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Ordinance 2011-23 Ordinance No. 2011- a3 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS,APPROVING A LEASE AGREEMENT WITH RIVER CITY ROASTERS (NORTHERN PORTION OF 131 E.HYDRAULIC AVENUE) WHEREAS, the United City of Yorkville (" 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, WHEREAS, the City is authorized pursuant to section 11-76-1 of the Illinois Municipal Code (65 ILCS 5/11-76-1) to lease real estate owned by the City when it is no longer necessary, appropriate, required for the use of,profitable to, or for the best interest of the City; and, WHEREAS, the City and River City Roasters have agreed to terms of a lease of the northern portion of the building at 131 E. Hydraulic Avenue for the purpose of operating a food concession business; and, WHEREAS, the Corporate Authorities of the United City of Yorkville hereby find that it is in the best interest of the City to enter into said lease. NOW, THEREFORE, BE IT ORDAINED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the building lease between the United City of Yorkville and River City Roasters, Concession Lease Agreement ("the Agreement") a copy of which is attached hereto a and incorporated herein as Exhibit A, is hereby approved. Section 2. That the Mayor and City Clerk, are hereby authorized to execute and deliver said Agreement on behalf of the City. Section 3. That the officials, officers, and employees of the United City of Yorkville are hereby authorized to take such further actions as are necessary to carry out the intent and purpose of this Ordinance and building lease. Section 4. This Ordinance shall be in full force and effect upon passage by a three fourths vote of the Corporate Authorities, approval, and publication as provided by law. 1 i Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of J(,t�/� , 2011. I dfik IDcPuTY CITY CLE ROSE SPEARS V DIANE TEELING GEORGE GILSON, JR. JACKIE MILSCHEWSKI CHRIS FUNKHOUSER �/ MARTY MUNNS V CARLO COLOSIMO \[ LARRY KOT Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this j day of TuN f ,A.D. 2011. k 1 MAYOR 2 CONCESSION LEASE AGREEMENT THIS CONCESSION LEASE AGREEMENT ("Agreement'), made and entered into this.,:Q_5 day of June, 2011, by and between the United City of Yorkville, a municipal corporation, hereinafter referred to as "City," and Erick Goepel of Aurora, Illinois d/b/a River City Roasters,hereinafter referred to as "Lessee." WITNESSETH: WHEREAS, after due consideration of written proposals for the operation of a concession snack shop at Riverfront Park, the City has accepted the proposal and qualifications of the Lessee, and, WHEREAS, the City and Lessee have reached an understanding concerning the operation of said concession and agree as follows: 1. PURPOSE It is the intent of this Agreement to provide a non-exclusive privilege for a food and beverage concession operation for the sale of coffee and other beverages and sandwiches and other food(except chewing gum, beer, wine, tobacco products and intoxicating liquors) at Riverfront Park. All food stuff and commodities sold by Lessee shall be of the best quality, all service prompt and courteous, all personnel shall be clean and presentable and the facility, including all equipment, shall be kept in accordance with required health standards and the ordinances of the City. 2. TERM The term of this Agreement shall be for two (2) years commencing the date of execution and terminating on the second anniversary thereof. The City shall have the option to renew for an additional two (2) year term with terms and conditions as mutually agreeable to the parties. - Should at the end of any term of this Agreement,the City and Lessee fail to renew for an additional two (2) year term, this Agreement shall end and the City shall be able to enter into discussions with other parties to attempt to come to a new agreement. If terms for renting the Premises are reached with another party, the Lessee shall be advised of those terms and shall, within ten (10) days of its notice, notify the City of its rejection or tentative acceptance of those terms. The City and Lessee shall then enter into further discussions regarding the tentative acceptance of those terms to attempt to come to a mutual agreement. Failure of the City and Lessee to come to a mutual agreement within fourteen (14) days after the Lessee's tentative notice of acceptance to the City shall result in the Lessee having no further interest in an agreement to rent the Premises and the City may enter into an agreement with any other party for those services. Pagel of 8 3. OPERATING SPECIFICATIONS A. The Lessee shall operate its business at the northern portion of the premises generally located at 131 E Hydraulic Street in Yorkville, and as shown on Exhibit (the "Prep ises"). B. An inventory of all equipment now located at the Premises will be made jointly by the Lessee and the City and such shall be attached to this Agreement as Exhibit B. The Lessee is responsible for providing all the necessary equipment for its operation. C. The City shall have the right at all times to inspect the premises occupied by the Lessee in conducting its services and sales. D. The Lessee shall conduct ordinary day to day maintenance and minor repairs necessary to keep the Premises in an acceptable condition. The Lessee shall keep the counter, tabletop, chairs, walls, fixtures, cooking areas and floors cleaned in accordance with the requirements of the City and County Health Departments and ordinances of the City. The Lessee shall also be solely responsible to clean and maintain the public bathrooms, in accordance with City and County ordinances, and have them available to the public for use. All Health Department