R-16-10VILLAGE OF DEERFIELD
LAKE AND COOK COUNTIES, ILLINOIS
RESOLUTIONNO. R-16-10
A RESOLUTION AUTHORIZINIG
AN ECONOMIC INCENTIVE AGREEMENT
WHEREAS, the Village of Deerfield is a home rule unit of local government pursuant to
the provisions of Article VII, Section 6 of the Illinois Constitution; and
WHEREAS, except as limited by Article VII, Section 6 of the Illinois Constitution, the
Village has the authority to exercise any power and perform any function pertaining to its
government and affairs, including but not limited to the power to enter into this Economic
Incentive Agreement; and
WHEREAS, InSite Real Estate, LLC., the owner of 700 Lake Cook Road, and Portillo's,
have jointly proposed to the Village that a new Portillo's restaurant can be constructed at 700 Lake
Cook Road, and that the existing former On The Border restaurant can be demolished, (the
"Project"); and
WHEREAS, InSite Real Estate and Portillo's have represented to the Village that
economic assistance from the Village is required for the Project and that, without such economic
assistance, the Project would not be economically viable; and
WHEREAS, the corporate authorities of the Village of Deerfield have determined that it
is necessary, desirable and in the best interests of the Village to enter into an Economic Incentive
Agreement with InSite Real Estate and Portillo's in substantially the form attached hereto as
Exhibit A pursuant to which the Village agrees to share or rebate to Portillo's a portion of the sales
tax revenues that will be generated from operation of a new Portillo's restaurant at 700 Lake Cook
Road that, but for the economic incentive provided by said agreement, would not be generated
from the restaurant nor be received by the Village;
NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS,
in the exercise of its home rule powers, as follows:
SECTION 1: That the above and foregoing recitals, being material to this resolution, are
hereby incorporated into and made a part of this Resolution as if fully set forth herein.
SECTION 2: That the President and Village Clerk of the Village of Deerfield are hereby
authorized and directed to respectively execute and attest an Economic Incentive Agreement with
InSite Real Estate, LLC., and Portillo's in substantially the form attached hereto as Exhibit A for
and on behalf of the Village of Deerfield.
SECTION 3: That this Resolution, and each of its terms, shall be the effective legislative
act of a home rule municipality without regard to whether such Resolution should: (a) contain
terms contrary to the provisions of current or subsequent non -preemptive state law; or, (b) legislate
in a manner or regarding a matter not delegated to municipalities by state law. It is the intent of
the corporate authorities of the Village of Deerfield that to the extent that the terms of this
Resolution should be inconsistent with any non -preemptive state law, this Resolution shall
supersede state law in that regard within its jurisdiction.
SECTION 4: That this Resolution shall be in full force and effect from and after its
passage and approval as provided by law.
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PASSED this 6th day of June , 2016.
AYES: Jester, Seiden, Shapiro, Rosenthal
NAYS: None
ABSENT:Farkas, Nadler, Struthers
ABSTAIN: None
APPROVED this 6th day of June '2016.
ATTEST:
Village Clerk
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Village Prbsident
Portill6s Hot Dogs, LLC • 2001 Spring Road, Suite 400, Oak Brook, IL 60523-3930 • (630) 954-3773 • Fax (630) 954-5851 • w ..portillosxom
BY UPS — 2 DAY DELIVERY
August 5, 2016
Andrew S. Lichterman
Assistant Village Manager
Village of Deerfield
850 Waukegan Road
Deerfield, 1L 60015
Re: Portillo's Hot Dogs, LLC ("Portillo's)
700 Lake Cook Road, Deerfield, IL
Economic Incentive Agreement
Dear Mr. Lichterman:
Enclosed are four (4) originals of the Economic Incentive Agreement for the above reference property
which have been executed by the Owner, Deerfield, IL (700 Lake Cook), LLC and Portillo's. Please
arrange for the Village of Deerfield's signature on each original and return two (2) of them to the
undersigned. We will forward a fully executed copy to the Owner for their file.
Also enclosed is a copy of the fully executed Memorandum of Lease for this property.
If you have any questions or need further information, please do not hesitate to contact our General
Counsel, Susan Shelton, who can be reached by phone (630) 954-3773 or by e-mail at
(sshelton@yortillos.com). Thank you.
Very truly yours,
PORTILLO'S HOT DOGS, LLC
oa L u
Par 1
Enclosures
JL:hs
cc: Susan B. Shelton (by Email)
Robin Rash, Esq. (by Email)
ECONOMIC INCENTIVE AGREEMENT
This ECONOMIC INCENTIVE AGREEMENT ("Agreement") is made and entered into
as of thisb nday of 1V11G„ 2016, by and between the VILLAGE OF DEERFIELD, Cook and
Lake Counties, Illinois ("Village"), and DEERFIELD, IL (700 LAKE COOK), LLC, an Illinois
limited liability company, ("Owner") and PORTILLO'S HOT DOGS, LLC, a Delaware limited
liability company ("Portillo's"). Village, Owner and Portillo's may each be individually referred
to as a "Party" and collectively referred to as "Parties."
