HomeMy WebLinkAbout15-126 Resolution No. 15-126
RESOLUTION
AUTHORIZING EXECUTION OF RESTAURANT LEASE
AND SERVICES AGREEMENT WITH PORTER'S PUB PAYROLL PPP, LLC
FOR RESTAURANT AND RELATED SERVICES OPERATIONS AT BOWES CREEK
COUNTRY CLUB
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS
that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized
and directed to execute a Restaurant Lease and Services Agreement on behalf of the City of Elgin
with Porter's Pub Payroll PPP, LLC for restaurant and related services operations at the Bowes
Creek Country Club, a copy of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: September 23, 2015
Adopted: September 23, 2015
Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
RESTAURANT LEASE AND SERVICES AGREEMENT
THIS LEASE AND SERVICES AGREEMENT(hereinafter referred to as the"Agreement")
is made and entered into this 23rd day of September , 2015, by and between the City of
Elgin, an Illinois municipal corporation (hereinafter referred to as the "Lessor"), and Porter's Pub
Payroll PPP, LLC, an Illinois limited liability corporation(hereinafter referred to as"Lessee"),and
constitutes a lease between the parties of the Premises as identified in the Basic Lease Provisions
below, on the terms and conditions and with and subject to the covenants and agreements of the
parties hereinafter set forth.
WITNESSETH:
WHEREAS, Lessor owns and operates a golf course and clubhouse associated therewith,
commonly known as Bowes Creek Country Club(hereinafter referred to as the"Bowes Creek");and,
WHEREAS, Lessee operates and has provided restaurant consultant services to multiple
restaurant facilities, which provide dining, catering and other bar services for its customers; and,
WHEREAS, Lessor desires that Lessee develop, operate and provide certain restaurant,
banquet service, full-service bar, concession and on-course beverage service at Bowes Creek, in
accordance with the terms and conditions of this Agreement; and,
WHEREAS,Lessee has provided such services for the Lessor at Bowes Creek since April of
2011,pursuant to a Restaurant Management Services Agreement,said agreement terminating at the
end of the 2012 Operating Year, December 31, 2012, and pursuant to a Restaurant Lease and
Services Agreement dated January 11, 2012, said agreement terminating at the end of the 2015
Operating Year, December 31, 2015; and,
WHEREAS, the parties desire that the Lessee continue with the operation of the restaurant
and related services in accordance with the terms and conditions of this Agreement; and,
WHEREAS,Lessee desires and is ready, willing and able to provide such services upon the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as
follows:
1. Basic Lease Provisions.
The following are certain lease provisions which are part of,and,in certain instances,referred to,in
subsequent provisions of this Agreement:
Lessor's Name and Address: City of Elgin, 150 Dexter Court, Elgin, IL 60120-5555.
Lessee's Name and Address: Porter's Pub Payroll PPP,LLC,2001 Butterfield Road,Downers
Grove, IL 60515
Premises: Certain premises located at Bowes Creek Country Club, 1250
Bowes Creek Boulevard,Elgin,Kane County,Illinois 60124,and
consisting of approximately 7500 square feet within the
clubhouse, as more particularly identified on Exhibit A,attached
hereto and incorporated herein by this reference (hereinafter
referred to as the "Premises").
2. Grant.
2.1 Grant. Lessor hereby grants to Lessee,and Lessee takes from Lessor,the Premises in
consideration for the covenants to be performed by Lessee.
2.2 Possession. Lessor and Lessee hereby agree that Lessee having previously taken
possession of the Premises shall be deemed conclusive evidence of Lessee's acceptance of the
Premises in satisfactory condition and in full compliance with all covenants and obligations of
Lessor in connection therewith. Lessee agrees that it has accepted possession of the Premises in a
"where-is,""as-is"condition and that Lessor has made no representations or inducements respecting
the condition of the Premises to Lessee, and that Lessor has made no warranty,express or implied,
with regard to suitability for a particular purpose of the Premises, nor any fixture nor equipment
subject to this Agreement. Lessor expressly disclaims any warranty regarding the presence or
absence of any environmental hazard on, upon, beneath or within the Premises to include the
presence of asbestos or other material.
3. Rent.
3.1 Rent. For all of the Premises during the entire term of this Agreement, Lessee
covenants and agrees to pay Lessor,in lawful money of the United States,without any prior demand
and free from all claims, demands, set-offs or counterclaims of any kind, the following amounts in
Rent:
Retention of Lessee's Services as Annual Base Rent. As Annual Base Rent for all of the
Premises during the entire term of this Agreement, Lessee covenants and agrees to provide
the following services to the City: develop, operate,manage and provide certain restaurant,
banquet service,full-service bar,concession and on-course beverage services at the Premises
(such services are hereinafter referred to as the "Food and Beverage Operations") for the
purposes and on the terms and conditions set forth in this Agreement,provided that Lessee
shall have no right or authority, express or implied,to commit or otherwise obligate City in
any manner whatsoever except to the extent specifically provided for in this Agreement.
Percentage Rent. In addition to the Annual Base Rent, Lessee shall pay to Lessor as
additional compensation five percent (5%) on only those amounts of Gross Revenues that
exceed One Million One Hundred Thousand Dollars ($1,100,000) in any Operating Year.
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Payment of any additional compensation due as Percentage Rent under this Agreement shall
be made within sixty (60) days at the end of the Operating Year for which it is due. The
additional compensation amount shall be automatically increased by five percent (5%) if
received by the Lessor after the 5t'' day from the date which it is due.
3.2 Gross Revenues. Any Gross Revenues generated,earned,or received from the Food
and Beverage Operations shall be retained by the Lessee. For the purposes of this Agreement,the
term"Gross Revenues"shall mean all revenues,from whatever source,received by the Lessee from
or in respect of the operation of the Food and Beverage Operations,and from any income generating
activity associated with the Food and Beverage Operations. Without limiting the foregoing, "Gross
Revenues" shall mean all monies or other consideration paid or payable to Lessee, its officers,
employees and agents from all business conducted upon or from the Premises by Lessee and all
others, and whether such sales be evidenced by cash, check, credit charge account, exchange or
otherwise,and shall include,but not be limited to,the amount received from the sale of goods,wares
and merchandise and for services performed on or at or originated from the Premises,together with
the amount of all orders taken,received or originated at the Premises or sales completed by delivery
at the Premises, whether such orders be filled from the Premises or elsewhere. Each charge or sale
upon installment or credit shall be treated as a sale for the full price in the month during which such
charge or sale shall be made, irrespective of the time when Lessee shall receive payment(whether
full or partial)thereof. No deductions of any kind shall be made from Gross Revenues,including but
not limited to any uncollected or uncollectible installment or credit accounts,credit card discounts or
thefts.
Any provisions of this Agreement to the contrary notwithstanding, Gross Revenues includes only
those revenues generated from or in respect to the Food and Beverage Operations, and does not
include any other revenues generated with respect to Bowes Creek Country Club,including,but not
limited to, the operations of the Bowes Creek golf course and pro shop.
3.3 Expenses. Unless another provision of this Agreement expressly provides that the
Lessor is responsible for an expense under this Agreement, Lessee shall be solely responsible for,
and shall pay when due, all expenses incurred by Lessee and its officers, employees and agents, in
connection with the Food and Beverage Operations or in any way related to this Agreement.
3.4 Operating Year. For the purposes of this Agreement,an"Operating Year"shall run
from January 1 of a calendar year to December 31 of the same calendar year, inclusive.
4. Security Deposit.
4.1 Security Deposit. No security deposit shall be required.
5. Term.
5.1 Effective Date. This Agreement shall be effective and binding as of the date first set
forth above (the "Effective Date").
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5.2 Term. The Term of this Agreement shall commence on January 1, 2016, and shall
continue in full force and effect until December 31,2019,unless terminated prior thereto as provided
in this Agreement.
5.3 Subsequent Term. This Agreement shall automatically renew for a subsequent term
commencing on January 1, 2020, and continuing until December 31, 2023, unless either party
notifies the other party in writing of its intention not to enter into such subsequent term not less than
one hundred and eighty (180) days before December 31, 2019. Either party may terminate this
Agreement as provided in this Agreement.
6. Accounting and Right to Inspect Records.
6.1 Monthly Reports. Beginning on the second month of the Term of this Agreement,
and continuing until and including the month immediately following the termination or expiration of
this Agreement,on or before the twentieth(20th)calendar day of each calendar month,without prior
demand,Lessee shall submit to Lessor reports setting forth the amount of Lessee's Gross Revenues
for the preceding calendar month. Such reports shall, at a minimum, reflect total Gross Revenues,
Gross Revenues by Lessee's operation within the Premises, and Gross Revenues by category(e.g.,
food, alcoholic beverages, etc.). Such reports shall be in a form acceptable to Lessor, and shall be
accompanied by a statement of Lessee that,to the best of its knowledge,the information contained in
the report is true, accurate and complete.
