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HomeMy WebLinkAbout23-71 Resolution No. 23-71 RESOLUTION AUTHORIZING EXECUTION OF A COMMERCIAL PROPERTY LEASE AGREEMENT WITH THE ELGIN AREA HISTORIC SOCIETY FOR THE PROPERTY COMMONLY KNOWN AS 302 W. CHICAGO STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Richard G.Kozal,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute a Commercial Property Lease Agreement on behalf of the City of Elgin with the Elgin Area Historic Society, for the property commonly known as 302 W. Chicago Street to be used for a public museum and commercial event space,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 26, 2023 Adopted: April 26, 2023 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk COMMERCIAL PROPERTY LEASE AGREEMENT THIS LEASE (hereinafter referred to as the "Lease") is made and entered into as of the 26th day of April , 2023, by and between City of Elgin, an Illinois municipal corporation, (hereinafter referred to as "Lessor"), and the Elgin Area Historic Society (EARS), an Illinois not-for-profit corporation(hereinafter referred to as the"Lessee"). WHEREAS, Lessor owns the property commonly known as 302 W. Chicago Street, Elgin, Kane County, Illinois 60123, including the home located thereon, which is commonly known as the Nancy Kimball Cobblestone House (the "Home") (such property and home collectively hereinafter referred to as the"Subject Property"); and WHEREAS, Lessee desires to lease from Lessor the Subject Property for use as a public museum and commercial event space, including gallery and exhibit space, seminars and presentations, educational programs, meeting rooms, work space for community projects, receptions and small events, and other similar approved uses, in accordance with the terms and conditions of this Lease(the"Permitted Uses"); and WHEREAS, Lessor desires to lease to Lessee the Subject Property for such purposes upon the terms and conditions contain herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which are hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. Basic Lease Provisions The following are the parties and the premises that are subject to this Lease and referred to in subsequent provisions of this Lease: Lessor's Name and Address: City of Elgin, 150 Dexter Court, Elgin, Illinois 60120. Lessee's Name and Address: Elgin Area Historical Society, 360 Park Street, Elgin, Illinois 60120. Premises: The Subject Property, as previously defined herein. 2. Grant Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises in for good and valuable consideration and subject to the terms and conditions of this Lease. 1 3. Term The term of this Lease shall be for an initial term of one hundred twenty (120) months, to commence on May 1 , 2023, and to continue until April 30, , 2033 (the "Initial Term"). This Initial Term may be extended for successive one-year terms thereafter(each a"Renewal Tenn")upon the mutual written agreement of the parties. 4. Rent Lessee will not be required to pay Lessor any monetary amount of rent under the terms of this Lease. 5. Conduct of Business by Lessee Use of Premises. Lessee shall use and occupy the Premises during the continuance of this Lease solely for the Permitted Uses set forth in the Basic Lease Provisions, and for no other purpose or purposes without the prior written consent of Lessor. If any governmental license or permit shall be required for the proper and lawful conduct of Lessee's business or other activity carried on in the Premises or if a failure to procure such a license or permit might or would, in any way, affect Lessor or the Premises, then Lessee, at Lessee's expense, shall procure and maintain such license or permit. Lessee shall promptly comply with all laws and ordinances and lawful orders and regulations affecting the Premises and the cleanliness, safety, occupancy, and use of same. Lessee agrees that it will conduct its business in the Premises in a lawful manner and in good faith. Lessee shall not cause or permit the use, generation, storage, or disposal in, on, or about the Leased Premises or the Premises of any substances, materials, or wastes subject to regulation under any Federal, state, or local laws from time to time in effect concerning hazardous, toxic, or radioactive materials. Care of Premises. Lessee shall keep the Premises orderly, neat, safe, and clean. 6. Alterations Lessee may make interior revisions to the Premises, subject to all applicable code regulations and prior written approval of Lessor. All alterations, decorations, additions, and improvements made by Lessee shall be deemed to have attached to the leasehold and to have become the property of Lessor upon such attachment, and upon expiration of this Lease, Lessee shall not remove any of such alterations, decorations, additions, and improvements, except trade fixtures installed by Lessee may be removed if all rents due herein are paid in full and Lessee is not otherwise in default hereunder. Prior to commencing any renovation work approved by Lessor, Lessee shall procure certificates of insurance from all contractors and subcontractors showing general liability and worker's compensation coverage and naming Lessor as an additional insured. Lessee shall in any event be responsible for repairing any damage caused to the Premises by virtue of any unauthorized alteration, addition, or improvement installed by or on behalf of Lessee. 