RECITALS
A. Owner is the owner of the property commonly known as 700 Lake Cook Road,
Deerfield, Illinois (the "Subject Property") within the Village and located at the northwest
quadrant of Lake Cook Road and Deer Lake Road. The legal description of the Subject Property
is attached hereto as Exhibit A.
B. Owner and Portillo's jointly propose a project (the "Project") for the Subject
Property which will involve the development of the Subject Property with a new Portillo's
restaurant with minimum leasable area of 8,500 square feet, outdoor seating, a dual drive-thru
facility with stacking for 30 vehicles (the "Restaurant") pursuant to a new minimum 20 -year
term lease between Portillo's and Owner ("Lease") containing terms which shall not be
inconsistent with this Agreement.
C. Owner and Portillo's have represented to the Village that economic assistance
from the Village is required for the Project and that, but for such economic assistance, the Project
would not be economically viable.
D. The targeted date for commencement of construction of the Restaurant is June 21,
2016 after Village grants Village land use approvals as may be required to entitle Owner and
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Portillo's to construct and operate the Restaurant on the Subject Property. Owner and Portillo's
agree to apply for building permit approvals no later than June 10, 2016 and pursue same with
due diligence thereafter, provided all Village land use approvals for the Project have all been
received. The Village agrees to make all reasonable efforts to expedite the permit review and
approval process. In the event that Owner and Portillo's have not received required building
permits for the Project on or before October, 2016, Village may, in the exercise of its sole
discretion, terminate this Agreement on written notice to Owner and Portillo's. It is expressly
understood by all parties that Village building permit approvals are not granted or obligated to be
provided by the Village in any manner by this Agreement.
E. Owner and Portillo's have represented to Village that (subject to causes beyond
Owner's and Portillo's reasonable control, such as acts of God, unusually inclement weather,
material shortages and labor strikes) the Restaurant will be opened and operating as a Portillo's
restaurant not later than June 21, 2017 (12) months after the commencement of construction.
F. Pursuant to the Village's power as a home rule municipal corporation of the State
of Illinois pursuant to Article VII, Section 6 of the 1970 Constitution of the State of Illinois, the
Village possesses the authority and power to enter into this Agreement.
G. Owner and Portillo's represent and warrant to the Village that their direct
investments in the Project will be an amount in excess of $6.5 million as set forth in Exhibit B
attached hereto.
H. Portillo's represents and warrants that there is estimated to be Six Hundred Forty -
Eight Thousand, Seven Hundred Twenty -Three and 05/100 Dollars ($648,723.05) in costs
related to extraordinary site preparation, design and construction costs in order to develop the
Subject Property and construct the Restaurant which costs are included in Exhibit B attached
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hereto.
I. Village desires to retain existing businesses, diversify the tax base, assist the
creation of new jobs and provide for the general enhancement of the tax base of the Village for
the benefit of the Village and its residents.
J. Village has determined that providing an economic incentive for the Project in the
form of an agreement to share or rebate to Portillo's one-half (50%) of the Retailer's Occupation
Taxes and Home Rule Retailer's Occupation Taxes received by the Village and generated by the
Restaurant, up to a maximum amount as provided in this Agreement and for the period of time as
set forth in this Agreement, is a proper exercise of its home rule powers.
K. As a result of the Project, the Village finds that:
1. significant real estate and sales tax revenues will be generated from the
operation of the Restaurant within the Subject Property;
2. the proposed Project will serve to enhance the tax base of the Village and
other governmental entities;
3. the Owner and Portillo's meet high standards of creditworthiness and financial
strength;
4. the proposed Project will promote the health, safety and welfare of the
Village's residents and businesses and enhance the economic well-being of
the Village; and
5. this Agreement is in the best interest of the Village and its residents.
NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE
VILLAGE, OWNER AND PORTILLO'S, as follows:
Section 1. Incorporation of Recitals. The recitals set forth hereinabove are incorporated
herein and made a part of this Agreement.
Section 2. Definitions.
A. "Annual Sales Taxes" for a Tax Year means the total amount of Sales Taxes
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received by the Village, as confirmed by the Illinois Department of Revenue,
upon taxable retail sales generated by the Restaurant for the Tax Year.
B. "Base Sales Tax Amount" for purposes of this Agreement is zero dollars ($0)
inasmuch as the Subject Property has been vacant for several years.
C. "Commencement Date" shall mean the first day of the first full calendar month
following the day the Restaurant construction is completed and the Restaurant is
open for business.
D. "Effective Date" shall mean the date on which this Agreement is last executed by
both parties.
E. "Extraordinary Costs" shall mean the actual costs incurred by Owner for
addressing the unstable subsurface conditions existing on Subject Property due to
its former use as a construction material landfill, specifically the additional costs
which would not otherwise be required of designing and constructing stable
foundations necessary required for the Project, which estimated Extraordinary
Costs are shown on Exhibit B.
F. "Incentive Payment" shall mean the payment of Incremental Sales Taxes for a
Tax Year by the Village to Portillo's pursuant to this Agreement, but not in the
aggregate exceeding the Incentive Reimbursement Amount.
