06-236 Resolution No. 06-236
RESOLUTION
AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT
WITH SAM'S REAL ESTATE BUSINESS TRUST
(1000 S. Randall Road)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that
Ed Schock, Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to
execute an Economic Incentive Agreement with Sam's Real Estate Business Trust on behalf of the
City of Elgin for economic development assistance in connection with the development of 1000 S.
Randall Road, a copy of which is attached hereto and made a part hereof by reference.
s/ Ed Schock
Ed Schock, Mayor
Presented: September 27, 2006
Adopted: September 27, 2006
Vote: Yeas: 7 Nays: 0
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
Elgin,IL
Store#4942-00
9/21/06-WAC
CITY OF ELGIN, ILLINOIS
ECONOMIC INCENTIVE AGREEMENT
SAM'S CLUB
This Economic Incentive Agreement (this "Agreement") is made and entered into
on this 27th day of September, 2006, by and between the CITY OF ELGIN, an Illinois
municipal corporation (the "City"), whose offices are located at 150 Dexter Court,
Elgin, Illinois, 60120, and SAM'S REAL ESTATE BUSINESS TRUST, a Delaware
statutory trust ("Sam's"), whose offices are located at 2001 S.E. 10th Street, Bentonville,
Arkansas, 72716.
Recitals:
A. The City is a municipal corporation and enters into this Agreement pursuant to
65 ILCS 5/8-11-20 (the "Enabling Statute"), which authorizes Illinois municipalities to
enter into economic incentive agreements under certain circumstances. The City is also a
home rule municipality with the authority to enter into this Agreement.
B. Sam's is the owner of a portion of the real estate legally described on Exhibit
A attached hereto, the portion of such real estate which is owned by Sam's and which is
being referred to in this Agreement is known and identified as Lot 9 on the Preliminary
Plat of Subdivision for the property prepared by Atwell-Hicks, LLC, dated July 29, 2005
(the "Property"). After acquiring the Property, Sam's intends to construct the following
on the Property: a Sam's Club retail store containing approximately 138,500 gross
square feet of space, substantially in accordance with Page SP-02 of the Site Plan
prepared by Atwell-Hicks dated July 15, 2005 attached hereto as Exhibit B (subject to the
approval of such Site Plan by the City). (Such Sam's Club retail store containing
approximately 138,500 gross square feet of space and the accompanying Sam's gas
station are hereinafter collectively referred to as the "Project").
C. In the City resolution authorizing the entry into and execution of this
agreement, the City has made the following findings, as required by the Enabling Statute:
1. The Property has remained vacant for at least one (1) year;
2. The proposed Sam's Club store is expected to create or retain job
opportunities within the City;
3. The development of the proposed Sam's Club store will serve to further the
development of adjacent areas;
4. But for this Agreement, the development of the proposed Sam's Club store
would not be possible;
5. Sam's meets high standards of creditworthiness as demonstrated by having
provided evidence of having funds available to pay the entire cost of
developing the Property;
6. The development of the proposed Sam's Club store will strengthen the
commercial sector of the City;
7. The development of the proposed Sam's Club store will enhance the tax base
of the City; and
8. This Agreement is in the best interest of the City.
D. Sam's is conditioning its purchase of the Property and its development of the
Project on the City's Agreement to pledge certain sales tax revenues to Sam's, as
provided in this Agreement.
E. Subject to the terms of this Agreement, the City agrees to partially reimburse
Sam's for the costs of developing the Project. In reliance on the City's agreement, Sam's
intends to cause the Project to be developed, and to enter into such construction-related
contracts as may be necessary to effect such development.
F. This Agreement has been submitted to the City Council for consideration and
review, and the City Council has — prior to the execution of this Agreement -- taken all
actions required for this Agreement to become effective and enforceable.
