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    Park Grill ruling

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    Park Grill Ruling

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    Park Grill ruling

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    IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, COUNTY DEPARTMENT, CHANCERY DIVISION ‘THE CITY OF CHICAGO, ‘Municipal Corporation, Plain, % Case No: 11 CH 41075 ‘THE CHICAGO PARK DISTRICT, Judge Moshe Jacobins MILLENNIUM PARK JOINT VENTURE, LLC, and MILLENNIUM PARK MANAGEMENT VENTURE, LLC, Defendants MILLENNIUM PARK JOINT VENTURE, LLC and MILLENNIUM PARK, MANAGEMENT VENTURE, ULC, Counter-Plaintifts, ‘THE CITY OF CHICAGO, a Municipal Corporation, and THE CHICAGO PARK DISTRICT, Counter-Defendants MEMORANDUM OPINION AND ORDER ‘The teal of this challenging and extremly complicated case was exhaustive and weighty ‘The tral spanned sixty-five days and involved te live testimony ofthity-one witnesses, the fore the operator cn exe the option, anders pally equ the petro py for aed oe commit «ceri amount io eaptl improvements beeate remodels often o higher ales and nt, higher erenage ent paynets, 28 Guse further opined that a commercially reasonable lease does not provide forthe percentage rent to decrease as revenues increase. The Concession Agreement, however, calls for the percentage rent to deerease after revenues reach a certain threshold. Guse also opined that a commercially reasonable tenant allowance* fora restaurant like the Park Grill would have been a fixed amount. Stone testified that it was unusual for rent abatement to be determined by net profits or net income, and he has never seen a tenant allowance as high asthe Park Gril'seective tenant allowance under the Concession ‘Agreement. The Concession Agreement’s rent abatement provision, which provides for the ‘tenant allowance, i tied to the Park Grill’s hard costs of construction and net revenues, which are under the Park Grill’s control and secordingly can be manipulated. Guse opined that under a commercially reasonable restaurant lease during the relevant time period, the tenant is responsible for paying for common area maintenance (“CAM”), real estate taxes, insurance, utilities, and garbage removal, in addition to ren. Stone testified that (CAM charges are appropriately included in leases for restaurants like the Park Grill. He also agreed that restaurant landlords do not typically pay for tenants’ garbage removal and utilities. ‘The Concession Agreement, however, does not require the Park Grill to pay for CAM, garbage removal, natural gas, and property taxss. Gary Frantzen (“Frantzen’), a financial analyst specializing in valuations of businesses, ‘business interests, and business assets and liabilities, was accepted by the Court as the Park Grill Parties’ expert witness in the area of business valuations. Frantzen arived atthe following valuations as of August 1, 2013: (1) for the Joint Venture and the Management Venture combined, $12,369,000; (2) for the Joint Venture alone, $9,380,000 (3) forthe investors” interest “Landlords oF ul-servce, white besos tauren ypicly provide her tenons wih toast allowsnoe to pay {ir eashold improvements tht are aed, atively peed! in nature, and expected to rena on he premises, after the emnination ofthe eae 29 ‘inthe Joint Venture, $6,462,005 (4) forthe managers interes inthe Join Ventre, $2,918,000; (6) forthe Management Venture, $5,907,00 including its interest n the Joint Venture, and $2,980,000 excluding its interes in the Joint Venture, Frantzen considered the value of the Levy “Transaction as verification ofthe reasonableness of his valuations. His analysis included the somewhat noel theory thatthe City's negative actions against the Joint Venture—the February 2005 Leter and the tax assessment tigation, which the Pare Gil Parties atibute to the City’s ‘il will—had significantly diminished the Pak Grill’ value, Fantzen adjusted the actual value "upwards o restore its rue wort to adjust forthe City’s negative ations Daniel Van Viest Van Vleet”), financial analyst specializing in the valuation of businesses and business enterprises, was accepted by the Court asthe Park Distit’s expert, witness in the area of business valuations. Van Vleet tested tht Frantzen’s values were substantially overstated asa result of flawed methodology. Van Vleet conluded tat, as of ‘August 1, 2013, the Joint Venture was valued st $2,600,000, and the Management Venture was ‘valued at $2,700,000. Van View opined that the Levy Transation doesnot provide a reasonable cstimation of value because it was never consummated and came before the Ptk Gril’ decline ‘nperformance and the August 2013, valuation date, Van Vleet cast substantial dobt on Franten’s analysis and is adjudged by the Couto be persuasive. TIL Whether the Concession Agreement Was Vat AD Initio ‘The City and the Joint Vere seek competing declaratory judgments as tothe validity of| the Concession Agreement. Before considering the meis ofthe Pak Grill Parties’ equitable defenses tothe City's claim fr declaratory rele, the Court must first determine whether the Concession Agreement was void ob initio. The City contends that the Concession Agreement ‘was void ab initio because the Park District did not own or control Parcels 3 and 4 and no suthorized City authority gave approval for the contract. Iinois courts have long made a distinction between municipal contracts that are statutorily prohibited or illegal and municipal contracts that ae wlara vires in a narovver sense: Contracts entered into by a municipality which are prohibited by express provision of the law, or which under no circumstances could be legally entered into, are uniformly held to be ultra vires and void, and cannot te rendered valid, as against the snunicipality, by receipt of the consideration or other matter of estoppel, and cannot be rendered valid and binding by any act of the municipality ratifying the same. There is another class of municipal contracts which are usually classed as ulira vires which are only so in a limited or secondary sense These are contacts which are within the general powers of the corporation but which are void because the power was irregularly exercised, or where some Portion of an eatire contract exceeds the corporate powers but other portions of he contract are within the corporate powers. *** Contrects made by a ‘municipality which are merely ulta vires in a modified or secondary sense may be ratified and any defect in the manner of exercising the power thereby cured, ‘and the municipality may likewise esop iself by acts in pas from setting up the defense of uta vites. People ex rel. Stead v. Spring Lake Drainage and Levee Dist, 253 Ill. 479, 00-01 (1912) (emphasis added) (citations omitted); accord Johnson v. Hosp. Ser. Plan of Nut, 135 A.2d 483, 486 (NJ. 1957) ("The ratifying power exists when the deficiency invalidating the municipal contract consists only inthe lack of proper authorization on the part ofthe party executing itin ‘behalf of the municpality.") Thus, “itis necessary to distinguish a contmet with a local ‘government whichis the result ofan illegal exercise of an authorized power from one which is illegal because ofa statutory disqualification to make a contractor to crete liability.” ANTIEAU (oN LOCAT, GOVERNMENT LaW § 32.03 (2d ed), LexisNexis (updated May 2014), In general, an ‘act done by another is subject to ratification by a party that could have itself taken that action in the first place. Hirster v. Strehmann, 222 Il. App. $93, $96-97 (Ist Dist 1921). Like private entities and individuals, municipalities are “bound by principles of common honesty and fair 31 dealing” enmoed v. Cty of Pekin, 83 I. App. 34362, 365 (3d Dist. 1980) (quoting Staheinv. ‘Bal. of Edu, $7 Il. App. 24 28, 82 (24 Dist. 1967). Indeed, Jost cases in which @ contract entered into by a municipality has been found to be lira vires... involve conracts prokibited by law." Eertmoed, 83 Il. App. 3d at 366. Courts have consistently nullified municipal contracts that are expressly proscribed by a statute ‘or an ordinance, See, e.g, DeKam v. City