Loading...
2008-009Ordinance No. 2008 - 9 An Ordinance Approving an Economic Incentive Agreement By and Between the Village of Buffalo Grove and Rohr -Alpha Inc. WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of the Illinois Constitution of 1970; and, WHEREAS, Rohrman conducts auto sales under the assumed name of "Arlington Chrysler Jeep" at the property commonly known as 925 West Dundee Road in Buffalo Grove, Illinois; and WHEREAS, Rohrman desires to expand its business in the Village of Buffalo Grove to include the sale of Dodge vehicles for an approximate period no less than twelve months; and WHEREAS, in order to encourage Rohrman to maintain its business operation in the Village and to assist in its restructuring of its business, the Village agrees, pursuant to the terms of this Agreement, to share new sales tax revenue generated from the sale of all Dodge vehicles over a finite period of time. NOW THEREFORE BE IT ORDAINED BYTHE PRESIDENTAND 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 Rohr -Alpha Inc, 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, approval and publication. This Ordinance may be published in pamphlet form. This Ordinance shall not be codified. AYES: 5 - Braiman, Glover, Berman, Kahn, Trilling NAYES: 0 - None ABSENT: 1 - Rubin ABSTAIN: 0 - None PASSED: February 4 , 2008. APPROVED: February 4 2008. PUBLISHED: February 5 '2008. APPROVED: Village President ATTEST: oe:jm Mff6ge Clerk r or Exhibit A 1 -31 -08 E ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND ROHR -ALPHA INC. This Agreement is made and entered into as of the 4th day of February 2008, by and between the Village of Buffalo Grove , an Illinois home rule municipal corporation (hereinafter defined as the "Village ") and Rohr -Alpha Inc., an Illinois corporation (hereinafter defined as "Rohrman "). 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. Rohrman conducts its Business at the Premises commonly known as 925 West Dundee Road, Buffalo Grove, Illinois. B. Rohrman currently conducts auto sales in Buffalo Grove under the assumed name of "Arlington Chrysler Jeep in Buffalo Grove ". C. Rohrman desires to expand its Business in the Village of Buffalo Grove to include the sale of Dodge vehicles on the Premises for an approximate period no less than twelve months. The single order acceptance point for all of Rohrman's Business would continue to be conducted from the Premises. D. In order to encourage Rohrman to maintain its business operation in the Village and to assist in its restructuring of its Business, the Village agrees, pursuant to the terms of this Agreement, to share new sales tax revenue generated from the Premises by the Business over a finite period of time. E. As of the date of this Agreement, the total sales tax rate applicable on the sale of certain tangible personal property, including but not by way of limitation, items that must be titled or registered by an agency of the State of Illinois (e.g. automobiles and parts) within the Cook County portion of the Village is seven and three - quarter percent (7.75 %), the Village portion of which is one percent (1%) (which is comprised of the one percent (1%) Illinois retailers' occupation tax). F. As of the date of this Agreement, the total sales tax rate applicable on the sale of taxable tangible personal property (e.g. general merchandise but not including automobiles) is eight and three - quarter percent (8.75°/x), the Village portion of which is two percent (2 %) (which is comprised of the one percent (1%) Illinois retailers' occupation tax, and the one percent (1%) Village's Home -Rule Sales Tax). G. The Village has 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. RULES AND DEFINITIONS. A. The language in this Agreement shall be interpreted in accordance with the following rules of construction: (a) The word "may" is permissive and the word "shall" is mandatory; and (b) except where the context reveals the contrary. The singular includes the plural and the plural includes the singular, and the masculine gender includes the feminine and neutral. B. Whenever used in the upper case in this Agreement, the following words shall have the following meanings: Agreement. This Economic Incentive Agreement. 2. Audit. Undertaken at the sole cost and expense of the Village, a review of the books and records of the Business by the Financial Consultant for the purpose of making a determination of the amount of Municipal Sales Tax the Village should have received under the terms of this Agreement and for the purpose of verifying Rohrman's compliance with the terms of this Agreement. 3. Business. All of the Expansion sales operations of Rohrman that occur on the Premises, including but not limited to, the sales (including the sales of parts), service and repair of Dodge automobiles and all associated Dodge operations. 4. Commencement Date. Februrary 1, 2008. 5. Expansion. The sale of all Dodge vehicles, including but not limited to Avenger, Caliber, Charger, Grand Caravan, Viper, Durango, Ram Trucks and Sprinter, conducted at the commonly known address of 925 West Dundee Road in Cook County, Buffalo Grove, Illinois. 