Agreement:
Now, therefore, for good and valuable consideration, and in order to strengthen
the commercial sector and enhance the tax base of the City, and in order to induce Sam's
to develop the Project, the City and Sam's hereby agree as follows:
1. Definitions.
A. "Certificate of Occupancy" means documents issued by the City in
accordance with the ordinances of the City that evidence Sams'
construction of the Project in accordance with the Annexation
Agreement for the Property and ordinances of the City.
B. "Commencement Date" means the first day on which the Sam's Club
store opens for business on the Property.
C. "Construction Plans" means the plans, drawings, specifications and
related documents for the construction of the Improvements, together
with all amendments and modifications thereto, submitted by or on
behalf of Sam's and approved by the City in accordance with this
Agreement.
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D. "Development Costs" means all costs incurred by Sam's in connection
with the design and construction of the Improvements and the
development of the Project.
E. "Improvements" means all buildings, facilities and site improvements
necessary to the operation of the Project, including the relocation or
improvement of any streets, alleys, easements or rights-of-way; and
the construction or relocation of any utilities or drainage facilities.
"Improvements" shall include, but not be limited to, the Reimbursable
Improvements.
F. "Pledged Sales Tax Fund" means the separate City account into which
the Pledged Sales Tax Revenues are deposited from time to time.
G. "Reimbursable Improvements" means the improvements to Randall
Road and Bowes Road to be depicted in plans prepared by Sam's
consulting engineer and approved by the City and the Kane County
Highway Department in the proposed First Amendment to the
Amended Memorandum of Intergovernmental Agreement referred to
in Section 5D hereof.
H. "Initial Construction" shall mean the commencement of site work in
connection with the construction of the Project.
1. "Sales Tax Revenues" means for each calendar year that this
Agreement is in effect, all revenues that the City receives from retail
sales taxes from the State of Illinois pursuant to the Illinois Service
Occupation Tax (35 ILCS 11511 et seq.), the Illinois Retailers
Occupation Tax Act (35 ILCS 120/1 et seq.), and the Home Rule
Municipal Retailer's Occupation Tax Act (65 ILCS 5/8-11-1) or any
successors to (or substitutes for) any of such Acts that relate to the
provision of any service or the sale of any goods from the Project on
the Property.
2. Development.
A. Construction. If Sam's proceeds with the Project, Sam's shall cause
the Improvements to be constructed in accordance with all laws and
ordinances of the City and the Annexation Agreement for the Property.
Sam's shall have sole responsibility for the selection and employment of
all contractors, suppliers, agents, employees, consultants and professionals
necessary to complete the Project, and for entering into contracts for the
completion of the Project. Sam's shall have the sole right to determine the
means, methods and scheduling of construction (subject to compliance
with the laws and ordinances of the City). The City shall not be a party to
any such contracts and shall not be a third-party beneficiary of any such
contracts.
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B. Construction Plans. If Sam's proceeds with the Project, Sam's shall
submit the Construction Plans for approval by the City. The Construction
Plans shall be prepared by a professional engineer licensed to practice in
the State of Illinois. The Construction Plans shall be sufficiently detailed
to demonstrate to the City that the Improvements will be constructed
substantially in accordance with the Site Plan, and in compliance with all
applicable laws and ordinances and the Annexation Agreement for the
Property.
C. Changes to Plans. To the extent permitted by the Annexation
Agreement for the Property, Sam's shall have the right during construction
to make reasonable changes to the Construction Plans (including without
limitation modification of the construction schedule, modification of the
areas in which Improvements are to be located, expansion or deletion of
features, and other changes required in the exercise of Sams' business
judgment), provided that the Project shall in all events be constructed
substantially in accordance with the Site Plan. Notwithstanding the
foregoing, no changes shall be made to the Reimbursable Improvements
consisting of the improvements to Randall Road and Bowes Road without
the express advanced approval of Kane County. In the event of any such
changes to the Reimbursable Improvements Sam's shall provide the City
written notice of such changes within thirty (30) days after approval
thereof by Kane County.
