R-23-21VILLAGE OF DEERFIELD
STATE OF ILLINOIS )
COUNTIES OF LAKE AND COOK ) SS
VILLAGE OF DEERFIELD )
Imaged 063212580020 Type.
Recorded: 06/21AGR
2023 at 04:25:27 PM
Receipt#: 2023-/00026353
Paqe i of 20
Fees: $50.00
IL Rental Housing Fund: $0.00
Lake County IL
Anthony Veqa LakeCountyClerk
File798008 1
The undersigned hereby certifies that he is the duly appointed Deputy Village Clerk of the Village of
Deerfield, Lake and Cook Counties, Illinois, and that the attached is a true and accurate copy of
Economic Incentive Agreement between the Village of Deerfield and 2300 Carlson, LLC,
dated June 14, 2023.
Dated this June 14, 2023.
�J- %r L/
DANIEL VAN DUSEN
Deputy Village Clerk
Prepared by and after recording return to:
Daniel Van Dusen
Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015 ;
S�
850 WAUKEGAN ROAD DEERFIELD, ILLINOIS 60015 TELEPHONE 847.945.5000 FAX 847.945.0214
VILLAGE OF DEERFIELD
RESOLUTION NO. R-23-21
A RESOLUTION APPROVING AN ECONOMIC INCENTIVE AGREEMENT WITH
2300 CARLSON, LLC
(560 Waukegan Road — Shake Shack)
WHEREAS, 2300 Carlson LLC, an Illinois limited liability company ("Owner'), is
the record owner of the property commonly known as 560 Waukegan Road, in Deerfield,
Illinois, and legally described in Exhibit A attached and, by this reference, made a part of
this Ordinance ("Property'); and
WHEREAS, Shake Shack Illinois LLC, a Delaware limited liability company
("Tenant's is the proposed tenant of the Property; and
WHEREAS, the Property is located in the C-1 Village Center District ("C-1
District'; and
WHEREAS, Tenant desires to construct on, and use the Property for, a drive-thru
restaurant ("Drive-Thru Restaurant'); and
WHEREAS, on February 21, 2023, the Village Board adopted Ordinance 0-23-08 to
grant the Owner a special use to allow the construction and operation of the Drive-Thru
Restaurant on the Property; and
WHEREAS, the Owner has requested that, to enable the Owner and Tenant to
construct the Drive-Thru Restaurant on the Property, the Village provide the Owner a rebate
of a portion of the retailer's occupation tax, home rule sales tax, and food and beverage tax
(collectively, "Sales Tax') generated by the Drive-Thru Restaurant and received by the
Village; and
WHEREAS, the Owner and Village have negotiated a an economic incentive
agreement to assist in the development of the Drive-Thru Restaurant ("Agreement'); and
WHEREAS, the Village Board has determined that entering into the Agreement with
the Owner will serve and be in the best interest of the Village;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF
DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows:
SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and
made a part of, this Resolution as findings of the Village Board.
SECTION TWO: APPROVAL OF AGREEMENT. The Agreement by and
between the Village and the Owner is hereby approved in substantially the form attached to
this Resolution as Exhibit A, and in a final form to be approved by the Village Manager and
Village Attorney.
{00132179.1)
SECTION THREE: EXECUTION OF AGREEMENT. The Village Mayor and the
Village Clerk are hereby authorized and directed to execute and attest, on behalf of the
Village, the Agreement upon receipt by the Village Clerk of at least one original copy of the
Agreement executed by the Owner; provided, however, that if the executed copy of the
Agreement is not received by the Village Clerk within 60 days after the effective date of this
Resolution, or within such greater period of time as the Village Board may approve by
resolution, then this authority to execute and attest will, at the option of the Village Board,
be null and void.
SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and
effect upon its passage and approval by a majority of the members of the Village Board.
AYES: Berg, Benton, Jacoby, Metts-Childers, Oppenheim, Seiden
NAYS: None
ABSTAIN: None
ABSENT: None
PASSED: May 1, 2023
APPROVED: May 1, 2023
RESOLUTION NO. R-23-21
Danie C. Shapiro, Mayor
ATTEST: q
Kent S. Street, VillageClcrq
{00132179.1}
EXHIBIT A
SALES TAX REBATE AGREEMENT
{00132179.1)
Execution Version
This Document Prepared by and
after Recording Return To:
Benjamin L. Schuster
Elrod Friedman LLP
325 N. LaSalle St., Suite 450
Chicago, IL 60654
312.528.5200
ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN
THE VILLAGE OF DEERFIELD AND 2300 CARLSON, LLC
DATED AS OF UVht l- l , 2023
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Execution Version
ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN
THE VILLAGE OF DEERFIELD AND 2300 CARLSON, LLC
THIS ECONOMIC INCENTIVE AGREEMENT ("Agreement') is made and
entered into as of this _=!!� day of Tyrt& , 2023, by and between the VILLAGE OF
DEERFIELD, an Illinois home rule municipal corporation ("Village'), and 2300
CARLSON, LLC, an Illinois limited liability company ("Owner').
IN CONSIDERATION OF the recitals and mutual covenants and agreements set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the Village and
Owner hereby agree as follows:
SECTION 1. RECITALS.
A. Owner is the record title owner of that certain parcel of real estate, consisting
of approximately 1.09 acres, commonly known as the 560 Waukegan Road in the Village, and
legally described in Exhibit A to this Agreement ("Property").
B. The Property is currently improved with a building that was used as a
restaurant ("Existing Building').
C. Owner desires to demolish the Existing Building and redevelop the Property
with an approximately 3,000 square foot, drive-thru restaurant with dual drive-thru lanes
(collectively, "Drive-Thru Restaurant')
D. Owner proposes to lease Property to Shake Shack Illinois LLC, a Delaware
limited liability company ("Tenant's, to operate the Drive-Thru Restaurant.
