R-15-15VILLAGE OF DEERFIELD
LAKE AND COOK COUNTIES, ILLINOIS
RESOLUTION NO. R-15-15
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, Gateway Fairview, Inc., the owner of the Deerbrook Shopping Center, and
, ("Jewel-Osco") have jointly proposed to the Village that a new
Jewel-Osco store be constructed at the north end of the shopping center, that the existing former
Jewel-Osco grocery store be demolished, and that the north end of the shopping center be
redeveloped with additional parking and retail outlots (the "Project"); and
WHEREAS, Gateway Fairview and Jewel-Osco 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 Gateway Fairview and Jewel-Osco in substantially the form attached hereto as
Exhibit A pursuant to which the Village agrees to share or rebate to Jewel-Osco a portion of the
sales tax revenues that will be generated from operation of a new Jewel-Osco store within the
Deerbrook Shopping Center that, but for the economic incentive provided by said agreement,
would not be generated from the shopping center 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 Gateway Fairview, Inc. and Jewel-Osco 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 20th day of July , 2015.
AYES: Jester, Nadler, Seiden, Shapiro, Struthers
NAYS: None
ABSENT: Farkas
ABSTAIN: None
APPROVED this 20th day of
ATTEST:
V Rage Clerk
tI Ii
Village President
2015.
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ECONOMIC INCENTIVE AGREEMENT
This ECONOMIC INCENTIVE AGREEMENT ("Agreement") is made and entered into
as of this 21st day of July, 2015, by and between the VILLAGE OF DEERFIELD, Cook and
Lake Counties, Illinois ("Village"), and GATEWAY FAIRVIEW, INC., a Delaware corporation,
("Owner") and JEWEL FOOD STORES,. INC., an Ohio corporation ("Jewel-Osco).
RECITALS
A. Owner is the owner of the Deerbrook Shopping Center (the "Center") located
within the Village and located at the southwest corner of the intersection of Lake Cook Road and
Waukegan Road. The legal description of the Center is attached hereto as Exhibit A.
B. Jewel-Osco owns and operates an existing Jewel Osco store at the north end of the
Center ("Existing Store") pursuant to a lease with Owner.
C. Owner and Jewel-Osco jointly propose a project (the "Project") for the Center
which will involve (1) the construction of new leasable space within the Center for a new Jewel
Osco store with a minimum of 55,000 square feet (the "New Store") pursuant to a new minimum
10-year term lease with Owner containing terms which shall not be inconsistent with this
Agreement ("New Lease"), and (2) continued operation by Jewel Osco of the Existing Store until
construction of the New Store is completed and New Store is ready to be opened as a Jewel Osco
store.
D. As further consideration for this Agreement, the New Lease shall not prohibit
wholesale club retailers (e.g., Sam's Club or Costco) to lease or occupy certain space in the
Center, to operate in their typical fashion with their typical product mix and with no restriction
on the amount of gross leasable area that may be devoted to food and grocery sales. Provided,
however, that the New Lease may include a prohibition on such uses being converted to a use
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that includes a full -line grocery store, including, but not limited to a Wal-Mart Supercenter or
equivalent.
E. As further consideration for this Agreement, Owner agrees to limit and restrict
Center pads "E" and "P (as depicted on Exhibit B attached hereto) to uses that are sales tax
generating uses. It is understood that the Village will not issue occupancy permits for uses not in
compliance with this requirement. Provided, however, that notwithstanding the foregoing, the
Village may approve other users based on a determination that, despite Owner's diligent best
efforts, Owner is unable to lease pads "B" and/or "F" to a sales tax generating user.
