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HomeMy WebLinkAbout7000 & 7040 GOLF STATE OF ILLINOIS) ) SS COUNTY OF COOK ) I. Ed Ramos, Village Clerk for the Village of Morton Grove in the County of Cook, in the State of Illinois, do hereby certify that the following, hereinafter described, are true and correct copies of the original documents which are part of the records of my office as such Village Clerk: Resolution 13-71 Authorizing the Village to Enter into an Economic Incentive and Sales Tax Sharing Agreement with the McGrath Group/McGrath Audi Sales I hereby subscribe my name as Village Clerk and affix the Official Corporate Seal of the Village of Morton Grove, this 10th day of December 2013. z{;‘,:9411 lAktl-C- ED RAMOS, Village Clerk Legislative Summary I Resolution 13-71 I AUTHORIZING THE VILLAGE OF MORTON GROVE TO ENTER INTO AN ECONOMIC INCENTIVE AND SALES TAX SHARING AGREEMENT WITH THE MCGRATH GROUP/MCGRATH AUDI SALES Introduced: December 9,2013 Objective: To authorize and approve an economic incentive agreement for the construction of a new Audi Dealership at the property commonly known as 7000 and 7040 Golf Road. Purpose: The Audi Dealership will provide new jobs, substantial new property taxes, sales taxes and economic development for the Village.. Background: The McGrath Group/McGrath Audi Sales is under contract to purchase approximately seven acres of the current Kraft site located in Morton Grove and proposes to build a 60.000 square foot Audi new car dealership on the site. The construction of the Audi dealership will create temporary construction jobs. and once opened, will create permanent full and part time jobs.and will generate increased property taxes, increased sales taxes. and commercial synergy for other local businesses. McGrath is also in negotiations to open and operate an additional new car dealership on the propem, which would produce additional benefits for the Village and the community. In order to induce McGrath to purchase the dealership property, and to construct open and operate the Audi dealership,the Village and McGrath entered into a Letter of Intent whereby the Village will waive certain permit fees, contribute S250.000 to the construction costs. and share sales tax revenue generated by the Audi dealership as follows: the dealership will receive 75%of sales taxes paid to the Village for the first 10 years after the dealership opens up to a maximum of 55,000.000.00:thereafter,the dealership will receive 25% of the Village's share of sales taxes through the 20th full year of operation. If McGrath opens a second dealership on the site, it will receive 33%of the Village's sales taxes generated by the second dealership for the first tens years of operation.and 25%of the Village's sales taxes generated by the second dealership for the I] through 20°'year of operation. This resolution authorizes the Village to finalize an economic incentive agreement with McGrath consistent with these terms. Programs,Departs ( Finance Department,Village Administrator.and Legal Department or Groups Affected: Fiscal Impact: Unknown Source of Funds: The incentives bp g te sl p stomer. Additional property and alestax generated by the dealership will be allocated to the General Fund. Workload Impact: Corporation Counsel will coordinate the preparation of all appropriate documents as part of her normal workload. Admin Recommend: Approval as presented. Second Reading: Not Required Special Considerations or None Requirements: Administr. . • pproval f4�tt/- ✓ Ry1/2 .1. l46rne, Village Administrator Prepared by: Slat S Teresa H. •"Ltsto , orporation Counsel RESOLUTION 13-71 AUTHORIZING THE VILLAGE OF MORTON GROVE TO ENTER INTO AN ECONOMIC INCENTIVE AND SALES TAX SHARING AGREEMENT WITH THE MCGRATH GROUP/MCGRATH AUDI SALES WHEREAS, the Village of Morton Grove ("Village"), located in Cook County, Illinois. is a home rule unit of government under the provisions of Article 7 of the 1970 Constitution of the State of Illinois, can exercise any power and perform any function pertaining to its government affairs, including but not limited to the power to tax and incur debt: and WHEREAS, the McGrath Group and McGrath Audi Sales ("McGrath") are located at 301 Waukegan Road, Glenview, Illinois 60025; and WHEREAS. Hamilton Partners Group or its asignee is under contract to purchase property currently owned by Kraft Foods north of Golf Road, east of Harlem Avenue and west of Waukegan Road, and located partially in the Village of Glenview and partially in the Village of Morton Grove ("the Kraft site"); and WHEREAS, the portion of the Kraft site located in Morton Grove currently does not include any buildings or improvements other than parking lots.walking paths and landscaping: and WHEREAS. McGrath is under contract to purchase approximately seven acres of the Morton Grove portion of the Kraft site on or before December 16, 2013; and WHEREAS McGrath intends to build a 60,000 square foot Audi new car dealership ('the Audi dealership") on the site; and WHEREAS, the construction of the Audi dealership is expected to create temporary construction jobs, and once opened, the Audi Dealership is expected to create permanent full and part time jobs, and is expected to generate significant property taxes as well as significant sales taxes from new car and other dealership sales; and WHEREAS, McGrath is also in negotiations to construct, open and operate an additional new car dealership on the property: and WHEREAS.. If the Audi dealership is constructed and