6.2 Records. Lessee shall keep full and accurate books and pertinent original and
duplicate records showing all of Lessee's revenues and expenses from the Food and Beverage
Operations. Such records shall be kept in a form consistent with good accounting practices for at
least a three(3)year period after the expiration or earlier termination of this Agreement. Lessee shall
make available such books and records at Bowes Creek within thirty (30) days of any request by
Lessor. Lessor shall have the right itself or through its representatives at all reasonable times to audit
and otherwise examine and inspect such books and records,including sales tax returns for the State
of Illinois. Pertinent original records shall include,but not be limited to,the following: (a)point of
sale systems records; (b) cash register tapes, including tapes from temporary registers; (c) serially
numbered sales slips; (d) such other sales records that would normally be examined by an
independent accountant pursuant to accepted accounting standards in performing an audit of Lessee's
profits or Gross Revenues;(e)employee time records;(f)records of payments made pursuant to this
Agreement.
6.3 Annual Report. Lessee shall also furnish a written report to Lessor listing Lessee's
profit and loss statement from the Food and Beverage Operations, including all of the Gross
Revenues, Cost of Goods Sold, Labor Expenses, and Operating Expenses, during the preceding
Operating Year. An officer of Lessee who holds at a minimum the title of Vice-President shall
certify Lessee's report, and the report shall further be certified by an independent certified public
accountant. Such report shall be completed within sixty (60) calendar days after the end of the
Operating Year.
6.4 Lessee shall, within thirty(30) days of preparation thereof,provide Lessor with any
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copies of any financial statements,quarterly or annual shareholder reports,internal or external audit
reports or any other publications of Lessee relating to Lessee's operation of the Premises.
7. Conduct of Business and Use of Leased Premises by Lessee.
7.1 Use and Occupancy. Lessee shall have the right, privilege and obligation to
continuously and uninterruptedly use and occupy the Premises in accordance with the provisions of
this Agreement,solely for the purposes of developing and providing restaurant,banquet service,full-
service bar, concession and on-course beverage service through Porter's Pub at Bowes Creek
Country Club, and for no other purposes whatsoever.
7.2 Use of Porter's Pub Name; Reliance on Lessee. Lessee's business in the Premises
shall be conducted under the common name of Porter's Pub. Lessee shall not use or permit the
Premises to be used under any other trade name without Lessor's written consent. Lessee
acknowledges and hereby agrees that the identity, skill, experience and reputation of Lessee, the
specific character of Lessee's business, the anticipated use of the Premises, and the relationship
between such use and other uses within Bowes Creek Country Club were all relied upon by Lessor
and served as significant and material inducements contributing to Lessor's decision to enter into this
Agreement with Lessee. Any change in the character of Lessee's business, trade name or use
without Lessor's written consent shall constitute a material breach under this Agreement.
7.3 Menus. Lessee shall provide all menus. The menu shall be mutually agreed upon by
Lessee and Lessor's Director of Golf Operations. Menus shall be of excellent quality and sufficient
in number to meet peak period demands. Changes to the menus or to pricing shall be mutually
agreed upon by Lessee and Lessor's Director of Golf Operations. Sampling shall be required for all
new menu items and approved by Lessor's Director of Golf Operations. In the event Lessor's
Director of Golf Operations,in his or her sole opinion,determines that any item or service displayed,
offered for sale or sold by Lessee is objectionable, Lessee shall, upon written notice from Lessor's
Director of Golf Operations, immediately remove such item or service from display and from its
inventory and Lessee agrees that it shall not thereafter display, offer for sale, or sell such item or
service.
7.4 Advertising. Lessee shall not offer for sale or advertise any item,product, service or
thing which is not available within the Premises. This paragraph is not intended to limit or disallow
Lessee from advertising Lessee's products or services available at Bowes Creek Country Club, as
provided herein.
7.5 Ingress and Egress. Lessee or Lessee's agents shall have the non-exclusive right of
ingress and egress from the Premises at all reasonable times.
7.6 Access. Lessee shall have access to all Bowes Creek's refrigerators,freezers,ovens,
coolers and employee spaces as may be deemed necessary by Lessor's Director of Golf Operations.
Lessee shall hold Lessor harmless from and against any suits,causes of action,claims for damages,
or other liability arising out of or in connection with any injury to any person or property as a result
of Lessee's use of such refrigerators,freezers, coolers,ovens and employee spaces. All such fixtures
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and equipment shall remain the property of the Lessor, and shall not be removed from, and shall
remain with,the Premises following the expiration or termination of this Agreement.
7.7 Staff and Supplies. Lessee shall supply,at its own expense, all staff and operational
supplies necessary to manage and operate Porter's Pub as a full-service bar, restaurant, banquet
facility,concession operations and on-course beverage service established within the Bowes Creek
Country Club property. Lessor has previously supplied a beginning inventory of tables,equipment,
silverware,flatware,glassware,cookware and utensils. Additionally,Lessor has previously provided
a beginning inventory level of food and liquor prior to the previous Restaurant Management Services
Agreement and Restaurant Lease and Services Agreement. The inventory shall be maintained by
Lessee, replacing any items that are damaged or lost. All such inventory, whether originally
provided or replaced by Lessee, shall remain the property of the Lessor, and shall not be removed
from,and shall remain with,the Premises following the expiration or termination of this Agreement.
Lessee shall provide additional servers,linens,plates,centerpieces and other accoutrements as may
be reasonably required from time-to-time. Such additional servers and materials shall be included in
any"per plate"price.
7.8 All labor, food, food-related costs, miscellaneous food and beverage operating
expenses, equipment replacement, linen service, grease removal service, staff uniforms, office
expenditures and marketing costs shall be at Lessee's sole cost and expense. All utilities,electricity
service, natural gas service, water and sewer service, telephone service, trash removal service,and
general building and facility maintenance shall be at Lessor's sole cost and expense. General
maintenance does not include the cleaning of the areas of the Premises occupied by the Food and
Beverage Operations to comply with local health codes.
7.9 Hours of Service. Lessor has established minimum hours of service for each
operational area, based upon business volume and customer service needs. Lessee shall be
continuously and uninterruptedly open for business and provide all services and sales activities as
required by the Agreement at such minimum hours unless prior arrangements are made with and
approved in writing by Lessor's Director of Golf Operations or his appointed designee. The
minimum hours of operation shall be as follows:
Prime Season. The Clubhouse shall be open from April 1 to September 30 with seven (7)
days per week operation and full food and beverage service. The Restaurant shall be open
from 11:00 a.m. through 9:00 p.m. for lunch and dinner service. The Turn Stand shall be
open from 7:00 a.m.through 6:00 p.m. Beverage cart service will be required from May 15
through September 15, and will be provided for such hours as determined by the Lessor's
Director of Golf Operations.
Shoulder Season. The Clubhouse will have reduced hours of operation in the months of
March and October,with seven(7)days per week operation as the facility gears up or slows
down, respectively. The Restaurant shall be open from 11:00 a.m. through 3:00 p.m. for
lunch on Monday through Thursday. The Restaurant shall be open from 11:00 a.m. through
9:00 p.m. for lunch and dinner service on Friday and Saturday. The Turn Stand shall be
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closed. Beverage cart service will be required as agreed upon by Lessor's Director of Golf
Operations and Lessee. Modifications to this schedule will be made for banquets only.
Off Season. The Clubhouse will have limited hours of operation from November 1 through
February 28, with reduced service days. The Restaurant shall be closed Saturday through
Monday,and shall be open from 11:00 a.m.through 3:00 p.m.for lunch on Tuesday through
Friday. The Turn Stand shall be closed.
Hours of operation of the bar may extend until 2:00 a.m., as per local municipal codes and
Lessee's liquor license.
7.10 Lessee shall be required, in each of the individual locations which comprise the
Premises,to prominently post in an area visible to employees and the public the most current copy of
Lessee's hours of operation.
8. Operational Standards.
8.1 Adherence to Standards. Lessee,its employees,agents,and servants shall at all times
observe,obey and adhere to all the standards,rules,regulations and procedures that may from time to
time be promulgated by Lessor. Lessee shall also submit to Lessor a copy of any customer service,
operations or organizational standards,rules,regulations and procedures that may from time to time
be promulgated by Lessee, and shall ensure continuous adherence to Lessee's own standards in
addition to Lessor's standards as set forth herein. Further,Lessee,its employees,agents and servants
shall comply with all with all applicable federal,state,city and other requirements of law,including,
but not limited to, any applicable requirements regarding prevailing wages, minimum wage,
workplace safety and legal status of employees. Without limiting the foregoing, Lessee hereby
certifies,represents and warrants to the Lessor that all Lessee's employees and/or agents who will be
providing products and/or services with respect to this Agreement shall be legal residents of the
United States. Lessee shall also at its expense secure all permits and licenses,pay all charges and
fees and give all notices necessary and incident to the due and lawful prosecution of the work,and/or
the products and/or services to be provided for in this Agreement. Lessor shall have the right to
audit any records in the possession or control of Lessee to determine Lessee's compliance with the
provisions of this paragraph. In the event Lessor proceeds with such an audit, Lessee shall make
available to Lessor the Lessee's relevant records at no cost to Lessor. Lessor's Director of Golf
Operations,in his or her sole opinion,shall have the right to determine Lessee's compliance with all
operational standards, rules,regulations or procedures.