E. As of the Effective Date, the Village receives sales tax on general merchandise
and qualifying food and over-the-counter drugs. In addition, the Village imposes a home rule
retailers' occupation tax on the gross receipts of tangible personal property sold at retail in
the Village, pursuant to Section 9-7 of The Municipal Code of the Village of Deerfield, Illinois,
1975, as amended ("Village Code"), and its home rule power.
F. As of the Effective Date, the Village receives a sales tax on the purchase of
prepared food and beverages pursuant to Section 9-85 of the Village Code and its home rule
power.
G. The Village has determined that the development and operation of the Drive-
Thru Restaurant on the Property, in compliance with this Agreement, will generate
significant sales tax revenue for the Village, and is consistent with and will further the goals
of the Village's Comprehensive Plan.
H. The Corporate Authorities of the Village have determined that the provision of
a Sales Tax Rebate, as provided for in this Agreement, is necessary and appropriate to
provide for the development of Drive-Thru Restaurant and for the related economic
development benefits to the Village.
I. The Village and Owner desire to enter into this Agreement, to enable the
development, use, and occupancy of the Drive-Thru Restaurant in a manner consistent with
{00131552.2) 1
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the Village's Comprehensive Plan, and in a manner that will enhance the economic vitality
of the Village and ensure the unified and proper use and development of the Drive-Thru
Restaurant in accordance with this Agreement and the Requirements of Law.
SECTION 2. DEFINITIONS. Whenever used in this Agreement, the following
terms have the following meanings unless a different meaning is required by the context.
A. "Commencement Date" means the date established pursuant to Section 3 of this
Agreement.
B. "Corporate Authorities" means the Mayor and Board of Trustees of the Village
of Deerfield, Lake and Cook Counties, Illinois.
C. "Force Majeure" means a strike, lockout, act of God, global, national or local
pandemic or other factor beyond a party's reasonable control and reasonable ability to
remedy; provided, however, that Force Majeure does not include delays caused by weather
conditions, unless those conditions are unusually severe or abnormal considering the time of
year and the particular location of the Property.
D. "Gross Receipts" has the meaning ascribed to it in the Retailers' Occupation
Tax Act.
E. "Food and Beverage Tax" means the sales tax imposed in the Village pursuant
to Section 9-83 of the Village Code. As of the Commencement Date, the Food and Beverage
Tax is 1.00 percent.
F. "Home Rule Sales Tax" means the sales tax imposed in the Village pursuant to
Village's Home Rule Sales Tax Ordinance (Section 9-7 of the Village Code) under the Home
Rule Municipal Retailers' Occupation Tax Act, 65 ILCS 5/8-11-1, and the Home Rule
Municipal Service Occupation Tax Act, 65 ILCS 5/8-11-5.
G. "Municipal Sales Tax" means that portion or component of the Sales Taxes
generated at the Drive-Thru Restaurant that the Village actually receives from Tenant or
the State of Illinois.
H. "Requirements of Law" has the meaning set forth in Section 4.I of this
Agreement.
I. "Retailers'Occupation Tax Act" means taxes imposed and collected by the State
of Illinois and remitted to the Village pursuant to the Retailer's Occupation Tax Act, the
Service Use Tax Act, 35 ILCS 110/1 et seq., the Service Occupation Tax Act, 35 ILCS 115/1 et
seq., and the Use Tax Act, 35 ILCS 105/1 et seq.
J. "Sales Taxes" means: (i) any and all taxes imposed and collected by the State
of Illinois pursuant to the Retailer's Occupation Tax Act; (ii) the taxes imposed and collected
by the State of Illinois pursuant to the Home Rule Sales Tax, in an amount not to exceed
0.5% of the sales price; (iii) the Food and Beverage Taxes imposed and collected by the Village;
and (iii) subject to Section 4.E of this Agreement, any other "sales tax" or successor tax that
may be enacted by the State of Illinois that the Village is able to verify as being generated
from the Drive-Thru Restaurant.
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Execution Version
K. "Sales Tax Rebate" means the rebate payment to Owner of a portion of the
Municipal Sales Taxes that the Village receives that it is required to make pursuant to this
Agreement.
L. "Sales Tax Year" means the period of time commencing on the Commencement
Date and ending on the immediately following December 31st; and each of the subsequent
calendar years thereafter, through the Termination Date.
M. "Special Use Ordinance" means Ordinance 0-23-08, dated February 21, 2023.
N. "Tenant" means an entity that has executed a lease with Owner for the Drive-
Thru Restaurant to operate a drive-thru restaurant consisting of approximately 3,000 square
feet of usable floor area (or such other area reflected in an approved building permit issued
by the Village for the Drive-Thru Restaurant) and offering for sale a selection of food and
beverages, and similar to other Shake Shack restaurants operating as of the Effective Date
within the greater Chicagoland region.
O. "Term" means from the Effective Date to the earlier of: (1) the date that is six
year from the Effective Date; or (ii) the date on which the Village has paid to Owner a
cumulative total of Sale Tax Rebates that equals the Maximum Sales Tax Rebate set forth in
Section 4.A of this Agreement.
SECTION 3. COMMENCEMENT OF SALES TAX REBATE.
The "Commencement Date" under this Agreement is the actual date on which all of
the following events have occurred:
A. Owner has executed a lease with Tenant for Property of a term of at least 15
years that does not permit Tenant to terminate the lease earlier than 15 years except for
breach of the lease by Owner, and has tendered to the Village an unredacted copy of that
executed lease;
B. The Drive-Thru Restaurant, including the drive-thru lanes, has been
constructed on the Property in accordance with the plans attached to the Special Use
Ordinance and the Requirements of Law, and the Village has issued a temporary or final
certificate of occupancy for the Drive-Thru Restaurant; and
C. The Drive-Thru Restaurant is open for business to the public, and is operated
by Tenant as a drive-thru fast food restaurant in compliance with the operational standards
set forth in Section 4.13 of this Agreement.
