17-57 Resolution No. 17-57
RESOLUTION
AUTHORIZING EXECUTION OF LICENSE AGREEMENT
WITH COOK'S ICE CREAM, LLC FOR
THE OPERATION OF A SEASONAL ICE CREAM CART
AND CONCESSION STAND AT FESTIVAL PARK
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 an License Agreement on behalf of the City of Elgin with
Cook's Ice Cream, LLC for the operation of a seasonal ice cream cart and concession stand at
Festival Park, 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, 2017
Adopted: April 26, 2017
Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
LICENSE AGREEMENT
THIS AGREEMENT is hereby made and entered into this 26th day of Avyi 19 2017,
by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the
"City") and Cook's Ice Cream, LLC, an Illinois limited liability company (hereinafter referred to
as the "Licensee").
WHEREAS, the City owns, operates and maintains a public park and open space
commonly known as Festival Park, located at 132 South Grove Avenue, Elgin, Illinois; and
WHEREAS, the Licensee has proposed to conduct an enterprise in Festival Park whereby
the Licensee would be permitted to operate a seasonal ice cream cart and concession stand business
for the sale of ice cream, beverages, and prepackaged convenience food items to the public from
a tent to be located on the northwest side of Festival Park, as further described herein (hereinafter
referred to as the"Subject Services"); and
WHEREAS, the City has determined that the Subject Services will attract additional
interest in Festival Park, and the downtown area, assist in promoting further redevelopment in the
City, and provide additional amenities to the public; and
WHEREAS, the City is a home rule municipality as defined in Article VII, Section 6A of
the 1970 Constitution of the State of Illinois; and
WHEREAS,as a home rule unit the City may exercise any power and perform any function
pertaining to its government and affairs; and
WHEREAS,permitting the Subject Services in Festival Park and promoting further interest
in the redevelopment of the City's downtown area pertains to the government and affairs of the
City; and
WHEREAS,City has determined it to be in its best interests to permit Licensee to offer for
sale the Subject Services, in accordance with and pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this
Agreement in their entirety.
2. Grant of License. The City hereby grants to Licensee a temporary and non-exclusive
personal privilege and permission to enter upon Festival Park for the following purposes,
and for no other purposes (hereinafter referred to as the "License"):
A. Operation of a seasonal ice cream cart and concession stand business for the sale of
ice cream, beverages, and prepackaged convenience food items.
The portion of Festival Park from which Licensee shall be permitted to offer the Subject
Services shall be limited to that area of Festival Park depicted on Exhibit A, which is
attached hereto and incorporated into this Agreement by this reference(hereinafter referred
to as the "Subject Property"). The Licensee's provision of the Subject Services shall be
subject to the terms, conditions and limitations of this Agreement,including but not limited
to the limitations set forth in paragraph 7, herein. The License herein granted shall be
subject to all existing utility easements, if any, located within Festival Park, or any other
easements, conditions, covenants or restrictions of record.
3. Term. This Agreement and the License granted to Licensee hereunder shall commence as
of the date of this Agreement and shall continue until December 31, 2017, or until
otherwise terminated in accordance with the terms of this Agreement. Licensee shall have
the option to request the extension of the term of this Agreement for additional one-year
terms,from January 1 through December 31 of subsequent calendar years,subject however
to the written approval and confirmation of such a one-year extension by the city manager
of the City, in his or her sole discretion. To exercise such option for a subsequent calendar
year, Licensee must provide written notice thereof to the City prior to December 1 of the
preceding calendar year.
4. Consideration. The consideration to be paid by Licensee to the City for the privilege
granted by this Agreement shall be Ten Dollars ($10.00), the receipt of which is hereby
acknowledged by the City.
5. No Interest in Land. Licensee understands, acknowledges and agrees that this Agreement
does not create an interest or estate in Licensee's favor in Festival Park or the Subject
Property. The City retains legal possession of the full boundaries of its property and this
Agreement merely grants to Licensee the personal privilege to use the Subject Property
described above throughout the term of this Agreement.
6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by
Licensee on or within Festival Park or the Subject Property, this Agreement shall in no
event be construed to create an assignment coupled with an interest or any vested rights in
favor of Licensee. Licensee shall expend any time, money or labor on or in the Subject
Property at Licensee's own risk and peril.
7. Limited Scope of License. The License granted to Licensee is limited in scope to providing
the Subject Services from the Subject Property, and only in accordance with the terms and
conditions of this Agreement and the exhibits hereto. Licensee shall not have the right to
expand the Subject Property or to alter or change the Subject Services without the City's
prior written consent.
Licensee's operation of its ice cream and concession stand business shall be conducted
pursuant to and in accordance with the following terms, conditions and limitations:
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A. The products that Licensee is permitted to sell shall be limited to ice cream,
beverages, and pre-packaged convenience food items.