G. "Incentive Reimbursement Amount" means a total maximum amount of
Incremental Sales Taxes over the Term of this Agreement that shall be equal to
the lesser of: (i) sixty percent (60%) of the amount spent by Owner on
Extraordinary Costs; or (ii) Two Hundred Forty Thousand Dollars ($240,000.00).
H. "Incremental Sales Taxes" for a Tax Year means fifty percent (50%) of the
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amount by which the Annual Sales Taxes for such Tax Year exceed the Base
Sales Tax Amount.
I. "Sales Tax" shall mean: (i) the one percent (1%) Non -home Rule Municipal
Retailers' Occupation Tax imposed on municipal retailers by the Village pursuant
to the authorization set forth in 65 ILCS 5/8-11-1.1, et seg., and (ii) the one
percent (1%) Home Rule Municipal Retailers' Occupation Tax imposed on
municipal retailers by the Village pursuant to the authorization set forth in 65
ILCS 5/8-11-1. The term "Sales Tax" shall not include any additional sales tax
revenues that might result from a future increase in the one percent (1%) Home
Rule Municipal Retailers' Occupation Tax enacted by the Village but effective
after the Effective Date of this Agreement, nor from any future national, state or
local sales or excise tax (such as a tax upon e-commerce) which does not
currently exist.
J. "Tax Year" shall mean the initial twelve (12) month period beginning at 12:00
o'clock a.m. of the Commencement Date and ending on the next annual
anniversary of the Commencement Date, and each succeeding twelve (12) month
period during the Term of this Agreement beginning on each successive
anniversary of the Commencement Date.
K. "Term" shall mean the term of this Agreement beginning on the Commencement
Date and ending on the first to occur of the following: (i) five (5) years from the
Commencement Date; (ii) the earlier termination or cancellation of this
Agreement; or (iii) the date that the Incentive Reimbursement Amount has been
disbursed as Incentive Payments pursuant to this Agreement.
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Section 3. Owner and Portillo's Commitment. As a condition precedent to the
Village's obligations set forth herein below, Owner and Portillo's agrees as follows:
A. To enter into a Lease pursuant to which Owner will lease to Portillo's, and
Portillo's will lease from Owner, on terms which shall not be inconsistent with
this Agreement, the Subject Property as identified on Exhibit A attached hereto
for the development and build -out of the Restaurant. The Lease shall be for a
minimum lease term of twenty (20) years. Owner and Portillo's agree that
Portillo's shall submit a copy of this executed Lease to the Village to verify
compliance with this requirement. It is agreed that confidential business, financial
and trade secret terms may be redacted from the Lease provided to the Village. In
the event that Owner and Portillo's do not enter into the Lease on or before
October, 2016 Village may, in the exercise of its sole discretion, terminate this
Agreement on written notice to Owner and Portillo's.
B. Owner and Portillo's shall confirm the Lease commencement date in writing to
the Village within five (5) business days after a determination of the
commencement date by Owner and Portillo's.
C. Owner and Portillo's shall apply for and diligently pursue all required land use
approvals for the Restaurant. "Land Use Approvals" shall mean the adoption by
the corporate authorities of the Village of an ordinance approving a special use for
the Restaurant on the Subject Property. In the event that Owner and Portillo's
have not received all Village Land Use Approvals required for development of the
Restaurant and related redevelopment of the Subject Property on or before July
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19, 2016, Owner and Portillo's may, in the exercise of their sole discretion,
terminate this Agreement on written notice to the Village.
D. The Restaurant shall be substantially as depicted on the Plans as listed on Exhibit
C. Owner and Portillo's shall cause the Restaurant to be built -out and completed
in accordance with the Plans, the costs of which shall be borne and paid for by
Portillo's and/or Owner.
E. Construction of the Restaurant shall commence not later than October 1, 2016,
after Village grants required Land Use Approvals. Owner and Portillo's shall
proceed with due diligence to complete construction of the Restaurant.
F. Subject to causes beyond Portillo's reasonable control, such as acts of God,
unusually inclement weather, material shortages and labor strikes, Portillo's shall
commence operation of the Restaurant not later than June 21, 2017 (12) months
after the commencement of Restaurant construction.
G. Owner shall keep and maintain records of the Extraordinary Costs of the Project
consistent with its customary project costs documentation practices. Village shall
have the right to audit all relevant documentation pertaining to Extraordinary
Costs claimed by Owner.
H. Portillo's shall reimburse Village a pro rata share of Incentive Payments made by
Village to Portillo's if the Restaurant becomes inoperable prior to the sixth (6c11)
anniversary of the Commencement Date. Excluding times when Restaurant
operations are disrupted by Force Majeure events, Restaurant shall be deemed
"Inoperable" in the event: (1) the Restaurant is not being regularly operated
during the normal business hours for comparable Portillo's restaurants, or (2) a
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substantial part of the Restaurant is not being utilized for normal restaurant
operations during any period of sixty (60) or more days during any Tax Year. If
the Restaurant becomes Inoperable prior to the sixth (6`h) anniversary of the
Commencement Date, Portillo's shall reimburse Village a pro rata share of the
Incentive Payments made to Portillo's which shall be equal to the product of the
Incentive Payments and a fraction, the numerator of which shall be sixty (60), less
the number of full months between the Commencement Date and the date the
Restaurant is deemed inoperable, and the denominator of which fraction shall be
sixty (60). The obligations contained in this Section 3.H shall survive and be
enforceable notwithstanding the earlier termination of this Agreement.
