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16-70 Resolution No. 16-70 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH OTTAWA FARM&FLEET, INC. (629 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 Ottawa Farm & Fleet, Inc. on behalf of the City of Elgin for economic development assistance in connection with the development of a Blain's Farm & Fleet Retail Store at 629 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: April 27, 2016 Adopted: April 27, 2016 Omnibus Vote: Yeas: 8 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 27th day of April, 2016, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City"), and Ottawa Farm & Fleet, Inc., an Illinois corporation. WHEREAS, Blain Supply, Inc. is a family-owned Midwest regional retailer committed to its customers and the communities in which they live, never having left a market in which it has established a store; and WHEREAS, Ottawa Farm & Fleet, Inc. is an affiliate of Blain Supply, Inc. (hereafter referred to in this Agreement as "Blain Supply"); and WHEREAS, Blain Supply has been searching for a suitable location to establish a new retail store within a territory that includes the City and neighboring municipalities; and WHEREAS, Blain Supply is seeking to establish a retail store on the vacant property commonly known as 629 South Randall Road, Elgin at an estimated cost of $14.5 million ("Blain's Farm & Fleet Retail Store"); and WHEREAS, the Blain's Farm & Fleet Retail Store will feature product areas including outdoor power equipment; lawn and garden and outdoor living; tools, paint and hardware; outdoor sporting goods; automotive parts; automotive and tire service center; clothing and footwear; pet care and nature center; agriculture and hobby farming; home, housewares candy and toys; and WHEREAS, Blain Supply would be unable to proceed with the establishment of the Blain's Farm & Fleet Retail Store in the City and to own and operate the facility without certain economic development assistance from the City as hereinafter described; 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 Occupation Taxes received by the municipality that were generated by the development or redevelopment 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, 629 South Randall Road, Elgin has remained vacant for at least one year; and WHEREAS, the building at 629 South Randall Road, Elgin has remained significantly underutilized for a period of at least one year; and WHEREAS, the Blain's Farm & Fleet Retail Store is expected to create job opportunities within the City; and WHEREAS, the Blain's Farm & Fleet Retail Store will serve to further the development of adjacent areas; and WHEREAS, without this Agreement the Blain's Farm & Fleet Retail Store would not be possible; and WHEREAS, Blain Supply meets high standards of credit worthiness and financial strength as demonstrated by equity financing for not less than ten percent of the total project costs; and WHEREAS, the Blain's Farm & Fleet Retail Store will strengthen the commercial sector of the City; and WHEREAS, the Blain's Farm & Fleet Retail Store 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 entirety. 2. Definitions. A. "Commencement Date" means the earlier of the date that the Blain's Farm & Fleet Retail Store commences sales and October 1, 2016. B. "Sales Tax Revenues" means for the ten (10) years following the Commencement Date, all revenues that the City receives from retail sales taxes from the State of Illinois pursuant to the Illinois Service Occupation Tax (35 ILCS 115/1 et seq.) and the Illinois Retailer's Occupation Tax (35 ILCS 120/1 et seq.) derived from sales at the Blain's Farm & Fleet Retail Store. 3. "Fast-Track" Permitting Process and Waiver of Development and Building Permit Fees. The City agrees to conduct a "fast-track" permitting process for Blain Supply's construction of the Blain's Farm & Fleet Retail Store and waive any 2 development (i.e., planning and zoning) and building permit fees which would otherwise be due and payable to the city in connection with the proposed redevelopment of the existing facility at 629 South Randall Road, Elgin. Impact fees, other governmental agency fees and any third-party engineering review fees shall be paid by Blain Supply. 4. Rebate of a Portion of Sales Tax Revenues. A. The City hereby agrees to rebate and pay to Blain Supply a portion of the Sales Tax Revenues received by the City in accordance with this Agreement, in order to reimburse Blain Supply for a portion of the costs incurred by Blain Supply in conjunction with the establishment of the Blain's Farm & Fleet Retail Store, all as set forth and detailed below. B. The City shall pay to Blain Supply a rebate of a portion of Sales Tax Revenues received by the City over the ten-year period following the Commencement Date. Such rebate of Sales Tax Revenues from the City to Blain Supply shall be paid in annual installments according to the following formula: The City shall rebate to Blain Supply twenty-five percent (25%) of the Sales Tax Revenues received by the City that have been derived from the sales at the Blain's Farm & Fleet Retail Store. 