2 7. Signs Lessee agrees not to use any advertising media without first receiving written approval from the Lessor. All signage or advertising media shall be professionally prepared and Lessee further agrees to maintain any such sign, awning, canopy, decoration, lettering, advertising matter, or other thing, as may be approved, in good condition and repair at all times. 8. Maintenance of Leased Premises 8.1 Lessor shall not be called upon to make any improvements or repairs of any kind to the Premises. Except for damage caused by misuse or neglect of the Lessee or Lessee's agents, servants,visitors, servants,or licensees, Lessor shall at its cost keep and maintain in good order, condition, and repair the Home, in its sole discretion. Lessor shall at its cost further be responsible for care and maintenance of the exterior of the Premises, including mowing and general maintenance of the exterior landscaping, and the removal of snow from the parking lot at the Premises; provided, however, that Lessee shall be responsible for the ongoing care of plants at the Premises and for snow removal of the sidewalks and entranceways at the Premises. Lessee shall keep and maintain the Premises in a clean, sanitary, and safe condition in accordance with the laws of the State of Illinois and in accordance with all directions, rules, and regulations of the health officer, fire marshal, building inspector, or other proper officials of the governmental agencies having jurisdiction at the sole cost and expense of Lessee, and Lessee shall comply with all requirements of law,ordinance,and otherwise, affecting the Premises. 8.2 Lessor and its agents shall have the right to inspect the Premises during the hours of operation and/or at any time in case of emergency, to determine whether Lessee has complied with and is complying with the terms and conditions of this Lease. Lessor may, at its sole discretion, require Lessee to correct any unsatisfactory conditions and/or effect repairs required under this Lease at Lessee's sole cost and expense. If Lessee refuses or neglects to correct such conditions and/or complete the repairs required by the provisions of this section promptly and adequately, Lessor may, but shall not be required to do so, make and complete said repairs, and Lessee shall pay the cost thereof to Lessor upon demand, as additional rent. 8.3 At the time of the expiration and/or termination of the tenancy created herein, Lessee shall surrender the Premises, including all systems covering the same in good condition, reasonable wear and tear, loss by fire or other unavoidable casualty, excepted. 8.4 Lessee shall keep the Premises and all other parts of the Premises free from any and all liens arising out of any work performed, materials furnished,or obligations incurred by or for Lessee, and agrees to bond against or discharge any mechanic's or materialmen's lien within ten (10) days. Lessee shall reimburse Lessor for any and all costs and expenses which may be incurred by Lessor by reason of the filing of any such liens and/or the removal of same, such reimbursement to be made within ten (10) days after receipt by Lessee from Lessor of a statement setting forth the amount of such costs and expenses. The failure of Lessee to pay any such amount to Lessor within said ten (10) day period shall carry with it the same consequences as failure to pay any installment of rent. 3 8.5 Lessor, at its own expense and in its sole discretion, shall maintain fire extinguishers and other fire protection devices as may be required from time to time by any agency having jurisdiction thereof and the insurance underwriters insuring the Premises. Lessee agrees to comply with any and all requirements of the insurance underwriters insuring the Premises. 9. Insurance 9.1 Insurance during the Life of this Lease. As additional rent for the Premises, Lessee shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the Illinois Insurance Commissioner to do business in the State of Illinois and rated not less than "A-VII" in Best's Insurance Rating Guide; or (ii) authorized by Lessor's Risk Management Assistant. The following policies of insurance are required: a. Commercial General Liability. Commercial general liability insurance which shall include Owners, Lessor and Lessee liability, premises liability, contractual,products and completed operations coverage, fire legal liability, bodily injury, and property damage liability insurance with combined single limits of not less than $1,000,000 per occurrence. b. Property Insurance. An all-risk property insurance policy covering all contents, and Lessee's trade fixtures, machinery, equipment, furniture, and furnishings in the Premises to the extent of at least ninety percent (90%) of their replacement cost under standard fire and extended coverage insurance, including, without limitation, vandalism and malicious mischief. In the event of loss, the proceeds of any such policy shall promptly be used by Lessee for restoration of its improvements, alterations and trade fixtures and the replacement of its personal property. C. Worker's Compensation. As required under Illinois law. In addition, employer's liability insurance shall be provided with limits of$100,000 per accident, and $100,000 per employee for disease,with a minimum policy limit of$500,000 for disease. 