Loading...
HomeMy WebLinkAboutOrd 6667 02/21/2023 Redevelopment agreement for salerno and whiskey hill brewing coORDINANCE NO. 6667 AN ORDINANCE AUTHORIZING THE REDEVELOPMENT AGREEMENT FOR R. SALERNO RESTAURANT GROUP D/B/A SALERNO'S PIZZERIA AND WHISKEY HILL BREWING CO. AT THE PROSPECT PLACE DEVELOPMENT IN THE PROSPECT AND MAIN TIF DISTRICT OF THE VILLAGE OF MOUNT PROSPECT, ILLINOIS NOW, THEREFORE, BE IT ORDAINED, by the Mayor and Board of Trustees of the Village of Mount Prospect, Cook County, Illinois, as follows: SECTION 1: The Mayor and Board of Trustees of the Village find as follows: A. The Village of Mount Prospect ("Village") is a home rule municipality pursuant to Section 6 of Article VI I of the Constitution of the State of Illinois. B. The Village is authorized under the provisions of the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-1, et seq., as amended (the "Act"), to finance redevelopment in accordance with the conditions and requirements set forth in the Act. C. Pursuant to Ordinance Numbers 6293, 6294 and 6295, adopted January 17, 2017, the Village designated the tax increment redevelopment project area ("Redevelopment Project Area"), approved a tax increment 2 redevelopment plan and project ("TIF Plan"), and adopted tax increment financing relative to the Village's Prospect and Main Tax Increment Financing District ("TIF District"), said TIF District being legally described and depicted as set forth in EXHIBIT A-1 and EXHIBIT A-2, respectively, attached hereto and made part hereof. D, The R. Salerno Restaurant Group (the "Developer") seeks to establish the Whiskey Hill Brewing Co. and Salerno Pizzeria restaurants in 6,400 square feet of retail space on the first floor of the Prospect Place mixed-use building ("the Project") under construction at Main Street and Prospect Avenue in downtown Mount Prospect ("the Business Location"). Developer will invest One Million One Hundred Thousand and No/100 Dollars in the Project. It is necessary for the successful completion of the Project that the Village enter into this Agreement with the Developer to provide for the redevelopment of the Property, thereby implementing the TIF Plan. E. The Developer has been and continues to be unable and unwilling to undertake the Project, but for certain tax increment financing ("TIF") incentives, with regard to the purchase price of brewing equipment and for the construction of the Whiskey Hill Brewing Co. and Salerno Pizzeria restaurants at the Business Location, not to exceed Three hundred Thousand and No/100 dollars ($300,000.00), to be provided by the Village in accordance with the Act and the home rule powers of the Village, which the Village is willing to provide under the terms and conditions contained herein. The Parties acknowledge and agree that but for the aforementioned TIF incentives, to be provided by the Village, Developer cannot successfully and economically develop the Project in a manner satisfactory to the Village. The Village has determined that it is desirable and in the Village's best interest to assist Developer in the manner set forth herein, and as this Agreement may be supplemented and amended from time to time pursuant to the mutual agreement of the Parties and in the manner as herein provided. F. This Agreement has been submitted to the Corporate Authorities of the Village for consideration and review, the Corporate Authorities have taken all actions required to be taken prior to the execution of this Agreement in order to make the same, and any and all actions taken by the Village in furtherance hereof, binding upon the Village according to the terms hereof, and any and all actions of the Corporate Authorities of the Village precedent to the execution of this Agreement have been undertaken and performed in the manner required by law. G. This Agreement has been submitted to the Developer for consideration and review, the Developer has taken all actions required to be taken prior to the execution of this Agreement in order to make the same binding upon the Developer according to the terms hereof, and any and all action of the Developer precedent to the execution of this Agreement has been undertaken and performed in the manner required by law. H. It is the desire of the Village to approve the "Redevelopment Agreement for the Whiskey Hill Brewing Co" at Prospect Place Development comprising a part of the Prospect and Main TIF District of the Village of Mount Prospect, Illinois," attached hereto as EXHIBIT A and made part hereof. SECTION 2: Based upon the foregoing, the Village Mayor, Village Clerk and Village Manager, or their designees, be and are hereby authorized and directed to execute the attached Redevelopment Agreement and perform the Village's obligations thereunder. SECTION 3: This Ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form as provided by law. ADOPTED this 21st day of February 2023 pursuant to a roll call vote as follows: AYES: Gens, Matuszak, Rogers, Saccotelli, Zadel NAYS: None ABSENT: None RECUSE: Filippone APPROVED this 21 st day of February 2023, by the Village Mayor of the Village of Mount Prospect, and attested by the Villageglerk, on the sane day. MOMMITIFIRIM APPROVED and FILED in my office this 22nd day of February 2023 and published in pamphlet form in the Village of Mount Prospect, Cook County, Illinois. ATTEST: �z �ly"41 �- Village erk REDEVELOPMENT AGREEMENT FOR THE WHISKEY HILL BREWING CO. AT PROSPECT PLACE DEVELOPMENT COMPRISING A PART OF THE PROSPECT AND MAIN TIF DISTRICT OF THE VILLAGE OF MOUNT PROSPECT, ILLINOIS This Redevelopment Agreement For the Whiskey Hill Brewing Co. at Prospect Place Development Comprising A Part Of The Prospect And Main TIF District Of The Village Of Mount Prospect, Illinois (the "Agreement") is made and entered into as of the 29 day of, 2023 (the "Effective Date") by and between the Village of Mount Prospect, Illinois, an Illinois home rule municipal corporation (the "Village") and R. Salerno Restaurant Group D/B/A Salerno's Pizza and Whiskey Hill Brewing Co. (the "Developer") (the Village and the Developer are sometimes referred to herein individually as a "Party," and collectively as the "Parties"). WITNESSETH: IN CONSIDERATION of the Preliminary Statements, the mutual covenants herein contained, and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties hereto agree as follows: PRELIMINARY STATEMENTS Among the matters of mutual inducement which have resulted in this Agreement are the following: A. The Village is a home rule unit of government in accordance with Article VII, Section 6 of the Constitution of the State of Illinois, 1970. B. The Village has the authority, pursuant to the laws of the State of Illinois, to promote the health, safety and welfare of the Village and its inhabitants, to prevent the presence of blight, to encourage private development in order to enhance the local tax base and increase additional tax revenues realized by the Village, to foster increased economic activity within the Village, to increase employment opportunities within the Village, and to enter into contractual agreements with third parties for the purpose of achieving the aforesaid purposes, and otherwise take action in the best interests of the Village. C. The Village is authorized under the provisions of the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-1, et seq., as amended (the "Act"), to finance redevelopment in accordance with the conditions and requirements set forth in the Act. D, Pursuant to Ordinance Numbers 6293, 6294 and 6295, adopted January 17, 2017, the Village designated the tax increment redevelopment project area (the "Redevelopment Project Area"), approved a tax increment redevelopment plan and project (the "TIF Plan"), and adopted tax increment financing relative to the Village's Prospect and Main Tax Increment Financing District (the "TIF District"); said TIF District being legally described and depicted as set forth in EXHIBIT A-1 and EXHIBIT A-2, respectively, attached hereto and made part hereof. E, Developer seeks to establish the Whiskey Hill Brewing Co. and restaurants in 6,400 square feet of retail space on the first floor of the Prospect Place mixed-use building ("the Project") under construction at Main Street and Prospect Avenue in downtown Mount Prospect ("the Business Location"). Developer will invest One Million One Hundred Thousand and No/100 Dollars in the Project It is necessary for the successful completion of the Project that the Village enter into this Agreement with the Developer to provide for the redevelopment of the Property, thereby implementing the TIF Plan. F. The Developer has been and continues to be unable and unwilling to undertake the Project, but for certain tax increment financing ("TIF") incentives, with regard to the purchase price of brewing equipment and for the construction of the Whiskey Hill Brewing Co. and restaurants at the Business Location, not to exceed Three hundred Thousand and No/100 dollars ($300,000.00), to be provided by the Village in accordance with the Act and the home rule powers of the Village, which the Village is willing to provide under the