15-36 Resolution No. 15-36
RESOLUTION
AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT
WITH NAPLETON'S ELGIN MOTORS HOLDING, INC.
(909 East Chicago 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 with Napleton's Elgin Motors Holding,Inc.on
behalf of the City of Elgin for economic development assistance in connection with the development
of 909 East Chicago Street, a copy of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: March 18, 2015
Adopted: March 18, 2015
Omnibus 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
the 18th day of March, 2015, by and between the City of Elgin, an Illinois municipal corporation
(hereinafter referred to as the "City"), and Napleton's Elgin Motors Holding, Inc., an Illinois cor-
poration (hereinafter referred to as the "Developer").
WHEREAS, the Developer acquired an existing Kia automobile franchise in 2014 and be-
gan searching for a suitable location to establish a new car dealership within a territory that in-
cludes the City and neighboring municipalities; and
WHEREAS, the Developer would be unable to proceed with the establishment of the Kia
automobile franchise in the City and the purchase of a dealership facility without certain eco-
nomic development assistance from the City as hereinafter described; and
WHEREAS, the Developer purchased the property commonly known as 909 East Chicago
Street, Elgin, Illinois, at the time of purchase said property being improved with a vacant, one-
story masonry structure formerly occupied by a Buick-GMC automobile dealership; and
WHEREAS, the Developer has established a Kia automobile franchise at 909 East Chicago
Street, Elgin, Illinois (the "Dealership") and the Developer will be completing various facade and
other improvements to buildings on the Dealership at an estimated cost of$1.8 million; and
WHEREAS, Section 8-11-20 of the Illinois Municipal Code (65 ILCS 5/8-11-20) authorizes
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 under
such agreements the municipality may agree to share or rebate a portion of any Retailer's Oc-
cupation Taxes received by the municipality that were generated by the development or rede-
velopment over a finite period of time; 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 Dealership has remained vacant for at least one (1) year; and
WHEREAS, the buildings established at the Dealership no longer comply with current
building codes; and
WHEREAS, the buildings established at the Dealership have remained less than signifi-
cantly underutilized for a period of at least one year; and
WHEREAS, the Dealership is expected to create job opportunities within the City; and
WHEREAS, the Dealership will serve to further the development of adjacent areas; and
WHEREAS, without this Agreement the Dealership would not be possible; and
WHEREAS, the Developer meets high standards of credit worthiness and financial
strength as demonstrated by equity financing for not less than ten percent (10%) of the total
project costs; and
WHEREAS, the Dealership will strengthen the commercial sector of the City; and
WHEREAS, the Dealership 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 undertakings
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 en-
tirety.
2. Definitions.
A. "Commencement Date" means April 1, 2014.
B. "Sales Tax Revenues" means for the ten (10) years following the Com-
mencement Date, all revenues that the City receives from retail sales tax-
es from the State of Illinois pursuant to the Illinois Service Occupation Tax
(35 ILCS 115/1 et seq.), the Illinois Retailer's Occupation Tax (35 ILCS
120/1 et seq.), and the Home Rule Municipal Retailer's Occupation Tax
(65 ILCS 5/8-11-1) derived solely from the sale of automobiles and/or mo-
tor vehicles at the Dealership.
3. Fast-Track" Permitting Process and Waiver of Building Permit Fees for the Sub-
ject Project.
A. The City agrees to conduct a "fast-track" permitting process for the De-
veloper's construction of the Dealership and agrees to waive and not re-
quire Developer to pay any building permit fee which would otherwise be
due and payable to the City in connection with the establishment of the
Dealership. The provisions of this section are intended and shall be con-
strued to apply only to the building permit fees.
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B. Any and all impact fees or other fees which may be due and owing to the
City and/or any other governmental entity other than the City shall be
paid by Developer.
4. Rebate of a Portion of Sales Tax Revenues.
A. The City hereby agrees to rebate and pay to the Developer a portion of
the Sales Tax Revenues received by the City in accordance with this
Agreement, in order to reimburse the Developer for a portion of the
costs incurred by Developer in conjunction with the establishment of the
Dealership, all as set forth and detailed below.
B. The City shall pay to the Developer a rebate of a portion of Sales Tax Rev-
enues received by the City over the ten-year period following the Com-
mencement Date. Such rebate of Sales Tax Revenues from the City to the
Developer shall be paid in annual installments according to the following
formula:
The City shall rebate to Developer twenty-five percent (25%) of the Sales
Tax Revenues received by the City that have been derived solely from the
sale of automobiles and/or motor vehicles at the Dealership.