of Streator, 316 Il 123, 128 (1925) (invalidating ‘contract requiring payment by municipality where prior appropriation for payment, as required by statute or ordinance, was not made); Hope v. City of Alion, 214 Il 102, 105-06 (1905) (inding contract requiring city to pay outside counsel void where ordinance absolved city from paying for legal services not rendered by corporation counsel); City of Belleville v I, Fraternal Order of Police Labor Council, 12 Il, App. 3d 561, 563-64 (Sth Dist. 2000) (inva ating contract requiring payment by municipality where prior appropriation for payment, as required by statute or ordinance, was notmade); Ad-Ex, Inc. v. City of Chicago, 207 I. App. 34 163, 175, (Ist Dist 1990) (finding agreement purporting to waive zoning requirements void where city entered into it without notice and public hearing required by ordinance). Likewise, where the law expressly bestows exclusive authority ona designated offical, courts have found ‘unenforceable contracts or arrangements where a different individual purported to exercise such authority. See, eg. Ashton v. County of Cook, 384 Ml 287, 300 (1943) (nullifying county’s contract with private attomeys where state constitution and statute gave state's attorney exclusive authority to act as county's legal advisor); MeMahon v. City of Chicago, 339 Il. App. 3441. 48 (1st Dist, 2003) (invalidating coatract entered into by city employee where state statutes and city ordinances provided that only city’s procurement officer or purchasing agent had authority to 2 enter into such contract); Chicago Food Mgmt, Inc. . Cty of Chicago, 163 Ill. App. 34 638 (Ist Dist, 1987) (same). On the other hand, courts have uphe contacts where the municipality had the general power to contract but iregularly exercised sich power. See, eg, Bertmoed, 83 Il. App. 3d at 366 (“Because the type of... contract involied in this ease is not one which is prohibited by ‘express provision of law or is one which uncer no circumstances could be lawfully entered into, the action ofthe city [in entering into the contract without the statutorily required ety council ‘uthorizaton] cannot be classified as ule vires [endl] the doctrine of equitable estoppel is available tothe plaintiff") Stahelin, 87 Il. App. 2d at 42 (“T]he [school boerd] had the ‘general power to contract as it did... It accepted the benefits resulting from the [other contracting part's] work and it cannot now be permite to deny its obligation to pay for these items on the ground that there was no yea and nay vote taken to authorize the expenditure (as required by statute).”) ere, a concession contract fr the resturant in Millennium Park was not prohibited dy law and could have been legally entered into by the City. It would have been within the Ci general powers to enter into such a contract. The City, a the entity tha planned and controlled Millennium Pa, directed the Park Distt o enter into the Concession Agreement and thereafter sanctioned that contract. Besause the City could have entered into the Concession ‘Agreement i the frst place and the only deficiency is inthe alleged lack of proper authorization on the part ofthe Park District exeeuting the contract on behalf ofthe City, the Concession Agreement is nt void ab initio, and the Cou may consider the Park Gil Panties’ equitable defenses under these circumstances. At tial, a number of witness currently or formerly employed by the City testified that it hhas been the City’s practice to allow the use of property to which the City has rights only with prior authorization from City Council. However, this testimony establishes only what the City does as a matter of practice. The Ccurt has already rejected the City’s prior contentions thatthe Park District entered into the Concession Agreement in contravention ofa statute or ordinance. ‘The Court has noted that “the ondinance establishing requirements for issuing Millennium Park concession licenses was not enacted until years after the execution of the Easement Agreement,” ‘Which “serves as an indication that a the time the Concession Agreement was executed, the City ‘had no ordinance in effect preseribirg the method by which Millennium Park concession licenses rust be granted.” Clty of Chicago ». Chicago Park Dist, et al, No. 11 CH 41075, at 24 (Ch. Div. May 8, 2012), No statute or ordnance presented at lor in the parties’ post-ial sulpmissions expressly prohibits the Concession Agreement. The Court therefore concludes that the Concession Agreement isnot ura vires and tat the Pak Grill Parties ean asert their affirmative defenses, which the Cour will consider, infra Sill, the City argues that, based on Chicaga Fond Management and similar cases, oly the City Council ha the inherent aubority to act on behalf ofthe City and to bind the City. It therefore discounts the actions of Mayor Daley andthe numerous City officials involved in the selection ofthe Park Gril and the construction ofthe restaurant. There can be no dispute thatthe contract at issue here was within the Citys eoporate powers and therefore not ultra vires inthe primary senses entirely beyond the municipal jurisdiction. If that is acepted a perforce it ‘must be, then itis axiomatic that ifthe comporate authorities take action to ratify & contrac, the contract can stand. Where there is conduct on the part ofthe municipality evidencing approval of the transaction, the contract will stand. Here, the City Council took testimony from Horan and (O'Malley and enacted an amendment to the Liquor Ordinance, specifically referencing permission forthe serving of liquor atthe “restaurant ‘Millennium Park,” of which the Park Grill was the only one. Since serving liquor involves paramount issues regarding public safety and general welfare, i is reasonable to expect the City Council to make inquiries about all of the circumstances surrounding the operation of te restaurant prior to approving a license to serve liquor. The City Council also authorized IGAs under the Special Events Ordinance, originally passed in December 2003 and amended in February 2004, to give a City official from the Mayor's Office the power to grant authority to the Park District to manage concessions at Millennium Park. Although the Concession Agreement at isue here was carved out of those IGAs, ths further evidences the City Council's assent tothe Park District's management and control of the restaurant concession at Millesnium Park and the involvement of the Mayor's (Office in the process, As a general proposition, the City’s suggestion that the construction of the Parc Gril restaurant was not a fact well known tothe alderpersons ofthe City cannot be taken seriously by the Court. The City Council’ tions manifest knowledge and consent when the City Conneil amended the Liquor Ordinance and granted the Park Distict authority over concessions at Millennium Park, albeit excluding the Concession Agreement. See Johnson, 135 ‘A2dat 486, As discussed infra, the Park Grill Parties” affirmative defenses have merit and legitimize the Concession Agreement challenged by the City IV. Ageney ‘An agency relationship isa fiduciary relationship in which the principal has the right to control the agent's conduct and the agent has the power to act on the principal's behalf. J. Stare Toll Highway Auth, v. DiBenedetto,275 I. App. 34 400, 410 (Ist Dist. 1995). An agent's authority may be ether actual or apparent, and actual authority may be either express or implied. Patrick Fng', 2012 IL 113148,§ 34, Apparent authority is inappropriate in eases involving ‘municipal officials. 