforced

Delay), failure or delay by any Party to perform any term or provision of this Agreement,
after receiving written notice and failing to cure, as set forth in paragraph (2) below,
constitutes a default under this Agreement. A Party claiming a default (claimant) shall
give written notice of default to the other parties, specifying the default complained of.

2. The claimant shall not institute proceedings against a Party, nor be entitled
to damages if the other Party within fourteen (14) days from receipt of such written notice,
with due diligence, commences to cure, correct or remedy such failure or delay and shall
complete such cure, correction or remedy within thirty (30) days from the date of receipt
of such notice or if such cure, correction or remedy by its nature cannot be effected within
such thirty (30) day period, such cure, correction or remedy is diligently and continuously
prosecuted until completion thereof.

G. Remedies on Default. Whenever any Event of Default by the City shall have
occurred and be continuing, subject to applicable cure periods, the Developer may pursue any
remedy at law and in equity, except as provided below. Whenever any Event of Default by the
Developer shall have occurred and be continuing, subject to applicable cure periods, the City
may (1) pursue any remedy at law and in equity, except as provided below, and/or (2) refuse to
approve any further Certificates of Expenditures and make any disbursements until such Event of
Default is cured by the Developer and/or terminate this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall the Developer or the City ever be
liable for any punitive, special, incidental, or consequential damages in connection with this
Agreement, or otherwise. For the purposes of this Section, consequential damages shall include,
but not be limited to, lost profits, lost tax revenue, or other similar losses which are not direct
out-of-pocket costs incurred by the non-defaulting Party. Further, specific performance shall not
be available to the City to require the Developer to construct any improvements within the
District. The only remedy that may be sought from the City is strictly limited to use of CID
revenues available in the CID Fund to pay CID Costs (i.e., the City can have no liability under
this Agreement that in any way extends to its general or tax funds, or any other source of funds
apart from the CID revenues derived from this project), except that, in case of any diversion by
the City of CID revenues from the CID Fund in breach of this Agreement, the City will be

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obligated to restore such diverted revenues, dollar for dollar, from any lawfully available source
of appropriations.

H. Legal Actions.

1. Institution of Legal Actions. Any legal actions related to or arising out of

this Agreement must be instituted in the District Court of Sedgwick County, Kansas or, if
federal jurisdiction exists, in the Federal District Court in the District of Kansas.

2. Applicable Law. The laws of the State of Kansas shall govern the
interpretation and enforcement of this Agreement.

3. Acceptance of Service of Process.

(a) In the event that any legal action is commenced by the Developer
against the City, service of process on the City shall be made by personal service
upon the City Clerk or in such other manner as may be provided by law.

(b) In the event that any legal action is commenced by the City
against the Developer, service of process on the Developer shall be made by
personal service upon an officer or agent of the Developer and shall be valid
whether made within or without the State of Kansas or in such other manner as
may be provided by law. In the event the Developer no longer has an officer or
registered agent to serve, the Secretary of State is hereby irrevocably appointed to
accept service for the Developer.

I. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in

this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by a Party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other Party.

J. Inaction Not a Waiver of Default. Any failures or delays by a Party in asserting

any of its rights and remedies as to any default shall not operate as a waiver of any default or of
any such rights or remedies, or deprive such Party of its right to institute and maintain any action
or proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies.

K. Enforced Delay; Extension of Times of Performance.

1. In addition to specific provisions of this Agreement, performance by a

Party hereunder shall not be deemed to be in default, and all performance and other dates
specified in this Agreement shall be extended, where the Party seeking the extension has
acted diligently and delays or defaults are due to default of the other Party; war;
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; market conditions; quarantine restrictions; freight
embargoes; lack of transportation; or unusually severe weather; or any other causes

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 beyond the control or without the fault of the Party claiming an extension of time to
perform.

2. Times of performance under this Agreement may also be extended in

writing by the mutual agreement of the City and the Developer.