operated. the benefits to the Village will include: the creation of temporary and permanent full and part time jobs; increased property taxes,increased sales taxes, and increased commercial synergy for other local businesses; and WHEREAS, if McGrath constructs, opens, and operates an additional new car dealership on the Morton Grove portion of the Kraft site. the Village is expected to realize additional benefits; and WHEREAS, in order to induce McGrath to purchase the dealership property, and to construct open and operate the Audi dealership. on April 30, 2013, the Village and McGrath entered into a Letter of Intent with McGrath, a copy of which is attached hereto as Exhibit "A". WHEREAS,pursuant to the terms of the Letter of Intent,the Village agreed in concept to waive certain permit fees, share sales tax revenue generated by the Audi dealership, and provide certain other benefits: and WHEREAS, it is in the best interest of the Village to authorize Village staff to finalize a contract incorporating the Letter of Intent and to provide safeguards for the Village. NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MORTON GROVE, COOK COUNTY, AND ILLINOIS AS FOLLOWS: SECTION 1: The Corporate Authorities do hereby incorporate the foregoing WHEREAS clauses into this Resolution as though fully set forth therein thereby making the findings as hereinabove set forth. SECTION 2: The Village Administrator and Corporation Counsel are hereby' authorized to negotiate and the Village President and Village Clerk of the Village of Morton Grove are hereby authorized to execute a economic incentive and sales tax sharing agreement between the Village and the McGrath Group and McGrath Audi Sales ("McGrath") located at 301 Waukegan Road. Glenview. Illinois 60025. in substantial conformity with the terms and conditions set forth in the Letter of Intent dated April 30. 2013. a copy of which is attached hereto as Exhibit "A SECTION 3: The Village Administrator. Corporation Counsel and/or their designees are hereby authorized to prepare. execute. and deliver any documents or take any steps necessary to implement the economic incentive and sales tax sharing agreement. SECTION 4: This resolution is an exercise of the home rule authority of the Village of Morton Grove and is intended to the fullest extent allowed by the constitution of the State of Illinois, to be construed to supersede any contrary or conflicting state. county, or local rule or regulation. SECTION 5: This resolutions hall be in full force and effect from and after its passage. approval and publication according to law. PASSED this 9th day of December 2013. Trustee Grear Trustee Marcus Pietron /9 Ye- Trustee Thill RYE- Trustee Toth RYE-. Trustee Witko by me this 9t° day of December 2013. Daniel P. DiMaria. Village President Village of Morton Grove Cook County. Illinois APPROVED and FILED in my office this 10th da --,f December 2013. MOS-- Ed Ramos, Village Clerk Village of Morton Grove Cook County,Illinois EXHIBIT "A" dc ►r O � 'a, Village of oKorton grove Office of the Village Administrator April 30, 2013 Mr. Gary McGrath McGrath Group/McGrath Audi Sales 301 Waukegan Road Glenview, Illinois 60025 Re: Potential New Car Dealership(s) to be located within the corporate boundaries of the Village of Morton Grove: North of Golf Road, east of Harlem Avenue and west of Waukegan Road CONFIDENTIAL Dear Mr. McGrath: This correspondence follows up on our initial phone call of Thursday, November 15, 2012, and our subsequent conversations, including our meeting today,April 30, 2013. The Village understands you are negotiating to purchase a minimum of 7 acres currently owned by Kraft, located within Village of Morton Grove(the "Kraft property") It is our understanding once you have purchased this property you will relocate the McGrath Audi dealership franchise to this location. You are also considering the acquisition of an additional franchise for a new car dealership, not currently within the corporate boundaries of the Village of Morton Grove, and this newly acquired franchise will be moved to the Kraft Property. Furtherrnor,, the sales offices and facilities for both new car dealerships would be completely within the corporate boundaries of the Village of Morton Grove and you intend on acquiring IBT codes from the Illinois Department of Revenue with a location code specific to the Village of Morton Grove and all sales for both dealerships shall take place within and credited to the Village of Morton Grove. Before proceeding, you have asked the Village to provide you with a Letter of Intent setting forth the Village's proposed contributions and economic incentives for this development. These contributions and incentives would be available for the Audi dealership (referred to as the `Primary' dealership) and the additional new car dealership (referred to as the `Secondary'dealership) to be located adjacent to the Audi location. The Village staff and elected officials are very excited about this potential development. I have had the opportunity to personally speak with Village President Daniel J. Staackmann and each of the Board members. Based on the information provided to them at this time, they have expressed to me their support for providing incentives for the above-referenced development based on our discussions and similar to incentives previously negotiated between the McGrath Group and the Village of Glenview for a nearby site. Richard T. Flickinger Municipal Center 6101 Capulina Avenue • Morton Grove, Illinois 