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Home My WebLink AboutRESOLUTION - 14-97 - 3/11/1997 - REDEVELOPMENT AGREEMENTRESOLUTION NO. 14-97 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE A REDEVELOPMENT AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND HAMILTON PARTNERS, INC. (GROVE MALL AND VILLAGE COMPLEX) NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows: Section 1: That the Village President be and is hereby authorized to sign the documents in substantially the form attached hereto marked: REDEVELOPMENT AGREEMENT, RECIPROCAL EASEMENT AGREEMENT AND CONSTRUCTION ESCROW AGREEMENT GROVE MALL AND VILLAGE COMPLEX copies of which are on file in the office of the Village Clerk and the Village Clerk is authorized to attest said documents upon the signature of the Village President. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 11th day of March , 1997. APPROVED this 11th day of March , 1997. Dennis J. Gallitanc Village President ATTEST: Patricia S. Smith Village Clerk REDEVELOPMENT AGREEMENT entered into by and between VILLAGE OF ELK GROVE VILLAGE and ELK GROVE TOWN CENTER, L.L.C. Dated March 11, 1997 Table of Contents Article I Recitals Part of Aareement............................................................................................5 Article II Mutual Assistance........................................................................................................5 Indemnity; No Joint Venture or Partnership..........................................................32 Article III Due Diligence Land Acquisition...................................................................................5 7.02 3.01 Letter of Credit.......................................................................................................5 7.03 3.02 Anchor Leasing......................................................................................................6 7.04 3.03 Reciprocal Easement Agreement...........................................................................7 7.05 3.04 Land Acquisition....................................................................................................7 7.06 3.05 Closing of Property................................................................................................8 7.07 3.06 Final Purchase Price............................................................................................10 7.08 3.07 Condition of Property...........................................................................................12 7:09 3.08 Environmental Conditions....................................................................................13 7.10 Article IV Development of Redevelopment Proiect...................................................................14 4.01 Scope of Commercial Center...............................................................................15 4.02 Agreed Tenants...................................................................................................15 4.03 Plan Development and Approval..........................................................................17 4.04 Developer Financing............................................................................................18 4.05 Village Financing.................................................................................................18 4.06 Construction Contract and Disbursements............................................................20 4.07 Commencement and Completion of Improvements.............................................21 4.08 Building, Subdivision Codes.................................................................................21 4.09 Utilities and Fees.................................................................................................21 4.10 Approvals and Permits.........................................................................................22 4.11 No Liens..............................................................................................................23 4.12 Indemnity............................................................................................................. 24 4.13 Insurance, and Performance, Labor and Material Payment Bonds .......................25 4.14 Public Improvements...........................................................................................27 4.15 No Other Construction Obligations.......................................................................27 Article V Village Financing and Taxes......................................................................................28 5.01 Real Estate Taxes................................................................................................28 5.02 Future Village Financing......................................................................................29 5.03 Right to Inspect....................................................................................................29 ArticleVI Authority...................................................................................................................30 6.01 Actions.................................................................................................................30 6.02 Powers.................................................................................................................30 6.03 Authorized Parties................................................................................................31 6.04 Developer's Authority........................................................................................... 31 Article VII General Provisions...................................................................................................32 7.01 Indemnity; No Joint Venture or Partnership..........................................................32 7.02 Time of Essence..................................................................................................32 7.03 Termination Events..............................................................................................32 7.04 Default.................................................................................................................33 7.05 Remedies............................................................................................................34 7.06 Delay and Force Majeure.....................................................................................35 7.07 Amendment.........................................................................................................35 7.08 No Other Agreement............................................................................................36 7:09 Severability..........................................................................................................36 7.10 Certificate of Completion.....................................................................................36 7.11 Form of Certificate...............................................................................................36 7.12 Assigns................................................................................................................37 7.13 Illinois Law...........................................................................................................37 7.14 Notice..................................................................................................................38 7.15 Counterparts........................................................................................................39 7.16 Recordation of Agreement...................................................................................39 7.17 Consent or Approval............................................................................................40 7.18 Estoppel Certificate..............................................................................................40 M'.1ELKGROVE GREET. 03/1397 2.31 PM REDEVELOPMENT AGREEMENT THIS REDEVELOPMENT AGREEMENT (this "Agreement"), is made and entered into as of the 11th day of March, 1997, by and between the Village of Elk Grove Village, Illinois, an Illinois municipal corporation located in Cook County, Illinois (the ' Village"), and Elk Grove Town Center, L.L.C., an Illinois limited liability company (the "Developer"). RECITALS A. The Village has the authority to undertake the redevelopment of blighted property within the Village pursuant to its home -rule authority, and specifically, Ordinance No. 23-27 (the "Ordinance"). Further, The Village has the authority to use tax increment financing to reimburse itself or third parties for certain eligible costs related to such redevelopment pursuant to the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11 - 74.4-1 et seg. (the "Act"). B. Pursuant to the Ordinance, the Village authorized the preparation of a study (the "Blight Study") of blighting conditions by Trkla, Pettigrew, Allen & Payne, Inc. ("TPAP") which was delivered on January, 1994, for an area generally described as being bounded on the north by Biesterfield Road, Arlington Heights Road on the east, the Village Grove Apartments on the south, and the Village Administration Building, Police HDQ, Central Fire Station and Village Library campus on the west (the "Redevelopment Area"). The Blight Study concluded that certain improvements within the Redevelopment Project Area were in fact blighted and would not be redeveloped or improved without Village intervention. C. Pursuant to its home -rule authority, the Ordinance and the Blight Study, in October, 1993, the Village adopted an ordinance declaring approximately 18.96 acres C: W-DATA%ELKGROVE GREE3. DOC 03/1397 12 35 PM 12'.35 PM of real property, a portion of which is legally described in Exhibit A attached hereto (the "Property"), as being 'Blighted" and authorized the use of condemnation to acquire the Property. On January 19, 1995, the Village filed suit condemning the Property with the intention of facilitating private investment and redevelopment. On May 1, 1996, the Village entered into an Agreed Order vesting fee simple title to the Property in the Village. D. Pursuant to the Act, the Village then authorized TPAP to prepare a Redevelopment Plan dated October 31, 1996 (the 'Redevelopment Plan") for the Redevelopment Area. The Redevelopment Plan concluded that the existing improvements should be demolished, certain public improvements should be constructed, and that but for tax increment financing, the Redevelopment Plan would not be implemented. E. The Village issued a request for proposals, and selected the Developer to assist in implementing the Redevelopment Plan. The Developer and the Village have agreed to work together to plan and construct the development of a retail and commercial center, which is more fully described and defined in Paragraph 4.01 hereof, and is referred to throughout this Agreement as the "Commercial Center." To facilitate the development of the Commercial Center, and in accordance with the terms of this Agreement, the Village has agreed to convey title to the Property to the Developer, subject to the terms and conditions contained herein. In turn, the Developer has agreed to remove certain improvements remaining from the defunct shopping center currently located on the Property and to construct certain public improvements and 140,000 to 159,000 square feet of new buildings and adjacent parking areas on Property. The redevelopment of the Property will eliminate the existing blight identified C:V.1-DATAIELKGR0VENGREE3.D0C M13R7 12:35 PM 2 in both the Blight Study and the Redevelopment Plan, and will generate additional tax revenue for the Village and other taxing districts_ F. The redevelopment of the Property will include certain aesthetic enhancements which the Developer has agreed to finance in order to insure the compatibility of the redevelopment of the Property with the surrounding areas, and the long term viability of the new improvements. In consideration for the Developer financing and constructing these upgraded enhancements, the Village has agreed to finance certain improvements (the "Village Green Improvements") to Village owned public property (the "Village Green") which is contiguous to the Property. The Village has also agreed to finance certain TIF Redevelopment Project Costs, as that term is defined in the Act (the "TIF Improvements"). The Commercial Center, the TIF Improvements and the Village Green Improvements will be built, or caused to be built, by Developer in substantial conformity with the Plans, as that term is hereinafter defined. The Commercial Center, the TIF Improvements and the Village Green Improvements are collectively referred to herein as and constitute the 'Redevelopment Project." G. In accordance with the Act and the Ordinance, the Village held and conducted a public hearing with respect to the Redevelopment Plan at a meeting of the Village President and the Village Board (the "Corporate Authorities") on December 19, 1996. The Corporate Authorities of the Village, after giving all notices required by law and after conducting all public hearings required by law, adopted Ordinance No. 2535 approving the Redevelopment Plan and Project, finding that but for the adoption of the Redevelopment Plan, the construction of the Redevelopment Project would not occur, and Resolution No. 12-97 authorizing the execution of this Agreement. MAELKGROVE GREED. DOC O3 9197 <.78 PM 3 H. This Agreement has been submitted to the Corporate Authorities of the Village for consideration and review, and the Corporate Authorities have taken all actions required to be taken prior to the execution of this Agreement in order to make the same binding upon it according to its terms. I. The Corporate Authorities of the Village, after due and careful consideration, have concluded that the development of the Redevelopment Project Area as provided for herein and in the Redevelopment Plan will further the growth of the Village, facilitate the redevelopment of the entire Redevelopment Project Area, improve the environment of the Village, increase the assessed valuation of the real estate situated within the Village, foster increased economic activity within the Village, increase employment opportunities within the Village, enable the Village to direct the development of the Redevelopment Project Area, and otherwise be in the best interests of the Village by furthering the health, safety, and welfare of its residents and tax- payers. 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: C W-DATAIELKGROVEIAGREE3DOC n RECITALS PART OF AGREEMENT 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 Article I. II MUTUAL ASSISTANCE The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and, in the Village's case, the adoption of such ordinances and resolutions), as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. DUE DILIGENCE LAND ACQUISITION 3.01. Letter of Credit. On or before March 17, 1997, the Developer shall deliver to the Village an irrevocable stand-by letter of credit (the "Letter of Credit") from a banking or savings and loan institution authorized to do business in the State of Illinois in the amount of One Hundred Thousand Dollars ($100,000.00), naming the Village as beneficiary, in substantially the same form as attached hereto as Exhibit B. The Letter of Credit shall secure Developer's performance pursuant to this Agreement. In the event the Developer fails to complete the Redevelopment Project in accordance with the Plans and this Agreement on or before July 31, 1998, the Village shall have the C.W-DATAELKGROVE GREE3 DOC ONI 319712.35 PM right to call on the Letter of Credit and may use the proceeds to complete the Redevelopment Project, or may retain the proceeds in addition to pursuing its other remedies in accordance with Paragraph 7.05 of this Agreement. Upon the issuance of the Certificate of Completion in accordance with Paragraph 7.10 of this Agreement, the Village shall release the Letter of Credit to the Developer. However, the Village shall promptly release the Letter of Credit in the event of one of the following: A. the Developer has knowledge of an unacceptable environmental condition which has not been remediated in accordance with Paragraph 3.08 hereof, and after giving notice to the Village specifying said environmental condition, the Village has elected not to remediate said condition; or B. the Village is unable to convey the title to Property in accordance with Paragraph 3.05 hereof; or C. the Board of Library Trustees of the Village of Elk Grove Village does not execute the REA, as defined in Paragraph 3.03. 3.02. Anchor Leasing. As of the date of execution of this Agreement, Developer agrees to use its best efforts to obtain commitments from tenants, consistent with this Agreement, to locate within the Commercial Center. On or before March 17, 1997, Developer shall deliver evidence to the Village of executed leases for the Grocery Store and the Drug Store, as those terms are defined in Paragraph 4.02 hereof. The Grocery Store, Drug Store and additional tenant are collectively referred to herein as the "Anchor Tenants." In the event the Developer fails to provide evidence of signed M:�LKGROVE GRM DOC 0311897 4 38 PM i u leases with the Anchor Tenants on or before March 17, 1997, the Village may elect to terminate this Agreement in accordance with Paragraph 7.03 hereof. Developer hereby covenants that both leases with Anchor Tenants shall provide for the Developer's right of recapture in the event the Anchor Tenant ceases to do business in the Commercial Center. 3.03. Reciprocal Easement Agreement. The Village and the Developer shall negotiate a Reciprocal Easement Agreement (the "REA") which shall provide for: mutual ingress and egress over the Village Green and the Property; Village parking on the Theater Parcel, as hereinafter defined, and the maintenance of the Village Green Improvements and the TIF Improvements as required along with "self-help" remedies for each Party. The REA shall be substantially in the form attached hereto as Exhibit C. 3.04. Land Acquisition. The Village is currently the owner of fee simple title to the Property. Developer has agreed to purchase and the Village has agreed to sell the Property subject to the following conditions: A. Base Purchase Price. The Parties hereby acknowledge that the Village acquired the Property for $8.00 per square foot. The Parties further acknowledge that the actual value of the Property is not ascertainable as of the date of this Agreement and therefore, the Developer has agreed to pay an initial "Base Purchase Price" of $4.00 per square foot at the time of Closing, as hereinafter defined, and to make additional payments as provided herein to the Village constituting the "Final Purchase Price." The Final Purchase Price shall be computed in accordance with Paragraph 3.06 of this Agreement. M:EIKGROVEI GREE3. DOC MOM? 4.28 PM 7 B. Developer's Conditions to Closing: Developer shall have no obligation to close on the Property unless and until: 1. the Developer has delivered the Letter of Credit; 2. the Corporate Authorities have rezoned the Property and granted any variations and special uses necessary to construct the Commercial Center in accordance with the Plans; 3. the Village has completed demolition in accordance with Paragraph 3.07 hereof and environmental remediation described in Paragraph 3.08; 4. the Library has executed the REA. C. Village's Conditions to Closing: Village shall have no obligation to close on the Property unless and until Developer has satisfied all of the following: 1. Developer has signed leases or purchase contract for not less than 95,385 square feet with Agreed Tenants, as hereinafter defined; 2. Developer has evidence, reasonably acceptable to Village, of a commitment for the Loan, as hereinafter defined; 3. Developer has submitted to the Village for its review and approval the Construction Contract, as hereinafter defined; 4. Developer has delivered the Letter of Credit; and 5. Developer has obtained all required Village Approvals of the Plans. 3.05 Closing of Property. On or before May 15, 1997, Developer shall deliver to Village a fifteen (15) day written notice that it is prepared to close on the Property. The closing shall occur at the Chicago office of the Near North Title Insurance Company and shall be closed through a standard deed and money escrow, with each Party making the following deposits: C1M-DATA%ELKGROVE GREE3 DOC OW1W 12'35 PM L] A. Village's Deposits: 1. Special Warranty Deed conveying title to the Property to Developer; 2. Executed copy of this Agreement in recordable form (or a memorandum therefor); 3. Executed ALTA Statement; and 4. Assignments of the Theater Lease and the Existing Walgreen's Lease, as those terms are hereinafter defined. B. Developer's Deposits: 1. Base Purchase Price in immediately available funds; and 2. Executed ALTA Statement. C. Joint Deposits: 1. Executed Closing Statement; 2. Executed transfer declarations indicating the transaction is exempt; and 3. Executed REA in recordable form. The deed and money escrowee shall be directed to record the copy of this Agreement (or a memorandum thereof) prior to recording the Deed, and shall record the REA immediately after recording the Deed. The Village shall convey title of the Property to the Developer subject only to: general taxes not yet due and owing, this Redevelopment Agreement, the title exceptions agreed to by the Parties, the lease for the Grove Theater (the "Theater Lease") dated June 1, 1996, as amended by the letter agreement dated December 13, 1996, and the Walgreen Lease (the "Existing Walgreen Lease") dated November 23, 1963, as amended by letter dated March 1997. C.W DATAI LKGROVEIAGREE3. DOC 0311=7 17:35 PM E Each Party shall pay its usual and customary fees associated with such Closing. At Closing, the Village shall not give Developer a credit for real estate taxes, but the Parties agree to prorate the real estate taxes upon the issuance of the final 1996 taxes (payable in 1997) and upon the issuance of the final 1997 tax bill (payable in 1998). The Parties further agree to prorate the taxes (or reprorate if necessary) in the event the Village obtains a Certificate of Error for the Property. At Closing, the Village shall give Developer a credit for the cost of obtaining an ALTA survey for the Property, but said credit shall not exceed Six Thousand Dollars ($6,000.00). 