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O-86-12 12-10-2012VILLAGE OF L�M T ORDINANCE NO. An Ordinance Approving Economic Development Agreement with Ace Hardware and GK Development ADOPTED BY THE PRESIDENT AND THE BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT THIS 10th DAY OF DECEMBER, 2012 Published in pamphlet form by Authority of the President and Board of Trustees of the Village of Lemont, Counties of Cook, Will and DuPage, Illinois, this 10th day of December, 2012. # 557815 J ORDINANCE NO. O a7 -12 An Ordinance Approving Economic Development Agreement with Ace Hardware and GK Development WHEREAS, the Village of Lemont ( "Village ") is an Illinois Municipal Corporation pursuant to the Illinois Constitution of 1970 and the Statutes of the State of Illinois; and WHEREAS, the Village desires to enter into an Economic Development Agreement with Ace Hardware and GK Development. WHEREAS, the Village is committed to quality economic development projects which will serve to improve the economic base in the community leading to increased business activity, development of job opportunities, enhanced equalized assessed value of property within the Village, enhanced revenue which will contribute to the cost of public services, all of which will serve to improve the health, safety, and general welfare of the businesses and residents of the Village; and WHEREAS, Certain real estate located wholly within the corporate boundaries of the Village commonly known as 1050 S. State Street, Lemont, Illinois ( "Subject Property "), located within the corporate boundaries of the Village, which has been developed as a building for retail shopping and contains approximately 11,000 square feet of floor area has been vacant and unoccupied for a number of years; and WHEREAS, without any retail sales activity occurring at the Subject Property, no Illinois retailers' occupation taxes have been generated from the Subject Property for approximately the past fifteen (15) years resulting in an economic loss to the Village; and WHEREAS, the Village has determined it is essential to the economic and social welfare of the Village that the Village promote the economic vitality of the community by assuring opportunities for development and encouraging sound and stable commercial growth within the corporate limits of the Village; and WHEREAS, the Village, in entering into this Agreement, is exercising the powers provided by Illinois statute and has made the findings required by law, specifically, 65 ILCS 5/8- 11-20 and 65 ILCS 5/8- 1 -2.5; and WHEREAS, the Parties seeking economic assistance from the Village have each represented to the Village that their business operation would not be economically viable without economic assistance from the Village; and WHEREAS, in order to make it economically feasible for the Parties to proceed with their business operation and redevelopment, the Village has agreed to enter into this agreement and provide economic incentives based upon taxable sales and ad valorem tax collection; and NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, DUPAGE, AND WILL, ILLINOIS: # 557815 ECONOMIC INCENTIVE AGREEMENT BETWEEN VILLAGE OF LEMONT, LEMONT HARDWARE, LLC, AND GK DEVELOPMENT, INC. This � Economic Incentive Agreement ( "Agreement") is made and entered into this �,, day of �+�I—, 2012, by and between the Village of Lemont, Cook, DuPage and Will Counties, Illinois, an Illinois municipal corporation ( "Village "), Lemont Hardware, LLC., an Illinois Limited Liability Company ( "Business ") and GK Property Partners, LLC., an Illinois Limited Liability Company ( "Developer "). WITNESSETH WHEREAS, the Village is committed to quality economic development projects which will serve to improve the economic base in the community leading to increased business activity, development of job opportunities, enhanced equalized assessed value of property within the Village, enhanced revenue which will contribute to the cost of public services, all of which will serve to improve the health, safety, and general welfare of the businesses and residents of the Village; and WHEREAS, Developer owns certain real estate located wholly within the corporate boundaries of the Village commonly known as 1096 S. State Street, Lemont, Illinois ( "Subject Property"), which has been developed as a building for retail shopping and contains approximately 11,000 square feet of floor area that has been vacant and unoccupied for a number of years (the Subject Property is depicted and shown on the Site Development Plan attached as Exhibit A) ; and WHEREAS, without any retail sales activity occurring at the Subject Property, no Illinois retailers' occupation taxes have been generated from the Subject Property for approximately the past fifteen (15) years resulting in an economic loss to the Village; and WHEREAS, Developer has negotiated a lease with a new tenant, Business, under which Developer intends to lease the vacant space to Business to operate an Ace Hardware store, with an outdoor garden center ( "Operation"), which will result in a retail establishment likely to generate Illinois retailers' occupation taxes; and WHEREAS, under the terms of the proposed lease, Developer must improve and cause construction of those improvements to the interior and exterior of the Subject Property before Business will commence the Operation; and WHEREAS, the Village has determined it is essential to the economic and social welfare of the Village that the Village promote the economic vitality of the community by assuring opportunities for development and encouraging sound and stable commercial growth within the corporate limits of the Village; and WHEREAS, the Village has reviewed all data relating to the Business, has taken into account its own knowledge and information relating to the Subject Property and based thereon, the Village finds as follows: 1 V� I . The Subject Property has been vacant and has remained significantly unoccupied and underutilized for a period of over fifteen (15) years; and 2. That the project is expected to create job opportunities within the Village; and 3. That the Operation/redevelopment of the Subject Property, both within the existing building and exterior area, will serve to further the development of adjacent areas; and 4. That without this Agreement, the Operation/redevelopment and the attraction of a new retail establishment generating taxes paid pursuant to the Municipal Retailer's Occupation Tax Act and the Municipal Service Occupation Tax Act by Retailers and Servicemen that will benefit the Village would not be possible; and 5. That the Business and Developer meet the high standards of creditworthiness and financial