C. Notwithstanding any other provision of this Agreement to the contrary, it
is agreed and understood that the amount of the rebates of Sales Tax
Revenues provided herein have been agreed to based upon the current
share of sales taxes received by the City in the amount of 1.75%, being
1%from the State of Illinois and .75% of the City's home rule tax. It is fur-
ther agreed and understood that in the event the City's share of sales
taxes is reduced from the current amount of 1.75% during the five years
following the Commencement Date that the subsequent rebate of Sales
Tax Revenues from the City to the Developer shall be reduced propor-
tionately. For the purposes of clarification and example, in the event the
City's share of sales taxes currently in the amount of 1.75% is reduced by
10 percent, then the amount of the subsequent rebate of a portion of
Sales Tax Revenues from the City to the Developer will also be reduced by
10 percent. In the event of any conflict between the provisions of this
paragraph and any other provisions of this Agreement, the provisions of
this paragraph shall supersede and control.
D. The city shall pay to the Developer the annual installments of the rebates
of Sales Tax Revenues provided for herein within one hundred and eighty
(180) days of each of the first ten (10) annual anniversaries of the Com-
mencement Date and the City having determined the amount of sales
and Sales Tax Revenues generated by the Dealership in the preceding
year. In the event the State of Illinois fails to distribute documentation to
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the City providing for the sales and Sales Tax Revenues generated by the
Dealership in sufficient time for the City to make the annual payments,
then the City shall provide notice of such fact to the Developer. In such
event, the City shall make the required Sales Tax Revenue rebate pay-
ment to the Developer within sixty (60) days after the date on which the
City actually receives the supporting documentation for the applicable
payment.
E. 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 the Dealership, the Developer 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 sales tax revenues due to the Developer
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.
F. Developer, as a condition of the City's obligation to pay to such Sales Tax
Revenue rebate, shall be required to perform and observe the following
covenants, collectively referred to as the "Dealership Reporting and
Compliance Obligations":
(i) Make written request that the Local Tax Division of the Illinois
Department of Revenue ("LTD-IDOR"), or such successor to such
agency, supply to the City on a semi-annual basis a letter
certifying the amount of Sales Tax Revenues received by the City
for the Dealership operations during the preceding twelve (12)
month period, with such letter from the LTD-IDOR certifying the
amount of sales tax revenue received by the City from the
Dealership being hereinafter referred to as a "IDOR Sales Tax
Revenue Certification Letter."
(ii) Take all additional actions as may reasonably be necessary in
order to for the City to obtain the information to insure the
accurate calculation of Sales Tax Revenues from the Dealership;
(iii) 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 the Developer and/or the
Dealership.
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(iv) Upon written request of the City, provide a power of attorney in
favor of the City in a form reasonably satisfactory to the LTD-
IDOR, authorizing the City to request and retrieve gross revenue
and other information necessary to allow the City to compute the
Sales Tax Revenues.
(v) Upon the request of the City, provide to the City copies of any
form ST-1 or form ST-556, or any successor reporting forms, filed
with the Illinois Department of Revenue by the Dealership.
(vi) Allow the City the right, upon reasonable notice to the Developer
and/or Dealership, to audit Dealership records in order to confirm
Sales Tax Revenues being generated by the Dealership.
G. Developer and the City agree to cooperate and take all additional actions
as may reasonably be necessary in order to obtain the necessary infor-
mation and to insure the accurate collection of deposits of Sales Tax Rev-
enues. The City agrees to take all actions necessary to provide for the sys-
tematic receipt of sales tax information for the Dealership from the Illi-
nois Department of Revenue. To assist the City, Developer 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 Dealership. De-
veloper shall cause Dealership, upon written request of the City, to pro-
vide a Power of Attorney in a 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 Sales Tax Revenues.
H. Notwithstanding any other provision of this Agreement to the contrary, it
is agreed and understood that the City's obligation under this Agreement
to rebate a portion of Sales Tax Revenues shall not be a general debt of
the City on or a charge against its general credit or taxing powers, and
shall constitute a special limited obligation payable solely and only out of
the Sales Tax Revenues received by the Dealership. The Developer shall
have no right, and agrees that it shall not, compel any exercise of the tax-
ing power of the City to pay the Sales Tax Revenues rebates, and no exe-
cution of any claim, demand, cause of action, or judgment shall be levied
upon or collected from the general credit, general funds, or any other
property of the City. The payments of a rebate of a portion of Sales Tax
Revenues by the City to the Developer as provided for in this Agreement
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.
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No interest shall be due, owing or paid by the City with respect to the re-
bate of any Sales Tax Revenues.
5. Contingency. Notwithstanding any other provision of this Agreement to the
contrary, it shall be a condition precedent to the obligations of the City under
this Agreement that the Developer commences operations at the Dealership on
or before April 1, 2014, and that the Dealership continues with its operations at
the for a period of not less than ten (10) years after so commencing Dealership
operations. In the event that any of the foregoing contingencies are not satisfied,
then the City, upon written notice to the Developer, may elect to terminate this
Agreement, and thereupon this Agreement shall be null and void and of no fur-
ther force and effect without any further obligations of the City hereto.
