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HomeMy WebLinkAbout24-25Resolution No. 24-25 RESOLUTION AUTHORIZING EXECUTION OF A SETTLEMENT AGREEMENT WITH BENARA CORPORATION, D/B/A FIESTA MEXICANA RESTAURANT AND VELASQUEZ GAMING, LLC REGARDING VIDEO GAMING TERMINAL OPERATIONS AT 50 N. SPRING 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 a Settlement Agreement on behalf of the City of Elgin with Benara Corporation, d/b/a Fiesta Mexicana Restaurant and Velasquez Gaming, LLC, regarding video gaming terminal operations at 50 N. Spring Street, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: January 24, 2024 Adopted. January 24, 2024 Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") e�") is entered into by and between the City of Elgin ("Ci1y"), Benara Corporation, d/b/a Fiesta Mexicana Restaurant ("Fiesta Mexicana"), and Velasquez Gaming, LLC ("Velasquez") with regard to video gaming terminal ("VGT") operations at 50 N. Spring Street, Elgin, Illinois 60120 ("Premises") from August 2020 to August 2023 ("Prior VGT Operations"). RECITALS WHEREAS, the City is a municipal corporation and home rule unit of local government organized and existing under the laws of the State of Illinois. The City has constituent bodies, including but not limited to the Local Liquor Control Commission of the City of Elgin ("Commission"); WHEREAS, Fiesta Mexicana is an Illinois corporation that operates a Mexican restaurant and bar at the Premises. Benjamin Perez ("Perez") is the owner of Fiesta Mexicana; WHEREAS, Fiesta Mexicana is the holder of a Class E liquor license issued by the City for the Premises; WHEREAS: On or around August 28, 2023, Fiesta Mexicana and Velasquez submitted applications to the City for licensure as an establishment with VGTs pursuant to Section 6.08.040 of the City's municipal code and a distributor of VGTs pursuant to Section 6.08.030 of the City's municipal code, respectively (the "Applications'); WHEREAS: There is currently a limitation of one hundred and seventy-six (176) VGT licenses pursuant to Section 6.08.090 of the City's municipal code. The City and the Commission, however, is not opposed to consideration of increasing the limitation to allow Fiesta Mexicana and Velasquez to operate VGTs at the Premises in the future; WHEREAS on September 27, 2023, the Commission issued a disciplinary complaint against Benara, captioned In the Matter of the Retail Alcoholic Liquor Dealers License of Benara Corporation, d/b/a Fiesta Mexicana Restaurant, 50 N. Spring Street, Elgin, Illinois 60120 (Case No. LC 2023-12) (the "Complaint'). In the Complaint, the Commission alleges that Fiesta Mexicana hosted the Prior VGT Operations; WHEREAS, Fiesta Mexicana timely filed an answer to the Complaint, thereby initiating administrative proceedings ("Proceedings"); and NOW THEREFORE, in consideration of the foregoing premises (which constitute an integral part of this Agreement) and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, Commission, Fiesta Mexicana, and Velasquez hereby agree as follows: 1. Stipulation and Agreed Order: Fiesta Mexicana agrees to execute the Stipulation and Agreed Order attached hereto as Exhibit 1 and incorporated herein by this reference. 2. Payment: Within thirty (30) days of the entry of the Stipulation and Agreed Order by the Commission, Fiesta Mexicana agrees to pay the City a $1,000 ("Fiesta Mexicana Payment") for its alleged role in the Prior VGT Operations, including the alleged violations described in the Complaint. Additionally, Velasquez agrees to pay the City $30,500 ("Velasquez Payment") for its alleged role in the Prior VGT Operations pursuant to the following payment schedule: (a) $7,625 by January 31, 2024; (b) $7,625 by February 29, 2024; (c) $7,625 by March 31, 2024; and (d) $7,625 by April 30, 2024 (the Fiesta Mexicana Payment and the Velasquez Payment, collectively the "Payment'). The Payment provided for herein relates only to the Prior VGT Operations. Fiesta Mexicana and/or Velasquez shall remain responsible for any other fees imposed under the City's municipal code, including but not limited to any license fees for the operation of VGTs in the 2024-25 licensing term or future licensing terms, in the event that the Application(s) are approved by the Commission and the limitation on VGTs is increased by the City. 3. Proceeding: Once the City has received the Fiesta Mexicana Payment, the City will administratively close the Proceedings. Fiesta Mexicana continues as a local liquor licensee in good standing without restriction of any kind related to the Complaint. 4. No Disqualifying Event a. The City and the Commission will hold the Applications for the 2024- 2025 licensing term, which begins on May 1, 2024. The Commission will consider the Applications in or before April 2024. Should the Commission approve the Applications, the City will submit to the Elgin City Council for its consideration an ordinance to increase the limitation contained in Section 6.08.090 of the City's municipal code to allow Fiesta Mexicana and Velasquez to operate VGTs at the Premises. b. The City and the Commission agree that, following the execution of this Agreement, the Prior VGT Operations, including the allegations that form the basis of the Complaint, will not be used as a basis by the City or the Commission for disqualifying Fiesta Mexicana, Perez, or Velasquez from licensure, registration, or status, including the Applications. C. The City agrees that, following the execution of this Agreement, the City, including any constituent parts, will not take any further action, including litigation or any administrative proceedings, against Velasquez as related to the Prior VGT Operations, including the allegations that form the basis of the Complaint. This Agreement, however, does not restrict the City from bringing a disciplinary action in the future for violations of the City's municipal code separate and apart from the Prior VGT Operations, including the allegations that form the basis of the Complaint. 