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2008-30RESOLUTION NO. 2008- 30 A RESOLUTION AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT FOR FOOD SERVICE AT THE BUFFALO GROVE COMMUTER RAIL STATION WHEREAS, the Village of Buffalo Grove is a Home Rule Unit Pursuant to the Illinois State Constitution of 1970; and WHEREAS, it has previously been determined that it is in the best interest of the Village to lease food and beverage services at the Buffalo Grove Metra Commuter Rail Station; and WHEREAS, Jerry Reinert, the current lessee of Java Junction desires to sell his business, which has been purchased by John Y. Hsiao (d/b /a Jake Enterprises, LLC) contingent upon the approval of a Lease Agreement which is attached to this resolution; and WHEREAS, it has been determined that Jake Enterprises, LLC will continue to serve the best interests of the Village in the provision of food and beverage services at the Buffalo Grove Metra Commuter Rail Station. NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS THAT: SECTION 1. The Village President and Village Clerk are hereby authorized to execute the attached lease entitled "Lease Agreement for Food Service, Buffalo Grove Train Station" dated as of the 8t` day of September, 2008. SECTION 2. Village staff is hereby directed to ensure that this lease is implemented beginning September 8, 2008 and that service standards are maintained as a result of the sale transaction. AYES : 5 — Braiman, Glover, Berman, Kahn, Trilling NAYES . 0 —None ABSENT: 1 — Rubin PASSED: September 8 , 2008. APPROVED: September 8 , 2008. VILLAGE PRESIDENT ATTEST: VIVLAGE CLERK,,h LICENSE AGREEMENT FOR FOOD SERVICE BUFFALO GROVE TRAIN STATION This license is entered into as of the 8th day of September, 2008, by and between the Village of Buffalo Grove, a Municipal Corporation ( "Grantor "), and Jake Enterprises, LLC, a limited liability corporation ( "Licensee "). PRELIMINARY STATEMENT WHEREAS, Grantor and the Commuter Rail Division (CRD) of the Regional Transportation Authority, a division of an Illinois Municipal Corporation, have entered into a Commuter Station Development Agreement dated May 24, 1995, and a License for Location of Fixed Facilities for Public Transportation On Properties of Wisconsin Central Ltd., dated May 20, 1996 which instruments govern the construction, operation and maintenance of improvements to Village property for the purpose of providing commuter rail station facilities and the sublicense of certain portions of the property from the CRD for the same purposes ( "Underlying Agreements "); and, WHEREAS, Grantor desires to license a portion of the commuter rail station consisting of approximately one hundred twenty (120) square feet as shown on Exhibit A, attached hereto and made a part hereof ( "Premises ") to the Licensee, and Licensee desires to license Premises from the Grantor, on the terms and conditions set forth in this Agreement_ NOW, THEREFORE, IN CONSIDERATION of the rent and the covenants below, the Grantor and Licensee do hereby agree as follows: SECTION I. - Purpose and Interests A. Purpose. Licensee shall occupy and use the Premises for the following purposes only: food concession sales, coffee, juice, tea and soft drink sales, milk, and other non- alcoholic beverages; magazine and newspaper services; personal hygiene products (travel - sized lotion, battery, eye drops, etc.) and such other items as may be approved by the Grantor in writing. B. Underlying Agreements. Licensee recognizes that Grantor's interest in the Premises is that of a tenant except as expressly provided herein. This Agreement is subject and subordinate to and controlled by the terms, covenants and conditions of the Underlying Agreements. Licensee and Grantor agree to observe and perform all the obligations imposed on Grantor under the Underlying Agreements with respect to the Premises except for the payment of rent, Grantor's contributions for improvements, and those provisions of the Underlying Agreements which do not apply to this Agreement. Licensee and Grantor shall neither do nor permit anything to be done which would cause the Underlying Agreements to be .terminated or forfeited by reason of any right of termination or forfeiture reserved or vested in the CRD under the Underlying Agreements, or which would cause the Grantor to be in default under the Underlying Agreements. Licensee shall indemnify and hold Grantor harmless from and against all claims, costs or expenses of any kind whatsoever, including attorneys' fees, by reason of any breach or default on the part of the Licensee which would cause the Underlying Agreements to be terminated or forfeited or caused the Grantor to be in default thereunder. Grantor shall indemnify and hold Licensee harmless from and against all claims, costs or expenses or any kind whatsoever, • v including attorneys' fees, by reason of any breach or default on the part of the Grantor which cause the Underlying Agreements to be terminated or forfeited or cause the Licensee to