ORIGINAL REVISED FUTURE

GroundFloorPlanEvolution
GroundFloorPlan
Newwoodscreenfaadedetail
1st St.RetailElevation

ORIGINAL

REVISED

1st FLOORPLAN
AddisonAve.RetailElevation

ORIGINAL

REVISED

1st FLOORPLAN
Conceptual
Rendering
 SRD draft dated 2/23/17

REDEVELOPMENT AGREEMENT

BY AND BETWEEN

THE CITY OF ELMHURST, DUPAGE AND

COOK COUNTIES, ILLINOIS,
AN ILLINOIS MUNICIPAL CORPORATION, and

100 NORTH ADDISON, L.L.C., A

DELAWARE LIMITED LIABILITY COMPANY

Dated as of _______, 2017

602156.16
 REDEVELOPMENT AGREEMENT

This Redevelopment Agreement ("Agreement") is entered into this ____ day of _____,

2017 ("Effective Date"), between 100 NORTH ADDISON, L.L.C. (the "Developer"), a

Delaware limited liability company, and the CITY OF ELMHURST, ILLINOIS, an Illinois

home rule municipal corporation (the "City") (the Developer and the City are collectively

referred to as the "Parties").

RECITALS:

A. WHEREAS, the City is a home rule unit of government in accordance with

Article VII, Section 6, of the 1970 Illinois Constitution; and

B. WHEREAS, the City has the authority, pursuant to the laws of the State of

Illinois, to promote the health, safety and welfare of the City and its inhabitants, to prevent the

presence of blight, to encourage private development in order to enhance the local tax base, to

increase additional tax revenues realized by the City, to foster increased economic activity within

the City, to increase employment opportunities within the City, and to enter into contractual

agreements with third parties for the purpose of achieving the aforesaid purposes, and to

otherwise further the best interests of the City; and

C. WHEREAS, the City has undertaken a program for the redevelopment of certain

property within the City, pursuant to the "Tax Increment Allocation Redevelopment Act," 65

ILCS 5/11-74.4-1 et seq., as amended (the "Act"); and

D. WHEREAS, acting pursuant to the Act and after giving all notices required by

law and after conducting all public hearings and meetings required by law, the City created a

Redevelopment Project Area commonly known as the "Downtown TIF District" (the

"Redevelopment Project Area") by (i) Ordinance No. O-16-1986, adopted October 23, 1986,

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approving a Redevelopment Plan and Project (the "Redevelopment Plan"), (ii) Ordinance No. O-

15-1986, adopted October 23, 1986, designating a Redevelopment Project Area, (iii) Ordinance

No. O-17-1986, adopted October 23, 1986, adopting Tax Increment Financing, and (iv)

Ordinance No. O-29-2004, adopted November 1, 2004, approving amendments to the

Redevelopment Project Area and the Redevelopment Plan and Project (collectively, the "TIF

Ordinances"); and

E. WHEREAS, the City has the authority to promote the health, safety and welfare

of its inhabitants, to prevent the onset of blight while instituting conservation measures, and to

encourage private development in order to enhance the local tax base, and to enter into

contractual agreements with third parties for the purpose of achieving the aforesaid purposes;

and

F. WHEREAS, the City and the Developer are authorized to enter into this

Agreement pursuant to the Act, the City's authority as a home rule municipal unit of government

and other applicable statutory and constitutional authority; and

G. WHEREAS, the Developer is the contract purchaser of the property legally

described in Exhibit A and depicted in Exhibit A-1, attached hereto (the "Redevelopment

Property"); and

H. WHEREAS, the Redevelopment Property is located within the City and within

the Redevelopment Project Area; and

I. WHEREAS, the Redevelopment Property shall be redeveloped with a mixed-use

development, in accordance with plans to be prepared by the Developer and approved by the

City and as further described in this Agreement; and

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 J. WHEREAS, the Developer desires to cause the redevelopment of the

Redevelopment Property to create a six-story transit-oriented, pedestrian-friendly, mixed-use

development that will contain a minimum of 7,600 square feet of ground floor retail, not less

than 160 rental apartment units, not less than 199 parking spaces, and other public and private

improvements to the adjacent streets, alleys, and streetscape, all as further provided for in this

Agreement (collectively, the "Project"); and

K. WHEREAS, the Developer has represented and warranted to the City that the

Developer is skilled in the business of development and redevelopment and are able to provide

the City skill, knowledge and expertise, as well as input from other experts and consultants in

similar mixed-use downtown redevelopment projects; and

L. WHEREAS, the Developer represents and warrants that if the Developer acquires

the Redevelopment Property, the Redevelopment Property will be redeveloped; and

M. WHEREAS, the City has agreed, in reliance on the Developer's expertise and

commitment to construct the Project to provide certain financial assistance as specifically set

forth in this Agreement; and

N. WHEREAS, the City is authorized under the provisions of the Act to pay for and

reimburse the Developer for a portion of the costs for the Project which are eligible

redevelopment project costs pursuant to the Act, up to the limit hereafter set forth; and

O. WHEREAS, it is necessary for the successful development of the Project that the

City enter into this Agreement with the Developer, thereby implementing and bringing to

completion a portion of the Redevelopment Plan; and

P. WHEREAS, the Developer has been and continues to be unable and unwilling to

undertake the redevelopment of the Redevelopment Property but for certain incentives,

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including, but not limit to, tax increment financing ("TIF") incentives that may be provided by

the City in accordance with the Act, to the extent applicable, and the home rule powers of the

City, which the City is willing to provide under the terms and conditions contained herein. The

Parties acknowledge and agree that but for the economic development incentives to be provided

in accordance with this Agreement, the Developer cannot successfully and economically develop

the Redevelopment Property and construct the Project in a manner satisfactory to the City or

satisfy the Developers minimum financial return requirements. The City has determined that it

is desirable and in the City's best interests to assist the Developer in the manner set forth herein

and as this Agreement may be supplemented and amended; and

Q. WHEREAS, the Developer represents and warrants that it will use commercially

reasonable, good faith efforts to obtain all necessary zoning entitlements, subdivision approvals,

permits and approvals from any and all federal, county, state and local agencies, or bodies with

jurisdiction over this Project, necessary to construct, operate and maintain the Project; and

R. WHEREAS, the Developer covenants that prior to any acquisition of the

Redevelopment Property, the Developer will obtain sufficient equity financing necessary to

construct, operate and maintain the Project; and

S. WHEREAS, this Agreement has been submitted to the corporate authorities of the

City for consideration and review, the corporate authorities of the City have taken all actions

required to be taken prior to the execution of this Agreement in order to make the same binding

upon the City according to the terms hereof, and any and all actions of the corporate authorities

of the City precedent to the execution of this Agreement have been undertaken and performed in

the manner required by law; and

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 T. WHEREAS, this Agreement has been submitted to the Developer for

consideration and review, and the Developer has taken all actions required to be taken prior to

the execution of this Agreement in order to make the same binding upon the Developer

according to the terms hereof, and any and all actions precedent to the execution of this

Agreement by the Developer have been undertaken and performed in the manner required by

law.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained

in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of

which are mutually acknowledged, the Parties agree as follows:

1. INCORPORATION OF RECITALS AND EXHIBITS. The statements,

representations, covenants and recitations set forth in the foregoing recitals are material to this

Agreement and are incorporated into and made a part of this Agreement as though they were

fully set forth in this Section 1. The exhibits referred to in this Agreement which are attached to

or incorporated into it by textual reference are incorporated by reference into and made a part of

this Agreement. The Parties acknowledge the accuracy and validity of those exhibits.

2. DEFINITIONS. For the purposes of this Agreement, unless the context clearly

requires otherwise, words and terms used in this Agreement shall have the meanings provided

from place to place herein, including above in the recitals hereto and as follows:

Capital Event means the first to occur of (i) the arms-length sale of all of the Project
or all of the residential portion of the Project to a third-party unrelated to the Developer, (ii) the
refinance of the Project (but not including the initial permanent financing to "take out" the
Project's initial construction financing), (iii) 24 months after recordation of any condominium
declaration converting the rental apartments to condominium ownership, or (iv) the sale of all or
substantially all of membership interests in the Developer. If a Capital Event has not occurred
on or before December 31, 2021, then the provisions of Section 16.2(B) shall apply.

"Change in Law" means the occurrence, after the Effective Date, of an event described
below, provided (i) such event materially changes the costs or ability of the Party relying thereon

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to carry out its obligations under this Agreement or otherwise necessitates changes to the Project
and (ii) such event is not caused by the Party relying thereon:

Change in Law means any of the following: (i) the enactment, adoption,
promulgation or modification of any federal, state, county or local law, ordinance, code,
rule or regulation; (ii) the order or judgment of any federal or state court, administrative
agency or other governmental body; (iii) the adoption, promulgation, modification or
interpretation in writing of a written guideline or policy statement by a governmental
agency; (iv) the institution or issuance by any applicable governmental authority having
jurisdiction of notice of any pending or proposed moratorium with respect to the
Redevelopment Property or any portion thereof; or (v) the issuance by any applicable
governmental authority having jurisdiction of any notice of any violation of law, or
institution of any litigation, suit or proceeding against the Redevelopment Property or any
portion thereof. Change in Law, for purposes of this Agreement, shall also include the
imposition of any conditions on, or delays in, the issuance or renewal of any
governmental license, approval or permit (or the suspension, termination, interruption,
revocation, modification, denial or failure of issuance or renewal thereof) necessary for
the undertaking of the Project under this Agreement.

"City Code" means the Elmhurst City Code, as amended from time to time, and all other
ordinances, rules and regulations of the City.

"Final Plans" means the plans and documentation included in the Developers zoning
submission, together with the final construction plans and specifications containing the detailed
plans for the Project (in its entirety, including all public and private improvements and not
merely the building(s) themselves) as approved by the City prior to the issuance of any building
or other permits for the Project, and any amendments thereto as approved by the Developer and
the City.

"Person" means any individual, corporation, partnership, limited liability company, joint
venture, association, trust, or government or any agency or political subdivision thereof, or any
agency or entity created or existing under the compact clause of the United States Constitution.

"Redevelopment Project Costs" means those qualified redevelopment project costs

authorized by the Act and this Agreement and set forth in Exhibit D.

"State" means the State of Illinois.

"TIF Ordinances" means all ordinances adopted by the City relating to the establishment
or amendment of the Redevelopment Project Area including, but not limited to, those delineated
in the Recitals to this Agreement.

"Uncontrollable Circumstance" means any event which:

(a) is beyond the reasonable control of and without the fault of the Party
relying thereon; and

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 (b) is one or more of the following events:

(i) a Change in Law;

(ii) insurrection, riot, civil disturbance, sabotage, act of the public

enemy, explosion, fire, nuclear incident, war (declared or undeclared) or other
armed conflict or naval blockade;

(iii) plague, epidemic, quarantine, accident, hurricane, tornado,

landslide, tsunami, earthquake, drought, lightning, flood, fire, explosion,
catastrophe, windstorm, other extraordinary or ordinary weather conditions (in
intensity or duration) or other similar acts of God;

(iv) third party litigation challenging the authority of the TIF

Ordinances or the effectiveness of this Agreement;

(v) governmental condemnation or taking or unreasonable delay in

reviewing and issuing applicable permits;

(vi) strikes, lock-outs, boycotts or labor disputes, or work stoppages not

initiated by the Developer;

(vii) embargoes or shortage or unavailability of essential materials,

energy, fuel, labor or other required products or items, which materially change
the ability of the Party relying thereon to carry out its obligations under this
Agreement;

(viii) major environmental disturbances, subsurface or latent physical

conditions differing materially from those anticipated by Developer, or previously
unknown physical conditions of an unusual nature or differing materially from
those ordinarily encountered and generally recognized as inherent in the Project;

(ix) unusual delays in transportation;

(x) vandalism; or

(xi) terrorist acts.

Uncontrollable Circumstance shall not include: economic hardship; or a failure of

performance by a contractor (except as caused by events which are Uncontrollable
Circumstances as to the contractor).

For each day that the City or the Developer is delayed by an Uncontrollable
Circumstance, the dates set forth in this Agreement shall be extended by one (1) day for each day
of the resulting delay.

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 "Zoning Ordinance" means the City of Elmhurst Zoning Ordinance, as amended from
time to time.

3. CONSTRUCTION. This Agreement, except where the context by clear

implication shall otherwise require, shall be construed and applied as follows:

A. Definitions include both singular and plural.

B. Pronouns include both singular and plural and cover all genders.

C. The words "include," "includes" and "including" shall be deemed to be

followed by the phrase "without limitation."

D. Headings of Sections herein are solely for convenience of reference and

do not constitute a part hereof and shall not affect the meaning, construction or effect
hereof.

E. All exhibits attached to this Agreement shall be and are operative

provisions of this Agreement and shall be and are incorporated by reference in the
context of use where mentioned and referenced in this Agreement.

F. Any certificate, letter or opinion required to be given pursuant to this

Agreement means a signed document attesting to or acknowledging the circumstances,
representations, opinions of law or other matters therein stated or set forth. Reference
herein to supplemental agreements, certificates, demands, requests, approvals, consents,
notices and the like means that such shall be in writing whether or not a writing is
specifically mentioned in the context of use.