F. Owner and Jewel-Osco 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.
G. The targeted date for commencement of construction of the New Store is twelve
(12) months after Village grants Village land use approvals as may be required to entitle Owner
and Jewel-Osco to construct and operate the New Store in the Center. Owner and Jewel-Osco
agree to apply for land use approvals no later than December 1, 2015 and pursue with due
diligence thereafter. Subject to required public notice requirements, the Village agrees to make
all reasonable efforts to expedite the review and approval process. In the event that Owner and
Jewel-Osco have not received land use approvals on or before November 1, 2016, Village may,
in the exercise of its sole discretion, terminate this Agreement on written notice to Owner and
Jewel-Osco. It is expressly understood by all parties that Village land use approvals are not
granted or obligated to be provided by the Village in any manner by this Agreement.
H. Owner and Jewel-Osco have represented to Village that (subject to causes beyond
Owner's and Jewel-Osco's reasonable control, such as acts of God, unusually inclement weather,
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material shortages and labor strikes) the New Store will be opened and operating as a full line
Jewel Osco store not later than eighteen (18) months after the commencement of construction.
1. 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.
J. Owner and Jewel-Osco represent and warrant to the Village that their direct
investments in the Project will be an estimated amount of $13,620,800 as set forth in Exhibit C
attached hereto.
K. Jewel represents and warrants that there will be approximately $1.35 million
($1,350,000) in extraordinary costs to complete the 2-phase construction project in order to
continue to operate the Existing Store as a temporary store location during the development and
construction of the New Store as set forth in Exhibit C attached hereto.
L. 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.
M. Village has determined that providing an economic incentive for the Project in the
form of an agreement to share or rebate to Jewel-Osco a portion of the Retailer's Occupation
Taxes and Home Rule Retailer's Occupation Taxes received by the Village and generated by the
New Store over the Base Sales Tax Amount 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.
N. 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 New Store within the Center;
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2. the Project will serve to stabilize and enhance the Center for existing and
future sales tax generating tenants;
3. the proposed Project will serve to enhance the tax base of the Village and
other governmental entities;
4. the Owner and Jewel-Osco meet high standards of creditworthiness and
financial strength;
5. 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
6. 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 JEWEL-OSCO, 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
received by the Village, as confirmed by the Illinois Department of Revenue,
upon taxable retail sales generated by the New Store for the Tax Year.
B. "Base Sales Tax Amount" shall mean the amount of Sales Tax received by the
Village, as confirmed by the Illinois Department of Revenue, upon taxable retail
sales generated by the New Store up to the amount of Seventeen Million Five
Hundred Thousand Dollars ($17,500,000) (the "Incremental Sales Tax Base") for
the Tax Year. To illustrate (although actual figures will vary), if the taxable
annual retail sales generated by the New Store for a Tax Year is Seventeen
Million Five Hundred Thousand Dollars ($17,500,000), and assuming that
seventy-five percent (75%) of taxable annual sales from the New Store are at the
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one percent (1%) municipal Sales Tax level and twenty-five percent (25%) are at
the two percent (2%) municipal Sales Tax level, the Base Sales Tax Amount for
the Tax Year would be the sum of Two Hundred Eighteen Thousand Seven
Hundred and Fifty Dollars ($218,750) of Sales Tax revenue calculated as follows:
1. Total taxable retail sales generated by New Store
for the Tax Year: $17,500,000
2. Sales at 1 % level for Tax Year: $13,125,000
3. Sales Tax received on 1 % level sales: $ 131,250
4. Sales at 2% level for Tax Year: $ 4,375,000
5. Sales Tax received on 2% level sales: $ 87,500
Base Sales Tax Amount $ 218,750
(Total of #3 and #5)
C. "Commencement Date" shall mean the first day of the first full calendar month
following the day the New Store construction is completed, is open for business
and the Existing Store is closed.
D. "Effective Date" shall mean the date on which this Agreement is Iast executed by
both parties.