Section 4. Agreement to Share a Portion of Sales Tax.
A. Effective on the Commencement Date and continuing throughout the Tenn of this
Agreement, and subject to terms and conditions provided herein, the Village shall
make annual Incentive Payments to Portillo's.
B. Incentive Payments pursuant to this Agreement shall be made by the Village
within one hundred -twenty (120) days after the end of each Tax Year and after: (i)
Annual Sales Taxes for the Tax Year are received by the Village; and (ii)
documentation is received by the Village from the Illinois Department of Revenue
and Portillo's verifying the accuracy of the amount of Annual Sales Taxes. The
Village shall contemporaneously provide Portillo's with a written accounting with
the annual Incentive Payments demonstrating the Village's determination of the
Incentive Payment amount.
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C. Portillo's agrees to sign and deliver all documentation necessary to cause the
Illinois Department of Revenue to release to the Village the amount of Sales Tax
generated by the Restaurant during the Term of this Agreement.
D. Except for the amount and timing of Incentive Payments made to Portillo's under
this Agreement (which is considered public information), Portillo's and Village
shall keep Annual Sales Taxes information confidential, unless disclosure is
otherwise required by law.
Section 5. Limited Obligation of the Village. This is a limited obligation of the
Village. The Village's obligation to make Incentive Payments is limited solely and exclusively
from the proceeds of Incremental Sales Tax amounts actually received by the Village. This is
not, and shall not be construed as, a full faith and credit or general obligation of the Village for
any purpose.
Section 6. Defaults.
A. The occurrence of any one of the following shall constitute a default by Owner
and Portillo's under this Agreement:
(1) Failure to comply with any term, provision or condition of this
Agreement within the times herein specified, where such failure is not
cured within the cure period provided for in Section 19.
(2) Portillo's shall: (i) become insolvent and be unable, or admits in
writing its inability to pay, its debts as they mature; or (ii) be adjudicated a
bankrupt; or (iii) file a petition in bankruptcy or to effect a plan or other
arrangement with creditors; or (iv) file an answer to a creditors' petition
(admitting the material allegations thereof) for an adjudication of
M
bankruptcy or to effect a plan or other arrangement with creditors; or (v)
apply to a court for the appointment of a receiver for any asset; or (vi)
have a receiver or similar official appointed for any of its assets, or, if such
receiver or similar official is appointed without the consent of Portillo's
and such appointment shall not be discharged within sixty (60) days after
his appointment or Portillo's has not bonded against such receivership or
appointment.
B. Upon the occurrence of a default by Owner or Portillo's as hereinabove set forth,
the Village shall be relieved of any and all of its obligations arising pursuant to
this Agreement and such obligations on the part of the Village shall be
immediately canceled and without any force or effect, except with respect to the
obligation to pay Incremental Sales Taxes accrued prior to the date of termination.
C. The failure of the Village to make an Incentive Payment hereunder shall
constitute a default by Village under this Agreement. Upon the occurrence of a
default by Village, Owner and Portillo's shall have all remedies available to it in
law or equity. In addition, Owner shall be relieved of the obligations and
restrictions set forth in Recital Paragraph E.
Section 7. Notices. All notices and requests required pursuant to this Agreement shall be
in writing and shall be deemed duly given to the Parties identified below when properly addressed as
follows: (i) on the date of delivery, if delivered personally to the Parties identified below, (ii) on the
next business day if placed with a nationally recognized courier or delivery service for overnight
delivery, or (iii) five (5) business days after mailing if sent by certified U.S. Mail, postage prepaid,
return receipt requested.:
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To Owner: Deerfield, IL (700 Lake Cook), LLC
1400 161h Street, Suite 300
Oak Brook, IL 60523-9100
Attn: Chief Financial Officer
With a copy to: Deerfield, IL (700 Lake Cook), LLC
1400 16th Street, Suite 300
Oak Brook, IL 60523-9100
Attn: Chief Legal Officer
To Portillo's: Portillo's Hot Dogs, LLC
2001 Spring Road, Suite 400
Oak Brook, IL 60523-9100
Attn: Keith Kinsey, CEO
With a copy to: Portillo's Hot Dogs, LLC
2001 Spring Road, Suite 400
Oak Brook, IL 60523-9100
Attn: Susan B. Shelton, General Counsel
To the Village: Village of Deerfield
850 Waukegan Road
Deerfield, Illinois 60015
Attn: Village Manager
With a copy to: Rosenthal, Murphey, Coblentz & Donahue
Suite 1624
30 North LaSalle Street
Chicago, Illinois 60602
Attn: Peter D. Coblentz, Esq.
Section 8. Law Governine. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois.