8.2 Care of Premises. Lessee shall keep the Premises (including the service areas
adjacent to the Premises,windows,and signs)orderly,neat, safe,and clean. The kitchen,bar and all
food-related facilities shall be cleaned and disinfected by Lessee's staff at such levels as required by
applicable codes and as deemed necessary by Lessor's Director of Golf Services. Lessor shall
provide basic janitorial services to the common areas of the Premises.
8.3 Testing and Inspection by Lessor. Lessee hereby acknowledges and agrees that
Lessor may monitor, test or inspect Lessee's services at any time through the use of its own direct
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review and/or the use of third parties and/or by other reasonable means that do not unduly interfere
with Lessee's business.
8.4 Lessee Conduct of Business. Lessee shall operate its business in the Premises so as to
maximize the gross sales produced by such operations and shall maintain an adequate staff of
employees and maintain in the Premises at all times a stock of merchandise as is reasonably designed
to produce a maximum return.
8.5 Entertainment Systems. No radio,television, antenna,aerial or other similar device
shall be installed without first obtaining in each instance Lessor's Director of Golf Operations'
written consent. Any radio, television, antenna, aerial or other similar device, so installed without
such prior written consent shall be subject to removal and/or forfeiture without notice at any time.
The cost of said removal shall be borne by Lessee. No loudspeakers, televisions, phonographs,
radios, or other devices shall be used in a manner so as to be heard or seen outside the Premises
without the prior written consent of Lessor's Director of Golf Operations.
8.6 Delivery. All loading and unloading of goods, the delivery or shipping of
merchandise, supplies, and fixtures to and from the Premises shall be done only at such time, in the
areas, and through the routes designated for such purposes by Lessor. Lessee shall be required to
make significant efforts to avoid using the public areas for large quantity deliveries during peak
periods. Lessee shall ensure that any items being transported within Bowes Creek are handled with
care in a manner that ensures that items are safely packaged within appropriate containers.
8.7 Plumbing Facilities. The plumbing facilities in the Premises shall not be used for any
purpose other than that which they are constructed, and no foreign substance of any kind shall be
thrown therein,and the expense of any breakage, stoppage,or damage resulting from a violation of
this provision,wherever such occurs, shall be borne by Lessee.
8.8 Method of Payment. Lessee shall accept and honor U.S. currency,major companies'
travelers-type checks and at least the following three major credit cards:American Express,Visa and
MasterCard for any purchase.
8.9 Point of Sale Devices. Lessee shall install and use,or cause to be installed and used
at the Premises, cash registers, sales slips, invoicing machines and other automatic accounting
equipment or devices required to properly and accurately record the Gross Revenues on all sales,by
type and location,services,and other business transactions made by Lessee under this Agreement all
of which are in conformance of Bowes Creek Country Club specifications. Lessee shall be
responsible for providing annual service to the Point of Sale System and maintaining the same in
good working order. All transactions recorded on these devices shall be visibly displayed so that the
amount recorded can be viewed by customers from a reasonable distance. All persons handling sales
shall promptly recover said sales(cash or credit)in cash registers and other electronic or mechanical
devices and shall not delay or"gang"register or record such sales.
8.10 Level of Service. Lessee shall conduct its operations in a first-class manner in
accordance with the highest standards. Lessee shall conduct its operation to provide prompt and
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timely service. Lessee shall maintain its Premises and conduct its operations at all times in a safe,
clean, orderly and inviting condition, to the satisfaction of Lessor's Director of Golf Operations.
Lessee shall not create any nuisance, annoy, or be offensive or disturbing to others.
8.11 Management. All Lessee's operations shall be supervised at all times by an active,
qualified, competent manager or a qualified assistant manager in the manager's absence. The
manager or qualified assistant manager shall be available at the Premises during Lessee's hours of
operation. Said manager shall have full authority to make day-to-day business decisions on behalf of
Lessee with respect to the Premises and shall be responsible for ordering and receiving merchandise,
maintaining merchandise and supplies, and supervising sales personnel and other personnel
employed in the business of Lessee, represent Lessee in dealings with Lessor, and coordinate all
concession activities with Lessor. Lessee shall also designate such manager or qualified assistant
manager to attend a weekly golf managers' meeting. Lessee and such persons employed or
designated by Lessee to manage or supervise the Food and Beverage Operations shall report directly
to the Lessor's Director of Golf Operations.
8.12 Staffing Levels. Lessee shall recruit,train,supervise,direct and deploy the number of
representatives,agents and employees,collectively referred to as"personnel,"necessary to promptly
provide services to all customers and to meet all of the requirements of this Agreement. Lessee shall
be continuously responsible for actively managing personnel levels to ensure that changes in
passenger activity, due to schedule changes, load factor changes or flight delays are adequately
accommodated through increased levels of personnel. Upon Lessor's Director of Golf Operations'
or his or her designee's reasonable request, Lessee shall remove any employee, agents, partner or
assign from the building and not allow that person to again serve without the written approval of
Lessor's Director of Golf Operations or his or her designee.
8.13 Personnel. Lessee shall ensure that all personnel utilized in its Premises shall
conform to the following:
a. All personnel employed by Lessee shall be neat, clean and courteous at all times.
Lessee shall provide and maintain uniforms for all employees.
b. Lessee shall insure that employees working at Bowes Creek Country Club report to
work and remain drug-free during all work hours.
c. All Lessee employees shall be subject to criminal background checks performed
Illinois State Police at Lessee's cost and effort. Lessee's hiring of any employee or
prospective employee having a criminal record shall be subject to the sole discretion
of Lessor's Director of Golf Operations.
d. No loud, boisterous or otherwise improper actions or language shall be permitted
while on or about Bowes Creek Country Club.
e. All personnel shall be attentive to customer needs, display a positive attitude and
refrain from discussing personal issues/problems within the sales areas of the
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Premises.
f. All personnel shall know and utilize practices of good customer service, such as the
following: (1) assisting customers with purchase decisions; (2) identify product
alternatives; (3) possess and display good product knowledge; and (4) utilize
appropriate suggestive selling.
g. All personnel shall provide warm, friendly, smiling, prompt and courteous service.
h. All necessary personnel shall be proficient with and trained in the required operations
of all equipment and devices used in the Premises to facilitate sales(i.e.point of sale
devices, credit card transaction equipment, etc.).
i. All personnel shall be familiar will all applicable polices of this Agreement, Bowes
Creek and Lessee.
j. All personnel engaged in sales activities shall speak and comprehend English at a
level appropriate to their duties.
8.14 Customer Complaints. Lessee shall be required to respond to any complaints in
writing within ten (10) days of receipt, with a good faith effort to explain, resolve or rectify the
corresponding problem. Lessee shall provide Lessor with a copy of any complaint received the same
day it is received by Lessee and shall provide Lessor with a copy of the written response the same
day it is sent. Complaints received by Lessor shall be forwarded to Lessee, who shall respond
utilizing the above procedure.
8.15 Pricing. Lessee acknowledges by its entering into this Agreement,Lessor's desire and
obligation to provide the public with a mix of high-quality products and a high-level of public
service at prices comparable to off-site locations from Bowes Creek Country Club. The increase of
any items' or services'price by Lessee without the prior written consent of Lessor shall be deemed a
material breach of this Agreement.
8.16 Product. All items sold or offered at the Premises shall be first quality and conform to
all applicable regulations. Lessee shall at all times maintain the degree of quality and quantity for all
items offered for sale comparable to items offered for sale at similar restaurants in the area
commonly referred to as the"Fox Valley." The quality,quantity and specifications of all items shall
at all times be subject to the review and approval of Lessor's Director of Golf Operations. Lessee
shall restore products and/or specifications to Lessor's Director of Golf Operations' reasonable
satisfaction within ten(10) days of such notice.
8.17 Interference with Systems. Lessee shall not do, or permit, anything which may
interfere with the effectiveness of utility,heating,ventilating or air-conditioning systems or portions
thereof on or adjoining the facilities(including lines,pipes,wires,conduits and equipment connected
with or appurtenant thereto) or overload any floor in the Premises.
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8.18 Unauthorized Locks. Lessee shall not place, or suffer to be placed, any additional
lock of any kind upon any window or interior or exterior door in the Premises,or make any change in
any existing door or window lock or the mechanism thereof Lessee shall pay Lessor, on demand,
the cost for replacement thereof, and the cost of re-keying any such locks.
