The URL can be used to link to this page

Home My WebLink About07-261 Resolution No. 07-261 RESOLUTION RATIFYING THE EXECUTION OF AN EASEMENT AND OPERATING AGREEMENT FOR THE FOUNTAIN SQUARE ON THE RIVER CONDOMINIUM ASSOCIATION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it hereby ratifies and approves the execution of an Easement and Operating Agreement for Fountain Square on the River Condominium Association, by Olufemi Folarin, City Manager, and Diane Robertson, City Clerk. s/Ed Schock Ed Schock, Mayor Presented: October 24, 2007 Adopted: October 24, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk FOUNTAIN SQUARE ON THE RIVER EASEMENT AND OPERATING AGREEMENT THIS EASEMENT AND OPERATING AG EEMENT (this "Agreement") is made and entered into as of this o�9 -h day of 0 C�1S 0--n , 2007 by and among FOUNTAIN SQUARE ON THE RIVER COMMERCIAL CONDOMINIUM ASSOCIATION, INC., an Illinois not-for-profit corporation (the "Commercial Property Owner"), FOUNTAIN SQUARE ON THE RIVER CONDOMINIUM ASSOCIATION, LTD., an Illinois not-for-profit corporation (the "Condominium Property Owner"), and THE CITY OF ELGIN, an Illinois home rule municipality (the"Public Parking Garage Property Owner"). The Commercial Property Owner, the Condominium Owner and the Public Parking Garage Property Owner sometimes are individually referred to as a"Party" and collectively referred to as the "Parties." RECITALS A. The terms used in these recitals if not otherwise defined in these recitals or in the immediately forgoing paragraph have the meaning set forth in Article 1 herein. B. The Commercial Property Owner is the record legal title holder of (i) that parcel of real estate situated in the City of Elgin, County of Kane, State of Illinois, legally described on Exhibit A attached hereto and made a part hereof (the "Commercial Parcel") and (ii) the ("Commercial hnprovements"). The person or persons, entity or entities (excluding occupants not possessing any fee simple ownership or tenants and the holders of any mortgage) whose estates or interests, individually or collectively, from time to time, own a fee simple interest in the Commercial Parcel are hereinafter collectively referred to as the "Commercial Property Owner." The current Commercial Property Owner is as set forth above. C. The Condominium Property Owner is the record legal title holder of(i) that parcel of real estate situated in the City of Elgin, County of Kane, State of Illinois, legally described on Exhibit B attached hereto and made a part hereof (the "Condominium Parcel") and (ii) the Condominium Improvements. The person or persons, entity or entities (excluding occupants not possessing any fee simple ownership or tenants and the holders of any mortgage) whose estates or interests, individually or collectively, from time to time, own a fee simple interest in the Condominium Parcel are hereinafter collectively referred to as the "Condominium Property Owner." The current Condominium Property Owner is as set forth above. D. The Public Parking Garage Property Owner is the record legal title holder of(i) that parcel of real estate situated in the City of Elgin, County of Kane, State of Illinois, legally described on Exhibit C attached hereto and made a part hereof(the "Public Parking Garage Parcel") and(ii) the Public Parking Garage Improvements. The person or persons, entity or entities (excluding occupants not possessing any fee simple ownership or tenants and the holders of any mortgage) whose estates or interests, individually or collectively, from time to time, own a fee simple interest in the Public Parking Garage Parcel are hereinafter collectively referred to as the "Public Parking Garage Property Owner." The current Public Parking Garage Property Owner is as set forth above. E. The Commercial Parcel, the Condominium Parcel, and the Public Parking Garage Parcel together comprise the Project Site which consists of real estate in the City of Elgin, County of Kane, State of Illinois, bounded by Chicago Street to the north, Riverside Drive to the west and W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.doc South Grove Avenue to the east. The Project Site is currently being improved with the Improvements. F. An ordinance has been adopted by the City of Elgin reclassifying the Project Site from CC1 Center City District to PCC Planned Center City District so as to allow for the Improvements within the Project Site. G. The Developer will construct within the Project Site including a development consisting of two (2) three and one-half story mid-rise buildings and two (2) eight-story buildings all of which will be located at the southwest corner of South Grove Avenue and Chicago Street in the City of Elgin. The Improvements will include approximately two-hundred eleven (211) residential units, consisting of approximately one-hundred ninety-seven (197) condominiums, approximately seven (7) duplex and triplex units, and approximately seven townhomes. The units will range in size from approximately six hundred fifty-two square feet for three of the one-bedroom units to approximately seven hundred square feet for the remainder of the one bedroom units to two-thousand five-hundred square feet for a three bedroom unit. A lower level and street parking garage, containing private and public parking spaces for a total of approximately two-hundred Ninety-Eight (298) spaces, will be constructed. Additionally, the Developer will construct approximately ten- thousand three-hundred square feet of commercial space (with the possible addition of six-thousand one-hundred seventy-five square feet of commercial space) available for retail and restaurant uses. The Commercial Improvements, the Condominium Improvements and the Public Parking Garage Improvements to be constructed on the Project Site are further detailed in plans and specifications attached hereto respectively as Exhibits A through G. This Agreement (and its accompanying exhibits) are designed to grant easements and govern the interplay between the Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner pertaining only to Phase I of the Project. Phase I of the Project Site comprises one mid-rise building with 93 residential condominium units. Phase I will also comprise 114 parking units, 6 of which will be allocated for motorcycle use. In addition, 25 parking spaces will be conveyed to the Public Parking Garage Property Owner. Following the completion of Phase I, the Developer intends to modify and record an amendment to this Agreement and the Declaration of Condominium thereby adding additional property, improvements and facilities to the Commercial Parcel, the Condominium Parcel and the Public Parking Garage Parcel and to add additional residential units, parking units and common areas as more fully detailed herein and within the Declaration of Condominium of the Condominium Property Owner. H. The drawing attached hereto and made a part hereof as Exhibit G illustrates generally the site plan of the Property overall and the relative locations of the Commercial Parcel, the Condominium Parcel and the Public Parking Garage Parcel upon completion of both Phase I and Phase II of the Project, (the "Site Plan"). I. Neither the commercial improvements nor the condominium improvements nor the public parking garage improvements are or will be structurally or functionally independent of each other and each will depend upon one or more of the others, to some extent, for structural support, enclosure, ingress and egress, utility services, and certain other facilities and components necessary for the operation and use of the Commercial Improvements, the Condominium Improvements and the Public Parking Garage Improvements. 2 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v 10-Clean.docean.doc J. The Parties hereto desire by this Agreement to provide for the efficient operation of each respective interest in the property, to assure the harmonious relationship among the Owners and each such respective portion, estate or interest in the Property and to protect the respective values of each such portion, estate and interest in the Property by creating certain easements, covenants, restrictions against the Condominium Property, the Commercial Property, and the Public Parking Garage Property which said covenants, conditions and restrictions will inure to the benefit and Owners of all the Property as a whole. K. This Agreement has been submitted to the Corporate Authorities for consideration and review, and the Corporate Authorities have taken all actions required to be taken prior to the execution of this Agreement in order to make this Agreement binding upon any owner having an interest in the Property. The approval of this Agreement by the Corporate Authorities constitute the exercise of the statutory and home rule authority vested in the Public Parking Garage Property Owner by the Constitution and laws of the State of Illinois. NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements of the Parties hereto, it is hereby agreed as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. Whenever used in this Agreement, the following tetiils shall have the respective meanings specified below: AFFECTED OWNERS - As defined in Section 10.5. AGREEMENT - This Easement and Operating Agreement, together with all Exhibits, amendments and supplements. ALTERATIONS - As defined in Section 15.1(A). ALTERING OWNER- As defined in Section 15.1(A). ARBITRABLE DISPUTE - Any dispute arising under this Agreement which is expressly made subject to arbitration under the provisions of Article 12 or designated as an Arbitrable Dispute. ARCHITECT - As defined in Section 19.1. ASSESSOR- The Assessor of Kane County, Illinois. AWARD - As defined in Section 14.1. COMMERCIAL IMPROVEMENTS - As defined in Exhibit D. COMMERCIAL IMPROVEMENTS PLANS — As depicted on the Plans incorporated herein and within the Commercial Parcel. 3 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc COMMERCIAL PARCEL - As defined in Exhibit A. COMMERCIAL PROPERTY - A collective reference to the Commercial Parcel and the Commercial Improvements. COMMERCIAL PROPERTY OWNER - As defined in the introductory paragraph to this Agreement. CONDOMINIUM ACT - The Condominium Property Act, 765 ILCS 605/1 et. seq., or any successor statute of the State of Illinois as amended and in effect from time to time. CONDOMINIUM ASSOCIATION - The condominium association, whether or not incorporated, formed for the purpose of administering the Condominium Property pursuant to the Condominium Act. CONDOMINIUM DECLARATION - The instrument by which all or any portion of the Condominium Property is submitted to the provisions of the Condominium Act, as such instrument is amended form time to time. CONDOMINIUM IMPROVEMENTS - As defined in Exhibit E. CONDOMINIUM IMPROVEMENTS PLANS — As depicted on the Plans incorporated herein and within the Condominium Parcel. CONDOMINIUM PARCEL - As defined in Exhibit B and as legally described in Exhibit B. CONDOMINIUM PROPERTY - A collective reference to the Condominium Parcel and the Condominium Improvements. CONDOMINIUM PROPERTY OWNER - As defined in the introductory paragraph to this Agreement. CONDOMINIUM UNIT - A portion of the Condominium Property described in the Condominium Declaration as a "unit." CONDOMINIUM UNIT OWNER - The person or persons or entity or entities (excluding occupants or tenants or holders of any mortgage) whose estates or interests individually or collectively, aggregate, form time to time, fee simple ownership of a Condominium Unit Ownership. CONDOMINIUM UNIT OWNERSHIP - A collective reference to a Condominium Unit and its undivided percentage interest in the common elements of the Condominium Property, as more fully described in the Condominium Declaration. CONSTRUCTION DESIGNEES - Collectively, an Owner's contractors, construction consultants and representatives, and their respective agents, employees and sub-contractors. CONSTRUCTION OBJECTIVES - As defined in Section 23.1. 4 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doe CONSUMER PRICE INDEX - The Consumer Price Index U.S. City Averages for Urban Wage Earners and Clerical Workers, All Items (Base index Year 1982-84=100)published from time to time by the United States Department of Labor, Bureau of Labor Statistics. If such index is changed so that the base year of such index changes, the index shall be converted in accordance with the conversion factor published by the United States Department of Labor, bureau of Labor Statistics. If the manner in which the Consumer Price Index is determined by the Bureau of Labor Statistics shall be substantially revised, other than a change in the base index year, an adjustment shall be made by the Owners in such revised index which would produce results equivalent, as nearly as possible, to those which would have been obtained in such Consumer Price Index had not been so revised. If the Consumer Price Index becomes unavailable to the public because publication is discontinued, or otherwise, or if equivalent data is not readily available to enable the Owners to make the adjustment referred to in the preceding sentence, then the Owners will substitute therefor a comparable index based upon changes in the cost of living or purchasing power of the consumer dollar published by any other governmental agency or, if no such index is available, then a comparable index published by a university, a major bank or other financial institution or comparable and recognized financial publication. CORPORATE AUTHORITIES - The City Council of the City of Elgin, Illinois, or any successor board or body performing the functions performed by such President and Board as of the date of this Agreement. CREDITOR OWNER - An Owner (A) to whom payment of money or other duty or obligation is owned under this Agreement by another Owner who has failed to make such payment or to perform such duty or obligation as and when required under this Agreement, or (B) who has exercised any self-help remedy provided for in this Agreement. DEFAULTING OWNER - An Owner who has failed to perform any of its duties or obligations as and when required under the Agreement or to make payment of money owed under this Agreement to another Owner. DEPOSITARY- The person or entity from time to time acting pursuant to Articles 17-18. EASEMENTS - A collective reference to any and all easements provided for, declared, granted, reserved or created pursuant to the terms and provisions of this Agreement (and including easements provided for in this Agreement which are reserved or granted by deed). EMERGENCY SITUATION - A situation impairing or imminently likely to impair structural support of any Improvements or causing or imminently likely to cause bodily injury to persons or substantial physical damage to any Improvements or any property in, on, under, within, upon or about the Property or substantial economic loss to an Owner. The duration of an Emergency Situation shall be deemed to include the time reasonably necessary to remedy the Emergency Situation. ESTOPPEL CERTIFICATE - As defined in Section 16.1 FACILITIES - Facilities shall include, but are not limited to, any annuciators, antennae, boxes, brackets, cabinets, cables, coils, computers, conduits, controls, control center, cooling towers, 5 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc couplers, devices, ducts, equipment (including, without limitation, heating, ventilating, air conditioning and plumbing equipment), fans, fixtures, generators, hangers, heat traces, indicators, junctions, lines, machines, meters, motors, outlets, panels, pipes, pumps, radiators, risers, satellite dishes, starters, switches, switchboards, systems, tanks, transformers, valves, wiring, and the like used in providing services from time to time in any part of the Property, including, without limitation, air conditioning, alarm, antenna, circulation, cleaning, communication, cooling, electric, elevator, exhaust, heating, internet, lightning protection, natural gas, plumbing, radio, recording, sanitary, security, sensing, telephone, televisions, transportation, ventilation and water service, and any replacements of such items. FIRST MORTGAGE - As defined in Section 21.12(A). IMPACTED OWNER- As defined in Section 7.2. IMPOSITIONS - All taxes and other governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against the Property, the Project Site or the Improvements, or any part thereof or any interest therein, including, without limiting the generality of the foregoing, all general and special real estate taxes and assessments (including, but not limited to, special assessments and special service area taxes) or taxes assessed specifically in whole or in part in substitution of general real estate taxes or assessments, any taxes levied or a charge upon the rents, revenues or receipts therefrom which may be secured by a lien on the interest of an Owner therein, all ad valorem taxes lawfully assessed upon the Improvements, the Project Site, the Improvements or any interest therein, all utility and other charges incurred by an Owner in the operation, maintenance, use, occupancy and upkeep of the Property, the Project Site, the Improvements, or any interest therein, and any other changes incurred by an Owner in the operation, maintenance, use, occupancy and upkeep of the Property, the Project Site, the Improvements or any interest therein, and any other charges lawfully made for improvements that may be secured by a lien on any portion of the Property. IMPROVEMENTS - A collective reference to the Commercial Improvements, the Condominium Improvements and the Public Parking Garage Improvements and any other improvements located on the Project Site. INDEMNIFYING OWNER- As defined in Section 7.1. INDEMNITEE - As defined in Section 7.1. LAW OR LAWS - All laws, statutes, codes, acts, ordinances (including, without limitation, the PUD), orders, judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions and requirements of all governments, departments, commissions, boards, courts, authorities, agencies, officials and officers, foreseen and unforeseen, ordinary or extraordinary, which now or at any time hereafter may be applicable to the Property, the Project Site, the Improvements, or any part thereof LIENING OWNER- As defined in Section 7.2 LOADING AREA - That portion of the Commercial Property consisting of a driveway area and related improvements to be used for the purpose of the temporary parking of vehicles and the delivery and dispatch of materials, supplies, goods, refuse and the like to and from the Commercial 6 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Improvements and the Condominium Improvements. MAINTENANCE - Operation, maintenance, repair, reconditioning, refurbishing, reconfiguration, inspection, testing, monitoring, cleaning, painting, installation, reconstruction, restoration and replacement when necessary or desirable of the Improvements of Facilities and which includes the right of access to and the right to remove from the Improvements portions of such Facilities for any of these purposes, subject, however, to any limitations set forth elsewhere in this Agreement. As used in Article 6 and Exhibits relating to Article 6, Maintenance excludes obligations for which another Owner is responsible under Articles 5, 10 or 14, and Maintenance excludes providing electrical energy or water unless otherwise expressly provided. MECHANICS LIEN ACT - The Mechanics Lien Act, 770 ILCS 60/0.01, et seq., or any successor statute of the State of Illinois as amended or in effect from time to time. MORTGAGE -As defined in Section 21.12(A). MORTGAGEE - As defined in Section 21.12(A). 2007 EQUIVALENT DOLLARS - The equivalent purchasing power at any time of the value of the same number or U.S. Dollars in calendar year 2007. The 2007 Equivalent Dollars of any amount shall be determined by multiplying such amount by one (1) plus a fraction (but not less than zero) (expressed as a percentage), the numerator of which is the difference obtained by subtracting (x) the Consumer Price Index for January, 2007 from (y) the monthly Consumer Price Index last published prior to the date of such determination, and the denominator of which is the Consumer Price Index for January, 1997. OBJECTING PARTY - As defined in Section 15.1(C). OWNER(S) - The Commercial Property Owner, the Condominium Property Owner, the Public Parking Garage Property Owner, or any of them. OWNER PROPERTY AREA RATIO - The ratio from time to time of the total gross square foot area of the Improvements owned by an Owner to the total gross square foot area of the Improvements, expressed as a percentage, to be used for the purposes set forth in section 5.3.The Owners agree that as of the date hereof and until such time, if at all, that the Owners mutually agree to change such ratios in accordance with the immediately following sentence, the Owner Property Area Ratios shall be: (i) for the Condominium Property, 83.22%; (ii) for the Commercial Property, 3.63%; and (iii) for the Public Parking Garage Property, 13.15%. From time to time at the request of any Owner, the Owners shall confirm in writing, in recordable form, the Owner Property Area Ratios then in effect. PARCEL(S) - The Commercial Parcel, the Condominium Parcel, the Public Parking Garage Parcel, or any of them. PERMITTEES - The Owners, all Persons entitled by lease, license or other agreement to use or occupy space within the Property, and their respective beneficiaries, officers, directors, employees, agents, partners, members, managers, shareholders, contractors, invitees, guests and licensees. 7 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc PERS ON - Individuals, partnerships, associations, corporations, limited liability companies, trusts, land trusts, and any other form of business or not for profit organization, or one of more of them. PLANS - A collective reference to the Commercial Improvements Plans, the Condominium Improvements Plans and the Public Parking Garage Improvements Plans as depicted within Exhibit H attached hereto. The Plans incorporated into this Agreement represent "preliminary building plans" and may not be fully representative of the actual Project Site as fully constructed and improved in an "as built" condition as of the recording of this document. To the extent the "as built" condition of the Project Site as of the recording of this document differs in any respect from the Plans incorporated herein, the easements, rights and obligations set forth herein shall be adjusted so as to conform with the "as built" condition of the Project. PLAT OF CONDOMINIUM - The plat of condominium delineating the boundaries of the Parcels, including the various elevations of the horizontal and vertical planes separating the Parcels, recorded with the Recorder on Deeds on , 2007. PRIOR LIEN -As defined in Section 11.1. PROJECT SITE - A collective reference to the Commercial Parcel, the Condominium Parcel and the Public Parking Garage Parcel. PROPERTY - A collective reference to the Commercial Property, the Condominium Property and the Public Parking Garage Property. PUBLIC PARKING GARAGE IMPROVEMENTS - As defined in Exhibit F. PUBLIC PARKING GARAGE IMPROVEMENTS PLANS - As depicted on the Plans incorporated herein and within the Public Parking Garage Parcel.. PUBLIC PARKING GARAGE PARCEL - As defined in Recital D and as legally described in Exhibit C. The Public Parking Garage Parcel is also referred to as City Parking Unit P-1 (for Phase 1) and City Parking Unit P-2 (for the future Phase 2)(collectively the "City Parking Units") in the Condominium Declaration. PUBLIC PARKING GARAGE PROPERTY - A collective reference to the Public Parking Garage Parcel and the Public Parking Garage Improvements. PUBLIC PARKING GARAGE PROPERTY OWNER - As defined in the introductory paragraph of this Agreement. RECORDER- The Recorder of Deeds of Kane County, Illinois. STRUCTURAL SUPPORTS - All construction elements (including, without limitation, structural members, footings or foundations, slabs, caissons, columns, beams, braces and trusses) which are load bearing or which are necessary for the structural integrity of any portion of the Improvements. UTILITIES - Water, electricity, sewer, gas, steam, telephone or cable television service or 8 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc other services or materials commonly known as utilities. UTILITY COMPANY - Any Person, including a governmental or quasi-governmental body, furnishing water, electricity, sewer, gas, steam, telephone, communication, internet or cable or satellite television service or other services or materials generally known as utilities. CITY ZONING ORDINANCE - That certain ordinance of the City of Elgin known as the "The 1992 Comprehensive Amendment of the Zoning Ordinance of the City of Elgin" which is Chapter 19 of the Municipal Code of the City of Elgin, or any successor ordinance as amended and in effect from time to time. WORK- All of the work necessary to initially construct the Improvements. 1.2 Construing Various Words and Phrases. Wherever it is provided in this agreement that a Party "may" perform an act or do anything, it shall be construed that Party "may, but shall not be obligated to," so perform or so do. The following words and phrases shall be construed as follows: (i) "at any time" shall be construed as "at any time for from time to time;" (ii) "any" shall be construed as "any and all;" (iii) "including" shall be construed as "including, but not limited to;" (iv) "will" and "shall" shall each be construed as mandatory; and (v) the word "in" with respect to an Easement granted or reserved "in" a particular Parcel shall mean "in," "to," "over," "within," "through," "upon," "across," "under," and any one or more of the foregoing. Except as otherwise specifically indicated, all references to Article or Section numbers or letters shall refer to Articles and Sections of this Agreement and all references to Exhibits or Appendices shall refer to the Exhibits and Appendices attached to this Agreement. The words "herein," "hereof, "hereunder, " "hereinafter" and words of similar import shall refer to this Agreement as a whole and not to any particular Section or subsection. Forms of words in the singular, plural, masculine, feminine or neuter shall be construed to include the other forms as context may require. Captions and the index are used in this Agreement for convenience only and shall not be used to construe the meaning of any part of this Agreement. ARTICLE 2 EASEMENTS APPURTENANT TO THE CONDOMINIUM PARCEL 2.1 In General. For the purposes of this Article 2, the following shall apply: (A) The grantor of each of the Easements described in this Article 2 shall be the Owner named in each such grant, and the grants of Easements in this Article 2 shall bind and be enforceable against such named Owner and its successors and assigns. (B) The Condominium Property Owner is the grantee of the Easements described in this Article 2. The Easements shall benefit the Condominium Property Owner and its successors, assigns and Pennittees. (C) The grant of an Easement by an Owner shall bind and burden such Owner's portion of the Property, which shall, for the purpose of this Article 2, be deemed to be the servient tenement. Where only a portion of such Owner's portion of the Property is bound and burdened by the Easement, only that portion shall be deemed to be the servient tenement. 