HomeMy WebLinkAboutRes 07-10 03/02/2010
RESOLUTION NO. 07-10
A RESOLUTION AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT
BETWEEN THE VILLAGE OF MOUNT PROSPECT
AND GANDERGROUP, d/b/a (THE BEANSPOUT)
11 EAST NORTHWEST HIGHWAY
WHEREAS, the Village of Mount Prospect, a home rule municipality, is the owner of a train station
building located at 11 East Northwest Highway; and
WHEREAS, the Village of Mount Prospect is desirous of entering into a Lease Agreement with
Gandergroup, d/b/a, The Beanspout, to lease approximately 500 square feet of vendor space in the
train station building, commonly known as the Mount Prospect Downtown Metra Station located at
11 East Northwest Highway; and
WHEREAS, such agreement will provide for the operation of a retail food establishment in the
Mount Prospect Downtown Metra Station that will benefit the citizens of Mount Prospect
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE
VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That the President and Board of Trustees of the Village of Mount Prospect do
hereby authorize execution of a Lease Agreement between Gandergroup, d/b/a, The Beanspout
and the Village of Mount Prospect for the purpose of permitting a retail restaurant to be located
within the Mount Prospect Downtown Metra Station located at 11 East Northwest Highway, and said
Lease shall be for a period of twelve (12) months, a copy of which is attached and made a part of
this Resolution as Exhibit "A."
SECTION TWO: This Resolution shall be in full force and effa::t from and after its passage and
approval in the manner provided by law.
AYES:
Hoefert, Korn, Matuszak, Polit, Zadel
NAYS:
None
ABSENT:
Juracek
PASSED and APPROVED this 2nd day of March, 2010
~M4r~~
IPI1~lna K. Wilks '
Mayor
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M. Li~ Angell ."
Village Clerk .
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COMMERCIAL LEASE
GanderGroup, LLC an
Illinois Corporation
(hereinafter "LESSEE")
Village of Mount Prospect, a Municipal
Corporation
(hereinafter "LESSOR")
GanderGroup, LLC
412 N. Forest Avenue
Mount Prospect, IL 60056
Village of Mount Prospect
50 S. Emerson Street
Mount Prospect, IL 60056
In consideration of the mutual covenants and agreements herein stated, Lessor h~reby
leases to Lessee and Lessee hereby leases from Lessor solely for the purpose hereinafter
provided the premises designated below (the "Premises"), together with the
appurtenances thereto, for the term stated below.
LEASE COVENANTS AND AGREEMENTS
1. PREMISES.
Lessor is the owner of a train station building consisting of approximately 500
square feet and located at 11 E. Northwest Highway, Mount Prospect, Illinois (the
"Building") commonly known as the Mount Prospect Downtown Metra Station and by
this reference incorporated herein (the "Property").
In consideration of the mutual promises, covenants and conditions herein set
forth, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor those certain
premises in the Building containing approximately 500 square feet of vendor space as
shown by cross-hatching on EXHIBIT A attached hereto and by this reference
incorporated herein (the "Premises").
2. TERM.
Term. The term of this Lease (the "Term") shall be for twelve (12) months,
commencing on the date of this Agreement.
3. RENT.
Lessee shall pay Base Rent on the first business day of each month to the Finance
Department at Village Hall, for the next month.
"Base Rent" - $550.00 per month including rent and utility expenses. The Base
Rent shall be abated for the first sixty (60) days following the commencement of this
agreement. The first Base Rent payment shall be made on June 1, 2010, following the
initial abatement period.
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No payment to or receipt by Lessor of a lesser amount than the amount required
to be paid hereunder shall be deemed to be other than on account of the earliest amount
of such obligation then due hereunder. No endorsement or statement on any check or
other communication accompanying a check for payment of any amount payable
hereunder shall be deemed an accord and satisfaction, and Lessor may accept such check
and payment without prejudice to Lessor's right to recover the balance of any sums owed
by Lessee hereunder. In the event any sums required hereunder to be paid are not
received on or before the fifth (5th) calendar date after the same are due, Lessee shall
pay, as Additional Rent, a late payment service charge equal to five percent (5%) of the
overdue amount. In addition, any amount due hereunder shall bear interest from the date
due until paid at a rate equal to twelve percent (12%) per annum.
4. FEES AND TAXES OWED TO VILLAGE.
Lessee shall make timely payment of all fees and taxes owed to the Village of
Mount Prospect, including but not limited to, food and beverage taxes, utility service
charges, sales taxes and business or other license fees, related to the operation of the
business within the vendor space. Lessee's failure to pay these fees and taxes owed to the
Village of Mount Prospect within ten (10) days of their due date shall constitute a breach
of this contract allowing Lessor to immediately commence eviction proceedings.
5. SUBLETTING; ASSIGNMENT.
The Premises shall not be sublet in whole or in part. Lessee shall not assign this
Lease without, in each case, the consent in writing of Lessor. Consent to assign or sublet
shall not be unreasonably withheld to a similar or like use as approved by the Village nor
permit any act or default of himself or any person within his control or Lessee shall not
transfer by operation of law any of Lessee's interest. Lessee may not offer for lease or
sublease the Premises by placing notices or signs of "To Let," or any other similar sign or
notice in any place, nor by advertising the same in any newspaper or place or manner
whatsoever without, in each case, the consent in writing of Lessor. If Lessee, or anyone
or more of the Lessees, if there be more than one, shall make an assignment for the
benefit of creditors, or shall be adjudged a bankrupt, Lessor may terminate this Lease,
and in such event Lessee shall at once pay Lessor a sum of money equal to the entire
amount of rent reserved by this Lease for the then unexpired portion of the term hereby
created, as liquidated damages.