9.2 Proof of Insurance. The above-described policies of insurance shall be endorsed to provide an unrestricted thirty(30) day written notice in favor of Lessor, of policy cancellation, change or reduction of coverage, except for the Workers' Compensation policy which shall provide a ten (10) day written notice of such cancellation, change or reduction of coverage. In the event any policies are due to expire during the term of this Lease, Lessee shall provide a new certificate evidencing renewal of such policy(ies). Upon issuance by the insurer,broker, or agent of a notice of cancellation, change or reduction in coverage, Lessee shall file with Lessor a certified copy of the new or renewal policy and certificates for such policy. 9.3 The General Liability insurance policy(ies) shall be written on an occurrence form and shall name Lessor, its officers, officials, agents, employees, and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Lessee's insurance shall be primary 4 and no contribution shall be required of Lessor. Lessee shall furnish Lessor with the certificates and applicable endorsements for all required insurance prior to Lessor's execution of the Lease. Lessee shall furnish Lessor with copies of the actual policies upon the request of Lessor at any time during the life of the Lease or any extension. 9.4 Failure to Maintain Insurance. If at any time during the life of the Lease or any extension Lessee fails to maintain the required insurance in full force and effect, Lessor may, but is not required to, obtain and maintain insurance for protection of its own interests, and all premiums paid or payable by Lessor therefore shall be deemed to be additional rent, and shall be due on the payment date of the next installment of rent under this Lease. 9.5 Lessee shall not do or permit any act or thing upon the Premises which will invalidate, suspend, or increase the rate of any insurance policy carried by Lessor covering the Premises, or which, in the opinion of Lessor, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under this Lease. 9.6 Each party hereto shall give to the other prompt and timely written notice of any claim made or suit instituted coming to its knowledge which in any way directly or indirectly, contingently or otherwise, affects or might affect either, and each shall have the right to participate in the defense of the same to the extent of its own interest. 10. Indemnification and Hold Harmless 10.1 To the fullest extent permitted by law, Lessee agrees to indemnify, defend and hold harmless Lessor, its officials, officers, employees, boards and commissions from and against any and all claims, suits,judgments, costs, fines, fees, expenses, penalties, damages, or other relief, including attorneys' fees, of any kind and nature arising out of or resulting from or through or alleged to arise out of any reckless or negligent acts or omissions of Lessee and/or of Lessee's officials, officers, employees or agents in connection with the leasing of the Premises and/or in the performance of this agreement. In the event of any action against Lessor, its officials, officers, employees, agents, boards, or commissions covered by the foregoing duty to indemnify, defend, and hold harmless, such action shall be defended by legal counsel of Lessor's choosing. The provisions of this section shall survive any termination and/or expiration of this Lease. 10.2 Lessor shall not be liable for, and is hereby released from, all liability to Lessee, Lessee's insurance carrier(s), or any person claiming under or through Lessee, for any loss or damage to Lessee's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property located in, upon or about the Premises, whether belonging to Lessee or any other person; nor shall Lessor be liable for injury to Lessee or Lessee's employees, agents, contractors, subcontractors, customers, or invitees caused by fire, steam, electricity, gas, water, rain, leakage, breakage, obstruction, pipe defects, sprinkler, wires, appliances, plumbing, air conditioning, lighting fixtures, or any other cause, arising on the leased premises. Lessee shall be solely responsible for the safety and security of the leased premises and the safety and security of all equipment, supplies, and commodities used or sold by Lessee. Lessee also covenants and agrees that Lessor shall not be liable for damages arising from any act or neglect 5 on the part of any third parties. 10.3 Lessee agrees that the sole remedy available to Lessee upon any breach of this Lease by Lessor shall be the cancellation of the Lease under its terms. It is the essence of this Lease that Lessor shall not be liable in money damages for any breach of this Lease, and in no event shall Lessor be liable for any other monetary damages, including, but not limited to, compensatory, consequential, or incidental damages or attorney's fees, arising from or in any way related to any breach or other violation of the terms of this Lease. 10.4 The provisions of this Section 10 shall survive any termination and/or expiration of this Lease. 