D. Certificate of Occupancy. Promptly after substantial completion of the
Improvements in accordance with this Agreement and in accordance with
all applicable laws and ordinances, the City shall issue a Certificate of
Occupancy ("CO") or a Temporary Certificate of Occupancy ("TCO").
Issuance of the CO or TCO will not be unreasonably withheld or delayed.
Issuance of the CO or TCO shall be conclusive evidence that Sam's has
satisfied all conditions precedent to receiving its portion of the Pledged
Sales Tax Revenues pursuant to this Agreement. If the City shall fail to
issue a CO or TCO, the City shall, within ten (10) days after written
request from Sam's, provide Sam's with a written document stating in
detail the conditions that Sam's will need to satisfy in order to obtain the
CO or TCO (as the case may be). If the City issues a TCO, Sam's shall
use good-faith efforts to cause any conditions set forth in the TCO to be
satisfied in order to allow the issuance of a CO.
3. Pledged Sales Tax Revenues.
A. Pledge of Revenues. The City hereby pledges and agrees to pay to
Sam's or its designee one-third (1/3) of the Sales Tax Revenues in
accordance with this Agreement, in order to reimburse Sam's for a portion
of the costs of the Reimbursable Improvements incurred by Sam's in the
construction of the Reimbursable Improvements, all as set forth in detail
below (such 1/3 portion of the Sales Tax Revenues is hereinafter referred
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to as the "Pledged Sales Tax Revenues"). The City covenants and agrees
that during the term of this Agreement, the City shall not further encumber
or pledge the one-third (1/3) portion of the Pledged Sales Tax Revenues
required to be deposited into the Pledged Sales Tax Fund or to take any
action inconsistent with the terms and the intent of this Agreement, and
agrees that such one-third (1/3) portion shall be deposited in the
"Account" (as that term is defined below) and shall not be used for any
purposes whatsoever, except to pay Sam's in accordance with this
Agreement. The City hereby agrees to indemnify, defend and hold Sam's
harmless from and against all costs and losses (including reasonable
attorneys' fees) incurred by Sam's by reason of any claim, demand or suit
arising from the failure of the City to properly apply and account for the
Pledged Sales Tax Revenues. The City agrees to enact all ordinances and
resolutions necessary to authorize the execution of this Agreement and the
fulfillment by the City of its obligations under this Agreement.
B. Payments by City. Beginning on the first January 15 following the
calendar year in which the Project opens for business, and on each January
15 thereafter until the "Termination Date", being the earlier of(i) the date
on which all principal and accrued interest hereunder has been paid in full,
or (ii) January 15, 2015, the City shall pay to Sam's or its designee all of
the Pledged Sales Tax Revenues required to be deposited into the Pledged
Sales Tax Fund. Payments shall continue annually until Sam's or its
designee has received the maximum principal amount of Nine Hundred
Ninety Thousand Eight Hundred Dollars ($990,800), plus interest at four
per cent per annum (4%) on the outstanding balance from the
Commencement Date, compounded annually (collectively, the "Incentive
Amount"). In the event that there are any funds remaining in the Pledged
Sales Tax Fund on the Termination Date, the City shall have no obligation
to pay such amounts to Sam's. In the event that any principal or interest
remains unpaid on the Termination Date, this Agreement shall terminate,
and the City shall have no obligation to pay such amounts. Sam's
acknowledges that the payments hereunder are not general obligations of
the City, and shall not constitute an indebtedness of the City or a loan or a
liability of the City within the meaning of any Constitutional or statutory
provision. The obligations of the City under this Agreement shall be
secured solely by the pledge of the Pledged Sales Tax Revenues and shall
be payable solely from the Pledged Sales Tax Revenues paid into the
Pledged Sales Tax Fund. The parties understand and agree that the
payment by the City to Sam's of Pledged Sales Tax Revenues is to
reimburse Sam's (and Wal-Mart Stores, Inc. by way of a concurrent
separate agreement) for the Reimbursable Improvements consisting of
offsite improvements consisting of portions of the improvements to Bowes
Road and Randall Road known as the (1) Randall Road North
improvements which has a current estimated cost of $511,900 and (2)
known as the Randall Road South improvements which has a current
estimated cost of $1,904,700, for a total reimbursement amount to both
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Sam's and Wal-Mart Stores, Inc. not to exceed $2,416,600 (an amount not
to exceed $990,800 plus interest for Sam's and an amount not to exceed
$1,425,800 plus interest for Wal-Mart Stores, Inc.). Within one hundred
twenty (120) days following the completion of the Bowes Road and
Randall Road improvements, Sam's Club shall provide to the City a final
accounting of all costs for the construction of such Bowes Road and
Randall Road improvements including specific costs for the portion of
such roadway improvements known as the Randall Road North
improvements and the Randall Road South improvements. The City shall
thereafter reimburse Sam's forty-one percent (41%) of the costs of
construction of such Randall Road North improvements and Randall Road
South improvements in a total amount not to exceed $990,800 plus interest
at four percent (4%) per annum on the outstanding balance from the
commencement date, compounded annually.