terms and conditions contained herein. The Parties acknowledge and agree that but for the aforementioned TIF incentives, to be provided by the Village, Developer cannot successfully and economically develop the Project in a manner satisfactory to the Village. The Village has determined that it is desirable and in the Village's best interest to assist Developer in the manner set forth herein, and as this Agreement may be supplemented and amended from time to time pursuant to the mutual agreement of the Parties and in the manner as herein provided. G. This Agreement has been submitted to the Corporate Authorities of the Village (as defined below) for consideration and review, the Corporate Authorities have taken all actions required to be taken prior to the execution of this Agreement in order to make the same, and any and all actions taken by the Village in furtherance hereof, binding upon the Village according to the terms hereof, and any and all actions of the Corporate Authorities of the Village precedent to the execution of this Agreement have been undertaken and performed in the manner required by law. K This Agreement has been submitted to the Developer for consideration and review, the Developer has taken all actions required to be taken prior to the execution of this Agreement in order to make the same binding upon the Developer according to the terms hereof, and any and all action of the 2 Developer precedent to the execution of this Agreement has been undertaken and performed in the manner required by law. The Village is desirous of having the Redevelopment Project Area rehabilitated, developed and redeveloped in accordance with the TIF Plan, and particularly the Project as a part thereof, in order to serve the needs of the Village, arrest physical decay and decline in the Redevelopment Project Area, increase employment opportunities, stimulate commercial growth and stabilize the tax base of the Village and, in furtherance thereof, the Village is willing to offer Developer the TIF incentives referenced in subsection F. above, under the terms and conditions hereinafter set forth, to assist such development. II. DEFINITIONS For the purposes of this Agreement, unless the context clearly requires otherwise, words and terms used in this Agreement shall have the meanings provided from place to place herein, and as follows: A. "Change in Law" means the occurrence, after the Effective Date, of an event described below in this definition, provided such event materially changes the costs or ability of the Party relying thereon to carry out its obligations under this Agreement and such event is not caused by the Party relying thereon: Change in Law means any of the following: (1) the enactment, adoption, promulgation or modification of any federal, State or local law, ordinance, code, rule or regulation (other than by the Village, or, with respect to those made by the Village, only if they violate the terms of this Agreement); (2) the order or judgment of any federal or State court, administrative agency or other governmental body (other than the Village); or (3) the adoption, promulgation, modification or interpretation in writing of a written guideline or policy statement by a governmental agency (other than the Village, or, with respect to those made by the Village, only if they violate the terms of this Agreement). Change in Law, for purposes of this Agreement, shall also include the imposition of any conditions on, or delays in, the issuance or renewal of any governmental license, approval or permit (or the suspension, termination, interruption, revocation, modification, denial or failure of issuance or renewal thereof) necessary for the undertaking of the actions to be performed under this Agreement (except any imposition of any conditions on, or delays in, any such issuance or renewal by the Village, except as provided herein). B. "Corporate Authorities" means the Mayor and Board of Trustees of the Village of Mount Prospect, Illinois. C. "Day" means a calendar day. D. "Effective Date" means the day on which this Agreement is executed by the Village, with said date appearing on page 1 hereof. E, "Incremental Property Taxes" means that portion of the ad valorem real estate taxes, if any, arising from the taxes levied upon the Property, which taxes are actually collected and paid to the Village, and which are attributable to the increase in the equalized assessed valuation ("EAV") of the Property over and above the EAV of the Property at the time of the formation of the TIF District, all as determined by the County Clerk of the County of Cook, Illinois, pursuant to and in accordance with the TIF Act, the TIF Ordinances and this Agreement, and which have been received by the Village on and after the Commencement Date (as defined in Section XI.A. below). F. "Incentive Fund" means the special fund set up by the Village into which the Village will deposit Incremental Property Taxes generated by the Project. G. "Party" or "Parties" means the Village and/or the Developer, individually/collectively, and their respective successors and/or assigns as permitted herein, as the context requires. H, "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, or government or any agency or political subdivision thereof, or any agency or entity created or existing under the compact clause of the United States Constitution. "State" means the State of Illinois.. J. "TIF Eligible Redevelopment Costs" means the costs of the Project, to be reimbursed, in part, from Incremental Property Taxes pursuant to the TIF Act, and permitted to be reimbursed as a "redevelopment project cost" in Section 3(q) of the TIF Act, 65 ILCS 5/11-74.4-3(q), by the Village, as provided in this Agreement. K. "TIF Ordinances" means those Ordinances referenced in subsection I.D. above. L, "Uncontrollable Circumstance" means any event which: 1. is beyond the reasonable control of and without the fault of the Party relying thereon; and 2. is one or more of the following events: C! a. a Change in Law; b. insurrection, riot, civil disturbance, sabotage, act of the public enemy, explosion, fire, nuclear incident, war or naval blockade; C. epidemic, hurricane, tornado, landslide, earthquake, lightning, fire, windstorm, other extraordinary or ordinary weather conditions or other similar act of God; d. governmental condemnation or taking other than by the Village; e. strikes or labor disputes, or work stoppages not initiated by the Developer or the Village; f. unreasonable delay in the issuance of building or other permits or approvals by the Village or other governmental authorities having jurisdiction other than the Village including but not limited to the Illinois Department of Transportation ("IDOT"), the Metropolitan Water Reclamation District of Greater Chicago ("MWRD") and/or the Illinois Environmental Protection Agency ("IEPA"); g, shortage or unavailability of essential materials, which materially change the ability of the Party relying thereon to carry out its obligations under this Agreement; h, unknown or unforeseeable geo-technical or environmental conditions; i. major environmental disturbances, which delay construction by more than thirty (30) days; j. vandalism; or k. terrorist acts. Uncontrollable Circumstance shall not include: economic hardship; unavailability of materials (except as described in subsection 2.g. above); or a failure of performance by a contractor (except as caused by events which are Uncontrollable Circumstances as to any applicable contractor). For each day that the Village or the Developer is delayed in its performance under this Agreement by an Uncontrollable Circumstance, the dates set forth in this Agreement shall be extended by one (1) day without penalty or damages to either Party. K "Village Code" means the Village of Mount Prospect Village Code, as amended. III. CONSTRUCTION OF TERMS This Agreement, except where the context by clear implication shall otherwise require, shall be construed and applied as follows: 5 A. Definitions include both singular and plural. B. Pronouns include both singular and plural and cover all genders. C� The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation". D. Headings of Sections herein are solely for convenience of reference and do not constitute a part hereof and shall not affect the meaning, construction or effect hereof. E. All exhibits attached to this Agreement shall be and are operative provisions of this Agreement and shall be and are incorporated by reference in the context of use where mentioned and referenced in this Agreement. In the event of a conflict between any exhibit and the terms of this Agreement, the Agreement shall control. F. Any certificate, letter or opinion required to be given pursuant to this Agreement means a signed document attesting to or acknowledging the circumstances, representations, opinions of law or other matters therein stated or set forth. Reference herein to supplemental agreements, certificates, demands, requests, approvals, consents, notices and the like means that such shall be in writing whether or not a writing is specifically mentioned in the