E. "Extraordinary Costs" shall mean the actual costs incurred by Jewel-Osco for
the extraordinary sequencing of New Store construction while maintaining
Existing Store retail operations. Extraordinary Costs do not include the ordinary
cost of operating and maintaining Existing Store retail operations during
construction of the Project, and do not include the ordinary cost that would have
been incurred for constructing the New Store if Existing Store operations were
terminated. Extraordinary Costs do include any and all non -ordinary and
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additional costs and expenses of operating and maintaining the Existing Store's
retail operations during construction of the New Store.
F. "Incentive Payment" shall mean the payment of Incremental Sales Taxes for a
Tax Year by the Village pursuant to this Agreement, but not in the aggregate
exceeding the Incentive Reimbursement Amount. For the purpose of determining
the net present value of Incentive Payments, Incentive Payments for a Tax Year
shall be deemed to have been made on the last day of that Tax Year.
G. "Incentive Reimbursement Amount" means a total maximum amount over the
Term of this Agreement that shall not exceed the lesser of: (i) the net present
value (using a 6% discount rate) of the amount spent by Jewel-Osco on
Extraordinary Costs; or (ii) One Million Two Hundred Thousand ($1,200.000)
Dollars net present value (using a 6% discount rate) of Incremental Sales Taxes.
H. "Incremental Sales Taxes" for a Tax Year means seventy-five percent (75%) of
the amount by which the Annual Sales Taxes for such Tax Year exceed the Base
Sales Tax Amount. To illustrate (although actual figures will vary), if the taxable
annual retail sales generated by the New Store for a Tax Year is Twenty -Two
Million Five Hundred Thousand ($22,500,000) Dollars, and assuming that
seventy-five percent (75%) of taxable annual sales from the New Store are at the
one percent (1%) municipal sales tax level, and twenty-five percent (25%) are at
the two percent (2%) municipal sales tax level, Incremental Sales Taxes for the
Tax Year would be the sum of Sixty -Two Thousand Five Hundred Dollars
($62,500) of Sales Tax revenue calculated as follows:
1. Total taxable retail sales generated by the New Store
for Tax Year: $22,500,000.
El
2. Sales above $17,500,000 for the Sales Tax Year
(Incremental Sales) $ 5,000,000.
3.
Incremental Sales at the 1 % Sales Tax level:
$
3,750,000.
4.
Sales Tax received on 1% level incremental sales:
$
37,500.
5. Incremental Sales at the 2% Sales Tax level: $ 1,250,000.
6. Sales Tax received on 2% level incremental sales: $ 25,000.
7. Incremental Sales Taxes (Total of #4 and #6) 62,500.
8. Economic Incentive amount (75%) $ 46,875.
I. "Incremental Sales Tax Base" shall mean Seventeen Million Five Hundred
Thousand Dollars ($17,500,000), as confirmed by the Illinois Department of
Revenue, of taxable retail sales generated by the New Store for the Tax Year.
J. "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 seq., 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.
K. "Tax Year" shall mean the initial twelve (12) month period beginning at 12:00
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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.
L. "Term" shall mean the term of this Agreement beginning on the Commencement
Date and ending on the first to occur of the following: (i) 20 years from the
Commencement Date; (ii) the earlier termination or cancellation of this
Agreement; (iii) the earlier termination or cancellation of the New Lease; or (iv)
the date that the Incentive Reimbursement Amount has been disbursed as
Incentive Payments pursuant to this Agreement.
Section 3. Owner and Jewel-Osco Commitment. As a condition precedent to the
Village's obligations set forth herein below, Owner and Jewel-Osco agrees as follows:
A. To enter into the New Lease pursuant to which Owner will lease to Jewel-Osco,
and Jewel-Osco will lease from Owner, on terms which shall not be inconsistent
with this Agreement, space in the Center as identified on Exhibit D attached
hereto for the development and build -out of the New Store. The New Lease shall
be for a minimum lease term of ten (10) years. Owner and Jewel Osco agree that
Jewel Osco shall submit a copy of this executed lease provision to the Village to
verify compliance with this requirement. In the event that Owner and Jewel-Osco
do not enter into the New Lease on or before November 1, 2015 Village may, in
the exercise of its sole discretion, terminate this Agreement on written notice to
Owner and Jewel-Osco.
