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2002-038Ordinance No. 2002 - 38 An Ordinance Approving an Agreement with 13 Group, Inc., Interior Investments, LLC, and Interior Environments, LLC WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of the Illinois Constitution of 1970; and, WHEREAS, 13 Group, Inc., Interior Investments, LLC, and Interior Environments, LLC. (13") has located an Illinois order acceptance point at its corporate headquarters in the Village of Buffalo Grove; and WHERAS, as a result, the efficient and effective use of the property will increase the Village's tax base and increase employment opportunities in the Village, and in furtherance of this, the Village is willing to grant certain incentives to 13. NOW THEREFORE BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS: Section 1. The foregoing Whereas clauses are hereby incorporated herein. Section 2. The Village President and Village Clerk are hereby authorized to execute the Agreement between the Village of Buffalo Grove and 13, a copy of which is attached hereto as Exhibit "A ". Section 3. This Ordinance shall be in full force and effect from and after its passage and approval. This Ordinance shall not be codified. 0 AYES: 6 - Braiman, Glover,Be NAYES: 0 - None ABSENT: 0 - None !I Johnson, Kahn, Trilling ABSTAIN: 0 - None PASSED: July 15 , 2002 APPROVED: July 15 , 2002. PUBLISHED: July 16 , 2002. APPROVED: i s .- 1'3resident ATTEST: Wage Clerk , W , STATE OF ILLINOIS ) ) ss. COUNTY OF COOK ) CERTIFICATE I, Janet M. Sirabian, certify that I am the duly elected and acting Village Clerk of the Village of Buffalo Grove, Cook and Lake Counties, Illinois. I further certify that on July 15, 2002, the Corporate Authorities of the Village passed and approved Ordinance No. 2002 -38, entitled: AN ORDINANCE APPROVING AN AGREEMENT WITH 13 GROUP, INTERIOR INVESTMENTS, LLC, AND INTERIOR ENVIRONMENTS, LLC which provided by its terms that it should be published in pamphlet form. The pamphlet form of Ordinance No. 2002 -38, including the Ordinance and a sheet thereof, was prepared, and a copy of such Ordinance was posted in and at the Village Hall, commencing on July 16, 2002, and continuing for at least ten days thereafter. Copies of such Ordinance were also available for public inspection upon request in the Office of Village Clerk. Dated at Buffalo Grove, Illinois, this 16th day of July, 2002. jr. . 4 Ordinance No. 2002 - 38 An Ordinance Approving an Agreement with 13 Group, Inc., Interior Investments, LLC, and Interior Environments, LLC WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of the Illinois Constitution of 1970; and, WHEREAS, 13 Group, Inc., Interior Investments, LLC, and Interior Environments, LLC. ( "13 ") has located an Illinois order acceptance point at its corporate headquarters in the Village of Buffalo Grove; and WHERAS, as a result, the efficient and effective use of the property will increase the Village's tax base and increase employment opportunities in the Village, and in furtherance of this, the Village is willing to grant certain incentives to 13. NOW THEREFORE BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS: Section 1. The foregoing Whereas clauses are hereby incorporated herein. Section 2. The Village President and Village Clerk are hereby authorized to execute the Agreement between the Village of Buffalo Grove and 13, a copy of which is attached hereto as Exhibit "A ". Section 3. This Ordinance shall be in full force and effect from and after its passage and approval. This Ordinance shall not be codified. AYES: 6 - Braiman, Glover,Berman, Johnson, Kahn, Trilling NAYES: 0 - None ABSENT: 0 - None ABSTAIN: 0 - None PASSED: July 15 , 2002 APPROVED: July 15 , 2002. PUBLISHED: July 16 , 2002. APPROVED: Village President ATTEST: Village Clerk ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND 13 GROUP, INC., INTERIOR INVESTMENTS, LLC, AND INTERIOR ENVIRONMENTS, LLC THIS ECONOMIC INCENTIVE AGREEMENT is made and entered into as of the 15h day of July, 2002, by and between the VILLAGE OF BUFFALO GROVE, an Illinois home rule municipal corporation ( "Village "); 13 GROUP, INC., a Delaware corporation (" 13 Group "); INTERIOR INVESTMENTS, LLC, an Illinois limited liability company ( "Interior Investments "); and Interior Environments, LLC, an Illinois limited liability company ( "Interior