context of use. G. The Village Manager, unless applicable law requires action by the Corporate Authorities, shall have the power and authority to make or grant or do those things, certificates, requests, demands, notices and other actions required that are ministerial in nature or described in this Agreement for and on behalf of the Village and with the effect of binding the Village as limited by and provided for in this Agreement. The Developer is entitled to rely on the full power and authority of the Persons executing this Agreement on behalf of the Village as having been properly and legally given by the Village. H. In connection with the foregoing and other actions to be taken under this Agreement, and unless applicable documents require action by Developer in a different manner Developer hereby designates as its authorized representative who shall individually have the power and authority to make or grant or do all things, supplemental agreements, certificates, requests, demands, approvals, consents, notices and other actions required or described in this Agreement for and on behalf of the Developer and with the effect of binding the Developer in that connection (such individual being designated as an "Authorized Developer Representative"). The Developer shall have the right to change its 3 Authorized Developer Representative by providing the Village with written notice of such change from both authorized representatives which notice shall be sent in accordance with Section XVII.B. of this Agreement. IV. COOPERATION OF THE PARTIES The Village and the Developer agree to cooperate in implementing the Project in accordance with the Parties' respective obligations set forth in this Agreement, and specific approvals by the Village in the future, relative to the development of the Project, including zoning applications relative thereto, and Village -issued permits and approvals relative thereto. V. DEVELOPMENT OF THE PROJECT A. Approvals, Permits, Construction, and Completion. The Developer shall, subject to Uncontrollable Circumstances: 1. On or before June 1, 2023, apply for all necessary permits and approvals from all governmental agencies having jurisdiction over the Project as may be required to commence construction of the Project. Z On or before July 1, 2023, commence construction of the Project. 3. On or before October 1, 2023, complete construction of the Project and open Salerno's and Whiskey Hill restaurants 4. On or before December 1, 2023, obtain a Certificate of Project Completion (as defined in Section X.A. below). B. Incentive Amount. t The Village shall reimburse Developer for TIF Eligible Redevelopment Costs, in relation to the Project, in an amount not to exceed Three Hundred Thousand and No/100 Dollars ($300,000) from the Incentive Fund (the "Funding Cap"). The Village shall pay to the Developer Two Hundred Thousand and No/100 Dollars ($200,000) at the opening of Whiskey Brewing Company and the restaurants and One Hundred Thousand and No/100 Dollars ($100,000) on the one-year anniversary of continuous business operation (the Payment Dates") of Whiskey Hill Brewing Company and restaurants at the Business Location. 2. The total amount paid by the Village to the Developer from the Incentive Fund shall not exceed the Funding Cap. VA 3. Beginning on the Commencement Date, the Village shall deposit Incremental Property Taxes into the Incentive Fund. The Village shall pledge and rely solely upon Incremental Property Taxes for reimbursement to the Developer for TIF Eligible Redevelopment Costs and no other revenue sources. 4. Some of the TIF Eligible Redevelopment Costs are set forth on EXHIBIT F attached hereto and made a part hereof, relative to the Project. The Developer shall only be entitled to receive payment of TIF Eligible Redevelopment Costs up to the Funding Cap. C. Conditions and Procedure for Payment of Incentives. 1. The Village's obligation to reimburse the Developer in relation to the Project from the Incentive Fund is subject to the following conditions precedent, in addition to those set forth elsewhere in this Agreement: (i) Acquisition by the Developer of all necessary Village zoning approvals for the Project; (ii) The Developer being current with all Federal, State and local tax obligations; (iii) The Developer obtaining a temporary certificate of occupancy for the Project; (iv) The Developer, to receive the second payment of One Hundred Thousand and No/100 Dollars, must achieve one year of continuous business operation of Whiskey Hill Brewing Company and restaurants in the Business Location; (v) The Incentive Fund having adequate Incremental Property Taxes to pay the amounts requested for reimbursement by the Developer; (vi) The Developer is in compliance with the covenants, obligations and agreements in Sections VII, VIII, IX and XI of this Agreement; and (vii) The Developer is otherwise in compliance with all of the terms of this Agreement and the laws and regulations of the Village, the State of Illinois and the United States of America. 2. The Village shall reimburse the Developer from Incremental Property Taxes deposited into the Incentive Fund, subject to the Funding Cap, for the Developer's actual expenditures of TIF Eligible Redevelopment Costs, including but not limited to those set forth on, and in the amounts included in, EXHIBIT F, relative to the Project (the "TIF Incentive Rebate"), whether incurred by the Developer prior to or after the Effective Date. Said TIF Incentive Rebate shall be paid to the Developer as follows: (i) The Village shall pay Incremental Property Taxes from the Incentive Fund to the Developer at the Payment Dates, provided the Village is in receipt of the Developer's request for reimbursement of TIF Eligible Redevelopment Costs documented by the Developer to have been incurred and paid for by the Developer in relation to the Project (which documentation shall accompany each such request for reimbursement). Requests for reimbursement of TIF Eligible Redevelopment Costs paid by the Developer shall be forwarded to the Village's Finance Director, accompanied by a fully executed lien waiver, copy of the paid receipt or other proof of payment therefor, and any other information reasonably requested by the Village. The Village shall review the request and determine if it should be paid, and if so, the Village shall pay such request for reimbursement at the Payment Dates, provided there are sufficient Incremental Property Taxes within the Incentive' Fund to do so. If the Village elects to withhold or deny such payment, the Village shall promptly (and in any event not later than the date payment would otherwise have been due) advise the Developer in writing as to the specific basis for the Village's position. In the event the Developer does not make timely submittal of documentation in support of its request for reimbursement of TIF Eligible Redevelopment Costs, the Village is willing to consider on a case-by-case basis making a reimbursement after the Payment Dates. (ii) If the Developer requests reimbursement from Incremental Property Taxes from the Incentive Fund, and if the Village authorizes the distribution of such funds in an amount greater than the then -existing balance of Incremental Property Taxes in the Incentive Fund, the Village shall distribute any approved but undistributed TIF Incentive Rebate to Developer on the applicable Payment Date, provided that the Village has received and deposited additional Incremental Property Taxes into the Incentive Fund, in an amount sufficient to cover all or a part of said authorized but undistributed TIF Incentive Rebate. No interest shall accrue on any amount of authorized but undistributed TIF Incentive Rebate. E (iii) The TIF Incentive Rebate paid to the Developer shall only be paid from Incremental Property Taxes actually received by the Village from the Project. (iv) In the event that the Village ceases to receive Incremental Property Taxes from the Project, as a result of a Change in the Law, and no alternate tax is enacted to replace the Incremental Property Taxes: (a) The Village shall not be obligated to make any further TIF Incentive Rebate payments hereunder; and (b) The Village shall pay the Developer on an annual basis, an amount equal to Village's general property tax levy for the Property, excluding amounts levied for debt thereon ("Property Tax Backstop"), until the sooner of the TIF Incentive Rebate being fully paid, by adding the total Incremental Property Taxes and Property Tax Backstop paid to the Developer, or twenty-five (25) years from the date on which the Village ceases to receive Incremental Property Taxes from the Project. (v) The TIF Incentive Rebate by the Village shall cease upon the Developer's receipt of the full amount of the Funding Cap or the expiration of the Term (as defined in Section XVII.P. below) of this Agreement, whichever occurs first. (vi) Subject to Uncontrollable Circumstances, if at any time the Project ceases to operate during the term of this Agreement, the payment of Increment Property Taxes shall cease, and shall not be reinstated thereafter. 