Resolution 2019-42 Resolution No. 2019-42
A RESOLUTION APPROVING A LICENSE EXTENSION AGREEMENT
WITH GINGER& SOUL
(131 East Hydraulic Avenue, Unit C)
WHEREAS, the United City of Yorkville, Kendall County, Illinois (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 has entered into a License Agreement with Ginger& Soul, Inc. (the
"Tenant") for Unit C of 131 East Hydraulic Avenue, which contained an option to extend by
mutual consent; and,
WHEREAS, Tenant has requested to extend the License pursuant to the License
Agreement for a term of four(4) years; and,
WHEREAS,the City and Tenant have decided that it is in their mutual interests to exercise
the option to renew for an additional four(4)year term beginning at the Termination of the existing
term on December 31, 2019.
NOW,THEREFORE,BE IT RESOLVED by the Mayor and City Council of the United
City of Yorkville, Kendall County, Illinois, as follows:
Section 1. That the above recitals are incorporated herein and made a part hereof
Section 2. That the License Extension Agreement, attached hereto as Exhibit A and
made a part hereof by reference, is hereby approved, and Tim Evans, Director of Parks and
Recreation, is hereby authorized to execute said agreement on behalf of the United City of
Yorkville.
Section 3: This Resolution shall be in full force and effect upon its passage and
approval as provided by law.
Resolution No.2019-42
Page 1
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
26th day of November, 2019.
0604. Peeen;ita
City Clerk
KEN KOCH AYE DAN TRANSIER AYE
JACKIE MILSCHEWSKI AYE ARDEN JOE PLOCHER AYE
CHRIS FUNKHOUSER AYE JOEL FRIEDERS AYE
SEAVER TARULIS AYE JASON PETERSON ABSENT
Approve by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this
/%/ day of bFCEM/3Ei2 , 2019.
MAYOR
Resolution No.2019-42
Page 2
LICENSE EXTENSION AGREEMENT
This LICENSE EXTENSION AGREEMENT(the"Agreement")is renewed and entered into
this 31St day of December,2019,by and between the United City of Yorkville,Kendall County,
Illinois,a municipal corporation(hereinafter referred to as the"City"),and Ginger& Soul, Inc., 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 Avenue,Unit C,Yorkville (the"Premises"); and,
WHEREAS,the City and the Licensee desire to extend their current License Agreement,under the
new terms provided herein, 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.
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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. Certificate of Insurance
must approved by the City and the City's insurance agent.
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 insured" 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 coverage's 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 coverage's 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
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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 sub licensee unless written addendum is
approved and signed by the City, if the ownership at 131 E.Hydraulic Ave. changes.
This lease will be valid.
6. TERM OF AGREEMENT
The term of this Agreement shall be from December 31,2019 until December 31,
2023.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 for
any reason upon thirty(30)days written notice to the Licensee. Any 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 Ginger& Soul,Inc. 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.
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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:
Kate McNamara
Ginger& Soul, Inc.
131 East Hydraulic Street,Unit C
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/restaurant business in Unit C 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 shall have access to the furnace that serves Unit A&B of 131
East Hydraulic Avenue, Yorkville for the purposes of inspecting,repairing,replacing
and maintaining said furnace.
14.4. The Licensee shall be responsible for all taxes and personal property,and
maintenance work on the Premises.Any capital improvements done on the Premises,
excluding the hot water heater that serves Unit A&B, 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.
If any component of the Premises is in need of repair or replacement,and the repair
or replacement is greater than$1,000,then the City shall be responsible for repair or
replacement of said component.Any component in need of repair or replacement less
than$1,000 is the responsibility of the licensee. 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
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because of any damage to or destruction of the Premises,the hot water heater that
serves Unit A,B, and/or Unit C caused by or resulting from the actions or omissions
of the Licensee.Any capital improvements done on the Premises 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.
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 fundamental state,
subject to the discretion of the Park Board.
14.6. The Licensee does not have exclusive rights to all concession/restaurant
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
concession/restaurant 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.
14.8. The Licensee expressly acknowledges that it may reserve any portion of
Riverfront Park free of charge only one(1)time in each license year. If the Licensee
desires to reserve any portion of Riverfront Park more than one(1)time 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 agrees to pay all related utility
bills and share in the cost owed for any natural gas, sewer, garbage and water bills
between it and the Licensee of Unit A&B, even if the Licensee of Units A&B is
the City of Yorkville.A written agreement between Licensees of Units A&B and
Unit C concerning utilities must be agreed upon and submitted to the Director of
Parks and Recreation.
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,Unit C,the hot water heater that serves Unit A,B
&C,and/or Units A&B occurring during the term of this Agreement and caused by
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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 A,B &C,and/or Unit A&B, at the Licensee's sole expense,
including all fees above the $1,000 repair or replacement cost, 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 shall make payments for the privilege of using the Premises of
$700 per month the 1st year with a 5%increase in years 2, 3, and 4 through the term
of the Agreement,due prior to the first of each calendar month.
15.3.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. If no damages are found at the end of White
Water Ice Cream's final lease period, $1000 deposit will be refunded.
15.4.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.
15.5.Failure to meet any deadline for payment will result in an interest charge of
10%on said late payment.
15.6. 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
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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, 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.
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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 I \OF YORKVILLE, KENDALLCOUNTY, ILLINOIS
Byio. ;1;
176-
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Attest: orwa.. rickeAt
City Clerk
GINGER : SOUL, INC.
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Attest: % �%% �/�% �
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Secretary
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