8.19 Loitering. Lessee shall not permit undue loitering on or about the Premises.
9. Alterations; Lessee and Lessor Alterations.
9.1 Lessee may make repairs and improvements to the Premises only with prior written
approval of Lessor, subject to Bowes Creek Country Club' standards and all building, health, fire,
and other applicable codes,ordinances,rules and regulations. All alterations,decorations,additions,
and improvements made by Lessee shall be deemed to have attached to the leasehold and to have
become the property of Lessor upon such attachment,and upon expiration of this Agreement,Lessee
shall not remove any of such alterations, decorations, additions, and improvements, except trade
fixtures installed by Lessee may be removed if all rents due herein are paid in full and Lessee is not
otherwise in default hereunder. Prior to commencing any renovation work approved by Lessor,
Lessee shall procure certificates of insurance from all contractors and subcontractors showing
general liability and worker's compensation coverage and naming Lessor as an additional insured.
Lessee shall in any event be responsible for repairing any damage caused to the Premises by virtue of
any unauthorized alteration, addition, or improvement installed by or on behalf of Lessee. Lessee
shall not remove or demolish, in whole or in part, any fixed improvements upon the Premises
without the prior written consent of Lessor,which consent may be conditioned upon the obligation of
Lessee to replace the same by a specified fixed improvement.
9.2 At the expiration of the term of this Agreement,for all of the Premises,the Net Book
Value of Lessee's Fixed Improvements shall be $0.00.
10. Signs.
10.1 Lessee agrees not to use any advertising media without first receiving written
approval from Lessor. All signage shall be professionally prepared and Lessee further agrees to
maintain any such sign, awning, canopy, decoration, lettering, advertising matter,or other thing,as
may be approved, in good condition and repair at all times. All signs shall be accurate, showcase a
cross section of product and be visible. All interior store signage shall require the prior written
approval of Lessor's Director of Golf Operations prior to installation. Such signage shall assist and
complement the overall effective and creative merchandising and marketing of the permitted
merchandise. All signage shall be professionally designed and no hand-lettered or hand-modified
signs shall be permitted without the prior written approval of Lessor's Director of Golf Operations.
10.2 All displays, posters, computer or TV projections, and sounds in the Premises shall
reflect good taste,be professionally developed and presented in such a manner as not to be offensive
to the general public and be of such high caliber so as to reflect the dignity of Bowes Creek Country
Club and the services provided to the public by Lessor. All reasonable complaints from the public to
Lessor, or from Lessor,will be forwarded to Lessee in writing. Lessee shall remedy such offensive
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items within two (2) calendar days of receipt of said complaints.
10.3 Lessor shall have the right to use Porter's Pub's name, logos and trademarks in the
marketing of services.
11. Maintenance and Repair of Premises.
11.1 Lessee agrees to provide at its own expense maintenance, custodial, and cleaning
services for the Premises. Lessee shall keep and maintain the Premises in a clean,sanitary,and safe
condition in accordance with the laws of the State of Illinois and in accordance with all directions,
rules,and regulations of the health officer,fire marshal,building inspector,or other proper officials
of the governmental agencies having jurisdiction at the sole cost and expense of Lessee, and Lessee
shall comply with all requirements of law, ordinance, and otherwise, affecting the Premises.
11.2 Lessee shall use at Lessee's sole cost and expense such pest extermination contractor
as Lessor may direct and at such intervals as Lessor may require.
11.3 Lessee shall ensure that all personnel conform to personal hygiene and product-
handling requirements established by Lessee, Lessor or applicable laws, rules, regulations and
ordinances.
11.4 Lessee agrees,at its own expense,to keep and maintain in good working order,and to
make necessary repairs to,any equipment provided for under this Agreement or otherwise utilized in
the Food and Beverage Operations, including regular cleaning and maintenance of the grease trap.
Lessor agrees to replace,at its own expense and in its sole discretion,any equipment that the Lessor
determines has exceeded its useful life. Lessor further agrees to provide,at its sole expense and in its
sole discretion, for the maintenance of the building and facility, including any necessary repairs to
the building or the facility, and for any capital expenditures.
11.5 Lessor and its agents shall have the right to inspect the Premises during the hours of
operation and/or at any time in case of emergency,to determine whether Lessee has complied with
and is complying with the terms and conditions of this Agreement. Lessor may,at its sole discretion,
require Lessee to effect repairs required under this Agreement at Lessee's sole cost and expense.
The Lessor shall further have the right to perform any and all things which Lessee is obligated to and
has failed to do after fifteen (15) calendar days written notice to act and/or at any time in case
emergency,including: maintenance,repairs and replacements to the equipment at the Premises. The
cost of all labor and materials,and other charges required for performance of such work,plus twenty-
five (25) percent thereof for administrative overhead, will be invoiced to Lessee and Lessee shall
remit payments in full thereof to Lessor within ten(10)calendar days following receipt of invoice by
Lessee as additional rent.
11.6 Lessee shall keep the Premises and all other parts of Bowes Creek free from any and
all liens arising out of any work performed, materials furnished, or obligations incurred by or for
Lessee,and agrees to bond against or discharge any mechanic's or materialmen's lien within ten(10)
days. Lessee shall reimburse Lessor for any and all costs and expenses which may be incurred by
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Lessor by reason of the filing of any such liens and/or the removal of same, such reimbursement to
be made within ten (10) days after receipt by Lessee from Lessor of a statement setting forth the
amount of such costs and expenses. The failure of Lessee to pay any such amount to Lessor within
said ten(10)day period shall carry with it the same consequences as failure to pay any installment of
rental.
11.7 Lessee,at its own expense,shall install and maintain fire extinguishers and other fire
protection devices as may be required from time to time by any agency having jurisdiction thereof
and the insurance underwriters insuring the Building. Lessee further agrees to comply with any and
all requirements of the insurance underwriters insuring the Premises.
12. Use of Golf Course.
12.1 Lessor shall provide Lessee annually with up to thirty(30)complimentary rounds of
golf to be used at Lessee's discretion,the days and times of such use subject to approval by Lessor's
Director of Golf Operations. Lessor will be entitled to a food allowance or house account to be used
with the approval of the Director of Golf Operations and at the Director of Golf Operations'
discretion to promote the City's business and affairs.
13. Hazardous Materials.
13.1 Lessee covenants and agrees that it shall not receive,use,store,maintain,discharge or
operate, whether intentionally or unintentionally, any material or merchandise that is toxic,
explosive,highly flammable or classified by law as hazardous, on the Premises or Bowes Creek in
violation of any applicable federal,state,county or local statutes,laws,regulations,rules,ordinances,
codes, standards, orders, licenses or permits of any governmental authorities. Lessee shall
immediately notify Lessor if Lessee learns of any noncompliance or of any facts that could give rise
to a claim of noncompliance with such laws or rules and regulations promulgated thereunder. Lessee
shall indemnify, defend, and hold harmless Lessor from and against any and all claims, damages,
costs, losses and liabilities arising during or after the term as a result of or arising from: (a)a breach
by Lessee of its obligations contained in this Paragraph; (b) any release of Hazardous Substance
from, in, on or about the Premises or Bowes Creek caused by any act or omission of Lessee, its
members,officers,agents,servants,employees and customers or,(c)the existence of any Hazardous
Materials within the interior portions of the Premises. The obligations of this paragraph shall survive
the expiration or termination of this Agreement.
14. Insurance.
14.1 Insurance during the Life of this Agreement. As additional rent for the Premises,
Lessee shall pay for and maintain in full force and effect all policies of insurance required hereunder
with an insurance company (ies) either (i) admitted by the Illinois Insurance Commissioner to do
business in the State of Illinois and rated not less than"A-VII"in Best's Insurance Rating Guide;(ii)
authorized by Lessor's Fiscal Services Director. The following policies of insurance are required:
a. Commercial General Liability. Commercial general liability insurance which shall
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include Owners, Landlords and Tenant's liability, premises liability, contractual, products
and completed operations coverage, fire legal liability, bodily injury and property damage
liability insurance with combined single limits of not less than $1,000,000 per occurrence.
b. Commercial Automobile Liability. Commercial automobile liability insurance
endorsed for"any auto"with combined single limits of liability of not less than$1,000,000
per occurrence.
c. Property Insurance. An all-risk property insurance policy covering all contents,and
Lessee's trade fixtures, machinery, equipment, furniture and furnishings in the Premises to
the extent of at least ninety percent(90%) of their replacement cost under standard fire and
extended coverage insurance, including, without limitation, vandalism and malicious
mischief. In the event of loss, the proceeds of any such policy shall promptly be used by
Lessee for restoration of its improvements,alterations and trade fixtures and the replacement
of its personal property.
d. Worker's Compensation. As required under Illinois law. In addition, employer's
liability insurance shall be provided with limits of$100,000 per accident,and$100,000 per
employee for disease, with a minimum policy limit of$500,000 for disease.
e. Dram Shop Insurance. A policy of insurance in the sum of not less than$1,000,000
issued by an insurance company approved by the City of Elgin Local Liquor Control
Commission in the form commonly known as "dramshop insurance."