B. Owner and Jewel-Osco shall confirm the New Lease commencement date in
writing to the Village within five (5) business days after a determination of the
commencement date by Owner and Jewel-Osco.
C. Owner and Jewel-Osco shall apply for diligently pursue all required land use
approvals for the New Store, Outlots E and F, the reconfigured Center parking lot
and traffic circulation plan and related site plan changes no later than December 1,
2015 and diligently pursue such approvals thereafter. "Land Use Approvals" shall
mean the amendment of the existing PUD affecting the Center and not the
issuance of building permits or other ancillary approvals. In the event that Owner
and Jewel-Osco have not received all Village land use approvals required for
development of the New Store and related redevelopment of the Center on or
before November 1, 2016, Village may, in the exercise of its sole discretion,
tenninate this Agreement on written notice to Owner and Jewel-Osco.
D. The New Store shall be not less than 55,000 square of gross leasable floor area
and shall be substantially as depicted on the plans attached hereto as Exhibit D.
Owner and Jewel-Osco shall cause the New Store to be built -out and completed in
accordance with this Agreement, and with the representations made by their
representatives to the Village Board and Village staff, the costs of which shall be
borne and paid for by Jewel-Osco and/or Owner.
E. Construction of the new Store shall commence not later than twelve (12) months
after Village grants required land use approvals. Owner and Jewel-Osco shall
proceed with due diligence to complete construction of the New Store.
F. Subject to causes beyond Jewel-Osco's reasonable control, such as acts of God,
unusually inclement weather, material shortages and labor strikes, Jewel-Osco
in
shall commence operation of the New Store not later than eighteen (18) months
after the commencement of New Store construction.
G. Jewel-Osco shall operate the Existing Store as a full line Jewel Osco store until
the New Store is placed in operation.
H. Village shall have the right, upon prior written notice to Owner and Jewel-Osco,
to terminate this Agreement if (i) the New Lease is terminated within ten (10)
years after the Commencement Date, or (ii) if the New Store has not been
operated as a full line Jewel Osco store for the aggregate total of twelve (12)
months during the term of the New Lease, excluding the time required for the
build -out of the New Store, and excluding any time that the New Store is closed
for repair by reason of a casualty event or for remodeling provided such repairs
are diligently pursued and completed.
I. Jewel-Osco shall keep and maintain records of the 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 Jewel-Osco.
Section 4. Agreement to Share a Portion of Sales Tax.
A. Effective on the Commencement Date and continuing throughout the Term of this
Agreement, and subject to terms and conditions provided herein, the Village shall
make annual Incentive Payments to Jewel-Osco.
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)
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documentation is received by the Village from the Illinois Department of Revenue
and Jewel-Osco verifying the accuracy of the amount of Annual Sales Taxes. The
Village shall contemporaneously provide Jewel-Osco with a written accounting
with the annual Incentive Payments demonstrating the Village's determination of
the Incentive Payments' amount.
C. Jewel-Osco 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 New Store during the Term of this Agreement.
D. Except for the amount and timing of Incentive Payments made to Jewel-Osco
under this Agreement (which is considered public information), Jewel-Osco and
Village shall keep Annual Sales Taxes information confidential, unless disclosure
is otherwise required by law.
Section 5. Limited Obligation of the Villap-e. 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 Jewel-Osco 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.
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(2) Jewel-Osco 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
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 Jewel-Osco
and such appointment shall not be discharged within sixty (60) days after
his appointment or Jewel-Osco has not bonded against such receivership
or appointment.
B. Upon the occurrence of a default by Owner or Jewel-Osco 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 Jewel-Osco 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
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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.:
To Owner: Gateway Fairview, Inc.
c/o RREEF Management LLC
222 South Riverside Plaza, Floor 26
Chicago, IL 60606-5808
With a copy to: C. Michelle Panovich, Principal, Executive Vice President
Mid -America Asset Management, Inc.
