RES 2014-0324 - Addition of outdoor area to Borgata Brewing and Distilling STATE OF NEBRASKA
Dave Heineman NEBRASKA LIQUOR CONTROL COMMISSION
Governor Hobert B. Rupe Executive Director
301 Centennial Mall South, 5th Floor
P.O. Box 95046
Lincoln,Nebraska 68509-5046
Phone(402) 471-2571
Fax(402) 471-2814
TRS USER 800 833-7352 (TTY)
February 11, 2014
OMAHA cm'CLERK
1819 FARNAM STREET LC-1 _
OMAHA NE 68183
RE:ADDITION
LICENSE #: CK-105561
LICENSEE NAME: BORGATA BREWING&DISTILLING LLC
TRADE NAME: BORGATA BREWING&DISTILLING
ADDRESS: 1116 JACKSON STREET
CITY/COUNTY OMAHA/ DOUGLAS
PHONE: 402-933-2613
CURRENT DESCRIPTION: ONE STORY BUILDING APPROX 44 X 133 INCLUDING BASEMENT AREA
NEW DESCRIPTION: ONE STORY BUILDING APPROX 44 X 133 INCLUDING BASEMENT AREA INCLUDING
OUTDOOR AREA APPROX 10'X 40'.
Please present this request to you city/village/county board and send us a copy of their recommendation. If
recommendation of denial or no recommendation is made the Commission has no alternative but to cease
processing this request.
Randy Seybert
Licensing Division
Nebraska Liquor Control Commission
rs
cc: file
Janice Wiebusch Bob Batt William Austin
Commissioner Chairman Commissioner
An Equal Opportunity/Affirmative Action Employer
FORM 35-4001
REV. 12/99
APPLICATION FOR ADDITION s',
TO LIQUOR LICENSE office use
NEBRASKA LIQUOR CONTROL COMMISSION
301 CENTENNIAL MALL SOUTH
PO BOX 95046
LINCOLN,NE 68509-5046
PHONE:(402)471-2571
FAX(402)471-2814
Website: www.kc.ne.eov
Application:
• Must include processing fee of$45.00 made payable to Nebraska Liquor Control Commission
• Must include a copy of the lease or deed showing ownership of area to be added
o This is still required even if it's the same as on file with our office
• Must include simple sketch showing existing licensed area and area to be added,
outside dimensions in feet must include
(not square feet),direction north. No blue prints.
• May include a letter of explanation
LIQUOR LICENSE# I 0 5 rj(0 1 — C )�
LICENSEE NAME )3 o R.6 j4- i 1A)6 d- Di S 0 c,4,/NG)
TRADE NAME 5,c1711
PREMISE ADDRESS t I \ Afi, S 0„I
CITY AHA- /I J L' 6 g10 ,Z
CONTACT PERSON 2,A C 1141011eg
PHONE NUMBER OF CONTACT PERSON YO 2" Z/ 3 0 3
Complete the following questions:
1) Are you adding on to your building? Q Yes bi No
• Include a sketch of the area to be added showing:
o existing building
O outside dimensions(in feet)
o direction north
2) Are you adding an outdoor area? 12fN, Yes 0 No
If an outdoor area(check one of the following)
❑ 012.07"Beer garden"shall mean an outdoor area included in licensed premises,which is used for the service and
consumption of alcoholic liquors,and which is contained by a fence or wall preventing the uncontrolled entrance or exit of
persons from the premises,and preventing the passing of alcoholic liquors to persons outside the premises. (examples may
include,but are not restricted to sand volleyball,horseshoe pits...)
K ) 150- ` J-O-X?'7 `� s �7 L T--.)
L
1400003373
la012.08"Sidewalk cafe"shall mean an outdoor area included in licensed premises,which is used by a restaurant or
hotel with a restaurant license,for the service of meals as well as alcoholic liquors,and which is contained by a permanent
fence,wall,railing,rope or chain.defining the licensed area,provided that one open entrance not to exceed eight(8)feet
shall be allowed.
What type of permanent fencing will you be using? 1(f�� P1 Pe—
• Include a sketch of the area to be added showing:
cr existing building
I outside dimensions(in feet)
o direction north
Print Name of Signature
Licensee or Officer
State of Nebraska
County of L2/,(pp/a,S-
The forgolg instrument was acknowled fore
me thisent(ge^y ?L7/ �
l Date
Public ignature
Affix Seal Hare
1 GENERAL NOTARY-Stare of Nebraska
ZACHARY E SMITH
PAY Comm.Exp.Aug.8,2017
2
BORGATA BREWERY & DISTILLERY
>y SIDEWALK PLAN - PATIO
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ADJACENT ....♦
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i \ I GAS METER PER M.U.D.
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30x42
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EXIS1'IN6 ClIR6 � t' - '� • \
EXISTING PARKING a'!
PLANTER BOX ATTACHED `�.
TO RAILING - BOTH SIDES METERS (3 TOTAL) V.
STREET LANDSCAPING PLANTER PIV LOCATION \ / \
WITH NATIVE GRASSES, FLOWERS \
(NO TREES) - BOTH SIDES \\ �\ � \
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DEMO EXISTING TREEE AND
SIDEWALK GRATE - PATCH
\ CONCRETE AS REQ`D FOR\
EVEN SURFACE \-
_____ BVH ARCHITECTS { <
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•
Form-WC 1101-1 DEVELOPMENT LEASE
LEASE
This Lease is made and entered into this 3' day of July,2013,by and between
1116 Jackson.L.L.C.
a Nebraska Limited Liability Company
with offices at
1941 South 42nd Street,Suite 550
Omaha,NE 68105
hereinafter called the"Owner",and
Borgata Brewing and Distilling,L.L.C., ,
a Nebraska Limited Liability Company, �F
401 North 38'"Street,
Omaha,Nebraska 68131
•
hereinafter called the"Tenant".
The Owner does hereby lease to Tenant the following demised premises:
Space as shown on Exhibit A attached. Said demised premises contains approximately 5,808 gross square
feet of floor area constructed In accordance with the provisions of Section 1 hereof.
The mailing address of the demised premises is:
1116 Jackson Street
Omaha,Nebraska 68102 }%+ y.►t�,'
In addition to the demised premises,Tenant shall,subject to control and regulation by Owner,enjoy the nonexclusive
use of all common areas including sidewalks provided by Owner, provided Owner shall have the right to locate
fountains,planters,benches and similar items within such common areas.Said demised premises are a portion of a
development known as 1116 JACKSON STREET located at 1116 Jackson Street,Omaha,Nebraska,and are located
within such development as shown on attached EXHIBIT A.
The term of this lease shall begin on(A)the first day of the initial lease year if an initial lease year occurs,as described
tk."' in Section 2,otherwise(B)the first day of the first full lease year,as described in Section 2;and the,termshall continue
thereafter for ten(10)full lease years,ending at 12 o'clock midnight on the last day of the last full lease year.
The remaining terms and conditions of this lease are as fellows:
1. CONSTRUCTION
The demised premises are hereby leased to Tenant as now constructed provided Owner shall complete that work
described as"Owner's Additional Work"on attached EXHIBIT B.
2. DELIVERY OF DEMISED PREMISES
Owner shall give Tenant ten(I0)days written notice oldie date on which Owner will deliverpossession of the demised
premises to Tenant with Owner's Additional Work substantially completed.Prior to Tenants occupancyofthe demised
premises for any finishing,lecturing,or stocking,Tenant shall arrange for its utilities and insurance coverage and
execute and deliver to Owner an Acceptance of Space,which Acceptance may be subject to a punch list of remaining
Owner work items,if any,and Tenant's taking of possession of the demised premises without execution and delivery of
such an Acceptance shall be deemed a confirmation by Tenant that the Owner's Additional Work has been fully
completed and accepted. Owner shall be responsible for repairing or replacing any defective equipment installed in the
1
Al
Form-WC 1101-2 • DEVELOPMENT LEASE
demised premises as part of Owner's Additional Work for a perlod of ninety(90)days after Tenant's Acceptance of
Space or Tenant's taking of possession of the demised premises without execution and delivery of such Acceptance.