3. The TIF Incentive Rebate is not a general obligation of the Village, and the Village's full faith and credit are not pledged or encumbered to provide the Developer with the TIF Incentive Rebate. 4, A delineation of the TIF Eligible Redevelopment Costs for the Project is set forth in EXHIBIT F, and the Village shall not reimburse the Developer for any costs of the Project not listed on said EXHIBIT F. VI. UNDERTAKINGS ON THE PART OF THE VILLAGE A. The Village agrees to:. 10 Cooperate with Developer in Developer's attempts to obtain all necessary approvals, licenses and/or permits from any governmental or quasi -governmental entity other than the Village and, upon request of Developer, will promptly execute any applications or other documents (upon their approval by the Village) which Developer intends to file with such other governmental agencies, quasi -governmental agencies and/or utility companies in regard to the Project. Z Waive the fee for the connection of the Business Location to the Village's water supply and sanitary sewer supply occurring during the construction of the Project. 3. Waive building permit, inspection, and occupancy permit fees, which waiver shall operate to reduce, dollar for dollar, the TIF reimbursement amount due and owing to Developer. B. The Village shall further promptly respond to, and/or process, and consider reasonable requests of Developer for applicable building approvals and/or permits, driveway permits, drive thru permits, special use permits (if and to the extent applicable), curb cut permits, or other approvals, permits and/or licenses necessary for the construction of the Project. Approval of any building approvals and/or permit applications and/or engineering plans and/or operating licenses (including liquor licenses, subject to the applicant therefor being qualified to receive same under both State law and the Village's ordinances) shall be contingent on the Developer providing all required and requested documentation including, but not limited to, building plans required to substantiate that said improvements fully conform with all applicable State statutes and also all Village ordinances and codes, as well as receipt of all required building approvals from any federal, state, regional or county agencies having applicable jurisdiction. VII. DEVELOPER'S OBLIGATIONS Developer shall have the obligations set forth below, in addition to those set forth elsewhere in this Agreement, for the development, construction, financing, completion and furtherance of the Project: A. Use of Funds. The Developer shall use Incremental Property Taxes solely for TIF Eligible Redevelopment Costs. B. Constructions in Accordance with Approvals and Laws. The Developer shall construct the Project materially and substantially in conformance with the approvals therefor from the Village. The Developer shall pay or cause to be paid all building -related fees required by the Village Code, except as waived or modified in this Agreement. The Developer shall at all times 11 acquire, install, construct, operate and maintain the Project in substantial conformance with all applicable laws, rules, ordinances, and regulations. All work with respect to the Project shall substantially conform to all applicable federal, State and local laws, regulations and ordinances, including, but not limited to, zoning, subdivision and planned development codes, building codes, environmental laws (including any law relating to public health, safety and the environment and the amendments, regulations, orders, decrees, permits, licenses or deed restrictions now or hereafter promulgated thereafter), life safety codes, property maintenance codes and any other applicable codes and ordinances of the Village, or any of its rules or regulations or amendments thereto which are applicable to all properties in the Village and are in effect from time to time during the construction and maintenance of the Project and/or during the term of this Agreement. C. Construction Staging. During the initial construction of the Project as herein contemplated, the Developer shall stage its construction of the Project to avoid to the fullest extent possible any material community disruption. During construction, the Developer shall also keep all public streets used by the Developer clean on a daily basis, and for each day in which such public streets are not properly clean and such condition is not remedied within twenty four (24) hours of written notice to Developer, the Developer shall pay the Village the sum of Two Hundred Fifty and No/100 Dollars ($250.00) for each such violation. Developer shall park and stage all construction equipment, materials and vehicles to be used in relation to the construction of the Project at the Business Location. D. Sufficient Funds. Developer shall submit written evidence to the Village, in a form and substance reasonably satisfactory to the Village, that Developer has access to sufficient funds to pay any costs of the Project within ninety (90) days after the Effective Date. Such evidence can include, without limitation, commitments for financing and/or letters of credit from a lender, and/or investor commitments, for the anticipated costs of such Project. E. Meetings with Village. Developer shall meet with the Corporate Authorities and Village staff and make presentations to the Corporate Authorities and Village staff as reasonably requested by the Village Mayor or Village Manager in order to keep the Village apprised of the progress of the Project. VIII. ADDITIONAL COVENANTS OF DEVELOPER A. Continued Existence. Developer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and standing as a business concern licensed by the State of Illinois, so long as this Agreement is in effect, and for so long as Developer has any other 12 remaining obligation pursuant to the terms of this Agreement, whichever is the first to occur. B. Further Assistance and Corrective Instruments. The Village and Developer agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may be reasonably required for carrying out the intention of or effectuating or facilitating the performance of this Agreement to the extent legally permitted and within the Village's and the Developer's sound legal discretion. C. No Gifts. Developer covenants that no director, employee or agent of Developer, or any other Person connected with Developer, has made, offered or given, either directly or indirectly, to any member of the Corporate Authorities, or any officer, employee or agent of the Village, or any other Person connected with the Village, any money or anything of value as a gift or bribe or other means of influencing his or her action in his or her capacity with the Village. D. Disclosure. Concurrently with execution of this Agreement, Developer shall disclose to the Village the names, addresses and ownership interests of all Persons that have an ownership interest in the Developer, together with such supporting documentation that may be reasonably requested by the Village. Developer further agrees to notify the Village throughout the term of this Agreement of the names, addresses and ownership interests of any changes of owners of the Developer. E. Prevailing Wage. Developer shall comply with the Illinois Prevailing Wage Act. Developer warrants and represents that it has reviewed the Illinois Prevailing Wage Act, that it has reviewed the regulations promulgated thereunder, and that it understands the obligations imposed on it by this Section VI I I. E. F. Open Book. The Project shall be an "open book" project, meaning that the Developer and the general contractor (or contractors, if more than one) will assure continuing access to the Village's agents at Developer or general contractor's office for the purpose of reviewing and auditing their respective books and records relating to any item necessary to determine the costs of the Project; provided, however, that all such access shall be limited to normal business hours upon reasonable prior notice and shall not occur more frequently than once per calendar quarter. The foregoing Village review rights shall terminate one (1) year after the issuance of the Certificate of Project Completion with respect to costs for the Project, unless the Developer has failed to make available any such books and/or records requested in writing by the Village. Developer shall provide to the Village copies of any partnership agreements, limited liability company operating 13 agreements, corporate by-laws or joint venture agreements pertaining to the PrepeFty Project to which the Developer is a party; provided that the Developer may, (if Developer has previously provided the Village not less than thirty (30) days to review such confidential financial materials), remove from the copies of such agreements any confidential financial information previously disclosed to the Village and not since changed in form or substance and the Village shall keep such agreements confidential, to the maximum extent permitted by law. All documents made available for review or provided to the Village pursuant to this Section may be proprietary, privileged and confidential