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HomeMy WebLinkAbout02-345 • Resolution No. 02-345 RESOLUTION AUTHORIZING EXECUTION OF A CONCESSION AGREEMENT WITH CUISINE AMERICA, INC. FOR FOOD AND BEVERAGE CONCESSIONS AT THE CENTRE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Olufemi Folarin, Interim City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Concession Agreement on behalf of the City of Elgin with Cuisine America, Inc . for food and beverage concessions and a banquet hall at The Centre, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: October 23 , 2002 Adopted: October 23 , 2002 Omnibus Vote : Yeas : 7 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk ( 1 `ci OF E1.Ci ( Agenda Item No. City of Elgin 6 14acE� L G September 20, 2002 N #4 RECREATIONAL LEISURE AND CULTURAL OPPORTUNITIES FOR ALL CITIZENS TO: Mayor and Members of the City Council FROM: Olufemi Folarin, Interim City Manager SUBJECT: RFP 02-050A - Food and Beverage Concessionaire for The Centre PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider entering into an agreement with Cuisine America for the food and beverage operation for The Centre. BACKGROUND Within The Centre' s 184 , 722 square feet are areas for the purchase of food and beverage. These areas include : a lobby café, aquatic concession stand and banquet facility with bar services . A request for proposal (RFP) was issued in April, 2002 and publicly advertised. A copy of the request was sent to 25 potential vendors within the Elgin area specializing in restaurant and/or the catering business . There were no viable proposals received at this time, thus a revision to the request for proposal (RFP) was done and a second request for proposal (RFP) was issued July 30, 2002 , and publicly advertised. A copy of the request was sent to 35 potential vendors . Two timely proposals were submitted; GameTime Food & Beverage Services, and Cuisine America. Cuisine America provided the proposal that best met the City' s expectations for menus and operations . Additionally, Cuisine America' s proposal encompasses all food and beverage operations in the facility (café, Adventure Island Concession Stand, Banquets and alcohol sales) and is in line with the City' s RFP 02-050A - Food and Beverage Concessionaire for The Centre September 20, 2002 Page 2 financial expectation as projected within the proforma. Cuisine America offers extensive experience in catering and banquet operations as well as corporate food service. Cuisine America is a local Elgin-based business . GameTime Food & Beverage has the majority of their experience in athletic venues (minor league baseball stadiums) including hawker sales, concession food/items, and some special event catering with minimal or no experience in the type of café or banquet operations that will be offered at The Centre. It is anticipated that Cuisine America will have the café and Adventure Island Concession stand open for business when The Centre opens in November and have food service available in the Heritage banquet room, meeting spaces, and Celebrations party room in December. This contract is an annual renewable agreement with the first contract period established from September 25, 2002 - December 31, 2003 . GROUPS/INTERESTED PERSONS CONTACTED None . �FI13ANCIAL IMPACT W`� Based on Cuisine America' s proposal, the City will receive a percentage of gross receipts in the following tiers : Café • Five percent (5%) of Gross Revenue generated between 1 December 2002 and 28 February 2003 . • Fifteen percent (15%) of Gross Revenue after 28 February 2003 . Adventure Island Concession Stand • Five percent (5%) of Gross Revenue generated between 1 December 2002 and 28 February 2003 . • Ten percent (10%) of Gross Revenue after 28 February 2003 . RFP 02-050A - Food and Beverage Concessionaire for The Centre September 20 , 2002 Page 3 Heritage Ballroom • Fifteen percent (15%) of Gross Food/Nonalcoholic Beverages Revenue . • Fifteen percent (15%) of Gross Alcoholic Beverage Revenue for that portion of alcoholic beverages served during a "cocktail and hors d' oeuvre hour" of a "wedding package . " • Twenty-five percent (25%) of Gross Alcoholic Beverage Revenue except for the above "cocktail and hors d' oeuvre hour" of a "wedding package. " Cuisine America has estimated annual revenues to the City for daily visitor sales and banquet rentals for the first year (December 1 , 2002 - December 31 , 2003) at approximately $95, 000 . As presented in the City developed proforma, anticipated net revenues for 2003 food/beverage operations total approximately $110, 000 . It is anticipated that additional revenue will be received from food sales in conjunction with the rental of The Centre conference rooms, Celebrations party room, special events, and any other areas of the building. At a minimum, the City is guaranteed $20, 000 in base rent . OlkAL IMPACT None . ALTERNATIVES 1 . Award a contract to Cuisine America as the food and beverage concessionaire for The Centre. 2 . Do not award the contract to Cuisine America as the food and beverage concessionaire for The Centre . RFP 02-050A - Food and Beverage Concessionaire for The Centre September 20, 2002 Page 4 RECOMMENDATIONS It is recommended that the City Council enter into an agreement with Cuisine America as the food and beverage concessionaire for The Centre . Respectfully submitted, Olu mi Folarin Interim City Manager LAR Attachments CONCESSION AGREEMENT BY AND BETWEEN THE CITY OF ELGIN AND CUISINE AMERICA, INC. Effective Date: 24 October 2002 C.\RGK Docs\Concession K5.doc CONCESSION AGREEMENT TABLE OF CONTENTS Article I. DEFINITIONS II. ASSIGNED AND SHARED PREMISES III. RECAPTURE IV. LEASE TERM V. SURRENDER OF PREMISES VI. USES AND PRIVILEGES VII. OPERATIONAL STANDARDS VIII. HAZARDOUS MATERIALS IX. RENTALS, FEES, CHARGES, AND ACCOUNTABILITY X. UTILITIES XI. IMPROVEMENTS TO ASSIGNED PREMISES XII. MAINTENANCE AND REPAIRS XIII. LIABILITY, INDEMNITY, AND INSURANCE XIV. ASSIGNMENT, DELEGATION, AND CHANGE OR OWNERSHIP XV. DAMAGE OR DESTRUCTION OF ASSIGNED PREMISES XVI. COMPLIANCE XVII. CANCELLATION BY CONCESSIONAIRE XVIII. CANCELLATION BY THE CITY XIX. SEXUAL HARASSMENT AND DISCRIMINATION PROHIBITIONS XX. GENERAL PROVISIONS XXI. ENTIRE AGREEMENT 2 CONCESSION AGREEMENT EXHIBITS Exhibit Description Exhibit A Assigned Premises within The Centre Exhibit B Shared Premises Exhibit C Permitted Menu Items and Merchandise Exhibit D PepsiAmericas Agreement Exhibit E City of Elgin Liquor License Application and Ordinance Creating Class V License 3 CONCESSION AGREEMENT This Concession Agreement ("Agreement") is made and entered into this 17`h day of October, 2002 by and between the CITY OF ELGIN, an Illinois municipal corporation here- inafter referred to as the "City" and CUISINE AMERICA, INC., a corporation organized and existing under the laws of the State of Illinois, hereinafter referred to as the "Concession- aire." WITNESSETH: WHEREAS, the City now operates a indoor recreation center known as The Centre of Elgin ("The Centre") located in Elgin, Kane County, Illinois; and WHEREAS, the City has selected competitive proposals from qualified operators for the operation of two food and beverage concessions and a banquet hall at The Centre; and WHEREAS, the City desires that the concession areas at The Centre be developed and operated as the "Café" and the "Adventure Island Concession" upon the terms and con- ditions in this Agreement, and further, that the "Heritage Ballroom" be developed and oper- ated in The Centre also upon the terms and conditions in this Agreement (the concession areas and banquet hall being collectively referred to as, "the Concession" for the purposes of this Agreement); and WHEREAS, Concessionaire desires and is ready, willing and able to establish the Concession at The Centre upon the terms and conditions herein. NOW, THEREFORE, in consideration of the foregoing recitals, which recitals are contractual in nature, the mutual covenants herein and for other good and sufficient consid- eration the City and the Concessionaire hereby mutually agree, each for itself and its succes- sors and assigns, as follows: ARTICLE I DEFINITIONS 1.1 "Agreement" shall mean this Concession Agreement between the City and the Concessionaire for the right, privilege and obligation to continuously and uninterruptedly through the Term of this Agreement, to occupy, operate and manage the Assigned Premises as defined herein for the specific purpose described in Article VI herein under the terms and conditions expressly set forth herein. 1.2 "The Centre" shall mean the tract of land and any enlargements thereof with all improvements thereon and to be erected thereon, designated as "The Centre of Elgin," including the existing indoor recreation facility, (together, the "Facilities") all as depicted on Exhibit A. 4 1.3 "Assigned Premises" shall mean the area or areas in the Facilities designated by this Agreement and as depicted on Exhibit A as the "Aquatic Concession Stand" and Café" as the place or places where the Concessionaire may conduct its business operations pursuant to this Agreement. 1.4 "Concessionaire" shall mean Cuisine America, Inc. or its permitted successors or assigns. 1.5 "Director" shall mean the City of Elgin Director of Parks and Recreation or his or her designee, as from time to time appointed by the City. 1.6 "Effective Date" shall mean the date upon which the City Council of the City of Elgin approves this Agreement. 1.7 "Fixed Improvements" shall mean all structural or permanent-type trade fix- ture improvements made by Concessionaire pursuant to Paragraph 11.1 of this Agreement that are affixed to the Assigned Premises. 1.8 "Gross Alcoholic Beverage Revenue" shall mean all monies or other considera- tion paid to Concessionaire, its officers, employees and agents from all alcoholic beverage sales of Concessionaire from all business conducted upon or from the Assigned Premises by Concessionaire and all other parties permitted by Paragraph 14.1 hereof. When properly recorded and accounted for, Gross Alcoholic Beverage Revenue shall not include the amount of any sales tax, use or gross receipts tax imposed by any federal, state, municipal or gov- ernmental authority directly on sales and collected from customers, provided that the amount thereof is added to the selling price or absorbed therein, and paid by the Conces- sionaire to such governmental authority. No franchise or capital stock tax and no income or similar tax based upon income or profits as such shall be deducted from Gross Alcoholic Beverage Revenue in any event whatsoever. Each charge or sale upon installment or credit shall be treated as a sale to the extent that Concessionaire shall receive payment (whether full or partial) thereof. Notwithstanding anything to the contrary in this Agreement, the term Gross Alco- holic Beverage Revenue shall not include the following: a. Any sale or transfer of all, or such a substantial part of the alcoholic liquor stock of the Concessionaire so as to constitute a "bulk transfer" defined as a transfer in bulk, and not in the ordinary course of business in connection with the winding down or dissolution of the Concessionaire's business at the As- signed Premises or the sale or transfer of all or substantially all of the Conces- sionaire's assets or business at the Assigned Premises; b. Transfers of alcoholic liquor between similar stores owned or operated by Concessionaire in the ordinary course of business; and 5 c. Any money received from an insurance or indemnity company or companies as a result of loss, damage, or destruction of or to the alcoholic liquor of the Concessionaire, unless otherwise provided in this Agreement. 1.9 "Gross Revenue" shall mean all monies or other consideration paid to Conces- sionaire, its officers, employees and agents from all sales of Concessionaire from all business conducted upon or from the Assigned Premises by Concessionaire and all other parties per- mitted by Paragraph 14.1 hereof, with the exception of alcoholic beverage sales, and whether such sales be evidenced by cash, check, credit charge account, exchange or other- wise. Gross Revenue shall specifically include any monies or other consideration paid to Concessionaire, its officers, employees and agents for the use and occupancy of any product display areas, window display areas or signage areas. Gross Revenue shall not include sales of merchandise for which verifiable refunds, or allowances have been made on merchandise claimed to be defective or unsatisfactory. When properly recorded and accounted for, Gross Revenue shall not include the amount of any gratuity, sales, use or gross receipts tax im- posed by any federal, state, municipal or governmental authority directly on sales and col- lected from customers, provided that the amount thereof is added to the selling price or ab- sorbed therein, and paid by the Concessionaire to such governmental authority. No franchise or capital stock tax and no income or similar tax based upon income or profits as such shall be deducted from Gross Revenue in any event whatsoever. Each charge or sale upon in- stallment or credit shall be treated as a sale to the extent that Concessionaire shall receive payment (whether full or partial) thereof. Notwithstanding anything to the contrary in this Agreement, the term Gross Revenue shall not include the following: a. Any sale or transfer of all, or such a substantial part of the stock or merchan- dise of the Concessionaire so as to constitute a 'bulk transfer" defined as a transfer in bulk, and not in the ordinary course of business, of materials, sup- plies, merchandise, inventory, or equipment or sale of the stock or merchan- dise or business of Concessionaire in connection with the winding down or dissolution of the Concessionaire's business at the Assigned Premises or the sale or transfer of all or substantially all of the Concessionaire's assets or busi- ness at the Assigned Premises; b. Transfers of merchandise or goods between similar stores owned or operated by Concessionaire in the ordinary course of business; and c. Any money received from an insurance or indemnity company or companies as a result of loss, damage, or destruction of or to the merchandise of the Concessionaire or the Concessionaire's trade fixtures, unless otherwise pro- vided in this Agreement. 1.10 "Lease Year" or "Year" shall have the meaning ascribed to it in Paragraph 4.1 herein. 6 1.11 "Minimum Rent" shall mean the minimum amount of money due to the City annually from the Concessionaire in consideration of the rights granted Concessionaire under this Agreement. 