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 from the State of Illinois in the amount of one percent (1%) plus the City's Home Rule Municipal Retailer's Occupation Tax, currently in the amount of one and one quarter percent (1.25%). It is further agreed and understood that in the event the City's share of sales taxes from the State of Illinois is reduced from the current amount of one percent (1%) during the ten years following the Commencement Date that the subsequent rebate of Sales Tax Revenues from the City to Blain Supply shall be reduced proportionately. For the purposes of clarification and example, in the event the City's share of sales taxes currently in the amount of one percent (1%) is reduced by ten percent, then the amount of the subsequent rebate of a portion of Sales Tax Revenues from the City to Blain Supply will also be reduced by ten percent. The same analysis shall reply in the event the City reduces its Home Rule Municipal Retailer's Occupation Tax during the ten years following the Commencement Date. 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. 3 D. The City shall pay to Blain Supply 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 Commencement Date and the City having determined the amount of sales and Sales Tax Revenues generated by the Blain's Farm & Fleet Retail Store in the preceding year. In the event the State of Illinois fails to distribute documentation to the City providing for the sales and Sales Tax Revenues generated by the Blain's Farm & Fleet Retail Store in sufficient time for the City to make the annual payments, then the City shall provide notice of such fact to Blain Supply. In such event, the City shall make the required Sales Tax Revenue rebate payment to Blain Supply 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 Blain's Farm & Fleet Retail Store, Blain Supply 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 Blain Supply 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. Blain Supply, 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 "Blain's Farm & Fleet Retail Store 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 Blain's Farm & Fleet Retail Store 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 Blain's Farm & Fleet Retail Store being hereinafter referred to as a "IDOR Sales Tax Revenue Certification Letter." 4 (ii) Take all additional actions as may reasonably be necessary in order for the City to obtain the information to insure the accurate calculation of Sales Tax Revenues from the Blain's Farm & Fleet Retail Store; (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 Blain Supply and/or the Blain's Farm & Fleet Retail Store. (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 Blain Supply and/or the Blain's Farm & Fleet Retail Store. (vi) Allow the City the right, upon reasonable notice to Blain Supply and/or the Blain's Farm & Fleet Retail Store, to audit the Blain's Farm & Fleet Retail Store records in order to confirm Sales Tax Revenues being generated by the Blain's Farm & Fleet Retail Store. G. Blain Supply and the City agree to cooperate and take all additional actions as may reasonably be necessary in order to obtain the necessary information and to insure the accurate collection of deposits of Sales Tax Revenues. The City agrees to take all actions necessary to provide for the systematic receipt of sales tax information for the Blain's Farm & Fleet Retail Store from the Illinois Department of Revenue. To assist the City, Blain Supply 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 Blain's Farm & Fleet Retail Store. Blain Supply shall cause the Blain's Farm & Fleet Retail Store, upon written request of the City, to provide 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. 5 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 Blain's Farm & Fleet Retail Store. Blain Supply shall have no right, and agrees that it shall not, compel any exercise of the taxing power of the City to pay the Sales Tax Revenues rebates, and no execution 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 Blain Supply 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. No interest shall be due, owing or paid by the City with respect to the rebate of any Sales Tax Revenues. Notwithstanding the terms of this Agreement, nothing in this Agreement shall bar Blain Supply from enforcing the terms and obligations of this Agreement in the event of non-compliance by the City. 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 Blain Supply begins operations at the Blain's Farm & Fleet Retail Store on or before the Commencement Date, and that the Blain's Farm & Fleet Retail Store continues with its operations at the Blain's Farm & Fleet Retail Store location or another location in Elgin approved by the City for a period of not less than ten (10)years from the Commencement Date. In the event that any of the foregoing contingencies are not satisfied, then the City, upon written notice to Blain Supply, 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 City hereto; provided however, in such event all payments previously made by the City to Blain Supply shall be non-refundable to the City. 6. 