C. Separate Account. The City agrees to cause its Treasurer to create a
separate account within the City's accounting system designated as
"Pledged Sales Tax Fund — Elgin Sam's Club" (the "Account").
Beginning on the Commencement Date and continuing until the City's
obligations hereunder are fully repaid, the City shall deposit or allocate all
Pledged Sales Tax Revenues into the Account within ten (10) days after
receipt of the Form ST-1. The City shall not permit the balance of any
account to exceed the maximum that can be insured by the Federal
Deposit Insurance Corporation or any successor agency and shall, if
necessary, maintain multiple accounts in order to keep the balance of all
accounts below such maximum amount, unless such deposits are
collateralized with obligations of the United States of America, the State
of Illinois or other entities in accordance with the City's published
investment policy.
D. Department of Revenue Forms. At the time of each filing of an
Illinois Department of Revenue Form ST-1 or any successor reporting
form with the Illinois Department of Revenue by Sam's or any other
commercial or retail business operating on the Property, Sam's or such
other business shall cause a copy of such form to be filed with the
Treasurer of the City or such other official as the City may designate.
Within twenty (20) days after the Treasurer or other official receives an
ST-1 Form, the Treasurer or other official shall calculate and certify to the
City the amount of Pledged Sales Tax Revenues due to Sam's in
accordance with this Agreement. The City and its Treasurer and other
officials shall keep strictly confidential all information in the ST-1 Form,
except to the extent that disclosure is necessary to third parties for the
proper administration of this Agreement, or is required by law or under
this Agreement. Sam's shall advise in writing any purchaser or lessee of
the Property (or any part thereof) of the reporting requirements in this
Section 3D, but Sam's shall not have any liability if such purchaser or
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lessee fails to comply with this Section 3D, unless such purchaser or
lessee is an affiliate of Sam's.
E. Further Assurances. Sam's and the City agree to co-operate and to
take all additional actions as may reasonably be necessary in order to
obtain the necessary information and to ensure the accurate calculation
and deposits of the Pledged Sales Tax Revenues. The City agrees to take
all actions necessary to provide for the systematic receipt of sales tax
information for the Project from the Illinois Department of Revenue. To
assist the City, Sam's will supply or cause to be supplied to the City
appropriate authorizations for the Illinois Department of Revenue to
provide such information, including copies of filings with the Illinois
Department of Revenue made by Sam's and any other occupants of the
Property. Sam's and any other occupants of the Property shall, upon
written request of the City, provide a power-of-attorney in form
reasonably satisfactory to the Illinois Department of Revenue, authorizing
the City to request and receive gross revenue and other information
necessary to allow the City to compute the amount of the Pledged Sales
Tax Revenues. Sam's shall advise in writing any purchaser or lessee of
the Property(or any part thereof) of the power-of-attorney requirements in
this Section 3E, but Sam's shall not have any liability if such purchaser or
lessee fails to comply with this Section 3E, unless such purchaser or lessee
is an affiliate of Sam's.