1.12 "Percentage Rent" shall mean the sum of money due the City on account of the City's share of Gross Revenue or Gross Alcoholic Beverage Revenue as hereinafter pro- vided. 1.13 "Personal Property" shall mean all furniture and other portable property fur- nished and used by Concessionaire in its operations hereunder not affixed to the Assigned Premises. 1.14 "Shared Premises" shall mean those common dining and other areas of The Centre that the Concessionaire will share with the City including the Adventure Island seat- ing area, the Café seating area, the teaching/catering "Kitchen" and "Banquet Facility" (the Heritage Ballroom), all as depicted on Exhibit B. 1.15 "Term" shall have the meaning ascribed to it in Paragraph 4.1 herein. 1.16 "Trade Fixtures" shall mean all appliances, signage and any other major equipment or improvements commonly regarded as trade fixtures with a useful life in excess of three (3) years, installed by Concessionaire pursuant to Article XI of this Agreement for use in its operations hereunder. Trade Fixtures may be affixed to the Assigned Premises pro- vided the same may be easily removed without damage to the Assigned Premises. The term Trade Fixtures as used herein shall not include attached shelving, lighting fixtures other than freestanding lamps. Any item normally defined as a Trade Fixture, which is affixed to the Assigned Premises in such a manner as to cause damage to the Assigned Premises upon such items removal, shall be deemed a Fixed Improvement. For purposes of this Agreement, Concessionaire's exterior store signage shall be deemed a Trade Fixture. ARTICLE II ASSIGNED AND SHARED PREMISES 2.1 Description and General Obligations: The City hereby grants to the Conces- sionaire and the Concessionaire takes from the City the right to use the Assigned Premises and Shared Premises. It is understood and agreed that, upon completion of construction of the Assigned Premises, "as built" drawings may be substituted as Exhibits without further amendment hereto. 2.2 City's Representations and Warranties and Possession: The City represents and warrants that (a) it has the authority to grant the rights to the Concessionaire set forth in Paragraph 2.1 and the power and the authority to enter in to this Agreement; (b) this Agreement has been duly authorized by the City Council of the City of Elgin and no further action or approval is required in order to constitute this Agreement as a binding and en- forceable obligation of the City; (c) to the best of the City's knowledge, this Agreement does 7 not and will not violate any agreement to which the City is a party, and; (d) the improve- ments on the Assigned Premises, Shared Premises Facilities and The Centre now and on completion of any construction referenced in Paragraph 2.1, including, without limitation, the structural condition and all mechanical systems are in good condition and repair. In the event of a breach of the City's representation and warranty in subsection (c) of this para- graph 2.2, the City, after notice thereof, will promptly, as its sole expense, remedy any such defect. Subject to the other provisions of this paragraph 2.2, the City and Concessionaire hereby agree that the Concessionaire's taking possession of the Assigned Premises shall be deemed conclusive evidence of Concessionaire's acceptance of the Assigned Premises in sat- isfactory condition and in full compliance with all covenants and obligations of the City in connection therewith. 2.3 Upon the Concessionaire satisfying all of its obligations under this Agreement, it shall have quiet possession of the Assigned Premises and non-exclusive use of the Shared Premises for the entire term hereof. ARTICLE III RECAPTURE 3.1 The City reserves the right to recapture the Assigned Premises anytime during the Term of this Agreement if the City, in its sole and absolute discretion, determines that the Assigned Premises are required for changes in or expansion of The Centre. This Agree- ment shall terminate thirty (30) days after the giving of written notice by the City to the Concessionaire of the City's determination to recapture such Assigned Premises. The Con- cessionaire shall refund any deposits tendered by customers to the Concessionaire used to reserve space and service within the Heritage Ballroom at a future date within thirty (30) days of the Concessionaire's receipt of written notice by the City to the Concessionaire of the City's determination to recapture such Assigned Premises. 3.2 The City may offer substitute space to the Concessionaire in connection with recapture of the Assigned Premises. Nothing in this Agreement shall be deemed to require that the City offer substitute space, or that the Concessionaire accept substitute space. The offering of substitute space will be in the sole and absolute discretion of the City; provided, however, that any such substitute space shall be offered (if at all) by the City to the Conces- sionaire at least thirty (30) days before the effective date of the recapture. ARTICLE IV LEASE TERM 4.1 The Term of this Agreement shall begin on the later of 24 October 2002 or the completion of the construction of the Assigned Premises which will be confirmed in writing by the parties hereto, in accordance with Paragraph 2.1 (the "Effective Date") and shall continue in full force and effect until 31 December 2003, unless terminated prior thereto as provided in this Agreement. Following the initial Term of this Agreement, each Lease Year shall be a successive period of twelve (12) calendar months beginning on January 1s` of each year. The Agreement shall be automatically extended for four consecutive one- 8 year terms unless either party hereto notifies the other party hereto of its intention not to renew the Agreement in writing not less than thirty (30) days before the expiration date of the current term. 4.2 All rentals, fees, charges and payments due hereunder shall begin on the Ef- fective Date. 4.3 Failure of Tenant to Open: In the event that Concessionaire fails to open for business each and every one of the individual locations which comprise the Assigned Prem- ises after such time any such location on the Assigned Premises has been opened to the public, or fails to open for business during any of the Hours of Operation as set forth in Paragraph 7.5, then the City, subject to Article XV and Article XVII shall have, in addition to any and all remedies herein provided, the right, at its sole option, to collect additional rent at the rate of $75.00 per day until each and every one of the said Assigned Premises has been opened for business, stocked and staffed in accordance with the terms hereof. Concessionaire shall not be liable for any delay caused by the events stated in Paragraph 20.14 herein. ARTICLE V SURRENDER OF PREMISES 5.1 Condition on Surrender: At the expiration or earlier termination of this Agreement, Concessionaire shall quit and surrender up the Assigned Premises to the City, peaceably, quietly and broom clean and in the same condition as when tendered by the City, or hereinafter improved by Concessionaire, reasonable wear and tear and insured casu- alty excepted. All Trade Fixtures or Personal Property installed in the Assigned Premises by Concessionaire shall be removed by Concessionaire, provided that Concessionaire is not in default hereunder, and further provided that the same can be removed without damage to the Assigned Premises or to The Centre. At the sole option of the City, all Fixed Improve- ments shall, without compensation to the Concessionaire, become the property of the City, free and clear of all claims to or against them by Concessionaire or any third person, upon surrender of the Assigned Premises by the Concessionaire for whatever reason. Should the City elect not to take ownership of any Fixed Improvements, prior to the date of surrender, Concessionaire shall be solely responsible for the expense of the removal of said Fixed Im- provements and restoring the Assigned Premises to the same condition as when originally tendered by the City. In the event that Concessionaire shall fail to remove its Personal Prop- erty 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 the City, (i) said Personal Property and Trade Fixtures may be stored at a public warehouse or elsewhere at Concessionaire's sole cost and expense; or (ii) title to such Trade Fixtures and Personal Property shall vest in the City, free and clear of all claims to or against them by Concessionaire or any third person, at no cost to the City, in the manner allowed by law. In such event the City shall not be responsible for any losses related to such Personal Property or Trade Fixtures and the City may sell or otherwise dispose of such items. 9 5.2 Holding Over: In the event Concessionaire shall hold over and remain in pos- session of the Assigned Premises after the expiration of the Term of this Agreement without the consent of the City, 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 the City or the Concessionaire 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. ARTICLE VI USES AND PRIVILEGES 6.1 The Concessionaire has the exclusive right, privilege, and obligation to con- tinuously and uninterruptedly occupy, operate and manage the Assigned Premises and the non-exclusive right, privilege and obligation to occupy, operate and manage the Shared Premises, in accordance with the provisions of this Agreement, subject to the provisions of Paragraph 9.1, for the purposes of developing and operating two (2) food and beverage con- cessions and a banquet facility, and for no other purpose whatsoever. Concessionaire's business in the Assigned Premises shall be conducted under the fol- lowing common names of (1) "Café," (2) "Adventure Island Aquatic Concession Stand," and (3) the "Heritage Ballroom Facility." Concessionaire shall not use or permit the Assigned Premises to be used under any other trade name without the City's written consent, such consent not to be unreasonably withheld. Concessionaire acknowledges and hereby agrees that the identity, skill, experience and reputation of the Concessionaire, the specific charac- ter of the Concessionaire's business, the anticipated use of the Assigned Premises, potential for payment of Percentage Rent and the relationship between such use and other uses within the Facilities were all relied upon by the City and served as significant and material induce- ments contributing to the City's decision to entering into this Agreement with the Conces- sionaire. Any change in the character of Concessionaire's business, trade name or use shall constitute a material default under this Agreement. 6.2 In the event the Director, in his or her sole opinion, determines that any item or service displayed, offered for sale or sold by the Concessionaire is objectionable, Conces- sionaire shall, upon written notice from the Director, immediately remove such item or ser- vice from display and from its inventory and Concessionaire agrees that it shall not thereaf- ter display, offer for sale, or sell such item or service. 6.3 The sale of items or services other than those identified in Exhibit C or dis- continuance of the sale of items or provision of services identified in Exhibit C by Conces- sionaire shall not be permitted without prior written approval of the Director, who may withhold approval for any reason whatsoever or for no reason. Concessionaire shall be re- 10 quired to provide the Director, at a minimum, in written form, the following information for consideration of any modification of Exhibit C: a. Clear description of the items to be added/deleted; b. Current prices for the affected item(s) at off-premises locations other than The Centre; c. Rationale for the addition/deletion with supporting justification, such as sales volume, trends, etc. The Director's consideration of Concessionaire's written request to alter Exhibit C, ei- ther by addition or deletion, shall be based upon, among other items, the determination that such addition or deletion reflects and enhances the overall theme of the concession. 6.4 The Concessionaire shall have no right under this Agreement to provide, dis- play, dispense, offer or sell any beverages on the Assigned Premises other than those per- mitted by the City's agreement with PepsiAmericas, Inc., a copy of said agreement being attached to and made part of this agreement as Exhibit D. Concessionaire shall not install or suffer to be installed any amusement, dispensing or vending machine on the Assigned Prem- ises. 6.5 Concessionaire shall not, within its Assigned Premises, offer for sale or install, maintain or operate, or suffer to be installed, "Display Facilities" for the provision of com- mercial advertising of any item, product, service or thing which is not available as a item, service, product for sale or product for demonstration within the Assigned Premises without the prior consent and approval of the Director. The term "Display Facilities" as used in the preceding sentence shall mean and refer to display cases, exhibits, dioramas, backlit show- cases, courtesy direct-line phone boards, or brochure dispensers. Notwithstanding anything contrary in this Agreement, this paragraph is not intended to limit or disallow Concession- aire from utilizing a Display Facility for the purpose of advertising Concessionaire's products or business. The City requires that any Display Facilities for the purpose of advertising Con- cessionaire's product or business receive the written approval of the City prior to installation. Such approval shall be in the sole and absolute discretion of the City. 6.6 Exclusivity: It is expressly provided that the rights and privileges granted here- under are granted on an exclusive basis. 6.7 The Concessionaire has the non-exclusive right of ingress and egress from the Assigned Premises, subject to any rules or regulations which may have been established or may be established in the future by the Director or the City. Such rights of ingress and egress shall apply to the Concessionaire's employees, guests, patrons, invitees, suppliers and other authorized individuals. The rights of ingress and egress likewise apply to the transport of equipment, material, machinery and other property. In connection with any such ingress or egress, the Concessionaire shall not, and shall not permit others, to obstruct or otherwise 11 interfere with the City's or any other tenant's operations or use of the Facilities or The Cen- tre. 6.8 Should a conflict arise between the Concessionaire and other tenants or con- cession operators at The Centre regarding the scope of concession privileges, the decision of the Director shall be final. 