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HomeMy WebLinkAboutOrdinances - ORD-16-1791 - 05/02/2016 - ECONOMIC INCENTIVE AGREEMENT DUNKIN DONUTS - OAKORDINANCE NO. ORD-16-1791 An Ordinance Authorizing the Mayor's Execution of an Economic Incentive Agreement Between the City of McHenry and McHenry Real Estate LLC WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality as contemplated under Article VH, Section 6, of the Constitution of the State of Illinois, and the passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois. NOW, THEREFORE, BE IT ORDAINED by the CITY COUNCIL of the CITY OF MCHENRY, McHenry County, Illinois, as follows: SECTION 1: The Mayor and City Clerk are hereby authorized to sign the attached Economic Incentive Agreement, bearing the date of May 2, 2016, between the City of McHenry and McHenry Real Estate LLC. SECTION 2: All Ordinances or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 3: This Ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. SECTION 4: This Ordinance shall be in full force and effect from and after its passage, approval, and publication in pamphlet form as provided by law. APPROVED THIS 2"a DAY OF MAY 2016. Voting Aye: CONDON, PETERSON, WIlVIMER, CURRY, SCHAEFER, SANTI Voting Nay: GLA-D Abstaining: NONE Not Voting: NONE Absent: NONE Mayor Susan E. Low ATTEST: City Cler nice C. Jones Economic Incentive Agreement between the City of McHenry and McHenry Real Estate LLC This Economic Incentive Agreement ("Agreement") is made and entered into this 2" a day of May, 2016, by and between the City of McHenry, an Illinois home rule municipality ("City") and McHenry Real Estate LLC ("Contract Purchaser"). A. The property which is the subject of this Agreement is located at the southwest corner of Oak Avenue and Front Street (Illinois Route 31) in McHenry, Illinois 60050 and consists of approximately .54 acres with associated PINS: 09-35-153-008; 09-35-153-009 and 09-35-153-010 ("Subject Property"), legally described as follows: Lots 11, 12, and 13 in Block 2 in Meadow Lane Subdivision, being a subdivision of part of the West %Z of the Northwest 1/a of Section 35, Township 45 North, Range 8 East of the Third Principal Meridian, according to the Plat thereof recorded July 29, 1947 as Document No. 203236, in McHenry County, Illinois. B. The Subject Property has been vacant for several years. C. The Contract Purchaser is intending to purchase the Subject Property and construct a new 2,700 square -foot Dunkin Donuts store with a drive-thru facility previously approved by the City Council. The Contract Purchaser intends to invest approximately $910,000 including: land development, building construction and equipment costs at the Subject Property ("Total Improvement"). D. In order to move forward with construction of the Total Improvement, the Contract Purchaser is required to undertake site improvements at the Subject Property, described and valued in that certain Budget Proposal of Howard Baker, Inc. dated January 21, 2016 ("Site Improvements"). E. The estimated cost of the Site Improvements is $125,000. In order to make it economically feasible for the Contract Purchaser to move forward with purchasing the Subject Property and completing the Site Improvements to the Subject Property and construction of the Total Improvement, the City desires to share with Contract Purchaser a portion of the Base Sales Tax, as defined herein, generated by the Contract Purchaser at the Subject Property after construction of the Total Improvement in an amount not -to -exceed $62,500 ("Sales Tax Incentive"). F. Definitions. The following definitions shall apply to terms used in this Agreement: "Base Sales Taxes" means the retailers occupation taxes and service occupation taxes received by the City, generated solely at the Subject Property and by the Contract Purchaser, from the State of Illinois pursuant to the Service Tax Act (35 ILCS 115/1 et seq.), the Retailers Occupation Tax Act (35 ILCS 120/1 et seq.), and the State Finance Act (30 ILCS 105/6z-18) (as amended), and any taxes that are enacted and imposed as replacements thereto. "Home Rule Sales Tax" means the home rule retailers occupation taxes received by the City from the State of Illinois pursuant to the Home rule Municipal Retailers' Occupation Tax Act (65 ILCS 5/8-11-1.1) (as said Act may be amended), and any taxes that may be enacted and imposed as replacements thereto. "City Payment Obligation" means the City's obligation to pay Contract Purchaser Base Sales Tax as set forth in Paragraph Three and in accordance with the schedule outlined in Table One. "The Commencement Date" means December 31, 2017 and is the first date the City shall pay a Sales Tax Incentive Annual Payment, as defined herein, to the Contract Purchaser as set forth in Paragraphs Three and in accordance with the schedule outlined in Table One. "Event of Default" means a default under this Agreement which remains uncured as set forth in Paragraph Thirteen. "Gross Receipts" means as defined in the Retailer's Occupation Tax Act (35 ILCS 120/1 et seq.). "IDOR" means the Illinois Department of Revenue. "Maximum Total Payment Obligation" shall mean the maximum total amount payable by the City hereunder not to exceed $62,500. "Sales Tax Incentive" means the payment by the City set forth in this Agreement. "Sales Tax Incentive Annual Payment" expressed as a percentage of Base Sales Tax generated by the Contract Purchaser at the Subject Property. "Sales Tax Incentive Year" means the preceding twelve -months of the calendar year." "Table One" includes the sales tax incentive year and sales tax incentive annual payment as defined herein. G. The Contract Purchaser has indicated to the City that, but for the commitment and agreement of the City being made herein, the Contract Purchaser would not have undertaken and will not undertake the Site Improvements to the Subject Property. H. It is essential to the economic and social welfare of the City that it promotes the economic vitality of the community by assuring opportunities for development and sound and stable commercial growth within the corporate limits of the City. I. In order to make it economically feasible for the Contract Purchaser to agree to purchase the Subject Property, complete the Total Improvement and operate its Dunkin Donuts business at the Subject Property the City has agreed to share a portion of the Base Sales Tax generated by the Contract Purchaser in an amount not -to -exceed $62,500 ("Maximum Total Payment Obligation"). 