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Ordinance 2014-47 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO.2014-47 AN ORDINANCE APPROVING A LICENSE AGREEMENT by and between THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS and WHITE WATER ICE CREAM,INC. d/b/a FOXY'S ICE CREAM Passed by the City Council of the United City of Yorkville,Kendall County, Illinois This 14"day of October, 2014 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on October 29, 2014. Ordinance No. 2014- AN ORDINANCE APPROVING A LICENSE AGREEMENT by and between THE UNITED CITY OF YORKVILLE, KENDALL COUNTY,ILLINOIS and WHITE WATER ICE CREAM,INC. d/b/a FOXY'S ICE CREAM WHEREAS, the United City of Yorkville (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS,the City owns property located at 131 East Hydraulic Street, Units A and B, in the City(the"Premises"); and, WHEREAS, White Water Ice Cream, Inc. d/b/a Foxy's Ice Cream (the "Licensee") desires to enter into a license agreement with the City for the operation of a business for the sale of certain food and beverages for consumption on and off the Premises; and, WHEREAS, the City is willing to grant the Licensee a license to operate the abovementioned business subject to the terms and conditions set forth in the License Agreement by and between the United City of Yorkville, Kendall County, Illinois and White Water Ice Cream, Inc. d/b/a Foxy's Ice Cream, attached hereto and made a part hereof. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. The above recitals are incorporated and made a part of this Ordinance. Section 2. The License Agreement by and between the United City of Yorkville, Kendall County, Illinois and White Water Ice Cream, Inc. d/b/a Foxy's Ice Cream, attached hereto and made a part hereof, is hereby approved and the Mayor and City Clerk are hereby authorized to execute and deliver said Agreement on behalf of the City. Section 3. This Ordinance shall be in full force and effect upon its passage, approval, and publication as provided by law. Passed by the City Council of the United City of Yorkville,Kendall County, Illinois this day of �V&qy- , A.D. 2014. CITY CLERK Ordinance No.2014-5-7 Page 2 CARLO COLOSIMO KEN KOCH JACKIE MILSCHEWSKI LARRY KOT CHRIS FUNKHOUSER JOEL FRIEDERS ROSE ANN SPEARS DIANE TEELING _ Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 020 day of OC7DBF� ,A.D. 2014. "aiAl AYOR Attest: &�t CITY CLERK Ordinance No.2014-47 Page 3 LICENSE AGREEMENT This LICENSE AGREEMENT (the "Agreement") entered into this a g day of 0 , 2014,by and between the United City of Yorkville, Kendall County, Illinois, a municipal corporation(hereinafter referred to as the "City"), and White Water Ice Cream, Inc. d/b/a Foxy's Ice Cream, an Illinois corporation (hereinafter referred to as the "Licensee"). WITNESSETH: WHEREAS, the City is a duly organized and validly existing non home-rule municipality of the State of Illinois under the 1970 Illinois Constitution and the laws of the State of Illinois and the owner of property located at 131 East Hydraulic Street, Units A and B, Yorkville (the "Premises"); and, WHEREAS, the City and the Licensee desire to enter into this License Agreement for the operation of a business for the sale of certain food and beverages for consumption on and off the Premises. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Licensee agree as follows: I. TERMS AND CONDITIONS 1. CITY ORDINANCES The Licensee will strictly comply with all ordinances of the United City of Yorkville and laws of the State of Illinois. 2. USE OF CITY'S NAME The Licensee is specifically denied the right of using in any form or medium the name of the City for public advertising unless express permission is granted by the City. 3. INDEMNITY AND HOLD HARMLESS AGREEMENT To the fullest extent permitted by law, the Licensee shall indemnify, keep and save harmless the City and its agents, officers, and employees, against all injuries, deaths, losses, damages, claims, suits, liabilities,judgments, costs and expenses, which may arise directly or indirectly from any negligence or from the reckless or willful misconduct of the Licensee, its agents, its employees, or any other person using the Premises, and the Licensee shall at its own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against the City in any such action, the Licensee shall, at its own expense, satisfy and discharge the same. This Agreement shall not be construed as requiring the Licensee to indemnify the City for its own negligence. The Licensee shall indemnify, keep and save harmless the City only where a loss was caused by the negligent, willful or reckless acts or omissions of the Licensee, its agents, its employees, or any other person using the Premises. 