3. RENT WINNING DATE
Rent for said space shall begin 180 days after delivery of premises from Owner,which shall be referred to hereinafter
as the"Rent Beginning Date".
After the Rent Beginning Date has been established,time shall be of essence for the performance of this lease.
4. J.EASE YEAR,
Owner's delivery of the demised premises to Tenant shall establish the effectiveness of this lease which shall run from
that day forth,provided,however,that Rent for said space shall not begin until the Rent Beginning Date,as defined
herein. Tenant shall not be liable for any Rent for any time prior to the Rent Beginning Date. If the Rent Beginning
Date falls on a day other than the first day of a calendar month,then the period from the Rent Beginning Date to the
first day of first full calendar month next following the Rent Beginning Date shall be an initial lease year(not counting
against the term,as defined above),for which Tenant shall pay appropriately apportioned rent,and the first day of the
first full calendar month next following the Rent Beginning Date shall be the first day of Lease Year One,as set forth in
the rent schedule below. If the Rent Beginning Date falls on the first day of a calendar month,then the period from the
Rent Beginning Date shall be the first day of Lease Year One,as set forth in the rent schedule below. A full lease year
shall consist of twelve full,consecutive calendar months.
5. OCCUPANCY CONDITION$,
Tenant shall not enter into occupancy of the demised premises until delivery of same by Owner,provided,if Owner is
to complete any additional work in accordance with Section 1,then,with written permission from the Owner and
providing Tenant assumes responsibility for any damage done to the development,Tenant may enter said premises for
purposes of fixturing and preparation for occupancy prior to completion of Owner's additional work. Tenant agrees to
withdraw or replace any of its workmen or contractors who in the opinion of Owner may cause strikes,work stoppage
or picketing of said development. Tenant's property kept,stored or maintained in the demised premises shall be kept,
stored or maintained at the risk of the Tenant.
6. },EASE CONSIDERATION
The consideration for this lease is the mutual covenants of the parties,and each party acknowledges and accepts such
consideration as sufficient. Upon execution of this lease,Tenant shall deliver to Owner a lease deposit in the annoaut of
nine thousand six hundred eighty dollars and no cents($9,680.00)to be applied to the first rent due hereunder.Within
ten(10)business days of Tenant selling the tenth(Ma}unit of subscription in his private placement,Tenant shalt
deliver to Owner a further lease deposit in the amount of eleven thousand sixty-two dollars and no cents(S11,062.00)
to be applied to the first rent due hereunder.
7. REN't
Tenant shall and hereby agrees to pay to the Owner,without demand,deduction,or setoff,at such place or places as the
Owner may designate from time to time in writing,rent for the demised premises as follows:
A. Guaranteed rent,payable monthly,in advance:
Lease Years) Annual Rent Monthly Rent
One S116,160.00 $9,680.00
Two S119,644.80 $9,970.40
Three S123,234.12 $10,269.51
Four $126,931.20 S10,577.60
Five S130,739.16 S10,894.93
Six $134,661.36 $11,221.78
Seven $138,701.16 S11,558.43
Eight $142,862.16 S11,905.18
Nine S147,148.08 S12,262.34
Ten S151,562.52 $12,630.21
B. Percentage Rent: NONE
2
• . li
'1 + 5
Form-WC 1101-3 DEVELOPMENT LEASE
For periods of less than a full lease year,percentage rent,if any,shall be computed on a prorated daily basis.
8. MAINTENANCE OF EXTERIOR AREAS
The demised premises include limited exterior areas consisting primarily of a small paved area and alleyway in the rear
of the building and the public sidewalk in the front of the building. Owner shall maintain these areas in good repair,
including,but not limited to regular cleaning and maintenance and snowresnoval. Tenant shall be responsible to keep
that exterior area reasonably clean,free of debris and snow,and in good repair.Tenant shall pay to Owner each month,
in advance and in addition to the rent,1112 of Owner's good-faith estimate ofthe cost ofOwner's compliance with its
obligations under this Paragraph 8. Tenant shall have no other liability,financial or otherwise,with respect to these
areas,except as may otherwise expresslybe set forth in this Lease. At the end of each Lease Year,Owner shall furnish
Tenant with evidence of Owner's actual costs of fulfilling its obligations under this Paragraph 8(Landlord's Cost
Statement"),as welt as Owner's good faith estimate of the cost of Owner's compliance with its obligations under this
Paragraph 8 for the ensuing Lease Year. If the amount reflected in Landlord's Cost Statement exceeds the amount paid
by Tenant pursuant to the terms of this Paragraph 8,Tenant shall pay the balance due within thirty(30)days of receipt
of Landlord's Cost Statement. lithe amount reflected in Landlord's Cost Statement is less than the amount paid by
Tenant pursuant to the terms of this Paragraph 8,the amount of the overpayment shall be applied as a credit towards the
estimated costs for the ensuing Lease Year.
9. USE
Tenant shall use,occupy,and operate the demised premises. Premises shall be used,occupied,and operated only for
the operation of a distillery,brewery and gastro pub or other restaurant or food and beverage service
use,and retail and entertainment uses related to the foregoing food and beverage, brewery and
distillery uses,all as allowed by law,provided,that Owner acknowledges and agrees that Tenant
may produce and distribute on the demised premises products both for consumption and use thereon
and for consumption,use,distribution or resale at other locations whether or not controlled or
operated by Tenant.
and for no other purposes without the written consent of the Owner,which Owner shall not unreasonably withhold.
Tenant agrees to conduct its business at all times in a responsible and reputable manner. Tenant shall promptlycomply
with all laws affecting the premises hereby leased and the cleanliness,safety,occupation and use of same.Tenant shall
actively operate the business in the demised premises on average for not less than 20 hours per week each month and
45 weeks per year,exclusive of time lost to remodeling,company events,or other such absences.
10, MECHANIC'S AND OTHER„LIENS
Tenant shall use commercially reasonable efforts to avoid allowing any mechanic's,laborer's or materialman's lien to
stand against the demised premises for any labor or material furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have been performed on said premises by or
at the direction of Tenant Tenant shall promptly payall contractors and nsateriabnen,so as to minimize the possibility
of a lien attaching to the demised premises and should any such lien be made or Sled,Tenant shall bond against or
discharge the same within twenty(20)days after written request by Owner.
11, MAINTENANCE AND CARE OF PREMISES
Owner shall keep the foundation,load-bearing outer walls and roofing of the demised premises in good repair,except
that Owner shall not be called on to make any such repairs occasioned by any negligent act or omission of the Tenant,
its agents or employees or customers. Except as provided elsewhere in this lease,Owner shall not be called upon to
make any other improvements,repairs or replacements ofanykind upon the demised premises;and,at the sole cost and
expense of Tenant,the demised premises shall at all times be kept in good order,condition and repair,and shall also be
kept in a clean,sanitary and safe condition and in accordance with alI directions,rules and regulations of the health
officer,fire marshal,building inspector or other proper officers of the governmental agencies having jurisdiction.
Tenant shall at its own expense maintain,repair or replace any glass windows,show windows and doors in or enclosing
the demised premises. Tenant shall clean and maintain the interior and exterior of its store front and its signs and its
show windows,if any,and shall at all times keep its show windows and glass doors in a neat and clean condition. If
Tenant engages in any food service,cooking,or similar or related activity within the demised premises,as permitted by
3
-11
Form-WC l 101.4 DEVELOPMENT LEASE
Section 9 hereof,Tenant shall provide,install and operate smoke,grease and odor control systems including adequate .
exhaust and ventilation systems with make-up air,grease catch pans,fire extinguishing systems with automatic fLel
shut-ors,sanitary sewer grease traps,and such similar or other devices as required by law,with all such systems or
devices to be regularly maintained and serviced by and at the expense of Tenant.