6.9 The City shall provide reasonably convenient parking facilities for the Conces- sionaire's employees. The City retains the right to impose a reasonable charge for the privi- lege of utilizing these parking facilities. 6.10 If applicable, Concessionaire shall provide the Director a copy of any health inspection report within twenty-four (24) hours after Concessionaire receives such report. If a health inspection does not result in a report, Concessionaire shall submit a written sum- mary of the nature and findings of such inspection as they were communicated to the Con- cessionaire. Concessionaire shall also provide the Director with any required corrective ac- tions and timeframes for each corrective action to be continuously implemented. ARTICLE VII OPERATIONAL STANDARDS 7.1 Adherence to Standards: Concessionaire, its employees, agents, and servants shall at all times observe, obey and adhere to all reasonable standards, rules, regulations and procedures which may from time to time be promulgated by the City. Further, Concession- aire, its employees, agents and servants shall comply with all laws and regulations of the United States of America, the State of Illinois and of governmental authorities having juris- diction over Concessionaire's operation hereunder. 7.2 The Centre Performance Operating Standards: Concessionaire shall be re- quired to observe, obey and abide by all such applicable reasonable operating performance standards, rules, regulations or procedures, as may be promulgated or amended from time to time by the Director, which are contained herein or otherwise delivered to Concessionaire. 7.3 Concessionaire Standards: Concessionaire shall be required to submit to the City a copy of any customer service, operations, etc. standards and shall ensure continuous adherence to Concessionaire's own standards in addition to the City standards as set forth herein. 7.4 Testing and Inspection by the City: Concessionaire hereby acknowledges and agrees that the City may monitor, test or inspect Concessionaire's services at any time through the use of its own direct review and/or the use of third parties and/or by other rea- sonable means that do not unduly interfere with Concessionaire's business. 7.5 Hours of Operation: The Assigned Premises shall be continuously and uninter- ruptedly open for business and provide all services and sales activities as required by this 12 Agreement and at such hours as may be established by the Director, from time to time, in consultation with the Concessionaire and by mutual agreement of the parties. Concession- aire hereby understands and agrees that the hours of operation for the Assigned Premises may include seven (7) days per week, including local, state and federal holidays. The Con- cessionaire shall not be deemed to have breached or be in default in respect of such operat- ing requirement as a result of temporary closing of the Concessionaire's business within the Assigned Premises in connection with maintenance or repairs, renovation or remodeling, in- ventories or other temporary closing in the normal course of the Concessionaire's business provided that, except relative to the City's obligations in this Agreement, Concessionaire has received from the Director, prior to such temporary closing, in writing, permission for such temporary closing. Concessionaire shall be required, in each of the individual locations which comprise the Assigned Premises, to prominently post in an area visible to employees the most current copy of the Concessionaire's hours of operation. The established hours of operations in effect for this Agreement are as follows (hereafter referred to as "Hours of Op- eration"): The Centre Monday through Friday 5:30 a.m. - 10:00 p.m. Saturday 7:00 a.m. - 6:00 p.m. Sunday 8:00 a.m. - 6:00 p.m. Cafe Monday through Saturday 7:00 a.m. - 2:00 p.m. Sunday Closed Adventure Island Concession Monday, Tuesday, Thursday 3:00 p.m. - 6:00p.m. Wednesday, Friday 3:00 p.m. - 8:30 p.m. Saturday, Sunday 12:00 p.m. - 5:00 p.m. 7.6 Concessionaire's Conduct of Business: a. Concessionaire shall during all Hours of Operation employ an adequate staff of employees and maintain in the Assigned Premises at all times a stock of merchandise as is reasonably designed to conduct its business. b. Concessionaire shall have its display windows, signs, interior sales area, and permitted advertising displays adequately illuminated continuously during the Hours of Operation. 7.7 Interior Store Signage: Except as indicated in Paragraph 6.5, Concessionaire shall be permitted and required to install and operate signs on the Assigned Premises to market the products and/or services offered for sale in the Assigned Premises. 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 the Director prior to installation. Such signage 13 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 the Director. a. All displays, posters, computer or TV projections, and sounds in the Assigned 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 The Centre and the services pro- vided to the public by the City. All reasonable complaints from the public to the City, or from the City, will be forwarded to the Concessionaire in writing. Concessionaire shall remedy such offensive items within two (2) calendar days of receipt of said complaints. b. Any marketing program in the Assigned Premises lasting longer than five (5) consecutive calendar days shall be subject to the review and approval of the Director. Any program that the Director determines unacceptable, in his or her sole and absolute discretion, shall be removed from the Facilities within two (2) days of receipt of written notice to do so. 7.8 Product Labeling: Concessionaire shall individually label each product, or list each product with its appropriate price on menu/product/service boards, with the appropri- ate price in an area clearly visible to the customer. If applicable, Concessionaire shall have menus of products/services available for sale. Any such menu shall include the use of de- scriptive terminology that accurately describes the product(s). Any terminology or statement that the Director, in his or her sole and absolute discretion, determines is false or misleading shall be immediately removed. Menus shall be of excellent quality and sufficient in number to meet peak period demands. 7.9 Entrances: Concessionaire shall ensure that the customer entrances to the As- signed Premises are keep clear of any boxes, cartons, barrels or other similar items which would impede entrance/exit from the Assigned Premises. Piling of boxes, cartons, barrels or other similar items in an unsightly or unsafe manner within the Assigned Premises is forbid- den. 7.10 Merchandising: Concessionaire shall be specifically required and obligated to have continuously in-stock, on display and available for sale a full and complete stock of such permitted food and beverages from the Assigned Premises as is defined and described in Exhibit C. Concessionaire shall ensure that all such food and beverages are at all times attractively and logically arranged and that all merchandise displays are fully stocked with product. 7.11 Entertainment Systems: No radio or television or other similar device shall be installed without first obtaining in each instance the Director's written consent, which con- sent may be withheld for any reason whatsoever or for no reason. No antenna or aerial shall be erected on the roof, interior walls or exterior walls of the Assigned Premises, the Facili- 14 ties or The Centre without in each instance first obtaining the prior written consent of the Director. Any radio, television, or other similar device, antenna or aerial 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 the Concessionaire. No loudspeakers, tele- visions, phonographs, radios, or other devices shall be used in a manner so as to be heard or seen outside the Assigned Premises without the prior written consent of the Director, whose consent may be withheld for any reason whatsoever or for no reason. 7.12 Promotions: Concessionaire may be required to submit to the Director by the 1st day of each Lease Year a promotional program, including dates, types of merchandise and theme of promotions, for the upcoming year. Concessionaire shall ensure that all pro- motions conducted in the Assigned Premises are located in a prominent location and are timely. 7.13 Employee Discount: Concessionaire shall not be required to provide discounts for any person employed at The Centre, either by the City or by any other tenant or concessionaire of The Centre. 7.14 Delivery: All loading and unloading of goods, the delivery or shipping of mer- chandise, supplies, and fixtures to and from the Assigned Premises shall be done only at such time, in the areas, and through the routes designated for such purposes by the City, as determined in the sole and absolute discretion of the Director. Concessionaire shall be re- quired to make significant efforts to avoid using the public areas for large quantity deliveries during peak periods. Concessionaire shall ensure that any items being transported within The Centre are handled with care in a manner that ensures that items are safely packaged within appropriate containers. Concessionaire may be required to utilize delivery carts or de- vices as determined by the Director. 7.15 Plumbing Facilities: The plumbing facilities 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 vio- lation of this provision by Concessionaire or its employees, agents, invitees shall be borne by the Concessionaire. 7.16 Method of Payment: For any purchase the Concessionaire shall accept and honor United States currency and for services provided to customers in conjunction with the rental and use of the Heritage Ballroom at least the following two major credit cards, Visa and MasterCard . 7.17 Point of Sale Devices: Concessionaire shall install and use, or cause to be in- stalled and used at the Assigned Premises, cash registers, sales slips, invoicing machines and other automatic accounting equipment or devices required to properly and accurately record the Gross Revenue and Gross Alcoholic Beverage Revenue on all sales, by type and location, services, and other business transactions made by Concessionaire under this Agreement all of which are in conformance of The Centre's specifications. All transactions recorded on these devices shall be visibly displayed so that the amount recorded can be viewed by cus- 15 tomers 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. 7.18 Foreign Currency: Concessionaire shall not be required to accept foreign cur- rency. If Concessionaire independently elects to accept foreign currency, such may only be accepted for payment of goods at the prevailing exchange rate. No foreign currency ex- change shall be permitted. 7.19 Level of Service: Concessionaire shall conduct its concession operation in a first class manner in accordance with industry standards. Concessionaire shall conduct its operation to provide prompt and timely service. Concessionaire shall maintain the Assigned Premises and conduct its operations at all times in a safe, clean and orderly condition. The Concessionaire shall not create any nuisance, annoy, or be offensive or disturbing to others. 7.20 Management: All concession operations shall be supervised at all times by an active, qualified, competent manager or a qualified assistant manager in the manager's ab- sence. The manager or qualified assistant manager shall be available at the Assigned Prem- ises during Hours of Operation designated in Paragraph 7.5, or any additional hours the Concessionaire is open for business. Said manager shall have full authority to make day-to- day business decisions on behalf of Concessionaire with respect to the Assigned 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 the Concessionaire, represent the Concessionaire in dealings with the City, and coordi- nate all concession activities with the City. Concessionaire will cause such manager to be assigned a duty station or office in The Centre (which may be located within the Assigned Premises). 7.21 Staffing Levels: Concessionaire 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. Any degradation in (a) the customer service requirements set forth in this Agreement or other duties, rights or responsibilities set forth in this Agreement provided by Concessionaire in the course of conducting Concessionaire's permitted uses; or (b) the train- ing and competence of Concessionaire's personnel shall be conveyed to the Concessionaire and Concessionaire hereby agrees that it shall promptly institute training programs and/or add additional adequately trained and capable staff to cure any such defect. Upon the Director's or his or her designee's request, the Concessionaire shall remove any employee, agent, partner or assign from the building and not allow that person to again serve without the written approval of the Director or his or her designee. 7.22 Personnel: Concessionaire shall ensure that all personnel utilized in the As- signed Premises shall conform to the following: 16 a. All personnel employed by the Concessionaire shall be neat, clean and cour- teous at all times. Concessionaire shall provide and maintain uniforms for all employees. b. Concessionaire shall insure that employees working at The Centre report to work and remain drug-free during all work hours. c. All Concessionaire employees shall be subject to criminal background checks performed by the Illinois State Police at Concessionaire's cost and effort. The Concessionaire is prohibited from hiring any prospective employee or continu- ing the employment of any current employee with a known criminal record identifying a felony conviction. d. No loud, boisterous or otherwise improper actions or language shall be per- mitted while on or about The Centre. e. Concessionaire shall, at its sole cost and expense, provide each member of the sales staff with a uniform of a design to be approved by the City, in its rea- sonable discretion, which shall be worn whenever said staff are on the Facili- ties. f. Personnel shall prominently display nametags, The Centre identification badges and any other specified The Centre badges and/or pins while on The Centre. g. 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 Assigned Premises. h. All personnel shall know and utilize practices of good customer service such as (1) assisting customers with purchase decisions; (2) identify product alterna- tives; (3) possess and display good product knowledge; and (4) utilize appro- priate suggestive selling. i. All personnel shall provide warm, friendly, smiling, prompt and courteous ser- vice. j. All personnel shall be proficient with and trained in the required operations of all equipment and devices used in the Assigned Premises to facilitate sales (i.e. point of sale devices, credit card transaction equipment, etc.). k. All personnel shall be familiar will all applicable polices of this Agreement, The Centre and the Concessionaire. 