reports shall be immediately transmitted to the Park and Recreation Director for review. Lessee shall furnish all cleaning supplies and materials needed to maintain the Premises in the above described manner. For the purposes of this Agreement, maintenance work shall include regular upkeep of all components of the building, including maintenance and repairs. E. It is hereby acknowledged that the Lessee shall remodel the Premises to include a conference room with approximately 350 square feet (the "Conference Room") which undertaking has been heretofore approved by the Park Board. The Lessee agrees that the construction of the Conference Room will be in accordance with a building permit and all applicable ordinances of the City. Upon completion, the Lessee agrees to permit the City preferential use of the Conference Room at no charge to the City. F. The Lessee shall have the right to make capital improvements to the Premises on the following conditions: (i) all improvements shall be approved by the Park Board prior to commencement; (ii) if any component of the Premises 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 the Page 2 of 8 building component, provided the cost of repair of the component is greater than 50% of the cost of replacing the component; and, (iii) any capital improvements done on the premises of$10,000 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. G. At the end of the agreement term, the City shall conduct an inspection of the Premises, and the Lessee shall be informed of the outcome of said inspection. The Lessee will deliver the premises, and all City owned equipment to the City at the termination of this Agreement in good conditions and state of repair as when received except for ordinary wear and tear or damage caused by an Act of God, subject to the discretion of the Park Board. H. The Lessee does not have exclusive rights to all concession operations within Riverfront Park, but rather, only to the specific operation at the specific location as described in this Concession Lease Agreement. I. The Lessee shall be permitted to operate a business offering the following goods and services in the Premises, without further action by the City, and all other uses and operations must be approved by the City: (i) food and beverages for consumption on- and off-premises; and, (ii) the Lessee shall not permit any alcoholic beverages to be sold or consumed on the Premises during the term of this Agreement; unless approval is received form the City and all required permit and insurance requirements are met. J. The City agrees to furnish to the Lessee access to City water and sewer utilities. The Lessee is responsible for applicable usage payments for all utilities (sewer, water, electricity, phone, internet, etc.). The Lessee is responsible for costs associated with utility connections and upgrades, including metering of the portion of the building to be used. All storage of material and equipment shall be within the premises. K. If the Lessee chooses not to occupy the building through the winter months, the Lessee shall take all necessary precautions and measures to properly winterize the building. These precautionary measures shall include,but not be limited to,maintaining a minimum level of heat no less than 50 degrees Fahrenheit to protect the building from extreme freezing conditions. If alternative methods of winterizing are to be utilized, those methods shall be subject to approval from the City. Page 3 of 8 L. No display signs, menus or advertising materials of any kind shall be used or placed on the exterior of the Premises or of the building except with prior approval of the Park and Recreation Director. M. The Lessee agrees to open the concession, upon request by the City, for special functions or events at the Riverfront Park. The Lessee will be allowed to use discretion regarding closing during periods of non activity. 3. PAYMENTS AND OTHER REPORTS TO THE CITY 1.1. Failure to submit any of the required statements, accountings or payments as due,may result in breach of this Agreement. 1.2. The Lessee agrees to pay to the City as compensation for the concession rights and for the use of the Premises the following minimum sums: (i) on February 1 of each year during the term of this Agreement, five percent (5%) of the annual total gross receipts; (ii) rental payments of $250 per month for each month through the term of this Agreement, due prior to the first of each calendar month; a security deposit in the amount of$1,000, to be due to the City upon execution of this Agreement. Said deposit shall be held until after the termination of the Agreement or any renewal and may be used to offset any damage to the premises. 1.3. The Lessee shall provide to the City, at execution of this Agreement, confirmation of insurance coverage for the Premises and the operations of the business for the entire term, with the City named as additional insured on all policies. 1.4. Failure to meet any deadline for payment will result in an interest charge of 10% on said late payment. 1.5. The Lessee is required to submit a certified statement of the gross receipts from its operation on January 30 of each year during the term of this Agreement. 