Section 9. Assi¢nments by Portillo's. Except in the case of an assignment to an affiliate
whose ownership shares a controlling interest with Portillo's and which assignees will continue
to operate the Restaurant in accordance with this Agreement, Portillo's may not assign its rights
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and obligations under this Agreement to any person or entity without the prior written consent of
the Village. Village approval of any assignment shall not be unreasonably withheld.
Section 10. Assignments by Owner. Conveyance by Owner of title to the Subject
Property to another person, firm or entity ("Successor Owner") shall relieve Owner of its
obligations under this Agreement, provided that Successor Owner has agreed in writing to
assume and be bound by Owner's obligations under this Agreement
Section 11. Time. Time is of the essence under this Agreement and all time limits set
forth are mandatory and cannot be waived except by a lawfully authorized and executed written
waiver by the party excusing such timely performance, except for delays caused by force
majeure.
Section 12. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Village, Owner and Portillo's and their respective successors and assigns.
Section 13. Limitation of Liability. No recourse under or upon any obligation, covenant
or agreement of this Agreement, or for any claim based thereon or otherwise in respect thereof,
shall be had against the Village, it officers, agents and employees in any amount in excess of the
Incentive Reimbursement Amount specific sum agreed by the Village to be paid to Portillo's as
Incremental Sales Taxes as provided herein, and no liability, right or claim at law or in equity
shall attach to or shall be incurred by the Village, its officers, agents and employees in excess of
such amounts and all and any such rights or claims of Owner and/or Portillo's against the
Village, its officers, agents and employees are hereby expressly waived and released as a
condition of and as consideration for the execution of this Agreement by the Village.
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Section 14. Legal and Other Fees and Expenses.
A. Except as modified by sub -section B below, in the event that any third party or
parties institute any legal proceedings against Owner, Portillo's and/or the Village
which relate to the terms of this Agreement, Portillo's shall, on notice from the
Village, assume the entire defense of such lawsuit and all attorneys' fees and
expenses related thereto, provided, however: (i) No settlement or compromise of
the lawsuit may be made, and no failure to pursue any available avenue of appeal
of any adverse judgment shall be suffered without the approval of the Village;
and, (ii) if the Village, in its sole discretion, determines that there is, or may be, a
conflict of interest between Village and Owner and/or Portillo's on an issue of
importance to the Village having a potentially substantial adverse effect on the
Village, then the Village shall have the option of being represented by its own
legal counsel. In the event the Village exercises such option, Portillo's shall
reimburse the Village for any expenses, including but not limited to court costs,
reasonable attorneys' fees, witness fees and other expenses of litigation incurred
by the Village in connection therewith.
B. In the event any third party or parties institute any legal proceedings to challenge
the authority of the Village to provide an economic incentive for the Project as
provided in this Agreement, or to otherwise challenge the legal validity of this
Agreement, the Village shall assume the entire defense of such legal proceedings
and all attorneys' fees and costs thereto "Fees and Costs"). Fifty percent (50%) of
Fees and Costs shall be deductible from Incentive Payments during the Tax Year
in which they are incurred.
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C. In the event any Party institutes legal proceedings against another Party for
violation of this Agreement, the court having jurisdiction thereof shall determine
and include in its judgment against the non -prevailing Party all expenses of such
legal proceedings incurred by the prevailing Party, including court costs,
reasonable attorneys' fees and witness fees incurred by the prevailing Party in
connection therewith.
Section 15. No Waiver or Relinquishment of Right to Enforce Agreement. Failure of
any Party to this Agreement to insist upon the strict and prompt performance of the terms,
covenants, agreements, and conditions herein contained, or any of them, upon any other party
imposed, shall not constitute or be construed as a waiver or relinquishment of any Party's right
thereafter to enforce any such term, covenant, agreement or condition, but the same shall
continue in full force and effect.
Section 16. Section Headings and Subheadings. All section headings or other headings
in this Agreement are for the general aid of the reader and shall not limit the plain meaning or
application of any of the provisions hereunder whether covered or relevant to such heading or
not.
Section 17. Authorization to Execute. The officers and agents of Owner and of
Portillo's who have executed this Agreement represent and warrant that they have been lawfully
authorized by Owner and Portillo's, respectively, to execute this Agreement on behalf of Owner
and Portillo's. The Village President and Village Clerk represent and warrant that they have been
lawfully authorized by the Village Board to execute this Agreement.
Section 18. Amendment. This Agreement sets forth all the promises, inducements,
agreements, conditions and understandings between the Village, Owner and Portillo's relative to
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the subject matter hereof, and there are no promises, agreements, conditions or understandings,
either oral or written, expressed or implied, between them, other than are herein set forth. No
subsequent alteration, amendment, change or addition to this Agreement shall be binding upon
the parties hereto unless authorized in accordance with law and reduced in writing and signed by
them.
Section 19. Curing Default. In the event of any alleged default under or violation of this
Agreement, the party not in default or violation shall serve written notice upon the party or
parties in default or violation, which notice shall be in writing and shall specify the particular
violation or default. The parties hereto reserve the right to cure any violation of this Agreement
or default by any of them hereunder within sixty (60) days from written notice of such default. If
such default is so cured to the reasonable satisfaction of the party not in default within said sixty
(60) day period, all the terms and conditions of this Agreement shall remain in full force and
effect as if no such violation occurred. In the case of a default by Portillo's only, but not in the
case of a default by Owner or the Village, the obligation of the Village to make Incremental
Sales Tax payments hereunder shall be stayed during any default period.