1. All personnel engaged in sales activities shall speak and comprehend English, at a level appropriate to their duties. 17 7.23 Customer Complaints: Concessionaire shall be required to respond to any complaints in writing within ten (10) days of receipt, with a good faith effort to explain, re- solve or rectify the corresponding problem. Concessionaire shall provide The Centre with a copy of any complaint received the same day it is received by the Concessionaire and shall provide The Centre with a copy of the written response the same day it is sent. Complaints received by The Centre shall be forwarded to the Concessionaire, who shall respond utilizing the above procedure. 7.24 Pricing: Concessionaire acknowledges by its entering into this Agreement, the City'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 The Centre. Con- cessionaire shall adhere to this pricing requirement. Prices and charges for all items or services sold or offered from the Assigned Premises shall not exceed the greater of (i) manufacturer's printed suggested retail price (pre-price), if applicable; or (ii) the highest price charged for the same or similar products sold at the same or similar concepts located off-site from The Centre in the Chicago metropolitan area. 7.25 Product: All items sold or offered at the Assigned Premises shall be first qual- ity and conform to all applicable regulations. Concessionaire 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 ap- proval of the Director. Concessionaire shall restore products and/or specifications to the Di- rector's reasonable satisfaction within ten (10) days of such notice. 7.26 Interfere with Systems: Concessionaire 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 concession facilities (including lines, pipes, wires, conduits and equipment connected with or appurtenant thereto) or interfere with the effec- tiveness of elevators or escalators in or adjoining the concession facilities, or overload any floor in the concession premises. 7.27 Smoking: The Centre is a non-smoking facility. 7.28 Unauthorized Locks: Concessionaire shall not place, or suffer to be placed, any additional lock of any kind upon any window or interior or exterior door in the As- signed Premises, or make any change in any existing door or window lock or the mecha- nism thereof. Concessionaire shall pay the City, on demand, the cost for replacement thereof, and the cost of re-keying any such locks. 7.29 Auction: Concessionaire shall not permit, or undertake itself in any sale by auction upon the Assigned Premises. 18 7.30 Loitering or Lodging: Concessionaire shall not permit undue loitering on or about the Assigned Premises or use the Assigned Premises, for lodging or sleeping purposes. 7.31 Liquor License. Concessionaire shall annually apply for a Class V Retail Alco- holic Liquor Dealer's License from the City of Elgin pursuant to the form attached to and incorporated in to this Agreement as Exhibit E. The Class V Retail Alcoholic Liquor Dealer's License authorizes the retail sale and consumption of alcoholic liquor in conjunction with events conducted at The Centre provided (1) the retail sale of alcoholic liquor is conducted with the operation of a food service facility operating at The Centre, (2) the retail sale and consumption of alcoholic liquor is performed solely during times when food is being served at The Centre, and (3) the retail sale and consumption of alcoholic liquor is conducted solely within the Heritage Ballroom area of The Centre. The Concessionaire shall pay the annual license fee of $100.00 for the Class V Retail Alcoholic Liquor Dealer's License. ARTICLE VIII HAZARDOUS MATERIALS 8.1 Except in compliance with any applicable federal, state, county or local stat- utes, laws, regulations, rules, ordinances, codes, standards, orders, licenses or permits of any governmental authorities, relating to environmental matters (being hereafter collectively re- ferred to as the Environmental Laws) including by way of illustration and not by way of limitation; the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, the Compensation and Liability Act of 1980 and the Toxic Substances Control Act (including any amendments or extensions thereof and any rules, regulations, standards or guidelines issued pursuant to any Environmental Laws), Concessionaire, its subsidiaries, subcontractors and suppliers, and anyone on The Centre with the consent of the Concessionaire shall not discharge "Hazardous Substances" (as defined hereinafter) into the sewer and/or storm water drainage system serving The Centre, or cause any Hazardous Substances to be placed, held, stored, processed, treated, released, or disposed of on or at The Centre. Upon termination of this Agreement, Concessionaire shall, at its sole cost and expense, immediately remove from The Centre all Hazardous Substances and all tanks and other containers which are being used or were used, by the Concessionaire, its subsidiaries, subcontractors, or suppliers, or anyone on The Centre with the consent of the Concessionaire, to hold Hazardous Sub- stances, discharged or occasioned from the Concessionaire's operations or the operations of any of its subsidiaries, subcontractors, or suppliers, or anyone on The Centre with the con- sent of the Concessionaire. "Hazardous Substances" shall mean any material that, because of its quantity, concentration or physical or chemical characteristics, is deemed by any federal, state or local governmental authority authorities having jurisdiction over Concessionaire's op- eration hereunder to pose a present or potential hazard to human health safety or to the en- vironment. Hazardous Substances include, by way of illustration and not by way of limita- tion, any substance defined as a "hazardous substance" or "pollutant" or "contaminant' pursu- ant to any Environmental Law; any asbestos and asbestos containing materials; petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids; and any other toxic, dangerous or hazardous chemicals, materials or substance of waste(s). 19 8.2 Neither Concessionaire, its shareholders, officers, agents, servants, employees nor customers shall cause any Hazardous Substance to be brought upon, kept, used, stored, generated or disposed of in, on, or about the Assigned Premises or The Centre, or trans- ported to or from the Assigned Premises or The Centre unless such action is in compliance with all applicable Environmental Laws and The Centre's guidelines and rules and regula- tions. Concessionaire shall be required to keep, at the Assigned Premises in an orderly and easily accessible manner, all records evidencing its compliance with all applicable Environ- mental Laws and The Centre's guidelines and rules and regulations for all Hazardous Sub- stances brought upon, kept, used, stored, generated or disposed of in, on, or about the As- signed Premises or The Centre, or transported to or from the Assigned Premises. Conces- sionaire shall maintain such records from the Effective Date until the expiration or earlier termination of this Agreement. Concessionaire expressly understands, acknowledges and agrees that all such records shall be kept for a period of three (3) years after the expiration or earlier termination of this Agreement. 8.3 Concessionaire shall indemnify, defend, and hold harmless the City 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 Concessionaire of its obligations con- tained in the preceding Paragraphs 8.1 and 8.2, or (b) any release of Hazardous Substance from, in, on or about the Assigned Premises or The Centre caused by any act or omission of Concessionaire, its shareholders, officers, agents, servants, employees and customers. 8.4 Upon reasonable notice, the Director shall have, upon his or her reasonable direction, to conduct an environmental audit of the interior portions of the Assigned Prem- ises for Concessionaire's possible environmental contamination or violation of any applicable Environmental Laws or violation of The Centre's guidelines and rules and regulations. Con- cessionaire shall pay all costs associated with said investigation in the event such investiga- tion shall disclose any Hazardous Substance contamination or violation of Environmental Law or violation of The Centre's guidelines and rules and regulations, in each case, as to which the Concessionaire is liable hereunder. 8.5 Upon Concessionaire's default under this Article VIII and prior to the expira- tion or earlier termination of the Agreement, Concessionaire, upon the written request of the Director, may be required to provide documentation, prepared by a firm acceptable to the Director, that the interior portions of the Assigned Premises are free of Hazardous Substance Contamination and removal of all Hazardous Substances permitted herein have been re- moved in compliance with The Centre's guidelines, rules and regulations and all applicable laws. Such documentation may require an immediate remediation plan and/or long-term care and surveillance of any contamination identified and an acknowledgement of responsi- bility and indemnification for any and all losses associated with such contamination. 20 ARTICLE IX RENTALS, FEES, CHARGES AND ACCOUNTABILITY • 9.1 Concessionaire Rent: For all of its right to the Assigned Premises during the entire Term of this Agreement, Concessionaire covenants and agrees to pay the City, in law- ful money of the United States, without any prior demand and free from all claims, de- mands, set-offs or counter-claims of any kind, the greater of a. or b. below: a. Minimum Rent: Commencing January 1, 2003, and subject to Article XV hereof, a Minimum Rent of Twenty Thousand and no/100 Dollars ($20,000.00) per Year. The Minimum Rent shall be adjusted annually to equal fifty percent (50%) of the prior year's total pay- ments by Concessionaire; however, in no event shall the Minimum Rent in any Year of the Term of this Agreement be less than Twenty Thousand and no/100 Dollars ($20,000.00). Minimum Rent for any partial Lease Year during the Term shall be prorated on a per diem basis. b. Percentage Rent: Concessionaire shall pay to the City the sum of the following percentages of annual Gross Revenue or Gross Alcoholic Beverage Revenue: Café • Five percent (5%) of Gross Revenue generated between 1 December 2002 and 28 February 2003. • Fifteen percent (15%) of Gross Revenue after 28 February 2003. Adventure Island Concession Stand • Five percent (5%) of Gross Revenue generated between 1 December 2002 and 28 February 2003. • Fifteen percent (10%) of Gross Revenue after 28 February 2003. Heritage Ballroom • Fifteen percent (15%) of Gross Revenue. • Twenty-five percent (25%) of Gross Alcoholic Beverage Revenue when the al- coholic beverages are not served as part of a "cocktail and hors d'oeuvre hour" of a "wedding package" as those terms are described in Exhibit C. • Fifteen percent (15%) of Gross Alcoholic Beverage Revenue for that portion of alcoholic beverages served as part of a "cocktail and hors d'oeuvre hour" dur- ing a "wedding package" as those terms are described in Exhibit C. 9.2 Payments: Beginning on the twentieth (20th) calendar day of the second month of the Term, and continuing until and including the month immediately following the expiration or other termination of this Agreement, the Concessionaire shall pay to the City 21 an amount equal to the difference (if any) between the Percentage Rent for the immediately preceding month and the then applicable Minimum Rent; it being understood and agreed that even though the Percentage Rent is computed and payable monthly, it shall be recom- puted on an annual basis. Concessionaire shall make all payments of all rentals, fees and charges required by this Agreement to the City of Elgin. All payments shall be mailed to the following address: Finance Department City of Elgin 150 Dexter Court Elgin, IL 60120-5555 9.3 Concessionaire Reports: Beginning on the second month of the Term of this Agreement, and continuing until and including the month immediately following the termi- nation or expiration of this Agreement, on or before the twentieth (20th) calendar day of each calendar month, without prior demand, the Concessionaire shall submit to the City re- ports setting forth the amount of Concessionaire's Gross Revenue and Gross Alcoholic Bev- erage Revenue for the preceding calendar month. Such reports shall be signed by a respon- sible accounting representative of the Concessionaire. 9.4 Both the City and the Concessionaire acknowledge and agree that the Conces- sionaire's monthly payments of the Percentage Rent and Minimum Rent shall be computed and reconciled on an annual basis on or before the twentieth (20th) calendar day of the next calendar month following the last calendar month of the Lease Year. If it is established that Concessionaire has overpaid the City, then such overpayment shall be credited to the fees and charges next thereafter due to the City from Concessionaire, provided that if the Term shall have expired or shall have been sooner terminated, then any such overpayment shall be remitted to the Concessionaire within thirty (30) calendar days provided Concessionaire is not in default as herein defined. If the Concessionaire shall be in default at such time and such default and all related damages, losses, costs and expenses have been determined and reduced to a monetary amount, then the excess of such overpayment, if any, over such amount shall be remitted to the Concessionaire within thirty (30) calendar days of such de- termination. If it is established that Concessionaire has underpaid the City, then such un- derpayment shall be due with the fees and charges next thereafter due to the City from Concessionaire, provided that if the Term shall have expired or shall have been sooner ter- minated, then any such underpayment shall be remitted to the City within thirty (30) calen- dar days. 9.5 The Concessionaire shall keep full and accurate books and pertinent original and duplicate records, which Concessionaire shall make available at The Centre within thirty (30) days of any request by the City, showing all of Concessionaire's and its subtenant's, as- signee's and licensee's Gross Revenue and Gross Alcoholic Beverage Revenue in a form con- sistent with good accounting practices for at least a three (3) year period after the expiration or earlier termination of the Term of this Agreement. The City shall have the right itself or through its representatives at all reasonable times to audit and otherwise examine and in- spect such books and records, including sales tax returns for the State of Illinois. If Conces- 22 sionaire requests, and the City agrees, that such audit or examination of records be con- ducted at a location other than at The Centre, Concessionaire shall reimburse the City for travel, expense and additional labor involved. Failure by the Concessionaire to provide such records within the time specified shall be considered an event of default. Pertinent original sales records shall include: (a) cash register tapes, including tapes from temporary registers; (b) serially numbered sales slips; (c) such other sales records, if any, which would normally be examined by an independent accountant pursuant to accepted accounting standards in performing an audit of Concessionaire sales. 