AT EXPIRATION
At the expiration of this lease,all leasehold improvements and fixtures attached to the walls,floors,or ceiling,whether
installed by Tenant or Owner,shall at the option of the Owner be considered a part of the building and remain in the
demised premises as a part of the realty,provided,however,that the bar,and all brewing,distilling,bottling and other
production equipment shall not be subject to the foregoing and shall be and remain the property of Tenant,provided,
further,that Tenant shall remove any such items from the demised premises no later than thirty(30)calendar days alter
the expiration of this lease,and should Tenant fail to do so,in whole or in part,Owner may elect to take possession of
any such items remaining in the demised premises. Tenant shall surrender the premises in good condition,reasonable
wear and tear excepted. Tenant agrees to remove all of its signs of identification within thirty(30)days of the
expiration of this lease and to restore the surface to which they attached.
If;at any time prior to the expiration of this lease,Owner shall desire to sell the property containing the demised
premises,Owner shall give Tenant written notice of such desire at least thirty(30)days prior to listing the property or
otherwise making its availability known to any third-parties and during such period Tenant shall have the right,but not
the obligation,to make Owner a commercially reasonable offer to purchase the property,which Owner shall consider in
good faith. Further,if at any time prior to the expiration of this lease,Owner receives a commercially reasonable offer
from a third-party to purchase the property that is acceptable to Owner,Owner shall give Tenant written notice of the
terms of such offer and Tenant shall have,for fifteen (15)calendar days from the date of the'written notice,the
exclusive right to purchase the property on the same terms and conditions as the third-party offer that is acceptable to
Owner. If Tenant does not exercise its right to purchase the property by providing written notice thereof to Landlord
within fifteen(13)calendar days from the date of receipt of Landlord's written notice,Tenant's exclusive right to
purchase the property shall expire and Landlord shall be entitled to enter a purchase agreement with the third-party
buyer.
12. SIGNS AND CONNTI;UcTION BY TENANT
Tenant agrees to provide signs of identification outside of its demised premises,which signs shall be installed prior to
Tenant's opening for business, but not prior to Tenant's receipt of Owner's written approval of drawings and
descriptions of such signs. Tenant agrees to keep its'signs repaired and in an attractive and safe condition. Tenant
shall obtain any permits or bonds required for signs by governmental regulations.The Tenant agrees not to use any
media in the demised premises that shall be deemed objectionable by the Owner,such as loudspeakers,phonographs,
radio broadcasts,speakers,amplifiers,or flashing lights in a manner to be heard or otherwise distracting outside the
demised premises.The Tenant shall not install any plumbing fixtures,exterior lighting fixtures,shades or awnings or
any exterior decorations or paintings or use any flammable materials above the finished ceiling line of the demised
premises or build any fences,paint,drill,attach to or make any change to the store front,entrances,exterior walls,
exterior signs of identification,marquees,roof or abutting sidewalks or attach any temporary or permanent signs,
advertisements,displays,or prices to its show windows and/or store front glass without previous written consent ofthe
Owner. Tenant shall not repartition or otherwise remodel or make any structural changes in the demised premises
without the written consent of the Owner.
13. COVENANT TO HOLD HARMLESS
Tenant will indemnity Owner and save it harmless from and against any and all claims,actions,damages,liability and
expense arising from or out of the occupancy or use by Tenant of the demised premises or any part thereof;or
occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, employees, lessees or
concessionaires,provided,however,that Tenant shall have no obligation to indemnify Owner or hold Ownerharmless
regarding any claim,action,damage,liability or expense resulting from Owner's action,or inaction,whether negligent
or otherwise. In case Owner shall,without fault on its part,be made a panty or witness or become involved in any
claim,action,damage,liability,expense,or litigation commenced by or against Tenant,then Tenant shall protect and
hold Owner harmless and shall pay all costs,expenses and reasonable attorney's fees incurredby Owner in connection
with such claims,actions,damages or litigation.
4
•
Form-WC 1101-5 DEVELOPMENT LEASE
Owner will indemnify Tenant and save it harmless from and against any and all claims,actions,damages,liability and
expense arising from our out of any act or omission of Owner, its agents, contractors, employees, lessees or
concessionaires related to the demised premises,provided,however,that Owner shall have no obligation to indemuuf'
Tenant or hold Tenant harmless regarding any claim,action,damage, liability or expense resulting from Tenant's
action,or inaction,whether negligent or otherwise. In case Tenant shall,without fault on hs part,be made a party or
witness or become involved in any claim,action,damage,liability,expense,or litigation commenced by or against
Owner,than Owner shall protect and hold Tenant harmless and shall pay all costs,expenses and reasonable attorney's
fees incurred by Tenant in connection with such claims,actions,damages or litigation.
HAZARDOUS HiST4RIALS
Tenant shall not cause or permit any regulated quantity of any toxic or hazardous substance or material including,
without limitation,explosives,radioactive materials,oil,petroleum based products,paints,cleaner agents,solvents,
lead,cyanide,DDT,printing ink,acids,pesticides,ammonia compounds,or other products and materials which are
known to have,or are subsequently found to have,adverse effects on the environment or the health and safety of
persons,to be generated,produced,brought upon,used,stored,discharge,released,spilled or disposed ofon,in,under
or about the demised premises or the development,provided,however,that caustics,acid,sanitizer and substances in
quantities regularly used in brewing and distilling are not subject to the foregoing prohibition. Tenant shall indemnify,
defend and hold Owner and its'partners,members,officers,successors and assigns harmless from and against any and
all actions,costs,claims,damages,fines,penalties,liabilities or losses arising from Tenant's breach of this provision.
14. $IStrRA'1Cg,
Tenant at all times during the term of this lease shall at its expense provide and maintain with respect to the demised
premises(a)comprehensive general public liability insurance on an occurrence basis in form customarily written for
protection of tenants and owners,insuring Tenant and Owner as the named insureds and providing coverage of not less
than One Million Dollars($1,000,000),single limit,for injuries to any one person,for injuries to persons in any one
occurrence and for damage to property,provided,such minimum of insurance coverage shall not limit Tenant's liability
under Section 13 hereinabove;(b)plate glass insurance covering all show windows,plate glass,and/or glass entrance
doors in its demised premises,if applicable,and(c)casualty insurance against fire,vandalism,malicious mischief,
sprinkler leakage if applicable,and such other perils as are from time to time included in a standard extended coverage
endorsement,or such broader form of coverage as Tenant may select, insuring all alterations,additions or other
leasehold improvements and betterments made by Tenant to the demised premises at any time,in an amount sufficient
to replace them. Such casualty insurance shall be provided on a building form issued in the name and for the benefit of
Tenant and Owner as their respective interests may appear. Proceeds received from such insurance shall be used to
repair or replace the insured improvements in accordance with Tenant's obligation in Section 21 of this lease to
standards of construction and quality of materials which are not less than equal to the prior standards and qualities
provided,however,in the event the Owner elects to terminate this lease in accordance with Section 21 hereof;the full
amount of such proceeds shall be paid to the Owner and the Tenant shall be released from its obligation to restore such
improvements. Tenant shall provide Owner with current duplicate policy or policies of all such insurance required of
Tenant,which policy or policies shell include an endorsement that the insurance company or companies cannot amend
or cancel such insurance pollcyorpolicies withoutgiving ten(10)days'prior written notice to the Owner.All fixtures,
inventories,leasehold improvements and betterments,equipment or other property kept,stored or maintained in the
demised practises shall be so kept,stored or maintained at the risk of the Tenant only.