The Commencement Date will not occur, and the Village will not be obligated to make any
payments of Sales Tax Rebates pursuant to this Agreement, unless (1) construction of the
Drive-Thru Restaurant occurs by March 31, 2024 and (ii) all of the conditions precedent to
the Commencement Date as provided in this Section 3 have been satisfied.
SECTION 4. SALES TAX REBATE.
A. Maximum Total Rebate. The maximum amount in Sales Tax Rebates that
the Village will be required to remit to Owner under this Agreement is $500,000.00
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Execution Version
("Maximum Sales Tax Rebate'). The Sales Tax Rebate includes only those Sales Taxes
generated by the Tenant on the Property.
B. Minimum Operational Standards. Owner acknowledges and agrees that,
notwithstanding any provision of this Agreement to the contrary, it will not receive, and has
no right or expectation to receive, any Sales Tax Rebates with respect to Municipal Sales Tax
received by the Village unless the Drive-Thru Restaurant is used and operated by Tenant.
C. Village Payment.
1. No later than 120 days after the end of each Sales Tax Year, the Village
will pay the applicable Sales Tax Rebate for that particular Sales Tax Year to Owner, based
on the records of the Illinois Department of Revenue and the Food and Beverage Tax tax
return filed with the Village by Tenant, but only to the extent that the Village actually
receives Municipal Sales Taxes from the State of Illinois and Tenant. If, for any reason, the
State of Illinois or Tenant fails to distribute or make payment of the Municipal Sales Tax
revenue to the Village in sufficient time for the Village to make the annual payments, the
Village must provide notice of that fact to Owner. In that event, the Village will make the
required Sales Tax Rebate payment no later than 60 days after the date on which the Village
actually receives the Municipal Sales Tax revenue due the Village for the applicable Sales
Tax Year. If the Village receives a partial Municipal Sales Tax distribution from the State
or Tenant, the Village will only be required to remit to Owner the pro-rata portion of the
Sales Tax Rebate attributable to each such partial payment; provided, however, if said
Municipal Sales Tax distribution is remitted in a subsequent year such distribution shall be
remitted to Owner when received by the Village.
2. If at the end of any Sales Tax Year, the Village identifies the need to
adjust and reconcile the amount of any Sales Tax Rebate payment to account for any
provision of this Agreement or to account for the amount of Sales Tax actually paid by the
State of Illinois or Tenant to the Village, the Village and Owner agree to cooperate with each
other to accomplish the reconciliation. To the extent necessary in that circumstance, as
determined by the Village, the parties agree that the Village may require Owner to submit
such specified financial statements and copies of the applicable State of Illinois Sales Tax
Reports from the Drive-Thru Restaurant as are necessary to verify the amount of Sales Tax
collected from operations at the Property. Any information received by the Village from
Owner under this Agreement will be kept confidential to the extent allowed by the
Requirements of Law.
D. Change in the Law.
1. The Village and Owner acknowledge and agree that the Village's
obligation to pay the Sales Tax Rebate to Owner is predicated on existing State law governing
the distribution of Sales Taxes to the Village, including, without limitation, the Retailers'
Occupation Tax Act. The Village and Owner further acknowledge that the General Assembly
of the State has, from time to time, considered proposals to modify or eliminate the
distribution of Sales Taxes to Illinois municipalities. The Village and Owner make express
provision for the effect of any change upon the operation of this Agreement in Section 4.D.2
of this Agreement.
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Execution Version
2. In the event that the State of Illinois amends or repeals the Retailers'
Occupation Tax Act or makes any other promulgation, enactment, or change that eliminates
the distribution of Sales Taxes to the Village, or otherwise alters the distribution formula in
a manner that prevents the Village and Owner from determining with a reasonable degree
of certainty the amount of the Municipal Sales Tax ("Change in Law"), the provisions of this
Agreement with regard to Municipal Sales Tax generated from the Drive-Thru Facility on or
after the effective date of the Change in Law will automatically be terminated, and the
Village will have no obligation whatsoever to pay to Owner any of the Municipal Sales Tax
generated on or after the effective date of the Change in Law, subject to the following. If, at
any time during the Term of this Agreement, the State of Illinois effects another Change in
Law that either results in the distribution of Sales Taxes to the Village or allows the Village
and Owner to determine with a reasonable degree of certainty the amount of the Municipal
Sales Tax, the provisions of this Agreement with regard to Municipal Sales Tax generated
from Property will automatically be reinstated and will continue through the remainder of
the Term of this Agreement, as may be extended pursuant to Section 7.0 of this Agreement,
subject to the maximum total rebate set forth in Section 4.A of this Agreement.
E. Minimum Operation Commitment. If Tenant stops operating the Drive-
Thru Restaurant for a period greater than 30 consecutive days prior to the date that is six
years from the Commencement Date, regardless of whether Owner replaces the Tenant with
another tenant or operator of the Drive-Thru Restaurant, Owner must reimburse the Village
a share of the total Sales Tax Rebate the Village has previously paid to Owner based on the
following formula:
Total amount of X 72 less the number of full calendar / 72
Sales Tax Rebate months between the Commencement
paid to Owner Date and the date Tenant stops
operating
F. No Guarantee. The parties acknowledge and agree that none of the terms,
conditions, or provisions of this Agreement are to be construed, deemed, or interpreted as: (1)
a guarantee that the Village will receive any Sales Taxes as a result of the operation of
Tenant on the Property; or (2) a requirement or obligation by Owner or Tenant to generate
Gross Receipts from the Drive-Thru Restaurant.
