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HomeMy WebLinkAboutR-24-48VILLAGE OF DEERFIELD RESOLUTION NO. R-24-48 A RESOLUTION APPROVING A LICENSE AGREEMENT WITH SHAKE SHACK ILLINOIS LLC FOR PARKING AT 645 OSTERMAN AVENUE WHEREAS, the Village is the record legal title holder of that parcel of real estate located at the address commonly known as 645 Osterman Avenue, Deerfield, Illinois ("Village Property'), which Village Property is improved with a parking lot; and WHEREAS, Shake Shack Illinois LLC ("Licensee') is the record title owner of that certain real property located at the address commonly known as 560 Waukegan Road, Deerfield, Illinois ("560 Waukegan Property'); and WHEREAS, Licensee operates a restaurant on the 560 Waukegan Property ("Restaurant'); and WHEREAS, the Licensee desires to use the Village Property for additional parking pursuant to a license agreement with the Village ("Agreement'); and WHEREAS, the Village Board has determined that entering into the Agreement with Licensee will serve and be in the best interest of the Village; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows: SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and made a part of, this Resolution as findings of the Village Board. SECTION TWO: APPROVAL OF AGREEMENT. The Agreement by and between the Village and Licensee is hereby approved in substantially the form attached to this Resolution as Exhibit A, and in a final form to be approved by the Village Manager and the Village Attorney. SECTION THREE: EXECUTION OF AGREEMENT. The Mayor and the Village Clerk are hereby authorized and directed to execute and attest, on behalf of the Village, the Agreement. SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and effect upon its passage and approval by a majority of the members of the Village Board. [SIGNATURE PAGE FOLLOWS] AYES: Benton, Berg, Goldstone, Jacoby, Metts-Childers, Oppenheim NAYS: None ABSTAIN: None ABSENT: None PASSED: July 1, 2024 APPROVED: July 1, 2024 RESOLUTION NO. R-24-48 t Daniel C. Shapiro, Mayor ATTEST: Kent S. Str et, Village Cl rk {00131301.11 4869-7393-8380, v. 1 EXHIBIT A AGREEMENT NON-EXCLUSIVE LICENSE AGREEMENT This License Agreement ("Agreement') is made and entered into as of thelilk day of 1ly , 2024 ("Effective Date'l by and between the VILLAGE OF DEERFIELD, an Illinois home rule municipal corporation ("Village'l, and SHAKE SHACK ILLINOIS LLC, a Delaware limited liability company ("Licensee"). SECTION ONE. RECITALS. A. The Village is the record legal title holder of that parcel of real estate located at the address commonly known as 645 Osterman Avenue, Deerfield, Illinois ("Village Property'l. B. Licensee is the tenant of that certain real property located at the address commonly known as 560 Waukegan Road, Deerfield, Illinois ("Licensee Property'l, which Licensee Property is adjacent to the Village Property. C. Licensee has had constructed, and plans to open and operate, a restaurant on the Licensee Property ("Restaurant'j. D. During the first couple of months of operation of the Restaurant, Licensee anticipates that it is possible that it may not have sufficient parking on the Licensee Property for all of its employees and customers. E. The Village Property is improved with a driveway and parking lot (collectively, "Parking Areas'l. F. Licensee desires to use, and the Village desires to allow Licensee to use, the Parking Areas to park vehicles operated by Licensee's employees and customers, all in accordance with and pursuant to the terms, conditions, and restrictions of this Agreement. G. The Village and Licensee desire to enter into this Agreement to memorialize their respective rights and responsibilities regarding the use of the Parking Areas by Licensee. SECTION TWO. GRANT OF LICENSE. A. Grant of License. Subject to the terms and conditions set forth in this Agreement, the Village hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, revocable license ("License") to use the Parking Areas on the Licensee Property to park vehicles operated by Licensee's employees and customers, and for no other uses, in the following manner: 1. Licensee, its employees and customers, shall have access to and use the Parking Areas between the hours of 9:00 am and 11:30 pm during the initial Term, as defined in Section 3 of this Agreement, except as specifically set forth to the contrary below. Licensee's employees and customers may not park or store vehicles on the Licensed Areas outside of the aforementioned hours; and 2. Licensee may not park vehicles in the driveway or the grass on the Village Property. 