Section 20. Conflict Between the Text and Exhibits. In the event of a conflict in the
provisions of the text of this Agreement and the exhibits attached hereto, the text of the
Agreement shall control and govern.
Section 21. Severability. If any provision of this Agreement is held invalid by a court of
competent jurisdiction, or in the event such a court shall determine that the Village does not have
the power to perform any such provision, such provision shall be deemed to be excised here from
and the invalidity thereof shall not affect any of the other provisions contained herein, and such
judgment or decree shall relieve the Village from performance under such invalid provision of
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this Agreement; provided however, if the judgment or decree relieves the Village of its
obligation to make Incremental Sales Tax payments under this Agreement, then the Agreement
shall be terminated.
Section 22. Interpretation. This Agreement has been negotiated by all Parties and shall
not be interpreted or construed against the party or parties drafting the Agreement.
Section 23. Expiration and Termination. When the Incentive Reimbursement Amount
pursuant to this Agreement has been paid, or upon the expiration of the term hereof, this
Agreement shall terminate.
Section 24. Execution of Agreement. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have set their hands and seals as of the
date and year first written above.
ATTEST:
",
Village Clerk
ATTEST:
VILLAGE OF DEERFIELD,
an Illinois Municipal Cor oration
By: o 14411wex o
Its:
OWNER
DEERFIELD, IL (LAKE COOK), LLC,
an Illinois limite ability company
By:
Its: �Lt/y+Pn
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BGZ
ATTEST:
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PORTILLO'S HOT DOGS, LLC,
a Delaw die limited
Pre 1ited liability company
-110 d
By:
Its: de t & CE
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
PARCEL 1:
LOT 2 IN FLODSTROM'S SUBDIVISION, BEING A SUBDIVISION OF PART OF THE SOUTHEAST %
OF SECTION 32 AND THE SOUTHWEST % OF SECTION 33, TOWNSHIP 43 NORTH, RANGE 12,
EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED
OCTOBER 5, 1982 AS DOCUMENT 2179958, IN LAKE COUNTY, ILLINOIS.
EXCEPTING THEREFROM
THAT PART OF LOT 2 IN FLODSTROM'S SUBDIVISION, BEING A SUBDIVISION OF PART OF THE
SOUTHEAST QUARTER OF SECTION 32 AND THE SOUTHWEST QUARTER OF SECTION 33,
TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO
THE PLAT THEREOF RECORDED OCTOBER 5, 1982 AS DOCUMENT 2179958, IN LAKE COUNTY,
ILLINOIS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 2; THENCE ON AN ASSUMED BEARING
NORTH 89 DEGREES 55 MINUTES 13 SECONDS WEST, ALONG THE SOUTH LINE OF SAID LOT 2,
A DISTANCE OF 181.61 FEET; THENCE NORTH 84 DEGREES 12 MINUTES 35 SECONDS WEST,
ALONG THE SOUTH LINE OF SAID LOT 2, A DISTANCE OF 24.50 FEET TO THE WEST LINE OF
SAID LOT 2; THENCE NORTH 0 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE WEST
LINE OF SAID LOT 2, A DISTANCE OF 7.56 FEET; THENCE SOUTH 89 DEGREES 55 MINUTES 13
SECONDS EAST A DISTANCE OF 186.01 FEET; THENCE NORTH 45 DEGREES 55 MINUTES 15
SECONDS EAST A DISTANCE OF 28.06 FEET TO THE EAST LINE OF SAID LOT 2; THENCE SOUTH
0 DEGREES 28 MINUTES 00 SECONDS WEST, ALONG THE EAST LINE OF SAID LOT 2, A
DISTANCE OF 29.55 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
NON-EXCLUSIVE EASEMENT FOR THE BENEFIT OF PARCEL 1 AS CONTAINED IN THE
DECLARATION OF EASEMENTS COVENANTS AND RESTRICTIONS RECORDED AS DOCUMENT
#2180004, AS AMENDED BY INSTRUMENT RECORDED AS DOCUMENT 2316242, FOR DRIVING,
PARKING, AND INGRESS AND EGRESS TO PUBLIC STREETS OVER THE PRIVATE ROADS,
DRIVEWAYS AND PARKING AREAS LOCATED ON LOT 1 IN FLODSTROM'S SUBDIVISION,
AFORESAID, EXCEPTING THEREFROM THAT PART FALLING IN LOT 1 IN FLODSTROM'S
RESUBDIVISION NO. 2, IN LAKE COUNTY, ILLINOIS.
