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HomeMy WebLinkAbout23-70 Resolution No. 23-70 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH BELLA CASA SQUARE, LLC (880-900 SUMMIT STREET) 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 Bella Casa Square, LLC, for economic development assistance in connection with the development of 880-900 Summit Street, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 12, 2023 Adopted: April 12, 2023 Vote: Yeas: 7 Nays: I 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 12 th day of April 2023, by and between the City of Elgin, an Illinois mu- nicipal corporation (hereinafter referred to as the "City"), and Bella Casa Square, LLC an Illinois limited liability company (hereinafter referred to as "the Developer"). WHEREAS, the Developer proposes to construct a mixed-used commercial and res- idential development known as Bella Casa (hereinafter referred to as "the Subject Project") on the currently vacant property commonly known as 880-900 Summit Street (hereinafter referred to as the Subject Property), and; WHEREAS, the Subject Project includes five (5) buildings, all totaling about 12,374 square feet of commercial space and 151 multi-family residential apartments for rent, and; WHEREAS, the City approved planned development ordinance G30-21 in June 2021 , which provides the zoning authority necessary to construct the Subject Project; and WHEREAS, the Developer is requesting approval of an amendment to planned de- velopment ordinance G30-21, the purpose of which is to reconfigure the on-site recreational amenities proposed for the future residents of the Subject Project; and WHEREAS, the real property for the Subject Property has remained largely vacant since at least 1998 when the City approved planned development ordinance G69-98 for a Dominick's grocery store; and WHEREAS, the Dominick's grocery store was never built, and the owner of the prop- erty that proposed the Dominick's grocery store sold the Subject Property; and WHEREAS, to induce the Developer into proceeding with the Subject Project on the Subject Property, the City will waive its development fees associated with the construction and completion of the Subject Project on the Subject Property as provided in this Agree- ment, and; WHEREAS, the Developer would not be 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 municipal- ity; 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 agree- ment as provided for in this agreement pertain to the government and affairs of the City; 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 ar- eas; and WHEREAS, the Developer meets high standards of credit worthiness and financial strength; and WHEREAS, the Subject Project will strengthen the commercial 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 undertak- ings contained herein, and other good and valuable consideration, the receipt and suffi- ciency 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. The Developer, 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, the planned development ordinances for the Sub- ject Property and other applicable city ordinances and codes, the terms of this Agreement, or as otherwise directed by the City as is necessary to comply with ordinances, 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 responsibility of and shall be paid for by the Developer. The Developer shall commence the Subject Project within three hundred and sixty-five (365) days of the entry into this Agreement and shall complete the Subject Project within five (5) years of the entry into this Agreement. The commencement of the Subject Project shall mean the construction of the foundation and approval of the asso- ciated foundation inspection for at least one (1) of the five (5) buildings associated with the Subject Project. Completion of the Subject Project shall mean the Developer completing all of the planned improvements and obtaining a certificate of occupancy for all buildings and/or tenant spaces from the City for the Subject Project. Such Completion Date of the Subject Project shall be extended by one day for each day for which construction is delayed or stopped due to accident, strikes, shortage of materials, extreme weather, acts of God, pan- demic (including the current Covid-19 virus and any variant thereof), government shutdown, 2 public health crisis, undue delay by the City in issuing any required permits for which appli- cation has been properly made by the Developer, or lawsuits or other administrative actions brought by any third party that has the effect of hindering or delaying Developer's perfor- mance hereunder (such occurrences being individually or collectively hereinafter referred to as "Force Majeure"). In the event the Developer encounters such a Force Majeure event, the Developer shall provide written notice to the City of such event within 10 days of the com- mencement of such event, an explanation and the expected duration of the event, and writ- ten notice within 10 days of the conclusion of such Force Majeure event. In the event the Developer requires an extension of the Completion Date for the Subject Project other than by reason of Force Majeure, any such requests shall be submitted to the City in writing specifying the reasons for such an extension and the amount of additional time being re- quested. Any agreement by the City to further extend the Completion Date for the Subject Redevelopment of the Subject Property shall be at the sole discretion of the City Council of the City. 3. "Fast-Track"Permitting Process and Waiver of Certain Development Fees for the Subject Project. A. In consideration for the Developer's undertaking and completion of the Subject Project on the Subject Property as provided in this Agreement, the City agrees to provide economic incentives to conduct a "fast-track" permitting process for the Subject Project and agrees to refund to the Developer upon the completion of the Subject Project any building permit fees, water system capital connection impact fees, other 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. B. The Developer shall pay all Development Fees at the time when each fee is cus- tomarily due.The City shall hold such funds and remit same back to the Developer after the Subject Project is complete as defined within Subsection 2 of this Agree- ment. In the event the Developer does not complete the Subject Project in the manner defined and within the time specified within Subsection 2 of this Agree- ment, no refund of the Development Fees will be paid to the Developer and all Development Fees held by the City shall be forfeited by the Developer, and the City may immediately use such fees as allowed by law. No interest shall accrue upon and be otherwise due to the Developer for any Development Fees held by the City. C. The Developer has proposed providing on-site recreational