60053-2985 Tel: (847) 965-4100 Fax: (847) 965-4162 eb. �� We understand those incentives include the following: Respective to the Audi ("Primary")Dealership: 1. The Audi dealership will receive 75%of the Village's share of sales taxes collected for the first 10 full calendar years of operations, not to exceed $5,000,000; 2. If the $5,000,000 limit is reached during the first 10 full calendar years of operations, the share of sales tax shall decrease to 25% for the remaining years thru and including calendar year 20; 3. If the $5,000,000 limit is not reached during the first 10 full calendar years of operations, the share of sales tax will be decreased to 25% of the amount received by the Village for calendar years 11 thru 20; 4. The Village will waive all Village building permit fees; and 5. The Village will contribute up to $250,000 toward the McGrath Group's design and construction costs of the Audi dealership. Respective to any Additional("Secondary")Dealership: I. The secondary dealership will receive 33% of the Village's share of sales taxes collected for the first 10 full calendar years of operations; 2. The share of sales tax will be decreased to 25% of the amount received by the Village for calendar years 11 thru 20; Tax incentives will be paid 60 days after the end of every six (6) months for the previous six (6)months in arrears. For example, the payment for January 2014 thru June 2014 is expected to be made on August 30, 2014, and the payment for July 2014 thru December 2014 is expected to be made on February 28, 2015. If the State of Illinois delays the tax data or actual tax remittance to the Village, the payment would then be made as soon as administratively possible. These incentives would apply only to you, Gary McGrath, or your heirs and would not be transferable to a subsequent owner. Please understand while I have personally spoken to and have received a verbal commitment from the Mayor and each of the Trustees, the terms of this Letter of Intent, and any subsequent Redevelopment Agreement are subject to the formal approval of the Village Board of Trustees at an open Village Board meeting. We also agree to keep the terms set forth in this Letter of Intent confidential to the extent allowed by law. Again, the Village Board and I are excited about this potential development and look forward to working with you and your team to its successful conclusion. Should you have any questions, do not hesitate to contact me. Sincerely, , Y� Ryan J. Home Village Administrator Legal\real estate\mcgath\let of intent 04-30-13 /sl Cc: Village President Daniel J. Staackmann and the Village Board of Trustees Village Clerk Tony S. Kalogerakos Corporation Counsel Teresa Hoffman Liston At;TA:Isaffe tie T April 30, 2013 Mr. Gary McGrath McGrath Group/McGrath Audi Sales 301 Waukegan Road Glenview. Illinois 60025 Re: Potential New Car Dealership(s) to be located within the corporate boundaries of the Village of Morton Grove: North of Golf Road. east of Harlem Avenue and west of Waukegan Road CON Fl DENTIAL Dear Mr. McGrath: This correspondence follows up on our initial phone call of Thursday, November 15, 2012, and our subsequent conversations, including our meeting today, April 30, 2013. The Village understands you are negotiating to purchase a minimum of 7 acres currently owned by Kraft, located within Village of Morton Grove (the"Kraft property'') It is our understanding once you have purchased this property you will relocate the McGrath Audi dealership franchise to this location. You are also considering the acquisition of an additional franchise for a new car dealership, not currently within the corporate boundaries of the Village of Morton Grove, and this newly acquired franchise will be moved to the Kraft Property. Furthermore. the sales offices and facilities for both new car dealerships would be completely within the corporate boundaries of the Village of Morton Grove and you intend on acquiring IBT codes from the Illinois Department of Revenue with a location code specific to the Village of Morton Grove and all sales for both dealerships shall take place within and credited to the Village of Morton Grove. Before proceeding, you have asked the Village to provide you with a Letter ajbttenr setting forth the Village's proposed contributions and economic incentives for this development. These contributions and incentives would be available for the Audi dealership (referred to as the 'Primay'dealership) and the additional new car dealership (referred to as the 'Secondary' dealership) to be located adjacent to the Audi location. The Village staff and elected officials are very excited about this potential development. I have had the opportunity to personally speak with Village President Daniel .1. Staackmann and each of the Board members. Based on the information provided to them at this time, they have expressed to me their support for providing incentives for the above-referenced development based on our discussions and similar to incentives previously negotiated between the McGrath Group and the Village of Glenview for a neat-by site. Fi(-h_._hi(); f .t+ , .c 2ntk'. .., u t _ �,�1 We understand those incentives include the following: Respective to the Audi C Priumm'S Dealership: 1. The Audi dealership will receive 75% of the Village's share of sales taxes collected for the first 10 full calendar years of operations, not to exceed 55,000,000: 2. lithe 55,000,000 limit is reached during the first 10 full calendar years of operations, the share of sales tax