6. LESSEE NOT TO MISUSE.
Lessee will not permit any unlawful or immoral practice, with or without his
knowledge or consent, to be committed or carried on in the Premises by himself or by
any other person. Lessee will not allow the Premises to be used for any purpose that will
increase the rate of insurance thereon, nor for any purpose other than that herein
specified. Lessee will not keep or use or permit to be kept or used in or on the Premises
or any place contiguous thereto any hazardous materials (as defined in all federal, state
and local environmental laws, rules and regulations), flammable fluids or explosives,
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without the written permission of Lessor first had and obtained. Lessee will not load
floors beyond the floor load rating prescribed by applicable municipal ordinances. Lessee
will not use or allow the use of the Premises for any purpose whatsoever that will injure
the reputation of the Premises or of the Building of which they are a part. Lessee shall
not cause or permit any waste, misuse or neglect of the water, or of the water, gas or
electric fixtures.
Lessee acknowledges that the facility will be utilized as both a commercial and
public commuter rail station, the Lessee understands that Metra will house a ticket
operating office within the same overall building, this office will have a dedicated
entrance and will fall under the control and operation of Metra. The Lessee understands
that the Village of Mount Prospect, Metra and Lessee will need to coordinate activities
and work in conjunction on this venture with specific activities and requests not
unreasonably withheld. Lessee acknowledges and agrees that the public and commercial
usage will require the facility to be free of offensive music, language, signage and
activities.
7. CONDITION ON POSSESSION.
Lessee has examined and knows the condition of the Premises and has received
the same in good order and repair, and acknowledges that no representations as to the
condition and repair thereof, and no agreements or promises to decorate, alter, repair or
improve the Premises, have been made by Lessor or his agent prior to or at the execution
of this Lease that are not herein expressed. Lessee shall obtain any necessary permits
prior to possession of the property from Lessor. The fire department and building
department will be responsible for determining the maximum number of persons the
facility can occupy and this number shall be posted and received prior to any occupancy
permit being issued.
8. REPAIRS, MAINTENANCE AND ALTERATIONS.
8.1 At Lessee's sole cost and expense Lessee shall keep the Premises,
appurtenances thereto, and the areas to which Lessee has direct access in a clean, sightly
and healthy condition, and in good repair, all according to the statutes and ordinances in
such cases made and provided, and the directions of public officers thereunto duly
authorized, all at his own expense, and shall yield the same back to Lessor upon the
termination of this Lease, whether such termination shall occur by expiration of the term,
or in any other manner whatsoever, in the same condition of cleanliness, repair and
sightliness as at the date of the execution hereof, loss by fire and reasonable wear and tear
excepted. Lessee's obligations hereunder shall include maintaining all plumbing, HV AC,
electrical and lighting facilities and equipment within the Premises, the store front, doors,
and plate glass of the Premises. Lessee agrees to provide all custodial services, daily
cleanup, and maintenance of the public (Common Areas) portion of the Building such as
sweeping, floor and window washing, debris cleanup, and general cleaning of vendor
space storage and toilet areas, and shall provide all labor, supervision, insurance,
equipment and cleaning materials necessary to provide general cleaning and maintenance
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of the Building and outdoor dining areas; provided, however, Lessor shall once a week
perform a thorough cleaning of the entire train station, including all floors, windows,
bathrooms, etc. Notwithstanding any provision to the contrary, Lessee's obligations
under this Section shall not include making any repair or improvement necessitated by
the negligence or willful misconduct of Lessor, its officers, agents, employees or assigns,
or which result from construction defects caused by Lessor's building contractor and any
subcontractors. Lessor shall pay for and make all maintenance, repairs and/or
replacements for the upkeep of the roof, roof membrane and roof systems (gutters,
downspouts and the like) foundation, exterior walls, interior structural walls, and all
structural components of the Building, but such obligation shall not include making any
repair or improvement necessitated or caused by the negligence or willful misconduct of
Lessee, its officers, agents and assigns. Lessor shall also repair or replace if necessary,
and maintain all parking areas, sidewalks, landscaping and drainage systems on the
Property and all utility systems (including mechanical, electrical and HV AC systems) and
plumbing systems which serve the Building as a whole and not the Lessee's Premises.
Lessor shall snow plow all parking lot areas with Metra responsible for the platform
structures. Lessee shall make all necessary repairs and renewals upon Premises and
replace broken globes, glass and fixtures with material of the same size and quality as
that broken and shall insure all glass in windows and doors of the Premises at his own
expense. Lessee shall repair and or replace any furniture or equipment that is damaged
during the lease term. If, however, the Premises shall not thus be kept in good repair and
in a clean, sightly and healthy condition by Lessee, as aforesaid, Lessor may enter the
same, himself or by his agents, servants or employees, without such entering causing or
constituting a termination of this Lease or an interference with the possession of the
Premises by Lessee, and Lessor may replace the same in the same condition of repair,
sightliness, healthiness and cleanliness as existed at the date of execution hereof, and
Lessee agrees to pay Lessor, in addition to the rent hereby reserved, the expenses of
Lessor in thus replacing the Premises in that condition.