G. Limited Liability. Notwithstanding any other provision of this Agreement to
the contrary, the Village's obligation to pay the Sales Tax Rebate payments is not and will
not be a general debt of the Village or a charge against its general credit or taxing powers,
but is and will be a special limited obligation payable solely out of the Municipal Sales Tax
received by the Village, as specifically defined in Section 2 of this Agreement. Owner will
have no right to, and agrees that it may not, compel any exercise of the taxing power of the
Village to pay the Sales Tax Rebate payments, and no execution of any claim, demand, cause
of action or judgment may be levied upon or collected from the general credit, general funds
or other property of the Village (unless the Village refuses to make the payment to Owner in
violation of this Agreement). No recourse may be had for any payment pursuant to this
Agreement against any past, present, or future director, member, elected or appointed officer,
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official, agent, representative, employee, or attorney of the Village in his or her individual
capacity.
H. Notice of Closure of Tenant or Change in Operation. Owner will provide
the Village with no less than 30 days written notice prior to (1) the abandonment or closure
of Tenant within the Drive-Thru Restaurant for a period of 15 days or more, or (2) the use or
occupancy of the Drive-Thru Restaurant by someone other than Tenant, except to the extent
any Requirement of Law prohibits Owner from providing 30 days' notice, in which event
Owner will provide notice in the minimum time allowed by the Requirements of Law.
I. Limitations on Payment of Sales Tax Rebate. Owner acknowledges and
agrees that the Property must be used and maintained in strict compliance with all applicable
Village codes, ordinances, and regulations (collectively, the "Requirements of Law'), and
that if Owner or Tenant fails to comply in all material respects with the Requirements of Law
or cure any defects within the time allowed herein, the Village shall have the right to suspend
payment of the Sales Tax Rebate for the period that Owner or Tenant is not in material
compliance with the Requirements of Law, and the Village will have no further obligation to
provide any Sales Tax Rebate to Owner until the Village determines in its reasonable
discretion that Owner and Tenant are, during the Term, in material compliance with the
Requirements of Law, at which time all suspended payments will be remitted to Owner. A
legal nonconformity created as a result of the Village's amendment to the Requirements of
Law subsequent to the Commencement Date will not constitute a failure of Owner or Tenant
to comply with the Requirements of Law.
J. Optional "True-Ulx". The Village will have the right, but not the obligation,
to conduct an annual "true -up" of amounts due under the terms of this Agreement for the
immediately preceding Sales Tax Year. Owner agrees to cooperate in good faith with the
Village to conduct and complete the "true -up". Any amounts determined to be due from one
party to the other party as a result of the "true -up" must be paid in full within 30 days after
receipt of an invoice therefor.
K. Right to Receive Payment of Sales Tax Rebate Runs with the
Property. The right to receive payment of the Sales Tax Rebate under this Agreement will
run with the land on which the Drive-Thru Restaurant is constructed, and may not be sold,
transferred, assigned, pledged or otherwise alienated separately from fee simple title to the
Property without the Village's consent. Any transfer of fee simple title to the Property or any
portion thereof and the corresponding right to receive the Sales Tax Rebate must made in
strict compliance with Section 12.0 of this Agreement.
L. Commitment to Fair Employment Practices and Affirmative Action;
Prevailing Wage. If and to extent applicable in accordance with the Requirements of Law,
Owner shall comply with the requirements pertaining to fair employment practices and
affirmative action described in the Illinois Prevailing Wage Act (820 ILCS 130/0.01 et seq.),
as may be applicable.
M. Change in Village Tax Rates. In the event that the Village, in its sole
discretion, increases, decreases, or repeals the Home Rule Sales Tax or Food and Beverage
Tax, Owner will not protest or contest any such increase or decrease.
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Execution Version
SECTION 5.FORCE MAJEURE.
Except as expressly provided to the contrary in this Agreement, whenever a period of
time is provided for in this Agreement for either Owner, Tenant, or the Village to perform
any act or obligation, and Owner or the Village, as the case may be, is unable to perform or
complete the act or obligation because of a Force Majeure, then upon the occurrence of the
Force Majeure, the time period for the performance and completion of the acts or obligations
will be extended for a reasonable time to accommodate the delay caused by the Force
Majeure.
SECTION 6. LITIGATION AND DEFENSE OF AGREEMENT.
A. Litigation. If any lawsuits or proceedings are filed or initiated against either
party before any court, commission, board, bureau, agency, unit of government or sub -unit
thereof, arbitrator, or other instrumentality, that may materially affect or inhibit the ability
of any party to perform its obligations under, or otherwise to comply with, this Agreement
("Litigation"), the party against which the Litigation is filed or initiated must promptly
deliver a copy of the complaint or charge related thereto to the other party and must
thereafter keep the other party fully informed concerning all aspects of the Litigation.
B. Defense. The Village and Owner do hereby agree to use their respective
commercially reasonable efforts to defend the validity of this Agreement, and all ordinances
and resolutions adopted and agreements executed by such party pursuant to this Agreement,
including every portion thereof and every approval given, and every action taken, pursuant
thereto. Each party will have the right to retain its own independent legal counsel, at its
own expense, for any matter. The Village and Owner hereby agree to reasonably cooperate
with each other to carry out the purpose and intent of this Agreement.
C. Indemnity. Owner agrees to, and does hereby, hold harmless and indemnify
the Village, the Corporate Authorities, and all Village elected or appointed officials, officers,
employees, agents, representatives, engineers, and attorneys, from any and all claims that
may be asserted at any time against any of such parties in connection with any claim brought
by a third party against any of the parties identified in this paragraph arising out of or
relating to the Property or this Agreement; provided, however, that Owner's indemnification
obligation will be reduced to the extent the indemnified claims are caused, if at all, by the
willful misconduct or gross negligence on the part of the Village or to the extent the
indemnified claims are caused, if at all, by the Village's failure to comply with any material
requirement of the Requirements of Law (except if such failure to comply with such
Requirements of Law is caused, if at all, by the acts or omissions of Owner or its respective
agents, representatives, or engineers).