14.2 Proof of Insurance. The above described policies of insurance shall be endorsed to
provide an unrestricted thirty (30) day written notice in favor of Lessor, of policy cancellation,
change or reduction of coverage,except for the Workers'Compensation policy which shall provide a
ten(10) day written notice of such cancellation, change or reduction of coverage. In the event any
policies are due to expire during the term of this Agreement, Lessee shall provide a new certificate
evidencing renewal of such policy(ies). Upon issuance by the insurer,broker,or agent of a notice of
cancellation, change or reduction in coverage, Lessee shall file with Lessor a certified copy of the
new or renewal policy and certificates for such policy.
14.3 The General Liability and Automobile Liability insurance policies shall be written on
an occurrence form and shall name Lessor,its officers,officials,agents,employees and volunteers as
an additional insured. Such policies of insurance shall be endorsed so Lessee's insurance shall be
primary and no contribution shall be required of Lessor. Lessee shall furnish Lessor with the
certificates and applicable endorsements for all required insurance prior to Lessor's execution of the
Agreement. Lessee shall furnish Lessor with copies of the actual policies upon the request of
Lessor's Fiscal Services Director at any time during the life of the Agreement or any extension.
14.4 Failure to Maintain Insurance. If at any time during the life of the Agreement or any
extension Lessee fails to maintain the required insurance in full force and effect,Lessor may,but is
not required to, obtain and maintain insurance for protection of its own interests, and all premiums
paid or payable by Lessor therefore shall be deemed to be additional rent due to Lessor from Lessee.
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14.5 Lessee shall not do or permit any act or thing upon the Premises which will invalidate,
suspend or increase the rate of any insurance policy carried by Lessor covering the Premises,or the
buildings in which the same are located or Bowes Creek, or which, in the opinion of Lessor, may
constitute a hazardous condition that will increase the risks normally attendant upon the operations
contemplated under this Agreement.
14.6 Each party hereto shall give to the other prompt and timely written notice of any claim
made or suit instituted coming to its knowledge which in any way directly or indirectly,contingently
or otherwise,affects or might affect either,and each shall have the right to participate in the defense
of the same to the extent of its own interest.
15. Liability and Indemnity.
15.1 To the fullest extent permitted by law, Lessee agrees to indemnify, defend and hold
harmless Lessor, its officials,officers,employees,boards and commissions from and against any and
all claims,suits,judgments,costs,fines,fees,expenses,penalties,damages,or other relief,including
attorneys' fees,of any kind and nature arising out of or resulting from or through or alleged to arise
out of any reckless or negligent acts or omissions of Lessee and/or of Lessee's officials, officers,
employees or agents in connection with the leasing of the Premises and/or in the performance of this
agreement. In the event of any action against Lessor,its officials,officers,employees,agents,boards
or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action
shall be defended by legal counsel of Lessor's choosing. The provisions of this section shall survive
any termination and/or expiration of this Agreement.
15.2 Lessor shall not be liable for, and is hereby released from, all liability to Lessee,
Lessee's insurance carrier(s),or any person claiming under or through Lessee,for any loss or damage
to Lessee's business or any loss of income therefrom or for damage to the goods,wares,merchandise
or other property located in,upon or about the Premises, whether belonging to Lessee or any other
person; nor shall Lessor be liable for injury to Lessee or Lessee's employees, agents, contractors,
subcontractors, customers, or invitees caused by fire, steam, electricity, gas, water, rain, leakage,
breakage,obstruction,pipe defects,sprinkler,wires,appliances,plumbing,air conditioning,lighting
fixtures,or any other cause,arising on the leased premises. Lessee shall be solely responsible for the
safety and security of the leased premises and the safety and security of all equipment,supplies,and
commodities used or sold by Lessee. Lessee also covenants and agrees that Lessor shall not be liable
for damages arising from any act or neglect on the part of any third parties.
15.3 Lessee agrees that the sole remedy available to Lessee upon any breach of this
Agreement by Lessor shall be the cancellation of the Agreement under its terms. It is the essence of
this Agreement that Lessor shall not be liable in money damages for any breach of this Agreement,
and in no event shall Lessor be liable for any other monetary damages,including,but not limited to,
compensatory, consequential or incidental damages or attorney's fees, arising from or in any way
related to any breach or other violation of the terms of this Agreement.
15.4 The provisions of this Section 15 shall survive any termination and/or expiration of
this Agreement.
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16. Utilities.
16.1 Lessor shall be solely responsible for and promptly pay all charges for water, gas,
heat, electricity, sewer,phone service,trash removal and any other utility used upon or furnished to
the Premises. Lessor does not warrant that any of the connections for services and utilities will be
free from interruption, but Lessor will take reasonable steps to restore service if interrupted.
Interruption of services or utilities shall not be deemed an eviction and shall not excuse performance
of any of Lessee's obligations under this Agreement, nor shall it render Lessor liable for damages.
Lessee agrees to utilize prudent energy management to the satisfaction of the Director of Golf
Operations.
16.2 Lessee shall be responsible for the proper disposal of all refuse and waste materials
created by its operations. Waste receptacles shall conform and blend with interior design of Bowes
Creek at the Premises. Lessor shall dispose of all refuse when placed in designated receptacles.
Lessee shall regularly monitor these areas for cleanliness and trash removal during the day/event.
16.3 Non-interference with utilities. Lessee shall do nothing, and shall permit nothing to
be done, that may interfere with the utilities at Bowes Creek, including by way of example and
without limitation such water,gas,heat,electricity,sewer,phone and internet service,trash removal
and any other utility used upon or furnished to the Premises. Lessee's duties under this section
include, but are not limited to, preventing grease and oils from entering waste lines, drains, and
sewers.
17. Assignment, Delegation and Change of Ownership.
17.1 This Agreement and the rights and privileges contained herein are personal to Lessee
and Lessee agrees that it shall not assign,mortgage,pledge, or transfer this Agreement or any other
right,privilege or license conferred by this Agreement,either in whole or in part,or sublet or permit
use of any Premises by another,or in any manner encumber the Premises or any part thereof,without
obtaining in advance the written consent of Lessor, which may be withheld for any reason
whatsoever. It is understood and agreed that Lessor's consent hereunder(and wherever else in this
Agreement required, unless specifically provided to the contrary) may be withheld for any reason
whatsoever or for no reason,notwithstanding any statutory or other provisions of law to the contrary.
18. Waste and Nuisance.
18.1 Lessee shall not commit or suffer to be committed any waste upon the Premises or
any nuisance or other act or thing which may disturb the quiet enjoyment of surrounding properties.
Lessee shall not use or permit to be used any medium that might constitute a nuisance, such as
loudspeakers, sound amplifiers, phonographs, radios, televisions, or any other sound-producing
device which will carry sound outside the Premises.
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19. Damage or Destruction of Leased Premises.
19.1 In the event the Premises shall be rendered untenantable by fire, explosion or other
casualty,Lessor may,at its sole option,terminate this Agreement or repair the Premises within sixty
(60)days,with the exception of Lessee improvements,alterations and trade fixtures,the restoration
of which shall be Lessee's sole obligation and expense. If Lessor does not repair the Premises within
said time,or the building on the Premises shall have been wholly destroyed,the term hereby created
by the Agreement shall cease and terminate without further liability between the parties hereto.
20. Compliance.
20.1 Lessee,its officers,agents,servants,employees,contractors,licensees,and any other
person over which Lessee has the right to exercise control shall comply with all present and future
laws, ordinances, orders, directives, codes, rules,regulations, and directives of, or imposed by, the
federal, state,and local governmental agencies,including those of Lessor,which maybe applicable
to Lessee's operations at Bowes Creek, including, but not limited to, any applicable requirements
regarding prevailing wages, minimum wages, workplace safety, and legal status of employees.
20.2 Lessee shall pay on or before their respective due dates,to the appropriate collecting
authority, all federal, state, and local taxes and fees levied upon Lessee, or upon Lessee's business
conducted at Bowes Creek, or upon Lessee's interest hereunder, or upon any of Lessee's property
used in connection therewith, including possessory interest as and when such be applicable to
Lessee. Lessee agrees to protect and hold harmless Lessor and the Premises and any and all
improvements located therein or thereon and any and all facilities and fixtures appurtenant thereto
and any and all other property located therein or thereon and any and all of Lessee's interest in or to
said Premises,improvements,appurtenant facilities,fixtures or other property,from any and all such
taxes and assessments, including any and all interest, penalties and other expenses which may be
imposed thereby or result therefrom, and from any lien therefore or sale or other proceedings to
enforce payment thereof. Nothing in this paragraph shall be deemed to limit any of Lessee's rights to
appeal any such levies or assessments in accordance with the rules, regulations, laws, statutes, or
ordinances governing the appeal process of the taxing authority making such levies or assessments.