strength; and 6. That the project will strengthen a commercial sector of the Village; and 7. That this project will enhance the tax base of the Village; and 8. That this Agreement is made in the best interests of the Village; and WHEREAS, the Village, in entering into this Agreement, is exercising the powers provided by Illinois statute and has made the findings required by law, specifically, 65 ILCS 5/8- 11-20 and 65 ILCS 5/8- 1 -2.5; and WHEREAS, Developer and Business have each represented to the Village that the Operation would not be economically feasible without economic assistance from the Village; and WHEREAS, in order to make it economically feasible for the Developer and Business to proceed with the Operation and redevelopment, the Village has agreed to reimburse the Business for a portion of its redevelopment and other costs and expenses through the use of an economic incentive based on the taxable sales of Business conducted at the Subject Property and a portion of the Village's share of the resulting Illinois Retailers' Occupation Taxes received by the Village; and WHEREAS, the Village believes it is in the best interest of the Village to provide certain economic development assistance as provided for herein as evidenced by Ordinance Q . &ALL, approved on December 10, 2012. NOW, THEREFORE, in consideration of the foregoing and the covenant hereinafter set forth, it is mutually agreed by the parties as follows: 1. Recitals. The recitals set forth hereinabove are hereby expressly incorporated by reference, as if fully set forth herein. Legislative Authority. The Village, a non -home rule municipality operating pursuant to Article 3.1 of the Illinois Municipal Code has made the findings of fact required by 65 ILCS 5/8 -11 -20 and as authorized under 65 ILCS 5/8 -1 -2.5 and represents to the Developer and Business that the adoption of this Agreement is within the scope of its authority and that it is duly authorized and empowered to enter into and carry out the terms of this Agreement. 3. Term of Agreement. The term of this Agreement shall be the earlier to occur: receipt of both the Business Incentive Payment and Developer Incentive Payment to the respective parties from the Village; or ii. the seventh anniversary of the Commencement Date as hereinafter defined; or iii. termination of Agreement as provided herein. 4. OBLIGATIONS OF DEVELOPER a. Retail Establishment Development. Developer will complete the redevelopment of the Subject Property and cause such construction and other activities as shown in Exhibit B and as required by any agreement it has with Business, which is to be promptly commenced and diligently pursued to completion, so as to allow the Operation to commence. b. Full Disclosure. Developer agrees to provide all documented costs associated with the redevelopment of the Subject Property, including, but not limited to all invoices and costs incurred and paid by Developer. c. Term of Commitment. The Operation shall be open as a retail establishment no later than 210 days after the execution of this agreement and remain fully in operation for a period of at least seven (7) years after the grand opening date. d. Assessment of Real Estate Taxes. Developer shall fully cooperate and assist in the tax assessment of Subject Property. e. Payment of Taxes. Developer shall pay all required property taxes owed in a timely manner on an annual basis. Developer shall provide to the Village the second installment itemized Property Tax Bill within fourteen (14) days of receiving such Tax Bill. Developer shall submit confirmation to the Village that all annual installments of Property Taxes have been paid. Nothing in this section shall be construed as limiting Developer's right to protest assessments for the Subject Property. f. General Compliance. Developer shall maintain general compliance with all Federal, State and local laws. OBLIGATIONS OF THE BUSINESS a. Retail Establishment Development. Business will assist Developer in the redevelopment of the Subject Property as shown in Exhibit C and as required by any agreement it has with Developer. b. Full Disclosure. Business agrees to provide all documented costs associated with the redevelopment of the Subject Property, including, but not limited to all invoices and costs incurred and paid by Business. c. Term of Commitment. Operation shall be opened as a retail establishment no later than 210 days after the execution of this agreement ( "Commencement Date ") and remain fully in operation for a period of at least seven (7) years after the grand opening date. d. Payment and Reporting of Revenue and Payment of Taxes. Business shall file timely and accurate sales tax and revenue reports for the Operation to the Illinois Department of Revenue ( "IDOR") and the Village as required by law. Business shall provide a written authorization to IDOR sufficient to permit IDOR to furnish the necessary sales tax information to the Village. e. Payment of Taxes. Business shall pay all required sales tax owed in a timely manner. f. General Compliance. Business shall maintain general compliance with all Federal, State and local laws. 6. OBLIGATIONS OF THE VILLAGE a. Village Review. The Village shall promptly review plans, applications and other documents related to the opening of the Operation with due diligence and without undue delay, however, the Village is under no obligation, as described in this Agreement, to approve such plans, applications and documents. b. Sales Tax Sharing Agreement with Business. Subject to the conditions set forth in this Agreement, Business shall be entitled to an incentive payment ( "Business Incentive Payment ") for each fiscal year following the grand opening of the Operation. The Business Incentive Payment shall be payable in quarterly installments beginning the quarter following the Village's receipt of the entire share of Retailers' Occupation Tax Revenue received by the Village from taxable sales from the previous quarter which have been generated by the business activities of the Operation at Subject Property. The Business Incentive Payment, as described in this Agreement, shall be made for only the first seven (7) years that the Operation is open for business and has continued to operate as described in this Agreement. The Business Incentive Payment for the entire municipal fiscal year shall be fifty percent (50 %) of the Village's received share of the Retailers' Occupation Tax Revenue from the Business not to exceed $6,428.58 per municipal fiscal year. Said fiscal year is defined as May I" to April 30a'. 