G. The City Manager, or the City Manager's designee, unless applicable law
requires action by the corporate authorities, shall have the power and authority to make or
grant or do those things, certificates, requests, demands, notices and other actions
required that are ministerial in nature or described in this Agreement for and on behalf of
the City and with the effect of binding the City as limited by and provided for in this
Agreement. The Developer and the City are entitled to rely on the full power and
authority of the Persons executing this Agreement on behalf of the Developer and the
City as having been properly and legally given by the Developer or the City, as the case
may be. The City and the Developer will act in good faith and in a reasonable and
cooperative manner with respect to consents, approvals and other matters contemplated
by this Agreement, including, without limitation, approving or disapproving any request,
including any request for reduction of any security or approval of plans. No consent or
approval shall be unreasonably withheld, conditioned or delayed.

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 H. In connection with the foregoing and other actions to be taken under this
Agreement, and unless applicable documents require action by the Developer in a
different manner, the Developer hereby designates Sean T. Spellman or his designee as
its authorized representative, who shall individually have the power and authority to
make or grant or do all things, supplemental agreements, certificates, requests, demands,
approvals, consents, notices and other actions required or described in this Agreement for
and on behalf of the Developer and with the effect of binding the Developer in that
connection (such individual being an "Authorized Developer Representative"). The
Developer shall have the right to change its authorized Developer Representative by
providing the City with written notice of such change, which notice shall be sent in
accordance with Section 17.2.

4. DEVELOPMENT OF THE REDEVELOPMENT PROPERTY.

Section 4.1. Acquisition of Redevelopment Property. The Developer shall use

commercially reasonable, good faith efforts to acquire fee simple title to the Redevelopment

Property on or before April 15, 2017. The Developer shall provide written evidence to the City

of such acquisition within five (5) business days after such acquisition. In the event the

Developer does not acquire the Redevelopment Property on or before October 15, 2017, the City

may, in its sole discretion, declare this Agreement null and void and any such failure to so

acquire the Redevelopment Property shall not constitute a breach of, or default under, this

Agreement by the Developer.

Section 4.2. Project Schedule. The City and the Developer agree that the Developer's

development and construction of the Project, if undertaken, will be generally in accordance with

the Project Schedule attached hereto as Exhibit C and made a part hereof ("Project Schedule"),

subject to Uncontrollable Circumstances and extensions permitted in this Agreement.

The Parties acknowledge that the Project Schedule is based on the Developers best

understanding of the Project and related milestones as of the Effective Date. The Developer

shall have the sole right to amend the Project Schedule from time to time to extend the

completion date for up to ninety (90) days to ensure that it accurately reflects the key milestones

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in the development and construction of the Project. Thereafter, the Parties may amend the

Project Schedule as necessary to ensure that it accurately reflects the key milestones in the

development and construction of the Project, it being understood that each Party agrees to not

unreasonably withhold approval of a request by the other Party to so amend the Project Schedule

for such purposes, and the City Manager may extend the Project Schedule up to four (4) times,

each for a period of not more than fourteen (14) calendar days without the approval of the

corporate authorities.

Section 4.3. Approved Plans. The Project to be constructed by the Developer on the

Redevelopment Property shall be in conformity with the Final Plans. It is understood that the

Project shall also be constructed in accordance with the applicable provisions of the City Code,

and the ordinance granting all approvals as required by the City Code and other ordinances of the

City in effect as of the filing of the application for the issuance of the building permit for the

Project. In the event of a conflict between this Agreement, including any of the exhibits to this

Agreement, and the Final Plans, the requirements of the Final Plans shall control.

5. CITY COVENANTS AND AGREEMENTS.

Section 5.1. City's Redevelopment Obligations. In addition to its other covenants and

obligations set forth in this Agreement, the City shall have the obligations set forth in this

Section in furtherance of the Project, all subject to the conditions and limitations set forth in this

Agreement.

A. TIF Incentive. The City agrees to pay or otherwise reimburse the

Developer for those Redevelopment Project Costs under the listed and itemized amounts
provided for on Exhibit D, provided that the total amount of payment and reimbursement
for the Redevelopment Project Costs shall not exceed One Million Two Hundred
Thousand and 00/100 Dollars ($1,200,000.00) ("City Incentive"). Disbursements for
expenditures related to Redevelopment Project Costs may be transferred from one line
item to another.

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 B. Payment of City Incentive. The Citys payment of the City Incentive is
subject to the reimbursement authorization provisions of Section 5.1.C below and will be
paid by the City to the Developer as set forth below.

C. Reimbursement Authorization Procedures.

(1) The City shall pay the Developer the City Incentive during the course of
construction of the Project, as follows:

(a) Upon completion of environmental remediation in accordance with

the remedial action plan in all material respects and receipt of a
completion report issued by an independent, qualified third party
environmental consultant, pay an amount equal to one-third (1/3) of the
environmental remediation Redevelopment Project Costs incurred and
paid by the Developer, not to exceed $400,000.00.

(b) Subject to Section 16.1 of this Agreement, from and after the date
the real estate tax increment generated by the Project exceeds an amount
equal to the amount paid to the Developer pursuant to subsection
5.1(C)(i)(a), annually pay the annual real estate tax increment generated
by the Project up to $800,000.00 plus an amount equal to the difference
between $400,000.00 less the amount paid to the Developer pursuant to
subsection 5.1(C)(i)(a) above. The amount paid to the Developer pursuant
to this subsection must include, but is not limited to, all Redevelopment
Project Costs related to the pocket park.

(2) Within thirty (30) days after the determination of the final amount of the
City Incentive and the receipt of the applicable and required submissions under this
Section, the City shall authorize the distribution of the applicable reimbursement to the
Developer in accordance with the terms of this Agreement and shall pay the same to the
Developer within thirty (30) days thereafter, provided the Developer has satisfied the
following conditions with regard to the City Incentive reimbursements:

(a) The Developer has submitted to the City's Finance Director

a disbursement request ("Disbursement Request") on a form attached
hereto as Exhibit H and made a part hereof with respect to such
reimbursements.

(b) The Developer is not in default under this Agreement after

expiration of all applicable cure periods.

(c) The City has previously inspected and approved the work
for which the Redevelopment Project Costs are being reimbursed, which
the City shall be obligated to do within fourteen (14) days following
request by the Developer and the City shall approve such work if such

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 work conforms to the Final Plans in all material respects and Developer's
architect has delivered a certificate certifying the same.

(d) The Developer shall have certified to the City as

contemplated by the Disbursement Request the following:

(i) The Developer (or its successor or assign, if

applicable) is duly organized and validly existing.

(ii) The Developer has the right, power and authority to

submit the request for payment and to perform its obligations
under this Agreement.

(iii) To the best of the Developer's knowledge, no event

of default or condition or event which, with the giving of notice or
passage of time or both, would constitute an event of default under
this Agreement or any other agreement with the City concerning
the Project exists and remains un-remedied.

(iv) The requested disbursement is for Redevelopment

Project Costs which are qualified for payment under this
Agreement.

(v) None of the items for which payment is requested

has already been paid.

(vi) The payment is due and owing (or has already been
paid) from the Developer to its construction manager, contractor,
subcontractor or material supplier or others.

(vii) No lien exists against the Redevelopment Property

except those that the Developer, in good faith and based upon
reasonable grounds, is contesting.

(viii) The Developer has certified the work for which

payment is sought has been completed in all material respects.

(e) The Developer shall have provided to the City with regard
to the City Incentive:

(i) Good and sufficient (partial or full) trailing waivers

of lien with respect to the payment requested.

(ii) Proof in a form reasonably acceptable to the City,

such as a contractor's sworn statement or architect's certification,

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 that the Developer is or was obligated to make the payments for
which reimbursement is sought.

(f) The Developer shall have paid (or cause to be paid) any
and all taxes and governmental charges of any kind that may at any time
be lawfully assessed and payable with respect to the Project and/or the
Redevelopment Property.

(3) Any payment or reimbursement payable to the Developer pursuant to this

Section 5.1 that is attributable to work performed by subcontractors, as evidenced by
waivers of lien which may be on a trailing basis submitted to the City by the Developer,
shall be reimbursed to the Developer pursuant to the provisions of this Agreement.

(4) The Developer shall, upon reasonable request by the City, permit the City
to review all documentation required to evidence the cost of the City Incentive items such
records to include, but not be limited to, all contracts with general contractors and all
subcontractors, contractors' sworn affidavits, lien waivers, title company ledgers and any
other similar documentation specified by the City and in the possession of the Developer.
The City may require an audit of all evidence of the cost of City Incentive items, such
audit to be performed by an auditor selected by the City in its sole discretion and at the
City's cost and such auditor shall not be compensated on a contingency fee or similar type
basis.

(5) It is understood that the City Incentives as provided in this Agreement are
the maximum amounts the City will be required to pay or otherwise reimburse to the
Developer for the City Incentive items. Subject to applicable cure periods and provisions
and notices, it is further understood that the City may reimburse itself out of the City
Incentives for any monies owed by the Developer and that the amounts due Developer
will be reduced by the amount of any such reduction, unless otherwise cured, provided
the City provides the Developer with invoices, paid receipts or other evidence reasonably
acceptable to the Developer of any monies owed by the Developer to the City.

Section 5.2. City Cooperation. The City agrees to cooperate with the Developer in the

Developer's attempts to obtain all necessary approvals from any governmental or quasi-

governmental entity and upon request of the Developer will promptly execute any applications or

other documents (upon their approval by the City) which the Developer intends to file with such

other governmental or quasi-governmental entities in respect of the Project. The City shall

further promptly respond to, and/or process, and consider reasonable requests of the Developer

for: applicable excavation and foundation permits; shell permits; other building permits;

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driveway permits; curb cuts or other permits necessary for the construction of the Project as well

as to requests by Developer for inspections and temporary and permanent certificates of

occupancy. Approval of any building permit applications and/or engineering plans shall be

contingent on the Developer paying any and all review fees that have not been otherwise waived

by the City or reimbursed pursuant to the terms of this Agreement, including but not limited to

all third-party review fees and expenses, and providing all required and requested documentation

for each such permit, including but not limited to engineering reports, calculations and plans

required to substantiate that said improvements conform with applicable statutes and the City

Code, as well as receipt of all required approvals from any federal, state, regional or county

agencies having applicable jurisdiction, other than the City.

6. CERTAIN DEVELOPER COMMITMENTS, COVENANTS,

REPRESENTATIONS AND WARRANTIES.

In consideration of the City's substantial commitment to the redevelopment of the

Redevelopment Property and its commitments contained in this Agreement, subject to other

provisions of this Agreement, the Developer agrees, represents, warrants and covenants, as the

case may be, with and to the City as follows:

Section 6.1. Final Plans. If the Developer acquires the Redevelopment Property and

commences construction of Project, then the Developer shall construct the Project in accordance

with this Agreement and in accordance with the Final Plans in all material respects.

Section 6.2. _Construction of the Project.

A. Permits. The Developer shall apply for, diligently pursue and secure all
required permits and approvals for the Project. The City shall cooperate with the
Developer in approving necessary permits after submission of a complete application,
which complies in all material respects with all applicable laws, ordinances, regulations
and this Agreement.

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 B. Construction of Project. If the Developer acquires the Redevelopment
Property and commences construction of Project, then the Developer shall construct the
Project in accordance with the Project Schedule attached as Exhibit C, subject to
Uncontrollable Circumstances and any revisions thereto.

C. Prevailing Wage. To the extent required and permitted by law, the

Developer shall construct the applicable portions of the Project in full compliance with
the Prevailing Wage Act (for purposes of this Section, the "Prevailing Wage Act") of the
State of Illinois, 820 ILCS 130/0.01 et seq., as amended. The Developer agrees to
indemnify, hold harmless, and defend the City, its governing body members, officers, and
agents, including independent contractors, consultants and legal counsel, servants and
employees thereof ("Indemnified Parties") against all loss, cost, damage, judgments,
awards, fines or interest sustained by the Indemnified Parties resulting from any
regulatory actions, complaints, claims, suits, liabilities, liens, judgments, including
reasonable attorneys' fees, to the extent caused by noncompliance with the Prevailing
Wage Act, including, but not limited to a complaint by the Illinois Department of Labor
under Section 4(a-3) of the Act, 820 ILCS 130/4(a-3). The indemnification obligations of
this Section on the part of the Developer shall survive the termination or expiration of
this Agreement. In any such claim, complaint or action against the Indemnified Parties,
the Developer shall, at its own expense, appear, defend and pay all charges of reasonable
attorney's fees and all reasonable costs and other reasonable expenses arising therefrom
or incurred in connection therewith.

D. The Developer and the City, as applicable, shall grant, dedicate or convey
all rights-of-way and easements, in form and substance reasonably acceptable to the
Developer and City, on the Redevelopment Property in order to provide for all required
Project improvements, as shown in the Final Plans, including but not limited to park
improvements, streets, sidewalks, street lights, water mains, storm and sanitary sewer
mains, detention or retention ponds, gas, electricity, and cable television; provided,
however, no such rights-of-way and easements shall unreasonably interfere with the
Project. The Parties shall coordinate said conveyances with all applicable utility
companies and other applicable governmental bodies and/or agencies.

E. The Developer shall prepare and file the required plat of consolidation
approved by the City and required by the City Code to effectuate the terms of this
Agreement for the Project.

F. If the Developer acquires the Redevelopment Property and commences

construction of Project, then the Developer shall install on behalf of the City all necessary
water mains, sanitary sewer mains and storm sewers necessary to serve the Project in
accordance with final engineering plans therefor approved by the City.

