2021-09 - AUTHORIZING THE VILLAGE MANAGER TO EXECUTE A LEASE AMENDMENT WITH BRI INCORPORATED AT THE BUFFALO GROVE GOLF CLUBHOUSE - 03/16/2021 RESOLUTION NO. 2021-09
A RESOLUTION AUTHORIZING THE VILLAGE MANAGER TO EXECUTE A LEASE AMENDMENT WITH BRI
INCORPORATED AT THE BUFFALO GROVE GOLF CLUBHOUSE
WHEREAS, the Village of Buffalo Grove is a Home Rule Unit pursuant to the Illinois Constitution
of 1970; and,
WHEREAS,the residents of the Village of Buffalo Grove and patrons of the Buffalo Grove Golf find
it advantageous to have a restaurant on the Clubhouse premises; and,
WHEREAS,on December 5,2016,the Village Board authorized the Village Manager to finalize and
execute a lease agreement("Lease")with BRI Incorporated ("Restaurant Operator");and,
WHEREAS, the Village and the Restaurant Operator are requesting an amendment to the Lease;
and,
WHEREAS, the Village Board has determined that it is in the best interests of the Village to
authorize the Village Manager to finalize and execute a lease amendment with the Restaurant Operator.
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE
VILLAGE OF BUFFALO GROVE,COUNTIES OF COOK AND LAKE,STATE OF ILLINOIS, as follows:
SECTION 1. The foregoing recitals are hereby incorporated and made a part of this
Resolution.
SECTION 2. The Village Manager is hereby authorized and directed to execute the attached
lease amendment pending final review and approval by the Village Attorney.
SECTION 3. This Resolution shall be in full force and effect from and after its passage and
approval.
AYES: 6—Stein Ottenheimer Weidenfeld Johnson Smith Pike
NAYES: 0—None
ABSENT: 0—None
PASSED: March 15 2021
APPROVED: March 15„ 2021
APPROVED:
Beverly Sussma it age President
ATTEST:
Janet . rz,aian,Village Clerk
I+l ST ND ENT T I.,L&�'E
THIS FIRST A:MENDMEN I r LEASE,(,"lest Amendment") is made and entered into
as of thi 5 day of Al—.. .m _, 2021 ("Effective Date"), by and between
VILLAGE OF BUFFALO GROVE,ILLINOIS,an Illinois rminieipa:l corporation ("Landlord")
and BRI INCORPORATED, an Illinois corporation("Tenant") as consented to and approved by
SALVATORE CARDONE ("Guarantor"). (Landlord and Tenant shall each sometimes hereinafter
be individually referred to as "Parry"or, collectively,"Parties")
RECITALS:
WHEREAS, Landlord and Tenant entered into that certain Restaurant Lease dated
December 5, 2016 ("Lease"), wherein Landlord leased to Tenant and Tenant leased from Landlord
the Premises, as defined therein;
WHEREAS, Tenant has requested from Landlord: (i) a forbearance from collecting certain
past due Base Rent payments; (ii) a partial abatement of certain Base Rent payments;(iii)a reduction
in the cap of Tenant's personal Guarantor's obligations under the Guaranty of the Lease; and (iv) a
reduction in the amount of Tenant's utility payment obligations under the Lease(collectively"Certain
Tenant Modifications");and Landlord has agreed to amend the Lease to provide for the Certain Tenant
Modifications provided Tenant pays certain utility obligations, pays past due Food and Beverage
Taxes and the agrees to the reduction of Landlord's early termination fee and for other amendments
and modifications of the Lease, all under the terms and conditions set forth hereinbelow.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100 Dollars
($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Tenant and Landlord hereby agree as follows:
1. DefiD i i'n, - Conflicts.. All capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Lease. Wherever the terms and conditions of this
First Amendment conflict with the terms and conditions of the Lease, the terms and conditions of
this First Amendment shall control and govern. In all other respects, the terms and conditions of
the Lease are hereby restated as if set forth fully herein.
2. !w men ) 'all QutStandinp Past Dtjg UfiljLX I` hli ga ` n
(a) Pursuant to Paragraph 5 of the Lease, Tenant shall pay 60% of all utilities for the
clubhouse ("Utility Obligations") plus any cable, satellite or other television service utility bill as
Additional Rent. As of the Effective Date, Landlord and Tenant understand, acknowledge and
agree that Tenant currently owes past due amounts for Utility Obligations. On or before April 1,
2021, Tenant agrees to and shall pay any and all owes past due amounts for Utility Obligations.