and are provided to the Village subject to the protections from disclosure set forth in Section 7(g) of the Freedom of Information Act (5 ILCS 140/7 (g)). Failure to provide the corporate documents or allow review of the financial books within fifteen (15) days after request by the Village shall be an Event of Default. Developer shall exercise prudence and good faith in attempting to contract with persons or entities that are reputable and experienced in their respective areas for the provision of services or material for the design and construction of Project at costs not in excess of market rates. The general contractor (or general contractors) designated by Developer shall be experienced and reputable. IX. ADHERENCE TO VILLAGE CODES AND ORDINANCES Except as otherwise provided for in this Agreement, all development and construction of the Project shall comply in all respects with the provisions in the building, plumbing, mechanical, electrical, storm water management, fire prevention, property maintenance, zoning and subdivision codes of the Village and all other germane codes and ordinances of the Village in effect from time to time during the course of construction of the Project. The Developer, by executing this Agreement, expressly warrants that it has examined and is familiar with all the covenants, conditions, restrictions, building regulations, zoning ordinances, property maintenance regulations, environmental laws (including any law relating to public health, safety and the environment and the amendments, regulations, orders, decrees, permits, licenses or deed restrictions now or hereafter promulgated thereafter) and land use regulations, codes, ordinances, federal, State and local ordinances, and the like, currently in effect. X. SPECIAL CONDITIONS A. Certificate of Project Completion. Within thirty (30) days after written request from Developer, and provided that Developer has not received any notice of default under this Agreement or notice of non-compliance with any Village codes with respect to Developer's construction obligations, any of which have not been cured, and after the Village has issued the final certificate of occupancy for the Project at the Business Location, and has confirmed that the the Project has been constructed in substantial and material compliance with all Village codes and this Agreement, the Village 14 shall deliver a certificate of completion and satisfaction of all construction terms, covenants and conditions contained in this Agreement (the "Certificate of Project Completion") or, if not complete or satisfied, a written statement as to what deficiencies exist, and upon Developer's correction of such issues, the Village shall then promptly issue to Developer a Certificate of Project Completion. The date the Certificate of Project Completion is issued shall be the "Completion Date." B. Certification of Developer's Project Cost. Within thirty (30) days of the issuance of the Certificate of Project Completion, the Developer shall certify, in writing, to the Village, the amount spent by the Developer (inclusive of all hard and soft costs) to complete the Project, and an estimate of the number of jobs to be generated or created by the Project. The sworn statement(s) for construction loan draws relative to the Project shall be provided to the Village with the submittal called for herein. C. Employment Opportunities. To the extent feasible, the Developer shall make reasonable efforts to notify Village residents of employment opportunities that are available relative to the Project, and, to the extent permitted by law, make reasonable efforts to employ qualified residents of the Village in relation to the Project. XI. REPRESENTATIONS AND WARRANTIES OF DEVELOPER Developer represents, warrants and agrees as the basis for the undertakings on its part herein contained that as of the date hereof and until completion of the Project: A. Existence and Authority. Developer is an Illinois corporation, and is authorized to and has the power to enter into, and by proper action has been duly authorized to execute, deliver and perform, this Agreement. Developer is solvent, able to pay its debts as they mature and financially able to perform all the terms of this Agreement. To Developer's knowledge, there are no actions at law or similar proceedings which are pending or threatened against Developer which would result in any material and adverse change to Developer's financial condition, or which would materially and adversely affect the level of Developer's assets as of the date of this Agreement or that would materially and adversely affect the ability of Developer to proceed with the construction and development of the Project. B. No Conflict. Neither the execution and delivery of this Agreement by Developer, the consummation of the transactions contemplated hereby by Developer, nor the fulfillment of or compliance with the terms and conditions of this Agreement by Developer conflicts with or will result in a breach of any of the terms, conditions or provisions of any offerings or disclosure statement made or to be made on behalf of Developer (with Developer's 15 prior written approval), any organizational documents, any restriction, agreement or instrument to which Developer or any of its partners, directors, or venturers is now a party or by which Developer or any of its partners, directors or venturers is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any prohibited lien, charge or encumbrance whatsoever upon any of the assets or rights of Developer, any related party or any of its partners, directors or venturers under the terms of any instrument or agreement to which Developer, any related party or any of its partners, directors or venturers is now a party or by which Developer, any related party or any of its partners, directors or venturers is bound. C. Adequate Resources. Developer has sufficient financial and economic resources to implement and complete Developer's obligations contained in this Agreement. D. No Adverse Notices. Developer represents and warrants that it has not received any notice from any local, State or federal official that the activities of Developer with respect to the Project may or will be in violation of any environmental law or regulation. Developer is not aware of any State or federal claim filed or planned to be filed by any Party relating to any violation of any local, State or federal environmental law, regulation or review procedure, and Developer is not aware of any violation of any local, State or federal law, regulation or review procedure which would give any person a valid claim under any State or federal environmental statute. E, Experience. Developer represents and warrants to the Village that Developer, and its respective principals, are experienced in the development and operation of mixed-use developments similar or comparable to the Project, and are able to provide the Project with the necessary skill, knowledge and expertise as well as input from other experts and consultants in the construction and operation of such a Project. F. Payment of Real Estate Taxes. Developer and successor owners agree to pay or cause to be paid all general and special real estate taxes levied during their respective period of ownership against their respective interest in the Project on or prior to the date same is due and said taxes shall not become delinquent. Developer and successor owners shall deliver evidence of payment of such taxes to the Village upon request. G. No Broker. Developer represents and warrants to the Village that, in connection with this transaction, no third -party broker or finder has been engaged or consulted by it, or its subsidiaries or agents or employees, or, through such the Developer's actions (or claiming through such party), which is entitled to compensation as a consequence of this transaction. 