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HomeMy WebLinkAbout13-3 a Resolution No. 13-3 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH PORTILLO'S HOT DOGS, INC. (1010, 1020 and 1030 South Randall Road) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Economic Incentive Agreement with Portillo's Hot Dogs,Inc.on behalf of the City of Elgin for economic development assistance in connection with the property commonly known as 1010, 1020 and 1030 South Randall Road,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: January 9, 2013 Adopted: January 9, 2013 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk The PORTILLO Restaurant Group VIA LIPS Dick Portillo Owner/Founder/President December 17, 2012 2001 Spring Road Suite 500 Richard G. Kozal Oak Brook, IL 60523-3930 Assistant City Manager 630-954-3773 City of Elgin Fax 630-954-5851 150 Dexter Court Elgin, IL 60120-5555 Re: Portillo's Hot Dogs, Inc. ® 1010, 1020 & 1030 S. Randall Road, Elgin, IL Economic Incentive Agreement BEEF•BURGERS•SALADS •CALIFORNIA•ILLINOIS•INDIANA Dear Mr. Kozal: t At your request, enclosed are two (2) originals of the Economic lncenti�'e Agreement which have been signed by Portillo's Hot Dogs, Inc. for the development of a Portillo's Hot Dogs restaurant and a freestanding retail •ILLINOIS •INDIANA center on this property. Please arrange to place the Agreement on the City Council's January 9, 2013 o agenda for approval and signature by the Mayor and/or the Clerk. In the event a ° the City Council does approve it, please return a signed duplicate original to HOME KITCHEN my attention. m Ci 7WAV,'VG_ In the event you have any questions, please do not hesitate to contact me to lUl�!'s koUsE® discuss. Thank you for your assistance in this matter G/►9UA ITALIAN DININi Very truly yours, * PORI'ILLO'S HOT DOGS, INC. s�-�- Susan B. Shelton General Counsel Ends Breakfast Lunch cc: K. Peterson LEGF11 ESTToperty lgin-WaWart\Conespondence\Ltr City to send Economic ire), incentive Agmt 121712 doc JULIAN'S PLAZA ECONOMIC INCENTIVE AGREEMENT This Economic Incentive Agreement (the "Agreement") is made and entered into as of this 9th day of January 2013, by and between the City of Elgin, an Illinois municipal cor- poration (hereinafter referred to as the "City"), and Portillo's Hot Dogs, Inc., a Delaware corporation ("Portillo's"). WHEREAS, Portillo's is part of "The Portillo Restaurant Group", which is one of the largest privately-owned restaurant company in the Midwest, comprising 47 restaurants plus a catering and shipping division, collectively employing nearly 4000 people, and; WHEREAS, Portillo's restaurants generally seat at least 200 people in a fast-casual setting and on average employ at least 120 people, and; WHEREAS, Portillo's is one of the highest-grossing fast-casual restaurants in the country, realizing more than a quarter-billion dollars in sales in 2011, and; WHEREAS, Portillo's restaurants average $6.8 million in annual revenue, and; WHEREAS, Portillo's is proposing to construct an 8,400 square-foot Portillo's Hot Dogs restaurant along with a 16,000 square-foot freestanding retail center on three outlots in the Wal-Mart and Sam's Club shopping center at 1010, 1020 and 1030 South Randall Road ("Subject Project"), and; WHEREAS, the proposed restaurant will include a drive-through facility in addition to the surface parking area and the retail development will be occupied by up to eight ten- ants, and; WHEREAS, to induce Portillo's into proceeding with the Subject Project, the City will waive its development fees associated with the construction of the Subject Project, and; WHEREAS, Portillo's would not have been inclined to proceed with the Subject Project in Elgin without certain economic development assistance from the City; and WHEREAS, section 8-11-20 of the Illinois Municipal Code (65 ILCS 5/8-11-20) au- thorizes municipalities including the City to enter into economic incentive agreements relat- ing to the development or redevelopment of lands within the corporate limits of a munici- pality; and WHEREAS, the City is a home rule unit authorized to exercise any power and per- form any function relating to its government and affairs; WHEREAS, economic incentive agreements including the economic incentive agreement as provided for in this agreement pertain to the government and affairs of the City; and WHEREAS, the real property for the Subject Property has remained vacant for at least one (1) year; and WHEREAS, the Subject Project is expected to create job opportunities within the City; and WHEREAS, the Subject Project will serve to further the development of adjacent areas; and WHEREAS, Portillo's meets high standards of credit worthiness and financial strength; and WHEREAS, the Subject Project will strengthen the commercial and industrial sector of the City; and WHEREAS, the Subject Project will enhance the tax base of the City; and WHEREAS, this agreement is made in the best interests of the City. NOW, THEREFORE, for and in consideration of the mutual promises and under- takings contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are incorporated into this Agreement in their entirety. 2. Subject Project. Portillo's, at its cost, shall develop the Subject Project. The development of the Subject Project shall conform in all respects with all applicable legal requirements, including, but not limited to, city ordinances and codes, the terms of this Agreement, or as otherwise directed by the City as is necessary to comply with ordi- nances, building codes or other requirements of law. Except as otherwise provided in this Agreement, all costs and expenses relating to the Subject Project shall be the re- sponsibility of and shall be paid for by Portillo's. 3. Economic Incentives. In consideration for Portillo's' undertaking of the Subject Project, the City agrees to provide economic incentives to Portillo's to be used by Portillo's solely and only for the Subject Project. Such economic incentives shall consist of and be distributed to Portillo's as follows: "Fast-Track"Permitting Process and Waiver of Development Fees for the Subject Project. The City agrees to conduct a "fast-track" permitting process for the Sub- ject Project and agrees to waive and not require Portillo's to pay any building 2 permit fees, impact fees, water tap and water meter fees, fire alarm and fire sprinkler permit fees, plan review fees, engineering fees and occupancy permit fees, collectively referred to as "Development Fees," which would otherwise be due and payable to the City in connection with the establishment of the Subject Project. Any and all impact fees or other fees that may be due and owing to any other governmental entity other than the City shall be paid by Portillo's. The City's reimbursement of any Development Fees paid by Portillo's for the Subject Project shall be paid to Portillo's within thirty (30) days of Portillo's obtaining a certificate of occupancy from the City for the Subject Project. 