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HomeMy WebLinkAboutRes 09-04 02/17/2004 vwl 2/11/04 2/13/04 RESOLUTION NO. 9-04 A RESOLUTION AUTHORIZING EXECUTION OF A LEASE BETWEEN THE VILLAGE OF MOUNT PROSPECT AND JJAA T ENTERPRISES (TUCCIO'S TRACKSIDE RESTAURANT) WHEREAS, the Village of Mount Prospect leases the Union Pacific Train Station in Mount Prospect; and WHEREAS, the Village of Mount Prospect is desirous of entering into a five (5) year lease agreement with JJAAT Enterprises (d/b/a Tuccio's Trackside) at the train station mentioned herein; and WHEREAS, such agreement will provide retail commuter services in the train station that will benefit the citizens of Mount Prospect; and 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 Mayor and Board of Trustees of the Village of Mount Prospect do hereby authorize execution of a Lease Agreement between JJAA T Enterprises and the Village of Mount Prospect for the purpose of permitting a restaurant, Tuccio's Trackside, to be located within the Union Pacific Train Station in Mount Prospect, and said Lease shall be for a period of five (5) years, as set forth in the Lease, a copy of which is attached hereto and hereby made a part hereof as Exhibit "A." SECTION TWO: That this Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. AYES: Hoefert, Lohrstorfer, Skowron, Wilks, Zadel NAYS: None ABSENT: Corcoran, Farley PASSED and APPROVED this 1ih day of February, 2004. ;;~;:< / ' '.- - ',.... .ú.,.úú",,",' 1/ iII:z ,""'---"-"<.......'."...'Ä. ~ ~ Mayor Pro Tem '~ .~ .. ATTEST: - - Þ Velma W Lowe Village Clerk H:ICLKOIfilesIWINIRESILease agrmt-VOMP, Tuccle's, Feb,2004.dec ~ ;< COMMERCIAL LEASE JJAA T Enterprises, Inc., an Illinois Corporation (hereinafter "LESSEE") Village of Mount Prospect, a Municipal Corporation (hereinafter "LESSOR") JJAA T Enterprises, Inc. 106 W. NW Highway Mount Prospect, IL 60056 Village of Mount Prospect 100 S. Emerson Street Mount Prospect, IL 60056 In consideration of the mutual covenants and agreements herein stated, Lessor hereby 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 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"). 1. 2. TERM. 2.1 Term. The term of this Lease (the "Term") shall be for 52 months, commencing on the date of this agreement and ending on the last day of the 46th month from the Rent Commencement Date (the "Expiration Date"), unless sooner terminated or extended as provided herein. Promptly after the Rent Commencement Date, Lessor and Lessee shall execute a memorandum stating the actual Commencement Date (as defined in Section 2.2 below), Rent Commencement Date and Expiration Date. 2.2 Delivery. The Lease shall commence upon delivery of the Premises by Lessor to Lessee (the "Commencement Date"). . 2.3 Lease Year. For the purpose of this Lease, the term "Lease Year" shall mean and refer to that period of twelve (12) full consecutive calendar months beginning with the first full calendar month of the Term and each subsequent period of twelve (12) consecutive calendar months during the Term, provided that if the Term commences on ¡Manage 124876 1 other than the first day of a calendar month, then the initial fractional month of the Term plus the next succeeding twelve (12) full calendar months shall constitute the first Lease Year of the Term. 2.4 Option. Lessee has the option to extend for additional 5 years at to be agreed upon rent upon written 60-day notice prior to lease termination. Lessee has the option to terminate this Lease effective March 1, 2005 upon 30-day written notice. If proper notice is not given, the Lessee waives this option. 3. RENT. 3.1 Lessee shall pay to Lessor at the address stated herein, or to such other person or at such other place as Lessor may designate in writing, monthly rent as follows: "Base Rent" - $600, increasing annually by 3% The rent arrangement set forth above may be reviewed after the sixth month of the lease upon the request of Lessee if Lessee has not consistently achieved a positive net income level by that time. Lessee shall commence to pay Base Rent on the date (the "Rent Commencement Date") that is 6 months from the date of this. Lessee shall continue to pay Base Rent in monthly installments on or before the tenth day of every month thereafter during the Term. Base Rent for any period during the Term less than one (1) calendar month shall be prorated on a daily basis based on a three hundred sixty-five (365) day year. 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. ELECTRIC CHARGES AND FEES AND TAXES OWED TO VILLAGE. Lessee shall pay electric light and power bills during the Term of this Lease. 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, sales taxes and business license ¡Manage 124876 1 fees. Lessee's failure to pay these fees and taxes owed to the Village of Mount Prospect within 30 days of their due date shall constitute a breach of this contract allowing Lessor to commence eviction proceedings. 