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R-1622 - 03/14/2017 - BATH & TENNIS - Resolutions Exhibits A LICENSE AGREEMENT BETWEEN THE VILLAGE OF OAK BROOK AND TASTY CATERING WHEREAS, the Village of Oak Brook("VILLAGE") owns and operates the Oak Brook Swim&Tennis Club located at 800 Oak Brook Road, Oak Brook, Illinois; and WHEREAS, 1495 Tasty Catering Corp is an Illinois corporation located at 1900 Touhy Avenue, Elk Grove Village, Illinois and doing business as Tasty Catering ("TASTY CATERING") and operates a business devoted to providing food and beverage catering; and WHEREAS, TASTY CATERING desires to have use of the facility spaces, as specified in Exhibit A, necessary for their operation within the Oak Brook Swim & Tennis Club (CLUB) in order to provide catering services; and WHEREAS,the Parties wish to enter into an Agreement to enable TASTY CATERING to be permitted to utilize the facility space subject to the terms and conditions of this Agreement; NOW,THEREFORE, BE IT AGREED BY THE VILLAGE AND TASTY CATERING AS FOLLOWS: 1. License to Use Licensed Space The VILLAGE hereby grants TASTY CATERING a license to use that portion of its Licensed Space as identified in Exhibit A (the "Licensed Space") on the days and at the times, and in accordance with the purposes, specified below. The Parties expressly acknowledge and agree that this Agreement is not a lease, and that it does not create or convey to TASTY CATERING any interest in the Licensed Space. TASTY CATERING shall not have any right to occupy or use the facility in a manner which is inconsistent with the terms and conditions of this License. 1 Further, the VILLAGE retains the following rights related to this License and the use of the Licensed Space: i. During the months of May through October, the VILLAGE may allow another caterer to cater an event on the Licensed Space if an event has not already been booked by TASTY CATERING with THE VILLAGE prior to the request. The VILLAGE will coordinate the schedule for any such rentals with TASTY CATERING and will provide notice to TASTY CATERING of any such rental as soon as practicable. THE VILLAGE will discuss any dates when another caterer may use the facility with TASTY CATERING prior to any contract being signed to ensure there isn't a conflict with a potential client who has received a proposal from TASTY CATERING. TASTY CATERING can also waive in writing the provisions of this clause for specific events. ii. During the months of November through April, the VILLAGE may allow another caterer to cater an event on the Licensed Space at any time that TASTY CATERING has not booked an event. THE VILLAGE shall have the right to allow another caterer to use the Facility at any time when there is not a booked TASTY CATERING event for any special requests from a client regarding a specific cuisine or special preparation of food if TASTY CATERING is unable to satisfy the client's request. The VILLAGE will coordinate the schedule for any such rentals with TASTY CATERING and will provide notice to TASTY CATERING of any such rental as soon as practicable. iii. On any day during the months of November through April, and on any day except Saturday during the months of May through October, the VILLAGE may utilize a caterer other than TASTY CATERING if that caterer 2 has an established working relationship with the VILLAGE and refers the client to the VILLAGE. This will only be done if TASTY CATERING does not have a proposal out to a potential client and will be discussed with TASTY CATERING prior to any agreement being signed. B. This Agreement shall not be construed to grant TASTY CATERING, its agents, staff or customers, any priority or right to use VILLAGE space or equipment other than the space and equipment necessary to operate the event. TASTY CATERING has examined the equipment available to it from the VILLAGE and agrees to provide at its own cost any additional equipment or supplies necessary to carry on events. TASTY CATERING shall be responsible for all set up, breakdown, and clean up of all equipment, including the kitchen area, for the events they cater. TASTY CATERING will require its employees and agents to conduct the clean up in accordance with a checklist jointly developed by the VILLAGE and TASTY CATERING. TASTY CATERING will notify VILLAGE as soon as practicable of any damaged or missing equipment or supplies, including but not limited to china and glassware. The VILLAGE agrees to pay for additional services it requests, for any event, including but not limited to, additional decorations, supplies and equipment. C. This Agreement shall be in effect beginning March 1, 2017 and shall remain in effect until December 31, 2017 (Initial Term). This Agreement shall automatically renew for up to two additional one-year terms (Renewal Terms)unless earlier terminated, or unless either party provides written notice of non-renewal no less than sixty (60) days prior to the 3 expiration of the initial term or any Renewal Term. The Agreement can also be terminated in accordance with Section 8. 