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S-1124 - 06/06/2005 - AGREEMENT - OrdinancesORDINANCE 2005- AG -EXl -S -1124 AN ORDINANCE OF THE VILLAGE OF OAK BROOK, COOK AND DUPAGE COUNTIES, ILLINOIS, AUTHORIZING THE NEGOTIATION AND EXECUTION OF A REDEVELOPMENT AGREEMENT FOR THE OAK BROOK PROMENADE REDEVELOPMENT PROJECT WHEREAS, the Village has heretofore determined that it is in the public interest to adopt and has adopted a Redevelopment Plan and Project (the "Plan "), pursuant to the Tax Increment Allocation Redevelopment Act, as amended (65 ILCS 5/11- 74.4 -1, et seq.) (the "Act "), for tax increment financing ( "TIF ") for the Downtown Redevelopment Project Area, (the "Redevelopment Area "); and WHEREAS, Oak Brook Promenade, L L.C., (the "Developer "), is the owner of certain real estate currently used for office buildings and parking therefore, within the Redevelopment Area, which is legally described in Exhibit "A" to the Redevelopment Agreement (the "Subject Property "); and WHEREAS, Developer has determined to redevelop the Subject Property, and would not proceed to redevelop the Subject Property without the adoption of the Plan, the designation of the Redevelopment Area and TIF; and WHEREAS, to implement the Plan, it is necessary that the Village enter into this Agreement with Developer in order, inter alia, to provide for the redevelopment of the Subject Property in a manner which will further the Plan; and WHEREAS, the Redevelopment of the Subject Property is in the public interest in that such Redevelopment will create an environment within the Redevelopment Area which will contribute to the welfare of the Village, preserve or enhance property values in the vicinity of the Redevelopment Area, strengthen the economic well -being of the Redevelopment Area and the Village by achieving development which functionally complements the adjacent properties and uses; and WHEREAS, the Village invokes its authority under the Act, to agree to the terms of the Redevelopment Agreement by this Ordinance approving same; and NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS, as follows: Section l: That the Redevelopment Agreement by and between the City and Oak Brook Promenade, L.L.C. (the "Developer ") is hereby approved in a form substantially as submitted to this meeting and approved by the Village Attorney, and the President and Clerk are authorized and directed to execute same on behalf of the Village. Ordinance 2005- AG -Exl -S -1124 Authorizing Negotiation & Execution of Redevelopment Agent Page 2 of 2 Section 2: That this ordinance shall be in full force and effect from and after its passage, approval and publication as required by law. Section 3: That all ordinances or parts thereof in conflict with the provisions of this ordinance be and the same are hereby repealed to the extent of such conflict. APPROVED THIS 6th day of June, 2005. Kevin inlan Village President PASSED THIS 6th day of June, 2005. Ayes: Trustees Craig, Kennedy, Sanford and Yusuf Nays: Absent: None None Recuse: Trustees Aktipis and Manofsky r� �o I ca U14*(i ATTEST: Linda K. Gonnella, CMC Village Clerk REDEVELOPMENT AGREEMENT THIS REDEVELOPMENT AGREEMENT, is made and entered into as of the 6th day of June, 2005 by and between the Village of Oakbrook, an Illinois municipal corporation located in Cook County, Illinois (the "Village "), and Oak Brook Promenade, L.L C., a Delaware limited liability company (the "Developer "). RECITALS A. Pursuant to the Tax Increment Allocation Redevelopment Act, 65 ILLS 5/11 - 74 4 -1 et se q. (the "Act "), the Village authorized Camiros, Ltd. to conduct a feasibility study and determine if the area generally described as the southwest corner of Butterfield and Meyers Roads (the "Property ") qualified for tax increment financing ( "TIF ") as provided by the Act The area is approximately 18.5 acres and is bounded by I -88 on the south, Meyers Road to the east, Butterfield Road to die north, and the ComEd substation to the west as more fully described in Exhibit A attached hereto (the "Redevelopment Area" or "Redevelopment Project Area ") The feasibility study, dated February, 2005, concluded that the Redevelopment Area had certain blighting factors making it eligible as a "blighted" area as defined by the Act, and that the Redevelopment Area would not be redeveloped or unproved but for Village intervention Based on the feasibility study, the Village authorized the preparation of the Oak Brook Promenade Tax Increment Financing Redevelopment Plan and Project (the "Plan ") B On March 16, 2005 the Village Board adopted Ordinance No. 2005- TX -TIF- EX5 -S -1110 which, in accordance with the terms and conditions of the Act, set the time and date for a Joint Review Board Meeting and a Public Hearing, established an Interested Persons Registry, and