6. Miscellaneous.
A. That this Agreement shall not be deemed or construed to create an em-
ployment, joint venture, partnership, or other agency relationship be-
tween 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 Charles M. Weck
150 Dexter Court President
Elgin, IL 60120-5555 Napleton's Elgin Motors
Holding, Inc.
Attention: Richard G. Kozal 110 W. Golf Road
Schaumburg, IL 60195
With a copy of any such notice to:
City of Elgin
150 Dexter Court
Elgin, IL 60120-5555
Attention: William A. Cogley, Corporation Counsel
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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 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 jurisdic-
tion in order 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 re-
spective successors and permitted assigns. This Agreement and the obli-
gations 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.
I. The City and 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) days
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 obligations 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. Notwithstanding the foregoing or anything else
to the contrary in this Agreement, with the sole exception of an action to
recover the monies the City has agreed to pay pursuant to the preceding
Section 4 hereof, no action shall be commenced by the Developer against
the City for monetary damages. Venue for the resolution of any disputes
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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 the Developer or its permitted assigns with
respect to this Agreement and the City is the prevailing party in such ac-
tion, the City shall also be entitled to recover from the Developer reason-
able 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, employ-
ee, attorney, agent or independent contractor of the City shall be
charged personally or held contractually liable under any term or provi-
sion of this Agreement including, but not limited to, because of their ne-
gotiation, 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, including, but not limited to,
providing for improvements to the Dealership, and that Developer shall
comply with all applicable federal, state, city and other requirements of
law. Developer shall also at its expense secure all permits and licenses,
pay all charges and fees and give notices necessary and incident to the
due and lawful prosecution of the work necessary to provide for the im-
provements to the Dealership. Without limiting the foregoing, and not-
withstanding anything to the contrary in this Agreement, Developer and
its contractors and subcontractors shall comply with the Prevailing Wage
Act in all respects relating to the improvements to the Dealership.
0. To the fullest extent permitted by law, Developer agrees to and shall in-
demnify, defend and hold harmless, the City, its officials, officers, em-
ployees, attorneys, agents, boards and commissions from and against any
and all claims, suits, judgments, costs, attorney's fees, damages or other
relief, including but not limited to workers' compensation claims, in any
way resulting from or arising out of or alleged to be resulting from or aris-
ing out of negligent actions or omissions of the Developer in connection
herewith, including negligence or omissions of employees, agents or sub-
contractors of the Developer arising out of the performance of this
Agreement, or in any way resulting from or arising out of or alleged to be
resulting from or arising out of any violation and/or breach of the terms
or provisions of this Agreement by the Developer, including any violation
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and/or breach by employees, agents or subcontractors of the Developer.
In the event of any action against the City, its officials, officers, employ-
ees, agents, attorneys, boards or commissions covered by the foregoing
duty to indemnify, defend and hold harmless such action shall be de-
fended by legal counsel of the City's choosing the costs of which shall be
paid by the Developer. The provisions of this paragraph shall survive any
termination, completion and/or expiration of this Agreement.
P. To the fullest extent permitted by law, Developer agrees to and shall in-
demnify, defend and hold harmless the City, its officials, officers, em-
ployees, attorneys, agents, boards and commissions, from and against
any and all third party claims, suits, judgments, costs, attorneys' fees, ex-
pert witness fees and expenses, damages or other relief, in any resulting
from or arising out of or alleged to be resulting from or arising out of the
existence of this Agreement, the provisions of this Agreement, the per-
formance of this Agreement, and/or any other actions to the parties
hereto provided for or arising from this Agreement. In the event of any
action against the City, its officials, officers, employees, agents, attorneys,
boards or commissions, covered by the foregoing duty to indemnify, and
defend and hold harmless, such action shall be defended by legal counsel
of the City's choosing and the costs of which will be paid for by the De-
veloper. Additionally, in the event of such third party action the Develop-
er to the extent permitted by law shall upon the request of the City at-
tempt to intervene in such proceedings and join the City in the defense
thereof.
Q. Developer agrees to and shall provide to the City written reports on the
status of the Dealership. Such written reports shall be provided to the
City upon request of the City. Such written reports shall contain a status
report on construction activities and such other information as may be
requested by the City.
R. Developer, on behalf of itself and its respective successors, assigns and
grantees of the Dealership 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 provisions of this
Agreement and hereby agrees and covenants on behalf of itself and its
successors, assigns and grantees of the Dealership, 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 paragraph shall survive any termination, completion
and/or expiration of this Agreement.
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IN WITNESS WHEREOF, the City and Napleton's Elgin Motors Holding, Inc. have executed
this Agreement on the date first set forth above.
CITY OF ELGIN, Napleton's Elgin Motors Holding, Inc., an Illinois
an Illinois municipal corporation corporation
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By: 2e,i//! I- - 4i t. By:
David Kapt.1'Ma 4r arses M. Weck, President
Attest:
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Kimberly Dewis, City Clerk
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