ARTICLE V
GENERAL PROVISIONS

A. Termination of the CID. The City shall not terminate the CID prior to the
expiration of its Term, except as provided by law, or as requested by the Developer.

B. Modification of the District. From time to time during the Term, the Developer
may request, and the City shall reasonably consider, any modification to the District, in
accordance with the CID Act and the CID Policy.

C. Amendment. This Agreement, and any exhibits attached hereto, may be amended
only by the mutual consent of the Parties, upon official action of the City’s governing body
approving said amendment, and by the execution of said amendment by the Parties or their
successors in interest. If any provision, covenant, agreement or portion of this Agreement, or its
application to any person, entity or property, is held invalid, the Parties shall take such
reasonable measures including, but not limited to, reasonable amendment of this Agreement to
cure such invalidity where the invalidity contradicts the clear intent of the Parties in entering into
this Agreement.

D. Assignment. No Party may assign all or any part of its interest in this Agreement
without the prior written consent of the other Parties, and any such assignment without such
consent shall be void; except that the Developer may assign all or any part of its interest in this
Agreement upon the prior written consent of the City Representative; provided, however, in the
event the City Representative does not consent to such assignment, the Developer may proceed
before the City's governing body to request that such assignment be approved; and provided
further that any such assignments be administered through a single, third party fiduciary who
would receive any payments made pursuant to such assignments and distribute funds to
assignees and who would be responsible for calculating any subdivision of funds for such
distribution. Under no circumstances shall the City be responsible for determining the amount of
funds to be assigned under this provision. Notwithstanding the foregoing, the Developer, with
prior written notice to the City, may make a collateral assignment of 100% its rights under this
Agreement to a single financial institution as security for a financing of the Project. Any
decision to consent or refuse consent to an assignment pursuant to this paragraph shall solely at
the discretion of the City Representative or the City’s governing body, as the case may be.
Nothing herein shall be construed to delegate rights or responsibilities of the City under this
agreement, including without limitation the determination of eligible project costs for
reimbursement.

E. Right to Inspect. The Developer agrees that the City, with reasonable advance
notice and during normal business hours, shall have the right and authority to review, inspect,

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audit, and copy, from time to time, all of the Developer’s books and records relating to the CID
Costs as pertinent to the purposes of this Agreement.

F. Right of Access. For the purposes of assuring compliance with this Agreement,
the City Representative shall have the right of access to the District, without charges or fees,
during normal business hours for purposes related to this Agreement, including, but not limited
to, the inspection of the work being performed in constructing any of the CID Improvements.

G. No Other Agreement. Except as otherwise expressly provided herein, this

Agreement and all documents incorporated herein by reference supersedes all prior agreements,
negotiations and discussions, both written and oral, relative to the subject matter of this
Agreement and is a full integration of the agreement of the Parties.

H. Severability. If any provision, covenant, agreement or portion of this Agreement,

or its application to any person, entity or property, is held 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. In no such
event shall the validity or enforceability of the remaining valid portions hereof be affected.

I. Notice. All notices and requests required pursuant to this Agreement shall be in
writing and shall be sent as follows:

To the Developer:
Maize 54, LLC
Attention: Jay Maxwell
1634 E. Central Avenue
Wichita, Kansas 67214

With copies to:

Korb W. Maxwell
Polsinelli Shughart, P.C.
6201 College Blvd., Ste. 500
Overland Park, KS 66211

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 To the City:
City Manager
City Hall, 13th Floor
455 N. Main
Wichita, Kansas 67202

With copies to:

Urban Development Office
Attention: Allen Bell
City Hall, 13th Floor
455 N. Main
Wichita, Kansas 67202

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.

J. 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.

K. Recordation of Agreement. The Parties agree to execute and deliver a

memorandum of this Agreement in proper form for recording in the real property records of
Sedgwick County, Kansas.

L. Consent or Approval. Except as otherwise provided in this Agreement, whenever

consent or approval of either Party is required, such consent or approval shall not be
unreasonably withheld.