D. Defense Expense. Owner hereby agrees to pay all reasonable expenses,
including legal fees and administrative expenses, incurred by the Village in defending itself
with regard to any and all of the claims referenced in Section 6.0 of this Agreement.
SECTION 7. TERM.
This Agreement will be in full force during the Term. During its Term, this Agreement
runs with and binds the Property and inures to the benefit of and be enforceable by Owner
{00131552.2) 7
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and the Village, and any of their respective permitted legal representatives, heirs, grantees,
successors, and assigns. Upon termination of this Agreement, the parties will execute and
record such documentation is necessary to release all parties from further obligation to each
other.
SECTION 8. RELEASE OF INFORMATION.
A. State of Illinois Reports and Data. Owner agrees to execute and provide,
and to cause Tenant to execute and provide: (1) all documentation necessary to cause the
Illinois Department of Revenue to release to the Village the Sales Tax generated from the
Property, including copies of State of Illinois Sales Tax Reports, during each of the Sales Tax
Years pursuant to applicable State law; and (2) copies of all tax returns filed by Tenant with
the Illinois Department of Revenue related to the Sales Taxes generated by Property, to be
provided to the Village contemporaneously with the filing. Any information received by the
Village from Owner or Tenant under this Agreement will be kept confidential to the extent
allowed by the Requirements of Law. Failure by Owner or Tenant to execute and provide the
documentation required by this Section 8.A will relieve the Village from performance of any
duty or obligation under this Agreement until such time as Owner or Tenant has cured such
failure.
B. State Audits and Refunds. Owner must timely notify the Village if it or
Tenant initiates any protest or audit of the Sales Taxes remitted from the Property to the
State of Illinois, and if the State of Illinois refunds or credits to Owner or Tenant any portion
of the remitted Sales Taxes as a result of the protest or audit. In the event of such a refund
or credit, the Village will be entitled to deduct an amount equal to the refunded or credited
amount from subsequent payments of Sales Tax Rebates made pursuant to this Agreement,
and if there are no subsequent Sales Tax Rebate because the Term has ended, Owner shall
repay the Village an amount equal to any amount of Sales Tax Rebate refunded to Tenant.
C. Amendments to Lease with Tenant. Owner must promptly tender to the
Village a copy of each and every executed amendment, addendum, or other modification to
its lease with Tenant for the Property, within 15 days after the date of execution (with
appropriate redactions regarding proprietary information being permitted)
SECTION 9. PAYMENT OF VILLAGE FEES AND COSTS.
A. General Requirements. Owner shall reimburse the Village for all attorneys'
fees incurred by the Village for the preparation and negotiation of this Agreement within 30
days of receipt of an invoice for payment. During the Term, Owner will pay to the Village, as
and when due, all application, inspection, and permit fees, all third -party attorneys' fees and
financial consultants' fees, and all other fees, charges, and contributions required by
applicable Village codes, ordinances, resolutions, rules, or regulations. The preceding
sentence does not relieve Owner from complying with any Requirements of Law.
B. Village Lien Rights. If after the receipt of the certificate of occupancy for the
Drive-Thru Restaurant, any money due from Owner to the Village pursuant to this
Agreement is not paid to the Village by Owner within 30 days after a demand for the
payment, then that money, together with interest and costs of collection, including legal fees
and administrative expenses, will become a lien upon all portions of the Property, and will
{00131552.21 8
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be a debt of, and an obligation owed by, Owner to the Village, and the Village will have the
right to collect that amount, with interest and costs, including legal fees and administrative
expenses, and the right to enforce such lien in the same manner as in statutory mortgage
foreclosure proceedings. Such lien will be subordinate to any first mortgage now or hereafter
placed upon the Property; provided, however, that such subordination will apply only to
charges hereunder that have become due and payable prior to a sale or transfer of the
Property pursuant to a decree of foreclosure or any other proceeding in lieu of foreclosure.
Such sale or transfer will not relieve the Property from liability for any charges thereafter
becoming due, nor from the lien of any subsequent charge.
SECTION 10. LIABILITY AND INDEMNITY OF VILLAGE.
A. No Liability for Village Review. Owner acknowledges and agrees: (1) that
the Village is not, and will not be, in any way liable for any violations of restrictive covenants
applicable to the Property that may occur, or for any damages or injuries that may be
sustained, as the result of the Village's review and approval of any plans for the Property, or
as a result of the issuance of any approvals, permits, certificates, or acceptances relating to
the use and development of the Property; and (2) that the Village's review and approval of
any of the plans and the issuance of any of the approvals, permits, certificates, or acceptances
does not, and will not, in any way, be deemed to insure Owner, or any of its heirs, successors,
assigns, tenants, or licensees, or any third party, against restrictive covenant violations or
damage or injury of any kind at any time.
B. Village Procedures. To the best of Owner's knowledge, all notices, meetings,
and hearings have been properly given and held by the Village with respect to the approval
of this Agreement. Owner agrees not to challenge any of those actions on the grounds of any
procedural infirmity or of any denial of any procedural right.