provided for the mailing of certain notices. C. On April 12, 2005, the Village convened a meeting of the Joint Review Board ( "JRB ") to review the feasibility study and other planning documents related to the Redevelopment Area and Plan. Based on the feasibility study and the Plan, the majority of the JRB members present voted to recommended approval of both the Redevelopment Area and Plan. On May 10, 2005 the Village Board held a public hearing for public comment on the Plan On June 6, , 2005 the Village introduced Ordinance 2005 - TIF -EX4 -S -1121, "An Ordinance Designating the Oak Brook Promenade" which, along with Ordinance 2005 -TX- TIF -EX4 -S -1120, "An Ordinance Approving the Oak Brook Promenade Redevelopment Plan and Project," and Ordinance 2005 - TIF -EX3 -S -1122, "An Ordinance Adopting Tax Increment Financing for the Village of Oak Brook, DuPage County, Illinois, in connection with the Designation of the Oak Brook Promenade Tax Increment Financing Redevelopment Project Area," and Ordinance 2005 -TX- TIF -EX2 -S -1123, "Authorizing Issuance of the Note," was adopted by die Village on June 6, , 2005. The foregoing ordinances are collectively referred to herein as the "TIF Ordinances " D The Village has entered into this Redevelopment Agreement with the Developer to implement the Plan and facilitate the development of the Redevelopment Project, as hereinafter defined. The Redevelopment Project will include an upscale retail and commercial Shopping Center , along with certain public and site related improvements. To facilitate the development of the Redevelopment Project, pursuant to the Act and in accordance with the terms of this Agreement, the Village agreed to use TIF to defray the extraordinary costs of the Redevelopment Project and to adopt an Ordinance authorizing TIF Redevelopment Note (the "Note" or "TIF Note ") as provided hereinafter. The Developer is responsible for constructing those certain TIF Improvements identified on Exhibit B attached hereto (the "TIF Improvements "). The Shopping Center as hereinafter defined, and the TIF Improvements shall be collectively referred to as the "Redevelopment Project." E. The Village, after due and careful consideration, has concluded that the construction and development of the Redevelopment Project Area as provided for ita the Redevelopment Plan will further the growth of the Village, facilitate the redevelopment of the entire Redevelopment Project Area, stimulate redevelopment of other parcels in the Butterfield /22n1 Street corridor, increase the assessed valuation of the real estate situated within the Village, increase the sales tax revenues realized by the Village, foster increased economic activity within the Village, and otherwise be in the best interests of the Village by furthering the health, safety, and welfare of its residents and taxpayers. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of wluch are hereby acknowledged, the parties do hereby agree as follows: I RECITALS PART OF AGREEMENT The recitations set forth in the foregoing recitals are material to thts Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Article 1. II MUTUAL ASSISTANCE The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and, in the Village's case, the adoption by the Village of such ordinances and resolutions), as may be necessary or appropriate to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. III REDEVELOPMENT PROJECT 3.01. General. Description of Shopping Center The Developer hereby agrees to that the construction of the Shopping Center will be subject to the terms and conditions of this Agreeinnent. The "Shopping Center" will be an upscale retail and commercial Shopping Center consisting of approximately 171,000 square feet or retail, office, coinunercial and restaurant uses The Shopping Center will be 2 constructed as depicted on the site plan attached hereto as Exhibit B, and more specifically, in conformance with the "Planning Ordinances" as that term is hereinafter defined The Village has entered into this agreement and agreed to use TIF to facilitate the development of the Shopping Center. 