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• <br /> abatement deductions if it determines that the Applicant has not made reasonable efforts to substantially <br /> comply with all the Commitments, and the Applicant's failure to substantially comply with the <br /> Commitments was not due to factors beyond its reasonable control. As used in this Agreement, <br /> "substantial compliance"shall mean the Applicant's compliance with the following: (a)expenditures of <br /> no less than One Million Six Hundred Sixty Thousand Six Hundred Sixty One dollars($1,660,661)of <br /> capital investment towards the land purchase and the construction of a new restaurant Dairy Queen Grill <br /> &Chill located at 4836 Western Ave,South Bend,IN 46619;(b)this real property project will create at <br /> least twenty(20)permanent full-time jobs and twenty-five part-time jobs with a total estimated annual <br /> payroll of$741,000. <br /> 5. Factors Beyond Control. As used in this Agreement,factors beyond the control of the Applicant <br /> shall only include factors not reasonably foreseeable at the time of designation application and submission <br /> of Statement of Benefits which are not caused by any act or omission of the Applicant and which <br /> materially and adversely affect the ability of the Applicant to substantially comply with this Agreement. <br /> 6. Repayment of Tax Abatement Savings. If at any time during the term of this Agreement the <br /> Applicant shall: (i) be delinquent or in default with respect to any tax payment in St. Joseph County, <br /> Indiana;or(ii)cease operations at the facility for which the tax abatement was granted;or(iii)announce <br /> the cessation of operations at such facility, then the City may immediately terminate the Economic <br /> Revitalization Area designation and associated tax abatement deductions, and upon such termination, <br /> require Applicant to repay all of the tax abatement savings received through the date of such termination. <br /> 7. Notice/Hearing of Termination. In the event that the City determines that the Economic <br /> Revitalization Area designation and associated tax abatement deductions should be terminated or that all <br /> or a portion of the tax abatement savings should be repaid, it will give the Applicant notice of such <br /> determination, including a written statement calculating the amount due from the Applicant, and will <br /> provide the Applicant with an opportunity to meet with the City's designated representatives to show <br /> cause why the abatement should not be terminated and/or the tax savings repaid. Such notice shall state <br /> the names of the person with whom the Applicant may meet and will provide that the Applicant shall <br /> have thirty days from the date of such notice to arrange such meeting and to provide its evidence <br /> concerning why the abatement termination and/or tax savings repayment should not occur. If, after <br /> giving such notice and receiving such evidence,if any,the City determines that the abatement termination <br /> and/or the tax repayment action is proper, the Applicant shall be provided with written notice and a <br /> hearing before the SBCC before any final action shall be taken terminating the abatement and/or requiring <br /> repayment of tax benefits. The Applicant shall be entitled to appeal that determination to a St.Joseph <br /> County Superior or Circuit Court. <br /> 8. Repayment. In the event the City requires repayment of the tax abatement savings as provided <br /> hereunder,it shall provide Applicant with a written statement calculating the amount due(Statement),and <br /> Applicant shall make such repayment to the City within 30 days of the date of the Statement. If the <br /> Applicant does not make timely repayment,the City shall be entitled to all reasonable costs and attorneys' <br /> fees incurred in the enforcement and collection of the tax abatement savings required to be repaid <br /> hereunder. <br /> 9. Modification/Entire Agreement. This Agreement and the schedules attached here to contain the <br /> entire understanding between the City and the Applicant with respect to the subject matter hereof,and <br /> supersede all prior and contemporaneous agreements and understandings, inducements, and conditions, <br /> expressed or implied,oral or written,except as herein contained. This Agreement may not be modified or <br /> amended other than by an agreement in writing signed by the City and the Applicant. The Applicant <br />