HomeMy WebLinkAboutG7-22 Ordinance No. G7-22
AN ORDINANCE
AUTHORIZING EXECUTION OF A COMMERCIAL LEASE AGREEMENT WITH MAMA
LEE'S GOURMET POPCORN, INC. FOR OPERATIONS AT THE EDWARD SCHOCK
CENTRE OF ELGIN
(100 Symphony Way)
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
D wis City Clerk be and are hereby authorized
Richard G. Kozal, City Manager,and Kimberly A. e ty y
and directed to execute a Commercial Lease Agreement on behalf of the City of Elgin with Mama
Lee's Gourmet Popcorn, Inc.,for operations at the Edward Schock Centre of Elgin, 100 Symphony
Way, a copy of which is attached hereto and made a part hereof by reference.
avid J. K tain, ayor
Presented: January 26, 2022
Passed: January 26, 2022
Vote: Yeas: 9 Nays: 0
ups v
Recorded: January 26, 2022
Published: January 26, 2022 ksFwwu"�s '
All
Kimberly Dewis, Ciq Clerk
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COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE is made and entered into this 26 day of January,2022,by and
between the City of Elgin,an Illinois municipal corporation(hereinafter referred to as the"Lessor"),
and Mama Lee's Gourmet Popcorn,Inc.,an Illinois corporation(hereinafter referred to as"Lessee"),
and constitutes an Agreement 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 an indoor recreation center known as The Edward
Schock Centre of Elgin(hereinafter referred to as "The Centre"); and
WHEREAS, Lessee operates a retail food establishment located at 20 South Spring Street,
Elgin,Illinois,which establishment primarily involves the sale of gourmet popcorn and related food
items (said business hereinafter referred to as the"Popcorn Shop"); and
WHEREAS, Lessor desires that Lessee be allowed to operate the Popcorn Shop at The
Centre for the purpose of selling popcorn and other concession items in accordance with the terms
and conditions of this Agreement; and
WHEREAS, Lessee desires to operate the Popcorn Shop at The Centre upon the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein,the sufficiency of which are 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, Illinois 60120-5555
Lessee's Name and Address: Mama Lee's Gourmet Popcorn, Inc., 20 S. Spring Street, Elgin,
Illinois 60120
Premises: Certain premises located at The Edward Schock Centre of Elgin, 100
Symphony Way,Elgin,Illinois 60120,and consisting of a cafe space
on the ground floor having approximately 1640 square feet, as more
particularly identified on Exhibit A,attached hereto and incorporated
herein by this reference(hereinafter referred to as the"Premises"). In
addition to the Premises being leased hereunder,Lessor shall provide
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Lessee with the non-exclusive right to utilize the center storage and
sink areas of The Centre, provided that Lessee's use of said center
storage and sink areas shall not interfere with the Lessor's uses of
said areas, in the Lessor's sole discretion.
2. Grant
2.1 Grant. Lessor hereby grants to Lessee,and Lessee takes from Lessor,the Premises in
consideration of the rent to be paid and the covenants to be performed by Lessee.
2.2. Possession. Lessor and Lessee hereby agree that Lessee's taking 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 will accept 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, implied or 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. Lessee agree to pay to the Lessor the sum of Four Hundred Dollars($400.00)
monthly as the total monthly rent due under the terms of this Agreement. The rent shall be paid
monthly on the 1 st day of each month in advance at Lessor's address stated in the Basic Lease
Provisions. The monthly rent shall be automatically increased five percent (5%) if received by
Lessor after the 5th day of the month for which it is due.
3.2 Independent Covenant. Notwithstanding anything to the contrary, Lessee
acknowledges and agrees that its obligation to pay rent under this Agreement is an independent
covenant, and that such obligation to pay rent is not subject to set-off or recoupment in connection
with any action for summary proceedings to recover possession of the Premises
4. Security Deposit
No security deposit shall be required under this Agreement.
5. Term
5.1 Effective Date. This Agreement shall be effective and binding as of the date first set
forth above.
5.2 Term. The term of this Agreement shall commence on January 27, 2022, (the
"Commencement Date")Agreement and shall continue thereafter on a month-to-month basis until
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terminated as provided herein. All rents, fees, charges, and payments shall commence on the
Commencement Date. In addition to any other rights of termination provided for in this Agreement,
this Agreement may be terminated by either party for any reason whatsoever upon thirty(30)days
written notice to the other party.