3.02. Purchase of Property. The Developer will acquire the Property, all of which is in the Redevelopment Project Area, pursuant to a purchase contract dated with St. Paul Properties, Inc. it will acquire the Property At the time the Notes are issued, the Developer shall proceed, pursuant to the terms of the purchase contract and this Agreement, to purchase the Property and comrnence construction on the Shopping Center "Commencement of Construction" shall mean the issuance of a permit by the Village at or before demolition of the buildings If on or before December 31, 2005, Commencement of Construction has not begun, the Village may elect to terminate this Agreement and repeal the TIF Ordinances and declare the Note null and void. The Village shall issue the Note at or after the time the Developer purchases the Property, pursuant to the aforesaid purchase contract dated 3.03. Annexation and Zoning Ordinances. The Village, after giving all notices required by law and after conducting all public hearings required by law, adopted the following ordinances (1) Ordinance No. 2005- ZO- AN -EX1- S -1114, "An Ordinance Annexing Certain Territory to the Village of Oak Brook, DuPage and Cook Counties "; (2) Ordinance No. 2005- ZO -R -S -1115, "An Ordinance Amending the Zoning District Map Concerning the Oak Brook Promenade Property at 3001 -3003, 3121 Butterfield Road, Oak Brook, Illinois 60523 "; (3) Ordinance No. 2005- ZO -V -S -1116, "An Ordinance Granting Variations from the Provisions of Title 13 (Zoning Regulations) of the Village Code of the Village of Oak Brook Relative to Lot Area Requirement, Sign Height, Interior Parking Lot Landscaping and Off -Street Parking Regulations "; (4) Ordinance No. 2005- ZO -SU -S -1117, "An Ordinance Granting Special Uses to Oak Brook Promenade for Outdoor Dining Areas Adjacent to Up to Three Restaurants "; (5) Resolution No. 2005 -SD- FP- CON -V -R -901, "A Resolution Approving the Final Plat of Subdivision Known as NAI Hiffman Butterfield Road Subdivision and Granting Variations from the Provisions of Section 14-6-3-J and K of Title 14 ( "Subdivision Regulations ") of the Village Code of the Village of Oak Brook Relative to Monumentation and Granting of Public Utility Easements "; and (6) Ordinance No 2005- ZO -TA -G -778, "An Ordinance Amending Section 13 -3 -8, 13 -7 -A -1 and 13- 7A -3(B) in Title 13 (Zoning Regulations) of the Village Code of the Village of Oak Brook Relative to Structure Height" (collectively, the "Planning Ordinances ") The Developer hereby agrees that the construction of the Redevelopment Project to proceed in accordance with the Annexation and Zoning Ordinances and the objectives of the Redevelopment Plan as it may be modified or revised from time to time as provided herein and in accordance with the Act. 3.04 TIF Improvements. The TIF Improvements and the estimated costs for each are outlined in Exhibit C The Village acknowledges that all of the TIF Improvements are eligible redevelopment project costs under the Act and have been approved in the Plan approved by the Village for the Redevelopment Project Area. Developer shall construct the TIF Improvements as part of the construction of the Redevelopment Project and the Village herein has agreed to issue the TIF Note to reimburse the Developer for the costs of the TIF 3 Improvements The Village and Developer agree that Developer will be reimbursed in the total amount for only those costs listed in the line items in Exhibits C; however, the Developer shall have the right to re- allocate dollars between and among line items as may be desirable or necessary to construct and complete the Redevelopment Project. 3.05. Schedule of Development. Subject to the development provisions of Section 3.11, Commencement of Construction of the Redevelopment Project is to begin on or before December 31, 2005 and is expected to be completed the substantially in accordance with the following schedule: A. Completion of demolition on the Property within six months after the Commencement of Construction, B. Begin construction of the foundations for some or all of the buildings within nine months after Commencement of Construction; C. Delivery of the buildings A, B, J & K, as identified in Exhibit B, to the respective retail tenants within fourteen months after the commencement of construction; and D Substantial completion of the Redevelopment Project within twenty -four months of Cornrnencement of Construction. "Substantial Completion" shall mean: (1) the Developer has completed all of the TIF Improvements in accordance with the building plans approved by the Village; (2) Village has issued occupancy permits (permanent or teinporary) for not less than 120,000 square feet of the Shopping Center, and (3) the Developer has completed the common improvements as delineated in the Annexation and Zoning Ordinances. The Common Improvements shall .mean construction of: ingress and egress, parking areas including lighting, paving and landscaping and streetscape as allowed by ongoing construction, in such a fashion to allow for the safe operation of the Shopping Center. All work will be completed in accordance with this Agreement and Annexation and Zoning Ordinances 3.06. Plan Approval and Issuance of Permits. The Developer shall submit the construction plans to the Village to obtain the required perrnits necessary to construct the Project and said plans shall conform to all applicable codes and ordinances. the Village will review the construction plans to determine compliance with the Plan and applicable codes and ordinances within a time no longer than it typical for said review and thereupon the Village will approve said plans, or provide a written description detailing with specificity any portion of the said plans which the Village has deteri=ed to be not in compliance with the Village's applicable codes Developer shall correct the construction plans if required and the Village shall have five days to review the re- submitted plans. 