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Home My WebLink AboutRes 51-02 11/06/2002RESOLUTION NO. 51-02 A RESOLUTION AUTHORIZING THE EXECUTION OF A GROUND LEASE AGREEMENT BETWEEN THE MOUNT PROSPECT PUBLIC LIBRARY AND THE VILLAGE OF MOUNT PROSPECT FOR PARKING AT 10 SOUTH EMERSON STREET, MOUNT PROSPECT, COOK COUNTY, ILLINOIS WHEREAS, the Mount Prospect Public Library (Library) is the owner of property commonly known as 10 South Emerson Street ("Library property") and the Village of Mount Prospect (Village) owns property commonly known as 50 South Emerson Street along with other adjacent and contiguous properties ("Village property"); and WHEREAS, the Library and the Village contemplate undertaking improvements to their respective properties, to wit, the Library is expanding and renovating the existing Library facility, and the Village is demolishing the existing Senior Center and adjacent building and constructing a new Village Hall and Community Center; and WHEREAS, also contemplated is the construction of a multi-level parking structure ("parking structure") to be located partially on Library property and partially on Village property that will benefit both Library and Village projects as well as benefit both ongoing and future Central Business District redevelopment efforts; and WHEREAS, the Library and Village are desirous of entering into a Ground Lease Agreement that would allow the Village to construct the parking structure on a portion of Library property, said Land Ground establishing the rights and obligations of the Library and the Village respectively; and WHEREAS execution of said Ground Lease is in the best interests of the Library and the Village. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: SECTION ONE: That the Mayor and Board of Trustees of the Village of Mount Prospect do hereby authorize execution of a Ground Lease Agreement for the purpose of facilitating construction of a parking structure on a portion of Library land, and said Ground Lease shall be for an initial period of twenty (20) years, as set forth in the Lease, a copy of which is attached hereto and hereby made a part of Exhibit "A." ECTION TWO: passage and approval in the manner provided by law. AYES: NAYS: No~e ABSENT: Corcoran PASSED and APPROVED this This Resolution shall be in full force and effect from and after its Hoefert, Lohrstorfer, Skowron, Wilks, Zadel ATTEST: Velrha W. Lowe, Village Clerk 6th day of November ,2002. "-~erald L Farley, Mayor ~' ,~/ GROUND LEASE BETWEEN THE BOARD OF TRUSTEES OF THE MOUNT PROSPECT PUBLIC LIBRARY LANDLORD THE VILLAGE OF MOUNT PROSPECT TENANT NOVEMBER __, 2002 CHICAGO/#$97132.11 ARTICLE I 1.01 TABLE OF CONTENTS Page GRANT ............................................................................................................ 1 Grant ................................................................................................................ 1 ARTICLE II CONDITION ................................................................................................... 1 2.01 Condition of Land and Improvements ............................................................. 1 2.02 Condition of Title and Survey .......................................................................... 1 ARTICLE III TERM .............................................................................................................. 2 3.01 Initial Term ...................................................................................................... 2 3.02 Option to Extend .............................................................................................. 2 3.03 Lease Commencement Date ............................................................................ 2 ARTICLE IV RENT ............................................................................................................... 2 4.01 Annual Base Rent ............................................................................................ 2 4.02 Net Lease ......................................................................................................... 2 ARTICLE V 5.01 5.02 USE AND OCCUPANCY ............................................................................... 3 Quiet Enjoyment .............................................................................................. 3 Use ................................................................................................................... 3 ARTICLE VI IMPROVEMENTS; PERFORMANCE STANDARDS; LIENS; MAIN~TENANCE; C~MPLIA24C~, S UP,_RENDER ...................................... 4 6.01 Improvements .................................................................................................. 4 6.02 Performance Standards .................................................................................... 8 6.03 Liens ...................................... : .......................................................................... 8 6.04 Maintenance ..................................................................................................... 9 . 6.05 Compliance with Legal Requirements ............................................................. 9 6.06 Surrender .......................................................................................................... 9 ARTICLE VII 7.01 7.02 7.03 7.04 7.05 ARTICLE VIII 8.01 IMPOSITIONS AND UTILITIES ................................................................... 9 Impositions Defined ......................................................................................... 9 Payment of Impositions ................................................................................. 10 Landlord's Right to Pay Taxes ...................................................................... 10 Utility Payments ............................................................................................. 11 Inten'uption of Utilities .................................................................................. 11 INSURANCE AND DAMAGE AND DESTRUCTION .............................. 11 Public Liability And Worker's Compensation Insurance .............................. 11 i CHICAGO/#$97132.11 TABLE OF CONTENTS (continued Page 8.02 Property Insurance ......................................................................................... 11 8.03 Form and Amount of Insurance ..................................................................... 12 8.04 Damage or Destruction .................................................................................. 12 8.05 Indemnification by Tenant ............................................................................. 12 ARTICLE IX 9.01 9.02 9.03 9.04 9.05 9.06 9.07 CONDEMNATION ....................................................................................... 13 Definitions ...................................................................................................... 13 Notice of Taking: Representation .................................................................. 13 Total Taking ................................................................................................... 14 Substantial Taking ......................................................................................... 14 Partial Taking ................................................................................................. 14 Temporary Taking ......................................................................................... 14 Separate Claims ............................................................................................. 14 ARTICLE X 10.01 10.02 ASSIGNMENT AND SUBLETTING .......................................................... 15 Binding Effect ................................................................................................ 15 Assignments and Subleases ........................................................................... 15 ARTICLE XI MORTGAGES ............................................................................................... 15 11.01 Leasehold Mortgage ....................................................................................... 15 ARTICLE XiI ARTICLE XIII 13.01 13.02 13.03 [INTENTIONALLY DELETED] .................................................................. i-5 DEFAULT ..................................................................................................... 15 Events of Defanlt .................. : ........................................................................ 15 Landlord's Rights Upon an Event of Default ................................................ 16 No Implied Waiver ........................................................................................ 17 ARTICLE XIV 14.01 14.02 14.03 14.04 14.05 ENVIRONMENTAL CONDITIONS ........................................................... 18 Definitions ...................................................................................................... 18 Tenant's Construction ......... , .......................................................................... 18 Indemnification By Tenant ............................................................................ 19 Landlord's Right To Receive Reports, Correspondence and Studies ............ 19 Survival .......................................................................................................... 19 ARTICLE XV 15.01 15.02 MISCELLANEOUS PROVISIONS .............................................................. 20 Acgess by Landlord ........................................................................................ 20 Brokers' Fees ................................................................................................. 20 ii CHICAGO/#1197132.11 TABLE OF CONTENTS (continued) Page 15.03 Gender and Number ....................................................................................... 20 15.04 Notices ........................................................................................................... 20 15.05 Applicable Law .............................................................................................. 21 15.06 Limited Recourse Against Landlord .............................................................. 21 15.07 Partial Invalidity ............................................................................................. 21 15.08 Recording ....................................................................................................... 21 15.09 Interpretation .................................................................................................. 22 15.10 Binding Effect ................................................................................................ 22 15.11 No Partnership ............................................................................................... 22 15.I2 Estoppel Certificates ...................................................................................... 