4 The actual rates and taxes may be adjusted by operation of law over the period of this agreement. The anticipated fiscal year end payment schedule is noted below: FY 2013 — 2014 - $6,428.58 FY 2014 — 2015 - $6,428.57 FY 2015 — 2016 - $6,428.57 FY 2016 — 2017 - $6,428.57 FY 2017 — 2018 - $6,428.57 FY 2018 — 2019 - $6,428.57 FY 2019 — 2020 - $6,428.57 Failure of the Village to receive sufficient Retailers' Occupation Tax Revenue to make the entire Business Incentive Payment in a given municipal fiscal year shall not change or increase the Business Incentive Payment for any other fiscal year and shall not extend this agreement. The Village at its sole discretion shall determine the amount and exact date of the quarterly Business Incentive Payments. The Village at its sole discretion may accelerate payments, but in no case will be required to make total payments exceeding $45,000.00 during the term of the Agreement. c. Sales Tax Sharing and Real Estate Tax Rebate with Developer. Subject to the conditions set forth in this Agreement, Developer shall be entitled to an incentive payment ( "Developer Incentive Payment ") for each fiscal year following the grand opening of the Operation. The Developer Incentive Payment shall be payable in annual installments beginning within thirty (30) days following the Village's receipt of its entire share of both the: 1. Retailers' Occupation Tax Revenue received by the Village from taxable sales from the previous fiscal year which has been generated by the business activities of the Operation at Subject Property, and 2. Ad valorem real estate taxes paid to the Village pursuant to the Property Tax Code for the previous fiscal year. The Developer Incentive Payment, as described in this Agreement, shall be made for the first seven (7) years that the Operation is open for business and has continued to operate as described in this Agreement. The Developer Incentive Payment for the entire fiscal year shall be fifty percent (50 %) of the Village's received share of the tax sources described above and shall not exceed $6,428.58 per municipal fiscal year. Said fiscal year is defined as May 1s` to April 30'. The actual rates and taxes may be adjusted by operation of law over the period of this agreement. The anticipated fiscal year end payment schedule is noted below: FY 2013 — 2014 - $6,428.58 FY 2014 — 2015 - $6,428.57 FY 2015 — 2016 - $6,428.57 FY 2016 — 2017 - $6,428.57 FY 2017 — 2018 - $6,428.57 FY 2018 — 2019 - $6,428.57 FY 2019 — 2020 - $6,428.57 Failure of the Village to receive sufficient Retailers' Occupation Tax Revenue and/or ad valorem real estate taxes to make the entire Developer Incentive Payment in a given municipal fiscal year shall not change or increase the Developer Incentive Payment for any other fiscal year and shall not extend this agreement. The Village at its sole discretion shall determine the amount of the annual Developer Incentive Payment and the source by which such payments shall be made. The Village at its sole discretion may accelerate payments, but in no case will be required to make total payments exceeding $45,000.00 during the term of the Agreement. The Village shall make the Developer Incentive Payment within thirty (30) days of receipt of confirmation from Cook County that the first and second installments of the annual property taxes were paid for the calendar year. The Village will keep confidential the Retailers' Occupation Tax Revenue as it relates to the Operation to the fullest extent allowed by law. Penalties. a. Failure to Open: In the event that the Operation fails to open within 210 days after the execution of this Agreement, unless an extension has been granted in writing by the Village, this Agreement is null and void. b. Failure to Conduct Customary Business Operations for Seven Years: Except as otherwise expressly provided in this Agreement, in the event Operation fails to conduct its customary business operations at the Subject Property, the Village shall be under no obligation to make any payments authorized by the Agreement, and Business shall reimburse Village for any and all Business Incentive Payments previously paid pursuant to the Agreement. Should the failure to conduct customary business operations be as a result of an action or inaction of the Developer, then the Developer shall reimburse Village for any and all Developer Business Incentive Payments previously paid pursuant to the Agreement. Failure to conduct customary business operations does not include temporary closures of the Business or when the business operations cease due to an act of God or other cause over which Business has no control and such action as is necessary to reopen the store for business is promptly initiated and diligently pursued to completion. 0 c. Failure to Comply with Laws and Ordinances: In the event that Business or Developer fails to comply with Federal, State or local laws, rules and regulations and such non - compliance continues and has not been remediated for thirty (30) days after written notice of such violation is given to the Developer or Business, all incentive payments and other financial incentives shall be suspended to the party in non - compliance. If full compliance is restored within thirty (30) days after notice to the Developer or Business, such suspension of the respective incentive payment shall be lifted. If compliance is not restored within such thirty (30) day period, the Village shall not be required to make any incentive payments to the respective party in non - compliance for one calendar year, or until such time as compliance is restored, whichever is longer. Amendments. This Agreement sets forth all the promises, inducements, agreements, conditions and understandings between the parties relative to the subject matter thereof, and there are no promises, agreements, conditions, or understandings, either oral or written, express or implied, between them other than what is set forth herein. No subsequent alteration, amendment, change or addition to the Agreement shall be binding upon the parties, unless authorized in accordance with law and reduced in writing and signed by the Developer and Business and an ordinance or resolution is adopted by the Village President and Board of Trustees. Such adoption is at the sole discretion of the Village. 9. Transferability. This Agreement is solely between the Village, the Business and Developer or its successor entities. It is not transferable to any other party without the express written consent of all parties. No party may transfer, exchange, sell, assign, hypothecate or convey any of its respective rights or interests under this Agreement to any third party without the prior, written authorization of all other parties. 10. Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given upon depositing in the U.S. Mail, either by registered or certified mail, postage prepaid, return receipt requested, by delivery, or by a recognized national overnight mail delivery to the party to whom the notice is directed, at such parties' address as hereinafter set forth. The addresses of the parties are as follows: If to the Village: Village of Lemont Attn: Village Administrator 418 Main St. Lemont, IL 60439 If to Developer: GK Property Partners, LLC c/o GK Development, Inc. Attn: Mr. Garo Kholamian 257 East Main Street Barrington, IL 60010 If to Business: Lemont Hardware, LLC Attn: Mr. Daniel T. Harris 1096 S. State Street Lemont, IL 60439 11. Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 12. Governing Law and Notices. This Agreement shall be construed pursuant to the laws of the State of Illinois and the sole exclusive venue for any disputes arising out of this Agreement shall be any state or federal court located within Cook County in the State of Illinois. 13. Remedies. In the event of a breach of any of the terms and conditions of this Agreement which is not timely cured, the non - breaching party shall have the right to terminate this Agreement. In addition, the non - breaching party shall have the right, by any action or proceeding at law or in equity, to secure the specific performance of the covenants and agreements herein contained, may be awarded damages for failure of performance, or both. The foregoing rights and remedies shall be cumulative and not exclusive. 14. Section and other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 15. Permits and Approvals. Developer and Business recognize and agree that the Village has sole discretion with regard to all approvals and permits including, but not limited to, approval of the development plans, building permits and occupancy permits. Such approval power of the Village is not a part of this agreement and the failure on the part of the Village to grant any required approval or issue any required permit shall not be deemed a default under this Agreement, or give rise to any claim against or liability of the Village pursuant to this Agreement. 16. Prevailing Wage. Developer and Business are hereby notified by the Village that work contemplated by this Agreement may be subject to the Prevailing Wage Act 820 ILCS 130/.01 et seq. (the "Act "). Pursuant to the Act, the term "public works" includes all projects funded in whole or in part through bonds, grants, loans or other funds made available by or through the State or any of its political subdivisions. The Act requires contractors and subcontractors to pay laborers, workers and mechanics performing services on public works projects no less than the "prevailing rate of wages" (hourly cash wages plus fringe benefits) in the county where the work is performed. Information regarding current prevailing wage rates is provided in the Illinois Department of Labor's website at: http://www.state.il.us/agency /idol/rates/rates.HTM. All contractors and subcontractors rendering services under this contract must comply with all requirements of the Act, including but not limited to, all wage, notice and record keeping duties. 17. Termination Right. In the event that any governmental department or agency or any non - governmental third party or parties institutes any administrative or legal proceedings relating to the enforcement of any Federal, state or local laws against the Village, Business or Developer as a result of this Agreement, or which contest the validity or the terms of this Agreement, then either the Village, Business or Developer may, upon written notice to the other parties to this Agreement, elect to terminate this Agreement ( "Termination Notice "). If such Termination Notice is provided by any Party, the Business and Developer shall refund any and all Incentive Payments provided by the Village during the term of this Agreement back to the Village within thirty (30) days of the Termination Notice being delivered. This Agreement shall be terminated and of no force or effect from and after the giving of a Termination Notice. 18. Independent Business Relationship. Nothing contained in this Agreement nor any act of the Village shall be deemed or construed by any of the parties, or by third persons, to create any relationship of third -party beneficiary, or of principal or agent, or of limited or general partnership, or of joint venture, or of any association or relationship involving the Village, Business or the Developer beyond the terms stated herein. 19. Authorization to Execute. The person who has executed this Agreement on behalf of Business and Developer warrant that he /she has been lawfully authorized to execute this Agreement on behalf of the Business and Developer respectively. The Village President and Village Clerk hereby warrant that they have been lawfully authorized by the Village Board of Trustees to execute this Agreement. The parties shall deliver to each other upon request copies of any resolutions, ordinances or other documents required to legally approve the Agreement and authority to so execute this Agreement on behalf of such party. IN WITNESS WHEREOF, this Agreement has been duly authorized by the President and Board of Trustees of the Village of Lemont, Counties of Cook, DuPage and Will, Illinois, and executed on behalf of the Village and Developer as of the date and year first above stated. Village of Lemont, Illinois, a 0 Attested: 4,4 4,(.,,m /.��� Charlene Smollen, Village Clerk IM GK Property ((Part rs, LLC by GK Development, Inc. as manager sy: SCvI.� Garo Khdlarnian President STATE OF } } SS COUNTY OF } I, the undersigned, a Notary Public in and for said County and State aforesaid, do hereby certify that Garo Kholamian being duly sworn, deposes, acknowledges and states that he is the President of GK Development, Inc.an Illinois corporation which is the manager of GK Property Partners, LLC, a limited liability company, executed the foregoing instrument; Wat the instrument was executed and attested on behalf of the corporation by authority of its ; and that he /she acknowledges the execution of the instrument to be the voluntary act and deed of the company. Given under my hand and official seal this -[Q_ day of be ( der 2012. Ir =PUBLIC.STATE EAL ITOR F ILLINOIS S 1.9.2015 II Le nt nwe L By. . DAniel T. Harris, Manager STATE OF } } SS COUNTY OF } I, the undersigned, a Notary Public in and for said County and State aforesaid, do hereby certify that Daniel T. Hams being duly sworn, deposes, acknowledges and states that he is a manager of Lemont Hardware, LLC, a limited liability company, executed the foregoing instrument; that the instrument was executed and attested on behalf of the corporation by authority of its manager; and