3.07. Construction Indemnity. The Developer covenants and agrees, at its expense, to pay, and to indemnify and save the Village, and its officers, agents, employees, engineers and attorneys (the "Indennnitees ") against, any actions, claims, and damages adjudicated to be a result ansing directly from the Developer's construction of the TIF Improvements or this Agreement, unless such claims, actions, damages, demands, arise by reason of the negligent acts or omissions of the Village or other Indemnitees The indemnity provided for in this paragraph is expressly limited to 4 the amount of Developer's liability insurance coverage as provided for in Section 3.09 of this Agreement. 3.08 Litigation. In the event the Village is named as a party in an action challenging the validity of the Redevelopment Project Area or the Notes, Developer shall assume the responsibility of providing a defense. Village shall hire counsel of its choosing, with the Developer's reasonable approval, to defend the Village, and shall be responsible for the costs of said litigation including legal fees, costs, etc. In the event the Note is determined to be invalid by a court of competent jurisdiction, Developer shall have the right to itself or to require that the Village pursue and exhaust any available appeals to defend the validity of the Redevelopment Project Area, the Note, or the Village's obligation to pay the Note. In the event the Note is adjudicated to be invalid, the Village shall have no responsibility to reimburse the Developer for the costs of the TIF Improvements, from any other source. 3.09. Insurance. The Developer agrees to secure or cause to be secured liability, workmen's compensation, and employer's liability insurance coverage as required by applicable law and in commercially reasonable amounts, as reasonably required to by the Village, with respect to construction, of the Redevelopment Project. Subject to Section 7 13 of this Agreement, Developer agrees that the Village will be named as an additional insured on the Developer's casualty insurance policies covering the construction of the TIF Improvements. The Developer shall deliver to the Village certificates evidencing liability insurance policies, nainiing the Village as an additional insured, with provisions for notification to the Village in the event of cancellation. 3.10. Developer Financing. Prior to the issuance of the Note, the Developer shall deliver to the Village evidence, in a form reasonably acceptable to the Village, that it has the capital resources necessary to construct the complete Redevelopment Project. Developer may borrow the funds or provide said financing through its own resources The Village shall have no obligation to issue the Note until evidence of said resources is delivered to the Village 3.11. Delay. For the purposes of any of the provisions of this Agreement, neither the Village nor Developer, nor any successor in interest, shall be considered in breach of, or default in, its obligations under this Agreement in the event of any delay caused by damage or destruction by fire or other casualty, strike, shortage of material, unusually adverse weather condition such as, by way of illustration and not limitation, severe rain storms or below freezing temperatures of abnormal degree or quantity for an abnormal duration, tornadoes or cyclones and other events or conditions beyond the reasonable control of the party affected which in fact prevents the party from discharging its respective obligations hereunder and the timefraines for performance of those obligations shall be extended accordingly . 3.12. Modifications to the Redevelopment Plan The construction of the Redevelopment Plan may be modified or revised by the Developer, only with the Village's approval, provided that such modifications and revisions are consistent with the Annexation and Planning Ordinances and the Redevelopment Plan. 5 3.13. Utilities and Fees. The Village hereby agrees that the Developer shall have the right to connect any and all on- site water lines, sanitary and storm sewer lines constructed in the Redevelopment Project Area to Village controlled utility lutes existing at or near the perimeter of the Redevelopment Project Area. The Village agrees that the Developer shall be obligated to pay, in connection with the development of the Redevelopment Project, only those water, sanitary sewer, building perrmn, engineering, inspection, and other fees of general applicability. 