2. Remuneration. In consideration of being permitted to use the Licensed Space, TASTY CATERING shall pay the VILLAGE 10% of all gross sales less staffing costs. Gross sales shall be measured in the same amount as TASTY CATERING shall be required to report to the Illinois Department of Revenue Sales Tax Division. TASTY CATERING shall keep complete records of its catering service operation satisfactory to the VILLAGE. TASTY CATERING shall submit a written monthly statement of sales to the VILLAGE no later than the 10a' of each month covering the entire preceding month end and shall pay to the VILLAGE the payment due with respect to such preceding month. Independent Contractor. TASTY CATERING is an independent contractor and shall be responsible for the operation of the catering service and condition of the Licensed Space, its staff, agents and employees under the terms of this agreement for the events they operate. TASTY CATERING will not be an employee of VILLAGE under the meaning or application of any federal or state laws. TASTY CATERING will have no authority to act as an agent of VILLAGE and will not hold itself out as such. 3. Marketing. TASTY CATERING shall expend a minimum of$10,000 per year on marketing/advertising events at the Licensed Space. Such payments shall be documented and provided to the VILLAGE at its written request. TASTY CATERING shall submit to the Swim & Tennis Club Manager all marketing materials, including menus, to be used in the operation of the catering services at said facility. Upon the approval of marketing materials by the Swim & Tennis Club Manager, TASTY CATERING shall be allowed to market to the general public and the VILLAGE shall assist in marketing the catering services of TASTY CATERING at the VILLAGE's facilities. 4 4. Agents and Employees of TASTY CATERING. TASTY CATERING shall be exclusively responsible for directing, supervising, disciplining, or otherwise dealing with any personnel engaged by TASTY CATERING, however,TASTY CATERING warrants that it shall take into consideration any personnel complaints or issues raised by the VILLAGE. 5. Access to Licensed Space. At all times the Agreement remains in effect, TASTY CATERING and its employees and agents except as provided above, shall be entitled to enter upon and have access to the Licensed Space as directed by the Swim&Tennis Club Manager. TASTY CATERING acknowledges and agrees that it is responsible for the conduct of its employees, agents and contractors that are upon the property during all times including responsibility for security and maintenance of keys, accessing the Licensed Space, and building alarm systems and codes. TASTY CATERING shall provide the VILLAGE Manager, or his designee, a current list of all agents, employees and contractors with access to the Licensed Space, including a list identifying those agents, employees and contractors with access to the Licensed Space, including a list of identifying those agents, employees and contractors that have been provided keys that access the Licensed Space. The VILLAGE shall be allowed access and use of the Licensed Space for planned special events and seasonal concession operations as long as it does not interfere with a booked event catered by TASTY CATERING. The schedule for special events and seasonal concession operations will be reviewed quarterly by both parties. 5 6. Condition of Licensed Space; Liability. A. TASTY CATERING has inspected the Licensed Space and acknowledges that no representation as to the condition and repair thereof has been made by the VILLAGE prior to or at the execution of this Agreement. B. All repairs and improvements intended to be made by TASTY CATERING to the Licensed Space shall be submitted in writing and approved by the VILLAGE Manager prior to commencing. All such repairs and improvements shall be made solely at the expense of TASTY CATERING. TASTY CATERING will not be responsible for repairs to the Licensed Space that are required for normal operation. C. TASTY CATERING agrees that every item which is attached to the Licensed Space is owned by the VILLAGE and not subject to removal. TASTY CATERING shall be responsible for reimbursement to VILLAGE for any damage or loss to the Licensed Space, or any VILLAGE fixtures, furnishings, or equipment caused by TASTY CATERING or its employees, agents, or subcontractors, except for normal wear and tear. D. TASTY CATERING will keep all improvements on the Licensed Space in good repair no less than the current condition, and will comply with all local or general regulations, laws and ordinances applicable thereto, as well as lawful requirements of all competent authorities in that behalf. TASTY CATERING will, as far as possible, keep said improvements from deterioration and from falling out of repair. E. TASTY CATERING shall not use or store any flammable or explosive 6 materials or liquids in the Licensed Space unless directly related to catering services. All flammable or explosive materials or liquids shall be stored properly and in strict conformance with safety standards. F. TASTY CATERING hereby agrees to operate the Licensed Space in compliance with all applicable Village ordinances and all applicable DuPage County Health Department Codes and Regulations for all TASTY CATERING events. 