RES 2013-0967 - Addition to extend existing north terminal snack bar area for Rigel Airport Services i
STATE OF NEBRASKA
Dave Heineman NEBRASKA LIQUOR CONTROL COMMISSION
Governor
€„, Hobert B. Rupe Executive Director
13 ��H 2 301 Centennial Mall South, 5th Floor
P.O. Box 95046
Lincoln,Nebraska 68509-5046
CITY C . `r? Phone(402) 471-2571
1 i rg tE r:;, Fax(402) 471-2814
TRS USER 800 833-7352 (TTY)
June 24, 2013
OMAHA CITY CLERK
1819 FARNAM STREET LC-1
OMAHA NE 68183
RE: ADDITION
LICENSE#: C-045909
LICENSEE NAME: RIGEL AIRPORT SERVICES LLC
TRADE NAME: RIGEL AIRPORT SERVICES
ADDRESS: EPPLEY AIRFIELD 4501 ABBOTT DRIVE
CITY/COUNTY: OMAHA/ DOUGLAS
PREMISE PHONE: 402-391-3027
CURRENT DESCRIPTION: AREAS LICENSED: NORTH TERMINAL-SNACK BAR 78'X 421 PAULI'S
49'X 75'; CONFERENCE CENTER 90' X 45';THE HANGER LOUNGE
63'X 25'. CENTRAL TERMINAL-AERO ENT 106'X 101'. SOUTH TERMINAL-
BUFFETERIA/LOUNGE 120'X 60'
NEW DESCRIPTION: AREAS LICENSED: NORTH TERMINAL-SNACK BAR 93'X 42; PAULI'S
49' X 75'; CONFERENCE CENTER 90'X 45';THE HANGER LOUNGE 63'X 25'. CENTRAL TERMINAL-AERO ENT
106'X 101'. SOUTH TERMINAL BUFFETERIA/LOUNGE 120'X 60'
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
LIQUOR LICENSED ESTABLISHMENT HISTORY
LICENSE #C 45909
RIGEL AIRPORT SERVICES, LLC 4501 ABBOTT DR - EPPLEY AIRFIELD 68110 422-6376
NLCC ORDERS
09-17-03 -STOCKHOLDER CHANGE VP/SECR *06-23-06 -CHANGE OF LOCATION
APPROVED *
OTHER ACTIVITIES
10-19-99 -TRANSFER FROM HOST INTERNATIONAL, INC * GRANT RES #2770 * 5-16-06 -
REQ CHANGE OF LOCATION TO THE NORTH HANGER APPROX 42' X 78' CCID #521
APPROVED * 5-23-09 -TAVERN REPORT RE: SELLING TO A MINOR * 07-23-13 - REQ ADD
TO EXTEND THE EXISTING NORTH TERMINAL SNACK BAR AREA FROM 78' X 42' TO 93' X
42' *
LICENSED PREMISES
LICENSED AREAS -NORTH TERMINAL -SNACK BAR 78' X 42'; PAULI'S 49' X 75';
CONFERENCE CENTER 90' X 45'; THE HANGER LOUNGE 63'X 25'; CENTRAL TEREMINAL-
AERO ENT 106' X 101' - SOUTH TERMINAL -BUFFETERIA/LOUNGE 12-' X 60' * * **
* (OLD-2006 -SNACK BAR 30' X 51' PLUS 10' X 34' TO THE WEST; NO SATELLITE; DINING
RM LOUNGE 120' X 54' & CONFERENCE CTR 125' X 44' & PATIO 35' X 41' NO TERMINAL;
AERO ENT 106' X 101' OF CENTRAL TERMINAL; BUFFETERIA/LOUNGE 120' X 60' SOUTH
TERMINAL EXCLUDING SNACK BAR 33'X 33' SOUTH SATELLITE)
OFFICERS:
STKHLDRIMGR-BRAIN BARTLING, 3327 NO 161STAVE, 68116 (C) 510-7520 (H) 561-9954 *
PRES-JOHN CHISHOLM, 416 SO 96TH STR 68114 (H) 397-4261 * CORP ADDRESS &
PHONE#-8420 W DODGE RD, STE 110, 68114#391-3027 ** *9-17-03-(OLD-VP/SECR/MEM-
VINCENT MORRISSEY)(OLD CORP ADDRESS-1125 SO 103RD STR, STE 580, 68124) *
(2012-2013 RENEWAL -OLD-VP/SEC-DARREN L TAYLOR)
�. Print Form
APPLICATION FOR ADDITION
TO LIQUOR LICENSE Office Use
NEBRASKA LIQUOR CONTROL COMMISSION
301 CENTENNIAL MALL SOUTH
PO BOX 95046
LINCOLN,NE 68509-5046
PHONE:(402)4712571
FAX:(402)471-2814
Website: www.lcc.ne.gov•
t
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 (�S
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,must include
outside dimensions in feet(not square feet),direction north. No blue prints.