22 15.13 Holding Over ................................................................................................. 22 15.14 Time is of the Essence ................................................................................... 22 15.15 Transfer and Leasehold Taxes ....................................................................... 23 15.16 Expenses and Fees ......................................................................................... 23 15.17 Covenants tO Run with the Land .................................................................... 23 15.18 Entire Agreement; Merger ............................................................................. 23 15.19 Counterparts ................................................................................................... 23 EXHIBIT A LEGAL DESCRIPTION OF LAND ........................................................... A-1 EXHIBIT B LIFE CYCLE COSTS ............................................................. B-1 iii CHICAGO/#897132.11 GROUND LEASE THIS GROUND LEASE (the "Ground Lease") is made as of the day of November, 2002 (the "Effective Date") by and between the Board of Trustees of the Mount Prospect Public Library (the "Landlord"), having a principal business address at 10 South Emerson Street, Mount Prospect, Illinois 60056, and the Village of Mount Prospect (the "Tenant"), having a principal business address at 100 South Emerson Street, Mount Prospect, Illinois 60056. RECITALS A. Landlord is the owner of fee title to certain land and improvements commonly known as a portion of 10 South Emerson Street, Mount Prospect, Illinois and legally described in Exhibit A attached hereto (the "Land"); and B. The parties hereto desire to enter into a ground lease pursuant to which Landlord will lease the Land to Tenant and Tenant will accept the same bom Landlord. In consideration of the Recitals and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Landlord and Tenant hereby agree as follows: ARTICLE I GRANT 1.01 Grant. Landlord hereby leases to Tenant the Land and all easements and appurtenances belonging to or in any way pertaining to the Land, and Tenant hereby accepts the same, in accordance with the terms and conditions hereinafter set forth. ARTICLE II CONDITION 2.01 Condition of Land and Improvements. The Land is leased to Tenant in its "as is" "where is" condition. Landlord shall have .no obligation to perform any improvements, alterations, additions, repairs or replacements thereto or to obtain any other licenses or permits. 2.02 Condition of Title and Survey. Landlord shall furnish to Tenant upon or before execution and delivery of this Agreement by Tenant copies of any surveys, title policies or other title evidence in its possession covering the Land. Tenant may in its sole discretion, order a title commitment for an ALTA leasehold title insurance policy insuring Tenant's leasehold interest in the Land with extended coverage over the printed general exceptions and an endorsement insuring any access easement that may be necessary to use the Land as contemplated by this Agreement. The title commitment and policy shall be subject only to normal and customary exceptions, and such other exceptions as Tenant may approve in writing (all of which are herein referred to as the "Permitted Exceptions"). Tenant shall pay the cost of such title commitment and policy. CHICAGO/#897132.11 ARTICLE III TERM 3.01 Initial Term. The term of this Ground Lease shall commence on the Lease Commencement Date set forth in Section 3.02 and shall continue for a term of twenty (20) years (the "Term"), unless sooner terminated as provided herein. 3.02 Option to Extend. Provided that no Material Event of Default has occurred and is continuing, Tenant shall have the option to extend the Term for up to six (6) additional consecutive periods of twenty (20) years each. Tenant shall exemise the option to extend, if at all in Tenant's sole and absolute discretion, by sending written notice to Landlord not less than one (1) year prior to the then-current expiration date. 3.03 Lease Commencement Date. The Ground Lease shall commence on the Effective Date (the "Lease Commencement Date"). ARTICLE IV RENT 4.01 Annual Base Rent. Commencing on the Lease Commencement Date, and on each anniversary thereafter throughout the Term, Tenant shall pay to Landlord, in cash or cash equivalents, at the address provided for notice to Landlord, or at such other place as Landlord may from time to time hereinafter designate to Tenant in writing, annual base rent of One Dollar and No/100 ($1.00) ("Rent"), it being understood and agreed that Tenant shall not charge any of Landlord's patrons and staff for the use of the Parking Facility. Payment of Rent shall be in the form of a resolution and shall appear on the agendas of both Landlord and Tenant annually. Notwithstanding the foregoing, in the event that Tenant shall institute any charge, fee or other required payment to patrons using the Parking Facility on a pay per park basis, Tenant shall pay to Landlord, on a monthly basis, fifty percent (50%) of the net receipts (as hereinafter defined) with respect to the portion of the Parking Facility located on the Land as measured by square footage. Net Receipts shall be defined as the dollar amount of actual receipts, whether by cash, check, credit card, charge account for access to or services rendered with respect to the Parking Facility on a pay per park basis, less annual 'life cycle and maintenance costs ("Life Cycle Costs") set forth on Exhibit B attached hereto and made a part hereof. 4.02 Net Lease. Rent payable hereunder shall be net to Landlord, so as to yield to Landlord the Rent specified herein during the Term, and all costs, expenses and obligations of every kind and nature whatsoever relating to the Land (including, without limitation, Life Cycle Costs and Impositions as defined in Section 7.01) or are imposed upon or are to be performed by Tenant as provided hereunder shall be paid by Tenant. Tenant shall waive up to Two Hundred Thousand and No/100 Dollars ($200,000.00) in permit, plan review, development code or other fees ("Fees") for the Library expansion and renovation project ("Library Project'') as may be imposed by the Village of Mount Prospect Municipal Code. To the extent said Fees do not equal $200,000.00), Landlord may seek reimbursement for costs incurred by Landlord for the Library Project as a result of the Ground Lease. Costs incurred by Landlord as a result of this Ground Lease shall mean any cost or expense incurred with respect to the construction, reconfiguration or relocation of any' portion of Landlord's Facility necessitated by the presence, design or 2 CHICAGO/#897132.11 construction of the Parking Facility and which would not have been incurred by Landlord if the Parking Facility had not been built. Except for subsequent improvements, as set forth in Section 6.01(b) and the Twelve Thousand and No/100 Dollars ($12,000.00) of Landlord's consulting fees set forth in Section 6.01(a)(i), the aforesaid $200,000.00 shall be Tenant's maximum liability for costs incurred by Landlord for the Library Project as a result of this Ground Lease. The aforesaid notwithstanding, Landlord may, at the completion of the Library Project, make application to Tenant for additional reimbursement for costs incurred by Landlord for the Library Project in an amount equal to the Fees previously waived by Tenant. Tenant shall duly consider any such request but is under no obligation to grant same in whole or in part. In addition, Tenant shall use Tenant's good faith efforts to assist Landlord in minimizing any additional costs or expenses incurred by Landlord, for whatever reason, as a result of the Land being unavailable to Landlord for Landlord's use as a staging area with respect to any planned construction or repair of Landlord's Facility. Such efforts shall include, but not be limited to, making available to Landlord for such staging any land adjacent to Landlord's Facility owned or controlled by Tenant, which is suitable for Landlord's staging requirements, all at no cost to Landlord. Tenant shall also pay, without notice or demand, and without abatement, deduction or set-off, in addition to Rent, all sums, taxes, assessments, utility expenses, costs and other payments which Tenant in any of the provisions of this Ground Lease agrees to pay, and in the event of any non-payment thereof, such non-payment shall be deemed a non-payment of Rent due hereunder, and Landlord shall have all the rights and remedies provided for herein or by law in the case of non-payment of Rent. ARTICLE V USE AND OCCUPANCY 5.01 Quiet Enjoyment. Subject to Section 15.01, Landlord agrees that, so long as this Ground Lease remains in effect and Tenant is not in default of its obligations hereunder, Tenant shall quietly hold, occupy and enjoy the Land throughout the Term without any hindrance, ejection or molestation by Landlqrd or anyone claiming by, under or through Landlord. 5.02 Use. Tenant shall use the Land solely for .use as a multi-level parking facility ("Parking Facility") as permitted by applicable~ Legal Requirements (defined in Section 6.05). The Parking Facility shall consist of a reasonable number of parking spaces, including handicapped parking spaces in numbers and locations required by applicable Legal Requirements. Initially, Tenant shall designate at least one floor, of Tenant's choosing, as exclusive parking for Library and Village Hall employees, all at no cost whatsoever to Landlord. Landlord and Tenant shall work together in good faith to periodically review and, if necessary or advisable in the reasonable judgment of Landlord and Tenant, revise accordingly the number or location of spaces for Landlord's use and employee parking. Other than those spaces leased to merchants pursuant to Section 4.01, and the floor(s) dedicated to employee parking, the Landlord's patrons shall have access to all other parking spaces in the Parking Facility on a first come - first served basis. Landlord and Tenant shall review, on a periodic basis, the feasibility of lifting restrictions governing exclusive parking for Landlord's and Tenant's employees during evenings and weekends so as to maximize general public parking. The total number of parking spaces, including handicapped spaces, available to Landlord shall at all times be deemed to satisfy Landlord's parking requirements with respect to any zoning ordinance applicable to Landlord's Facility. In the event that Tenant shall desire to hold any special event 3 CHICAGO/#897132.11 in the Parking Facility which woUld disrupt or in any way interfere with access to the Parking Facility for Landlord's patrons or employees, such special event shall require Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. ARTICLE VI IMPROVEMENTS; PERFORMANCE STANDARDS; LIENS; MAINTENANCE; COMPLIANCE; SURRENDER 6.01 Improvements. (a) Initial Improvements. Not later than April 30, 2003, subject to force majeure, Tenant shall, at Tenant's sole cost and