C. Indemnity. Owner agrees to, and does hereby, hold harmless and indemnify
the Village, the Corporate Authorities, all Village elected and appointed officials, officers,
employees, agents, representatives, and attorneys, from any and all claims that may, at any
time, be asserted against any of those parties in connection with: (i) the Village's review and
approval of any plans, or the issuance of any approvals, permits, certificates, or acceptances
relating to the use and development of the Property; (ii) any actions taken by the Village
pursuant to Section 10.13 of this Agreement; (Ili) the development, construction, and
maintenance of the Property; and (iv) the performance by Owner of its obligations under this
Agreement and all related ordinances, resolutions, or other agreements; provided, however,
that Owner's indemnity under this Agreement will be reduced to the extent the indemnified
claims are caused, if at all, by the willful misconduct or gross negligence on the part of the
Village or to the extent the indemnified claims are caused, if at all, by the Village's failure to
comply with any material requirement of the Requirements of Law (except if such failure to
comply with such Requirements of Law is caused, if at all, by the acts or omissions of Owner
or its agents, representatives, or engineers).
D. Defense Expenses. Owner hereby agrees to pay all expenses (including
without limitation, all out-of-pocket expenses, including attorneys' and experts' fees) incurred
by the Village in defending itself with regard to any and all of the indemnified claims
identified in Section 10.0 of this Agreement.
{00131552.2) 9
Execution Version
SECTION 11. ENFORCEMENT.
A. Enforcement. The parties to this Agreement may, in law or in equity, by suit,
action, mandamus, or any other proceeding, including without limitation specific
performance, enforce or compel the performance of this Agreement, including without
limitation an action by Owner for payment of Sales Tax Rebates pursuant to the limitations
provided in Section 4 of this Agreement. In the event of a judicial proceeding brought by one
party to this Agreement against the other party to this Agreement pursuant to this Section,
the prevailing party will be entitled to reimbursement from the unsuccessful party of all costs
and expenses, including without limitation reasonable attorneys' fees, incurred in connection
with the judicial proceeding.
B. Notice and Cure. Neither party may exercise the right to suspend or
terminate any payments due hereunder or to bring any suit, action, mandamus, or any other
proceeding pursuant to Section I LA of this Agreement without first providing written notice
to the other party of the breach or alleged breach and allowing 30 business days to cure the
breach or alleged breach. If the breach cannot be cured within the 30-business-day period
("Time for Cure"), then the Time for Cure will be extended accordingly, provided that the
notified party has promptly commenced to cure the breach and continued to prosecute the
cure of the breach with diligence.
SECTION 12. NATURE AND TRANSFER OF OBLIGATIONS.
A. Obligations. The parties agree that all charges payable pursuant to this
Agreement, together with interest and costs of collection, including attorneys' fees, constitute
both the personal obligation of the party liable for its payment, and the successors of that
party.
B. Binding Effect. Owner acknowledges and agrees that this Agreement is
binding upon Owner and any and all of its heirs, successors, permitted assigns, and the
successor owners of record and lessees of all or any portion of the Property.
C. Transferee Assumption. To assure that any potential heir, successor, or
permitted assign or successor owner has notice of this Agreement and the benefits and
obligations created by it, Owner agrees:
1. that this Agreement will be recorded with the Lake County Recorder of
Deeds, as provided in Section 14.11 of this Agreement; and
2. to require, prior to the transfer of a legal or beneficial interest in all or
any portion of the Property, the transferee to execute an enforceable
transferee assumption agreement in a form acceptable to the Village
Attorney ("Transferee Assumption Agreement'). The Village agrees
that, upon a successor becoming bound to the personal obligation
created in this Agreement in the manner provided, the liability of
Owner or other predecessor obligor will be released to the extent of the
transferee's assumption of liability and that the transferee will have all
the benefits of Owner hereunder. Owner agrees to notify the Village in
writing at least 30 days prior to the date on which Owner proposes to
{00131552.2) 10
Execution Version
transfer a legal or beneficial interest in all or any portion of the Property
to a transferee. Owner must, at the same time, provide the Village with
a fully executed copy of the Transferee Assumption Agreement.
D. Transfer Defined. For purposes of this Agreement, the term "transfer"
includes any assignment, transfer, sale, transfer to a receiver or to a trustee in bankruptcy,
transfer in trust, or other disposition of the Property, or any beneficial interest in the
Property, in whole or in part, by voluntary or involuntary sale, foreclosure, restructuring,
merger, sale and leaseback, consolidation, or otherwise (but specifically excluding any lease
or other agreement with Tenant).
E. Mortgragees of Property. This Agreement is binding on all mortgagees of
Property or other secured parties automatically upon such mortgagee assuming title to
Property, in whole or in part, by a foreclosure or a deed in lieu of foreclosure without the
necessity of executing such assumption agreement. Until such time, however, a mortgagee
or other secured party will have no personal liability hereunder.
SECTION 13. REPRESENTATIONS AND WARRANTIES.
A. By the Village. The Village represents, warrants and agrees as the basis for
the undertakings on its part contained in this Agreement that:
1. The Village is a home rule municipal corporation duly organized and
validly existing under the law of the State of Illinois and has all requisite corporate power
and authority to enter into this Agreement;
2. The execution, delivery and the performance of this Agreement and the
consummation by the Village of the transactions provided for herein and the compliance with
the provisions of this Agreement: (i) have been duly authorized by all necessary municipal
action on the part of the Village; (ii) require no other consents, approvals or authorizations
on the part of the Village in connection with the Village's execution and delivery of this
Agreement; and (iii) will not, by lapse of time, giving of notice or otherwise, result in any
breach of any term, condition or provision of any indenture, agreement or other instrument
to which the Village is subject; and
3. To the best of the Village's knowledge, there are no proceedings pending
or threatened against or affecting the Village or Property in any court or before any
governmental authority that involves the possibility of materially or adversely affecting the
ability of the Village to perform its obligations under this Agreement.
B. By Owner. In order to induce the Village to enter into this agreement and to
adopt the ordinances and grant the rights herein provided for, Owner hereby warrants and
represents to the Village as follows:
1. Owner is a duly organized, validly existing Illinois corporation in good
standing under the laws of the State of Illinois and is qualified to do business in Illinois.