8.2 Lessor's Rights. If Lessee fails to perform Lessee's obligations under
this Section, Lessor may, but shall not be required to, enter upon the Premises, after five
(5) days prior written notice to Lessee, and put the same in good order, condition and
repair, and the reasonable costs thereof shall become due and payable as additional rent
to Lessor together with Lessee's next Base Rent installment falling due after Lessee's
receipt of an invoice for such costs. This reimbursement obligation of Lessee shall
survive the termination or expiration of this Lease.
9. ACCESS TO PREMISES AND COMMON AREAS.
Lessee shall allow Lessor or any person authorized by Lessor free access to the
Premises for the purpose of examining or exhibiting the same, or to make any repairs or
alterations thereof which Lessor may see fit to make. Lessee shall have the right to use
any and all appurtenances and easements benefitting the Premises and the Building, along
with the sufficient Common Areas and parking to support its intended use of the
Premises. In addition to the foregoing, Lessee shall have the right to access to such
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portions of the Building outside the Premises as are necessary to enable Lessee to
exercise its rights under this Lease.
Lessor shall have the following rights, exercisable without notice and without
liability to Lessee for damage or injury to property, person or business and without
effecting an eviction or disturbance of Lessee's use or possession or giving rise to any
claims for setups or abatement of rent, except as set forth herein: to establish or change
the name, designation or street address of the Property; to install and maintain signs on
any part of the Property outside the Premises; to enter the Premises in an emergency,
using such force as is reasonably necessary; to make such inspections and required
repairs of the Premises as are reasonably necessary; and to make repairs, additions or
alterations to the common areas of the Property; to do or permit to be done any work on
or about the exterior of the Property.
10. USE.
10.1 Use. Lessee may use and occupy the Premises for any lawful retail or
restaurant use; provided, however, that any proposed change in use must be reviewed and
approved and not be unreasonably withheld by the Village of Mount Prospect and Metra.
Lessor will provide Lessee with a key for twenty-four hour access to the public
washrooms in the building.
10.2 Compliance with Law. During the Term, Lessee, at its expense, shall
comply promptly with all laws, rules, and regulations made by any government authority
having jurisdiction over Lessee's use of the Premises pertaining to (a) the physical
condition of any improvements in the Premises; and (b) Lessee's specific business
operations in the Premises.
10.3 Operations. Lessee shall operate Monday through Friday from 5:00
a.m. to 7:00 p.m., and Saturdays and Sundays from 7:00 a.m. to 10:00 a.m. It is agreed
by the parties that in the event that business warrants it, as determined by Lessor and
Lessee in their reasonable judgment, these hours can be modified. It is expressly
understood and agreed that Lessee makes no representations or warranties, oral or
written, as to the level of gross sales it may generate from the Premises or the number of
customers that it will bring to the Building. In the event that Lessee ceases operating its
business in the Premises for a period of not less than twenty (20) consecutive days,
subject to force majeure, casualty, condemnation and remodeling, Lessor shall have the
right to terminate this Lease upon not less than thirty (30) days prior written notice to
Lessee unless Lessee, within such thirty (30) day period, again resumes doing business in
the Premises. Lessee's right to negate Lessor's termination by reopening shall be a one-
time right only.
10.4 Outdoor Seating. If such seating is permitted by the local authorities,
Lessee may provide outdoor seating for its customers on property owned by Lessor
adjacent to the Premises (the dimensions and location of such area shall be agreed upon
by Lessor and Lessee) at any time during the Term of this Lease at no additional cost to
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the Lessee. Lessee, at its cost, shall comply with all relevant state, municipal or local
laws, regulations, rules or ordinances with respect to outdoor seating, and obtain all
necessary permits or licenses for the same. Lessee shall maintain the outdoor seating
area in a clean and neat fashion, with the Lessee responsible for security of materials
during normal usage time and season. Lessor shall store all outdoor seating area furniture
for those portions of the year when such outdoor seating area is not being used because of
weather or other conditions.
10.5 Trash Removal. Lessor shall provide a lawful location on the Property,
enclosed if required by code or Lessor and convenient to the Premises, for a three or four
cubic yard trash container and recycling bins for trash disposal and recycling to be
installed by Lessee at its expense and to be exclusively for Lessee's use; or, if Lessee is
sharing a trash dumpster supplied by Lessor, Lessee will pay its share of the costs of such
dumpster based on the square footage of Lessee's store compared to the total square
footage of all tenants sharing the trash dumpster.
10.6 Special Events. Lessee shall obtain written authorization for special
events held inside or outside of the facility, including parties, music, concerts, readings,
or other events not deemed standard as part of their normal operations, and authorization
for these special events will not be unreasonably withheld.
10.7 Smoking Restrictions. Lessee acknowledges that this facility is both a
commercial and public venue and as such will exist as a non-smoking environment.
11. NON-LIABILITY OF LESSOR.
Except as provided by Illinois statute, Lessor shall not be liable to Lessee for any
damage or injury to him or his property occasioned by the failure of Lessor to keep the
Premises in repair, and shall not be liable for any injury done or occasioned by snow,
wind, excessive heat or cold, broken glass, sprinkling, heating, ventilating or air
conditioning systems, devices or equipment, flooding, or by or from any defect of
plumbing, electric wiring or of insulation thereof, gas pipes, water pipes or steam pipes,
or from broken stairs, porches, railings or walks, or from the backing up of any sewer
pipe or down-spout, or from the bursting, leaking or running of any tank, tub, washstand,
water closet or waste pipe, drain, or any other pipe or tank in, upon or about the Premises
or the building of which they are a part nor from the escape of steam or hot water from
any radiator, it being agreed that said radiators are under the control of Lessee, nor for
any such damage or injury occasioned by water, snow or ice being upon or coming
through the roof, skylight, trap-door, stairs, walks or any other place upon or near the
Premises, or otherwise, nor for any such damage or injury done or occasioned by the
falling of any fixture, plaster or stucco, nor for any damage or injury arising from any act,
omission or negligence of co-tenants or of other persons, occupants of the same building
or of adjoining or contiguous buildings or of owners of adjacent or contiguous property,
or of Lessor's agents or Lessor himself, all claims for any such damage or injury being
hereby expressly waived by Lessee.