3.06 Final Purchase Price. Developer has represented to the Village that the actual purchase price it can pay for the Property will be based on the final gross square footage leased to users, the rental income received, and the actual costs of construction. The Village has therefore agreed to convey the Property for the Base Purchase Price, and to recompute the Final Purchase Price once the Developer has finalized its costs, income and the size of the Commercial Center. Developer has further represented to the Village that it would require a return on cash invested of not less than 11 %D per year. Accordingly, the Parties hereby agree that within 60 days of completion of the Commercial Center, the Developer shall submit to the Village a final projected Price by cash -on -cash return. The cash -on -cash return shall be computed using the actual certified construction costs of the Commercial Center, less any costs paid by the Village using TIF. To the extent that the return depicted in the cash -on -cash return C W-DATAIELKGROVEWGREE3.DOC 03/1397 12.35 PM 10 exceeds 11%, Developer and Village shall compute the Village continuing participation as follows: 1. dividing the actual cash return in excess of 11 % on a 50-50 basis; 50% would be allocated to the Developer and 50% to the Village; 2. this cash payment would be paid to the Village on an annual basis. The payment shall be made within 90 days of the calendar year end and shall be paid for a period of twenty (20) years or until Developer sells the Commercial Center, whichever occurs first. 3. Upon sale of the Commercial Center, Developer shall notify Village and certify (including calculations) the cap rate attendant to the sale. 4. Developer shall pay to the Village at the closing of the sale of the Commercial Center an amount equal to the amount most recently paid in the previous year divided by the cap rate from subparagraph 3 of this Paragraph 3.06, less any closing costs. However, closing costs shall not include any fees or commissions paid to Developer or any related entities. Developer shall deliver to the Village the actual construction costs for the Commercial Center, certified by the Developer and its general contractor, and copies of all leases and pad sale agreements. The Village, or Village's consultants selected in the Village's sole discretion, shall be entitled to audit any records or books of the Developer in W: LKGROVEUGRM DOC 03JI"7 < M PM 11 accordance with Paragraph 5.03 of this Agreement. In no event shall Developer be entitled to any reduction of the Base Purchase Price regardless of the return indicated in the cash -on -cash return. 3.07 Condition of Property. With the exception of the existing Walgreen store and the existing Grove Theater Building, the Village hereby agrees to demolish the existing structures on the Property and shall deliver the Property to the Developer with only the existing slabs, parking lots, light pole bases and sidewalks still located on the Property. The Developer agrees to remove all remaining improvements in accordance with the Plans, Village Codes and this Agreement. The Village has entered into an agreement with M&R Wrecking, pursuant to which M&R will demolish the existing Walgreen building for Twenty -Six Thousand Dollars ($26,000.00). The Village will assign the M&R agreement to the Developer, and Developer will cause the Walgreen building to be demolished. The Village hereby agrees to reimburse Developer for said demolition in an amount not to exceed $26,000.00. If for any reason Developer is unable to cause the demolition of the Walgreen building for $26,000.00 or less, the Village can elect to either reimburse the Developer for the greater amount of demolition, or the Village may enter the Property and complete the demolition. In the event the Village demolishes the Walgreen building, Developer shall deliver a written license to the Village, giving the Village the right to enter onto the Property and demolish said structures. The Village shall indemnify Developer from any claim or loss resulting from the Village's acts. C. W-DATMELKGROVEUGREE3. DOC OWI712:35 PM 12 3.08 Environmental Conditions. A. The Village hereby represents to the Developer that, to the best of the Village's knowledge, other than as described in the following reports prepared by Mostardi Platt: Phase I Environmental dated September 28, 1995, Environmental Soil Investigation, dated October 18, 1995, Confirmatory Asbestos Assessment, dated October 13, 1995, and Confirmatory Asbestos Assessment, dated September 17, 1996 (collectively the "Environmental Report"), no toxic or hazardous substances, including, without limitation, underground storage tanks, asbestos, and the group of organic compounds known as polychlorinated biphenyls, have been generated, treated, stored or disposed of, or otherwise deposited in or located on the Property, which, as of the date of Closing will not have been removed in accordance with applicable law, nor, to the best of the Village's knowledge, has any activity been undertaken on the Property which would: (i) cause the Property to become a hazardous waste treatment, storage or disposal facility within the meaning of, or otherwise bring the Property within the ambit of, the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seg. (the "RCRA"), or any other similar state law or local ordinance; (ii) cause a release or threatened release of hazardous waste from the Property within the meaning of, or otherwise bring the Property within the ambit of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C., Sections 9601-9657 (the "CERCLA"), or any similar state law or local ordinance or any other environmental law; or (iii) cause the discharge of pollutants or effluents into any water source or system, or the discharge into the air of any emissions, which would require a C.VA-DATA%ELKGROVE%AGREE3. DOC 03113M711:35 PM 13 permit under the Federal Water Pollution Control Act, 33 U.S.C., Section 1251 et. seq., or the Clean Air Act, 41 U.S.C., Section 7401 et. sec., or any similar state law or local ordinance. The Village hereby further represents to the Developer that, to the best of its knowledge, as of the date of Closing, there will be no substances or conditions other than those disclosed in the Environmental Report, in or on the Property which may support a claim or cause of action under RCRA. CERCLA or any other federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements. The Developer has received and examined the Environmental Reports. B. There are certain contaminated soils as disclosed in the Environmental Reports which as of the date of this Agreement are located on the Property. The Parties hereto agree that in order to remediate these soil conditions as expeditiously and effectively as possible, immediately upon the execution of this Agreement, the Developer shall enter into a Soil Remediation Agreement, pursuant to which Developer, as an agent for the Village and at the sole expense of the Village, shall assume the responsibility for the remediation of the contaminated soils on the Property. The Developer shall hire an environmental consultant approved by the Village, and Developer shall remediate the soil condition to the satisfaction of the consultant. M.TLKGROVE GREE3DOG 03/1&97 / 26 PM 14 IV DEVELOPMENT OF REDEVELOPMENT PROJECT 4.01. Scope of Commercial Center. For the purpose of this Agreement, the term "Commercial Center" shall be defined as: a first-class retail and commercial development of not less than 140,000 square feet (which shall include a 15,000 square -foot movie theater) to be occupied by Agreed Tenants, as hereinafter defined; all required parking areas, drainage and retention/detention areas, ingress and egress, signage, landscaping, lighting and all other improvements reasonably required to operate a first-class retail and commercial center. The Commercial Center shall be constructed in accordance with the Plans, as hereinafter defined, and with the terms and conditions of this Agreement. 4.02. Agreed Tenants. Developer hereby acknowledges that the Village has undertaken the Redevelopment Project to insure that the Property and the Village Green are developed in a first-class manner with uses that will benefit the Village on a long-term basis. To that end, the Village has agreed to sell to Developer the Property at a price less than the Village's cost of the Property, and to finance the TIF Improvements as provided for herein. In consideration for this financial assistance, notwithstanding any provision in the Village's Zoning Ordinance, Developer hereby agrees that the Commercial Center will be initially leased and sold only to "Agreed Tenants" which is defined as herein. Developer further agrees to provide the Village with copies of all executed leases, provided that Village agrees the leases shall be treated as proprietary and competitive, and therefore not subject to the Freedom of Information Act. C:Vi.DATMELKGROVENGREE3DDC 03113/07 12.35 PM W For the purposes of this Agreement, the term "Agreed Tenants" shall mean only the following types of tenants: A. Dominick's Finer Foods, or a grocery store of similar size and quality (the "Grocery Store"); B. Walgreen, or a drug store of similar size and quality (the "Drug Store"); C. a community movie theater showing second -run movies, or a combination of first- and second -run movies; D. sit-down restaurants which serve dinner such as (by way of illustration and not limitation) Cucina Roma, Macaroni Grill, Maggiano's, Chili's, etc.; E. sit-down restaurants which serve breakfast, lunch and possibly dinner, such as (by way of illustration and not limitation) Moondance, Walker Brothers' Pancake House, Le Peep, etc. F. book stores, video stores, music stores, ice cream shops, candy specialty shops; G. any type of clothing boutique other than discount shops; H. a hardware store such as an Ace Hardware or True Value; I. an automotive store, such as Goodyear or Firestone; J. coffee shops, such as Starbucks, Caribou Coffee, Seattle's Best Coffee; K. camera stores; L. service offices, such as insurance and travel agents; M. bakeries or delicatessens such as Schlotsky's or Quizno's; and N. any other tenant agreed to by the Village. Developer hereby agrees that the Commercial Center shall not include any laundromats, dry cleaners, or any fast-food restaurants, or any restaurants for which the majority of sales are from carry -out sales, other than bakeries or delicatessens; nor, CWMATAIELKGROVEI GREE3. DOC 03M"7 12:35 PM 16 without the prior consent of the Village, shall the Commercial Center include any tenant or user which is in excess of 15,000 square feet, other than the Grocery Store, the Drug Store, and the movie theater unless specifically agreed to by the Village. In the event this Paragraph 4.02 conflicts with the Village's Zoning Ordinance, this Paragraph shall control. Moreover, the Parties hereto expressly agree that Village's approval of each of the Agreed Tenants is subject to appropriate architectural treatment of each tenant, as determined in the sole judgment of the Village. 4.03 Plan Development and Approval. The term "Plans" as used herein shall include and collectively refer to: A. Site Plan depicting the location of all buildings, entryways, parking areas, and all "hardscape" improvements; B. Landscape Plan depicting each planting to be used in the Redevelopment Project; C. materials to be used on buildings and facades, driveways, and walkways; D. a lighting plan showing each lighting fixture to be used and its location; E. a detail of each Sign to be placed in the Redevelopment Area including Tenant identification signs or criteria therefor; F. color palette for the entire Redevelopment Project; and and and G. a detailed schedule of when the Village Green Improvements, the TIF Improvements, and each specific building depicted on the Site Plan will be built. C W DATNELKGROVE GREE3.0 C 03113197 12:35 PM 17 The Village has adopted Ordinance No. 2542, attached hereto as Exhibit D and made a part hereof, approving the Plans. The Redevelopment Project shall be built in strict accordance with the Plans. 4.04 Developer Financing. Developer has represented to the Village as an inducement to the Village to enter into this Agreement that Developer will use its best efforts to obtain a construction loan (the "Loan") from a commercial construction lender (the "Lender"). The proceeds of the Loan will be sufficient to pay the Village for the purchase of Property, and to construct the Commercial Center. The proceeds of the Loan will be disbursed through a Construction Escrow Agreement (the "Loan Escrow") with Near North Title Insurance Company, in substantially the same form attached hereto as Exhibit E. The Village, Lender and Developer shall each be a party to the Loan Escrow, and all disbursements for the Commercial Center, the TIF Improvements and the Village Green Improvements shall be made pursuant to the Loan Escrow. 4.05 Village Financing. A. TIF Improvements: Village has requested that Developer construct the Commercial Center with the upgraded features (the "Upgrades") listed in Exhibit F attached hereto, including increased landscaping, decorative lighting, upgraded facades, and decorative paving, all of which total Two Million, Twenty -Nine Thousand, Four Hundred Seventy -Five Dollars ($2,029,475.00). In consideration of Developer constructing the Upgrades, Village hereby agrees and covenants to make available the funds necessary to construct the TIF Improvements listed in Exhibit G attached hereto in an amount not to exceed $2,029,475.00. However, to the extent the actual cost of the Upgrades are less than the $2,029.475.00 depicted on Exhibit F, the Village shall have the right to reduce on a dollar -for -dollar basis the amount of TIF Improvements MAELKGROVEUGREE3.DOC 03 M7 <-.28 PM I& funded by the Village. The Developer shall submit certified costs to the Village from time to time to verify the costs of the Upgrades. B. Village Green Improvements. The Developer has agreed to construct the Village Green Improvements as shown in the Plans and listed on Exhibit G in an amount not to exceed One Million, Three Hundred Fifty -Seven Thousand Dollars ($1,357,000.00). To the extent the actual cost of the Village Green Improvements is less than $1,357,000.00, the Village shall be entitled to 100% of the cost savings. C. Reallocation of Costs: Developer shall have the right to reallocate among line items on Exhibit G with the following exceptions: Developer shall not have the right to reallocate dollars between TIF Improvements Funds and Village Green Improvements; and Developer shall not have the right to allocate any line item which would result in a material change in the Plans without first obtaining the consent of the Village. All payments shall be made subject to the terms and conditions of the Loan Escrow. D. Disbursements of Funds. The Village shall have no obligation to fund any disbursement request for a TIF Improvement unless and until the Developer has expended not less than Ten Million Dollars ($10,000,000.00) in equity and Loan proceeds on the Commercial Center, or if the Developer is in Performance Default, as defined in Paragraph 7.04 of this Agreement. 4.06 Construction Contract and Disbursements. Developer shall solicit competitive bids from no less than three general contractors for the construction of the Redevelopment Project. Developer shall then negotiate a contract (the "Construction M.IELKGROVE GREE3 DOG 0311 M7426 PM ,e Contract") with the general contractor submitting the lowest responsible bid (unless otherwise agreed to by the Village) for the construction of the Redevelopment Project. The Village hereby acknowledges that the Grocery Store may be constructed by the Grocery Store tenant using its own contractor, and therefore would not be a part of the Construction Contract. Developer shall submit the Construction Contract to the Village for its reasonable review, ten (10) business days prior to Developer's intended execution. The Construction Contract shall provide for specific dollar allocations for the costs to be incurred in constructing specifically: the Commercial Center, the TIF Improvements and the Village Green. The Construction Contract will provide for all payments due and owing to be paid through the Loan Escrow, and the Construction Contract shall be subject to the terms and conditions of this Agreement. The Construction Contract shall further provide for retainage of not less than 10%D of the total cost of the TIF Improvements and the Village Green Improvements and for liquidated damages in the event of general contractor default. The Village shall have no obligation or liability under the Construction Contract to fund any payment other than TIF Improvements and the Village Green Improvements listed in Exhibit G. The Construction Contract shall expressly provide for "self-help" remedies for the Village to complete the Village Green Improvements and the TIF Improvements in the event of Developer or general contractor default. "Self-help" remedies shall include: the Village's right to enter the Property and complete the TIF Improvements to the Commercial Center; and, the right to hire alternate contractors to complete the TIF Improvements and the Village Green Improvements. 4.07 Commencement and Completion of Improvements. Developer hereby agrees and covenants to commence construction on or before July 1, 1997. For the purpose of this Paragraph, "Commencement of Construction" shall mean the obtaining C:W-DATA%ELKGROVEIAGREE3. DOC allIMT 1235 PM T7 of a building permit for the Grocery Store and the Drug Store. Developer shall complete construction in accordance with the following schedule: A. Anchor Tenants completed on or before July 31, 1998; B. Other retailers/users which, together with the Anchor Tenants, comprise a total of not less than 125,000 square feet, completed on or before July 31, 1998; C. Landscaping completed on or before July 31, 1998; D. Village Green Improvements completed on or before July 31, 1998; E. TIF Improvements completed on or before July 31, 1998. For the purposes of this Paragraph, the "completion" of a building means that the Village has issued an occupancy certificate for the building or that the building is unleased but available for occupancy. 4.08 Building, Subdivision Codes. The Parties acknowledge and agree that the contemplated uses and occupancies of the Commercial Center shall comply with all federal, state and Village building codes, subdivision, zoning, environmental and other developmental regulations and that the Commercial Center shall be constructed in compliance with all such codes and regulations. 4.09 Utilities and Fees. The Village hereby agrees that Developer shall have the right to connect any and all water, sanitary and storm sewer lines constructed in the Redevelopment Project Area to Village utility lines existing at or near the perimeter of the Redevelopment Project Area. The Village agrees that Developer shall be obligated to pay, in connection with the development of the Redevelopment Project Area, only those water, sanitary sewer, building permit, engineering, inspection, and other fees CU/-DATAIELKGROVE GREE3. DOC 03/13181/2:35 PM 21 and charges of general applicability. Developer further acknowledges that Developer shall be required to obtain any permits or approvals from all appropriate governmental and regulatory agencies required prior to making any utility connections. 4.10 Approvals and Permits. The Village agrees to provide Developer with assistance with respect to obtaining building permits from the Village, and any permits or approvals required from any governmental agency, whenever reasonably requested to do so, notwithstanding anything in the Village Zoning, Subdivision or other Ordinances to the contrary: A. The Village's Director of Engineering and Community Development may, within his or her reasonable discretion, authorize the removal of foundations, sidewalks, and the parking lot currently existing on the Property as contemplated by the Plans and this Agreement prior to Final Plat approval. The Developer can obtain, and the Village's Director of Engineering and Community Development may issue, earth moving and infrastructure installation construction permits at the Developer's risk prior to Final Plat approval. In each case, the infrastructure which may be installed shall be those particular infrastructure components which have received final engineering review and approval of the Director of Engineering and Community Development and other applicable Village staff. B. The Developer can obtain an excavation/foundation permit for a building at the Developer's risk after Preliminary but before Final Plat approval, within the reasonable discretion of the Director of Engineering and Community Development. C VA-DATAIELKGROVEUGREE3. DOC 03M3N7 1295 PM 22 C. Provided that the Developer is in compliance with the terms of this Agreement, the Village shall issue within fifteen (15) business days of the date of application therefor or within fifteen (15) business days of receipt of the last of any documents and information required to support such application, whichever is later, each building permit and all other permits necessary or desirable to develop the Redevelopment Project as set forth herein. Developer shall pay all applicable fees upon issuance of the permit being applied for; however, the Village shall waive all fees for permits for the construction of the Village Green Improvements. If the application for a building permit is disapproved, the Village shall, within fifteen (15) business days, provide the applicant with a statement in writing specifying the reasons for denial of the application including specification of the requirements of law which the application and supporting documents fail to meet. Subject to Developer's compliance with the provisions of this Agreement, the Village agrees to issue such building or other permits upon the applicant's compliance with those requirements of law so specified by the Village within ten (10) business days of re -submittal of the corrected fees, documents, or information. 4.11 No Liens. Developer agrees that no mechanics' , or other liens shall be established or remain against the Redevelopment Project, or the proceeds of the Loan, or the Village funds for the TIF Improvements and the Village Green Improvements, or for labor or materials furnished in connection with any acquisition, construction, additions, modifications, improvements, repairs, renewals or replacements so made. However, Developer shall not be in Default if mechanics' or other liens are filed or established and Developer contests in good faith said mechanics' liens, posts a bond or other security with a title company insuring over said lien, and in such event may permit the items so contested to remain undischarged and unsatisfied during the period CYA-OAT�I LKG OVeAGKMDOC =1=7 12 M PM W of such contest and any appeal therefrom. Developer hereby agrees and covenants to indemnify and hold harmless the Village in the event any liens are filed against the Commercial Center as a result of acts of Developer, its agents or independent contractors. 