4869-1172-9591, v. 2 3. Licensee acknowledges and agrees that nothing in this Agreement is to be interpreted to provide a license to the Licensee to use or alter the Village Property in any way other than as expressly specified in this Agreement. B. Limitation of Interest. Agreement, Licensee does not, and will the Village Property or any part thereof. Except for the License granted pursuant to this not, have any legal, beneficial, or equitable interest in C. As -Is. Licensee hereby accepts the Village Property in its condition at the time of the execution of this Agreement, WHERE -IS and AS -IS, and subject to applicable requirements of law. Licensee acknowledges and agrees that: (i) the Village has made no representation or warranty as to the suitability of the Village Property for Licensee's use; and (ii) the Village will have no responsibility to maintain the Village Property in any particular condition or manner. Licensee waives any implied warranty that the Village Property is or will be suitable for Licensee's intended purposes. SECTION THREE. LICENSE TERM AND TERMINATION. A. Term. This Agreement is for a term of three months commencing on the Effective Date of this Agreement ("Term") and expiring on the last day of the third calendar month after the Effective Date. B. Termination at Will. The Village may terminate this Agreement and the License contained herein at will upon 48-hours' notice to Licensee and without cost to either Licensee or its respective successors or assigns. C. Surrender of the Village Property. Upon the expiration or termination of this Agreement, Licensee must, at its sole cost and expense: (1) remove from the Parking Areas any vehicles; and (2) restore the Village Property to its condition existing as of the Effective Date of this Agreement, notwithstanding any ordinary wear and tear. SECTION FOUR. VILLAGE USE OF THE VILLAGE PROPERTY. The Village may use the Village Property for site remediation, investigation, mitigation, inspections, and other engineering and construction related studies, surveys, investigations, and inspections (individually a "Village Use", collectively, the "Village Uses'). During any Village Use Licensee may not have access to the Village Property. The Village will provide at least two days' notice to Licensee prior to commencing any Village Use that will restrict Licensee's use of the Village Property; provided, however, in the event of an emergency that requires a Village Use, the Village will provide notice to Licensee as soon as practicable. SECTION FIVE. LICENSEE USE OF THE VILLAGE PROPERTYS. Licensee agrees to use the Village Property in strict accordance with the following: A. Permitted Activities and Uses; Compliance with Laws. 1. Licensee may use the Parking Areas solely to park vehicles operated by Licensee's employees and customers. Any use by Licensee of the Parking Areas that is not E 4869-1172-9591, v. 2 related to the parking of vehicles operated by Licensee's employees and customers is strictly prohibited. 2. Licensee must keep the Village Property clean of all garbage at all times. 3. Licensee may not do or permit anything to be done in the Village Property which in any way creates a nuisance or damages the Village Property. 4. Licensee's use and occupancy of the Village Property must at all times comply with all applicable federal, State of Illinois, and Village laws, codes, ordinances, statutes, rules and regulations. 5. Licensee's use and occupancy of the Village Property must not, in any manner adversely and materially impact or interfere with the Village's operations, including without limitation, construction, maintenance and repair of the Village Property, as determined in the sole discretion of the Village Manager. B. Maintenance of the Village Property. Licensee must abate any hazardous condition on the Village Property, caused by Licensee, its employees and customers within 24 hours of receiving notice of such condition from the Village. C. Supervision. Licensee will be solely responsible for supervising its employees and customers. Licensee acknowledges and agrees that the Village and its employees, officers, officials, agents, attorneys, and representatives will have no responsibilities, duties, or obligations whatsoever to supervise or monitor Licensee's use of the Village Property during the applicable term of this Agreement. SECTION SIX. INSURANCE. A. Insurance. Licensee, at its own cost and expense, must maintain the following insurance coverages issued by a company with at least an "A Minus" rating from the most recently published Alfred M. Best and Company Guide and authorized to do business in the State of Illinois: General Liability insurance with limits of liability coverages of no less than $1,000,000 each occurrence and $2,000,000 annual aggregate. B. Additional Insured. With respect to the insurance policy required to be maintained by Licensee pursuant to Section 6.A of this Agreement: 1. The Village of Deerfield and its officials, officers, agents and employees (collectively, "Additional Insureds") must each be named as additional insureds on the general liability insurance coverage. 