16 XII. REPRESENTATIONS AND WARRANTIES OF THE VILLAGE The Village represents, warrants and agrees as the basis for the undertakings on its part herein contained that: A. Existence. The Village is an Illinois home rule municipal corporation duly organized and validly existing under the laws of the State of Illinois, and has all requisite corporate power and authority to enter into this Agreement. B, Authority. The execution, delivery and performance of this Agreement and the consummation by the Village of the transactions provided for herein and the compliance with the provisions of this Agreement: 1. have been duly authorized by all necessary corporate action on the part of the Village; 2. require no other consents, approvals or authorizations on the part of the Village in connection with the Village's execution and delivery of this Agreement; and 3. shall not, by lapse of time, giving of notice or otherwise result in any breach of any term, condition or provision of any indenture, agreement or other instrument to which the Village is subject. C. Litigation. To the best of the Village's knowledge, there are no proceedings pending or threatened against or affecting the Village or the TIF District in any court or before any governmental authority which involves the possibility of materially or adversely affecting the ability of the Village to perform its obligations under this Agreement. D. Adequate Resources. The Village has sufficient financial and economic resources to implement and complete the Village's obligations contained in this Agreement. E. No Broker. The Village represents and warrants to the Developer that, in connection with this transaction, no third -party broker or finder has been engaged or consulted by it, or its subsidiaries or agents or employees, or, through such the Village's actions (or claiming through such party), is entitled to compensation as a consequence of this transaction. XIII. INSURANCE A. Insurance Coverages. The Developer, and any successor in interest to the Developer, shall obtain and continuously maintain insurance on the Project and, from time to time at the request of the Village, furnish proof to the Village that the premiums for such insurance have been paid and the 17 insurance is in effect. The insurance coverage described below is the minimum insurance coverage that the Developer must obtain and continuously maintain, provided that the Developer shall obtain the insurance described in subsection 1. below prior to the commencement of construction of any portion of the Project: 1. Builder's risk insurance, written on the so-called "Builder's Risk - Completed Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the Project at the date of completion, and with coverage available in non -reporting form on the so-called "all risk" form of policy. 2. Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) together with an Owner's/Contractor's Policy on a primary non-contributory basis naming the Village and its officers, agents and employees as additional insureds, with limits against bodily injury and property damage of not less than $5,000,000.00 for each occurrence (to accomplish the above -required limits, an umbrella excess liability policy may be used), written on an occurrence basis. 3. Workers compensation insurance, with statutory coverage if applicable to the Developer. B. Continuity of Insurance. All insurance required in this Section XIII shall be obtained and continuously maintained through responsible insurance companies selected by the Developer or its successors that are authorized under the laws of the State to assume the risks covered by such policies. Unless otherwise provided in this Section XIII, cancellation relative to each policy shall be as provided by the policy; however, the Village must be named as a cancellation notice recipient. Not less than fifteen (15) days prior to the expiration of any policy, the Developer, or its successor or assign, must renew the existing policy or replace the policy with another policy conforming to the provisions of this Section XIII. In lieu of separate policies, the Developer or its successor or assign, may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein. XIV. INDEMNIFICATION, HOLD HARMLESS AND RELEASE PROVISIONS This Section XIV shall survive the termination of this Agreement. & Release. The Developer releases from and covenants and agrees that the Village, its governing body members, officers, agents, including independent contractors, consultants, attorneys, servants and employees 18 thereof (for purposes of this Section XIV, collectively the "Village Indemnified Parties") shall not be liable for, and agrees to indemnify and hold harmless the Village Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project oF4he44opefty or arising pursuant to the Developer's obligations or warranties under this Agreement or actions in furtherance thereof to the extent not attributable to the gross negligence or willful misconduct of the Village Indemnified Parties; provided, that this waiver shall not apply to the warranties made or obligations undertaken by the Village in this Agreement. B. Indemnification. Except for gross negligence or willful misconduct of the Village Indemnified Parties, Developer agrees to indemnify the Village Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claims, demands, suits, costs, expenses (including reasonable attorney's fees), actions or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of Developer (or if other Persons acting on their behalf or under its direction or control) under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Project. C, No Personal Liability. No liability, right or claim at law or inequity shall attach to or shall be incurred by the Village's Mayor, Trustees, officers, officials, attorneys, agents and/or employees, and any such rights or claims of the Developer against the Village's Mayor, Trustees, officers, officials, attorneys, agents and/or employees are hereby expressly waived and released as a condition of and as consideration for the execution of the Agreement by the Village. XV. EVENTS OF DEFAULT AND REMEDIES A. Developer Events of Default. The following shall be Events of Default with respect to this Agreement: 1, If any material representation made by Developer in this Agreement, or in any certificate, notice, demand or request made by a Party hereto, in writing and delivered to the Village pursuant to or in connection with any of said documents, shall prove to be untrue or incorrect in any material respect as of the date made; provided, however, that such default shall constitute an Event of Default only if Developer does not remedy the default, within thirty (30) days after written notice from the Village and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. 19 2. Default by Developer for a period of thirty (30) days after written notice thereof in the performance or breach of any material covenant contained in this Agreement concerning the existence, structure or financial condition of Developer; provided, however, that such default or breach shall not constitute an Event of Default if such default cannot be cured within said thirty (30) days and Developer, within said thirty (30) days, initiates and diligently pursues appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. 3. Default by Developer for a period of thirty (30) days after written notice thereof in the performance or breach of any material covenant, warranty or obligation contained in this Agreement; provided, however, that such default shall not constitute an Event of Default if such default cannot be cured within said thirty (30) days and the Developer, within said thirty (30) days initiates and diligently pursues appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. 4. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Developer in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or State bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Developer for any substantial part of its property, or ordering the winding -up or liquidation of its affairs and the continuance of any such decree or order unstayed and in effect for a period of ninety (90) consecutive days. 5. The commencement by Developer of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or State bankruptcy, insolvency or other similar law, or the consent by Developer to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of Developer or of any substantial part of the Property, or the making by any such entity of any assignment for the benefit of creditors or the failure of Developer generally to pay such entity's debts as such debts become due or the taking of action by Developer in furtherance of any of the foregoing, or a petition is filed in bankruptcy by others. 20 & Failure to have funds as timely required to meet Developer's obligations to construct the Project and obtain a Certificate of Project Completion. 7. A sale, assignment, or transfer of the Project, except in accordance with this Agreement. & Material change in the management of Developer, except in accordance with this Agreement. 9, Developer abandons the Project. Abandonment shall be deemed to have occurred when work stops on the Project for more than thirty (30) consecutive days for any reason other than Uncontrollable Circumstances and such work is not resumed within ninety (90) days of written demand by the Village. 10. Prior to issuance of the Certificate of Project Completion, Developer fails to comply with applicable governmental codes and regulations in relation to the construction and maintenance of the Project contemplated by this Agreement and such failure continues for more than thirty (30) days after written notice thereof from the Village; provided, however, that such default or breach shall not constitute an Event of Default if such default cannot be cured within said thirty (30) days and Developer, within said thirty (30) days, initiates and diligently pursues appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. 