Environments ") (13 Group, Interior Investments, and Interior Environments are referred to collectively in this Agreement as 13 "). IN CONSIDERATION OF the recitals and mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1. RECITALS. A. 13 is an innovative contract distributor of office furniture and office organization systems and services. B. 13 desires to relocate its corporate headquarters to the Village of Buffalo Grove — first to the property known as 1110 Lake Cook Road, Suite 245, and then to a permanent facility located on Lake County property also in the Village and owned by 13, and to develop in the Village on these properties an office facility and single order acceptance point for all of 13's sales, including but not by way of limitation, sales of office furniture and office organization systems and services, including those sales attributable to other entities that 13 may acquire or establish in the Village ( "Development'). C. In order to induce 13 to locate its Development in the Village and to undertake and ensure the success of the Development, the Village has agreed, pursuant to the terms of this Agreement, to rebate to 13 a portion of the municipal component of applicable Illinois sales taxes that are generated by the Development and received by the Village. D. As of the date of this Agreement, the total sales tax rate for applicable sales within the Village is seven percent, the Village portion of which is 1.5 percent, comprised of one percent for the state retailers' occupation tax and .5 percent for the Village's home -rule sales tax. E. The Village and 13 have the power and authority to enter ,into this Agreement pursuant to, but without limitation, the home rule powers of the Village under Section 6, Article VII of the 1970 Constitution of the State of Illinois. SECTION 2. DEFINITIONS. Whenever used in this Agreement, the following terms shall have the following meanings unless a different meaning is required by the context. "Commencement Date ": August 1, 2002, which represents the date upon which 13 established the Development in the Village. "Force Maieure": An Act of God or other event or cause not reasonably within the control of 13 including, without limitation, fire, strikes, lockouts, civil riot, floods, or natural catastrophe. "Gross Receipts ": The term "Gross Receipts" shall have the same meaning as that which is ascribed to it in the Retailers' Occupation Tax Act. "Home Rule Sales Tax ": The sales tax imposed in the Village pursuant to Village's Home Rule Sales Tax Ordinance under the Home Rule Municipal Retailers' Occupation Tax Act, 65 ILCS 5/8 -11 -1. The Home Rule Sales Tax as of the Commencement Date is .5 percent. "Municipal Sales Tax ": That portion or component of the Sales Tax generated by the Development that the Village actually receives from the State of Illinois pursuant to the Home Rule Sales Tax, the Retailers' Occupation Tax Act, the Service Occupation Tax Act, the Service Use Tax Act, and the Use Tax Act. "Municipal Sales Tax Payment ": The payment to 13 of a portion of the Municipal Sales Tax that the Village is required to make pursuant to Section 3 of this Agreement. "Retailer's Occupation Tax Act ": The Illinois Retailers' Occupation Tax Act, 35 ILCS 120/1 et seq., as the same has been, and may, from time to time hereafter be, amended. "Sales Taxes ": Any and all taxes imposed and collected by the State of Illinois pursuant to the Home Rule Sales Tax, the Retailer's Occupation Tax Act, the Service Occupation Tax Act, the Service Use Tax Act, or the Use Tax Act. "Sales Tax Years ": The period of time commencing on the Commencement Date and ending on the date that is 365 days after the Commencement Date, and each of the 11 succeeding 365 -day periods thereafter; provided, however, that the calculation of the number of days in a Sales Tax Year shall not include any and all days during which the Development is unable to operate in the Village solely as the result of a Force Majeure. "Service Occupation Tax Act ": The Illinois Service Occupation Tax Act, 35 ILCS 115/1 et seq., as the same has been, and may, from time to time hereafter be, amended. "Service Use Tax Act ": The Illinois Service Use Tax Act, 35 ILCS 110/1 et seq., as the same has been, and may, from time to time hereafter be, amended. "Use Tax Act ": The Illinois Use Tax Act, 