Contract Terms + Conditions
The following are the standards, terms, conditions and considerations for all vendors seeking to use the Boombox space.
ARTICLE I - Sublicensed Property - BOOMBOX
1. BOOMBOX Sublicense. LDC hereby grants Sublicensee a revocable and non-transferable use of the BOOMBOX (as described on Exhibit B hereto) located on the Designated Peoples Plaza and the public rights of way appurtenant thereto (the “Boombox Sublicense”). The Boombox Sublicense is subject to the following: (a) the Latent Design/CDOT Agreement, including approval of this Agreement by the City of Chicago; and (b) all zoning regulations, restrictions, rules and ordinances, building or use restrictions and other laws and regulations now in effect or hereafter adopted by any governmental authority having jurisdiction thereof.
Sublicensee represents and warrants that it has obtained or will obtain all required business licenses from the required governmental departments to operate and sell goods.
Sublicensee represents and warrants to LDC that Sublicensee has made its own investigation and examination of all relevant data relating to or affecting the BOOMBOX and is relying solely on its own judgment in entering into this Agreement; specifically, and without limitation, Sublicensee represents and warrants to LDC that Sublicensee has had an opportunity to measure the actual dimensions of the BOOMBOX and agrees to the square footage figures set forth herein.
2. Boombox Grant Subject to Latent Design/CDOT Contract. Sublicensee acknowledges and agrees to be bound by and adhere to the terms of the Latent Design/CDOT Contract O2015-2627 that refer or relate to Sublicensee, including but not limited to (a) any and all applicable terms that refer or relate to Sublicensees and Temporary Vendor Structures, (b) the Salaries and Wages Provisions, as set forth in §2.11 therein, (c) the Records Retention Provisions, as set forth in §2.16 therein, (d) the Confidentiality Provisions, as set forth in §2.17 therein, (e) the Assignments and Subcontracts Provisions, as set forth in §2.18 therein, (f) the Wrap Advertising Provisions, as set forth in §4.6(c), and (g) Article 6 – Compliance with All Laws.
Sublicensee further expressly acknowledges and agrees that in the event the City of Chicago terminates the Latent Design/CDOT Contract, this Agreement is hereby deemed immediately terminated.
3. LDC’s and Sublicensee’s Work. LDC shall deliver to Sublicensee the BOOMBOX in substantially the condition as reflected in Exhibit B (“LDC’s Work”). All other improvements to the BOOMBOX shall be provided by Sublicensee at its own cost and expense, in accordance with plans and specifications approved by LDC (and the City of Chicago), in a good and workmanlike manner, and shall be in compliance with all applicable building codes, laws, ordinances and regulations (the “Sublicensee’s Work”). Sublicensee shall, at its expense, remove from the BOOMBOX and from the public rights of way appurtenant thereto any and all trash that may accumulate in connection with Sublicensee’s Work.
4. Delivery Date. LDC and Sublicensee agree that the term of this Agreement shall begin as of (the “Delivery Date”), and that the Sublicensee’s Work (if any) shall be performed after the Delivery Date. Sublicensee taking possession of the BOOMBOX shall be conclusive evidence that the BOOMBOX was in good and satisfactory condition and that LDC’s Work was fully completed in accordance with the terms of this Agreement.
5. Use. Sublicensee shall operate its business in the BOOMBOX during the Term of this Agreement for the purpose as stated in the vendor application and for no other purpose without LDC’s prior written consent.
6. LDC Access. LDC reserves the right to access to the BOOMBOX for any purpose that shall not be inconsistent with the rights herein granted to Sublicensee by providing 24 hour’s written notice to LDC.
ARTICLE II - Term of Sublicense
1. Term. The term of this Agreement (the “Term”) shall commence on the Delivery Date, and shall expire on the Handover Date. Sublicensee acknowledges and agrees that LDC may revoke and or terminate this Agreement at any time prior to the expiration of the Term by giving Sublicensee five (5) business days’ prior written notice of LDC’s intention to terminate (the “LDC Termination Option”).