1.36. Express authority is actual authority granted explicitly by the principal tothe agent; implied authority is actual authority proved circumstantilly by evidence ‘of the agent's postion. Jd. Generally, actual authority of an agent requires the authority to be {ound on the principal's words or acts, ct on the agents. Saletech, LLC v. East Balt, In, 2014 IL App (Ist) 132639, $15, Nevertheless the existence of an agency relationship may be ‘demonstrated by circumstantial evidence, including te situation of the partes, their acts, and other relevant circumstances. Id. Here, the Court has previously noted that no statute or ordinance prescribes the method by which the City must enter into an agency relationship ofthe nature alleged by the Park Grill Parties. City of Chicago v. Chicago Park Dis, etal, No. 11 CH 41075, at 27 (Ch. Div. May 8, 2012). The evidence demonstrates that, a general matter, the Park District rarely ated ‘without the City’s approval and kept the Mayor's Office and other City officials informed of Park District activities and other matters that could affect the City. Iti undisputed thatthe City ‘controlled Millennium Park. The City was to any role the Pak District won haven the park, Thus, even athe ery stges of Millennium Park's development, before the City and Pak District entered into the Easement Agreement, the Park District had an understanding that Millennium Park was under the City's etl. nation, both partis understood carly on that a restaurant would be established in Millennium Park Ina briefing meeting between City and Pak District oficial in late 2000, Mayor Daley directed the Park Distt issue the RFQ forthe restaurant. Subsequently, Uhlir, an agent for the City, turned RFQ and REP documents over othe Park District tthe direction ofthe Mayor's Office, In October 2001, Uhlir and three City officials participated in the process of 36 Gail, which was known to the public, various City departments with authority to grant building ‘and oceupancy permit did grant such permits tothe Park Grill, inspected the restaurant, and ‘deemed the building to be in compliance with building code. ‘The City 'so evinced its assent to sive City officals the authority to decide whether the Park District can grant concessions at Millennium Park. In November 2003—shortly after the Law Department began internally questioning the ‘Concession Agreement—the City Council amended the Liquor Ordinance. ‘The Court finds that the knowledge ofthe Law Department can be imputed tothe City and its corporate authorities, the City Council. See Welstach Trafic Signal Co, w. City of Chicago, 328 Il. App. 467, 475 (Ist Dist. 1946) (rejecting contetion tat city had no knowledge that plaintiff continued services after city council terminated contract with plaintiff because city employee directly knew and “it ‘may be reasonably inferred that he performed his duty and reported that] fact... to his superior”) Although the amendment tothe Liquor Ordinance did not explicitly ratify the * a dsb, he plant maitaned raf igh forthe city under aa writen contre 328 I. App. 3468. Th city traf engineer sfc supervised the company's work ad the aproval of ils, lw. {40, te company ened ino sch contact with he city ough ts commsionr of public works, who contractually reserved the right extend the term ofthe cous! By authority of the ty could 468, Pursuant oa order ofthe ety coun the conc: was extended. Id. Thee, he city couel directed that aantenance offi signals be frfrmed by the city immediately fe the termination ofthe extension. 1d ‘The ciy’scommibsione of suees and elecrety woud the empany ofthis, td in respon, the company proposed tht it be autorzed wo continu lining the ligt inthe interest of pu fey un he cy was ‘eady to take over. Za 469-71. Although he ey did ot spond the company contd oman th ght forapproximatelyfory-one days, drig which he commissioner of sets snd eles didnot pecorm ssh ‘work due oa lack of necessary mail aad equipment st 471. Daring ta period, the company conti to ‘ener statement the asst! afi engine, who was immed in charge of the company's dealings with ‘he city under the latest contract nd extension. ie. The company also made daly report fhe assistant lic ngincer regarding repairs o sigalg that hod been damaged by aomebiles. I. Other employee inthe fice ofthe afc engineer secure infcmaton fom te company aso he cost of such ears, edhe ity elle {hear ons fom th aster mere I a 71-72 Inthe company’s suit wo recover the cost of materials nd Ibor furnished. the Appellate Cour fund it “tir asame” that the commissone of sets ad electricity kn that the city dd ot have the ecesry materials equipment to peTor esata work et chose ua respond tthe company and simply slowed it to contin its eviews fda 474. The Apple Cou coacluod tit he commissioner's allure to ive the company ‘nsructons "sonsitd an mpi ination fo pai to conn Sing he] nevessy work ale city was, ‘auiped to pecfonn it Lat 73. The Applit Court found the city's notice to the company inconsgucri, ‘ven tat the iy di ot perform he woHk fr frye dys, “knowingly permite paint fo prim (cing 40 Concession Agreement, it evinced the City Council's intet to recognize the Park Grill, despite its knowledge ofthe Law Department’ challenge tothe Concession Agreement. In addition, the City received sales taxes and license revenues from and repeatedly issued permits and licenses to the Park Grill, Furthermore, City officials atively worked withthe Park Grill on operational issues. The City did not make its claim known tothe Park Grill Parties until Georges sent her letter to Horan and O'Malley on February 9, 2005. Yet the ity has continued issuing licenses and permits othe Park Gril since it made its objection tothe Concession Agreement known to the Park Gril Parties. The evidence showed the City’s long-term acquiescence with and facititation ofthe Park Grl’s construction and operations. The Court infers therefrom that, even, ifthe City di not authorize the Concession Agreement before it was signed, the City ratified the ‘Concession Agreement and may not now challenge its validity. See Gambino 398 Ml, App. 3d at 56. VL. Equitable Estoppet In general, a party secking to invoke equitable estoppel against a municipality must prove: (I) an affirmative act by either the municipality itself or an offical with express authority to bind the municipality; and (2) reasonable reliance upon that act that induces the party asserting, ‘sitable estoppel to detrimentally change its postion. Patrick Emg'g Inc. v. Cty of Naperville, 2012 HL 113128, 40. However: ‘The general rule is qualified... to enable a party to invoke the doctrine where his ‘action was induced by the conduct of municipal offices, and where inthe absence ‘of such relief he would suffer @ substantial loss and the municipality would be permitted to stl ise by retracing what its agents had done. ties Serv. Oil Co, v. City of Des Plaines, 21 Il. 26 157, 161 (1961). ‘aid period, made no obecon wo sich perfomance, dno ntfere orld and ascened te ene IO i a n Ces Service a gascompany purchased a piece of real extate—located less than 300 feo from acharch—ffom a vendor tat, prior to the sl, recived a building pemit fom the city forthe consivtion ofa gas station, [dat 158-59. The permit was transfered to the gas company with the approval of the city’s building commissioner. Jd. t 159. However, seven ‘months ltr, after the gas company had begun constuction, the mayor revoked the permit, stating violation ofan ordinance that probibited gas stations within 300 fet of choo, hospital, church, or theater. (dl The gas company sved o enjoin the ety fom enforcing the ordinance. 1. The tial court found in favor ofthe gas compan. 1d ‘On appeal, the Mlinois Supreme Cour noted hat he gs company had “expended large sums of money in eiance upon the permit and the apparent acquiescence by the city officials” and made the permanent improvements afer it“was induced to believe no violation of any lw was involved" dat 162-63, The Supreme Court found that, under the cicumstanes, “it ‘would be hibly unjust to enforce the publi right and compel the plaintiff to suffer a substantial loss” ed. at 163. “The Supreme Court recognized tha he issuance ofa permit in itself would not estop the city ifthe gs company had been auare ofthe ondnance or made no attempt ta know about it 1d. ‘The Supreme Court further recognized hat “the mere issuance ofan unauthorized pemit and reliance thereon to one's injury des not provide grounds for relict” 1d. However the City’s seven-month delay, “without any atempt to rvoke the permit constintes conduct on the part of cy autorts from which it could reasonably be infred tht its asuance was, in effet, raified” Jd. Therefore the Supreme Court concudd that equitable estoppel was aplicable against the city. 1d 2 In Emerald Home Builders, Ine»: Kelton, the city revoked a construction company's building permit because it was in violation of zoning ordinance. 