that he /she acknowledges the execution of the instrument to be the voluntary act and deed of the company. Given under my hand and official seal this _jD day of Mfin [r 2012. OFFICIAL S EAL LINDA K. MOLITOR NOTARY FUEL IC. STATE OF ILLMIOIS ltY COVMI$SO4 EJ(PIRES 1 -1T018 lia ECONOMIC INCENTIVE AGREEMENT BETWEEN VILLAGE OF LEMONT, LEMONT HARDWARE, LLC, AND GK DEVELOPMENT, INC. This Economic Incentive Agreement ( "Agreement ") is made and entered into this day of , 2012, by and between the Village of Lemont, Cook, DuPage and Will Counties, Illinois, an Illinois municipal corporation ( "Village "), Lemont Hardware, LLC., an Illinois Limited Liability Company ( "Business ") and GK Property Partners, LLC., an Illinois Limited Liability Company ( "Developer "). WHEREAS, the Village is committed to quality economic development projects which will serve to improve the economic base in the community leading to increased business activity, development of job opportunities, enhanced equalized assessed value of property within the Village, enhanced revenue which will contribute to the cost of public services, all of which will serve to improve the health, safety, and general welfare of the businesses and residents of the Village; and WHEREAS, Developer owns certain real estate located wholly within the corporate boundaries of the Village commonly known as 1096 S. State Street, Lemont, Illinois ( "Subject Property"), which has been developed as a building for retail shopping and contains approximately 11,000 square feet of floor area that has been vacant and unoccupied for a number of years (the Subject Property is depicted and shown on the Site Development Plan attached as Exhibit A) ; and WHEREAS, without any retail sales activity occurring at the Subject Property, no Illinois retailers' occupation taxes have been generated from the Subject Property for approximately the past fifteen (15) years resulting in an economic loss to the Village; and WHEREAS, Developer has negotiated a lease with a new tenant, Business, under which Developer intends to lease the vacant space to Business to operate an Ace Hardware store, with an outdoor garden center ( "Operation "), which will result in a retail establishment likely to generate Illinois retailers' occupation taxes; and WHEREAS, under the terms of the proposed lease, Developer must improve and cause construction of those improvements to the interior and exterior of the Subject Property before Business will commence the Operation; and WHEREAS, the Village has determined it is essential to the economic and social welfare of the Village that the Village promote the economic vitality of the community by assuring opportunities for development and encouraging sound and stable commercial growth within the corporate limits of the Village; and WHEREAS, the Village has reviewed all data relating to the Business, has taken into account its own knowledge and information relating to the Subject Property and based thereon, the Village finds as follows: 0 a I . The Subject Property has been vacant and has remained significantly unoccupied and underutilized for a period of over fifteen (15) years; and 2. That the project is expected to create job opportunities within the Village; and 3. That the Operation/redevelopment of the Subject Property, both within the existing building and exterior area, will serve to further the development of adjacent areas; and 4. That without this Agreement, the Operation/redevelopment and the attraction of a new retail establishment generating taxes paid pursuant to the Municipal Retailer's Occupation Tax Act and the Municipal Service Occupation Tax Act by Retailers and Servicemen that will benefit the Village would not be possible; and 5. That the Business and Developer meet the high standards of creditworthiness and financial strength; and 6. That the project will strengthen a commercial sector of the Village; and 7. That this project will enhance the tax base of the Village; and 8. That this Agreement is made in the best interests of the Village; and WHEREAS, the Village, in entering into this Agreement, is exercising the powers provided by Illinois statute and has made the findings required by law, specifically, 65 ILCS 5/8- 11-20 and 65 ILCS 5/8- 1 -2.5; and WHEREAS, Developer and Business have each represented to the Village that the Operation would not be economically feasible without economic assistance from the Village; and WHEREAS, in order to make it economically feasible for the Developer and Business to proceed with the Operation and redevelopment, the Village has agreed to reimburse the Business for a portion of its redevelopment and other costs and expenses through the use of an economic incentive based on the taxable sales of Business conducted at the Subject Property and a portion of the Village's share of the resulting Illinois Retailers' Occupation Taxes received by the Village; and WHEREAS, the Village believes it is in the best interest of the Village to provide certain economic development assistance as provided for herein as evidenced by Ordinance 0 • Q�i �Z approved on December 10, 2012. NOW, THEREFORE, in consideration of the foregoing and the covenant hereinafter set forth, it is mutually agreed by the parties as follows: 1. Recitals. The recitals set forth hereinabove are hereby expressly incorporated by reference, as if fully set forth herein. 2 2. Legislative Authority. The Village, a non -home rule municipality operating pursuant to Article 3.1 of the Illinois Municipal Code has made the findings of fact required by 65 ILCS 5/8 -11 -20 and as authorized under 65 ILCS 5/8 -1 -2.5 and represents to the Developer and Business that the adoption of this Agreement is within the scope of its authority and that it is duly authorized and empowered to enter into and carry out the terms of this Agreement. 3. Term of Agreement. The term of this Agreement shall be the earlier to occur: i. receipt of both the Business Incentive Payment and Developer Incentive Payment to the respective parties from the Village; or ii. the seventh anniversary of the Commencement Date as hereinafter defined; or iii. termination of Agreement as provided herein. 