9 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (D) The grant of an Easement to the Condominium Property Owner is appurtenant to and shall benefit the Condominium Property, which shall, for the purpose of this Article 2, be deemed to be the dominant tenement. Where only a portion of the Condominium Property is so benefitted, only that portion shall be deemed to be the dominant estate. No property other than the Condominium Property as it may exist from time to time in accordance with the terms of this Agreement shall constitute part of the dominant tenement. (E) Unless otherwise expressly provided in this Agreement, all Easements granted to the Condominium Property Owner are irrevocable and perpetual in nature. (F) In exercising an Easement granted under this Article 2,the Condominium Property Owner shall minimize the impact of its exercise on the other Owners, taking into consideration the economic impact of any disruption on the other Owners. (G) Any Owner which is a grantor under this Article 2 may, (1)in connection with the Maintenance of its portion of the Improvements, or(2) in an Emergency Situation temporarily prevent, close off or restrict the flow of pedestrian or vehicular ingress, egress or use in, over, on, across and through any of the Easements, but only to the minimal extent and for the shortest time period reasonably necessary under the circumstances in order to minimize the effect on the user of such Easement and only if necessary under applicable Law to prevent a dedication of, or an accruing of rights by, the public in and to the use of any of its portion of the Property. Each Owner which is a grantor under this Article 2 may, from time to time, impose (1)reasonable limitations on any other Owner's or any Pennittee's use of an Easement providing for ingress and egress in, over, on, across and through such Owner's portion of the Property described in this Article 2, including, without limitation, establishing paths of ingress and egress and hours of the day or days of the week during which any other Owner or Permittee may use such Easement and (2) reasonable security controls consistent with the operation by such Owner of such Owner's portion of the Property and of its business on such Owner's portion of the Property and any security system for the Property or any portion of the Property. In imposing limitations or controls, an Owner shall take into consideration the reasonable needs and requirements of the user of the Easement as well as the imposing Owner's own needs and requirements. (H) Any disputes concerning the existence, location, nature and scope of any of the Easements granted under this Article 2 shall constitute an Arbitrable Dispute. (I) Any exclusive Easement granted under this Agreement shall in all events be subject to the concurrent use by the Owner of the servient estate as and only to the extent reasonably necessary for Maintenance of the property of the Owner of the servient estate and for other uses that do not unreasonably interfere with the exercise of the Easement granted. 2.2 Ingress and Egress. (A) The Commercial Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement for ingress and egress only for Persons, material and equipment in, over, on, across and through such portions of the Commercial Property as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of (a) the Condominium Improvements, (b) any Facilities located in the Commercial Property which provide or are necessary to provide the Condominium Improvements 10 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc with any utilities or other services necessary to the operation of the Condominium Improvements and (c) any other areas in the Commercial Property as to which an Easement for use or Maintenance has been granted to the Condominium Property Owner. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement for ingress and egress only for Persons, material and equipment in, over, on, across and through such portions of the Public Parking Garage Property as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of(a) the Condominium Improvements, (b) any Facilities located in the Public Parking Garage Property which provide or are necessary to provide the Condominium Improvements with any utilities or other services necessary to the operation of the Condominium Improvements and (c) any other areas in the Public Parking Garage Property as to which an Easement for use or Maintenance has been granted to the Condominium Property Owner. 2.3 Structural Support. (A) The Commercial Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Commercial Property for the support of (a) the Condominium Improvements and (b) any Facilities or areas located in the Commercial Property with respect to which the Condominium Property Owner is granted an Easement. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Public Parking Garage Property for the support of (a) the Condominium Improvements and (b) any Facilities or areas located in the Public Parking Garage Property with respect to which the Condominium Property Owner is granted an Easement. 2.4 Use of Facilities. (A) The Commercial Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement (a) for the use for their intended purposes of all Facilities located in the Commercial Property and connected to Facilities located in the Condominium Property which provide or are necessary to provide the Condominium Improvements with any utilities or other services necessary to the operation of the Condominium Improvements and (b) permitting the exercise of the rights granted to the Condominium Property Owner pursuant to Section 6.5(A)during any period in which such rights may be exercised. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement (a) for the use for their intended purposes of all Facilities located in the Public Parking Garage Property and connected to Facilities located in the Condominium Property which provide or are necessary to provide the Condominium Improvements with any utilities or other services necessary to the operation of the Condominium Improvements and(b)permitting the exercise of the rights granted to the Condominium Property Owner pursuant to Section 6.5(A) during any period in which such rights may be exercised. 2.5 Intentionally Omitted. 11 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 2.6 Common Walls, Ceilings and Floors. (A) The Commercial Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Commercial Parcel and the Condominium Parcel which also serve as walls, ceilings or floors for the Condominium Improvements. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Public Parking Garage Parcel and the Condominium Parcel which also serve as walls, ceilings or floors for the Condominium Improvements. 2.7 Utilities (A) The Commercial Property Owner hereby grants to the Condominium Property Owner (and if requested by the applicable Utility Company, the Commercial Property Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain,repair,and replace electrical conduits,wires and equipment,water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Commercial Property within the areas therefore as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown in the Plans in order to provide utility service to the Condominium Property, the Commercial Property Owner agrees to grant such additional or relocated utility easements (at such location mutually agreed to by the Commercial Property Owner and the Condominium Property Owner), provided (i) such easements do not unreasonably interfere with the reasonable use and enjoyment of the Commercial Property for the purposes for which the Commercial Improvements were initially designed and constructed, (ii) the Commercial Property Owner shall not be required to grant any easement which would convert otherwise available rentable space to such use, unless such relocation or additional easement is required by law and no other space is reasonably available, and (iii) the Condominium Property Owner shall compensate the Owner of each portion of the Commercial Improvements which is affected for any damages, costs or expenses incurred by such Owner, including lost revenues in the case of a conversion of otherwise available rentable space or damages for breach of any lease, license or other agreement. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner (and if requested by the applicable Utility Company, the Public Parking Garage Property Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain, repair, and replace electrical conduits, wires and equipment, water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Public Parking Garage Property within the areas therefor as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown in the Plans in order to provide utility service to the Condominium Property, the Public Parking Garage Property Owner agrees to grant such additional or. relocated utility easements (at such location mutually agreed to by the Public Parking Garage Property Owner and the Condominium Property Owner),provided(i)such easements do not unreasonably interfere with the reasonable use and enjoyment of the Public Parking Garage Property for the purposes for which the Public Parking Garage Improvements were initially 12 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc designed and constructed, (ii) the Public Parking Garage Property Owner shall not be required to grant any easement which would convert otherwise available parking areas to such use, unless such relocation or additional easement is required by law and no other space is reasonably available, and (iii) the Condominium Property Owner shall compensate the Public Parking Garage Property Owner for any damages, costs or expenses incurred by the Public Parking Garage Property Owner, including damages for breach of any lease, license or other agreement. 2.8 Deliveries. The Commercial Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement for the use of a Loading Area, if any, located in the Commercial Parcel and as necessary or desirable for the efficient delivery or dispatch of materials, supplies, goods, refuse and the like to and from the Condominium Improvements, and for any other similar purposes 'for which loading areas are customarily used in a residential building, subject to the limitations on use set forth in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Loading Area may not be used for move-ins or move-outs by Condominium Unit Owners or occupants of Condominium Units. The Condominium Property Owner acknowledges and agrees that the use of the Loading Area by the Condominium Property Owner and its Peiuiittees shall be subject to reasonable rules and regulations promulgated by the Commercial Property Owner from time to time concerning the use of the Loading Area during reasonable hours and the coordination of the use of the Loading Area by the Condominium Property Owner and its Permittees with the use of the Loading Area by the Commercial Property Owner and its Permittees. 2.9 Encroachments. (A) The Commercial Property Owner hereby grants to the Condominium Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Condominium Improvements not originally designed to be located within the Commercial Parcel encroaches or shall hereafter encroach upon any part of the Commercial Parcel. No such encroachment shall be placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroaching portion of the Condominium Improvements continues to exist. (B) The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Condominium Improvements not originally designed to be located within the Public Parking Garage Parcel encroaches or shall hereafter encroach upon any part of the Public Parking Garage Parcel. No such encroachment shall be placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroaching portion of the Condominium Improvements. 2.10 Intentionally Omitted. 2.11 Public Parking Garage Access. The Public Parking Garage Property Owner hereby grants to the Condominium Property Owner a non-exclusive easement through any stairs, ramps, sidewalks and drive aisles within the Public Parking Garage Parcel for the sole purpose of allow pedestrian and vehicular access to and from any parking spaces and parking areas located within the Condominium Parcel. 13 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc ARTICLE 3 EASEMENTS APPURTENANT TO COMMERCIAL PARCEL 3.1 In General. For the purposes of this Article 3, the following shall apply: (A) The grantor of each of the Easements described in this Article 3 shall be the Owner named in each such grant, and the grants of Easements in this Article 3 shall bind and be enforceable against such named Owner and its successors and assigns. (B) The Commercial Property Owner is the grantee of the Easements described in this Article 3. The Easements shall benefit the Commercial Property Owner and its successors, assigns and Permittees. (C) The grant of an Easement by an Owner shall bind and burden such Owner's portion of the Property, which shall, for the purpose of this Article 3, be deemed to be the servient tenement. Where only a portion of such Owner's portion of the Property is bound and burdened by the Easement, only that portion shall grant of an Easement be deemed to be the servient tenement. (D) Property, which shall, for the purpose of this Article 3 with respect to such Easement, be deemed to be the dominant tenement. Where only a portion of the Commercial Property is so benefitted, only that portion shall be deemed to be the dominant estate. No property other than the Commercial Property as it may exist from time to time in accordance with the terms of this Agreement shall constitute part of the dominant tenement. (E) Unless otherwise expressly provided in this Agreement, all Easements granted to the Commercial Property Owner are irrevocable and perpetual in nature. (F) In exercising an Easement granted under this Article 3, the Commercial Property Owner shall minimize the impact of its exercise on the other Owners, taking into consideration the economic impact of any disruption on the other Owners. (G) Any Owner which is a grantor under this Article 3 may(1)in connection with the Maintenance of its portion of the Improvements,or(2)in an Emergency Situation,temporarily prevent,close off or restrict the flow of pedestrian or vehicular ingress, egress or use in, over, on, across and through any of the Easements, but only to the minimal extent and for the shortest time period reasonably necessary under the circumstances in order to minimize the effect on the user of such Easement. Each Owner which is a grantor under this Article 3 may, from time to time, impose (1)reasonable limitations on any other Owner's or any Pennittee's use of an Easement providing for ingress and egress in, over, on, across and through such Owner's portion of the Property described in this Article 3, including,without limitation, establishing paths of ingress and egress and hours of the day or days of the week during which any other Owner or Permittee may use such Easement and(2)reasonable security controls consistent with the operation by such Owner of such Owner's portion of the Property and of its business on such Owner's portion of the Property and any security system for the Property or any portion of the Property. In imposing limitations or controls, an Owner shall take into consideration the reasonable needs and requirements of the user of the Easement as well as the imposing Owner's own needs and requirements. 14 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (H) Any disputes concerning the existence, location, nature and scope of any of the Easements granted or reserved under this Article 3 shall constitute Arbitrable Disputes. (I) Any exclusive Easement granted under this Agreement shall in all events be subject to the concurrent use by the Owner of the servient estate as and to the extent reasonably necessary for Maintenance of the property of the Owner of the servient estate and for other uses which do not unreasonably interfere with the exercise of the Easement granted. 3.2 Ingress and Egress. (A) The Condominium Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement for ingress and egress only for Persons, materials and equipment in, over, on, across and through such portions of the Condominium Property (except for the Condominium Units) as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of(a) the Commercial Improvements, (b) any Facilities located in the Condominium Property which provide or are necessary to provide the Commercial Improvements with any utilities or other services necessary to the operation of the Commercial Improvements and (c) any other areas in the Condominium Property as to which an Easement for use or Maintenance has been granted to the Commercial Property Owner. (B) The Public Parking Garage Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement for ingress and egress only for Persons,materials and equipment in, over, on, across and through such portions of the Public Parking Garage Property as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of (a) the Commercial Improvements, (b) any Facilities located in the Public Parking Garage Property which provide or are necessary to provide the Commercial Improvements with any utilities or other services necessary to the operation of the Commercial Improvements and (c) any other areas in the Public Parking Garage Property as to which an Easement for use or Maintenance has been granted to the Commercial Property Owner. 3.3 Structural Support (A) The Condominium Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Condominium Property for the support of (a) the Commercial Property and (b) any Facilities or areas located in the Condominium Property with respect to which the Commercial Property Owner is granted an Easement. (B) The Public Parking Garage Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Public Parking Garage Property for the support of (a) the Commercial Property and (b) any Facilities or areas located in the Public Parking Garage Property with respect to which the Commercial Property Owner is granted an Easement. 15 W:\WORK\34060WIASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 3.4 Use of Facilities (A) The Condominium Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement (a) for the use for their intended purposes of all Facilities located in the Condominium Property and connected to Facilities located in the Commercial Property which provide or are necessary to provide the Commercial Property with any utilities or other services necessary to the operation of the Commercial Property; (b) permitting the exercise of the rights granted to the Commercial Property Owner pursuant to Section 6.6(A) hereof during any period in which such rights may be exercised and (c) to traverse the Condominium Property only to extent necessary to access the trash and debris compactor and refuse container located within the Condominium Property and serving the Commercial Property. (B) The Public Parking Garage Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement (a) for the use for their intended purposes of all Facilities located in the Public Parking Garage Property and connected to Facilities located in the Commercial Property which provide or are necessary to provide the Commercial Property with any utilities or other services necessary to the operation of the Commercial Property and (b) permitting the exercise of the rights granted to the Commercial Property Owner pursuant to Section 6.7(A) hereof during any period in which such rights may be exercised. 3.5 Intentionally Omitted. 3.6 Common Walls, Ceilings & Floors (A) The Condominium Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Commercial Parcel and the Condominium Parcel which also serve as walls, ceilings or floors for the Commercial Improvements. (B) The Public Parking Garage Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Commercial Parcel and the Public Parking Garage Parcel which also serve as walls, ceilings or floors for the Commercial Improvements. 3.7 Utilities (A) The Condominium Property Owner hereby grants to the Commercial Property Owner and if requested by the applicable Utility Company, the Condominium Property Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain, repair and replace electrical conduits, wires and equipment, water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Condominium Property within the areas therefore as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown "in the Plans in order to provide utility service to the Commercial Property, then, subject to the prior approval of the board of directors of the Condominium Association, which approval shall not be unreasonably withheld, conditioned or 16 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc delayed, the Condominium Property Owner agrees to grant such additional or relocated utility easements (at such location mutually agreed to by the Condominium Property Owner and the Commercial Property Owner) provided (i) such easements do not unreasonably interfere with the reasonable use and enjoyment of the Condominium Property for the purposes for which the Condominium Improvements were initially designed and constructed, (ii) the Condominium Property Owner shall not be required to grant any easement through any Condominium Unit, and (iii) the Commercial Property Owner shall compensate the Condominium Property Owner for any damages, costs and expenses incurred by the Condominium Property Owner. (B) The Public Parking Garage Property owner hereby grants to the Commercial Property Owner (and if requested by the applicable Utility Company, the Public Parking Garage Property Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain, repair and replace electrical conduits, wires and equipment, water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Public Parking Garage Property within the areas therefore as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown in the Plans in order to provide utility service to the Commercial Property, the Public Parking Garage Property Owner agrees to grant such additional or relocated utility easements (at such location mutually agreed to by the Public Parking Garage Property Owner and the Commercial Property Owner) provided (i) such easements do not unreasonably interfere with the reasonable use and enjoyment of the Public Parking Garage Property for the purposes for which the Public Parking Garage Improvements were initially designed and constructed, (ii) the Public Parking Garage Property Owner shall not be required to grant any easement which would convert otherwise available parking areas to such use, unless such relocation or additional easement is required by law and no other space is reasonably available, and (iii) the Commercial Property Owner shall, prior to the conversion of such otherwise available parking areas, compensate the Public Parking Garage Property Owner for any damages, costs or expenses incurred by the Public Parking Garage Property Owner, including, but not limited to, the value of the converted/lost parking spaces, lost rental income in the case of a conversion of otherwise available parking areas or damages for breach of any lease, license or other agreement. 3.8 Future Facilities. The Condominium Property Owner hereby grants to the Commercial Property Owner a non-exclusive easement for the use and Maintenance of future Facilities connecting Facilities or areas in the Commercial Property to any antennae, satellite dishes or other communications devices or equipment on the roof of the Condominium Improvements which are permitted under Section 3.11,which future Facilities may extend through space designated on the Commercial Improvements Plans and Condominium Improvements Plans for such future use. 3.9 Encroachments. (A) The Condominium Property Owner hereby grants to the Commercial Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Commercial Improvements not originally designed to be located within the Condominium Parcel encroaches or shall hereafter encroach upon any of the Condominium Parcel. No such encroachment shall be placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroachment portion of the Commercial Improvements continues to exist. - 17 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc (B) The Public Parking Garage Property Owner hereby grants to the Commercial Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Commercial Improvements not originally designed to be located within the Public Parking Garage Parcel encroaches or shall hereafter encroach upon any of the Public Parking Garage Parcel. No such encroachment shall be placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroachment portion of the Commercial Improvements continues to exist. ARTICLE 4 EASEMENTS APPURTENANT TO PUBLIC PARKING GARAGE PARCEL 4.1 In General. For the purposes of this Article 4, the following shall apply: (A) The grantor of each of the Easements described in this Article 4 shall be the Owner named in each such grant, and the grants of Easements in this Article 4 shall bind and be enforceable against such named Owner and its successors and assigns. (B) The Public Parking Garage Property Owner is the grantee of the Easements described in this Article 4. The Easements shall benefit the Public Parking Garage Property Owner and its successors, assigns and Permittees. (C) The grant of an Easement by an Owner shall bind and burden such Owner's portion of the Property, which shall, for the purpose of this Article 4, be deemed to be the servient tenement. Where only a portion of such Owner's portion of the Property is bound and burdened by the Easement, only that portion shall be deemed to be the servient tenement. (D) The grant of an Easement to the Public Parking Garage Property Owner is appurtenant to and shall benefit the Public Parking Garage Property, which shall, for the purpose of this Article 4, be deemed to be the dominant tenement. Where only a portion of the Public Parking Garage Property is so benefitted,only that portion shall be deemed to be the dominant tenement.No property other than the Public Parking Garage Property as it may exist from time to time in accordance with the terms of this Agreement shall constitute part of the dominant tenement. (E) Unless otherwise expressly provided in this Agreement, all Easements granted to the Public Parking Garage Property Owner are irrevocable and perpetual in nature. (F) In exercising an Easement granted under this Article 4, the Public Parking Garage Property Owner shall minimize the impact of its exercise on the other Owners, taking into consideration the economic impact of any disruption on the other Owners. (G) Any Owner which is a grantor under this Article 4 may, (1) in connection with the Maintenance of its portion of the Improvements, or (2) in an Emergency Situation, or (3) temporarily prevent, close off or restrict the flow of pedestrian or vehicular ingress, egress or use in, over, on,across and through any of the Easements,but only to the minimal extent and for the shortest time period reasonably necessary under the circumstances in order to minimize the effect on the user of such Easement and, with respect solely to clause (3) of this sentence, only if necessary under 18 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc applicable Law to prevent a dedication of, or an accruing of rights by, the public in and to the use of any of its portion of the Property. Each Owner which is a grantor under this Article 4 may, from time to time, impose (1) reasonable limitations on any other Owner's or any Permittee's use of an Easement providing for ingress and egress in, over, on, across and through such Owner's portion of the Property described in this Article 4, including, without limitation, establishing paths of ingress and egress and hours of the day or days of the week during which any other Owner or Permittee may use such Easement and (2) reasonable security controls consistent with the operation by such Owner of such Owner's portion of the Property and of its business on such Owner's portion of the Property and any security system for the Property or any portion of the Property. In imposing limitations or controls, an Owner shall take into consideration the reasonable needs and requirements of the user of the Easement as well as the imposing Owner's own needs and requirements. (H) Any disputes concerning the existence, location, nature and scope of any of the Easements granted under this Article 4 shall constitute an Arbitrable Dispute. (I) Any exclusive Easement granted under this Agreement shall in all events be subject to the concurrent use by the Owner of the servient estate as and only to the extent reasonably necessary for Maintenance of the property of the Owner of the servient estate and for other uses which do not unreasonably interfere with the exercise of the Easement granted. 