35 ILCS 105/1 et seq., as the same has been, and may, from time to time hereafter be, amended. SECTION 3. MUNICIPAL SALES TAX PAYMENT. A. Calculation of Municipal Sales Tax Payment. For each Sales Tax Year during the term of this Agreement, the Village shall pay to 13 an amount that is equal to 33 percent of all of the Municipal Sales Tax attributable to the Development and received by the Village for that particular Sales Tax Year. B. Additional Taxes. Sales Tax. If, at any time during any Sales Tax Year, the Village is, or becomes able to, and does, increase the rate of Sales Tax imposed within the Village, then the Municipal Sales Tax Payment for the increase shall be calculated pursuant to the same formula as set forth in Subsection A of this Section; provided, however, that in the event that the Village increases its Home Rules Sales Tax to more than .5 percent, 13 shall have the right to either receive (a) 33 percent the increase in the Home Rule Sales Tax; or (b) terminate this Agreement upon written notice to the Village no more than 180 days after the increase in the Home Rule Sales Tax. C. Village Payment. Within 30 days after the end of each three -month period of each Sales Tax Year ( "Quarter"), the Village shall pay to 13 the Municipal Sales Tax Payment applicable to that particular Quarter pursuant to Subsection A of this Section. If, for any reason, the State of Illinois fails to distribute the Municipal Sales Tax revenue to the Village within 30 days after the end of any Quarter of any Sales Tax Year, the Village shall provide notice of that failure to 13. In that event, the Village shall make the required Municipal Sales Tax Payment within 30 days after the date on which the Village actually receives the Municipal Sales Tax revenue due the Village for the applicable Quarter. D. No 13 Guarantee. The parties acknowledge and agree that none of the terms, conditions, or provisions of this Agreement shall be construed, deemed, or interpreted as either (1) a guarantee that the Village will receive any Municipal Sales Taxes as a result of the operation of the Development in the Village or (2) a requirement or obligation by 13 to generate Gross Receipts from the Development. E. No Village Obligation. The parties acknowledge and agree that none of the terms, conditions, or provisions of this Agreement shall be construed, deemed, or interpreted as (1) a restriction or prohibition on the Village from eliminating or amending its Home Rule Sales Tax, or (2) a requirement to impose a sales or other tax for the purpose of providing a source of funds for the Municipal Sales Tax Payment. SECTION 4. EXCLUSIVE AGREEMENT. A. During the Term hereof, 13 agrees not to enter into any other municipal sales tax revenue sharing agreement with other municipalities in Illinois. B. 13 agrees that the Village of Buffalo Grove shall be its single order acceptance point for all of 13's sales of office furniture and office organization systems, and services including those sales attributable to other entities, items or products that 13 may acquire or establish in the Village. SECTION 5. LITIGATION AND DEFENSE OF AGREEMENT. A. Litigation. If, during the term of this Agreement, any lawsuits or proceedings are filed or initiated against either party before any court, commission, board, bureau, agency, unit of government or sub -unit thereof, arbitrator, or other instrumentality, that I may materially affect or inhibit the ability of either party to perform its obligations under, or otherwise to comply with, this Agreement ( "Litigation "), the party against which the Litigation is filed or initiated shall promptly deliver a copy of the complaint or charge related thereto to the other party and shall thereafter keep the other party fully informed concerning all aspects of the Litigation. B. Defense. The Village and 13 each agree to use their respective best efforts to defend the validity of this Agreement, and all ordinances and resolutions adopted and agreements executed pursuant to this Agreement, including every portion thereof and every approval given, and every action taken, pursuant thereto. SECTION 6. REMEDIES. A. Remedies. In the event of a breach or an alleged breach of this Agreement by either party, either party may, by suit, action, mandamus, or any other proceeding, in law or in equity, including specific