G. In the event the Developer elects to park and stage construction

equipment, materials and vehicles in locations other than on the Redevelopment Property,
the City shall have the right to reasonably approve such locations.

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 Section 6.3. Timing of Developer's Obligations. Subject to Uncontrollable

Circumstances, if the Developer acquires the Redevelopment Property and commences

construction of the Project, then the Developer will complete construction of the Project pursuant

to the Project Schedule, subject to any revisions thereto. If the Developer acquires the

Redevelopment Property and commences construction of the Project and fails to diligently

prosecute and complete the Project within the time period set forth in the Project Schedule,

subject to any revisions thereto, such will constitute an event of default under this Agreement

(subject to the cure provisions hereof), unless caused by Uncontrollable Circumstances.

Section 6.4. Compliance with Applicable Laws. The Developer shall at all times

acquire, install, construct, operate and maintain the Project in conformance with all applicable

laws, rules, ordinances and regulations. All work with respect to the Project shall conform to all

applicable federal, state, county and local laws, regulations and ordinances, including, but not

limited to, zoning, subdivision and planned development codes, building codes, environmental

laws (including any law relating to public health, safety and the environment and the

amendments, regulations, orders, decrees, permits, licenses or deed restrictions now or hereafter

promulgated thereafter), life safety codes, property maintenance codes and any other applicable

codes and ordinances of the City, or any of its rules or regulations or amendments thereto, which

are in effect at the time of issuance of each building permit. The Developer may contest the

applicability of any such law, rule, ordinance and/or regulation with respect to the Project or

construction or development of the same. If there is a change in the City Code so as to impose

more stringent requirements with respect to the development or construction of the Project, then

such increased requirements shall not be effective as applied to the Project. If there is a change

in the City Code so as to impose less restrictive requirements with respect to the development or

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construction of the Project, then the benefit of such less restrictive requirements shall inure to the

benefit of the Developer and the Project.

Section 6.5. Progress Meetings. The Developer shall meet with the corporate authorities

or City staff, or both (as determined by the City), as reasonably requested, and make

presentations to the corporate authorities once a calendar year if requested by the City Manager

in order to keep the City apprised of the progress of the construction of the Project.

Section 6.6. Developer's Cooperation and Coordination. During the construction of the

Project, the Developer shall provide such notices and attend such community and neighborhood

meetings as may be necessary or desirable, as reasonably determined by the City and the

Developer in consultation, to keep the residents and local businesses in the immediate vicinity of

the Redevelopment Property fully informed of progress on the Project and any reasonable

measures that the City and the Developer believe prudent for the residents to take to minimize

construction-related inconvenience. The Developer shall also stage its construction of the

Project to avoid to the fullest extent possible any such community disruption. During

construction, the Developer shall on a daily basis keep all streets immediately adjacent to the

Project free of any construction-related debris. Within three (3) business hours (i.e., between

7:00 a.m. and 6:00 p.m. Monday through Saturday, and between 7:00 a.m. and 6:00 p.m.

Saturday) after notice from the City that one or more streets within the Project are not

satisfactorily clean during a 24-hour period, the Developer will take steps to remedy the

complaint. In the event that the Developer fails three (3) times to remedy a complaint under this

Section with regard to properly cleaning a street, the Developer, upon the fourth violation, shall

pay the City the sum of $750.00 for each such subsequent violation. In the event the Developer

fails to timely remedy any complaint pursuant to this Section, the City may enter upon the

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Redevelopment Property and perform such maintenance and/or may remedy any complaint

concerning an adjacent area and bill the Developer for all costs incurred in connection therewith.

Section 6.7. Additional Representations and Warranties of the Developer

A. The Developer is a Delaware limited liability company duly organized and

existing and in good standing under the laws of the State of Delaware, and is authorized
to and has the power to enter into, and by proper action has been duly authorized to
execute, deliver and perform, this Agreement. The Developer is solvent, able to pay its
debts as they mature and financially able to perform all the terms of this Agreement. To
the Developer's knowledge, there are no actions at law or similar proceedings which are
pending or threatened against the Developer which, if determined adversely, would result
in any material and adverse change to the Developer's financial condition and which
would materially and adversely affect the ability of the Developer to proceed with the
construction and development of the Project. The Developer will do or cause to be done
all things necessary to preserve and keep in full force and effect its existence and
standing as a Delaware limited liability company, so long as the Developer maintains an
interest in the Redevelopment Property or has any other remaining obligations pursuant
to the terms of this Agreement.

B. Neither the execution and delivery of this Agreement by the Developer,

the consummation of the transactions contemplated hereby by the Developer, nor the
fulfillment of or compliance with the terms and conditions of this Agreement by the
Developer conflicts with or will result in a breach of any of the terms, conditions or
provisions of any offerings or disclosure statement made or to be made on behalf of the
Developer (with the Developer's prior written approval), any organizational documents,
any restriction, agreement or instrument to which the Developer or any of its partners or
venturers is now a party or by which the Developer or any of its partners or its venturers
is bound, or constitutes a default under any of the foregoing, or results in the creation or
imposition of any prohibited lien, charge or encumbrance whatsoever upon any of the
assets or rights of the Developer, any related party or any of its venturers under the terms
of any instrument or agreement to which the Developer, any related party or any of its
partners or venturers is now a party or by which the Developer, any related party or any
of its venturers is bound.

C. The Developer has sufficient financial and economic resources to

implement and complete the Developer's obligations contained in this Agreement. Prior
to acquisition of the Redevelopment Property, the Developer will have obtained a firm
commitment from a financial institution or institutional investor(s) or investment group(s)
providing all monies required by the Project Budget or alternatively will provide proof of
access to sufficient funds pursuant to the terms of this Agreement.

D. The Project requires economic assistance from the City in order to

commence and complete the Project and, but for the economic assistance to be given by

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 the City as heretofore stated, the Project as contemplated would not be economically
viable nor would the funds necessary for its completion be made available.

E. The Developer shall at all times comply with all applicable provisions of
the City Code.

F. Subject to the Developer's right to contest the same and subject to all
applicable cure periods, the Developer shall comply with all applicable laws, rules and
regulations of the State of Illinois, the County of DuPage and the United States of
America, and any and all agencies or subdivisions thereof, and all other governmental
bodies and agencies having jurisdiction over the Redevelopment Property.

G. Subject to the Developer's right to contest the same and subject to all
applicable cure periods, the Developer shall comply in all material respects with all
terms, provisions and conditions, and that it shall not default or permit a continuing
default under any document or agreement relating to the Project or the financing and
development of the Project, including but not limited to this Agreement, and all
agreements and documentation executed and delivered in connection with any financing
or loans for the Project, a default under which would have a material adverse effect on
the City.

H. No officer, member, manager, stockholder, employee or agent of the

Developer, or any other Person connected with the Developer, has knowingly made,
offered or given, either directly or indirectly, to any member of the corporate authorities,
or any officer, employee or agent of the City, or any other Person connected with the
City, any money or anything of value as a gift or bribe or other means of influencing his
or her action in his or her capacity with the City, to the extent prohibited under applicable
law.

I. In accordance with Illinois law, 50 ILCS 105/3.1, simultaneously with the

execution of this Agreement by the Parties, the Developer or an authorized managing
member thereof shall submit a sworn affidavit to the City disclosing the identity of the
owners of all membership interests of the Developer. The sworn affidavit shall be
substantially similar to the one described in Exhibit E, attached hereto and made a part of
this Agreement. Said affidavit shall be updated, as necessary.

K. As of the Effective Date, the cost of the Project is anticipated to be at least

Fifty-Three Million Dollars ($53,000,000.00).

L. The Developer has not engaged the services of any finder or broker with
respect to the purchase of any of the Redevelopment Property and the Developer is not
liable for any real estate commissions, broker's fees, or finder's fees which may accrue by
means of the acquisitions of any portion of the Redevelopment Property, other than
Newmark Grubb Knight Frank, and the Developer agrees to hold the City harmless from
such commissions or fees as are found to be due from the Developer.

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 7. UNDERTAKINGS OF THE DEVELOPER AND CITY.

Section 7.1. Developer Undertaking for Payment of Real Estate Taxes.

A. Covenant. The Parties acknowledge that certain assumptions have been

made relative to the future market value and assessed valuation of the Redevelopment
Property, as improved pursuant to this Agreement under the Act, and further
acknowledge that attaining and maintaining such assessed valuation will have a material
impact on the revenues available to support and amortize the Redevelopment Project
Costs for this Project in the Redevelopment Area in accordance with the Redevelopment
Plan. Accordingly, the Developer hereby covenants to develop and, during the term of
this Agreement, as set forth in Section 17.17 of this Agreement, use the Redevelopment
Property as provided herein.

B. Restrictions. Following finalization of the initial assessment of the

Redevelopment Property following substantial completion of the Project, the Developer,
its successors and assigns, agrees that it will not protest, object to or otherwise (i) petition
for a reduction to any real estate tax assessment attributable to the Redevelopment
Property and/or Project in any manner that would reduce the assessed value of the
Redevelopment Property and/or Project for real estate tax years through and including
2021 or (ii) seek a refund of the general ad valorem real estate taxes attributable to the
Redevelopment Property and/or Project for real estate tax years through and including
2021. Notwithstanding the foregoing, in the event the assessed valuation of the
Redevelopment Property and/or Project is materially inconsistent with similarly situated
property, the Developer may, upon prior notice to and written consent from the City,
protest the assessed value of the Redevelopment Property and/or Project.

Section 7.2. Developer Covenants to the City. The Developer covenants and agrees with

the City as follows:

A. Pursuant to the Project Schedule and any revisions thereto, the Developer
shall use reasonable efforts to timely obtain all final zoning and subdivision entitlement
approvals and building permits relating to the Project, it being understood and agreed that
the City has the discretion established by law to approve, amend or deny all such
approvals and permits and the City shall not be deemed to have caused a default
hereunder or have any liability for its failure to approve such entitlements and/or work;
provided, however, the City agrees to use good faith and reasonable efforts to assist the
Developer in obtaining such permits.

B. Pursuant to the Project Schedule and any permitted revisions thereto, the
Developer shall use reasonable efforts to obtain any other final approvals necessary from
any governmental unit or agency other than the City which has jurisdiction or authority
over any portion of the Project.

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 C. The Developer will comply with all of its duties and obligations under this
Agreement, and the Developer has not received any notice of any violation of the City
Code, or of any applicable laws of the State of Illinois or the United States of America,
and/or any agency or subdivision thereof, as well as any ordinances and resolutions of the
City pertaining to the Project which by their respective terms are to have been complied
with prior to the completion of the Project. The Developer shall provide the City with
any notices received throughout the term of this Agreement relating to the
Redevelopment Property which may have a material and adverse impact on the Project,
specifically including any notices regarding any tax delinquencies.

D. If a land trust or limited partnership shall become the owner of the

Redevelopment Property, the Developer will require the sole beneficiaries of the trust or
the partners in the limited partnership shall have delivered to the land trustee or general
partners, as the case may be, an irrevocable letter of direction indicating that any notice
received by the land trustee or limited partnership which adversely impacts the
Developer's title to or interest in the Redevelopment Property, including but not limited
to any notice of failure to pay real estate taxes, notice of foreclosure or notice of
mechanic's lien(s) on the Redevelopment Property, will be sent to the City within three
(3) business days following receipt thereof. Such letter of direction shall be irrevocable
for so long as the City is required to make payments under this Agreement. The
Developer also agrees to send to the City any such notice received by either of them
within three (3) days of receipt.

E. If (i) Developer acquires the Redevelopment Property and commences

construction of the Project, (ii) the City reimburses Developer for the environmental
remediation Redevelopment Project Costs pursuant to subsection 5.1(C)(i)(a), (iii)
Developer fails to timely complete the Project, and (iv) the environmental remediation
Redevelopment Project Costs reimbursed by the City as aforesaid exceeds the real estate
tax increment generated by the Project, then Developer shall pay any such excess to the
City.

F. The Developer shall promptly pay when due all real estate taxes and other
taxes and charges assessed, levied or imposed against the Redevelopment Property.

Section 7.3. Undertakings on the Part of the Developer.

A. If the Developer acquires the Redevelopment Property and elects to

commence construction of the Project, then the Developer will construct the Project in
accordance with the Project Schedule and any revisions thereto, and shall not cause or
permit the existence of any violation of the City Code. The Developer shall use
reasonable efforts to substantially complete the entire Project in accordance with the
Project Schedule and any revisions thereto, or by such later time as may be agreed by and
between the City and the Developer, with such substantial completion to be evidenced by
(i) copies of all paid invoices for the portions of the Project to be financed by the City,
(ii) a certificate of substantial completion signed by the Developer's architect or project
manager, and (iii) all such inspections and approvals as may be required by City Code. If

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 requested by the Developer, the City shall provide to the Developer a written statement
confirming such substantial completion for the purposes of this Agreement.

B. The Developer shall require the title holder of record (if at any time
different from the Developer) of the Redevelopment Property to give the City notice
within ten (10) days of receipt of same regarding any forfeiture on the financing
documents by the Developer for the financing of the Project or its subsequent purchase,
and any tax and/or "scavenger" sale of the Redevelopment Property, or any portion
thereof.