2. Surrender. Upon the expiration of the Term or five (5) business days following LDC’s exercise of the LDC Termination Option, Sublicensee shall vacate the BOOMBOX without the necessity of any further notice. Sublicensee shall deliver and surrender to LDC possession of the BOOMBOX broom clean and in good condition and repair. At the expiration of the Term or five (5) business days following LDC’s exercise of the LDC Termination Option, Sublicensee, at its own cost and expense, shall remove all of Sublicensee’s property and all alterations, additions and improvements and shall repair all damage to the BOOMBOX caused by such removal and restore the BOOMBOX to the condition in which it existed on the Delivery Date. Any property not so removed at the expiration of the Term or five (5) business days following LDC’s exercise of the LDC Termination Option shall be deemed to have been abandoned by Sublicensee and may be retained or disposed of by LDC, as LDC shall desire, but such abandonment shall not relieve Sublicensee of its obligations to remove and repair and restore at its own expense if required by LDC. Sublicensee’s obligation to observe and perform this covenant shall survive the expiration or termination of this Agreement.
ARTICLE III - Payment
1. Weekly Payment. Sublicensee agrees, throughout the Term, to pay LDC the amount as stipulated (the “Weekly Payment”). The Weekly Payment must be made on the Delivery Date and on the first of the next successive week thereafter during the Term.
2. Late Charge. In the event that any Weekly Payment is not paid when due, such past due payments shall incur a late fee of $25 per day each from the date due until paid.
3. Taxes and Fees. Sublicensee agrees to timely pay to the LDC and/or the City of Chicago, as and when due, any and all taxes, assessments, fees, and charges levied, assessed or imposed by a governmental unit upon this Agreement, or any property related thereto, including but not limited to all permit fees and charges of a similar nature for Sublicensee’s performance of the terms of this Agreement. Failure of Sublicensee to pay Taxes and Fees when due, except to the extent that Sublicensee is allowed to withhold payment while contesting the amounts due, will constitute an Event of Default.
ARTICLE IV - Insurance
1. LDC Representations and Warranties. LDC represents and warrants that it has obtained all types of insurance required and mandated by the Latent Design Corporation/CDOT Contract.
2. Sublicensee Requirements. Sublicensee shall procure, maintain, or cause to be procured and maintained, at Sublicensee’s sole cost and expense, during the entire term of this Agreement, the types and amounts of insurance set forth below with insurance companies authorized to do business in the State of Illinois and agrees that it will have (at all times covered by this Agreement) insurance in the following limits (the “Policy”):
(a) Worker’s Compensation and Employer’s Liability Insurance – Worker’s Compensation Insurance, as prescribed by applicable law, covering all employees who are to provide a service under this Agreement, and Employer’s Liability Insurance with limits of not less than $500,000 each accident, illness or disease.
(b) Commercial General Liability (Primary and Umbrella) – Commercial General Liability Insurance or equivalent with limits of not less than $1,000,000 per occurrence for bodily injury, personal injury and property damage liability. Coverages must include the following: All premises and operations, products/completed operations, separation of insured, defense and contractual liability (not to include Endorsement CG 21 39 or equivalent).
(c) Automobile Liability (Primary and Umbrella) – When any motor vehicles are used in connection with Sublicensee’s performance under this Agreement, Sublicensee must provide automobile liability insurance with limits of not less than $1,000,000 per occurrence for bodily injury and property damage.
(d) Professional Liability – When any project/site managers, other management professionals or any other consultants perform services in connection with this Agreement, Professional Liability Insurance covering acts, errors or omissions must be maintained with limits of not less than $1,000,000. When policies are renewed or replaced, the policy retroactive date must coincide with, or precede start of services on the Agreement. A claims-made policy which is not renewed or replaced must have an extended reporting period of 2 years.
Subcontractors performing professional services for Sublicensee must maintain limits of not less than $1,000,000 with the same terms in this subsection.
(e) Sublicensee must name LDC and the City of Chicago as additional insureds on a primary, non-contributory basis for any liability arising directly or indirectly from Sublicensee’s performance of its obligations under this Agreement.