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12. RESTRICTIONS (SIGNS, AL TERA TIONS, FIXTURES).
Lessee shall not attach, affix or exhibit or permit to be attached, affixed or
exhibited, except by Lessor or his agent, any articles of permanent character or any sign,
attached or detached, with any writing or printing thereon, to any window, floor, ceiling,
door or wall in any place in or about the Premises, or upon any of the appurtenances
thereto, without in each case the written consent of Lessor first had and obtained; and
shall not commit or suffer any waste in or about said premises; and shall make no
changes or alterations in the Premises by the erection of partitions or the papering of
walls, or otherwise, without the consent in writing of Lessor; and in case Lessee shall
affix additional locks or bolts on any doors or windows, or shall place in the Premises
lighting fixtures or any fixtures of any kind, without the consent of Lessor first had and
obtained, such locks, bolts and fixtures shall remain for the benefit of Lessor, and without
expense of removal or maintenance to Lessor. Exterior signage will be permissible under
the Village of Mount Prospect HI Ordinance under the conditions that the proper
permitting and designs meet the guidelines of the Historic Preservation and Main Street
Commissions, as well as the overall guidelines of the HI signage requirements. The
exterior signage is the responsibility of the Lessee and such permitting with not be
unreasonably withheld. Lessor shall have the privilege of retaining the same if Lessor
desires. If Lessor does not desire to retain the same, Lessor may remove and store the
same, and Lessee agrees to pay the expense of removal and storage thereof. The
provisions of this paragraph shall not however apply to Lessee's trade fixtures, equipment
and movable furniture. Lessee shall keep the general customer area free for the general
movement and access flow for commuters and customers as well as keep the immediate
area around the Metra sales area clean and accessible. Items such as sound systems, audio
and visual equipment are the responsibility of Lessee and installed at its expense.
13. HEAT.
Lessor does not warrant that heating service will be free from interruptions caused
by strike, accident or other cause beyond the reasonable control of Lessor, or by renewal
or repair of the heating apparatus in the building. Any such interruption shall not be
deemed an eviction or disturbance of Lessee's use and possession of Premises, nor render
Lessor liable to Lessee in damages. All claims against Lessor for injury or damage
arising from failure to furnish heat are hereby expressly waived by Lessee.
14. FIRE AND CASUALTY.
In case the Premises shall be rendered untenantable by fire, explosion or other
casualty, Lessor may, at its option, terminate this Lease or repair the Premises within one
hundred and eighty (180) days. If Lessor does not repair the Premises within said time, or
the building containing the Premises shall have been wholly destroyed, the term hereby
created shall cease and terminate.
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15. TERMINATION; HOLDING OVER.
At the termination of the term of this Lease, by lapse of time or otherwise, Lessee
will yield up immediate possession of the Premises to Lessor, in good condition and
repair, loss by fire and ordinary wear excepted, and will return the keys therefor to Lessor
at the place of payment of rent. If Lessee retains possession of the Premises or any part
thereof after the termination of the term by lapse of time or otherwise, then Lessor may at
its option within seven (7) days after termination of the term serve written notice upon
Lessee that such holding over constitutes either (a) renewal of this Lease for one year,
and from year to year thereafter, at double the rental (computed on an annual basis)
specified in Section 3, or (b) creation of a week to week tenancy, upon the terms of this
Lease except at double the monthly rental specified in Section 3, or (c) creation of a
tenancy at sufferance, at a rental of fifty dollars per day, for the time Lessee remains in
possession. If no such written notice is served then a tenancy at sufferance with rental as
stated at (c) shall have been created. Lessee shall also pay to Lessor all damages
sustained by Lessor resulting from retention of possession by Lessee. The provisions of
this paragraph shall not constitute a waiver by Lessor of any right of re-entry as
hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmance
of tenancy operate as a waiver of the right to terminate this Lease for a breach of any of
the covenants herein.
16. PROPERTY TAXES.
16.1 Definition of "Real Property Taxes." For purposes of this Lease, the
phrase "Real Property Taxes" shall include general real estate taxes and assessments
payable with respect to the Property which are imposed by any authority having the
power to tax any legal or equitable interest of Lessor or Lessee in the Property or the
Premises, specifically including any tax on the leasehold interest created under this
Lease; provided, however, that assessments shall be prorated and divided into the
maximum number of installments permitted by law and only the current portion shall be
included in Real Property Taxes for any Lease Year. Notwithstanding the foregoing,
Real Property Taxes shall not include (a) any inheritance, estate, succession, transfer,
gift, franchise, or capital stock tax; (b) any income taxes arising out of or related to
ownership and operation of income-producing real estate; (c) any excise taxes imposed
upon Lessor based upon gross or net rentals or other income received by it; or (d)
assessments liened against the Property prior to the Commencement Date.