11. Utility Charges Lessor shall be solely responsible for and promptly pay all charges for gas, water, heat, electricity, sewer, and garbage charges used upon or furnished to the Premises, and for the provision and payment of services for internet, cable, telephone, security, and telecommunication services for the Premises, for the duration of this Lease. 12. No Assignment or Subletting This Lease and the rights and privileges contained herein are personal to Lessee and Lessee agrees that it shall not assign, mortgage, pledge, or transfer this Lease or any other right, privilege or license conferred by this Lease, either in whole or in part, or sublet or permit use of any Premises by another, or in any manner encumber the Premises or any part thereof, without obtaining in advance the written consent of Lessor, which may be withheld for any reason whatsoever. It is understood and agreed that Lessor's consent hereunder (and wherever else in this Lease required, unless specifically provided to the contrary) may be arbitrarily withheld, notwithstanding any statutory or other provisions of law to the contrary. 13.Waste and Nuisance Lessee shall not commit or suffer to be committed any waste upon the Premises or any nuisance or other act or thing which may disturb the quiet enjoyment of surrounding properties. Lessee shall not use or permit to be used any medium that might constitute a nuisance, such as loudspeakers, sound amplifiers, phonographs, radios, televisions, or any other sound-producing device which will cant'sound outside the Premises. 14.Damage or Destruction of Leased Premises In case the Premises shall be rendered untenable by fire,explosion or other casualty, Lessor may, at its sole option, terminate this Lease or repair the Premises within sixty (60) days, with the exception of Lessee improvements, alterations, or trade fixtures, the restoration of which shall be Lessee's sole obligation and expense. If Lessor does not repair the Premises within said time, or the building on the Premises shall have been wholly destroyed, the term hereby created by the Lease shall cease and terminate. 6 15. Compliance 15.1 Lessee, its officers, agents, servants, employees, contractors, licensees, and any other person over which Lessee has the right to exercise control shall comply with all present and future laws, ordinances,orders,directives,codes,rules, regulations, and directives of, or imposed by, the federal, state, and local governmental agencies, including those of Lessor, relating to the occupation, possession, operation, use, management, improvement, construction, alteration, repair, maintenance, or control of the Premises, or to the improvements or the facilities or equipment therein, including, but not limited to, any applicable requirements regarding prevailing wages,minimum wages,workplace safety, and legal status of employees. 15.2 Lessee shall pay on or before their respective due dates, to the appropriate collecting authority, all federal, state, and local taxes and fees, including all real estate taxes, special assessments and leasehold taxes, which are now or may hereafter be levied, charged and or assessed upon the Premises, the improvements and/or the leasehold of the Premises, or upon Lessee, or upon Lessee's business conducted at the Premises, or upon Lessee's interest hereunder, or upon any of Lessee's property used in connection therewith, including possessory interest as and when such be applicable to Lessee. Lessee agrees to protect and hold harmless Lessor and the Premises and any and all improvements located therein or thereon and any and all facilities and fixtures appurtenant thereto and any and all other property located therein or thereon and any and all of Lessee's interest in or to said Premises, improvements, appurtenant facilities, fixtures or other property, from any and all such taxes and assessments, including any and all interest, penalties and other expenses which may be imposed thereby or result therefrom, and from any lien therefore or sale or other proceedings to enforce payment thereof. Nothing in this paragraph shall be deemed to limit any of Lessee's rights to appeal any such levies or assessments in accordance with the rules, regulations, laws, statutes, or ordinances governing the appeal process of the taxing authority making such levies or assessments. 15.3 Lessee agrees to pay, and hereby guarantees payment of all lawful fines and penalties as may be assessed by the City, Federal, State or local agencies or against Lessor for violations of federal, state or local laws, ordinances, ruling or regulations, or City rules and regulations by Lessee or its officers, agents, servants, employees, contractors, licensees, or any other person over which Lessee has the right to exercise control within the earlier of delinquency or thirty(30)calendar days of written notice of such fines or penalties. 15.4 Lessee shall obtain, pay for, and continuously maintain current all licenses and permits necessary or required by all applicable Federal, State, county or local laws, regulations, rules, ordinances, codes, standards, orders, licenses or permits for the conduct of the permitted activities hereunder. Lessee shall ensure that any such required items are displayed prominently and/or in conformance with applicable guidelines. 