7. Use of Licensed Space, TASTY CATERING will not allow said Licensed Space to be used for any purpose other than that specified herein and will not permit any other individual, company or organization to use said Licensed Space, nor any part thereof, nor assign this Agreement, without in each case the written consent of the VILLAGE, and will not permit said Licensed Space to be used for any unlawful purpose or for any purpose that will injure the reputation of the building or the VILLAGE or increase the fire hazard of said building. 8. Termination. A. If TASTY CATERING shall abandon or vacate said Licensed Space, this Agreement shall be considered terminated, and the VILLAGE shall be entitled to immediate possession thereof. Either party may terminate this Agreement at any time for any reason or no reason upon ninety (90) days' written notice to the other party. Such termination shall not, however, remove from any party to this License Agreement any obligation that was required to be performed during its term. B. TASTY CATERING will, at the termination of this Agreement by lapse of time or otherwise, no longer have access rights to the Licensed Space. 9. Indemnification. Each party shall indemnify and hold harmless the other party, 7 including officers, employees, volunteers and agents from and against and from any penalty or damage or charges imposed for any violation of any laws or ordinances occasioned by other party and against and from any and all claims, suits, demand actions and proceedings and against and from any and all loss, cost, damage or expense, including attorneys' fees, arising out of any act or omission or violation of this Agreement thereof. 10. Insurance. TASTY CATERING shall purchase insurance as follows: A. commercial general liability insurance which covers the equipment and Licensed Space and which includes bodily injury,personal injury and property damage limits of not less than$1,000,000 per occurrence, written on an occurrence-basis policy. B. Business auto liability C. Commercial umbrella liability Such insurance shall cover liability arising out of any auto including owned,hired and non-owned autos. D. Workers compensation and employers liability insurance in such amounts as are required by law. E. The commercial umbrella and/or employers liability limits shall not be less than$500,000 each accident for bodily injury by accident or$100,000 each employee for bodily injury by disease. F. All polices shall name the VILLAGE as an additional insured at all times hereunder A certificate of insurance and a copy of the policy endorsement demonstrating such coverage shall be submitted to the VILLAGE by TASTY CATERING and shall remain in effect at all times. Upon said policy renewing, TASTY CATERING will provide renewal coverage before the expiration date of the previous policy coverage. All rights of TASTY 8 CATERING to provide any services on The Licensed Space shall be suspended during the time any Cerfitificate of Insurance is lapsed. THE VILLAGE shall provide TASTY CATERING a Certificate of Insurance demonstrating the above limits of coverage of its employees on The Licensed Space. Certificates of insurance and/or coverage shall include a written 30-day notice of cancellation or reduction of limits clause or any other amendment. 11. Third Party Beneficiary. No claim as a third party beneficiary under this Agreement by any person, firm or corporation shall be made or be valid against the VILLAGE or TASTY CATERING. 12. Assignm . TASTY CATERING shall not assign or sub-license this Agreement without the prior written consent of the VILLAGE. 13. Choice of Law/Venue. All questions concerning the validity, interpretation or affect of the terms of this Agreement shall be governed under Illinois law and shall be exclusively litigated in the Circuit Court of DuPage County,Illinois. 14. Costs and Fees. In any action to enforce its right under this Agreement, the Prevailing Party shall be entitled to recover its costs, including reasonable attorney fees, if any, as part of any attempts or litigation to enforce the terms of the Agreement. 15. Amendments. This Agreement shall be amended only in writing duly executed by all parties to this Agreement. 16. Freedom of Information Act. TASTY CATERING agrees to maintain all records and documents related to this License in compliance with the Freedom of Information Act, 5 ILCS 140/1 et seq. In addition, TASTY CATERING shall produce records which are responsive to a request received by VILLAGE under the Freedom of Information Act so that VILLAGE may provide records to those requesting them within the time frames required. If additional time is necessary to compile records in response to a request, then TASTY CATERING shall so 9 notify VILLAGE and, if possible, VILLAGE shall request an extension so as to comply with the Act. In the event that the VILLAGE is found not to have complied with the Freedom of Information Act due to TASTY CATERING failure to produce documents or otherwise appropriately respond to a request under the Act, then TASTY CATERING shall indemnify and hold VILLAGE harmless, and pay all amounts determined to be due including but not limited to fines, costs, attorney fees and penalties. 