Owner at all times during the tern of this lease shall secure with respect to the foundation,exterior walls,roof;parking
area and other common areas ofsaid development(a)comprehensive general liability insurance providing coverage of
not less than One Million Dollars($1,000,000),single limit,for injuries to any one person,for injuries to persons in
any one occurrence and for damage to property,(b)such other commercially reasonable insurance as Owner shall deem
necessary for the parking areas,common areas or for equipment used in common areas of the development,and(c)
casualty insurance against physical loss or damage from fire,vandalism,malicious mischief and such other penis as are
from time to time included in a standard extended coverage endorsement,or such broader form of coverage as Owner
may select,insuring the insurable building improvements constructed,or required under the terms of this lease to be
constructed,by Owner,(d)sprinkler leakage insurance,if applicable,and(e)loss of rents insurance. The cost of
insurance secured by Owner with respect to this paragraph shall be included in the maintenance costs allocated to
Tenant pursuant to the terms of Section 8 above. Insurance secured by Owner may bear a loss payable endorsement to
protect any mortgagee's interest. Proceeds received from such insurance shall be used for rebuilding in accordance
5
•
Form-WC I t01-6 DEVELOPMENT LEASE
with Owner's obligation in Section 21 of this lease. Nothing in tbis section shall require Owner to insure the fixtures,
inventories,leasehold improvements and betterments,equipment or other property of Tenant.
Tenant agrees to pay any increase in rates for insurance that may at any time from and after the rent beginning date be
r.harEed to the Owner resulting from Tenant's extra-hazardous use or occupancy of the demised premises whether or not
Owner has consented to same. Tenant agrees to maintain in operation and connected to a monitoring system any
sprinkler, smoke detection, or heat or fire prevention or detection device or system located within the demised
premises.
15. ABUSE OF UTILITY SERVICES
The plumbing facilities shall not be used for any purpose other than that purpose for which they arc constructed,and
Tenant shall not use such facilities in a way that one would reasonable anticipate would lead to damage or destruction
of such facilities. The expense of any stoppage,breakage or damage resulting from a violation of this provision shall
be borne by Tenant causing same. If the Tenant installs any equipment that overloads utility lines to or in the demised
premises,Tenant shall at its own expense remove the overload or increase the capacity of such lines and make whatever
changes are necessary to comply with the requirements of Owner,insurance underwriters and governmental authorities
having jurisdiction.
16. OMITTED
17. ASSIGNMENT AND VOTING CONTROL
Tenant agrees that it will not assign or in any manner transfer this lease or any part thereof or any interest or estate
therein to any person or entity that is not owned wholly or in part by Tenant without the previous written consent of
Owner,nor shall the Tenant sublet the demised premises or any part thereof without the previous written consent of
Owner,nor shell Tenant enter into any management contract or other relationship whereby Tenant or its employees are
in less than direct and immediate control of the demised premises and the business operated therein without the
previous written consent Owner. Owner may accept rent or other payments due under this lease from any person,or
entity offering to pay same;and such acceptance by Owner shall not be construed to be an acceptance of such payor as
Tenant hereunder nor as a consent or waiver of consent of any of Owner's rights hereunder. If Tenant is a corporation,
limited liability company or partnership and if at any time during the lease term the person or persons who own a
majority interest of such entity at the time of the execution of this lease cease to own a majority of such interest(except
as the result of transfers by gift,bequest,or inheritance)Tenant shall so notify Owner.
18. ACCESS TO PREMISES
Upon twenty-four(24)hours notice except in an emergency,Owner shall have the right to enter upon the demised
premises at all reasonable hours for the purpose of inspecting the same or adding or rerouting pipes,sprinkler systems,
smoke detection systems,heat or fire detection systems or equipment,conduits or drains to serve the demised premises
or for making repairs,additions or alterations,provided such adding or rerouting shall be handled so as to interfere as
little as possible with the Tenant's use of the premises and Owner shall repair any damage caused by such work The
exercise of said right by Owner shall not give rise to any claim by Tenant for damages,and Tenant expressly waives
any such claim or claims,provided,however, that the foregoing waiver shall not apply in the event of Owner's
negligence.If Owner deems any repairs required to be made by Tenant necessary,it may demand that Tenant make the
same forthwith. For a period commencing ninety(90)days prior to expiration of the term of this lease,the Owner may
have reasonable access to the premises herein demised for the purpose of exhibiting the same to prospective tenants.
19. UTILITIES
Owner agrees to provide the existing mains and conduits to the demised premises in order that the existing utilities may
be supplied,provided Owner shall not be responsible for Tenant's telephone,cable or related service lines. Tenant
shall pay for all utilities including water,sewer use,gas,and electricity used in the demised premises. As a material
condition to this lease,Tenant agrees to have all HVAC and ventilation systems and related equipment professionally
serviced and cleaned on the less frequent of a biannual basis or as the manufacturer recommends,and to supplyOwner
with a copy of the maintenance contract as well as maintenance records upon request. Tenant shall maintain all heating
and cooling equipment serving the demised premises. Owner shall not be liable in damages or otherwise for any failure
or defect in the furnishing of any of'the above utilities,heating or cooling, or for any interruption due to civil
insurrection,war,fire,accident,strike,riot,act of God,the making of necessary repairs or improvements,or any other
6
•
•
Form-WC 1101-7 DEVELOPMENT LEASE
causes beyond the control of the Owner.
•
20. CONDEMNATION
If the whole of the demised premises or the parking area in said development shall be taken under the power of eminent
domain by any public or quasi-public authority,this lease shall terminate and expire as of the date of such taking,and
rent and any other payments shall be paid and prorated as of such date,and Owner and Tenant shall be released from
any further liability hereunder. If twenty percent(20'/0)or more of the floor area of the demised premises shall be taken
or condemned for public use or if fifty percent(50%)or more of the total parking area in said development shall be
taken or condemned for public use and the Owner does not promptly begin the construction of substituted parking
replacing at least the majority of the parking area so taken using double decking,contiguous laud,or underground areas,
then either Tenant or Owner may cancel and terminate this lease by serving upon the other party a written notice of its
intention to cancel within thirty(30)days after the condemnation judgment shall be entered. In the event that such
option to terminate is exercised,rent and any other payments shall be prorated to the date of taking and Owner and
Tenant shall be released of further liability hereunder.lfanyportion of the demised premises is takenforpublic use and
if neither party exercises its option to terminate this lease as permitted in this section above,then the minimum
guaranteed rent provided for under Section 4 shall be reduced as of the date of taking in the proportion which the actual
floor area taken bears to all of the floor area demised and the Owner shall promptly repair,restore,or rebuild for
occupancy by Tenant the portion not so taken. If,during the repair,restoration,or rebuilding required,the demised
premises are not usable in the opinion ofeither the Owner or Tenant,then the Owner or its contractors shall temporarily
have possession and the minimum guaranteed rent shall be abated during the period ofrepair,restoration,or rebuilding.
MI damages awarded or other sums or awards paid on account of any condemnation or taking under the power of
eminent domain of the demised premises,the parking areas,the common facilities or the development,or any portion or
portions thereof shall belong to and be the sole property of Owner whether such damages or other sums are awarded as
compensation for loss or diminution in value of the leasehold,or for the fee of the demised premises,or otherwise;and
in no event shall Tenant have any claim whatsoever against Owner or the conderrming authority for loss or diminution in
value of the leasehold or for the value of any unexpired term of this lease,Tenant hereby expressly waiving any such
right or claim,provided,however,Tenant shall be entitled to any award or portion thereof made for or on account of
any loss or cost to which Tenant might be put in removing Tenant's merchandise,fixtures,equipment or furnishings and
for any loss or damage to the same.