6. Conduct of Business by Lessee
6.1 Use of Premises. Lessee shall use and occupy the Premises during the continuance of
this Agreement solely for the purpose of conducting sales of popcorn and related food items to the
public and for no other purpose or purposes without the prior written consent of Lessor. If any
governmental license or permit shall be required for the proper and lawful conduct of Lessee's
business or other activity carried on in the Premises,or if a failure to procure such a license or permit
might or would, in any way, affect Lessor or the Premises,then Lessee, at Lessee's expense, shall
procure and maintain such license or permit. Lessee shall promptly comply with all laws and
ordinances and lawful orders and regulations affecting the Premises and the cleanliness, safety,
occupancy, and use of same. Lessee agrees that it will conduct its business in the Premises in a
lawful manner and in good faith. Lessee shall not cause or permit the use, generation, storage, or
disposal in,on, or about the Premises of any substances,materials, or wastes subject to regulation
under any Federal, state, or local laws from time to time in effect concerning hazardous,toxic, or
radioactive materials.
6.2 Hours of Occupancy or Operation. Lessee expressly acknowledges and agrees that
The Centre has limited hours of operation,that such hours of operation are established by the Lessor,
and that such hours of operation may be changed at any time by the Lessor without notice to Lessee,
all in the Lessor's sole and exclusive discretion. Any other provisions of this Agreement
notwithstanding,Lessee shall only be permitted to access and occupy The Centre and/or to conduct
its operations at the Premises at such times as when The Centre is open to the public in accordance
with The Centre's hours of operation.
6.3 Care of Premises. Lessee shall keep the Premises (including the center storage and
sink area,service areas,refrigerators,warmers,equipment,and signs)orderly,neat,safe,and clean.
The Premises shall be cleaned and disinfected by Lessee at such levels as required by applicable
codes and as deemed necessary by Lessor in its sole discretion.
7. Alterations; Lessee and Lessor Alterations
Lessee may make repairs and improvements to the Premises only with prior written approval of
Lessor, and subject to 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
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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.
8. Signs
Lessee agrees not to use any advertising media without first receiving written approval from the
Lessor. No exterior signage of Lessee shall be permitted at The Centre. Any interior store signage
shall require the prior written approval of Lessor prior to installation. All signage or advertising
media 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.
9. Maintenance of Leased Premises.
9.1 Lessor shall not be called upon to make any improvements or repairs of any kind to
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.
9.2 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 correct any unsatisfactory conditions and/or effect repairs required under this
Agreement at Lessee's sole cost and expense. If Lessee refuses or neglects to correct such conditions
and/or complete the repairs required by the provisions of this section promptly and adequately,
Lessor may,but shall not be required to do so,make and complete said repairs,and Lessee shall pay
the cost thereof to Lessor upon demand, as additional rent.
9.3 At the time of the expiration and/or termination of the tenancy created herein,Lessee
shall surrender the Premises,including all systems covering the same in good condition,reasonable
wear and tear, loss by fire or other unavoidable casualty, excepted.
9.4 Lessee shall keep the Premises and all other parts of the Premises 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 discharge mechanic's or materialmen's lien within ten(10)
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days. Lessee shall reimburse Lessor for any and all costs and expenses which may be incurred by
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
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said ten(10)day period shall carry with it the same consequences as failure to pay any installment of
rent.
9.5 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.
10. Hazardous Materials.
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 The Centre 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 The Centre 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.
11. Insurance.
11.1 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;or
(ii) authorized by Lessor's Risk Management Assistant. The following policies of insurance are
required:
a. Commercial General Liability. Commercial general liability insurance which shall
include Owners, Lessor and Lessee 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. 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
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of its personal property.
C. 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.
11.2 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.
11.3 The General Liability insurance policy(ies)shall be written on an occurrence form and
shall name Lessor,its officers,officials,agents,employees and volunteers as an additional insured.
Such policy(ies) 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 at any time
during the life of the Agreement or any extension.
11.4 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, and shall be due on the
payment date of the next installment of Rent under this Agreement.
11.5 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
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.
11.6 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.
12. Liability and Indemnity.
12.1 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
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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.
12.2 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.
12.3 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.
12.4 The provisions of this Section 12 shall survive any termination and/or expiration of
this Agreement.
13. Utility Charges
All utility charges for the Premises will be paid by the Lessor for the duration of this Agreement.