11 Il. App. 3d 888,890 (st Dist 1973) The constuction company sued fora writ of mandamus dissing the city to reise the permit. /d. Te ial cour found tha the city was estopped fom revoking the permit. Finding Cites Service controling the Appllte Court afimed the tril cour’s judgment. at £893. It noted thatthe construction company had spent a substantial amount in reliance on the issuance ofthe permit. 1d. Although there was no iia inducement by city officials, the Appellate Court found it significa tha thee was a six-month lapse between the issuance ofthe permit andthe revocation thereof, as well san approximately two-month lapse between the beginning of construction andthe order from the city to stop work. Jd."The Appellate Court, stated that “ie inital excavation [oy the constuction company] was a type of operation sufficient to pu the city on notice that its permit to build was being relied upon.” Ja. The Appellate Court found thatthe City’s delay in revoking the permit “constituted an inducement to {the construction company to assume in good fit thatthe permit, valid omits face, wes valid in ‘acta in tw theough raifeatony the city” 1d ot 803-04, In Parrick Engineering contract between the cy anda contractor specified procedure under which the city, through its representative who is responsible forthe project, could request and euhorize additonal work in writing. 2012 1L 11314895. Without writen authorization, the contractor performed additional work, for which the city declined to pay. 1d. 410-13. The contactor sued the ety for payment under the contract, 1d 13. The contactor didnot allege Which city oficial requested addtional work, whether hat official posessd the authority o do $0, or that ny city oficial authorize the atonal work in writing. Jd. In granting the ciy’s ‘motion to dismiss the contractor’s complaint, the trial court concluded that none ofthe city a ‘employees with whom the contracter dealt had authority to bypass the language ofthe contract regarding addtional work and that the contractor knew ofthis restriction. Jd 24, Te wil court found that equitable estoppel did not apply against the city because there was no affirmative act by the ety, only unaithorized acts by its representatives, Jd. ‘The Appellate Court reversed and remanded, Id. $126. On appeal, the Illinois Supreme Court state: Ilinois cours have long held that equitable estoppel may apply against ‘municipalities, in extraordinary and compelling circumstances, but have never hhld that apparent authority may apply against municipalities. *** IF the unauthorized acts of a governmental employee are allowed to bind a ‘municipality, the municipality would remain helpless to correct errors oc, worse, to escape the financial effects of frauds and thefts by unscrupulous public servants. Thus, .. . anyone dealing with « governmental body takes the risk of hhaving accurately ascertained that he who purports to act for it stays within the ‘bound of his authority, and this is so even though the agent himself may have ‘been unaware ofthe limitations on his authority 1d. 5935-36 (citing Cities Service, 21 IL 2d at 160-61) (quotations omitted). The Supreme ‘Court found that the contractor's allegations that it reed on representations by city officials with “tls that appeared to confer upon them some undefined oversight responsibility fr te project” ‘Were not a substitute for allegation that those officials possessed express authority to approve ‘additional work. Id. 41, The Supreme Court concluded thatthe contractor failed to allege specific facts to show that (1) any city official possetsed exprose authority to orlly authorize ‘additional work; and 2) the contracior’s reliance on conditional representations and assurances ‘made by city officials was reasonable. Je. $942, 52. The Supreme Court found thatthe ‘contractor's complain did not contain specific facts to support the application of equitable estoppel against the ety. 1a. 4 52 mW Parick Engineering i distinguishable from te instant ation because there, the contract atssue specified the procedure andthe city representative necessary to approve the additonal work for which the city declined to pay. Furthermore, the ety in Patrick Engineering did not ely its esa pay forthe additonal work. Here, the City's argument against equitable «stoppel focuses to narrowly on the authority of City agents or employees to bind the City to an agreement forthe long-term use of ind to wich the City has rights, The Court believes tha the Proper inquiry is whether the City’s agents or employees were authorized to carry othe acts ‘upon which the Park Gil Parties ried, The ity Council's Committee on License and Consumer Protection recommended the amendment tothe Liquor Ordinance after discussion ‘with Foxgrover (on behalf ofthe Pak District), Horan, and O'Malley. Thereafter, the City Council unanimously passed the amendment to permit the issuance ofa liquor Hicense to the restaurant in Milenum Park. TheCourt finds tha he passage ofthis amendment was an alfrmative at by City Council recognizing the Park Gil’ operations. In addition, various City ‘departments with authority to grant >uilding and occupancy permits did grant such permits tothe Park Gi inspected the restaurant and deemed the building tobe in compliance with building code, These ats and the City’s substantial delay in challenging the Concession Agreement reader the instant action disinguistable from Patrick Engineering “The City’s acts induced the Pack Gril Paris to invest funds, ime, and labor in building out, equipping, opening, operating, and making improvements to the restaurant. The construction ofthe restaurant put th City on notice ofthe Pak Gril Parties” reliance on the permits. See Emerald Home Builders, 11 I. App, 34a $93. ‘The Park Grill Paris” actual knowledge of the City's Parco 3 rights and record notice of the City’s Parcel 4 rights was but part of the information available tothe Park Grill Parties atthe time, The Park Grill Parties were 4s aware of other fats, including the City’s conduct, indicating that the City was aware of and consented tothe Concession Agreement and the Park Grill's operations. Based oa all the ‘elevant facts and circumstances atthe time, the Park Grill Prtes reasonably on the passage ofthe Liquor Ordiance amendment andthe issuance of permits and licenses tothe Park oni. Pursuant to Cites Serie, the fregcing ats by Cty Council and City officials and the Park Gril Parties’ detrimental relianes thereon, when considered ia light ofthe Citys delay in challenging the Concession Agreement, allow forthe application of equitable estoppel against the City, See 21 Il 24 at 163. The Court fads that the City had knowledge ofthe Concession ‘Agreement by, atthe very ates, the summer of 2002, before the actual execution thereof or the bulk of the Park Gils construction. Specify, in July 2002, Cin, a Park District offical, sent the City memoranda that included the main terms ofthe Park Distit’s proposed agreement ‘withthe Joint Ventre, and met with Doers, & City official, at least once to discuss ‘memorandum he seat prior oan upcoming Park Distiet Board meeting. The Court must assume that such memoranda are actually read by th municipal officials to whom they are sent and that any critical information therein is tansmited up the prope chain of command, This is especially tue with respect to any information regarding the development of Millennium Park, hich the City indisputably intended to contol in fil fom its inception, Notwithstanding this knowledge, the City's Law Department did ot question the Concession Agreement until ‘October 2003, andthe City didnot actually make its lai know tothe Park Gril Panties uni Georges sent her letter to Horan and O'Malley on February 9, 2005. At vat point, the restaurant ‘had been in operation for approximately fen months. In edition, the City has continued issuing licenses and permits to the Park Grill since it made its