B. Licensee shall be permitted to erect a ten-foot by ten-foot (10' x 10') tent in the
area depicted in Exhibit A, to be utilized as the site of the Subject Services. Such
tent shall be removed at the end of each day. The business shall only be conducted
from the area depicted in Exhibit A.
C. The permitted hours of operation for the Subject Services shall be from dusk to
dawn, seven (7) days a week.
D. The Licensee shall be permitted to conduct the Subject Services only from May 1
to November 30 of a calendar year.
E. Licensee shall not be permitted to erect or display any signs relating to the Subject
Services other than any signage affixed to the tent to be located in the area depicted
in Exhibit A.
F. Licensee and its employees shall not unreasonably disturb members of the public
utilizing Festival Park or interfere with any program or event that has been
scheduled or is being conducted in Festival Park. If the City determines that the
provision of the Subject Services is interfering, or will interfere, with an approved
program or event at Festival Park,the City shall have the right,in its sole discretion,
to order that the Licensee cease to provide the Subject Services for such time period
as the City determines the Subject Services will interfere with the program or event.
8. Non-Transferability of License. The License granted to Licensee by this Agreement is a
mere personal privilege granted by the City to Licensee, and is neither transferable nor
assignable by Licensee without the City's prior written consent.
9. Termination. This Agreement and the License herein granted to Licensee may be
terminated by either party for any reason or no reason upon giving ten (10) days written
notice to the Licensee. In addition, this Agreement may be immediately terminated by the
City upon a breach of any term or condition of this Agreement.
In the event of termination of this Agreement for any reason whatsoever, Licensee shall
not be entitled to any compensation or reimbursement for any costs or expenses incurred
in any way relating to this Agreement or arising from the Licensee's provision of the
Subject Services, nor any monetary damages of any kind whatsoever.
10. Alterations or Additions. No permanent fixtures shall be permitted at Festival Park or on
the Subject Property. Licensee shall not make any alterations in or additions to Festival
Park or the Subject Property without the written consent of the City. All equipment,
supplies, materials or appurtenances relating to the provision of the Subject Services shall
be removed from the Subject Property at the end of each business day. Any other provision
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of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at
its sole cost and expense, any such equipment, supplies, materials or appurtenances in the
event that the City determines that any such encroachments interfere with pedestrian or
vehicular traffic, public utilities, or constitute a safety hazard, or in the event that the City
determines that such removal is necessary or convenient for the installation, repair or
replacement of any utilities or other public improvements in Festival Park or the Subject
Property. If the Licensee fails to exercise its duties under this paragraph, the City shall
have the right to remove such equipment, supplies,materials or appurtenances,the full and
complete cost of which shall be borne by Licensee. Licensee covenants and agrees to
reimburse the City its full cost and expense for any such removal.
11. Insurance.
A. Comprehensive Liability. Licensee shall provide, pay for and maintain in effect,
during the term of this Agreement, a policy of comprehensive general liability
insurance with limits of at least $1,000,000 per occurrence limit for bodily injury
and $1,000,000 per occurrence limit for property damage.
Licensee shall name the City as co-insured or as an additional insured and shall
furnish the City with duplicate policies or Certificates of Insurance evidencing
insurance in force as required. Evidence of payment of premiums shall also be
delivered to the City. Such policy or policies shall provide that the coverage
afforded thereunder shall not be canceled,terminated or materially changed without
thirty(30) days prior written notice to the City.
The Certificate of Insurance shall include, but not be limited to, coverage for
contractual obligation assumed by the Licensee under paragraph 14 entitled
"Indemnification"herein.
This insurance shall apply as primary insurance with respect to any other insurance
or self-insurance programs afforded to the City. There shall be no endorsement or
modification of this insurance to make it excess over other available insurance;
alternatively, if the insurance states that it is excess or prorated,it shall be endorsed
to be primary with respect to the City.
B. Comprehensive Automobile Liability. Comprehensive Automobile Liability
Insurance covering all owned, non-owned and hired motor vehicles with limits of
not less than$500,000 per occurrence for damage to persons or property.
C. Combined Single Limit Policy. The requirements for insurance coverage for the
general liability and auto exposures may be met with a combined single limit of
$1,000,000 per occurrence subject to a $1,000,000 aggregate.
D. Worker's Compensation. The Licensee shall also provide, pay for and maintain
in effect during the term of this Agreement worker's compensation insurance in
amounts required under the laws of the State of Illinois.
E. Evidence of payment of all insurance premiums for the insurance required under
this Agreement shall be delivered to the City prior to the commencement of
Licensee's operations under this Agreement.
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12. Maintenance. Licensee agrees that the Subject Property shall be maintained at all times in
a safe, neat, sightly and good physical condition and in accordance with all requirements
of the Elgin Municipal Code, 1976, as amended, during Licensee's use of the Subject
Property.
