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HomeMy WebLinkAbout25B - AGMT - SALES TAX REBATE VOLVOREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: OCTOBER 20, 2015 TITLE: SALES TAX REBATE AGREEMENT WITH VOLVO OF ORANGE COUNTY {STRATEGIC PLAN NO. 3,3C) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1e1 Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a sales tax rebate agreement with SSF, INC., doing business as Volvo of Orange County for a 50 percent rebate of the increase in new sales tax generated by the dealer above a base year up to total maximum amount of $1,000,000 over a 10 -year period, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Sales tax rebate assistance is an economic development tool used to encourage the development or expansion of new businesses that create additional sales tax for a City. The City was recently approached by Volvo of Orange County, one of the Santa Ana Auto Mall dealerships, to consider a sales tax rebate assistance agreement to help fund their facility upgrade. The Volvo Group Global, the corporate office of Volvo of Orange County has requested dealerships to complete a remodel (interior and exterior) of their facilities to reposition themselves within the automotive market. Enhancements to the Auto Mall should be supported by the City to keep it competitive and state of the art. The remodel of the facility is estimated to cost $2.5 million dollars and will take approximately six months to complete. With the agreement to remodel, Volvo of Orange County will receive an increase in the allocation of newly designed and highly desired new vehicles for their location. It was indicated that if the facility upgrade did not occur, Volvo of Orange County would be at a competitive disadvantage as compared to other Volvo dealerships in the region. Currently, Volvo of Orange County is one of the top 50 sales tax generators for the City, while other dealers in the Auto Mall are in the top 10. Since 2011, Volvo of Orange County saw a nine percent decrease in sales, while other dealers experienced considerable increases in their sales. Improvements to their facility will only enhance their prosperity for the future. 2513-1 Sales Tax Rebate Agreement - Volvo of Orange County October 20, 2015 Page 2 The terms of the proposed agreement provide that the City will rebate a maximum of $1,000,000 over a 10 -year term. The dealer will receive 50 percent rebate of the increase in sales tax generated by the dealer above a base year (July 1, 2015 — June 30, 2016) up to $1,000,000 or 10 years, whichever comes first. Volvo of Orange County will only receive a portion of the increase in the sale tax revenue that this specific dealership generates. Therefore, existing revenues will not be impacted by this agreement. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 Economic Development, Objective #3, (Promote a solutions -based customer focus in all efforts to facilitate development and investment in the community), Strategy C (Explore opportunities to encourage a business friendly environment within the City through the reduction of non - essential regulatory requirements, improved coordination between agencies for development review and addition of monetary incentives). FISCAL IMPACT The annual sales tax rebate amount is to be determined per the conditions and terms of the agreement. Payment amounts will be budgeted in future fiscal years and will not exceed $1,000,000 or ten years, whichever is earlier. During the fiscal year the expenditure is incurred, revenues and expenses will be recorded in the following accounts: Revenue: Sales Tax Rebate Agreement — 01102002 -50025 • Recognizing 50 percent of rebate in new sales tax generated over the defined base year Expense: Sales Tax Rebate Agreement — 01118825 -62300 Recording payment of rebate to the above - referenced auto dealer Kelly Reend f#s V �k^ Executive Di ctor Community Development Agency KR/MM /II Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez SIR, Executive Director Finance and Management Services Agency 25B -2 EXHIBIT 1 SALES TAX REBATE AGREEMENT This SALES TAX REBATE AGREEMENT ( "Agreement ") is made and entered into this 20'h day of October, 2015, by and between SSF, INC., doing business as VOLVO OF ORANGE COUNTY, a California corporation ( "Volvo "), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS A. Sales tax rebate assistance is an economic development tool used to encourage the development or expansion of new businesses that create additional sales tax for a City. The purpose of this Agreement is to help offset some of the building costs and to increase sales by increasing vehicle allocation from Volvo Cars North America as a result of Volvo of Orange County meeting the new facility requirements and not as dividends to stock holders. B. The City was recently approached by Volvo, one of the Santa Ana Auto Mall dealerships, to consider a sales tax rebate assistance agreement to help fund their facility upgrade. The Volvo Group Global, the corporate office of Volvo of Orange County, has requested dealerships complete a remodel, both interior and exterior, of their facilities to reposition themselves within the automotive market. Enhancements to the Auto Mall should be supported by the City to keep it competitive and state of the art. C. The remodel of the facility is estimated to cost $2.5 million dollars and will take approximately six months to complete. With the agreement to remodel, Volvo will receive an increase in the allocation of newly designed and highly desired new vehicles for their location. It was indicated that if the facility upgrade did not occur, Volvo would be at a competitive disadvantage as compared to other Volvo dealerships in the region. D. Currently, Volvo is one of the top 50 sales tax generators for the City, while other dealers in the Auto Mall are in the top 10. Since 2011, Volvo saw a nine percent decrease in sales, while other dealers saw increases in their sales. Improvements to their facility will only enhance their prosperity for the future. E. The proposed agreement for consideration is to reimburse 50 percent of the new sales tax generated above the base year (July 1, 2015 — June 30, 2016) up to $1 million dollars, or 10 years, whichever comes first. For the remodel, the Volvo Group Global has committed to pay $500,000, while Volvo of Orange County will pay $1 million dollars for their facility upgrade. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. DEFINED TERMS. The following terms when used in this Agreement shall have the meanings set forth below: "Base Year" shall mean July 1, 2015, through June 30, 2016 �y_g' "City Consideration" shall mean the amounts to be paid by City to Volvo for Volvo's conduct of the Required Operations during the Operating Period. The City Consideration for the Operating Period is to reimburse Volvo each Contract Year fifty percent (50 %) of the new sales tax generated in the City from the Required Operations above the base year, up to one - million dollars ($1,000,000.00), or ten (10) years, whichever comes first. "Commencement Date" shall mean the date on which Volvo completes its facility remodel and upgrade, as set forth in a written notice from Volvo to the City. The parties anticipate that such work will take approximately six (6) months to complete. "Contract Year" shall mean the period from July 1 to June 30 during each year of the Operating Period. For the purposes of this Agreement, the first Contract Year ends on June 30, 2017. "Covered Parties" shall mean the City and its elected and appointed boards; members, officials, officers, agents, representatives, employees and volunteers, "Effective Date" shall mean the date first written on page 1 of this Agreement. "Operating Period" shall mean the period commencing as of the Commencement Date, and continuing until and expiring after ten (10) years; provided, however, that Volvo may terminate this Agreement for any reason, or no reason, at any time upon one hundred and eighty (180) days' written notice to the City, "Required Operations" shall collectively refer to the following on and with respect to Volvo conducting its automotive retail sales and service operations in the City: (1) Volvo retaining and continuing to own or lease sufficient facilities in the City to allow the automotive retail sales and service operations to be conducted; (ii) Volvo's operation of the automotive retail sales and service operations within the corporate boundaries of the City; and (iii) Volvo not transferring or otherwise relocating the automotive retail sales or service operations as reported to the State Board of Equalization to another facility or location outside of the City. "Sales Tax(es)" means that portion of taxes that is allocated, paid to, and actually received by City from the imposition of the Bradley -Burns Uniform Sales and Use Tax law (commencing with Section 7200 of the California Revenue and Taxation Code), or any successor law thereto, arising from all taxable sales transactions, occurring from Required Operations conducted by Volvo within the City during the Operating Period. "Sales Tax" shall not include sales tax revenues that are provided to a city based upon a special election and are limited to be used for a specified governmental function or functions. "Sales Tax Reports" shall include, for each Contract Year: (1) a statement identifying the amount of Sales Tax paid by Volvo from Required Operations within the City during the Contract Year; and, (ii) copies of all statements and reports filed with the State Board of Equalization. "Termination Date" shall occur upon the payment of one- million dollars ($1,000,000.00) In City Consideration from City to Volvo, or ten (10) years after the Commencement Date, whichever comes first, subject to extension or earlier termination of the Operating Period as set forth in this Agreement. 25B -4 2. VOLVO OBLIGATIONS, 2.1 Operating Agreement Continuous Operation. Volvo hereby covenants and agrees to continuously conduct or cause to be conducted Required Operations within the City during the entire Operating Period. Such continuous operations shall be subject to the force majeure provisions of Section 5.11 hereof. 2.2 Maximization of Sales Tax. At all times during the Operating Period, Volvo shall designate its dealership and sales office in the City as the point of sale for sales and use tax purposes in all automotive retail sales and service operations that originate from within the City. 2.3 Payment of Taxes. Volvo shall pay or cause to be paid any and all taxes applicable to or arising out of Volvo's lease, operation and /or use of its dealership and sales office in the City, including, without limitation, all taxes attributable to sales occurring at such office, except that Volvo retains its right to protest and contest County of Orange decisions related to the value of its interest in any property or leasehold. Volvo shall make or cause to be made timely sales and use tax payments to the State Board of Equalization, except that Volvo retains its right to protest and contest State Board of Equalization assessments or decisions that Volvo believes to be erroneous. 