Loading...
Ordinance 2007-036 200700020742 Filed For Record in KENDALL COUNTY► ILLINOIS STATE OF ILLINOIS ) PAUL ANDERSON ) ss 07 -04 -2007 At 0443 am. ORDINANCE 52.00 COUNTY OF KENDALL ) RHSP Surcharge 10.00 ORDINANCE NO. 2007- 36 AN ORDINANCE AUTHORIZING THE EXECUTION OF A DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT DTD INVESTMENTS, LLC (Fountain View) WHEREAS, it is deemed prudent and in the best interest of the UNITED CITY OF YORKVILLE, Kendall County, Illinois, that a certain Development/Economic Initiative Agreement pertaining to the development of real estate described within the Agreement which is attached hereto as and made a part hereof as Exhibit "A" be entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Agreement has been drafted and has been considered by the City Council; and WHEREAS, the legal owners of record of the property subject to the Agreement are ready, willing and able to enter into said Agreement and to perform the obligations as required hereunder; and WHEREAS, the reasons for entering into this Agreement and benefits to the City are described within the Agreement and thereby made a part of this Ordinance, and Page 1 of 3 WHEREAS, the statutory procedures including specific findings as required by 65 ILCS 8- 11 -20, as amended, for economic incentive agreements have been complied with, and said findings are contained in the Agreement (Exhibit "A "), NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE UNITED CITY OF YORKVILE, KENDALL COUNTY, ILLINOIS, AS FOLLOWS; Section 1: The preambles, above, are incorporated by this reference as if written in full at this place. Section 2: The Mayor and the City Clerk are herewith authorized and directed to execute, on behalf of the City, the Development/Economic Initiative Agreement concerning certain real estate described therein, a copy of which attached hereto and made a part hereof as Exhibit "A ". Section 2: This ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK t V . JOSEPH BESCO VALERIE BURD r PAUL JAMES GARY GOLINSKI MARTY MUNNS — ROSE SPEARS JASON LESLIE Page 2 of 3 Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this ;:y day of elq , A.D. 2007. o MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this - c! �oq day of , A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 I Revised April 20, 2007 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND DTD INVESTMENTS, LLC (FOUNTAINVIEW) DEVELOPMENT /ECONOMIC INITIATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into as of the cY'6day of 4PP.l L, , 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY "), and DTD INVESTMENTS, LLC (the "OWNER/DEVELOPER'). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8 -11 -20 (2004) ( "Enabling Statute "); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970, the CITY has determined that it has the authority to enter into this Agreement. The OWNER/DEVELOPER owns and intends to develop the real property located at the northwest corner of the intersection of Route 47 and Fountainview Drive and legally described in Exhibit "A" (the "Property ") for business uses ( "Development Project ") subject to the zoning ordinance enacted by the CITY. OWNER/DEVELOPER has demonstrated to the CITY's satisfaction that the OWNER/DEVELOPER has the experience and capacity to complete the Development Project. The OWNER/DEVELOPER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER/DEVELOPER would not undertake the Development Project. The OWNER/DEVELOPER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER/DEVELOPER its Reimbursable Improvements (defined later), all as provided in this Agreement. -1- The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty (20) years; and That the Development Project is expected to create a substantial number of job opportunities within the municipality; and That the Development Project will serve to further the development of adjacent areas; and The CITY has requested that OWNER/DEVELOPER financially participate in the cost of design and improvement of Illinois Route 47 and Fountainview Drive adjacent to the subject real property as well as related on -site and off -site public utility improvements and site improvements; and That without this Agreement, the Development Project would not be reasonably possible given the off -site costs imposed by the Illinois Department of Transportation and the United City of Yorkville; and That the OWNER/DEVELOPER meets high standards of creditworthiness and financial strength; and That the Development Project will strengthen the commercial sector of the municipality; and That the Development Project will enhance the tax base of the CITY and all related governmental bodies; and That the Development Project will generate substantial sales tax and utility tax revenues to the CITY; and That this Agreement is made in the best interest of the CITY. Pursuant to the Illinois Municipal Code, as amended ( "Code "), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER/DEVELOPER for its Reimbursable Improvements up to twenty percent (20 %) of OWNER/DEVELOPER's total cost of on and off -site public and private improvement costs as are finally incurred and verified by the CITY, based upon the "Reimbursable Improvements" list -2- attached hereto and incorporated herein as Exhibit `B ". In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER/DEVELOPER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER/DEVELOPER to undertake the Development Project; in consideration of the OWNEWDEVELOPER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER/DEVELOPER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER/DEVELOPER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER/DEVELOPER or its assigns, pursuant to 65 ILCS 5/8 -11 -20 (2004) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50 %) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER/DEVELOPER or as assigned in writing by OWNER/DEVELOPER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives "). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator ". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER/DEVELOPER to enter into this Agreement. -3- Develoument Incentive Reimbursement. Incentives. The OWNER/DEVELOPER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of 50% of sales tax generated by any "Generator" on the Property or any additional property purchased by OWNER/DEVELOPER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3 %) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER/DEVELOPER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or other business operator) on the Property. OWNER/DEVELOPER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the execution of this Agreement. In the event OWNER/DEVELOPER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER/DEVELOPER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction of any on -site or off -site Illinois State Route 47 and Fountainview Drive improvements intersection, signalization, or other improvements on Fountainview Drive or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements, not reimbursed from other sources. 