13. Licenses and Permits. Licensee shall adhere to and comply with all ordinances,laws,rules
and regulations that may pertain to or apply to the Subject Property and the Licensee's
provision of the Subject Services. Licensee agrees and warrants that it has procured or
shall procure any licenses, permits or like permission required by law, if any, to conduct
or engage in the use of the Subject Property for the Subject Services described herein,that
Licensee will procure all additional licenses, permits or like permission hereinafter
required by law during the term of this Agreement, and that Licensee will keep the same
in full force and effect during the term of this Agreement. Licensee shall perform under
this Agreement in accordance with all applicable legal requirements. This requirement
specifically includes, without limitation, the procurement of any licenses and permits
required pursuant to the applicable regulations of chapter 9.08 of the Elgin Municipal Code,
as amended, relating to food dealers as therein defined.
14. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify,
defend and save the City, its officers,agents, servants,employees,boards and commissions
harmless from and against:
a. Damage to Licensee's Property. Any and all claims, loss or damage (including
reasonable attorney's fees) to the Licensee's equipment, supplies, materials or
appurtenances or any property belonging to or rented by Licensee,its officers,servants,
agents or employees, which may be stolen, destroyed, or in any way damaged, by any
cause whatsoever.
b. Damage to Others. Any and all claims, suits,judgments, costs, attorney's fees, loss,
liability, damage or other relief, including but not limited to workers' compensation
claims, to any person or property in any way resulting from or arising out of the
existence or performance of this Agreement and/or the Licensee's provision of the
Subject Services on the Subject Property. In the event of any action against the City,
its officers, agents, servants, employees, boards or commissions covered by the
foregoing duty to indemnify, defend and hold harmless, such action shall be defended
by legal counsel of the City's choosing.
The provisions of this paragraph shall survive any termination and/or expiration of this
Agreement.
15. Damage to City Property. Licensee shall pay to City the cost of any damage to City
property or goods arising out of or in connection with Licensee's negligent performance of
this agreement upon thirty(30)days written notice of the cost of such damage by City.
16. Condition of Property. In connection with the Subject Services to be performed, the
Licensee warrants and agrees to maintain all facilities and equipment used in the
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performing of the Subject Services in a clean, sanitary and safe condition and free from
defects of every kind whatsoever. The Licensee agrees and warrants that the Licensee will
periodically inspect all of such facilities and equipment for such purposes. The Licensee
also warrants that the Licensee and the facilities and equipment used in the performing of
the Subject Services are not now,nor shall be during the term of this agreement in violation
of any health, building, fire or zoning code or regulation or other applicable requirements
of law. In connection with the Subject Services on properties owned or controlled by the
City, the Licensee agrees and warrants to use, and to cause persons participating in the
Subject Services to use,through proper supervision and control,all facilities with due care,
and to report all defects in or damage to any such facilities,and the cause thereof,if known,
immediately to the City.
17. Breach and Limitation on Damages. If Licensee violates or breaches any term of this
Agreement, such violation or breach shall be deemed to constitute a default, and the City
shall have the right to seek such administrative, contractual or legal remedies as may be
suitable for such violation or breach; and, in addition, the City may terminate this
Agreement. If the City violates or breaches any material term of this Agreement, such
violation or breach shall be deemed to constitute a default and, in the event the City fails
to within fifteen (15) days after notice thereof by Licensee comply with the conditions of
this Agreement, Licensee as its sole and exclusive remedy may terminate this Agreement.
Notwithstanding anything to the contrary in this Agreement, in no event shall the City be
liable to Licensee for monetary damages of any kind relating to or arising from any breach
of this Agreement, and no action of any kind shall be commenced by Licensee, any related
persons or entities, and/or any of its successors or assigns, against the City for monetary
damages. In the event any legal action is brought by the City for the enforcement of any
of the obligations of Licensee related to or arising from this Agreement and the City is the
prevailing party in such action, the City shall be entitled to recover from Licensee
reasonable interest and attorney's fees. The provisions of this section shall survive any
expiration, completion and/or termination of this Agreement.
18. It agreed and understood by the parties hereto that this Agreement is not intended nor shall
be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded
the City and/or District and/or their officials, officers,employees and/or agents pursuant to
the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS
10/1-101, et seq., as amended, the Recreational Use of Land and Water Areas Act, 745
ILCS 65/1, et seq., and/or otherwise provided by law, it being agreed that all the civil
immunities as set forth in such Acts,as amended,and/or as otherwise provided by law shall
fully apply to any claims asserted or which might be asserted against the City and/or its
officials, officers, employees and/or agents as a result of this Agreement or any actions of
the parties pursuant to this Agreement. Notwithstanding anything to the contrary in this
Agreement, it is agreed and understood that no third party beneficiaries are intended or
shall be construed to be created by the provisions of this Agreement and it is the intention
of the parties hereto that no action may be commenced by any person or entity against the
City and/or its officials, officers, employees, agents and/or other related persons or entities
for monetary damages for any alleged breach or failure to provide services described in
this Agreement. The provisions of this section shall survive any expiration and/or
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termination of this Agreement.