One Parkview Plaza, 9a' Floor
Oakbrook Terrace, IL 60181
And with a copy to: Mariah F. DiGrino, Esq.
DLA Piper
203 North LaSalle Street, Suite 1900
Chicago, IL 60601
To Jewel-Osco: Jewel Food Stores, Inc.
c/o New Albertson's, Inc.
P.O. Box 20, Boise, Idaho 83726 (mailing address)
250 Parkcenter Blvd, Boise Idaho 83726 (street address)
Attn: Legal Department, Jewel #3469
With a copy to: Jewel Food Stores, Inc.
150 Pierce Road, Suite 200
Itasca, Illinois 60143
And with a copy to: Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd.
835 McClintock Drive, Second Floor
Burr Ridge, Illinois 60527
Attn: Richard J. Skrodzki
To the Village:
Village of Deerfield
850 Waukegan Road
Deerfield, Illinois 60015
Attn: Village Manager
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With a copy to: Rosenthal, Murphey, Coblentz & Donahue
Suite 1624
30 North LaSalle Street
Chicago, Illinois 60602
Attn: Peter D. Coblentz, Esq.
Section S. Law Governing. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois.
Section 9. Assipnments b5 Jewel-Osco. Except in the case of an assignment to an
affiliate whose ownership shares a controlling interest with Jewel-Osco and which assignees will
continue to operate the New Store in accordance with this Agreement, Jewel-Osco may not
assign its rights 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. Assipnments by Owner. Conveyance by Owner of title to the Center 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. Bindine Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Village, Owner and Jewel-Osco and their respective successors and assigns.
Section 13. Limitation of Liabilih'. No recourse under or upon any obligation, covenant
or agreement of this Agreement, or for any claim based thereon or otherwise in respect thereof,
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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 Jewel-Osco
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 Jewel-Osco 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.
Section 14. Legal and Other Fees and Expense
A. Except as modified by sub -section B below, in the event that any third party or
parties institute any legal proceedings against Owner, Jewel-Osco and/or the
Village which relate to the terms of this Agreement, Jewel-Osco 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 Jewel-Osco 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, Jewel-
Osco 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.
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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.
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 A=_reement. 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 Headines 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.
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Section 17. Authorization to Execute. The officers and agents of Owner and of Jewel-
Osco who have executed this Agreement represent and warrant that they have been lawfully
authorized by Owner and Jewel-Osco, respectively, to execute this Agreement on behalf of
Owner and Jewel-Osco. 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 Jewel-Osco relative
to 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 Jewel-Osco 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.
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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
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.
-18-
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
date and year first written above.
VILLAGE OF DEERFIELD
an Illinois Municipal Corporation
1
Its: Mayor
ATTEST:
k7d, . -,::; -4
Villa Clerk
OWNER
GATEWAY FAIRVIEW, INC.,
a Delaware corpo tion
By:
Its: rS 11�
ATTEST:
By:
Its: Ther :NU "
JEWEL FOOD STORES, INC.,
an Ohio corporation
Y:
Signatory
ATTEST:
1f 1 S
944376.2
-19-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
TRACT A:
THAT PART OF THE NORTHEAST '/ OF SECTION 4, TOWNSHIP 42 NORTH, RANGE 12,
EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF THE NORTHEAST'/ OF
SAID SECTION 4 AND THE CENTER LINE OF WAUKEGAN ROAD; THENCE WEST ON
THE NORTH LINE OF THE NORTHEAST '/ OF SAID SECTION 4. 793.80 FEET, SAID
POINT BEING ON THE EASTERLY LINE EXTENDED NORTHERLY OF DOWNEY' S
COUNTRY HOME ADDITION TO DEERFIELD, A SUBDIVISION OF PART OF THE
NORTH %2 OF SECTION 4, TOWNSHIP 42 NORTH, RANGE 12, EAST OF THE THIRD
PRINCIPAL MERIDIAN; THENCE SOUTHERLY ON THE EASTERLY LINE OF SAID
DOWNEY'S COUNTRY HOME ADDITION TO DEERFIELD, 1174 FEET TO THE
SOUTHEASTERLY CORNER OF SAID SUBDIVISION; THENCE EAST PARALLEL TO
THE NORTH LINE OF THE NORTHEAST '/ OF SAID SECTION 4, 830.09 FEET TO THE
CENTER OF WAUKEGAN ROAD; THENCE NORTHERLY ON THE CENTER LINE OF
WAUKEGAN ROAD 1190.4 FEET TO THE POINT OF BEGINNING.