Latent Design Corporation
900 N. Ashland Ave., Chicago, IL 60622
City of Chicago
Chicago Department of Transportation
121 N. LaSalle St. Room 905, Chicago, IL 60602
(f) Valuable Papers – When any media, data, reports, records, files and other documents are produced or under this Agreement. Valuable Papers Insurance must be maintained in an amount to insure against any loss whatsoever, and must have limits sufficient to pay for the recreation and reconstruction of such records.
(g) Blanket Crime – Sublicensee must provide Blanket Crime coverage covering all persons handling funds under this Agreement against loss by dishonesty, robbery, burglary, theft, destruction, or disappearance, computer fraud, credit card forgery, and other related crime risks. The policy limit must be written to cover losses in the amount of maximum monies collected, received and on premises at any given time.
3. Sublicensee shall deliver to LDC all Certificates of Insurance required hereunder. The receipt of any certificate does not constitute agreement by LDC that the insurance requirements in this Agreement have been fully met or that the insurance policies indicated on the certificate are in compliance with all requirements set forth herein. The failure of LDC to obtain certificates or other evidence of insurance from Sublicensee shall not be deemed a waiver by LDC of the insurance requirements set forth herein. Sublicensee shall include a provision in the Policy requiring 30 days’ advance notice to LDC prior to cancellation or lapse, or any change of the Policy. Non-conforming insurance, or failure to submit a Certificate of Insurance evidencing such coverages, shall not relieve Sublicensee of the obligation to obtain insurance as specified herein. Non-fulfillment of the insurance conditions constitutes an Event of Default (as defined herein.
4. Sublicensee agrees that insurers shall waive their rights of subrogation against LDC, its employees, elected officials, agents, and representatives. Sublicensee expressly understands and agrees that any coverages and limits furnished by it shall in no way limit Sublicensee’s liabilities and responsibilities specified in this Agreement or by law. Sublicensee expressly understands and agrees that its insurance is primary and any insurance or self-insurance programs maintained by LDC shall not contribute with insurance provided by Sublicensee under this Agreement. The required insurance shall not be limited by any limitations expressed in the indemnification language herein or any limitation placed on the indemnity therein given as a matter of law. To the extent applicable, Sublicensee shall require all contractors and subcontractors to maintain the above-described coverage, or Sublicensee may provide such coverage for its contractors and subcontractors. LDC shall have no responsibility to provide insurance or security for the property, material, supplies, or equipment to be used by Sublicensee or, to the extent applicable, any of its contractors or subcontractors in connection with Sublicensee’s performance of its obligations hereunder.
5. Acknowledgment of City of Chicago’s Authority Regarding Insurance. Sublicensee acknowledges and agrees that the City of Chicago, Department of Finance, Office of Risk Management, maintains the right to modify, delete, alter or change these requirements.
ARTICLE V - Operations
1. Operating Covenant. Sublicensee shall not abandon or leave vacant the BOOMBOX, and shall not permit the sublicense or occupancy of the BOOMBOX by any party other than Sublicensee, its agents, employees and invites, and shall:
(a) Conduct no auction, fire, going-out-of-business or bankruptcy sales or similar practice.
(b) Display no merchandise outside the BOOMBOX nor in any way obstruct the public rights of way without prior written consent of the LDC; and, store all trash and refuse in appropriate containers within the BOOMBOX and attend to the daily disposal thereof in the manner designated by LDC. Tenant shall not burn any trash or rubbish in or about the BOOMBOX or anywhere else within the confines of the Designated People Plaza or the public rights of way appurtenant thereto.
(c) Keep the BOOMBOX in a careful, safe, clean and proper manner; and not permit any rubbish or refuse of any nature emanating from the BOOMBOX to accumulate in the Designated Peoples Plaza and the public rights of way appurtenant thereto.
(d) Prevent the BOOMBOX from being used in any way which will injure the reputation of the LDC or from being used in any way which may be a nuisance, annoyance, or inconvenience, including, without limiting the generality of the foregoing, the operation of any instrument or apparatus or equipment or the carrying on of any trade or occupation which emits an odor discernible outside of the BOOMBOX or which may be deemed offensive in nature or noise that violates the Chicago Environmental Noise Ordinance, §11-4-2700 et seq.
