13-3 a
Resolution No. 13-3
RESOLUTION
AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT
WITH PORTILLO'S HOT DOGS, INC.
(1010, 1020 and 1030 South Randall 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 Incentive Agreement with Portillo's Hot Dogs,Inc.on behalf of the
City of Elgin for economic development assistance in connection with the property commonly
known as 1010, 1020 and 1030 South Randall Road,a copy of which is attached hereto and made a
part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: January 9, 2013
Adopted: January 9, 2013
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
The
PORTILLO
Restaurant
Group
VIA LIPS
Dick Portillo
Owner/Founder/President
December 17, 2012
2001 Spring Road
Suite 500 Richard G. Kozal
Oak Brook, IL 60523-3930 Assistant City Manager
630-954-3773 City of Elgin
Fax 630-954-5851 150 Dexter Court
Elgin, IL 60120-5555
Re: Portillo's Hot Dogs, Inc.
® 1010, 1020 & 1030 S. Randall Road, Elgin, IL
Economic Incentive Agreement
BEEF•BURGERS•SALADS
•CALIFORNIA•ILLINOIS•INDIANA
Dear Mr. Kozal:
t At your request, enclosed are two (2) originals of the Economic lncenti�'e
Agreement which have been signed by Portillo's Hot Dogs, Inc. for the
development of a Portillo's Hot Dogs restaurant and a freestanding retail
•ILLINOIS •INDIANA center on this property.
Please arrange to place the Agreement on the City Council's January 9, 2013
o agenda for approval and signature by the Mayor and/or the Clerk. In the event
a ° the City Council does approve it, please return a signed duplicate original to
HOME KITCHEN my attention.
m Ci 7WAV,'VG_
In the event you have any questions, please do not hesitate to contact me to
lUl�!'s koUsE® discuss. Thank you for your assistance in this matter
G/►9UA ITALIAN DININi
Very truly yours,
* PORI'ILLO'S HOT DOGS, INC.
s�-�-
Susan B. Shelton
General Counsel
Ends
Breakfast Lunch cc: K. Peterson
LEGF11 ESTToperty lgin-WaWart\Conespondence\Ltr City to send Economic ire), incentive Agmt 121712 doc
JULIAN'S PLAZA
ECONOMIC INCENTIVE AGREEMENT
This Economic Incentive Agreement (the "Agreement") is made and entered into as
of this 9th day of January 2013, by and between the City of Elgin, an Illinois municipal cor-
poration (hereinafter referred to as the "City"), and Portillo's Hot Dogs, Inc., a Delaware
corporation ("Portillo's").
WHEREAS, Portillo's is part of "The Portillo Restaurant Group", which is one of the
largest privately-owned restaurant company in the Midwest, comprising 47 restaurants
plus a catering and shipping division, collectively employing nearly 4000 people, and;
WHEREAS, Portillo's restaurants generally seat at least 200 people in a fast-casual
setting and on average employ at least 120 people, and;
WHEREAS, Portillo's is one of the highest-grossing fast-casual restaurants in the
country, realizing more than a quarter-billion dollars in sales in 2011, and;
WHEREAS, Portillo's restaurants average $6.8 million in annual revenue, and;
WHEREAS, Portillo's is proposing to construct an 8,400 square-foot Portillo's Hot
Dogs restaurant along with a 16,000 square-foot freestanding retail center on three outlots
in the Wal-Mart and Sam's Club shopping center at 1010, 1020 and 1030 South Randall
Road ("Subject Project"), and;
WHEREAS, the proposed restaurant will include a drive-through facility in addition
to the surface parking area and the retail development will be occupied by up to eight ten-
ants, and;
WHEREAS, to induce Portillo's into proceeding with the Subject Project, the City
will waive its development fees associated with the construction of the Subject Project,
and;
WHEREAS, Portillo's 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 relat-
ing to the development or redevelopment of lands within the corporate limits of a munici-
pality; and
WHEREAS, the City is a home rule unit authorized to exercise any power and per-
form 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, Portillo's 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 under-
takings 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
entirety.
2. Subject Project. Portillo's, 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 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 re-
sponsibility of and shall be paid for by Portillo's.
3. Economic Incentives. In consideration for Portillo's' undertaking of the Subject
Project, the City agrees to provide economic incentives to Portillo's to be used by
Portillo's solely and only for the Subject Project. Such economic incentives shall consist
of and be distributed to Portillo's 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 Sub-
ject Project and agrees to waive and not require Portillo's to pay any building
2
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 Portillo's. The City's
reimbursement of any Development Fees paid by Portillo's for the Subject Project
shall be paid to Portillo's within thirty (30) days of Portillo's obtaining a certificate
of occupancy from the City for the Subject Project.
4. Miscellaneous.
A. That this Agreement shall not be deemed or construed to create an employ-
ment, 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 Portillo's:
City of Elgin Ms. Susan Shelton
150 Dexter Court General Counsel
Elgin, IL 60120-5555 2001 Spring Road, Suite 500
Attention: Richard G. Kozal Oak Brook, IL 60523-2032
Assistant 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.
3
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 Portillo's 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 in order to resolve any inconsistency, ambiguity, vague-
ness 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
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 Portillo's 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
remedies as specified herein or otherwise available at law, equity or otherwise. Notwith-
standing 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 Pro-
ject the City has agreed to waive pursuant to the preceding paragraph 3 of this Agree-
ment, no action shall be commenced by Portillo's against the City for monetary dam-
ages. 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 Portillo's 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 Portillo's reasonable interest and reasonable attorney's fees.
Notwithstanding anything to the contrary stated herein or otherwise, PORTILLO'S' AG-
GREGATE LIABILITY UNDER THIS AGREEMENT AND IN CONNECTION WITH ITS
RECEIPT OF THE ECONOMIC INCENTIVE DESCRIBED HEREIN SHALL BE EX-
PRESSLY LIMITED TO THE DEVELOPMENT FEE WAIVERS RECEIVED BY
PORTILLO'S FROM THE CITY IN CONNECTION WITH THIS AGREEMENT AND
SUCH ECONOMIC INCENTIVE. Portillo's shall have no other liability whatsoever,
whether based on breach of contract, negligence, strict liability or any other claim and
4
under no circumstances shall Portillo's be liable for lost profits or revenues, special inci-
dental, indirect, consequential or exemplary damages incurred by the City or any third
party.
K. Time is of the essence of this Agreement.
L. This Agreement shall be construed, and the rights and obligations of the City
and Portillo's 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, at-
torney, 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 lim-
ited 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 Portillo's and the City that in connection with the performance of this
Agreement, that Portillo's 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 employment status of
employees. Without limiting the foregoing, Portillo's hereby certifies, represents and
warrants to the City that all of Portillo's' employees and/or agents who will be employed
for the Subject Project shall be entitled to work in the United States. Without limiting
the foregoing, and notwithstanding anything to the contrary in this Agreement, Portillo's
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 re-
cords in the possession or control of Portillo's to determine Portillo's' compliance with
the provisions of this section. In the event the City proceeds with such an audit,
Portillo's shall make available to the City Portillo's' relevant records at no cost to the
City. Portillo's shall also pay any and all costs associated with any such audit. If so de-
sired by Portillo's, 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. Portillo's, 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
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 provi-
sions 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 main-
tain 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.
5
IN WITNESS WHEREOF, the City and Portillo's have executed this Agreement
on the date and year first written above.
CITY OF ELGIN, PORTILLO'S HOT DOGS, INC.
By: p
David J. Kaptain, Mayor Its: V, r
Attest:
///1#"e.
Kimberly Dewis, City Clerk
6