C. The Developer covenants that it shall use reasonable efforts to furnish or

cause the tenants of any retail business to submit to the City copies of the tenants'
monthly and annual sales tax reports as filed with the Illinois Department of Revenue.
The terms of this Section shall, to the extent possible, be incorporated in the leases for
such retail businesses and shall survive the issuance of the Certificate of Completion. To
the extent the documents submitted to the City pursuant to this paragraph are not
considered public documents pursuant to the Illinois Freedom of Information Act or other
laws, they shall be deemed confidential and proprietary. This covenant shall survive the
issuance of the Certificate of Completion, but shall not apply to a commercial unit sold
by Developer.

D. The Developer and the City each represent to the other that it has not
engaged the services of any finder or broker with respect to the purchase of any land
related to the Project and that it is not liable for any real estate commissions, broker's
fees, or finder's fees which may accrue by means of the acquisitions of any portion of the
Redevelopment Property, and each agrees to hold the other harmless from such
commissions or fees as are found to be due from the Party making such representations.

Section 7.4. Undertakings on the Part of the City.

A. The City shall, at its cost and expense, use commercially reasonable
efforts to relocate the electrical power lines, gas lines and telecommunication lines as
described on Exhibit F attached hereto and made a part hereof. If the City fails to so
relocate the electrical power lines, gas lines and telecommunication lines in sufficient
time to permit the Developer to proceed with the construction and development of the
Project, then such failure shall be an Uncontrollable Circumstance and the Project
Schedule shall be automatically extended for the period of delay in construction of the
Project attributable to such failure.

B. The City shall, within sixty (60) days following the preparation of the
necessary legal description, commence an action in the DuPage County Circuit Court
seeking to remove the residential portion of the Project from City of Elmhurst Special
Service Area No. Six (SSA No. 6), and the City shall diligently prosecute the same to
completion and apprise the Developer of the status of such removal efforts from time to
time. Notwithstanding the foregoing, provided the City has complied with the foregoing,
the Citys inability or failure to remove the Redevelopment Property from SSA No. 6

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 shall not be deemed a default of this Agreement and the City shall not be liable for any
additional taxes paid by the Developer as a result of the Redevelopment Property
remaining in SSA No. 6.

8. ADHERENCE TO CITY CODES AND ORDINANCES. The Developer shall

comply with all applicable provisions in the City Code and all other applicable codes and

ordinances of the City in effect from time to time at the time of issuance of each building permit

during the course of construction of the Project. The Developer is familiar with all of the

covenants, conditions, restrictions, building regulations, zoning ordinances, property

maintenance regulations, environmental laws (including any law relating to public health, safety

and the environment and the amendments, regulations, orders, decrees, permits, licenses or deed

restrictions now or hereafter promulgated thereafter) and land use regulations, codes, ordinances,

federal, state and local ordinances and the like, currently in effect and applicable to the

construction of the Project.

9. REPRESENTATIONS AND WARRANTIES OF THE CITY. The City

represents, warrants and agrees as the basis for the undertakings on its part herein contained that:

Section 9.1. Organization and Authority. The City is a municipal corporation duly

organized and validly existing under the laws of the State of Illinois, is a home rule unit of

government, and has all requisite corporate power and authority to enter into, deliver and

perform this Agreement. The City is solvent. The City will do or cause to be done all things

necessary to preserve and keep in full force and effect its existence and standing as an Illinois

municipal corporation, so long as the City has any other remaining obligations pursuant to this

Agreement.

Section 9.2. Authorization. The execution, delivery and the performance of this

Agreement and the consummation by the City of the transactions provided for herein and the

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compliance with the provisions of this Agreement (i) have been duly authorized by all necessary

corporate action on the part of the City, (ii) require no other consents, approvals or authorizations

on the part of the City in connection with the City's execution and delivery of this Agreement,

and (iii) shall not, by lapse of time, giving of notice or otherwise, result in any breach of any

term, condition or provision of any indenture, agreement or other instrument to which the City is

subject.

Section 9.3. Litigation. To the best of the City's knowledge, there are no proceedings

pending or threatened against or affecting the City or the TIF District in any court or before any

governmental authority which involves the possibility of materially or adversely affecting the

ability of the City to perform its obligations under this Agreement.

Section 9.4. No Breach. Neither the execution and delivery of this Agreement by the

City, the consummation of the transactions contemplated hereby by the City, nor the fulfillment

of or compliance with the terms and conditions of this Agreement by the City conflicts with or

will result in a breach of any of the terms, conditions or provisions of any offerings or disclosure

statement made or to be made on behalf of the City (with the City's prior written approval), any

organizational documents, any restriction, agreement or instrument to which the City is now a

party or by which the City is bound, or constitutes a default under any of the foregoing, or results

in the creation or imposition of any prohibited lien, charge or encumbrance whatsoever upon any

of the assets or rights of the City.

Section 9.5 No Broker. The City has not engaged the services of any finder or broker

with respect to the purchase of any of the Redevelopment Property and the City is not liable for

any real estate commissions, broker's fees, or finder's fees which may accrue by means of the

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acquisitions of any portion of the Redevelopment Property, and the City agrees to hold the

Developer harmless from such commissions or fees as are found to be due from the City.

Section 9.6 No Conflict or Breach. Neither the execution and delivery of this Agreement

by the City, the consummation of the transactions contemplated hereby by the City, nor the

fulfillment of or compliance with the terms and conditions of this Agreement by the City

conflicts with or will result in a breach of any of the terms, conditions or provisions of any

offerings or disclosure statement made or to be made on behalf of the City (with the City's prior

written approval), any organizational documents, any restriction, agreement or instrument to

which the City is now a party or by which the City is bound, or constitutes a default under any of

the foregoing, or results in the creation or imposition of any prohibited lien, charge or

encumbrance whatsoever upon any of the assets or rights of the City or under the terms of any

instrument or agreement to which the City is now a party or by which the City is bound.

10. INSURANCE.

Section 10.1. Project Insurance. The Developer, and any successor in interest to the

Developer, shall, until construction of the Project is complete, obtain or cause to be obtained and

continuously maintain insurance on the Project and, from time to time at the request of the City,

furnish proof to the City that the premiums for such insurance have been paid and the insurance

is in effect. The insurance coverage described below is the minimum insurance coverage that the

Developer must obtain:

A. Prior to above-grade construction of the Project, "Builder's Risk

Completed Value Basis," or similar form, in an amount equal to one hundred percent
(100%) of the replacement cost of the Project with waiver of co-insurance (except that
such insurance may be subject to commercially reasonable deductible clauses) and with
coverage available in non-reporting form.

B. Prior to the commencement of the Project, general liability insurance shall

be obtained including (if such coverage is not specifically included with the actual

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 policy) the broad form CGL endorsement. The insurance shall name the City, its
officers, employees and agents as additional insureds, with all rights of an insured, with
limits of not less than $10,000,000.00 for each occurrence (to accomplish the above-
required limits, an umbrella excess liability policy may be used). Coverage must be
written on an occurrence basis against claims for personal injury, including bodily injury,
death or property damage occurring on, in or about the Project.

C. Workers compensation insurance, with statutory coverage, only to the

extent applicable.

Section 10.2. Insurer Ratings. All insurance required in this Section shall be obtained

and continuously maintained in responsible insurance companies selected by the Developer or its

successors and approved by the City having at a minimum Best rating of "A" and a financial size

category of Class VII or better in Best's Insurance Guide that are authorized under the laws of the

State to assume the risks covered by such policies. Unless otherwise provided in this Section,

each policy shall not be modified or canceled without at least thirty (30) days prior written notice

being given to the City prior to modification or cancellation for any reason other than non-

payment in which case at least ten (10) days prior written notice shall be given the City. Not less

than fifteen (15) days prior to the expiration of any policy, the Developer, or its successor or

assign, must renew the existing policy or replace the policy with another policy conforming to

the provisions of this Section and provide City contemporaneous notice thereof. In lieu of

separate policies, the Developer, or its successor or assign, may maintain a single policy, blanket

or umbrella policies, or a combination thereof, having the coverage required herein.

11. INDEMNIFICATION AND LIMITATION OF LIABILITY.

Section 11.1. Indemnification. The Developer releases from and covenants and agrees

that the Indemnified Parties shall not be liable for and agrees to indemnify, defend and hold

harmless the Indemnified Parties from and against any loss, damage, claims, demands, suits,

costs, expenses (including reasonable attorney's fees), actions or other proceedings whatsoever to

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the extent caused by the Developer and its officers, employees, agents and/or contractors (or if

other persons acting on its behalf or under its direction or control by reason of construction of the

Project) in connection with this Agreement, or the transactions contemplated hereby or the

acquisition, construction, installation, ownership, and operation of the Project ("Indemnified

Claims"); provided, however, that the Developer's indemnity obligations under this Agreement

shall be reduced to the extent the Indemnified Claims are caused, if at all, by the willful

misconduct or negligence on the part of the Indemnified Parties or the extent the Indemnified

Claims are caused, if at all, by the City's failure to comply with this Agreement or other

applicable law and Developer's indemnification pursuant to this Section expressly does not

include any claims challenging or relating to the City's authority to create and establish the

Redevelopment Project Areas, enter into this Agreement or approve the Project.

Section 11.2 Limitation of Liability. No recourse under or upon any obligation,

covenant or condition in this Agreement, or for any claim based thereon or otherwise related

thereto, shall be had against the officers, officials, agents and/or employees of the City in

connection with this Agreement and no liability, right or claim at law or in equity shall attach to,

or shall be incurred by, the officers, officials, agents and/or employees of the City in connection

with this Agreement.

12. EVENTS OF DEFAULT AND REMEDIES.

Section 12.1. Developer Events of Default. The following shall be Events of Default

with respect to this Agreement:

A. If any material representation made by the Developer in this Agreement,

or in any certificate, notice, demand or request made by a Party hereto, in writing and
delivered to the City pursuant to or in connection with any of said documents, shall prove
to be untrue or incorrect in any material respect as of the date made, remain untrue when
disclosed, and the Developer does not remedy the same upon its discovery or within
thirty (30) days after written notice from the City.

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 B. Failure of the Developer to comply with any material covenant or
obligation contained in this Agreement, or any other agreement with the City concerning
the Project, or the Redevelopment Property and the Developer does not, within thirty (30)
days after written notice from the City, initiate and diligently pursue appropriate
measures to remedy the default if such default can reasonably be cured within 30 days, or
if such default cannot reasonably be cured within 30 days, the Developer commences to
cure such default within 30 days, and thereafter diligently pursues the curing of such
default.

C. The entry of a decree or order for relief by a court having jurisdiction in

the premises in respect of the Developer in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Developer for any substantial
part of its Redevelopment Property, or ordering the winding-up or liquidation of its
affairs and the continuance of any such decree or order unstayed and in effect for a period
of sixty (60) consecutive days.

D. The Developer: (i) becomes insolvent; or (ii) is unable, or admits in

writing its inability to pay, its debts as they mature; or (iii) makes a general assignment
for the benefit of creditors or to an agent authorized to liquidate any substantial amount
of its or their property; or (iv) is adjudicated a bankrupt; or (v) files a petition in
bankruptcy or to effect a plan or other arrangement with creditors; or (vi) files an answer
to a creditor's petition (admitting the material allegations thereof) for an adjudication of
bankruptcy or to effect a plan or other arrangement with creditors; or (vii) applies to a
court for the appointment of a receiver for any asset; or (viii) has a receiver or similar
official appointed for any of its assets, or, if such receiver or similar official is appointed
without the consent of the Developer and such appointment shall not be discharged
within sixty (60) days after his appointment or the Developer has not bonded against such
receivership or appointment; or (ix) a petition described in (v) is filed against the
Developer and remains pending for a period of sixty (60) consecutive days, unless the
same has been bonded, and as a result thereof, the Developer ceases to operate; or (x)
files any lawsuit, claim and/or legal, equitable or administrative action affecting the
City's ability to collect any such sales tax revenue hereunder.

E. The Developer abandons the Project on the Redevelopment Property.

Abandonment shall be deemed to have occurred when work stops on the Redevelopment
Property for a continuous period of more than one hundred twenty (120) consecutive
days for any reason other than: (i) Uncontrollable Circumstances, (ii) if the Developer is
ahead of its planned construction schedule on the Project Schedule, or (iii) work stoppage
caused by an action or inaction of the City that is not in compliance with the terms of this
Agreement.

F. The Developer materially fails to comply with applicable governmental

codes and regulations in relation to the construction and maintenance of the buildings

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 contemplated by this Agreement and the Developer does not, within thirty (30) days after
written notice thereof, initiate and diligently pursue appropriate measures to remedy such
failure if such failure can reasonably be cured within 30 days, or if such failure cannot
reasonably be cured within 30 days, the Developer commences to cure such failure within
30 days, and thereafter diligently pursues the curing of such failure.

Section 12.2. City Events of Default. The following shall be Events of Default with

respect to this Agreement:

A. If any representation made by the City in this Agreement, or in any

certificate, notice, demand or request made by a Party hereto, in writing and delivered to
the Developer pursuant to or in connection with any of said documents, shall prove to be
untrue or incorrect in any material respect as of the date made, remain untrue when
disclosed, and the City does not remedy the same within thirty (30) days after written
notice from the Developer.