expense, begin construction on the Parking Facility. Tenant's obligation to construct the Parking Facility is an independent covenant hereunder and is not contingent upon the happening of any other event including, without limitation, construction of a new Village Hall. (i) Selection of Architect/Construction Drawings. Tenant shall retain an architect (the "Architect") to prepare the "Construction Drawings," as that term is defined hereinbelow. Tenant shall also retain engineering consultants selected by Tenant (the "Engineers") to prepare all plans and engineering working drawings relating to the structural, mechanical, electrical, plumbing, HVAC, lifesafety, landscaping and sprinkler work, if any, in or about the Land or the Parking Facility. The plans and drawings to be prepared by Architect and the Engineers hereunder shall be known collectively as the "Construction Drawings." All Construction Drawings shall comply with the drawing format and specifications in accordance with standard architectural and engineering practices. Landlord shall have the right to hire independent architects, engineers or other consultants currently working with Landlord with respect to the renovation of Landlord's Facility (collectively, "Landlord's Consultants") to advise Landlord with respect to the design, construction and implementation of the Parking Facility as same may relate to the reasonable integration with or any negative impact on the use of Landlord's Facility by Landlord's employees and patrons and on Utility Services, lighting, noise, air quality, snow removal and drainage of Landlord's Facility (hereinafter "Integration With and Impact On Landlord's Facility"). Integration With and Impact on Landlord's Facility shall not include items such as architectural design elements, type of material to be used (to the extent such material is not structurally deficient) landscaping, streetscape or other architecturally related items. The cost of Landlord's Consultants shall not exceed Twelve Thousand and No/100 Dollars ($12,000.00). All such costs shall be reimbursed to Landlord by Tenant promptly following presentation of an invoice therefor. Tenant and Architect shall verify, in the field, the dimensions and conditions as shown on any survey, and Tenant and Architect shall be solely responsible for the same, and Landlord shall have no responsibility in connection therewith. Review by Landlord's Consultants of the Construction Drawings as set forth herein, shall be for Landlord's sole purpose and only as the same may relate to Integration With and Impact On Landlord's Facility. Such review shall not obligate Landlord to review the same, for quality, design, building code compliance or other like matters. Accordingly, notwithstanding that any Construction Drawings are reviewed by Landlord or Landlord's Consultants, and notwithstanding any advice or assistance which may be rendered to Tenant by Landlord or Landlord's 4 CHICAGO/#897132.11 Consultants, Landlord and Landlord's Consultants shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions or errors contained in the Construction Drawings. (ii) Preliminary Drawings. Tenant shall communicate with Landlord and supply Landlord with four (4) copies signed by Tenant of its preliminary drawings for the Parking Facility before any architectural working drawings or engineering drawings have been approved by Tenant. The preliminary drawings (the "Preliminary Drawings") shall include a layout and designation of all parking areas and spaces and other partitioning, their intended use, and any equipment to be contained therein. Landlord may reasonably request clarification or more specific drawings for special matters not included in the Preliminary Drawings. Landlord shall advise Tenant within five (5) business days after Landlord's receipt of the Preliminary Drawings for the Parking Facility if the same is unsatisfactory or incomplete in any respect. If Tenant is so advised, Tenant and Landlord shall discuss such unsatisfactory matters and in good faith work to resolve same. Thereafter, the Preliminary Drawings shall be revised accordingly. If Tenant is not so advised, Landlord shall be deemed to have approved the Preliminary Drawings. Any cost for such review shall be included in the cumulative maximum set forth in (i) above. (iii) Final Working Drawings. Upon the review of the Preliminary Drawings by Landlord and Tenant, Tenant shall promptly cause the Architect and the Engineers to complete the architectural and. engineering drawings for the Parking Facility, and Architect shall compile a fully coordinated set of architectural, structural, mechanical, electrical and plumbing working drawings in a form which is complete to allow subcontractors to bid on the work and to obtain all applicable permits (collectively, the "Final Working Drawings") and shall submit the same to Landlord for Landlord's review. Tenant shall supply Landlord with four (4) copies signed by Tenant of such Final Working Drawings. Landlord shall advise Tenant within five (5) business days after Landlord's receipt of the Final Working Drawings for the Parking Facility if the same is unsatisfactory or incomplete in any respect. If Tenant is so advised, Tenant and Landlord shall discuss such unsatisfactory matt0rs and in good faith work to resolve same. Thereafter, the Final Working Drawings shall be revised accordingly. If Tenant is not so advised, Landlord shall be deemed to have approved the Final Working Drawings. (iv) Approved Working Drawings. The Final Working Drawings shall be approved by Landlord (the "Approved Working Drawings") prior to the commencement of construction of the Parking Facility by Tenant. Subject to approval by Landlord of the Final Working Drawings, Tenant may submit the same to the appropriate governmental authorities for all applicable building permits. Tenant hereby agrees that neither Landlord nor Landlord's consultants shall be responsible for obtaining any building permit or certificate of occupancy for the Parking Facility and that obtaining the same shall be Tenant's responsibility; provided, however, that Landlord shall cooperate with Tenant in executing permit applications and performing other ministerial acts reasonably necessary to enable Tenant to obtain any such permit or certificate of occupancy. No changes, modifications or alterations in the Approved Working Drawings 5 CHICAGO/#897132.11 may be made without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. (v) .The Contractor. A general contractor (the "Contractor") selected by Tenant shall be retained by Tenant to construct the Parking Facility. (vi) (a) Landlord's General Conditions for Tenant's Contractor and Tenant Improvement Work. Tenant's and Tenant's Contractor's construction of the Parking Facility shall comply with the following: (i) the Parking Facility shall be constructed in substantial accordance with the Approved Working Drawings including Tenant's Field Changes and Change Orders; (ii) Tenant and Tenant's Contractor shall not interfere with, obstruct, or interrupt access to Landlord's Facility by Landlord's patrons or the delivery of essential services including but not limited to water, electricity, telephone, intemet, cable TV or the like to Landlord's Facility; (iii) Tenant's Contractor shall from time to time submit schedules of all work relating to the Parking Facility to Landlord and Landlord shall, as soon as practicable, inform Tenant's Contractor of any conflicts said schedule may have on Landlord's operation which Tenant's Contractor shall use reasonable efforts to mitigate to the greatest degree possible; (iv) Tenant shall ensure that the construction area, whether on the Land or on the adjacent Landlord's Facility is properly fenced and secure at all times; and (v) Tenant shall use good faith efforts to coordinate with Landlord in all material matters. (b) Not less than ten (10) days prior to the date on which access to the underground parking garage at Landlord's Facility is closed, 'Tenant shall provide, at no cost to Landlord, sufficient alternate parking for Landlord's patrons and employees in the immediate vicinity of Landlord's Facility, which alternate parking shall be subject to Landlord's approval, which shall not be unreasonably withheld, conditioned or delayed. Such alternate parking shall be provided until such time as Tenant's work on the Parking Facility is no longer causing the parking garage at Landlord's Facility to be unavailable for use by Landlord's patrons and employees. In the alternative, in the event that it is more efficient and cost effective for Tenant, Tenant shall assist Landlord in locating, negotiating and obtaining an agreement for occupancy of a temporary facility to house the current Landlord's Facility, and Tenant shall reimburse Landlord for any cost incurred by Landlord in excess of costs incurred by Landlord with respect to Landlord's temporary relocation as part of the planned renovation of Landlord's Facility. · (vii) Inspection by Landlord. During the course of construction and at any time thereafter Landlord and Landlord's Consultants shall have the right to inspect the Parking Facility at all times, provided however, that Landlord's failure to inspect the Parking Facility shall in no event constitute a waiver of any of Landlord's rights hereunder nor shall Landlord's inspection of the Parking Facility constitute Landlord's approval of the same. Should Landlord disapprove any portion of the Parking Facility on the Land as same may relate to Integration With and Impact On Landlord's Facility, Landlord shall notify Tenant in writing of such disapproval and shall specify the items disapproved. Any substantial defects or substantial unapproved deviations from the Approved Working Drawings in the Parking Facility shall be rectified by Tenant at no expense to Landlord. In the event Landlord's Consultants determine that a substantial defect or substantial deviation exists in any other portion of the Parking Facility and such 6 CHICAGO/#897132.11 substantial defect or substantial unapproved deviation might adversely affect the mechanical, electrical, plumbing, heating, ventilating and air conditioning or life-safety systems of the Parking Facility, the structure of the Parking Facility or Landlord's Facility, Landlord shall so notify Tenant and Landlord and Tenant shall work together in good faith to correct such substantial defect or substantial unapproved deviation. (viii) Meetings. Commencing upon the Effective Date, Tenant shall hold official weekly meetings at reasonable times, with the Architect and the Contractor regarding the progress of the preparation of Construction Drawings and the construction of the Parking Facility, which meetings shall be held at a location designated by Tenant, and Landlord and Landlord's Consultants shall receive reasonable prior notice of, and shall have the right to attend, all such meetings, and, upon Landlord's request, certain of Tenant's Architect, Engineers or