5. Mutual Releases: Subject to the performance of the parties' respective obligations set forth in this Agreement and with respect to the Prior VGT Operations, including 2 the allegations that form the basis of the Complaint, the parties and their respective predecessors, successors, assigns, parents, agents, and representatives, release the other party and all employees, agents, parent companies and representatives from and against all claims, demands, actions, damages, causes of action, costs, expenses, promises, finding, disputes at law or in equity, whether or not matured, disputed or undisputed, arising by statute or at common law. 6. General Provisions: The parties hereto represent, warrant that, and agree as follows: a. Entire Agreement: This Agreement, including Exhibit 1, constitutes the complete agreement and understanding among the parties with respect to the Prior VGT Operations. The parties agree that there were no inducements or representations leading to the execution of this Agreement except as expressly contained herein. No other promises or agreements, either express or implied, shall be binding unless executed in writing by the party to be bound thereto. b. Informed Investigation and Consultation with Counsel: The parties have made such investigation of the facts pertaining to this Agreement and have all available information with respect to the subject matter hereof, as each deems necessary to make a final and binding decision to execute and abide by this Agreement. The parties acknowledge that, before executing this Agreement, they were provided with a complete opportunity to review this Agreement with counsel of their own choosing, have negotiated the terms of this Agreement, which is the joint drafting product of both parties, have carefully read and understand this Agreement, and have signed this Agreement freely and voluntarily. Rules of Construction: This Agreement has been negotiated and drafted by the parties and their representatives. The parties represent and warrant that they have read and understand this Agreement and have consulted with their respective counsel concerning its legal effect. No rule of construction shall apply to this Agreement construing its provisions in favor of or against either party. d. Full Authority: Each person executing this Agreement, individually or in a representative capacity, represents that he or she (i) has read the document, (ii) has been fully advised by counsel of its own choosing, (iii) intends to be legally bound by this document, and (iv) if signing in a representative capacity, is duly authorized by the person or entity on whose behalf he or she is signing to execute this document and warrants that the person or entity on whose behalf this Agreement is signed intends to be legally bound by this document. No Assignment: The Parties represent and warrant that they have authority to enter into this Agreement and that they have not assigned, transferred, or conveyed at any time to any individual or entity, or attempted to assign, transfer, or convey to any individual or entity, any alleged right, claim, or cause of action against any of the persons and entities released in this Agreement. f. Binding Agreement: This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, personal representatives, predecessors, successors, and assigns. g. Governing Law: This Agreement shall be construed and governed by the laws of the State of Illinois without regard to Illinois choice of law principles. Any action arising from or relating to the enforcement, interpretation, or breach of this Agreement shall be brought before a court of competent jurisdiction sitting in Circuit Court of Kane County, Illinois, and the parties consent to the exclusive jurisdiction of such court. h. Execution: This Agreement may be executed in counterparts and all such counterparts together shall constitute one agreement. Executed documents sent via facsimile or email, with confirmation of receipt, are valid and binding and shall have the same force and effect. Survivability and Severability: If any provision of this Agreement shall be found by a court to be invalid or unenforceable, in whole or in part, then such provision shall be construed and/or modified as necessary to render it valid and enforceable, or shall be excised from the Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as modified, or as if such provision had not been originally incorporated herein, as the case may be. SIGNATURE PAGE FOLLOWS 4 THE CITY OF ELGIN BENARA CORPORATION, DB/A FIESTA MEXICANA By: By: David Kaptai Mayor Date: January 24, 2024 Date: Benjamin Perez Owner VELASQUEZ GAMING, LLC By: Ed Velasquez Owner Date: THE CITY OF ELGIN BENARA CORPORATION, DB/A FIESTA MEXICANA By: By: David Kaptain Mayor Date: J f=Waimin Perez Owner Date: VELASQUEZ GAMING, LLC By: Ed Velasquez Owner Date: THE CITY OF ELGIN BENARA CORPORATION, DB/A FIESTA MEXICANA By: By: David Kapt Mayor Date: Date: Benjamin Perez Owner VELASQUEZ GAMING, LLC By. C�.L Ed