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 6 which said hand delivered or the second business day following the date on which so mailed: TO THE CITY: TO BLAIN SUPPLY: City of Elgin Blain Supply, Inc. 150 Dexter Court 3507 E. Racine Street Elgin, IL 60120-5555 P.O. Box 5391 Janesville, WI 53547-5391 Attn: Richard G. Kozal Attn: William C. Schendt With a copy of any such notice to: City of Elgin Brennan, Steil, S.C. 150 Dexter Court 1 East Milwaukee Street Elgin, IL 60120-5555 Janesville, WI 53546 Attention: William A. Cogley Attention: George Steil,Jr. 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 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 Blain Supply 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, vagueness or conflict, if any, in the terms or provisions contained herein. 7 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 and Blain Supply 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 Blain Supply against the City for monetary damages. 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 Blain Supply 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 Blain Supply reasonable interest and reasonable attorney's fees. K. Time is of the essence of this Agreement. This Agreement shall be construed, and the rights and obligations of the City and Blain Supply 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 8 negotiation, approval, execution or attempted execution of this Agreement. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by Blain Supply and the City that in connection with the performance of this Agreement, including, but not limited to, providing for improvements to the Blain's Farm & Fleet Retail Store, and that Blain Supply shall comply with all applicable federal, state, city and other requirements of law. Blain Supply 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 improvements to the Blain's Farm & Fleet Retail Store, with the exception of those permits and fees expressly designated as being waived in paragraph 3 of this Agreement. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, Blain Supply and its contractors and subcontractors shall comply with the Prevailing Wage Act in all respects relating to the improvements to the Blain's Farm & Fleet Retail Store. 0. To the fullest extent permitted by law, Blain Supply agrees to and shall indemnify, defend and hold harmless, the City, its officials, officers, employees, 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 arising out of negligent actions or omissions of Blain Supply in connection herewith, including negligence or omissions of employees, agents or subcontractors of Blain Supply 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 Blain Supply, including any violation and/or breach by employees, agents or subcontractors of Blain Supply. 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, defend and hold harmless such action shall be defended by legal counsel of the City's choosing (subject to Blain Supply's consent which shall not be unreasonably withheld, conditioned or delayed) the reasonable costs of which shall be paid by Blain Supply. The provisions of this paragraph shall survive any termination, completion and/or expiration of this Agreement. P. To the fullest extent permitted by law, Blain Supply agrees to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, attorneys, agents, boards and commissions (each individually an "Indemnitee" and collectively, the "Indemnitees"), from and against 9 any and all third party claims, suits, judgments, costs, attorneys' fees, expert 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 performance of this Agreement, and/or any other actions to the parties hereto provided for or arising from this Agreement; except to the extent arising from the negligence or intentional misconduct of an Indemnitee. 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 (subject to Blain Supply's consent which shall not be unreasonably withheld, conditioned or delayed) and the reasonable costs of which will be paid for by Blain Supply. Additionally, in the event of such third party action Blain Supply to the extent permitted by law shall upon the request of the City attempt to intervene in such proceedings and join the City in the defense thereof. Q. This agreement may be executed in counterparts, each of which shall be an original 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 e-mail or facsimile 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 e-mail or facsimile shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such e-mailed 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 e-mail or facsimile as a defense to this agreement and shall forever waive such defense. 10 IN WITNESS WHEREOF, the City and Blain Supply have executed this Agreement on the date first set forth above. CITY OF ELGIN, OTTAWA FARM & FLEET, INC. an Illinois municipal corporation 1011P A By /-4 7 �: By David Kapt 1 M.or Jane Blain Gilbertson, President/CEO Attest: L/ L/ Kimberly Dewis, Ci Clerk 11