4.12 Indemnity. The Developer releases the Village from, and agrees that the Village shall not be liable for, and indemnifies the Village against all liabilities, losses, damages (including reasonable attorney's fees), causes of action, suits, claims, costs and expenses, demands and judgments of any nature imposed upon or asserted against the Village on account of: (i) any loss or damage to property or injury to or death of or loss by any person that may be occasioned by any cause whatsoever pertaining to the acquisition and construction of the Redevelopment Project; (ii) any action arising under the construction contracts related to the Redevelopment Project or any related document, or arising from any act or failure to act by the Developer, or any of its agents, contractors, servants, employees or licensees; (iii) violation of any law, ordinance or regulation affecting the ownership, occupancy or use of the Redevelopment Project by the Developer or its agents; (iv) any claim or action or proceeding with respect to the matters set forth in subparagraphs (i), (ii), and (iii) above brought thereon. Nothing contained herein shall be construed as an obligation of the Developer to indemnify or release the Village for its negligent or willful acts. In case any action or proceeding is brought against the Village in respect of which indemnity may be sought hereunder, the Village shall give notice of that action or proceeding to the Developer, and the Developer upon receipt of that notice shall have the obligation and the right to assume the defense of the action or proceeding; provided, that failure of the Village to give that notice shall not relieve the Developer CW-DATAI LKGROVMGREE3 DOG =13A1112:35 PM 24 from any of its obligations under this Paragraph unless that failure prejudices the defense of the action or proceeding by the Developer. At its own expense, the Village may employ separate legal counsel and participate in the defense. The Developer shall not be liable for any settlement without its consent. The indemnification set forth above is intended to and shall include the indemnification of all elected officials, directors, officers, attorneys, accountants, financial advisors, staff and employees of the Village. That indemnification is intended to and shall be enforceable by the Village to the full extent permitted by law. 4.13 Insurance, and Performance, Labor and Material Payment Bonds. A. Bonds. Village hereby agrees that except as required pursuant to Paragraph 4.14 hereof, Developer shall not be required to provide performance, labor, and material bonds for the Redevelopment Project. B. Property Insurance, The Developer shall at all times during the construction period maintain at its sole cost and expense, or cause the contractor under the construction contract to maintain, in full force and effect a policy or policies of Builder's Risk -Completed Value Form Insurance insuring the Redevelopment Project against fire, lightning and all other risks covered by the "All Risk" property policy then in use in the State of Illinois to the Full Insurable Value of the Redevelopment Project (excluding off-site and sitework, underground sewers and water mains, demolition, test borings and parking areas) (subject to reasonable loss deductible provisions not to exceed Fifty Thousand Dollars [$50,000.001). Prior to or simultaneously with the expiration of said Builder's Risk Insurance, the Developer shall at its sole cost and expense obtain and shall maintain, a policy or policies of insurance to the Redevelopment Project Cod-OATAIELKGROVEI GREE3. DOC 03/13/97 12 35 PM 25 constantly insured against loss or damage by fire, lightning and all other risks covered by the "All Risk" property policy then in use in the State of Illinois in an amount equal to the Full Insurable Value thereof, excluding same items as above (subject to reasonable loss deductible clauses not to exceed $50,000.00). The insurance required pursuant to this Paragraph shall be maintained at the Developer's sole cost and expense, and shall be maintained with a generally recognized responsible insurance company or companies authorized to do business in the State of Illinois as may be selected by the Developer. Certificates of the insurance policies required under this Paragraph, each bearing notations evidencing payment of the premiums or other evidence of such payment, shall be delivered by the Developer to the Village. In the event of loss or damage to the Redevelopment Project, the net proceeds of property insurance carried pursuant to this Paragraph shall be used to reconstruct the Redevelopment Project and to keep all real estate taxes due current. C. Public Liability Insurance. The Developer shall at its sole cost and expense maintain, or cause to be maintained, public liability insurance and auto liability insurance (including but not limited to coverage for all losses whatsoever arising from the ownership, maintenance, operation or use of any automobile, truck or other motor vehicle), under which the Village shall be an additional insured on a primary and non- contributory basis, in an amount not less than One Million Dollars ($1,000,000.00) in primary coverage with Five Million Dollars ($5,000,000.00) in excess for bodily injury (including death and property damage) in any one occurrence on a per project basis. D. Workers' Compensation Insurance. The Developer agrees to maintain or cause to be maintained by all contractors working on the Redevelopment Project, the Workers' Compensation coverage required by the laws of the State of Illinois. CNA-DATAIELNGROVENGREEIDOC 03/1=7 12:75 PM K. -I E. Certificates. Upon the Village's written request, the Developer shall deliver to the Village certificates evidencing the liability insurance policies required herein, naming the Village as an additional insured, with provisions for notification to the Village in the event of cancellation 4.14 Public Improvements. Nothing in the Agreement shall be construed as relieving or otherwise modifying Developer's obligation to secure its construction, completion and warrantee of required public improvements in accordance with the Village's subdivision control and development ordinances. 4.15 No Other Construction Obligations. Notwithstanding any provisions of any Village Ordinance to the contrary, except as expressly provided for in the Plans and this Agreement, Developer shall not be required to plan, build or pay the cost of any other improvements in or out of the Redevelopment Project Area, including landscaping or contributions therefor. V Village Financing and Taxes 5.01 Real Estate Taxes. Developer hereby acknowledges that it is the intention of the Village to use TIF to reimburse itself for land costs in excess of the Final Purchase Price, and the costs of the TIF Improvements and the Village Green Improvements as permitted by the Act. Accordingly, the accurate assessment and timely payment of real estate taxes is essential to the Village. Therefore, the Developer hereby agrees and covenants: C:VA.DATA\ELKGROVE GREE3 DOC 0311397 12:95 PM 27 A. The Developer hereby agrees that to the extent it is obligated to pay any portion of the real estate tax bills for the Commercial Center, it shall pay such taxes promptly on or before the due date of such tax bills and to use reasonable and diligent efforts to require all tenants in the Commercial Center and purchasers of property in the Commercial Center to covenant to timely pay real estate taxes. Developer or the retailers doing business in the Shopping Center shall have the right to pay said real estate taxes under protest, subject to the conditions of this Paragraph 5.01. B. Developer hereby consents to be bound by the following covenant and to incorporate same into all leases or sales agreement for the Commercial Center. "For a maximum of twenty-three (23) years, or for so long as the Property is located in a tax increment finance district, and upon full assessment of each improvement, Developer for tenant/user] is a sophisticated Developer [or retailer] doing business in Cook County, and as such, has acknowledged and agreed that the taxes on the property [demised premises] will not be less than $4.00 per square foot of gross floor area (the 'Base Taxes"). Developer [retailer] hereby agrees to pay the Base taxes annually." Developer further covenants to use reasonable and diligent efforts to enforce all covenants and obligations as to the assessment and payments of real estate taxes under any, sales agreements and leases with the retailers doing business in the Commercial Center. C'.W-DATAIELKGROVEI GREE3. DOC ONI W 12'.35 PM R-1 5.02. Future Village Financing. At some future date, the Village may elect to market a TIF Obligation, pursuant to the Act, to third parties. In the event of such election, Developer hereby agrees and covenants that it will participate and cooperate to the fullest extent possible, including assisting with the preparation of offering documents and disclosure items, including but not limited to providing for disclosure of lease terms, terms of permanent financing, etc., related to the Commercial Center. However, in no event shall Developer incur any cost or liability in assisting with the Village Financing. 5.03. Right to Inspect. Developer agrees that, up to one hundred eighty (180) days after completion of the Redevelopment Project, the Village, with reasonable advance notice and during normal business hours, shall have the right and authority to review, audit, and copy, from time to time, Developer's books and records relating to the TIF Improvements and the Village Green Improvements funded by the Village hereunder (including all general contractor's sworn statements, general contracts, subcontracts, material purchase orders, waivers of lien, paid receipts and invoices) in order to confirm that the TIF Improvements and Village Green Improvements were properly invoiced and paid for; and that the cash -on -cash return as provided for in Paragraph 3.06 was accurately computed. VI AUTHORITY 6.01. Actions. The Village represents and warrants that upon application of Developer it has taken, or will take, such action(s) as may be required and necessary to process the amendments, variations, and special use approvals relating to its zoning subdivision and building ordinances and its other ordinances, codes and regulations, C-U.1-DATAIELKGROVEI GREE3 DOC 03/1397 12:35 PM 29 as may be necessary or proper in order to insure the development of the Commercial Center in accordance with the Plans and to enable the Village to execute this Agreement and to carry out fully and perform the terms, covenants, agreements, duties and obligations on its part to be kept and performed as provided by the terms and provisions hereof. 6.02. Powers. The Village hereby represents and warrants that the Village has full constitutional and lawful right, power and authority, under currently applicable law, to execute and deliver and perform the terms and obligations of this Agreement, including but not limited to the right, power and authority to finance the TIF Improvements and the Village Green Improvements and to convey the Property to Developer. Ac- cordingly, this Agreement constitutes the legal, valid and binding obligation of the Village, enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. 6.03. Authorized Parties. Whenever under the provisions of this Agreement and other related documents and instruments or any supplemental agreement, request, demand, approval, notice or consent of the Village or Developer is required, or the Village or Developer is required to agree or to take some action at the request of the other, such approval or such consent or such request shall be given for the Village, unless otherwise provided herein, by the President or his designee and for Developer by any officer of Developer so authorized (in any event, the officers executing this Agreement are 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 hereto shall have any complaint against the other as a result of any such action taken. CW-OATAXELKGROVE GREE3 DOC O3 IW7 12.35 PM 30 6.04. Developer's Authority. The Developer hereby represents and warrants that it has the lawful right, power and authority, under its operating agreement and the laws of the State of Illinois, to execute and deliver and perform the terms and obligations of this Agreement, including but not limited to the right, power and authority to obtain the Loan, acquire the Property and construct the Redevelopment Project. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the Developer, requires no further action or approval of the Developer to be enforceable and does not violate any other obligation, agreement or covenant of the Developer. As a condition to Closing, Developer will deliver an opinion of independent counsel opining as to the enforceability of this Agreement against the Developer. VII GENERAL PROVISIONS 7.01. No Joint Venture or Partnership. Nothing contained in this Agreement shall be construed as creating either a joint venture or partnership relationship between the Village and Developer. 7.02. 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 coop- eration. 7.03. Termination Events. For the purposes of this Agreement, a "Termination Event" shall be an event for which a Party has the right to unilaterally terminate this Agreement. To exercise its right of termination, the terminating Party shall, within thirty CN-DATNELKGROVEUGREE3.DOC OW13187 12:35 PM 31 (30) days of learning of the occurrence of a Termination Event, notify the non - terminating Party in writing that it is exercising its right to terminate this Agreement. In the event the Party with the right to terminate fails to exercise its right within said thirty - day period, the right to terminate shall expire. For the purposes of this Agreement, a Termination Event shall be defined as follows: A. Any one of the events listed below shall constitute a Developer Termination Event giving the Village the right to terminate this Agreement : 1. Failure to post the Letter of Credit; and 2. Failure to deliver executed leases for the Anchor Tenants on or before March 17, 1997; and B. Any one of the following events listed below shall constitute a Village Termination Event giving the Developer the right to terminate this Agreement. 1. Failure to reasonably approve the Construction Contract; or 2.- Failure to complete the demolition and remediation on the Property in accordance with this Agreement. C:W--DATA ELKGROVENGREE]. DOC OW13/B7 11.35 PM 32 7.04 Default. For the Purposes of this Agreement, the occurrence of any one of the following events shall constitute a "Default': A. For the Developer, a Default shall mean one of the following: 1. Failure to obtain the Loan; 2. Failure to negotiate and execute the Construction Contract; 3. Failure to complete the Redevelopment Project in accordance with the Plans and this Agreement; 4. Leasing or Sale of the Property or any portion thereof to a user other than an Agreed Tenant or otherwise in violation of this Agreement; 5. Failure to pay the Base Taxes; and 6. Failure to provide the assistance to the Village on the TIF Financing as provided for herein. B. The following shall constitute a Default by Village: 1. Failure to convey title to the Property in accordance with this Agreement; 2. Failure to fund payments for the soil remediation in accordance with Paragraph 3.08; 3. Failure to fund a disbursement request for payments for the Village Green Improvements or the TIF Improvements in accordance with the Loan Escrow and this Agreement; or 4, Failure to issue a building permit in accordance with Village Codes and this Agreement.. 7.05, Remedies. Before any failure of any Party of this Agreement to perform its obligations under this Agreement shall be deemed to be a Default of this Agreement, C:W-DATA%ELKGROVE GREE3 DOC =13M7 12'.35 PM 33 the Party claiming such failure shall notify, in writing, the Party alleged to have failed to perform of the alleged failure and shall demand performance. With the exception of the delivery of the Letter of Credit, no breach of this Agreement may be found to have occurred if the Default has been remedied to the reasonable satisfaction of the complaining Party within thirty (30) calendar days of the receipt of such notice. tice. Developer hereby waives any right of notice and cure period on the delivery of the Letter of Credit. Once notice has been given and the defaulting Party has failed to cure the Default, the non -defaulting Party may seek the following remedies: A. In the event of a Village Default, the Developer may seek, as its sole and exclusive remedy, the remedy of specific performance; B. In the event of a Developer Default, the Village may draw on the Letter of Credit and seek specific performance when feasible, and seek any other damage available in a court of law or equity. 7.06. Delay and Force Majeure. For the purposes of any of the provisions of this Agreement, neither the Village nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of, or default in, its obligations under this Agreement in the event of any delay caused by damage or destruction by fire or other casualty, shortage of material, unusually adverse weather conditions such as, by way of illustration and not limitation, severe rain storms or below freezing temperatures of abnormal degree or quantity for an abnormal duration, tornadoes and other events or conditions beyond the reasonable control of the Party affected which in fact interfere with the ability of such Party to discharge its respective obligations hereunder. MIELKGROVEUGREE3.DOC MU197 4,26 PM 34 However, the failure of Developer's contractors or sub -contractors to perform shall be not be a force majeure for the purposes of this Agreement. 7.07. Amendment. This Agreement, and any exhibits attached hereto, may be amended only by the mutual consent of the Parties, by the adoption of an ordinance or resolution of the Village approving said amendment, as provided by law, and by the ex- ecution of said amendment by the Parties or their successors in interest. 7.08. No Other Agreement. 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. 7.09. Severability. If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants or portions of this Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are declared to be severable. 7.10. Certificate of Completion. Promptly upon completion of the Commercial Center, the TIF Improvements and the Village Green Improvements, the Village shall furnish the Developer a certificate (the "Certificate of Completion") so certifying. For the purposes of this Paragraph "Completion" shall mean: (i) that the Developer has completed, or caused to be completed, no less than 140,000 square feet of retail and movie theater buildings; (ii) that the Developer has completed the construction of the TIF Improvements and the Village Green Improvements; (iii) that the Developer has completed all other improvements as approved in the Plans; (iv) that the Developer has C:W-DATMELKGROVEI GREE3 DOC 03113W 12.35 PM 35 discharged all financial obligations pursuant to this Agreement and the Construction Contract; and (v) that all construction has been completed in accordance with the Plans and the specific building plans presented to and approved by the Village prior to the issuance of the building permits, and otherwise constructed in accordance with Village ordinances. Except as provided for in Paragraphs 3.06 and 5.01 regarding the payment of the Final Purchase Price and real estate taxes, the Village issuance of the Certificate of Completion shall release the Developer from any further obligation or liability under the terms of this Agreement in regards to the construction, leasing and completion of the Redevelopment Project. 7.11. Form of Certificate. The Certificate of Completion shall be in a recordable form, and shall be a conclusive determination of satisfaction and termination of the covenants in this Agreement with respect to the obligations of the Developer and its successors and assigns in regards to the construction and completion of the Redevelopment Project. Upon written request by the Developer for a Certificate of Completion, the Village shall have fifteen (15) business days after receipt of same to provide the Developer with certification or a written statement indicating in detail how the Developer has failed to complete the construction in conformity with the Plans, the specific plans -submitted for the purpose of obtaining building permits, and this Agreement, or is otherwise in Default, and what measures or acts will be necessary, in the opinion of the Village, for the Developer to take or perform in order to obtain the Certificate of Completion. C:W-W&�LKGROVEIAGREE3DOC 03/13M7 12:W PM 36 7.12. Assigns. This Agreement (including without limitation the provisions of Paragraph 5.01 relating to real estate taxes and sales taxes) shall be binding upon the Parties and their respective successors and assigns. Nothing herein shall in any way prevent the alienation or sale of the Property, or any portion thereof, by the Developer, nor shall anything herein be construed as limiting any rights of any lender or equity partner or investor; provided, however, prior to the issuance of the Certificate of Completion, the Developer shall not transfer the Property (except as hereinafter provided for in this Paragraph 7.12) or assign its rights or duties and obligations pursuant to this Agreement without the prior written consent of the Village in its sole discretion. However, Village consent shall not be required to assign this Agreement as additional collateral to Developer's Lender, or to assign this Agreement to an entity which is controlled by the Principals of the Developer. Once said consent is obtained or an assignment not requiring consent is made, any assignee shall expressly assume in writing the obligations of the Developer hereunder, and shall furnish the Village a copy of such assumption, in which case the Developer shall be relieved of its obligations. Anything contained in this Paragraph 7.12 to the contrary notwithstanding, no consent shall be required prior to selling, leasing or transferring any parcel of property within the Commercial Center to commercial and retail users for development and use consistent with this Agreement, the Plans, and Village ordinances. Once the Certificate of Completion has been issued, the Developer may transfer the Property and assign any of its rights under this Agreement without the prior consent of the Village. 7.13. Illinois Law. This Agreement shall be construed in accordance with the laws of the State of Illinois. C.W-DATAPLKGROVEI GREE3 DOC 0311397 12:35 PM 37 7.14. Notice. All notices and requests required pursuant to this Agreement shall be sent as follows: To Developer: Hamilton Partners 300 Park Boulevard Itasca, Illinois 60143 Attn: James Sheridan With copies to: J. Kelly Bufton D'Ancona & Pflaum 30 North LaSalle Street, Suite 2900 Chicago, Illinois 60602 To the Village: Village of Elk Grove Village 901 Wellington Avenue Elk Grove, IL 60007-3499 Attn: Village President, and Attn: Village Manager With copies to: And: George Knickerbocker Samelson, Knickerbocker & Payne 575 Lee Street Des Plaines, IL 60126 Mary Riordan Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 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. C'N-OATMELKGROVEUGREE3 DOC 0311397 12.35 PM 7.15. 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. 7.16. Recordation of Agreement. The Parties agree to execute and deliver the original of this Agreement or a Memorandum thereof in proper form for recording with the Cook County Recorder of Deeds. 