Contractor shall attend such meetings. In addition, minutes shall be taken at all such meetings, a copy of which minutes shall be promptly delivered to Landlord. Landlord acknowledges that Tenant may engage in certain additional meetings without notice to Landlord and without Landlord's attendance, but Tenant shall communicate with Landlord regarding all material discussions at such meetings. (ix) Notice of Completion; Copy of "As Built" Plans. Tenant shall complete construction of the Parking Facility not later than September I, 2004, subject to rome majeure. Promptly after completion of construction of the Parking Facility, Tenant shall cause a Notice of Completion to be delivered to Landlord. At the conclusion of construction, Tenant shall cause the Architect and Contraitor (i) to update the Approved Working Drawings as necessary to reflect all changes made to the Approved Working Drawings during the course of construction, (ii) to certify to the best of their knowledge that the "record-set" of as-built drawings are true and correct, which certification shall survive the expiration or termination of the Lease, and (iii) to deliver to Landlord two (2) sets of such as-built drawings within a reasonable time following issuance of a certificate of occupancy for the Parking Facility. If for any reason Tenant shall fail to complete construction of the Parking Facility and construction has ceased for a period of not less than ninety (90) days, Tenant shall remgve all structures, improvements and equipment from the Land and shall, at Tenant's sole cost and expense, return the Land to substantially the same condition as of the Effective Date including, without limitation, reinstallation of Landlord's parking ramp and access to Landlord's underground parking facilities. During such reinstallation and at all times thereafter, Tenant shall provide Landlord with sufficient convenient parking as shall be necessary for Landlord's Facility. (b) Subsequent Improvements. Subject to Landlord's prior written consent, which consent shall not be unreasonably withheld conditioned or delayed, Tenant shall have the right, at any time and from time to time; to (i)erect, construct, and install on the Land improvements and equipment; (ii) make alterations, additions to any improvements, or any part thereof hereafter erected, constructed or installed on the Land; and (iii) repair, replace or remove improvements, equipment and structures; provided that none of the foregoing actions shall materially reduce the fair market value of the Land or have a material adverse effect on Landlord's Facility. ~All costs incurred by Landlord in employing Landlord's Consultants in connection with any review of the foregoing plans, specifications and permits with respect to 7 CHICAGO/#897132.11 Integration With and Impact on Landlord's Facility (not including scheduled, routine or emergency maintenance and repairs to the Parking Facility) shall be reimbursed to Landlord by Tenant promptly following presentation of an invoice therefor. The cost of Landlord's Consultants' review shall not exceed Two Thousand Five Hundred and No/100 Dollars ($2,500.00), to be adjusted in accordance with the CPI for Chicago as annually published by the U. S. Department of Labor, Bureau of Labor Statistics. In addition, Tenant shall not remove or demolish any of the improvements which would have a material adverse effect on Landlord's Facility unless Tenant (1) replaces such improvements with other improvements of equal or greater quality and value; (2) notifies Landlord of its intent to do so at least thirty days prior to commencement of such construction; (3) delivers all exterior plans, specifications and elevations showing the general placement of the improvements, with setbacks from all lots lines, location and dimension of parking areas, driveways and service areas to Landlord with the notice of intent; and (4)delivers to Landlord copies of all permits required with respect to the improvements. Any and all improvements to the Land and any and all alterations, modifications, enlargements, additions, substitutions or replacements thereof or thereto made by Tenant during the Term shall be and remain the property of Tenant throughout the Term, and Tenant is entitled to all depreciation, deductions, amortization, and tax credits, if any, arising from ownership thereof. Upon expiration of the Term or termination of the Ground Lease; (i)title to the improvements constructed by Tenant and located on the Land shall be and become the sole and absolute property of Landlord and shall be surrendered to Landlord at that time, free and clear of the liens of any mortgages, deeds of trust, mechanics, laborers or materialmen and all other liens and encumbrances, other than any such liens and encumbrances incurred by Landlord; (ii) upon Landlord's request, Tenant shall promptly execute, acknowledge and deliver to Landlord in recordable form a quitclaim deed conveying to Landlord ail right, title and interest of Tenant in and to the Land; and (iii) pursuant to any such conveyance Landlord and Tenant shall each be prohibited from taking any action that would adversely impact the other's interest in that portion of the Parking Facility located on such party's land. 602 Performance Standards. All improvements constructed by Tenant shall be constructed with materials approved for such use by industry standards, in a good and worlm~anlike manner, and in accordance with all Legal Requirements. 6.03 Liens. Tenant shall not cause or permit any liens to attach to, be placed on or filed against the Landlord's interest in the Land under this Ground Lease in connection with anY ). construction, alteration, demolition, repair or restoration work Tenant performs or causes or permits to be performed on the Land. If, however, at any time, in connection with the planning, construction, alteration, demolition, repair or restoration work Tenant performs or causes to be performed on the Land, any liens of mechanics, laborers or materialmen shall be filed against, attached to or placed on the Land under this Ground Lease, Tenant shall, at its expense, cause the same to be discharged, by payment, bonding or otherwise as provided by law within thirty (30) days after Tenant receives notice that the lien was filed, except for such liens that may have been incurred by Landlord or arisen from Landlord's actions. Nothing herein contained shall in any way prejudice the rights of Tenant to contest in good faith to final judgment or decree any such lien prior to payment thereof, provided that, Tenant shall (a) cause a title insurer to "insure over" such lien or (b) furnish and keep in effect a surety bond of a responsible and substantial surety company in an amount sufficient to pay 150% of the amount of such contested lien claim with all interest thereon and costs and expenses incurred with respect thereto. Upon final determination 8 CHICAGO/#897132.11 of the validity of any such contested lien or claim, Tenant shall immediately pay the mount finally determined to be due thereon including any the amount of judgment or decree rendered in connection therewith with all proper costs and charges and shall cause any such lien to be released of record without cost to Landlord, and during the pendency of any such contest, Tenant shall save and keep Landlord harmless from any claim or loss by reason thereof. 6.04 Maintenance. Tenant shall, throughout the Term, at no expense to Landlord, keep the Land in good repair and in a safe, clean, sightly and sanitary condition, in conformity with all Legal Requirements including, without limitation, all landscaping, maintenance, groundskeeping and snow and ice removal. Landlord shall have no obligation to maintain or repair the Land whatsoever. Except as specifically set forth herein, Tenant shall have no obligation to perform landscaping, maintenance, groundskeeping and snow and ice removal on Landlord's Facility. 6.05 Compliance with Legal Requirements. Tenant shall, throughout the Term, at no expense to Landlord, promptly comply with all (i) applicable laws, ordinances, regulations and orders of federal, state or municipal govermnental entities or agencies having jurisdiction over the Land or over Tenant's existence including, without limitation, certificates of occupancy, (ii) policies of insurance applicable to the Land, and (iii) all covenants, conditions or restrictions affecting the Land (collectively, the "Legal Requirements"). Landlord shall not enter into any additional covenants, conditions or restrictions affecting the Land after the Effective Date without the prior written consent of Tenant, which consent shall not be unreasonably withheld. Tenant may by appropriate proceedings conducted promptly at Tenant's expense, in Tenant's name, or, wherever necessary, in Landlord's name, contest in good faith the validity or enforcement of any Legal Requirements, and Tenant may defer compliance v~ith the same during such contest, provided Tenant diligently prosecutes such contest to a final determination by the authority having jurisdiction thereof, and providing such contest and deferment do not subject Landlord to anY fine, penalty or other civil or criminal liability. Tenant shall not conduct or permit any person to conduct any unlawful activity on the Land or any use or activity in violation of (a) any Legal Requirements including, but not limited to, zoning or other real estate use laws or ordinances, or (b)any private restrictive covenants applicable to the Land. Furthermore, Tenant shall not cause or allow any activity which would violate any Legal Requirements or which would otherwise constitute a nuisance, or reasonably objectionable intrusion into or interference with the use of any surrounding property. 6.06 Surrender. Except as provided in Article IX or XIII, Tenant shall, upon termination of this Ground Lease, following good faith discussions with Landlord at once surrender and deliver up the Land and the portion of the Parking Facility located on the Land to Landlord. Pursuant to any such surrender, Landlord and Tenant shall each be prohibited from taking any action that would adversely impact the other's interest in that portion of the Parking Facility located on such party's land. ARTICLE VII IMPOSITIONS AND UTILITIES 7.01 Impositions Defined. As used herein, "Impositions" shall mean real estate taxes, ad valorem property .taxes, assessments, rent taxes, transfer taxes, leasehold taxes, water and sewer rates and charges and other governmental charges, general and special, ordinary and 9 CHICAGO/#897132.11 extraordinary, if any, which are assessed, levied, confirmed or imposed during the Term on the Land. The parties acknowledge that as of the date hereof, the Land is not subject to any impositions. However, if, at any time during the Term, the method of taxation prevailing at the corrunencement of the Term shall be altered so that any new tax, assessment, levy, imposition or charge, or any part thereof, shall be measured by or be based in whole or in part upon the Ground Lease, the Land, or the rent, additional rent or other income therefrom and shall be imposed upon the Landlord, then all such taxes, assessments, levies, impositions, or charges, or the part thereof, to the extent that they are so measured or based, shall be deemed to be included within the terra "Impositions" for the purposes hereof to the extent that such Impositions would be payable if the Land were the only property of Landlord subject to such Impositions, and Tenant shall pay and discharge the same as herein provided with respect to the payment of Impositions. 