16.2 Payment of Real Property Taxes. For each Lease Year, if the Premises
(leasehold interest) are not assessed as a separate tax parcel then Lessee shall pay the
Real Property Taxes. If the Premises are assessed as a separate tax parcel, for each Lease
Year Lessor shall provide Lessee with a copy of the tax statement and Lessee shall pay
the Real Property Taxes for the Premises directly to the taxing authority prior to
delinquency. Lessee shall pay Real Property Taxes only as such taxes become due and
payable during the Term (as defined in Section 2.1), prorated for the first and last years of
the Term. Lessee shall not pay more than $3,500 annually in Real Property Taxes for the
Premises.
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16.3 Personal Property Taxes. Lessee shall pay, prior to delinquency, all
personal property taxes assessed against Lessee directly and applicable to its personal
property located in the Premises.
17. INSURANCE; INDEMNITY.
17.1 Lessee's Insurance. During the Term of this Lease, Lessee shall obtain
and keep in full force and effect, the following insurance which may be provided under
blanket insurance policies covering other properties as well as the Premises and shall be
maintained with an insurance carrier having at least an "A" rating as defined in A.M.
Best's Key Rating guide. Upon Lessor's request, Lessee will provide Lessor with a
certificate(s) evidencing such insurance and a receipt indicating up-to-date payment of all
premIUms.
17.1.1 Liability Insurance. Personal injury, bodily injury and property damage
insurance (to include without limitation contractual liability insurance covering Lessee's
indemnity obligations under Section 17.4) naming Lessor, as well as Metra, as additional
insureds as their interest may appear from time to time, against liability arising out of
Lessee's use, occupancy, or maintenance of the Premises and Lessee's outdoor seating
area (if any). Such insurance shall include an "each occurrence" limit of not less than
One Million Dollars ($1,000,000.00) and a general aggregate limit of not less than One
Million Dollars ($1,000,000.00). Lessee's insurance shall be primary with respect to any
claim arising out of events that occur in the Premises and the Common Areas in the
Building.
17.1.2 Property Insurance. Commercial property form insurance with a special
form endorsement providing coverage on a replacement cost basis for Lessee's fixtures,
equipment and inventory in the Premises. During the Term, Lessee shall use the
proceeds from any such policy or policies of insurance for the repair or replacement of
the insured property.
17.1.3 Each insurance policy and certificate shall contain a provision indicating
that it cannot be modified, amended, canceled or non-renewed without at least thirty (30)
days advance written notice to the Lessor.
17.2 Lessor's Insurance. During the Term of this Lease, Lessor shall obtain
and keep in full force and effect, the following insurance. The insurance required to be
carried by Lessor under this Section shall be referred to herein as "Lessor's Insurance."
Lessee shall be named as additional insured under Lessor's policies and, upon Lessee's
request, Lessor will provide Lessee with a copy of the certificate and premium bill
evidencing Lessor's insurance.
17.2.1 Liability Insurance. Bodily injury, personal injury and property damage
insurance (to include without limitation contractual liability covering Lessor's indemnity
obligations under Section 17.5) insuring against claims of bodily injury or death, personal
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injury or property damage arising out of or in connection with Lessor's activities upon, in
or about the Premises and Building with an each occurrence limit of not less than One
Million Dollars ($1,000,000.00) and a general aggregate limit of not less than One
Million Dollars ($1,000,000.00).
17.2.2 Property Insurance. Special form commercial property insurance
insuring the Building (excluding any property which Lessee is obligated to insure under
Section 17.1.2), for the amount of the full replacement of its value as such value may
exist from time to time.
17.2.3 Lessor's Right to Self Insure. Notwithstanding the foregoing, Lessor shall
have the right, at its sole election, to self insure, or be a member of an intergovernmental
self-insurance pool, with respect to some or all of the required insurance coverage it is to
provide.
17.3 Waiver of Subrogation. Neither Lessor nor Lessee shall be liable to the
other or to any insurance company (by way of Subrogation or otherwise) insuring the
other party for any loss or damage to any building, structure or other tangible property, or
any resulting loss of income and benefits, even though such loss or damage might have
been occasioned by the negligence of such party, its agents or employees if any such loss
or damage is covered by insurance benefitting the party suffering such loss or damage or
was required to be covered by insurance pursuant to this Lease. Lessor and Lessee shall
require their respective insurance companies to include a standard waiver of Subrogation
provision in their respective policies.
17.4 Indemnification by Lessee. Lessee shall defend, protect, indemnify, and
hold Lessor and Lessor's agents, officers, directors, employees and contractors harmless
against and from any and all injuries, costs, expenses, liabilities, losses, damages,
injunctions, suits, actions, fines, penalties, and demands of any kind or nature (including
reasonable attorneys' fees) arising in connection with any and all third party claims
arising directly or indirectly out of (a) injuries occurring within the Premises; (b) any
intentional acts or negligence of Lessee or Lessee's agents, officers, employees, or
contractors; (c) any breach or default in the performance of any obligation on Lessee's
part to be performed under this Lease; or (d) the failure of any representation or warranty
made by Lessee herein to be true when made. This indemnity does not include the
intentional or negligent acts or omissions of Lessor or its agents, officers, contractors or
employees. This indemnity shall survive termination of this Lease only as to claims
arising out of events that occur prior to termination of this Lease.