PARCEL 3:
NON-EXCLUSIVE EASEMENT FOR THE BENEFIT OF PARCEL 1 AS CONTAINED IN THE
EASEMENTS AGREEMENT RECORDED AS DOCUMENT #FOR DRAINAGE INTO
THE POND LOCATED ON LOT 1 IN FLODSTROM'S SUBDIVISION,
LLC
n S i to 1400 161eal t':et, , Suite
1600 16ih SVae; Sutla 300 I Oat Brook. !t 60523-8656
W,o,e: 6300,79100 1 Far'. 630617-9120, www.insiferealeslatecom
EXHIBIT B TO ECONOMIC
INCENTIVE AGREEMENT
July 12, 2016
Andrew S. Lichterman
Assistant Village Manager
Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
RE: 700 Lake Cook Road Portillo's Construction Costs
Mr. Lichterman:
The development costs of the Portillo's that is currently under development at 700 Lake Cook Road is
outlined below, excluding land acquisition costs. Please note these are contract and in -progress costs.
Moreover, the below does incorporate the extraordinary site costs per Exhibit B of Portillo's Incentive
Agreement with the Village.
If additional information or breakdown is required please let us know.
Kind Regards,
InSiteAleal st ,LLC
Scott Nicholson
Managing Director
Office: 630.617.9101
Mobile: 312.371.6655
SNicholson(c01 nSiteRealEstate.com
Cc: Susan Shelton
Eric Pedersen
Dan Uebelhor
Cost
Portillo's Building Shell
$
3,478,000
Portillo's Furniture, Fixtures & Equipment
$
1,500,000
Building Footings, Foundations & Soils Remediation
$
910,000
Sitework, Demolition & Landscape
$
1,095,000
Impact & Permit Fees to Village for Sitework
$
86,000
Development, Engineering & Soft Costs
$
670,000
S
7,739,000
If additional information or breakdown is required please let us know.
Kind Regards,
InSiteAleal st ,LLC
Scott Nicholson
Managing Director
Office: 630.617.9101
Mobile: 312.371.6655
SNicholson(c01 nSiteRealEstate.com
Cc: Susan Shelton
Eric Pedersen
Dan Uebelhor
II EXHIBIT C
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PREPARED BY, RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Robin Rash, Esq.
InSite Real Estate, L.L.C.
1400 16th Street, Suite 300
Oak Brook, Illinois 60523
MEMORANDUM OF LEASE
This Memorandum of Lease is made as of this 29th day of June, 2016 by and between
DEERFIELD, IL (700 Lake Cook) LLC, an Illinois limited liability company ("Landlord") whose address
1400 16th Street Suite 300 Oak Brook IL 60523, and Portillo's Hot Dogs, LLC, a Delaware limited
liability company ("Tenant") whose address is 2001 Spring Road — Suite 400, Oak Brook, Illinois 60523,
who hereby declare that Landlord has leased to Tenant, and Tenant has accepted such lease from
Landlord, the Premises legally described on Exhibit A attached hereto and more particularly described in
the Lease (the "Premises") upon the following terms:
Effective Date of Lease: June 29, 2016.
Description of Premises: See Exhibit A attached hereto.
Term: Twenty (20) years after the Rent Commencement Date.
Extension Option(s): Up to four (4) Extension Options of five (5) years each.
This Memorandum of Lease is entered into pursuant to the provisions of the Lease and is subject
to all of the terms, covenants and conditions contained therein. This Memorandum of Lease is not
intended to and shall not change any of the terms and conditions of the Lease.
It is expressly understood and agreed by Tenant that none of Landlord's covenants, undertakings
or agreements in the Lease are made or intended as personal covenants, undertakings or agreements by
Landlord or the members in Landlord, and any liability of Landlord or the members in Landlord for
damages or breach or nonperformance by Landlord or otherwise arising under or in connection with the
Lease or the relationship of Landlord and Tenant thereunder, shall be collectible only out of Landlord's
interest in the Premises, as the same may then be encumbered, and no personal liability is assumed by,
nor at any time may be asserted against any of the Landlord Parties, all such liability, if any, being
expressly waived and released by Tenant.
[SIGNATURES ON FOLLOWING PAGE]
EXECUTED by Landlord on this 29th day of June, 2016.
LANDLORD:
DEERFIELD, IL (700 Lake Cook) LLC, an Illinois limited liability company
By:
Name: Robin Rash
Title: Authorized Signatory
STATE OF ILLINOIS }
) SS:
COUNTY OF DUPAGE }
Before me, a Notary Public in and for the above State and County, on this 29th day of June, 2016,
personally appeared Robin Rash, an Authorized Signatory of DEERFIELD, IL (700 Lake Cook) LLC, an
Illinois limited liability company, and known to me to be the same person who signed and acknowledged
that she signed the foregoing instrument as such Authorized Signatory of said limited liability company for
and on behalf of the limited liability company, and that she executed the same as her free and voluntary
act and deed and as the free and voluntary act and deed of the limited liability company, for the uses and
purposes set forth in the instrument.
IN TESTIMONY WHEREOF, I have subscribed my signature and affixed my official seal on the
day and year set forth above.
My commission expires:
zsm"v f%--r,-
OFFICIAL SEAL
VIRGINIA M WNSFORD
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EMRES;08114118
EXECUTED by Tenant on this 291h day of June, 2016.