11. A material representation or warranty of Developer is not true for a period of thirty (30) days after written notice from the Village; provided, however, that such default or breach shall not constitute an Event of Default if such default cannot be cured within said thirty (30) days and Developer, within said thirty (30) days, initiates and diligently pursues appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. B, Village Events of Default. The following shall be Events of Default with respect to this Agreement: 1. If any material representation made by the Village in this Agreement, or in any certificate, notice, demand or request made by a Party hereto, in writing and delivered to Developer pursuant to or in connection with any of said documents, shall prove to be untrue or incorrect in any material respect as of the date made; provided, however, that such default shall constitute an Event of Default only if 21 the Village does not remedy the default, within thirty (30) days after written notice from Developer and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. Z Default by the Village in the performance or breach of any material covenant contained in this Agreement concerning the existence, structure or financial condition of the Village; provided, however, that such default or breach shall constitute an Event of Default only if the Village does not, within thirty (30) days after written notice from Developer, initiate and diligently pursue appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. 3. Default by the Village in the performance or breach of any material covenant, warranty or obligation contained in this Agreement; provided, however, that such default shall not constitute an Event of Default if the Village, commences cure within thirty (30) days after written notice from Developer and in any event cures such default within ninety (90) days after such notice, subject to Uncontrollable Circumstances. 4. A material representation or warranty of the Village is not true for a period of thirty (30) days after written notice from Developer; provided, however, that such default or breach shall not constitute an Event of Default if such default cannot be cured within said thirty (30) days and the Village, within said thirty (30) days, initiates and diligently pursues appropriate measures to remedy the default and in any event (subject to Uncontrollable Circumstances) cures such default within ninety (90) days after such notice. C. Remedies for Default. In the case of an Event of Default hereunder: 1. The defaulting Party shall, upon written notice from the non - defaulting Party, take prompt action to cure or remedy such Event of Default. If, in such case, any monetary Event of Default is not cured, or if in the case of a non -monetary Event of Default, except for circumstances contemplated under Section XV.A.1, action is not taken or not diligently pursued, or if action is taken and diligently pursued but such Event of Default or breach shall not be cured or remedied within the cure periods specified therefor, unless extended by mutual agreement, the non -defaulting Party may institute such proceedings as may be necessary or desirable in its opinion to cure or remedy such default or breach, including, but not limited to, 22 proceedings to compel specific performance of the defaulting Party's obligations under this Agreement. 2. In case a Party shall have proceeded to enforce its rights under this Agreement and such proceedings shall have been discontinued or abandoned for any reason, then, and in every such case, the Parties shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of Developer and the Village shall continue as though no such proceedings had been taken. 3. In no event shall either Party be liable to the other for any consequential or punitive damages suffered as a result of a default under this Agreement. D. Agreement to Pay Attorneys' Fees and Expenses. In the event an Event of Default is not cured within the applicable cure periods and the Parties employ an attorney or attorneys or incur other expenses for the collection of the payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement herein contained, the non -prevailing Party shall pay, on demand, the prevailing Party's reasonable fees of such attorneys and such other reasonable expenses in connection with such enforcement action. This Section XV.D shall survive the termination of this Agreement. E. No Waiver by Delay or Otherwise. Any delay by any Party in instituting or prosecuting any actions or proceedings or otherwise asserting its rights under this Agreement shall not operate to act as a waiver of such rights or to deprive it of or limit such rights in any way (it being the intent of this provision that any Party should not be deprived of or limited in the exercise of the remedies provided in this Agreement because of concepts of waiver, laches or otherwise); nor shall any waiver in fact made with respect to any specific Event of Default be considered or treated as a waiver of the rights by the waiving Party of any future Event of Default hereunder, except to the extent specifically waived in writing. No waiver made with respect to the performance, nor the manner or time thereof, of any obligation or any condition under the Agreement shall be considered a waiver of any rights except if expressly waived in writing. F. Rights and Remedies Cumulative. The rights and remedies of the Parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise of any one or more of such remedies shall not preclude the exercise by such Party, at that time or different times, of any other such remedies for the same Event of Default. 23 G. Legal and Other Fees and Expenses. Other than for demands, suits, costs, expenses (including reasonable attorney's fees), actions or other proceedings covered by Section XIV above, in the event that any third party or parties institute any legal proceedings against the Developer and/or the Village, which relate to the terms of this Agreement, then, in that event, the Parties shall cooperate in the defense of any such lawsuit, with each Party assuming, fully and vigorously, its own defense of such lawsuit, and all costs and expenses of its own defense, of whatever nature (including attorney's fees), and the Parties shall negotiate in good faith to amend this agreement to allow for the costs of defense of such legal proceedings to be paid for from Incremental Property Taxes and to increase the Funding Cap to allow for the payment of such costs. This Section XV.G shall survive the termination of this Agreement. XVI. EQUAL EMPLOYMENT OPPORTUNITY A. No Discrimination. Developer shall comply with all federal, state and local laws relating to equal employment opportunity. To the extent permitted by law, Developer shall use reasonable efforts to employ qualified residents of the Village as to any direct hires by the Developer, if applicable. B. Advertisements. Developer shall, in all solicitations or advertisements for employees placed by or on behalf of Developer, if applicable, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. C. Contractors. Any contracts made by Developer with any general contractor, agent, employee, independent contractor or any other Person in connection with the construction of the Project shall contain language similar to that recited in subsections A. and B. above. The Developer shall make reasonable efforts to incorporate language similar to that recited in subsections A. and B. in any leases made by Developer in connection with the Project. XVII. MISCELLANEOUS PROVISIONS A. Cancellation. Notwithstanding any terms in this Agreement to the contrary, in the event Developer or the Village shall be prohibited, in any material respect, from performing covenants and agreements or enjoying the rights and privileges herein contained, or contained in the TIF Plan, including Developer's duty to build the Project and operate the Project, by the order of any court of competent jurisdiction, or in the event that all or any part of the Act or any ordinance adopted by the Village in connection with the Project, shall be declared invalid or unconstitutional, in whole or in part, by a final decision of a court of competent jurisdiction and such declaration shall materially affect the Project or the covenants and agreements or rights A and privileges of Developer or the Village, then and in any such event, the Party so materially affected may, at its election, cancel or terminate this Agreement in whole (or in part with respect to that portion of the Project materially affected) by giving written notice thereof to the other Party within one hundred twenty (120) days after such final decision or amendment. Further, the cancellation or termination of this Agreement shall have no effect on the authorizations granted to Developer for buildings, or the remodeling of any building, permitted and under construction, to the extent permitted by said court order; and the cancellation or termination of this Agreement shall have no effect on perpetual easements contained in any recorded, properly executed document. B. Notices. All notices, certificates, approvals, consents or other communications desired or required to be given hereunder shall be given in writing at the addresses set forth below, by any of the following means: (1) personal service, (2) electronic communications, whether by electronic mail, telex, telegram or telecopy, but only if followed