9.6 The Concessionaire shall employ an independent certified public accountant who shall furnish a written report to the City stating that in its opinion all of Concession- aire's, its subtenant's, assignee's or licensee's Gross Revenue and Gross Alcoholic Beverage Revenue during the preceding Year were correctly and completely reported in accordance with the terms of this Agreement. The Certified Public Accountant's reports for the Conces- sionaire shall contain a list of the Gross Revenue and Gross Alcoholic Beverage Revenue as shown on the books and records of Concessionaire reported to the City or Concessionaire during the period covered by the report. The independent certified public accountant shall certify that its review of the Concessionaire's gross sales was performed in accordance with generally accepted auditing standards and that the report was performed in accordance with the terms and provisions of this Agreement. An officer of the Concessionaire who holds at a minimum the title of Vice President shall certify the Concessionaire's report. Attached to Concessionaire's report shall be the in- dependent Certified Pubic Accountant's reports as hereinabove described. These reports shall be completed within sixty (60) calendar days after the Year and shall be furnished to the City within five (5) calendar days of said report's completion. Any financial statements or materials which reflect the financial condition (the "fi- nancial information") of the Concessionaire as a company or as operator of the Assigned Premises shall constitute the proprietary, confidential material of the Concessionaire. The City covenants that, subject to orders of courts of competent jurisdiction: a. None of the financial information shall be disclosed to any third person for any reason, except to agents, servants, employees, representatives, contractors or directors of the City, their staff or attorneys and on the condition that they likewise observe these conditions. Provided, however, this provision shall not include the City's disclosure in connection with its pursuit or defense of any claim arising under this Agreement. b. Any notations or remarks recorded for the City's records shall likewise be treated confidentially and not disclosed. Provided, however, this provision shall not include the City's disclosure in connection with its pursuit or defense of any claim arising under this Agreement. c. Upon completion of review, the originals of all proprietary and confidential materials shall be returned to Concessionaire. However, Concessionaire agrees 23 that upon the City's request, and in accordance with the terms hereof, Con- cessionaire will provide the financial information again to assure continued ac- cess by the City thereto. 9.7 Should any examination, inspection, and audit of such books and records by the City disclose an understatement of the Gross Revenue and Gross Alcoholic Beverage Revenue received from all operations of Concessionaire in the Assigned Premises by three (3%) percent or more, the entire expense of such audit shall be paid by Concessionaire. Any additional Percentage Rent due shall be paid by Concessionaire to the City with interest thereon at the lesser of the rate of eighteen percent (18%) per annum or the maximum in- terest rate permitted by law from the date such additional Percentage Rent became due. 9.8 Upon request one copy of any financial statements, quarterly or annual share- holder reports, or other publications of the Concessionaire shall be furnished to the City, within ten (10) days of receipt of such request, by the Concessionaire at Concessionaire's sole cost and expense. 9.9 Concessionaire shall within thirty (30) days of preparation provide the City with any copies of internal or external audit reports conducted for the Assigned Premises. 9.10 Past Due Percentage Rent and Minimum Rent: If Concessionaire shall fail to pay, when the same is due and payable, any Percentage Rent or Minimum Rent, or amounts or charges as contained herein, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the rate which is the lesser of eighteen percent (18%) per annum or the maximum interest rate permitted by law. ARTICLE X UTILITIES 10.1 Concessionaire shall, in addition to any other rental fee or charge, be solely responsible for the following utilities required, used or consumed in the Assigned Premises: telephone service. Except as otherwise provided herein, the City shall be responsible for all other utilities relating to the Assigned Premises. 10.2 Concessionaire shall be responsible for the proper disposal of all refuse and waste materials created by its operations. The City shall dispose of all refuse when placed in designated receptacles. The Concessionaire shall regularly monitor these areas for cleanliness and trash removal during the day/event. 10.3 Non-interference with utilities: Concessionaire shall do nothing, and shall permit nothing to be done, that may interfere with the utilities on The Centre, by way of example without limitation such drainage or sewerage systems, fire hydrants, heating and air conditioning systems, electrical systems, domestic hot water, domestic cold water, gas, fire suppression systems, fire alarm system, or plumbing. Concessionaire's duty under this sec- 24 tion includes but is not limited to preventing grease and oils from entering waste lines, drains, and sewers. ARTICLE XI IMPROVEMENTS TO ASSIGNED PREMISES 11.1 Concessionaire Trade Fixture Installation: Concessionaire may, at Concession- aire's sole cost and expense, install any additional Trade Fixtures and Fixed Improvements and equipment required to operate its business (all of which shall be of first-class quality and workmanship) during the Term of this Agreement. All structural improvements, equip- ment and interior design and decor constructed or installed by the Concessionaire, its agents, or contractors, including the plans and specifications shall conform to all applicable statutes, ordinances, building codes, and rules and regulations of the City, other appropriate agencies, and commissions. All Trade Fixtures, signs, or other Personal Property installed in the As- signed Premises by Concessionaire shall remain the property of Concessionaire and may be removed at any time provided that Concessionaire is not in default hereunder and provided the removal thereof does not cause, contribute to, or result in Concessionaire's default here- under; and further provided that the removal shall not cause damage to the Assigned Prem- ises or The Centre. If Concessionaire removes Trade Fixture or Personal Property during the term of this Agreement, Concessionaire shall replace the same with Trade Fixtures or Per- sonal Property of like or better quality. At the sole option of the City, all Fixed Improve- ments shall become the property of the City upon surrender of the Assigned Premises by the Concessionaire for whatever reason, however, the City may require Concessionaire to re- move its Fixed Improvement (including Trade Fixtures and Personal Property) prior to sur- render of the Assigned Premises. Concessionaire shall not attach any fixtures or articles to any portion of the Assigned Premises, nor make any alterations, additions, improvements, or changes or perform any other work whatsoever in and to the Assigned Premises, without in each instance obtaining the prior written approval of the City. Any alterations, additions, improvements, changes to the Assigned Premises or other work permitted herein shall be made by Concessionaire at Concessionaire's sole cost and expense. 11.2 Signs, Awnings, and Canopies: Upon completion of the improvements to the Assigned Premises, Concessionaire shall not be permitted to place or cause or allow to be placed or maintained on any exterior door, wall or window of the Assigned Premises any additional sign, awning or canopy or advertising matter or other thing of any kind, and will not place or maintain any exterior lighting, plumbing fixture or protruding object or any decoration, lettering, or advertising matter on the glass of any window or door of the As- signed Premises without first obtaining the Director's written approval, which approval may be withheld for any reason whatsoever or for no reason. Concessionaire further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times. Any sign, awning or canopy or advertising matter or other thing of any kind so installed without the written approval of the Director shall be subject to removal without notice at any time. The cost of such re- moval shall be at the Concessionaire's sole cost and expense. 25 11.3 Approval Process: With respect to the Concessionaire's improvements to the Assigned Premises, the Concessionaire agrees as follows: a. The Concessionaire agrees to follow the City's Construction Approval Process. This process, among other things, contains provisions for submission of con- struction schedules and plans. b. The Director shall either approve or disapprove the plans and specifications submitted to the City. The approval by the Director of any plans and specifi- cations refers only to the conformity of such plans and specifications to the general architectural and aesthetic plan for the Assigned Premises. Such plans and specifications are not approved for architectural or engineering design or compliance with applicable laws or codes and the City does not assume liabil- ity or responsibility thereof or for any defect in any structure or improvement constructed according to such plans and specifications by the City's approval of such plans and specifications. The Director reserves the right to reject any plans submitted and require the Concessionaire to resubmit designs and speci- fications until they meet the Director's approval. 11.4 Upon completion of any Concessionaire-installed improvements to the As- signed Premises outlined hereinabove, the Concessionaire shall have the right to install or erect additional, non-structural improvements in the Assigned Premises; provided however, that all such alterations shall be commenced only after plans and specifications have been submitted to and approved by the Director. Any such alterations and/or repairs shall be without cost to the City, completed within the time specified in the written approval, and with the least disturbance possible to the operation of The Centre, The Centre tenants, and to the public. 11.5 The ultimate control over the quality and acceptability of the finishes in the Assigned Premises shall be retained by the City. All improvements and finishes shall con- form to The Centre standards, all building, health, fire, and other applicable codes, ordi- nances, rules and regulations. 11.6 Within ninety (90) calendar days of the completion of any construction au- thorized under this Agreement, the construction contractor(s), architect(s), and engineer(s) must provide the City with: (1) a certified statement from the construction contractor(s), ar- chitect(s) and engineer(s) specifying the total construction cost; (2) a certification that the improvements have been constructed in accordance with the approved plans and specifica- tions, and in strict compliance with all applicable building codes, laws, rules, ordinances and regulations; and (3) certified proof in writing demonstrating that no liens exist or have been filed or may be filed by reason of any or all of the construction. 11.7 The Concessionaire shall not remove or demolish, in whole or in part, any Fixed Improvements upon the Assigned Premises without prior written consent of the Direc- 26 tor, which consent may be conditioned upon the obligation of Concessionaire to replace the same by a specified Fixed Improvement. ARTICLE XII MAINTENANCE AND REPAIRS 12.1 Subject to Paragraph 2.2 and the terms herein, the Concessionaire agrees to provide at its own expense maintenance, custodial, and cleaning services for the Assigned Premises and the Shared Premises. Concessionaire shall keep all of the Assigned Premises, Shared Premises and all of the Fixed Improvements, Trade Fixtures, Personal Property, stock, etc. located therein, clean and in good order and shall observe superior sanitation standards at all times. Concessionaire shall keep the Assigned Premises and surrounding ar- eas free of debris, trash, merchandise delivery or packing boxes. Concessionaire shall ensure that all walls, floors, cash wrap, serving, passenger sales areas and employee areas, counters, equipment and other surfaces are cleaned and sanitized at least daily. Concessionaire shall ensure that all of its personnel conform to personal hygiene and product handling require- ments established by Concessionaire, the City or applicable laws, rules, regulations and or- dinances. Notwithstanding anything to the contrary herein, Concessionaire shall have no re- sponsibility under this Article XII for (a) the roof and structural components of the Facilities except to the extent caused by Concessionaire or (b) any repair or maintenance to the Shared Premises caused by the City or third parties or their officials, officers, employees, agents or contractors. 