14. No Assignment or Subletting
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 arbitrarily withheld,
notwithstanding any statutory or other provisions of law to the contrary.
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15. Waste and Nuisance
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.
16. Damage or Destruction of Leased Premises
In case the Premises shall be rendered untenable 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 determine without any further liability between the parties hereto.
17. Compliance.
17.1 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,relating to the occupation,
possession,operation,use,management,improvement,construction,alteration,repair,maintenance,
or control of the Premises,or to the improvements or the facilities or equipment therein,including,
but not limited to, any applicable requirements regarding prevailing wages, minimum wages,
workplace safety, and legal status of employees.
17.2 Lessee shall pay on or before their respective due dates,to the appropriate collecting
authority, all federal, state, and local taxes and fees, including 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,or upon Lessee,or upon
Lessee's business conducted at the Premises, 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.
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17.3 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.
17.4 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 shall ensure that any such required items are displayed prominently and/or in
conformance with applicable guidelines.
17.5 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.
18. Default of Lessee.
18.1 Definition of Event of Default. 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 events,any of
which shall be deemed an event of default: (i) Lessee's failure to make payment of rent or other
charges as provided in this Agreement; (ii) Lessee's failure to perform any of the covenants,terms,
conditions,or provisions of this Agreement; (iii)if 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 the 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,or if Lessee shall abandon the premises; (iv)Lessee vacates,abandons,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; (v) 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; (vi) Lessee is
dissolved; (vii)any lien is filed against the Premises arising by or through Lessee or because of any
act or omission of Lessee. 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 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
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of illustration,but not limitation, notice of intent to terminate,demand for possession or payment,
and notice of re-entry.
18.2 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 the Lessor from the Lessee after the
termination of this Agreement shall reinstate, continue,or extend the term,nor affect or waive any
notice given by the Lessor to the Lessee prior to such receipt of money.
18.3 Right to Re-Enter. If the event of default is for the nonpayment of rent,Lessor may,
as an alternative to terminating the Agreement,serve a notice for possession or payment. Unless the
rent,additional rent, and any other amounts due under this Agreement are paid in accordance with
the demand for possession or payment, Lessor shall be entitled to possession of the Premises and
Lessee shall have no further right to possession under the Agreement, but Lessee shall not be
relieved of any of its liability hereunder. Lessee shall remain liable to Lessor for the payment of all
rent and other charges which Lessee has agreed to pay under this Agreement throughout the
remainder of its term. 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.
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 ofboth 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.
18.4 Other Remedies. The 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.
18.5 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.
18.6 Independent Covenant. Notwithstanding anything to the contrary, Lessee
acknowledges and agrees that its obligation to pay rent under this Agreement is an independent
covenant, and that such obligation to pay rent is not subject to set-off or recoupment in connection
with any action for summary proceedings to recover possession of the Premises.
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19. Bankruptcy or Insolvency
In the event that a trustee is appointed for Lessee or by Lessee as Debtor in Possession, Lessee is
liquidated or files a subsequent petition for reorganization or adjustment of debts under the
Bankruptcy Code,Lessee be adjudicated a bankrupt,insolvent,or placed in receivership,or should
any proceedings be instituted by or against the Lessee for bankruptcy, insolvency, receivership,
agreement of composition, or assignment for the benefit of creditors, or if this Agreement or the
estate of the Lessee hereunder shall pass to another by virtue of any court proceedings, writ of
execution, levy, sale or by operation of law, then, and in any of such events, Lessor may, at its
option,terminate this Agreement and all rights of Lessee hereunder,by giving five(5)days.Notice
of its election to so terminate to Lessee, or to any trustee, receiver, assignee, or other person in
charge of or acting as custodian of the assets or property of the Lessee. Upon the giving of such
Notice,this Agreement and the term hereof shall end on the date fixed in such Notice,or if no such
date is fixed, five(5) days following the proper dispatch of such Notice, and the Lessor shall have
the right to remove all persons,goods,fixtures,and chattels from the Premises by force or otherwise,
without liability for damages,and all the other rights permitted under this Agreement in the event of
a default.
20. Surrender of Premises.
20.1 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. 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.
20.2 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,
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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.
21. Nondiscrimination and Sexual Harassment.
21.1 Lessee covenants and agrees that no person shall be unlawfully discriminated against
in the use and operation of the Premises pursuant to this Agreement.
21.2 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,
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 nondiscriminatorybasis to all users thereof,
and it shall charge fair, reasonable, and nondiscriminatory prices for each unit of
services provided.