4. INSURANCE REQUIREMENTS A. Prior to the beginning of the contract period, Lessee and shall procure, maintain and pay for such insurance as will protect against claims for bodily injury of death, or for damage to property, including loss of use, which may arise out of operations by the Lessee or its employees. Such insurance 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: Page 4of8 Employers Liability $1,000,000 Each Accident $1,000,000 Disease Policy Limit Disease Policy Limit $1,000,000 Each Employee Comprehensive General Liability $2,000,000 Each Occurrence $2,000,000 Aggregate Commercial Automobile Liability $1,000,000 Each Accident B. Workers' Compensation coverage shall be required with coverages as required by the laws of the State of Illinois in the event the Lessee employees any individuals and shall include a waiver of subrogation against the City. C. Comprehensive General Liability, Employers Liability and Commercial Automobile Liability Insurance may be arranged under single policies for full minimum limits required, or by a combination of underlying policies with the balance provided by Umbrella and/or Excess Liability policies. D. Lessee shall have their respective Comprehensive General Liability (including products/completed operations coverage), Employers Liability, Commercial Automobile 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; claims for bodily injury or death brought against City by any Lessee 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. E. Lessee shall maintain in effect all insurance coverages hereinabove required at their 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 Lessee 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 Lessee, or withhold funds in an amount sufficient to protect the City, or terminate this Agreement pursuant to its terms. F. All insurance policies shall contain a provision that coverages and limits afforded hereinabove 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 fifteen (15) days prior to the expiration date of any of the required policies. All Certificates of Insurance shall be in a form acceptable to City and shall provide satisfactory evidence of compliance with all insurance requirements. The City shall not be obligated to review Page 5 of 8 i such certificates or other evidence of insurance, or to advise Lessee of any deficiencies in such documents, and receipt thereof shall not relieve the Lessee from, nor be deemed a waiver 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. G. The Lessee shall indemnify and save the City harmless from and against any loss, damage, or liability occasioned by, growing out of, or arising or resulting from any default hereunder, or any tortuous or negligent act on the part of the lessee or its agents or employees. 5. SUBLETTING OF CONTRACT I This Agreement shall be not assigned or any part sub-contracted without the written consent of the Board of Parks and Recreation. In no case shall such consent relieve the Lessee from their obligation or change the terns of the contract 6. TERMINATION OF CONTRACT The City reserves the right to terminate the whole or any part of this contract, upon thirty (30) days written notice to the Lessee, in the event of default by the Lessee. Default is defined as failure of the Lessee 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 Lessee 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 Lessee. 7. TAXES,LICENSES & PERMITS The Lessee shall pay all sales, use, property, income, and other taxes that are lawfully assessed against the City or the Lessee in connection with the Lessee's facilities and the work included in this Contract, and shall obtain and pay for all licenses, permits, certificates of authority, and inspections required for the work. The Lessee shall furnish to the City satisfactory evidence that it has all permits, licenses, and certificates of authority required to operate for the tern of this contract. 8. STATUS OF LESSEE The parties agree that neither Lessee nor Lessee's employees are employees of the City. Page 6 of 8 i 9. RELEASE City assumes no responsibility for the loss or damage of Lessee's property or improvements placed on or in the premises and Lessee hereby expressly releases and discharges Lessor from any and all liability for loss to such property or improvements. City shall not be liable for any financial loss incurred by Lessee due to unforeseen or uncontrollable events which cause failure of any or all or the facilities to operate during the term hereof. 10. NOTICES Any notices concerning this Agreement may be given, and all notices required by this Agreement or concerning performance under this Agreement shall be given in writing and shall be personally delivered or mailed addressed as shown below, or such other address or addresses as may be designated by either of the parties, in writing, from time to time. To the City: Bart Olsen, City Administrator 800 Game Farm Road Yorkville, Illinois 60560 With a copy to: Kathleen Field Orr, City Attorney Kathleen Field Orr and Associates 53 West Jackson Blvd. Suite 935 Chicago, Illinois 60604 To River City Roasters: 11. LESSEE CERTIFICATIONS A. Lessee certifies that it is not barred from bidding or contracting with the Village as a result of a violation of either Paragraph 33E-3 or 33E-4 of Act 5, Chapter 720 of the Illinois Compiled Statutes regarding criminal interference with public contracting, and B. 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 of the Illinois Compiled Statutes, and Page 7of8 C. States that is has a written sexual harassment policy as required by the Illinois Human Rights Act (775 ILCS 5/2-105(A) (4) a copy of which shall be provided to the Village upon request, and D. Complies with the civil rights standards set forth in Title VII of the Civil Rights Act as mandated in Executive Order No. 11246, U.S.C.A. Section 2000e n.114 (September 24, 1965) 12. COMPLIANCE WITH LAWS All work under this Agreement shall be executed in accordance with 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 Agreement to be executed by the parsons duly authorized thereto the day and year first hereinabove written. The United City of Yorkville, A41f Mayor Attest: P -DEPUTY City Clerk River City Roasters 1004-L i Y� By: Page 8 of 8