{00131552.2} 11
Execution Version
2. Owner has the corporate authority and the legal right to make, deliver,
execute, and perform this Agreement and has taken all necessary corporate actions necessary
to authorize the execution, delivery, and performance of this Agreement.
3. All necessary consents of any board of directors, shareholders, creditors,
investors, partners, judicial, or administrative bodies, governmental authorities, or other
parties including specifically, but without limitation regarding the execution and delivery of
this Agreement have been obtained.
4. The consent or authorization of, filing with, or other act by or in respect
of any governmental authority (other than the Village, and the State of Illinois with respect
to distribution of Sales Taxes) is required in connection with the execution, delivery,
performance, validity, or enforceability of this Agreement.
5. The individuals executing this Agreement on behalf of Owner have the
power and authority to execute and deliver this Agreement on behalf of Owner.
6. The execution, delivery, and performance of this Agreement (1) is not
prohibited by any Requirement of Law or under any contractual obligation of Owner; (ii) will
not result in a breach or default under any agreement to which Owner is a party or to which
Owner, in whole or in part, is bound; and (iii) will not violate any restriction, court order, or
agreement to which Owner or/and Property, in whole or in part, is or are subject.
SECTION 14. GENERAL PROVISIONS.
A. Entire Agreement and Release of Claims. This Agreement constitutes the
entire agreement between the parties and supersede any and all prior agreements and
negotiations and understandings between the parties, whether written or oral, relating to
the subject matter of this Agreement. Owner hereby releases and waives any and all claims
and causes of action that it had or may have had against the Village related to or resulting
from any past written or oral agreements, negotiations, understandings, or prior policies of
the Village, or any actions that the Village may have taken or failed to take, relating to the
subject matter of this Agreement.
B. Amendments and Modifications. No amendment or modification to this
Agreement will be effective until it is reduced to writing and approved and executed by all
parties to this Agreement in accordance with all applicable statutory procedures.
C. Notices. Any notice or communication required or permitted to be given under
this Agreement must be in writing and must be delivered (i) personally, (ii) by a reputable
overnight courier, or (iii) by certified mail, return receipt requested, and deposited in the U.S.
Mail, postage prepaid. Unless otherwise provided in this Agreement, notices will be deemed
received after the first to occur of (a) the date of actual receipt; or (b) the date that is one
business day after deposit with an overnight courier as evidenced by a receipt of deposit; or
(b) the date that is three business days after deposit in the U.S. mail, as evidenced by a return
receipt. By notice complying with the requirements of this Section, each party to this
Agreement has the right to change the address or the addressee, or both, for all future notices
and communications to them, but no notice of a change of addressee or address will be
effective until actually received.
{00131552.21 12
Execution Version
Notices and communications to the Village must be addressed to, and delivered at,
the following address:
With a copy to:
Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
Attention: Village Manager
Elrod Friedman LLP
325 N. LaSalle Street, Suite 450
Chicago, Illinois 60654
Attention: Benjamin L. Schuster
Notices and communications to Owner must be addressed to, and delivered at, the following
address:
2300 Carlson, LLC
28430 Ballard
Lake Forest, Illinois 60045
Attention: Larry Hirsch
With a copy to: 2300 Carlson, LLC
Attention: Larry Herskovitz
455 Anthony Trail
Northbrook, Illinois 60062
D. Governing Law. This Agreement is governed by, and to be enforced in
accordance with, the internal laws, but not the conflict of laws rules, of the State of Illinois.
E. Interpretation. This Agreement is to be construed without regard to the
identity of the party who drafted the various provisions of this Agreement. Moreover, each
and every provision of this Agreement is to be construed as though all parties to this
Agreement participated equally in the drafting of this Agreement. As a result of the
foregoing, any rule or construction that a document is to be construed against the drafting
party is not applicable to this Agreement.
F. Chancre in Laws. Except as otherwise explicitly provided in this Agreement,
any reference to laws, ordinances, rules, or regulations of any kind shall include the laws,
ordinances, rules, or regulations of any kind as they may be amended or modified from time
to time hereafter.
G. Headings. The headings, titles, and captions in this Agreement have been
inserted only for convenience and in no way define, limit, extend, or describe the scope or
intent of this Agreement.
H. Time of Essence. Time is of the essence in the performance of this
Agreement.
{00131552.2) 13
Execution Version
I. No Third -Party Beneficiaries. Except as expressly provided in this
Agreement, no claim as a third -party beneficiary under this Agreement by any person, firm,
or corporation may be made or will be valid against the Village or to Owner.
J. Severability. If any term, covenant, condition, or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder
of the provisions will remain in full force and effect and will in no way be affected, impaired,
or invalidated.
K. Calendar Days and Time. Unless otherwise provided in this Agreement,
any reference in this Agreement to "day" or "days" means calendar days and not business
days, except where expressly provided. If the date for giving of any notice required to be
given, or the performance of any obligation, under this Agreement falls on a Saturday,
Sunday, or federal holiday, then the notice or obligation may be given or performed on the
next business day after that Saturday, Sunday, or federal holiday.
L. Exhibit. Exhibit A is attached to this Agreement, and by this reference
incorporated in and made a part of, this Agreement. In the event of a conflict between an
Exhibit and the text of this Agreement, the text of this Agreement controls.
M. Counterparts. This Agreement may be executed in several counterparts,
each of which, when executed, shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
N. Waiver. Neither the Village nor Owner are under any obligation to exercise
any of the rights granted to them in this Agreement except as it determines to be in its best
interest from time to time. The failure of the Village or Owner to exercise at any time any of
those rights are not to be deemed or construed as a waiver of that right, nor will the failure
void or affect the Village's or Owner's right to enforce those rights or any other rights.
O. Rights Cumulative. Unless expressly provided to the contrary in this
Agreement, each and every one of the rights, remedies, and benefits provided by this
Agreement are cumulative and are not exclusive of any other rights, remedies, and benefits
allowed by law.
