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17-16 Resolution No. 17-16 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH AMERICAN FORGE & FOUNDRY, INC. (300-330 Corporate Drive) 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 American Forge & Foundry, Inc. on behalf of the City of Elgin for economic development assistance in connection with the development of 300-330 Corporate Drive,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 8, 2017 Adopted: February 8, 2017 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 this 8th day of February 2017, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City"), and American Forge & Foundry, Inc. ("AFF"), a New York corporation. WHEREAS,AFF has been serving the US market from its Albany-based headquarters since 1963 and is a leading provider of automotive lifting equipment in that marketplace; and WHERAS, AFF is a wholly owned subsidiary of JET Equipment and Tools, Ltd., which oper- ates a significant tool, equipment and safety products business in Canada, using the marketing identity SureWerx; and WHEREAS, AFF acquired Sellstrom Manufacturing Co. ("SMC") effective November 2, 2015, and WHEREAS, SMC was founded in Illinois in 1923 and is currently located in a leased ware- house and headquarters facility in Schaumburg, Illinois. WHEREAS,AFF has been recognized as one of the best-managed Canadian companies for the past two consecutive years in 2015 and 2016; and WHEREAS, AFF and SMC are seeking to expand operations in the U.S. market and have selected a vacant, 90,000 square-foot facility at 300-330 Corporate Drive as headquarters, and will make approximately$4.1 million in improvements to that facility that will ultimately create approximately 45 full-time positions ("Subject Project"); and WHEREAS, to induce AFF into proceeding with the Subject Project, the City will provide "fast-track" permitting and waive all City building permit fees associated with the construction of the Subject Project; and WHEREAS, AFF would not proceed with the Subject Project in Elgin without certain eco- nomic development assistance from the City; 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 WHEREAS, the City is a home rule unit of government authorized to exercise any power and perform any function, including without limitation the provision of incentives for economic development, relating to its government and affairs; and eft • WHEREAS, economic incentive agreements including the incentives and other provisions set forth in this Agreement pertain to the government and affairs of the City; 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,without this Agreement,the Subject Project would not be possible; and WHEREAS, AFF meets high standards of credit worthiness and financial strength; and WHEREAS, the Subject Project will strengthen the commercial and industrial sectors 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 undertakings con- tained 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. AFF, at its cost, shall develop the Subject Project. The development of the Subject Project shall substantially conform in all material respects with all applicable legal requirements, including, but not limited to, city ordinances and codes, the terms of this Agree- ment, or as otherwise directed by the City as is necessary to comply with ordinances, 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 responsibility of and shall be paid for by AFF,and from any tenant improvement funds that may be provided by AFF's landlord in connec- tion with the lease to be entered into to facilitate the Subject Project. 3. Economic incentives. In consideration for AFF's undertaking of the Subject Project,the City agrees to provide economic incentives to AFF to be used by AFF solely and only for the Sub- ject Project. Such economic incentives shall consist of and be distributed to AFF as follows: "Fast-Track"Permitting Process and Waiver of Development Building Permit Fees The City will conduct a "fast-track" permitting process for AFF and waive any building per- mit fees which would otherwise be due and payable to the City in connection with the proposed $4.1 million expansion of AFF's facility at 300-330 Corporate Drive. Any other 2 (il governmental agency fees(other than those of the City) and any third-party engineering review fees shall be paid by AFF or SMC. 4. 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 of such personal de- livery or the second business day following the date of such mailing: TO THE CITY: TO AFF: Richard G. Kozal Chris Baby City Manager President and CEO City of Elgin American Forge & Foundry, Inc. 150 Dexter Court 300-330 Corporate Drive Elgin, IL 60120-5555 Elgin, IL 60123 847.931.6633 With a copy of any such notice to: William A. Cogley Corporation Counsel and Chief Development Officer City of Elgin 150 Dexter Court Elgin, IL 60120-5555 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 par- ties 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 under- standings 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 AFF 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 3 in order to resolve any inconsistency, ambiguity, vagueness 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 succes- sors and permitted assigns.This Agreement and the obligations herein may not be assigned with- out 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 AFF 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 any- thing else to the contrary in this Agreement, with the sole exception of an action to recover the fees the City has agreed to waive pursuant to the preceding paragraph 3 of this Agreement, no action shall be commenced by AFF against the City for monetary damages.Venue for the resolu- tion of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. Notwithstanding anything to the contrary stated herein or otherwise,AFF'S AGGREGATE LIABILITY UNDER THIS AGREEMENTAND IN CONNECTION WITH ITS RECEIPT OF THE ECONOMIC INCENTIVE DESCRIBED HEREIN SHALL BE EXPRESSLY LIMITED TO THE VALUE OF THE DEVELOPMENT, IMPACT AND BUILDING FEE WAIVERS RECEIVED BY AFF FROM THE CITY IN CONNECTION WITH THIS AGREEMENT AND SUCH ECONOMIC INCENTIVE. AFF shall have no other liability whatsoever,whether based on breach of contract, negligence,strict liabil- ity or any other claim and under no circumstances shall AFF be liable for lost profits or revenues, special incidental, 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 AFF hereunder shall be determined in accordance with the laws of the State of Illinois without refer- ence 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 63 liable under any term or provision of this Agreement including, but not limited 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 un- derstood by AFF and the City that in connection with the performance of this Agreement, that AFF 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 status of employees. Without limiting the foregoing,AFF hereby cer- tifies, represents and warrants to the City that all of AFF's employees and/or agents who will be employed for the Subject Project shall be legal residents of the United States. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, AFF and its con- tractors 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 records in the possession or control of AFF to determine AFF's compliance with the provisions of this section. In the event the City proceeds with such an audit,AFF shall make available to the City AFF's relevant records at no cost to the City. If so desired by AFF, the audit shall, to the extent permitted by law, be subject to reasonable 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. 0. AFF, on behalf of itself and its respective successors, assigns and grantees hereby acknowledges the propriety,necessity and legality of all of the terms and provisions of this Agree- ment 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 Subject Project, 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, other than with respect to any failure of the City to perform its obligations under this Agreement.The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. P. This Agreement may be executed in counterparts, each of which shall be art original and all of which shall constitute one and the same once duly executed and delivered to the other party. For the purposes of executing this Agreement, any signed copy of this Agreement trans- mitted by email 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 email 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 emailed 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 email 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. 5 C;3 Q. If any provision or part thereof of this Agreement or the application of any such provi- sion or part thereof to any party, person or circumstance shall be held invalid, illegal or unen- forceable in any respect by a court of competent jurisdiction, then such invalidity, illegality or unenforceability shall not affect any other provision or part thereof. IN WITNESS WHEREOF, the City and AFF have executed this Agreement on the date and year first written above. CITY OF ELGIN: AMERICAN FORGE & FOUNDRY, INC.: By: a i51li�� i By: David J. "tai , Mayor Chris Baby, Pr • ent& CEO Attest: tiat/i/e-'‘‘ Kimberly Dewis, City Clerk 6