4.2 Ingress and Egress. (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for ingress and egress only for Persons, material and equipment in, over, on,across and through such portions of the Commercial Property as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of(a) the Public Parking Garage Improvements, (b) any Facilities located in the Commercial Property which provide or are necessary to provide the Public Parking Garage Improvements with any utilities or other services necessary to the operation of the Public Parking Garage Improvements and (c) any other areas in the Commercial Property as to which an Easement for use or Maintenance has been granted to the Public Parking Garage Property Owner. (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for ingress and egress only for Persons, material and equipment in, over, on, across and through such portions of the Condominium Property (except for the Residential Condominium Units) as are, and only to the extent, reasonably necessary to permit the Maintenance (but only if and when such Maintenance is required or permitted under this Agreement) of (a) the Public Parking Garage Improvements, (b) any Facilities located in the Condominium Property which provide or are necessary to provide the Public Parking Garage Improvements with any utilities or other services necessary to the operation of the Public Parking Garage Improvements and (c) any other areas in the Condominium Property as to which an Easement for use or Maintenance has been granted to the Public Parking Garage Property Owner. 19 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 4.3 Structural Support. (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Commercial Property for the support of (a) the Public Parking Garage Improvements and (b) any Facilities or areas located in the Commercial Property with respect to which the Public Parking Garage Property Owner is granted an Easement. (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement in all Structural Supports, if any, located in or constituting a part of the Condominium Property for the support of (a) the Public Parking Garage Improvements and (b) any Facilities or areas located in the Condominium Property with respect to which the Public Parking Garage Property Owner is granted an Easement. 4.4 Use of Facilities (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for the use for their intended purposes of all Facilities located in the Commercial Property and connected to Facilities located in the Public Parking Garage Property which provide or are necessary to provide the Public Parking Garage Improvements with any utilities or other services necessary to the operation of the Public Parking Garage Improvements. (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for the use for their intended purposes of all Facilities located in the Condominium Property and connected to Facilities located in the Public Parking Garage Property which provide or are necessary to provide the Public Parking Garage Improvements with any utilities or other services necessary to the operation of the Public Parking Garage Improvements. 4.5 Intentionally Omitted. 4.6 Common Walls, Ceilings and Floors. (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Commercial Parcel and the Public Parking Garage Parcel which also serve as walls, ceilings or floors for the Public Parking Garage Improvements. (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner a non-exclusive easement for support, enclosure, use and Maintenance with respect to those walls and horizontal slabs, if any, constructed in and along the common boundaries of the Condominium Parcel and the Public Parking Garage Parcel which also serve as walls, _ ceilings or floors for the Public Parking Garage Improvements. 4.7 Utilities (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner (and if requested by the applicable Utility Company, the Commercial Property 20 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain, repair, and replace electrical conduits, wires and equipment, water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Commercial Property within the areas therefor as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown in the Plans in order to provide utility service to the Public Parking Garage Property, the Commercial Property Owner agrees to grant such additional or relocated utility easements (at such location mutually agreed to by the Commercial Property Owner and the Public Parking Garage Property Owner), provided (i) such easements do not unreasonably interfere with the reasonable use and enjoyment of the Commercial Property for the purposes for which the Commercial Improvements were initially designed and constructed, (ii) the Commercial Property Owner shall not be required to grant any easement which would convert otherwise available rentable space to such use, unless such relocation or additional easement is required by law and no other space is reasonably available, and(iii)the Public Parking Garage Property Owner shall compensate the Owner of each portion of the Commercial Improvements which is affected for any damages, costs or expenses incurred by such Owner,including lost revenues in the case of a conversion of otherwise available rentable space or damages for breach of any lease,license or other agreement. (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner (and if requested by the applicable Utility Company, the Condominium Property Owner shall grant to such Utility Company) non-exclusive easements for utility purposes, including the right to install, lay, maintain, repair, and replace electrical conduits, wires and equipment, water mains and pipes, sewer lines, gas mains, wires and equipment and cables for transmission of telephone, television or other electrically transmitted information in the Condominium Property within the areas therefor as shown on the Plans. If, at any time, it shall become necessary to relocate or add to utility easements other than as shown in the Plans in order to provide utility service to the Public Parking Garage Property, then, subject to the prior approval of the board of directors of the Condominium Association, which approval shall not be unreasonably withheld, conditioned or delayed, the Condominium Property Owner agrees to grant such additional or relocated utility easements (at such location mutually agreed to by the Condominium Property Owner and the Public Parking Garage Property Owner), provided (i) such easements do not unreasonably interfere with the reasonable use and enjoyment of the Condominium Property for the purposes for which the Condominium Improvements were initially designed and constructed, (ii)the Condominium Property Owner shall not be required to grant any easement through any Residential Condominium Unit, and (iii) the Public Parking Garage Property Owner shall compensate the Condominium Property Owner for any damages,costs or expenses incurred by the Condominium Property Owner. 4.8 Encroachments. (A) The Commercial Property Owner hereby grants to the Public Parking Garage Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Public Parking Garage Improvements not originally designed to be located within the Commercial Parcel encroaches or shall hereafter encroach upon any part of the Commercial Parcel. No such encroachment shall be placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroaching portion of the Public Parking Garage Improvements continues to exist. 21 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc (B) The Condominium Property Owner hereby grants to the Public Parking Garage Property Owner an easement permitting the existence of encroachments if, by reason of the construction of the Improvements or the subsequent settlement or shifting of the Improvements, any part of the Public Parking Garage Improvements not originally designed to be located within the Condominium Parcel encroaches or shall hereafter encroach upon any part of the Condominium Parcel. No such encroachment shall be, placed or enlarged deliberately. Such Easement permitting encroachments shall exist only so long as the encroaching portion of the Public Parking Garage Improvements continues to exist. ARTICLE 5 STRUCTURAL SUPPORT 5.1 Structural Safety and Integrity. No Owner shall do or permit any act which would adversely affect the structural safety or integrity of any portion of the Property, except in compliance with Article 15. 5.2 Reduction of Structural Support If for any reason the structural support for any portion of the Improvements is inadequate or is reduced below the support required to maintain the structural safety or integrity of such portion of the Improvements, any or all Owners whose portion of the Property is affected by such reduction or inadequacy may request that the Architect or another structural engineer (who shall then act in the capacity of "Architect" under this Article 5) and a contractor (in each case reasonably acceptable to all Owners) review the adequacy of the support or extent of any such reduction and the need for or adequacy of any substitute or additional structural support. The Architect and contractor shall also estimate, if possible, the time reasonably necessary to provide adequate substitute or additional structural support. If the structural support has been reduced or is inadequate, the Owners shall attempt in good faith to determine which Owners are responsible (including such Owners' agents, contractors, engineers, architects and Permittees) for such inadequacy or reduction, and any Owner may submit such question to the Architect for its advice. 5.3 Construction of Additional Support. (A)If substitute or additional structural support is required in a portion of the Improvements in which the structural support is inadequate or has been reduced,then the Owner or Owners responsible for such inadequacy or reduction (except as provided in Section 5.3(B) where the Owners are expressly made jointly responsible), if the responsible Owner or Owners can be determined, shall commence the construction of such substitute or additional support within a reasonable time under the circumstances,and having commenced such construction shall proceed diligently to cause the completion of such construction in accordance with plans and specifications prepared by or approved by the Architect and approved by the Owners of those portions of the Property(i)for which such substitute or additional structural support is required, and(ii)in which such substitute or additional structural support is to be constructed, and (iii) which could be affected by the construction of such substitute or additional support; provided, however, that if the Owners are expressly made jointly responsible, then the approval of all Owners shall be required. The responsible Owner or Owners shall be severally liable to pay all costs and expenses, including the Architect's fees and any other architectural fees, in connection with construction of the substitute or additional support, including any ongoing Maintenance costs(at an amount equal to the ratio of each responsible Owner's Owner Property Area Ratio to the sum of such responsible Owners' Owner 22 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Property Area Ratio), and if a responsible Owner has paid more than its proportionate share of liability, such Owner shall be entitled to contribution or reimbursement from the other responsible Owner or Owners in proportion to the other responsible Owner's or Owners' share of liability. The provisions of Sections 10.4 and 10.5, and not this Article 5, shall apply if the reduction or inadequacy in structural support results from a fire or other casualty. An Owner may be "responsible" for inadequate or reduced structural support if such Owner provided information to the design professionals or contractor which resulted in such inadequacy or reduction in structural support. (B)If the responsible Owner or Owners cannot be determined for any reason,or if the reduction or inadequacy in structural support results from a defect in the original construction of any portion of the Property,then all Owners shall be responsible jointly for substitute or additional structural support and shall share all costs and expenses as provided in this Section 5.3(B) and thereafter shall jointly pursue any applicable and legitimate claim against the developer of the Property RSC-Elgin, LLC, an Illinois limited liability company or such other responsible party for the costs and expenses for substitute or additional structural support. For purposes of this Section 5.3, a defect in the original construction of a portion of the Property does not include structural matters which arise out of improper maintenance by the other Owner or which constitute required or ordinary maintenance responsibilities. In any case where there is a responsible party other than an Owner, the Owners will, jointly pursue appropriate legal and equitable remedies against the responsible party. If joint action is not legally possible, then the Owner or Owners who have a remedy against the responsible party will pursue enforcement for the benefit of all Owners. Where damages are recovered from third parties, the Owners shall apply amounts recovered in the following priority: first, to the costs of suit; second, to payment of costs and expenses of providing substitute or additional support;third,to damages suffered by the Owners as a result of such reduction or inadequacy in structural support,to each Owner in the ratio of damages suffered by such Owner to total damages suffered by the Owners; and fourth, the balance, if any, to the Owners in the Owner Property Area Ratio. Each Owner, whether pursuing enforcement or not, shall share the costs and expenses (including any fees of the Architect for advice or preparation of plans and specifications)of substitute or additional support and any enforcement action under this Section 5.3(B), in the Owner Property Area Ratio, to the extent such costs and expenses are not recovered from third parties. (C) The construction of such substitute or additional support shall be performed by a contractor or contractors jointly selected by the Owners of those portions of the Property (i) for which such substitute or additional support is required, and (ii) in which such substitute or additional support is to be constructed, and (iii) which could be affected by the construction of such substitute or additional support; provided, however, that if all Owners are expressly made jointly responsible under Section 5.3(B), then the selection by all Owners shall be required(which selection shall be subject to the approval of the Mortgagees of such Owners). In the event such Owners, and the Mortgagees of such Owners, fail to agree upon the selection of a contractor or contractors, the Owners shall request the advice of the Architect. If, after receiving the Architect's advice,the Owners and their Mortgagees cannot agree on a contractor or contractors to construct such substitute or additional support,then the selection of a contractor or contractors shall constitute an Arbitrable Dispute. For purposes of this Article 5, provision or construction of substitute or additional structural support shall also include any Maintenance required to remedy or prevent the inadequacy or reduction in structural integrity or safety of the Property. 5.4 Effect of Delay. If delay in constructing substitute or additional support would endanger the structural safety or integrity of any portion of the Improvements, and it is not likely that such work will be commenced in time to avoid a reduction in structural integrity or safety, then the 23 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Owner or Owners of the portion of the Property in which the reduction occurred or is occurring shall, upon not less than ten (10) days advance written notice to the other Owners (except that such advance written notice shall not be required in an Emergency Situation),provide substitute or additional structural support as and wherever required, or the Owners shall j ointly undertake to provide substitute or additional structural support;provided,however,the responsible Owner (or Owners otherwise liable for a share of costs and expenses of providing substitute or additional structural support)shall be liable for and pay all costs and expenses incurred as a result of any other Owner's provision of any required substitute or additional support. ARTICLE 6 SERVICES PROVIDED BY AND BETWEEN OWNERS Intentionally omitted. ARTICLE 7 INDEMNIFICATIONS: LIENS: COMPLIANCE WITH LAWS: ZONING: PARKING 7.1 Indemnity by Owners. Each Owner (hereinafter in this Section 7.1, the "Indemnifying Owner")covenants and agrees, at its sole cost and expense,to indemnify, defend and hold harmless the other Owners(hereinafter in this Section 7.1,collectively the "Indemnitee")from and against any and all claims, including any actions or proceedings, against the Indemnitee, for losses, liabilities, damages,judgments, costs and expenses by or on behalf of any person, firm,corporation or governmental authority, other than the Indemnitee, arising from the Indemnifying Owner's use, possession or management of the Indemnifying Owner's portion of the Property or Owned Facilities or activities therein or arising out of the Indemnifying Owner's use,exercise or enjoyment of an Easement or Facility,and from and against all costs,attorneys'fees,expenses and liabilities incurred with respect to any such claim, action or proceeding arising therefrom. In case any action or proceeding is brought against the Indemnitee by reason of any such claim, the Indemnifying Owner, upon notice from the Indemnitee, covenants to resist or defend such action or proceeding with attorneys reasonably satisfactory to the Indemnitee. Any counsel for the insurance company providing insurance against such claim,action or proceeding shall be presumed reasonably satisfactory to the Indemnitee. 7.2 Liens. Each Owner (hereinafter in this Section 7.2, the "Liening Owner") shall remove, within thirty (30) days after the filing thereof, any mechanics', materialmen's or any other similar lien arising by reason of the Liening Owner's act or acts of its agents and contractors or any work or materials which it or its agents or contractors has ordered (A) on the other Owners' respective portions of the Property or Owned Facilities, or (B) on its own portion of the Property or Owned Facilities, if the existence or foreclosure of such lien on its own portion of the Property or Owned Facilities would adversely affect any Easement benefitting the other Owners or services to be furnished the other Owners pursuant to Article 6 (such other Owners in (A) or (B) shall be referred to in this Section 7.2 as the "Impacted Owners"). The Liening Owner shall not be required to remove such lien within thirty (30) days after its filing if: within such thirty (30)day period, (A)such lien cannot be foreclosed, and (B) the Liening Owner (i) shall diligently proceed in good faith to contest such lien by appropriate proceedings and shall give written notice to the Impacted Owners of its intention to contest the validity or amount of such lien and(ii) shall deliver to the Impacted Owners, at the Impacted Owners' option, either: (a) cash or a surety bond from a responsible surety company reasonably acceptable to the Impacted Owners in an amount equal to one hundred fifty percent (150%) of the lien claim and all interest and penalties then accrued on such lien claim or such greater amount as reasonably 24 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc may be required to assure payment in full of the amount claimed plus all penalties, interest and costs which may thereafter accrue by reason of such lien claim or(b) other security or indemnity reasonably acceptable to the Impacted Owners' title insurance company and the Impacted Owners. In any case, a Liening Owner must remove or release such lien prior to its foreclosure. In the event the Liening Owner fails to comply with the foregoing provisions of this Section 7.2, such Liening Owner shall become a Defaulting Owner, and the Impacted Owners shall become Creditor Owners and may take such actions as the Creditor Owners may deem necessary to defend against or remove such lien. The Creditor Owners shall be entitled to payment from the Defaulting Owner for all costs and expenses (including reasonable attorneys' fees) paid or incurred by the Creditor Owners in defending against,removing or attempting to defend against or remove such lien and may use any security delivered to the Creditor Owners for such purposes and for any other damages from the Defaulting Owner's breach under this Section 7.2. 7.3 Compliance With Laws. The Owners: (A) shall each comply with all Laws, if noncompliance by such Owner with respect to its portion of the Property or any part thereof or Owned Facilities or areas for which such Owner has been granted an exclusive Easement would subject any other Owner to civil or criminal liability,or would jeopardize the full force or effect of any certificate of occupancy issued to any other Owner or for the Property itself or would jeopardize any other Owner's right to occupy or utilize beneficially its respective portion of the Property or any part thereof or Owned Facilities,or would result in the imposition of a lien against any of the property of any other Owner; and (B) shall each comply with all rules, regulations and requirements of any insurance rating bureau having jurisdiction of the Property or any portion thereof or the requirements of any insurance coverage on any other Owner's portion of the Property or Owned Facilities if noncompliance by such Owner with respect to its portion of the Property or any part thereof or Owned Facilities would (i) increase the premiums of any policy of insurance maintained by any other Owner or the premiums of any policy of insurance maintained by all Owners (unless the non-complying Owner pays all such increases), or (ii) render any other Owner's portion of the Property or Owned Facilities uninsurable, or(iii)create a valid defense to any other Owner's right to collect insurance proceeds under policies insuring such other Owner's portion of the Property or Owned Facilities;provided,however,that if such compliance is required solely because of the nature of the use,possession and management of or activities in the other Owner's portion of the Property or Owned Facilities,such other Owner shall be liable for the costs and expense of such compliance. If at any time any Owner so obligated to comply shall not proceed diligently with any such compliance, and such failure to proceed shall adversely and-materially affect any other Owner (then such Owner who has failed to proceed shall become a Defaulting Owner and the other Owners shall become Creditor Owners),and such Creditor Owners may give written notice to the Defaulting Owner specifying the respect or respects in which the cure of such noncompliance is not proceeding diligently and, if upon expiration of ten (10) days after the receipt of such notice,any such cure of the noncompliance is still not proceeding diligently,then the Creditor Owners may cause such compliance to occur by taking all appropriate steps to cure such noncompliance. The Creditor Owners shall be entitled to reimbursement upon demand from the Defaulting Owner for all costs and expenses (including reasonable attorneys' fees) incurred by the Creditor Owners in connection with causing any such compliance to occur. 7.4 Zoning: Use. 25 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (A) Without limiting the provisions of Section 7.3(A), neither the Condominium Property Owner nor the Commercial Property Owner nor the Public Parking Garage Property Owner shall (i) make any Alterations, (ii) allow any use of their respective portions of the Property,or(iii)take or fail to take any action which would violate the provisions of the City Zoning Ordinance or the PUD, as such ordinances may be amended from time to time. (B) The Commercial Parcel, the Condominium Parcel and the Public Parking Garage Parcel are now and shall continue to be combined and treated as one zoning lot for the purposes of complying with the City Zoning Ordinance. If the City Zoning Ordinance or any other applicable zoning ordinances require that there be a single designated controlling entity for the zoning lot, then for purposes of dealing with the City of Elgin, the Condominium Property Owner shall be such designated entity. The foregoing designation will not be deemed to expand such Owner's rights or reduce the other Owners' rights under this Section 7.4 Notwithstanding the forgoing, or anything to the contrary in this Agreement, no Owner shall file an application with the City of Elgin to amend the planned development ordinance for the Property without the advance consent of the City Council of the City of Elgin. (C) No Owner may take any actions or file any petitions to amend the zoning affecting any property contemplated by this Agreement without the prior written consent of any other Owners that will be affected by such Amendment and, in all cases, also with the prior written consent of the Condominium Property Owner and the City Council of the City of Elgin. (D) Each Owner shall execute such applications or other instruments as may be necessary to obtain any zoning variation or amendment conforming with the provisions of this Section 7.4;provided,however,the Owner requesting such zoning variation or amendment shall indemnify and hold harmless the other Owners from and against any and all loss,liability,claims,judgments,costs and expenses arising out of the other Owners'execution of such applications or other instruments. If any Owner fails to execute any such applications or instruments when required hereunder to do so,the Owner requesting such zoning variation or amendment is hereby irrevocably appointed attorney-in-fact of such Owner(such power of attorney being coupled with an interest) to execute such application or instruments on behalf of such Owner. (E) The Condominium Property Owner shall operate and use the Condominium Property only as a first-class residential condominium property and may not use the Condominium Property for any use other than residential purposes and uses ancillary to residential purposes. The Public Parking Garage Property Owner shall operate and use the Public Parking Garage Property only as a first-class public parking garage and may not use the Public Parking Garage Property for any other use. The Commercial.Property may be used for any retail, office, commercial or entertainment use at any time, subject only to applicable Laws and the PUD. The Commercial Property may not be used for any use which: (i) is unlawful or in violation of Law;(ii) may create anuisance or injure the reputation of the Condominium Property;(iii)is for lodging or sleeping purposes; (iv) is dangerous to life and limb; or (v) may be offensive, disreputable or immoral, including, but not limited to, use as a massage parlor or a business for the sale or display of adult entertainment, books, magazines, videos, other media or other adult products. ARTICLE 8 26 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc REAL ESTATE TAXES 8.1 Separate Assessment. The Owners shall cooperate with each other and make good faith efforts so that the Commercial Property, the Condominium Property and the Public Parking Garage Property shall, when possible, be assessed separately by the Assessor and taxed as three (3) or more separate parcels of real estate. If at any time there is a separate assessed valuation determinable based on an examination of the Assessor's records (but not a separate tax bill or bills) for each of the three, or more, parcels, real estate taxes for any combined parcels shall be allocated between the Parcels based on the ratio of the assessed valuation for such Parcels. The Commercial Property Owner shall pay the real estate taxes levied upon the Commercial Property, the Condominium Property Owner shall pay the real estate taxes levied upon the Condominium Property and the Public Parking Garage Property Owner shall pay the real estate taxes (if any) levied upon the Public Parking Garage Property during any period when the Commercial Property, the Condominium Property and the Public Parking Garage Property are separately assessed and taxed. Each Owner shall be entitled independently to cause such Owner's portion of the Property to be assessed and taxed as two (2) or more separate parcels of real estate. The Public Parking Garage Property Owner shall take all actions necessary(including,but not limited to, filing all petitions, applications and complaints) to cause the Public Parking Garage Property to be and remain exempt from taxation. 