B. Failure of the City to comply with material covenant or obligation

contained in this Agreement and the City does not, within thirty (30) days after written
notice from the Developer, initiate and diligently pursue appropriate measures to remedy
the default, if such default can reasonably be cured within thirty (30) days, or if such
default cannot reasonably be cured within thirty (30) days, the City commences to cure
such default within thirty (30) days, and thereafter diligently pursues curing of such
default.

C. Failure of the City to comply with any of its obligations under this
Agreement, including without limitation its obligations to make any payment to the
Developer, including without limitation the City Incentives, as and when due, and
including its obligations to timely relocate the electrical lines per the Schedule as set forth
in Exhibit F, under this Agreement.

Section 12.3. Remedies of Default. In the case of an event of default hereunder:

A. The defaulting party shall, upon written notice from the non-defaulting
party, take immediate action to cure or remedy such event of default. If, in such case,
any monetary event of default is not cured within thirty (30) days, or if in the case of a
non-monetary event of default, action is not taken or not diligently pursued, or if action is
taken and diligently pursued but such event of default or breach shall not be cured or
remedied within a reasonable time, but in no event more than one hundred twenty (120)
additional days after receipt of such notice, unless extended by mutual agreement, the
non-defaulting party may institute such proceedings as may be necessary or desirable in
its opinion to pursue damages and/or to cure or remedy such default or breach, including,
but not limited to, proceedings to compel specific performance of the defaulting party's
obligations under this Agreement.

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 B. In case the non-defaulting Party shall have proceeded to enforce its rights
under this Agreement and such proceedings shall have been discontinued or abandoned
for any reason, then, and in every such case, the Developer and the City shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and
powers of the Developer and the City shall continue as though no such proceedings had
been taken.

C. If the Developer acquires the Redevelopment Property and elects to

commence construction of the Project and thereafter abandons (as defined in Section
12.1(E)) the Project on the Redevelopment Property, then the City may terminate this
Agreement and upon such termination shall be relieved of any further obligations under
this Agreement, including, but not limited to, its obligation to pay any further incentive
amounts to the Developer.

D. In the case of an event of default by the Developer occurring prior to the

commencement of construction, the City agrees that it shall have no remedy of specific
performance to force the Developer to commence construction.

Section 12.4. Third-Party Litigation; Reimbursement of City for Legal and Other Fees

and Expenses. Subject to the limitations on the Developer's hold harmless and indemnification

obligations set forth in Section 11 of this Agreement, in the event that any third party or parties

institutes any legal proceedings against the City in connection with the development of the

Project and related to the terms of this Agreement, then, in that event, the Developer agrees to

indemnify, defend and hold harmless the City from any loss, damage, claims, demands, suits

costs, expenses (including reasonable attorney's fees) or actions arising in connection with any

such legal proceedings. The Developer shall assume, fully and vigorously, the entire defense of

such lawsuit or proceedings; provided, however, that the Developer may not at any time settle or

compromise such proceedings without advance written approval of the City if such settlement or

compromise involves any admission of wrongdoing on the part of the City, or any liability

imposed on the City not funded by or on behalf of Developer.

In any such litigation, if Illinois Rules of Professional Conduct prohibit the City and the

Developer from being represented by the same counsel or if the positions of the City and the

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Developer in such litigation will necessarily be in conflict, then the City shall have the option of

being represented by its own legal counsel. In the event that the City exercises such option, then

the Developer shall reimburse the City from time to time on written demand from the City

Manager and notice of the amount due for any and all reasonable out-of-pocket costs and

expenses, including but not limited to court costs, reasonable attorneys' fees, witnesses' fees

and/or other litigation expenses incurred by the City in connect therewith.

Section 12.5. No Waiver by Delay or Otherwise. Any delay by either Party in instituting

or prosecuting any actions or proceedings or otherwise asserting its rights under this Agreement

shall not operate to act as a waiver of such rights or to deprive it of or limit such rights in any

way (it being the intent of this provision that neither Party should be deprived of or limited in the

exercise of the remedies provided in this Agreement because of concepts of waiver, laches or

otherwise); nor shall any waiver in fact made with respect to any specific event of default be

considered or treated as a waiver of the rights by the waiving Party of any future event of default

hereunder, except to the extent specifically waived in writing. No waiver made with respect to

the performance, nor the manner or time thereof, of any obligation or any condition under the

Agreement shall be considered a waiver of any rights except if expressly waived in writing.

Section 12.6. Rights and Remedies Cumulative. Except as may be specifically provided

for in this Agreement, the rights and remedies of the Parties to this Agreement, whether provided

by law or by this Agreement, shall be cumulative, and the exercise of any one or more of such

remedies shall not preclude the exercise by such Party, at that time or different times, of any

other such remedies for the same event of default.

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 13. COSTS OF THE PROJECT.

Section 13.1. Budget. Attached hereto and incorporated herein as Exhibit G is the

Developer's good faith estimate of the overall costs of the Project (the "Budget") as of the

Effective Date.

Section 13.2. Developer's Cost. Subject to reimbursement of the City Incentives, as

provided herein, the Developer shall be responsible for the entire cost of constructing the Project.

Section 13.3. Developer's Budget Management. Should the actual cost or expense of the

Project be greater than the amount set forth in the Budget, the Developer shall be required to pay

such excess costs.

14. PROJECT AUDIT. Upon reasonable notice, the City and its representatives and

consultants shall have access to all portions of the Project during reasonable times for the term of

this Agreement. Upon reasonable notice, during business hours and at the office of the

Developer, the City and its representatives and consultants (which consultants shall not be

compensated on a contingency fee or other similar basis) shall make available for review the

books and records relating to the Developer's costs with respect to the Project to enable the City

to verify the Redevelopment Project Costs with respect thereto, including, but not limited to, the

Developer's, general contractor's and contractor's sworn statements, general contracts,

subcontracts, purchase orders, waivers of lien, paid receipts and invoices. These records shall be

available for inspection, audit and examination. The City agrees to keep all financial information

of the Developer confidential, except to the extent required for compliance with any applicable

law, rule or regulation.

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 15. CONSTRUCTION OF THE PROJECT.

Section 15.1. Delivery of Building and Engineering Plans. The Developer shall,

pursuant to the Project Schedule, cause to be delivered to the City for review and approval the

building and final engineering plans for the Project. The Developer shall also file at appropriate

times and diligently pursue all required applications and supporting documentation as may be

necessary to secure any permit required to be issued by any other unit of government whose

approval is a necessary precondition to the Developer's right to construct the Project.

Section 15.2. Plan Review Cooperation. The City agrees to meet with the Developer and

its authorized agents as frequently as may reasonably be necessary to coordinate the preparation

of, submission to and review and approval by the City of the Project building permit

applications. Any errors or omissions of the City in the review of and comments provided in

response to the submittals shall not constitute a waiver of the application of the City's ordinances

and regulations related to the Project.

Section 15.3. Corrected Documents. Should the City reject any submitted building

permit applications for failure to comply with the Final Plans, the City shall identify such

failure(s) with specificity and the Developer shall, within twenty-one (21) business days, or such

other reasonable time, after receiving written notice thereof, cause revised documents to be

prepared and submitted to the City. This process, within the time frames herein stipulated, shall

be repeated as often as may be necessary until the documents are in compliance with the Final

Plans and applicable laws and ordinances, except that all submittals after the initial submittal

shall be reviewed by the City within such shorter period as may be reasonably practical.

16. FINAL PROJECT COSTS RECAPTURE; EXCESS PROFIT.

Section 16.1. Final Certification of Project Budget; Recapture.

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 A. The Developer acknowledges that the level of financial assistance provided by the

City herein is based upon the Budget, attached hereto as Exhibit G. Within sixty (60) days after

issuance of a final certificate of occupancy for the Project, the Developer shall submit to the City

a certification (Cost Certificate) of actual costs incurred in connection with the Project

described in the estimates set forth in each of the categories as shown on Exhibit G, and shall

provide the City and the Financial Consultant (as herein defined) electronic access to all sworn

contractors statements, construction contracts and such other documents evidencing the actual

costs incurred in connection with the Project described in the estimates set forth in each of the

categories as shown on Exhibit G, as may be reasonably requested by the City (Final Project

Cost). The City and the Financial Consultant shall have ninety (90) days following receipt of

the foregoing materials to review the Cost Certificate and the documentation evidencing the

actual costs incurred in connection with the Project and shall notify the Developer in writing if

the Cost Certificate and submitted documentation are reasonably acceptable to the City within

such ninety (90) day time period; provided, however, if the City reasonably requires additional

time and gives Developer written notice thereof prior to the end of such 90-day period, then such

90-day period may be extended for an additional sixty (60) days. If the Cost Certificate and

submitted documentation are not reasonably acceptable to the City, then the Parties shall

cooperate in good faith to resolve the Citys objections, and if, within thirty (30) days, the Parties

are not able to mutually resolve the same and agree upon the Final Project Cost, then the Final

Project Cost shall be determined by binding arbitration, in accordance with the Project Cost

Arbitration Methodology set forth in Section 16.1(B). In the event the Final Project Cost

(whether determined upon agreement by the Parties or resulting from the decision under

arbitration) is less than the estimated cost of the Project set forth in the Budget, fifty (50%)

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percent of such amount ("Recapture Payment") shall be paid to the City within thirty (30) days

after determination of the Final Project Cost. The Recapture Payment shall in no event exceed

the amount of the City Incentive. In the event the Recapture Payment is greater than

$400,000.00, the amount by which the Recapture Payment exceeds $400,000.00 shall not be paid

by the Developer to the City, it being understood that the amount of such excess shall be credited

against any future amount due to the Developer pursuant to Section 5.1(C)(i)(b) of this

Agreement.

B. "Project Cost Arbitration Methodology" shall mean the methodology set forth

below to determine the Final Project Cost, in accordance with this Section 16.1(B) in the event

the Parties are not otherwise able to reach agreement as to the Final Project Cost within the time

period prescribed in this Agreement. Following any inability of the Parties to reach agreement

with respect to the Final Project Cost within the time period prescribed in this Agreement, either

party (the "Arbitration Requesting Party") may notify the other party (the "Arbitration Non-

Requesting Party"), in writing ("Arbitration Project Cost Notice"), of the Arbitration

Requesting Party's desire to have the Final Project Cost determined by binding arbitration in

accordance with the provisions set forth herein. The Arbitration Project Cost Notice shall

include the name, address and professional qualifications of the person designated to act as

arbitrator on its behalf. Within ten (10) days after service of the Arbitration Project Cost Notice,

the Arbitration Non-Requesting Party shall give written notice to the Arbitration Requesting

Party specifying the name, address and professional qualifications of the person designated to act

as arbitrator on behalf of the Arbitration Non-Requesting Party. The two (2) arbitrators so

appointed shall each determine the Final Project Cost by reviewing and analyzing the

certification of actual costs incurred by the Developer, together with any such other documents

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evidencing the cost of the Project, along with other documents deemed relevant by the

arbitrators, and each shall submit a copy of the arbitrators determination of the Final Project

Cost, along with supporting documentation to the Parties in writing, within thirty (30) days after

appointment. If the lesser of such determinations when multiplied by 105% exceeds the higher

of such determination, then the Final Project Cost shall be the average of the two determined

amounts. If the lesser of such determination when multiplied by 105% does not exceed the

higher of such determinations, then the two (2) arbitrators shall, within ten (10) days after

delivery of the second determination, select a third arbitrator who shall determinate the Final

Project Cost based upon the arbitrators determinations and supporting documentation, and such

additional documentation and/or information the third arbitrator shall deem relevant. The

determination of the third arbitrator shall be given within a period of twenty (20) days after the

appointment of such third arbitrator.

All arbitrators appointed by or on behalf of either Party or appointed pursuant to the

provisions hereof, shall be a real estate professional with not less than ten (10) years of

experience in multi-family real estate, and devoting substantially all of their time to professional

construction work at the time of appointment and be in all respects impartial and disinterested. If

the Arbitration Non-Requesting Party fails to appoint its arbitrator within the time specified

above, or if the two (2) arbitrators so selected cannot agree on the selection of the third arbitrator

within the time above specified, then either party, on behalf of both parties, may request the

appointment of such second or third arbitrator, as the case may be, by application to any Judge of

the Circuit Court of the County of DuPage, State of Illinois, upon ten (10) days' prior written

notice to the other party of such intent. Each party shall pay the fees and expenses of the

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arbitrator appointed by or on behalf of such party and the fees and expenses of the third arbitrator

shall be borne equally by the parties, and shall not be considered a Project Cost.

Section 16.2. Excess Profit Calculation and Documentation.

A. Upon the occurrence of the Capital Event, the Developer shall pay to the City an

amount ("Excess Profit") which is a portion of the amount (Profit) by which the total revenue

from the Project exceeds the total costs of the Project in accordance with the schedule in Section

16.3 below. Calculation of Excess Profit will be performed based on a standard unlevered

Internal Rate of Return financial model calculating a return on the Project's total costs, net

operating income, and net proceeds, if any, from the Capital Event (the "IRR"). The IRR will be

calculated via numerical iteration from the sum of: "total project expenditures" + "total project

revenues" + "total TIF contribution", it being understood that the phrases total project revenue,

total costs, total project expenditures and similar phrases shall mean all revenues received,

costs and expenses incurred in connection with the Project, including, without limitation, all

acquisition, development, construction, leasing, management, financing, closing, capital

transaction, operating expenses and related costs. Utilizing the equation below, a solution will

be derived for "r" = the unleveraged IRR for the Project; where "N" = the total number of years

in the life of the Project (defined as the number of years starting with the year in which

predevelopment expenditures began (i.e., 2015) through to the date of the Capital Event); "C" =

total net cash flows (total development revenues, including TIF proceeds, received less total

costs incurred) for each year; and "t" = each year in the life of the Project up to the date of the

Capital Event.