3.14. Assistance to Developer. The Village agrees to provide the Developer with assistance with respect to obtaining building perimits from the Village, and any permits or approvals required from any governmental agency, whenever reasonably requested to do so; provided, however, that all requests for assistance are in compliance with the Annexation and Zoning Ordinances, approved plans and specifications, and all applicable codes. 3.15. Building, Subdivision Codes. The Parties agree that construction of the Redevelopment Project, and the contemplated uses and occupancies thereof, shall comply with all federal, state and Village building codes subject to modifications approved by the Village pursuant to the Annexation and Zoning Ordinances, subdivision, zoning, environmental and other developmental regulations. IV TAX INCREMENT FINANCING ( "TIF ") 4.01. Incremental Pledged Revenue., Developer hereby represents to the Village that but for tax increment financing, the construction of the Shopping Center would not be economically viable. The Parties agree that TIF, um.plernented in accordance with the terms and provisions of the Act, will be a source of funding for the construction of the TIF Improvements to make the Shopping Center viable. The Village has adopted an ordinance (the "Note Ordinance ") providing for the issuance by the Village of a Note which shall be secured by the pledge of one hundred percent (100 %) of the incremental real estate taxes (the "Real Estate Taxes ") generated by the Redevelopment Project as determined in accordance with Section 5/11-74.4-8 of the Act, and twenty percent (20 %) of the incremental sales taxes as certified by the Illinois Department of Revenue ( "DOR ") and paid under the Mumcipal Retailer's Occupation Tax Act and the Municipal Service Occupation Tax Act by retailers and servicemen on transactions conducted within the Redevelopment Project Area (the "Sales Taxes ") generated by the Redevelopment Project. The Real Estate Taxes and the Sales Taxes are hereinafter referred to as the "Pledged Taxes." The Note Ordinance provides for the deposit of the Pledged Taxes into the special tax allocation fund heretofore created by the Village for the Redevelopment Project Area (the "Fund ") to be held by the Village, and for the Pledged Taxes to be used for payments on the Note described in this Section IV and the Note Ordinance. In the event the Pledged Taxes are inadequate to make scheduled Note payments or to fully repay the Note, the Village shall have no obligation to provide any .additional funds froin any other source 4.02. Issuance of the Note. C� The Village shall issue the Note (Oak Brook Promenade Tax Increment Revenue Note, Series 2005) in the aggregate principal amount of Four Million, Two Hundred and Fifty Thousand Dollars ($4,250,000.00), the Note shall be a draw down Note and shall bear interest at the rate of eight percent (8 %) per annum, for a term of fifteen years (the "Term "). The Tenn shall commence on the date the Village certifies the Note for its fall value meaning that the costs of TIF Improvements, in an amount not to exceed $4,250,000, have been paid as provided for in section 4.03. The Note shall be registered and payments shall be made to the registered owners (the "Registered Owners ") as recorded with the Village designee (the "Village's Designee ") who will be responsible for overseeing the payment and management of the Pledged Taxes and the Note. 4.03. Authenticating the Amount of the Note. The Village shall issue the Note in substantially the form attached hereto as Exhibit D (subject to the provisions of the Note Ordinance) to the Developer or its nominee in the initial amount of the TIF Improvements paid by the Developer as of the closing date. The aggregate principal amount of the Note shall increase as Developer submits evidence to the Village that additional costs of TIF Improvements have been incurred and paid for by the Developer. The Village shall continue to increase the aggregate value of the Note until the full face value of the Note has been certified by the Village in the amount of Four Million and Two Hundred and Fifty Thousand Dollars ($4,250,000 00) Developer shall submit contractor's sworn statements, invoices and proof of payment as evidence that the costs of the TIF Improvements have been incurred and paid for by the Developer. The Term shall commence upon the Village's certification that the Note has been issued for its full principal value 4.04. Payment on the Note. The Village shall begin snaking payments on the Note upon the Substantial Completion of the Redevelopment Project as provided in Section 3 05 Payments shall