• May include a letter of explanation
LIQUOR LICENSE# 045909
LICENSEE NAME Rigel Airport Services,LLC
TRADE NAME Rigel Airport Services
PREMISE ADDRESS`450i Abbott Drive ,
CITY
CONTACT PERSON Brian K.Bartling
PHONE NUMBER OF CONTACT PERSON (402)391-3027
Complete the following questions:
licensed area
1) Are"you adding on to your Mom? *** L Yes El No
•.. Include a sketch of the area to be added showing: *** Licensee is applying for addition to its
O existingbuilding
currently licensed area described as:
O outside dimensions(in feet) NORTH TERMINAL-SNACK BAR" 78' X 42'.
o direction.north
2) . Are you adding an outdoor area? ID 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 -
include,but are not restricted to sand volleyball,horseshoe pits-) .
$ 4. 5 ,rntr\ 1300015431
Q 012.08'Sidewalk cafe"shall mean en outdoor area included in Boomed premises,which is used by a restaurant or
hotel with a zeaasarant license,for the service of meals as well as alcoholic liquors,and which is eggliazIkkozagmeig
•
butisamiliglliggaggegrsbgig,defining the licensed area,provided that one open entrance not to exceed eight(8)feet
shall be allowed pp
What type of permanent fencing will you be using?* S�e a R a-A ed 1e-IfiC r ..M
• Include a sketch of the area to be added showing:
o existing building
o outside dimensions on feet)
o direction north
j3ftqy lit,(1 f oti
Print Name of Signature
Signature of Licensee or Officer
State of Nebraska
County of g7,60(9)
•
The feinstrureent wee me tbur &AL- �y,G� acknowledge a'(� before
Date
Notary a
ANis Sat nen GENERAL NOTARY-State of Nebraska
�I BRENDA L.KNAUB
k My Comm.Exp.Aug.31,2013
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FREDERICK S.CASSMAN,OF COUNSEL ABRAHAMS JAMES A.TEWS
ROBERT M.SCHARTZ*
HOWARD J.KASLOW K A S L O W &
FRANK F.POSPISHIL(1942-2009) ROBERT
SECKMAN JILEK
JOHN W.HERDZINA CASSMAN L L P JENNIFER L.RATTNER*
HARVEY B.COOPER _...__..__. NATHANIEL J.WARNOCK
RANDALL C.HANSON ATTORNEYS AT LAW RYAN M.KUNHART
K
R.CRAIG FRY ATHRYN A.KOTLIK
TIMOTHY M.KENNY MILTON R.ABRAHAMS
ERIC H.LINDQUIST 8712 WEST DODGE ROAD,SUITE 300 • OMAIIA,NEBRASKA 68114-3450 1905-2000
THOMAS J.MALICKI (402)392-1250 • FAX:(402)392-0816
AARON D.WEINER www.akclaw.com BEN E.KASLOW
JEFFREY J.BLUMEL 1907-1993
NICHOLAS T.DAFNEY
•ALSO ADMITTED IN IOWA
June 13, 2013
Via Email(marv.messmanAnebraska.gov)
Hard Copy to Follow by Mail
Nebraska Liquor Control Commission 0 '
Attn: Ms. Mary Messman (.'•# ,',"
301 Centennial Mall South
PO Box 95046
Lincoln,Nebraska 68509-5046
Re: Rigel Airport Services, LLC (License#045909)
Dear Mary:
This office represents Rigel Airport Services, LLC ("Rigel"), a Nebraska limited liability
company, and the holder of the above identified license issued under the Nebraska Liquor
Control Act.
We are enclosing with this letter an Application for Addition to Liquor License
pertaining to that portion of the premises licensed by License #045909 (the "License") described
as: NORTH TERMINAL—SNACK BAR 78' X 42' (the "North Terminal Licensed Area"). The
North Terminal Licensed Area is one of six areas that constitute the premises operated by Rigel
Airport Services, LLC ("Rigel") under the License. All are located inside the airport at Eppley
Airfield in Omaha,Nebraska.
Please note that the addition merely represents an interior expansion of the prior seating
area for patrons who have purchased alcohol or other beverages from the bar that is located
within the prior North Terminal Licensed Area and that has not be modified in conjunction with
the addition. The addition is depicted on the enclosed sketch in the shaded area, which also
identifies the outside dimensions of the addition in feet. The sketch shows the approximate
locations of the two entryways on the north side of the addition. The exterior boundaries of the
addition consist of a 3'6"tall barrier constructed along the west, east, and north boundaries of the
addition, with the exception of the entryways. The sketch also shows the total dimensions of the
North Terminal Licensed Area as expanded by this addition.
TMK/408698.3
OMAHA AFFILIATE OF TIT MERITAS LAW FIRMS WORLDWIDE
ABRAHAMS KASLOW& CASSMAN LLP
Nebraska Liquor Control Commission
Attn: Ms. Mary Messman -2- June 13, 2013
In addition to the Application for Addition to Liquor License and a check payable to the
Nebraska Liquor Control Commission in the amount of$45.00, we have enclosed a copy of the
amendment to the Lease Agreement dated as July, 2012, by and between Rigel and the Omaha
Airport Authority related to the expanded North Terminal Licensed Area.