7.02 Payment of Impositions. (a) Obligation to Pay. Commencing with the Lease Cormnencement Date, all Impositions which relate to the Land or Tenant's leasehold estate and which shall thereafter be made, levied, assessed or imposed by a governmental authority, if any (regardless of when same may be payable) shall be the responsibility of, and paid by, Tenant. Payment of Impositions shall be made directly to the taxing authority making such levy, and if Impositions may be paid in installments, Tenant may do so. Tenant shall deliver to Landlord copies of the official receipts of such taxing authorities and other proof evidencing .timely satisfaction of Tenant's obligation to pay Impositions, promptly after the receipt thereof by Tenant. Impositions attributable to the Land for the periods prior to the Lease Commencement Date and after the .Term (regardless of when same may be payable) shall be the sole responsibility of Landlord. (b) Right to Contest Impositions. Tenant may, at any time, in good faith and upon reasonable grounds, dispute or contest, by appropriate proceedings, the validity or amount of any Impositions for which Tenant is liable hereunder. If the notice required hereunder is so given by Tenant to Landlord and such contest is conducted in good faith by Tenant, and if, during any such contest, Tenant shall also take whatever action is necessary to prevent (i) any foreclosure or divesting of Tenant's interest in the Land, (ii) the public sale or foreclosure of any lien for any Impositions, (iii) Landlord from inc~urring or being exposed to any criminal or civil liability pursuant to this Ground Lease, and (iv) the collection of any Impositions not paid during such contest, then Landlord shall not, pending the termination of such legal proceedings, pay, remove or discharge such tax, assessment or other charge. Provided that Tenant has complied with this Section 7.02(b)~ Tenant shall not, in the event of and during the bona fide and diligent prosecution of such proceeding, be deemed to be in default in respect to the subject matter of such proceeding. Tenant further agrees that any such contest' shall be prosecuted to a final conclusion as speedily as is reasonably possible. Landlord agrees to render to Tenant any and all reasonable assistance, at no cost to Landlord, in contesting the validity or amount of any such Impositions, including (if required) joining in the signing of any protests or pleadings which Tenant may reasonably deem advisable to file. As to any Impositions not assessed to a separate and distinct tax lot, and as to which each party shall have liability hereunder, Landlord and Tenant shall, in good faith, coordinate any efforts to contest such Impositions. 7.03 Landlord's Right to Pay Taxes. If Tenant has not complied with the terms governing its right to contest set forth in Section 7.02(b), or if Tenant fails to comply with any 10 CHICAGO/#897132.11 other provision of Section 7.02, Landlord may (a) pay any Impositions or other charges made a lien upon the Land after such Impositions or other charges become delinquent or (b) subject to applicable Legal Requirements, redeem the Land from any sale that may be made of the same for such Impositions. Landlord need not inquire into the validity of such Impositions or other charges or any tax sale before making payment as provided in this Section. In the event Landlord makes any payments in accordance with this Section, Landlord shall have the remedies set forth in Article XIII. 7.04 Utility Payments. Commencing with the Lease Commencement Date and continuing throughout the Term, Tenant shall pay or cause to be paid all charges, assessments or taxes for gas, electricity, water, sewer, telephone, rail and other utility services incurred in connection with Tenant's use and occupancy of the Land. 7.05 Interruption of Utilities. Landlord shall have no liability or responsibility for any loss Or damage occasioned by any interruption or failure in the suPPly of any utility services to the Land or occasioned by any required termination of such utility services necessary to effect repairs or improvements or occasioned by any other cessation of such utility services for any cause or reason other than any interruptions or failures wholly caused by the intentional acts of Landlord or its employees, agents and contractors. Landlord makes no representations or warranties with respect to the availability of electrical power to the Land provided, however, Landlord and Tenant shall work together in good faith to coordinate with respect to electrical power requirements. No such interruption, termination or cessation of utility services shall relieve Tenant of any of its duties and obligations pursuant to this Lease, including, without limitation, its obligation to pay all Rent as and when the same shall be due. ARTICLE VIII INSURANCE AND DAMAGE AND DESTRUCTION 8.01 Public Liability And Worker's Compensation Insurance. Tenant shall maintain, at its cost, general liability insurance including contractual liability insurance insuring as "named insureds" Landlord and Landlord's trustees, officers, directors, agents and employees (the "Landlord Protected Parties") and Tenant from all claims, demands or actions made by or on behalf of any person or persons, fima or corporation and arising from, related to or connected with the Land, for bodily injury to or personal injury to or death of any person or more than one person or for damage to property in an amount and in forms currently carded by Tenant or other similarly situated municipal corporations. Said insurance shall be written on an "occurrence" basis and not on a "claims made" basis. Tenant shall, in connection with any construction on the Land and in the operation of the improvements, comply with the applicable worker's compensation insurance laws, protect Landlord against any liability under such laws, and cause its contractors and subcontractors to carry public liability, worker's compensation insurance, builder's risk insurance and such other insurance customarily obtained during construction as is reasonably requested by Landlord. 8.02 Property Insurance. Tenant shall procure and maintain policies of insurance, at its own cost and expense, insuring the improvements and the personal property at any time situated on the Land against loss or damage by fire, lightning, wind storm, hail storm, aircraft vehicles, smoke, explosion, ribt or civil commotion as provided by the Standard Fire and Extended 11 CH1CAGO/#897132.11 Coverage Policy and all other risks of direct physical loss as insured against under Special Form "all risk" coverage. The insurance coverage shall be for not less than 100% of the full replacement cost of the improvements and not less than 90% of the replacement cost of the personal property, all subject only to such deductibles as Tenant shall reasonably determine. Landlord and Tenant shall be jointly named as the insureds and loss payees with respect to any improvements located on the Land. 8.03 Form and Amount of Insurance. All of the aforesaid insurance shall be in companies or organizations customarily providing insurance to municipal corporations. A copy of Tenant's insurance or binder together with satisfactory evidence of payment of the premiums thereon shall be deposited with Landlord prior to the Lease Commencement Date, and annually prior to each expiration of such insurance policies required to be maintained hereunder. Tenant and Landlord shall, at Landlord's written request, annually review in good faith the insurance maintained under Section 8.01 hereof as to its adequacy. In addition, but not more frequently than once every five years during the Term, Landlord may at its expense obtain the opinion of an insurance consultant as to whether or not the insurance being maintained is customary with respect to similar uses by municipal corporations and is adequate (when considered together with applicable deductibles) to protect the personal property and the Land. The Landlord and Tenant shall in good faith discuss the need for any additional insurance recommended by such consultant. 8.04 Damage or Destruction. If any part of the Improvements shall be damaged or destroyed by fire or any other casualty, Tenant shall, within a reasonable time after the date,of the damage or destruction, which shall not exceed ninety (90) days, at its cost, commence necessary repair or restorations of the Improvements to a state equal to or better than the condition of the same immediately prior to the damage or destruction. Net insurance proceeds .received by T~nant, shall be disbursed to Tenant for such purpose. However, under no circumstances shall the occurrence of a fire or other casualty to any improvements or any personal property located on the Land give either party the right to terminate this Ground Lease, and neither Rent nor other charges shall be reduced or abated following damage or destruction or during the period of repair, restoration or rebuilding. 