EXCEPTING FROM THE ABOVE TRACT OF LAND THE NORTH 50 FEET AND THE
EASTERLY 50 FEET THEREOF DEDICATED FOR PUBLIC HIGHWAY.
TRACT B:
THAT PART OF THE NORTH ''/2 OF SECTION 4, TOWNSHIP 42 NORTH, RANGE 12, EAST
OF THE THIRD PRINCIPAL MERIDIAN, LYING EASTERLY AND NORTHERLY OF THE
NORTHERN ILLINOIS TOLL HIGHWAY DESCRIBED AS:
COMMENCING AT THE POINT OF INTERSECTION OF A LINE 1576 FEET NORTH OF
AND PARALLEL WITH THE EAST AND WEST QUARTER SECTION LINE OF SAID
SECTION 4, WITH A LINE 33 FEET WESTERLY OF (MEASURED PERPENDICULARLY)
AND PARALLEL WITH THE CENTER LINE (AS OCCUPIED) OF WAUKEGAN ROAD
(FORMERLY STATE ROAD), THENCE WEST ALONG SAID LINE 1576 FEET NORTH
AND PARALLEL WITH SAID QUARTER SECTION LINE 1622.35 FEET TO ITS POINT OF
INTERSECTION WITH THE EASTERLY RIGHT OF WAY LINE OF THE CHICAGO,
MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD; THENCE SOUTH 25 DEGREES 13
MINUTES 30 SECONDS EAST ALONG SAID EASTERLY RIGHT OF WAY LINE 364.88
FEET TO ITS POINT OF INTERSECTION WITH THE NORTHEASTERLY RIGHT OF WAY
LINE OF SAID TOLL ROAD; THENCE SOUTH 59 DEGREES 08 MINUTES 30 SECONDS
EAST ALONG THE NORTHEASTERLY LINE OF SAID TOLL ROAD 737.445 FEET;
THENCE NORTH 64 DEGREES 46 MINUTES 30 SECONDS EAST 433.887 FEET; THENCE
NORTH 25 DEGREES 13 MINUTES 30 SECONDS WEST, 75.00 FEET; THENCE NORTH 64
DEGREES 46 MINUTES 30 SECONDS EAST, 629.232 FEET TO ITS POINT OF
INTERSECTION WITH SAID LINE 33 FEET WESTERLY OF AND PARALLEL WITH THE
CENTER LINE OF WAUKEGAN ROAD; THENCE NORTH 27 DEGREES 07 MINUTES 05
SECONDS WEST ALONG SAID PARALLEL LINE 210.56 FEET TO THE POINT OF
BEGINNING, TOGETHER WITH THAT PART, IF ANY, OF SECTION 4, TOWNSHIP 42
NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: A STRIP OF LAND LYING BETWEEN THE EAST LINE OF THE CHICAGO,
MILWAUKEE, ST. PAUL AND PACIFIC RAIROAD RIGHT OF WAY AND A LINE 33 FEET
WESTERLY OF (MEASURED PERPENDICULARLY) AND PARALLEL WITH THE
CENTER LINE (AS OCCUPIED) OF WAUKEGAN ROAD (FORMERLY STATE ROAD)
NORTH OF A LINE 1576 FEET NORTH OF AND PARALLEL WITH THE EAST AND WEST
QUARTER SECTION LINE OF SAID SECTION 4, (EXCEPT THAT PART OF THE NORTH
V2 OF SECTION 4, TOWNSHIP 42 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, LYING EASTERLY AND NORTHERLY OF THE NORTHERN ILLINOIS TOLL
HIGHWAY, DESCRIBED AS FOLLOWS: COMMENCING AT THE POINT OF