15.5 If applicable, Lessee shall provide Lessor with a copy of any health inspection report within twenty-four (24) hours after Lessee receives such report. If a health inspection does not result in a report, Lessee shall submit a written summary of the nature and fmdings of such inspection as they were communicated to Lessee. Lessee shall also provide Lessor with any 7 required corrective actions and timeframes for each corrective action to be continuously implemented. 16.Default of Lessee 16.1 Definition of Event of Default. In addition to all other remedies otherwise available to Lessor at law or in equity, Lessor may immediately terminate this Lease or may, without terminating this Lease, take immediate possession of the Premises by giving written notice of its intent to do so to Lessee, upon the occurrence of any one or more of the following events, any of which shall be deemed an event of default: (i)Lessee's failure to make payment of rent or other charges as provided in this Lease; (ii) Lessee's failure to perform any of the covenants, terms, conditions, or provisions of this Lease; (iii) if a petition is filed by or against Lessee for relief under the bankruptcy laws, or Lessee shall make an assignment for the benefit of creditors, or if a receiver of any property of the Lessee be appointed in any action, suit, or proceeding by or against Lessee, or if Lessee shall admit that it is insolvent, or it is generally not paying its debts as such debts become due, or if the interest of Lessee in the premises shall be sold under execution or other legal process, or if Lessee shall abandon the premises; (iv) Lessee vacates, abandons, or discontinues its operation of the business herein authorized from the Premises for a period of three (3) calendar days without prior written consent of Lessor; (v) this Lease or the Premises or any part of the Premises are taken upon execution or by other process of law directed against Lessee, or are taken upon or subject to any attachment at the instance of any creditor or claimant against Lessee, and the attachment is not discharged or disposed of within fifteen(15)days after its levy; (vi) Lessee is dissolved; (vii) any lien is filed against the Premises arising by or through Lessee or because of any act or omission of Lessee. Upon the occurrence of an event of default, Lessor shall have the right to terminate the Lease and shall be entitled to possession of the Premises. Lessor may make its election to terminate known to Lessee by delivery of a notice of termination. Such termination shall be immediately effective and Lessor shall be entitled to forthwith commence an action in summary proceedings to recover possession of the Premises, but such termination shall not terminate Lessee's liabilities hereunder. Lessee waives all notice in connection with such termination, including by way of illustration, but not limitation, notice of intent to terminate, demand for possession or payment, and notice of re- entry. 16.2 Acceptance by Lessor of any rentals or other payments specified in this Lease, after a breach, material breach, default under, neglect or failure to perform or observe any of the terms of this Lease shall not be deemed a waiver of any right on the part of Lessor to terminate this Lease on account thereof. No receipt of money by the Lessor from the Lessee after the termination of this Lease shall reinstate, continue, or extend the term, nor affect or waive any notice given by the Lessor to the Lessee prior to such receipt of money. 16.3 Right to Re-Enter. If the event of default is for the nonpayment of rent, Lessor may,as an alternative to terminating the Lease, serve a notice for possession or payment. Unless the rent, additional rent, and any other amounts due under this Lease are paid in accordance with the demand for possession or payment, Lessor shall be entitled to possession of the Premises and Lessee shall have no further right to possession under the Lease, but Lessee shall not be relieved of any of its liability hereunder. Lessee shall remain liable to Lessor for the payment of all rent 8 and other charges which Lessee has agreed to pay under this Lease throughout the remainder of its term. Should Lessor elect to re-enter, as herein provided, it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Lessor in its sole discretion may deem advisable. Notwithstanding anything herein to the contrary, Lessor may, without demand or notice, re-enter and take possession of the Premises or any part of the Premises, repossess the same, expel Lessee and those claiming through or under Lessee, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution, without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of amounts payable under this Lease or as a result of any preceding breach of covenants or conditions. 16.4 Other Remedies. The Lessor's rights, remedies, and benefits provided by this Lease shall be cumulative, and shall not be exclusive of any other rights, remedies and benefits allowed by law. 16.5 Estoppel. The parties agree that they shall rely solely upon the terms of this Lease to govern their relationship. They further agree that reliance upon any representation, act, or omission outside the terms of this Lease shall be deemed unreasonable, and shall not establish any rights or obligations on the part of either party. 