N
NPV = Ct____ = 0
t-0 (1 / r)t

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 The IRR analysis for payment of Excess Profit will be performed one time only upon the

occurrence of the Capital Event. To illustrate the intent of the Parties, attached as Exhibit I is an

example of the calculation of Excess Profit using the above formula and the allocations below.

For the calculation of IRR, actual costs and revenues will be used to the extent determined as of

the date of the Capital Event. For values not yet determined, reasonable assumptions will be

made by the City and Developer.

Within thirty (30) days following the Capital Event, the Developer shall provide to the

City the Developer's initial calculation of the IRR and the Excess Profit, if any, and shall provide

the City and the Financial Consultant electronic access to all documents and information

supporting the Developers initial calculation which are reasonably requested by a professional

financial services firm selected by the City ("Financial Consultant") in order to review the

Developer's initial calculation of the IRR and the Excess Profit (Developers IRR Analysis),

and Developer shall continue to provide the City electronic access to all documents and

information supporting the Developers initial calculation throughout the Term. Within thirty

(30) days of receipt of the Developers IRR Analysis, the Financial Consultant shall review the

Developers IRR Analysis, and perform its own, independent calculation of the IRR and the

Excess Profit on behalf of the City and provide same to the Developer ("City IRR Analysis"). If

the Developer disagrees with the City IRR Analysis, then the Developer shall so notify the City

thereof in writing within fifteen (15) days, which notice shall include the name, address and

professional qualifications of the person designated to act as appraiser on its behalf. Within ten

(10) days thereafter, the City shall give written notice to the Developer specifying the name,

address and professional qualifications of the person designated to act as appraiser on behalf of

the City. The two (2) appraisers shall, within ten (10) days after selection of the second

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appraiser, select an arbitrator. All appraisers and the arbitrator appointed hereunder shall be MAI

members of the Appraisal Institute with not less than ten (10) years of experience in the financial

analysis of multi-family real estate in the greater Chicago, Illinois metropolitan area, and be

devoting substantially all of their time to professional financial analysis work at the time of

appointment, and be in all respects impartial and disinterested. The IRR calculation and

computation of the Excess Profit determined by each appraiser shall be given within a period of

thirty (30) days after the appointment of the arbitrator. Each Party shall pay the fees and

expenses of the appraiser appointed by or on behalf of such Party and the fees and expenses of

the arbitrator shall be borne equally by both parties. If the Party receiving a request for

arbitration fails to appoint its appraiser within the time above specified, or if the two (2)

appraisers so selected cannot agree on the selection of the arbitrator within the time above

specified, then either party, on behalf of both parties, may request such appointment of such

second appraiser or the arbitrator, as the case may be, by application to any Judge of the Circuit

Court of DuPage County, Illinois, upon ten (10) days' prior written notice to the other party of

such intent. If the appraisers do not agree as to the IRR calculation and computation of the

Excess Profit, then the arbitrator shall determine the IRR calculation and computation of the

Excess Profit by selecting the IRR calculation and computation of the Excess Profit proposed by

one of the two appraisers. Any determination by the arbitrator shall be made no later than thirty

(30) days following delivery of each appraisal and notice thereof shall be given to the Parties.

Such determination shall be final, binding and conclusive upon the parties and shall constitute

the IRR. The cost of the Financial Consultant for the IRR analysis shall be split equally between

the Developer and the City; provided, however, the Financial Consultant shall not be

compensated in whole or in part on a contingency fee basis.

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 B. If, as of December 31, 2021, a Capital Event has not occurred, then the Parties

shall determine the fair market value of the Project in accordance with this Section 16.2(B). If

the Parties are not able to reach agreement as to the fair market value of the Project by January

31, 2022, then the fair market value of the Project shall be determined by binding arbitration in

accordance with the FMV Arbitration Methodology.

"FMV Arbitration Methodology" shall mean the methodology set forth below to

determine the fair market value of the Project in accordance with this Section 16.2(B) in the

event the Parties are not otherwise able to reach agreement as to the fair market value of the

Project within the time period prescribed in this Agreement. Following any inability of the

Parties to reach agreement with respect to the fair market value of the Project within the time

period prescribed in this Agreement, either party (the "Arbitration Requesting Party") may

notify the other party (the "Arbitration Non-Requesting Party"), in writing ("Arbitration FMV

Notice"), of the Arbitration Requesting Party's desire to have the fair market value of the Project

determined by binding arbitration in accordance with the provisions set forth herein. The

Arbitration FMV Notice shall include the name, address and professional qualifications of the

person designated to act as arbitrator on its behalf. Within ten (10) days after service of the

Arbitration FMV Notice, the Arbitration Non-Requesting Party shall give written notice to the

Arbitration Requesting Party specifying the name, address and professional qualifications of the

person designated to act as arbitrator on behalf of the Arbitration Non-Requesting Party. The

two (2) arbitrators so appointed shall determine fair market value of the Project, considering,

with respect to the Project, along with other factors deemed relevant by the arbitrators, the size,

location, area and nature of the improvements in the Project, and the parking provided to the

Project, and each shall submit a copy of its appraisal determining such fair market value, along

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with supporting documentation to the Parties in writing, within thirty (30) days after

appointment. If the lesser of such appraisals when multiplied by 105% exceeds the higher of

such appraisals, then the fair market value of the Project shall be the average of the two

appraised values. If the lesser of such appraisals when multiplied by 105% does not exceed the

higher of such appraisals, then the two (2) arbitrators shall, within ten (10) days after delivery of

the second appraisal, select a third arbitrator. The decision of the third arbitrator shall be given

within a period of twenty (20) days after the appointment of such third arbitrator. Under said

circumstances, the fair market value of the Project shall be the average of the three appraised

values; provided, however, if the lowest or the highest of the three appraised values, or both,

varies by more than ten percent (10%) from the median appraised value, the appraised value or

values so varying shall be disregarded. The fair market value of the Project as determined by the

Arbitration Methodology is hereinafter referred to as the Appraised FMV of the Project.

All arbitrators appointed by or on behalf of either Party or appointed pursuant to the

provisions hereof, shall be certified MAI members of the Appraisal Institute with not less than

ten (10) years of experience in the appraisal of like property in DuPage County, Illinois, and be

devoting substantially all of their time to professional appraisal work at the time of appointment

and be in all respects impartial and disinterested. If the Arbitration Non-Requesting Party fails to

appoint its arbitrator within the time specified above, or if the two (2) arbitrators so selected

cannot agree on the selection of the third arbitrator within the time above specified, then either

party, on behalf of both parties, may request the appointment of such second or third arbitrator,

as the case may be, by application to any Judge of the Circuit Court of the County of DuPage,

State of Illinois, upon ten (10) days' prior written notice to the other party of such intent. Each

party shall pay the fees and expenses of the arbitrator appointed by or on behalf of such party and

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the fees and expenses of the third arbitrator shall be borne equally by the parties, and shall not be

considered a Project Cost.

Section 16.3. Excess Profit Sharing Analysis. If the IRR is equal to or greater than

thirteen percent (13%), the proceeds from the Capital Event, after deduction of all costs incurred

by the Developer in connection with the Capital Event will be distributed as follows:

Tranche 1 To Developer 100% to Developer until a 13% IRR is achieved by

the Project.

Tranche 2 Profit Sharing Payment to the City After a 13% IRR is achieved by
the Project and until a 14% IRR is achieved by the Project, the distribution will be 15% to
the City and 85% to the Developer.

Tranche 3 Profit Sharing Payment to the City After a 14% IRR is achieved by
the Project and until a 15% IRR is achieved by the Project, the distribution will be 25% to
the City and 75% to the Developer.

Tranche 4 Profit Sharing Payment to the City After a 15% IRR is achieved by
the Project and until a 16% IRR is achieved by the Project, the distribution will be 35% to
the City and 65% to the Developer.

Tranche 5 Profit Sharing Payment to the City After a 16% IRR is achieved by
the Project, the distribution will be 45% to the City and 55% to the Developer.

The IRR analysis for payment of Excess Profit will be performed one time only and will

be triggered upon the Capital Event. The refinancing of the construction debt for the Project will

not constitute a Capital Event.

Notwithstanding the foregoing, if the Appraised FMV of the Project is determined in

accordance with Section 16.2(B), then, within thirty (30) days after the Appraised FMV of the

Project is so determined, the Developer shall deliver written notice (FMV Determination

Notice) to the City and the Financial Consultant of the determination of the Appraised FMV of

the Project and the Developers reasonable good faith estimate of (a) actual closing costs which

would have been incurred had an arms-length sale of the Project had been consummated at a

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purchase price equal to the Appraised FMV of the Project, and (b) the total costs of the Project

incurred by the Developer. The Financial Consultant, in cooperation with the City and the

Developer, shall determine the IRR and Excess Profit, calculated pursuant to Section 16.2(A), as

though Profit were equal to the amount, if any, by which the Appraised FMV of the Project

exceeds the sum of (a) a reasonable good faith estimate of actual closing costs which would have

been incurred had an arms-length sale of the Project been consummated at a purchase price equal

to the Appraised FMV of the Project, and (b) the total costs of the Project incurred by the

Developer, and provide a copy of its determination to the Developer and the City within ninety

(90) days after receipt of the FMV Determination Notice.

Section 16.4. Excess Profit Payment. The Excess Profit (i.e., the amount of any recovery

by the City of any Profit under the provisions of Section 16.3 above) shall be paid to the City

within ten (10) days after such amount is determined in accordance with this Agreement.

Section 16.5. Recapture Payment Excess Profit Cap. Anything herein to the contrary

notwithstanding, the total amount of Recapture Payment and Excess Profit, if any, pursuant to

this Section 16 paid to the City will not exceed One Million Five Hundred Ten Thousand Dollars

($1,510,000).

17. MISCELLANEOUS PROVISIONS.

Section 17.1. Severability. If any covenant, condition, provision, term or agreement of

this Agreement is, to any extent, held invalid or unenforceable, the remaining portion thereof and

all other covenants, conditions, provisions, terms and agreements of this Agreement, will not be

affected by such holding, and will remain valid and in force to the fullest extent permitted by

law.

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 Section 17.2. Notices. All notices, certificates, approvals, consents or other

communications desired or required to be given hereunder shall be given in writing at the

addresses set forth below, by any of the following means: (a) personal service, (b) electronic

communications, whether by electronic mail (if such notice, certificate, approval, consent or

other communication is also sent by another permitted method of delivery) or fax between 9:00

a.m. and 5:00 p.m. CST Monday through Friday, (c) overnight courier, (d) registered or certified

first class mail, postage prepaid, return receipt requested, or (e) priority mail with delivery

confirmation.

If to City: City of Elmhurst

Attn: City Manager
209 North York Street
Elmhurst, Illinois 60126

With a copy to: Donald J. Storino

Storino, Ramello & Durkin
9501 West Devon Avenue, Suite 800
Rosemont, Illinois 60018

If to Developer: 100 North Addison, L.L.C.

c/o Opus Development Company, L.L.C.
9700 Higgins Road, Suite 900
Rosemont, Illinois 60018
Attn: Sean Spellman

With a copy to: Opus Holding, L.L.C.

10350 Bren Road West
Minnetonka, Minnesota 55343
Attn: Thomas J. Hoben

and a copy to: Daspin & Aument, LLP

300 South Wacker Drive, Suite 2200
Chicago, Illinois 60606
Attn: James H. Marshall

The Parties, by notice hereunder, may designate any further or different addresses to

which subsequent notices, certificates, approvals, consents or other communications shall be

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sent. Any notice, demand or request sent pursuant to either clause (a) or (b) hereof shall be

deemed received upon such personal service or upon dispatch by fax. Any notice, demand or

request sent pursuant to clause (c) shall be deemed received on the day immediately following

deposit with the overnight courier, and any notices, demands or requests sent pursuant to clause

(d) shall be deemed received forty-eight (48) hours following deposit in the mail. Attorneys for

each Party shall be authorized to give notices for and on behalf of their respective clients.

Section 17.3. Time of the Essence. Time is of the essence of this Agreement.

Section 17.4. Integration. Except as otherwise expressly provided herein, this

Agreement supersedes all prior agreements, negotiations and discussions relative to the subject

matter hereof and is a full integration of the agreement of the Parties.

Section 17.5. 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.

Section 17.6. Recordation of Agreement. The Parties agree that this Agreement shall not

be recorded. The Parties shall execute a memorandum of this Agreement in recordable form and

in the form of Exhibit J attached hereto and made a part hereof and Developer, at Developer's

sole cost and expense, shall record the same with the DuPage County, Illinois, Recorder's Office.