8.2 Reference to Taxes in Leases. For purposes of this Agreement and any documents or instruments, such as leases, referring to the allocation of real estate taxes pursuant to this Agreement, the real estate taxes allocated to a portion of the Property shall mean those taxes assessed and payable with respect to such portion of the Property as long as such portion of the Property is separately assessed and taxed. 8.3 Failure to Pay Taxes. If a Defaulting Owner shall fail to pay any tax or other charge, or share thereof, which is due and which such Defaulting Owner is obligated to pay pursuant to this Article 8, and if such unpaid tax or charge is a lien or encumbrance on any portion of the Property or Improvements and any lawful authority would thereafter have the right to sell or otherwise foreclose against any portion of the Property or Improvements owned by any other Owner or to impair or extinguish any Easement benefiting any other Owner by reason of such nonpayment,then the Creditor Owner or Owners may, after ten(10)days written notice to the Defaulting Owner, pay such tax or charge, or share thereof, together with any interest and penalties thereon, and the Defaulting Owner shall,upon demand,reimburse the Creditor Owners for the amount of such payment, including the amount of any interest or penalty amounts that accrued thereon. 8.4 No Separate Bill. If at any time after the initial tax division is effected there is not a separate assessed valuation which can be determined by an examination of the Assessor's records and tax bills for the Commercial Property, the Condominium Property and the Public Parking Garage Property,real estate taxes for which no separate assessed valuation can be so determined shall be allocated to each Owner not separately assessed and taxed based on the ratio of (a)respective appraised value of each portion of the Property for which such Owner is obligated to pay real estate taxes (as set forth in Section 8.1) which is not included in a separate tax bill to an Owner, to (b) the total appraised values of such parcels not included in a separate tax bill to an Owner. If the Owners affected by such allocation cannot agree on the ratio to be used, such matter shall be an Arbitrable Dispute. 27 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc ARTICLE 9 INSURANCE 9.1 Insurance Required. The Condominium Property Owner, the Commercial Property Owner and the Public Parking Garage Property Owner shall procure and maintain the following insurance: (A) Real and Personal Property - The Condominium Property Owner shall keep the Condominium Improvements insured for no less than "all risk" coverage on real property and personal property owned by the Condominium Property Owner used in the operation of the Condominium Improvements for an amount not less than ninety percent(90%)of the insurable replacement cost thereof The Commercial Property Owner shall keep the Commercial Property insured for no less than "all risk" coverage on real property and personal property owned by the Commercial Property Owner used in the operation of the Commercial Property for an amount not less than ninety percent (90%) of the insurable replacement cost thereof. The Public Parking Garage Property Owner shall keep the Public Parking Garage Property insured for no less than"all risk"coverage on real property and personal property owned by the Public Parking Garage Property Owner used in the operation of the Public Parking Garage Property for an amount not less than ninety percent (90%) of the insurable replacement cost thereof Each Owner shall separately insure on an"all risk"basis its loss of rental income or use caused by business interruption or extra expense incurred to reduce such loss of income, in such amounts and with such deductibles as may be carried by prudent owners of first-class commercial,residential or public parking garage buildings in the greater Chicago area, and shall pay all premiums for such coverage. Replacement cost shall be determined annually by an independent appraiser or by a method acceptable to the insurance company providing such coverages. Such policies shall be endorsed with a replacement coverage endorsement and an agreed amount clause(waiving any applicable co-insurance clause)in accordance with such determination or appraisal. (B)Public Liability - The Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner shall each(1)insure against public liability claims and losses on a comprehensive or commercial general liability form of insurance with broad form coverage endorsements covering claims for personal and bodily injury or property damage occurring in, on, under,within,upon or about the Project Site,or as a result of operations thereon(including contractual liability covering obligations created by this Agreement including, but not limited to,those indemnity obligations contained in this Agreement),and(2)maintain automobile liability insurance for owned, non- owned and hired vehicles, each coverage in such amounts as may be required by Law and as may from time to time be carried by prudent owners of first-class commercial, residential or public parking garage buildings (as the case may be) in the greater Chicago area,but in all events for limits,as to each Owner and its portion of the Property, of not less than $1,000,000 each occurrence and $2,000,000 aggregate for personal and bodily injury or property damage with an amount not less than $5,000,000 umbrella coverage. Each such policy shall be endorsed to provide cross-liability or severability of interests for the named insureds. (C) Boiler and Machinery - The Commercial Property Owner, the Public Parking Garage Property Owner and the Condominium Property Owner shall each insure their boiler and machinery risks, on a comprehensive, blanket basis covering all Property equipment, machinery and apparatus consisting of, but not limited to, boilers, heating apparatus, fired and unfired pressure vessels, air conditioning equipment, miscellaneous electrical apparatus and their 28 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain square v10-Clean.docean.doc appurtenant equipment on a repair or replacement basis with limits of not less than the lesser of $2,000,000 or the insurable value of such Property equipment, machinery and apparatus each accident, and also providing coverage as to each Owner in accordance with its own needs, for loss of rental income or use caused by business interruption or extra expense incurred to reduce such loss of income, in such amounts as may be carried from time to time by prudent owners of first-class commercial, residential or public parking garage buildings in the greater Chicago area. (D) Flood and Earthquake- The Commercial Property Owner, the Public Parking Garage Property Owner and the Condominium Property Owner, in addition to "all risk"property insurance required under Section 9.1(A), shall each insure their respective portions of the Property against earthquake and flood risks in an amount equal to the replacement cost thereof or such lesser amount as then may be reasonably available in the insurance market; both subject,however,to deductibles available and reasonable for such types of insurance. (E) Builder's Risk - Each Owner shall carry "all risk" builder's risk insurance (including loss of income and "soft costs") for not less than the completed value of the work then being performed by such Owner or Owners under Article 5, Sections 10.4 or 10.5 or for any Alterations which require another Owner's consent under Section 15.1. Such insurance shall include coverage for items stored off-site and items in transit for an amount sufficient to cover fully any loss. Loss of rental income or use and "soft costs" occurring during the period covered by builder's risk insurance shall be insured in such amounts as may be carried by prudent owners of first-class commercial, residential or public parking garage buildings in the greater Chicago area. (F) Worker's Compensation. Each Owner shall carry worker's compensation insurance in amounts as required by Law and employer's liability insurance in not less than the following amounts: bodily injury by accident, $1;000,000 each accident; bodily injury by disease, $1,000,000 each employee; bodily injury by disease, $1,000,000 policy limit. 9.2 Insurance Companies. Insurance policies under this Article 9 maybe joint or may be issued separately with respect to each Owner's interest in the Property. In the case of any insurance policy covering the Owners jointly, the Owners shall apportion the premium based on the manner in which the insurance company has underwritten the risks. If separate policies are issued, they shall be coordinated so that there are no gaps in coverage, and the insurance company or companies shall agree that the entire Property will be covered among the Owners' separate policies. The Owners will consult with one another at least annually (and may retain a consultant to advise them, the cost of employing such consultant to be shared equally by the Owners) concerning the advantages and disadvantages to each Owner and the Property as a whole of separate insurance policies as opposed to joint policies (including any cost advantages and availability of joint policies), and will give careful consideration to these matters before choosing to have separate policies. In the case of a joint policy, if any Owner disagrees with the apportion-ment of the insurance premium or the selection of an insurance company, the question of selection of an insurance company or apportionment of premium shall constitute an Arbitrable Dispute. Insurance policies required by Section 9.1 shall be purchased from reputable and financially responsible insurance companies, taking into consideration the nature and amount of insurance required, who shall hold a current Policyholder's Alphabetic and Financial Size Category Rating of not less than A/VII(or such lesser rating as the Owners and Mortgagees may agree) according to Best's Insurance Reports or a substantially equivalent rating from a nationally-recognized insurance rating service. • 29 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc 9.3 Insurance Provisions. Each policy described in Section 9.1 (other than Section 9.1(F)): (i) shall provide that the knowledge or acts or omissions of any insured party shall not invalidate the policy as against any other insured party or otherwise adversely affect the rights of any other insured party under any such policy; (ii) shall insure as "named" insureds the Commercial Property Owner, the Public Parking Garage Property Owner and the Condominium Property Owner (except that the Owners other than the primary insured shall be "additional" insureds under policies described in 9.1(B)); (iii) shall provide (except for liability insurance described in Section 9.1(B), for which it is inapplicable) by endorsement or otherwise, that the insurance shall not be invalidated should any of the insureds under the policy waive in writing prior to a loss any or all rights of recovery against any party for loss occurring to the property insured under the policy, if such provisions or endorsements are available and provided that such waiver by the insureds does not invalidate the policy or diminish or impair the insured's ability to collect under the policy, or unreasonably increase the premiums for such policy unless the party to be benefitted by such endorsement or provision pays such increase; (iv) shall provide, except for liability insurance required by Section 9.1(B), that all losses payable thereunder shall be paid to the Depositary in accordance with the terms of Article 17, unless the Owners otherwise agree, subject to the consent of the Mortgagees; (v) shall provide for a minimum of thirty (30) days' advance written notice of the cancellation, nonrenewal or material modification of such policy to Mortgagees and all insureds thereunder; (vi) shall include a standard mortgagee endorsement or loss payable clause in favor of the Mortgagees reasonably satisfactory to them; and (vii) shall not include a co-insurance clause. Unless otherwise specified in this Agreement, the "all-risk" form of property-related insurance required to be procured and maintained by the Condominium Property Owner, the Commercial Property Owner and the Public Parking Garage Property Owner shall provide no less coverage (with the exception of deductible amounts) than the standard form of insurance currently promulgated by the Insurance Services Office, its successor, or other substantially similar insurance organization having responsibility for the design and publication of standardized insurance coverage forms for use by the insurance industry. All insurance required to be maintained by the Condominium Property Owner pursuant to this Article 9 shall be maintained by the Condominium Association. Notwithstanding anything to the contrary contained in this Article 9, all or any portion of the insurance required to be maintained by the Commercial Property Owner pursuant to this Article 9 may be maintained by the Permittees (including tenants) of the Commercial Property Owner. 9.4 Limits of Liability. Insurance specified in this Article 9 or carried by the Owners shall be jointly reviewed by the Owners periodically at the request of any Owner, but no review will be required more often than annually (unless there is a substantial change in the Property or operations conducted in the Property), to determine if such limits, deductible amounts and types of insurance are reasonable and prudent in view of the type, place and amount of risk to be transferred and the financial responsibility of the insureds, and to determine whether such limits, deductible amounts and types of insurance comply with the requirements of all applicable statutes, laws, ordinances, codes, rules, regulations, or orders and whether on a risk management basis, additional types of insurance or endorsements against special risks should be carried or whether required coverages or endorsements should be deleted. Initially, deductible amounts for insurance required under Sections 9.1 (A) (other than loss of rental income insurance), 9.1(C) and 9.1(E) shall not exceed $25,000. Deductible amounts for insurance required under Section 9.1(B) shall not be more than is reasonable considering the financial responsibility of the insured and shall also be subject, in any case, to the consideration to be given deductible amounts described in this Section 9.4.Where separate policies are issued under Section 9.1(A) or 9.1(D), then deductibles shall be the same, if reasonably possible. Limits of liability may not be less than limits required by Mortgagees, notwithstanding amounts set forth in this Article 9. Such limits shall be increased or decreased, deductible amounts increased or decreased 30 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean,docean.doc or types of insurance shall be modified, if justified, based upon such review, and upon any such increase, decrease or modification, the Owners shall, at any Owner's election, execute an instrument in recordable form confirming such increase, decrease or modification, which any Owner may record with the Recorder as a supplement to this Agreement; provided, that no agreement regarding a decrease in limits of liability, increase in deductible amounts or elimination of any types of coverages shall be effective without the written consent of the Mortgagees. With the consent of all Owners, the Owners may employ an insurance consultant to perform such review on their behalf or to administer insurance-related matters, and the cost of employing any such consultant shall be shared equally by the Owners. 9.5 Renewal Policies. Copies of all renewal insurance policies or binders with summaries of coverages afforded and evidencing renewal shall be delivered by each Owner to the other Owners and to the Mortgagees at least ten (10) days prior to the expiration date of any such expiring insurance policy. Binders shall be replaced with certified full copies of the actual renewal policies as soon as reasonably possible. Should an Owner fail to provide and maintain any policy of insurance required under this Article 9 or pay its share of the premiums or other costs for any joint policies, then the other Owners may purchase such policy and the costs of such policy (or the Defaulting Owner's share of such costs) shall be due from the Defaulting Owner within ten (10) days after written demand by the Creditor Owners. 9.6 Waiver. Provided that such a waiver does not invalidate the respective policy or policies or diminish or impair the insured's ability to collect under such policy or policies or unreasonably increase the premiums for such policy or policies unless the party to be benefitted by such waiver pays such increase, and without limiting any release or waiver of liability or recovery contained elsewhere in this Agreement, each Owner hereby waives all claims for recovery from the other Owners for any loss or damage to any of its property insured(or required to be insured under this Agreement)under valid and collectible insurance policies to the extent of any recovery collectible(or which would have been collectible had such insurance required under this Agreement been obtained) under such insurance policies plus any deductible amounts. ARTICLE 10 MAINTENANCE AND REPAIR: DAMAGE TO THE IMPROVEMENTS. 10.1 Maintenance of Commercial Improvements. Except as expressly provided in Sections 6.1, 6.2 and 6.3 (and related Exhibits) relating to Maintenance of certain Facilities and areas of the Property or in this Article 10 in the event of fire or other casualty, and except as provided in and without limiting or diminishing such Owner's obligations under Article 5, the Commercial Property Owner shall, at its sole cost and expense, maintain and keep the Commercial Improvements, including all Facilities located in the Commercial Property, in good and safe order and condition,and shall make all repairs or replacements of, in, on, under, within, upon or about such property, whether such repairs or replacements are to the interior or exterior of such property, or structural or non-structural components of such property, or involve ordinary or extraordinary repairs or replacements, necessary to keep the such property in safe first-class order and condition, and whether or not necessitated by wear, tear, obsolescence, defects or otherwise. The Commercial Property Owner agrees that it shall not suffer or commit, and shall use all reasonable precaution to prevent, waste to its property. To the extent any Facility is utilized, shared and depended upon substantially by more than one of the Commercial Property Owner, the Condominium Property Owner and/or the Public Parking Garage 31 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Property Owner (a "Shared Facility"), then, regardless of the location of the Shared Facility as within any Parcel and subject to the exceptions set forth above in this paragraph, the cost to Maintain, repair or replace the Shared Facility shall be allocated by and amongst the Owners utilizing the Shared Facility, in accordance with the Owner Property Area Ratio. 10.2 Maintenance of Condominium Improvements. Except as expressly provided in Sections 6.1, 6.2 and 6.3 (and related Exhibits) relating to Maintenance of certain Facilities and areas of the Property or in this Article 10 in the event of fire or other casualty, and except as provided in and without limiting or diminishing such Owner's obligations under Article 5, the Condominium Property Owner shall, at its sole cost and expense, maintain and keep the Condominium Improvements, including all Facilities located in the Condominium Property, in good and safe order and condition, and shall make all repairs or replacements of, in, on, under, within, upon or about such property, whether such repairs or replacements are to the interior or exterior of such property, or structural and non-structural components of such property, or involve ordinary or extraordinary repairs or replacements, necessary to keep the same in safe first-class order and condition, and whether or not necessitated by wear, tear, obsolescence, defects or otherwise. The Commercial Property Owner and the Public Parking Garage Property Owner acknowledge and agree that that portion of the foregoing Maintenance obligations that relate to Condominium Units shall be performed by the Condominium Unit Owners of such Condominium Units; provided, however, that the Condominium Property Owner shall cause such Condominium Unit Owners to so perform such obligations. As part of such Maintenance, the Condominium Property Owner shall perform all snow removal within the Condominium Property and the Commercial Property (subject to equitable reimbursement). The Condominium Property Owner further agrees that it shall not suffer or commit, and shall use all reasonable precautions to prevent waste to such property. To the extent any Facility is utilized, shared and depended upon substantially by more than one of the Commercial Property Owner, the Condominium Property Owner and/or the Public Parking Garage Property Owner (a "Shared Facility"), then, regardless of the location of the Shared Facility as within any Parcel and subject to the exceptions set forth above in this paragraph, the cost to Maintain, repair or replace the Shared Facility shall be allocated by and amongst the Owners utilizing the Shared Facility, in accordance with the Owner Property Area Ratio. 10.3 Maintenance of Public Parking Garage Improvements. Except as expressly provided in this Article 10 in the event of fire or other casualty, and except as provided in and without limiting or diminishing such Owner's obligations under Article 5, the Public Parking Garage Property Owner shall, at its sole cost and expense, maintain and keep the Public Parking Garage Improvements, including all Facilities located in the Public Parking Garage Property, and all structures and Facilities within the public rights-of-way adjacent to the Project Site in good and safe order and condition, and shall make all repairs or replacements of, in, on, under, within, upon or about such property, whether such repairs or replacements are to the interior or exterior of such property, or structural or non-structural components of such property, or involve ordinary or extraordinary repairs or replacements, necessary to keep the such property in safe first-class order and condition, and whether or not necessitated by wear, tear, obsolescence, defects or otherwise. As part of such Maintenance, the Public Parking Garage Property Owner shall perform all snow removal within the Public Parking Garage Property. The Public Parking Garage Property Owner agrees that it shall not suffer or commit, and shall use all reasonable precaution to prevent, waste to its property. To the extent any Facility is utilized, shared and depended upon substantially by more than one of the Commercial Property Owner, the Condominium Property Owner and/or the Public Parking Garage Property Owner (a "Shared Facility"), 32 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc then, regardless of the location of the Shared Facility as within any Parcel and subject to the exceptions set forth above in this paragraph, the cost to Maintain, repair or replace the Shared Facility shall be allocated by and amongst the Owners utilizing the Shared Facility, in accordance with the Owner Property Area Ratio. 10.4 Damage Affecting Only Condominium Improvements. Commercial Improvements or Public Parking Garage Improvements. If any portion of the Property is damaged by fire or other casualty and (A) if such damage occurs within the Commercial Improvements only or (B) if such damage occurs within the Condominium Improvements only, or (C) if such damage occurs within the Public Parking Garage Improvements only, then any such damage shall be repaired and restored by the Owner of the portion of the Property in which any such damage occurs (or such other Owner, if any, which caused such damage) in as timely a manner as practicable under the circumstances, and such Owner shall, in accordance with the provisions of Article 18,be entitled to withdraw any insurance proceeds (including deductible amounts) held by the Depositary by reason of any such damage, for application to the cost and expense of the repair and restoration of any such damage. If at any time any Owner so obligated to repair and restore such damage shall not proceed diligently with any repair or restoration adversely and materially affecting an Easement in favor of the other Owner or Owners or services to be furnished the other Owners under Article 6, then (i) the Creditor Owners may give written notice to the Defaulting Owner specifying the respect or respects in which such repair or restoration is not proceeding diligently and, if,upon expiration of ten (10) days after the receipt of such notice, any such work of repair or restoration is still not proceeding diligently, then the Creditor Owners may perform such repair and restoration and may take all appropriate steps to carry out such repair and restoration; or (ii) in an Emergency Situation the Creditor Owners may immediately perform such repair or resto-ration and may take all appropriate steps to carry out such repair and restoration. The Creditor Owners in so performing such repair and restoration shall, in accordance with Article 18, be entitled to withdraw any insurance proceeds and any other monies held by the Depositary as a result of any such damage, for application to the cost and expense of any such repair or restoration and shall also be entitled to reimbursement upon demand from Defaulting Owner for all costs and expenses incurred by Creditor Owners in excess of such insurance proceeds. Repair and restoration under this Section 10.4 shall constitute Alterations, except that the Owner performing the repair and restoration shall not be required to obtain the other Owners' consent if such consent would not otherwise be required under Article 15, and Section 15.1(E)(iii) shall not apply. 