objection tothe Concession 46 ‘Agreement known to the Park Gril ates. The City wate almost seven more years before bringing sui, Where the Park Gil Parties “expended large sums of money in relinge upon the permis] andthe apparent acquiesence bythe [City official,” and the City delayed its efforts tonalite the Concession Agreement, the Cour finds that equitable estopel canbe applied aginst the City. Se id, at 162-63 Even ifthe Ci 's acts desorbed herein were beyond the authority expressly conferred on City Councilor City officals, the Park Grill Patcs have shown thatthe exception to the general ‘ule on applying equitable estoppel against a municipality is applicable here, See id ee alo ‘Smith v. Town of Vinton, 25 So. 24237, 24 (La, 1946) (“AS a general rule, a Mayor... can act only with and under the authority... ofthe Board of Aldermen. But when withthe full ‘knowledge ofall members of that Board, and with no objection or protest being voiced by any of them, the Mayor contracts for and engages in the making of necessary repairs toa municipally ‘owned and operated utility, the tows upon being sued on the contract... is estopped] to urge lack ofthe Mayor's authority in incurring the debt”). In paricular, the conduc of City oficial, ‘whether or not authorized, induced the Park Grill Parties to act, and no objection o potest was made known tothe Park Grill Parts until more than a year after the Law Deparent frst auestioned the Concession Agreement and after the restaurant opened. Ibe Court were to find the Concession Agreement unenforceable the Park Gril Parties would suffer substantial losses: (their business, valued by Van Vice at $3.325 milion for the Joint Venture and $2.65 rillion forthe Management Venture; and (2 ther investment inthe construction ofthe restaurant, The Court cannot permitthe City to “stuly itselby reacting what its agents had done” and thus finds thatthe doctrine of equitable estoppel bars the ity from challenging the validity ofthe Concession Agreemest. See Cities Service, 21 I 24 at 161. a VIL. Laches ‘The aplication of the doctte of laches sa matter of he rl cour’ discretion. City of Rochelle v. Sushi, 206 I, App. 34497, $02 (2 Dist. 1990). To establish ache, the defendant must show (1) lack of dtgence bythe party asserting the claim, and (2) prejudice tothe pposing party resulting fom the delay. MeDusn Wiliams, 156 24288, 390-31 (1993). Even ifthe defendant knows ofthe plaitif's property rights, the defendant woud be entitled to assert laches defense, Cit of Rocelle, 206 Il, App. 3d at 02. However, the court must consider whether the defendant had 3 knowledge or notice thatthe plaintiff would asserts rights, LaSalle Natl Bank v. Dubin Residential Cmays. Corp.,337 Il. App. 34.345, 351 (Ist 2003). A defendant may not take advantage ofa delay to which he has contributed. Bayle +, Swift & Co., 283 Il. App. 34 421, 431 (Ist Dist, 1996). Among Illinois courts, “i ]here i considerable reluctance to impose the doctrine of laches against a governmental boy's actions. Although this reluctance does not rise to the level of absolute immunity, laches does not apply tothe exercise of governmental powers except ‘under compelling circumstances."6 Calomino v. Bd. of Fire & Police Comm'rs, 273 ll App. 3d 494, 500 (Ist Dist. 1995) (citing Van Milligan v. Bd. of Fire & Police Comm'rs, 158 ll. 2485, 91 (1994). Inaction by governmental officials will not support a laches defense; rather, aches will apply only ifthe governmental officers initiated an affirmative act that {induced the action ofthe defendant. Madigan ex rel. Dep't of Healthcare & Family Servs. v. Yoalle, 397 Il. App. 34 481, 493-94 Ist Dist. 2009), In City of Rochelle, te city bought a forcible entry and detainer action, alleging thatthe ‘mobile bomes in the defendant's trailer park encroached on the Cit 's street and alley, 206 I “The Cour rejects the Citys canton tha the doctrine of mlm tempus ocurit rg amount tthe Citys sot mmunity froma laces danse. Tithe Ciy ha such blue aman, the exception for compelling ‘Sreumstanes woud be rendered mugoy 48 ‘App. 3d at 499, The defendant installed the mobile homes at issue between 1969 and 1974, and the city brought its action in 1987. at $00. At wal, the defendant testified that he didnot have the property surveyed before purchasing it, and the citys building inspector testified that the city issued the defendant permit forthe installation of plumbing and gas and sewer lines, wellas “anything but ondinary repairs" Jd. Te tral cour ruled inthe city’s favor, finding that the defendant could not assert laches because his flue to have the property surveyed before ‘purchasing it indicated a lack of reasonable diligence, Ud at SOL. The Appellate Court, however, found that “ie tral court may have erred in not barring {tbe city’s relief onthe basis of laches” ‘because: (1) the city delayed in seeking to enforce is rights (2) it woud cst the defendant a substantial amount to relocate the tailers onto his property; and (3) the city filed to show any need forthe alleyway. 1d at 503, In this case, the City had notice by July 2002 that the Park District and the Joint Veature intended o enter into the Concession Agreement, adit definitely knew ofits claim agains the Park Grill Parties by October 2008, shortly before the restaurant opened. Furthermore, the construction of the restaurant was known to the public. Is tue that Licata ad setual knowledge ofthe City’s rights to Pael 3 (ftom his prior work onthe Haris Music and Dance ‘Theater) and record notice ofthe City's rights under the Easement Agrecment (since it was recorded shortly aftr it was fully exested). At the same tims, howevsr, the City took multe ction that were inconsistent with enforcing its property sights. Therefore, it cannot be sid that the Park Gril Parties wilflly violated the City’s rights. Its the City’s fulure to enforce its rights ina timely manner, nt the Park Gril Parties’ knowledge of sch rights, that isthe basis of the Park Grill Parties” laches defense. See City of Rockelle, 206 Il. App. 3d at 502, 9 In addition, even ifthe City did raise its challenge tothe Concession Agreement the ‘October 2003 Meeting and Foxgrover did immediately alert the Park Gril Parties to that sue, te Park Gril Parties could not have known at tat pot ha the City would assert tgs in light ofthe City hereafter continuing to take affirmative steps demonstrating its recognition of ‘he Park Gril, For instance, the City Counel amended the Liquor Orinane, and the City reecived sales taxes and license revenues from and repeatedly issued permits an licenses tothe Park Grill. Furthermore, City officals actively worked withthe Pak Gril on operational issues. twas not uni February 9, 2005, that the City notified the Pak Gril Parties that it was challenging te validity ofthe Concession Agreement, Even then, the ity dd ot file the instant action until December 2011, almost seven years after formally notifying the Park Gril Parties ofits claim. The City contends tha any delay in filing it suits justified by the fact that the patics were engaged in settlement discussions. The Court ha been unable to find nos, case law squarely holding that setlementeffors bara laches defense, However, cours have hod in other contexts hat atempts at setlement do not necessarily excuse dys in filing suit See. eg, Moers. Contralia Cartage Ca, 98 1. Ap. 34 1129, 1149-43 (Lt Dist. 1981) (The mere pendency of negotiations [betwesn an inser and an insured] conducted in god faith and with a view of compromise, during the period of the statute of limitations... is not sufficient to 8 show a waiver ofthe statue and doesnot estop the defendant fom asserting the defense." A.C. Aukerman Co. Miler Formless Co,, 693 F.28 697,700 (7th Cir, 1982) (License negotiations do not necessarily push back the running of ime ina laches defese, For such tolling the negotiations must ordinarily be coatiouous and bilaterally progressing, with a ai chance of success, so as to justify significant delays." Baker Mf. Co. v. Whitewater Mfg. Co, 430 F.2d 1008, 1013-15 (7d Cit. 1970) (finding patent infringement claim to be barred by 50 ‘aches where plaintiff waited