4. OBLIGATIONS OF DEVELOPER a. Retail Establishment Development. Developer will complete the redevelopment of the Subject Property and cause such construction and other activities as shown in Exhibit B and as required by any agreement it has with Business, which is to be promptly commenced and diligently pursued to completion, so as to allow the Operation to commence. b. Full Disclosure. Developer agrees to provide all documented costs associated with the redevelopment of the Subject Property, including, but not limited to all invoices and costs incurred and paid by Developer. c. Term of Commitment. The Operation shall be open as a retail establishment no later than 210 days after the execution of this agreement and remain fully in operation for a period of at least seven (7) years after the grand opening date. d. Assessment of Real Estate Taxes. Developer shall fully cooperate and assist in the tax assessment of Subject Property. c. Payment of Taxes. Developer shall pay all required property taxes owed in a timely manner on an annual basis. Developer shall provide to the Village the second installment itemized Property Tax Bill within fourteen (14) days of receiving such Tax Bill. Developer shall submit confirmation to the Village that all annual installments of Property Taxes have been paid. Nothing in this section shall be construed as limiting Developer's right to protest assessments for the Subject Property. f General Compliance. Developer shall maintain general compliance with all Federal, State and local laws. 5. OBLIGATIONS OF THE BUSINESS a. Retail Establishment Development. Business will assist Developer in the redevelopment of the Subject Property as shown in Exhibit C and as required by any agreement it has with Developer. b. Full Disclosure. Business agrees to provide all documented costs associated with the redevelopment of the Subject Property, including, but not limited to all invoices and costs incurred and paid by Business. c. Term of Commitment. Operation shall be opened as a retail establishment no later than 210 days after the execution of this agreement ( "Commencement Date ") and remain fully in operation for a period of at least seven (7) years after the grand opening date- d. Payment and Reporting of Revenue and Payment of Taxes. Business shall file timely and accurate sales tax and revenue reports for the Operation to the Illinois Department of Revenue ( "IDOR ") and the Village as required by law. Business shall provide a written authorization to IDOR sufficient to permit IDOR to furnish the necessary sales tax information to the Village. e. Payment of Taxes. Business shall pay all required sales tax owed in a timely manner. General Compliance. Business shall maintain general compliance with all Federal, State and local laws. 6. OBLIGATIONS OF THE VILLAGE a. Village Review. The Village shall promptly review plans, applications and other documents related to the opening of the Operation with due diligence and without undue delay, however, the Village is under no obligation, as described in this Agreement, to approve such plans, applications and documents. b. Sales Tax Sharing Agreement with Business. Subject to the conditions set forth in this Agreement, Business shall be entitled to an incentive payment ( "Business Incentive Payment ") for each fiscal year following the grand opening of the Operation. The Business Incentive Payment shall be payable in quarterly installments beginning the quarter following the Village's receipt of the entire share of Retailers' Occupation Tax Revenue received by the Village from taxable sales from the previous quarter which have been generated by the business activities of the Operation at Subject Property. The Business Incentive Payment, as described in this Agreement, shall be made for only the first seven (7) years that the Operation is open for business and has continued to operate as described in this Agreement. The Business Incentive Payment for the entire municipal fiscal year shall be fifty percent (50 %) of the Village's received share of the Retailers' Occupation Tax Revenue from the Business not to exceed $6,428.58 per municipal fiscal year. Said fiscal year is defined as May 1" to April 30`x. The actual rates and taxes may be adjusted by operation of law over the period of this agreement. The anticipated fiscal year end payment schedule is noted below: FY 2013 — 2014 - $6,428.58 FY 2014 — 2015 - $6,428.57 FY 2015 — 2016 - $6,428.57 FY 2016 — 2017 - $6,428.57 FY 2017 — 2018 - $6,428.57 FY 2018 — 2019 - $6,428.57 FY 2019 — 2020 - $6,428.57 Failure of the Village to receive sufficient Retailers' Occupation Tax Revenue to make the entire Business Incentive Payment in a given municipal fiscal year shall not change or increase the Business Incentive Payment for any other fiscal year and shall not extend this agreement. The Village at its sole discretion shall determine the amount and exact date of the quarterly Business Incentive Payments. The Village at its sole discretion may accelerate payments, but in no case will be required to make total payments exceeding $45,000.00 during the tern of the Agreement. c. Sales Tax Sharing and Real Estate Tax Rebate with Developer. Subject to the conditions set forth in this Agreement, Developer shall be entitled to an incentive payment ( "Developer Incentive Payment ") for each fiscal year following the grand opening of the Operation. The Developer Incentive Payment shall be payable in annual installments beginning within thirty (30) days following the Village's receipt of its entire share of both the: 1. Retailers' Occupation Tax Revenue received by the Village from taxable sales from the previous fiscal year which has been generated by the business activities of the Operation at Subject Property, and 2. Ad valorem real estate taxes paid to the Village pursuant to the Property Tax Code for the previous fiscal year. The Developer Incentive Payment, as described in this Agreement, shall be made for the first seven (7) years that the Operation is open for business and has continued to operate as described in this Agreement. The Developer Incentive Payment for the entire fiscal year shall be fifty percent (50%) of the Village's received share of the tax sources described above and shall not exceed $6,428.58 per municipal fiscal year. Said fiscal year is defined as May 15` to April 30*. The actual rates and taxes may be adjusted by operation of law over the period of this agreement. The anticipated fiscal year end payment schedule is noted below: FY 2013 — 2014 - $6,428.58 FY 2014 — 2015 - $6,428.57 FY 2015 — 2016 - $6,428.57 FY 2016 — 2017 - $6,428.57 FY 2017 — 2018 - $6,428.57 FY 2018 — 2019 - $6,428.57 FY 2019 — 2020 - $6,428.57 Failure of the Village to receive sufficient Retailers' Occupation Tax Revenue and/or ad valorem real estate taxes to make the entire Developer Incentive Payment in a given municipal fiscal year shall not change or increase the Developer Incentive Payment for any other fiscal year and shall not extend this agreement. The Village at its sole discretion shall determine the amount of the annual Developer Incentive Payment and the source by which such payments shall be made. The Village at its sole discretion may accelerate