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2004-021ORDINANCE NO. 2004- 21 0 AN ORDINANCE APPROVING AN ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND CY'S CRAB HOUSE NORTH, INC. WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of the Illinois Constitution of 1970; and WHEREAS, Cy's Crab House North, Inc. ( "Cy's ") has annexed the existing Cy's Crab House restaurant into the Village of Buffalo Grove; and WHEREAS, as a result, the efficient and effective use of commercial property will occur which 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 Cy's. NOW, THEREFORE BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS that: Section 1. The foregoing Whereas clauses are hereby incorporated herein. Section 2. The Village President and Village Clerk are hereby authorized to execute the Economic Incentive Agreement between the Village of Buffalo Grove and Cy's Crab House North, Inc. a copy of which is attached hereto as Exhibit "A ". Section 3. This Ordinance shall be in full force and effective from and after its passage and approval. This Ordinance shall not be codified. AYES: 6 — Braiman, Glover, Berman, Johnson, Kahn, Trillir..g NAYES: 0 — None ABSENT: 0 — None PASSED: January 19, 2004 APPROVED: January 19, 2004 Village President ATTEST: Villa Jerk Exhibit "A" 0 ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND CY'S CRAB HOUSE NORTH, INC. THIS ECONOMIC INCENTIVE AGREEMENT is made and entered into as of the 2ND day of June, 2003, by and between the Village of Buffalo Grove, an Illinois home rule municipal corporation (hereafter "Village ") and Cy's Crab House North; Inc., an Illinois corporation (hereafter "Cy's "). IN CONSIDERATION OF the recitals and mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Village and Cy's (collectively hereafter "Parties ") agree as follows: SECTION 1. RECITALS. A. The Village and Cy's entered into an Annexation Agreement on June 2, 2003 whereby the parties therein agreed to annex the existing Cy's Crab House Restaurant property located at 933 Milwaukee Avenue into the corporate limits of the Village, which Annexation Agreement was approved by the Village by Ordinance No. 2003 -41. Pursuant to the Annexation Agreement the Village approved Ordinance No. 2003 -42, which annexed the real property legally described therein and commonly known as 933 Milwaukee Avenue (hereafter "Property ") into the Village. B. The Property is currently developed with a restaurant and parking facilities operated by Cy's (hereafter "Business ") C. In order to induce Cy's to locate its Business in the Village and to undertake and ensure the success of the Business, the Village has agreed, pursuant to the terms of the Annexation Agreement and this Agreement, to rebate to Cy's the Village's home rule sales tax, of not more than .5% generated by the Business 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 (7 %), the Village portion of which is one point five percent (1.5 %), comprised of one percent (1 %) for the state retailers' occupation tax and five - tenths of one percent (.5 %) for the Village's Home Rule Sales Tax. E. The Village and Cy's 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 ": June 1, 2003. "Gross Receipts ": The term "Gross Receipts" shall have the same meaning as that which is ascribed to it in the Retailers' Occupation Tax Act. 0 � 1 0 "Home Rule Sales Tax ": The five - tenths of one percent (.5 %) sales tax imposed in the Village pursuant to the Village's Home Rule Sales Tax Ordinance No. 91 -57 under the Home Rule Municipal Retailers' Occupation Tax Act, 65 ILCS 5/8 -11 -1 and the Home Rule Municipal Service Occupation Tax, 65 ILCS 5/8 -11 -5. The term "Home Rule Sales Tax" shall not include any increase enacted by the Village after the date of this Agreement. "Home Rule Sales Tax Payment ": The payment to Cy's of a portion of the Home Rule Sales Tax that the Village is required to make pursuant to Section 3 of this Agreement. "Sales Tax Years ": The period of time commencing on the, Commencement Date and ending on the date that is one year after the Commencement Date, and each of the nine (9) succeeding yearly periods thereafter. SECTION 3. HOME RULE SALES TAX PAYMENT. A. Calculation of Home Rule Sales Tax Payment. For each Sales Tax Year during the term of this Agreement, the Village shall pay to Cy's the Village's Home Rule Sales Tax attributable to the Business and received by the Village for that particular Sales Tax Year. B. Villaae Payment. Within 30 days after the end of each three -month period of each Sales Tax Year ( "Quarter"), the Village shall pay to Cy's the Home Rule 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 Home Rule 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 Cy's. In that event, the Village shall make the required Home Rule Sales Tax Payment within 30 days after the date on which the Villager actually receives the Home Rule Sales Tax revenue due the Village for the applicable Quarter. C. No 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 Home Rule Sales Taxes as a result of the operation of the Business in the Village or (2) a requirement or obligation by Cy's to generate Gross Receipts from the Business. D. 