21. pESTRUCTION OR DAMAGE TO PREMISES
If the demised premises become untenantable because of fire or other casualty insurable under insurance required to be
maintained by Owner and Tenant as described in Section 14,the same shall be repaired as speedily as possible at the
expense of Owner and Tenant in accordance with their respective covenants to insure provided,however,if more than
fifty percent(50%)of the floor area of the demised premises becomes untenantable because of such fire or other
casualty or if less than three(3)years of the original term of this lease remain from the date of such fire or other
casualty,Owner may,if it so elects,give notice to Tenant in writing terminating this lease. If the demised premises
become untenantable for more than forty-five(45)days because of any damage or destruction that is not insured,Owner
or Tenant may,if it so elects,give notice to the other party in writing terminating this lease. If Owner elects not to
terminate this lease,it shall, within forty-five(45)days after such damage or destruction,give Tenant notice of its
intention not to terminate and shall proceed with its portion of restoration,if any,and Tenant shall proceed forthwith
with its portion ofrestoration,each thereafter being obligated to restore in accordance with their respective covenants to
insure as set out in Section 14 and each proceeding with reasonable speed to restore the premises.Rent shall be abated
during any insured untenantability period.
22. BANKRUPTCY
In the event Tenant becomes the subject of voluntary or involuntary proceedings under the federal bankruptcy statutes
as are in effect from time to time,Owner shall have all of the rights and remedies available to a landlord under such
statutes.
23. HOLDING OVER
In the event Tenant remains in possession of the demised premises,for restoration or otherwise,after the expiration of
this lease and without the execution of a new lease,it shall be deemed to be occupying said premises as a tenant from
month to month. If Tenant does so continue to remain in possession of the demised premises,it shall pay rent to the
Owner at a prorated daily rate of one and one-quarter(1.25)times the last periodic guaranteed rent rate specified in
7
•
Foam-WC 1101-8 DEVELOPMENT LEASE
Section 4 of this lease;such occupancy shall be subject to all ofthe other conditions,provisions,and obligations of this
lease.
24. WAIVER
One or more waivers of any covenant or condition by Owner shall not be a waiver of a subsequent breach of the same
covenant or condition,and consent or approval by Owner to or of any act by Tenant requiring Owner's consent or
approval shall not waive or render unnecessary Owner's consent or approval to or of any subsequent similar act by the
Tenant.
25. PROTECTION I ROM SUBROGATION
Neither Owner nor Tenant shall be liable to the other for any business interruption or loss or damage to property or
injury to or death of persons occurring on the demised premises or the adjoining properties,sidewalks,streets or alleys,
or in any manner growing out of or connected with Tenant's use and occupation of said premises,or the condition
thereof,or of sidewalks,streets or alleys adjoining caused by the negligence or other fault of Owner or Tenant or of
their respective agents,employees,subtenants,licensees or assignees,to the extent that such loss ordamage to property
or injury to or death of persons is covered by or indemnified by proceeds received from insurance carried by the other
party(regardless of whether such insurance is payable to or protects Owner or Tenant or both)or for which such party
is otherwise reimbursed;and Owner and Tenant each hereby respectively waive all right of recovery against the other,
its agents,employees,subtenants,licensees and assignees,for any such business interruption or loss or damage to
property or innuy to or death of persons to the extent the same is covered or indemnified by proceeds received from
any such insurance,or for which reimbursement is otherwise received,providing that such waiver shall not be operative
in any case where the effect thereof is to invalidate such insurance coverage or increase the cost thereof. Nothing in
this section shall be construed to impose any other or greater liability upon either Owner or Tenant than would have
existed in the absence of this section.
26. NOTICES
Whenever under this lease a provision is made for notice of any kind,it shall be deemed sufficient notice and service
thereof if sent in writing by certified mail with postage prepaid;to Tenant at:
401 North 38*Street
Omaha,Nebraska 68131
or at the last office address of Tenant;and to Owner at:
1941 South 42nd Street,Suite 550
Omaha,Nebraska 68105
27. CONSTRUCTION OF THIS LEASE
Nothing contained herein shall be deemed or construed by the parties hereto,nor by any third party,as creating the
relationship of principal and agent or of partnership or of joint venture between the parties hereto,it being understood
and agreed that neither the method of computation of rent,nor any other provision contained herein,nor anyacts of the
parties herein,shall be deemed to create any relationship between the parties hereto other than the relationship of
Owner and Tenant. Whenever herein the singular number is used,the same shall include the plural,and the neuter
gender shall include the feminine and masculine genders. The captions of the Sections of this lease have been inserted
for convenience and reference only and shall not be deemed in any manner to define, limit,or affect the scope,
meaning,intent or construction ofthe language contained,or not contained,in the particular Sections.If any provision
of this lease shall be held to be invalid,such provision shall be deemed to be a severable provision and the lease itself
shall remain in full force and effect as though the invalid provision had not been included herein. This lease shall be
governed by and construed in accordance with the laws of the State in which the demised premises are located.
28. NONLIABILITY OF OWNER;
Except in the case of Owner's negligence,Owner shall not be responsible or liable to Tenant for any loss or damage
that maybe occasioned by or through the acts or omissions of persons occupying premises above,below,adjoining or
in any other part of the demised premises or for any loss or damage resulting to Tenant or its property from bursting,
stoppage,or leaking water,gas,sewers,downspouts,drains,roofs,fixtures or similar sources.
29. TAXES
8
•
Fonn-WC 1101-9 DEVELOPMENT LEASE
Tenant shall be liable for and shall pay before delinquent all taxes levied against or for any leasehold interest or on
Tenant's right to occupy the demised premises or on personal property and trade fixtures of whatever kind and to
whomever belonging situated or installed in or upon the demised premises. If any such taxes are levied against Owner
or Owner's property or if the assessed value of Owner's property is increased by inclusion of petsonal property,trade
fixtures or other Tenant property located in the demised premises and Owner elects to pay the taxes based on such
increase,Tenant shall pay Owner upon demand that part of such taxes for which Tenant is primarily liable hereunder.
Tenant shall be liable for and shall pay Owner each month,in addition to the rent,one-twelfth(1/12)of the real
property taxes payable by Owner with respect to the demised premises for the calendar year in which the applicable
month falls. If for any month the amount of any tax payable during the then current calendar year shall not have been
determined by the taxing authority,then the tax payable shall be estimated based on the amount of the corresponding
tax for the immediately preceding calendar year,subject to immediate adjustment when the actual amount of such tax
shall be determined If any tax shall be levied,assessed or imposed for any fiscal period which does not contain 12
months,then,in making the computation of taxes as described above for each month in such fiscal period,there shall be
used in lieu of 1/12 of such tax,that proportion arrived at by dividing such tax by the number of months in such fiscal
period.
For the purposes of determining the amounts due under this Section 29,the term"real property taxes"shall include all
real estate taxes,real property related assessments,and other governmental impositions and charges related to the real
property on which the demised premises is located,extraordinary as well as ordinary,foreseen and unforeseen,and
each and every installment thereof,which shall or may during the term of this lease be levied,assessed,imposed,
become due and payable,become liens upon,arise in connection with the use,occupancy or possession of;or grow due
or payable out of,or for,the demised premises. Nothing herein contained shall be construed to include as"taxes"any
inheritance,estate,succession,transfer,gift,franchise,corporation,income or profit tax or capital levy that is or may
be imposed upon Owner; provided, however, that if at any time the methods of taxation prevailing at the
commencement of the term of this lease shall be altered so that in lieu of ores a supplemental,additional or alternative
tax for the whole or any part of the taxes now levied,assessed or imposed on real estate as such there shall be levied,
assessed or imposed any substitute,supplemental,additional or alternative tax or license fee imposed upon Owner
which is otherwise measured by or based in whole or in part upon the development or any portion thereof;then the
same shall be included in the computation of taxes hereunder,computed as if the amount of such tax or fee so payable
were that due if the development were the only property of Owner subject thereto.