12.2 Subject to paragraph 2.2 and the other terms of this Article XII, at no cost to the City, the Concessionaire agrees to keep and maintain, in good working order, and make necessary repairs, which repairs shall include all necessary replacements, capital expendi- tures and compliance with all laws now or hereafter adopted, the Assigned Premises and every part thereof and any and all appurtenances thereto wherever located, including by way of example only but without limitation, the Fixed Improvements, Trade Fixtures and Concessionaire's equipment, the window frames, interior windows, plate glass, doors, door frames and checks, keys, locks and entrances, storefronts, security gates, utility lines and connections, signs, lighting fixtures, bulbs and tubes, floors, floor coverings, interior walls, wall coverings, ceiling, any columns or structural improvements erected by Concessionaire, partitions , utility systems, utility lines, utility equipment, HVAC systems, connections and ductwork, sprinkler systems, electrical systems, electrical lines, electrical equipment and all other work, improvements and repairs and replacements, renewals and restorations, interior and exterior, ordinary and extraordinary, foreseen and unforeseen. Subject to paragraph 2.2 and the other terms of this Article XII, Concessionaire shall ensure that all equipment, de- vices, electrical lights and bulbs in the Assigned Premises are fully functional at all times, that all security and fire exits in the Assigned Premises are fully operational and in excellent working order at all times, and utilize its best efforts to repair these items if required. Not- withstanding anything to the contrary, the City shall be solely responsible for the mainte- nance and repair of the roof and structural components of the Assigned Premises, Facilities and The Centre except to the extent any repair is required because of actions by the Con- cessionaire. 27 12.3 All work, repairs done by the Concessionaire or on its behalf shall be of first class quality in both materials and workmanship. All work and repairs shall be subject to inspection, review and approval by the Director and shall be made in conformity with the rules and regulations prescribed from time to time by the City and/or Federal, state, or local authorities having jurisdiction over the work in the Concessionaire's Assigned Premises. All service companies utilized by Concessionaire shall be subject to The Centre security and other regulations governing The Centre. 12.4 Concessionaire shall provide a complete and proper arrangement for the ade- quate sanitary gathering, sorting, transportation, handling and disposal, away from The Cen- tre, of all trash, garbage and other refuse caused as a result of its operations as described herein (trash removal). Concessionaire shall provide and use transportation devices and re- ceptacles for all garbage, trash, or other refuse which meet The Centre's specifications. Piling of boxes, cartons, barrels or other similar items in an unsightly or unsafe manner on or about the Assigned Premises is forbidden. All garbage and refuse shall be prepared for col- lection in the manner and at the time and places specified by the City. If the City shall pro- vide or designate a service for picking up refuse and garbage, Concessionaire shall be re- quired to use said service at Concessionaire's proportional cost of said service. Concession- aire shall provide garbage and refuse containers as specified by the City. Concessionaire shall be required to regularly clean and sanitize such containers on a regular basis, or as directed by the Director. 12.5 The City and its agents shall have the right to enter the Concessionaire's As- signed Premises to: a. Inspect the Assigned Premises during The Centre Hours and/or at any time in case of emergency, to determine whether the Concessionaire has complied with and is complying with the terms and conditions of this Agreement. The Director may, at his or her sole discretion, require the Concessionaire to effect repairs resulting from Concessionaire's obligations hereunder at the Conces- sionaire's sole cost and expense; b. Perform any and all things which the Concessionaire is obligated to and has failed to do after fifteen (15) calendar days written notice to act, or if said ob- ligation cannot reasonably be completed in said fifteen (15) days and Conces- sionaire either does not promptly commence said obligation or is unable to complete such obligation, or at any time in case of an emergency, including: maintenance, repairs and replacements to the Concessionaire's Assigned Prem- ises. The cost of all labor and materials, and other charges required for per- formance of such work, plus fifteen (15) percent thereof for administrative overhead, will be invoiced to the Concessionaire and Concessionaire shall re- mit payments in full thereof to the City within ten (10) calendar days follow- ing receipt of invoice by Concessionaire; or 28 c. Perform any duty or function that the City may have in relation to the opera- tions of The Centre. In exercising its rights hereunder, the City shall take all reasonable action not to disrupt Concessionaire's operations at the Assigned Premises. ARTICLE XIII LIABILITY, INDEMNITY, AND INSURANCE 13.1 Increase Liability: Concessionaire shall not do or permit any act or thing upon the Assigned Premises which will invalidate, suspend or increase the rate of any insurance policy carried by the City covering the Assigned Premises, or the buildings in which the same are located or The Centre, or which, in the reasonable opinion of the City, may con- stitute a hazardous condition that will increase the risks normally attendant upon the opera- tions contemplated under this Agreement. If, by reason of any failure on the part of Concessionaire after receipt of notice in writing from the City to comply with the provisions of this paragraph, any insurance rate shall at any time be higher than it normally would be, then Concessionaire shall pay the City, on demand, that part of all insurance premiums paid by the City which have been charged because of such violation of failure of Concessionaire. 13.2 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 indi- rectly, 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. 13.3 Indemnity: Concessionaire shall hold City completely harmless and indemnify, protect and defend City and City's officials, members, employees, volunteers and agents against any and all claims, judgments, fines, penalties, forfeitures, damages, demands, liabili- ties, suits, notices, costs and expenses (including all reasonable costs and expenses for inves- tigation and defense thereto (including, but not limited to attorney fees, court costs and ex- pert fees)) (collectively, "Damages"), or any one, more or all of these, of any nature whatso- ever, arising or allegedly arising, directly or indirectly, out of, as a result of, or incident to, or in any way connected with: (1) Concessionaire's use of any part or all of the Assigned Prem- ises; (2) Concessionaire's exercise of any one, more or all of the rights and privileges herein granted; (3) any breach or default in the performance of any obligation on Concessionaire's part to be performed under the terms of this Agreement; and/or (4) any act(s) or omission(s) on the part of Concessionaire and/or officer(s), agent(s), employee(s), contractor(s), sub- contractor(s), servant(s), or representative(s) of Concessionaire during the term hereof, ex- cept for any Damages to the extent caused by the active negligence or by the willful mis- conduct of City or any of its officials, officers, employees, agents or contractors. 29 City shall give to Concessionaire reasonable notice of any such claims or actions. THE PROVISIONS OF THIS SECTION OF THIS ARTICLE SHALL SURVIVE THE EXPIRATION OR EARLY TERMINATION OF THIS LEASE. 13.4 City Exemption. Except to the extent caused by the negligence or willful mis- conduct of the City, its officials, officers, employees, agents or contractors, the City shall not be liable for, and is hereby released from, (a) all liability to the Concessionaire, Concession- aire's insurance carrier(s), or any person claiming under or through Concessionaire, for any loss or damage to Concessionaire '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 Assigned Premises, whether belonging to Concessionaire or any other person; or (b) injury to Conces- sionaire or Concessionaire'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 Assigned Premises and (c) Concessionaire shall be solely respon- sible for the safety and security of the Assigned Premises and the safety and security of all equipment, supplies, and commodities used or sold by Concessionaire. Concessionaire also covenants and agrees that the City shall not be liable for damages arising from any act or neglect on the part of any third parties except to the extent caused by the negligence or willful misconduct of the City or any of its officials, officers, employees, agents or contrac- tors. 13.5 Insurance During the life of this Agreement. The Concessionaire shall pay for and maintain in full force and effect all policies of insurance required hereunder with an in- surance company(s) either (i) admitted by the Illinois Insurance Commissioner to do busi- ness in the State of Illinois and rated not less than "A- VII" in Best's Insurance Rating Guide; (ii) authorized by the City's Fiscal Services Manager. The following policies of insur- ance are required: 13.6 Commercial General Liability: Commercial general liability insurance which shall include Owners, Landlords and Tenant's liability, premises liability, contractual, prod- ucts and completed operations coverage, fire legal liability, bodily injury and property dam- age liability insurance with combined single limits of not less than $1,000,000 per occur- rence. 13.7 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. 13.8 Worker's Compensation: As required under the Illinois Labor Code. 13.9 Dram Shop Insurance. A policy of insurance in the sum of not less than $5000 issued by an insurance company approved by the City of Elgin Local Liquor Control Commission in the form commonly known as "dramshop insurance." 30 13.10 Proof of Insurance: The above described policies of insurance shall be en- dorsed to provide an unrestricted thirty (30) day written notice in favor of the City, 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, the Concessionaire 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 reduc- tion in coverage, the Concessionaire shall file with City a new certificate for such policy. The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name the City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so the Concessionaire's insurance shall be primary and no contribution shall be required of the City. The Concessionaire shall furnish the City with the certificate(s) and applicable en- dorsements for all required insurance prior to City's execution of the Agreement. 13.11 Failure to Maintain Insurance: If at any time during the life of the Agreement or any extension the Concessionaire fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately and all payments due or that become due to the Concessionaire shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that said insurance premiums have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. If the Concessionaire should subcontract all or any portion of the work to be performed under this Agreement, the Concessionaire shall require each subcontractor to provide insurance protec- tion in favor of the City, its officers, officials, employees, agents and volunteers in accor- dance with the terms of each of the preceding paragraphs, except that the subcontractors' certificates and endorsements shall be on file with the Concessionaire and City prior to the commencement of any work by the subcontractor. 13.12 General Insurance Provisions: Concessionaire's insurance shall be primary with respect to any other insurance or insurance retentions available to or for the benefit of the City. Any applicable deductibles or retentions are are as follows: $250/occurrence for Con- cessionaire's personal property. 13.13 Waiver of Subrogation: The City and Concessionaire hereby release the other from any and all liability or responsibility for any loss or damage to property caused by an insured fire or any other insured peril to the extent of any insurance proceeds received by the releaser, even if such fire or other casualty shall have been caused by the fault or negli- gence of the other party or anyone for whom such party may be responsible; provided, however, that the City's and the Concessionaire's policies contain a clause or endorsement or policy wording to the effect that any such release shall not adversely affect or impair said policy or prejudice the right of the releaser to recover thereunder. The foregoing release shall not apply to the intentional acts or omissions of either party. 31 ARTICLE XIV ASSIGNMENT, DELEGATION, AND CHANGE OF OWNERSHIP 14.1 This Agreement and the rights and privileges contained herein are personal to Concessionaire and Concessionaire agrees that it shall not assign, mortgage, pledge, or trans- fer this Agreement or any other right, privilege or license conferred by this Agreement, ei- ther in whole or in part, or permit use of any Assigned Premises by another, or in any man- ner encumber the Assigned Premises or any part thereof, without obtaining in advance the written consent of the City. 14.2 The Concessionaire shall obtain the written consent of the City prior to any change in form of business organization or merger or any change or transfer of the control- ling interest in Concessionaire and any change, transfer or merger without such consent of the City shall constitute a breach of the Agreement. Concessionaire agrees to provide the City with sufficient financial and other records and information as determined by the City, for any such person, corporation or entity. Such records and information shall be used by the City to accurately evaluate and assess the financial qualifications, responsibility, standing and capability of said person, corporation or entity. 14.3 This Agreement and the rights and privileges contained herein are personal to Concessionaire and the Concessionaire shall agree that it will not assign, sublet or sublicense the same or any portion thereof, or assign, sublet or sublicense the Agreement or any por- tion thereof or advertise for assignment, sublet or sublicense of the Assigned Premises or Agreement without the expressed prior consent of the City, in writing, and any purported assignment in violation hereof shall be void and shall be a breach of this Agreement. In de- termining whether to grant its consent, the Concessionaire shall provide sufficient financial and other records and information, as determined by the City, of any proposed assignee or sublessee or sublicensee in order for the City to accurately evaluate and assess the financial qualifications, responsibility, standing and capability of proposed assignee or sublessee or sublicensee. 