be made in the name of the Registered Owners to the addresses registered with the Village's Designee. The Village shall snake semi - annual payments on the Note on February 1 and August 1 of each calendar year (February 1 and August 1 are referred to as a "Payment Date ") until the earlier of the end of the Term or the date the principal and interest on the Note is paid in full. The Pledged Taxes shall be computed and deposited into a segregated fund (the "Fund ")as follows: A Real Estate Taxer The Village will receive semi- annual payments of the incremental Real Estate Taxes generated from the Redevelopment Project from the DuPage County Treasurer Immediately upon receipt, the Village shall deposit and hold the Real Estate Taxes in the "Fund ". B Sales Taxer Each month, when the Village receives it sales tax receipts from the DOR, the Village shall deposit the Sales Taxes into a separate and segregated account of the Village (the "Sales Tax Account ") 4.05. Opinion of Independent Counsel The Village and Developer agree that Developer may seek an opinion of a mutually acceptable bond counsel stating that the Note is an enforceable obligation of the Village, subject to its terms, and if possible, that the interest paid on the Note is exempt from federal taxation. Developer shall pay the costs of such bond counsel opinion and the Village 7 Attorney's fees with respect to issuance of the Note The Village shall cooperate with Developer in obtaining the bond opinion at no cost or detriment to the Village. 4.06. Villa -ae's Default on the Note. In the event there are Pledged Taxes in the Fund or the Sales Tax Account and the Village fails to pay the Pledged Taxes to the Registered Owners in accordance with the terms of the Note, the Village shall be in default, and the Registered Owners shall have the right of specific performance as its sole and exclusive remedy. THE NOTE IS NOT A GENERAL. OBLIGATION OF THE VILLAGE. REPAYMENT OF THE NOTE SHALL BE AT ALL TIMES LIMITED TO THE AVAILABILITY OF PLEDGED TAXES. 4.07. Developer's Default In the event the Developer fails to timely construct, in accordance with this Agreement, the Redevelopment Project as provided for herein, the Village's sole and exclusive remedies shall be to stop paying the Note, and to recover the damages £torn Developer for breach of this Agreement. 4.08. Right to Inspect. The Developer agrees that, up to one year after completion of the Redevelopment Project, the Village, with reasonable advance notice and during normal business hours, shall have the right and authority to review, audit, and copy, from time to time, the Developer's books and records relating to the TIF Improvements funded by the Village hereunder (including all loan statements, general contractor's sworn statements, general contracts, subcontracts) material purchase orders, waivers of lien, paid receipts and invoices) in order to confitm that the proceeds realized upon issuance of the Note are or have been expended for purposes of undertaking the TIF Improvements or other purposes perilutted under the Act V REAL ESTATE AND SALES TAXES 5.01. Sales Taxes. The parties acknowledge that certain assurnptions have been made relative to the generation of sales taxes from the Redevelopment Project Area and a portion of those sales taxes are pledged under the Note Ordinance Accordingly, the Developer agrees to obtain from each user generating sales taxes within the Redevelopment Project Area, a power of attorney authorizing the Illinois Department of Revenue to release to the Village the aggregate sales tax figures for all businesses within. the Redevelopment Project Area. The Village agrees to take all necessary action to obtain the sales tax information from the DOR and to distribute sales tax funds generated by the Shopping Center in accordance with the Note Ordinance VI AUTHORITY 6.01. Actions. The Village represents and warrants that, upon application of the Developer, it has taken, or will take, such action(s) as may be required and necessary to process ordinances, codes and regulations, as inay be necessary or proper in order to insure the developinnent of the Redevelopment Project Area ii-i accordance with the Plan and Annexation and Zoning Ordinances to enable the Village to execute this Agreement and to carry out fully and 8 perform the terms, covenants, agreements, duties and obligations on its part to be kept and performed as provided by the terms and provisions hereof. 6.02. Powers. The Village hereby represents and warrants that the Village has full constitutional and lawful right, power and authority, under currently applicable law, to execute and deliver and perform the terms and obligations of this Agreement, including but not limited to the right, power and authority to issue and deliver the Note, and all of the foregoing have been or will be duly and validly authorized and approved by all necessary Village proceedings, findings and actions. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the Village, enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. 6.03. Authorized Parties. Whenever under the provisions of this Agreement and other related documents and instruments or any supplemental agreement, request, demand, approval, notice or consent of the Village or the Developer is required, or the Village or the Developer is required to agree or to take some action at the request of the other, such approval or such consent or such request shall be given for the Village, unless otherwise provided herein, by the Village President or his designee and for the Developer by any officer or managing member as designated in writing from tune to time (in any event, the officers or managing member executing this Agreement are so authorized); and any person shall be authorized to act on any such agreement, request, demand, approval, notice or consent or other action and neither party hereto shall have any complaint against the other as a result of any such action taken VII GENERAL PROVISIONS 7.01. Reimbursement of Village's Costs. Within thirty (30) days of request, Developer shall pay or reimburse the Village its legal and consulting costs incurred in connection with this Agreement and the matters referred to herein, including, but not limited to the Village Attorney's, financial consultant's and appraiser's fees and expenses. 7.02. Time of Essence. Time is of the essence of this Agreement The Parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 7.03. Breach. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in writing, the Party alleged to have failed to perform of the alleged failure and shall demand performance. No breach of dzis Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the complaining party within thirty (30) days of the receipt of such notice. E 7.04. Amendment. Tlus Agreement, and any exhibits attached hereto, may be amended only by the mutual consent of the Parties, by the adoption of an ordinance or resolution of the Village ap- proving said amendment, as provided by law, and by the execution of said amendment by the Parties or their successors in interest. 7.05. No Otber Agreement. Except as otherwise expressly provided herein, this Agreement supersedes all prior agreements, negotiations and discussions relative to the issuance of the Note and the use of TIF and is a full integration of the agreement of the Parties 7.06 Certificate of Completion. Upon Substantial Completion of the Redevelopment Pio)ect in accordance with Section 3.05, the Village shall issue a Certificate of Completion to the Developer. The Certificate of Completion shall be conclusive evidence that Developer has performed all of its obligations hereunder. However, the Certificate of Completion shall not relieve Developer or its assigns from the obligations created m Sections 3.07 (Indemnity), 3.08 (Litigation), 4.08 (Right to Inspect), 5.01 (Agreement to Pay Taxes) and 5.02 (Sales Taxes) 7.07. Assigns. This Agreement shall be binding upon the Parties and their respective successors and assigns. Nothing herein shall in any way prevent the alienation or sale of the Property, or any portion thereof, not shall anything herein be construed as limiting any rights of any lender or equity partner or investor;. No consent shall be required for any pledge of the Property and d--us Agreement as collateral security, and no consent shall be required prior to selling, leasing or transferring any parcel of property within the Shopping Center to commercial and retail users for development and use consistent with the Planning Ordinances 7.08. Severability. If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants or portions of this Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are declared to be severable. 7.09. Illinois Law. This Agreement shall be construed in accordance with the laws of the State of Illinois. To the extent there is a conflict between this Agreement, and the Note Ordinance, the Note Ordinance shall control 7.10. Notice. All notices and requests required pursuant to this Agreement shall be sent as follows- 10 To the Developer: Butterfield Meyers, L.L.0 NAI Hiffman One Oak Brook Center Suite 600 Oak Brook Terrace, Illinois Attn • Dennis Hiffman With copies to: Promenade Partners, L.L.C. St Paul Companies Mail Code. 9275511A 385 Washington Street St. Paul, MN 55102 Attn- Real Estate Increments Mary Riordan Mary Riordan, Ltd 980 North Michigan, Suite 950 Chicago, Illinois 60611 To the Village: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois Attn: Village Manager With copies to Kenneth Kubiesa, Village Attorney Kubiesa, Spiroff, Gosselar & Acker, P.C. 533 West North Avenue, Suite 204 Elmhurst, Illinois 60126 Or at such other addresses as the Parties may indicate in writing to the other either by personal delivery, courier, or by registered mail, return receipt requested, with proof of delivery thereof Mailed notices shall be deemed effective on the third day after mailing; all other notices shall be effective when delivered. 