17. Real Estate Taxes. On the date of this License, the VILLAGE is exempt from real estate and other taxes by virtue of its status as a unit of local government. VILLAGE and TASTY CATERING intend this agreement to be a license that will not subject TASTY CATERING to real estate taxes. The VILLAGE does not intend to report the existence of this License to any County officials because the agreement is not a lease and the VILLAGE believes that this transaction creates no event which will result in a real estate tax liability. 18. Notices. All notices hereunder shall be in writing. Such notices may be by personal delivery or by U.S. mail delivery. Personal delivery to VILLAGE shall be to the Village Manager or his designee. It is anticipated that Chris Thompson may be designated in writing by the Village Manager for certain decisions under this Agreement. Personal delivery to TASTY CATERING shall be made to: Thomas J. Walter. Mail delivery to VILLAGE shall be made by U.S. certified mail addressed to Chris Thompson, 800 Oak Brook Road, Oak Brook, IL 60523. Mail delivery to TASTY CATERING shall be made to the following address: 1900 Touhy Avenue, Elk Grove Village, IL 600007. Delivery of mail notice shall be deemed to have been received by the person to whom it is addressed, as above stated, on the second day after the date of the mailing of any such notice. 19. Permits (a) TASTY CATERING hereby agrees to hold a valid permit to operate a 10 food service establishment issued by the DuPage County Health Department for the duration of this Agreement and any Renewal Terms. (b) TASTY CATERING hereby agrees that it holds and will maintain a valid liquor license from both the State of Illinois and the VILLAGE and it will obtain a special event liquor license for every event it conducts at the Licensed Space. TASTY CATERING shall, prior to serving or selling alcoholic beverages on the Licensed Space, purchase insurance from an insurance company approved by the VILLAGE, and such approval shall not be unreasonably withheld, for liquor liability insurance which includes bodily limits of not less than $1,000,000 per occurrence, written on a claims made basis policy and which names the VILLAGE, its officials, employees, volunteers and agents as additional insured. A certificate of insurance and a copy of the policy endorsement demonstrating such coverage shall be submitted to the VILLAGE by TASTY CATERING at least 30 days prior to any event at which alcoholic beverages will be served and no later than ten (10) days before said insurance policy is renewed each year during the term of this Agreement. Certificates of insurance and/or coverage shall be in places required herein and include a written 90-day notice of cancellation or reduction of limits clause or any amendment. All insurance or self-insurance maintained by TASTY CATERING under this provision shall be primary and any insurance or self- insurance of the VILLAGE shall not contribute to it. (c) TASTY CATERING agrees to reimburse the VILLAGE for all permit/license application fees that may be incurred by the VILLAGE for any permit/license for the Licensed Space necessitated by TASTY CATERING use of the Licensed Space. 20. Authority to Execute. The VILLAGE hereby warrants and represents that the 11 person executing this Agreement on its behalf have been properly authorized to do so by its corporate authorities. TASTY CATERING hereby warrants and represents to the VILLAGE that the persons executing this Agreement on its behalf have the full and complete right,power, and authority to enter into this Agreement and to agree to the terms, provisions, and conditions set forth in this Agreement and that all legal actions needed to authorize the execution, delivery and performance of this Agreement have been taken. 21. Entire Agreement. This Agreement is intended by the parties as the final and binding expression of their agreement and as such a complete and exclusive statement of its terms. This Agreement supersedes all prior negotiations, representations and agreements between the parties,whether oral or written, relating to the subject matter of the Agreement. 12 IN TESTIMONY HEREOF,the parties hereto have extended this instrument and agreed to its provisions this day of March,2017. TASTY CRING VILLAGE OF OAK BROOK By: >' By: r ATTES ATTE 13 EXHIBIT A The VILLAGE hereby grants TASTY CATERING a license to use that portion of its Licensed Space for the purpose of providing catering service at the locations chosen by the Village at the CLUB which are normally utilized by caterers(the "Licensed Space"). 4851-6697-5552,v.2 14