14.4 The City reserves the right to deny any assignment, subcontract, sublease or sublicense or other use, right or permit hereunder for any reason. Any approved assignee, sublessee, sublicensee or transferee, shall comply with all of the items, conditions and obli- gations of Concessionaire as provided in the Agreement. ARTICLE XV DAMAGE OR DESTRUCTION OF ASSIGNED PREMISES 15.1 Notice; Options: If all or a portion of the Assigned Premises are damaged or destroyed by fire, explosion, the elements, or other casualty, the City in its sole discretion may cause within its sole and absolute discretion such affected premises to be repaired or reconstructed at no cost to Concessionaire, subject to the limits as set forth in Paragraph 15.3. The Director shall notify Concessionaire within forty-five (45) calendar days of such 32 occurrence of the City's intentions to repair or reconstruct or not to repair or reconstruct and in the event of the City's election not to repair or reconstruct, this Agreement shall be ter- minated or in the event the City does not complete such repair or reconstruction within one hundred twenty (120) days from its election to repair or reconstruct, Concessionaire may terminate this Agreement. Provided, however, if said damage is caused by the negligent or wrongful act or omission to act of Concessionaire, or its agents or employees, and the City elects to repair or reconstruct, Concessionaire shall be responsible for reimbursing the City for the cost and expense incurred in such repair. 15.2 Destruction: In the event all or a portion greater than fifty-percent (50%) of the Assigned Premises is completely destroyed by fire, explosion, the elements, public en- emy or other casualty, or are so damaged that they are untenantable and no notice of intent to repair or reconstruct has been issued as referenced in paragraph 15.1 hereof within said forty-five (45) day period, Concessionaire may terminate this Agreement in its entirety as of the date of such destruction, provided that if such destruction is a result of the negligent or wrongful act or omission to act of Concessionaire, its agents, servants, employees, contrac- tors, suppliers, customers, or invitees, Concessionaire shall not have the right to terminate this Agreement and the City may, in its discretion, require Concessionaire to repair and re- construct said premises within sixty (60) calendar days of such destruction and Concession- aire shall pay the cost therefore. 15.3 Limits of City's Obligations Defined: It is understood that, in the application of the foregoing provisions, the City's obligations shall be limited to: (i) repair or reconstruc- tion of the Assigned Premises to the same extent and of equal quality as existed at the Commencement Effective Date of this Agreement; and (ii) the extent of insurance proceeds available to the City for such purposes. Fixed Improvements, Trade Fixtures, redecoration and replacement of furniture, equipment and supplies shall be the responsibility of the Con- cessionaire unless such damage is caused by the City or its employees or agents and any such redecoration and refurnishing/re-equipping shall be equal in quality to that originally installed. Nothing in this Article XV shall waive or limit indemnity, defense and hold harm- less obligations incurred by Concessionaire under this Agreement. 15.4 Notwithstanding anything to the contrary herein, any Minimum Rent re- quirement hereunder, and Concessionaire's obligations under Paragraph 4.3, shall be abated from the date of such casualty until either any repair or construction is completed or this Agreement is terminated in accordance with this Article XV. ARTICLE XVI COMPLIANCE 16.1 The Concessionaire, its officers, agents, servants, employees, contractors, li- censees, and any other person over which the Concessionaire has the right to exercise con- trol shall comply with all present and future laws, ordinances, orders, directives, codes, rules, regulations, directives and contract/grant assurances of, or imposed by, the federal, state, and 33 local governmental agencies, including those of the City, which may be applicable to Con- cessionaire's operations at The Centre. 16.2 Concessionaire shall pay on or before their respective due dates, to the appro- priate collecting authority, all federal, state, and local taxes and fees, which are now or may hereafter be levied upon the Assigned Premises, or upon Concessionaire, or upon the Con- cessionaire's business conducted at The Centre, or upon Concessionaire's interest hereunder, or upon any of the Concessionaire's property used in connection therewith, including pos- sessory interest as and when such be applicable to Concessionaire. The Concessionaire agrees to protect and hold harmless City and the Assigned Premises and any and all im- provements located therein or thereon and any and all facilities and fixtures appurtenant thereto and any and all other property(ies) located therein or thereon and any and all of Concessionaire's interest(s) in and/or to said Assigned Premises, improvements, appurtenant facilities, fixtures and/or other property(ies), 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 Concessionaire's rights to appeal any such levies and/or assessments in accordance wit the rules, regulations, laws, statutes, or ordinances governing the appeal process of the taxing authority(ies) making such levies and/or assessments. Concessionaire acknowledges and agrees that any interest in real property which ex- ists as a result of possession, exclusive use, or a right to possession or exclusive use of any real property (land and/or improvements located therein or thereon) which is owned by the City of Elgin is a taxable possessory interest unless the possessor of interest in such property is exempt from such taxation. With regard to any possessory interest to be acquired by Con- cessionaire under this Agreement, Concessionaire, by its signatures hereunto affixed, war- rants, stipulates, confirms, acknowledges and agrees that, prior to its executing this Agree- ment, Concessionaire either took a copy hereof to the office of the Kane County Tax Asses- sor or by some other appropriate means independent of City or any employee, agent, or representative of City determined, to Concessionaire's full and complete satisfaction, how much Concessionaire will be taxed, if at all. 16.3 Concessionaire 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 the City for violations of federal, state or local laws, ordinances, ruling or regulations, or City rules and regulations by Concessionaire or its officers, agents, servants, employees, contrac- tors, licensees, or any other person over which Concessionaire has the right to exercise con- trol within the earlier of delinquency or thirty (30) calendar days of written notice of such fines or penalties. 16.4 Concessionaire will operate its concessions hereunder in a safe manner and without interfering with the City's use of the Facilities, for themselves and for its customers and other business invitees. 34 16.5 Concessionaire shall obtain, pay for and continuously maintain current all li- censes 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 con- duct of the permitted activities hereunder. Concessionaire 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 Concessionaire's failure to obtain and maintain in lawful effect such retail alcoholic liq- uor dealer's licenses shall constitute a breach of this Agreement. Concessionaire shall ensure that any such required items are displayed prominently and/or in conformance with applica- ble guidelines. The City's application for a retail alcoholic liquor dealer's license along with the ordinance creating a Class V retail alcoholic liquor dealer's license for the retail sale and consumption of alcohol in The Centre is attached to and incorporated in to this Agreement as Exhibit E. ARTICLE XVII TERMINATION BY CONCESSIONAIRE 17.1 In addition to all other remedies otherwise available to the Concessionaire at law or in equity, the Concessionaire may terminate this Agreement by giving a thirty (30) calendar day written notice to the City of its intent to do so, should any one or more of the following events occur: a. The assumption by the United States government, or any authorized agency thereof, of the operation, control or use of The Centre, or any substantial part or parts thereof in such manner as to substantially restrict Concessionaire from operating thereon for a period of at least ninety (90) consecutive calendar days; b. The breach by the City in the performance of any material covenant of this Agreement required to be performed by the City and the failure of the City to commence to remedy such breach for a period of thirty (30) calendar days af- ter receipt of written notice of such breach by the City; or c. The issuance of an injunction by a court of competent jurisdiction preventing the use of The Centre in such a manner as to substantially restrict the Conces- sionaire from conducting its operations hereunder; which prevention or re- straint is not caused by the act or omission of the Concessionaire and which injunction remains in force for at least ninety (90) consecutive calendar days. Notwithstanding anything to the contrary herein, any Minimum Rent requirement here- under, and Concessionaire's obligations under Paragraph 4.3, shall be abated from the date of such event until such event ceases or this Agreement is terminated in accordance with this Article XVII. 35 ARTICLE XVIII TERMINATION BY THE CITY 18.1 In addition to all other remedies otherwise available to the City at law or in equity, the City may terminate this Agreement or may, without terminating this Agreement, take possession of the Assigned Premises by giving a thirty (30) calendar day written notice of its intent to do so to the Concessionaire, should any one or more of the following events occur: a. Concessionaire fails to cooperate with any inspection of books and records by the City and/or fails to maintain its books and records as required hereunder; b. Except as otherwise permitted in this Agreement a majority of the ownership interest of Concessionaire is transferred, passes to or devolves upon, by opera- tion of law or otherwise, to any other person, firm or corporation without the written consent of the City; c. Except as otherwise permitted in this Agreement, Concessionaire becomes, without the prior written approval of the City, a successor or merged corpora- tion in a merger, a constituent corporation in a consolidation, or a corporation in dissolution; d. Concessionaire shall breach, any promise, covenant or condition set forth in this Agreement after the giving of written notice of such failure by the City to Concessionaire, and such breach shall continue for ten (10) days after notice therof from the City to Concessionaire, provided that if such_cure shall rea- sonably take more than ten (10) days, City may not terminate this Agreement under this subparagraph d provided Concessionaire commences said cure within said ten (10) days and diligently prosecutes said cure to completion. 18.2 In addition to all other remedies otherwise available to the City at law or in equity, the City may immediately terminate this Agreement or may, without terminating this Agreement, take immediate possession of the Assigned Premises by giving written notice of its intent to do so to the Concessionaire, upon the occurrence of any one or more of the fol- lowing: a. Concessionaire fails to pay the Minimum Rent or Percentage Rent or any other payments when due under this Agreement or to provide and maintain insurance, all as required in accordance with this Agreement, and such failure continues for five (5) business days after notice thereof from the City to Con- cessionaire; b. Any lien is filed against the Assigned Premises arising by or through the Con- cessionaire or because of any act or omission of Concessionaire and such lien is not removed, enjoined or a bond for satisfaction of such lien is not posted 36 within sixty (60) calendar days after Concessionaire receives notice of the fil- ing thereof; c. Concessionaire permits to continue, for a period of three (3) days after receipt of written notice from the Director or other agency having jurisdiction, the ex- istence of unsanitary conditions or practices in or about the Assigned Prem- ises; provided however, if the unsanitary condition is such as to require re- placement, repair or construction, Concessionaire shall have a reasonable time in which to correct, but must begin action on the matter immediately upon receipt of said notice; d. Concessionaire abandons, deserts, vacates or discontinues its operation of the business herein authorized from the Assigned Premises for a period of three (3) calendar days without prior written consent of the City; or e. A voluntary or involuntary bankruptcy petition is filed by or against Conces- sionaire and not dismissed within sixty (60) calendar days; or Concessionaire makes an assignment for the benefit of creditors; or Concessionaire is ad- judged a bankrupt; 18.3 Acceptance by the City 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 the City to terminate this Agreement on account thereof. 18.4 On or before the termination or reentry dates set forth in the written notice by the City to Concessionaire as set out in Paragraphs 3.1, 18.1 and 18.2, Concessionaire shall surrender the Assigned Premises according to and as provided in Paragraph 5.1 herein. 18.5 Upon termination or reentry by the City, the City may reassign the Assigned Premises and any improvements thereon or any part thereof to be operated by one or more sub-operators or any other party acceptable to the City, at such rentals, fees and charges and upon such other terms and conditions as the City, in its sole discretion, may deem advisable, with the right to make alterations, repairs or improvements on said Assigned Premises. 