10.5 Joint Damage. If the Property is damaged by fire or other casualty and if the provisions of Section 10.4 are not applicable because the nature of the damage is such that it does not fall within any of the categories set forth in clause (A), (B) or (C) of Section 10.4, then to the extent such damage does not fall within any of such categories,the repair and restoration of only that portion of such damage which does not fall within those categories shall be the joint responsibility of the Owner or Owners in whose portion of the Property the damage occurs or whose Facilities are damaged (the "Affected Owners"). Such repair and restoration shall be commenced and pursued to completion in as timely a manner as practicable and shall be performed on behalf of the Affected Owners by a contractor or contractors jointly selected by the Affected Owners, which selection shall be subject to the approval of the Mortgagees if the approximate cost of the repair and restoration is greater than $500,000.00 (in 2007 Equivalent Dollars). Participation by an Affected Owner in selecting an Architect or contractor shall be limited to the selection of the Architect preparing plans and specifications for, and the contractor performing repair or restoration of, its actual areas or Facilities damaged. In the event the Affected Owners, and their Mortgagees, if required, fail to agree upon the selection of a contractor or contractors, the 33 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Affected Owners shall request the advice of the Architect. If, after receiving the Architect's advice,the Affected Owners cannot agree on a contractor or contractors, then the selection of a contractor or contractors shall be an Arbitrable Dispute. The plans and specifications for such repair and restoration shall be prepared by the Architect, unless the Affected Owners otherwise agree upon another person or entity to prepare them, subject to the approval of their Mortgagees, in accordance with instructions given by all Affected Owners. Such plans and specifications shall provide for the damaged portion of the Property to be rebuilt as nearly identical as commercially practicable to the damaged portion of Property as constructed prior to the damage unless prohibited by law or unless the Affected Owners otherwise agree, subject to the approval of their Mortgagees and subject to the consent of other Owners under Section 15.1(B) where required. The Architect (or other architect or engineer preparing the plans and specifications) shall furnish to each of the Affected Owners, and their Mortgagees, a set of the plans and specifications which it has prepared or caused to be prepared. Unless the Affected Owners otherwise agree (subject to the approval of their Mortgagees if the approximate cost of the repair and restoration is greater than $500,000.00 (in 2007 Equivalent Dollars)), any contractor or contractors shall work under the supervision of the Architect (or other architect or engineer preparing the plans and specifications), and the Architect (or other architect or engineer preparing the plans and specifications) is hereby authorized and directed to instruct the Depositary, from time to time, but only with the prior approval of the Affected Owners and their Mortgagees, as such repair and restoration progresses, to disburse in accordance with Article 18, the insurance proceeds (including deductible amounts) held by the Depositary and any other monies deposited with the Depositary pursuant to Section 10.6 for application against the cost and expense of any such repair and restoration. 10.6 Cost of Repairs. If the cost and expense of performing any repair and restoration provided for in Section 10.5 shall exceed the amount of available insurance proceeds, if any,paid by reason of the damage,including deductible amounts,then such excess cost and expense(or the entire amount of such cost and expense, if there are no insurance proceeds) shall be borne by the Owners, in proportion to the cost and expense of repairing and restoring to their former condition their respective portions of the Property and Owned Facilities. Notwithstanding the foregoing, if an Owner has not carried the insurance required under Article 9 and,therefore, is a Defaulting Owner, then such Defaulting Owner shall pay the costs and expenses not covered by insurance which another Owner is obligated to pay which would not have been payable by such Owner if proper insurance had been carried by the Defaulting Owner to the extent of the amount which would have been available as insurance proceeds had such Defaulting Owner carried the required insurance. 10.7 Deposit of Costs. In any instance of repair or restoration pursuant to Sections 10.4 or 10.5, the Condominium Property Owner, the Commercial Property Owner or the Public Parking Garage Property Owner may require that an estimate of the cost or expense of perfonning such repair or restoration be made by a reputable independent professional construction cost- estimating firm,unless a construction contract providing for the performance of such repair and restoration at a stipulated sum has already been executed. If the estimate or stipulated sum, or if the actual amount incurred in performing such repair or restoration, exceeds the amount of insurance proceeds,if any,paid or payable by reason of the damage,then any Owner may at any time give notice to the other Owners demanding that each Owner deposit with the Depositary the amount of such excess cost and expense attributable to each Owner pursuant to Section 10.6. Any Owner maintaining deductible amounts shall deposit the deductible amounts. In lieu of depositing its share of such excess amount or such deductible amount based upon such estimate or stipulated sum, or actual cost and expense of performing such repair or restoration, an Owner may deliver to the Depositary security for payment of its share in a form reasonably acceptable to the other Owners and the Depositary. Such security may be in the form 34 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc of, but shall not be limited to, an irrevocable and unconditional letter of credit in favor of the Depositary in the face amount of the share owed or an irrevocable loan commitment, reasonably satisfactory to the other Owners and the Mortgagees, issued by a responsible lending institution to disburse an amount equal to such Owner's share of such excess or deductible amount to the Depositary to pay the cost and expense of any such repair or restoration as the work progresses, in proportion to such Owner's share of the cost and expense of any such repair or restoration. If the amount of the security required is based on an estimate of the cost and expense of repair and restoration,then the amount of security required to be deposited or available shall be readjusted upward or downward as the work progresses based on actual costs and expenses of the work. If an Owner shall fail to pay, or, as the case may be, deposit, such Owner's share of the cost and expense (or estimated cost and expense) of performing any repair or restoration in accordance with this Section 10.7, or shall fail to deliver security for such performance in accordance with this Section 10.7 within ten (10) days after receipt of the other Owners' written demand, then the Creditor Owners may pay the Defaulting Owner's share and the Defaulting Owner shall, upon written demand, reimburse the Creditor Owners for such payment and the Creditor Owners' reasonable costs and expenses incurred in connection with such payment. 10.8 Excess Insurance Proceeds. Upon completion of the repair and restoration of any damage to the Property, any remaining insurance proceeds paid by reason of such damage shall be refunded to each Owner in proportion to the ratio that the insurance proceeds contributed by such Owner or by such Owner's insurance company bears to the total insurance proceeds made available by all Owners and such Owners' insurance companies for the repair and restoration or, if the insurance is provided by a single policy covering the Property, then the ratio of insurance proceeds attributed to such Owner's portion of the Property and Owned Facilities by the insurer or the Owners to the total insurance proceeds made available by the insurer or the Owners for the repair and restoration.The rights of the Owners to payment of excess insurance proceeds, if any, shall be subject to the provisions of Section 21.12. For purposes of this Section 10.8, insurance proceeds include deductible amounts. 10.9 Agreement Not to Repair. If the Property is destroyed or substantially damaged, and the Commercial Property Owner, the Condominium Property Owner (subject to the Condominium Act) and the Public Parking Garage Property Owner agree not to rebuild, repair or restore the Property, subject to the written approval of the Mortgagees of the Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner,then the Property shall be demolished to the extent necessary to comply with all applicable Laws. In such event, the available insurance proceeds, other than insurance proceeds used to cause demolition to be performed, shall be refunded to each Owner in the same ratio of insurance proceeds contributed by such Owner or by such Owner's insurance company to the total insurance proceeds paid by reason of such damage or, if the insurance is provided by a single policy covering the Property, then in the ratio of insurance proceeds attributed by the insurer to such Owner's portion of the Property and Owned Facilities to the total insurance proceeds paid by reason of such damage. If the Owners agree not to rebuild, repair or restore the Property, the rights of the Owners to receive available insurance proceeds,if any, shall be subject to the rights of the Mortgagees with respect to the applicable Owner's share of any such available insurance proceeds. Such demolition shall be deemed to be a"repair or restoration"to which the provisions of Sections 10.5, 10.6, 10.7 and 10.10 are applicable except that demolition,and not construction,shall be performed. In the event the Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner agree not to rebuild the Property, subject to the written approval of the Mortgagees of such Owners,they may also make provision for sale of the Project Site by the Owners and distribution of sale proceeds, 35 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc all subject to the written approval of the Mortgagees of the Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner. 10.10 Costs Defined. For purposes of this Article 10, architects' and engineers' fees, attorneys' fees, consultants' fees, title insurance premiums and other similar costs and expenses relating to repair or restoration shall be included in the costs and expenses of any such repair or restoration. 10.11 Restoration of Condominium Property. In the event of fire or other "disaster" (as such term is used in the Condominium Act) causing damage to the Condominium Property which would entitle the Condominium Property Owner, under the Condominium Act or Condominium Declaration, not to repair and restore the Condominium Property as required by this Agreement or not to use insurance proceeds for repair and restore of the Condominium Property, notwithstanding the foregoing sentence, then prior to disbursement of any insurance or other proceeds to Condominium Unit Owners and no later than one hundred twenty (120) days after occurrence of the fire or other disaster in any event, if affirmative action and provision has not been taken by such date by the Condominium Property Owner to repair and restore the Condominium Property, the Condominium Property Owner shall pay to the Commercial Property Owner and to the Public Parking Garage Property Owner an amount necessary so that the Commercial Property Owner and the Public Parking Garage Property Owner shall have sufficient proceeds to demolish or repair and restore the Property to a condition so as adequately to assure: (a) the structural integrity and safety of the Property; (b) the continuous and efficient operation of all Property electrical, utility, mechanical, plumbing and other systems and Facilities serving the Commercial Property and the Public Parking Garage Property; (c) compliance with all zoning, building and other laws, rules, orders, ordinances, regulations and requirements of any governmental body or municipality or agency having jurisdiction of the Property; and (d) the architectural unity and aesthetic appearance of the restored Property as first-class property. ARTICLE 11 LIENS, DEBTS, INTEREST AND REMEDIES. 11.1 Failure to Perform. If, at any time, any Owner fails within ten (10) days after notice or demand to pay any sum of money due to a Creditor Owner under or pursuant to the provisions of this Agreement (thereby becoming a Defaulting Owner), then, in addition to any other rights or remedies the Creditor Owner may have, the Creditor Owner shall have (i) a lien against the portion of the Property or Project Site owned by the Defaulting Owner and (ii) for a default under Article 10, a lien also against any insurance proceeds payable to the Defaulting Owner for loss or damage to such portion of the Property or Project Site or otherwise under insurance policies carried pursuant to Article 9 to secure the repayment of such sum of money and all interest on such sum accruing pursuant to the provisions of this Article 11. Such liens shall arise immediately upon the recording of a notice by the Creditor Owner with the Recorder and may be 36 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc enforced by a proceeding in equity to foreclose such lien in a manner similar to a foreclosure of a mortgage of real property in the State of Illinois or by any other remedy available by statute or at law or in equity or as provided for in Section 11.2. Such liens shall continue in full force and effect until such sum of money and any accrued interest thereon("Default Amount")shall have been paid in full.A Creditor Owner's liens provided for in this Section 11.1, shall be superior to and take precedence over any mortgage, trust deed or other encumbrance (including a mortgage or trust deed on a Condominium Unit) other than a Prior Lien constituting a lien on the portion of the Property or Project Site owned by the Defaulting Owner. A "Prior Lien"means (i)a First Mortgage(including a mortgage or trust deed on a Condominium Unit)which has been recorded against the Property or Project Site, or against a portion of either, prior to the time of the recording of the Creditor Owner's notice of lien, and (ii) with respect to any Condominium Unit,a lien in favor of the Condominium Association for common expenses and other charges as specified in Section 9(g)(1) of Condominium Act, for which a notice of lien has been recorded against the Condominium Unit in accordance with Section 9(h)of the Act prior to the time of the recording of the Creditor Owner's notice of lien. 11.2 No Diminution of Lien.No conveyance or other divestiture of title (except foreclosure of a Prior Lien which is superior to a lien arising under this Article 11) shall in any way affect or diminish any lien arising pursuant to this Article 11,and any lien which would have arisen against any property pursuant to this Article 11 had there been no conveyance or divestiture of title(except foreclosure of a Prior Lien which is superior to a lien arising under this Article 11)shall not be defeated or otherwise diminished or affected by reason of such conveyance or divestiture of title. Further, if at any time after the Condominium Property or a portion thereof has been submitted to the Illinois Condominium Act, any other Owner as a Creditor Owner has recorded a notice of lien under Section 11.1 against a Condominium Unit which lien has not been foreclosed, released or satisfied in full, and if such Condominium Unit is thereafter sold, then provided such Creditor Owner has notified the Condominium Association of the recordation of such notice of liens, such Creditor Owner shall be entitled to receive from the proceeds of the sale of such Condominium Unit an amount equal to the proceeds from the sale of such Condominium Unit minus any amount paid to satisfy the Prior Lien on such Condominium Unit,but in no event more than the product of the unpaid Default Amount multiplied by such Condominium Unit's percentage interest in the common elements in the condominium as shown in the Condominium Declaration. Upon payment of such amount, the Creditor Owner shall provide a partial release of its lien for such Condominium Unit in accordance with Section 21.13(A). A Creditor Owner shall notify the Condominium Association of the recordation, foreclosure, release or satisfaction of liens against the Condominium Units. The Condominium Association shall notify the other Owners in advance of any sale of a Condominium Unit against which a lien of a Creditor Owner is known to the Condominium Association to exist.Following any such sale,the Creditor Owner shall continue to have(x)a lien on such Condominium Unit and(y)the rights with respect to the proceeds of any subsequent sales of such Condominium Unit, as provided in this Article 11, to secure repayment of any remaining portion of the Default Amount secured by the lien that applies to such Condominium Unit, which lien shall be subordinate to any Prior Lien on such Condominium Unit. 11.3 Mortgagee's Subrogation. The holder of a mortgage or trust deed on all or any portion of the Commercial Property or of all or any portion of the Condominium Property or all or any portion of the Public Parking Garage Property shall have the right to be subrogated to the position of the holder of any lien arising pursuant to this Article 11 affecting the property secured by such holder's mortgage or trust deed upon payment of the amount secured by such lien. 37 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 11.4 Interest Rate. Interest shall accrue on sums owed by a Defaulting Owner to a Creditor Owner and shall be payable from the date any such sum first became due under until this Agreement paid in full, at a rate of interest equal to the lesser of: (a) the floating rate which is equal to three percent (3 %) per annum in excess of the annual rate of interest from time to time announced by The First National Bank of Chicago at Chicago, Illinois or any successor as its corporate base,prime or reference rate of interest or(b)the then maximum lawful rate of interest in Illinois applicable to the capacity of the Defaulting Owner and the nature of the debt. In the event a corporate base, prime or reference rate of interest is not announced or is not available, and no maximum lawful rate applies, then interest shall accrue at the annual rate of eighteen percent (18%). 11.5 Cumulative Remedies. Subject to the limitations set forth in Section 11.7, the rights and remedies of an Owner provided for in this Article 11 or elsewhere in this Agreement are cumulative and not intended to be exclusive of any other remedies to which such Owner may be entitled at law or in equity or by statute. An Owner may enforce, by a proceeding in equity for mandatory injunction, another Owner's obligation to execute or record any document which such other Owner is required to execute under or pursuant to this Agreement. The exercise by such Owner of any right or remedy to which it is entitled under this Agreement shall not preclude or restrict the exercise of any other right or remedy provided under this Agreement. The lien rights granted under Section 11.1 shall not preclude the filing of a lien under the Mechanics' Lien Act with respect to the Creditor Owner's performance pursuant to Articles 5 and 6 of this Agreement, as permitted by Section 21.15 of this Agreement. 11.6 No Set-Off. Each claim of any Owner arising under this Agreement shall be separate and distinct, and no defense, set-off, offset or counterclaim arising against the enforcement of any lien or other claim of any Owner shall thereby be or become a defense, set-off, offset or counterclaim against the enforcement of any other lien or claim. 11.7 Period of Limitation. Subject to Section 18.2(f)of the Condominium Act, actions to enforce any right, claim or lien under this Agreement shall be commenced within three (3) years immediately following the date the cause of action accrued, or such other shorter period as may be provided by law or statute. 11.8 Attorneys' Fees. A Defaulting Owner shall pay the reasonable attorneys' fees and court costs paid or incurred by a Creditor Owner in successfully enforcing its rights against the Defaulting Owner under this Agreement. ARTICLE 12 ARBITRATION All questions, differences, disputes, claims or controversies arising among or between Owners under this Agreement: (A) constituting a monetary claim involving an amount as to any one claim not exceeding $100,000.00 (in 2007 Equivalent Dollars); or (B) expressly made an Arbitrable Dispute or subject to arbitration under this Article 12 by the terms of this Agreement; or (C) involving any of the following matters: (i) selection of an insurance company or apportionment of insurance premiums under Section 9.2; 38 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (ii) appointment of a contractor or contractors pursuant to Section 10.5 or 14.4; (iii) replacement of the Architect pursuant to Section 19.1; (iv) other failure to agree on a matter described in Sections 2.7, 3.7,4.7 or 17.1 which this Agreement expressly requires the Owners to jointly decide or agree upon; or (v) disputes arising generally under Articles 6, 8, 9, 10 or 15. which (with respect to any of such matters) shall be not resolved within sixty (60) days after arising (or such other shorter or longer time period expressly provided in this Agreement),shall be submitted for arbitration to one (1) arbitrator at the Chicago, Illinois office of the American Arbitration Association in accordance with its then existing Commercial Arbitration Rules. Each Owner who is a party to the arbitration shall cause the arbitrator to be selected within seven (7) business days, and proceedings shall commence within five (5) business days after selection of the arbitrator,notwithstanding that a longer period may be allowed under the Commercial Arbitration Rules. In the case of disputes under clauses (C)(i), (ii) or (iii) of this Article 12, or where the subject for arbitration is otherwise the joint selection or appointment of an individual, company or other entity to perform professional or other services, the decision of the arbitrator shall be limited to the individuals, companies and other entities proposed by the Owners in their attempt to agree or from those included in an approved list submitted by the Owners. In the case of any other matter upon which the Parties fail to agree and which this Agreement expressly requires the Owners to jointly decide or agree upon, the decision of the arbitrator shall be limited to the terms (or a compromise of such terms) or within the scope of the terms proposed by each of the Owners in the negotiations of the issue. Any award issued by the arbitrator shall take into account and be consistent with any standards, terms or conditions contained in this Agreement expressly governing the subject of the dispute, except in those instances where the arbitrator is required to select an individual, company or entity from those selected by the Owners and none meets such standards, terms or conditions. Arbitration may be initiated by any Owner. The Owner initiating arbitration shall notify the Mortgagees of the filing of a claim and demand in arbitration within five (5) days after filing such claim and demand. Owners may not seek injunctive relief in the arbitration. The fees and costs of any arbitration (including filing fees, arbitrators' fees and expenses, and court reporters' fees and transcript fees,but excluding witness fees and attorneys' fees)shall be borne equally by the Owners involved in the arbitration;provided that the arbitrator may include in its award any of the fees and costs of arbitration. Any award of the arbitrator shall be final and binding upon the Owners and judgment on such award shall be entered by any court of competent jurisdiction. Any award including payment of delinquent amounts shall include interest on such delinquent amounts at the rate set forth in Section 11.4. Where a dispute involves both matters which are Arbitrable Disputes and matters which are not Arbitrable Disputes which are not easily divisible, the dispute shall not be submitted to arbitration. The Owners reserve and may exercise all rights and remedies available at law or in equity with respect to questions, differences,disputes, claims and controversies not required to be arbitrated pursuant to this Article 12. ARTICLE 13 UNAVOIDABLE DELAYS No Owner shall be deemed to be in default in the performance of any obligation created under or pursuant to this Agreement, other than an obligation requiring the payment of a sum of money, if and as long as non-perfoiniance of such obligation shall be directly caused by fire or other casualty,national emergency, governmental or municipal laws or restrictions,enemy action, civil commotion, strikes, lockouts, unavailability of labor or materials to projects generally in the greater 39 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Chicago area, war or national defense preemptions, acts of God, energy shortages or similar causes beyond the reasonable control of such Owner applicable to projects generally in the greater Chicago area(other than inability to make payment of money)("Unavoidable Delay ") and the time limit for such performance shall be extended for a period equal to the period of any such Unavoidable Delay. However, if non-performance is due to an Unavoidable Delay which does not affect another Owner's self- help remedy which otherwise may be exercised for such non-performance, then notwithstanding such Unavoidable Delay such other Owner shall still be entitled to such remedy with respect to those obligations to have been performed by the Owner unable to perform (hereinafter in this Article 13 the "Non-Performing Owner") which are the subject of Unavoidable Delay. The Non-Performing Owner shall notify the other Owners in writing of the existence and nature of any Unavoidable Delay within a reasonable time after the onset of any such Unavoidable Delay.The Non-Performing Owner shall,from time to time upon written request of any other Owner, keep such other Owner fully informed, in writing, of all further developments concerning any such Unavoidable Delay. ARTICLE 14 CONDEMNATION 14.1 In General. In the event of a taking by the exercise of the power of eminent domain or deed in lieu of condemnation of all or any part of the Property or Project Site by any competent authority for any public or quasi-public use,the award,damages or just compensation (hereinafter in this Article 14,the"Award")resulting from any such taking shall be allocated and disbursed, and any repair and restoration of the Property shall be performed, in accordance with the requirements of this Article 14. The Owners shall cooperate with one another to maximize the amount of the Award. 14.2 Payment of Award to Depositar: Temporary Taking Awards. All Awards resulting from the taking of all or any part of the Property or Project Site, other than damages resulting from a taking of the temporary use of space, shall be paid to the Depositary by the Owners regardless of the Owner who received the Award and disbursed by the Depositary as provided in this Article 14. In the event of a taking of a temporary use of any space not including Owned Facilities or affecting services described in Article 6, each Owner shall be entitled to receive directly from the taking authority any Award resulting from such temporary taking within its respective portion of the Project Site. 14.3 Taking of Only One Parcel. In the event of(A) a taking (other than a temporary taking) of a part of the Commercial Property or (B) a taking (other than a temporary taking) of a part of the Condominium Property or (C) a taking (other than a temporary taking) of a part of the Public Parking Garage Property then, subject to the provisions of Section 14.6, the Owner of the portion of the Property in which the taking occurred shall repair and restore the remainder of its portion of the Property to form an architectural and functional whole. Such repair and restoration shall be commenced and pursued to completion in as timely a manner as practicable under the circumstances and shall be at the sole cost and expense of the Owner of the portion of the Property in which the taking occurred. Such Owner shall be entitled to withdraw any Award paid to the Depositary by reason of such taking for application to the cost of such repair and restoration in accordance with the provisions of Article 18 and to retain any excess not required for such repair and restoration; provided, however, that the right of any particular Owner to receive a portion of such excess, if any, shall be subject to the provisions of 40 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Section 21.12. If at any time any Owner so obligated to repair and restore such damage shall not proceed diligently with any repair or restoration adversely and materially affecting an Easement in favor of any other Owner or Owners or services to be furnished the other Owners under Article 6, then (i) the Creditor Owners may give written notice to the Defaulting Owner specifying the respect or respects in which such repair or restoration is not proceeding diligently and, if, upon expiration of ten (10) days after the receipt of such notice, any such work of repair or restoration' is still not proceeding diligently, then the Creditor Owners may perform such repair and restoration and may take all appropriate steps to carry out such repair and restoration; or (ii) in an Emergency Situation (other than an Emergency Situation involving solely an economic loss) the Creditor Owners may immediately perform such repair or restoration and may take all appropriate steps to carry out such repair and restoration. In performing such repair and restoration, the Creditor Owners shall, in accordance with Article 18, be entitled to withdraw any Award and any other monies held by the Depositary as a result of any such taking, for application to the cost and expense of any such repair or restoration and shall also be entitled to reimbursement upon demand from the Defaulting Owner for all costs and expenses incurred by the Creditor Owners in excess of the Award and other monies. Repair and restoration under this Section 14.3 constitute Alterations, except that the Owner performing repair and restoration shall not be required to obtain the other Owners' consent if it would not otherwise be required under Article 15 and Section 15.1(E)(iii) shall not apply. 