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HomeMy WebLinkAbout21-140 Resolution No. 21-140 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT WITH YORK MW LLC, AN AFFILIATE OF ATLANTIC PACKAGING HOLDINGS LTD. (2601 Mason 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 Development Incentive Agreement on behalf of the City of Elgin with York MW LLC, an affiliate of Atlantic Packaging Holdings, Ltd., for economic development assistance in connection with the development of 2601 Mason Road, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: September 8, 2021 Adopted: September 8, 2021 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk ECONOMIC INCENTIVE AGREEMENT This Economic Incentive Agreement(the"Agreement") is made and entered into as of this 8th day of September, 2021, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City"), and York MW LLC, a Delaware limited liability company ("York MW"),an affiliate of Atlantic Packaging Holdings Ltd., incorporated under the laws of the Province of Ontario, Canada("Atlantic"). WHEREAS, Atlantic is a privately owned, Canadian company that has been in business since 1945, and; WHEREAS, since that time,Atlantic has grown into one of the largest and most respected companies in Canada; and WHEREAS, Atlantic operates twelve facilities in Canada and four in the United States; WHEREAS, through forward-thinking vision, timely acquisitions, and a service driven mantra,Atlantic is recognized an industry leader, focused on delivering quality sustainable pack- aging products to large and small customers alike, and; WHEREAS,Atlantic selected Elgin as the home for what will be its largest U.S. manufac- turing site, WHEREAS, York MW will be purchasing the land at 2601 Mason Road(the"Land")and constructing a 488,450-square-foot building for making corrugated boards and boxes from recy- cled paper that contemplates a potential building expansion that can increase the size of the build- ing to more than 591,000 square feet in the future("Subject Project"),and; WHEREAS, York MW is an affiliate of Atlantic, formed and established by Atlantic to purchase the Land and construct the Subject Project, and; WHEREAS, to induce York MW into proceeding to purchase the Land and constructing the Subject Project,the City will provide"fast-track"permitting and waive its building permit fees associated with the construction of the Subject Project in an amount not-to-exceed$500,000, and; WHEREAS, Atlantic would not have been inclined to have York MW proceed with the purchase of the Land and construction of 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) author- izes municipalities including the City to enter into economic incentive agreements relating to the development or redevelopment of lands within the corporate limits of a municipality; and WHEREAS,the City is a home rule unit authorized to exercise any power and perform 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,Atlantic 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 undertakings 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 en- tirety. 2. Subject Project. Subject to closing on the purchase of the Land, York MW, 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 reasonably directed by the City as is nec- essary to comply with ordinances, building codes or other requirements of law. Except as other- wise provided in this Agreement, all costs and expenses relating to the Subject Project shall be the responsibility of and shall be paid for by York MW. Subject to closing on the purchase of the Land, York MW shall commence the Subject Project within 9 months of the entry into this agree- ment(the "Commencement Date") and shall complete the Subject Project (except for installation of manufacturing equipment)within 36 months of the entry into this Agreement(the "Completion Date"). The commencement of the Subject Project shall mean the commencement of construction of the manufacturing facility associated with the Subject Project. Completion of the Subject Pro- ject shall mean Atlantic substantially completing all the planned improvements(except for instal- lation of manufacturing equipment) and obtaining a temporary or final certificate of occupancy from the City for the Subject Project. 3. Economic Incentives. In consideration for York MW's undertaking of the Subject Project, the City agrees to provide economic incentives to York MW to be used by York MW 2 solely and only for the Subject Project. Such economic incentives shall consist of and be distrib- uted to York MW 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 Subject Project and agrees to waive and not require York MW to pay any building 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 estab- lishment of the Subject Project in an amount not-to-exceed Five Hundred Thousand Dollars ($500,000). 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 York MW. The foregoing fast- track permitting process and waiver of development impact fees to the Subject Property shall apply only to the initial development on the Subject Property and shall not apply to any future additions, alterations or development of the Subject Property. In the event York MW does not close on the purchase of the Land and commence with the con- struction of the manufacturing facility associated with the Subject Property by the Commencement Date and/or in the event MW does not complete the Subject Project by the Completion Date, it is agreed and understood that City will not be providing any economic incentives to York MW for the Subject Project pursuant to this Agreement or otherwise. 