75A - PH 75 FT DIGITAL PYLON AUTO MALL

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Sales Tax payments during the Operating Period that results in an increase of Sales Tax that Auto Mall must pay for one or more Contract Years, or in the event that Auto Mall amends any sales tax returns that causes an increase in the Sales Tax due for one of more Contract Years, Auto Mall shall inform the City and the City shall commensurately increase the Loan Repayment credited to Auto Mall. The provisions of this paragraph shall survive the termination of this Agreement. 2.2.2.4 The parties acknowledge that certain payments of Sales Tax received by City may be based on estimates and that such amounts will be periodically reduced or increased by the State Board of Equalization to reflect the actual amount of Sales Tax owed to City. The Loan Repayments shall be adjusted accordingly as necessary to conform to such reconciliations. The adjustment shall be made within sixty (60) days through any necessary recalculation. Within thirty (30) days of a written request by Auto Mall, the City shall provide Auto Mall with documentation to substantiate the adjustment of the Loan Repayment(s). 2.2.2.5 Within ninety (90) days following the end of each Contract Year, the City may conduct an accounting of all of Auto Mall's Sales Tax Reports and Sales Tax payments during the immediately preceding Contract Year, and the amount of the Loan Repayments applied to Auto Mall during that immediately preceding calendar year. However, the City may also conduct such an accounting at any time by giving thirty (30) days written notice in the event that facts or circumstances arise, such as change in operations, change of ownership or business entity status, which can impact the method or amount of Auto Mall's Sales Tax Reporting or Payments. The City shall provide Auto Mall a copy of that accounting and reconciliation upon its completion. In the event that the accounting and reconciliation identifies a disparity between the Required Operations, Auto Mall's Sales Tax payments, or Loan Repayments during that immediately preceding calendar year, appropriate adjustments shall be made within sixty (60) days. 2.2.3 No Acceleration. It is acknowledged by the parties that any Loan Repayments by City provided for in this Agreement may only be applied for those periods in which City receives the performance of Auto Mall pursuant to this Agreement. Therefore, the failure of City to apply any Loan Repayments or the failure by City to perform any of its other obligations hereunder shall not cause the acceleration of any anticipated future Loan Repayments by City. 2.3 Conditions Precedent to City's Obligations. City's obligation to perform hereunder, including without limitation its obligation to apply the Loan Repayment pursuant to Section 2.1 of this Agreement, shall be contingent and conditional upon Auto Mall's full and satisfactory performance of its obligations set forth in this Agreement. Notwithstanding the foregoing, any delay by Auto Mall in sending reports or other information to the City, or the existence of inadvertent errors in reports or information sent by Auto Mall to the City, shall not constitute either a breach of this Agreement or a waiver of Auto Mall's right to receive credit for the Loan Repayments under this Agreement. However, such delay or error by Auto Mall may result in a delay in the City's calculation of Loan Repayments to the extent that such delay or error by Auto Mall causes the City to be unable to meet its obligations on a timely basis. 2.4 Disclosure of Payments. Auto Mall agrees that the calculation of Loan Repayments and the amounts thereof do not constitute a violation of Revenue and Taxation Code Section 7056 or any other provision of law pertaining to the disclosure of sales tax information, shall be a matter of public record, may be disclosed to any person, and may be included on the City's warrant register. Auto Mall waives any law that is contrary to any of the agreements in this Section 2.4. 75A-25