P. Survival. The provisions of Sections 4.D.2, 4.F, 4.K, 6, 8.A, 8.13, 10.C, and
10.0 will survive the termination or expiration of the Agreement.
Q. Consents. Unless otherwise provided in this Agreement, whenever the
consent, permission, authorization, approval, acknowledgement, or similar indication of
assent of any party to this Agreement, or of any duly authorized officer, employee, agent, or
representative of any party to this Agreement, is required in this Agreement, the consent,
permission, authorization, approval, acknowledgement, or similar indication of assent must
be in writing.
R. Grammatical Usage and Construction. In construing this Agreement,
pronouns include all genders and the plural includes the singular and vice versa.
{00131552.2} 14
Execution Version
S. Recording. After the execution of this Agreement, the Village will promptly
cause this Agreement to be recorded in the office of the Recorder of Lake County.
[SIGNATURE PAGES FOLLOW]
{00131552.2) 15
Execution Version
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
ATTEST:
�c
Village Cl rk
STATE OF ILLINOIS )
) SS
COUNTY OF LAKE )
VILLAGE OF DEERFIELD, an Illinois
home xule municipal corporation
r
Mayor
This instrument was acknowledged before me on `Tunt�, 2023 by
Daniel C. Shapiro, the MAYOR of the VILLAGE OF DEERFIELD, an Illinois home rule
municipal corporation, and by the Village Clerk of said municipal corporation.
Given under my hand and notarial seal this l day of June , 2023.
Notary Public & ' gm'-Z'
My Commission Expires: Novtw%6,rr
(SEAL)
OFFICIAL SEAL
DANIEL VAN DUSEN
E
Y PUBLIC, STATE OF ILLINCISMMISSION EXPIRES: 11102/2025
ZI S s�
{00131552.2) 16
Execution Version
ATTEST:
By: t�"'"NW, 4.C---
Its:
STATE OF Tc.uN0 IS )
) SS
COUNTY OF
2300 CARLSON, LLC, an Illinois limited
liability co ny
By: _ -
Its:
I, Ka rar) L F ►++-S , a Notary Public in and for said County, in the State
aforesaid, do hereby certify that personally
known to me to be the VP of 2300 CARLSON, LLC, an Illinois
limited liability company, and -VA-V1 o:jj , personally known to
me to be the of said limited liability company, appeared before me
this day in person and acknowledged that as such 5m�S;La .cfind B t
they signed and delivered said instrument as their free and voluntary act and as the free and
voluntary act of e33 O Ca rlson LL. C— for the uses and purposes therein set forth.
-it+
Given under my hand and notarial seal this �� day of jwv E , 2023.
Notary Public �—_
My Commission Expires:
(SEAL) KAREN L FRIITS
Official Seal
Notary Public - State of Illinois
My Commission Expires Oct 24, 2026
{00131552.2) 17
Execution Version
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL 1,
LOT 1 (EXCEPT THE WEST 57.9 FEET OF THE NORTH 150 FEET THEREOF) IN BLOCK 5 IN HALL AND
OSTERMAN'S ADDITION TO THE TOWN OF DEERFIELD IN THE NORTHEAST QUARTER OF SECTION 32
AND NORTHWEST QUARTER OF SECTION 33, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF, RECORDED JUNE 2, 1374, N BOOK "A" OF
PLATS, PAGE 16, IN LAKE COUNTY, ILLINOIS.
PARCEL2;
THAT PART OF LOT 19 IN OWNER'S FIRST ADDITION TO DEERFIELD, BEING A SUBDIVISION OF PART
OF THE NORTH HALF OF SECTION 33, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF, RECORDED SEPTEMBER 25, 1915, AS
DOCUMENT 161051, IN BOOK "J" OF PLATS, PAGES 46 AND 47, DESCRIBED AS FOLLOW$: BEGINNING
AT THE SOUTHWESTCORNER OF LOT 1 IN BLOCK 5 IN HALL AND OSTERMAN'S SUBDIVISION
AFORESAID (SAID SOUTHWEST CORNER BEING 26 FEET SOUTH OF THE SOUTHEAST CORNER OF
WOODMAN'$ RE -SUBDIVISION OF LOTS 2, 3, 4, 5, 6 AND 7 IN BLOCK 5 AND LOTS 1, 2,3 AND IN BLOCK
OF HALLAND OSTERMAN'S ADDITION); THENCE SOUTH 15 DEGREES, 46 MINUTES EAST 52 FEET;
THENCE EAST 66 FEET TO THE MOST SOUTHERLY SOUTHWEST CORNER OF SAID LOT 1, BLOCK 5 IN
HALL AND OSTERMAN'S ADDITION; THENCE NORTH 13 MINUTES WEST 50 FEET ALONG THE
BOUNDARY OF SAID LOT 1 IN BLOCK 5; THENCE WEST ALONG THE BOUNDARY LINE OF SAID LOT 1 IN
BLOCK 5, 80 FEET TO THE PLACE OF BEGINNING, IN LAKE COUNTY, ILLINOIS.
PARCEL &
THE WEST 57.9 FEET OF THE NORTH 150 FEET OF LOT 1 IN BLOCK 5 IN HALL AND OSTERMAN'S
ADDITION TO THE TOWN OF DEERFIELD IN SECTION 33, TOWNSHIP 43 NORTH, RANGE 12, EAST OF
THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF, RECORDED ,TUNE 2, 1B74. IN
BOOK "A" OF PLATS, PAGE 16. IN LAKE COUNTY, ILLINOIS.
PINs: 16-33-107-014, 16-33-107-015, and 16-33-107-018
Commonly known as 560 Waukegan Road, Deerfield, Illinois 60015
{00131552.21 18