F. Accounting of Receipts. No more than forty-five (45) days after the
end of the calendar year in which Sam's opens for business on the
Property (and not more than forty-five [45] days after the end of each
succeeding calendar year while this Agreement is in effect), the City shall
cause its treasurer or other official to provide Sam's with an accounting of
receipts and expenditures from the Pledged Sales Tax Fund.
G. Annual Resolution. The City shall provide for the payments required
by this Agreement by adopting annually an appropriation therefor which
shall be part of the City's annual budget pursuant to the Budget Ordinance
to be adopted during each fiscal year in which payments may be due
hereunder.
4. Sams' Right to Terminate. Sam's may terminate this Agreement by giving written
notice to the City in the event that Sam's determines at any time prior to commencing
construction of the Project, that the Project is not economically feasible. In the event of
such termination, Sam's and the City shall be released and relieved of all obligations to
each other under this Agreement (except those that by their express terms are intended to
survive such a termination), and the parties would execute such documents as might be
necessary to effect such termination.
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5. Contingencies. Notwithstanding anything to the contrary in this agreement, it shall be
a condition precedent to the obligations of either party to perform its obligations under
this Agreement that:
A. The parties shall have executed and delivered a mutually acceptable
Annexation Agreement relative to the annexation of portions of the
Property into the City;
B. The Property shall have been annexed into the City of Elgin;
C. The City shall have enacted a Planned Development Ordinance
acceptable to Sam's relative to the development of the Property by Sam's
and others; and
D. The City and Kane County shall have executed and delivered a First
Amendment to "Amended Memorandum of Intergovernmental Agreement
for Randall Road — I-90 Illinois Tollway to Hopps Road" permitting the
creation of those access points between Randall Road and the Property
depicted in the Site Plan of Sam's approved by the City, and providing for
the identification, specifications and approval of the offsite improvements
to Randall Road and Bowes Road including, but not limited to, the
Randall Road North improvements and the Randall Road South
improvements.
In the event that any of the foregoing contingencies are not satisfied on or before
twelve (12) months from the date of the entry into and execution of this agreement, then
either party, upon written notice to the other party, may elect to terminate this agreement,
and thereupon this agreement shall be null and void and of no further force and effect
without any further obligations of the parties hereto.
6. Miscellaneous.
A. Assignment. Prior to the opening of a Sam's Club store for business
on the Property, Sams' rights, duties and obligations under this Agreement
may be assigned only with the consent of the City, which consent shall not
be unreasonably withheld; provided, however, that Sam's shall at all times
have the right to assign its rights, duties and obligations hereunder to Wal-
Mart Stores, Inc., or to any entity that is controlled by, controls, or is
under common control with, Wal-Mart Stores, Inc. After the completion
of construction of the Sam's Club store, Sam's shall have the unlimited
right to assign its rights, duties and obligations under this Agreement
without the consent of the City, but Sam's shall provide the City with
written notice of such a transfer.
B. Default. Except as otherwise provided under this Agreement, in the
event of any default under, or breach of, this Agreement, which default or
breach remains uncured for thirty (30) days after written notice from the
non-defaulting party, the non-defaulting party shall have all rights and
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remedies at law, or in equity. Nothing in this Agreement shall be
construed as requiring Sam's to open the Project for business or to operate
the Project.
C. Force Maieure. Neither the City nor Sam's shall be considered in
default under this Agreement if their performance is delayed by damage or
destruction by fire or other casualty, condemnation, strike, lock-out, civil
disorder, war, shortages or delays in delivery or equipment, materials or
fuel, Acts of God or unusual weather conditions or other causes beyond
such party's reasonable control, and the time for performance of
obligations shall be extended by one day for every day of such delay.