7.17. 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. 7.18. Estoppel Certificate. Village shall upon fifteen (15) days written notice from Developer or such other requesting Party, acknowledge and deliver to the requesting Party a statement in writing (i) certifying that this Redevelopment Agreement is unmodified and in full force and effect and (ii) acknowledging that Developer is not in Default hereunder. Any such statement may be relied upon by any prospective purchaser, tenant, subtenant, assignee or encumbrance of all or any portion of the Property. The Village's failure to deliver such statement within such time shall be deemed conclusive upon such requesting Party's statement that this Redevelopment Agreement is in full force and effect without modification, and that Developer is not in Default hereunder. CMI-OATAIELKGROVVAGREE3. DOC 01/13/87 12.35 PM 39 IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation ATTEST: Its Presi nt Clerk ATTEST: Its C'.W-DATMELKGROVEIAGREE3 DOC 73/139712.35 PM ELK GROVE TOWN CENTER, L.L.C. 0 40 STATE OF ILLINOIS SS. COUNTY OF COOK) I, Mary Riordan, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Dennis Gallitano, the President of Elk Grove Village, an Illinois municipal corporation, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such President appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act and as the free and voluntary act of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this 11 d of March, 11997. otary Public JAELKGREA6.00C 15 3/1 M7 STATE OF ILLINOIS) ) COUNTY OF COOK) ) SS. I, Mary Riordan, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that James L. Sheridan, a member of the Elk Grove Town Center, L.L.C., an Illinois limited liability company, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such member appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act and as the free and voluntary act of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this 11t y of March, 1 Notary Public JAELKGREA&DOC 16 3/18197 EXHIBITS Exhibit A Legal description Exhibit B Form of Letter of Credit Exhibit C Reciprocal Easement Agreement Exhibit D Ordinance Approving Plans Exhibit E Loan Escrow Agreement Exhibit F List of Requested Upgrades Exhibit G List of TIF and Village Green Improvements C:1M-DRAEIKGROVMGREE3 DOC 03/1 387 12,W PM I 0!llll lid Iia��iN+EO Exhibit B BANK LETTERHEAD" IRREVOCABLE STANDBY LETTER OF CREDIT NO. BENEFICIARY VILLAGE OF ELK GROVE VILLAGE 901 Wellington Avenue Elk Grove Village, Illinois 60007-3499 Ladies and Gentlemen: APPLICANT DATE: AMOUNT OF CREDIT:$ 100,000 EXPIRY DATE: We hereby open our Irrevocable Standby Letter of Credit in your favor available by your draft on us at sight, signed by the Village Administrator, Village of Elk Grove Village, bearing the clause "Drawn under (Name of Bank) Letter of Credit No. effective (Date) " accompanied by the following documents: This original Letter of Credit. A statement in duplicate signed by the Village Administrator, Village of Elk Grove Village, reading as follows: "Elk Grove Town Center, L.L.C., has failed to comply with the Redevelopment Agreement entered into by and between the Village of Elk Grove Village and Elk Grove Town Center, L.L.C., on or about March 11, 1997. The funds claimed under this Letter of Credit are for the payment the liquidated damages in accordance with the Redevelopment Agreement referred to above, together with any amendments thereto approved by the Village and/or reimbursement to the Village of expenses or other costs as set forth in the R d 1t t" A e eve opmen greemen . BENEFICIARY APPLICANT VILLAGE OF ELK GROVE VILLAGE 901 Wellington Avenue Elk Grove Village, Illinois 60007-3499 AMOUNT OF CREDIT:$ 100.000 EXPIRY DATE: Page Two (Name of Bank) will provide the Village of Elk Grove Village with thirty (30) days prior written notice, by certified mail, return receipt, of the termination of the Letter of Credit. This Letter of Credit shall not expire except upon giving such thirty (30) days notice. Once notice is given, this Letter of Credit shall remain in force not less than an additional thirty (30) days after the date of such notice. Notwithstanding the expiry date provisions set for hereinabove, if the Village of Elk Grove Village notifies Elk Grove Town Center, L.L.C., that a violation of the Redevelopment Agreement exists, then this Letter of Credit shall remain in force not less than an additional forty-five (45) days after the date of such notice. The form of such violatiorr notice shall be as set forth on Exhibit (A) attached hereto and made a part hereof. We hereby agree with you that all drafts drawn under and in compliance with the terms of this credit shall be duly honored in presentation. In the event that we do not make payouts in accordance with this Letter of Credit and the Village of Elk Grove Village is required to file a lawsuit to compel compliance with this agreement and shall prevail, we will be obligated to pay to the Village of Elk Grove Village its expenses and costs of litigation including attorneys' fees. Except as otherwise expressly stated herein, this credit is subject to the Uniform Customs and Practice for Documentary Credits (1983 Revision) International Chamber of Commerce, Publication 400. Very truly yours, Authorized Signature & Name of Bank "BANK LETTERHEAD" IIRREVOCABLE STANDBY LETTER OF CREDIT NO. DATE: "AHIBIT C RECIPROCAL EASEMENT AGREEMENT THIS RECIPROCAL EASEMENT AGREEMENT ("REA") is made and entered into as of the ^ day of , 1997, by and between ELK GROVE VILLAGE, an Illinois municipal corporation ("Village"), ELK GROVE TOWN CENTER, L.L.C., an Illinois limited liability company, ("Developer), and THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE, COOK COUNTY, ILLINOIS ("Library'). WITNESSETH: WHEREAS, Village is the owner of a certain tract of land (the "Village Tract") legally described in Exhibit A attached hereto and which is currently improved with existing municipal buildings; and WHEREAS, Developer is the owner of a certain tract of land (the "Developer Tract") legally described in Exhibit B attached hereto which contains certain retail improvements and is to be further improved in accordance with the site plan ("Site Plan") attached hereto as Exhibit D; and WHEREAS, Library is the owner of a certain tract of land (the "Library Tract") legally described in Exhibit C attached hereto which is improved with a library building ("Library Building"); and WHEREAS, located on the Library Tract, the Village Tract and the Developer Tract is an area referred to as the "Plaza Area" as depicted on Exhibit D attached hereto; and WHEREAS, the Village Tract, the Developer Tract, and the Library Tract (individually, a "tract" or "Tract" and collectively, the "Tracts") are contiguous and adjacent as shown on the Site Plan, and located within the Village of Elk Grove, Illinois (the "Village"); and WHEREAS, pursuant to Article VII, Section 10 of the Constitution of the State of Illinois, the Library has the power to enter into agreements with other units of government and private parties; and WHEREAS, this Agreement will increase the Library's visibility and use within the community, and will also enhance the aesthetics of the Library setting; and WHEREAS, the signatories hereto (individually, a "Party" and collectively, the "Parties") intend to develop and operate their respective Tracts independent of one another, but with certain common rights and elements; and in order to effectuate the common and independent use and operation thereof, they desire to grant to each other certain reciprocal easements in, to, over and across their respective Tracts and set forth other rights and obligations. NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, and in furtherance of the Parties' understanding, it is agreed as follows: 1. Ingress and Earess: Parkin A. Each Party hereby grants and conveys to each other Party for its use and for the use of all tenants, licensees, subtenants, mortgagees and concessionaires of a Tract from time to time and all officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, and invitees of the foregoing ("Permittees"), in common with others entitled to use the same, a non- exclusive, perpetual easement, for the passage of passenger vehicles, delivery trucks, and emergency vehicles over and across the parking and driveway areas of the grantor's tract, and for the passage and accommodation of pedestrians over and across the parking, driveway and sidewalk areas of the grantor's tract, as the same may from time to time be constructed and maintained for such use. Upon reasonable notice to the other Parties (except to an emergency, in to prevent acquisition of prescriptive which event no notice is required), a Party may temporarily close off its portion of the prescrarkingiptive area and driveway area (t) for the minimum time legally necessary p the months of November (t) Each Party reserves the right at any time rights, and n in order le perform repairs n maintenance, but not during or December (unless required for emergency repairs)erson who is not a Permittee from using its and from time to time to exclude and restrain any p uld portion of the parking, driveway and sidewalk areas. No fence or other barrier which ve vehicular or travel shall erected or unreas�ct�f prevent or exclusive of limitedcurb ng and other permittedwithin oacross parking areas or driveways, in the reasonable that forms of judgment of is Village, to temfporarilyrlcaosesoffltheaarea! endicated one ExhibityD to accommodate emergency the ingress vehicles. The Parties acknowledge that one of the municipal buildings located on the Notwithstanding anything to the contrary Village Tract is a fire station and that, as a result, emergency vehicles will be utilizing and egress rights granted hereby as necessary. ortion of the Village Tract for i contained herein, the Village shall be entitled to utilize all or any p activities and fairs as the Village, in its sole and absolute discretion, shall deem such outdoor act necessary or desirable. B. The Parties shall use commercially reasonable efforts to ensure that the parking and driveway areas located on their respective Tracts shall be free and clear of obstructions and interference andand shall be maintaemergency vehicles ined in all allow fneat and orderly cgnior the free flow of t o and la goods ate ofpassenger drepa s. For purposes of this REA, other commercial or non-commercial vehicles, or, olther include, i ems but wh chbare parked ortrucks, placedain an delivery, service, emergency or other standard vehicles, area other-thanommea truck well or loading dock area and which impede the free flow of traffic i.e., ingress and egress) such that passenger, requirements set or pedestrians cannot reasonably be expected to pass freely. Except for (I} tirresurfacing and other scheduled maintenance and repairs performed Alice anddance with the no fire vehicles), and (ii) matters of public forth below, (it) village emergencies (including p safety, in the event that any such obstruction or interference susceptible of being cleared within ent may take two (2) hours is not cleared within two (a hours notice ri�be village to clear asguch obstructionucoh immediate action ("Self Help Right") as may interference. The Parties shall use reasonable and good faith efforts to stage and sequence any repair or maintenance work to minimize disruptionerforOf m n interferenceand work on the area subject t th business operations. Except in the event of an emergency, any Party p 9 work to be the ing shall provide the other Parties with aschedule any repair o sc pmaintenance work and eshall dsecure mthe thereof at least fifteen (15) days priorce work which approval of the Parties prior to ld performance of such repairs d driveways located therewith, as impact the Tracts or the free flow of traffic. The curb cuts and driveway depicted on Exhibit D. will not be altered or modified without the consent of the Village, not to be unreasonably withheld, delayed or conditioned. C. Village hereby grants and conveys to Developer a non-exclusive, perpetual easement over the "Biesterfield Driveway" as depicted on Exhibit D for the purpose of ingress and egress to the Developer Tract. D. Developer hereby grants and conveys to Village a non-exclusive,epicted on Exhibit D; perpetual easement Developer Tract as d over that portion of the Plaza Area comprised of the however, the Village shall be responsible for all maintenance of the Plaza Area. E. Library hereby grants and conveys to Village a non-exclusive, perpetual easement over the Village Plaza Area for all depicted on Exhibit D; however, portion of all maintenance of the Plaza Area. 2 3153!97 I:\R-0ATkELKGREA6_DCC F. Developer hereby grants and conveys to the Village for its use and the use of the Permittees, in common with others entitled to use the same, a non-exclusive, perpetual easement, for the parking of passenger vehicles on that portion of the Developer Tract indicated on Exhibit D as the "Parking Easement Area". G. Developer hereby agrees to grant and convey to the Village for its use a non-exclusive, perpetual easement for the installation of the Village's outdoor public siren. The siren and the siren easement shall be in a location mutually agreeable to the Village and Developer on the Developer Tract. H. The Library shall have the right to designatethe driveway between Wellington Avenue and the mid -point island located between the two (2) driveways providing access to and from the library parking lot to be a one-way drive going in an easterly direction. The Library shall also have the right to post signage on the Library Tract as needed to create and enforce the one-way drive. For and during the term of this REA, and as a condition to the Library and its Library Tract being bound by this REA, the Village shall adopt such codes or ordinances and take such other action as is necessary to cause the said drvie to be one-way as designated by the Library herein and to enforce such designation by the Village Police Department. I. For purposes herein, persons engaging in the following activities on the parking area and driveways will not be considered to be Permittees: (i) Exhibiting any placard, sign or notice; (ii) Distributing any circular, handbill, placard or booklet; (iii) Soliciting memberships or contributions; and (iv) Parading, picketing or demonstrating. Notwithstanding the foregoing, the owner of any Tract shall have the right to permit any of the foregoing activities on its own Tract. J.. Except in connection with the initial opening of businesses located on the Developer Tract, for a period, not to exceed fourteen (14) days, Developer shall not allow to be placed on the Developer Tract any banners, temporary signage or similar items without first obtaining the approval of the Village as to the location, design and method of attpchment thereof. Provided that any such banners, temporary signage or other similar items shall, in the reasonable judgment of the Village, adhere to the architectural and aesthetic plan of the retail development located on the Developer Tract, the Village shall not unreasonably withhold its consent therefor. K. Developer shall not, without the prior consent of the Village: (i) allow to be placed in any window of any building on the Developer Tract, any illuminated signage; or (ii) allow any outdoor sales to take place on the Developer Tract without outdoor screening consistent with the architectural and aesthetic plan of the retail development located on the Developer Tract; or (iii) allow any commercial delivery vehicle to be parked overnight on the parking area of the Developer Tract (the Village may withhold such consent at its absolute discretion); or (iv) allow the average lighting level on the Developer Tract to exceed a greater lighting intensity than 5.0 foot-candles with the exception of the area indicated as the "6.5 I:rR-OATA1ELKGREA6.DOC 3 3113197 Area" on Exhibit D; the Developer may allow light fixtures in the 6.5 Area which produce an average lighting intensity of not greater than 6.5; foot candles; or (v) allow any dumpster on the Developer Tract which is not screened in a manner consistent with the architectural and aesthetic plan of the retail development on the Developer Tract; or L. Developer may, with the prior consent of the Village, place such seasonal decorations upon the Developer Tract as the Village may approve; provided that, at the election of the Village, Developer shall, at Village's sole cost and expense, install and display such seasonal decorations on the Village and Plaza Area for as long as same are displayed on the Developer Tract. 2. Maintenance. Each Party shall maintain, or cause to be maintained, the parking areas, driveways, Plaza Area and sidewalks on its Tract in a safe, attractive and good state of repair and condition. The minimum standard of maintenance shall be comparable to the standard of maintenance followed in other first-class retail and municipal campus developments of comparable size in the greater Chicago metropolitan area; notwithstanding the foregoing, however, the parking, driveway, fountain and sidewalk areas shall be operated and maintained in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this REA. The maintenance and repair obligation shall include, but not be limited to, the following: A. Maintaining, cleaning and replacing all paved surfaces and curbs in a smooth and evenly covered condition. Such work shall include, without limitation, snow and ice removal, sweeping, restriping, resealing and resurfacing. B. Periodic removal of all papers, debris, filth and refuse, including sweeping to the extent necessary to keep the parking areas and driveways in a first-class, clean and orderly condition. All sweeping shall be performed at appropriate intervals during such times as shall not interfere with the conduct of business or use of the parking areas and driveways by persons intending to conduct business with any person or entity from time to time entitled to the use and occupancy of any portion of a building on a Tract under an ownership right or any lease, sublease, license, concession or other similar agreement ("Occupant"). C. Placing, cleaning, keeping in repair, replacing and repainting any appropriate directional signs or markers, including any handicapped parking signs. D. Maintaining, cleaning and replacing parking area lighting facilities, including lamps, ballasts and lenses. E. Keeping the parking areas and driveways free from any obstructions including those caused by the sale or display of merchandise, unless such obstruction is permitted under the provisions of this REA. F. Maintaining and replacing as necessary to abide by and maintain the standards set forth in that certain landscape plan prepared by Douglas Hills Associates, Inc., dated February 28, 1997, and approved by ordinance number 25-42, any and all landscaping placed or required to be placed on a Tract. Developer acknowledges that the Village has contributed substantial funds in relation to the improvements to be placed on the Developer Tract. Accordingly, in the event that Developer fails to maintain the Developer Tract, or any portion thereof, as required hereby, the Village shall have the right, but not the obligation, after not less than five (5) days prior notice ("Maintenance Notice"), to perform the maintenance obligations of Developer set forth in the Maintenance Notice at Developer's sole cost and expense. In any such event, Developer shall, within ten (10) days of notice from the Village, reimburse the Village for all costs and expenses incurred in relation to the I:Ut-DATAIELKGREA6.D0C 4 3/13/97 performance of Developer's obligations as set forth herein, together with a sum equal to fifteen percent (15%) of such costs and expenses for Village's supervision and administrative costs. Notwithstanding anything contained herein to the contrary, except as hereinafter specifically set forth, Developer shall not have the right of self help against either the Village or Library. Developer's sole and exclusive remedy shall be specific performance. Developer shall have the right, but not the obligation, to remove snow from the Biesterfield Driveway. In the event that Developer shall avail itself of the aforesaid snow removal right, Developer shall not be entitled to any reimbursement for the costs associated therewith, such snow removal being at the sole and exclusive cost and expense of Developer. 3. Insurance. A. Developer and Village (as to its Tract only) shall maintain or cause to be maintained in full force and effect Commercial General Liability Insurance with a combined single limit of liability of not less than Five Million Dollars ($5,000,000.00) for bodily or personal injury or death, and for property damage, arising out of any one occurrence. The Library shall obtain similar coverage with a liability limit of not less than Three Million Dollars ($3,000,000.00). The insurance limit in this Paragraph 3 shall not limit any Party's rights or obligations of indemnity under the provisions of Paragraph 5 hereof. In addition to the foregoing, during any periods that Developer allows alcoholic beverages to be sold for consumption on or at the Developer Tract, Developer shall, in addition to all other insurance which Developer is required to procure pursuant hereto, obtain and maintain, or cause its tenants to obtain and maintain, in full force "dram shop" or liquor liability insurance coverage in an amount of at least Two Million Dollars ($2,000,000.00) naming the Village, Library, and such other parties as Village or Library may designate, as additional insureds. In the event that any government or governmental agency having jurisdiction shall require "dram shop" insurance in relation to the sale of packaged alcoholic beverages, Developer shall, during any periods that Developer allows alcoholic beverages to be sold at, from or on the Developer Tract, obtain and maintain the aforesaid "dram shop' or liquor liability insurance coverage. Said insurance shall comply with all other insurance requirements set forth in this REA. B. All insurance required by this Section 3 shall be procured from companies authorized to do business in the State of Illinois and shall be rated by Best's Insurance Reports not less than A/X. All insurance may be provided under (i) an individual policy covering this location, (ii) a blanket policy or policies which includes other liabilities, properties and locations of such Party; provided, however, that if such blanket commercial general liability insurance policy or policies contain a general policy aggregate of less than Twenty Million Dollars ($20,000,000.00) in Constant Dollars, then such insuring Party shall also maintain excess liability coverage necessary to establish a total liability insurance limit of Twenty Million Dollars ($20,000,000.00) in Constant Dollars, or (iii) a combination of any of the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried by a Party in compliance with this Section 3, such Party shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible exceed Fifty Thousand Dollars ($50,000.00) in Constant Dollars. Each Party agrees to furnish to any other Party requesting the same, a certificate(s) of insurance reasonably satisfactory to such requesting Party, evidencing that the insurance required to be carried by such Party is in full force and effect. "Constant Dollars" means the value at the applicable point in time of the dollars to which such phrase refers. An adjustment shall occur on January 1 of the sixth calendar year following the date of this REA, and thereafter at five (5) year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the denominator of which is the Base Index Number. The "Base Index Number" shall be the level of the Index for the month during which the REA is dated; the "Current Index Number" shall be the level of the Index for the month of September of the year preceding the adjustment year; the "Index" shall be the Consumer Price Index for All Urban Consumers, U.S. I:\R-DATA\ELKGREA6. DOGrJ 3/13/97 City Average, All items published by the United States Department of Labor, Bureau of Labor Statistics (base year 1982-94=100), or any successor index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the Index is materially changed, then the parties shall substitute for the Index comparable statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodical or publication of recognized authority most closely approximating the result which would have been achieved by the Index. The insurance required pursuant to this Section 3 shall include the following provisions: (i) shall provide that the policy may not be canceled or reduced in amount or coverage below the requirements of this REA, without at least thirty (30) days prior written notice by the insurer to each insured and to each additional insured; (ii) shall provide for severability of interests; (iii) shall provide that each of the other Parties to this REA shall be named as "additional insureds" in the respective insurance policies of each Party. (iv) shall provide that an act or omission of one of the insureds or additional insureds which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the other insureds; and (v) shall provide for contractual liability coverage with respect to the indemnity obligation set forth herein. 