If Owner receives a refund of any portion of the taxes previously paid by Tenant,Owner shall refund to Tenant the
proportion of such refund net of expenses(including attorneys'and appraisers'fees)incurred in obtaining such refund,
that is equivalent to the proportion of the original tax paid by Tenant. Tenant shall not institute any proceedings with
respect to the assessed valuation of the development or any part thereof for the purpose of securing a tax reduction
Owner,at Owner's sole discretion,may apply for a reduction or correction of any assessment and may appeal or contest
any assessment provided all costs and expenses(including attorneys'and appraisers'fees)ofsuch application,appeal or
contest shall be,and are hereby specifically agreed to be,included in the definition of"taxes"under this section for
purposes of computing the amount defined in(a)above. It is further agreed that if Owner does not institute or file such
application,appeal or contest,then if Tenant desires to have such proceedings instituted or filed and shall give Owner
written notice of such desire at least twenty(20)days prior to the last day for the institution or filing of same,then
Owner shall institute and diligently prosecute such proceeding provided all costs and expenses(including attorneys'and
appraisers'fees)thereof shall be included in the definition of"taxes"hereinabove and provided Ownermay at anytime
settle such proceedings without the consent of Tenant and said other Tenants. Any application,appeal or contest
instituted hereunder shall be prosecuted under the sole discretion and control of the Owner,and Tenant agrees to
cooperate with Owner in any such application,appeal or contest. Any such refund described hereto,shall not include
any portion of taxes previously paid by Tenant allocated for the repayment of Tax Increment Financing.
30. EXCUSE FOR NONP)EtRFORMANCE
The performance of any obligation or undertaking provided for herein by Owner or Tenant(except for the payment of
rent)shall be excused and no default shall be deemed to exist in the event,and so long as the performance of any such
obligation is prevented,delayed,retarded,or hindered by act of God;fire;earthquake;flood;explosion;action of the
elements;war;invasion;insurrection;riot;mob violence;sabotage;inability to procure or general shortage of labor,
equipment,facilities,materials,or supplies in the open market;failure of transportation;strikes;lockouts;action of
9
Form-WC 1101-10 DEVELOPMENT LEASE
labor unions;condemnation;requisition;laws;orders of government or civil or military or naval authorities;or any
other cause beyond the control of the Owner.
31. OMITTED
32. SPRINKLER SYSTEM
Owner has installed,is hereby granted the option to install,or may cause to be installed,an automatic sprinkler system
(which may include any fire,smoke,or heat detection system)within the demised premises. If a sprinkler system is
installed,Tenant agrees that it will operate it,maintain it in good operating condition,and update and remodel it from
time to time as may be made necessary by any remodeling,repartitioning.refinishing,or redecorating of the demised
premises by the Tenant. The term"update and remodel"as used herein shall include the moving or adding of any
sprinkler heads,modification,or other alterations to the system as maybe required within the demised premises to keep
the system in compliance with the standards and recommendations of any governmental authority or inspection or
insurance rate setting authority. If a sprinkler system is installed,Tenant further agrees that it will carry insurance as
necessary to protect against any losses arising from operation or malfunction of the sprinkler system. Owner shall not
be liable for any interruption of water service to the sprinkler system.
33. TENANT'S DEFAULT IN PAYMENTS
If any rent or other sums due and payable under this lease are not paid by Tenant within five(5)days after same are due
and payable,the rent or other sums payable shall be one and one-tenth(1-1/10th)times the amount otherwise due and
shall in addition to such increased rent bear interest at the maximum rate allowed by law from the date same are due
and payable until paid, If any rent or any other sums payable by Tenant hereunder shall remain unpaid thirty(30)days
after written notice that same are due and payable,then it shall be optional for Owner to re-enter the demised premises,
with or without process of law,declare this lease forfeited and said term ended.
If Tenant shall violate or default covenants,agreements,stipulations(including the Tenant's obligation to fixture,open,
and operate the demised premises)or any other conditions other than the payment of rent and sums payable hereunder
and such violation or default shall continue for a period of thirty(30)days after Owner provides Tenant with written
notice of such violation or default,then it shall be optional for Owner to re-enter said premises,with or without process
of law,and to declare this lease forfeited and the said tens ended.
In the event Owner declares the lease forfeited es provided for in this Section 33,Owner shall have full and uncontested
right to take possession of the premises along with the Tenant's fixtures,inventory or other property on the premises,
holding same as security for the rent due hereunder. But notwithstanding such re-entry by the Owner and the holding of
Tenant's fixtures,inventory or other personal property,the liability of the Tenant for the rent and other covenants for
the balance of the term provided for herein shall not bo relinquished or extinguished. It is further agreed that the
Tenant will pay,in addition to the rent and other sums agreed to be paid hereunder,all costs and expenses incurred by
the Owner as well as such sums as the court may adjudge reasonable as attorneys'fees in any suit or action instituted by
Owner to enforce the collection of the rent due hereunder.
34. Mink
35. EXISTING IMPROVEMENTS AND FINISHES
In the event the demised premises contain previously installed or previously constructed improvements and interior
finishes including,but not limited to,store front,finished ceilings,interior partitions,wall finishes,lighting,floor
covering,electrical wiring,air handling or heating and air conditioning equipment including ducts and diffusers and
controls,Tenant recognizes said improvements and finishes and assumes the obligation therefor in accordance with all
applicable provisions of this lease.
36. L$ASRIN SHORT FORM
Tenant agrees not to record this lease;but each party hereto agrees,on the request of the other,to execute a so-called
"short form"of lease in form recordable and reasonably satisfactory to Tenants and Owner's attorneys. In no event
shall such"short form"set forth the rent or other charges payable by Tenant under this lease,and any such"short form"
shall expressly state that it is executed pursuant to the provisions contained in this lease and is not intended to vary the
terms and conditions of this lease.
10
•
.
Form-WC 1101-11 DEVELOPMENT LEASE
37. ASSIGN
Owner may assign its rights under this lease as security to the holder of one or more mortgages(which term shall
include mortgage,trust deed,or other encumbrance)now or hereafter in force against all or any part of the land or
improvements of the development and to all advances made or hereafter to be made upon the security thereof.
SUBORDINATE
Upon request of the Owner,Tenant will subordinate its rights hereunder to the lien of one or more mortgages(which
term shall include mortgage,trust deed,or other encumbrance)now or hereafter in force against all or any part of the
land and improvements of the development and to all advances made or hereafter to be made upon the security hereof
As consideration for Tenant's agreement to subordinate its rights hereunder, Owner agrees to obtain from any
mortgagee a statement in form reasonably satisfactory to Tenant certifying that such mortgagee will not disturb
Tenant's use and occupancy of the demised premises or Tenant's quiet enjoyment of its rights hereunder during the
term of this lease and to provide a copy of such statement to Tenant.
ATTORNMENT
In the event of Owner's default under any mortgage (which term shall include mortgage, trust deed, or other
encumbrance)whereby Owner loses title to or ownership of the demised premises in favor of a mortgagee,Tenant
agrees to attorn to such mortgagee,any of its successors or assigns(including anyone purchasing said premises at a
foreclosure sale)and to recognize said mortgagee or purchaser as the Owner under this lease.
ESTOPPEL CERTIFICATES
Within ten business days after receipt of Owner's written request,Tenant agrees to execute,acknowledge,end deliver to
Owner,in form reasonably satisfactory to Owner,a written statement certifying,if true,that Tenant has accepted the
demised premises, that this lease is in full force and effect and unmodified(or, if modified, setting forth such
modifications),that Owner has performed all of its'obligations under this lease and is not in default hereunde r,the date
to which the rent and other sums payable by Tenant under this lease have been paid,the commencement and expiration
dates of the lease,and such additional facts es may be reasonably requested by Owner, Tenant acknowledges and
agrees that any such statement delivered pursuant to this Section may be relied upon by any mortgagee or prospective
mortgagee of the demised premises,any beneficiary or prospective beneficiary under a deed of trust,or any purchaser
or prospective purchaser of the demised premises,and by their respective successors and assigns.