payments, but in no case will be required to make total payments exceeding $45,000.00 during the term of the Agreement. The Village shall make the Developer Incentive Payment within thirty (30) days of receipt of confirmation from Cook County that the first and second installments of the annual property taxes were paid for the calendar year. The Village will keep confidential the Retailers' Occupation Tax Revenue as it relates to the Operation to the fullest extent allowed by law. Penalties. a. Failure to Open: In the event that the Operation fails to open within 210 days after the execution of this Agreement, unless an extension has been granted in writing by the Village, this Agreement is null and void. b. Failure to Conduct Customary Business Operations for Seven Years: Except as otherwise expressly provided in this Agreement, in the event Operation fails to conduct its customary business operations at the Subject Property, the Village shall be under no obligation to make any payments authorized by the Agreement, and Business shall reimburse Village for any and all Business Incentive Payments previously paid pursuant to the Agreement. Should the failure to conduct customary business operations be as a result of an action or inaction of the Developer, then the Developer shall reimburse Village for any and all Developer Business Incentive Payments previously paid pursuant to the Agreement. Failure to conduct customary business operations does not include temporary closures of the Business or when the business operations cease due to an act of God or other cause over which Business has no control and such action as is necessary to reopen the store for business is promptly initiated and diligently pursued to completion. 0 c. Failure to Comply with Laws and Ordinances: In the event that Business or Developer fails to comply with Federal, State or local laws, rules and regulations and such non - compliance continues and has not been remediated for thirty (30) days after written notice of such violation is given to the Developer or Business, all incentive payments and other financial incentives shall be suspended to the party in non - compliance. If full compliance is restored within thirty (30) days after notice to the Developer or Business, such suspension of the respective incentive payment shall be lifted. If compliance is not restored within such thirty (30) day period, the Village shall not be required to make any incentive payments to the respective party in non - compliance for one calendar year, or until such time as compliance is restored, whichever is longer. 8. Amendments. This Agreement sets forth all the promises, inducements, agreements, conditions and understandings between the parties relative to the subject matter thereof, and there are no promises, agreements, conditions, or understandings, either oral or written, express or implied, between them other than what is set forth herein. No subsequent alteration, amendment, change or addition to the Agreement shall be binding upon the parties, unless authorized in accordance with law and reduced in writing and signed by the Developer and Business and an ordinance or resolution is adopted by the Village President and Board of Trustees. Such adoption is at the sole discretion of the Village. 9. Transferability. This Agreement is solely between the Village, the Business and Developer or its successor entities. It is not transferable to any other party without the express written consent of all parties. No party may transfer, exchange, sell, assign, hypothecate or convey any of its respective rights or interests under this Agreement to any third party without the prior, written authorization of all other parties. 10. Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given upon depositing in the U.S. Mail, either by registered or certified mail, postage prepaid, return receipt requested, by delivery, or by a recognized national overnight mail delivery to the party to whom the notice is directed, at such parties' address as hereinafter set forth. The addresses of the parties are as follows: If to the Village: Village of Lemont Attn: Village Administrator 418 Main St. Lemont, IL 60439 If to Developer: GK Property Partners, LLC c/o GK Development, Inc. Attn: Mr. Gam Kholamian 257 East Main Street Barrington, IL 60010 If to Business: Lemont Hardware, LLC Attn: Mr. Daniel T. Harris 1096 S. State Street Lemont, IL 60439 11. Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 12. Governing Law and Notices. This Agreement shall be construed pursuant to the laws of the State of Illinois and the sole exclusive venue for any disputes arising out of this Agreement shall be any state or federal court located within Cook County in the State of Illinois. 13. Remedies. In the event of a breach of any of the terms and conditions of this Agreement which is not timely cured, the non - breaching party shall have the right to terminate this Agreement. In addition, the non - breaching party shall have the right, by any action or proceeding at law or in equity, to secure the specific performance of the covenants and agreements herein contained, may be awarded damages for failure of performance, or both. The foregoing rights and remedies shall be cumulative and not exclusive. 14. Section and other Headings. Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 15. Permits and Approvals. Developer and Business recognize and agree that the Village has sole discretion with regard to all approvals and permits including, but not limited to, approval of the development plans, building permits and occupancy permits. Such approval power of the Village is not a part of this agreement and the failure on the part of the Village to grant any required approval or issue any required permit shall not be deemed a default under this Agreement, or give rise to any claim against or liability of the Village pursuant to this Agreement. 16. Prevailing Wage. Developer and Business are hereby notified by the Village that work contemplated by this Agreement may be subject to the Prevailing Wage Act 820 ILCS 130/.01 et seq. (the "Act "). Pursuant to the Act, the term "public works" includes all projects funded in whole or in part through bonds, grants, loans or other funds made available by or through the State or any of its political subdivisions. The Act requires contractors and subcontractors to pay laborers, workers and mechanics performing services on public works projects no less than the "prevailing rate of wages" (hourly cash wages plus fringe benefits) in the county where the work is performed. Information regarding current prevailing wage rates is provided in the Illinois Department of Labor's website at: http: / /www.state.il.us /agency /idoUrates/rates.HTM. All contractors and subcontractors rendering services under this contract must comply with all requirements of the Act, including but not limited to, all wage, notice and record keeping duties. 