8.05 Indemniftcation by Tenant. Tehant shall, at all times during the Term, be in exclusive control and possession of the Land as provided herein, and Landlord shall not in any'~ event whatsoever be liable for any injury or damage to any property or to any person happening on or about the Land, nor for any injury or damage to any property of Tenant, or of any other person contained or located thereon or therein except such injury or damage as may be caused by the intentional acts of Landlord or any of the Landlord Protected Parties. Subject to the preceding sentence, Tenant shall indenmify, defend and save harmless the Landlord Protected Parties from all claims, demands, actions, causes of action, suits, judgments, liabilities, losses, damages, costs, or expenses (including court costs and reasonable attorney's fees) incurred by or asserted against the Landlord Protected Parties, or any of them, whether for property damage, personal injury or otherwise, which arise out of Tenant's use and occupancy of the Land or out of any other act or omission of Tenant or its agents, employees or invitees, at any time. All provisions of this Section 8.05 shall survive the expiration or termination of the Lease and Landlord's sale or other transfer of the Land. 12 CHICAGO/#897132.11 ARTICLE IX CONDEMNATION 9.01 Definitions. The following definitions apply to a taking of or damage to all or any part of the Land or any interest therein or in the improvements located thereon by eminent domain or condenmation. (a) "Taking" means the taking or damaging, including severance damage, by eminent domain or by condemnation or for any public or quasi-public use under any statute, whether the transfer of tire results from (i) the recording of a final order in condemnation or (ii) a voluntary transfer or conveyance to the condemning agency or entity under threat of condemnation, either (A)in avoidance of an exercise of eminent domain or (B)while condemnation proceedings are pending. The Taking shall be considered to occur as of the later of the date of recording of such final order or the date actual physical possession is taken by the condemnor. (b) "Total Taking" means the Taking of the fee title to all the Land. (c) "Substantial Taking" means the Taking of the fee title to at least twenty- five percent (25%) of the Land, if in the reasonable opinion of the Tenant, such Taking prevents or impedes Tenant in the operation of the Land for its intended purpose on a feasible economic basis. (d) "Partial Taking" means any Taking of the fee title to the Land that is not either a Total Taking or a Substantial Taking. (e) "Notice of Intended Taking" means any notice or notification expressing an existing intention of Taking, as distinguished from a mere preliminary inquiry or proposal. It includes, but is not limited to, the service of a condemnation summons and complaint on a party to the Ground Lease. The Notice of Intended Taking is considered to have been received when a party to the Ground Lease receives from the condemning agency or entity a notice of intent to take, in writing, containing a description or map of the Taking reasonably defining the extent of the Taking. (f) "Award" means compensation paid for the Taking whether pursuant to' judgment or by agreement or otherwise. 9.02 Notice of Taking: Representation. (a) Notice. The party receiving any notice of the kinds specified below shall promptly give the other party notice of the receipt, contents and date of the notice received: (i) Notice of Intended Takmg; (ii) Service of any legal process relating to condemnation of the Land; · (iii) Notice in connection with any proceedings or negotiations with respect to such a condemnation; or 13 CHICAGO/#897132.11 (iv) Notice of intent or willingness to make or negotiate a private purchase, sale, or transfer in lieu of condemnation. Co) Representation. Landlord, and all persons and entities holding under Landlord, and Tenant, and all persons and entities holding under Tenant, shall each have the right to represent their respective interests in each proceeding or negotiation with respect to a Taking or intended Taking and to make full proof of such party's claims. No agreement, settlement, sale, or transfer to or with the condemning authority shall be made without the consent of Landlord and Tenant. Landlord and Tenant each agree to execute and deliver to the other any instruments that may be required to effectuate or facilitate the provisions of the Ground Lease relating to condemnation. 9.03 Total Taking. Upon the occurrence of a Total Taking, the Ground Lease shall terminate as of the date Tenant is deprived of possession of the Leased Premises, and the Award, whether separately granted or as part of a unit award, shall be allocated between Landlord and Tenant based upon the then fair market value of their relative interests in the Land. Subject to the terms and conditions set forth above, the valuation of Landlord's and Tenant's interests in this Ground Lease and, therefore, in an Award, shall be mutually agreed upon by Landlord and Tenant. 9:04 Substantial Taking. Upon the occurrence of a Substantial Taking, Tenant shall have the option to terminate the Ground Lease by giving written notice thereof to Landlord not later than sixty (60) days after the date of the Taking. If Tenant does not elect to terminate the Ground Lease, such Taking shall be deemed a Partial Taking. If Tenant elects to terminate the Ground Lease, the Award shall be allocated in the same manner as set forth in Section 9.03. 9.05 Partial Taking. (a) Apportionment of Award. In the event of a Partial Taking, the Ground Lease shall terminate only as to the part of the Land so taken and shall continue in full force and effect with respect to the part not taken, without abatement, reduction or other effect upon the Term or the obligation of Tenant to pay in full the Impositions and other sums to be paid by Tenant. Following any Taking, Tenant shall re~tore, repair, or rebuild any improvements on the Land to bring the remaining improvements into compliance with Legal Requirements. 9.06 Temporary Taking. If all or any portion of the Land is taken for temporary use or occupancy, the Ground Lease shall continue in full force and effect without reduction of any Rent or other charges payable to Landlord. Tenant shall be entitled to make cla'nn for, recover and retain any Awards recoverable in respect to such Taking, except that if such Taking shall be for a period extending beyond the expiration of the Term of the Ground Lease, Landlord shall be entitled to receive such portion of the Award as shall be attributable to the portion of such period occurring after expiration of the Term. 9.07 Separate Claims. Nothing contained in tiffs Article shall prevent Landlord or Tenant from filing or prosecuting separately their respective claims for the taking of their personal property or for moving expenses. 14 CHICAGO/#897132.11 ARTICLE X ASSIGNMENT AND SUBLETTING 10.01 Binding Effect. The Ground Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10.02 Assignments and Subleases. Except as expressly set forth below, Tenant shall not, without the prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion, (i) assign, transfer, mortgage, pledge, hypothecate or encumber or subject to or permit to exist upon or be subjected to any lien or charge, this Lease or any interest under it, (ii) allow to exist or occur any transfer of or lien upon this Lease or the Tenant's interest herein by operation of law, (iii) sublet the Premises or any part thereof except as contemplated by Section 4.01 hereof, or (iv) permit the use or occupancy of the Premises or any part thereof for any purpose not permitted under Section 5.02 of this Lease or by anyone other than the Tenant and Tenant's employees except as contemplated by Section 4.01 hereof. In no event shall this Lease be assigned or assignable by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings, except as provided by law. Tenant shall give Landlord written notice of any proposed assignment of the Lease, and such notice shall provide (a) the name and address of the proposed assignee, Co) the terms of the proposed assignment, (iii) the most recent financial statements of the proposed assignee, and (iv) such other information as Landlord may reasonably request. No assignment shall relieve Tenant of any of its obligations under this Lease. Any assignment made by Tenant without Landford's consent in violation of this Section 10.02(a) shall be voidable at Landlord's option, shall constitute an Event of Default. Landlord's consent to any one assignment shall not be deemed a waiver of this Section 10.02(a) with respect to any subsequent assignment nor a consent to any Subsequent assignment. ARTICLE XI MORTGAGES 11.01 Leasehold Mortgage. Tenant shall not at any time permit any leasehold mortgage to be placed upon the Land. ARTICLE XII [INTENTIONALLY DELETED] ARTICLE XIII DEFAULT 13.01 Events of Default. The following shall constitute "Events of Default": (a) Monetary. Tenant shall fail to pay Rent at the time required, any Imposition or any other monetary obligation, payment or deposit required under this Ground Lease when due, and such failure shall cont'mue for a period often (I0) business days following written notice from Landlord to Tenant; or 15 CHICAGO/#1197132.11 (b) Non-performance. Tenant shall fail to observe or perform any of the other material covenants, terms or conditions contained in the Ground Lease, and such failure shall continue and not be cured for a period of thirty (30) days after written notice by Landlord to Tenant, provided that if the default is not reasonably capable of being cured within thirty (30) days, an Event of Default shall occur only if the Tenant fails promptly to commence such cure or fails thereafter diligently to pursue such efforts to completion; or (c) Bankruptcy; Receivership. (i) Tenant files a petition in bankruptcy or for reorganization, arrangement or other relief pursuant to any present or future federal or state bankruptcy law or under any similar present or future federal or state law, or is adjudicated a bankrupt or insolvent, or an order for relief is entered against it, or makes an assignment for the benefit of its creditors, or admits in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant as a bankrupt or a reorganization of Tenant under any present or future federal or state bankruptcy law or any similar present or future federal or state law is filed in any court and such petition or answer is not discharged or denied within sixty (60) days after the filing thereof, or (ii)a custodian, receiver, trustee or liquidator of Tenant or all or substantially all of the assets of Tenant is appointed in any proceeding brought by or against Tenant and is not discharged within sixty (60) days after such appointment or Tenant consents to or acquiesces in such appointment, or (iii) all or a substantial part of the assets of Tenant are attached, seized, subjected to a writ or distress warrant or are levied upon, unless such attachment, seizure, writ, warrant or levy is vacated within sixty (60) days. 13.02 Landlord's Rights Upon an Event of Default. Subject to the provisions of Article XI, upon the occurrence of an Event of Default by Tenant, or at any time thereafter during the continuance of such Event of Default, Landlord may take any one or more of the following actions and shall have the following rights against Tenant: (a) Termination. Landlord may elect to terminate the Ground Lease by giving no less than thirty (30) days' prior written notice thereof to Tenant and upon the passage of time specified in such notice, this Ground Lease, the estate hereby granted and all rights of Tenant hereunder shall terminate as fully and complete!y and with the same effect as if such date were the date herein fixed for expiration of the Term, except that Tenant shall remain liable as provided in Section 13.02(d). (b) Current Damages. In the event of any termination of this Ground Lease by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord the Rent and other sums required to be paid by Tenant for the period to and including the date of such termination or repossession. Thereafter, until the end of what would have been the Term in the absence of such termination or repossession, and whether or not the Land or any part thereof