eight years to bring suit ater proposing licensing agreement with ‘defendant, leading defendant to assume that it could continue to conduct its business without [egal ramifications), ‘While the City maintains thatthe delay between the February 2005 Letter and the filing of the instant action is justified by ongoing settlement negotiations, it makes the contradictory assertion that the Park Grill Parties negotiated sporadically and notin good fait, ‘The settlement discussions commenced no earlier than February 2005, approximately sixteen months after the ‘Law Department began questioning the validity ofthe Concession Agreement, and halted altogether in March 2009, when the Park Grill Parties advised the City that they would not continue negotiations until after resolution ofthe Joint Venture's case against the Cook County Assessor, Although the City contends that Park Grill aries cannot assert laches because they contributed to the delay by “walkfing] away from the bargaining table and strfinging] the City slong,” the Park Gril Parties were under no obligation to continue negotiating with the City had they been of the belief that further discussions would be futile, As the Pak Grill Parties point ‘out, the City assumed the risk that settlement efforts would fil, Even after settlement discussions ceased, the City displayed no urgency in resolving the matter and waited almost three more years before initiating the instant action. ‘The City also maintsine that nothing prevented the Pask Grill Pastis from filing he cown ation to clarify thei rights. However, ad the City not filed suit, there would have been no need forthe Par Gril Parties osu the Cit because since the City notified the Pack Gil Parties ofits claim on February 9, 2005, the Concession Agreement has remained in full force and effect and the Perk Grill’s operations have been ongoing, ‘In addition, the City contends that the Park Grill Parties’ laches defense fails because the City filed its suit well within the applicable statute of limitations. linois courts have found that: Laches is not another statute of limitations... 1] is no, lke limitations, a mere ‘matter of time but principally a question of the inequity of permitting the claim to be enforeed—an inequity founded upon some change in the condition or relation of the property and the partes. Laches depends on whether, under all the circumstances of the particular case, plaintiff is chargeable with waat of due diligence in failing to institute proceedings before he did. *** Where there is such a change in the elations of the parties or such a change in the subject matter of the suit as to render it inequitable o grant relief, it will be refused without reference to the statutory period of limitation, ‘Renthv. Krausz,219 Ml, App. 34 120, 122-23 (Sth Dist. 1991) (citing MeKey v. McKean, 384 Il 112, 126 (1943). Therefor, “the question of delay... is enmeshed in the question of| Drejudice.” Renth,219 Il. App. 34 at 123. When the facts indicat that it would be inequitable to allow a party to asser title, laches will bar such right even within the statutory period of limitation. Statin's Props, Inc. v. Hassler, 53 ll. 24325, 330 (1972) Here, the City did not simply wait eight years to sue the Park Grill Parties. Rather, trial testimony indicates that even after the City came to know of its claim in October 2003, City officials continued to work with the Park Grill Parties because the City wanted the restaurant to be open and operating in Millennium Park. For years, the City took affirmative steps demonstrating its recognition of the Park Grill. As a result of the City's conduct, the Park Grill ‘opened, operated without a liquor license for is first few months, and spent a substantial amount ‘of money after it opened to implement design changes to its outdoor operations, as required by le City. AL he City’s request, the Park Gril also waived ls exclusive catering rights under the Concession Agreement. Also as a result ofthe eight-year delay, several witnesses had difficulty recalling or had «entirely forgotten potentially significant details regarding event that occurred as much as fifteen ‘years earlier. In addition, a number of witnesses were altogether unavailable due to medical issues, death, or relocation, Furthermore, there is no way forthe parties or the Court to determine ‘what documentary evidence might have been lost after all these years. As courts have previously noted: ‘Time impairs and destroys evidence of the tr facts, and makes it practically impossible to meet positive testimony of the complainants, whether the same be true or untrue. A court of equity, therefore, finding itself unable to render substantial justice beween the parties, asserts the principle of faches on the ground of publie policy and for the repose of property rights ‘Stern v. Material Serv. Corp.,44 I App. 24 198, 208 (Ist Dist. 1963) (quoting Dempster v. Rosehill Cemetery Co., 206 I 261,271 (1903)). ‘Thus, the Court finds thatthe City lacked diligence in asserting its property rights and that such delay and the City’s affirmative acts induced the Park Grill Parties to operate the restaurant and ultimately resuked in prejudice to them, Furthermore, the Coust finds that compelling circumstances warrant application of laches against the City. Courts are generally reluctant to apply laches against governmental bodies because it might * ir the funtoning ofthe [gnverenta ody] inthe discharge ofits government fnctions nd... alble public interests may be opartzed or lost bythe neligence, mistakes, or nattenton of public officials Hickey» I. Con, R, Co, 38 I 28 427, 447-48 (1966, In this cas, however, the evidence showed thatthe City’s aire to assert its claims against the Park Gril Parties was not due to negligence or intention, The City fll knew sbout the Concession Agreement and fuciltated the development and constuction ofthe Par Gril, Although the Law Department formed its position regarding the validity ofthe Concession Agreement bafre the restaurant opened the City continued to recognize the Park Gril’ operations afer it began operating. It \was not until the City had notice of impending negative publicity about the restaurant that 3 Georges formally notified the Park Grill Parties that he City was challenging the validity ofthe Concession Agreement. Georges denied that such publicity was the impetus forthe February 2005 Letter, but the Court does no find ber testimony in that regard to be credible. Furthemore, where the City knew of and failtated the use ofthe very property to which it later asserted its ‘ight, the Court cannot fing that applying laces agains it under the circumstances here would impair the City’s fimetioning inthe discharge ofits govermmental functions. Therefore, the doctrine of laches also operates to bar the City from challenging the validity ofthe Concession ‘Agreement VUIL. Waiver Waiver arses from an affirmative act and consists of an intentional relinguishment of a Known right, Mani: v, Citibank, FSB. 404 Il App. 34941, 947 (Ist Dist. 2010), Waiver may bbe made by an express agreement, or it may be implied from the conduct of the party who is alleged to have waived aright. Ryder v. Bank of Hickory ils, 1461. 