TENANT:
PORTILLO'S HOT DOGS, LLC
a Delaware limited liability company
By: t'coA` -�6 - -
ame- Susan B. Shelton
Title: General Counsel & Secretary
STATE OF ILLINOIS }
} SS:
COUNTY OF DUPAGE }
Before me, a Notary Public in and for the above State and County, on this 29th day of June, 2016
personally appeared Susan B. Shelton, the General Counsel & Secretary of Portillo's Hot Dogs, LLC, a
Delaware limited liability company, and known to me to be the same person who signed and
acknowledged that she signed the foregoing instrument as such General Counsel & Secretary of said
limited liability company for and on behalf of the limited liability company, and that she executed the same
as her free and voluntary act and deed and as the free and voluntary act and deed of the limited liability
company, for the uses and purposes set forth in the instrument.
IN TESTIMONY WHEREOF, I have subscribed my signature and affixed my official seal on the
day and year set foj4h above.
17 u li
My commission expires:
'LYDIA A JENKINS
0!91 P1ZDZZ) Official Seal
Notary Public - State of Illinois
My Commission Expires May 6, 2020
EXHIBIT A TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF THE PREMISES
PARCEL 1
LOT 2 IN FLODSTROM'S SUBDIVISION, BEING A SUBDIVISION OF PART OF THE SOUTHEAST %
OF SECTION 32 AND THE SOUTHWEST Y. OF SECTION 33, TOWNSHIP 43 NORTH, RANGE 12,
EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED
OCTOBER 5, 1982 AS DOCUMENT 2179958, IN LAKE COUNTY, ILLINOIS.
EXCEPTING THEREFROM:
THAT PART OF LOT 2 IN FLODSTROM'S SUBDIVISION, BEING A SUBDIVISION OF PART OF THE
SOUTHEAST QUARTER OF SECTION 32 AND THE SOUTHWEST QUARTER OF SECTION 33,
TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO
THE PLAT THEREOF RECORDED OCTOBER 5, 1982 AS DOCUMENT 2179958, IN LAKE COUNTY,
ILLINOIS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 2; THENCE ON AN ASSUMED BEARING
NORTH 89 DEGREES 55 MINUTES 13 SECONDS WEST, ALONG THE SOUTH LINE OF SAID LOT 2,
A DISTANCE OF 181.61 FEET; THENCE NORTH 84 DEGREES 12 MINUTES 35 SECONDS WEST,
ALONG THE SOUTH LINE OF SAID LOT 2, A DISTANCE OF 24.50 FEET TO THE WEST LINE OF
SAID LOT 2; THENCE NORTH 0 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE WEST
LINE OF SAID LOT 2, A DISTANCE OF 7.56 FEET; THENCE SOUTH 89 DEGREES 55 MINUTES 13
SECONDS EAST A DISTANCE OF 186.01 FEET; THENCE NORTH 45 DEGREES 55 MINUTES 15
SECONDS EAST A DISTANCE OF 28.06 FEET TO THE EAST LINE OF SAID LOT 2; THENCE SOUTH
0 DEGREES 28 MINUTES 00 SECONDS WEST, ALONG THE EAST LINE OF SAID LOT 2, A
DISTANCE OF 29.55 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
NON-EXCLUSIVE EASEMENT FOR THE BENEFIT OF PARCEL 1 AS CONTAINED IN THE
DECLARATION OF EASEMENTS COVENANTS AND RESTRICTIONS RECORDED AS DOCUMENT
#2180004, AS AMENDED BY INSTRUMENT RECORDED AS DOCUMENT 2316242, FOR DRIVING,
PARKING, AND INGRESS AND EGRESS TO PUBLIC STREETS OVER THE PRIVATE ROADS,
DRIVEWAYS AND PARKING AREAS LOCATED ON LOT 1 IN FLODSTROM'S SUBDIVISION,
AFORESAID, EXCEPTING THEREFROM THAT PART FALLING IN LOT 1 IN FLODSTROM'S
RESUBDIVISION NO. 2, IN LAKE COUNTY, ILLINOIS.
PARCEL 3:
NON-EXCLUSIVE PERPETUAL EASEMENT FOR THE PURPOSE OF THE DISCHARGE OF STORM
WATER AND NATURALLY OCCURRING SURFACE WATER RUN-OFF FOR THE BENEFIT OF
PARCEL 1 AS SET FORTH AND DEFINED IN THAT CERTAIN EASEMENT AGREEMENT MADE BY
AND BETWEEN FLODSTROM INVESTMENTS, L.L.C., I CHICAGO TITLE LAND TRUST COMPANY,
SUCCESSOR TRUSTEE TO LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT
DATED AUGUST 17, 1982 AND KNOWN AS TRUST NUMBER 104882 ("GRANTOR") AND
DEERFIELD, IL (700 LAKE COOK) LLC, ("GRANTEE"), DATED 2016 AND
RECORDED , 2016 AS DOCUMENT NUMBER LAKE
COUNTY, ILLINOIS.
COMMONLY KNOWN AS: 700 LAKE COOK ROAD, DEERFIELD, ILLINOIS
PERMANENT INDEX NUMBER: 16-33-304-025