4. INSURANCE REQUIREMENTS 4.1. Prior to the effective date of this Agreement, the Licensee shall procure, maintain and pay for such insurance as will protect against claims for bodily injury or death, or for damage to property, including loss of use, which may arise out of operations by the Licensee, or by anyone employed by the Licensee, or by anyone for whose acts the Licensee may be liable. Such insurance required of the Licensee shall not be less than the greater of coverages and limits of liability specified below or coverages and limits required by law unless otherwise agreed to by the City: Workers Compensation $500,000 Statutory Employers Liability $1,000,000 Each Accident $1,000,000 Disease Policy Limit $1,000,000 Disease Each Employee Comprehensive General Liability$2,000,000 Each Occurrence $2,000,000 Aggregate (Applicable on a Per Project Basis) Umbrella Liability $3,000,000 4.2. The Licensee shall have its Comprehensive General Liability(including products/completed operations coverage), Employers Liability, and Umbrella/Excess Liability policies endorsed to add the "City of Yorkville, its officers, officials, employees and volunteers" as "additional insureds" with respect to liability arising out of operations performed, including but not limited to claims for bodily injury or death brought against the City by the Licensee and/or the Licensee's employees, however caused, related to the performance of operations under this Agreement. Such insurance afforded to the City shall be endorsed to provide that the insurance provided under each policy shall be Primary and Non- Contributory. 4.3. The Licensee shall maintain in effect all insurance coverages required by this Agreement at its sole expense and with insurance carriers licensed to do business in the State of Illinois and having a current A.M. Best rating of no less than A- VIII. In the event that the Licensee fails to procure or maintain any insurance required by this Agreement, the City may, at its option, purchase such coverage and deduct the cost thereof from any monies due to the Licensee, or withhold funds in an amount sufficient to protect the City, or terminate this Agreement pursuant to its terms. 4.4. All insurance policies shall contain a provision that coverages and limits afforded hereunder shall not be canceled, materially changed, non-renewed or restrictive modifications added, without thirty(30) days prior written notice to the City. Renewal certificates shall be provided to the City not less than five (5) days prior to the expiration date of any of the required policies. All Certificates of Insurance shall be in a form acceptable to the City and shall provide satisfactory evidence of compliance with all insurance requirements. The City shall not be obligated to review such certificates or other evidence of insurance, or to advise the Licensee of any deficiencies in such documents, and receipt thereof shall not relieve the Licensee from, nor be deemed a waiver of the right to enforce the terms of, the obligations hereunder. The City shall have the right to examine any policy required and evidenced on the Certificate of Insurance. 5. SUBLETTING OF AGREEMENT The Licensee shall not sublet the Premises or any portion of it, nor shall the Licensee assign this Agreement or any interest in it; any attempted assignment of this Agreement or subletting of the Premises shall be of no force or effect, and shall confer no rights upon any assignee or sublicensee. 6. TERM OF AGREEMENT The term of this Agreement shall be from OC-yWAX, 2014 until JUMF— (0 , 015, with the City having an option to exercise two, two-year option terms. The Licensee may negotiate in good faith, on request of the City, for an extension to this Agreement, provided that the extension is approved by the City Council no later than one hundred twenty(120) days before the termination of the existing Agreement. 7. TERMINATION OF AGREEMENT The City reserves the right to terminate the whole or any part of this Agreement, upon thirty(30) days written notice to the Licensee, in the event of default by the Licensee. Default is defined as failure of the Licensee to perform any of the provisions of this Agreement or failure to make sufficient progress so as to endanger performance of this Agreement in accordance with its terms. In the event that the Licensee fails to cure the default upon notice, and the City declares default and termination, the City may procure, upon such terms and in such manner as the City may deem appropriate, supplies or services similar to those so terminated. Any such excess costs incurred by the City may be set-off against any monies due and owing by the City to the Licensee. 8. RELATIONSHIP BETWEEN THE LICENSEE AND THE CITY The relationship between the City and White Water Ice Cream, Inc. d/b/a Foxy's Ice Cream is that of a Licensor and Licensee. 9. GOVERNING LAW This Agreement will be governed by and construed in accordance with the laws of the State of Illinois without regard for the conflict of laws provisions. Venue is proper only in the County of Kendall and the Northern District of Illinois. 10. WAIVER OF LICENSE BREACH The waiver by one party of any breach of this Agreement or the failure of one party to enforce at any time, or for any period of time, any of the provisions hereof will be limited to the particular instance and will not operate or be deemed to waive any future breaches of this Agreement and will not be construed to be a waiver of any provision except for the particular instance. 11. AMENDMENT This Agreement will not be subject to amendment unless made in writing and signed by all parties. 12. SEVERABILITY OF INVALID PROVISIONS If any provisions of this Agreement are held to contravene or be invalid under the laws of any state, country or jurisdiction, it will not invalidate the entire Agreement,but it will be construed as if not containing the invalid provision and the rights or obligations of the parties will be construed and enforced accordingly. 