(e) Keep the BOOMBOX continuously and uninterruptedly open for business and adequately staffed during agreed upon hours of operation.
(f) Carry in the BOOMBOX a full and complete stock of seasonable merchandise offered for sale at competitive prices and maintain adequate equipment and personnel for the efficient service of its customers, and in general, employ its best judgment, efforts and abilities to operate the business conducted in the BOOMBOX in a manner calculated to produce the maximum volume of sales obtainable.
(g) Promptly comply with all laws, ordinances, orders, rules, regulations and requirements of federal, state, county and city governments regulating the use and occupancy of the BOOMBOX.
(h) Install no signs in or upon the BOOMBOX, on the Designated Peoples Plaza, or the public right of ways appurtenant thereto without the prior written consent of LDC and in accordance with §4.6 of the Latent Design/CDOT Contract.
(i) Not use, occupy, suffer or permit the BOOMBOX or any part thereof to be used or occupied for any purpose contrary to law.
(j) All articles, merchandise, displays, decorations or the like and the arrangement, style, color, and general appearance thereof, in the interior of the BOOMBOX that shall be visible from the exterior thereof, including, without limitation, window displays, advertising matter, signs, merchandise, and fixtures, shall be maintained in such a manner as not to detract from the character and standards of the Designated Peoples Plaza.
2. Environmental Compliance. Sublicensee and its agents and employees shall use the BOOMBOX and conduct any operations therein in compliance with all applicable federal, state, and local environmental statutes, regulations, ordinances and any permits, approvals or judicial or administrative orders issued thereunder. Sublicensee covenants that:
(a) No Hazardous Substances shall be generated, treated, stored or disposed of, or otherwise deposited in or located on the BOOMBOX;
(b) No activity shall be undertaken in the BOOMBOX which would cause:
(i) the BOOMBOX to become a hazardous waste treatment, storage or disposal facility within the meaning of, or otherwise cause the Demised Premises to be in violation of the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. Section 6901, et. seq., or any similar state law or local ordinance;
(ii) a release or threatened release from any source in the BOOMBOX of Hazardous Substances from the BOOMBOX within the meaning of, or otherwise cause the BOOMBOX to be in violation of, the Comprehensive Environmental Response Compensation and Liability Act, as amended (“CERCLA”), 42 U.S.C. Section 9601, et. seq., or any similar law or local ordinance or any other environmental law; or
(iii) the discharge of pollutants or effluents into any water source or system, or the discharge into the air of any pollution emissions, which would require a permit under the Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. Section 1251, et. seq., or the Clean Air Act (“CAA”), 42 U.S.C. Section 7401, et. seq., or any similar state law or local ordinance;
(c) There shall be no substances or conditions in or on the BOOMBOX that may support a claim or cause of action under RCRA, CERCLA, any other federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements or under any common law claim relating to environmental matters, or could result in recovery by any governmental or private party or remedial or removal costs, natural resources damages, property damages, damages in personal injuries or other costs, expenses or damages, or could result in injunctive relief arising from any alleged injury or threat of injury to health, safety, or the environmental; and
(d) There shall be no storage tanks or release or threatened releases from such tanks located on, in or around the BOOMBOX.
For purposes of this Agreement, “Hazardous Substances” shall mean any and all hazardous or toxic substances, hazardous constituents, contaminants, wastes, pollutants or petroleum (including without limitation crude oil or any fraction thereof), including without limitation hazardous or toxic substances, pollutants and/or contaminants as such terms are defined in CERCLA or RCRA; asbestos or material containing asbestos; petroleum products and PCBs, PCB articles, PCB containers PCB N277.
Sublicensee shall indemnify and hold LDC harmless for any cost, loss or liability it incurs as a result of the foregoing.
3. Security. Sublicensee is responsible for properly securing all activities in, on or around the BOOMBOX during the Term of this Agreement. Sublicensee agrees that no illegal drugs of any kind or nature shall be sold, given away, or consumed, in, on or around the BOOMBOX, the Designated Peoples Plaza, and the public rights of way appurtenant thereto. There shall be no smoking allowed on or around the installation and Designated People Plaza.