17.5 Indemnification by Lessor. Lessor shall defend, protect, indemnify, and
hold Lessee and Lessee's agents, officers, directors, employees and contractors harmless
against and from any and all injuries, costs, expenses, liabilities, losses, damages,
injunctions, suits, actions, fines, penalties, and demands of any kind or nature (including
reasonable attorneys' fees) arising in connection with any and all third party claims
arising out of any intentional acts or negligence of Lessor or Lessor's agents, officers,
employees, or independent contractors. This indemnity does not include the intentional
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. .
or negligent acts or omissions of Lessee or its agents, officers, contractors or employees.
This indemnity shall survive termination of this Lease only as to claims arising out of
events that occur prior to termination of this Lease.
18. LESSOR'S REMEDIES.
18.1 If Lessee shall vacate or abandon the Premises or permit the same to
remain vacant or unoccupied for a period of thiliy days, or in case of the non-payment of
the rent reserved hereby, or any part thereof, or of the breach of any covenant in this
Lease contained, Lessee's right to the possession of the Premises thereupon shall
terminate with or (to the extent permitted by law) without any notice or demand
whatsoever, and the mere retention of possession thereafter by Lessee shall constitute a
forcible detainer of the Premises; and if the Lessor so elects, but not otherwise, and with
or without notice of such election or any notice or demand whatsoever, this Lease shall
thereupon terminate, and upon the termination or Lessee's right of possession, as
aforesaid, whether this Lease be terminated or not, Lessee agrees to surrender possession
of the Premises immediately, without the receipt of any demand for rerit, notice to quit or
demand for possession of the Premises whatsoever, and hereby grants to Lessor full and
free license to enter into and upon the Premises or any part thereof, to take possession
thereof with or (to the extent permitted by law) without process of law, and to expel and
to remove Lessee or any other person who may be occupying the Premises or any part
thereof, and Lessor may use such force in and about expelling and removing Lessee and
other persons as may reasonably be necessary, and Lessor may re-possess himself of the
Premises as of his former estate, but such entry of the Premises shall not constitute a
trespass or forcible entry or detainer, nor shall it cause a forfeiture of rents due by virtue
thereof, nor a waiver of any covenant, agreement or promise in this Lease contained, to
be performed by Lessee. Lessee hereby waives all notice of any election made by Lessor
hereunder, demand for rent, notice to quit, demand for possession, and any and all notices
and demand whatsoever, of any and every nature, which mayor shall be required by any
statute of this state relating to forcible entry and detainer, or to landlord and tenant, or any
other statute, or by the common law, during the term of this Lease or any extension
thereof. The acceptance of rent, whether in a single instance or repeatedly, after it falls
due, or after knowledge of any breach hereof by Lessee, or the giving or making of any
notice or demand, whether according to any statutory provision or not, or any act or
series of acts except an express written waiver, shall not be construed as a waiver of
Lessor's rights to act without notice or demand or of any other right hereby given Lessor,
or as an election not to proceed under the provisions of this Lease.
18.2 Lessee's Defaults. The occurrence of anyone or more of the following
events shall constitute a default and breach of this Lease by Lessee:
(a) Except as otherwise provided in this Lease, the failure by Lessee to
make any payment of Base Rent or any other payment required to be made by Lessee
hereunder, as and when due, where such failure shall continue for a period of seven (7)
business days after Lessor notifies Lessee in writing of such failure;
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(b) The failure by Lessee to observe or perform any of the covenants,
conditions, or provisions of this Lease to be observed or performed by Lessee, other than
the payment of sums due hereunder, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to Tenant; provided, however, that if
the nature of Lessee's default is such that more than ten (10) days are reasonably required
for its cure, then Lessee shall not be deemed to be in default if Lessee commences such
cure within such ten (10) day period and thereafter diligently pursues such cure to
completion;
(c) If Lessee shall make an assignment for the benefit of creditors or
file a petition in any court and bankruptcy, reorganization, composition or make an
application in any such proceeding for the appointment of a trustee or receiver for all or
any portion of its property;
(d) If any petition shall be filed against Lessee in any bankruptcy,
reorganization or insolvency proceedings, and such proceedings are not dismissed or
vacated within one hundred twenty (120) days after such petition is filed; or
(e) If . a receiver or trustee shall be appointed under state law for
Lessee for all or any portion of the property of Lessee, and such receivership or
trusteeship shall not be set aside within ninety (90) days after such appointment.
18.3 Remedies in Default. In the event of any such uncured default, Lessor
may pursue the following remedies in addition to any other remedies available at law or
in equity:
(a) Lessor may terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease shall terminate and Lessee shall surrender
possession of the Premises to Lessor within ten (10) days after written notice from Lessor
to Lessee In such event, Lessor shall be entitled to recover from Lessee all damages
incurred by Lessor by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises. Any damage or loss of rent sustained by
Lessor may be recovered by Lessor, at Lessor's option, at the time of the reletting, or in
separate actions, from time to time, as such damages shall have been made easily
ascertainable by successive relettings, or at Lessors' option in a single proceeding
deferred until the expiration of the term of this Lease (in which event Lessee hereby
agrees that the cause of action shall not be deemed to have accrued until the date of
expiration of such term) or in a single proceeding prior to either the time of reletting or
the expiration of the term of this Lease.
(b) Lessor may maintain Lessee's right to possession, in which case
this Lease shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event, Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Lease.
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. .