On or before April 5, 2021, Tenant shall deliver to Landlord detailed proof of the payment of all
past due amounts for Utility Obligations. Tenant shall continue to pay its monthly Additional
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Rent Utility Obligation as they come due pursuant to Paragraph 5 of the Lease, as amended by
this First Amendment.
(b) Subject to Paragraph 2(a) above and provided Tenant shall not be in default under
the Lease beyond any applicable notice and cure periods as set forth therein, as of January 1,2021,
Landlord and Tenant understand, acknowledge and agree that Tenant's Utility Obligations shall
be reduced to 50% of all utilities for the Clubhouse.
3. Paylilgig f all Qutstanding Villageof Buffalo Grove Food.dl and fltygragg
Taxes.
As of the Effective Date, the Village of Buffalo Grove, Illinois imposes a food and
beverage tax, as set forth in Chapter 3.48 of the Buffalo Grove. Illinois Municipal Code ("Food
and Beverage Taxes"), on food, soft drinks and alcoholic beverages purchased at a restaurant for
consumption on the restaurant premises. As of the Effective Date, Landlord and Tenant
understand, acknowledge and agree that Tenant currently owes past due amounts for Food and
Beverage Taxes. On or before the Effective Date, Tenant agrees to and shall pay any and all past
due amounts for Food and Beverage Taxes. As a pre-condition to Landlord's agreement to execute
and deliver this First Amendment, on or before the landlord's execution hereof, Tenant shall
deliver to Landlord detailed proof of the payment of all past due amounts for Food and Beverage
Taxes. Tenant shall continue to pay any and all Food and Beverage Taxes incurred in the operation
of the restaurant business pursuant to the Lease as such Food and Beverage Taxes come due.
4. P'ast D u.c Bas L,B ent.
(a) Landlord and Tenant understand, acknowledge and agree that as of December 31,
2020, Tenant owes Landlord past due Base Rent and additional charges pursuant to the Lease in
the amount of Forty Two Thousand Nine Hundred Four and 00/100 Dollars ($42,904.00) ("2020
Past Due Base Rent"). Landlord has agreed to a retroactive reduction in the Base Rent that was
due for the months of January 2021 and February 2021 to One Thousand and 00/100 Dollars
($1,000.00)per month,and a reduction in Base Rent for March, 2021 to One Thousand and 00/100
Dollars ($1,000.00), for a total reduced Base Rent for January, 2021, thru and including March,
2021 of Three Thousand and 00/100 Dollars ($3,000.00) ("Certain Reduced 2021 Base Rent
Amounts"). On or before May 1, 2021, Tenant agrees to and shall pay Landlord Three Thousand
and 00/100 Dollars (3,000.00)of the Certain Reduced 2021 Base Rent Amounts for January,2021,
February, 2021 and March, 2021 Base Rent. Full Base Rent in the amount of Four Thousand Five
Hundred and 00/100 Dollars ($4,500.00) per month shall recommence to be due and payable by
Tenant as of the earlier of the following to occur: (i) April 1, 2021; or (ii) the resumption of full
restaurant and bar operation to the general public for in house dining and drinking, but in no event
shall the recommencement of full Base Rent occur later than May 1, 2021, and each month
thereafter,throughout the remainder of the Term,subject to escalation as provided for in the Lease.
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(b) Subject to Tenant's satisfaction of the terms and conditions of this First
Amendment, and provided Tenant shall not be in default under the Lease, as amended hereby,
beyond any applicable notice and cure periods as set forth therein, including,but not limited to this
First Amendment and including, but not limited to the timely and full payment of the Utility
Obligations, Food and Beverage Taxes and Certain Reduced 2021 Base Rent Amounts, Landlord
agrees to and shall release Tenant and Guarantor from payment of an amount not to exceed the
2020 Past Due Base Rent, provided, however, except as otherwise provided for herein, nothing
contained herein shall be deemed to constitute a release or waiver of any other Base Rent,
Additional Rent or any further Tenant's obligations under the Lease.
5. e lug .fi n gf�C w ndloEil", Farly Tem n1u ti �n Lz e M Landlord and Tenant
acknowledge, understand and agree that effective on the Effective Date, the second sentence of
paragraph 3 of Section 3 of the Lease entitled"Term" shall be amended by deleting the amount of
"Five Hundred Thousand and 00/100 ($500,000.00)" as Landlord's Early Termination fee and
shall be replaced with "Two Hundred Thousand and 00/100 ($200,000.00)", as Landlord's new
Early Termination fee.