performance, enforce or compel the performance of this Agreement. B. Notice and Cure. Neither party may exercise the right to bring any suit, action, mandamus or any other proceeding pursuant to Subsection A of this Section without first giving written notice to the other party of the breach or alleged breach and allowing 15 days to cure the breach or alleged breach; provided, however, that if the party accused of the breach or alleged breach cannot cure the condition within 15 days after the notice, notwithstanding the party's diligent and continuous effort, promptly commenced and diligently continued upon receipt of the notice, then the period to cure the violation or failure shall be extended for the time necessary to cure the violation with diligence and continuity, but in no event longer than 180 days unless extended in writing by the Village. SECTION 7. TERM. This Agreement shall be in full force and effect from and after the date of its execution until the date that is the later to occur of (a) the date that is 12 years after the Commencement Date and (b) the date on which the Village has made all payments required pursuant to this Agreement. The foregoing dates shall be extended as a result of a Force Majeure, but such extension shall not exceed 3 years. SECTION 8. RELEASE OF INFORMATION. 13 agrees to sign all documentation necessary to cause the Illinois Department of Revenue to release to the Village the amount of Sales Tax generated by 13 from the Development during each of the Sales Tax Years. During each sales tax year, 13 shall also forward copies of its Illinois Municipal Sales Tax return to the Village Clerk. SECTION 9. GENERAL PROVISIONS. A. Complete Agreement; Supersedence. This Agreement constitutes the complete agreement of the parties regarding the payment of Municipal Sales Taxes to 13 and shall supersede and nullify all prior drafts and agreements concerning the payment of Municipal Sales Taxes to 13. B. Amendments. No amendment to, or modification of, this Agreement shall be effective unless and until it is in writing and is approved by the authorized representative of 13 and by the Village of Buffalo Grove corporate authorities by Ordinance duly adopted, and executed and delivered by the authorized representatives of each party. C. Notices. Any notice or other communication required or permitted to be given under this Agreement shall be in writing, and shall be deemed delivered to and received by the addressee thereof when delivered in person at the address set forth below, or three business days after deposit thereof in any main or branch United States Post Office, certified or registered mail, return receipt requested, postage prepaid, properly addressed to the parties, respectively, as follows: For notices and communications to the Village: Village of Buffalo Grove 50 Raupp Blvd. Buffalo Grove, Illinois 60089 Attention: Director of Finance with a copy to: William G. Raysa, Esq. Raysa & Zimmerman, LTD 22 South Washington Park Ridge, Illinois 60068 For notices and communications to 13: Mr. Don Shannon Principal 13 Group, Inc. 1110 Lake Cook Road Suite 245 Buffalo Grove, Illinois 60089 with a copy to: Peter M. Friedman, Esq. Holland & Knight LLP 55 West Monroe Street, Suite 800 Chicago, Illinois 60603 By notice complying with the foregoing requirements of this paragraph, each party shall have the right to change the address or addressee or both for all future notices and communications to such party, but no notice of change of address shall be effective until actually received. D. Indemnity. 13 shall and hereby agrees to defend, hold harmless and indemnify the Village, its President, Trustees, employees, agents and attorneys from and against any and all claims, demands, suits, damages, liabilities, losses, expenses, and judgments which may arise out of the establishment of an order - acceptance point within the Village or this Agreement. The obligation of 13 in this regard shall include but shall not be limited to all costs and expenses, including reasonable attorneys' fees, incurred by the Village in responding to, defending against, or settling any such claims, demands, suits, damages, liabilities, losses, expenses or judgements. 