INTERSECTION OF A LINE 1576 FEET NORTH OF AND PARALLEL WITH THE EAST
AND WEST QUARTER SECTION LINE OF SAID SECTION 4 WITH A LINE 33 FEET
WESTERLY OF AND PARALLEL WITH THE CENTER LINE (AS OCCUPIED) OF
WAUKEGAN ROAD (FORMERLY STATE ROAD); THENCE SOUTH 27 DEGREES 07
MINUTES 05 SECONDS EAST ALONG SAID PARALLEL LINE 33 FEET WESTERLY OF
SAID CENTER LINE 210.56 FEET; THENCE SOUTH 64 DEGREES 46 MINUTES 30
SECONDS WEST 629.232 FEET; THENCE SOUTH 25 DEGREES 13MINUTES 30 SECONDS
EAST 75.00 FEET FOR A POINT OF BEGINNING OF THE PARCEL OF LAND DESCRIBED
HEREBY; THENCE SOUTH 64 DEGREES 46 MINUTES 30 SECONDS WEST 433.887 FEET
TO A POINT OF INTERSECTION WITH THE NORTHEASTERLY LINE OF SAID TOLL
HIGHWAY SAID POINT BEING 737.445 FEET SOUTHEASTERLY OF (AS MEASURED
ALONG SAID NORTHEASTERLY LINE) ITS POINT OF INTERSECTION WITH THE
EASTERLY RIGHT OF WAY LINE OF THE CHICAGO, MILWAUKEE, ST. PAUL AND
PACIFIC RAILROAD; THENCE NORTH 59 DEGREES 08 MINUTES 30 SECONDS WEST
IN SAID NORTHEASTERLY LINE 13.773 FEET; THENCE NORTH 64 DEGREES 46
MINUTES 30 SECONDS EAST 441.573 FEET; THENCE SOUTH 25 DEGREES 13 MINUTES
30 SECONDS EAST 11.43 FEET TO THE POINT OF BEGINNING), IN CCOK COUNTY,
ILLINOIS.
This location is commonly known as Deerbrook Mall which property is located at the southwest
corner of Waukegan Road and Lake Cook Road in Deerfield, Illinoi, and is legally described as
follows: 50-250 Waukegan Road, Deerfield, Illinois. PINs: 04-04-200-005-0000; 04-04-200-007-
0000; 04-04-200-008-0000; 04-04-200-013-0000; 04-04-200-014-0000; 04-04-200-016-0000;
04-04-200-017-0000; 04-04-200-021-0000; 04-04-200-022-0000; 04-04-200-023-0000; 04-04-
200-024-0000; 04-04-202-025-0000
Deerbrook Shopping Center — Legal Description
Deerbrook Shopping Center is the property located at the southwest corner of
Waukegan Road and Lake Cook Road in Deerfield, Illinois, and is legally described as
follows: 50-250 S. Waukegan Road, Deerfield, Illinois. PINs: 04-04-200-005-0000, 04-
04-200-007-0000, 04-04-200-008-0000, 04-04-200-013-0000, 04-04-200-014-0000, 04-
04-200-016-0000, 04-04-200-017-0000, 04-04-200-021-0000, 04-04-200-022-0000, 04-
04-200-023-0000, 04-04-200-024-0000, 04-04-202-024-0000, 04-04-202-025-0000.
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Exhibit D