2. Licensee must provide a copy of a certificate of insurance evidencing compliance with this Section 6 ("COI) within 72 hours of executing this Agreement in accordance the Notice provision set forth in Section 12.A of this Agreement. Failure to provide the COI by this deadline may result in termination of this Agreement pursuant to Section 3 of this Agreement. C. Licensee Liability. The procuring of the insurance required under this Section 6 will be solely for the purpose of performing Licensee's obligations hereunder. Licensee will remain fully liable and responsible for all of its liabilities and obligations assumed under this Agreement, whether or not the insurance coverages are sufficient in amount, quality, or coverage 3 4869-1172-9591, v. 2 to protect against such liabilities, and Licensee must pay and make good all such obligations to the full extent such insurance does not cover them. SECTION SEVEN. LIENS. A. At all times during the term of this Agreement, Licensee will not allow the Village Property any part thereof, to become subject to any lien, claims or demands, due to any work performed by Licensee or other circumstance within Licensee's control. B. If any lien is filed against the Village Property for work done for, or material furnished to, Licensee, Licensee will, at its sole cost and expense and at no cost to the Village, cause such lien to be discharged of record within 30 days after the date of filing of the lien. C. Licensee will, and does hereby, indemnify and hold the Village harmless against any and all liens imposed upon the Village Property in violation of this Section 7. ECTION EIGHT. INDEMNIFICATION, WAIVER OF LIABILITY, ASSUMPTION OF RISK. A. Indemnification. Licensee will, without regard to the availability or unavailability of any insurance of the Village, indemnify the Village and its respective officers, officials, employees, agents, attorneys, and representatives against, and hold the Village and its officers, officials, employees, agents, attorneys, and representatives, harmless from, any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses (including reasonable attorneys' fees and administrative expenses), that may be sustained or incurred as a result of or in connection with Licensee's use or occupancy of the Village Property or with the performance of, or failure to perform, its obligations under this Agreement, whether or not due or claimed to be due in whole or in part to the active, passive, or concurrent negligence of the Village, but not including lawsuits, claims, demands, damages, liabilities, losses, and expenses (including attorneys' fees and administrative expenses) sustained or incurred as a result of the negligence or due to the willful misconduct of the Village. Licensee's obligations required pursuant to this Section &A will survive the termination of this Agreement. B. Assumption of Risk. Licensee agrees to assume the full risk of any injuries, including death, and all costs, damages, and losses that Licensee or its employees, agents, contractors, officers, representatives, or customers may sustain while in the Village Property or as a result of the condition, maintenance, and use of the Village Property. C. WAIVER OF LIABILITY. LICENSEE WILL, AND DOES HEREBY, WAIVE, RELEASE, AND RELINQUISH ALL CLAIMS OF EVERY KIND, KNOWN AND UNKNOWN, PRESENT AND FUTURE, THAT LICENSEE MAY HAVE AGAINST THE VILLAGE AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, ARISING OUT OF, CONNECTED WITH OR IN ANY WAY RELATED TO THE USE OF THE VILLAGE PROPERTY, OR AS A RESULT OF THE CONDITION, MAINTENANCE, AND USE OF THE VILLAGE PROPERTY. SECTION NINE. ENFORCEMENT. A. General. The parties may, in law or in equity, by suit, action, mandamus, or any other proceeding, enforce this Agreement. Licensee agrees that it will not seek, and does not have the right to seek, to recover a judgment for monetary damages against the Village, or 4 4869-1172-9591, v. 2 any elected or appointed officials, officers, employees, agents, representatives, engineers, or attorneys of the Village, on account of the negotiation, execution or breach of any of the terms and conditions of this Agreement. B. Prevallinci Party. In the event of a judicial proceeding brought by one party against the other party, the prevailing party in such judicial proceeding will be entitled to reimbursement from the unsuccessful party of all costs and expenses, including reasonable attorneys' fees, incurred in connection with such judicial proceeding. SECTION TEN. SECURITY. Licensee acknowledges and agrees that, while the Village may patrol the Village Property from time to time, the Village is not obligated to provide any security services with respect to the Village Property. Licensee acknowledges and agrees that the Village will not be liable to Licensee for, and Licensee waives any claim against the Village with respect to, any loss by theft, vandalism, vehicle crash, or any other damage suffered or incurred by Licensee or its employees and customers in connection with Licensee's use of the Village Property. SECTION ELEVEN. GENERAL PROVISIONS. A. Notices. All notices required or permitted to be given under this Agreement must be in writing and may be given by the parties by one of the following methods: (1) personal delivery, (2) deposit in the United States mail, enclosed in a sealed envelope with first class postage thereon, or (3) deposit with a nationally recognized overnight delivery service, and which