7.11. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 7.12. Consent or Apure. 11 Except as otherwise provided in this Agreement, whenever consent or approval of either party is required, such consent or approval shall not be unreasonably witliheld. 7.13. Exhibits. The exhibits attached to this agreement are hereby incorporated into and made a part of this Agreement. 7.14. No Private Payments. The Village and the Developer recognize that payments from the Developer to the Village other than payments .made by the Developer of taxes of general applicability may be deemed to be private payments under the Internal Revenue Code of 1986, as amended (the "Code "), and that any such payments may cause interest on the Note and other financing instruments to be includible in the gross .income of the owners thereof for federal income tax purposes. Accordingly the Village and the Developer covenant and agree that the Village will accept no payment from the Developer pursuant to any provision of this Agreement without first obtaining the advice of bond counsel that such payment will not impair the status of interest on any Note or other financing instruments issued on a tax - exempt basis under the Code as not includible in the gross income of the owners thereof for federal income taxation purposes. 7.15. Taxes of General Applicability. The Village hereby expressly agrees and recognizes that security for the Note and other financing instruments and payments of debt service on the Note and other financing instruments are limited to (A) taxes of general applicability and (B) the amounts on deposit ini the funds and accounts created under the ordinances authorizing the issuance of Note and other financing instruments. The Village recognizes that improper agreements with taxpayers may cause tax receipts to be classified as private payments under the Code. Accordingly the Village covenants not to enter into or enforce any agreements with any taxpayers, including, specifically, die Developer, that would modify the obligations of such taxpayers under general law without an opinion of Bond Counsel that such agreement or enforcement will not adversely affect the tax - exempt status of interest on any Note or other financing instruments issued on a tax - exempt basis for federal income tax purposes In the event that any Note is issued on a tax - exempt basis, no provision of this Agreement or any other agreement, written or oral, will be enforced for the benefit of the holders of the Note or other financing instruments or iii any way to increase revenues available to pay debt service on the Note or other financing instruments. SIGNATURES TO FOLLOW 12 IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. VILLAGE OF OAK BROOK, COOK AND DUPAGE COUNTY, ILLINOIS, an Illinois municipal corporation BY Kevin Quinlan Village President ATTEST: Linda K Gonnella, CMC Village Clerk OAK BROOK PROMENADE, L.L.C., a Delaware limited liability company IC Butterfield- Meyers, L L.C. ITS: Administrative Member ATTEST: (Assistant) Secretary 13 EXHIBITS Exhibit A Legal Description of Property Exhibit B Site Plan Exhibit C TIF Improvement Costs Exhibit D Form of Note 14 STATE OF ILLINOIS SS. COUNTY OF COOK I, , a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that , , and an Illinois personally known to me to be the persons whose names are subscribed to the foregoing instrument as such , appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act for the uses and purposes therein set forth GIVEN UNDER my hand and Notarial Seal this day of , 2005. My Commission Expires- NOTARY PUBLIC "15 STATE OF ILLINOIS ) ) SS. COUNTY OF DUPAGE ) 11 , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that the undersigned, Kevin Quinlan, Vi11age President and Linda K Gonnella, Village Clerk, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Redevelopment Agreement , respectively appeared before me this day in person, and acknowledged that they signed and delivered the said instrument as their free and voluntary act and as the free and voluntary act of said Village, for the uses and purposes set forth therein; and the said Village Clerk, did affix the corporate seal of said village to said instrument, as her own free and voluntary act and as the free and voluntary act of said village, for the uses and purposes set forth therein Witness my hand and notarial seal, this day of , 2005. Notary Public My Commission Expires (Seal)