shall decrease to 25% for the remaining years thru and including calendar year 20; 3. If the $5,000,000 limit is not reached during the first 10 full calendar years of operations, the share of sales tax will be decreased to 25% of the amount received by the Village for calendar years 1 I thru 20: 4. The Village will waive all Village building permit fees; and 5. The Village will contribute up to 5250,000 toward the McGrath Group's design and construction costs of the Audi dealership. Respective to ain:Additional (°Secondar •") Dealership: I. The secondary dealership will receive 33% ofthe Village's share of sales taxes collected for the first 10 full calendar years of operations: 2. The share of sales tax will be decreased to 25% of the amount received by the Village for calendar years 11 thru 20: Tax incentives will he paid 60 days after the end of every six (6) months for the previous six (6) months in arrears. For example, the payment for January 2014 thru June 2014 is expected to be made on August 30, 2014, and the payment for July 2014 thru December 2014 is expected to be made on February 23, 2015. If the State of Illinois delays the tax data or actual tax remittance to the Village, the payment would then be made as soon as administratively possible. These incentives would apply only to you, Gary McGrath, or your heirs and would not be transferable to a subsequent owner. Please understand while 1 have personally'spoken to and have received a verbal commitment from the Mayor and each ofthe Trustees, the terms of this Letter of Intent, and any subsequent Redevelopment Agreement are subject to the formal approval of the Village Board of Trustees at an open Village Board meeting. We also agree to keep the terms set forth in this Letter of Intent confidential to the extent allowed by law. Again, the Village Board and I are excited about this potential development and look forward to working with you and your team to its successful conclusion. Should you have any questions, do not hesitate to contact me. Sincerely, / / O Ryan J. Horne Village Administrator rcearreaI cstatenicenth`Aet of intent(14-1,0-13 sl Cc: Village President Daniel J. Staackmann and the Village Board of Trustees Village Clerk Tony S. Kalogerakos Corporation Counsel Teresa Hoffman Liston ECONOMIC INCENTIVE AND SALES TAX SHARING AGREEMENT BY AND BETWEEN THE MCGRATH GROUP/MCGRATH AUDI SALES AND THE VILLAGE OF MORTON GROVE, ILLINOIS THIS AGREEMENT is dated the day of 2013, and is by and between the VILLAGE OF MORTON GROVE, an Illinois municipal corporation and McGrath Group/McGrath Audi Sales. IN CONSIDERATION OF the recitals and the mutual covenants and agreements set forth in this Agreement, the Parties agree as follows: SECTION 1. RECITALS . The parties find and agree to the following: A. The Village of Morton Grove ("Village") is a home rule Illinois Municipal Corporation located in Cook County, Illinois and has the authority to enter into this Agreement pursuant to the provisions of Article VII, Section 10 of the State of Illinois Constitution, 1970, and pursuant to 65 RCS 5/8-11-20. B. The McGrath Group and McGrath Audi Sales ("McGrath") are organized pursuant to the laws of and are owned solely by Gary McGrath and are located at 301 Waukegan Road, Glenview, Illinois 60025. C. McGrath has demonstrated it meets high standards of creditworthiness and financial strength by providing evidence it has one or more of the following: 1. A corporate debenture ratings of BBB or higher by Standard & Poor's Corporation or Baa or higher by Moody's Investors Service, Inc; 2. A letter from a financial institution with assets of ten million dollars ($10,000,000) or more attesting to McGrath's financial strength; 3. Specific evidence of equity financing for not less than ten percent (10%) of the total project costs. D. recently purchased a seven (7)plus acre site north of Golf Road, east of Harlem Avenue and west of Waukegan Road and previously owned by Kraft, and located partially in the Village of Glenview and partially in the Village of Morton Grove ("the Kraft site"). E. The portion of the Kraft site located in Morton Grove is vacant and does not include any buildings or improvements other than parking lots, walking paths and landscaping. The total property taxes for the Morton Grove portion of the Kraft site for 2012 were $ F. Pursuant to Ordinance 13- , the Morton Grove portion of the Kraft site was subdivided into parcels. G. McGrath is under contract to purchase seven(7) plus acres of the Morton Grove portion of the Kraft site ("the dealership property") and expects to own the dealership property on or before December 31, 2013; H. McGrath proposes to build a 60,000 square foot new Audi vehicle dealership ("the Audi dealership") on the dealership property to be opened in approximately I. The construction of the Audi dealership is expected to create temporary construction jobs, and once opened, the Audi Dealership is expected to create permanent full-time and part-time jobs. J. Once opened, the Audi dealership is expected to generate in new vehicle sales and in other sales per year. K. McGrath is also in negotiations to construct, open and operate an additional new vehicle dealership on the dealership property. L. The construction and operation of the Audi dealership and the additional dealership will, in addition to creating and retaining jobs, will: 1. Generate property taxes which will benefit the Village, local schools, the Park District and the Library, 2. Generate substantial new retailer's