13. NOTICE Any notice will be in writing and will be deemed to be effectively served when deposited in the mail with sufficient first class postage affixed, and addressed to the party at the party's place of business. Notices shall be addressed to the City as follows: Director of Parks and Recreation City of Yorkville 800 Game Farm Road. Yorkville, IL 60560 Notices shall be addressed to the Licensee as follows: Robyn Sutcliff White Water Ice Cream, Inc. 131 East Hydraulic Street, Units A and B Yorkville, IL 60560 14. OPERATING SPECIFICATIONS OF THE LICENSE AGREEMENT 14.1. In general terms, the City is seeking to grant the Licensee the exclusive privilege of operating a concession business in Units A and B of the premises generally located at 131 East Hydraulic Street in Yorkville. 14.2. The City shall have the right to enter and to inspect the Premises at all times, without any prior notice to the Licensee. 14.3. The Licensee expressly agrees to allow the Licensee of Unit C of 131 East Hydraulic Street, Yorkville to have access to the hot water heater that serves Unit C for the purposes of inspecting, repairing, replacing and maintaining said hot water heater. 14.4. The Licensee shall be responsible for all taxes and personal property, and maintenance work on the Premises, with the exception of maintaining the hot water heater that serves Unit C. Any capital improvements done on the Premises, excluding the hot water heater that serves Unit C, over$5,000 in value, other than the initial improvements, shall be approved by the Park Board prior to commencement. For the purposes of this Agreement, maintenance work shall include regular upkeep of all components of the Premises, including maintenance and repairs, with the exception of the hot water heater that serves Unit C. If any component of the Premises, excluding the hot water heater that serves Unit C, is in need of repair or replacement, and the repair or replacement is greater than $500, then the City shall be responsible for the replacement of said component, provided the cost of repair of the component is greater than 50%of the cost of replacing the component. The preceding sentence does not apply to any capital improvements initiated and installed by the Licensee as a result of the renovation of the Premises, or to any repairs or replacements that are necessary because of any damage to or destruction of the Premises, the hot water heater that serves Unit C, and/or Unit C caused by or resulting from the actions or omissions of the Licensee. Any capital improvements done on the Premises, excluding the hot water heater that serves Unit C, of$5,000 or less, other than the initial improvements, shall be approved by the Director of Parks and Recreation prior to commencement. Any capital improvements must be inspected by the City and all work and contractors must be licensed,bonded, and insured. For all determinations made on the 50%repair/replacement cost above, the Licensee shall require no less than three bids from qualified contractors for all repair and replacement quotes. 14.5. At the end of the agreement term, the City shall conduct an inspection of the Premises, and the Licensee shall be informed of the outcome of said inspection. The Licensee shall be responsible for returning the Premises to its original state, subject to the discretion of the Park Board. 14.6. The Licensee does not have exclusive rights to all concession operations within the park,but rather, only to the specific operation at the Premises. 14.7. The Licensee shall be permitted to operate a business offering the following goods and services in the premises defined herein, without further action by the City, and all other uses and operations must be approved by the City: 14.7.1.1. Ice cream and related products, hot dogs,brats, and other sausage products, and beverages with the exception of coffee and coffee related products. 14.8. The Licensee expressly acknowledges that it may rent Riverfront Park free of charge only two times in each license year. If the Licensee desires to rent Riverfront Park more than two times in a license year, it must apply for such rental by filling out and submitting a City Park's rental form and paying the applicable rental fee. 14.9. The City agrees to furnish to the Licensee access to City water and sewer utilities. The Licensee is responsible for applicable usage payments for all utilities (sewer, water, natural gas, electricity, phone, internet, etc.), and is responsible for costs associated with utility connections and upgrades, including metering of the portion of the building to be used. The City shall furnish to the Licensee bi-monthly utility bills for water and sewer services. The Licensee expressly agrees to divide the monies owed for any natural gas bill between it and the Licensee of Unit C based the total square footage of each Licensee's respective unit(s). 14.10. If the Licensee chooses not to occupy the Premises through the winter months, the Licensee shall take all necessary precautions and measures to properly winterize the Premises. These precautionary measures shall include,but not be limited to, maintaining a minimum level of heat no less than 60 degrees Fahrenheit to protect the Premises from extreme freezing conditions. If alternative methods of winterizing are to be utilized, those methods shall be subject to approval from the property owner. The Licensee is expressly prohibited from shutting-off utilities at the Premises or placing said utilities on snow bird operations at any time during the term of this Agreement. 