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R-16-09VILLAGE OF DEERFIELD LAKE AND COOK COUNTIES, ILLINOIS RESOLUTION NO. R..16-9 A RESOLUTION AUTHORIZING AN AMENDMENT TO 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 Amendment to Economic Incentive Agreement; and WHEREAS, the Village entered into a certain Economic Incentive Agreement dated July 21, 2015 (the "Agreement ") with Gateway Fairview, Inc., the owner of the Deerbrook Shopping Center ( "Owner "), and Jewel Food Stores, Inc. ( "Jewel "), to provide an economic incentive as described in the Agreement for a redevelopment project at Deerbrook Shopping Center (the "Center ") by Owner and Jewel that will include the demolition of the existing Jewel Osco store (the "Existing Store ") at the north end of the Center, the construction of a new Jewel Osco store at the north end of the Center, and the further redevelopment of the north end of the Center shopping center with additional parking and retail outlots (the "Project"); and WHEREAS, due to difficulties now foreseen by Jewel in continuing to operate the Existing Store as a temporary full -line grocery store location during construction of the Project, Jewel has proposed that the Agreement be amended as provided in the Amendment to Economic Incentive Agreement attached hereto as Exhibit A (the "Amendment') to only require that Jewel continue to operate an approximately 10- 15,000 square foot downsized pharmacy store as a temporary store during the development and construction of the new Jewel Cisco grocery store, together with a reduction in the costs that Jewel may seek as an Incentive Reimbursement recoverable under the Agreement. 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 the Amendment; 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 Amendment to Economic Incentive Agreement with Gateway Fairview, Inc. and Jewel 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 terns of this Resolution should be inconsistent with any non - preemptive state law, this Resolution shall supersede state law in that regard within its jurisdiction. -2- SECTION 4: That this Resolution shall be in full force and effect from and after its passage and approval as provided by law. PASSED this 16th day of May 2016. AYES: Farkas, Jester, Nadler, Seiden, Shapiro, Struthers NAYS: None ABSENT: None ABSTAIN: None APPROVED this 16th day of May '2016. ATTEST: illa*Cler �'4u e r n L`" Village President -3- AMENDMENT TO ECONOMIC INCENTIVE AGREEMENT This AMENDMENT TO ECONOMIC INCENTIVE AGREEMENT ( "Amendment") is made and entered into as of this 16th day of May, 2016, 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. The parties hereto previously entered into that certain Economic Incentive Agreement, dated July 21, 2015 (the "Agreement "), a true and accurate copy of which is attached hereto as Exhibit "A" and is incorporated herein by reference; and B. Due to difficulties it now foresees in continuing to operate the Existing Store as a temporary full -line grocery store location during a 2 -phase construction of the New Store, Jewel has proposed that it will instead continue to operate an approximately 10- 15,000 square foot downsized pharmacy store as a temporary store during the development and construction of the New Store during a 1 -phase construction project, with a reduction to $950,000 in the Extraordinary Costs that may be considered as an Incentive Reimbursement Amount recoverable under the Agreement from Incremental Sales Taxes. C. The parties hereto are desirous of amending certain terms of the Agreement in accordance with this Amendment. NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE VILLAGE, OWNER AND JEWEL -OSCO, as follows: Section 1. Amendment to the Agreement. The Agreement is hereby amended as follows: A. The representation of Jewel -Osco and Owner, specifically contained in Section 30., and referenced elsewhere, that Jewel -Osco will operate the Existing Store as a full line Jewel -Osco store until the New Store is placed in operation, is hereby amended such that Jewel - Osco will continue to operate an approximately 10- 15,000 square foot portion of the Existing Store during construction of the New Store as a pharmacy, but not as a "full line Jewel -Osco Store;" and B. Section 2E. of the Agreement is amended to read as follows: "Extraordinary Costs" shall mean the actual costs incurred by Jewel -Osco for the extraordinary sequencing of New Store construction while maintaining an approximately 10- 15,000 square foot pharmacy operation. Extraordinary Costs do not include the ordinary cost of operating and maintaining such pharmacy 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 pharmacy operations were terminated. Extraordinary Costs do include any and all additional costs and expenses of operating and maintaining the pharmacy retail operations during construction of the New Store. C. The Incentive Reimbursement Amount set forth in Section 2G. is hereby reduced from $1,200,000.00 to $950,00.00; and D. Exhibit "C" to the Agreement is hereby replaced by Exhibit `B" attached to this Amendment. Section 2. No Further Amendments. Except as specifically amended herein by this Amendment, all other terms, conditions and provisions of the Agreement shall remain in full force and effect. Section 3. Execution of Agreement. This Amendment maybe executed in two or more counterparts, each of which taken together shall constitute one and the same instrument. SIGNATURES ON NEXT PAGE 2 IN WITNESS WHEREOF, the parties hereto have set their hands and seals of the date and year first written above. VILLAGE OF DEERFIELD an Illinois Municipal Corporation By: Its: ATTEST• Y�� 4�— Village C erk OWNER GATEWAY FAIRVIEW, INC., a Delaware corpAation By: Its: V� CG Pres i de�-� ATTEST: JEWEL FOOD STORES, INC., an Ohio corporation By: Its: President 1040851.1 Deerfield Project Timelines Date: 5/4/2016 Weeks Comments Permitting & Bidding 10 Temporary footings & walls Downsizing 2 $150,000 Partial Building Demo & Pad Prep 5 Utilities Jewel Osco New Store Construction 35 Soft Open Remaining Building Demo & Site Work 7 Grand Open 59 