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 Home Rule Sales Tax Payment. E. Loss of Authority. In the event that the Village's authority to enter into this Agreement or to pay the Home Rule Sales Tax Payment to Cy's pursuant to this Agreement are repealed, become unexercisable, null and void or otherwise become invalid then the Village's obligations hereunder shall cease and no further obligations shall be required of the Village. SECTION 4. EXCLUSIVE AGREEMENT. During the Term hereof, Cy's agrees not to enter into any other municipal sales tax revenue sharing agreement with other municipalities in Illinois concerning the Business. 2 C] 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 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 Cy's 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, enforces 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 its date until the date that is the later to occur of (a) the date that is 10 years after the Comme=ncement Date or (b) the date on which the Village has made all payments required pursuant to this Agreement. SECTION 8. RELEASE OF INFORMATION. Cy's 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 Cy's from the Property during each of the Sales Tax Years. During each sales tax year, Cy's shall also forward copies of its monthly Illinois Municipal Sales Tax Returns, STA and ST -2, as appropriate, to the Village. The forms provided shall detail the amount of sales tax collected and paid to the Illinois Department of Revenue as well as taxable gross receipts for Cy's. Cy's and the Village shall keep all sales tax information confidential except where disclosure of such information is required by law. 3 SECTION 9. GENERAL PROVISIONS. A. Complete Agreement; Supersedence. This Agreement constitutes the complete agreement of the parties regarding the payment of Home Rule Sales Tax to Cy's and shall supersede and nullify all prior drafts and agreements concerning the payment of Home Rule Sales Tax to Cy's including without limitation the aforestated Annexation Agreement. 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 Cy's 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 Cy's: Cy Koorosh Sadeghi 933 Milwaukee Avenue Buffalo Grove, Illinois 60089 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. Cy's 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 Cy's 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. Cy's 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 0 reason of any of the foregoing, and will make payment to the Village as soon as the Village becomes liable therefore; provided, however, that Cy's liability under this Subsection shall be limited to the total amount of Home Rule Sales Tax Payments that Cy's 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. Cy's may not assign this Agreement or the amounts, in whole or part, to be paid hereunder. The Parties acknowledge that this Agreement is an obligation which runs to Cy's and is not a covenant running with the land. N. Inspection of Books and Records. Upon prior written notice to Cy's, 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. 5 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: ii Villig6 Clerk ATTEST: Its: VILLAGE OF BUFFALO GROVE By. Village President CY'S CRAB HOUSE NORTH, INC. By: Its: A r. ACKNOWLEDGEMENT STATE OF ILLINOIS ) COUNTY OF LAKE SS 0 This instrument was acknowledged before me on Q l - 1 1 K 2004 by C oorosh Sadeghi, the President of CY'S CRAB HOUSE NORTH, INC., an Illinois co po ati ny and by ^----' , the of said corporation. DONALD R. SODKE Notary Public, state of Illinois Signature of Notary SEAL: My Commission Expires 05/07/05 , My Commission expires: 0 1z�- — d 7 0 0 STATE OF ILLINOIS ACKNOWLEDGEMENT SS COUNTY OF LAKE ) This instrument was acknowledged before me on , 2004 by Elliott Hartstein, the Village President of the VILLAGE OF BUFFA `GROV an Illinois home rule municipal corporation, and by Janet Sirabian, the Villag Clerk 6f said municipal corporation. C-L 4 Signature 6f Not ry SEAL: My Commission expires: �-