16.6 Independent Covenant. Notwithstanding anything to the contrary, Lessee acknowledges and agrees that its obligation to pay rent under this Lease is an independent covenant, and that such obligation to pay rent is not subject to set-off or recoupment in connection with any action for summary proceedings to recover possession of the Premises. 17.Default of Lessor If the Lessor violates or breaches any term of this Lease, and in the event the Lessor fails to within thirty (30) days after notice thereof by the Lessee to comply with the conditions of this Lease, Lessee as its sole and exclusive remedy may terminate this Lease. Notwithstanding anything to the contrary in this Lease, no action shall be commenced by the Lessee, any related persons, or entities, and/or any of their successors and/or assigns against the Lessor for monetary damages. 18. Bankruptcy or Insolvency In the event that a trustee is appointed for Lessee or by Lessee as Debtor in Possession, Lessee is liquidated or files a subsequent petition for reorganization or adjustment of debts under the Bankruptcy Code, Lessee be adjudicated a bankrupt, insolvent, or placed in receivership, or should any proceedings be instituted by or against the Lessee for bankruptcy, insolvency, receivership, agreement of composition, or assignment for the benefit of creditors, or if this Lease or the estate of the Lessee hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale or by operation of law, then, and in any of such events, 9 Lessor may, at its option, terminate this Lease and all rights of Lessee hereunder, by giving five (5) days notice of its election to so terminate to Lessee, or to any trustee, receiver, assignee, or other person in charge of or acting as custodian of the assets or property of the Lessee. Upon the giving of such Notice, this Lease and the term hereof shall end on the date fixed in such Notice, or if no such date is fixed, five (5) days following the proper dispatch of such Notice, and the Lessor shall have the right to remove all persons,goods, fixtures, and chattels from the Premises by force or otherwise, without liability for damages, and all the other rights permitted under this Lease in the event of a default. 19.Surrender of Premises. 19.1 Condition on Surrender. At the expiration or earlier termination of this Lease, Lessee shall quit and surrender up the Premises to Lessor, peaceably, quietly and broom clean and in the same condition as when tendered by Lessor, or hereinafter improved by Lessee, reasonable wear and tear and insured casualty excepted. All trade fixtures or personal property installed in the Premises by Lessee shall be removed by Lessee, provided that Lessee is not in default hereunder, and further provided that the same can be removed without damage to the Premises. At the sole option of Lessor, all fixed improvements shall, without compensation to Lessee, become the property of Lessor, free and clear of all claims to or against them by Lessee or any third person, upon surrender of the Premises by Lessee for whatever reason. Should Lessor elect not to take ownership of any fixed improvements, prior to the date of surrender, Lessee shall be solely responsible for the expense of the removal of said fixed improvements and restoring the Premises to the same condition as when originally tendered by Lessor. In the event that Lessee shall fail to remove its personal property and/or trade fixtures on or before the termination (whether by expiration of the lease term, cancellation, forfeiture, or otherwise, whichever first occurs) of this Lease, at the sole option of Lessor, (i) said personal property and trade fixtures may be stored at a public warehouse or elsewhere at Lessee's sole cost and expense; or (ii) title to such trade fixtures and personal property shall vest in Lessor, free and clear of all claims to or against them by Lessee or any third person, at no cost to Lessor, in the manner allowed by law. In such event Lessor shall not be responsible for any losses related to such personal property or trade fixtures and Lessor may sell or otherwise dispose of such items. 19.2 Holding Over. In the event Lessee shall hold over and remain in possession of the Premises after the expiration of the term of this Lease without the written consent of Lessor, such holding over shall not be deemed to operate as a renewal or extension of this Lease(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 Lease and effective at the time holdover commenced, which may be terminated at any time by Lessor or Lessee by providing written notice to the other to be effective on the first day of the month following the month in which such notice was served. 20.Access By Lessor Lessor or Lessor's agents shall have the right to enter the Premises at all reasonable times to examine the same, to show them to prospective purchasers, lessees or mortgagees, and to make such repairs, alterations, improvements,or additions as Lessor may deem necessary or desirable. 10 21. Nondiscrimination and Sexual Harassment 21.1 Lessee covenants and agrees that no person shall be unlawfully discriminated against in the use and operation of the Premises pursuant to this Lease. 