4. Construction. A. Village shall cause to be constructed the Plaza Area. B. Developer shall construct the retail areas, parking areas, landscaping, sidewalks and other improvements to be located on the Developer Tract as shown on Exhibit D. C. Each of the Parties hereto, subject to the provisions of subsection 4E below, hereby grant and convey to the other Parties and to their respective contractors, materialmen and laborers, a temporary license for access and passage over and across the parking areas of their respective Plaza Areas, as shall be reasonably necessary for the construction referred to above, provided, however, that such license shall be in effect only during periods when actual construction and/or maintenance is being performed and provided further that the use of such license shall not unreasonably interfere with the use and operation of the individual Tracts by others and such license shall not be in effect during the months of October through December, of any year. Prior to exercising the rights granted herein, Developer shall first provide Village with engineering, architectural and construction plans describing the area affected and work to be performed, and shall furnish a certificate of insurance showing that its contractor has obtained insurance. Developer shall give Village and Library at least ten (10) days' prior written notice before commencing such work. Developer shall promptly pay all costs and expenses associated with the work to be performed, shall diligently complete such work as quickly as possible, and shall promptly clean the area, and restore and/or repair the affected portion of the Village Tract, or Library Tract, as the case may be, to a condition which is equal to or better than the condition which existed prior to the commencement of such work. Notwithstanding the foregoing, in the event a material dispute exists between the contractors, laborers, suppliers and/or others connected with construction activities, Village and Library shall have the right to prohibit the contractors, laborers, suppliers and/or others working for Developer from using the area on its Tract. IAR-DATM£LKGR£A6.DOC 6 3(13/97 D. Any and all work performed pursuant to this REA shall be so performed pursuant to all applicable codes and insurance requirements. In the event that any such codes, insurance requirements or the Redevelopment Agreement (as hereinafter defined) shall require a stricter or higher standard, or additional documentation or approvals than that required pursuant to this REA, such stricter or higher standard, or additional requirements, as the case may be, shall control. E. (i) Developer agrees that its construction activities and any activities of its tenants, licensees, concessionaires or other occupants shall not unreasonably interfere with the use, occupancy or enjoyment of any part of the Village Tract or Library Tract. (ii) Developer acknowledges that the construction work to be performed by or on behalf of the Village will interfere or deny the use of the parking areas located on the Developer Tract. The Village and the Developer shall use commercially reasonable efforts to minimize such interference or denial. The Village will not, in the course of the construction work to be performed by or on behalf of the Village, unreasonably interfere with the use, occupancy or enjoyment of the parking area as located on the Library Tract. (iii) Notwithstanding anything to the contrary which may be contained herein, Developer and the Village shall not permit any construction traffic within their respective control to enter the parking area as depicted on Exhibit D located on the Library Tract without the prior written approval of the Library. F. The Developer releases the Village and Library from, and agrees that the Village and Library shall not be liable for, and indemnifies the Village and Library against all liabilities, losses, damages (including reasonable attorney's fees), causes of action, suits, claims, costs and expenses, demands and judgments of any nature imposed upon or asserted against the Village or Library on account of: (i) any loss or damage to property or injury to or death of or loss by any person that may be occasioned by any cause whatsoever pertaining to the acquisition and construction of the Redevelopment Project; (ii) any action arising under the construction contracts related to the Redevelopment Project or any related document, or arising from any act or failure to act by the Developer, or any of its agents, contractors, servants, employees or licensees; (iii) violation of any law, ordinance or regulation affecting the ownership, occupancy or use of the Redevelopment Project by the Developer or its agents; (iv) any claim or action or proceeding with respect to the matters set forth in subparagraphs (i), (ii), and (iii) above brought thereon. Nothing contained herein shall be construed as an obligation of the Developer to indemnify the Village or Library for their negligent acts. In case any action or proceeding is brought against the Village or Library in respect of which indemnity may be sought hereunder, the Village or Library, as the case may be, shall give notice of that action or proceeding to the Developer, and the Developer upon receipt of that notice shall have the obligation and the right to assume the defense of the action or proceeding; provided, that failure of the Village or Library to give that notice shall not relieve the Developer from any of its obligations- under this Paragraph unless that failure prejudices the defense of the action or proceeding by the Developer. At its own expense, the Village or Library may employ separate legal counsel and participate in the defense. The Developer shall not be liable for any settlement without its consent. The indemnification set forth above is intended to and shall include the indemnification of all elected officials, directors, officers, attorneys, accountants, financial advisors, staff and employees of the Village and Library. That indemnification is intended to and shall be enforceable by the Village and Library to the full extent permitted by law. G. Developer agrees that the foregoing construction activities and all work and improvements shall be performed in compliance with all applicable laws, rules, regulations, orders, and ordinances of the city, county, state, and federal government, or any department or agency 1AR-DATA\ELKGREA6. DOC ] 3113/97 thereof, incl new Materials, but not Ii als, and shall mired to the R 5. be Perform edeveloPment occupxhibied are not vaCaint >oreern tm ments. pro v da good safe, wo kgman ke man�lt°nstruction shat) rove remain in a Long Term Tena ore than twelve ed that the utilize cons defrned as aPeraetail tenant haonal9 pe mittadina�efF deft ped), the Village he eons While le occupied and Retail n { are identified ecOfive of this S month Retail Co A. Remedies and efa a lean of not less than twelve ect on 5 � ng at e fountain shall uft. ) months ant's are bre m duration, breach of this REA ante of by any one .Perform any of the Oovehe non ornants of the follow default a of e notice bs anot Pan (the gauonpefan ining ventnshati Oe titute a default and co rtY t claimed, unless y another oDii in which event default rt Non- s of REA with} to failure to defa 9 Pa th, cure within such thirty {30) de uttdeemed to h nablY bel cure Pecifying the to after the as pro def shall not be °annot reasonabl g Party) s rtY {30) da Observe or be go eptly as teasonablthe Y Period ale nd thereafter Occurred, d wlihin such thirtynature Of Control. entna shorter Provisions oifgep Provided howeyefdha any pros80 e tesas t}hepa Y{COmdmen es de Period is section hereof. Notwithstanding rights ranYmOve obstruccure to tOm letion g, d elsewhere 9hpart a expiration of the s REA' such shorterhing tc the Contra in Defaultin obligatlo cure Period for n, to CuresuchDeveloPerthnY {3o) day cure shall dayshe account Of an default by tht the ee Y Non.pefaulfinpenod set forth in (t 0) day per old a to the apeyetoxpense of the Dayment e f money r the shall have theory 6A above, if the conn the ) Provid Per/DefIng part veloPer/D Performanarty 0ce O f s right but not the upon Sad auch s cNn, Defaulting PS eracungio go°d ent the defatul� Pautt is �n ed ss hon ten {lOn d Without once notice rt , ev def any such the notice, so lon asonably faith, shall ha snail constitthe rightute within such ten {but es too aeny buiGong) to g g party Shagiven+ase o°heasne °ecumsian10 ces cure such default not into r Defaultin 0 Ice is give seNic the default the to Parform a have the right to 05sible thereafter' if necess Of its p of the pe any necessa enter u To effectuate Developer/Defaultin Pants. In the oPeNDefaWting pa or furnish an Pon the Develo ectr incurred i g Party shall event that an any. Each Y necessary Per Tract n °pnnection with reimburse the y Non- ch Pa�Y shall s ry mater} days of receipt of de such cur faulting pa alt be responsible made Notwithsta 'demand together wive action ullin rt shall siblasfor Party: is either Withstanding an with rea ' Plus interestg Party for all c cure a default, th DeveloPmen the Village Of thing to the contrasonable documenas Provided De °Sts and expenses mane t shag Onl Library with the n c°ntained iahon suppOrtin in within ten s Y Dever Y have a exce herein Tracts for the Purpose nOwledging that rigt to cue s �t4 d of the plowinn the event that ththe exp pentlit� e0) either e tieing unit Pal p� Pe esrmp g any of the faulting o ght tono -fault whm o 5 curablebyhe by the ld t)ri veway Villa Libra pert} evelo Of obligations of enter Pa C, Shalt be specific sole an °f either the Villa Payment of Party unless a e by any Pant of Pacific Pe rformanceexGusive roma yeforilany 0" Libraror y y a p in wntin any default Y other def e affect anyyo° take action ing by such pan ult under this R ault of time her defa aspect Y and nos EA shall pr°visioncOfified in suchl exr cover Y otheh default. No Waiver shatb teffective Orbindiexpressn Peri nce this R express waiv OnPerioq of other writte Pier ofied r0m 'y g on such S o Orma Of the same provisio bar Period of anyof torbe re waitron Waiver; ythae�nY default or aand/or default DAT Y °they teen Or proms er Of any containault ed th.default Under any y sio !aR- ed i A zLKGREA6,°OC is REA. 0 3nj,97 D. Each Non -Defaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto or any other person violating or attempting to violate or defaulting upon any of the provisions contained in this REA, and to recover damages for any such violation or default. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants or conditions of this REA, or to obtain a decree to compel performance of any such terms, covenants or conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under this REA or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. 7. Notices. All notices, demands and requests (collectively the "notice") required or permitted to be given under this REA must be in writing, sent to each party, and shall be deemed to have been given as of the date such notice is (i) delivered to each Party, (ii) delivered to the then current address of each Party, or (iii) rejected at the then current address of any Party, provided such notice was sent prepaid. The initial addresses of the Parties shall be: To Developer: With copies to: To the Village: With copies to: And: Hamilton Partners 300 Park Boulevard Itasca, Illinois 60143 Attn: James Sheridan J. Kelly Button D'Ancona & Pflaum 30 North LaSalle Street, Suite 2900 Chicago, Illinois 60602 Village of Elk Grove Village 901 Wellington Avenue Elk Grove, Illinois 60007-3499 Attn: Village President, and Attn: Village Manager George Knickerbocker Samelson, Knickerbocker & Payne 575 Lee Street Des Plaines. Illinois 60126 Mary Riordan Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 1:\R-DATA\ELKGR EA6. DOC 9 3/13/97 To the Library: Elk Grove Village Public Library 1001 Wellington Avenue Elk Grove Village, Illinois 60007 Attention: Library President & Library Director With a copy to: Klein, Thorpe and Jenkins, Ltd. 180 North LaSalle Street, Suite 1600 Chicago, Illinois 60601 Attention: E. Kenneth Friker Upon at least ten (10) days prior written notice, each Party shall have the right to change its address to any other address within the United States of America. Each Party shall receive a copy of any notice sent. 8. Binding Effect. The terms of this REA and all easements granted hereunder shall constitute covenants running with the land and shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. This REA is not intended to supersede, modify, amend or otherwise change the provisions of any prior instrument affecting the land burdened hereby, not otherwise in conflict with the provisions of this REA. 9. Counterparts and Signature Pages. This REA may be executed in several Counterparts, each of which shall be deemed an original. The signatures to this REA may be executed and notarized on separate pages and when attached to this REA shall constitute one complete document. This Agreement shall be effective only when all Parties have executed and delivered to each other an executed counterpart. 10. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any Tract or portion thereof to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Party hereto shall inure to the benefit of any third -party person, nor shall any third -party person be deemed to be a beneficiary of any of the provisions contained herein. 11. Amendments and Estoppels. This REA may be amended only by a written agreement signed by all of the then current owners of the Tracts and shall be effective only when recorded in the county and state where the Tracts are located. No consent to the amendment of this REA shall ever be required of any occupant or person other than an owner, nor shall any occupant or person other than the Parties have any right to enforce any of the provisions hereof, except as specifically permitted by the terms of this REA. Each Party shall at any time and from time to time upon not less than thirty (30) days prior written notice from any other Party execute, acknowledge and deliver to the requesting Party a statement in writing (a) certifying that this REA is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this REA, as so modified, is in full force and effect) and (b) acknowledging that there are not, to the requested Party's knowledge, any uncured defaults on the part of the requesting Party hereunder, or specifying such defaults if any are claimed. Any such statement may be relied upon by any prospective purchaser, tenant, subtenant, assignee, or encumbrancer of a Tract. The requested Party's failure to deliver such statement within such time shall be conclusive upon such requested Party (i) that this REA is in full force and effect, without modification except as may be represented by the requesting Party and (ii) that there are no uncured defaults in the requesting Party's performance. 12. Mitigation of Damages, In all situations arising out of this REA, all Parties shall attempt to avoid and mitigate the damages resulting from the conduct of any other Party. Each Party hereto shall take all reasonable measures to effectuate the provisions of this REA. 13. REA Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of this REA shall entitle any Party to cancel, rescind or otherwise terminate this REA. IAR-DATMELKGREM DOC 10 311357 14. Time. Time is of the essence of this REA. 15. No Waiver. The failure of any party to insist upon strict performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies which that Party may have hereunder, at law or in equity and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions. 16. Severability. Invalidation of any of the provisions contained in this REA, or of the application thereof to any person by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person and the same shall remain in full force and effect. 17. Negation of Partnership. None of the terms or provisions of this REA shall be deemed to create a partnership between or among the Parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. No Party shall have the right to act as an agent for another Party, unless expressly authorized to do so herein or by separate written instrument signed by the Party to be charged. 18. Term of this REA. This REA shall be effective upon recordation and shall continue in full force and effect until 11:59 p.m. on December 31, 2050. However, the easement to the Developer for the Biesterfield Driveway, and the easements to the Village for the outdoor siren and the construction, maintenance and use of the Plaza shall survive this document. Except as specifically set forth elsewhere in this Agreement, upon termination of this REA, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this REA, shall terminate and have no further force or effect; provided, -however, that the termination of this REA shall not limit or affect any remedy at law or in equity that a Party may have against any other Party with respect to any liability or obligation arising or to be performed under this REA prior to the date of such termination. 19. Subordination. Developer shall obtain and deliver to Village, simultaneously with the execution hereof, in recordable form, an agreement with any present mortgagee, trustee under any deed of trust, or other party with an interest in the Developer Tract, setting forth that the rights of such mortgagee, trustee or other party are subordinate and subject to this REA. 20. Delegation. Nothing in this REA shall be deemed to prohibit the allocation or delegation of responsibilities and/or obligations pursuant to separate agreements between or among Parties and their respective occupants, provided however, the Party shall remain responsible and liable for the performance of such obligations, and in such event the person to whom such responsibility or obligation is delegated shall be entitled to enforce such responsibilities and obligations as set forth in this REA, and in the case of the Self Help Right referred to in Section 1(B), above, without further consent of the Parties hereto. 21. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their permitted. assignees and designees, and shall be directly enforceable by said Parties, assignees and designees, only. 22. Community Activities. The Village shall have the right, without obtaining the approval of any Party, to utilize the Plaza Area (including the areas adjacent to Retail B and Retail C as indicated on Exhibit D) for such community activities as the Village shall deem necessary or desirable. In such event, the Village shall provide not less than twenty-one (21) days prior notice to the other Parties. The Library shall have the right, after first obtaining the approval of the Village or such other approvals as may be required by law, to utilize the Plaza Area (including the areas adjacent to Retail B and Retail C as indicated on Exhibit D) for such community activities as the Library shall deem necessary or desirable. In such event, the Library shall provide not less than twenty-one (21) days prior notice to the other Parties and shall have priority in using the Plaza Area over non-governmental parties. However, all use of the 1:\R-DATMELKGREA6.DOC 11 M3/97 Plaza shall be on "first come -first serve" basis if the Village has committed the use of the Plaza Area to another party prior to the Library giving notice of its intended use to the Village. 