(c) Nothing contained herein shall prevent the enforcement of any
claim Lessor may have against Lessee for anticipatory breach of the unexpired term of
this Lease. In the event of a breach or anticipatory breach by Tenant of any of the
covenants or provisions hereof, Lessor shall have the right of injunction and the right to
invoke any remedy allowed by law or in equity as if reentry, summary proceedings and
other remedies were not provided for herein. Lessee hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in the event of Lessee
being evicted or dispossessed pursuant to the terms hereof, or in the event of Lessor
obtaining possession of the Premises by reason of Lessee's default of any of the
covenants and conditions of this Lease, as set forth herein.
18.4 Cumulative Remedies. Except where otherwise expressly provided
in this Lease, no remedy or election hereunder shall be deemed exclusive, but shall,
wherever possible, be cumulative with all other remedies at law or in equity and all those
specifically provided herein.
19. RIGHT TO RELET.
If Lessee's right to the possession of the Premises shall be terminated in any way,
the Premises, or any part thereof, may, but need not (except as provided by Illinois
statute), be RELET by Lessor, for the account and benefit of Lessee, for such rent and
upon such terms and to such person or persons and for such period or periods as may
seem fit to the Lessor, but Lessor shall not be required to accept or receive any tenant
offered by Lessee, nor to do any act whatsoever or exercise any diligence whatsoever, in
or about the procuring of any care or diligence by Lessor in the reletting thereof; and if a
sufficient sum shall not be received from such reletting to satisfy the rent hereby
reserved, after paying the expenses of reletting and collection, including commissions to
agents, and including also expenses of redecorating. Lessee agrees to pay and satisfy all
deficiency; but the acceptance of a tenant by Lessor, in place of Lessee, shall not operate
as a cancellation hereof, nor to release Lessee from the performance of any covenant,
promise or agreement herein contained, and performance by any substituted tenant by the
payment of rent, or otherwise, shall constitute only satisfaction pro tanto of the
obligations of Lessee arising hereunder.
20. COSTS AND FEES.
Upon demand of the non-defaulting party, the defaulting party shall pay all
reasonable costs, charges and expenses, including reasonable fees of attorneys, agents
and others retained by the non-defaulting party, incurred in enforcing any of the
obligations under this Lease or in any litigation, negotiation or transaction in which the
non-defaulting party shall become involved through or on account of this Lease.
21. LESSOR'S LIEN.
Lessor shall have a first lien upon the interest of Lessee under this Lease, to
secure the payment of all moneys due under this Lease, which lien may be foreclosed in
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. .
equity at any time when money is overdue under this Lease; and the Lessor shall be
entitled to name a receiver of said leasehold interest, to be appointed in any such
foreclosure proceeding, who shall take possession of said premises and who may relet the
same under the orders of the court appointing him.
22. REMOVAL OF OTHER LIENS.
In event any lien upon Lessor's title results from any act or neglect of Lessee, and
Lessee fails to remove said lien within ten days after Lessor's notice to do so, Lessor may
remove the lien by paying the full amount thereof or otherwise and without any
investigation or contest of the validity thereof, and Lessee shall pay Lessor upon request
the amount paid out by Lessor in such behalf, including Lessor's costs, expenses and
counsel tees.
23. REMEDIES NOT EXCLUSIVE.
The obligation of Lessee to pay the rent reserved hereby during the balance of the
term hereof, or during any extension hereof, shall not be deemed to be waived, released
or terminated by the service of any five-day notice, other notice to collect, demand for
possession, or notice that the tenancy hereby created will be terminated on the date
therein named, the institution of any action of forcible detainer or ejectment or any
judgment for possession that may be rendered in such action, or any other act or acts
resulting in the termination of Lessee's right to possession of the Premises. The Lessor
may collect and receive any rent due from Lessee, and payment or receipt thereof shall
not waive or affect any such notice, demand, suit or judgment, or in any manner
whatsoever waive, affect, change, modify or alter any rights or remedies which Lessor
may have by virtue hereof.
24. NOTICES.
Whenever a provision is made under this Lease or by law for any demand, notice
or declaration of any kind, or where it is deemed desirable or necessary by either party to
give or serve any such notice, demand or declaration to the other party, it shall be in
writing and served either personally or sent by United States mail, certified, postage
prepaid, or by pre-paid nationally recognized overnight courier service, addressed at the
addresses set forth below or at such address as either party may advise the other from
time to time.
To the Lessee at:
GanderGroup, LLC
412 N. Forest Avenue
Mount Prospect, IL 60056
To the Lessor at:
Village of Mount Prospect
50 S. Emerson Street
Mount Prospect, IL 60056
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with a copy to:
Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606
(312) 984-6400 (Telephone)
(312) 984-6444 (Fax)
25. GENERAL PROVISIONS.
25.1 Provisions typed on this Lease and all riders attached to this Lease and
signed by Lessor and Lessee are hereby made a part of this Lease.
25.2 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 building of which the Premises are a part.
.25.3 All covenants, promises, representations and agreements herein contained
shall be binding upon, apply and inure to the benefit of Lessor and Lessee and their
respective heirs, legal representatives, successors and assigns.
25.4 The rights and remedies hereby created are cumulative and the use of one
remedy shall not be taken to exclude or waive the right to the use of another.
25.5 The words "Lessor" and "Lessee" wherever used in this Lease shall be
construed to mean Lessors or Lessees in all cases where there is more than one Lessor or
Lessee, and to apply to individuals, male or female, or to firms or corporations, as the
same may be described as Lessor or Lessee herein, and the necessary grammatical
changes shall be assumed in each case as though fully expressed. If there is more than
one Lessee the warrant of attorney in paragraph 16 is given jointly and severally and shall
authorize the entry of appearance of, and waiver of issuance of process and trial by jury
by, and confession of judgment against anyone or more of such Lessees, and shall
authorize the performance of every other act in the name of and on behalf of anyone or
more of such Lessees.