Velasquez Owner Date: 1/5/2024 Exhibit 1 BEFORE THE LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF ELGIN IN THE MATTER OF THE RETAIL ALCOHOLIC LIQUOR DEALERS LICENSE OF BENARA CORPORATION, DB/A FIESTA MEXICANA, 50 N. SPRING STREET, ELGIN, ILLINOIS 60120 LC 2023-12 STIPULATION AND AGREED ORDER THIS CAUSE coming to be heard on the complaint dated September 27, 2023 (the "Subject Complaint") against the Licensee, Benara Corporation, d/b/a Fiesta Mexicana Restaurant (the "Licensee"), as holder of a Class E liquor license issued by the City of Elgin, Illinois (the "City") for the premises at 50 N. Spring Street, Elgin, Illinois 60120 (the "Licensed Premises"), to determine whether the Licensee should be fined, have its liquor license suspended or revoked, or be fined and have its license suspended or revoked, pursuant to Section 6.06.120 of the Elgin Municipal Code, and the Liquor Control Act of 1934 based on allegation of video gaming operations at the Premises from August 2020 to August 2023 without licensure as an establishment with video gaming terminals ("VGTs") from the City in violation of Section 6.06.140.1313 and Section 6.08.040 of the Elgin Municipal Code; the City appearing by and through one of its attorneys, Christopher J. Beck. IT IS HEREBY STIPULATED BY AND BETWEEN THE LICENSEE AND THE CITY OF ELGIN AS FOLLOWS: 1. The Licensee, at all times mentioned herein and pertinent hereto was the holder of a Class E liquor license issued by the City of Elgin, Illinois, for the Licensed Premises. 2. The Local Liquor Control Commission of the City (the "Commission') has jurisdiction of the subject matter of the charges presented and of the person of the Licensee. 1 3. That on or about August 21, 2023, it was determined that Licensee was hosting five VGTs at the Licensed Premises without a valid video gaming license from the City and that video gaming revenue reports from the Illinois Gaming Board reflect that the Licensee had been operating video gaming terminals at the Licensed Premises since August 2020. Said actions are in violation of Section 6.06.140.BB and Section 6.08.040 of the Elgin Municipal Code. 4. That a fine in the amount of $1,000.00 is an appropriate penalty to be imposed upon the Licensee for the violations referred to herein. 5. That the Licensee has reviewed the Subject Complaint, understands the charges within the Subject Complaint, has consulted with an attorney regarding the Subject Complaint, and waives any and all rights to have a hearing on the Subject Complaint. 6. That the Licensee has reviewed this Stipulation and Agreed Order, understands the terms and provisions of this Stipulation and Agreed Order, has consulted with an attorney regarding this Stipulation and Agreed Order, and wishes to enter into the Stipulation and Agreed Order on the terms as set forth herein. 7. The Licensee hereby waives any and all of its rights to appeal this Stipulation and Agreed Order. 8. The Licensee shall pay to the City Clerk the fine amount of $1,000.00 within thirty (30) days of the entry of this Stipulation and Agreed Order by the Commission. NOW THEREFORE, UPON THE MOTION OF THE PARTIES, THE LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF ELGIN HEREBY FINDS AND ORDERS AS FOLLOWS: 2 1. The Licensee, at all times mentioned herein and pertinent hereto was the holder of a Class E liquor license issued by the City of Elgin, Illinois, for the Licensed Premises. 2. The Local Liquor Control Commission of the City (the "Commission") has jurisdiction of the subject matter of the charges presented and of the person of the Licensee. 3. That on or about August 21, 2023, it was determined that Licensee was hosting five VGTs at the Licensed Premises without a valid video gaming license from the City and that video gaming revenue reports from the Illinois Gaming Board reflect that the Licensee had been operating video gaming terminals at the Licensed Premises since August 2020. Said actions are in violation of Section 6.06.140.1313 and Section 6.08.040 of the Elgin Municipal Code. 4. That a fine in the amount of $1,000.00 is an appropriate penalty to be imposed upon the Licensee for the violations referred to herein. 5. That the Licensee has reviewed the Subject Complaint, understands the charges within the Subject Complaint, has consulted with an attorney regarding the Subject Complaint, and waives any and all rights to have a hearing on the Subject Complaint. 6. That the Licensee has reviewed this Stipulation and Agreed Order, understands the terms and provisions of this Stipulation and Agreed Order, has consulted with an attorney regarding this Stipulation and Agreed Order, and wishes to enter into the Stipulation and Agreed Order on the terms as set forth herein. 7. The Licensee hereby waives any and all of its rights to appeal this Stipulation and Agreed Order. 8. The Licensee shall pay to the City Clerk the fine amount of $1,000.00 within thirty (30) days of the entry of this Stipulation and Agreed Order by the Commission. 3 DATED: 2024 BENARA CORPORATION, D/B/A FIESTA MEXICANA By: Name/Print: Benjamin Perez Its: Owner AGREED TO FOR THE CITY OF ELGIN One of its Attorneys ENTERED: , 2023 David J. Kaptain, Chairman Local Liquor Control Commission for the City of Elgin 4 DATED: , 2023 BENARA CORPORATION, D/B/A FIESTA MEXICANA By. � Be Name/ Jnt: enjamin Perez Its: Owner AGREED TO FOR THE CITY OF ELGIN M. One of its Attorneys ENETERED: , 2023 David J. Kaptain, Chairman Local Liquor Control Commission for the City of Elgin