Section 17.7. Cancellation. If (a) the Developer or the City shall be prohibited, in any

material respect, from performing their respective covenants and agreements under this

Agreement or enjoying the rights and privileges herein contained, or contained in the

Redevelopment Plan, including, without limitation, the Developers duty to build the Project to

the extent required by this Agreement, by the entry of a final, non-appealable order of any court

of competent jurisdiction, or (b) all or any part of the Act or any ordinance adopted by the City in

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connection with the Project, shall be declared invalid or unconstitutional, in whole or in part, by

the entry of a final, non-appealable decision of a court of competent jurisdiction, and, in either

case, such order or decision materially and adversely affects the Redevelopment Plan or this

Agreement or rights and privileges of the Developer or the City hereunder, then, and in any such

event, the Party so materially and adversely affected may, at its election, cancel or terminate this

Agreement in whole (or in part with respect to that portion of the Project materially and

adversely affected) by giving written notice thereof to the other within sixty (60) days after final

entry of such order or decision. If this Agreement is terminated pursuant to this Section 17.7,

then, to the extent appropriate, either Party may, at its option, also terminate its duties,

obligations and liabilities under all or any related documents and agreements between the Parties

regarding the Project. Further, the cancellation or termination of this Agreement shall have no

effect on the authorizations granted to the Developer for any proposed improvements for which

permits have been issued and which are under construction, to the extent permitted by said court

order or decision, and the cancellation or termination of this Agreement shall have no effect on

perpetual casements contained in any recorded, properly executed document.

Section 17.8. Choice of Law, Venue and Waiver of Trial by Jury. This Agreement shall

be governed by and construed in accordance with the laws of the State of Illinois. Venue for any

legal proceeding of any kind arising from this Agreement shall be in the Circuit Court of DuPage

County, Illinois. The Parties hereto waive trial by jury in any action, proceeding or counterclaim

brought by either of the Parties against the other on any matters whatsoever arising out of or in

any way connected with this Agreement, or for the enforcement of any remedy.

Section 17.9. Entire Contract and Amendments. This Agreement (together with the

exhibits attached hereto) is the entire contract between the City and the Developer relating to the

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subject matter hereof, supersedes all prior and contemporaneous negotiations, understandings

and agreements, written or oral, between the City and the Developer and may not be modified or

amended except by a written instrument executed by the Parties hereto, unless otherwise

provided in this Agreement. The City represents and warrants that Ordinance No. ZO-03-2016

has not been repealed, revoked or rescinded, is in full force and effect and fully applies with

respect to the Property.

Section 17.10. Third Parties. Except as set forth in Section 17.23 of this Agreement,

nothing in this Agreement, whether expressed or implied, is intended to confer any rights or

remedies under or by reason of this Agreement on any other person other than the City and the

Developer or permitted assign, nor is anything in this Agreement intended to relieve or discharge

the obligation or liability of any third persons to either the City or the Developer, nor shall any

provision give any third parties any rights of subrogation or action over or against either the City

or the Developer. This Agreement is not intended to and does not create any third party

beneficiary rights whatsoever, except as specifically provided otherwise herein.

Section 17.11. Waiver. Any Party to this Agreement may elect to waive any right or

remedy it may enjoy hereunder, provided that no such waiver shall be deemed to exist unless

such waiver is in writing. No such waiver shall obligate the waiver of any other right or remedy

hereunder, or shall be deemed to constitute a waiver of other rights and remedies provided

pursuant to this Agreement.

Section 17.12. Cooperation and Further Assurances. The City and the Developer each

covenant and agree that each will do, execute, acknowledge and deliver or cause to be done,

executed and delivered, such agreements, instruments and documents supplemental hereto and

such further acts, instruments, pledges and transfers as may be reasonably required for the better

47
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clarifying, assuring, mortgaging, conveying, transferring, pledging, assigning and confirming

unto the City or the Developer or other appropriate persons all and singular the rights, property

and revenues covenanted, agreed, conveyed, assigned, transferred and pledged under or in

respect of this Agreement.

Section 17.13. Successors in Interest. Prior to issuance of a certificate of occupancy

(temporary or permanent) with respect to the Project, Developer may not assign its interest in

this Agreement or voluntarily convey the Redevelopment Property without the prior written

consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed

and shall be deemed given if the City fails to grant or deny such consent within twenty-five (25)

business days following request; provided, however, the City hereby consents to any conveyance

of the Project (i) to any entity in which Opus (as herein defined) holds a controlling or managing

interest (which conveyance shall not constitute a Capital Event), and (ii) to the holder of any

mortgage, deed of trust or similar financing instrument in consequence of any foreclosure or

deed in lieu of foreclosure or similar transaction, and to any subsequent transferee thereof. The

rights and obligations of the Developer and any permitted assignee and the City under this

Agreement are personal to the Developer and the City, and no other person or entity shall acquire

or have any rights hereunder or by virtue hereof, except that the covenants, conditions and

agreements set forth in Section 7.1(B) hereof shall constitute covenants running with the land

and shall be binding upon and inure to the benefit of and be enforceable by and against any

owner, tenant, or occupant of the Redevelopment Property and their respective successors,

personal representatives, heirs, legatees, and assigns. Subject to the other provisions of this

Section 17.13, it is understood that the Developer may convey the Redevelopment Property or

any part thereof, and whenever such conveyance occurs, the seller shall have no further liability

48
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for breach of covenant occurring thereafter; provided, however, the Developer shall not be

released from liability with respect to any covenant, condition or agreement herein contained by

reason of said conveyance (including, without limitation any and all development and

construction covenants set forth herein) other than the covenants, conditions and agreements set

forth in Sections 7.1(B), 7.2, 11 and 16 of this Agreement.

Section 17.14. No Joint Venture, Agency or Partnership Created. Nothing in this

Agreement, or any actions of the Parties to this Agreement, shall be construed by the Parties or

any person to create the relationship of a partnership, agency or joint venture between or among

such Parties.

Section 17.15. No Personal Liability of Officials of the City or the Developer. No

covenant or agreement contained in this Agreement shall be deemed to be the covenant or

agreement of the corporate authorities, City Manager, any elected official, officer, partner,

member, director, agent, employee or attorney of the City or the Developer, in his or her

individual capacity, and no elected official, officer, partner, member, director, agent, employee

or attorney of the City or the Developer shall be liable personally under this Agreement or be

subject to any personal liability or accountability by reason of or in connection with or arising

out of the execution, delivery and performance of this Agreement, or any failure in that

connection.

Section 17.16. Repealer. To the extent that any ordinance, resolution, rule, order or

provision of the City Code, or any part thereof, is in conflict with the provisions of this

Agreement, the provisions of this Agreement shall be controlling, to the extent lawful.

Section 17.17. Term. The provisions of this Agreement shall commence on the Effective

Date and expire on December 31, 2026, being five (5) years following the expiration of the

49
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Redevelopment Project Area ("Term") except for Section 5.1 which shall be of no force and

effect upon December 31, 2022.

Section 17.18. Estoppel Certificates. Each of the Parties hereto agrees to provide the

other, upon not less than thirty (30) days prior request, a certificate ("Estoppel Certificate")

certifying that this Agreement is in full force and effect (unless such is not the case, in which

such Parties shall specify the basis for such claim), that the requesting Party is not in default of

any term, provision or condition of this Agreement beyond any applicable notice and cure

provision (or specifying each such claimed default) and certifying such other matters reasonably

requested by the requesting Party. If either Party fails to comply with this provision within the

time limit specified, it shall be deemed to have appointed the other as its attorney-in-fact for

execution of same on its behalf as to that specific request only.

Section 17.19. Collateral Assignment. The rights and obligations of the Developer and

its successors under this Agreement shall not be binding upon, nor inure to the benefit of, any

mortgagee, ground lessor, sale-leaseback lessor and/or trust deed holders (collectively,

Mortgagee) that acquire title to all or any portion of the Redevelopment Property by trustees

sale, foreclosure, or deed-in-lieu of foreclosure or otherwise, provided, however, in the event that

any Mortgagee succeeds to the Developers or assignees interest in the Redevelopment

Property, or any portion thereof, pursuant to a collateral assignment and, in conjunction with

such succession, accepts an assignment of the Developers interest in this Agreement, the City

shall recognize such party as the successor in interest to the Developer with respect to the

Redevelopment Property or the portion acquired by such Mortgagee, on the condition that if the

Mortgagee accepts an assignment of the Developers interest under this Agreement, then it

automatically accepts not only the Developers rights hereunder but also all of the Developers

50
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obligations hereunder. However, if such Mortgagee does not expressly accept an assignment of

the Developers interest hereunder, such Mortgagee shall be entitled to no rights and benefits

under this Agreement. The foregoing (Mortgagees lack of expressly accepting an assignment)

shall apply whether the succession is by foreclosure or deed in lieu of foreclosure or any other

remedy. Under all such circumstances, the Redevelopment Property may only be developed in

accordance with this Agreement and any such Mortgagee shall not be entitled to proceed with

development of the Redevelopment Property or portion thereof unless and until such Mortgagee

has consented in writing to be bound by all the terms, covenants and conditions of this

Agreement. The City agrees to give any mortgagees, ground lessors, sale-leaseback lessors

and/or trust deed holders, by registered or certified mail, a copy of any notice of default served

upon the Developer, provided that prior to such notice the City has been notified, in writing (by

way of notice of Assignment of Rents and Leases or otherwise) of the address of such

mortgagees, ground lessors, sale-leaseback lessors, and/or trust deed holders. The City further

agrees that, except in instances where there is an imminent likelihood that public health or safety

would be materially and adversely affected by such default, if the Developer shall fail to cure

such default within the time provided in this Agreement, then the Mortgagee shall have an

additional thirty (30) days within which to cure such default or if such default cannot be cured

within such 30-day time period, then such additional time as may be necessary if within such 30-

day period, the Mortgagee has commenced and is diligently pursuing the remedies necessary to

cure such default (including, without limitation, commencement of foreclosure proceedings, if

necessary to effect such cure) in which event this Agreement shall not be terminated nor shall the

City exercise any rights or remedies hereunder while such remedies are being so diligently

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pursued. The Developer may collaterally assign its interest in this Agreement in connection with

any financing transaction.

Section 17.20. Termination. Notwithstanding any provision in this Agreement to the

contrary, and subject to rights and remedies of the parties under Section 12.3 above, in the event

this Agreement is terminated for failure by the Developer to acquire the Redevelopment Property

on or before December 31, 2017, as provided in Section 17.22, each Party shall be solely

responsible, and each Party hereby waives any claims against the other, for any and all costs and

expenses incurred as a result of negotiating and entering into this Agreement and the

undertakings associated therewith, including but not limited to the zoning entitlements resulting

in the Final Plans.

Section 17.21. Tender of Defense. With respect to any claim which is subject to

indemnification and defense by the Developer under this Agreement, the indemnified party or

parties agree to tender defense of any such indemnified claim to the Developer in sufficient time

to avoid prejudice to the Developer for handling by counsel selected by the Developer and

reasonably acceptable to the indemnified party or parties and, in no event, shall the Developer be

liable for any special, incidental, punitive, consequential or similar type damages.

Section 17.22. Acquisition Contingency. Anything in this Agreement to the contrary

notwithstanding, if the Developer has not acquired the Redevelopment Property on or before

December 31, 2017, then the Developer shall notify the City and, at any time thereafter and prior

to the date the Developer acquires the Redevelopment Property, either the Developer or the City

may terminate this Agreement, in which event this Agreement shall be null and void and of no

further force and effect and neither the Developer nor the City shall have any liability under this

Agreement. Wherever in this Agreement any duty, obligation, requirement or other act or

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responsibility is imposed upon the Developer, any such duty, obligation, requirement or other act

or responsibility shall be binding upon the Developer if and only if (i) the Developer acquires the

Redevelopment Property, and (ii) the Developer elects to proceed with the construction and

development of the Project.

Section 17.23. Third Party Rights. Opus Development Company, L.L.C., a Delaware

limited liability company ("Opus"), is an express third party beneficiary of this Agreement and

shall have the independent right to enforce this Agreement directly against the City, including,

without limitation, an action for specific performance, without the joinder or consent of any other

entity, person or party, and the City shall have the independent right to enforce this Agreement

directly against Opus, including, without limitation, an action for specific performance, without

the joinder or consent of any other entity, person or party.

[The rest of this page intentionally left blank]

53
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 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed

on or as of the day and year first above written.

CITY:

CITY OF ELMHURST,
an Illinois municipal corporation
ATTEST:

By:_______________________________ By:_______________________________
City Clerk Mayor

[CITY SEAL]

DEVELOPER:

100 NORTH ADDISON, L.L.C.,

a Delaware limited liability company
ATTEST:
By: Opus Development Company, L.L.C.,
A Delaware limited liability company,
its sole Member

By:_______________________________ By:_______________________________
Its: Its:

54
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 JOINDER

For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, Opus Development Company, L.L.C., a Delaware limited
liability company ("ODC"), having a significant financial interest in the Developer, hereby joins
in the execution of this Agreement for the sole and exclusive purpose of acknowledging and
agreeing that as contemplated by Section 17.13 and Section 17.23 of this Agreement, (a) the
rights and obligations of the Developer and any permitted assignee under this Agreement shall be
joint and several rights and obligations of ODC, (b) ODC shall have the independent right to
enforce this Agreement directly against the City, including, without limitation, an action for
specific performance, without the joinder or consent of any other entity, person or party, (c)
ODC shall be entitled to the benefit of any defense available to the Developer under this
Agreement and shall be entitled to receive notice of non-performance under this Agreement, and
(d) the City shall have the independent right to enforce this Agreement directly against ODC,
including, without limitation, an action for specific performance, without the joinder or consent
of any other entity, person or party.