20.3 Lessor shall pay on or before their respective due dates,to the appropriate collecting
authority, all real estate taxes, special assessments and leasehold taxes, which are now or may
hereafter be levied, charged and or assessed upon the Premises, the improvements and/or the
leasehold of the Premises. Nothing in this paragraph shall be deemed to limit any of Lessor's rights
to appeal any such levies or assessments in accordance with the rules,regulations,laws, statutes,or
ordinances governing the appeal process of the taxing authority making such levies or assessments.
20.4 Lessee agrees to pay,and hereby guarantees payment of all lawful fines and penalties
as may be assessed by the City, Federal, State or local agencies or against Lessor for violations of
federal,state or local laws,ordinances,ruling or regulations,or City rules and regulations by Lessee
or its officers, agents, servants, employees, contractors, licensees, or any other person over which
Lessee has the right to exercise control within the earlier of delinquency or thirty(30)calendar days
of written notice of such fines or penalties.
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20.5 Lessee shall obtain,pay for and continuously maintain current all licenses and permits
necessary or required by all applicable Federal, State, county or local laws, regulations, rules,
ordinances, codes, standards, orders, licenses or permits for the conduct of the permitted activities
hereunder. Lessee is expressly required to obtain a retail alcoholic liquor dealer's license from the
State of Illinois and the City of Elgin Local Liquor Control Commission as a material condition to
the performance of this Agreement and Lessee's failure to obtain and maintain in lawful effect such
retail alcoholic liquor dealer's licenses shall constitute a breach of this Agreement. Lessee shall
ensure that any such required items are displayed prominently and/or in conformance with applicable
guidelines.
20.6 Liquor License. Lessee shall be responsible for obtaining the appropriate liquor
license and complying with all local and state requirements with respect to the same. All servers
provided by Lessee shall be BASSETT certified as may be required by law and at Lessor's
discretion. Training for all servers shall be required at Lessee's sole cost and expense. The cost of
any training materials shall be paid by Lessee.
20.7 If applicable,Lessee shall provide Lessor with a copy of any health inspection report
within twenty-four(24)hours after Lessee receives such report. If a health inspection does not result
in a report, Lessee shall submit a written summary of the nature and findings of such inspection as
they were communicated to Lessee. Lessee shall also provide Lessor with any required corrective
actions and timeframes for each corrective action to be continuously implemented.
21. Termination by Lessee.
21.1 In addition to all other remedies otherwise available to Lessee at law or in equity,
Lessee may terminate this Agreement by giving a thirty(30)calendar day written notice to Lessor of
its intent to do so, should any one or more of the following events occur, provided however, that
Lessee's sole remedy shall be the termination of this Agreement, and Lessor shall have no other or
further obligation to Lessee, and further provided that Lessee shall remain liable for all obligations
accrued under this Agreement through the effective date of termination:
a. The breach by Lessor in the performance of any material covenant of this Agreement
required to be performed by Lessor and the failure of Lessor to commence to remedy
such breach for a period of thirty(30)calendar days after receipt of written notice of
such breach by Lessee.
22. Termination by Lessor.
22.1 In addition to all other remedies otherwise available to Lessor at law or in equity,
Lessor may terminate this Agreement or may, without terminating this Agreement,take possession
of the Premises by giving a thirty(30) calendar day written notice of its intent to do so to Lessee,
should any one or more of the following events occur:
a. Lessee fails to cooperate with any inspection of books and records by Lessor and/or
fails to maintain its books and records as required hereunder;
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b. Except as otherwise permitted in this Agreement,a majority of the ownership interest
of Lessee is transferred,passes to or devolves upon,by operation of law or otherwise,
to any other person, firm or corporation without the written consent of Lessor;
c. Except as otherwise permitted in this Agreement,Lessee becomes,without the prior
written approval of Lessor, a successor or merged corporation in a merger, a
constituent corporation in a consolidation, or a corporation in dissolution;
d. Lessee shall breach,materially breach,default under and/or neglect or fail to perform
and observe any promise, covenant or condition set forth in this Agreement within
thirty(30)days after the giving of written notice of such failure by Lessor to Lessee,
except where fulfillment of such obligation requires activity over a period of time and
Lessee has commenced to perform whatever may be required to remedy such failure
within thirty(30)calendar days after giving of such written notice and continues such
performance without interruption; or
e. The services provide by Lessee pursuant to this Agreement shall deteriorate to the
point which, in the sole opinion of Lessor, materially and adversely affects the
operation of service required to be performed by Lessee after the giving of written
notice of such deterioration by Lessor to Lessee, except where fulfillment of such
obligation requires activity over a period of time and Lessee has commenced to
perform whatever may be required to remedy such failure within ten (10) calendar
days after giving of such written notice and continues such performance without
interruption to the satisfaction of Lessor.
22.2 In addition to all other remedies otherwise available to Lessor at law or in equity,
Lessor may immediately terminate this Agreement or may,without terminating this Agreement,take
immediate possession of the Premises by giving written notice of its intent to do so to Lessee,upon
the occurrence of any one or more of the following:
a. Lessee fails to pay any rent or payments when due under this Agreement, or to
provide and maintain insurance as required in accordance with this Agreement;
b. Any lien is filed against the Premises arising by or through Lessee or because of any
act or omission of Lessee and such lien is not removed, enjoined or a bond for
satisfaction of such lien is not posted within sixty (60) calendar days after Lessee
receives notice of the filing thereof;
c. Lessee permits to continue, for a period of three (3) days after receipt of written
notice from the Lessor or other agency having jurisdiction, the existence of
unsanitary conditions or practices in or about the Premises;provided however,if the
unsanitary condition is such as to require replacement,repair or construction,Lessee
shall have a reasonable time in which to correct,but must begin action on the matter
immediately upon receipt of said notice;
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d. Lessee abandons,deserts,vacates or discontinues its operation of the business herein
authorized from the Premises for a period of three (3) calendar days without prior
written consent of Lessor; or
e. A petition is filed by or against Lessee for relief under the bankruptcy laws,or Lessee
shall make an assignment for the benefit of creditors,or if a receiver of any property
of Lessee be appointed in any action, suit, or proceeding by or against Lessee, or if
Lessee shall admit that it is insolvent, or it is generally not paying its debts as such
debts become due, or if the interest of Lessee in the premises shall be sold under
execution or other legal process;
f. This Agreement or the Premises or any part of the Premises are taken upon execution
or by other process of law directed against Lessee,or are taken upon or subject to any
attachment at the instance of any creditor or claimant against Lessee, and the
attachment is not discharged or disposed of within fifteen (15) days after its levy;
g. Lessee is dissolved.
22.3 Acceptance by Lessor of any rentals or other payments specified in this Agreement,
after a breach, material breach, default under, neglect or failure to perform or observe any of the
terms of this Agreement,shall not be deemed a waiver of any right on the part of Lessor to terminate
this Agreement on account thereof No receipt of money by Lessor from Lessee after the termination
of this Agreement shall reinstate,continue, or extend the term,nor affect or waive any notice given
by Lessor to Lessee prior to such receipt of money.
22.4 Upon termination or reentry by Lessor, Lessor may reassign the Premises and any
improvements thereon or any part thereof to be operated by one or more sub-operators or any other
party acceptable to Lessor, at such rentals, fees and charges and upon such other terms and
conditions as Lessor, in its sole discretion, may deem advisable, with the right to make alterations,
repairs or improvements on said Premises.
22.5 In the event Lessor,without terminating this Agreement,re-enters,regains or resumes
possession of the Premises,Lessee shall have no further right to possession under the Agreement,but
all of the obligations of Lessee hereunder shall survive and shall remain in full force and effect for
the full term of this Agreement. The amount or amounts of rent,charges,and fees shall become due
and payable to Lessor to the same extent, at the same time or times and in the same manner as if no
re-entry,regaining or resumption of possession had taken place. Should Lessor elect to re-enter,as
herein provided,it may from time to time,without terminating this Agreement,make such alterations
and repairs as may be necessary in order to relet the Premises, and relet said Premises or any part
thereof for such term or terms (which may be for a term extending beyond the term of this
Agreement) and at such rental or rentals and upon such other terms and conditions as Lessor in its
sole discretion may deem advisable. Lessor may maintain separate actions each month to recover
any monies then due,or at its sole and absolute discretion and at any time,may sue to recover the full
deficiency.
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22.6 Bankruptcy. If Lessor shall not be permitted to terminate this Agreement as
hereinabove provided because of the provisions of Title 11 of the United States Code relating to
Bankruptcy,as amended("Bankruptcy Code"),then Lessee as a debtor-in possession or any trustee
for Lessee agrees to promptly, within no more than sixty (60) days upon request by Lessor to the
Bankruptcy Court,assume or reject this Agreement. In such event, Lessee or any trustee for Lessee
may only assume this Agreement if(a)it cures and provides adequate assurance that the trustee will
promptly cure any default hereunder, (b) compensates or provides adequate assurances that the
trustee or Lessee will promptly compensate Lessor for any actual pecuniary loss to Lessor resulting
from Lessee's default, and (c)provides adequate assurance of performance during the fully stated
term hereof of all of the terms, covenants, and provisions of this Agreement to be performed by
Lessee. In no event after the assumption of this Agreement shall any then existing default remain
uncured for a period in excess of the earlier of ten (10) days or the time period set herein.