2 J. The parties hereto agree that the Base Sales Tax being shared hereunder shall only be that Base Sales Tax generated in the future by the Contract Purchaser not -to -exceed the Maximum Total Payment Obligation. Now, therefore, in consideration of the promises and agreements made herein, the adequacy and sufficiency of which is acknowledged by the parties hereto, it is agreed as follows: 1. Authority. This Agreement is made and entered into pursuant to the City's home rule powers and functions as granted in the Constitution if the State of Illinois. 2. Agreement to Pay. The City agrees to pay a Sales Tax Incentive to the Contract Purchaser in an amount outlined ,in Table One below. The City's Payment Obligation shall continue for so long as the Contract Purchaser is generating and the City is receiving Base Sales Taxes as defined herein. The Contract Purchaser also acknowledges the Sales Tax Incentive shall be utilized solely for reimbursement for machinery and labor costs incurred in the Site Improvements, not exceeding the Maximum Total Payment Obligation. 3. Evidence of Equipment Purchase and/or Labor Expenditure. The Contract Purchaser acknowledges that prior to any Sales Tax Incentive payment distribution the Contract Purchaser shall provide the City evidence of the expenditure for which reimbursement is being sought including the following information: Paid invoice(s), which includes an itemization of each machinery and labor expenditure; date when labor was completed; company from which labor was completed including name, address and federal tax identification number; a reference on the paid invoice indicating the location of the Subject Property and labor performed or machinery provided on the Subject Property and a sworn affidavit from Contractor Purchaser detailing the machinery and labor costs incurred. 4. Limitation of City Responsibilities. Other than the Sales Tax Incentive agreed to be made pursuant to this Agreement, the City shall have no obligation to incur any expense or share any revenue associated with the Contract Purchaser. 5. Sales Tax Incentive. Commencing on December 31, 2017 and on the anniversary of December 31 every year thereafter, not -to -exceed the Maximum Total Payment Obligation, the City shall pay an economic incentive, in the form of a Sales Tax Rebate, to the Contract Purchaser, in accordance with Table One, below. The Sales Tax Incentive payment shall be paid by the City to the Contract Purchaser following calculation of the amount due but not later than ninety (90) days after the Contract Purchaser produces to the City the Contract Purchaser's Annual Sale Tax Reports, below. Provided, however, no Sales Tax Incentive Annual Payment shall be paid to the Contract Purchaser until such time the Contract Purchaser fully completes the Site Improvements, and an occupancy permit after completion of the Total Improvement is issued ("Occupancy Permit") to the Contract Purchaser. to TABLE ONE Sales Tax Incentive Year Sales Tax Incentive Annual Payment (expressed as a percentage of Base Sales Tax up to a Maximum Total Payment Obligation) Year 1 (December 31, 2017) 100% Year 2 (December 31, 2018) 100% Year 3 (December 31, 2019) 100% Year 4 (December 31, 2020) 100% Year 5 (December 31, 2021) 100% Year 6 (December 31, 2022) 100% Year 7 (December 31, 2023) 100% Year 8 (December 31, 2024) 100% Year 9 (December 31, 2025) 100% Year10 (December 31, 2026) 100% 6. Sales Tax Reports/Accounting. Within ninety (90) days after the end of the twelfth month of each Sales Tax Incentive Year, the Contract Purchaser shall provide the City with a statement, accompanied by a summary of the Gross Receipts for such Sales Tax Incentive Year, in a form reasonably acceptable to the City, signed by one of its officers, which shall set forth the dollar amount of Sales Tax paid to the State of Illinois for the benefit of the City during the prior Sales Tax Incentive Year. This information will be used by the City in calculating the Sales Tax Incentive Annual Payment due hereunder. The term "Gross Receipts," as used herein, shall have the same meaning as that which is ascribed to it in the Retailer's Occupation Tax Act. The Contract Purchaser shall maintain and have available for inspection by the City copies of any and all sales tax returns, sales tax reports, amendments, proof of payment or any other Sales Tax Information filed with the State of Illinois or other appropriate governmental entity, which documents are being held available for the City for purposes of identifying Sales Tax Revenue collected pursuant to this Agreement. The City shall use its best efforts to obtain such Sales Tax Information directly from the IDOR or the State of Illinois. 