amenities at one (1) of the five (5) buildings that comprise the Subject Project. Said amenities include an equipped fitness room and a roof-top pickle ball court, the specifics of which are shown on Attachment 1 to this Agreement (hereinafter referred to as "the Amen- ities"). The City acknowledges and has agreed that, in so long as the value of the 3 Amenities are equal to or exceed the amount of the park land impact fees that would otherwise be owed, the Amenities shall count as credit for said park land impact fees. The value of the Amenities may include direct costs to construct the Amenities, any extra-ordinary construction costs that are above and beyond typ- ical construction costs necessary to provide the Amenities, and interior upfit and equipment costs necessary to outfit the Amenities. In the event the value or cost of the Amenities is less than the amount of the park land impact fees that would otherwise be owed, no credit shall be given for the difference between the value or cost of the Amenities and the amount of said park land impact fees. D. The Developer shall pay the park land impact fee prior to the issuance of a building permit for the Subject Project. Such funds collected by the City for the park land impact fees shall be held by the City and remitted back to the Developer upon (1) an inspection of the Amenities by the City Development Administrator or his de- signee and a finding that the Amenities are in substantial conformance with At- tachment 1; (2) the provision of receipts and/or other like financial documents by the Developer to the City Development Administrator or his designee to substan- tiate that the amount of money spent on constructing and upfitting the Amenities is equal to or more than the amount of the park land impact fee required at the time of the issuance of the building permit; and (3) after the Subject Project is complete as defined within Subsection 2 of this Agreement. In the event the De- veloper does not complete the Subject Project in the manner defined and within the time specified within Subsection 2 of this Agreement, no credit for the Amen- ities will be applied to the park land impact fees and all park land impact fees held by the City shall be forfeited by the Developer, and the City may immediately use such fees as allowed by law. No interest shall accrue upon or otherwise be due to the Developer for any park land impact fees held by the City. E. In the event the Developer requests a building permit for a portion of the Subject Project, the City shall calculate and collect from the Developer the park land im- pact fee owed for that portion of the Subject Project for which the Developer re- quests a building permit. Such funds collected by the City for park land impact fees shall be held by the City and remitted back to the Developer pursuant to the provisions of Subsection 3D of this Agreement. F. Any impact fees or other fees that may be due and owing to any other govern- mental entity other than the City shall be paid by the Developer. G. It is not the intent of this Agreement to reimburse the Developer for any of the fees described within Subsection &A. of this Agreement that the Developer may have already paid prior to the execution of this Agreement. 4 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 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 THE DEVELOPER: City of Elgin Jo Butera 150 Dexter Court Attorney Elgin, IL 60120-5555 1590 W. Algonquin Road, Unit #223 Attention: Richard G. Kozal Hoffman Estates, IL 60192 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. E. That this Agreement contains the entire agreement and understanding of the par- ties 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 col- lective work product of the City and the Developer 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. 5 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 the Developer 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 reme- dies 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 specified herein or otherwise available at law, equity or otherwise. Without limiting the fore- going, in the event of a default by the Developer, the Developer shall forfeit to the City the amount of the Development Fees collected by the City for the Subject Project pursuant to paragraph 3 of this Agreement. Notwithstanding the foregoing or anything else to the con- trary in this Agreement, with the sole exception of an action to recover the cost of the De- velopment Fees for the Subject Project the City has agreed to waive pursuant to the pre- ceding paragraph 3 of this Agreement, no action shall be commenced by the Developer against the City for monetary damages. Venue for the resolution of any disputes or the en- forcement 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 the Developer 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 the Developer 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 the Developer 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, 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 negotiation, approval, execution or attempted execution of this Agreement. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by the Developer and the City that in connection with the performance of this Agreement, that the Developer shall comply with all applicable federal, state, city and other 6 requirements of law including, but not limited to, any applicable requirements regarding pre- vailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Developer hereby certifies, represents and warrants to the City that all of the Developer's employees and/or agents who will be employed for the Subject Project shall be legal residents of the United States. The City shall have the right to audit any records in the possession or control of the Developer to determine the Developer's compli- ance with the provisions of this section. In the event the City proceeds with such an audit, the Developer shall make available to the City the Developer's relevant records at no cost to the City. The Developer 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 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.The Developer, 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 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 orig- inal 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 fac- simile 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 consid- ered 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 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. 7 IN WITNESS WHEREOF, the City and the Developer have executed this Agreement on the date and year first written above. CITY OF ELGIN, BELLA CASA SQUARE, LLC, an Illinois municipal corporation an Illinois limited liability company By: G�-A- avid J. K in, ayor Its: Jo Butera, Manager Att st "Kimberly Dewis, ' Clerk 8