be in default thereunder. SECTION II - Terms and Conditions A. Term. Grantor hereby licenses to Licensee the exclusive rights to operate a food service operation (as more fully set forth in Section I -A. above) located at the Buffalo Grove Commuter Rail Station Depot at 825 Commerce Ct., Buffalo Grove., Illinois. The Premises is depicted on Exhibit A attached hereto and is to be used and occupied by Licensee for the term commencing September 15, 2008 through September 30, 2011 with options to extend for up to two (2) additional years upon terms mutually acceptable to both parties to the license unless otherwise terminated as hereinafter set forth with a final date of this Agreement to be through September 30, 2015. Additional two (2) year option periods may be granted 'by Licensee upon terms mutually acceptable to both parties. During each weekday of the term, Licensee shall be open for business from 5:30 a.m. to 8:30 a.m., or as otherwise agreed upon in writing by the parties. B. Extension of Agreement. The. Licensee shall have the option and right of first refusal to extend this Agreement upon such terms and conditions as are mutually agreed upon. The right to extend such License shall be considered, provided that the Licensee is not presently in default under any of its terms, conditions and obligations under this Agreement. Licensee must give written notice of such election to exercise option(s) to Grantor at least sixty (60) days prior to the expiration of the term herein provided. C. Lawfulness. Licensee shall not conduct or permit any conduct on the demised Premises which is contrary to the laws of any governmental authority. D. Compliance. During the term of this Agreement, Licensee shall comply with all Federal, State, County and Village statutes and ordinances. E. Licenses. Licensee shall obtain a Village of Buffalo Grove business license and any and all applicable State or Federal licenses prior to opening for sales to the public. In the event Licensee is unable to obtain or retain any such licenses, then this License shall be null and void. F. Signs. Licensee may be permitted to display signs as permitted by the Village. Grantor shall pay for the construction of any such signs unless shared with the Licensee as part .of Licensehold Improvements. At termination of this License, any such signs shall become the Grantor's property. G. Tobacco and Liquor Sales. Licensee shall have the right to sell tobacco products over the counter but not through a vending machine. Licensee shall obtain the required license and shall conform to 2 E Village ordinances. The sale of alcoholic beverages is strictly prohibited H. Proprietary Interests. Licensee shall retain all rights to any business names, concepts or other proprietary interests established during the term of this License, and Grantor herein waives any claims to such interests. I. Right of Entry. Grantor shall have the right to enter the Premises upon reasonable notice to Licensee. J. Exclusive Rights to Sales. As long as Licensee performs all of the Licensee's obligations under this Agreement, Licensee shall have peaceful and quiet enjoyment of the Premises for the term of the License or any extensions entered into as a result of exercising an extension option. Grantor agrees that its own or its licensed adjacent properties related to commuter rail service shall not be used by any other vendors selling goods similar to the Licensee's products. K. Taxes. Licensee shall pay when due any taxes assessed and levied against the Premises, or taxes levied against the licensees interest, resulting from or on account of this Agreement or licensees interest in this agreement. L. Vending Machines: Provided Licensee shall obtain and maintain proper licenses for same, Licensee shall have the right to maintain public vending machines (for other than cigarettes of liquor) within the area of the leased premises. (The amount of the total gross sales generated by said machines shall be included in determining the amount of rent due, per Section III A. below.) SECTION III - Compensation A. Rent. Licensee agrees to pay Grantor, at the address provided in Section VII B. of this Agreement, the following rent: Beginning September 15, 2008 and payable monthly in arrears, Licensee shall pay as rent a sum equivalent to 5% of gross food and beverage sales, excluding sales tax and service charges (defined as gratuities and other fees charged over and above food and beverage sales) to Grantor, for all food and beverage sales on the Premises and surrounding areas. Licensee shall submit monthly, certified computer generated sales figures to Grantor along with an operating statement to support the remittance which identifies service charges. Monthly installments of rent shall be payable no later than one month (28 -31 days). after the end of the month so concluding. By means of example, rent due the Grantor for September, 2008 will be due, with applicable reporting to support the remittance, by November 1, 2008 and so on. Licensee