21.3 Sexual Harassment Policv. 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;
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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.
22. Access By Lessor
Lessor or Lessor's agents shall have the right to enter the Premises at all reasonable times.
23. Miscellaneous
23.1 Nonwaiver of Rights. No failure by Lessor to insist upon strict compliance of any
obligation of Lessee 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 Lessor'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 of
any of the terms, covenants, and conditions hereof to be performed, kept, and observed by Lessee
shall be construed as, or shall operate as, a waiver of any 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.
23.2 Observance of Lessor's Rules and Regulations. Lessee shall keep and observe such
reasonable rules and regulations now or hereafter required by Lessor,which may be necessary for the
proper and orderly care of the Premises and The Centre.
23.3 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 none of the provisions contained in
this Agreement,nor any acts of Lessor and Lessee,create a relationship other than the relationship of
Lessee and Lessor with respect to the Premises. No manager,staff member,employee,or any other
individual associated with Lessee shall be deemed or construed as an employee of Lessor.
23.4 Construction. 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. The captions, section numbers, and article numbers
appearing in this Agreement are inserted only as a matter of convenience and in no way define,limit,
construe,or describe the scope or intent of such sections or articles of this Agreement nor in any way
affect this Agreement.
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23.5 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:
Rick Kozal Mama Lee's Gourmet Popcorn, Inc.
City Manager Christopher Sumner
City of Elgin 20 S. Spring Street
150 Dexter Court Elgin IL 60120
Elgin, IL 60120-5555
With a copy to: With a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, IL 60120-5555
and a copy to:
Amy Spooner
Recreation Manager
Parks and Recreation
100 Symphony Way
Elgin, IL 60120
23.6 Recordinia. Lessee shall not record this Agreement without the consent of Lessor,
which may be withheld for any reason whatsoever, in Lessor's absolute discretion.
23.7 Governing Law. This agreement shall be subject to and governed by the laws of the
State of Illinois. Any disputes relating to this Agreement or the interpretation thereof shall 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 such court.
23.8 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 invalid
or unenforceable,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
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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.
23.9 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 the 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.
23.10 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.
23.11 Incorporation of R2guired Provisions. The parties incorporate herein by this reference
all provisions lawfully required to be contained herein by any governmental body or agency.
23.12 Non-liabili y of Agents or Employees. No director, officer, agent, or employee of
Lessor 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.
24. Entire Agreement
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. No
alteration,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.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF,Lessor and Lessee have signed this Agreement as of the day and
year first above written.
LESSEE: LESSOR:
MAMA LEE'S GOURMET POPCORN, INC. CITY OF ELGIN
i
By: By:
City Manager
Attest:
City Clerk
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EXHIBIT A
(DEPICTION OF THE PREMISES TO BE INSERTED)
Edward Schock Centre of Elgin caf6 and storage, approximately 1,640 square foot of
space- cafe area as well as storage/sink center space to be rented by Mama Lee's
Gourmet Popcorn, Inc.
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NOTICE
PUBLIC NOTICE is hereby given that the City of Elgin, Kane and Cook Counties,
Illinois, is considering entering into a new lease for a portion of the property owned by the
City of Elgin commonly known as 100 Symphony Way, Elgin, Kane County, Illinois 60120,
Permanent Index Number 06-14-239-009, located in that certain City of Elgin Tax
Incremental Redevelopment Project Area heretofore approved by the City Council of the City
of Elgin on April 10, 2002, and known as the Elgin Center Area Tax Increment Financing
Redevelopment Area. Copies of the existing Redevelopment Plan and Project relating to said
City of Elgin Tax Incremental Redevelopment Project Area and the proposed lease for the
subject property are available for public inspection at the office of the City Clerk of the city of
Elgin, City Hall, 150 Dexter Court, Elgin, Illinois 60120 during normal business hours from
and after the date of this publication.
All interested parties are invited to make proposals for the lease or purchase and
development of said property owned by the City of Elgin. Such proposals must be submitted
in writing to the City of Elgin, City Hall, 150 Dexter Court, Elgin, Illinois 60120 to the
attention of the City Manager on or before January 3, 2022.
This notice is published pursuant to the requirements of the Tax Increment Allocation
Redevelopment Act of the State of Illinois, as supplemented and amended.
Kimberly A. Dewis
City Clerk
City of Elgin
Kane and Cook Counties, Illinois