2) The Fair Market Value of any real property, determined by Appraisal Figure agreed to by OWNER/DEVELOPER and CITY at the time of any dedication or taking of real property for right -of -way purposes at the time of said real property is dedicated or taken for said purposes by either the United City of Yorkville or the Illinois Department of Transportation, not reimbursed from other sources. 3) The OWNER/DEVELOPER shall submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project when completed. The rebate amount should not exceed 20% of these total project hard costs. The CITY shall distribute the sales tax revenue generated by any Generator as follows: 50% to the OWNER/DEVELOPER, or as directed by the OWNER/DEVELOPER; and Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of -4- Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Oblivation. The CITY hereby agrees to pay OWNER/DEVELOPER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER/DEVELOPER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one -half ( /2) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER/DEVELOPER will be due and payable solely from one -half ( % Z) or as adjusted under this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER/DEVELOPER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER/DEVELOPER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the execution and approval of this Agreement by the CITY. Sources of Funds to Pay Reimbursable Development Proiect Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER/DEVELOPER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on -site. In the event OWNER/DEVELOPER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER/DEVELOPER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and -5- pursuant to 65 ILCS 5/8 -11 -20 (2004) are assignable at the option of the OWNER/DEVELOPER. Upon such written assignment by the OWNER/DEVELOPER, Generator shall have all rights currently vested in the OWNER/DEVELOPER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER/DEVELOPER, OWNER/DEVELOPER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER/DEVELOPER. 2) OWNER/DEVELOPER may assign a portion or all of its rights under the terms of this Agreement to any future developers, DEVELOPERs, or institutions or individuals providing financing for the improvements outlined above in this Agreement. Reimbursement Procedures. Sales Tax Reports. OWNER/DEVELOPER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ( "DOR "), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER/DEVELOPER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER/DEVELOPER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentialitv. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER/DEVELOPER and /or OWNER/DEVELOPER's affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER/DEVELOPER or Generators or obtained from OWNER/DEVELOPER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for -6- dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit Each payment by the CITY to OWNER/DEVELOPER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER/DEVELOPER. OWNER/DEVELOPER shall have one (1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNERMEVELOPER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNERMEVELOPER. Default /Rieht to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non - monetary default, from notice of such default from the other Party; provided, however, if the nature of such non - monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non - defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non - defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non - defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. -7- No Oblivation to Develop, Oven or Overate. Nothing contained in this Agreement shall be deemed to obligate OWNER/DEVELOPER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Bindina Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severabilitv. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To OWNER/DEVELOPER: DTD Investments, LLC Attn: Dean Tomich 2250 Weber Rd. Crest Hill, IL 60435 To OWNER/DEVELOPER's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authoritv to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of OWNER/DEVELOPER, to execute this Agreement on their behalf. Attornevs' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. -8- i Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. -9- IN WITNESS WHEREOF this Agreement ' gr t is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, an Illinois Municipal Corporation, MAYOR Attest: 0&0- ? W h) . bF Oftj Ty CITY CLERK -10- OWNER/DEVELOPER: DTD INVESTMENTS, LLC A By: _, i DEAN A. TOMI H Attest: Dated: 3/Z e Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 -11- LEGAL DESCRIPTION THAT PART OF THE SOUTHWEST QUARTER OF SECTION 4 AND PART OF THE SOUTHEAST QUARTER OF SECTION 5, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 5; THENCE SOUTH 89 DEGREES, 40 MINUTES, 05 SECONDS WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER 655.52 FEET TO THE TANGENT CENTER LINE OF ILLINOIS STATE ROUTE NO. 47 EXTENDED FROM THE SOUTH; THENCE SOUTH 1 DEGREE, 44 MINUTES, 07 SECONDS EAST ALONG SAID TANGENT CENTER LINE AND SAID TANGENT CENTER LINE EXTENDED, 3511.16 FEET; THENCE NORTH 89 DEGREES, 29 MINUTES, 40 SECONDS EAST 548.60 FEET FOR THE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES, 29 MINUTES, 40 SECONDS WEST ALONG THE LAST DESCRIBED COURSE 548.60 FEET TO THE CENTER LINE OF ILLINOIS STATE ROUTE NO. 47 AFORESAID; THENCE SOUTH I:DEGREE, 44 MINUTES, 07 SECONDS EAST ALONG SAID CENTER LINE 489.07 FEET; THENCE SOUTH 86 DEGREES, 11 MINUTES, 02 SECONDS EAST 575.53 FEET TO A LINE DRAWN SOUTH 4 DEGREES, 21 MINUTES, 07 SECONDS EAST FROM THE POINT OF BEGINNING; THENCE NORTH 4 DEGREES 21 MINUTES, 07 SECONDS WEST ALONG SAID LINE 533.53 FEET TO THE POINT OF, BEGINNING (EXCEPT THE SOUTHERLY140 FEET, AS MEASURED ALONG THE EAST LINE THEREOF AND ALSO EXCEPT THAT PART CONVEYED.TO THE PEOPLE OF THE STATE OF ILLINOIS, DEPARTMENT OF TRANSPORTATION BY WARRANTY DEED RECORDED MAY 8, 1990 AS DOCUMENT 90 7 ; 2884) IN THE TOWNSHIP OF KENDALL, KENDALL COUNTY, ILLINOIS. Exhibit B Reimbursable Improvements 1. Route 47 signalization and highway improvements 2. Acquisition and improvements to the joint access easement to the County of Kendall i 3. Extension of the water and sewer stubs to County of Kendall Property 4. Stormwater Detention 5. Engineering, design, and cost of construction of all of the above