22.7 Upon the occurrence of an event of default, Lessor shall have the right to terminate
the Agreement and shall be entitled to possession of the Premises. Lessor may make its election to
terminate known to Lessee by delivery of a notice of termination. Such termination shall be
immediately effective unless otherwise provided in this Agreement, and Lessor shall be entitled to
forthwith commence an action in summary proceedings to recover possession of the Premises,but
such termination shall not terminate Lessee's liabilities hereunder. Lessee waives all notice in
connection with such termination,including by way of illustration,but not limitation,notice of intent
to terminate, demand for possession or payment, and notice of re-entry. Notwithstanding anything
herein to the contrary, Lessor may, without demand or notice, re-enter and take possession of the
Premises or any part of the Premises,repossess the same,expel Lessee and those claiming through or
under Lessee,and remove the effects of both or either,using such force for such purposes as may be
necessary, without being liable for prosecution, without being deemed guilty of any manner of
trespass,and without prejudice to any remedies for arrears of amounts payable under this Agreement
or as a result of any preceding breach of covenants or conditions.
22.8 Cure of Defaults. Upon default with respect to any provision of this Agreement,the
non-defaulting party may choose to allow the defaulting party an opportunity to cure the default,in
accordance with the provisions of this paragraph. The non-defaulting party shall provide written
notice of the default to such other party,who shall then have thirty(30)days to correct the default,or
to commence corrective action in the event that such default cannot be corrected within thirty(30)
days,whereby such corrections shall be completed within a reasonable time thereafter. In the event
that such default is not cured, the non-defaulting party may then immediately terminate this
Agreement without further liability. The remedy in this paragraph is cumulative, and shall not be
exclusive of or otherwise prejudice the right to pursue any other rights, remedies and benefits
allowed by law.
22.10 Right of Termination. In addition to any other termination rights provided for in this
Agreement, this Agreement may be terminated at the convenience of Lessor, without cause, upon
one hundred eighty(180) days written notice to Lessee, without further liability.
22.11 Intentionally Omitted.
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22.12 Remedies are Cumulative. Lessor's rights, remedies, and benefits provided by this
Agreement shall be cumulative,and shall not be exclusive of any other rights,remedies and benefits
allowed by law.
23. Surrender of Premises.
23.1 Condition on Surrender. At the expiration or earlier termination of this Agreement,
Lessee shall quit and surrender up the Premises to Lessor,peaceably,quietly and broom clean and in
the same condition as when tendered by Lessor,or hereinafter improved by Lessee,reasonable wear
and tear and insured casualty excepted. All trade fixtures or personal property installed in the
Premises by Lessee shall be removed by Lessee,provided that Lessee is not in default hereunder,and
further provided that the same can be removed without damage to the Premises or to Bowes Creek.
At the sole option of Lessor,all fixed improvements shall,without compensation to Lessee,become
the property of Lessor, free and clear of all claims to or against them by Lessee or any third person,
upon surrender of the Premises by Lessee for whatever reason. Should Lessor elect not to take
ownership of any fixed improvements, prior to the date of surrender, Lessee shall be solely
responsible for the expense of the removal of said fixed improvements and restoring the Premises to
the same condition as when originally tendered by Lessor. In the event that Lessee shall fail to
remove its personal property and/or trade fixtures on or before the termination (whether by
expiration of the lease term, cancellation, forfeiture, or otherwise, whichever first occurs) of this
Agreement,at the sole option of Lessor,(i)said personal property and trade fixtures maybe stored at
a public warehouse or elsewhere at Lessee's sole cost and expense; or(ii)title to such trade fixtures
and personal property shall vest in Lessor,free and clear of all claims to or against them by Lessee or
any third person, at no cost to Lessor, in the manner allowed by law. In such event Lessor shall not
be responsible for any losses related to such personal property or trade fixtures and Lessor may sell
or otherwise dispose of such items.
23.2 Holding Over. In the event Lessee shall hold over and remain in possession of the
Premises after the expiration of the term of this Agreement without the written consent of Lessor,
such holding over shall not be deemed to operate as a renewal or extension of this Agreement(or any
lease or license hereunder)but shall only create a month-to-month permit at the same rentals, fees,
charges,and other terms,conditions and covenants contained in this Agreement and effective at the
time holdover commenced, which may be terminated at any time by Lessor or Lessee by providing
written notice to the other to be effective on the first day of the month following the month in which
such notice was served.
24. Nondiscrimination and Sexual Harassment.
24.1 Lessee covenants and agrees that no person shall be unlawfully discriminated against
in the use and operation of the Premises pursuant to this Agreement.
24.2 Nondiscrimination.
a. Lessee, for itself, its personal representatives, successors in interest, and assigns,as
part of the consideration hereof, does hereby covenant and agree that(1)no person,
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on the grounds of race,color,or national origin shall be excluded from participation,
denied the benefits of, or be otherwise subjected to discrimination in the use of said
facilities; (2) that in the construction of any improvements and the furnishing of
services, no person on the grounds of race, color, creed, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination.
b. That in the event of breach of any of the above nondiscrimination covenants, Lessor
shall have the right to terminate this Agreement and re-enter and repossess said
Premises,and hold the same as if said Agreement had never been made or issued and
no reimbursement shall be made to Lessee.
c. Lessee shall furnish its accommodations and/or services and operate the Food and
Beverages Operation on a fair,equal,and nondiscriminatory basis to all users thereof,
and it shall charge fair, reasonable, and nondiscriminatory prices for each unit of
services provided.
24.3 Sexual Harassment Policy. As a condition of this Agreement,the Lessee shall have a
written sexual harassment policy that includes, at a minimum, the following information:
a. The illegality of sexual harassment;
b. The definition of sexual harassment under state law;
c. A description of sexual harassment, utilizing examples;
d. The vendor's internal complaint process including penalties;
e. The legal recourse,investigative and complaint process available through the Illinois
Human Rights Commission;
f. Directions on how to contact the department and commission;
g. Protection against retaliation as provided by section 6-101 of the Human Rights Act.
25. Miscellaneous.
25.1 Nonwaiver of Rights. No failure by either party to insist upon strict compliance of
any obligation of the other party under this Agreement or to exercise any right,power or remedy of a
breach thereof, irrespective of the length of time for which such failure continues (except in cases
where this Agreement expressly limits the time for exercising rights or remedies arising out of a
breach), shall constitute a waiver of such breach or of that party's right to demand strict compliance
with such term, covenant or condition or operate as a surrender of this Agreement. No waiver of
breach by Lessor or Lessee of any of the terms, covenants, and conditions hereof to be performed,
kept, and observed by the other party shall be construed as, or shall operate as, a waiver of any
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subsequent breach of any of the terms, covenants, or conditions herein contained,to be performed,
kept, and observed by the other parties, and the consent or approval by Lessor to or of any act by
Lessee requiring Lessor's consent or approval shall not be deemed a waiver of Lessor's consent or
approval to or of any subsequent similar act by Lessee.No breach of a covenant,term,condition,or
provision of this Agreement shall be deemed to have been waived by Lessor,unless such waiver(i)
is in writing signed by Lessor,(ii)identifies the breach,and(iii)expressly states that it is a waiver of
the identified breach.
25.2 Notice. Any notice,demand,request, consent, approval, or other instrument which
may be or is required to be given under this Agreement shall be sent by overnight courier or United
States certified mail return receipt requested,postage prepaid,and shall be addressed to the addresses
and persons set forth hereunder:
To Lessor: To Lessee:
City Manager Porter's Pub Payroll PPP, LLC
City of Elgin c/o Joe Carlucci, President
150 Dexter Court Carlucci Hospitality
Elgin, IL 60120-5555 2001 Butterfield Road
Downers Grove, IL 60515
With a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, IL 60120-5555
25.3 Captions. The headings of the several articles and paragraphs of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,limit,or describe the
scope or intent of any provisions of this Agreement and shall not be construed to affect in any
manner the terms and provisions hereof or the interpretation or construction thereof.
25.4 Severability. The terms of this Agreement shall be severable. If any provision of this
Agreement or the application thereof to any person or circumstances shall, to any extent, be void,
invalid or otherwise unenforceable for any reason, the remainder of this Agreement shall not be
affected thereby and each provision of the Agreement shall be valid and enforceable to the fullest
extent permitted by law,and the remaining provisions of this Agreement shall be interpreted so as to
nearly as possible conform to the intent of the parties as indicated in this Agreement.