shall have been relet, Tenant shall pay to Landlord as liquidated and agreed current damages the Rent and other sums which would be payable to Landlord under this Ground Lease for the remainder of the Term by Tenant in the absence of such tennination or repossession, less the proceeds, if any, of any reletting, after deducting f~om such proceeds all of Landlord's expenses reasonably incurred in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, employee expenses, alteration costs and expenses of preparation for such reletting). Tenant will pay such current 16 CHICAGO/#897132.11 damages on the days on which Rent would have been payable under this Ground Lease in the absence of such termination, and Landlord shall be entitled to recover the same from Tenant on each such day. (c) ~ghts Cumulative, Non-Waiver. No right or remedy herein conferred upon or reserved to either party hereto is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute: In addition to the other remedies provided in this Ground Lease, each party shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the violation or attempted or threatened violation of any of the covenants, agreements, conditions or provisions of this Ground Lease, or to a decree compelling performance of this Ground Lease, or to any other remedy allowed at law or in equity. (d) Landlord's Right to Cure. If Tenant fails to pay any Impositions, utilities charges described in Article VII, insurance premiums described in Article VIII, the cost of any of the repairs or maintenance required to be made by Tenant pursuant to the Ground Lease or any other charges, costs or expenses required to be paid under the Ground Lease, then after giving Tenant notice and opportunity to cure as required by Sections 13.01 or 13.02, Landlord shall have the right, but not the obligation, to make all such payments or to perform such repairs or maintenance and to pay the cost thereof, and in addition to its other remedies under this Article XIII, Landlord shall have the option of requiring Tenant to repay to Landlord the amount of such payments (which shall be deemed additional Rent hereunder) on demand with interest after demand at a rate per annum (the "Default Rate") equal to two percent (2%) plus the prime rate (also known as the base rate or reference rate), as published from time to time in The Wall Street Journal or such other reasonably equivalent index which may then be available, as liquidated damages. (e) Late Payment, Default Rate. If Landlord does not receive payment of any installment of Rent, any Imposition or any other sum required to be paid by Tenant to Landlord hereunder within ten (10) business days after notice to Tenant of the delinquency, such sum shall, in addition, bear interest at the Default Rate from the due date until the date paid. (f) Maximum Rate. Nothing contained in Sections 13.02(d) or 13.02(e) shall be construed to require Tenant to pay interest in excess of the maximum rate permitted by law. If the Default Rate or late charge is deemed usurious, then the rate specified in said Sections shall be reduced to the maximum lawful rate. (g) Landlord's Lien. Landlord shall have a lien against Tenant's leasehold estate, the improvements constructed by Tenant and all property of Tenant located on the Land to secure any obligations of Tenant to Landlord arising pursuant to the provisions of this Ground Lease. 13.03 No Implied Waiver. The failure of either party to insist upon strict performance of any of the covenants or conditions of the Ground Lease or to exercise any option herein conferred in any one or more instances shall not be construed as a waiver or relinquishment for the future of any such covenant, condition, or option, but the same shall be and remain in full 17 CHICAGO/#897132.11 force and effect. The receipt by Landlord of any Rent or any other sum payable hereunder with knowledge of the breach of any covenants or agreements contained herein shall not be deemed a waiver of such breach. ARTICLE XIV ENVIRONMENTAL CONDITIONS 14.01 Definitions. As used in this Ground Lease, the following definitions shall apply: (a) "Environmental Claims" shall mean all notice letters, inquiry letters, investigations, notices of violation, orders, claims, demands, suits or judicial or administrative actions under any Environmental Requirements. (b) "Environmental Requirements" shall mean all present and future laws, rules, regulations, ordinances, codes, policies, guidance documents, approvals, plans, authorizations, licenses or permits relating to human health, pollution or protection of the environment issued by any government authority. (c) "Environmental Expenses" shall mean any liability (including strict liability), loss, cost, penalty, fine, punitive damages, encumbrance or expense relating to any Environmental Claim or Environmental Conditions or incurred in compliance with any Environmental Requirements, including, without limitation the costs of investigation, cleanup, remediation, monitoring, corrective removal or other responsive action; compliance costs, settlement costs and related legal and consulting fees and expenses. (d) "Hazardous Materials" shall mean any substance that is defined as a "hazardous substance", "hazardous waste", or "hazardous material" or term of similar meaning under any Environmental Requirements, including petroleum, heating oil, crude oil and any fraction thereof and any natural or synthetic gas. (e) "Environmental Conditions" shall mean the state of the environment, including natural resources (e.g. flora and fauna), soil, surface water, ground water, any present or potential drinking water supply, subsurface strata or ambient air, relating to or arising out of the use, handling, storage, treatment, recycling, generation, transportation, spilling, leaking, pumping, pouring, injecting, emptying, discharging, emitting, escaping, leaching, dumping, disposal, release or threatened release of Hazardous Materials, including, but not limited to, the exposure of persons to Hazardous Materials at the work place or the exposure of persons or property to Hazardous Materials migrating or otherwise emanating from, to or located at, under or on the Land. 14.02 Tenant's Construction. Tenant acknowledges that there is an underground storage tank ("UST") currently located on the Land and that Tenant has received copies of all documentation in Landlord's possession with respect thereto. Tenant shall, at Tenant's sole cost and expense, remove the UST in accordance with all Environmental Requirements. In the event that all or part of the Land requires remediation or other activities pursuant to Environmental Requirements as a result of or in furtherance of Tenant's removal of the UST, demolition or alteration of existing -improvements or construction of new improvements on the Land, Tenant, at its sole cost and expense, shall undertake and complete such required remediation or other 18 CHICAGO/#897132.11 activities. Notwithstanding the foregoing Landlord shall be responsible for any remediation costs incurred as result of the gross negligence or willful misconduct of Landlord. In addition, Landlord shall cooperate with Tenant with respect to the removal of the UST, provided same shall be at no cost to Landlord. 14.03 Indemnification By Tenant. Tenant shall protect, defend, indemnify and save harmless Landlord, and its agents, employees, officers and directors, from and against all liabilities, obligations, claims, damages, Environmental Expenses, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Landlord by reason of claims, losses, damages, response costs, clean-up costs and expenses arising out of or in any way relating to (i) Tenant's failure to fulfill each of the obligations required of Section 14.02 of this Lease, or (ii) Hazardous Materials, released on, over, from, beneath, in or upon the Land after the Effective Date (unless the release of Hazardous Materials after Effective Date was caused by action taken by Landlord after the Effective Date), including without limitation, (a) claims of third parties (including, but not limited to, governmental entities) for damages, penalties, response costs, clean-up costs, investigation costs, assessment costs, injunctive or other relief; (b)costs and expenses of investigation, assessment, removal and restoration including fees and costs of attorneys and expe~ts, and costs of reporting the existence of Hazardous Materials to any governmental agency; and (c) any and all expenses or obligations, including, without limitation, reasonable attorneys' fees and costs, witness fees, deposition costs, copying and telephone charges and other expenses, all of which shall be paid by the Tenant when incurred. In case any action, suit or proceeding is brought against Tenant by reason of any indemnifiable occurrence provided for in this Section 14.03, at the election of Landlord, Tenant shall, at Tenant's expense, resist and defend such action, suit or proceeding, or cause the same to be resisted and defended, provided nothing contained herein shall limit the Tenant's liability to Landlord for reimbursement of Landlord's reasonable expenses in resisting and defending any such action, suit or proceeding if Landlord does not make the aforesaid election. 14.04 Landlord's ~ght To Receive Reports, Correspondence and Studies. Tenant shall forward to Landlord, at the address provided for notices herein, a copy of all reports, studies, data, and communications to or from Tenant Qr any other person concerning the UST or any Environmental Claims or Environmental Conditions pertaining to the Land within two (2) business days of the date that such report, study, data or communication was received or prepared by Tenant. Tenant shall make no application with or send any communication to any governmental body or agency concerning the UST or any Environmental Condition pertaining to the Land without Landlord and Tenant first discussing in good faith such proposed application or communication. Landlord shall give Tenant notice and copies of any communications received by Landlord. 14.05 Survival. All provisions of this Article XIV shall survive the expiration or termination of the Lease and Landlord's sale or other transfer of the Land. 19 CHICAGO/#897132.1 l ARTICLE XV MISCELLANEOUS PROVISIONS 15.01 Access by Landlord. Landlord or Landlord's agents, representatives or employees shall have the right at any time upon at least twenty-four (24) hours' verbal notice (except in emergencies or suspected emergencies, in which case only such notice, if any, as may be feasible under the circumstances shall be required) to enter upon the Land for the purposes of inspecting the same, determining whether Tenant is complying with this Ground Lease, curing (as permitted herein) any default by Tenant (except in the case of an emergency or suspected emergencies threatening injury to a person or Land, in which case no notice is necessary), remediating any Environmental Condition or threatened Environmental Condition (but Landlord shall have no obligation to perform any such remediation), and, during the last two (2) years of the Term, showing the Land to prospective tenants. Landlord shall notify Tenant in writing in the event of any such non-compliance. 