14.4 Repair and Restoration by All Owners. In the event of a taking other than (A) a temporary taking described in Section 14.2,(B)a taking described in Section 14.3, or (C) a taking of all or substantially all of the Property or Project Site, then, subject to the provisions of Section 14.6,the Owners shall cooperate to repair and restore the remainder of the Property in accordance with plans and specifications(hereinafter described)jointly approved by the Involved Owners (hereinafter defined) and their Mortgagees. Such repair and restoration shall be commenced and pursued to completion in as timely a manner as practicable under the circumstances and shall be performed on behalf of all of the Owners by a contractor or contractors j ointly selected by the Owners whose portion of the Property are affected ("Involved Owners ") (subject to the approval of their Mortgagees if the approximate cost of repair and restoration is greater than S500,000.00 (in 2007 Equivalent Dollars)), except as hereinafter provided. In the event the Involved Owners (with approval of their Mortgagees, when required) fail to agree upon the selection of a contractor or contractors,the Involved Owners shall request the advice of the Architect. If after receiving the Architect's advice, the Involved Owners (with approval of their Mortgagees, when required) cannot agree on a contractor or contractors, then the selection of a contractor or contractors shall constitute an Arbitrable Dispute. If such repair and restoration is to be performed solely in one Owner's portion of the Property,then the approval of the other Owners(and approval by such Owners'Mortgagees) shall not be required with respect to the plans and specifications which do not materially affect the other Owners and which do not constitute Alterations, nor shall the consent of the other Owners (and approval by such Owners' Mortgagees)be required with respect to the selection of a contractor.The plans and specifications for such repair and restoration shall be prepared by the Architect, unless the Involved Owners shall otherwise agree in accordance with instructions given by all Involved Owners, all subject to the approval of their Mortgagees. Such plans and specification shall provide for repair and restoration of the remainder of the Property to form an architectural and functional whole with such changes in the Property as shall be required by reason of such taking.If, as a result of such taking, any Easements or covenants under this Agreement are extinguished or materially impaired,then changes shall be made to provide for easements of access, ingress and egress and use of Facilities and for furnishing of services comparable, to the extent commercially practicable, to Easements created under Articles 2, 3 and 4 and for the furnishing of services under Article 6. 41 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc The Architect will furnish to each of the Owners (but only if and to the extent such Owner's approval is required)and the Mortgagees a set of such plans and specifications for their approval.Unless the Involved Owners otherwise agree (subject to the approval of their Mortgagees, if the approximate cost of the repair and restoration is greater than $500,000.00 (in 2007 Equivalent Dollars)),the contractor or contractors shall work under the supervision of the Architect,and the Architect is hereby authorized and directed to instruct the Depositary, from time to time,but only with the prior approval of the Owner or Owners in whose portion of the Project Site such repair and restoration is being performed and the Mortgagees,as such repair and restoration progresses,to disburse, in accordance with Article 18, any Award paid to the Depositary for application to the cost and expense of such repair and restoration. 14.5 Excess Award. The Award for any taking described in Section 14.4 shall first be used to pay for the repair and restoration (including any demolition, repair or restoration under Section 14.6). Any excess of the Award over the cost of repair and restoration then shall be allocated to an Owner in the same ratio as the apportionment of the Award to parties with an interest in such Owner's portion of the Project Site in any judicial or administrative proceedings in connection with the taking bears to the apportionment of the Award to the parties with an interest in the other Owners' portion of the Project Site; provided, however, that the right of the Owners to receive any such excess shall be subject to the provisions of Section 21.12. If there is no apportionment in any judicial or administrative proceeding, the Owners shall petition for such apportionment,if possible. Otherwise,the Owners shall negotiate with one another in good faith to arrive at an allocation to each Owner of such excess based upon the same general criteria that would have been used in such proceedings to apportion the Award. A failure to reach agreement shall constitute an Arbitrable Dispute. 14.6 Demolition. If, as a result of a taking (other than a temporary taking or a taking described in Section 14.7), any Owner reasonably determines that its portion of the Property no longer can be operated on an economically feasible basis,then such Owner shall not be obligated to repair or restore its portion of the Property as may be required by Sections 14.3 and 14.4. However,in such case,the Owner not repairing or restoring shall demolish, repair or restore its portion of the Property to the extent, if any, as may be necessary to provide structural support for the other portions of the Property. Such demolition, repair or restoration shall be deemed to be a repair or restoration to which the provisions of Section 14.4 are applicable. 14.7 Allocation of Award. In the event of a taking of all or substantially all of the Property or Project Site,the Award for such taking shall be allocated to the Owners in accordance with the apportionment made in any final judicial or administrative proceedings in connection with the taking and paid to the Owners in accordance with that apportionment;provided,however,that the right of the Owners to receive any award and payment shall be subject to the provisions of Section 21.12. 14.8 Condominium. If at any time any portion of the Condominium Property is submitted to the Condominium Act, then, with respect to the Condominium Property only, the provisions of this Article 14 are subject to the applicable provisions of the Condominium Act. ARTICLE 15 ALTERATIONS 42 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 15.1 Permitted Alterations. (A) An Owner (hereinafter in this Article 15, "Altering Owner") may, at any time, at such Altering Owner's sole cost and expense,make additions, improvements or alterations(here-inafter in this Article 15, "Alterations") to such Altering Owner's portion of the Property, provided that such Alterations comply with all of the provisions of this Article 15. Alterations shall include relocation of Facilities, which shall be permitted, subject to compliance with the conditions set forth in this Article 15. Subject to the provisions of Section 6.9, replacement of Facilities may be made by an Altering Owner without consent of other Owners. The provisions of this Article 15 governing Alterations do not negate or diminish other provisions of this Agreement having to do with additions, improvements or alterations expressly required or permitted in Articles 5, 6, 7, 10 and 14, which are governed by such provisions unless also designated in such Articles as "Alterations" to be governed by this Article 15. (B)Alterations shall not be made without the prior written consent of the other Owners if such Alterations will: (i) during their performance or upon their completion, unreasonably diminish the benefits afforded to such other Owners by an Easement or unreasonably interrupt such other Owners' use or enjoyment of any Easement; (ii) during their performance or upon their completion, degrade or diminish services to the other Owners under Article 6; (iii) consist of drilling, coring, chopping, cutting or otherwise making any opening or hole into any Structural Supports that serve any Improvements other than the Improvements of the Altering Owner; or (C) If, at any time,the Altering Owner proposes to make any Alterations which require or could possibly require (in the Altering Owner's reasonable opinion or the reasonable opinion of any other Owner) the consent of other Owners as expressly provided in this Article 15, then before commencing or proceeding with such Alterations, the Altering Owner, at its own cost, shall deliver to such other Owners a copy of the plans and specifications showing the proposed Alterations and a reference to this Section 15.1.An Altering Owner may also at any time request confirmation from the other Owners that their consent is not required with respect to proposed Alterations if such Alterations do not require their consent, and such confirmation shall be given within ten (10) business days after the request is made. A failure to respond by the expiration of such ten (10) business day period shall be deemed a confirmation. If such other Owners consent to such Alterations or do not respond within thirty (30) days after receipt of such plans and specifications, the Altering Owner may proceed to make its Alterations substantially in accordance with such plans and specifications. The Owners whose consent is requested will not unreasonably delay their response, having in mind the scope and complexity of the proposed Alterations, and in any event shall respond to the Altering Owner within thirty (30) days after receipt from the Altering Owner of such plans and specifications showing proposed Alterations. If, in the good faith opinion of the other Owners, the Altering Owner has violated or will violate the provisions of Section 15.1 (A) or (B), then such Owners (the "Objecting Party") believing a violation exists shall notify the Altering Owner of its opinion that the Alterations or proposed Alterations violate or will violate the provisions of Section 15.1 (A) or (B), and shall specify the respect or respects in which its provisions are or will be violated. If an 43 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Objecting Party in good faith asserts a violation of Section 15.1 (A) or (B), then the Altering Owner shall not commence with the Alterations or proceed with the Alterations, if already commenced, until the matter has been resolved (except in an Emergency Situation). In addition to any other legal or equitable rights or remedies to which the Objecting Party may be entitled by reason of an Altering Owner's violation or likely violation of the provisions of this Section 15.1, the Objecting Party shall be entitled to seek and obtain injunctive relief to enjoin any such violation. (D) If any matter arises between any two (2) or more Owners with respect to whether any Alterations or proposed Alterations violate the provisions of Section 15.1 (A) or(B), then any Owner may submit such matter to the Architect for its advice, and the Architect shall render its opinion whether the Alterations or proposed Alterations violate the provisions of Section 15.1 (A)or (B). (E) The Owners, in making Alterations, shall (i) perform all work in a good and workmanlike manner and in accordance with good construction practices, (ii) comply with all Laws, including, without limitation, the City of Elgin Building Code, and (iii) comply with all of the applicable provisions of this Agreement. Each Owner shall, to the extent reasonably practicable, make Alterations within its portions of the Property in such a manner and at times so as to minimize any noise, vibrations, particulates and dust infiltration or other disturbance which would disturb an occupant or occupants of the other portions of the Property, but such Owner shall not be liable in any event for damages as a result of any such disturbance (as opposed to physical damageto property) normally incidental to construction. The foregoing restriction on damages shall not restrict an Owner's right to seek and obtain injunctive relief from unreasonable disturbances, which shall not include normal construction activities in a mixed-use development. An Altering Owner may perform work during any hours permitted by applicable Law. However, if requested by an Owner who would otherwise suffer unreasonable disturbance and who pays all costs associated with work at times other than normal business hours, including overtime and delay costs,the Altering Owner shall not unreasonably refuse to perform work outside normal business hours. 15.2 Property Permits. Applications for building permits to make Alterations shall be filed and processed by the Altering Owner without the joinder of the other Owners in such application, unless the City of Elgin or other government agency having jurisdiction requires joinder of the other Owners. An Altering Owner shall send copies of any building permits to another Owner at such other Owner's request. If joinder by the other Owners not making Alterations is so required, such Owners shall cooperate (at the expense of the Altering Owner) in executing such application, permit or other instruments as may be necessary to obtain the building permit; provided, however, the Altering Owner shall indemnify and hold harmless the other Owners from and against any and all loss, liability, claims, judgments, costs and expenses arising out of the other Owners' execution of the application, permit or other instrument. If an Owner fails to execute such application, permit or instruments when required to do so, the Altering Owner is hereby irrevocably appointed attorney-in-fact of such other Owner (such power of attorney being coupled with an interest) to execute such application, penuit or instruments on behalf of such other Owner. 15.3 No Liens Against Other Portions of the Property. An Owner performing any work required, provided for or permitted under this Agreement shall include in any construction contract a provision pursuant to which the contractor recognizes the separate ownership of the portions of the Property and agrees that any lien rights which the contractor or subcontractors have under the 44 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Mechanics' Lien Act shall only be enforceable against the portion of the Property or Project Site owned by the Altering Owner. ARTICLE 16 ESTOPPEL CERTIFICATES 16.1 Estoppel Certificates. Each Owner shall, from time to time, within ten (10) days after written request from any other Owner, any prospective transferee of any other Owner or any Mortgagee or prospective Mortgagee which has complied with the notice provisions of Section 21.12(B), execute, acknowledge and deliver to the requesting party, a certificate ("Estoppel Certificate") stating: (A) That the terms and provisions of this Agreement are unmodified and are in full force and effect or, if modified, identifying such modifications; (B) Whether, to the knowledge of the Owner executing the Estoppel Certificate, there is any existing default under this Agreement (or grounds for a default after giving the requisite notice under this Agreement)by the requesting Owner and, if so, specifying the nature and extent of such default; (C) Whether there are any sums (other than those arising out of the normal course of operation of the Property within the previous ninety [90] days) which the Owner executing such Estoppel Certificate is entitled to receive or demand from the requesting Owner, and if there is any such sum, specifying the nature and amounts of such sums; (D) Whether the Owner executing the Estoppel Certificate has performed or is performing work other than services pursuant to Article 6,the cost of which such Owner is or will be entitled to charge in whole or in part to the requesting Owner under the provisions of this Agreement, but has not yet charged to such requesting Owner, and if there is any such work, specifying the nature and extent of such work and the projected amount to be paid by the requesting Owner; (E) The nature and extent of any setoffs, claims, counterclaims or defenses then being asserted or capable of being asserted(after giving the requisite notice,if any,required under this Agreement), or otherwise known by the Owner, against the enforcement of the requesting Owner's rights under this Agreement; (F) The total amount of all liens being asserted or capable of being asserted (after giving the requisite notice, if any, required under this Agreement) by the Owner executing - the Estoppel Certificate under the provisions of this Agreement, describing the applicable provision or provisions and the details of any such lien claim; (G) Whether the Owner executing the Estoppel Certificate has requested that a matter be submitted to arbitration,which matter has not been discharged,released or otherwise resolved, and if so, a copy of any such notice or notices shall be delivered with the Estoppel Certificate; - 45 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (H) The nature of any arbitration proceeding or finding under Article 12 made within the ninety (90) days preceding the date of such Estoppel Certificate; (I) The current address or addresses to which notices given to the Owner executing such Estoppel Certificate are required to be mailed under Article 20; and (J) Such other facts or conclusions as may be reasonably requested. At any time a portion of the Condominium Property has been submitted to and remains subject to the Condominium Act, Estoppel Certificates may only be requested by the Condominium Association and not by Condominium Unit Owner (except that in connection with a sale or financing of a Condominium Unit or other transaction involving a Condominium Unit, the Condominium Association may request an Estoppel Certificate on behalf of a Condominium Unit Owner and such Estoppel Certificate need only include the items under (B) and (F) [and in the case of (F), as to the Condominium Unit only]); and Estoppel Certificates requested of the Condominium Property Owner as to that portion of the Condominium Property submitted to the Condominium Act shall be given by the Condominium Association and, to the maximum extent permitted by Law, shall bind all Condominium Unit Owners. If the requesting party is a Mortgagee or prospective Mortgagee, the Owner on whose property it holds or intends to hold a Mortgage will be deemed the "requesting Owner. " If the requesting party is a prospective transferee of an Owner, such Owner will be deemed the "requesting Owner." ARTICLE 17 DEPOSITARY 17.1 Appointment of Depositary. A depositary (the "Depositary") shall be appointed as provided in this Section 17.1 to receive insurance proceeds and condemnation Awards, to disburse such monies and to act otherwise in accordance with the terms and provisions of this Agreement.The Depositary shall be appointed by the Owners jointly, and shall be one of the then five(5)largest banks or trust companies(measured in terms of capital funds)with principal offices in Chicago, Illinois. The Depositary shall be entitled to receive from each of the Owners such Owner's equitable share of the Depositary's reasonable fees and expenses for acting as Depositary,and may retain such fees and expenses, free of trust, from monies held by it. Any Depositary appointed to act under this Agreement shall execute an agreement with the Owners accepting such appointment in substantially the fowl attached hereto as Exhibit 17.1. 17.2 Liability of Depositary. The Depositary shall not be liable or accountable for any action taken or disbursement made in good faith by the Depositary, except that arising from its own negligence. The Depositary's reliance upon advice of independent competent counsel shall be conclusive evidence of good faith, but shall not be the only manner in which good faith may be shown. The Depositary shall have no affirmative obligation to prosecute a determination of the amount of, or to effect the collection of, any insurance proceeds or condemnation Award or Awards unless the Depositary shall have been given an express written authorization from the Owners;provided that if only one Owner is entitled to insurance proceeds or condemnation Award or Awards, then that Owner may authorize the Depositary to so proceed. In addition, the Depositary may rely conclusively on any certificate furnished by the Architect to the Depositary in accordance with the provisions of Section 18.1 and shall not be liable or accountable for any disbursement of funds made by it in reliance upon such certificate or authorization. 46 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 17.3 Interest on Deposited Funds. The Depositary shall have no obligation to pay interest on any monies held by it unless the Depositary shall have given an express written undertaking to do so; or, unless all of the Owners for whose benefit monies are being held have requested, and the Mortgagees of the Owners have concurred, in connection with a specified deposit of funds with the Depositary, that the Depositary undertake to do so. However, if the monies on deposit are not held in an interest-bearing account pursuant to an agreement among the Depositary and the Owners, then the Depositary, within thirty (30) days after request from any of the Owners given to the Depositary and to the other Owners, shall purchase with such monies, to the extent feasible, negotiable United States Government securities payable to bearer and maturing within one (1) year from the date of purchase, except insofar as it would, in the good faith judgment of the Depositary, be impracticable to invest in such securities by reason of any disbursement of such monies which the Depositary expects to make shortly thereafter, and the Depositary shall hold such securities in trust in accordance with the terms and provisions of this Agreement.Any interest paid or received by the Depositary on monies or securities held in trust, and any gain on the redemption or sale of any securities, shall be added to the monies or securities held in trust by the Depositary. Unless the Depositary shall have undertaken to pay interest thereon, monies received by the Depositary pursuant to any of the provisions of this Agreement shall not be mingled with the Depositary's own funds and shall be held by the Depositary in trust for the uses and purposes provided for in this Agreement. 17.4 Indemnification of Depositary. In consideration of the services rendered by Depositary, the Owners jointly and severally hereby agree to indemnify and hold harmless the Depositary from any and all damage, liability or expense of any kind (including, but not limited to, reasonable attorneys'fees and expenses)incurred in the course of the Depositary's duties under this Agreement or in the defense of any claim or claims made against the Depositary by reason of its appointment under this Agreement, except where due to the negligence of the Depositary or actions not taken in good faith by the Depositary. 17.5 Resignation of Depositary.The Depositary may resign upon the delivery of not less than sixty (60) days' prior written notice to all of the Owners and Mortgagees. Within thirty (30)days after receipt of such notice,the Owners jointly shall appoint a substitute which qualifies under Section 17.1,and the Depositary shall transfer all funds,together with copies of all records,held by it as Depositary to such substitute, at which time its duties as Depositary shall cease. If the Owners shall fail to appoint a substitute within thirty (30) days, the Depositary may deposit such funds with either a court of competent jurisdiction or with a bank or trust company in Chicago, Illinois, which qualifies under Section 17.1. ARTICLE 18 DISBURSEMENTS OF FUNDS BY DEPOSITARY 18.1 Disbursement Requests. (A) Each request by the Architect acting pursuant to the provisions of this Agreement for disbursement of insurance proceeds, any Award or other funds for application to the cost of repair, restoration or demolition (the "work") shall be accompanied by a certificate of the Architect or another Person having knowledge of the facts reasonably acceptable to the Owners and their Mortgagees, dated not more than ten (10) days prior to the date of the request for any 47 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc such disbursement, stating the following in its professional judgment based on periodic observations of the work: (1) That the amount requested either (a) has been or will be paid by or on behalf of an Owner (in which event the certificate shall name such Owner) or by or on behalf of all of the Owners(in which event the certificate shall specify the amount paid by each respective Owner), or(b) is properly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the work; such certificate shall also give a brief description of such services and materials and the principal subdivisions or categories thereof, the respective amounts paid or due to each named person and shall state the progress of the work up to the date of the certificate and any other information required by the Mechanics' Lien Act and any title insurer affording coverage against mechanics' liens; (2) That the amount requested, plus all sums previously disbursed, does not exceed the cost of the work actually in place up to the date of the certificate plus the cost of materials supplied and actually stored on site; (3) That no part of the cost of the services and materials described in the certificate has been the basis of the withdrawal of any funds pursuant to any previous request or is the basis of any other pending request for funds; and (4) Other information which may from time to time be required by the Mortgagees which is customarily required by mortgagees of comparable first-class buildings, as may be agreed to by Owners. (B) Upon: (i) compliance with the provisions of Section 18.1(A), and (ii) receipt of contractors' and subcontractors'sworn statements required under the Mechanics'Lien Act accompanied by partial or final waivers of lien, as appropriate, and any other information required by any title insurer affording coverage against mechanics'liens from the persons named in the sworn statements, and (iii) approval by the title insurer,the Owners and the Mortgagees of the lien waivers and other documentation, and the willingness of the title insurer to issue an endorsement(satisfactory to the Owners and the Mortgagees)insuring over possible mechanics' lien claims relating to work in place and the continued priority of the liens in favor of the Mortgagees, the Depositary shall, out of the monies held by the Depositary, pay or cause to be paid to the Owners, contractors, subcontractors, materialmen, engineers, architects and other persons named in the Architect's certificate and contractors' and subcontractors' sworn statements the respective amounts stated in the certificate and statements as due to such persons. Notwithstanding the foregoing, any or all of the Owners or the Mortgagees or the Depository may require that disbursements be made through a customary foinl of construction escrow then in use in Chicago,Illinois,with such changes as may be required to conform to the requirements or provisions of this Agreement. The Depository may rely conclusively, with respect to the information contained therein, on any certificate furnished by the Architect to the Depositary in accordance with the provisions of this Section 18.1 and shall not be 48 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc liable or accountable for any disbursement of funds made by it in reliance upon such certificate or authorization. 