6. Financial Consultant. The person, firm or corporation and agents thereof authorized by the Village to conduct an Audit, at the sole cost and expense of the Village, of the Business regarding all transactions occurring during any given Sales Tax Year following the date of this Agreement. 7. Gross Receipts. The term "Gross Receipts" shall have the same meaning as that which is ascribed to it in the Retailers' Occupation Tax Act. 8. Home Rule Sales Tax. The one percent (1 %) sales tax imposed in the Village pursuant to Village's Home Rule Sales Tax Ordinance No. 2004 -16 enacted in accordance with the Home Rule Municipal Retailers' Occupation Tax Act (65 ILCS 5/8- 11-1) and the Home Rule Municipal Service Occupation Tax Act (65 ILCS 5/8- 11 -5). Pursuant to the Home Rule Municipal Retailers' Occupation Tax Act, said tax shall not be imposed upon an item of tangible personal property titled or registered with an agency of the State of Illinois. 9. Municipal Sales Tax. That portion or component of the Sales Tax generated by the Business that the Village actually receives from the State of Illinois pursuant to the Village's Home Rule Sales Tax, the Retailers' Occupation Tax Act, the Service Occupation Tax Act, the Service Use Tax Act, and the Use Tax Act. 2 10. Municipal Sales Tax Payment. The payment to Rohrman of a portion of the Municipal Sales Tax that the Village is required to make pursuant to Section 3 of this Agreement. 11. Payment Date. Within one - hundred fifty (150) days after the end of each Sales Tax Year. 12 Premises. The real estate and structures located at the commonly known address 925 West Dundee Road, Cook County, Buffalo Grove, Illinois. 13. 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. 14. Sales Tax(es1. 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. 15. Sales Tax Year. The period of time commencing on the Commencement Date and ending on the date that is one year after the Commencement Date. 16. 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. 17. 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. 18. 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. 19. Village or Village of Buffalo Grove. The Village of Buffalo Grove, an Illinois municipal corporation and home rule unit as described in the Illinois Constitution. SECTION 3. MUNICIPAL SALES TAX PAYMENT. A. The Village shall pay Rohrman 50% of the Municipal Sales Tax generated from the Business on or before the Payment Date. B. Prior to any Municipal Sales Tax Payment, Rohrman shall provide the Village with copies of its Sales Tax returns, also referred to as ST -1, ST -2, ST -556, identifying the sales of the Business on the Premises. C. The amount due pursuant to this Agreement shall not be a general obligation of the Village. The Village shall not have an obligation to pay any amounts to Rohrman except an amount equal to the Village's local sales tax share actually received from Illinois Department of Revenue on account of the Business. E. In the event that any sales tax returns that have been submitted to the Village are amended, Rohrman shall promptly forward a photocopy of such amended sales tax returns to 3 a the Village, clearly identifying them as an amendment of a sales tax return previously submitted to the Village. F. Should Rohrman cease its Business at any time prior to January 31, 2009, then Rohrman shall reimburse the Village 200% of the Municipal Sales Tax Payments received pursuant to this Agreement. SECTION 4. 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 Rohrman 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 5. 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. Any claim or suit related to this Agreement shall be filed in the Circuit Court of Cook County. The prevailing party shall be entitled to recovery of its attorneys fees and costs. 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 non - breaching party. SECTION 6. TERM. A. 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 one year after the Commencement Date or (b) the date on which the Village has made all payments required pursuant to this Agreement. N SECTION 7. RELEASE OF INFORMATION. Prior to any payments by the Village of any sums as provided for in this Agreement, Rohrman shall cause to be delivered to the Village, on a monthly basis, the Illinois Retailers' Occupation Tax, Use Tax and Service Occupation Tax returns and /or other documentation submitted by Rohrman to the Illinois Department of Revenue, which detail the amount of Sales Tax that Rohrman paid to Illinois Department of Revenue with respect to the Business. If necessary, Rohrman shall provide the Village with a limited power of attorney, addressed to and in a form satisfactory to the Illinois Department of Revenue, authorizing the Illinois Department of Revenue to release to the Village all gross revenue and Sales Tax information submitted by Rohrman to the Illinois Department of Revenue. Additionally, in the event that the Illinois Department of Revenue does not make available to the Village said documentation, Rohrman shall provide alternative documentation that details the amount of Sales Taxes that Rohrman paid to the Illinois Department of Revenue. SECTION 8. GENERAL PROVISIONS. A. Complete Agreement; Supersedence. This Agreement constitutes the complete agreement of the parties regarding the payment of Municipal Sales Tax to Rohrman and shall supersede and nullify all prior drafts and agreements concerning the payment of Municipal Sales Tax to Rohrman. 