Total Additional costs incurred by single phase new store construction Est. General Conditions / OH &P $150,000 Remobilization of Trades $50,000 Temporary footings & walls $100,000 Temorary roofing & mechanicals $150,000 Additional Merchandising/ Fixturing $350,000 Utilities $100,000 Additional Labor _ $50,000 Total: 1.1.1 wew i W, C 'w— Construction Cost- New Store $7,420,800 Soft Cost $350,000 FFE $4,500,000 Additional Hard & Labor Cost $900,000 Additional Labor $50,000 Total $13,220,800 EXHIBIT `B" TO 5/16/16 AMENDMENT TO ECONOMIC INCENTIVE AGREEMENT VILLAGE OF DEERFIELD /GATEWAY FAIRVIEW, INC./ JEWEL FOOD STORES, INC. IN WITNESS WHEREOF, the parties hereto have set their hands and seals of the date and year first written above. ATTEST: Village Clerk ATTEST: VILLAGE OF DEERFIELD an Illinois Municipal Corporation By: Its: OWNER GATEWAY FAIRVIEW, INC., a Delaware corporation By: Its: JEWEL FOOD STORES, INC., an Ohio corpora .on By: Its Presi Authorized Signatory 1090851.1 EXHIBIT "A" TO 5/16/16 AMENDMENT TO ECONOMIC INCENTIVE AGREEMENT VILLAGE OF DEERFIELD/ GATEWAY FAIRVIEW, INC. /JEWEL FOOD STORES, INC. 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 comer 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 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 "F" (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 "E" 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, -2- 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; -3- 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 Ill C. Fol E. 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 I% 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 $ 218.754 (Total of #3 and #5) "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. "Effective Date" shall mean the date on which this Agreement is last executed by both parties. "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 -5- 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. 0 J K. 2. Sales above $17,500,000 for the Sales Tax Year (Incremental Sales) $ 5,000,000. 3. Incremental Sales at the I% 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) 8. Economic Incentive amount (75 %) 46.875. "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. "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 1LCS 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 ILLS 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. "Tax Year" shall mean the initial twelve (12) month period beginning at 12:00 -7- 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 terns 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, tenninate this Agreement on written notice to Owner and Jewel -Osco. B. Owner and Jewel -Osco shall confinn the New Lease commencement date in M 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, terminate 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 bome 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 W 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. 1. 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 Tenn 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) -10- 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 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 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. -11- (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 -12- 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, 9i° Floor Oakbrook Terrace, 1L 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 Parkeenter 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 -13- 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 Governing. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Section 9. Assignments by 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. Assignments 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. Binding 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 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, -14- 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. Leval 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, 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. -15- 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 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. -16- 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. 17- 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. I" 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: ATTEST: 944376.2 VILLAGE OF DEERFIELD an Illinois Municipal Corporation By: Its: OWNER GATEWAY FAIRVIEW, INC., a Delaware corporation By: Its: JEWEL FOOD STORES, INC., an Ohio corporation By: Its: President -19- 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. Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. Attorneys at Law The Prairie Building 835 McClintock Drive ■ Second Floor Burr Ridge, IL 60527-0860 Telephone (630) 655-6000 Facsimile (630) 655-9808 WWW.GSRNH.COM VIA EMAIL AND FEDERAL EXPRESS DELIVERY jug olffac�t IJD 9�S t Kq William M. Brennan William J. Cotter Gregory L. Dose** Brian M. Dougherty Robert D. Goldstine James D. Healy Howard M. Hoff William H. Hrabak, Jr. CraigT. Martin Daniel J. McCarthy III Kenneth J. Nemec, Jr. November 11, 2015 Kent Street, Village Manager Village of Deerfield 850 Waukegan Road Deerfield, IL 60015 Richard J. Nogal Francis J. Wirtz* Christopher J. Novak John T. O'Connell* Thomas P. Russian James E. Olguin (1946 - 2015) Diana K. Pecen _ Donald S. Rothschild Anne M. Skrodzki Richard J. Skrodzki Sara L. Spitler Stephen P. Walsh *Of Counsel Alison J. Wetzel _w� **Also Admitted in California 2 TOV) -100 RE: Economic Incentive Agreement Dated: 3/21/15 By and among the Village of Deerfield/Jewel Food Stores, Inc./Gateway Fairview, Inc. Dear Kent: In connection with the above Agreement, I am pleased to enclose three (3) signature pages which have been executed by Jewel Food Stores, Inc. and Gateway Fairview, Inc. Please return two (2) fully executed originals following execution by the Village of Deerfield. Thank you for your assistance. Very truly yours, 4 9WY4; Richard J. Skrodzki RJS/jak Enclosures cc: David F. Hene (Via Email) C. Michelle Panovich (Via Email) Peter Coblentz, Esq. (Via Email) 993729.1