18.2 No Lien or Consent by Contractor.No contractor, subcontractor, materialman, engineer,architect or any other person, other than the Owners and the Mortgagees,shall have any interest in or right to or lien upon any funds held by the Depositary. The Owners, with the consent of the Mortgagees, may jointly provide at any time for a different disposition of funds than that provided for in this Agreement, without the necessity of obtaining the consent of any contractor, subcontractor, materialman, engineer, architect or any other person. If at any time the Owners, with the consent of the Mortgagees, shall jointly instruct the Depositary in writing with regard to the disbursement of any funds held by the Depositary, then the Depositary shall disburse such funds in accordance with such instructions and the Depositary shall have no liability to anyone by reason of having disbursed funds in accordance with such instructions. ARTICLE 19 ARCHITECT 19.1 Appointment of Architect. The Owners shall jointly appoint a finn consisting of both architects and engineers (or a firm of architects and a firm of engineers agreeing to act jointly)experienced in the design and operation of developments similar to the Property to serve under and pursuant to the terms and provisions of this Agreement(the"Architect").The Architect shall, upon its appointment, execute an agreement with the Owners substantially in the form of The American Institute of Architects' ("AIA") then-standard fonn agreement between owners and architects for designated services with such modifications as are mutually acceptable to the Architect and the Owners, which agreement shall incorporate those services and modifications necessary to implement the provisions of this Agreement and shall provide that the Owners may cause the then- serving Architect to be replaced without cause upon thirty(30)days'prior written notice. The Owners jointly may replace the Architect for any reason. The Mortgagees shall have the right to approve the appointment of the Architect in the first instance or any replacement of the Architect. Any Owner also may cause any Architect to be replaced, and the other Owners shall be deemed to have consented to such replacement,if it demonstrates to the other Owners that such then-serving Architect has failed to perform its duties diligently or competently. If all Owners do not jointly desire to replace the Architect,then the Owner desiring replacement of the Architect shall serve notice upon the other Owners and the Mortgagees requesting the removal of the then-serving Architect, which notice shall set forth with specificity the respect or respects-in which the Architect shall have failed to perform diligently or competently. If, in the opinion of the Owners or Mortgagees receiving such notice, the Owner desiring to replace the Architect is not entitled to require the appointment of a new Architect pursuant to this Section 19.1,an Owner or Mortgagee receiving such notice and objecting to the appointment of a new Architect shall notify the other Owners and Mortgagees of its objection in writing within fifteen (15) days after receipt of such notice from the requesting Owner. If, within ten (10) days after receipt by the Owner desiring to replace the Architect of such objection, the Owners do not resolve their differences (subject to the approval of their Mortgagees), then the dispute shall constitute an Arbitrable Dispute. The Architect sought to be replaced may give evidence or otherwise participate in the arbitration proceeding,but that proceeding shall not serve any purpose other than the purpose of determining whether an Owner is entitled to have the Architect replaced. Any Architect shall have the right to resign at any time upon not less than ninety (90) days' prior written notice to the Owners and the Mortgagees. 49 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc 19.2 Notice of Submission of Dispute to Architect. In any instance when the Architect serving pursuant to Section 19.1 is authorized by this Agreement to advise the Owners concerning any dispute or matter, any Owner involved in such dispute or matter may submit such dispute or matter to the Architect. The Owner submitting such dispute or matter to the Architect shall simultaneously give written notice of the submission of such dispute or matter to the other Owner or Owners involved in such dispute or matter and to the Mortgagees. The Architect shall, except in an Emergency Situation, afford each Owner involved in any dispute or matter, and any attorney or other representative designated by such Owner or the Mortgagees, an opportunity to furnish information or data or to present such party's views. The Architect shall not be liable for any advice given by it under this Agreement, or for any other action taken by it under this Agreement, if done in good faith and in the absence of negligence. No advice given by the Architect under this Agreement shall be binding on the Owners, and an Owner may accept or reject such advice. 19.3 Replacement of Architect.If any new Architect is appointed, and if the Architect being replaced is then engaged in the resolution of any dispute or matter previously submitted,or if the Architect being replaced is then engaged in the preparation of any plans and specifications or in the supervision of any work required under or pursuant to this Agreement, then, if the Owners so choose, subject to the consent of the Mortgagees, the Architect being replaced shall continue to act as Architect with respect, and only with respect,to such pending dispute or matter or the completion of such preparation of plans and specifications or supervision of any such work. 19.4 Architect's Fees. The Architect shall be paid a reasonable fee for any services rendered under this Agreement and shall be reimbursed for reasonable and necessary expenses incurred in connection with such services, and each Owner involved in the work shall pay its equitable share of such fees. In this regard, in any instance when the Architect shall, in accordance with any of the provisions of this Agreement, render services in connection with the preparation of plans and specifications or the supervision of repair, restoration or demolition of the Property or any part thereof,the fees and expenses of the Architect shall be considered as costs and expenses of such repair, restoration or demolition, as the case may be, and shall be paid in the same manner as other costs and expenses of repair, restoration and demolition under the provisions of this Agreement pursuant to which the Architect is performing such services. If any Owner shall fail to pay its allocable share of any fees or expenses of the Architect within ten(10)days after receipt of any invoice from the Architect, then any other Owner may pay such share and the Owner failing to pay shall, within ten (10) days after written demand for reimbursement, reimburse the other Owner for any such payment. ARTICLE 20 NOTICES AND APPROVALS 20.1 Notice to Parties. Each notice,demand,request, consent,approval, disapproval, designation or other communication(all of the foregoing are herein referred to as a"notice")that an Owner is required, permitted or desires to give or make or communicate to any other Owner shall be in writing and shall be (i) delivered personally, with a receipt requested therefor; or (ii) sent by telecopy facsimile; or (iii) sent by a recognized overnight courier service; or (iv) delivered by United States registered or certified mail, return receipt requested, postage prepaid.All notices shall be addressed to the Owners at their respective addresses set forth below,and shall be effective (a) upon receipt or refusal if delivered personally or by telecopy facsimile; (b) one(1) business day after depositing with a recognized overnight courier service; or (c) two (2) business days after 50 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc deposit in the mails, if mailed. All notices by telecopy facsimile shall be subsequently confirmed by U.S. certified or registered mail. If to the Commercial Property Owner: Fountain Square on the River Commercial Condominium Association, Inc. With copy to: Schnell, Bazos, Freeman, Kramer, Schuster & Vanek 1250 Larkin Ave. Suite 100 Elgin, Illinois Attention: Peter C. Bazos, Esq. Fax (847) 742-9777 If to the Public Parking Garage Property Owner: City of Elgin Attention: City Manager Femi Folarin 150 Dexter Ct. Elgin, Illinois 60120 Fax: (847) 931-5610 With a copy to: Attention: William Cogley City Attorney 150 Dexter Ct. Elgin, Illinois 60120 Fax: (847) 931-5665 If to the Condominium Property Owner: Fountain Square on the River Condominium Association With copy to: Schnell, Bazos, Freeman, Kramer, Schuster& Vanek 1250 Larkin Ave. Suite 100 Elgin, Illinois Attention: Peter C. Bazos, Esq. Fax (847) 742-9777 Any Owner may designate a different address or additional addresses from time to time, provided such Owner has given at least ten (10) days' prior notice of such change of address. Failure to give notices to an Owner's counsel identified above shall not render notice to such Owner or Mortgagee invalid or ineffective. If any. Owner shall cease to be the "Owner" of its respective portion of the Property, and the succeeding Owner of that portion of the Property shall fail to give a notice of change of address, then notices may be sent to any one of the following: (i) to the last Owner of record 51 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc disclosed to the Owner giving notice, (ii) to "Owner of Record" at the street address for that Owner's portion of the Property as designated by the U.S. Postal Service (or by the successor of the U.S. Postal Service) or the City of Elgin department or agency having jurisdiction over City of Elgin addresses, or (iii) to the grantee at the address shown in that last recorded conveyance of the portion of the Property in question. Notwithstanding anything to the contrary contained in this Agreement, all notices relating to (i) defaults or claims of default under this Agreement, (ii) change of notice address, or (iii) requests for arbitration shall be made by personal delivery or United States registered or certified mail, return receipt requested, postage prepaid. 20.2 Multiple Owners. If at any time the interest or estate of the Commercial Property Owner, the Condominium Property Owner or the Public Parking Garage Property Owner shall be owned by more than one Person (hereinafter collectively referred to as "multiple owners"), the multiple owners shall give to the other Owners a written notice, executed and acknowledged by all of the multiple owners, in a form proper for recording, which shall (a) designate one Person, having an address in the State of Illinois to whom shall be given, as agent for all of the multiple owners, all notices thereafter given to the multiple owners, and (b) designate such Person as agent for the service of process in any action or proceeding, whether before a court or by arbitration, involving the determination or enforcement of any rights or obligations under this Agreement. At any time the Condominium Property or any portion thereof has been submitted to and remains subject to the Condominium Act, the Condominium Association is hereby designated as agent for all of the Condominium Unit Owners for the purposes of clause (a) and (b) of the immediately preceding sentence. Thereafter, until such designation is revoked by written notice given by all of the multiple owners of their successors in interest, any notice, and any summons, complaint or other legal process or notice given in connection with an arbitration proceeding (which such summonses, complaints, legal processes and notices given in connection with arbitration proceedings are hereafter in this Article 20 collectively referred to as "legal process"), given to, or served upon, such agent shall be deemed to have been given to, or served upon, each and every one of the multiple owners at the same time that such notice or legal process is given to,or served upon,such agent. If the multiple owners shall fail to designate in writing one such agent to whom all notices are to be given and upon whom all legal process is to be served,or if such designation shall be revoked and a new agent is not designated,then any notice or legal process may be given to, or served upon, any one of the multiple owners as agent for all of the multiple owners and such notice or legal process shall be deemed to have been given to, or served upon, each and every one of the multiple owners at the same time that such notice or legal process is given to, or served upon, any one of them, and each of the multiple owners shall be deemed to have appointed each of the other multiple owners as agent for the receipt of notices and the service of legal process. The term "multiple owners" as used in this Section 20.2 shall not include Condominium Unit Owners at any time the Condominium Property or any portion thereof is subject to the Condominium Act; provided, however, that notice to or from the Condominium Unit Owners shall be governed by Section 21.13(A). ARTICLE 21 GENERAL 21.1 Cooperation of Owners. In fulfilling obligations and exercising rights under this Agreement, each Owner shall cooperate with the other Owners to promote the efficient operation of each respective portion of the Property and the harmonious relationship among the Owners and to protect the value of each Owner's respective portion, estate or interest in the Property. To that end, each Owner shall share information which it possesses relating to matters which are the subject of this Agreement, 52 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doe except such information as such Owner may reasonably deem confidential or which may be the subject of litigation or which such Owner is prohibited from revealing pursuant to court order. From time to time after the date of this Agreement, each Owner shall famish, execute and acknowledge, without charge (except as otherwise provided in this Agreement) such other instruments, documents, materials and information as another Owner may reasonably request in order to confirm to such requesting Owner the benefits contemplated by this Agreement, but only so long as any such request does not restrict or abridge the benefits granted the other Owner under this Agreement. The Owners will execute and record the Plat of Condominium, and the Owners agree to execute such amendments to this Agreement as may be necessary to modify the legal description for the Project Site and the Parcels to conform to the Plat of Condominium and to obtain consents of their Mortgagees, if required to record the Plat of Condominium or to confirm subordination of their Mortgages to such amendments. Except as otherwise expressly provided in this Agreement, whenever the consent, approval or agreement of an Owner is required or requested pursuant to this Agreement, such consent, approval or agreement shall not be unreasonably withheld, delayed or conditioned. 21.2 Severability. The illegality, invalidity or unenforceability under law of any covenant, restriction or condition or any other provision of this Agreement shall not impair or affect in any manner the validity, enforceability or effect of the remaining provisions of this Agreement. 21.3 Headings. The headings of Articles and Sections in this Agreement are for convenience of reference only and shall not in any way limit or define the content, substance or effect of the Articles or Sections. 21.4 Amendments to Agreement. Except as otherwise provided in this Agreement, this Agreement (including specifically, without limitation, Section 11.1) may be amended or terminated only by an instrument signed by all of the then Owners, and consented to by the Mortgagees. As to Condominium Property, consent to or execution by the mortgagees of any Condominium Unit (other than a Mortgagee under a mortgage initially placed on the entire Condominium Property or all Condominium Units) shall not be required, and any such Condominium Unit mortgages shall nevertheless be subordinate to such amendments. Any amendment to or termination of this Agreement shall be recorded with the Recorder. Any amendment which affects only the rights and obligations of some(but less than all)of the Owners shall require execution only by the affected Owners. Notwithstanding the foregoing and upon completion of Phase I as described in Paragraph G of the Recitals, each Owner hereby agrees to amend this Agreement (the "Phase II Amendment") to: (i) expand the areas within the Commercial Parcel, the Condominium Parcel and/or the Public Parking Garage Parcel; (ii) modify the Commercial Improvements, the Condominium Improvements and/or the Public Parking Garage Improvements; (iii)extend the easements,rights, obligations,duties and remedies as set forth herein to the additional parcel(s),improvements and facilities as depicted within the overall Site Plan attached hereto as Exhibit G. 21.5 Term. The covenants,conditions and restrictions contained in this Agreement shall be enforceable by the Owners and their respective successors and assigns for the term of this Agreement, which shall be perpetual (or if the law provides for a time limit on any covenant, condition or restriction, then such covenant, condition or restriction shall be enforceable for such shorter period), subject to amendment or termination as set forth in Section 21.4. If the law provides 53 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc for such shorter period, then upon expiration of such shorter period, such covenants, conditions and restrictions shall be extended automatically without further act or deed of the Owners, except as may be required by law, for successive periods of twenty (20) years, subject to amendment or termination as set forth in Section 21.4. 21.6 Construction of Agreement. The provisions of this Agreement shall be construed to the end that the Property shall remain a first-class residential and commercial mixed-use property. 21.7 Abandonment of Easements. Easements created hereunder shall not be presumed abandoned by non-use or the occurrence of damage or destruction of a portion of the Property subject to an Easement unless the Owner benefited by such Easement states in writing its intention to abandon the Easement; provided, however, that the consent of the Mortgagees shall also be required with respect to any such abandonment. 21.8 Applicable Laws. The Parties acknowledge that this Agreement and all other instruments in connection with this Agreement have been negotiated, executed and delivered in the County of Kane and State of Illinois.This Agreement and such other instruments shall,in all respects, be governed, construed, applied and enforced in accordance with the laws of the State of Illinois, including without limitation, matters affecting title to all real property described in this Agreement, and, to the extent applicable to the Condominium Property, the Condominium Act. 21.9 Name of Project. The project to be developed on the Property is currently named "Fountain Square on the River." Each of the Owners shall have a non-exclusive right to use the name "Fountain Square on the River"as the name of such Owner's portion of the Property, and each of the Owners shall have the right to use a name other than "Fountain Square on the River" as the name of the such Owner's portion of the Property, and each of the Owners shall have the right to change the name of their respective portions of the Property from time to time. 21.10 No Third-Party.Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions or remedies to any person or entity as a third party beneficiary (except the Mortgagees) under any Laws or otherwise. 21.11 Incorporation. Each provision of the Recitals to this Agreement and each Exhibit and Appendix attached hereto is hereby incorporated in this Agreement and is an integral part hereof. 21.12 Notice to Mortgagees; Rights of Mortgagee. (A) The tenn "Mortgage" as used in this Agreement shall mean any mortgage(or any trust deed) given primarily to secure the repayment of money owed by the mortgagor and constituting a lien on all or a substantial portion of the real property encumbered by such mortgage); provided, however, no mortgage or trust deed on an individual Condominium Unit (other than a mortgage initially placed on the entire Condominium Property or all Condominium Units) shall be included within the definition of "Mortgage" unless specifically stated to the contrary. The term "Mortgagee" as used in this Agreement shall mean the Mortgagee from time to time under any such Mortgage (or the beneficiary under any such trust deed). The term "First Mortgage" shall mean a Mortgage that is superior to all other consensual liens and encumbrances. 54 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (B)If a Mortgagee shall have served on all of the Owners,by personal delivery or by United States registered or certified mail, return receipt requested, postage prepaid, a written notice specifying the name and address of such Mortgagee, such Mortgagee shall be given a copy of each and every notice required to be given by one Owner to the others at the same time as and whenever such notice shall be given by one Owner to the others,at the address last furnished by such Mortgagee.After receipt of such notice from a Mortgagee,no notice thereafter given by any Owner to the others shall be deemed to have been given unless and until a copy of such notice shall have been given to the Mortgagee. If a Mortgagee so provides or otherwise requires in a notice is given by the Mortgagee in accordance with this Section 21.12(B), then: (1) the proceeds of any claim under an insurance policy or condemnation Award required to be delivered to an Owner shall, upon notice from a Mortgagee, be delivered to such Owner's Mortgagee to be disbursed by the Mortgagee to the Depositary in accordance with the provisions of this Agreement; and (2) if an Owner shall fail to appoint an arbitrator or otherwise take any action as may be required or permitted under this Agreement with respect to arbitration, such appointment or action as otherwise would have been permitted by that Owner may be taken by its Mortgagee and such appointment and action shall be recognized in all respects by the other Owners. (C) Notwithstanding anything to the contrary specified in this Agreement (including this Section 21.12),no Owner need give any notice to more than one Mortgagee per Parcel,or to any mortgagee or trustee under a mortgage or trust deed other than a"Mortgage" as defined in Section 21.12(A). 21.13 Condominium Association and Condominium Unit Owner Liability: Condominium Declaration. (A) All rights, Easements and benefits under this Agreement appurtenant to or enjoyed by the Condominium Property shall be exercised by the Condominium Association on behalf of the Condominium Unit Owners except for the Easements granted by Section 2.11 and except for Easements which by their nature are exercisable only by Condominium Unit Owners individually. Any action to enforce rights, obligations,Easements,burdens and benefits under this Agreement on behalf of the Condominium Unit Owners or the Condominium Association shall be taken on behalf of all Condominium Unit Owners and the Condominium Association solely by the Condominium Association by its duly authorized officers acting pursuant to authority granted by law, the Condominium Declaration or resolution of the board of managers of the Condominium Property. All obligations of the Condominium Property Owner under this Agreement shall be the obligations jointly and severally of both the Condominium Association and the Condominium Unit Owners collectively so long as the Condominium Property is subject to the Condominium Act; provided, however, that no individual Condominium Unit Owner (or the holder of any mortgage on such Condominium Unit Owner's Condominium Unit) shall be liablefor any obligation of the Condominium Property Owner in excess of a percentage of such liability equal to the percentage interest in the common elements in the condominium attributable to such Condominium Unit as shown in the Condominium Declaration. In any case, such liability of a Condominium Unit Owner shall be subject to the provisions of Section 22.1. Upon payment of such amount for which a Condominium Unit Owner may be liable, (i)any lien arising against such Condominium Unit Owner's Condominium Unit on account of such claim shall be deemed released against such Condominium Unit Owner's Condominium Unit without further act or deed by any such Condominium Unit Owner, and(ii)upon the written request of such Condominium Unit 55 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Owner, Creditor Owner who has recorded notice of such lien shall deliver to such Condominium Unit Owner an instrument evidencing the release of such lien, but only with respect to such Condominium Unit Owner's Condominium Unit. When a Condominium Unit is owned by more than one "person" (as defined in the Condominium Act)the liability of each such person for any claim against the Condominium Unit shall be joint and several. Notices under Section 20.1 from a Condominium Unit Owner or Condominium Unit Owners shall be given by the Condominium Association. (B)The terms of the Condominium Declaration shall be consistent with the provisions of this Agreement and no amendments shall be made to the Condominium Declaration which shall conflict with the terms of this Agreement. The Condominium Declaration shall provide, at a minimum, that the board of directors of the Condominium Association may act, to the extent allowed by the Condominium Act, on behalf of the Condominium Unit Owners in complying with provisions of and performing obligations under this Agreement without Condominium Unit Owner authorization, that such actions shall bind all of the board of directors of the Condominium Unit Owners, and that the board of directors of the Condominium Association shall assess all Condominium Unit Owners a sufficient level of assessments to satisfy the obligations of the Condominium Property Owner under this Agreement. 21.14 Coordination with Commercial Property Tenants. Unless the Commercial Property Owner otherwise agrees in writing in each case, and except in an Emergency Situation, Commercial Property Owner shall coordinate all requests and contacts between any other Owner and tenants of the Commercial Property relating to the enjoyment of any Easements or the exercise of any rights or benefits granted under this Agreement or with respect to any other matters arising under or pursuant to this Agreement; provided, however, any such coordination shall not render the Commercial Property Owner liable either to such tenants of the Commercial Property or any other Owner for acts of either other party. 