17. Termination Right. In the event that any governmental department or agency or any non - governmental third party or parties institutes any administrative or legal proceedings relating to the enforcement of any Federal, state or local laws against the Village, Business or Developer as a result of this Agreement, or which contest the validity or the terms of this Agreement, then either the Village, Business or Developer may, upon written notice to the other parties to this Agreement, elect to terminate this Agreement ( "Termination Notice "). If such Termination Notice is provided by any Party, the Business and Developer shall refund any and all Incentive Payments provided by the Village during the term of this Agreement back to the Village within thirty (30) days of the Termination Notice being delivered. This Agreement shall be terminated and of no force or effect from and after the giving of a Termination Notice. 18. Independent Business Relationship. Nothing contained in this Agreement nor any act of the Village shall be deemed or construed by any of the parties, or by third persons, to create any relationship of third -party beneficiary, or of principal or agent, or of limited or general partnership, or of joint venture, or of any association or relationship involving the Village, Business or the Developer beyond the terns stated herein. 19. Authorization to Execute. The person who has executed this Agreement on behalf of Business and Developer warrant that he /she has been lawfully authorized to execute this Agreement on behalf of the Business and Developer respectively. The Village President and Village Clerk hereby warrant that they have been lawfully authorized by the Village Board of Trustees to execute this Agreement. The parties shall deliver to each other upon request copies of any resolutions, ordinances or other documents required to legally approve the Agreement and authority to so execute this Agreement on behalf of such party. 0 IN WITNESS WHEREOF, this Agreement has been duly authorized by the President and Board of Trustees of the Village of Lemont, Counties of Cook, DuPage and Will, Illinois, and executed on behalf of the Village and Developer as of the date and year first above stated. Village of Lemont, Illinois, a Municipal Corporation By• Reaves, Villag resident Attested: Charlene mollen, Village Clerk 1101 GK Property Partners, L C by GK Development, Inc. as manager By: Garo Kholamiarf President STATE OF } } SS COUNTY OF } I, the undersigned, a Notary Public in and for said County and State aforesaid, do hereby certify that Garo Kholamian being duly sworn, deposes, acknowledges and states that he is the President of GK Development, Inc.an Illinois corporation which is the manager of GK Property Partners, LLC, a limited liability company, executed the foregoing instrument; that the instrument was executed and attested on behalf of the corporation by authority of its Ta5f&n f - ; and that he /she acknowledges the execution of the instrument to be the voluntary act and deed of the company. Given under my hand and official seal this 1�- day of kwbtr 2012. OWN i'. . l /►, . I IV IN .211 lit O=SEAL r LINR Hi! ?ANY N96 ,,O-2016 Lem t r a e,LC By_ A Daniel T. Harris, Manager STATE OF } } SS COUNTY OF } I, the undersigned, a Notary Public in and for said County and State aforesaid, do hereby certify that Daniel T. Hams being duly sworn, deposes, acknowledges and states that he is a manager of Lemont Hardware, LLC, a limited liability company, executed the foregoing instrument; that the instrument was executed and attested on behalf of the corporation by authority of its manager; and that he /she acknowledges the execution of the instrument to be the voluntary act and deed of the company. Given under my hand and official seal this _1_ day of D rrfllber 2012. � IV =STATE EAL ITOR OF ILLINOIS S 1$7016 12 Illinois Department of Revenue Authorization to Release Sales Tax Information to Local Governments General Information Complete this form only if you make retail sales of tangible personal property from a permanent location in Illinois or conduct a tent sale where you complete ST -556 forms for individual transactions, and want to authorize us (Illinois Department of Revenue) to disclose to your local government its share of sales tax received from your business. Incomplete requests will be returned to the local government. Step 1: Provide the retail business details Enter your Illinois Account ID here, ass your Federal Employer Identification Number (FEIN). Illinois Account 11I IDI number (Sales Tax number) ''I 2 UMDAT � A(rjWA4;- LLC, 6QA'• L'lrmouT- Act h A/2o,..I44C- Taxpayer /business name t)9/ m S . Sn-ATr $l!ti" 5r , Lt m 04r ,-n 60q39 aacC IL SIB 3 1 authorize this release for the reporting periods DP(Qfflb fr- aOI,Z through dam d/r (5)Z tq (month, year) (month, year) Note: All requests must have a beginning and ending date. 4 This information is to be released to the (circle on village, ity, town or county of C004 Note: All Financial Reporting requests will be mailed to the Treasurer of the local government. No additional copies will be sent by the Department. 5 Sign below I, as the owner or authorized officer, authorize the Illinois Department of Revenue (100R) to disclose to the designated village, city, town, gi:.cwInty, the amount of the local government's share of sales tax received from the taxpayer for the reporting period specified n 9A #4 A1. 1 uG l AOM&Z Signature of owner or authorized officer of the business Title LL JAWr£1_ T WARttIS (b30) %6i5 - 470 Print Name number Step 2: Give this form to your local government designated to receive the tax information Step 3: To be completed by the local government official receiving information Type of request (circle one): group /district stand -alone If group /district, enter name here: I, as the local government official, verify that this form is accurate and complete. government official Title rf�..fe ( 6 TO ) 2-0 - I.f�� qlf *v-:, Si. (� , , i IL 60'(79 Address City State Zip Completed forms should be returned to: Illinois Department of Revenue, Local Tax Allocation Division 3 -500, PO Box 19014, Springfield, IL 62794 -9014 or by fax to 217 524 -0526 Questions? Call 217 785 -6518 This form en is Guth -n--d by the Retailers' Occupation Tax Act 35 ILCS 120/11 Disclosure of this information is VOLUNTARY. This form has be approved by the Forms Management Center. IL- 492 -4561 PTAx1002 -21 (P7/11)