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 Rohrman 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 & Zimmermann, LLC. 22 South Washington Park Ridge, Illinois 60068 For notices and communications to Rohrman: Mr. Robert V. Rohrman President The Bob Rohrman Auto Group 701 Sagamore Parkway South Lafayette, Indiana 47905 5 with a copy to: Mark J. Battista 1285 E. Dundee Road Palatine, II 60074 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. Rohrman shall and hereby agrees to defend, hold harmless and indemnify the Village, its President, Trustees, officers, shareholders, employees, agents and attorneys from and against any and all claims, demands, suits, damages, liabilities, losses, expenses, and judgments which may specifically arise out of the subject matter of this Agreement regarding sales tax refunds. The obligation of Rohrman 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 judgments specifically and only arising from the subject matter referred to in this Agreement concerning sales tax refunds. Rohrman 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. 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. N L. Counterparts identical counterparts and constitute the Agreement. . This Agreement may be executed in any number of multiple all of said counterparts shall, individually and taken together M. Assignment. Rohrman may not assign this Agreement or the amounts, in whole or part, to be paid hereunder without the Village's prior written consent. The Village acknowledges that this Agreement is an obligation which runs to Rohrman and is not a covenant running with the land. Notwithstanding the foregoing, in the event that Rohrman sells all of its assets, or the principals of Rohrman sells all or substantially all of their stock, and following the sale, the operations of the Business remain substantially the same and in conformance with all obligations of the Agreement, this Agreement will remain in full force and affect and Village will grant its approval of the Assignment of the Agreement. The assignee is bound by all of the terms and conditions of the Agreement. O. Audit. Upon prior written notice to Rohrman, and at a place and time that is mutually beneficial to both parties, the Village shall have the right conduct an Audit of Rohrman to inspect and review those books and records which are directly related to establishing Gross Receipts for any Sales Tax Year, Base Year, or any portion thereof. P. 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 (i) a restriction or prohibition on the Village from eliminating or amending it Home Rule Sales Tax, or (ii) a requirement to impose a sales or other tax for the purpose of providing a source of funds for the Municipal Sales Tax Payment. Q. Loss of Authority. In the event that the Village's authority to enter into this Agreement or to pay the Municipal Sales Tax Payment to Rohrman 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. R. Certifications. Each party hereto certifies hereby that it is not barred from entering into this Agreement as a result of violations of either Sections 33E -3 or 33E -4 of the Illinois Criminal Code (720 ILCS 5/33 —E -3, 5/33 -E -4), that it has a written policy against sexual harassment in place in full compliance with 775 ILCS 5/2- 105(A)(4), and it is in compliance with the Illinois Drug Free Workplace Act (30 ILCS 580/2). S. Franchise Replacement. Rohrman agrees to use its best efforts to obtain a replacement motor vehicle franchise for the Premises. Any franchise granted to Rohrman within the Relevant Market Area, as defined by the Illinois Motor Vehicle Franchise Act (815 ILCS 710/2), shall be located on the Premises (which Premises shall be considered the principal location). For purposes of this section, Rohrman shall include any affiliated entity of Rohr - Alpha, Inc. or any entity that Robert Rohrman has an interest in. Nothwithstanding the term of this Agreement, this section, "Franchise Replacement ", shall be valid for a period of ten years from the date of Commencement. 7 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. VILLAGE OF BUFFALO GROVE By: Village President ATTEST: �C tM'L4.Y�i� �31f Village k Its: STATE OF ILLINOIS ACKNOWLEDGEMENT 0 SS COUNTY OF COOK ) This instrument was acknowledged before me on 2 Z , 2008 by Elliott Hartstein, the Village President of the VILLAGE OF BUFFALO GROV , an Illinois home rule municipal corporation, and by Janet Sirabian, the Village Clerk of said municipal corporation. Signature of SEAL: My Commission expires: &MISSION FFICIAL SEAL" FAY RUBIN EXPIRES: 01/24/12 I ACKNOWLEDGEMENT STATE OF ILLINOIS ) SS COUNTY OF COOK ) This instrument was acknowledged before me on Fe -b ("�n-4 11 , 2008 by Robert V. hr, Y) the President of ROHR -ALPHA INC., an Illinois corporation, and by �Mci.rV— ;" , the (:4t, -eAoe- of said company. =PublicState l ton Notary of Illinois Sign ture of Notary s 1 211 91201 0 SEAL: My Commission expires: ) 2 -/6 - Zoi o 10