4. Miscellaneous. A. That this Agreement shall not be deemed or construed to create an employ- ment, joint venture, partnership, or other agency relationship between the parties hereto. B. That all notices or other communications hereunder shall be made in writing and shall be deemed given if personally delivered or mailed by registered or certified mail, return receipt requested, to the parties at the following addresses, or at such other addressed for a party as shall be specified by like notice, and shall be deemed received on the date on which said hand delivered or the second business day following the date on which so mailed: TO THE CITY: TO Portillo's: City of Elgin Ms. Susan Shelton 150 Dexter Court General Counsel Elgin, IL 60120-5555 2001 Spring Road, Suite 500 Attention: Richard G. Kozal Oak Brook, IL 60523-2032 Assistant City Manager With a copy of any such notice to: City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Attention: William A. Cogley, Corporation Counsel C. That the failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. D. That this Agreement may be modified or amended only in writing signed by both parties hereto, or their permitted successors or assigns, as the case may be. 3 E. That this Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter as set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. F. That this Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Portillo's and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vague- ness or conflict, if any, in the terms or provisions contained herein. G. That this Agreement is subject to and shall be governed by the laws of the State of Illinois. H. That this Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either the parties hereto. The City may record a Memorandum of Agreement placing of record the terms and provisions of this Agreement. I. The City and Portillo's agree that, in the event of a default by the other party, the other party shall, prior to taking any such actions as may be available to it, provide written notice to the defaulting party stating that they are giving the defaulting party thirty (30) days within which to cure such default. If the default shall not be cured within the thirty (30)-day period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to which it may be entitled under this Agreement. J. If either party fails or refuses to carry out any of the material covenants or obli- gations hereunder, the other party shall be entitled to pursue any and all available remedies as specified herein or otherwise available at law, equity or otherwise. Notwith- standing the foregoing or anything else to the contrary in this Agreement, with the sole exception of an action to recover the cost of the Development Fees for the Subject Pro- ject the City has agreed to waive pursuant to the preceding paragraph 3 of this Agree- ment, no action shall be commenced by Portillo's against the City for monetary dam- ages. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. In the event any action is brought by the City against Portillo's or its permitted assigns with respect to this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from Portillo's reasonable interest and reasonable attorney's fees. Notwithstanding anything to the contrary stated herein or otherwise, PORTILLO'S' AG- GREGATE LIABILITY UNDER THIS AGREEMENT AND IN CONNECTION WITH ITS RECEIPT OF THE ECONOMIC INCENTIVE DESCRIBED HEREIN SHALL BE EX- PRESSLY LIMITED TO THE DEVELOPMENT FEE WAIVERS RECEIVED BY PORTILLO'S FROM THE CITY IN CONNECTION WITH THIS AGREEMENT AND SUCH ECONOMIC INCENTIVE. Portillo's shall have no other liability whatsoever, whether based on breach of contract, negligence, strict liability or any other claim and 4 under no circumstances shall Portillo's be liable for lost profits or revenues, special inci- dental, indirect, consequential or exemplary damages incurred by the City or any third party. K. Time is of the essence of this Agreement. L. This Agreement shall be construed, and the rights and obligations of the City and Portillo's hereunder shall be determined in accordance with the laws of the State of Illinois without reference to its conflict of laws rules. M. No past, present or future elected or appointed official, officer, employee, at- torney, agent or independent contractor of the City shall be charged personally or held contractually liable under any term or provision of this Agreement including, but not lim- ited to, because of their negotiation, approval, execution or attempted execution of this Agreement. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by Portillo's and the City that in connection with the performance of this Agreement, that Portillo's shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal employment status of employees. Without limiting the foregoing, Portillo's hereby certifies, represents and warrants to the City that all of Portillo's' employees and/or agents who will be employed for the Subject Project shall be entitled to work in the United States. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, Portillo's and its contractors and subcontractors shall comply with the Prevailing Wage Act in all respects relating to the Subject Project. The City shall have the right to audit any re- cords in the possession or control of Portillo's to determine Portillo's' compliance with the provisions of this section. In the event the City proceeds with such an audit, Portillo's shall make available to the City Portillo's' relevant records at no cost to the City. Portillo's shall also pay any and all costs associated with any such audit. If so de- sired by Portillo's, the audit shall, to the extent permitted by law, be subject to reason- able confidentiality restrictions set forth in a confidentiality agreement agreed to by the parties. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. O. Portillo's, on behalf of itself and its respective successors, assigns and grant- ees hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provi- sions of this Agreement and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees of the Subject Property, not to sue the City or main- tain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this Agreement. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. 5 IN WITNESS WHEREOF, the City and Portillo's have executed this Agreement on the date and year first written above. CITY OF ELGIN, PORTILLO'S HOT DOGS, INC. By: p David J. Kaptain, Mayor Its: V, r Attest: ///1#"e. Kimberly Dewis, City Clerk 6