occupational taxes ("sales taxes") and enhance the overall tax base of the Village, 3. Strengthen the commercial sector of the community; 4. Serve to further the development of the adjacent area; and 5. Be in the best interest of the Village. M. The Village finds and McGrath represents and warrants, that it requires economic assistance from the Village in order to commence and complete the construction of the Audi Dealership and the additional dealership, and that, but for said economic assistance, said construction as contemplated would not be economically viable, nor would the funds necessary for its commencement and completion be available. SECTION 2. MCG RATH'S OBLIGATIONS. A. Purchase of Property. McGrath shall complete the purchase of the dealership property on or before March 31, 2013. B. Permit Application for the Audi Dealership. Within thirty (30) days after the execution of this agreement, or the closing of the purchase of the dealership property, which ever occurs last, McGrath shall submit a proposed site plan and all application and supporting documents for zoning approval, necessary variations and appearance review for the Audi dealership, and will take all reasonable steps to obtain all necessary approvals without delay. Within ninety (90) days after receiving zoning approval, McGrath shall submit all documents required for building permits. 2 C. Construction and Opening of the Audi Dealership. McGrath shall commence construction of the Audi dealership within 14 days after receiving all necessary permits. The Audi Dealership shall be constructed substantially in accordance with the plans and specifications approved by the Village. McGrath shall complete construction and take all steps necessary to obtain a certificate of occupancy, and open and begin operating the Audi dealership within after the issuance of the building permits. D. Additional Dealership. In order to qualify for the additional incentives set forth in Section 3 paragraph E, McGrath shall, within twenty-four (24) months after opening the Audi dealership construct, open and begin operation of an additional new vehicle dealership. Said dealership shall be for a make of vehicle approved by the Village, the facility shall be at least square feet and the dealership shall be reasonably expected to generate in new vehicle sales and in additional sales. E. Sales. All sales from or relating to the Audi Dealership and if qualified pursuant Section 2 paragraph D, the additional dealership shall take place within the corporate limits of the Village, and McGrath shall obtain an IBT number/code from the Illinois Department of Revenue with a location code specific to the Village. To the extent allowed by law, all sales, including Internet sales of vehicles and products kept on the dealership property or sold by the Audi dealership or if qualified pursuant Section 2 paragraph D, the additional dealership shall be credited to the Village. F. Continued Operation. McGrath shall continue the full sale and service operations of the Audi dealership, and if qualified pursuant Section 2 paragraph D, the additional dealership or an equivalent dealership approved by the Village, on the dealership property for a period of not less than twenty (20) full calendar years after a certificate of occupancy has been issued for the respective dealership. G. Transfer of Interest. McGrath's rights under this Agreement are not assignable and may only be exercised by Gary McGrath or his heirs at law or any entity totally owned by Gary McGrath or his heirs at law. McGrath shall use its best efforts to fully and continuously operate the Audi dealership and if qualified pursuant Section 2 paragraph D, the additional dealership for at least twenty (20) years. In the event there is a change in the ownership (legal or beneficial) of the Audi dealership, or if qualified pursuant Section 2 paragraph D, the additional dealership, or any portion thereof, the Village's obligations under this Agreement shall terminate. H. Records. McGrath shall keep complete and accurate records of all sales, and shall allow the Village to inspect said records upon reasonable request. Said records shall not be considered Village records, shall be considered proprietary records of McGrath, and shall be kept confidential to the extent permitted by law, except as necessary in the event of a default. McGrath shall execute and provide the Village with a power of attorney (or other necessary document), in form and content reasonably acceptable to the Village which letter shall be addressed to the Illinois Department of Revenue and shall authorize the Illinois Department of Revenue to release any and all gross revenue and sales tax information on a monthly basis with respect to the operation of the Audi dealership or if qualified pursuant Section 2 paragraph D the additional dealership, and shall prepare and submit such other or additional forms as may be 3 required from time-to-time by the Illinois Department of Revenue in order to release such information to the Village. In the event the sales tax revenue information is not released by the State due to the failure of McGrath to execute the necessary authorization and/or release, the Village shall not be required to pay McGrath any sales tax rebate payments until the sales tax revenue information is released. I. Disclosures. McGrath shall, prior to the execution of this Agreement, furnish the Village with a statement disclosing the identity of all persons holding an ownership interest in the