shall maintain true, accurate and complete books and records of its operations at the Premises and retain the books and records for each year for not less than three (3) years thereafter. Such books and records shall be available for inspection by Grantor W or its agents or representatives during business hours upon reasonable prior notice. All installments of rent if not paid by the 1st .day of the appropriate month as noted above shall bear interest from the date due to the date paid at the rate of eighteen percent (18 %) per annum, or at the maximum legal rate of interest, whichever is lower. B. Security Deposit. At the option of the Grantor, Licensee shall pay to Grantor a refundable, cash security deposit which shall be held in an interest - bearing account in the amount of $500.00 for the faithful performance of this license. Failure to pay such a security deposit shall be considered a condition of default under the Agreement. The security deposit shall be maintained in the event Licensee defaults in respect to any of the terms, provisions and conditions of this Agreement including but not limited to the payment of rent. Grantor may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent or any other sum to which the Licensee is in default. Within forty -five (45) days of the termination of this Agreement, and provided Licensee is not in default, Grantor shall return to the Licensee such amounts that remain as the security deposit at the time of termination. SECTION IV - Condition of Premise A. Condition of Premises. Licensee shall maintain, clean and keep in good repair all areas related to the food concession and vending areas within the depot and adjacent areas where food and beverage will be provided from time to time. Licensee agrees to provide general cleanup and maintenance immediately adjacent to the concession area during its hours of.operation by cleaning up coffee spills and other spills relating to the operation of the Premises. Licensee shall notify the Grantor's Public Works Building Supervisor if the washrooms or areas outside the Premises need cleaning or maintenance prior to the Grantor's regular maintenance schedule. This would include such areas as the platform, parking lot, parking or platform lighting,. or the grounds around the retention basin. Licensee shall accept the Premises in its existing condition on the commencement date and Licensee taking possession of the Premises shall be conclusive evidence that the Premises were then in good order, repair and satisfactory condition. No promise of Grantor to alter, remodel, improve, repair, decorate or clean the Premises or any part thereof and no representation respecting the condition of the Premises has been made to Licensee by Grantor. Licensee agrees to vacate the Premises at the expiration of this Agreement and Licensee shall leave the Premises in the same condition as at the commencement date, ordinary wear and tear and loss by fire or other casualty excepted. Any improvements and alterations approved by the Grantor shall not be of a permanent nature and shall be removed by the Licensee unless otherwise mutually agreed upon by the parties. B. Decorating. Licensee will, at its own cost and expense, make any necessary alterations required; however, no alterations shall be 4 made without the prior written consent of the Grantor. Licensee shall make all repairs necessary to keep the Premises in good condition and repair. Repairs to the Premises necessitated by ordinary wear and tear, by storm, fire, wind or other casualties shall be the sole responsibility of Licensee. SECTION V - Termination & Assignment A. Termination. 1) . In the event of any default in the terms hereof and if the same are not corrected within thirty (30) days of written notice [with the exception being the failure to remit rent which should be corrected within five (5) days from written notice of same], the Grantor may terminate the Agreement and take possession of the Premises, improvements and equipment with the institution of eviction proceedings and the exercise of due process of law. Each of the parties hereto shall have the recourse to any Court of Law or equity to enforce the provisions of this License as set forth herein. 2) .. In the event that Grantor shall desire to regain possession of the Premises for any other reason, Grantor shall have the option of so doing upon sixty(60) day written notice to Licensee. B. Bankruptcy. In the event that Licensee shall become bankrupt or shall make a voluntary assignment for the benefit of creditors, or in the event that a receiver is appointed, then, at the option of the Grantor on thirty (30) days written notice, this Agreement may be terminated. C. Casualty. In case the Premises shall be rendered untenantable during the term of this License by fire or other casualty, Grantor at its option may terminate this License or repair the Premises within ninety (90) days thereafter, which may be extended due to circumstances brought upon by the extent of the