method must offer proof of delivery, addressed as stated in this Section 12.A. The address of either party may be changed by written notice to the other party. Any mailed notice will be deemed to have been given and received upon receipt by the party to be notified. Notices and communications to the parties must be addressed to, and delivered at, the following addresses: To the Village: Village of Deerfield 850 Waukegan Road Deerfield, Illinois 60015 Attention: Village Manager with a copy to: Elrod Friedman LLP 325 N. LaSalle Street, Suite 450 Chicago, Illinois 60654 (312) 528-5296 Attention: Benjamin Schuster 5 4869-1172-9591, v. 2 To Licensee: Shake Shack Illinois LLC (a/k/a #1471 Deerfield) 225 Varick Street, 3rd Floor New York, New York 10014 Attention: Real Estate Counsel B. Time of the Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. C. Ri hts Cumulative. Unless expressly provided to the contrary in this Agreement, each and every one of the rights, remedies, and benefits provided by this Agreement shall be cumulative and shall not be exclusive of any other rights, remedies, and benefits allowed by law. D. Non -Waiver. The Village will not be under any obligation to exercise any of the rights granted to it in this Agreement. The failure of the Village to exercise at any time any such right will not be deemed or construed to be a waiver thereof, nor will such failure void or affect the Village's right to enforce such right or any other right. E. Governing Law. This Agreement will be governed by, construed, and enforced in accordance with the internal laws, but not the conflicts of laws rules, of the State of Illinois. All judicial actions relating to any interpretation, enforcement, dispute resolution or any other aspect of this Agreement must be brought in the 191h Judicial Circuit Court of the State of Illinois. Any matter brought pursuant to the jurisdiction of the federal courts must be brought in the United States District Court of the Northern District of Illinois. F. Severabilit . It is hereby expressed to be the intent of the parties that should any provision, covenant, agreement, or portion of this Agreement or its application to any person or property be held invalid by a court of competent jurisdiction, the remaining provisions of this Agreement and the validity, enforceability, and application to any person or property will not be impaired thereby, but the remaining provisions will be interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of this Agreement to the greatest extent permitted by applicable law. G. Interpretation. This Agreement will be construed without regard to the identity of the party who drafted the various provisions of this Agreement. Moreover, each and every provision of this Agreement will be construed as though all parties to this Agreement participated equally in the drafting of this Agreement. As a result of the foregoing, any rule or construction that a document is to be construed against the drafting party will not be applicable to this Agreement. H. Entire Agreement. This Agreement constitutes the entire agreement of the Parties relative to the subject matter of this Agreement, expressly superseding all prior agreements and negotiations between and among the Parties, whether written or oral, relating to the subject matter of this Agreement. I. Amendments and Modifications. No amendment or modification to this Agreement will be effective until it is reduced to writing and approved and executed by the Village and Licensee in accordance with all applicable law. A 4869-1172-9591, v. 2 J. No Third Party Beneficiaries. No claim as a third party beneficiary under this Agreement by any person, firm, or corporation will be made, or be valid, against the Village or Licensee. K. No Joint Venture. It is hereby understood and agreed that nothing contained in this Agreement will be deemed or construed as creating the relationship of principal and agent, partnership or joint venture between the parties to this Agreement, it being agreed that no provision of this Agreement and no acts of the parties to this Agreement will be deemed to create any relationship between the parties other than the relationship set forth specifically by the terms of this Agreement. L. Assi-gnments. Licensee acknowledges and agrees that it may not, and does not have the right to, assign this Agreement or any of its rights hereunder, except upon the prior written consent of the Village, which consent the Village may withhold in its sole and absolute discretion. M. Counterparts. This Agreement may be executed in counterparts and all so executed will constitute one and the same Agreement. IN WITNESS WHEREOF, the Parties have hereunto set their hands on the date first above written. ATTEST: 2 �A 17.... - Andrew Lichterman ATTEST: By--L� Fi-+ vvA4W-W Its: VILLAGE OF DEERFIELD, an Illinois home rule municipal corporation By: Kent Street Its: Village Manager SHAKE SHACK ILLINOIS LLC, a Delaware limited liability company - By: Andrew McCaughan Its: Chief Development Officer 7 4869-1172-9591, v. 2