25.5 Waiver of Claims. Lessee hereby waives any claim against Lessor and its directors,
officers, agents, or employees for loss of anticipated profits caused by any suit or proceedings
directly or indirectly attacking the validity of this Agreement or any part thereof,or by any judgment
or award in any suit or proceeding declaring this Agreement null,void or voidable, or delaying the
same or any part thereof from being carried out.
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25.6 Right to Develop Bowes Creek. It is covenanted and agreed that Lessor reserves the
right to further develop or improve Bowes Creek regardless of the desires or views of Lessee and
without interference or hindrance.
25.7 Incorporation of Exhibits. All exhibits,documents and instruments referred to in this
Agreement are intended to be and hereby are specifically made a part of this Agreement. It is
specifically agreed that any or all Exhibits may be modified and substituted in accordance with the
provisions of this Agreement without formal amendment hereto.
25.8 Incorporation of Required Provisions. The parties incorporate herein by this reference
all provisions lawfully required to be contained herein by any governmental body or agency.
25.9 Relationship of Parties. Nothing contained herein shall be deemed or construed by
Lessor or Lessee, or by any other parties, as creating the relationship of employer and employee,
principal and agent, partners, joint venturers, or any other similar such relationship, between the
parties hereto. Lessor and Lessee shall understand and agree that neither the method of computation
of rent, nor any other provision contained herein, nor any acts of Lessor and Lessee creates a
relationship other than the relationship of Lessee as permitted of Lessor. No manager, chef, staff
member,employee or any other individual associated with Lessee shall be deemed or construed as an
employee of Lessor.
25.10 Non-liability of Agents or Employees. No director, officer, agent, or employee of
Lessor or Lessee shall be charged personally or held contractually liable by or to the other party
under the provisions of this Agreement or because of any breach thereof or because of its or their
execution or attempted execution.
25.11 Successors and Assigns Bound. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto, where permitted by this Agreement.
25.12 Time of Essence. Time is expressed to be of the essence in this Agreement.
25.13 Gender. Words of any gender used in this Agreement shall be held and construed to
include any other gender and words in the singular number shall be held to include the plural,unless
the context otherwise requires.
25.14 Force Majeure. Except for the payment of any rent or fee or charge required by this
Agreement,neither Lessor nor Lessee shall be liable to the other for any failure,delay or interruption
in the performance of any of the terms, covenants or conditions of this Agreement due to causes
beyond the control of that party or persons or entities for whose acts or omissions that party is
responsible under this Agreement or applicable law,including,without limitation,strikes,boycotts,
labor disputes, embargoes, acts of God, acts of the public enemy, acts of superior governmental
authority,weather conditions, floods,riots,rebellion,sabotage or any other circumstance for which
such party is not responsible or which is not in its own power to control,provided that, should said
cause(s) continue for a period beyond six (6) months, such shall be a grounds for termination by
either party in the manner provided in this Agreement.
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25.15 Representative of Lessor. The Elgin City Manager,or his/her representative,shall be
designated as the official representative of Lessor in all matters pertaining to this Agreement. To the
extent expressly authorized by City Council,the Elgin City Manager,or his/her representative,shall
have the right and authority to act on behalf of Lessor with respect to all action required of Lessor in
this Agreement.
25.16 Governing Law and Venue. This Agreement is governed by the laws of the State of
Illinois. Any disputes relating to this Agreement or the interpretation thereof must be resolved in
accordance with the laws of Illinois. Lessee and Lessor agree that any legal or equitable action for
claims,debts,or obligations arising out of or to enforce the terms of this Agreement shall be brought
by Lessee or Lessor in the Circuit Court for the Sixteenth Judicial Circuit,Kane County,Illinois and
that such court shall have personal jurisdiction over the parties and venue of the action shall be
appropriate in each such court.
25.17 Writing Required. This Agreement may not be amended or otherwise modified in any
way whatsoever, except in writing approved by City Council and signed by the parties authorized
agents.
25.18 Rights Cumulative. Each right of the parties hereto is cumulative and in addition to
each of the other legal rights that a party may have in law or equity, except as otherwise expressly
limited in this Agreement.
25.19 Sub-agreements. Lessee hereby assures that it shall include all of the terms,
conditions,covenants and other obligations contained herein in any and all agreements and contracts
or sub-agreements and subcontracts entered into by it under which Lessee grants a right or privilege
to any person, firm or corporation to render accommodations and/or services within or for the
Premises. Lessee shall require that any document so entered into is subordinate in all terms to this
Agreement. Lessee hereby also assures that it shall similarly cause the same to be included in any
further subleases, subcontracts or sub-agreements. The voluntary or other surrender of this
Agreement by Lessee or a mutual termination hereof, or a termination by Lessor, or an automatic
termination,or termination by a court of competent jurisdiction,or any other termination hereof shall
not work a merger,and shall,at the option of Lessor,terminate any or all existing sub-agreements or
subcontracts, or may, at the option of Lessor, operate as an assignment to Lessor of any or all such
sub-agreements or subcontracts
25.20 Inspection of Records. Lessee shall provide all information and reports and shall
permit access to and audit of its books, record, accounts and other sources of information and its
facilities as may be determined by Lessor to be pertinent to ascertain compliance with this
Agreement for the term of this agreement and three (3) years thereafter. Where any information
required of Lessee is in the exclusive possession of another who fails or refuses to furnish this
information,Lessee shall so certify to Lessor and shall set forth what efforts it has made to obtain the
information. This paragraph shall survive termination of the Agreement.
25.21 Precedence of Document. In the event of any conflict between this Agreement and
any exhibit or attachment hereto, the terms and conditions of the Agreement shall control and take
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precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore,
any terms or conditions contained within any exhibit or attachment hereto which purport to modify
the allocation of risk between the parties provided for within the Agreement shall be null and void.
25.22 Recording. Lessee shall not record this Agreement without the consent of Lessor,
which may be withheld for any reason whatsoever, in Lessor's absolute discretion.
25.23 No Encumbrance to Title. Lessee shall not do any act which shall in any way
encumber the title of Lessor in and to the Premises or the improvements, nor shall the interest or
estate of Lessor in the Premises or the improvements be in any way subject to any claim by way of
lien, mortgage or encumbrance,whether by operation of law or by virtue of any express or implied
contract by Lessee.
25.24 Estoppel. The parties agree that they shall rely solely upon the terms of this
Agreement to govern their relationship. They further agree that reliance upon any representation,act,
or omission outside the terms of this Agreement shall be deemed unreasonable, and shall not
establish any rights or obligations on the part of either party.
25.25 Eminent Domain. If the whole of the Premises hereby leased,or any portion thereof
shall be taken by any public authority under the power of eminent domain,or by deed in lieu thereof,
then the term of this Agreement shall cease as of the day possession shall be taken by such public
authority and the Rent and other charges due hereunder, shall be paid up to that day with a
proportionate refund by Lessor of such rent as may have been paid in advance for a period
subsequent to the date of the taking. If less than the whole of the Premises shall be taken under
eminent domain, Lessor shall have the right either to terminate this Agreement and declare same
void, or require Lessee to continue in the possession of the remainder of the Premises if such can
reasonably be accomplished. Lessor shall notify Lessee in writing within twenty(20)days after such
taking of Lessor's intention. If the Lessee is to remain in possession,all of the terms herein provided
shall continue in effect,except that the Annual Base Lease Payment shall be reduced in proportion to
the amount of the Premises, if any, taken. All damages awarded for such taking under the power of
eminent domain,whether for the whole or a part of the Premises,shall belong to and be the property
of Lessor whether such damages shall be awarded as compensation for diminution in value to the
leasehold or to the fee of the Premises. The Lessee may pursue its own claims for damages with the
appropriate government authority so long as same does not interfere with,or in any manner diminish,
the award of Lessor.
26. Entire Agreement.
26.1 This Agreement and the Exhibits attached hereto and forming a part hereof,set forth
all the covenants,promises,agreements,conditions,and understandings between Lessor and Lessee
concerning the Premises; that there are no covenants, promises, agreements, conditions, or
understandings,either oral or written,between them other than are herein set forth;and that no claim
or liability shall arise for any representations or promises not expressly stated in this Agreement.
Any other writing or parol agreement with the other party being expressly waived. No alteration,
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amendment, change, or addition to this Agreement shall be binding upon Lessor or Lessee unless
reduced to writing and signed by the party to be charged.
IN WITNESS WHEREOF,Lessor and Lessee have signed this Agreement as of the day and
year first above written.
LESSEE: LESSOR:
PORTER'S PUB PAYROLL PPP, LLC CITY OF ELGIN
/ /
By: By:
David J. K.tai ' ayor
Attest:
Gl4
City Clerk
F:\Legal Dept\Agreement\Porter's Pub-Lease-Bowes Creek CC-clean 9-1 1-15.docx
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Exhibit A
Plan Depicting Assigned Premises/Location of Food and Beverage Operations
(TO BE INSERTED)
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