OPUS DEVELOPMENT COMPANY, L.L.C.,

a Delaware limited liability company

By:

Name:

Title:

55
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 LIST OF EXHIBITS

EXHIBIT A Legal Description of Redevelopment Property

EXHIBIT A-1 Map of Redevelopment Property

EXHIBIT B Zoning Entitlement Ordinance

EXHIBIT C Project Schedule

EXHIBIT D Redevelopment Project Costs

EXHIBIT E Disclosure Affidavit

EXHIBIT F Utility Line Relocation

EXHIBIT G Project Budget

EXHIBIT H Distribution Request Form

EXHIBIT I Hypothetical Profit Participation Fee Calculation

EXHIBIT J Form of Memorandum of Redevelopment Agreement

56
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 EXHIBIT A

Legal Description of Redevelopment Property

100 North Addison Avenue, Elmhurst, Illinois

PARCEL 1:
LOTS 1, 2, 3, 4, 5, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 AND 21 IN STRUCKMANNS WEST FIRST
STREET SUBDIVISION, A SUBDIVISION IN THE NORTHEAST QUARTER OF SECTION 2,
TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING
TO THE PLAT THEREOF RECORDED MARCH 7, 1923 AS DOCUMENT 163382, IN DUPAGE
COUNTY, ILLINOIS.

PARCEL 2:
THAT PART OF THE VACATED 16 FOOT ALLEY IN STRUCKMANNS WEST FIRST STREET
SUBDIVISION, A SUBDIVISION IN THE NORTHEAST QUARTER OF SECTION 2, TOWNSHIP
39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE
PLAT THEREOF RECORDED MARCH 7, 1923 AS DOCUMENT 163382,, IN DUPAGE COUNTY,
ILLINOIS, LYING SOUTH OF THE SOUTH LINE OF LOT 1 AND LYING EAST OF THE WEST
LINE OF LOT 1 EXTENDED SOUTH, IN DUPAGE COUNTY, ILLINOIS.

602156.16
 EXHIBIT A-1

Map of Redevelopment Property

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602156.16
 EXHIBIT B

Zoning Entitlement Ordinance

602156.16
 EXHIBIT C

Project Schedule

A. Anticipated Conveyance of Redevelopment Property No later than May 1, 2017

B. Submittal of Building Permit No later than ninety (90) days from A

C. Demolition No later than ninety (90) days from B

D. Anticipated commencement of vertical construction (foundations, etc.) No later than

sixty (60) days from C

E. Residential Occupancy/Substantial Completion No later than 13 months from D

602156.16
 EX
XHIBIT D

Redevelopm
ment Projecct Costs

602156.16
 EXHIBIT E
Disclosure Affidavit
State of Illinois )
) ss
County of ________ )

THE DEVELOPER MUST SIGN THIS AFFIDAVIT.

I, ______________________________, reside at _____________________________ in

the City/Village of ________________________, County of _______________________, State
of Illinois, being first duly sworn and having personal knowledge of the below facts, swear to the
following:

That I am over the age of eighteen and serve as the (choose one) __________________________
(i.e., owner, authorized member, corporate official or managing agent) of 100 North Addison,
LLC ("Developer").

That the Redevelopment Property in question has a common street address referred to as: 100
North Addison Avenue in the City of Elmhurst, County of DuPage, State of Illinois, and with a
Property Index Number(s) of _____________________(hereinafter "Redevelopment
Property").

That I understand that pursuant to 50 ILCS 105/3.1, prior to execution of the Redevelopment
Agreement between the Developer and the City, state law requires the owner, authorized trustee,
corporate official or managing agent to submit a sworn affidavit to the City disclosing the
identity of every owner and beneficiary who will obtain any interest, real or personal, in the
Redevelopment Property, and every shareholder who will be entitled to receive more than 7.5%
of the total distributable income of any corporation having any interest, real or personal, in the
Redevelopment Property after this transaction is consummated.

As the owner, authorized trustee, corporate official or management agent, I declare under oath
that (choose one):

(a) The owners or beneficiaries of the trust are _________________________________; or

(b) The shareholders with more than 7 % interest are ___________________________; or
(c) The corporation is publicly traded and there is no readily known individual having
greater than a 7 % interest in the corporation.

This instrument is made to induce the City to enter into the Redevelopment Agreement and in
accordance with 50 ILCS 105/3.1.
Affiant:___________________________________

Subscribed and Sworn to before me this ______ day of ______, 2016.

________________________
Notary Public

602156.16
 EXHIBIT F

Utility Line Relocation

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 EX
XHIBIT G

Projject Budgett

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 EXHIBIT H

Distribution Request Form

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 EXHIBIT I

Hypothetical Excess Profit Calculation

CALCULATIONOFPROFITPARTICIPATION
EXAMPLE
Assumptionsforexamplepurposesonly:
Developmentcostsforanalysis $54,000,000
NetsalesproceedsatendofYear3(CapitalEvent) $68,500,000

ProfitParticipation&ProjectRecapturecap $1,200,000
ProjectRecapturePayment(hypothetical) (400,000) Anyrecapturepaymentreducesamountofcap
ProfitParticipationcap 800,000

Beginning EndofYr1 EndofYr2 EndofYr3 Total IRR

DevelopmentCosts (7,000,000) (26,000,000) (21,000,000) (54,000,000)
NetOperatingIncomeincludingreserves 400,000 2,400,000 2,800,000
SalesProceeds 68,500,000 68,500,000
Subtotal (7,000,000) (26,000,000) (20,600,000) 70,900,000 17,300,000 15.8%

UnleveragedIRR Beginning EndofYr1 EndofYr2 EndofYr3 NetProfits IRR

Tranche1 Upto13% (7,000,000) (26,000,000) (20,600,000) 67,430,000 13,830,000 13.00%
Tranche2 13to14% (7,000,000) (26,000,000) (20,600,000) 68,650,000 15,050,000 14.00%
Tranche3 14to15% (7,000,000) (26,000,000) (20,600,000) 69,890,000 16,290,000 15.00%
Tranche4 15to16% (7,000,000) (26,000,000) (20,600,000) 71,150,000 17,550,000 16.00%
Tranche5 16%+ (7,000,000) (26,000,000) (20,600,000) 70,900,000 17,300,000 15.80%

UnleveragedIRR NetProfits CityPortion CityPayment

Tranche1 Upto13% 13,830,000 0.0% $
Tranche2 13to14% 1,220,000 15.0% 183,000
Tranche3 14to15% 1,240,000 25.0% 310,000
Tranche4 15to16% 1,260,000 35.0% 441,000
Tranche5 16%+ (250,000) 45.0% (112,500)
$821,500

PaymentLimitedtoProfitParticipationcap,soactualpaymenttoCityis: $800,000

602156.16
 EXHIBIT J

Memorandum of Agreement

-------------------------------------Reserved for Recording Data -----------------------------------

This instrument was prepared by

and after recording return to:

James H. Marshall
Daspin & Aument, LLP
300 South Wacker Drive, Suite 2200
Chicago, Illinois 60606

MEMORANDUM OF REDEVELOPMENT AGREEMENT

THIS MEMORANDUM OF REDEVELOPMENT AGREEMENT (this

"Memorandum") is made as of ___________, 201_ (the "Effective Date"), by and between the
City of Elmhurst, Illinois, an Illinois home rule municipal corporation, having an address of 209
North York Street, Elmhurst, Illinois 60126 (the "City"), and 100 North Addison, L.L.C., a
Delaware limited liability company ("Developer"), with an address of c/o Opus Development
Company, L.L.C., 9700 Higgins Road, Suite 900, Rosemont, Illinois 60018.

1. The City and Developer entered into that certain Redevelopment Agreement dated as of
__________, 201_ ("Agreement"), whereby Developer agreed to redevelop certain real estate
that it owns which is located at the address commonly known as 100 North Addison, Elmhurst,
Illinois, and is legally described on Exhibit A attached hereto and made a part hereof (the
"Redevelopment Property").

2. Section 17.6 of the Agreement provides that the City and Developer will record this
Memorandum with the DuPage County, Illinois, Recorder's Office to evidence and memorialize
certain provisions of the Agreement:

602156.16
(a) Section 7.1(B) of the Agreement provides that following finalization of the initial
assessment of the Redevelopment Property following substantial completion of the
redevelopment project, the Developer, and any successor thereto, agrees that it will not protest,
object or otherwise petition for a reduction to any real estate tax assessment attributable to the
Redevelopment Property in any manner that would reduce the assessed value of that part of the
Redevelopment Property during the term of the Agreement.

(b) Section 7.3(C) of the Agreement provides that the owner of the Redevelopment Property
shall use reasonable efforts to furnish or cause the tenants of any retail business to submit to the
City copies of the tenants' monthly and annual sales tax reports as filed with the Illinois
Department of Revenue. The terms hereof shall, to the extent possible, be incorporated in the
leases for such retail businesses.

3. This Memorandum and the Agreement represent the entire agreement between the parties
with respect to the subject matter herein and therein contained and all prior documents and
negotiations between the parties with respect thereto are hereby superseded and of no further
force or effect.

4. This Memorandum may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.

5. This Memorandum is executed solely for the purpose of providing notice of the existence
of the Agreement and the obligations of subsequent owners and/or tenants contained therein. In
the event of any inconsistency between the provisions hereof and the provisions of the
Agreement, the provisions of the Agreement shall govern and control.

6. This Memorandum shall remain in effect for the term of the Agreement which expires on
December 31, 2026, except for Section 5.1 of the Agreement, which shall be of no force and
effect upon December 31, 2022.

[Signature Page Follows]

602156.16
 IN WITNESS WHEREOF, the City and Developer have executed this Memorandum as
of the Effective Date.

CITY:

CITY OF ELMHURST,
an Illinois municipal corporation
ATTEST:

By:_______________________________ By:_______________________________
City Clerk Mayor

[CITY SEAL]

DEVELOPER:

100 NORTH ADDISON, L.L.C.,

a Delaware limited liability company
ATTEST:
By: Opus Development Company, L.L.C.,
A Delaware limited liability company,
its sole Member

By:_______________________________ By:_______________________________
Its: Its:

602156.16
 STEVEN M. MORLEY

~
. c':~,,~P .
CITY OF ELMHURST MAYOR
PATTY SPENCER
CITY CLERK
209 NORTH YORK STREET
: ,,,,. ,_ ELAINE LIBOVICZ
ELMHURST, ILLINOIS 60126-2759 CITY TREASURER
(630) 530-3000 JAMES A. GRABOWSKI
CITY MANAGER
~~ ~ www.elmhurst.org
~15\,

March 1, 2017

TO: Mayor Morley and Members of the City Council

RE: 100 N Addison LLC Redevelopment Agreement (OPUS)

The Development, Planning and Zoning Committee has met on several occasions, most
recently on February 27, 2017, to discuss the Redevelopment Agreement (RDA)
between the City of Elmhurst and 100 N. Addison LLC (OPUS) for the development of
the parcels located 100 N Addison Ave.

The project includes up to 165 unit luxury apartment complex, at least 7600 sq. ft. (and
up to 11,000 sq. ft.) of retail space, and improvement to the City owned property at
Larch and First into a public gathering space. The conditional use and associated zoning
variances for this project were approved by the City Council on May 16, 2016.

The Opus design emphasizes the elements and characteristics of Transit-Oriented

Development, which is a sound planning model in creating vibrant, livable communities.
It is the creation of compact, walkable communities centered around high quality train
systems that makes it possible to live a higher quality life without complete dependence
on a car for mobility and survival. As the City of Elmhurst continues to work on
increasing the vitality and vibrancy of the Central Business District (CBD), the Opus
project will enhance those efforts by adding population to the CBD. This development
includes walkability to the Metra Station, and easy access to shopping, dining, and
entertainment. The introduction of a public gathering space will add a pedestrian and
bicycle friendly gathering place to the CBD.

The RDA identifies and documents City of Elmhurst involvement in and business terms
of this redevelopment project. The City incentives for this project include assistance in
environmental remediation, building demolition, site preparation, construction of the
public gathering space, and streetscaping. The City is also responsible for underground
relocation of all applicable utilities. Lastly, the RDA addresses the opportunity for the
City to recapture incentive dollars based on final construction costs and profit upon a
project capital event, such as a sale or refinance. Any construction cost savings (based
on total construction cost and projected budget) will be shared 50/50 between the City
and Developer, and upon a capital event (sale or refinance of the project) the City will
receive a proportionate share of any internal rate of return over 13%.

After review, the Committee feels the Redevelopment Agreement appropriately

addresses the business terms of the partnership between the City of Elmhurst and 100
 Page 2

Addison LLC (OPUS) to construct a luxury apartment complex with enhanced public
amenities.

Therefore, it is the recommendation of the Development, Planning and Zoning

Committee that the City Council authorize the City Attorney to prepare the proper
documents for the approval of the Redevelopment Agreement with 100 Addison LLC for
the construction of up to 165 unit luxury apartment complex, which includes up to
11,000 sq. ft. of retail space and a public gathering space.

Respectfully submitted,
DEVELOPMENT PLANNING AND ZONING COMMITTEE

~ /V{_ -1~~. ~ /1~

Scott M. Levin, Chair

7rutLC- . ~I 0f/-~/<-F-
Mark A. Mulliner, Vice-Chair

Michael Honquest, Aid. 6th Ward