21.15 Waiver of Mechanics' Liens by Owners,. To the maximum extent permitted by law, the Owners do hereby fully and completely waive and release, for themselves, their successors and assigns, any and all claim of, or right to, liens, which such Owners may have under the Mechanics' Lien Act against, or with respect to the Property or improvements owned by any other Owner or any part thereof, or with respect to the estate or interest of any person in the Property or improvements owned by any other Owner, or any part thereof, or with respect to any material, fixtures, apparatus, or machinery furnished or to be furnished pursuant to this Agreement, by the Owners, their successors, assigns, materialmen, contractors, subcontractors, or subsubcontractors, of any labor, services, material, fixtures, apparatus, machinery, improvements, repairs or alterations in connection with the Property or the improvements thereon, other than with respect to any of the foregoing furnished pursuant to Article 5 or Article 6. The Parties agree that the legal effect of this Agreement is that no mechanics' lien or claim may be filed or maintained by any Owner under the Mechanics' Lien Act with respect to that portion of the Property or improvements owned by any other Owner, except as set forth in Articles 5 and 6 of this Agreement. The provisions of this Section 21.15 are not intended to waive any lien created under Article 11. 21.16 Binding Effect. The Easements, covenants and restrictions created under this Agreement shall be binding upon and inure to the benefit of all parties having or acquiring any right, title or interest in or to any portion of, or interest or estate in, the Property, and each of the foregoing shall run with the land. 56 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc ARTICLE 22 LIMITATION OF LIABILITY 22.1 Limitation of Liability. The liability under this Agreement of an Owner shall be limited to and enforceable solely against the assets of such Owner constituting an interest in the Property(including insurance and condemnation proceeds attributable to the Property and including, where the Owner is a trustee of a land trust, the subject matter of the trust) and not other assets of such Owner, except as hereinafter provided in this Section 22.1 and in Sections 11.1 and 11.2. Assets of an Owner which is a partnership do not include the assets of the partners of such partnership Owner, and a negative capital account of a partner in a partnership which is an Owner and an obligation of a partner to contribute capital to the partnership which is an Owner shall not be deemed to be assets of the partnership which is an Owner. At any time during which an Owner is trustee of a land trust,all of the covenants and conditions to be performed by it under this Agreement are undertaken solely as trustee, as aforesaid, and not individually,and no personal liability shall be asserted or be enforceable against it or any of the beneficiaries under the trust agreement by reason of any of the covenants or conditions contained in this Agreement. ARTICLE 23 TEMPORARY CONSTRUCTION EASEMENTS 23.1 General. The Owners acknowledge and agree that each of the Condominium Improvements,the Commercial Improvements and the Public Parking Garage Improvements will depend upon the other for structural support,enclose, ingress and egress, construction staging and storage,temporary utility services and certain other facilities and components during construction.The ability to complete the construction of the Improvements in accordance with the applicable Plans and the construction schedules of the Owners will depend upon the progress and condition of the construction of each portion of the Improvements.Each Owner recognizes and acknowledges the need of the other Owners(i)to complete construction of its Improvements in order to comply with obligations of such Owner to third parties; (ii) to have available certain areas of the other Owners'Property to it and its Construction Designees,for ingress and egress to perform its Work,and for construction staging, storage and delivery of materials; (iii)to be able to protect and preserve the safety of all Construction Designees and all Permittees using such Owner's Improvements and(iv)to complete construction in an expeditious and efficient manner(collectively,the "Construction Objectives"). 23.2 Grants of Temporary Construction Easements. Subject to the terms, conditions and limitations set forth in this Agreement,each Owner hereby grants to each other Owner,for the use and benefit of such other Owner, the following non-exclusive, irrevocable Easements (but limited in duration as provided in Section 23.4)appurtenant to the grantee Owner's Parcel,for the following purposes: (A) Ingress and Egress. Ingress and egress by a grantee Owner and its Construction Designees as may be reasonably necessary for:(i)access to the grantor Owner's Parcel in connection with the performance of the grantee Owner's portion of the Work; (ii)the proper exercise of any right or Easement granted by this Agreement; and(iii)receiving deliveries of equipment,machinery, tools and materials, used in performing a grantee Owner's portion of the Work, for storage and staging as provided in Sections 23.2(D) and (F). The grantor Owner shall designate areas on and through its 57 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc Parcel for such ingress and egress, chosen to help facilitate and coordinate the construction activities and Construction Objectives of a grantee Owner and its Construction Designees. (B) Construction Equipment and Machinery. Erecting, operating, dismantling and removing construction equipment and machinery, including, without limitation, cranes, overhangs, scaffolding, exterior hoists and debris chutes as may be reasonably be necessary to allow a grantee Owner to erect, maintain or protect its portion of the Work. Each grantee Owner further agrees to install, use and remove or cause to be installed, used or removed in timely fashion such cranes, overhangs, scaffolding, exterior hoists and debris chutes in a manner that does not interfere with the Construction Objectives of a grantor. (C) Safety Precautions. Providing reasonable precautions for the safety of, and reasonable protection to: (i) all Construction Designees and all Permittees of any Owner, all occupants of the Improvements and any other persons who may be affected by the construction of the Improvements; (ii) all tools, machinery and equipment and all improvements, materials and equipment to be incorporated into any portion of the Improvements,stored on the Property,or under the care, custody or control of any Construction Designee;and(iii)all other property located at the Property or adjacent thereto,including,without limitation,trees,shrubs, lawns,walks,pavements,roadways, structures and utilities. (D) Storage. Storage of materials, supplies, equipment and tools to be used in construction of any portion of the Improvements or to be incorporated into any portion of the Work at locations on a Parcel designated by a grantor Owner,chosen to help facilitate and coordinate the construction activities and Construction Objectives of a grantee Owner and its Construction Designees; provided, however, that an Owner may reasonably re-designate or restrict such storage to locations in such Owner's Parcel and for periods of time which will avoid material interference in achieving the such Owner's Construction Objectives. (E) Security. Safeguarding the Improvements,together with any other property located on the Property,from and against risk of loss,theft and vandalism. (F) Staging. Staging of construction on a grantor Owner's Parcel, in areas which are located in such proximity to a grantee Owner's Parcel that makes the use of the grantor Owner's Parcel necessary or expeditious in the construction or repair of a grantee Owner's portion of the Work, as designated by the grantor Owner, chosen to help facilitate or coordinate the construction activities and Construction Objectives of the grantee Owner and its Construction Designees; provided, however, that an Owner may reasonably re-designate or restrict such staging to locations in such Owner's Parcel and for periods of time which will avoid material interference. (G) Coordination of Work. Connecting, joining attaching or testing any improvements that serve or are considered part of two or more of the Commercial Improvements, the Condominium Improvements and the Public Parking Garage Improvements, including, without limitation, walls slabs structural elements, Structural Supports,mechanical components or any utility or similar system. (H) Temporary Utilities. Connection, installing, maintaining, using and removing all temporary utilities and related equipment, including,without limitation, electrical panels, utility substantions, standpipe systems and pumps,as may be reasonably necessary to construct the Improvements or as otherwise required by Law. 58 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc (I) Temporary Construction Support. Use of any temporary construction support facilities furnished as part of the construction of any portion of the Improvements,together with the right to maintain such facilities as necessary. (J) Emergency. Taking appropriate measures, in the reasonable discretion of each Owner or its Construction Designees,in order to prevent injury or loss resulting from an Emergency Situation. (K) General. Performing any service not included with Easements granted by this Section 23 required to complete the construction of any portion of the Improvements; provided, however, that prior consent is obtained from each Owner that will be affected thereby (which consent will not be unreasonably withheld,conditions or delayed). 23.1 Exercise of Temporary Construction Easements. Each Owner shall use reasonable efforts to perform or cause performance of its Work,to use any Easements and to exercise any rights granted in this Article 23 in a manner which will avoid: (i) any increase in the cost of constructing and completing with Work of the other Owner; (ii) unreasonably interfering with the progress of the Work for which any other Owner is responsible; (iii) unreasonably interfering with the use, occupancy or enjoyment of any portion of any other Owner's Property by such other Owner, or its Permitees; (iv) injury, loss or damage to the Work of any other Owner or to any Construction Designee engaged or employed by any other Owner; and (v) material interference with an Owner's Construction Objectives. After use of any Easement or exercise of any right granted in this Article 23, the grantee Owner will promptly cause its Construction Designees to clean up the affected area of the grantor Owner's Parcel, leaving the affected area broom-clean and free of construction debris, materials, tools, machinery and equipment, to the extent reasonably practicable or necessary under the circumstances. 23.4 Termination. All Easements and rights granted in this Article 23 shall terminate two years after the date of this Agreement is recorded. Once terminated, within ten (10) days after written required by a grantor Owner, a grantee Owner will execute and deliver a release of the Easements and right granted in this Article 23 burdening a grantor Owner's Parcel in recordable form. [Signature page follows] 59 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. COMMERCIAL PROPERTY OWNER FOUNTAIN SQUARE ON THE RIVER COMMERCIAL CONDOMINIUM ASSOCIATION, INC. By: Its: STATE OF ILLINOIS } } COUNTY OF KANE } I, , a Notary Public in and for the County and State aforesaid, do hereby certify that , as of the Fountain Square on the River Commercial Condominium Association, an Illinois not-for-profit corporation, personally known to me to be the same person whose name is subscribed to the foregoing Agreement as such, appeared before me this day in person and acknowledged that he signed and delivered the Agreement a his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth herein. GIVEN,under my hand and notarial seal this day of , 2007 Notary Public My Commission Expires: 60 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc CONDOMINIUM PROPERTY OWNER FOUNTAIN SQUARE ON THE RIVER CONDOMINIUM ASSOCIATION, LTD. By: Its: STATE OF ILLINOIS } } COUNTY OF KANE } I, , a Notary Public in and for the County and State aforesaid, do hereby certify that , as of the Fountain Square on the River Condominium Association, an Illinois not-for-profit corporation, personally known to me to be the same person whose name is subscribed to the foregoing Agreement as such, appeared before me this day in person and acknowledged that he signed and delivered the Agreement a his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth herein. GIVEN, under my hand and notarial seal this day of , 2007 Notary Public My Commission Expires: 61 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc CITY OF ELGIN ( ai:, ._,,,, By: Olufemi blarin City Manager qlk - 0 ' Attest: Ili .. . r. : City Clerk STATE OF ILLINOIS } } COUNTY OF KANE } I, /Y)fi e y C,- F0 , a Notary Public in and for the County and State aforesaid, do hereby certify thatbieviepne , as C14 QJErly of the City of Elgin, an Illinois municipal corporation, personally known to me o be the same person whose name is subscribed to the foregoing Agreement as such, appeared before me this day in person and acknowledged that he signed and delivered the Agreement a his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth herein. GIVEN, under my hand and notarial seal this gday of 4-4' , 2007 c(_ _ 0/7 at` iv Notary P>~ lic/ 4 My Commission Expires: 4/ 0 "OFFICIAL SEAL" MARY GIFFORT i Notary Public,State of Illinois i My Commission Expires 6113108 62 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc CONSENT OF MORTGAGEE , holder of the mortgage dated , 2007 and recorded in the Office of the Recorded of Deeds of Kane County, Illinois on , as Document No. , hereby consents to the execution and recording of the attached Easement and Operating Agreement (attached hereto as Exhibit 1) and agrees that its mortgage is subject and subordinate thereto. IN WITNESS WHEREOF, has caused this Consent to be signed by its duly authorized officers on its behalf this day of , 2007. By: Title: By: Title: STATE OF } } COUNTY OF } I, , a Notary Public in and for the County and State aforesaid, do hereby certify that and , a President and , respectfully, of , a , as such President and appeared before me this day in person and acknowledged that they signed, sealed and delivered the Consent as their free and voluntary act, and as the free and voluntary act of such , for the uses and purposes set forth within the Easement and Operating Agreement dated , 2007. GIVEN under my hand and notarial seal this day of , 2007. 63 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT A -COMMERCIAL PARCEL THAT PART OF THE FOLLOWING DESCRIBED PROPERTY TAKEN AS A TRACT: THAT PART OF LOTS "A", "B", "C", "D", "E" AND "F" LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOTS 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866, IN BOOK 2 OF MAPS, PAGE 139-1/2, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AS LAID OUT BY JAMES T. GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. TRACT THAT PART OF THE PREVIOUSLY DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 33%%D-29'-00" WEST, 51.72 FEET TO A POINT; THENCE SOUTHWESTERLY , AT RIGHT ANGLES, 2.30 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING; THENCE CONTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 42.45 FEET; THENCE SOUTEASTERLY, ALONG SAID WALL LINE, 12.59 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1.21 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 7.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1 .41 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 6.60 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 34.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 7.00 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 11.31 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY, FOLLOWING ALONG SAID WALL LINE, 19.40 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND CONCRETE CEILING, ELEVATION 726.68, ALL IN THE CITY OF ELGIN, KANE COUNTY ILLINOIS. AND THAT PART OF THE PREVIOUS DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 33%%D-29'-00" WEST, 138.27 FEET, TO A POINT; THENCE SOUTHWESTERLY, AT RIGHT ANGLES, 2.02 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING; THENCE COTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.83 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 7.05 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.43 FEET; THENCE 64 W:IWORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc SOUTHWESTERLY, ALONG SAID WALL LINE, 0.67 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.24 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.13 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.57 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 4.04 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.42 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 30.70 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 18.13 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.57 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID WALL LINE, 2.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.60 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 18.25 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 23.40 FEET; THENCE EASTERLY, ALONG SAID WALL LINE, 3.58 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 15.94 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 7.27 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 6.72 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 9.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 2.52 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 14.38 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.85 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 17.98 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.80 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 9.18 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY FOLLOWING ALONG THE SAID WALL LINE, 77.42 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND THE CONCRETE CEILING, ELEVATION 726.57, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 65 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT B -CONDOMINIUM PARCEL AT PART OF THE FOLLOWING DESCRIBED PROPERTY TAKEN AS A TRACT: THAT PART OF LOTS "A", "B", "C", "D", "E" AND "F" LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOTS 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866, IN BOOK 2 OF MAPS, PAGE 139-1/2, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AS LAID OUT BY JAMES T. GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND LOTS 17, 18, 21 AND 22 (EXCEPT THAT PART OF SAID LOTS, IF ANY, FALLING WITHIN RIVERSIDE AVENUE) OF B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN THE EAST FRACTION OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE (NOW VACATED) IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22 AND SAID LOTS 17 AND 18 AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND LOTS 19 AND 20 AND THE VACATED 20 - FOOT ALLEY LYING BETWEEN SAID LOTS IN B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER (EXCEPT THAT PART LYING WEST OF THE EASTERLY LINE OF RIVERSIDE AVENUE, AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885, IN BOOK 7, PAGE 13), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND THAT PART OF THE 18 - FOOT - WIDE ALLEY NOW KNOWN AS "FOUNTAIN SQUARE WAY" LYING BETWEEN B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER AND HARVEY AND AMICK'S SUBDIVISION OF LOTS 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ALL IN THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THIRD PRINCIPAL MERIDIAN IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF LOT A OF SAID HARVEY AND AMICK'S SUBDIVISION; THENCE ON AN ASSUMED BEARING OF SOUTH 56❑-29'-29" WEST, 184.00 FEET ALONG THE NORTHWESTERLY LINE OF SAID 66 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc LOT A TO THE NORTHWESTERLY CORNER THEREOF; THENCE NORTH 330-29'- 00" WEST, 18.00 FEET ALONG THE NORTHWESTERLY EXTENSION OF THE SOUTHWESTERLY LINE OF SAID HARVEY AND AMICK'S SUBDIVISION TO THE SOUTHWESTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF SAID B.W. RAYMOND'S SUBDIVISION; THENCE NORTH 560-29'-29" EAST, 184.00 FEET ALONG SAID EXTENSION AND SAID SOUTHEASTERLY LINE TO THE SOUTHEASTERLY CORNER OF SAID B.W. RAYMOND'S SUBDIVISION; THENCE SOUTH 330-29'-00" EAST, 18.00 FEET ALONG THE SOUTHWESTERLY LINE OF SOUTH GROVE AVENUE TO THE POINT OF BEGINNING. AND PART OF RIVERSIDE AVENUE VACATED BY DOCUMENT 2007K035739 TRACT BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF RIVERSIDE AVENUE WITH THE SOUTHERLY LINE OF THE AFORESAID NORTHERLY 22 FEET OF LOT 8 AND RUNNING THENCE NORTH 33%%D-26'-44" WEST, MEASURED, ALONG THE EASTERLY LINE OF RIVERSIDE AVENUE ANDA PART OF VACATED RIVERSIDE AVENUE, 220.72 FEET; THENCE NORTH 55%%D-59'-21" EAST, PARALLEL WITH THE NORTH SIDE OF THE PARKING DECK OF FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS, 125.35 FEET; THENCE SOUTH 34%%D-00'-39" EAST. 9.02 FEET; THENCE NORTH 55%%D-59'-21" EAST, 25.92 FEET; THENCE SOUTH 33%%D-29'-55" EAST, 12.41 FEET; THENCE NORTH 56%%D-30'-05" EAST, 32.31 FEET, TO THE WESTERLY LINE OF SOUTH GROVE AVENUE; THENCE SOUTH 33%%D-29'-00" EAST, ALONG SAID WESTERLY LINE, 200.77 FEET, TO THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE AFORESAID NORTHERLY 22 FEET OF LOT 8; THENCE SOUTH 56%%D-32'-31" WEST, ALONG SAID SOUTHERLY LINE, 183.81 FEET, MORE OR LESS TO THE POINT OF BEGINNING ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. EXCEPTING THEREFROM THAT PART OF THE PREVIOUSLY DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 33%%D-29'-00" WEST, 51 .72 FEET TO A POINT; THENCE SOUTHWESTERLY , AT RIGHT ANGLES, 2.30 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING; THENCE CONTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 42.45 FEET; THENCE SOUTEASTERLY, ALONG SAID WALL LINE, 12.59 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1.21 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 7.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1 .41 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 6.60 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 34.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 7.00 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 11.31 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY, FOLLOWING ALONG SAID WALL LINE, 19.40 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND 67 W:IWORK 1340601MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND CONCRETE CEILING, ELEVATION 726.68, ALL IN THE CITY OF ELGIN, KANE COUNTY ILLINOIS. ALSO EXCEPTING THAT PART OF THE PREVIOUS DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 33%%D-29'-00" WEST, 138.27 FEET, TO A POINT; THENCE SOUTHWESTERLY, AT RIGHT ANGLES, 2.02 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING; THENCE COTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.83 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 7.05 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.43 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 0.67 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.24 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.13 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.57 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 4.04 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.42 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 30.70 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 18.13 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.57 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID WALL LINE, 2.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.60 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 18.25 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 23.40 FEET; THENCE EASTERLY, ALONG SAID WALL LINE, 3.58 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 15.94 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 7.27 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 6.72 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 9.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 2.52 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 14.38 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.85 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 17.98 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.80 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 9.18 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY FOLLOWING ALONG THE SAID WALL LINE, 77.42 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND THE CONCRETE CEILING, ELEVATION 726.57, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 68 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT C- PUBLIC PARKING GARAGE PARCEL THAT AREA DESCRIBED AS CITY PARKING UNIT P-1 ON THE PLAT OF CONDOMINIUM OF THE FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS PREPARED BY INTECT CONSULTANTS, INC. AND RECORED ON , 2007 IN THE KANE COUNTY RECORDED OF DEED AS DOCUMENT NO. 69 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v 1 0-Clean.docean.doc EXHIBIT D - COMMERCIAL IMPROVEMENTS THOSE IMPROVEMENTS AS ARE CONSTRUCTED WITHIN THE PROJECT SITE AND SPEICIFICALLY WITHIN THE COMMERCIAL PARCEL AS DEPICTED ON THE PLANS. 70 W:\WORK1340601MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT E -CONDOMINIUM IMPROVEMENTS THOSE IMPROVEMENTS AS ARE CONSTRUCTED WITHIN THE PROJECT SITE AND SPEICIFICALLY WITHIN THE CONDOMINIUM PARCEL AS DEPICTED ON THE PLANS. 71 W:\WORK134060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT F-PUBLIC PARKING GARAGE IMPROVEMENTS THOSE IMPROVEMENTS AS ARE CONSTRUCTED WITHIN THE PROJECT SITE AND SPEICIFICALLY WITHIN THE PUBLIC PARKING GARAGE PARCEL AS DEPICTED ON THE PLANS. 72 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT G- SITE PLAN 73 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc PJ I E •- SOUTH GROW AVE. PRECA;T CONCRETE _ --„srK SMIXO - CONDOMINIUM BUILDING .,,pm., 0 i!k ,PHa 5- ASE II PHASE I r' .,r . -=,.. --,. ." '. .- 'i:., I WOW... Q t B' Y® Mil iLIEV-..1.,,...;0_.:'-' SWI (j 0 . 3 A -A - :',, u'-r.. 1 uy 3 a • iii -dill 10-41111111a kill 111.11 it „ 1111:11n {p r: ,i a, a ICA'rg.' T=4 Jill �ro.. 'jlidinli: i °a ll=I_ SI®I ne.s ,. oesp:_n6K 3 .- ..` , !. ..._ UI i i' ;ser9! ai�� _-. ,_101,11011L- _ 41111111 si . _ �� '_ .fi N 1 _ LflV { t-- Ill i ,z Vialaseji as 1111111 1 °Y , ., ,.„ trit...i ,.:it,ik,., ,, : .;;,„ /plan, , 141 -_-_:_Li, Li II e 1 il ti ,.><`,.� i, i r—� 1ai . -r . R�` ii(i � ' __ � 'r 4-' twin ' - 11.1111 Sq11-- �� ca d 1 I > > cp PHASE II Pik SI I • a¢vuM_ may= h. - Ul ce RIVERSIDE DRIVE —. - --,. 4 c m n 3LL O W O SITE PLAN PHASE 1 D.,,r iwri,„ riir •I!IirLlIti'ilirirl IIIai=Lei= sJIII®' :IIIL a.1l91-i I • 1 iN . i I I 1-r[ ' ,r 1 ' 31_ caw"-• y.w 6rw mimilm 0 — L 1. i 1 , TNR DETAILAS1.11 EXHIBIT H—PLANS The Plans incorporated into this Agreement represent"preliminary building plans" and may not be fully representative of the actual Project Site as fully constructed and improved in an "as built" condition as of the recording of this document. To the extent the "as built" condition of the Project Site as of the recording of this document differs in any respect from the Plans incorporated herein, the easements,rights and obligations set forth herein shall be adjusted so as to conform with the "as built" condition of the Project. 74 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT I-PUD ORDINANCE 75 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square v10-Clean.docean.doc EXHIBIT I-PUD ORDINANCE 75 W:\WORK\34060\MASTER-Easement and Operating Agreement Fountain Square vl0-Clean.docean.doc State of Illinois ) County of Kane) ss City of Elgin ) CERTIFICATE OF CITY CLERK I, Dolorma Mecum, DO HEREBY CERTIFY that I am the duly qualified City Clerk of the City of Elgin, in the Counties of Kane and Cook in the State of Illinois, and that as such City Clerk I am the keeper and custodian of the files and records of said City of Elgin and the seal thereof. I DO FURTHER CERTLE Y that the attached is a full, true, and correct copy of: ORDINANCE NO. G96-04 AN ORDINANCE RECLASSi YING PROPERTY FROM CC1 CENTER CITY DISTRICT TO PCC PLANNED CENTER CITY DISTRICT (Fountain Square on the River, 6-52 South Grove Avenue) passed by the Elgin City Council at its legally convened meeting held on December 1, 2004. In Witness Whereof, I have hereunto set my hand and affixed the corporate seal of the City of Elgin at the said City in the County and State aforesaid this January 3, 2005. City Clerk (SEAL)