23. Redevelopment Agreement Conflicts. Developer and the Village acknowledge that they are parties to that certain agreement ("Redevelopment Agreement") dated March 11, 1997. The Parties hereto acknowledge and agree that, in the event of a conflict between the terms of this REA and the terms of the Redevelopment Agreement, the Redevelopment shall control. (SIGNATURE PAGE FOLLOWS) 1:1R-DATANELKGREA&DOC 12 3113197 IN WITNESS WHEREOF, the Parties have caused this REA to be executed by their duly authorized representatives effective as of the day and year first above written. ELK GROVE VILLAGE, an Illinois municipal corporation By: Name: Title: ELK GROVE TOWN CENTER, L.L.C., an Illinois limited liability company, By: Name: Title: THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE, COOK COUNTY, ILLINOIS Name: THIS DOCUMENT PREPARED BY AND UPON RECORDING MAIL TO: Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 1M-DATA\ELKGREA6.D0C 13 3153197 STATE OF SS. COUNTY OF I, , a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that , a of Elk Grove Village, an Illinois municipal corporation, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such , appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act and as the free and voluntary act of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this day of , 19—. Notary Public My Commission expires: 1AR-0ATA\ELKGREA6.D0C 15 3/13/97 STATE OF ) SS. COUNTY OF ) On the day of 1 1996, before me personally came to me known, who being by me duly sworn, did depose and say that (s)he resides at that he is the of the which executed the foregoing instrument and that (s)he signed his/her name thereto by order of the Board of Directors of said , and that he has the authority to sign the same, and acknowledge that he executed the same as the act and deed of said Notary Public My Commission expires: 1AR-DATAIELKGREAG.D0C 16 3/13/97 STATE OF SS. COUNTY OF I, , a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that of the Elk Grove Village Library is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such , appeared before me this day in person and acknowledged that (s)he signed and delivered said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this , 19_ Notary Public My Commission expires: 1:%R-DATA\ELKGREA6. DOC 17 W 357 day of EXHIBY ORDINANCE NO. AN ORDINANCE APPROVING THE FINAL SITE PLAN AND OTHER DEVELOPMENTAL PLANS PERTAINING TO LANDSCAPING, LIGHTING, AND BUILDING ELEVATIONS WITH RESPECT TO THE REDEVELOPMENT OF PROPERTY LOCATED AT THE SOUTHWEST CORNER OF ARLINGTON HEIGHTS ROAD AND BIESTERFIELD ROAD (HAMILTON PARTNERS, D/B/A ELK GROVE TOWN CENTER LLC) WHEREAS, the Village of Elk Grove Village, pursuant to Ordinance No. 2327, have previously declared and designated the Grove Mall Shopping Center as a blighted area and have conducted negotiations with Hamilton Partners, d/b/a Elk Grove Town Center LLC (the "Devel- oper") to redevelop said property in accordance with a certain Redevelopment Agreement to be executed between the Village and the Developer; and WHEREAS, said Redevelopment Agreement references certain development plans, which plans relate to the construction of all improvements on the property including, building lo- cation and elevation, landscaping, lighting, building materials, and identification and interior signage; and WHEREAS, the Village President and Board of Trustees and the Plan Commission of the Village held a joint meeting to consider the approval of various plans with respect to said de- velopment and as a result of said meeting find.and believe it to be in the best interest of the Vil- lage that the various developmental plans hereinafter set forth be approved, subject to the condi- tions and requirements included herein. NOW, THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, Illinois as follows: Section 1: That the plans set forth on Exhibit A, attached hereto, be and the same are . hereby approved for the development of the property formerly known as the Grove Mall Shop- ping Center, which property is located at the Southwest corner of Arlington Heights Road and Biesterfreld Road and legally described on Exhibit B attached hereto. Section 2: That the property as developed will include a theater facility. At the present time, the plans submitted for the redevelopment of the site do not include landscaping, lighting and building elevation or other developmental plans for the remodeling and additions to the thea- ter facility. No building permit shall be issued for any structure on the property until such time as such plans are submitted to and approved by the Village. Section is The shopping center shall be developed in accordance with the plans ap- proved herein as well as the plans to be submitted at a future date. Thereafter, there shall be no alteration, remodeling or other changes to the center as constructed unless expressly approved in writing by the Village. Section 4: In addition to the development plans previously submitted and herein ap- proved, the Developer shall be required to submit a traffic management plan as well as a plan with respect to the location of scavenger containers. These plans must be submitted and ap- proved by the Village prior to the issuance of any building permit for any of the structures to be located in the center. Section 5: That this Ordinance shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: NAYS: ABSENT: PASSED this day of 1997. APPROVED this day of , 1997. ATTEST: VILLAGE CLERK 2 VILLAGE PRESIDENT 1. Site Plan (including signage locations), prepared by DeStefano & Partners dated March 11, 1997. 2. Paving Plan, prepared by DeStefano & Partners dated March 11, 1997. 3. Lighting Plan, prepared by DeStefano & Partners dated March 11, 1997. 4. Retail -A Building Plan and Elevations, prepared by DeStefano & Partners dated March 5, 1997. 5. Retail-B/C Building Plan and Elevations, prepared by DeStefano & Partners dated March 5, 1997. 6. Retail-D/E/Domini&s Building Plan and Elevations, prepared by DeStefano & Partners dated March 11, 1997. . 7. Walgreen's Building Plan and Elevations, prepared by DeStefano & Partners dated March 5, 1997. 8. Enlarged Partial Elevation Plan, prepared by DeStefano & Partners dated March 5, 1997. 9. Signage Elevations, prepared by DeStefano & Partners dated March 5, 1997. 10. Overall Landscape Plan, prepared by Douglas Hills Associates, Inc. dated February 28, 1997 11. Landscape Enlargement Plan (Village Green, Plaza and Retail Buildings B and C), pre- pared by Douglas Hills Associates, Inc. dated February 28, 1997. 12. Landscape Elevations, prepared by Douglas Hills Associates, Inc. dated February 28, 1997. 13. Plant List and Details, prepared by Douglas Hills Associates, Inc. dated February 28, 1997. EXHi ' E CONSTRUCTION LOAN ESCROW AGREEMENT ESCROW NO. June 1, 1997 NEAR NORTH NATIONAL TITLE INSURANCE ("Near North") CORPORATION, ESCROWEE At the request of ELK GROVE PARTNERS, L.L.C., an Illinois limited liability company, c/o Hamilton Partners, Inc., an Illinois (hereinafter referred to as the "Owner"), , a national banking association (hereinafter referred to as the "Bank"), will deposit the proceeds of a $ construction loan (the "Loan Funds") secured by a mortgage on the premises described in Near North Commitment No. 970122 (the "Premises"), located at Beisterfield and Arlington Heights Roads, Elk Grove Village, Illinois. In addition, the Village of Elk Grove Village, a municipal corporation (the "Village"), will from time to time, deposit certain public funds (the "Public Funds") pursuant to a Redevelopment Agreement between Owner and Village dated March _, 1997, and shall authorize the disbursement of said funds from time to time in writing in strict accordance with the Escrow. The Public Funds shall be used to pay for certain public improvements listed in Exhibit A attached hereto (the "Public Improvements") which are to be constructed on the Premises, and on the property described in Near North commitments Nos. 9700120 and 9700121 (collectively "the Village Property"). The Loan Funds and the Public Funds are collectively referred to herein as the "Funds." You are authorized and directed to disburse the Funds deposited hereunder pursuant to statements of amounts due, approved by the Owner, after obtaining only such releases and satisfactions of mechanics liens or waivers of mechanic's liens and sworn statements of the General Contractor (defined below), subcontractors and material suppliers required by Near North National to enable Near North Title to issue the insurance coverage herein specified. When disbursing Public Funds, in addition to the foregoing, you are required to obtain a completed Request for Public Payment, attached hereto as Exhibit B, completed by the General Contractor, specifying the amount of Public Payment requested, and the line item said Public Payment is authorized under and to be paid from, in accordance with the Schedule of Public Improvements attached hereto as Exhibit A. Prior to disbursing Public Funds, you are also required to obtain an Inspecting Agents Certificate in the form attached hereto as Exhibit C, verifying that each Public Improvement for which payment is being requested has been completed. The "Inspector" is to be 'and the "General Contractor" is to be General Contractor and Owner have entered into a construction contract dated , 1997 (the "Construction Contract") providing for the construction of the improvements contemplated herein. There will be periodic disbursements, which are to be made in accordance with the terms and conditions of this escrow as hereinafter set forth. I. Prior to the first disbursement of Funds hereunder, the following are requirements of this escrow: A. The Escrowee shall be furnished: 1. An approval by the Bank of the condition of title to the Premises, provided that such approval shalt be deemed to have been given if, as of the date of such disbursement, title to the Premises shows no encumbrance which is not a Permitted Encumbrance specified in Exhibit D attached hereto. 2. An approval by the Bank for loan disbursement purposes of the Owner's statement and the General Contractor's statement. 3. A sworn Owner's statement disclosing the various contracts - entered into by the Owner and setting forth the names of the contractors, their addresses, work or materials to be furnished, amounts of the contracts, amounts paid to date, amounts of current payments and balances due; and 4. A sworn General Contractor's statement setting forth in detail all contractors and material suppliers with whom it has contracted, their addresses, work or materials to be furnished, amounts of the contracts, amounts paid to date, amounts of current payments and balances due; and B. The Escrowee shall be prepared to furnish to the Bank an ALTA Loan Policy with mechanic's lien coverage, covering the requested disbursement from loan proceeds, with coverage over the general exceptions in Schedule B of such policy, subject only to the Permitted Encumbrances approved in writing by the parties hereto, and including the following endorsements: — or if such a policy has been previously issued, the Escrowee shall be prepared to furnish Near North Title's standard endorsements covering the date and the amount of the requested disbursement from loan proceeds. C. The Bank shall have given written authorization to the Escrowee for such disbursement. [TO BE INSERTED] II. Prior to each disbursement of funds hereunder, it is a requirement of this escrow that the Escrowee be furnished: A. A sworn Owner's statement disclosing the various contracts entered into by the Owner and setting forth the names of the contractor's, their addresses, work or materials to be furnished, amounts of the contracts, amounts paid to date, amounts of current payments and balances due; B. A sworn General Contractor's statement setting forth all contractors and materialman with whom it has contracted, amounts of contracts, amounts paid to date, amounts of current payments and balances due; C. A written approval by the Owner of the requested disbursement; D. A report or Certification by the Inspector (named above) certifying that work has been completed and materials are in place as - indicated by the request for payment of the General Contractor. E. Sufficient funds to cover the requested disbursements; F. Statements, waivers, affidavits, supporting waivers and releases of lien from such persons and in such form as may be required by Near North Title for the purpose of providing the title insurance coverage 'specified herein. G. In the case of Public Funds, a Request for Public Payment. III. Conditions to Disbursements of Public Payments and Private Payments: A. Public Payments: With respect to each request for Public Payments, the Inspecting Agent will, simultaneous to its deposits to this Escrow, submit to the Village Director of Engineering and Community Development or the Village Manager a copy of the items specified in Section V hereof, along with a copy of the Request for Public Payment and the Inspecting Agent's Certificate for the work covered in the requested disbursement. The Village will, within 20 calendar days, either approve the requested disbursement by depositing (either by hand delivery, or facsimile) the approved Request for Public Payment, or will notify in writing the Escrowee, Owner, Inspecting Agent, and General Contractor that the Request for Public Payment has not been approved giving specific reasons as to how the Request is in violation of the Redevelopment Agreement between the Owner and the Village, dated March 11, 1997, in violation of the Construction Contract, or in violation of this Escrow Agreement. B. Private Payments: With respect to each request for Private Payments, the Inspecting Agent will, simultaneous to its deposits to this Escrow, submit to the Owner, and Lender a copy of the items required in Section II hereunder. The Owner or Lender will within 20 calendar days deposit the funds necessary to make said Private Payments. C. Every Disbursement: With respect to each disbursement of Public Payments and Private Payments, Near North shall be prepared to furnish to Owner, Lender and when applicable, the Village an ALTA Endorsement over mechanic's lien claims to the amount that has been disbursed. IV. All disbursements for construction purposes will be made by the Escrowee directly to the General Contractor. In the event that the General Contractor and any subcontractor jointly authorize the Escrowee to pay any funds due one to the other, the Escrowee may comply with such authorization. However, it is the intention of the parties named herein and signatory hereto that no person not a party signatory to this Agreement shall have the right to look to the Escrowee for any disbursement hereunder under a third party beneficiary theory or otherwise, and that the Escrowee owes no duty to any such third party to make any disbursement. V. As the Escrowee makes a partial disbursement of funds hereunder, it will furnish the Bank Near North's standard endorsements covering the date and the amount of each requested disbursement and raising no new exceptions which are not Permitted Encumbrances. VI. Prior to the final disbursement of the funds hereunder, it is a requirement of this escrow that Near North be prepared to furnish its final title insurance policy with mechanics lien coverage, covering the date of the final disbursement, in the amount of the total amount disbursed by the Bank, and conforming to the requirements this Agreement. With respect to the condition of title, the liability of the Escrowee in making any disbursements in reliance upon the title evidence referred to above shall not extend to the determination of whether or not it is acceptable to the Bank, the furnishing of funds for disbursement being considered the acceptance of title as so reported. VII. If at any time during the course of construction the total of the unpaid disclosed cost of construction indicated by the column totals on the General Contractor's sworn statement exceeds the amount of the undisbursed mortgage proceeds as calculated by subtracting the total amount of liability taken on the endorsements from the face amount of the mortgage, the Escrowee need not make further disbursements under the terms of this escrow until the Owner has deposited in this escrow the sum necessary to make the available funds equal to the unpaid disclosed cost of construction, or unless specifically directed to do so by the Bank. Also, if the Escrowee discovers a misstatement in an affidavit furnished by the General Contractor or the Owner, it may stop disbursement until the misstatement has been corrected. The Escrowee has no liability hereunder to the Owner relating to protection against mechanic's lien claims. VIII. The functions and duties assumed by the Escrowee include only those described in this agreement, and the escrowee is not obligated to act except in accordance with the terms and conditions of this escrow. The Escrowee does not insure that the building will be completed, nor does it insure that the building, when completed, will be in accordance with plans and specifications, nor that sufficient funds will be available for completion, nor does it make the certifications of the Inspector its own, nor does it assume any liability for same other than procurement as one of the conditions precedent to each disbursement. IX. Bill all title and escrow charges to the Owner at the address listed above. Escrow fees are payable when billed. If escrow fees are not paid within 30 days of billing, the Escrowee may cease making any further disbursements until escrow fees have been paid An Annual Maintenance Fee, as determined by the then current rate schedule, will commence on the date of the execution of this Agreement and may be deducted from the funds on deposit X. General Conditions: At any time prior to its commencement of disbursement of funds hereunder, the Escrowee reserves the right to decline commencement of disbursement of funds if Near North Title declines any risk offered for insurance hereunder, whereupon the Escrowee shall return to the Bank any documents in its possession relating to such loan and the funds received by it. Commencement of disbursement makes this agreement effective as to all funds received and disbursed on the construction in question. Where, after the first disbursement, a further title search reveals a subsequently arising exception over which Near North Title is unwilling to insure, the Escrowee will notify the Bank and may discontinue disbursement until the exception has been disposed of to the satisfaction of the Bank. A mechanics lien claim over which Near North Title is required to insure hereunder does not warrant a discontinuance of disbursement. The Escrowee has no liability for loss caused by an error in the certification furnished it hereunder as to work in place. The Escrowee shall not be responsible for any loss of documents or funds while such documents or funds are not in its custody. Documents or funds deposited in the United States mail shall not be construed as being in custody of the Escrowee. In the event of default as, declared by the Bank and/or foreclosure by the Bank, the Escrowee shall have the right to discontinue further disbursements under this Agreement. Deposits made pursuant to these instructions may be invested on behalf of any party or parties hereto; provided, that any direction to the Escrowee for such investment shall be expressed in writing and contain the -consent of all other parties to this Agreement, and also provided that the Escrowee is in receipt of the taxpayer identification number and investment forms as required. The Escrowee will, upon request, furnish information concerning its procedures and fee schedules for investment. Except as to deposits of funds for which the Escrowee has received express written direction concerning investment or other handling, the parties hereto agree that the Escrowee shall be under no duty to invest or reinvest any deposits at any time held by it hereunder; and, further, that the Escrowee may commingle such deposits with other deposits or with its own funds in the manner provided for the administration of funds under Section 3 of the Illinois Banking and Finance Act (Ch. 17, Par 1555, III. Rev. Stat., and may use any part or all such funds for its own benefit without obligation to any party for interest or earnings derived thereby, if any. However, nothing herein shall diminish the Escrowee's obligation to apply the full amount of the deposits in accordance with the terms of this Agreement. In the event the Escrowee is requested to invest deposits hereunder, the Escrowee is not to be held responsible for any loss of principal or interest which may be incurred as a result of making the investments or redeeming said investment for the purposes of this escrow. XI. The undersigned agree that this Agreement is not intended by any of the undersigned to give any benefits, rights, privileges, actions or remedies to any person, partnership, firm or corporation other than the Escrowee, the Bank and the Owner as a third party beneficiary or otherwise under any theory of law. XII. This Agreement shall govern the performance of the Escrowee under this escrow. Notwithstanding anything to the contrary herein contained, the provisions of this Agreement shall not supersede the terms of that certain Construction Loan Agreement dated , by and among the Bank and others, and as between the Bank and the Owner in the event of any conflict between the provisions of such Construction Loan Agreement and the provisions of this Agreement, the provisions of such Construction Loan Agreement shall control. XIII. This Agreement shall govern the performance of the Escrowee under this escrow. Notwithstanding anything to the contrary herein contained, the provisions of this Agreement shall not supersede the terms of that certain Redevelopment Agreement date March 11, 1997, by and between the Village and Owner, and as between the Village and the Owner in the event of any conflict between the provisions of such Redevelopment Agreement and the provisions of this Agreement, the provisions of such Redevelopment Agreement shall control. Attorney for Owner Attorney for Village [BANK] M Accepted, NEAR NORTH NATIONAL TITLE INSURANCE CORPORATION, Escrowee 0 Title: "Escrowee" Title: GENERAL CONTRACTORS ACKNOWLEDGMENT The undersigned acknowledges that it is neither a party to the Construction Loan Escrow Agreement, nor does that Agreement confer any benefits, rights, privileges, actions or remedies to any Person, partnership, firm or corporation other than the Escrowee, the Bank and the Owner under a third party beneficiary theory or otherwise under any theory of law. The undersigned agrees that the improvement referred to in the Construction Loan Escrow Agreement will be constructed and completed in strict accordance with plans and specifications and the building contract. The undersigned also concurs in the above escrow instructions signed by the owner and the Bank or their representatives. [GENERAL CONTRACTOR] M Title: President "General Contractor" Exhibit B REQUEST FOR PUBLIC PAYMENT , as the General Contractor for the construction of the Elk Grove Town Center shopping center and the Village of Elk Grove Public Improvements, does hereby request Public Payments be made in accordance with the Redevelopment Agreement dated March _, 1997, by and between the Village of Elk Grove Village and Elk Grove Partners, L.L.C. and the Elk Grove Partners L.L.C., Bank, Village of Elk Grove Village and Near North Title Corporation Escrow Agreement (the "Escrow") dated June 1, 1997. Public Payment, as that term is defined in the Escrow, is requested in the amount of _ for the following line items as specified in the Schedule of Public Payments which is attached to the Escrow as Exhibit A: LINE ITEM 1. 2. 3. 4. 5. 