14.11. The Licensee expressly agrees to be responsible for any and all damage to and/or destruction of the Premises, the hot water heater that serves Unit C, and/or Unit C occurring during the term of this Agreement and caused by or resulting from the actions or omissions of the Licensee. The Licensee agrees to repair and replace said damaged or destroyed portions of the Premises, the hot water heater that serves Unit C, and/or Unit C, at the Licensee's sole expense, in accordance with all ordinances of the City and while this Agreement remains in effect. 15. PAYMENTS AND OTHER REPORTS TO THE CITY 15.1. The Licensee is required to submit certain payments, forms, financial statements, and other items on a timely basis. Failure to submit any of the required items in a timely fashion may result in a breach of the Agreement. 15.2. The Licensee, at minimum, shall make payments equivalent to 5% of the annual sum of the total adjusted gross receipts. The Licensee shall make said payment prior to February 1 of each year. 15.3. The Licensee shall make payments for the privilege of using the Premises of$200.00 per month for each month through the term of the Agreement, due prior to the first of each calendar month. 15.4. The Licensee shall provide the City with a security deposit in the amount of $1,000, to be due to the City prior to the start of the agreement term. Said deposit shall be held until after the end of the term of the Agreement, and will be used to offset any damage to the Premises. 15.5. The Licensee shall provide to the City, prior to the start of the Agreement, confirmation of insurance coverage for the Premises and the operations of the business for the entire term, with the City named as an additional insured on all policies. 15.6. Failure to meet any deadline for payment will result in an interest charge of 10% on said late payment. 15.7. The Licensee is required to submit to the Director of Parks and Recreation an annual concession financial statement by January 30 of each year. 16. PRINCIPAL CONTACT FOR THE CITY The principal contact for the City that will coordinate assistance to the Licensee will be Tim Evans, Director of Parks and Recreation. 17. EMPLOYEES The Licensee shall undertake to perform all services rendered in a neat, orderly and efficient manner; to use care and diligence in the performance of this Agreement; and to provide neat, orderly and courteous personnel. The Licensee agrees to prohibit any drinking of alcoholic beverages or use of illegal drugs or drugs which impair the ability of the employee or agent to safely and adequately perform his or her job while on duty or in the course of performing his or her duties under this Agreement. The Licensee also agrees to ensure that each employee driving a vehicle shall at all times carry a valid operator's license for the type of vehicle he/she is driving. The Licensee's employees will be attired, at all times, in a professional-type manner. 18. ACCIDENT PREVENTION Precaution shall be exercised at all times for the citizens, employees and property. The safety provisions of all applicable laws and building and construction codes shall be observed. Machinery, equipment and all hazards shall be guarded or eliminated in accordance with safety provisions. 19. TAXES, LICENSES & PERMITS The Licensee shall pay all sales, use,property, income and other taxes that are lawfully assessed against the City or the Licensee in connection with the Premises and the work included in this Agreement, and shall obtain and pay for all licenses, permits, certificates of authority, and inspections required for the work. The Licensee shall furnish to the City satisfactory evidence that it has all permits, licenses, and certificates of authority required to operate for the term of this Agreement. 20. DEFAULT If the Licensee fails to observe any portion of this Agreement and there has not been sufficient cause to justify such lack of observance, the City shall serve notice, either personally or by affixing such notice to the Premises, that this Agreement shall be in default if the Licensee does not take action to remedy the lack of observance within twenty-four(24) hours of said notice. If at the end of the twenty-four(24) hour period, the Licensee has not made the necessary corrections, the City shall take such steps as are necessary to provide such services. The Licensee will be liable for any costs of such steps from the date of the notice of default. If deemed necessary by the City's designated representative, the City shall have the right to take over all equipment and facilities of the Licensee. 21. CERTIFICATIONS 21.1. The Licensee makes the following certifications as required by law: 21.1.1. The Licensee certifies that it is not barred from bidding or contracting with any unit of State or local government as a result of a violation of either Section 33E-3 or 33E-4 of Act 5, Chapter 720 of the Illinois Complied Statutes regarding criminal interference with public contracting; and, 21.1.2. The Licensee swears under oath that it is not delinquent in the payment of any tax administered by the Illinois Department of Revenue as required by Chapter 65, Act 5, paragraph 11-42.1-1 of the Illinois Complied Statutes; and, 21.2. The Licensee shall at all times abide by all applicable federal, state, and City laws, ordinances, rules and regulations which may in any manner affect the performance of this Agreement. IN WITNESS, WHEREOF, the parties hereto have caused this License Agreement to be executed by their duly authorized officers on the day and year first hereinabove written. UNITED CITY OF YORKVILLE, KENDA COU YXCV S By: Its: M 4 og- Attest: City Clerk WHITE WATER ICE CREAM, INC. d/b/a FOXY'S ICE CREAM By: Its: lt�¢�0-c c(�n Attest: Secretary