13 covenants that it will reimburse the Village, or pay over to the Village, all sums of money the Village pays, or becomes liable to pay, by reason of any of the foregoing, and will make payment to the Village as soon as the Village becomes liable therefore; provided, however, that 13's liability under this Subsection shall be limited to the total amount of Municipal Sales Tax Payments that 13 has received from the Village pursuant to this Agreement as of the date of any such claim, demand, suit, damage, liability, loss, expense, or judgment. In any suit or proceeding brought hereunder, the Village shall have the right to appoint counsel of its own choosing to represent it. E. Governing Law. This Agreement and the rights of the parties hereunder shall be governed by, and construed, interpreted, and enforced in accordance with, the internal laws, and not the conflict of law rules of the State of Illinois. F. Interpretation. This Agreement has been negotiated by all parties and shall not be interpreted or construed against the party drafting the Agreement. G. Change in Laws. Unless otherwise explicitly provided in this Agreement, any reference to laws, ordinances, rules, or regulations of any kind shall include such laws, ordinances, rules, or regulations of any kind as they may be amended or modified from time to time hereafter. H. Headings. The headings of the sections, paragraphs, and other parts of this Agreement are for convenience and reference only and in no way define, extend, limit, or describe the meaning, scope, or intent of this Agreement, or the meaning, scope, or intent of any provision hereof. I. Time of Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. J. Severability. It is the express intent of the parties hereto that should any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property be held void, invalid, or unenforceable by a court of competent jurisdiction, such action shall not effect the remainder of this Agreement, which shall continue in full force and effect. K. No Third Party Beneficiaries. Nothing in this Agreement shall create, or be construed to create, any third party beneficiary rights in any person or entity not a signatory to this Agreement. L. Counterparts. This Agreement may be executed in any number of multiply identical counterparts and all of said counterparts shall, individually and taken together constitute the Agreement. M. Assignment. 13 may not assign this Agreement or the amounts; in whole or part, to be reimbursed hereunder without the Village's prior written consent, which consent shall not be unreasonably withheld. The Village acknowledges that this Agreement is an obligation which runs to 13 and is not a covenant running with the land. N. Inspection of Books and Records. Upon prior written notice to 13, and at a place and time that is mutually beneficial to both parties, the Village shall have the right to inspect and review those books and records which are directly related to establishing Sales for any Sales Tax Year or portion thereof. Y ` 1 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. ATTEST: Villa Jerk ATTEST: Its: ATTEST: Its: ATTEST: Its: VILLAGE OF BUFFALO GROVE By: Village President 13 GROUP, INC. By: _ Its: INTERIOR INVESTMENTS, LLC By: _ Its: INTERIOR ENVIRONMENTS, LLC By: _ Its: ACKNOWLEDGEMENT STATE OF ILLINOIS SS COUNTY OF LAKE This instrument was acknowledged before me o 2002 by Elliott Hartstein, the Village President of the VILLAGE OF BUFFAL OVE, an Illinois home rule municipal corporation, and by Janet Sirabian, the Village Clerk of said municipal corporation. Signature of Notary SEAL: My Commission expires: 7ROBERTA AL" D Illinois 01/25/04 v t ACKNOWLEDGEMENT STATE OF ILLINOIS ) SS COUNTY OF LAKE ) This instrument was acknowledged before me on , 2002 by the President of 13 GROUP, INC., a Delaware corporation, and by , the of said corporation. SEAL: My Commission expires: Signature of Notary ACKNOWLEDGEMENT STATE OF ILLINOIS ) SS COUNTY OF LAKE ) This instrument was acknowledged before me on , 2002 by the President of INTERIOR INVESTMENTS, LLC, an Illinois limited liability company, and by , the of said company. SEAL: My Commission expires: Signature of Notary ACKNOWLEDGEMENT STATE OF ILLINOIS SS COUNTY OF LAKE This instrument was acknowledged before me on , 2002 by the President of INTERIOR ENVIRONMENTS, an Illinois limited liability company, and by , the of said company. Signature of Notary SEAL: My Commission expires: CHI1 #165805 v1 1 May 2002