18.6 Bankruptcy: If the City shall not be permitted to terminate this Agreement as hereinabove provided because of the provisions of Title 11 of the United States Code relat- ing to Bankruptcy, as amended ("Bankruptcy Code"), then Concessionaire as a debtor-in possession or any trustee for Concessionaire agrees to promptly, within no more than sixty (60) days upon request by the City to the Bankruptcy Court, assume or reject this Agree- ment. In such event, Concessionaire or any trustee for Concessionaire 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 Concessionaire will promptly compensate the City for any actual pecuniary loss to the City resulting from Concessionaire'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 37 Agreement to be performed by Concessionaire. In no event after the assumption of this Agreement shall any then existing default remain uncured for a period in excess of the ear- lier of ten (10) days or the time period set herein. ARTICLE XIX SEXUAL HARASSMENT AND DISCRIMINATION PROHIBITIONS 19.1 Nondiscrimination a. Concessionaire, 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 sub- jected to discrimination in the use of said Facilities; (2) that in the construc- tion of any improvements and the furnishing of services, no person on the grounds of race, color, creed, or national origin shall be excluded from par- ticipation in, denied the benefits of, or otherwise be subjected to discrimina- tion. b. That in the event of breach of any of the above nondiscrimination covenants, the City shall have the right to terminate this Agreement and re-enter and re- possess said Assigned Premises, and hold the same as if said Agreement had never been made or issued and no reimbursement shall be made to Conces- sionaire. c. The Concessionaire shall furnish its accommodations and/or services 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 however, the Concessionaire may make reasonable and nondiscriminatory dis- counts, rebates and other similar types of price reduction to volume purchas- ers unless otherwise provided in this Agreement. 19.2 Sexual Harassment Policy. As a condition of this Agreement, the Concession- aire shall have a written sexual harassment policy that includes, at a minimum, the follow- ing 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 38 Illinois Human Rights Commission; f. Directions on how to contact the Department of Human Rights and Illinois Human Rights Commission; g. Protection against retaliation as provided to the Department of Human Rights upon request. P.A.87-1257. ARTICLE XX GENERAL PROVISIONS 20.1 Nonwaiver of Rights: No waiver of breach by the City or Concessionaire 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 subsequent breach of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the other parties. 20.2 Notices: Notices required herein shall only be deemed given if sent by regis- tered or certified mail deposited in the United States mail, postage prepaid. Any such notice so mailed shall be presumed to have been received by the addressee seventy-two (72) hours after deposit of the same in the U.S. mail. Concessionaire and the City shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Notices to the City shall be addressed as follows: Parks and Recreation Director City of Elgin 31 S. Grove Avenue Elgin, IL 60120 Notices to Concessionaire shall be addressed as follows: Cuisine America, Inc. 403-407 Bluff City Blvd. Elgin, IL 60120 Attention: Mary Catherine Walsh If any notice is given in any other manner or at any other place, it shall also be given at the place and in the manner specified above. Any Notice given by facsimile received after 3:00 p.m. local time shall be deemed to have been received at 8:00 a.m. local time, of the recipient, the next business day. 20.3 Captions: The headings of the several articles and paragraphs of this Agree- ment 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 39 construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 20.4 Severability: In the event any covenant, condition or provision herein con- tained is held to be invalid by any court of competent jurisdiction, the invalidity of any such covenant, condition or provision herein contained shall not affect the validity of the remain- ing covenants, conditions or provisions of this Agreement. 20.5 Waiver of Claims: The Concessionaire hereby waives any claim against the City 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 Agree- ment null, void or voidable, or delaying the same or any part thereof from being carried out. 20.6 Right to Develop The Centre: It is further covenanted and agreed that the City reserves the right to further develop or improve The Centre regardless of the desires or views of the Concessionaire and without interference or hindrance. 20.7 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 Agree- ment. 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. 20.8 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. 20.9 Relationship of Parties: Nothing contained herein shall be deemed or con- strued by the City or the Concessionaire, or by any other parties, as creating the relationship of employer and employee, principal and agent, partners, joint venturers, or any other simi- lar such relationship, between the parties hereto. The City and Concessionaire shall under- stand and agree that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the City and the Concessionaire creates a relationship other than the relationship of Concessionaire as permitted of the City. 20.10 Non-liability of Agents or Employees: No director, officer, agent, or employee of the City or the Concessionaire 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. 20.11 Successors and Assigns Bound: This Agreement shall be binding upon and in- ure to the benefit of the successors and assigns of the parties hereto, where permitted by this Agreement. 20.12 Time of Essence: Time is expressed to be of the essence in this Agreement. 40 20.13 Gender: Words of any gender used in this Agreement shall be held and con- strued to include any other gender and words in the singular number shall be held to in- clude the plural, unless the context otherwise requires. 20.14 Force Majeure: Except for the payment of any rent or fee or charge required by this Agreement, neither the City nor the Concessionaire shall be liable to the other for any failure, delay or interruption in the performance of any of the terms, covenants or con- ditions of this Agreement due to causes beyond the control of that party or persons or enti- ties 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 re- sponsible 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 ei- ther party. 20.15 Representative of the City: The Elgin City Manager, or his/her representative, shall be designated as the official representative of the City 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 the City with respect to all action required of the City in this Agreement. 20.16 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. The Concessionaire and The City 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 Concessionaire or the City 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. 20.17 Writing Required: This Agreement may not be amended or otherwise modi- fied in any way whatsoever, except in writing approved by City Council and signed by the parties authorized agents. 20.18 Rights Cumulative: Each right of the parties hereto is cumulative and in addi- tion to each of the other legal rights that a party may have in law or equity. 20.19 Sub-agreements: The Concessionaire hereby assures that it shall include all of the terms, conditions, convents, obligations, etc. contained herein in any and all agreements and contracts or sub-agreements and subcontracts entered into by it under which the Con- cessionaire grants a right or privilege to any person, firm or corporation to render accommo- dations and/or services within or for the Assigned Premises. Concessionaire shall require that any document so entered into is subordinate in all terms to this Agreement. Concessionaire hereby also assures that it shall similarly cause the same to be included in any further sub- leases, subcontracts or sub-agreements. The voluntary or other surrender of this Agreement 41 by Concessionaire or a mutual termination hereof, or a termination by City, 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 City, terminate any or all existing Sub-Leases/Tenancies or may, at the option of City, operate as an assignment to City of any or all such Sub-Leases/Tenancies. 20.20 Inspection of Records: The Concessionaire 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 the City to be pertinent to ascertain compliance with this Agreement for the term of this agreement and three (3) years thereaf- ter. Where any information required of the Concessionaire is in the exclusive possession of another who fails or refuses to furnish this information, the Concessionaire shall so certify to the City and shall set forth what efforts it has made to obtain the information. This para- graph shall survive termination of the Agreement. 20.21 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 con- trol and take precedence over the terms and conditions expressed within the exhibit or at- tachment. 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. ARTICLE XXI ENTIRE AGREEMENT 21.1 The parties hereto understand and agree that this document contains the en- tire Agreement between the parties. The parties further understand and agree that neither party nor its agents have made representations or promises with respect to this Agreement except as expressly set forth herein; and that no claim or liability shall arise for any repre- sentations or promises not expressly stated in this Agreement, any other writing or parol agreement with the other party being expressly waived. IN WITNESS WHEREOF, the parties hereto have executed these presents through their respective officers duly authorized so to do this 17th day of October, 2002. CITY OF ELGIN CUISINE AMERICA, INC. By: By: City 5nager mes L. Walsh, President 42 Attest: Attest: (64,01- By: Crv.- By: City Clerk Ma C erine Walsh, Secretary 43 Aquatic Concession Stand Cafe OC --�I ii • Banquet Facility NW - a II' II• oImmmi— ���� ," Teaching/Catering = = 4 ! �mm�� I h O �' ►J I Kitchen - ❑ , lig —04 a IMP C=i1 . JCkI:40 On elk i'' ) 0 ( _:_i i _- • i ����,' jgj Iii. , :' ir--.\ —:� 2 = - `\ ll p ,71 .--iiiis tabbies. i \ 'r'.-: vi/ ' ,_,_,_,__" - . c, . . -,--rjrzr:4) r m ,� g .I "Oil 14 1 MO = it , � � a] I pp First Floor I I' I li b II b I m E d ro Z H M tr1 m Aquatic Concession Stand 0 a c Cafe `= H I! t•7 p a r- , i I 1_I 1.I _I-1 1_ ' ^ II,L I 1 �� 0 _ 41 i �w Banquet Facility ■, ( II 8 ® i ' ��� , a ! - LI ! r �ad� Jl- pim. ..-_-- a Teaching/Catering ,..I J i., -- III i , 1. O q Kitchen ii D - ® \ gr 1111, . , itiPla E7:1 i i . r _ ..Y _�� . ... _= 0 r �� HL Iiii ,• nh�'3�r1:!411 l� I nninni i‘ \\,,, ,,o.„.2./ , --ibiudini iiii ) . . 0 1 0 . l II1 ,. • -1. • I # NI NM a I• / i \\ 1 , . - -, -----)(-":-KC • . __ . , ..____ . i . hi" 1 a--I,, . 'l 7 • x g 112.1 __-I r ----t I First Floor I III 4. II I V� tabbies' CORRIDOR D155 CAFE m Xco oleo 2 / VVY EXAM 91Te ELECsm , 1 sm _ ♦*at[:171"-- ' , . D306 D307 D3011 0,, I 0 41 • i CORK /� Wrn* D30B 91982892919999171—.. D311 Dm '////////2/77 7///a 1 I 1 1 / ` 1 1 f i STAIR NO 9 IRES 1 ALCOVE L DARK / f D161 D313 , ROOM � J / ;✓l/C - D312 / / i' jam _ c, / , X-RAY ✓ H /// En / it.k. i 7y / f x / � L / ./ / z - Na� im awn aaa� n a / / / — — —# I—I — : _op --L — H I ZJiiiiiiilliiiluuuiioililil;iiiiimi i 0 r�('s.l�4 _ DRY GOODS ° ' g�nAnd~ FL �' { AoosII11 0�u I I 2 nod, '# C p. a r MULTI-USE 2 tri d s. CORRIDOR A003 H 7� O r I -` A010 G� C�i .—_ I_� I Z ii puP © I— --III =_ H < �� � O I �I�'III m p z O JI — ...... — ......... 1 KI ' N mII:. :: .„ Aoos O O I ® ..� I►� mIll _ f .:.,,, ,,,, . . . .„„_ 46 -='-'''0 ..„?,.! 0 ,...-.... ,....... ...., . ____, ',,,i„, . ,,_,_,,,..„. __ ._: mos -..1 e 07.- 1 — L _ . ... .: T Ioi ® D) I .a� VESTIBULE tabbies / .3 24 ® wE 23— ,'I e CI A004 X Y7 2g(.'. x / , Zg ^ ^27 = -0 riV ' O ® .,i 1 1 fL 0 j / • 0o / L! _ J _IL _ JL_ JL _ J 11 Vriol 010 /////l7l ..i ice—,—rami i i/./-.t/i. /-,!� ►'- 9a TEACHING KITCHEN PARTIAL ENLARGED FLOOR PLAN— ZONE A SCAM 1/4'.1W 63 ' . ,,,,,w,./ 11 ,,,,,,,,„„„„, 1 /l/// /= ooiaN/ram �\ , $\ - - I : )',kr. i 1 •41.1 - ,-, I i *nit - • ■I *.vN 4: 4 . II ■I ii; * fp E tI :) ' 1 r D \., 11 ,I,' 0* '/ I BENCH I I E I I ° , — \I �i «l dog 4- - it. w Om. 4•e s'$11r Istill N,. ,( _AL.r.v _-ter. 0211t _ ., `.—I LOW' , Ao„ • 1 l ..� / At\\ S I R J/l/l,///////////l/ *•.1 — _ * I . J\' :*) 'a 41%1i LiH3N38 DL E 1 \*.. ' • 1�� , a, 1 \� 1 , .... HER - ROOMSMr. .) ww 4 VI 1/ �� /iP l\ TRAIT GlCATERINO \ JI ---------- d JC / SHARED PREMISES / WET BAR " IAVI COrt+rt ^AS BANQUET FACILITY J " 4•A<<d U' , "HERITAGE BALLROOM" 5/1////1�, • • prAI SAC. EXHIBIT 1 e�nstAks DECK ) L—'� ,� , /. '''')'KA i;; Efl 1 K,..,__ CV /7J/,',—,/P1f7,1f/„/l% 77 l9 / •� I' 42 r 9 riftir Ve. I • . • C \� Zu 2 s1 \. I d / 42 CONCESSIONS� / 72 ,111,,,,,,, In rziH 57 50 59 61 2 63 ISY 115(ckl� 66 / „111,,,,,, 11 111 1L JLiJI L J ! MEN'SLOC :R cn ///,,,,,,//,,,,i/////�/,„ ,^ C172 i ' MI i Y. m 0 2A4 c, mmologingi, , , DRY 75 I" 72 iiii'i'iiiii!- / l' 0 STORAGE I / / WORK a 1 ROOM ; • 7C C117 L-- / C116 / / C I , . / I / / ' I 7 / / // ,34 / l L _� 69 I / /�/ / r tabbies' //,_/_,i,/.////,,,,,, -///,.t //,i. ,,,,,,, ////,/,////J////> / r—,1 / / 97 76 m PRO SHOP ; ;� m — / C118 /cJz, x I. ( / / / \--\ /////// s 9 3 qu 9 e / CC / " / ��- //a /// i i rT7 PLIRTIAI PMMI ARrGn GI nnD DI AK1_7!'1PIC /s . --- -g CONCESSION AND CAFE i •, - , ,- - 1-,)• - ------,„:.•••.-- i_1;f7,„4-...f. .. ..e.• '''''''' '1 ' ' ' • -. ---' 0-6.:,-, -,•A •• a--*.. ' .ar -., : s. . - , 1_,./,1 •* - ..- ... ..fi 1 f,,<. '''' - c'*:&'' ar / :• ',..: . • . I' oil .ct• , --•---"...71::,,.:* \ va:',.• 1... • • ,.,... • , GRAND OPENING V.I.P. RECEPTION i ' • ..,. Itel , )t • ,.. , - — ) / g - ' +. s _... V • • ..1 a "', - - , • • ..... - EXHIBIT •„, i C ....., . # • • s ti _ . . - r • _ • • - �� •,� • ' 3 Y L - • '.,`• - 1.... --, • - .• w • • • • • • • • • . : - : rsia.net `rr fed Shrimp : Yr • .. • .• •- 4 �`' • . rapped in a Snow Pea Pod •.. • • ` ,. <- • • .,- ,' ' ' : •e •Carp accia Skewers With Carmelized Pearl •,�`R . -• �• .• !,- p 'and Porcini Braised Button Mushrooms 4 •. • •r . Vegetable Spring Rolls r. • with Golden Plum Sauce . • • ••••• ' - `'; `- Chilled Asparagus Wrapped in Swiss and Prosciutts--- .'' • • k • f s - Artichoke Water Chestnut Rumaki _.�__ • • With Hoisin Molasses Glaze• •-; k1 - 4, Grilled Zucchini Cups r - ~ With Roasted Red Pepper Mousse .- . • •i•t 4 • v 'Spinach, Asiago, and Smoked Chicken Pizza Trian Mexican Corn Sopes With Pit Roast Pork, ; - , ' • Chipotle Glaze, Chihuahua and Avocado -' -. - i ..• Buckwheat Blini With Smoked Salmon Rose `~ '* l `� ;; and Dill Sour Cream 41, �-n' '-g` - • *• . = 1' Carved-Watermelon Palms • ; ` • • �` With Strawberries, Blueberries, Raspberries and • . r> ' ;, Bay Scallop Seviche in Belgium Endiv.•. - 4 " w. ." •' • • = $23.95 -• * y } • • •• ' " 11. . A :eers, House Wines, Champagne, `' 4. . • • Three Hour Reception $8 5; - ' - • • • • - I*`r - Cash Bar Availabl= `G ; - • lif • • * _ ?.• - - ' • •• • •� ` `. . 1. .• • all 1 • • • - • '•• * • i. • a '