dealership property or the Audi dealership or additional dealership, and the percentage of such interest; said disclosure to be in a form reasonably satisfactory to the Village, and shall be updated by McGrath whenever there is a change in such ownership interest. McGrath shall also, upon request, provide the Village with all information needed to file all reports required by the Illinois Department of Revenue including, the reporting requirements of 65 ILCS 5/8-11-21. SECTION 3. VILLAGE'S OBLIGATIONS A. The Village will waive all Village building permit fees incurred during 2014, not including zoning or variance application and processing fees, sign application plan review fees paid to third parties, or actual out-of-pocket costs incurred by the Village. The Village will expeditiously review the site plan and required permit applications. B. The Village will provide a grant to McGrath of two hundred fifty thousand dollars ($250,000) for design and construction costs relating to the Audi dealership to be paid upon the issuance of the certificate of occupancy. C. The Village shall rebate to McGrath seventy-five percent (75%) of the sales taxes paid by the Audi Dealership's customers and actually received by the Village during the first ten (10) full calendar years after a certificate of occupancy is issued to the Audi Dealership or until the total sales taxes paid to McGrath pursuant to this Agreement equals five million dollars ($5,000,000), whichever occurs first. Thereafter, the Village shall rebate to McGrath twenty-five percent (25%) of sales taxes paid by the Audi Dealership's customers and actually received by the Village through the twentieth (20) full calendar year after a certificate of occupancy has been issued. D. Should McGrath construct, open, and operate an additional dealership on the dealership property as set forth in Section 2.D, the Village shall rebate to McGrath thirty-three percent (33%) of sales taxes paid by the additional dealership's customers and actually received by the Village during the first ten (10) full calendar years after a certificate of occupancy is issued to the additional dealership. Thereafter, the Village shall rebate to McGrath twenty-five percent (25%) of sales taxes paid by the additional dealership's customers and actually received by the Village from the eleventh (11) through the twentieth (20) full calendar year after a certificate of occupancy has been issued. E. For purposes of this Agreement, the term "sales tax" means the net portion of taxes imposed by the State of Illinois for distribution to the Village pursuant to the Retailer's Occupation Tax Act 4 and the Service Occupation Tax Act (as said Acts may be amended from time-to-time) and which are collected by the State and distributed to the Village, and all revenue derived from such taxes. It is expressly understood if a governmental or legislative body other than the Village enacts any law or statute which results or which may result in any material changes or amendments to the foregoing sales tax provisions, which changes or amendments prohibit the Village from complying with this Agreement or which adversely affect the Village's ability to comply herewith, then the Village and McGrath shall reevaluate this Agreement and the incentives provided hereunder and may mutually agree to restructure the Agreement. It is acknowledged and understood by and between the parties hereto that the Village receives sales tax revenue monthly, and the taxes generated by sales in any one month are distributed to the Village approximately three months later (e.g. taxes generated by sales in July are generally not received by the Village until October). F. The manner in which sales taxes to be rebated is determined as follows: G. Sales tax rebates shall be paid semi-annually, typically on June 30 and December 31 of each year. The June payment shall be for sales taxes actually received by the Village during the preceding November through April period, and the December payment shall be for sales taxes actually received by the Village for the preceding May through October period. It is understood each sales tax rebate payment will be due and payable solely from the proceeds of sales tax revenue received by the Village from the Audi dealership or if qualified pursuant to Section 2, paragraph D, the Additional Dealership. H. The Village shall comply with the requirements of 65 ILCS 5/8-11-21 and, within thirty (30) days after the execution of this Agreement, file a report to the Department of Revenue stating all required information including the parties to this Agreement, the location of the dealership property, a statement affirming McGrath maintains additional places of business in the State, the manner in which the amount of any retailers' occupation tax to be shared, rebated, or refunded is to be determined each year for the duration of the Agreement, and the name of any business which is not a party to the Agreement but is directly or indirectly receiving a share, refund, or rebate of the retailers' occupation tax, and copy of the Agreement. An updated report will be filed within thirty (30) days after the execution of any amendment to this Agreement. SECTION 4. DEFAULT A. Breach. In the event of breach of any of the terms and conditions of the Agreement, the nonbreaching party shall have the right to terminate this Agreement, which will not relieve the breaching party from performance. 