6. M AMOUNT REQUESTED Approved by the Village of Elk Grove Village Title: Village President or Village Manager or BALANCE AFTER REQUESTED PAYMENT Exhibit D THE VILLAGE'S INSPECTING AGENT CERTIFICATE the Inspecting Agent for the construction of the Elk Grove Town Center and certain TIF Improvements in the Village of Elk Grove Village ("Village") pursuant to Near North National Title Insurance Corporation Escrow No. does hereby certify and approve to Near North, the Village of Elk Grove Village, Elk Grove Partners, L.L.C. and Bank: A) Inspected project on 199_ B) The work covered by draw request number has been completed in accordance with the plans and specifications as approved by the Village, and the General Contractor has certified to us that any and all permits that are required for said work have been obtained and all work completed is in accordance therewith. C) The work covered by the above reference draw in Public Payments and $. in Private Payments and are detailed as follows: Public Payments request is composed of Item Amount Requested Balance after Payment Page 2 of Inspecting Agents Certificate Private Payments Description Amount Requested Balance after Payment D) Attached is AIA form Contractors Sworn statement. E) Total Project expenditures to date are $ composed of Public Payments totaling $ and Private Payments totaling $ F) Public Payments have not been disbursed to pay for any costs not specifically listed as a TIF Improvement on Exhibit A to the Escrow. Date: 0 Exhibit F Elk Grove Town Center Developer's Upgrades Commercial Property Shell Upgrades Retail A $92,000 Retail B $292,000 Retail C $292,000 Retail, D, E, Dominick's $390,000 Walgreen's $154,000 Faux Slate Roof addition $80,000 Theater Cladding $92,500 Building Lighting $53,975 Other Upgrades Landscaping $44,000 Landscape Lighting $130,000 Pavers and Concrete $112,000 Fountain $80,000 Theater Paving $120,000 Entry Features $32,000 Main Parking Lot Walk (inc. Lighting) $65,000 Total $2,029,475 ELKGROOt.XLS; Exhibft F Exhibit G TIF Financing Cost Breakdown Commercial Property Excavation and Fill $500,000 Paving of Storm Water Facilities $550,000 Storm water detention $200,000 Stie concrete/curbs/walks $300,000 Theater parking lot repair $120,000 Water/sewer $50,000 Storm sewer $125,000 Electrical conduit $65,000 Soil Testing $7,500 Environmental Testing $7,500 Survey $12,000 Landscaping Storm Water Management $240,000 Contractors Overhead and Profit $217,700 Total Commercial Property $2,394,700 Village Property Village Green Infrastructure $505,000 Landscaping $228,000 Landscape Lighting $53,000 Entry Features $16,000 Plaza Infrastructure $80,000 Landscaping $223,000 Landscape Lighting $44,000 Entry Features $16,000 Sidewalks $14,000 Fountain $160,000 Road Pavers $18,000 Total Village Property $1,357,000 Total TIF Financing $3,751,700 ELKGR001.XLS; Exhibit G RECIPROCAL EASEMENT AGREEMENT entered into by and among VILLAGE OF ELK GROVE VILLAGE, ELK GROVE TOWN CENTER, L.L.C. and THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE Dated March 13, 1997 RECIPROCAL EASEMENT AGREEMENT THIS RECIPROCAL EASEMENT AGREEMENT ("REA") is made and entered into as of this 13th day of March, 1997, by and between ELK GROVE VILLAGE, an Illinois municipal corporation ("Village"), ELK GROVE TOWN CENTER, L.L.C., an Illinois limited liability company, ("Developer), and THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE, COOK COUNTY, ILLINOIS ("Library'). WITNESSETH: WHEREAS, Village is the owner of a certain tract of land (the "Village Tract") legally described in Exhibit A attached hereto and which is currently improved with existing municipal buildings; and WHEREAS, Developer is the owner of a certain tract of land (the "Developer Tract's legally described in Exhibit B attached hereto which contains certain retail improvements and is to be further improved in accordance with the site plan ("Site Plan's attached hereto as Exhibit D; and WHEREAS, Library is the owner of a certain tract of land (the "Library Trac") legally described in Exhibit C attached hereto which is improved with a library building ("Library Building"); and WHEREAS, located on the Library Tract, the Village Tract and the Developer Tract is an area referred to as the "Plaza Area" as depicted on Exhibit D attached hereto; and WHEREAS, the Village Tract, the Developer Tract, and the Library Tract (individually, a 'tract' or "Tract" and collectively, the "Tracts") are contiguous and adjacent as shown on the Site Plan, and located within the Village of Elk Grove, Illinois (the Willageo); and WHEREAS, pursuant to Article VII, Section 10'of the Constitution of the State of Illinois, the library has the power to enter into agreements with other units of government and private parties; and WHEREAS, this Agreement will increase the Library's visibility and use within the community, and will also enhance the aesthetics of the Library setting; and WHEREAS, the signatories hereto (individually, a "Party" and collectively, the "Partied intend to develop and operate their respective Tracts independent of one another, but with certain common rights and elements; and in order to effectuate the common and independent use and operation thereof, they desire to grant to each other certain reciprocal easements in, to, over and across their respective Tracts and set forth other rights and obligations. NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, and in furtherance of the Parties' understanding, it is agreed as follows: 1. Ingress and Earess: Parkina, A. Each Party hereby grants and conveys to each otger Party for its use and for the use of all tenants, licensees, subtenants, mortgagees and concessionaires of a Tract from time to time and all officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, and invitees of the foregoing ('Permittees"), in common with others entitled to use the same, a non- exclusive, perpetual easement, for the passage of passenger vehicles, delivery trucks, and emergency vehicles over and across the parking and driveway areas of the grantor's tract, and for the passage and accommodation of pedestrians over and across the parking, driveway and sidewalk areas of the grantor's tract, as the same may from time to time be constructed and maintained for such use. Upon reasonable notice to the other Parties (except in an emergency, in which event no notice is required), a Party may temporarily close off its portion of the parking area and driveway area (i) for the minimum time legally necessary to prevent acquisition of prescriptive rights, and (ii) in order to perform repairs or maintenance, but not during the months of November or December (unless required for emergency repairs). Each Party reserves the right at any time and from time to time to exclude and restrain any person who is not a Permittee from using its portion of the parking, driveway and sidewalk areas. No fence or other barrier which would prevent or unreasonably obstruct the passage of pedestrian or vehicular travel shall be erected or permitted within or across the parking areas or driveways, exclusive of limited curbing and other forms of traffic control, except that Village shall have the right, as necessary in the reasonable judgment of the Village, to temporarily close off the areas indicated on Exhibit D to accommodate emergency vehicles. The Parties acknowledge that one of the municipal buildings located on the Village Tract is a fire station and that, as a result, emergency vehicles will be utilizing the ingress and egress rights granted hereby as necessary. Notwithstanding anything to the contrary contained herein, the Village shall be entitled to utilize all or any portion of the Village Tract for such outdoor activities and fairs as the Village, in its sole and absolute discretion, shall deem necessary or desirable. B. The Parties shall use commercially reasonable efforts to ensure that the parking and driveway areas located on their respective Tracts shall be free and clear of obstructions and interference and shall allow for the free flow of commercial, passenger and emergency vehicles and shall be maintained in a neat and orderly condition and a good state of repairs. For purposes of this REA, such obstructions and interference shall include, but not be limited to trucks, trailers, other commercial or non-commercial vehicles, or other items which are parked or placed in an area other Than a truck well or loading dock area and which impede the free flow of traffic (i.e., ingress and egress) such that passenger, delivery, service, emergency or other standard vehicles, or pedestrians cannot reasonably be expected to pass freely. Except for (i) resurfacing and other scheduled maintenance and repairs performed in accordance with the notice requirements set forth below, (ii) village emergencies (including police and fire vehicles), and (ii) matters of public safety, in the event that any such obstruction or interference susceptible of being Geared within two (2) hours is not cleared within two (2) hours notice, the Village or its agent may take such immediate action ("Self Help Right) as may be necessary to clear such obstruction or interference. The Parties shall use reasonable and good faith efforts to stage and sequence any repair or maintenance work to minimize disruption of and interference with business operations. Except in the event of an emergency, any Party performing work on the area subject to this REA shall provide the other Parties with a schedule of the scope of work to be performed and the timing thereof at least fifteen (15) days prior to any repair or maintenance work and shall secure the approval of the Parties prior to performance of such repairs or maintenance work which would impact the Tracts or the free flow of traffic. The curb cuts and driveways located therewith, as depicted on Exhibit D, will not be altered or modified without the consent of the Village, not to be unreasonably withheld, delayed or conditioned. C. Village hereby grants and conveys to Developer a non-exclusive, perpetual easement over the "Biesterfield Driveway" as depicted on Exhibit D for the purpose of ingress and egress to the Developer Tract. D. Developer hereby grants and conveys to Village a non-exclusive, perpetual easement over that portion of the Plaza Area comprised of the Developer Tract as depicted on Exhibit D; however, the Village shall be responsible for all maintenanbe of the Plaza Area. E. Library hereby grants and conveys to Village a non-exclusive, perpetual easement over that portion of the Plaza Area comprised of the Library Tract as depicted on Exhibit D; however, the Village shall be responsible for all maintenance of the Plaza Area. IM-DATAIELKGREM DOC `2 3/1"7 F. Developer hereby grants and conveys to the Village for its use and the use of the Permittees, in common with others entitled to use the same, a non-exclusive, perpetual easement, for the parking of passenger vehicles on that portion of the Developer Tract indicated on Exhibit D as the "Parking Easement Area". G. Developer hereby agrees to grant and convey to the Village for its use a non-exclusive, perpetual easement for the installation of the Village's outdoor public siren. The siren and the siren easement shall be in a location mutually agreeable to the Village and Developer on the Developer Tract. H. The Library shall have the right to designate the driveway between Wellington Avenue and the mid -point of the island located between the two (2) driveways providing access to and from the library parking lot to be a one-way drive going in an easterly direction. The Library shall also have the right to post signage on the Library Tract as needed to create and enforce the one-way drive. For and during the term of this REA, and as a condition to the Library and its Library Tract being bound by this REA, the Village shall adopt such codes or ordinances and take such other action as is necessary to cause the said drive to be one-way as designated by the Library herein and to enforce such designation by the Village Police Department. I. For purposes herein, persons engaging in the following activities on the parking area and driveways will not be considered to be Permittees: (i) Exhibiting any placard, sign or notice; (ii) Distributing any circular, handbill, placard or booklet; (iii) Soliciting memberships or contributions; and (iv) Parading, picketing or demonstrating. Notwithstanding the foregoing, the owner of any Tract shall have the right to permit any of the foregoing activities on its own Tract. J.. Except in connection with the initial opening of businesses located on the Developer Tract, for a period, not to exceed fourteen (14) days, Developer shall not allow to be placed on the Developer Tract any banners, temporary signage or similar items without first obtaining the approval of the Village as to the location, design and method of attachment thereof. Provided that any such banners, temporary signage or other similar items shall, in the reasonable judgment of the Village, adhere to the architectural and aesthetic plan of the retail development located on the Developer Tract, the Village shall not unreasonably withhold its consent therefor. K. Developer shall not, without the prior consent of the Village: (i) allow to be placed in any window of any building on the Developer Tract, any illuminated signage; or (ii) allow any outdoor sales to take place on the Developer Tract without outdoor screening consistent with the architectural and aesthetic plan of the retail development located on the Developer Tract; or r (iii) allow any commercial delivery vehicle to be parked overnight on the parking area of the Developer Tract (the Village may withhold such consent at its absolute discretion); or (iv) allow the average lighting level on the Developer Tract to exceed a greater lighting intensity than 5.0 foot-candles with the exception of the area indicated as the "6.5 J:\ELKGREA6.DOC 3 3/16g7 Area" on Exhibit D; the Developer may allow light fixtures in the 6.5 Area which produce an average lighting intensity of not greater than 6.5; foot candles; or (v) allow any dumpster on the Developer Tract which is not screened in a manner consistent with the architectural and aesthetic plan of the retail development on the Developer Tract; or L. Developer may, with the prior consent of the Village, place such seasonal decorations upon the Developer Tract as the Village may approve; provided that, at the election of the Village, Developer shall, at Village's sole cost and expense, install and display such seasonal decorations on the Village and Plaza Area for as long as same are displayed on the Developer Tract. 2. Maintenance. Each Party shall maintain, or cause to be maintained, the parking areas, driveways, Plaza Area and sidewalks on its Tract in a safe, attractive and good state of repair and condition. The minimum standard of maintenance shall be comparable to the standard of maintenance followed in other first-class retail and municipal campus developments of comparable size in the greater Chicago metropolitan area; notwithstanding the foregoing, however, the parking, driveway, fountain and sidewalk areas shall be operated and maintained in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this REA. The maintenance and repair obligation shall include, but not be limited to, the following: A. Maintaining, cleaning and replacing all paved surfaces and curbs in a smooth and evenly covered condition. Such work shall include, without limitation, snow and ice removal, sweeping, restriping, resealing and resurfacing. B. Periodic removal of all papers, debris, filth and refuse, including sweeping to the extent necessary to keep the parking areas and driveways in a first-class, clean and orderly condition. All sweeping shall be performed at appropriate intervals during such times as shall not interfere with the conduct of business or use of the parking areas and driveways by persons intending to conduct business with any person or entity from time to time entitled to the use and occupancy of any portion of a building on a Tract under an ownership right or any lease, sublease, license, concession or other similar agreement ("Occupant"). C. Placing, cleaning, keeping in repair, replacing and repainting any appropriate directional signs or markers, including any handicapped parking signs. D. Maintaining, cleaning and replacing parking area lighting facilities, including lamps, ballasts and lenses. E. Keeping the parking areas and driveways free from any obstructions including those caused by the sale or display of merchandise, unless such obstruction is permitted under the provisions of this RFI. F. Maintaining and replacing as necessary to abide by and maintain the standards set forth in that certain landscape plan prepared by Douglas Hills Associates, Inc., dated February 28, 1997, and approved by ordinance number 25-42, any and all landscaping placed or required to be placed on a Tract. Developer acknowledges that the Village has contributed substantial funds in relation to the improvements to be placed on the Developer Tract. Accordingly, in the event that Developer fails to maintain the Developer Tract, or any portion thereof, as required hereby, the Village shall have the right, but not the obligation, after not less than five (5) days prior notice ("Maintenance Noticel, to perform the maintenance obligations of Developer set forth in the Maintenance Notice at Developer's sole cost and expense. In any such event, Developer shall, within ten (10) days of notice from the Village, reimburse the Village for all costs and expenses incurred in relation to the 1AR-DATMELKGREAe.DOC 4 3/13/97 performance of Developer's obligations as set forth herein, together with a sum equal to fifteen percent (15%) of such costs and expenses for Village's supervision and administrative costs. Notwithstanding anything contained herein to the contrary, except as hereinafter specifically set forth, Developer shall not have the right of self help against either the Village or Library. Developer's sole and exclusive remedy shall be specific performance. Developer shall have the right, but not the obligation, to remove snow from the Biesterfield Driveway. In the event that Developer shall avail itself of the aforesaid snow removal right, Developer shall not be entitled to any reimbursement for the costs associated therewith, such snow removal being at the sole and exclusive cost and expense of Developer. 3. Insurance. A. Developer and Village (as to its Tract only) shall maintain or cause to be maintained in full force and effect Commercial General Liability Insurance with a combined single limit of liability of not less than Five Million Dollars ($5,000,000.00) for bodily or personal injury or death, and for property damage, arising out of any one occurrence. The Library shall obtain similar coverage with a liability limit of not less than Three Million Dollars ($3,000,000.00). The insurance limit in this Paragraph 3 shall not limit any Party's rights or obligations of indemnity under the provisions of Paragraph 5 hereof. In addition to the foregoing, during any periods that Developer allows alcoholic beverages to be sold for consumption on or at the Developer Tract, Developer shall, in addition to all other insurance which Developer is required to procure pursuant hereto, obtain and maintain, or cause its tenants to obtain and maintain, in full force "dram shop" or liquor liability insurance coverage in an amount of at least Two Million Dollars ($2,000,000.00) naming the Village, Library, and such other parties as Village or Library may designate, as additional insureds. In the event that any government or governmental agency having jurisdiction shall require "dram shop" insurance in relation to the sale of packaged alcoholic beverages, Developer shall, during any periods that Developer allows alcoholic beverages to be sold at, from or on the Developer Tract, obtain and maintain the aforesaid 'dram shop" or liquor liability insurance coverage. Said insurance shall comply with all other insurance requirements set forth in this REA. B. All insurance required by this Section 3 shall be procured from companies authorized to do business in the State of Illinois and shall be rated by Best's Insurance Reports not less than A/X. All insurance may be provided under () an individual policy covering this location, (ii) a blanket policy or policies which includes other liabilities, properties and locations of such Party; provided, however, that if such blanket commercial general liability insurance policy or policies contain a general policy aggregate of less than Twenty Million Dollars ($20,000,000.00) in Constant Dollars, then such insuring Party shall also maintain excess liability coverage necessary to establish a total liability insurance limit of Twenty Million Dollars ($20,000,000.00) in Constant Dollars, or (iii) a combination of any of the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried by a Party in compliance with this Section 3, such Party shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible exceed Fifty Thousand Dollars ($50,000.00) in Constant Dollars. Each Party agrees to furnish to any other Party requesting the same, a certificate(s) of insurance reasonably satisfactory to such requesting Party, evidencing that the insurance required to be carried by such Party is in full force and effect. "Constant Dollars" means the value at the applicable pont in time of the dollars to which such phrase refers. An adjustment shall occur on January 1 of the sixth calendar year following the date of this REA, and thereafter at five (5) year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the denominator of which is the Base Index Number. The "Base Index Number" shall be the level of the Index for the month during which the REA is dated; the "Current Index Number shall be the level of the Index for the month of September of the year preceding the adjustment year; the "Index" shall be the Consumer Price Index for All Urban Consumers, U.S. IAR-DATAIELKGREA6.DOC 5 WNW City Average, All items published by the United States Department of Labor, Bureau of Labor Statistics (base year 1982-94=100), or any successor index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the Index is materially changed, then the parties shall substitute for the Index comparable statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodical or publication of recognized authority most closely approximating the result which would have been achieved by the Index. The insurance required pursuant to this Section 3 shall include the following provisions: (i) shall provide that the policy may not be canceled or reduced in amount or coverage below the requirements of this REA, without at least thirty (30) days prior written notice by the insurer to each insured and to each additional insured; (ii) shall provide for severability of interests; (iii) shall provide that each of the other Parties to this REA shall be named as "additional insureds" in the respective insurance policies of each Party. (iv) shall provide that an act or omission of one of the insureds or additional insureds which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the other insureds; and (v) shall provide for contractual liability coverage with respect to the indemnity obligation set forth herein. Construction. A. Village shall cause to be constructed the Plaza Area. B. Developer shall construct the retail area's, parking areas, landscaping, sidewalks and other improvements to be located on the Developer Tract as shown on Exhibit D. C. Each of the Parties