21.2 Nondiscrimination. a. Lessee, for itself, its personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that (1) no person, on the grounds of race, color, or national origin shall be excluded from participation,denied the benefits of,or be otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements and the furnishing of services, no person on the grounds of race, color, creed, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. b. That in the event of breach of any of the above nondiscrimination covenants, Lessor shall have the right to terminate this Lease and re-enter and repossess said Premises, and hold the same as if said Lease had never been made or issued and no reimbursement shall be made to Lessee. C. Lessee shall furnish its accommodations and/or services and operate the Food and Beverages Operation on a fair, equal, and nondiscriminatory basis to all users thereof, and it shall charge fair, reasonable, and nondiscriminatory prices for each unit of services provided. 21.3 Sexual Harassment Policy. As a condition of this Lease, the Lessee shall have a written sexual harassment policy that includes, at a minimum,the following information: a. The illegality of sexual harassment; b. The definition of sexual harassment under state law; C. A description of sexual harassment,utilizing examples; d. The vendor's internal complaint process including penalties; e. The legal recourse, investigative and complaint process available through the Illinois Human Rights Commission; f. Directions on how to contact the department and commission; g. Protection against retaliation as provided by section 6-101 of the Human Rights Act. 11 22.Voluntary Termination of Lease Any other provision of this Lease notwithstanding, either party may terminate this Lease for any reason whatsoever upon ninety(90)days written notice to the other party. 23. Miscellaneous 23.1 Nonwaiver of Rights. No failure by Lessor to insist upon strict compliance of any obligation of Lessee under this Lease or to exercise any right, power or remedy of a breach thereof, irrespective of the length of time for which such failure continues(except in cases where this Lease expressly limits the time for exercising rights or remedies arising out of a breach), shall constitute a waiver of such breach or of Lessor's right to demand strict compliance with such term, covenant or condition or operate as a surrender of this Lease. No waiver of breach by Lessor of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by Lessee shall be construed as, or shall operate as, a waiver of any subsequent breach of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the other parties, and the consent or approval by Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be deemed a waiver of Lessor's consent or approval to or of any subsequent similar act by Lessee. No breach of a covenant, term, condition, or provision of this Lease shall be deemed to have been waived by Lessor,unless such waiver(i) is in writing signed by Lessor, (ii) identifies the breach, and (iii) expressly states that it is a waiver of the identified breach. 23.2 Observance of Lessor's Rules and Regulations. Lessee shall keep and observe such reasonable rules and regulations now or hereafter required by Lessor, which may be necessary for the proper and orderly care of the Premises. 23.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by Lessor or Lessee, or by any other parties, as creating the relationship of employer and employee, principal and agent, partners, joint venturers, or any other similar such relationship, between the parties hereto. Lessor and Lessee shall understand and agree that none of the provisions contained in this Lease, nor any acts of Lessor and Lessee, create a relationship other than the relationship of Lessee and Lessor with respect to the Premises. No manager, staff member, employee, or any other individual associated with Lessee shall be deemed or construed as an employee of Lessor. 23.4 Construction. Words of any gender used in this Lease shall be held and construed to include any other gender and words in the singular number shall be held to include the plural, unless the context otherwise requires. The captions, section numbers, and article numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease nor in any way affect this Lease. 23.5 Notice. Any notice, demand, request, consent, approval, or other instrument which may be or is required to be given under this Lease shall be sent by overnight courier or 12 United States certified mail return receipt requested, postage prepaid, and shall be addressed to the addresses and persons set forth hereunder: To Lessor: To Lessee: City Manager Elgin Area Historical Society City of Elgin 360 Park Street 150 Dexter Court Elgin, IL 60120 Elgin, IL 60120-5555 With a copy to: With a copy to: Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 23.6 Recording. Lessee shall not record this Lease without the consent of Lessor, which may be withheld for any reason whatsoever, in Lessor's absolute discretion. 23.7 Governing Law. This agreement shall be subject to and governed by the laws of the State of Illinois. Any disputes relating to this Lease or the interpretation thereof shall be resolved in accordance with the laws of Illinois. Lessee and Lessor agree that any legal or equitable action for claims, debts, or obligations arising out of or to enforce the terms of this Lease shall be brought by Lessee or Lessor in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois and that such court shall have personal jurisdiction over the parties and venue of the action shall be appropriate in such court. 