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, and may be awarded damages or specific performance, or both. The breaching party shall pay the non-breaching party's attorneys' fees, court costs and related expenses. Nothing herein shall modify, limit or abrogate any right of the Village to reimbursement as provided in Section 4, Paragraphs B-D of this Agreement. 5 B. In addition, if, at any time prior to the end of the twentieth (20) full calendar year after a certificate of occupancy has been issued for the Audi dealership McGrath fails to offer automotive sales of new Audi automobiles for a continuous period in excess of thirty (30) days, unless that failure was caused by a strike, act of war, natural disaster, or manmade disaster not caused directly or indirectly by McGrath ("reimbursement event"), then the Village shall be released and discharged from any further obligations under this Agreement to make sales tax rebate payments relating to sales from the Audi Dealership, and McGrath shall reimburse the Village in accordance with Section 4. Paragraph E. C. If, at any time prior to the end of the twentieth (20) full calendar year after a certificate of occupancy has been issued for the additional dealership. McGrath fails to offer automotive sales of new automobiles for the make approved for the additional dealership, for a continuous period in excess of thirty (30) days, unless that failure was caused by a strike, act of war, natural disaster, or manmade disaster not caused directly or indirectly by McGrath ("reimbursement event"), then the Village shall be released and discharged from any further obligations under this Agreement to make sales tax rebate payments relating to sales from the additional dealership, and McGrath shall reimburse the Village in accordance with Section 4, Paragraph E. D. Reimbursement Schedule. 1. If a reimbursement event occurs before the end of the fifth (5) full calendar year after a certificate occupancy has been issued for the dealership, McGrath shall reimburse the Village all-one hundred percent (100%) of any sales tax rebates paid to McGrath from the Village for sales from that dealership pursuant to this Agreement. 2. If a reimbursement event occurs after the end of the fifth (5) full calendar year but before the end of the tenth (10) full calendar year after a certificate of occupancy has been issued for the dealership, McGrath shall reimburse the Village seventy-five percent (75%) of any sales tax rebates paid to McGrath from the Village for sales from that dealership pursuant to this Agreement. 3. If a reimbursement event occurs after the end of the tenth (10) full calendar year but before the end of the twentieth (20) full calendar year after a certificate occupancy has been issued for the dealership, McGrath shall reimburse the Village twenty-five percent (25%) of any sales tax rebates paid to McGrath from the Village for sales from that dealership pursuant to this Agreement. 4. Reimbursement payments shall be due within sixty (60) days after the occurrence of the reimbursement event, and after the Village gives McGrath at least thirty (30) days notice of its demand for reimbursement. E. A party who defaults on a material provision of this Agreement shall, in addition to the remedies listed above, pay the non-defaulting party's costs, including reasonable attorneys and collection fees. 6 F. No delay or omission of any party in the exercise of any right occurring upon any default of any other party shall impair any such right or be construed to be a waiver thereof and any such right may be exercised at any time during the continuance of such default. A waiver by any party of a breach of or default in any of the terms or conditions of this Agreement by any other party shall not be construed to be a waiver or any subsequent breach or default in the same or any other provision of this Agreement. SECTION 5. GENERAL PROVISIONS. A. Notice. Any notice or communication required or permitted to be given under this Agreement shall be in writing and shall be delivered (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid, (iv) by facsimile, or (v) by electronic internet mail ("e-mail"). Facsimile notices shall be deemed valid only to the extent they are (a) actually received by the individual to whom addressed and (b) followed by delivery of actual notice in the manner described in either (i), (ii), or (iii) above within three (3) business days thereafter at the appropriate address set forth below. E-mail notices shall be deemed valid only to the extent they are (a) opened by the recipient on a business day at the address set forth below. Uunless otherwise provided in this Agreement, notices shall be deemed received after the first to occur of(a) the date of actual receipt; or (b) the date that is one (1) business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (b) the date that is three (3) business days after deposit in the U.S. mail, as evidenced by a return receipt. By notice complying with the requirements of this Section, each party to this Agreement shall have the right to change the address or the addressee, or both, for all future notices and communications to them, but no notice of a change of addressee or address shall be effective until actually received. Unless specifically directed otherwise in writing by the Village Administrator, notices and communications to the Village shall be addressed to, and delivered at, the following address: The Village of Morton Grove 6101 Capulina Ave Morton Grove IL 60053 ATTN: Village Administrator rhorne(cimortongroveil.org 847-965-4162-fax with