15.02 Brokers' Fees. Tenant represents that Tenant has dealt with no brokers in connection with this Lease and Tenant agrees to indemnify and hold Landlord harmless from all damages, liability and expense (including reasonable attorneys' fees) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such broker or brokers or finders in connection with its having introduced Tenant to the Land or participating in the negotiation with Tenant of this Lease. Landlord represents that Landlord has dealt with no brokers in connection with this Lease and Landlord agrees to indemnify and hold Tenant harmless from all damages,, liability and expense (including reasonable attorneys' fees) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such broker or brokers or finders in connection with its having introduced Landlord to the Land or participating in the negotiation with Landlord of this Lease. 15.03 Gender and Number. Words of any gender used-in the Ground Lease shall be held to include any other gender, and words in the singular shall be held to include the plural, when the sense requires. 15.04 Notices. Notices, statements and other communications to be given under the terms of the Ground Lease shall be in writing and sent by fax, certified or registered mail, or by commercial courier, return receipt requested, and addressed as follows: Ifto Landlord: Mount Prospect Public Library 10 South Emerson Street Mount Prospect, IL 60056 Attn: Executive Director Fax: 847-253-0642 Voice: 847-253-5675 with a copy to: Vedder, Price, Kaufman & Kammholz 222 N. LaSalle Street 20 CHICAGOI#897132.11 Suite 2400 Chicago, IL 60601 Attn: Lawrence L. Summers, Esq. and Shawn S. Magee, Esq. Fax: 312-609-5005 Voice: 312-609-7500 If to Tenant: Village of Mount Prospect 100 South Emerson Street Mount Prospect, IL 60056 At'm: Village Manager Fax: 847-392-6022 Voice: 847-392-6000 with a copy to: Klein, Thorpe & Jenkins, Ltd. 20 N. Wacker Drive Suite 1660 Chicago, IL 60606 Attn: Everette M. Hill, Jr., Esq. Fax: 312-984-6444 Voice: 312-984-6420 or at such other address or by such other acceptable means as from time to time designated by the party receiving the notice in accordance with the procedures set forth herein. The effective date of such notices shall be the date such notices are received or refused by the party to whom the notice is given. Proof of successful delivery or transmission shall be provided upon request. 15.05 Applicable Law. The internal laws of the State of Illinois applicable to agreements made or to be performed in Illinois or to Land located in that state shall govem the validity, performance and enforcement of the Ground Lease. 15.06 Limited Recourse Against Landlord. In the event of a default by Landlord in its obligations pursuant to this Lease, Tenant's remedy and right of recovery with respect to money damages shall be limited to Landlord's interest in the Land. 15.07 Pa~ial Invalidity. If any provision of the Ground Lease shall be invalid or unenforceable it shall not affect the validity of any other provisions of the Ground Lease so long as the enforcement of such other provisions is not materially inconsistent with the parties' intent as expressed in this Ground Lease. 15.08 Recording. Landlord and Tenant will execute for purposes of recordation in the appropriate recording office a memorandum or short form of the Ground Lease containing the names of the parties, a description of the Land, the Term, and such other provisions as either 21 CHICAGO/#897132.11 party may reasonably require. Each party agrees that it will not record the Ground Lease in its entirety. 15.09 Interpretation. Headings as to the contents of particular sections herein are inserted only for convenience and are in no way to be construed as a part of the Ground Lease or as a limitation on the scope of the particular section to which they refer. The parties hereto acknowledge that each has been represented by competent counsel in the review and negotiation of this Lease and that the theory of construction construing the Lease against the drafter thereof shall be disregarded. 15.10 Binding Effect. The covenants, conditions and agreements contained in the Ground Lease shall bind, apply to and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 15.11 No Partnership. It is expressly understood that Landlord shall not be construed or held to be a partner of Tenant and that the relationship between the parties hereto is and shall at all times remain that of landlord and tenant. 15.12 Estoppel Certificates. At anytime and from time to time within fifteen (15) days after the request of the other party, but not more frequently than twice per year, Landlord or Tenant will execute, acknowledge, and deliver to the other party, a certificate certifying: (a) That the Ground Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in- full force and effect as modified and stating such modifications); (b) Whether there are any existing defaults by the other party, to the knowledge of the party making such certification, specifying the nature of such defaults, if any; (c) Whether the Lease Commencement Date has occurred and, if so, the date thereof; and (d) Such other matters as may be reasonably requested. 15.13 Holding Over. The Ground Lease shall terminate without further notice at expiration of the Term. Any holding over by Tenant or any party claiming by, through or under Tenant after expiration shall not constitute a renewal or extension or give Tenant any rights in or to the Land. In the event of any holding over, Landlord may exercise any and all remedies available to it at law or in equity to recover possession of the Land and for damages. If the holding over occurs at the expiration of the Term or by reason of a termination by mutual agreement of the parties, and continues in excess of thirty (30) days, Landlord may, as an alternative remedy, elect that such holding over shall constitute a renewal of this Ground Lease for one (1) year, and upon all of the other covenants and agreements contained in this Ground Lease. 15.14 Time is of the Essence. Time is of the essence in this Ground Lease. 22 CHICAGO/#897132.11 15.15 Transfer and Leasehold Taxes. Tenant shall pay any transfer or leasehold taxes imposed by any governmental authority in connection with this Ground Lease or the recordation of the memorandum provided hereinabove. 15.16 Expenses and Fees. If legal action be brought in a court of competent jurisdiction by either party hereto arising out of or concerning the Ground Lease or the rights of any party hereto, the prevailing party in said action shall be awarded reasonable attorneys' fees and court costs from the non-prevailing party. Tenant agrees to pay on demand Landlord's expenses, including reasonable attorneys' fees, expenses and administrative hearing and court costs incurred either directly or indirectly, in curing any default by Tenant, in terminating this Ground Lease or repossessing the Land, in connection with appearing, defending or otherwise participating in any action or proceeding arising from the filing, imposition, contesting, discharging or satisfaction of any lien or claim for lien, in defending or otherwise participating in any legal proceedings initiated by or on behalf of Tenant wherein Landlord is not adjudicated to be in default under this Ground Lease, or in connection with any investigation or review of any conditions or documents in the event Tenant requests Landlord's approval or consent to any action of Tenant which may be desired by Tenant or required of Tenant hereunder. 15.17 Covenants to Run with the Land. All the covenants, agreements, conditions and undertakings contained in this Ground Lease shall extend and inure to and be binding upon the successors and assigns of the respective parties hereto the same as if they were in every case named and shall be construed as covenants running with the land, and wherever in this Ground Lease reference is made to either of the parties hereto, it shall be held to include and apply to, wherever and whenever applicable, the successors and permitted ~rantees and assigns of such party the same as if in each and every case so expressed. 15.18 Entire Agreement; Merger. The Ground Lease contains all the agreements and conditions made between the parties hereto with respect to the matters contained herein and may not be modified orally or in any other manner than by an agreement in writing signed by all the parties hereto or their respective successors. All prior written and oral understandings and agreements shall be deemed to have merged into the Ground Lease and have no further force and effect. 15.19 Counterparts. This Ground Lease may be executed in counterparts, each of which shall be deemed to be an original and alt of which shall, when taken together, constitute but one and the same instrument. [Signature Page Follows] 23 CHICAGO/#897132.11 EXHIBIT A LEGAL DESCRIPTION OF LAND THAT PART OF LOT "A" IN MOUNT PROSPECT PUBLIC LIBRARY RESUBDIVISION OF LOTS 1, 2, 3, 4, 5, 6, 7, AND 14 IN BLOCK 4 IN BUSSE AND WlLLIE'S RESUBDIVISION IN MOUNT PROSPECT IN THE WEST HALF OF SECTION 12, TOWNSHIP 41 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT "A"; THENCE NORTH 88 DEGREES 59 MINUTES 27 SECONDS WEST ALONG THE SOUTH LINE OF SAID LOT "A" 294.78 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE NORTH 00 DEGREES 12 MINUTES 10 SECONDS WEST ALONG THE WEST LINE OF SAID LOT "A" 89.54 FEET; THENCE SOUTH 89 DEGREES 47 MINUTES 36 SECONDS EAST 295.41 FEET TO A POINT. ON THE EAST LINE OF SAID LOT "A"; THENCE SOUTH 00 DEGREES 12 MINUTES 57 SECONDS WEST ALONG SAID EAST LINE 93.66 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS. CHICAGO/#897132.11 DESMAN EXHIBIT B LIFE CYCLE COSTS Item LIFE-CYCLE REPAIR/MAINTENANCE COSTS (50 YR) Mt Prospect Village Hall Parking Deck Unit Cost Units Interval Annual Cost Cycles Inflation Mult (4) Total Cost Concrete Sealer $.50/SF 128000 8 Yrs $8,000 6 Sealants (All) $5.00/LF 18000 10 Yrs $9,000 5 S, oncrete& Masonry $2.00/SF 128000 Life $5,120 vades Elevator Rebuild $100,000/ 1 20Yrs $5,000 2 Total Repair Costs $27,120 3.8 Lighting Fixtures $.04/SF 128000 1 Yr $5,120 50 Elevator Maint. (1) $5,000/ 1 1 Yr $5,000 50 Gen Maintenance (2) $.06/SF 128000 I Yr $7,680 50 Operational (3) $.25/SF 128000 1 Yr $32,000 50 Total Operating Costs $49,800 Notes (1) Annual service contract plus non-covered items (2) Includes: sweeping,washdowns,restriping & misc painting, extinguisher replacement, landscape/site repair (3) Includes: utilities, insurance, admin costs, snowplowing, landscape maint, sprinkler testing taxes (excludes security) (4) Based on 4%/Yr inflation $1,459,200 $1,710,000 $972,000 $950,000 $5~091,200 $972,000 $950,000 $1,458,000 $6,080,000 $9,460,00C