23.8 Severability. The terms of this Lease shall be severable. If any provision of this Lease or the application thereof to any person or circumstances shall,to any extent, be invalid or unenforceable,the remainder of this Lease shall not be affected thereby and each provision of the Lease shall be valid and enforceable to the fullest extent permitted by law, and the remaining provisions of this Lease shall be interpreted so as to nearly as possible conform to the intent of the parties as indicated in this Lease. 23.9 No Encumbrance to Title. Lessee shall not do any act which shall in any way encumber the title of Lessor in and to the Premises or the improvements, nor shall the interest or estate of the Lessor in the Premises or the improvements be in any way subject to any claim by way of lien, mortgage, or encumbrance, whether by operation of law or by virtue of any express or implied contract by Lessee. 23.10 Waiver of Claims. Lessee hereby waives any claim against Lessor and its directors, officers, agents, or employees for loss of anticipated profits caused by any suit or proceedings directly or indirectly attacking the validity of this Lease or any part thereof, or by any judgment or award in any suit or proceeding declaring this Lease null, void or voidable, or delaying the same or any part thereof from being carried out. 13 23.11 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. 23.12 Non-liability of Agents or Employ. No director, officer, agent, or employee of Lessor shall be charged personally or held contractually liable by or to the other party under the provisions of this Lease or because of any breach thereof or because of its or their execution or attempted execution. 23.13 Joint and Collective Work Product. This Lease is and shall be deemed and construed to be a joint and collective work product of the Lessee and the Lessor,and as such, this Lease shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 24. Disclaimers AS IS CONDITION. Lessor has made no warranty, express, implied or with regard to suitability for a particular purpose of the Premises nor any fixture nor equipment subject to this Lease. Environmental Hazards. Lessor expressly disclaims any warranty regarding the presence or absence of any environmental hazard on, upon, beneath or within the Premises to include the presence of asbestos or other material. Lessee will not keep or use or permit to be kept or used in or on the premises or any place contiguous thereto any flammable fluids,hazardous substances, explosives,or space heaters. For purposes of this Lease, (a) "hazardous substances" are those substances defined as toxic or hazardous substances,pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Premises is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal action, as defined in Environmental Law; and (d) an "Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Lessee shall not cause or permit the presence, use, disposal, storage, or release of any hazardous substances, or threaten to release any hazardous substances, on or in the Premises or the Home. Lessee shall not do, nor allow anyone else to do, anything affecting the Premises or the Home(a) that is in violation of any Environmental Law, (b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a hazardous substance, creates a condition that adversely affects the value of the Premises or the Home. 14 Lessee shall promptly give Lessor written notice of(a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Premises and any hazardous substance or Environmental Law of which Lessee has actual knowledge, (b) any Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any hazardous substance, and (c) any condition caused by the presence, use or release of a hazardous substance which adversely affects the value of the Premises or the Home. If Lessee learns, or is notified by any governmental or regulatory authority, or any private party, that any removal or other remediation of any hazardous substance affecting the Premises or the Home is necessary, Lessee shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing herein shall create any obligation on Lessor for an Environmental Cleanup. 25. Entire Agreement This Lease and the Exhibits attached hereto and forming a part hereof, set forth all the covenants, promises, agreements,conditions, and understandings between Lessor and Lessee concerning the Premises, that there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than are herein set forth, and that no claim or liability shall arise for any representations or promises not expressly stated in this Lease. No alteration, amendment, change, or addition to this Lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by the party to be charged. SIGNATURE PAGE FOLLOWS 15 IN WITNESS WHEREOF, Lessor and Lessee have signed this Lease as of the day and year first written above. LESSOR: LESSEE: CITY OF ELGIN, ELGIN AREA HISTORICAL SOCIETY an Illinois municipal corporation By: By: City Manager li r3e t s'ce, Its: r/a-Z4 Sy2��z Attest: 01 4iClerk 16