2.4• Compliance with Laws. Subject to Volvo's right to contest same, Volvo shall conduct or cause to be conducted all activities within the City and shall perform its obligations under this Agreement in conformity with all applicable federal, state, and local laws, ordinances, and regulations. Nothing in this Agreement is a representation or warranty by City that any tenant improvement or other construction work performed by Volvo within the City on or after the date of this Agreement is not a public work as defined in Labor Code Sections 1720, et seq., including but not limited to Sections 1771 and 1781. 3. CITY CONSIDERATION PAYMENTS, 3.1 Payment of City Consideration to Volvo. 3.1.1 Calculation of City Consideration. In consideration for Volvo's undertakings pursuant to this Agreement, City shall make payments of City Consideration to Volvo after the end of each Contract Year, as follows: 3.1.1.1 Subject to Paragraph 3.1,1.2 below, for Required Operations conducted by Volvo in the Operating Period, City shall pay Volvo the City Consideration based on the actual net amount of Sales Tax directly received by the City from the State Board of Equalization during that Contract Year. Subject to the terms of Section 3.1.2, the payment of City Consideration for each Contract Year shall be made in a single lump sum payment within one hundred and twenty (120) days following the end of that Contract Year. 3.1.1.2 City Consideration shall be payable from any source of funds legally available to City. In this regard, it is understood and agreed that the Sales Tax from Volvo's Required Operations in the City is being used merely as a measure of the amount of City Consideration payments that are periodically owed by City to Volvo, and that City does not and legally cannot pledge any portion of that Sales Tax to Volvo. 25B -5 3.1.2 Payment Procedure. 3.1.2.1 After the end of each Contract Year, and no later than one hundred and twenty (120) days after Volvo's payment of the Sales Tax to the State Board of Equalization for that Contract Year, Volvo shall submit to City the Sales Tax Reports for the preceding Contract Year and a written request for payment of the City Consideration owing to Volvo. Any delay shall not constitute either a breach of this Agreement or a waiver of Volvo's right to receive the City Consideration under this Agreement, but may result in a delay in the City's payment of City Consideration to the extent that such delay by Volvo causes the City to be unable to meet its payment obligations in a timely manner. 3.1.2.2 Payment of the amount determined by City to be owing to Volvo for each Contract Year shall be made by City within one hundred and twenty (120) days after the later of the following: (1) Volvo's submission of its completed payment request; and (ii) City's verification, based upon corroborating information provided to City by either the State Board of Equalization and /or a sales tax consultant retained by City, that City has received the Sales Tax attributable to sales from all Required Operations within the City for the applicable Contract Year. Any disapproval by City of a Volvo payment request shall state in writing the reasons for disapproval and shall be provided to Volvo within fifteen (15) days after City has received information necessary to make the determination that the payment request cannot be approved. City agrees to expeditiously process Volvo's requests for payment of City Consideration. Volvo expressly understands that nothing contained in this Agreement shall obligate or otherwise commit City to pay the City Consideration for a Contract Year unless and until City receives reasonably satisfactory verification that City has received the Sales Tax attributable to sales from the Required Operations in the City for that Contract Year. 3.1.2.3 In the event that the State Board of Equalization conducts a review or audit of Volvo's Required Operations or Sales Tax payments during the Operating Period that results in an actual and final loss or reduction of monies that City has already paid to Volvo as City Consideration for one or more Contract Years, or in the event that Volvo amends any sales tax returns that causes a reduction in the Sales Tax due to the City for one or more Contract Years, Volvo shall, within thirty (30) days of its -receipt of written notice by the City, return that portion of the City Consideration attributable to the monies that were lost or reduced. In the event that the State Board of Equalization conducts a review or audit of Volvo's Required Operations or Sales Tax payments during the Operating Period that results in an increase of Sales Tax that Volvo must pay for one or more Contract Years, or in the event that Volvo amends any sales tax returns that causes an increase in the Sales Tax due for one of more Contract Years, Volvo shall inform the City and the City shall commensurately increase the City Consideration paid by Volvo. The provisions of this paragraph shall survive the termination of this Agreement. 