6. AinenLbnent of fllg lle l iI Diu . Landlord and Tenant
acknowledge, understand and agree that effective on the Effective Date, Section 23 of the Lease
shall be amended by adding the following two (2) sentences to the end of Section 23:
"Notwithstanding anything contained herein to the contrary, Landlord shall have the right
to, and may, upon ninety (90) days prior written notice to Tenant, cease all business operations of
the Golf Course, cease all golf playing on the Golf Course and shut the Golf Course down to the
general public (collectively "Cease Golf Course Operations"), in Landlord's sole and exclusive
judgment and discretion. In the event Landlord elects to Cease Golf Course Operations,the Lease
shall be deemed to be terminated as an Early Termination by Landlord pursuant to Section 3 of the
Lease, and, in such event, Landlord's sole and only obligation to Tenant shall be the payment of
the new Early Termination fee of Two Hundred Thousand and 00/100 ($200,000.00), the Lease
shall thereafter be null and void and of no further force or effect, and the Parties shall have no
further obligations to each other except as may be specifically set forth in the Lease and the receipt
by Tenant. of the new Early Termination fee of Two Hundred Thousand and 00/100 ($200,000.00)
from Landlord shall be Tenant's sole remedy, in lieu of any other remedy at law or in equity,
Tenant hereby waiving and releasing any and all rights to damages against Landlord. In the event
Landlord elects to Cease Golf Course Operations, Tenant and Tenant's affiliates, employees,
officers, directors, agents, representatives or attorneys hereby waive and release any and all
defenses, claims, and set-offs and any other claim or demand against Landlord and/or its
employees,officers,directors,agents,representatives or attorneys of any type or nature whatsoever
related in any way to or arising out of the Landlord's election to Cease Golf Course Operations
and terminate the Lease, whether known or unknown, asserted or unasserted, from the beginning
of time through the date of termination created by the Ceasing of Golf Course Operations by
Landlord. Tenant and Tenant's employees, officers, directors, agents, representatives or attorneys
understand that as a result of this release, Tenant and Tenant's employees, officers, directors,
agents, representatives or attorneys will not be able to sue or make any claims for anything they
believe Landlord or its employees, officers, directors, agents, representatives or attorneys did
wrong or for any default
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or event of default by Landlord prior to the date of Landlord's election to Cease Golf Course
Operations and terminate the Lease."
7. Reduction of is aji t .' . Liabillty, tinder tb utaranty.,
(a) Provided Tenant shall not be in default under the Lease beyond any applicable
notice and cure periods as set forth therein, for good and valuable consideration, including but not
limited to the Parties execution of this First Amendment and agreement to the terms, covenants
and conditions contained herein, Landlord hereby agrees that Guarantor's obligations under the
Guaranty shall be reduced. The reduction shall be evidenced by adding the following paragraph to
the end of the Guaranty as Section 16 of the Guaranty:
"Notwithstanding anything contained herein to the contrary, and provided Tenant is not in
default under the Lease, Landlord agrees that from and after the Effective Date as set forth in the
First Amendment to the Lease, the maximum liability of Guarantor hereunder shall be Sixty Five
Thousand and 00/100 Dollars ($65,000.00) plus any and all reasonable costs and fees, including,
but not limited to reasonable attorney's fees and court costs, incurred by Landlord in the
enforcement of this Guaranty("Guarantor's Liability Cap").Provided Tenant is not then in Default
under the Lease, upon the commencement of the first five (5) year Extension Term (January 1,
2022) pursuant to Section 3 of the Lease, and upon the commencement of each successive Lease
Year thereafter, Guarantor's Liability Cap shall be reduced by Twenty percent (20%) for each
Lease Year,provided the full restaurant and bar operation is open to the general public for in house
dining and drinking during the applicable Lease Year. Provided Tenant shall not be in default
under the Lease beyond any applicable notice and cure periods as set forth therein, upon the
expiration of the fifth(5th) Lease Year of the first Extension Term, the liability of Guarantor under
this Guaranty shall be cancelled and terminated."
(b) Landlord and Tenant acknowledge, understand and agree that effective on the
Effective Date, the third sentence of paragraph 3 of Section 3 of the Lease entitled "Term" shall
be amended by deleting the amount of "One Hundred Sixty Five Thousand and 00/100
($165,000.00)" as Tenant's Early Termination fee and shall be replaced with the following "the
amount set forth as Guarantor's Liability Cap, as detailed in Paragraph 7 of this First
Amendment.", as Tenant's new Early Termination fee.