up, within one (1) business day, by another method of notice, (3) overnight courier, or (4) registered or certified first class mail, postage prepaid, return receipt requested. If to Village: Paul Wm. Hoefert, Mayor Village of Mount Prospect 50 S. Emerson Street Mount Prospect, Illinois 60056 Email: phoefert@mountprospect.org With a copy to: Michael Cassady, Village Manager Village of Mount Prospect 50 S. Emerson Street Mount Prospect, Illinois 60056 Email: mcassady@mountprospect.org and: Klein, Thorpe and Jenkins, Ltd. 20 North Wacker Drive, Suite 1660 Chicago, Illinois 60606-2903 Attention: Lance C. Malina / Allen Wall Email: Icmalina@ktjlaw.com /jawall@ktjlaw.com If to Developer: R. Salerno Restaurant Group Attn: Email: With a copy to: 25 Attn: Email: The Parties, by notice hereunder, may designate any further or different addresses to which subsequent notices, certificates, approvals, consents or other communications shall be sent. Any notice, demand or request sent pursuant to either clause (1) or (2) hereof shall be deemed received upon such personal service or upon dispatch by electronic means. Any notice, demand or request sent pursuant to clause (3) shall be deemed received on the day immediately following deposit with the overnight courier, and any notices, demands or requests sent pursuant to clause (4) shall be deemed received forty-eight (48) hours following deposit in the mail. C. Time is of the Essence. Time is of the essence of this Agreement. Notwithstanding the foregoing, if the date for performance of any of the terms, conditions and provisions of this Agreement shall fall on a Saturday, Sunday or legal holiday, then the date of such performance shall be extended to the next business day. D. Integration. 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. E. Counterparts. This Agreement may be executed in any number of counterparts, but in no event less than two (2) counterparts, each of which shall be an original and each of which shall constitute but one and the same Agreement. F. Severability. If any provision of this Agreement, or any Section, sentence, clause, phrase or word, or the application thereof, in any circumstance, is held to be invalid, the remainder of this Agreement shall be construed as if such invalid part were never included herein, and this Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. G. Choice of Law / Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, and any court proceedings between the Parties hereto shall be brought in Cook County, Illinois. H. Entire Contract and Amendments. This Agreement (together with the exhibits attached hereto) is the entire contract between the Village and the Developer relating to the subject matter hereof, supersedes all prior and contemporaneous negotiations, understandings and agreements, written or 26 oral, between the Village and the Developer, and may not be modified or amended except by a written instrument executed by the Parties hereto. 1. Third Parties. Nothing in this Agreement, whether expressed or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any other Person other than the Village and the Developer, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third parties to the Village and the Developer, nor shall any provision give any third parties any rights of subrogation or action over or against the Village or the Developer. This Agreement is not intended to and does not create any third party beneficiary rights whatsoever. K. Waiver. Any Party to this Agreement may elect to waive any right or remedy it may enjoy hereunder, provided that no such waiver shall be deemed to exist unless such waiver is in writing. No such waiver shall obligate the waiver of any other right or remedy hereunder, or shall be deemed to constitute a waiver of other rights and remedies provided pursuant to this Agreement. L. Cooperation and Further Assurances. The Village and the Developer each covenant and agree that each will do, execute, acknowledge and deliver or cause to be done, executed and delivered, such agreements, instruments and documents supplemental hereto and such further acts, instruments, pledges and transfers as may be reasonably required for the better clarifying, assuring, mortgaging, conveying, transferring, pledging, assigning and confirming unto the Village or the Developer, or other appropriate Persons, all and singular the rights, property and revenues covenanted, agreed, conveyed, assigned, transferred and pledged under or in respect of this Agreement. M. No Joint Venture, Agency or Partnership Created. Nothing in this Agreement, or any actions of the Parties to this Agreement, shall be construed by the Parties or any third party to create the relationship of a partnership, agency or joint venture between or among such Parties. N. No Personal Liability of Officials of the Village or the Developer. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of the Corporate Authorities, Village Manager, any elected official, officer, partner, member, shareholder, manager, director, agent, employee or attorney of the Village or the Developer, in his or her individual capacity, and no elected official, officer, partner, member, director, agent, employee or attorney of the Village or the Developer shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of or in connection with or arising out of 27 the execution, delivery and performance of this Agreement, or any failure in that connection. O. Repealer. To the extent that any ordinance, resolution, rule, order or provision of the Village's code of ordinances, or any part thereof, is in conflict with the provisions of this Agreement, the provisions of this Agreement shall be controlling, to the extent lawful. P. Term. This Agreement shall remain in full force and effect until the termination of the Redevelopment Project Area. Q. Estoppel Certificates. Each of the Parties hereto agrees to provide the other, upon not less than fifteen (15) days prior request, a certificate ("Estoppel Certificate") certifying that this Agreement is in full force and effect (unless such is not the case, in which case such Party shall specify the basis for such claim), that the requesting Party is not in default of any term, provision or condition of this Agreement beyond any applicable notice and cure provision (or specifying each such claimed default) and certifying such other matters reasonably requested by the requesting Party. If either Party fails to comply with this provision within the time limit specified, and if, after an additional seven (7) days' notice there still is no compliance, then said non -complying Party shall be deemed to have appointed the other as its attorney-in-fact for execution of same on its behalf as to that specific request only. R, Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned by Developer prior to the date the Village issues Developer a Certificate of Project Completion, unless the Village consents in writing to such assignment which consent shall not be unreasonably withheld or delayed, and unless the assignee consents in writing to be bound by the terms of this Agreement. Thereafter, Developer may assign its rights, duties and obligations hereunder, without the consent or approval of the Village. S. Municipal Limitations. All Village commitments hereunder are limited to the extent required by law. 28 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on or as of the day and year first above written. VILLAGE OF MOUNT PROSPECT, an By: Pa R. SALERNO RESTAURANT GROUP FM ATTEST: Karen Agoranos,..e Clerk ACKNOWLEDGMENT State of Illinois SS County of Cook I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that Paul Wm. Hoefert and Karen Agoranos, personally known to me to be the Mayor and Village Clerk of the Village of Mount Prospect, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such Mayor and Village Clerk, they signed and delivered the said instrument and caused the corporate seal of said municipal corporation to be affixed thereto, pursuant to authority given by the Board of Trustees of said Illinois home rule municipal corporation, as their free and voluntary act, and as the free and voluntary act and deed of said Illinois home rule municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and official seal, this day of -' 2023, dNotary Publkic SEAN.. DORS N N : JAROU NOT RY tl�"@. N s�, � 1 n Y�.�.: Off' N� N.ANU a My COd�WS'S, Mt q FVffe E& 411312026 30 ACKNOWLEDGMENT State of Illinois ) ) SS County of Cook ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that P -o e,+ & -�A personally known to me to be the (Title), of R. Salerno Restaurant Group, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such (Title), he/she signed and delivered the said pursuant to authority given by the limited liability company, as his/her free and voluntary act, and as the free and voluntary acts and deeds of said limited liability company, for the uses and purposes therein set forth. 202,3. GIVEN under my hand and official seal, this '2L 202Z. day of , 31 Notary Public OFFICAL "SEAL, KAREN M AGMN 7 NOTARY PUBLIC - STATE OF ILLINOIS y COMMISSION E EIRES01081 4