2498, 105 (1991). An implied waiver may arse where a person agaist whom the waiver is asserted has pursued such course of conduct as to suliciently evidence an intention to waive a right or where his conduct i inconsistent with any other intention than to waive it. Hd Here, the City intended to entol all of Millenium Park and contends that it has owned Parcel 3 in fe simple since well before the park's development. Inthe same manner that the City charges Licata of actual knowledge of is rights in Parcel 3 by virtue of the tile search he performed in connection wih the Harris Music and Dance Theater, s0 too are the Citys agents charged with noice of its own rights to Parca 3, In adition, by the time the City signed and recorded the Easement Agreement ia December 2001, its agents had record notice ofits righ in Parcel 4, ‘Thus, the City had full knowledge ofits rights in Parcels 3 and 4 as ofthe execution of 4 the Basement Agreement. As the Court as already found, notwithstanding notice to the City by July 2002 that the Park District intended to enter int the Concession Agreement, the City pursued a course of conduct that is inconsistent with any other intention than to delegate to the Park District the right to manage the Millennium Park restaurant on Parcel 4 and related concessions on Parcel 3. Therefore the Court finds thatthe City waived any right afforded it to challenge the Concession Agreement. TX. estoppel to Revoke License ‘The Park Gril Parties asset that, with respec to this litigation, the City granted two oral licenses (1) one tothe Park District to select a restaurant operator and enter into a concession agreement with that operator forthe restaurant and related concessions in Millennium Park; and (@) one tothe Park Gril asthe bigder chosen by the Selection Committe, to operate the restaurant, license in real property isa personal and non-assignable privilege to use the and of another fora specific purpose, witiout possessing any estate or interest in such and, Millenium Park Joint Venture, LLC v, Houlitan, 241 IL 24281, 309-10 (2010), Use of the property under license is subject othe management and control retained by the licensor. N. Ave. Pops. LLG.» Zoning Ba. of Appeals of City of Chi, 312M. App. 34 182, 189 (Ist Dist. 2000). A license is conferred either by writing or parol. Davidson v. Dingeldine, 295 I 367, 374 (1920); see Hagensickv. State of Iinois, 5 I. Ct CL. 1, 5 (1992) (accepting assertion tht Cook County Forest Preserve District gave State a license to go upon property by granting verbal permission). A parol license is generally revocable atte will of the licensor “eventhough consideration has been paid or exrenditures have been made upon the fit ofthe agreement.” ‘Mueller v, Keller, 18 I, 24.334, 340 (1960). However, “courts of equity will restrain the exercise of the legal right to revokea license when the conduct of the licensor has been such that 55 the assertion of the legal title would operate as a aud upon the licensee" fe at 343, The fand exception othe evoeabilt of licenses wil apply if “(1) the icensoe as spent substantial sums of money which vere induced bythe affirmative efforts ofthe senso, (2) improvements which the licensee made wer atleast partly forthe Benefit ofthe Heensor and (3) evocation would resulta an injury which would amount to gest wrong and oppression.” Grigolet, nc». Bd. of ‘rs. ofthe Sanitary Dist. of Decatur, 233 I, App. 3606, 614 (th Dist. 1992). ‘The City maintsins tha a lcensepermiting third party to develop and operate & restaurant on Parcel 4 would require City Council authorization —which was not obtained here— because it would modify the Citys rights under the Easement Agreement, The Cty has made similar arguments mukipe times throughout the course ofthis tigation, The general rules that: Whore there i a statute or ordinance peseriing the method by which an officer or agent ofa municipal compraton may bind the municipality by contrat, hat, ‘method mas be followed, and hee can be no implied contact or plod Hbility of such municipality. Where the agents of city are restricted by lw a to the ‘methods of contacting the city cannot be bound otherwise than by compliance wi the conditions prescribed forthe exeriseof ower Wacker-Wabash Corp.» City of Chicago, 3801. App. 343,354 (It Dist. 1953). The Court as previously noted hatin most cass adresig this general rl, the Appellate Cour considered actions of municipal offices or employees purporting to bind municipalities where a saute or ordinance detailed the method by which such officers or employees may do so, The Court found that heres no statute or ondinance that preseriesthe method by which a City may modify an easement interest hat itholds Similarly, with respec tothe Park Gril Parties” assertion of licens, the Cour found it significant tat he ordnance establishing rouirement for suing “Millenium Park concession licenses was not enacted until year after the execution ofthe Easement Agreement. The Court found this tobe an indication that atthe time the Concession 56 ‘Agreement was executed, the Cityhad no ordinance in effect preseribing the method by which concession licenses must be granted, ‘The Court's findings with spect othe Park Gril Parte" agency defense apply here as well. The use ofthe property by the Park District and the Park Grill was subject to ultimate management and contol ofthe City, a8 owner of Millennium Pack. Again, the City’s conduct indicate that it ranted the Park Distet authority to andl the selection process and enter ito an agreement wth the restaurant operator. Furthermore, he City feilitated the constuction of the resturant and recognized it, w:thout making any objections known tothe Park Grill Pats, forte first iteen months of the restaurant's operation. Nevertheless, the City contends that any cease granted by itis revocable t wil However, the exception tthe revecability of licenses applies to the Kiense gran by the City to the Park Grill. As found supra the Park Grill Parties have spent substantial sums of money, induced inno smal part by the afTmative ats ofthe City, Furthermore, the construction ofthe Park Gril parly benefited the Cig, which had planned ona restaurant in Millenium Park all alone. Finally, x the Cot fond pr, lloeing the City to disavow the Concession ‘Agreement would result in great inury to the Pak Gril aries. Therefore, the Cour finds that the City granted the Pak Gril license to operate the restaurant and is, under the circumstances here, estopped from revoking suclicense X. Inthe Alternative: Statutory Authority ofthe Park District Irrespective of Title As explained supra, the Court has found that the Concession Agreement was not an ulra vires act because \was within the City's general powers, s the entity that planned and controlled Millennium Park, to enter into such a contract, the Park District entered into the Concession Agreement atthe direction ofthe City, and the City subsequently sanctioned it 7 However, even ifthe Court were to assume arguendo thatthe City didnot have the power to enter into or direct an agent to enter into the Concession Agreement in the first place, the power to do so would have rested, in the alternative, with the Park District itself ‘The Court addresses this altemative theory because the Park Grill Parties have raised the issue in their post-trial briefing thatthe Park District had independent authority to enter into the Concession Agreement.” According tothe Park Grill Parties the Chicago Park District Act (the “PDA"), enacted in 1933, places Grant Park under the authority of the Park District and requires the Park District to “exercise control over and supervise the operation” of the park. See 70 ILL. Cow. Star. 1505/1, 1505/26.10-1. The Park Grill Parties argue that, under the PDA and Charlton v. Champaign Park District, the Park District has authority to grant concession licenses. See 110 Il. App. 34 554 (4 Dist. 1982)° ‘The City disputes the Park Grill Parties’ assertion thatthe PDA grants the Park District authority to enter into concession licenses with respect to property to which the Park District does not hold title. The City bases its position on the presence of the phrase “property ofthe Park District” in Section 7.01 ofthe PDA, arguing thatthe word “of” denotes ownership under a plain reading ofthe statute, See 70 IL. Comp. Star, 1505/7.01; Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys, Ine.,131 8. Ct. 2188, 2196 (2011). 7 Te Pak Geil Paras argued forthe is tine in hi opposition tthe City's pro-ial Mosion for Paral Suninary Judgment th, ith rexpect to Parl 3, even fe is vested nthe Cay, the Park Disc was rated the ‘shereat power bythe lisa to ul orrol td decal publi parks ix Chicago, incloding Millennium Park ‘The Court di ot resolve this sue when it denied parti summary judgment. Ase ial the Pack Gril Pars. gna argued tht the City led to prove Ui towed Paes 3 an, ender applicable story provisions, "he Court sould ake notice ht the City di not own Peel 3 an bd no thor Yo contol and det evening that hppens thereon. Although the Patk Gr Pats’ argument fase on the facts peaining to Pare 3, the lowing analysis apis equal o both Paces 3 and Tn addition, the Pak Gril Pars rely upon City of Waukegan» National Gypsum Co. forthe premise hats parc istit ned ot hold te to land inorder tobe tutor enabled lease that and. See 860 F. Sup. 24636 (ND. 2008). As explained infu, the Concession Agreemest snot ease but license, making Charlon, which concerned liens, the more relevant autor. See Houllan, 281 T2408, 315. 