8. Defatllt
(a) In the event Tenant fails to pay the past due Tenant's nant's Utility Obligations, past due
Food and Beverage Taxes and all or any portion of Certain Reduccd 2021 Base dent AnIount , all
as set forth hereinabove, the current Base Rent or any amounts due for Additional Rent, late
charges, interest and any other sum coming due to or advanced by Landlord in performance of its
obligations all pursuant to the Lease, and this First Amendment all when same shall become due
and payable, and such failure continues for ten (10) days after written notice from Landlord, or
any other default of Tenant occurs under the Lease, in addition to any and all remedies as set forth
in the Lease or under applicable law, Section 2(b), 4(b) of this First Amendment shall be
automatically rescinded, cancelled, terminated, null and void and of no
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further force or effect and all unpaid Base Rent due by Tenant shall be immediately accelerated
and immediately due and owing, without further action or notice required of the Parties.
(b) The fourth (41h) paragraph of Section 3 of the Lease is amended to provide that in
the event of a Tenant default under the Lease which remains uncured beyond any applicable notice
and cure period, if any, Tenant shall forfeit to Landlord any and all furniture, fixtures and
equipment used in the operation of the Tenant's restaurant business, including, but not limited to
Tenant's point of sale system, tables chairs, silverware, plates, serving dishes, all kitchen
equipment, all bar equipment and any and all other furniture, fixtures and equipment owned by
Tenant("FF&E") and used in the restaurant operation free and clear of any and all mortgages,trust
deeds, security interests, encumbrances and liens of record affecting theFF&E.
9. Bindin Eff I. This First Amendment shall be binding upon and inure to the benefit
of the Landlord and Tenant and their respective successors and assigns.
10. Facsinii1g,.Electronic arid Counter Countern rt Si natjt . This First Amendment may be
executed in any number of counterparts, each of which shall be deemed an original,but all of which
together shall be one in the same instrument. For purposes of executing this First Amendment, any
signed copy of this First Amendment may be transmitted by facsimile machine or electronic mail and
the signature of any party hereon shall, for purposes of execution hereof, be considered an original
signature. Any facsimile or email of this First Amendment shall,at the request of either Party,be re-
executed by the other Party in an original form, and neither Party shall raise the use of a facsimile
machine or electronic mail or the fact that any signature was transmitted thereby, as a defense to the
effectiveness ofthis First Amendment.
11. Estoppel. Tenant hereby represents, warrants and agrees that: (i) there exists no breach,
default or event of default by Landlord under the Lease, or any event or condition which, with the
giving of notice or passage of time or both, would constitute a breach, default or event of default by
Landlord under the Lease; (ii) the Lease continues to be a legal, valid and binding agreement and
obligation of Tenant;and(iii)Tenant has no current offset or defense to its performance or obligations
under the Lease. Tenant hereby waives and releases all demands,charges, claims,accounts or causes
of action of any nature against Landlord or Landlord's employees or agents, including without
limitation, both known and unknown demands, charges, claims, accounts, and causes of action that
have previously arisen out of or in connection with the Lease.
12. Ratification. In all other respects, the Lease, as amended, is hereby ratified and
affirmed and shall remain in full force and effect.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF,Landlord and Tenant have executed this First Amendment as
of the date and year first above written.
LANDLORD:
VILLAGE OF BUFFALO GROVE,
ILLINOIS, an Illinois municipal corporation
r
.
Natr[i :_ ,, ". ZeAk
Its: Ucu46
Date of Execution:
TENANT:
BRI INCORPORATED, an Illinois
corporation
B
Name; 5ac� =L.
_..._.�.
Its: �.. .�....... .�................._ .......... ...�.�.......
®
Date of Execution: 40 -1L.L _,,---------_.. .
I, SALVATORE CARDONE ("Guarantor"), as Guarantor of the Lease, hereby consent
to and approve of the foregoing execution of the First Amendment, and acknowledge and agree
that, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, including, but not limited to the agreement of Landlord to enter into the First
Amendment, I shall be bound by this instrument and the Lease, as Guarantor,which shall apply to
Guarantor with the same force and effect as they apply to Tenant, and hereby agree that the
Guaranty I executed, of even date with the Lease, is hereby ratified and aflirin d and shall be and
remain in full force and effect.
GUARANTOR:
Name: SALVATORE CARDONE
Date of Execution:
4L-
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