OWNER LIABILITY
Notwithstanding anything to the contrary provided in this lease, it is specifically understood and agreed, such
agreement being a primary consideration for execution of this lease,that there shall be absolutely no liability on the part
of Owner,Owner's managing agent,or individual stockholders or partners in the aforementioned entities,their
successors or assigns,with respect to any of the terms,covenants and conditions of this lease except to the extent of
equity in the property,and that Tenant shall look solely to the equity in the property for satisfaction of any and all
remedies of Tenant in the event of any breach of arty of the terms,covenants and conditions of this lease to be
performed by Owner or Owner's managing agent,such exculpation of liability to be absolute and without auyexception
whatsoever.
38. JtEMEDIUSI)MULATIVE
The rights,options,elections,and remedies of Owner and Tenant contained in this lease shall be cumulative;and no
one of them shall be construed as excluding any other or any right,priority,or remedy allowed or provided by law.
• 39. ,SUCCESSORS
All rights and liabilities herein given to or imposed upon the respective parties hereto shall extend to and bind the
respective heirs,executors,administrators,legal representatives,successors,and assigns of said parries. No rights,
however,shall inure to the benefit of any assignee of the Tenant unless the assignment to such assignee has been
approved by the Owner in writing as required in Section 17. In the event ofa sale or transfer of all or anyportion of the
landlord's ownership or interest in the development,the grantor or transferor landlord shall thereafter be relieved*fall
obligations to be performed by Owner under this lease to the extent of the ownership or interest sold or transferred;and,
without further agreement between any of the parties to this lease and the purchaser or transferee,such purchaser or
transferee shall be deemed to have assumed and agreed to carry out all of the obligations of Owner under this lease.
11
•
J
Form-WC 1101-12 DEVELOPMENT LEASE
Notwithstanding the provisions of the preceding sentence,the grantor or transferot landlord shall notberelieved of say
liability to Tenant arising or occurring prior to any sale or transfer and the cumulative rights and obligations of Tenant
hereunder shall remain the same at all times.
40. TENANT'S PLANS FOR OWNER'S RECORDS
In order to enable Owner to have permanent records of the demised premises as constructed,Tenant agrees that prior to
the first opening of the demised premises if any construction is accomplished by Tenant and within ten(10)business
days of the completion of any major remodeling or any remodeling of plumbing lines of the demised premises it will
submit to the Owner one set of its store front plans,interior plans,interior partitioning plans,heating and cooling plans,
lighting and electrical plans,and plumbing plans.
41. $IGNATURE.S OF BOTH PARTIES
This lease shall not be in effect or binding upon either party until it is signed by both parties.
42. OTHER AGREEMENTS
Tenant and Owner hereby agree that this lease as written represents the entire agreement between the parties and there
are no other agreements,written or verbal,between the parties hereto.
43. TENANT IMPROVEMENT ALLOWANCE
Provided Tenant is not then in default hereunder,within ten(10)business days of Tenant providing to Owner a copy of
a certificate of occupancy from the City of Omaha for the demised premises and of appropriate lien waivers for
Tenant's improvements,Owner will pay to Tenant an improvement allowance in the amount of up to Two Hundred
Ten Thousand Dollars($210,000.00)to be applied to Tenant's cost of construction within the demised premises.
Provided Tenant properly exercises it's first(5)year option and is not in default hereunder,Owner will pay to Tenant at
the commencement of the first Option Period an improvement allowance in the amount of One Hundred Thousand
Dollars($100,000.00)to be applied to Tenant's improvements within the demised premises or reduce Tenant's annual
rent by Four Dollars($4)per square foot,at Owner's election. Such Tenant Improvement Allowance shall be used
solely to improve the demised premises,including but not limited to,the replacement of floor and well coverings,paint,
building and mechanical equipment repairs or replacement and similar improvements.Tenant shall provide appropriate
lien waivers to Owner in exchange for such allowance and Owner shall pay such allowance to Tenant,if Owner so
elects,within ten(10)business days of Tenant providing such lien waivers and a copy of a certificate of occupancy
from the City of Omaha for the demised premises.
44. TENANT RENEWAL OPTION
Tenant is hereby granted two(2)five year options to renew this lease provided said options may only be exercised if
Tenant is not in material default(for which default notice shall have been given)at the time of exercise ofsuch options.
The first five year option shall be exercised by Tenant giving notice by certified mail to Owner not less than six(6)
months prior to the expiration of the initial ten(10)year lease term. The second five(S)year option shall be exercised
by Tenant giving notice by certified mail to Owner not less than six(6)months prior to the expiration of the fifteenth
(156)year of lease term(and only in the event Tenant properly exercised the first five(S)year option). The annual
rental rate for the first option period shall be the sum of One Hundred Fifty Six Thousand One Hundred Nine Dollars
and 33/100($156,109.33) annual minimuun guaranteed rent subject to 3%annual increases,payable in monthly
installments of Thirteen Thousand Nine Dollars and 11/100($13,009.11). The annual rental rate for the second option
period shall be the sum of One Hundred Eighty Thousand Nine Hundred Seventy Three Dollars and S0/100
($180,973.50)annual minimum guaranteed rent subject to 3%annual increases,payable in monthly installments of
Fifteen Thousand Eighty One Dollars and 12/100($15,081.12).
12
A?fc
Form-WC 1I01-I3 DEVELOPMENT LEASE
IN WITNESS WHEREOF,the Owner and the Tenant have executed this lease on the day and year first above written.
1116 JACKSON,L.L.C.
By its Manager,-
ERIC WIESELER
Managing Member
OWNER
Borgata Brewery and Distillery,L.L.C.
TENANT
13
/r,Q
Form-WC 1101-14 DEVELOPMENT LEASE
GUARANTY
In consideration of the execution of the Lease dated ,2013,("Leese")by and between 1116
Jackson,L.L.C.,a Nebraska Limited Liability Company,as Owner("Owner"),and,Borgata Brewery and Distillery,L.L.C.,as
Tenant("Tenant"),the undersigned Guarantor("Guarantor"),whether one or more hereby unconditionally guarantees to the
Owner,and its'successors and assigns,the full and prompt payment of all rent due under the Lease and the performance of all
obligations of Tenant under the Lease,and Guarantor hereby agrees to indemnify and hold harmless Owner and its'successors
and assigns from and against all expenses,excluding any attorneys fees,incurred by Owner in enforcing this Guaranty,provided,
however,that no Guarantor shall have any liability hereund er until Owner has provided each Guarantor with writtennotice of the
default for which Owner seeks indemnity and a thirty(30)day period for either Guarantor to cure such default.
The liability of Guarantor under the Guaranty shall not be released or affected by any extension of time for payment or by any
forbearance,waiver, or consent given or granted by such Owner or by any modifications of or amendments to the Lease.
Guarantor agrees that the Owner may settle or compromise any claims which the Owner may have against the Tenant under the
Lease without notice to Guarantor and without thereby releasing Guarantor from any obligations under this Guarantyor limiting
or impairing the liability of Guarantor under this Guaranty. Guarantor agrees that the liability of Guarantor under this Guaranty
shall not be affected,limited,impaired,released,or discharged by any bankruptcy,receivership,insolvency,or other creditor
proceedings involving Tenant. This Guaranty shall be enforceable against Guarantor without the necessity for any suit or other
proceedings on Landlord's part of any kind or nature whatsoever against Tenant. Guarantor further agrees to submit to the
jurisdiction of the courts of the state where the premises covered by the Lease is located with respect to the enforcement of this
Guaranty. Owners'consent to any assignment by the Tenant of the Tenant's interest in the Lease shall not release or impair the
liability of Guarantor under this Guaranty,and this Guaranty shall remain in full force and effect notwithstanding such consent to
assignment and during any extension of the Lean as permitted or provided for in the Lease,provided,however,the Owner shall
consider and in good fhlib accept any reasonable substitute guarantor proposed by Guarantor in the event of any such
assignment,provided,however, that Landlord shall not be obligated to accept a substitute guarantor unless the financial
statements provided to Landlord by such proposed substitute guarantor show a financial net worth exceeding that of the
undersigned Guarantors,collectively on the effective date of the proposed assignment. This Guaranty shall be binding upon the
heirs,personal representatives,successors,and assigns of the undersigned and shall inure to the benefit of the successors and
assigns of the Owner. If more than one party executes this Guaranty,the obligations and liabilities of the undersigned under this
Guaranty shall be joint and several with each party intending to bind his or her respective individual estate. By execution of this
Guaranty,the undersigned Guarantor acknowledges receipt of a copy of the Lease to which this Guaranty applies.
Executed this SIVi day of JU.AY ,2013.
ary Triemert
ARANTOR
•
oll Aal •'ns
GU.17 NTOR
14
Form-WC 1101-15 DEVELOPMENT LEASE
•
1
STATE OF NEBRASKA )
)
COUNTY OF DOUGLAS )
The foregoing was acknowledged before me this 3P' , day of J ,2013
by Eric Wieseler for and on behalf of said individual.
epem.E NW CAA.eleawebrK ra* t1�1*'�
� nr�el�cH
YyCanre.Exp.Noa»L2014 30er?—.ry Public
STATE OF NEBRASKA )
)
COUNTY OF DOUGLAS )
i The foregoing was acknowledged before me this S day of S t,,„4 , 2013
by J.Zachary Triemert for and on behalf of said individual.
jelea+tlw.NOT
ARY-a setae a 1
1�o aLB 2014 9*—"L Q•
My Lbnrn.6ip.f+or.19,201�
Notary Public
STATE OF NEBRASKA )
)
COUNTY OF DOUGLAS )
The foregoing was acknowledged before me this /0* day of j CifLl ,2013
by Holly Mulkins for and on behalf of said individual.
I
p GEIIERAL NOIARY-S1att at NeMa
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OMAHA, Nye
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01117: 11110',
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1819 Farnam—Suite LC 1 n dl
Omaha, Nebraska 68183-0112 0�'4 ; '11� ; •
Buster Brown (402) 444-5550 .o
City Clerk FAX (402) 444-5263 o4Tg p FEBR3t'44
February 25, 2014
Borgata Brewing & Distilling, LLC Application for an addition to your present
Dba"Borgata Brewing & Distilling" Class "C" and Catering Liquor License
1116 Jackson Street location to add an outdoor area approx.
Omaha, NE 68102 10' x 40' to the south
Dear Liquor License Applicant:
This letter is notification that a hearing before the Omaha City Council on your application for
liquor license has been set for March 11, 2014 . The City Council Meeting begins at 2:00
P.M. in the Legislative Chamber, (LC-4), Omaha/Douglas Civic Center, 1819 Farnam Street,
Omaha, Nebraska. City Council Liquor Rule No. 6 states, "Each applicant or his/her representative
for any type of license shall be personally present in the Council Chambers, in order that the
Council may make inquiries, on the date of public hearing of the application for said license".
Failure to be present at this Council Meeting is grounds to recommend denial of your application to
the Nebraska Liquor Control Commission.
If you are making changes to the type of business or the type of activities that will be operated
on the new premises. Please complete and return the attached. Ordinance No. 37046, passed
June 7, 2005, requires each applicant to submit a written statement describing all types of business
or activities that will be operated on the premises in conjunction with the proposed license.
Attached is the statement to be signed and returned (hand deliver, mail or fax) to the City Clerk's
Office 7 days in advance of the public hearing.
Sincerely yours,
Buster Brown
City Clerk
BJB:clj
PLANNING DEPARTMENT REPORT
DATE: FEBRUARY 12,2014 DUE DATE: FgBRUARY 27,2014
+:
CITY COUNCIL HRG MARCH 11,2014
LOCATION: 1116 JACKSON STREET
LEGAL DESCRIPTION:REO AN ADDITION OF AN OUTDOOR AREA APRPDX 10' X 40'
TO THE SOUTH
APPLICANT: BORGATA BREWING & DISTILLING,LLC,DBA"BORGATA BREWING
& DISTILLING"
REQUESTED LICENSE OR ACTION: ADDITION TO THEIR PRESENT CLASS "C"AND
CATERING AND PENDING CLASS "L"AND CLASS "Z"LIQUOR LICENSE LOCATION
NEW LOCATION(X)NEW OWNERSHIP ( ) TYPE OF FACILITY: BAR/BREWERY
THIS REQUEST DOES(X) DOES NOT 0 PERTAIN TO AN OUTSIDE AREA
IF SIDEWALK CAFE: R-O-W-LEASE S PERMITS OBTAINED
IF OUTSIDE: OUTSIDE AREA IS 11-- FEET FROM THE NEAREST RESIDENCE
THIS PROPERTY IS ( X ) IS NOT( )WITHIN OMAHA'S CORPORATE LIMITS
(If not,do not proceed-Notify the City Clerk's Office and return this form)
ANNEXATION DATE: ORDINANCE NO. (Only/f w' in last 24 months)
EXIS G ZONING: C__IoD A CT 1 EXITING LAND USE:h� 2 W
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EXISTING USE DOES( DOES NOT( )COMPLY WIT NING REGULATIONS
PLUMBING FIXTURES PROVIDED: WOMEN'S- l 1(yv car\
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DATE SUBJECT PROPERTY WAS POSTED: Z- — ' e
(Rule#7) DISTANCE OF PROPOSED LICENSE TO ANY SCHOOL,CHURCH,OR CITY PARK: Cj +=—
DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: O e---
(State Law) DISTANCE OF PROPOSED LICENSE TO ANY CHURCH --
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BORGATA BREWERY & DISTILLERY
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NOTICE OF LIQUOR LICENSE APPLICATION
This notice is to inform you that
BORGATA BREWING & DISTILLING, LLC
DBA "BORGATA BREWING & DISTILLING"
has applied for an
ADDITION TO THEIR PRESENT CLASS "C" (On & Off Sale beer,
wine and liquor]; AND CATERING LIQUOR LICENSE LOCATION
TO ADD AN OUTDOOR AREA APPROX. 10' X 40' TO THE
SOUTH
located at 1116 JACKSON STREET
The Omaha City Council will hold a public hearing regarding this
application on Tuesday, MARCH 11, 2014 at 2:00 P.M. in the
Legislative Chambers, Omaha/Douglas Civic Center at 1819 Farnam
Street. Testimony will be received from interested parties at this
meeting. You may submit written testimony to the City Clerk, 1819
Famam Street, Omaha, NE 68183 prior to the hearing date.
Buster Brown
City Clerk
ALL REQUESTS FOR SIGN LANGUAGE INTERPRETERS (SIGNERS) WILL REQUIRE A MINIMUM OF 48
HOURS ADVANCE NOTICE. IF ALTERNATIVE FORMATS ARE NEEDED, ALL REQUESTS WILL
REQUIRE A MINIMUM OF 72 HOURS ADVANCE NOTICE. PLEASE NOTIFY BUSTER BROWN, CITY
CLERK,444-5557, IF ARRANGEMENTS NEED TO BE MADE.
No.
Borgata Brewing and Distilling, LLC, dba
`Borgata Brewing and Distilling", 1116
Jackson Street, requests permission for an
addition to their present Class "C"; Catering;
Class "L" and Class "Z" Liquor License
location of an outdoor area approx. 10' x 40' to
the south. Property posted: 02-24-14;
Notification sent: 02-28-14.
03-11-14;cj
3
RECEIVED
Presented to Council:
March 11, 2014 - Approved �-
Buster Brown
City Clerk