a copy to: Teresa Hoffman Liston, Corporation Counsel Village of Morton Grove 6101 Capulina Avenue, Morton Grove, IL. 60053 tliston Jmortongroveil.org 847-965-4162-fax Notices and communications to McGrath shall be addressed to, and delivered at, the following address: with a copy to: B. Time is of the Essence. Time is of the essence in the performance of this Agreement. C. Rights Cumulative. Unless expressly provided to the contrary in this Agreement, each and every one of the rights, remedies, and benefits provided by this Agreement shall be cumulative and shall not be exclusive of any other rights, remedies, and benefits allowed by law. D. Prevailing Wage. The Village hereby notifies McGrath work contemplated by this Agreement may be subject to the Prevailing Wage Act 820 ILCS 130/1 et seq. McGrath agrees to comply with all applicable provisions of the Illinois Prevailing Wage Act as administered by the Illinois Department of Labor (IDOL). McGrath further agrees to contact IDOL for a determination of applicability of the Prevailing Wage Act to the projects contemplated by this Agreement. If required by IDOL, McGrath agrees to pay the prevailing wage rates and to require all of its subcontractors pay prevailing wages to any laborers, workers, or mechanics who perform construction work contemplated by this Agreement. McGrath recognizes and agrees it is solely responsible for compliance with the Prevailing Wage Act and agrees to fully indemnify, defend and hold harmless the Village pursuant to Section with regard to any actions or proceedings instituted regarding such compliance. E. Indemnification. McGrath shall indemnify and hold harmless the Village from any and all legal proceedings instituted by a third party or parties against the Village and/or McGrath, which relate to the terms of this Agreement. Upon receiving notice from the Village of such legal proceedings, McGrath shall assume, fully and vigorously, the entire defense of such lawsuit or proceedings and any and all costs and expenses of whatever nature relating thereto; provided, however; McGrath may not at any time settle or compromise such proceedings without the Village's consent and even then only so long as such settlement or compromise does not involve an admission of wrongdoing on the part of the Village, nor any liability on the part of the Village, monetary or otherwise. If the Village, in its sole discretion, determines there is, or may probably be, a conflict of interest between the Village and McGrath on an issue of material importance to the Village, or which may reasonably have a potentially substantial adverse effect on the Village, then the Village shall have the option of being represented by its own legal counsel. In the event the Village exercises such option, then McGrath shall reimburse the Village from time-to-time on written demand from the Village and notice of the amount due for any and all reasonable out-of-pocket costs and expenses, including but not limited to court costs, reasonable attorney's fees, witnesses' fees and/or other litigation expenses incurred by the Village in connection therewith. 8 F. Governing Law. This Agreement shall be governed by, and enforced in accordance with the internal laws of the State of Illinois. G. Severability. It is hereby expressed to be the intent of the parties should any provision, covenant, agreement, or portion of this Agreement or its application to any person or property be held invalid by a court of competent jurisdiction, the remaining provisions of this Agreement and the validity, enforceability, and application to any person or property shall not be impaired thereby, but the remaining provisions shall be interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of this Agreement to the greatest extent permitted by applicable law. H. Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes any and all prior agreements and negotiations between the parties, whether written or oral, relating to the subject matter of this Agreement. I. Interpretation. This Agreement shall be construed without regard to the identity of the party who drafted the various provisions of this Agreement. Moreover, each and every provision of this Agreement shall be construed as though all parties to this Agreement participated equally in the drafting of this Agreement. As a result of the foregoing, any rule or construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. J. Amendments and Modifications. No amendment or modification to this Agreement shall be effective until it is reduced to writing and approved and executed by all parties to this Agreement in accordance with all applicable statutory procedures. K. No Third Party Beneficiaries. No claim as a third party beneficiary under this Agreement by any person shall be made, or be valid, against the Village or McGrath. L. Not a Joint Venture. Nothing in this Agreement shall be construed to make the parties hereto partners or joint ventures or render either of said parties liable for the debts or obligations of the other. M. Construction. This Agreement shall not be construed more strongly against any party regardless of who is responsible for its preparation. IN WITNESS WHEREOF, the parties have thereto set their hands on the date first above written. 9 THE VILLAGE OF MORTON GROVE, an Illinois municipal corporation ATTEST: By: Daniel P. DiMaria, Village President Ed Ramos, Village Clerk MCGRATH GROUP/MCGRATH AUDI SALES By: Legal\real estate\megrath audi\mcgrath sales tax sharing agreement 10