3.124 The parties acknowledge that certain payments of Sales Tax received by City may be based on estimates and that such amounts will be periodically reduced or increased by the State Board of Equalization to reflect the actual amount of Sales Tax owed to City. The City Consideration payments shall be adjusted accordingly as necessary to conform to such reconciliations. The adjustment shall be made within sixty (60) days through a payment by Volvo to City in the case of an overpayment to Volvo, or a payment by City to Volvo in the case of an underpayment to Volvo. Within thirty (30) days of a written request by Volvo, the City shall provide Volvo with documentation to substantiate the adjustment of the City Consideration payment(s). r 3.1.2.5 Within ninety (90) days following the end of each Contract Year, the City may conduct an accounting of all of Volvo's Sales Tax Reports and Sales Tax payments during the immediately preceding Contract Year, and the amount of the City Consideration payments made to Volvo during that immediately preceding calendar year. However, the City may also conduct such an accounting at any time by giving thirty (30) days written notice in the event that facts or circumstances arise, such as change in operations, change of ownership or business entity status, which can impact the method or amount of Volvo's Sales Tax Reporting or Payments. The City shall provide Volvo a copy of that accounting and reconciliation upon its completion. In the event that the accounting and reconciliation identifies a disparity between the Required Operations, Volvo's Sales Tax payments, or City Consideration during that immediately preceding calendar year, appropriate adjustments shall be made within sixty (60) days by a payment from Volvo to City in the case of an overpayment to Volvo, or a payment from City to Volvo in the case of an underpayment to Volvo. 3.1.3 No Acceleration. It is acknowledged by the parties that any payments by City provided for in this Agreement may only be paid for those periods in which City receives the performance of Volvo pursuant to this Agreement. Therefore, the failure of City to make any payments or the failure by City to perform any of its other obligations hereunder shall not cause the acceleration of any anticipated future City Consideration payments by City to Volvo. 3,2 Conditions Precedent to City's Obligations. City's obligation to perform hereunder, including without limitation its obligation to pay the City Consideration pursuant to Section 3.1 of this Agreement, shall be contingent and conditional upon Volvo's full and satisfactory performance of its obligations set forth in this Agreement. Notwithstanding the foregoing, any delay by Volvo in sending reports or other information to the City, or the existence of inadvertent errors in reports or information sent by Volvo to the City, shall not constitute either a breach of this Agreement or a waiver of Volvo's right to receive the City Consideration payable under this Agreement. However, such delay or error by Volvo may result in a delay in the City's payment of City Consideration to Volvo to the extent that such delay or error by Volvo causes the City to be unable to meet its payment obligations on a timely basis. 3.3 Disclosure of Payments. Volvo agrees that the City Consideration payments and the amounts thereof do not constitute a violation of Revenue and Taxation Code Section 7056 or any other provision of law pertaining to the disclosure of sales tax information, shall be a matter of public record, may be disclosed to any person, and may be included on the City's warrant register. Volvo waives any law that is contrary to any of the agreements in this Section 3.3. 3.4 City Facilitation of Site Improvements. The City shall take commercially reasonable steps to expedite the review and processing of building permits, certificates of occupancy and final instruction, and other permits, approvals and entitlements needed by Volvo in connection with the remodel of its facility. 4. TERMINATION RIGHTS. 4.1 City Termination Rights. Subject to the force majeure provisions of Section 5.11 below, City shall have the right to terminate this Agreement if, following the Commencement Date, Required Operations are not conducted within the City for a period of ninety (90) consecutive days. 25B-% 4.2 Volvo Termination Rights. Volvo may terminate this Agreement for any reason, or no reason, upon one hundred and eighty (180) days written notice to the City. 4.3 Mutual Termination Rights. City makes no representation or warranty to Volvo as to the legality of the City Consideration payments or the City's authority to make such payments. In the event that a final, non - appealable judgment or decree is rendered against City invalidating its payment obligations set forth in this Agreement, either City or Volvo may terminate this Agreement by delivery of written notice of termination to the other party. GENERAL PROVISIONS, 5.1 Entire Agreement, and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to the subject matter hereof. Any amendment or modification to this Agreement must be in writing and executed by Volvo and City. 5.2 Limitations on City's Liability. Volvo acknowledges and agrees that: 5.2.1 The relationship between Volvo and City pursuant to this Agreement is and shall remain solely that of contracting parties, and City neither undertakes nor assumes any responsibility pursuant to this Agreement to review, inspect, supervise, approve, or inform Volvo of any matter in connection with this Agreement or the Required Operations; 5.2.2 City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property, except to the extent proximately caused by City's active negligence or intentional misconduct, resulting or in any way arising from: (a) any defect in any building, grading, landscaping, or other onsite or offsite improvement; (b) any act or omission of Volvo or any of Volvo's agents, employees, independent contractors, licensees, sub lessees or invitees; or (c) any accident at the Volvo facility, or any fire or other casualty or hazard thereon; and 5.2.3 By accepting or approving anything required to be performed or given to City under this Agreement, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 5.3 Interpretation; Governing Law; Venue. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California, without regard to conflict of law principles. All legal actions must be instituted and maintained in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that County. 5.4 Severability. If any term, provision, Agreement, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. 5.5 Binding Effect; Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. r 5.6 No_ tices. All notices and other communication required under this Agreement shall be in writing and shall be delivered by either: (1) personal delivery, (ii) reliable courier service that provides a receipt showing date and time of delivery, (iii) registered or certified U.S. Mail, postage prepaid, return receipt requested, or (iv) facsimile. Notices shall be addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other party hereto: To City: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: City Manager Facsimile: (714) 647 -6954 To Volvo: SSF, Inc., dba Volvo of Orange County 1400 South Dan Gurney Drive Santa Ana, CA 92705 Attention: James Speck, President Facsimile: (714) 480 -9533 Each notice shall be deemed delivered on the date delivered if by personal delivery or by overnight courier service, on the date of receipt as disclosed on the return receipt if by mail, or on the date of transmission with confirmed successful transmission and receipt if by facsimile. By giving to the other party written notice as provided above, the parties to this Agreement shall have the right from time to time, and at any time during the term of this Agreement, to change their respective addresses or contact persons. 5.7 Representations and Warranties. As a material inducement to City's entry into this Agreement, Volvo represents and warrants to City that (1) Volvo has the full power and authority to enter into and perform under this Agreement; and (ii) all authorizations and approvals required to make this Agreement binding upon Volvo have been duly obtained. As a material inducement to Volvo's entry into this Agreement, City represents and warrants to Volvo that, subject to and limited by the provisions of Section 5.2: (1) City has the full power and authority to enter into and perform under this Agreement; and, (ii) all authorizations and approvals required to make this Agreement binding upon City have been duly obtained. 5.8 Litigation Expenses. If either of the parties institutes any legal action against the other in connection with any controversy related to, concerning or arising out of this Agreement, or any facts based upon or involving this Agreement, then the prevailing party, whether in court, through mediation, arbitration or by way of out -of -court settlement, shall be entitled to recover from the non - prevailing party such prevailing party's reasonable attorneys' fees, court costs, expert witness fees and other expenses relating to such controversy, including such fees, costs and expenses on appeal, if any; and the arbitrator(s), if any, is hereby authorized to make such an award to the prevailing party in arbitration. 5.9 Termination. In the event this Agreement terminates, no termination shall release any party in default and this Agreement shall survive for purposes of allowing a party to enforce its rights and remedies under this Agreement in the event of a default, including without limitation the provisions of Section 4.3. All indemnification provisions and any other provision r • that by its nature cannot be performed during the term of this Agreement shall survive the termination of this Agreement. 5.10 Defense of Third Party Claims. To the fullest extent permitted by law, Volvo shall indemnify, defend and hold harmless the City, its officers, agents, and employees from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs in the event that a third party files litigation challenging the validity or enforceability of this Agreement, or any payment of the City Consideration by the City to Volvo. The City and Volvo may jointly defend the Agreement and /or City Consideration payment. If the litigation is filed only against the City, Volvo may move to intervene as a defendant, respondent or real party in interest, based upon the nature and form of the litigation. 5.11 Force Maieure. The obligations by either party hereunder shall not be deemed in default and times for performance hereunder shall be extended where delays are caused by fire /casualty losses; strikes, riots or war; litigation; unusually severe weather; inability to secure necessary labor, materials or tools because of a shortage in the market; delays of any contractor, subcontractor or supplier; unjustified acts or failure to act by City in the processing or approval of plans or permits or inspection or approvals of improvements for Volvo's facility remodel; acts of God, or other similar causes without the fault and beyond the reasonable control of the party, despite the party's diligent efforts (collectively, "force majeure "), if written notice is provided to the other party within a reasonable period following commencement of any such circumstances and, provided further, that the extension of time shall be only for the period of the force majeure delay. Adverse market conditions or the inability to obtain financing shall not constitute an event of force majeure. 5.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. 25B -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council •••.• r, • *;u SONIA City AM By: Ryan RECOMMENDED FOR APPROVAL: Kelly Reenders Executive Director — CDA CITY OF SANTA ANA DAVID CAVAZOS City Manager SSF, Inc., dba VOLVO OF ORANGE COUNTY James Speck President Tax ID# 25B -11 25B -12