D. Notices. All notices under this Agreement shall be in writing. Notices
shall be deemed properly given if personally delivered or if sent by a
nationally-recognized "overnight" courier service such as Fed Ex, to the
addresses set forth below:
If to the City:
City of Elgin
150 Dexter Court
Elgin, IL 60120
Attn: City Manager
If to Sam's:
Sam's Real Estate Business Trust
2001 S.E. 10th Street
Bentonville, AR 72716
Attn: Regional Counsel, Real Estate, Illinois
with a copy to:
Levick, Timm& Garfinkel, LLC
770 Lake Cook Road
Suite 150
Deerfield, IL 60015
Attn: Bruce D. Goodman
Notices shall be deemed given on the date of delivery (if personally
delivered) or (if delivered via "overnight" courier service) on the first
business day after being given to the courier service with all charges
prepaid.
E. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Illinois, without regard to the
conflicts of laws provisions of Illinois law.
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F. Merger. This Agreement constitutes the entire agreement of the parties
hereto and supersedes all prior or contemporaneous verbal understandings
between the parties concerning the allocation of sales tax revenue from the
Sam's project. This Agreement may be amended only by a written
document executed by both parties hereto.
G. Severability. In the event that any term or provision of this Agreement
is held to be unenforceable by a court of competent jurisdiction, the
remainder shall continue in full force and effect, to the extent that the
remainder can be given effect without the unenforceable provision.
H. City Representation. The City hereby represents and warrants that the
City has undertaken all steps and procedures required by the Enabling
Statute to enter into this Agreement, including the due and proper adoption
of an ordinance specifically authorizing the City to enter into this
Agreement. The City has followed, and will continue to follow, all
necessary procedures and will take all such further actions as may be
necessary under the Enabling Statute to fulfill its obligations under this
Agreement.
I. Sams' Representation. Sam's represents and warrants that Sam's has
full power and authority to enter into this Agreement, and that the person
executing this Agreement on behalf of Sam's has been duly authorized to
so.
J. Payment of Claims. The City will pay and discharge from sources other
than the Pledged Sales Tax Fund any lawful claims which, if unpaid,
might become a lien or charge upon the Pledged Sales Tax Revenues
payable to Sam's or its designee hereunder. However, nothing herein
contained shall require the City to make such payments so long as the City
in good faith shall contest the validity of such claims.
K. Remedies. Notwithstanding anything to the contrary in this
Agreement, with the sole exception of an action to recover the Pledged
Sales Tax Revenues the City has agreed to pay to Sam's pursuant to
Section 3B hereof, no action shall be commenced by Sam's and/or any of
its related entities and/or of their successors, assigns and/or grantees
against the City, its officials, officers, employees, attorneys, agents,boards
or commissions, and/or any other related entities for monetary damages
for a breach of this Agreement. The provisions of this paragraph shall
survive any termination and/or expiration of this Agreement.
L. Collective Work Product. This Agreement is and shall be deemed and
construed to be the joint and collective work product of the City and Sam's
and, as such, this Agreement shall not be construed against any party, as
the otherwise purported drafter of same, by any court of competent
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jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or
conflict in the terms or provisions, if any, contained herein.
M. Relationship of parties. This Agreement is not intended and shall not
be construed as to create a partnership, employment, joint venture or
agency relationship between the parties hereto.
N. Prevailing Wage Act. Notwithstanding any other provisions of this
agreement, it is expressly agreed and understood that in connection with
all aspects of the design and construction of the improvements to Randall
Road and Bowes Road referred to in sections 1 G and 5D hereof, that
Sam's (Wal-Mart) and any of its contractors and sub-contractors shall
comply with all requirements of the Prevailing Wage Act at 820 ILCS
130/0.01 et seq., as amended, including, but not limited to, paying the
prevailing wage as required in such Act.
In witness whereof, the City and Sam's have executed this Agreement on the date
first set forth above.
CITY OF ELGIN,
an Illinois municipal corporation
By
Its 4,14 yo 12
SAM'S REAL ESTATE
BUSINESS TR ,
a D a e t st
By:
Michael E. Gardner,
Regional Vice President- Design and Real Estate
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