ARTICLE VI - Default
1. Event of Default/LDC’s Sole Option to Terminate. Should Sublicensee breach any of the provisions in this Agreement (an “Event of Default”), Sublicensee agrees that LDC may at any time declare the Sublicensee in Default and terminate Sublicensee’s access to the BOOMBOX, the Designated Peoples Plaza, or the public rights of way appurtenant thereto.
2. Payments Due. In such case that LDC decides to terminate this Agreement for an Event of Default, Sublicensee acknowledges and agrees that (a) LDC is entitled to all Payments for the duration of the Term, and (b) any damages caused by the Event of Default.
3. Refunds are provided to Sublicensee on the following terms:
45 days or more notice - full refund
15 - 44 days notice - 50% refund
14 days or less notice - no refund
ARTICLE VII - Liability/Indemnification
1. Liability/Indemnification. Sublicensee agrees for itself, and any contractors, employees, guests or invitees to indemnify and hold LDC harmless from and against any and all claims, suits, causes of action or damages arising from Sublicensee’s performance of services associated with this Agreement. In the event of a breach of this Agreement by LDC, LDC shall only be liable to Sublicensee to the extent of any Payment made to LDC by Sublicensee.
2. Sublicensee Reimbursement. Sublicensee agrees that it shall reimburse LDC for any and all costs and expenses, including reasonable attorneys’ fees that LDC incurs in connection with the enforcement of its rights under this Agreement.
ARTICLE VIII - General Provisions
1. Notice. Any notice required or permitted to be served under this Agreement may be served by registered mail or in person as follows:
If to LDC:
Latent Design Corporation
900 North Ashland Avenue
Chicago, Illinois 60622
Attn: Katherine Darnstadt
with a copy to:
Pokorny & Marks, LLC
6 West Hubbard Street, Suite 700
Chicago, Illinois 60654
Attn: Jonathan D. Rosen
Either party may change the address for notice by notice to the other party. Notice served under this Agreement may be by United States certified mail, return receipt requested, with postage prepaid. Notice may be delivered by hand or by any other receipted method or means prescribed by law. For purposes of this Agreement, notices shall be deemed to have been “given” or “delivered” on personal delivery thereof or forty-eight (48) hours after having been deposited in the United States mail as provided in this Agreement.
2. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements, negotiations and discussions. This Agreement may not be modified or amended in any manner without the prior written consent of the parties hereto. No term of this Agreement may be waived or discharged orally or by any course of dealing, but only by an instrument in writing signed by the party benefited by such term.
3. Exhibits. All exhibits referred to herein and attached hereto shall be deemed part of this Agreement.
4. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. Sublicensee irrevocably submits itself to the original jurisdiction of those courts located within the County of Cook, State of Illinois, with regard to any controversy arising out of, relating to, or in any way concerning the execution or performance of this Agreement.
5. Headings. The headings of the various sections and subsections of this Agreement have been inserted for convenience of reference only and shall not in any manner be construed as modifying, amending or affecting in any way the express terms and provisions hereof.
6. Waiver. Waiver by LDC or Sublicensee with respect to any breach of this Agreement shall not be considered or treated as a waiver of the rights of the respective party regarding any other default or with respect to any particular default, except to the extent specifically waived by LDC or Sublicensee in writing. No delay or omission on the part of a party in exercising any right shall operate as a waiver of such right or any other right unless pursuant to the specific terms hereof. A waiver by a party of a provision of this Agreement shall not prejudice or constitute a waiver of such party’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. Neither prior waiver by a party, nor any course of dealing between the parties hereto, shall constitute a waiver of any such party’s rights or of any obligations of any other party hereto as to any future transactions.
7. Severability. If any term of this Agreement or any application thereof is held invalid or unenforceable, the remainder of this Agreement shall be construed as if such invalid part were never included herein and this Agreement shall be and remain valid and enforceable to the fullest extent permitted by law.
8. Authority. The parties represent and warrant to each other that they have the full right and lawful authority to enter into this Agreement.