38 ‘The Park Grill Parties counter that the portion of the PDA upon which their argument is based does not include the phrase “property ofthe Park District” and that dis phrasing is only ‘ound in other unrelated sections ofthe PDA. Furthermore, the Park Grill Parties argue that even if ownership were required to validate the Concession Agreement, such ownership was vested in the Park District by the Chicago Park and City Exchange of Functions Act (the “EFA") in 1957, Which transferred “title... control and jurisdiction” of all ety parks to the Park District for management, See 70 ILL, CoMP, STAT. 1545/3, The Park Grill Parties assert that Parcel 3 in particular was included in the transfer of authority encompassed by Section 3 ofthe EFA ‘because Parcel 3 was already a part of Grant Park at that time. Section 3 ofthe PDA grants the Park District power to enter into contracts “from the time of the beginning of the term of te first commissioners,” and Section 7 vests in those commissioners “full power to manage and contro all... property ofthe district, amd all parks maintained by such district or committed to its care and custody.” See 70 ILL. COMP. STAT. 1505/3; 70 I. Comp. Star. 1505/7.01 (emphasis added). Although the City argues thatthe phrase “property ofthe district” limits the Park District's management powers to property to Which it holds ttle, the plain language of Section 7 clearly indicates intent by the levislature to encompass both “property of the district” and “parks maintained by such district or committed to its eare and custody” within the grant of authority’ See 70 I. Com. Stat. 150S/7.01 ‘The Appellate Court has interpreted Chapter 8, Section 1 of the similar Park District Code (the “Code”)” as granting park districts governed thereby the implied authority to enter * The ity also point to Section Ish the PDA as limiting the Park Disc’ owe to gran licenses to “property othe Chiego Park Dist" Infact, Seton 5b doesnot cura he Park isis power o cone wader Section 3 nor to mane and conte parks within its jurodicon under Section 7, bt instead crete special dons power of he Park Dart nine constrain and mntensace of public wes "The general soporte powers ofthe park dss within he tao linn ae defined by the Code, which provides, imlart the PA, hat “every park dsr shall, om te time of ts organization, be a body compete 9 {toa concession Hicense wih private entity for operation of a for-profit busines in park owned by that ditt. See Charon v. Champaign Park Dis, 110 Il. App. 34384, 856 th Dist, 1982). In Charlton, taxpayers within the Champaign Park District sought a delaratory judgment that an agreement between a private wateslide operator and the Champaign ask District was invalid because the Code does nt expressly grant park districts the ability to ener into agreements with private entities to operat for-profit businesses on park property fd. a 55— 6, Of particular impor tothe cours finding thatthe park istrict had an implied power to ‘enter into the agreement in Charlion was the fact that the agreement was determine tobe a license rather than a ease. Id Inthe instant eas, tbe Concession Agreement has Been found bea license by the Mlinois Supreme Court!" See Houlihan, 241 Il 24 at 315. The implied power ofthe Park District to enter into a license, such a the Concession Agreement withthe Joint Venture, i nt limited bythe language ofthe PDA to land over which ‘he Park District holds tile. Neither Chariton nor Houlihan discussed ownership as being prerequisite to issuing a license, and contrary assertions ae inconsistent withthe legal character ofa license, particularly where conrol of the property in question—imespective of itle—has been vested by statute inthe licensor. Therefore, even if the Cour assumes, arguend, that he City didnot have power to enter into the Concession Agreement, and assumes, arguendb, that the Park District holds notte othe property in question, the Park District's statutory authority under Sections 3 and 7 ofthe PD: ot invalidated, nor does a license to conduct certain ‘operations at that location convey any real property interest chat is potentially nat the Park ‘tnd polit” ond shall ve amongst powers he ably “o cont inference of any of is corpraie Jpuposes” Se 70 kL Com Stat. 1208, 701, CoM. Star. 12081 The Supreme Cour also found Chariton tbe “istingibabe” fom the fs before tor pupae of cining thatthe agreement consuted a ens, and exlind hat where icense “eel ones ight 0 tse property for specifi purposes not divest cool of sch property rom the ens, 309,312, © District's to convey." Indeed, this conclusion was affirmed by the testimony of Doig, the Park District's Superintendent from 1999 through 2004, and isa recitation in the Concession ‘Management Agreement between the Pak District and Urban. (See Ex, 123.) Ownership ofthe land, by itself, thus eannot be determirative of the Concession Agreements validity. Because the issue of ownership is not determinative, the Court turns next to the question of whether the land at issue here isa part of any ofthe “parks, boulevards, ways and other public property" under the jurisdiction of ether park districts existing inthe 1930s, when the Chicago Park District was ereated, or ifthe land is within one ofthe “parks, driveways, boulevards and parkways.... committed to [the] care and custody” ofthe Park District Although there isa paucity of evidence in the record with respect tothe parcels in ‘question given the late stage at which this argument has been raised, several statutes offer ‘eudance on this issue." As early as 1839, there was a reservation of public grounds “east of ‘Michigan avenue, between Randolph end Madison streets, fronting on Lake Michigan,” which ‘was significantly closer to Michigan Avenue prior tothe filling in of submerged lands and " While lee pases citer he whe or ome prion of ors interest in rpery ta nether pry, iene smal guts “authority to do some act on hand of enter witout passing an est inthe aad See 8 Ci Dept Store nv. Parkway Bg. Corp. 19. App. 2861, 66 (0st ist. 1988) quing TAYLOR'S LANDLORD ‘ano Tense $614,227) The City argues tht it would be “tata” o regard the stator authority of the Prk Dist x ving it the sbi to interfere wih the rights of ter muricipal estes. This usetia ignores well-seted lino precedent ‘ha “te Park Disvc exercises pleary and ecusve jurisdic oer sparks tothe exclusion of other mips ates, and tha courts wll ot give eet os of "one un of local goverment which frstes and contravenes the statutory authority granted o abot.” Se Clement. O'Malley, 98. App. 34824, 431-32 (Ie Dist. 1981) (Ging W:Chicago Park Comms. Chiago, 152.392 405 (184). Where ators bel bythe Pack Distr sths belt exclusion of the Cys aha othe extent that och authority woud be concarent nd conlitng with the Park Dis "Section | ofthe FDA provides that he Chiigo Pat Dist shal exerci control over and supervise he copeatio” ofall parks thon controlled by its pedeenor park euhores within the City of Chicago a 1933, See TD TEL Cove Star. 15051 n 1957, the EFA faber vested ile, con, and json overall cy parks ia he Pak District See 701 Cove Sra. 1545/3 Furthermore, in 1985, when the exiting boundaries of Crt Park ere exe, en amendmen tthe PDA cle tat heey kaoom a Gran Park sal be ur the Jublcion of he Caicngo Pak Dist.” Soo 7011. COM, Sta. 150526 10-1, The ender kes reference ‘another stat, the Grant Park Boundary Ae, nace nthe sane esi, which povided oan expansion of Grant Park over previously submerged lands east ofthe relocated Lake Sbre Drie ad includes a desertion ofthe parklands utes boundaries as of 1985. TILL, COMP. STAT. 1901 a construction ofthe present

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