M. Survivorship. Notwithstanding the termination of this Agreement, the

Developer’s obligations set out in Article II and Section V.E. shall survive the termination of this
Agreement to the extent that any incident giving rise to a claim, suit, judgment or demand
occurred during Term.

N. Incorporation of Exhibits. The Exhibits attached hereto and incorporated herein

by reference are a part of this Agreement to the same extent as if fully set forth herein.

[Remainder of page intentionally left blank]

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 IN WITNESS WHEREOF, the City and the Developer have duly executed this Agreement
pursuant to all requisite authorizations as of the date first above written.

CITY OF WICHITA, KANSAS

Carl Brewer, Mayor

ATTEST:

Karen Sublett, City Clerk

APPROVED AS TO FORM:

Gary E. Rebenstorf, City Attorney

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MAIZE 54, LLC

By:
Jay Maxwell, Managing Member

Date: ________

STATE OF __________________ )
) ss.
COUNTY OF ________________ )

On this _________ day of _________________, 2010, before me personally appeared

Jay Maxwell to me personally known, who being by me duly sworn did say that he is the
Managing Member of Maize 54, LLC, and that said instrument was signed and delivered on
behalf of said limited liability company and acknowledged to me that he/she executed the same
as the free act and deed of said limited liability company.

In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day
and year first above written.

NOTARY PUBLIC

My Commission Expires:

[SEAL]

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 EXHIBIT LIST

EXHIBIT A – CID PETITION

EXHIBIT B – LEGAL DESCRIPTION AND MAP EXHIBIT OF DISTRICT

EXHIBIT C – CID COSTS

EXHIBIT D – CERTIFICATION OF EXPENDITURES

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 EXHIBIT A
CID PETITION

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 EXHIBIT B
LEGAL DESCRIPTION AND MAP EXHIBIT OF DISTRICT

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EXHIBIT C
CID COSTS

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107
108
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 Maize 54, LLC
COMMUNITY IMPROVEMENT DISTRICT
Use of Funds

Sources of Funds
CID $ 16,000,000

$ 16,000,000
Uses of Funds

Capital Expenditures

Buildings, structures, and other facilities $ 46,000,000

Drainage Improvements $ 2,000,000
Site Improvements and Amenities $ 2,000,000
Public Street Improvements $ 1,000,000
Professional Design Services $ 2,000,000

Annual Operational Expenditures

Including but not limited to, advertising, sales promotions, tourism promostions, economic development, etc. $ 22,000,000

GRAND TOTAL . $ 75,000,000

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112
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 EXHIBIT D
CERTIFICATION OF EXPENDITURES

Request No. ____________ Date:_______________

Pursuant to the Development Agreement (the "Agreement") for the Bowllagio

Community Improvement District between the City of Wichita, Kansas and the undersigned (the
"Developer"), the Developer requests reimbursement and hereby states and certifies as follows:

1. The date and number of this request are as set forth above.

2. All terms in this request shall have and are used with the meanings
specified in the Agreement.

3. The names of the persons, firms or corporations to whom the payments

have been made and reimbursement is hereby requested, the amounts to be reimbursed
and the general classification and description of the costs for which each obligation
requested to be reimbursed hereby was incurred are as set forth on Attachment I hereto.

4. These costs have been incurred and are reasonable costs that are
reimbursable under the Agreement.

5. Each item listed above has not previously reimbursed from the CID Sales
Tax Fund and no part thereof has been included in any other Disbursement Request
previously filed with the City.

[NAME OF DEVELOPER]

By:
Title:

Approved this ____ day of ____________, 20__

CITY OF WICHITA

By:
City Representative

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 ATTACHMENT I
TO CERTIFICATION OF EXPENDITURE

REQUEST NO. _____ DATED_____ _

SCHEDULE OF PAYMENTS REQUESTED

Person, firm General classification and

or corporation description of the costs of issuance for
to whom payment Amount to which the Obligation to be reimbursed
was made be reimbursed was incurred

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