5. SUBLETTING; ASSIGNMENT. The Premises shall not be sublet in whole or in part to any person other than Lessee, and Lessee shall not assign this Lease without, in each case, the consent in writing of Lessor, first had and obtained, consent to assign or sublet shall not be unreasonably withheld to a similar or like use as approved by the Village; nor permit to take place by any act or default of himself or any person within his control any transfer by operation of law of Lessee's interest created hereby; nor offer for lease or sublease the Premises, nor any portion thereof, 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 first had and obtained. 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, 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 ¡Manage 124876 1 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 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 iManage 124876 1 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 thirty (30) 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 benefiting 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 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. ¡Manage 124876 1 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 5:30 a.m. to 9:00 a.m. and from 4:00 p.m. to 7:00 p.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 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 bas¡;:d 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. ¡Manage [24876 I 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 òr 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. 12. RESTRICTIONS (SIGNS, ALTERATIONS, 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 ¡Manage 1248761 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. 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 therefore 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 thirty 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 month to month 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 Ta.xes for any Lease Year. Notwithstanding the foregoing, ilvlanage 124876 ] 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. 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 company with an A.M. Best Company ("Best's") rating of at least A- and a Best's financial performance rating of at least 7. 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 18.4) naming Lessor, as well as Metra, as additional insured's 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. ¡Manage 124876 1 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 obligations under Section 18.5) insuring against claims of bodily injury or death, personal 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 Lessoes Right to SelfInsure. 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 benefiting 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 ¡Manage !24876 ! 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 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 thirty 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 sh,all 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 rent, 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 rentsgue by virtue thereof, nor a waiver of any covenant, agreement or promise in this Leáie 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 ¡Manage 124876 I . 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; (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 thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within such thirty (30) 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 iManage 124876 1 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. (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. ¡Manage 1248761 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 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. REMOV AL 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. ¡Manage 124876 1 To the Lessor at: Village of Mount Prospect 100 S. Emerson St. Mount Prospect, IL 60056 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) To the Lessee at: Tuccio's Restaurant 106 W. NW Highway Mount Prospect, IL 60056 with a copy to: Norman 1. Kurtz Ltd. 32 W. Busse Ave. Mount Prospect, IL 60056 (847) 577-8310 (Telephone) (847) 577-4216 (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 ¡Manage 124876 1 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. 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 Lease. Time of Essence. Time is of the essence to the parties executing this 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 ofthe 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 ¡Manage 124876 1 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. 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 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. ¡Manage 124876 I , 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: (SEAL) AL) :t,è//¡Cl///f ){. MLKJ A TTEST~ /~"",./, ¿,; ',;C~~ Þ ~ "~ÈAt)' y~ -'-i-"V.> 'i.'> , -:;'i../\ VGlml1 ~ ~uA:E- (SEAL) -~ Its Clerk State of Illinois, County of &0/1--. 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 r21 S+ day of 20i2:L. G.~ Commission expires F~ ;;up ,20~ -~~ {)..~ otary PublIc -OFFICIAL SEAl: KIMBERlY A. DEWIS Notary Public. Statø of illinois My Con1mIsslon ExpIres f1¿J261O1 ¡Manage 124876 I