19. Audit. Licensee shall keep and maintain records of all sales relating to its provision of the
Subject Services pursuant to this Agreement. All records shall be in a form in accordance
with good accounting practice. The aforementioned records shall be made available upon
request to the City or its duly authorized representatives for inspection,copying or auditing
purposes upon reasonable notice. In addition, not later than the fifteenth day of each
calendar month, Licensee shall furnish to the City a written statement setting forth
Licensee's profit and loss from the Subject Services for the preceding calendar month,
including all of the gross revenues, cost of goods sold, labor expenses, and operating
expenses. An officer of Licensee shall certify Licensee's report.
20. Notices. Any notice required or permitted under this Agreement shall be in writing and
shall be sufficient if personally delivered or mailed by certified mail, return receipt
requested, addressed as follows:
To the City: To the Licensee:
City Manager Jennifer Cook
City of Elgin 117 South Grove
150 Dexter Court Elgin, IL 60120
Elgin, IL 60120-5555
With a copy to: With a copy to
Corporation Counsel Janet Ellington
City of Elgin 1250 Larkin Avenue, Suite 220
150 Dexter Court Elgin, IL 60123
Elgin, IL 60120-5555
Notices mailed in accordance with the provisions of this paragraph shall be deemed to have
been given on the third business day following mailing. Notices personally delivered shall
be deemed to have been given upon delivery.
21. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a
joint venture, partnership, employment, or other agency relationship between the parties
hereto. Licensee shall not hold itself out as an agent of the City.
22. No Personal Liability. No official, director, officer, agent or employee of the City shall be
charged personally or held contractually liable under any term or provision of this
Agreement, or because of their execution, approval or attempted execution of this
Agreement.
23. Joint and Collective Work Product. This Agreement is and shall be deemed and construed
to be a joint and collective work product of the City and Licensee, and as such, this
Agreement shall not be construed against any other party as the otherwise purported drafter
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of the same by any court of competent jurisdiction in order to resolve any inconsistency,
ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein.
24. Severability. The terms of this Agreement shall be severable. In the event any of the terms
or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any
reason,the remainder of this Agreement shall remain in full force and effect.
25. Governing Law. This Agreement shall be subject to and governed by the laws of the State
of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising
out of or in connection with this License agreement shall be in the Circuit Court for the
Sixteenth Judicial Circuit, Kane County, Illinois.
26. References in Agreement. All references in this Agreement to the singular shall include
the plural where applicable, and all reference to the masculine shall include the feminine
and vice versa. If either reference shall be declared invalid, such decision shall not affect
the validity of any remaining portion that shall remain in full force and effect.
27. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
28. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way
limit or define the interpretation to be placed upon this Agreement.
29. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and
their respective successors and permitted assigns.
30. Assignment. This Agreement and the obligations herein may not be assigned without the
express written consent of each of the parties hereto. The License granted herein is
personal to Licensee. Any attempt to assign this License will automatically terminate the
license privileges granted to Licensee hereunder.
31. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and
understanding between the parties and supersede any prior agreement or understanding
relating to the subject matter of this Agreement.
32. Modification. This Agreement may be changed, modified or amended only by a duly-
authorized written instrument executed by the parties hereto. Each party agrees that no
representations or warranties shall be binding upon the other party unless expressed in
writing herein or in a duly-authorized and executed amendment hereof.
33. Compliance with Laws. Notwithstanding any other provision of this Agreement, it is
expressly agreed and understood that in connection with the performance of this
Agreement and providing the Subject Services that the Licensee shall comply with all
applicable Federal, State, City and other requirements of law, including,but not limited to,
any applicable requirements regarding prevailing wages,minimum wage,workplace safety
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and legal status of employees. Without limiting the foregoing, the Licensee hereby
certifies,represents and warrants to the City that all the Licensee's employees and/or agents
who will be providing products and/or services with respect to this Agreement shall be
legal residents of the United States. The Licensee shall also at its expense secure all permits
and licenses,pay all charges and fees and give all notices necessary and incident to the due
and lawful prosecution of the work, and/or the products and/or services to be provided for
in this Agreement. The City shall have the right to audit any records in the possession or
control of the Licensee to determine The Licensee's compliance with the provisions of this
section. In the event the City proceeds with such an audit, the Licensee shall make
available to the City the Licensee's relevant records at no cost to the City.
IN WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the
day and year first above written.
CITY OF ELGIN COOK'S ICE CREAM, LLC
By: C% By:
City Manager
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Attest: Attest:
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City Clerk
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Exhibit A — lee Cream Vending Location
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