4. Miscellaneous. A. That this Agreement shall not be deemed or construed to create an employment, 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 re- ceipt 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 YORK MW AND ATLANTIC: City of Elgin Atlantic Packaging 150 Dexter Court I I I Progress Avenue Elgin, IL 60120-5555 Scarborough, ON M I P 2Z7 Attention: Richard G. Kozal Attention: Paul Doyle City Manager With a copy of any such notice to: City of Elgin Duane Morris LLP 150 Dexter Court 190 South LaSalle Street, Suite 3700 Elgin, IL 60120-5555 Chicago, Illinois 60603 Attention: William A. Cogley, Attention: David B. Yelin Corporation Counsel 3 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. 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, York MW and Atlantic and, as such, this Agreement shall not be con- strued against the other party, as the otherwise purported drafter of same,by any court of compe- tent jurisdiction to resolve any inconsistency,ambiguity,vagueness 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 suc- cessors 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 Agree- ment placing of record the terms and provisions of this Agreement. I. The City and York MW 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 obliga- tions hereunder,the other party shall be entitled to pursue any and all available remedies as spec- ified herein or otherwise available at law, equity or otherwise. Without limiting the foregoing, in the event of a default by York MW,York MW shall pay to the City the amount of the Development Fees waived by the City for the Subject Project pursuant to paragraph 3 of this Agreement. Not- withstanding the foregoing or anything else to the contrary in this Agreement,with the sole excep- tion of an action to recover the amount of the Development Fees for the Subject Project the City has agreed to waive pursuant to the preceding paragraph 3 of this Agreement, no action shall be commenced by Atlantic or York MW against the City or by the City against Atlantic or York MW for monetary damages. 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. K. Time is of the essence of this Agreement. 4 L. This Agreement shall be construed, and the rights and obligations of the City and York MW hereunder shall be determined in accordance with the laws of the State of Illinois with- out reference to its conflict of laws rules. M. No past,present or future elected or appointed official, officer,employee, attorney, 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 limited to, because of their ne- gotiation,approval,execution or attempted execution of this Agreement. No past,present or future owner,member,manager,principal,officer,director,employee, attorney, agent,representative or independent contractor of Atlantic, York MW or either of their affiliates shall be charged person- ally or held contractually liable under any term or provision of this Agreement including,but not limited to,because of their negotiation, approval, execution or attempted execution of this Agree- ment. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by York MW and the City that in connection with the performance of this Agreement, that Atlantic 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 status of employees. Without limiting the foregoing,York MW hereby certifies,represents and warrants to the City that all of York MW's employees and/or agents who will be employed for the Subject Project shall be legal residents of the United States.Without limiting the foregoing,and notwithstanding anything to the contrary in this Agreement,York MW 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 records in the possession or control of York MW pertaining to the Subject Project to determine York MW's compliance with the provisions of this section. In the event the City proceeds with such an audit, York MW shall make available to the City York MW's relevant records at no cost to the City. York MW shall also pay any and all costs associated with any such audit. If so desired by York MW, the audit shall, to the extent permitted by law, be subject to reasonable 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. York MW, on behalf of itself and its respective successors, assigns and grantees 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 provisions 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 maintain 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. P. This Agreement may be executed in counterparts,each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by email or facsimile shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by email or facsimile shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such emailed or faxed 5 copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party, any e-mail or facsimile copy of this Agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of email or facsimile as a defense to this Agreement and shall forever waive such defense. IN WITNESS WHEREOF,the City,York MW and Atlantic have executed this Agreement on the date and year first written above. CITY OF ELGIN, ATLANTIC PACKAGING HOLDINGS an Illinois]Mum cipal corporation LTD., an Ontari anada corporation By: David J. Kapt , M or //�� Its• /'�j- Dd-y le Atte t: YORK MW LLC, a Delaware limited liability company erly"Dewis, Clerk By: Gran AcquKgember c. a Delaware corpo- ration, its M a By: P 1 Doyl Its: CFO FALegal Dept\Agreement\Atlantic Packaging Economic Incentive Agr-Clean 9-3-21.docx 6