7. Confidentiality of Financial Information. To the extent permitted by law, the City shall endeavor to maintain the confidentiality of the information contained in any financial reports submitted by the Contract Purchaser, the Sales Tax information received by the City, but shall be permitted to disclose such information and documents to employees and consultants as the City, in its sole discretion, deems appropriate in order to monitor compliance and audit this Agreement. The Contract Purchaser understands and agrees that the provisions of this Agreement and any and all payments to the Contract Purchaser pursuant to this Agreement are public records. The Contract Purchaser also agrees to execute any consent form requested by the City and furnish such additional consent, powers of attorney or waivers as may be required by the IDOR to allow the IDOR to furnish to the City Sales Tax Information transacted by the Contract Purchaser at the Subject Property. 21 The City agrees to utilize Sales Tax Information obtained by it pursuant to the terms of this Agreement solely for the purpose of effectuating the provisions of this Agreement. To the extent permitted by the Illinois Freedom of Information Act and other relevant laws, the City shall endeavor to keep such information confidential. The foregoing, however, shall not preclude the City from disclosing such information to the extent it is mandated to do so by court order or to the extent it makes a good faith determination that such disclosure is required by law. 8. Provisions Concerning Limitation on Debt. The receipt, or anticipated receipt, of Sale Tax Revenue, either directly or indirectly, from the Contract Purchaser's Business of a Dunkin Donuts at the Subject Property, as provided earlier in this Agreement, shall be a condition precedent to any obligation of the City to rebate money to the Contract Purchaser. 9. Prevailing Wales to be Paid. Pursuant to 820 ILCS 130/0.01 et seq., not less than the prevailing rate of wages, as found by the City or determined by a court on review, shall be paid to all laborers, workers and mechanics performing work under the contract relating to the Site Improvements to the Subject Property. Note that the prevailing rate of wages is revised by the Illinois Department of Labor and are available on the Department's official website. 10. No Interest; Limited Obligations. No interest shall be due on the obligations set forth in this Agreement. The Contract Purchaser acknowledges that: (a) the City shall not be required to make any payments of the Sales Tax Incentive to the Contract Purchaser unless they have then delivered, to the City the IDOR form Authorization to Release Sales Tax Information to Local Governments that is needed to facilitate the City's Payment Obligation; (b) the City's Payment Obligation is a limited obligation of the City payable solely out of the Base Sales Taxes the City receives from the IDOR which are attributable to the gross sales generated at the Subject Property after completion of the Total Improvement by the Contract Purchaser; (c) the sole source of the Contract Purchaser's entitlement to payment of the Sales Tax Incentive shall be based upon the aforesaid Base Sales Taxes; (d) the City's Payment Obligation shall not be construed as general obligation of the City; and (e) the Contract Purchaser bears all risk of non- payment resulting from the permanent closure of the Contract Purchaser's business operation at the Subject Property. For purposes of this Agreement permanent closure shall mean the Subject Property remains either vacant or unoccupied for a period of twelve (12) or more consecutive months ("Permanent Closure"). 11. Term. This Agreement shall be in full force and effect for a Term commencing on the Effective Date of this Agreement and ending on the earlier to occur of: (a) the City's payment to the Contract Purchaser of the Maximum Total Payment Obligation; (b) the Permanent Closure of the Contract Purchaser's business (Dunkin Donuts) prior to City's payment to the Contract Purchaser of the Maximum Total Payment Obligation of the City; or (c) the end of the tenth revenue year (December 31, 2026). This Agreement shall remain in effect for enforcement and accounting purposes following the expiration of the Term. 12. Miscellaneous. This Agreement shall be binding upon and inure to the benefit of the Parties. Any notices required or contemplated by this Agreement shall be sent by certified mail or via a nationally -recognized private carrier (such as Fed Ex or UPS), as follows: 5 If to Contract Purchaser: McHenry Real Estate LLC C/O Jayantilal Patel, President 1180 Heather Drive Lake Zurich, IL 60047 If to the City: City of McHenry C/O City Administrator 333 S. Green Street McHenry, IL 60050 With a copy to: David W. McArdle Zukowski, Rogers, Fiood c4L McArdle 50 Virginia Street Crystal Lake, Illinois 60014 13. Default. In the event of a claimed default under this Agreement, the non -defaulting party shall provide notice of default to the defaulting party. No legal action may be commenced with respect to a claimed default until thirty (30) days after said notice has passed, during which time the claimed defaulting party may cure the claimed default. This Agreement shall be governed by Illinois law without regard to its rules regarding conflicts of law. 14. Enforcement. Any action to enforce this Agreement shall only be filed in the Twenty - Second Judicial Circuit, McHenry County, Illinois. The party who prevails in any such action shall be entitled to recover its reasonable attorney's fees from the other party. 15. Only Agreement. This Agreement sets forth all the promises, inducements, agreements, conditions and understandings between the Contract Purchaser and the City relative to the Sales Tax Incentive and there are no other promises, agreements, conditions or understandings, oral or written, express or im plied, mplied, between them relative thereto. This Agreement may only be amended by way of a written instrument that is signed by both Parties. City of McHenry an E. Low; Contract Purchaser (McHenry Real Estate LLC) 0