hereto, subject to the provisions of subsection 4E below, hereby grant and convey to the other Parties and to their respective contractors, materialmen and laborers, a temporary license for access and passage over and across the parking areas of their respective Plaza Areas, as shall be reasonably necessary for the construction referred to above, provided, however, that such license shall be in effect only during periods when actual construction and/or maintenance is being performed and provided further that the use of such license shelf not unreasonably interfere with the use and operation of the individual Tracts by others and such license shall not be in effect during the months of October through December, of any year. Prior to exercising the rights granted herein, Developer shall first provide Village with engineering, architectural and construction plans describing the area affected and work to be performed, and shall furnish a certificate of insurance showing that its contractor has obtained insurance. Developer shall give Village and Library at least ten (10) days' prior written notice before commencing such work. Developer shall promptly pay all costs and expenses associated with the work to be performed, shall diligently complete such work as quickly as possible, and shall promptly clean the area, and restore and/or repair the affected portion of the Village Tract, or Library Tract, as the case may be, to a condition which tis equal to or better than the condition which existed prior to the commencement of such work. Notwithstanding the foregoing, in the event a material dispute exists between the contractors, laborers, suppliers and/or others connected with construction activities, Village and Library shall have the right to prohibit the contractors, laborers, suppliers and/or others working for Developer from using the area on its Tract. I:Vt-DATAIELKGREA6.13OC 6 9/1387 D. Any and all work performed pursuant to this REA shall be so performed pursuant to all applicable codes and insurance requirements. In the event that any such codes, insurance requirements or the Redevelopment Agreement (as hereinafter defined) shall require a stricter or higher standard, or additional documentation or approvals than that required pursuant to this REA, such stricter or higher standard, or additional requirements, as the case may be, shall control. E. (i) Developer agrees that its construction activities and any activities of its tenants, licensees, concessionaires or other occupants shall not unreasonably interfere with the use, occupancy or enjoyment of any part of the Village Tract or Library Tract. (ii) Developer acknowledges that the construction work to be performed by or on behalf of the Village will interfere or deny the use of the parking areas located on the Developer Tract. The Village and the Developer shall use commercially reasonable efforts to minimize such interference or denial. The Village will not, in the course of the construction work to be performed by or on behalf of the Village, unreasonably interfere with the use, occupancy or enjoyment of the parking area as located on the Library Tract. (iii) Notwithstanding anything to the contrary which may be contained herein, Developer and the Village shall not permit any construction traffic within their respective control to enter the packing area as depicted on Exhibit D located on the Library Tract without the prior written approval of the Library. F. The Developer releases the Village and Library from, and agrees that the Village and Library shall not be liable for, and indemnifies the Village and Library against all liabilities, losses, damages pncluding reasonable attorney's fees), causes of action, suits, claims, costs and expenses, demands and judgments of any nature imposed upon or asserted against the Village or Library on account of: (i) any loss or damage to property or injury to or death of or loss by any person that may be occasioned by any cause whatsoever pertaining to the acquisition and construction of the Redevelopment Project; (ii) any action arising under the construction contracts related to the Redevelopment Project or any related document, or arising from any act or failure to act by the Developer, or any of its agents, contractors, servants, employees or licensees; (iii) violation of any law, ordinance or regulation affecting the ownership, occupancy or use of the Redevelopment Project by the Developer or its agents; (iv) any claim or action or proceeding with respect to the matters set forth in subparagraphs (i), (ii), and (iii) above brought thereon. Nothing contained herein shall be construed as an obligation of the Developer to indemnify the Village or Library for their negligent acts. In case any action or proceeding is brought against the Village or Library in respect of which indemnity may be sought hereunder, the Village or Library, as the case may be, shall give notice of that action or proceeding to the Developer, and the Developer upon receipt of that notice shall have the obligation and the right to assume the defense of the action or proceeding; provided, that failure of the Village or Library to give that notice shall not relieve the Developer from any of its obligations -under this Paragraph unless that failure prejudices the defense of the action or proceeding by the Developer. At its own expense, the Village or Library may employ separate legal counsel and participate in the defense. The Developer shall not be liable for any settlement without its consent. The indemnification set forth above is intended to and shall include the indemnification of all elected officials, directors, officers, attorneys, accountantsrfinancial advisors, staff and employees of the Village and Library. That indemnification is intended to and shall be enforceable by the Village and Library to the full extent permitted by law. G. Developer agrees that the foregoing construction activities and all work and improvements shall be performed in compliance with all applicable laws, rules, regulations, orders, and ordinances of the city, county, state, and federal government, or any department or agency 11R-0ATAIELKGREM DOC % 3/1397 thereof, including but not limited to the Redevelopment Agreement. All construction shall utilize new materials, and shall be performed in a good, safe, workmanlike manner. 5. Building Improvements. Provided that the areas identified as Retail B and Retail C on Exhibit D are not vacant for more than twelve (12) consecutive months and while occupied are open and occupied by Long Term Tenants (as hereinafter defined), the Village hereby agrees that the fountain shall remain in operation (as seasonally permitted). For purposes of this Section 5, "Long Term Tenant's" are defined as any retail tenant having a lease term of not less than twelve (12) months in duration. 6. Remedies and Default. A. The occurrence of any one or more of the following events shall constitute a default and breach of this REA by the nonperforming Party (the "Defaulting Party"): the failure to observe or perform any of the covenants, conditions or obligations of this REA within thirty (30) days after the issuance of a notice by another Party (the "Non -Defaulting Party") specifying the nature of the default claimed, unless such default cannot reasonably be cured within such thirty (30) day period, in which event a default shall not be deemed to have occurred, so long as the party commences to cure within such thirty (30) day period and thereafter diligently prosecutes the cure to completion as promptly as reasonably possible, provided however that any rights to remove obstructions shall be governed by the provisions of Section 1B hereof. Notwithstanding anything to the contrary, in the event a shorter cure period is specified elsewhere in this REA, such shorter cure period shall control. B. After the expiration of the thirty (30) day cure period set forth in Section 6A above, if the Defaulting Party is the Developer, any Non -Defaulting Party shall have the right, but not the obligation, to cure such default by the payment of money or the performance of some other actied for the account of and at the expense of the Developer/Defaulting Party on no less than ten (10) days prior notice to the Developer/Defaulting Party (unless such default is cured within such ten (10) day period); provided, however, that in the event the default shall constitute an emergency condition, the Non -Defaulting Party, acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so long as notice is given as soon as possible thereafter. To effectuate any such cure, the Non -Defaulting Party shall have the right to enter upon the Developer Tract (but not into any building) to perform any necessary work or fumish any necessary materials or services to cure the default of the Developer/Defaulting Party. Each Party shall be responsible for the default of its Occupants. In the event that any Non -Defaulting Party shall cure a default, the Developer/Defaulting Party shall reimburse the Non -Defaulting Party for all costs and expenses incurred in connection with such curative action, plus interest as provided herein, within ten (10) days of receipt of demand, together with reasonable documentation supporting the expenditures made. Notwithstanding anything to the contrary contained herein, in the event that the Defaulting Party is either the Village or Library, with the exception of the plowing of the Biesterfield Driveway, Development shall only have the right to cure such default which is curable by the payment of money, Developer acknowledging that it has no right to perform or enter the Village or Library Tracts for the purpose of performing any of the obligations of either the Village or Library, the same being municipal properties. Developer's sole and exclusive remedy for any other default of either the Village or Library shall be specific performance. C. No waiver by any Party of any default under this REA shall be effective or binding on such Party unless made in writing by such Party and no such waiver shall be implied from any omission by a Party to take action in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers or any default under any provision of this REA shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provision contained in this RFA. MR-DATAWLKGREA&DOC 8 3/13.97 D. Each Non -Defaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto or any other person violating or attempting to violate or defaulting upon any of the provisions contained in this REA, and to recover damages for any such violation or default. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants or conditions of this REA, or to obtain a decree to compel performance of any such terms, covenants or conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under this REA or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. 7. Notices. All notices, demands and requests (collectively the "notice") required or permitted to be given under this REA must be in writing, sent to each party, and shall be deemed to have been given as of the date such notice is (i) delivered to each Party, (ii) delivered to the then current address of each Party, or (iii) rejected at the then current address of any Party, provided such notice was sent prepaid. The initial addresses of the Parties shall be: To Developer: With copies to: To the Village: With copies to: And: Hamilton Partners 300 Park Boulevard Itasca, Illinois 60143 Attn: James Sheridan J. Kelly Bufton D'Ancona & Pflaum 30 North LaSalle Street, Suite 2900 Chicago, Illinois 60602 Village of Elk Grove Village 901 Wellington Avenue Elk Grove, Illinois 60007-3499 Attn: Village President, and Attn: Village Manager George Knickerbocker Samelson, Knickerbocker & Payne 575 Lee Street Des Plaines, Illinois 60126 Mary Riordan Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 1AR-DATA\ELKGREA6.DOC Q 3/13197 To the Library: Elk Grove Village Public Library 1001 Wellington Avenue Elk Grove Village, Illinois 60007 Attention: Library President & Library Director With a copy to: Klein, Thorpe and Jenkins, Ltd. 180 North LaSalle Street, Suite 1600 Chicago, Illinois 60601 Attention: E. Kenneth Friker Upon at least ten (10) days prior written notice, each Party shall have the right to change its address to any other address within the United States of America. Each Party shall receive a copy of any notice sent. 8. Binding Effect. The terms of this REA and all easements granted hereunder shall constitute covenants running with the land and shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. This REA is not intended to supersede, modify, amend or otherwise change the provisions of any prior instrument affecting the land burdened hereby, not otherwise in conflict with the provisions of this REA. 9. Counterparts and Signature Pages. This REA may be executed in several counterparts, each of which shall be deemed an original. The signatures to this REA may be executed and notarized on separate pages and when attached to this REA shall constitute one complete document. This Agreement shall be effective only when all Parties have executed and delivered to each other an executed counterpart. 10. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any Tract or portion thereof to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Party hereto shall inure to the benefit of any third -party person, nor shall any third -party person be deemed to be a beneficiary of any of the provisions contained herein. 11. Amendments and Estoppels. This REA may be amended only by a written agreement signed by all of the then current owners of the Tracts and shall be effective only when recorded in the county and state where the Tracts are located. No consent to the amendment of this REA shall ever be required of any occupant or person other than an owner, nor shall any occupant or person other than the Parties have any right to enforce any of the provisions hereof, except as specifically permitted by the terms of this REA. Each Party shall at any time and from time to time upon not less than thirty (30) days prior written notice from any other Party execute, acknowledge and deliver to the requesting Party a statement in writing (a) certifying that this REA is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this REA, as so modified, is in full force and effect) and (b) acknowledging that there are not, to the requested Party's knowledge, any uncured defaults on the part of the requesting Party hereunder, or specifying such defaults if any are claimed. Any such statement may be relied upon by any prospective purchaser, tenant, subtenant, assignee, or encumbrancer of a Tract. The requested Party's failure to deliver such statement within such time shall be conclusive upon such requested Party (i) that this REA is in full force and effect, without modification except as may be represented by the requesting Party and (ii) that there are no uncured defaults in the requesting Party's performance. r 12. Mitigation of Damages. In all situations arising out of this REA, all Parties shall attempt to avoid and mitigate the damages resulting from the conduct of any other Party. Each Party hereto shall take all reasonable measures to effectuate the provisions of this REA. 13. REA Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of this REA shall entitle any Party to cancel, rescind or otherwise terminate this REA. 1AR-DATMELKGREA&DOC 10 3n397 14. Time. Time is of the essence of this REA. 15. No Waiver. The failure of any party to insist upon strict performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies which that Party may have hereunder, at law or in equity and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions. 16. Severability. Invalidation of any of the provisions contained in this REA, or of the application thereof to any person by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person and the same shall remain in full force and effect. 17. Negation of Partnership. None of the terms or provisions of this REA shall be deemed to create a partnership between or among the Parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. No Party shall have the right to act as an agent for another Party, unless expressly authorized to do so herein or by separate written instrument signed by the Party to be charged. 18. Term of this REA. This REA shall be effective upon recordation and shall continue in full force and effect until 11:59 p.m. on December 31, 2050. However, the easement to the Developer for the Biesterfield Driveway, and the easements to the Village for the outdoor siren and the construction, maintenance and use of the Plaza shall survive this document. Except as specifically set forth elsewhere in this Agreement, upon termination of this REA, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this REA, shall terminate and have no further force or effect; provided however, that the termination of this REA shall not limit or affect any remedy at law or in equity that a Party may have against any other Party with respect to any liability or obligation arising or to be performed under this REA prior to the date of such termination. 19. Subordination. Developer shall obtain and deliver to Village, simultaneously with the execution hereof, in recordable form, an agreement with any present mortgagee, trustee under any deed of trust, or other party with an interest in the Developer Tract, setting forth that the rights of such mortgagee, trustee or other party are subordinate and subject to this REA. 20. Delegation. Nothing in this REA shall be deemed to prohibit the allocation or delegation of responsibilities and/or obligations pursuant to separate agreements between or among Parties and their respective occupants, provided however, the Party shall remain responsible and liable for the performance of such obligations, and in such event the person to whom such responsibility or obligation is delegated shall be entitled to enforce such responsibilities and obligations as set forth in this REA, and in the case of the Self Help Right referred to In Section 1(B), above, without further consent of the Parties hereto. 21. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their permitted assignees and designees, and shall be directly enforceable by said Parties, assignees and designees, only. 22. Community Activities. The Village shall have the right, whhout obtaining the approval of any Party, to utilize the Plaza Area (induding the areas adjacent to Retail B and Retail C as indicated on Exhibit D) for such community activities as the Village shall deem necessary or desirable. In such event, the Village shall provide not less than twenty-one (21) days prior notice to the other Parties. f The Library shall have the right, after first obtaining the approval of the Village or such other approvals as may be required by law, to utilize the Plaza Area (including the areas adjacent to Retail B and Retail C as indicated on Exhibit D) for such community activities as the Library shall deem necessary or desirable. In such event, the Library shall provide not less than twenty-one (21) days prior notice to the other Parties and shall have priority in using the Plaza Area over non-govemmental parties. However, all use of the IAR-DATAIELKGREA6.00C 11 V13r97 Plaza shall be on "first come -first serve" basis if the Village has committed the use of the Plaza Area to another party prior to the Library giving notice of its intended use to the Village. 23. Redevelopment Agreement Conflicts. Developer and the Village acknowledge that they are parties to that certain agreement ("Redevelopment Agreement") dated March 11, 1997. The Parties hereto acknowledge and agree that, in the event of a conflict between the terms of this REA and the terms of the Redevelopment Agreement, the Redevelopment shall control. (SIGNATURE PAGE FOLLOWS) OR-DATAWLKGREMMOC 12 WNW IN WITNESS WHEREOF, the Parties have caused this REA to be executed by their duty authorized representatives effective as of the day and year first above written. ELK GROVE VILLAGE, an Illinois municipal corporation By: Name: ELK GROVE TOWN CENTER, L.L.C., an Illinois limited liability company, By: Name: Title: THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE, COOK COUNTY, ILLINOIS s THIS DOCUMENT PREPARED BY AND UPON RECORDING MAIL TO: Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 1:%R-DATANELKGREA6.DOC 13 W13197 IN WITNESS WHEREOF, the Parties have caused this REA to be executed by their duly authorized representatives effective as of the day and year first above written. ELK GROVE VILLAGE, an Illinois ELK GROVE TOWN CENTER, .L.C., an Illinois municipal corporation limited liab,341company, �� \ By:By: Name: Nai THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF ELK GROVE VILLAGE, COOK COUNTY, ILLINOIS Name: THIS DOCUMENT PREPARED BY AND UPON RECORDING MAIL TO: Polsky & Riordan, Ltd. 205 North Michigan Avenue, Suite 3909 Chicago, Illinois 60601 1AR-DATMELKGREA6.00C 13 3/13/97 STATE OF ILLINOIS ) } SS. COUNTY OF COOK) I, Mary Riordan, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Dennis Gallitano, the President of Elk Grove Village, an Illinois municipal corporation, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such President appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act and as the free and voluntary act of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this 13t y of March, 9 N t ry Publi I JAELKGREMMOC 15 3/1&97 STATE OF ILLINOIS) COUNTY OF COOK) SS. I, Mary Riordan, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that James L. Sheridan, a member of the Elk Grove Town Center, L.L.C., an Illinois limited liability company, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such member appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act and as the free and voluntary act of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this 13th N' March, 19 7. Notary Public J: ELKGREA6.DOC 16 3riW STATE OF SS. COUNTY OF COOK RRk'a S. ScKvrrq*i✓a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that DO -400 JIL✓AOIAJ- w , '04.45/nb✓T of the Elk Grove Village Library is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such /AEI lei eWT , appeared before me this day in person and acknowledged that (s)he signed and delivered said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this OF CIAL SEAL W�L['H J SCHUMANN NOTAP.Y FI�BLIC STATE OF ILLINOIS MY CQM'11 105" EX , AUC. 28,1998 13 C� day of March, 1997. MINIM N. WA My Commission expires: 1AR-DATMELKGREAe.DOC 17 3/13/97 Exhibit A The Village Tract shall be the parcel indicated as the Village Tract on Exhibit D attached hereto. A complete legal description shall be inserted when available. Exhibit B The Developer Tract shall be the parcel indicated as the Developer Tract on Exhibit D attached hereto. A complete legal description shall be inserted when available. Exhibit C The Library Tract shall be the parcel indicated as the Library Tract on Exhibit D attached hereto. A complete legal description shall be inserted when available. EXHIBIT � LY' F IF kEEMMOR 0 z m O