25.6 Estoppel Certificate. Lessee shall, no more than twice in any Lease Year
and upon not less than thirty (30) days prior written notice from Lessor, execute,
acknowledge and deliver to any prospective purchaser or mortgagee, or to Lessor on such
party's behalf a statement in writing, (a) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect); (b) stating the date to
which the Base Rent and other charges are paid and the amount of any security deposit
held by Lessor, if any; and (c) acknowledging that there are not, to the actual knowledge
of the person executing such certificate, any uncured defaults on the part of Lessor
hereunder, or specifying such defaults, if any, which are claimed. Any such statement
may be conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises.
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25.7 Authority. Each of the Lessor and Lessee hereby represents and
warrants that this Lease has been duly authorized, executed and delivered by and on its
behalf and constitutes such party's valid and binding agreement in accordance with the
terms hereof.
25.8 Time of Essence" Time is of the essence to the parties executing this
Lease.
25.9 Interpretation. Paragraph and Section headings are not a part hereof and
shall not be used to interpret the meaning of this Lease. This Lease shall be interpreted in
accordance with the fair meaning of its words and both parties certify they either have
been or have had the opportunity to be represented by their own counsel and that they are
familiar with the provisions of this Lease, which provisions have been fully negotiated,
and agree that the provisions hereof are not to be construed either for or against either
party as the drafting party.
25.10 Incorporation of Prior Agreements; Amendments. This Lease contains
all agreements of the parties as of the date hereof with respect to any matter mentioned
herein. No prior agreement, correspondence or understanding pertaining to any such
matter shall be effective to interpret or modify the terms hereof. This Lease may be
modified only in writing, signed by the parties in interest, at the time of the modification.
Lessor specifically acknowledges that Lessee's employees at the Premises do not have
authority to modify the Lease or to waive Lessee's rights hereunder.
25.11 Waivers. No waiver by Lessor or Lessee of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee or Lessor of the same or any other provision. A party's consent to or approval of
any act shall not be deemed to render unnecessary obtaining such party's consent to or
approval of any subsequent act. No waiver shall be effective unless it is in writing,
executed on behalf of Lessor or Lessee by the person to whom notices are to be
addressed.
25.12 Lessor's Access. Lessor and Lessor's agents shall have the right to
enter the Premises upon twenty-four (24) hours prior written notice for the purpose of
inspecting the same, showing the same to prospective purchasers or lenders, and making
such alterations, repairs, improvements or additions to the Premises or to the Building as
Lessor deems necessary or desirable. Notwithstanding the foregoing, in the event of an
emergency requiring Lessor's entry into the Premises, Lessor may give Lessee shorter
notice in any manner that is practicable under the circumstances. Lessor may, at any
time, place on or about the Premises an ordinary "For Sale" sign, and Landlord may at
any time during the last ninety (90) days of the Term, place on or about the Premises an
ordinary "For Lease" sign.
25.13 Only Lessor/Lessee Relationship. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to create the
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relationship of principal and agent, partnership, joint venturer or any association between
Lessor and Lessee. Lessor and Lessee expressly agree that neither the method of
computation of rent nor any act of the parties hereto shall be deemed to create any
relationship between Lessor and Lessee other than the relationship of Lessor and Lessee.
25.14 Brokers. Lessor and Lessee each represent to the other that they have
not dealt, directly or indirectly, in connection with the leasing of the Premises, with any
other broker or person entitled to claim a commission or leasing fees. In no event may
this Lease be construed to create any express or implied obligation on the part of Tenant
to perform this Lease on behalf of any broker (or any person claiming a commission or
leasing fee) as primary obligee or as a third party beneficiary. Lessor and Lessee each
shall indemnify and hold each other harmless from any loss, liability, damage, or expense
(including without limitation reasonable attorneys' fees) arising from any claim for a
commission or leasing fee arising out this transaction made by any unidentified broker or
other person with whom such party has dealt.
26. SEVERABILITY.
If any clause, phrase, provision or portion of this Lease or the application thereof
to any person or circumstance shall be invalid, or unenforceable under applicable law,
such event shall not affect, impair or render invalid or unenforceable the remainder of
this Lease nor any other clause, phrase, provision or portion hereof, nor shall it affect the
application of any clause, phrase, provision or portion hereof to other persons or
circumstances.
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WITNESS the hands and seals of the parties hereto, as of the Date of Lease stated
above.
Please print or type names
below signature(s).
LESSEE:
LESSOR:
1i~ k tf/L
(SEAL)
ATTEST:
~
ATTEST:
L/!2?q~Jd[
(SEA )
Its Clerk
State of Illinois, County of Cco'L
SS.
I, the undersigned, a Notary Public in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that
personally known to me to be the same person whose name
subscribed to the foregoing instrument, appeared before me this day in person, and
acknowledged that _he signed, sealed and delivered the said instrument as
free and voluntary act, for the uses and purposes therein set forth, including the release
and waiver of right of homestead.
GIVEN under my hand and official seal this jpc\ day of 1.-t(L~C v.....
20~.
Commission expIres u a- \ ~ Le I dU I I
I!w-~u~, 20
Notary Public
"OFFICIAL SEAl:
KIMBERLY A. OEWIS
Notary Public, State of Imnols
Commission Expires 02/26/2011
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