loss. No rent shall be due and owing from the date of the fire or other casualty until the date the Premises is rendered tenantable. If Grantor elects to repair, this License shall remain in effect provided such repairs are completed in an expeditious manner. If Grantor shall not have repaired the Premises within an agreed time, then Licensee may terminate this Agreement. If this Agreement is terminated by reason of fire or casualty as herein specified, rent shall be apportioned and paid to the day of such fire or other casualty. D. Assignment. The Licensee shall not have the right to assign this Agreement without the Grantor's prior written consent. Consent shall be based on, but not limited to, the following criterion: financial ability to perform, knowledge in the business of operating comparable food facilities, ability to maintain service levels required by Grantor that are in conformance with the terms and conditions of this Agreement. Licensee shall give Grantor one - hundred twenty (120) days notice prior to any consideration of assignment. In the event of any such assignment of this Agreement, the Licensee shall be released from any and all liability arising or accruing under this Agreement after the date of such assignment, provided that the assignee executes, acknowledges and delivers a valid, binding, and sufficient instrument in writing, directly enforceable by the Grantor, containing the ass'ignee's assumption and agreement to pay all rent and other amounts reserved in this Agreement and to perform all of the covenants, provisions, and conditions thereof, and that an original of such assumption and agreement be delivered to the Grantor. In no other circumstance shall the Licensee be so released, nor shall the acceptance of rent by the Grantor from any such assignee in any case operate or be taken to work or effect such relicense. E. Rail Services. CRD and Grantor make no warranties or representations expressed or implied, as to continued rail service to the Premises. If CRD terminates commuter rail service, this license shall likewise terminate. SECTION VI - Insurance and Indemnification A. Insurance. Licensee shall (during the term and any extension(s) hereof) maintain insurance acceptable to Grantor and such insurance shall be in the following amounts: A. Worker's Compensation at the required statutory levels. B. General Liability ($1,000,000/$2,000,000 bodily injury and property damage). Grantor shall be named as an additional insured as their interest appears. This will not require Licensee to provide insurance to cover parking lot. C. Grantor shall provide fire and extended coverage on the building and its contents which insurance policy shall contain a "Waiver of Subrogation" against Licensee. Licensee will be responsible for providing its own insurance covering its equipment and inventory. Evidence of such insurance shall be furnished to Grantor prior to Licensee taking possession of the Premises. Licensee shall in addition to providing certificates of insurance to Grantor for the above named coverages, name the Village of Buffalo Grove as an additional insured and provide for the hold harmless of the Village, its employees, officers and agents from any and all causes of action, claims, losses, injury, damages, legal expenses, fees, and other costs that may arise from the operation of Premises and execution of this License by the Licensee. B. Indemnification. Licensee agrees to indemnify and hold harmless Grantor and CRD and defend from all claims, demands, liabilities, judgments, costs and expenses, including attorneys' fees, arising or growing out of loss or damage to property and all injury to or death of any persons which is in, upon or about any part of the Premises, whenever such loss or damage to the property or injury or death is caused by Licensee's negligence or arises from Licensee's operations pursuant to this Agreement. SECTION VII - General Conditions A. Authorized Representative. The only authorized agent of the Grantor shall be the Grantor's Village Manager or designee. The authorized agent of the Licensee shall be John Y. Hsiao. B. Notices. All notices provided herein, to be effective upon receipt, shall be served personally or made by certified mail with return receipt to the parties hereto as follows: Grantor: Village of Buffalo Grove 2 • 50 Raupp Boulevard Buffalo Grove, IL 60089 Attn: Village Manager Licensee: Jake Enterprises, LLC C/o John Y. Hsiao, Manager 4370 Lindenwood Lane Northbrook, Illinois 60062 0 C. Entire Agreement. All the representations and obligations of the parties, if any, are contained herein. No modifications, waiver, or amendment of this Agreement, or any of its terms, shall be binding upon Grantor unless such are in writing and signed by a duly authorized official of the Grantor. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of this day and year first above written. GRANTOR: LICENSEE: Village of Buffalo Grove -Village-President Jake Enterprises, LLC, by John Y. Hsiao, Manager ATTEST: