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HomeMy WebLinkAbout22-18 Resolution No. 22-18 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH ALA CARTE ENTERTAINMENT, INC. (2300 Bushwood Drive) 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 on behalf of the City of Elgin with Ala Carte Entertainment, Inc., for economic development assistance in connection with the development of 2300 Bushwood Drive, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 9, 2022 Adopted: February 9, 2022 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 9th day of February 2022, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City"), and Ala Carte Entertainment, Inc., an Illinois corporation ("ACE"). WHEREAS, Ala Carte Entertainment, Inc. (ACE) was founded in 1970 by Fred Hoffmann with a single location in Chicago called Snuggery, and; WHEREAS, that venue was instrumental in pioneering music video, dynamic per- formance art, sound and lighting innovations that led to Snuggery being featured in a Time magazine cover story about U.S. nightclubs, and; WHEREAS, the company grew, adding more Snuggery locations in Chicago and the surrounding suburbs by 1988, and; WHEREAS, it then created Excalibur, one of the company's first nightclubs, and that venue, in turn, paved the way for the evolution of Ala Carte Entertainment, and; WHEREAS, Fred Hoffman was later joined by his son, Mark Hoffman, who now serves as Vice President of ACE, directing its growth within local communities in the Chi- cago metro area, and; WHEREAS, Schaumburg-based ACE has been operating nearly 50 years and cur- rently oversees about 1,500 employees at 24 restaurants and nightclubs. ACE restau- rants feature a unique collection of party spaces and offer in-house professional event planning, chef designed cuisine, a creative range of menu choices, entertainment, and high-tech audio-visual capabilities. WHEREAS, ACE is seeking to redevelop the vacant, 20,000 square-foot building at 2300 Bushwood Drive as a Moretti's Unique Events restaurant, planning one million dollars in renovations to the building to enhance operational efficiencies and to create unique event spaces for corporate functions, social events, wedding receptions and any other special occasion ("Subject Project"), and; WHEREAS, to induce ACE into proceeding with the Subject Project, the City will waive its development fees associated with the construction of the Subject Project, and; WHEREAS, ACE 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 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, ACE meets high standards of credit worthiness and financial strength, and WHEREAS, the Subject Project will strengthen the commercial and industrial sec- tor 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 suf- ficiency 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. ACE, at its cost, shall develop the Subject Project. The devel- opment of the Subject Project shall conform in all respects with all applicable legal re- quirements, 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 responsi- bility of and shall be paid for by ACE. ACE shall commence the Subject Project within -7- days of the entry into this agreement and shall complete the Subject Project within 07� days of the entry into this agreement. The commencement of the Subject Project shall mean the commencement of construction of the remodeling associated with the 2 Subject Project. Completion of the Subject Project shall mean ACE completing all of the planned improvements and obtaining a certificate of occupancy from the City for the Subject Project. 3. Economic Incentives. In consideration for ACE's undertaking of the Subject Pro- ject, the City agrees to provide economic incentives to ACE to be used by ACE solely and only for the Subject Project. Such economic incentives shall consist of and be distributed to ACE 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 ACE 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 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 ACE 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 receipt requested, to the parties at the following addresses, or at such other ad- dressed 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 ACE: City of Elgin Fred R. Hoffman 150 Dexter Court Registered Agent Elgin, IL 60120-5555 2330 N. Hammond Drive, Suite G Attention: Richard G. Kozal Schaumburg, IL 60173 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 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 and ACE 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 to resolve any inconsistency, ambiguity, vagueness or con- flict, 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 con- sent 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 ACE 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 reme- dies as specified herein or otherwise available at law, equity or otherwise. Without limiting the foregoing, in the event of a default by ACE, ACE 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. Notwithstanding 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 Project the City has agreed to waive pursuant to the preceding par- agraph 3 of this Agreement, no action shall be commenced by ACE against the City 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. In the event any action is brought by the City against ACE or its permitted assigns with 4 respect to this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from ACE reasonable interest and reasonable attorney's fees K. Time is of the essence of this Agreement. L. This Agreement shall be construed, and the rights and obligations of the City and ACE 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, attor- ney, agent or independent contractor of the City shall be charged personally or held con- tractually 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 ACE and the City that in connection with the performance of this Agreement, that ACE shall comply with all applicable federal, state, city and other require- ments of law including, but not limited to, any applicable requirements regarding prevail- ing wages, minimum wage, workplace safety and legal status of employees. Without lim- iting the foregoing, ACE hereby certifies, represents and warrants to the City that all of ACE'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, ACE 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 ACE to determine ACE's compliance with the provisions of this section. In the event the City pro- ceeds with such an audit, ACE shall make available to the City ACE's relevant records at no cost to the City. ACE shall also pay any and all costs associated with any such audit. If so desired by ACE, 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. ACE, on behalf of itself and its respective successors, assigns and grantees hereby acknowledges the propriety, necessity and legality of all of the terms and provi- sions 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 5 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 sig- nature 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 copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the re- quest 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 and ACE have executed this Agreement on the date and year first written above. CITY OF ELGIN, ALA CARTE ENTERTAINMENT, INC., an Illinois municipal corporation an Illinois corporation By.� David J. K ain, ayor Its: A - M Kimberly Dewis ity Clerk i 6