Please contact me if you have any questions regarding any of the enclosed documents or
if you need any additional information at (402) 392-1250. If I am not available, please contact
my partner, Mr. Thomas J. Malicki. Thank you for your assistance in this matter.
Sincerely,
T. by M. enny
r e Firm
TMK/cros
Enclosures
cc: Brian Bartling
TMK/408698.3
•
EXHIBIT B
• 7/17/12
GUARANTY OF LEASE.
WHEREAS, RIGEL AIRPORT SERVICES, LLC a Nebraska corporation, having its
principal place of business at 4501 Abbott Drive, Suite 2200, Omaha, Nebraska, 68110 is
desirous of continuing its Lease for Food and Beverage Concession, hereinafter mentioned, as
Concessionaire("Rigel"); and
WHEREAS, Guarantor (as defined below) has requested the Omaha Airport Authority
("Omaha Airport Authority"), to continue its lease with Rigel known as the food and beverage
concession at Eppley Airfield in Omaha,Nebraska,Douglas County ("Lease");and
WHEREAS a previous Guaranty of Lease, dated September 17, 1999, was signed by
individual Guarantors who are no longer shareholders/owners of Rigel;and
WHEREAS, the Omaha Airport Authority has refused to continue the said Lease unless
the new Guarantor guaranties said Lease("Guaranty")in the manner hereinafter set forth.
NOW, THEREFORE,to induce the Omaha Airport Authority to continue said Lease,the
undersigned shareholder(s) of Rigel("Guarantor,"whether one or more),hereby agrees:
1. (a) Guarantor unconditionally guaranties to the Omaha Airport Authority and the
successors and assigns of the Omaha Airport Authority, the full and punctual
performance by Rigel (which Term shall be deemed to include its successors), of all
the terms in said Lease on Rigel's part to be performed. This Guaranty shall remain
in full force and effect in the event Rigel assigns the Lease or sublets the demised
premises. This Guaranty shall include any liability of Rigel which shall accrue under
said Lease for any period preceding as well as any period following the Term in said
Lease specified. The Guarantor waives notice of any default by Rigel.
(b) If, at any time, default shall be made by Rigel in the performance or observance
of any of the terms in said Lease on Rigel's part to be performed, Guarantor will,on
demand, pay to the Omaha Airport Authority the rent, additional rent and other
charges, including but not limited to, arrears thereof that may remain due to the
Omaha Airport Authority, and all damages that might arise in consequence of Rigel's
default, including all reasonable attorneys' fees that may be incurred by the Omaha
Airport Authority enforcing Rigel's agreements or that may be incurred by the
Omaha Airport Authority in enforcing the agreements of Guarantor hereunder,
without requiring notice from the Omaha Airport Authority of any such defaults by
Rigel.
shmweioldhardArinr/GumdukMcrd9(athoULeax/Ribel EJ,ibi,8
Page 1 of 4
2. Guarantor may, at the Omaha Airport Authority's option, be joined in any action
commenced by the Omaha Airport Authority against Rigel in connection with and
based upon the Lease or any term thereof, and recovery may be had against Guarantor
in such action or any independent action against Guarantor without the Omaha
Airport Authority first asserting, prosecuting or exhausting any remedy or claim
against Rigel.
3. Any act of the Omaha Airport Authority, or the successors or assigns of the Omaha
Airport Authority, consisting of a waiver of any of the terms of said Lease, or the
giving of any consent to anything related to said Lease, or the granting of indulgences
or extensions of time to Rigel, may be done without notice to or consent of
Guarantor.
4. The obligations of Guarantor shall not be released by the Omaha Airport Authority's
receipt, application or release of security given for the performance and observance of
the terms in said Lease on Rigel's part to be performed; nor by any modification of
such Lease, but in case of any such modification the liability of Guarantor, shall be
deemed modified in accordance with the terms of any such modifications of the
Lease.
5. (a) The validity of this Guaranty and the obligation of Guarantor shall not be
terminated, affected or impaired by reason of any action which the Omaha Airport
Authority may take or fail to take against Rigel or by reason of any waiver of, or
failure to enforce, any of the rights or remedies reserved to the Omaha Airport
Authority in the Lease,or otherwise.
(b) The validity of the Guaranty and the liability of Guarantor shall not be
terminated or impaired by the: (a) release or discharge of Rigel in any creditors'
receivership, bankruptcy or other proceedings; (b) the impairment, limitation or
modification of the liability of Rigel or the estate of Rigel in bankruptcy, or of any
remedy for the enforcement of Rigel's liability under the Lease, resulting from the
operation of any present or future provision of the Bankruptcy Code or other statute
or from the decision of any court; (c) rejection or disaffirmance of the Lease in any
such proceedings; (d) assignment or transfer of the Lease by Rigel; (e) disability or
other defense of Rigel; or (f) cessation from any cause whatsoever of the liability of
Rigel. Guarantor waives any and all suretyship defenses.
b. In the event of termination of the Lease pursuant to the provisions thereof or in the
event of the disaffirmance of rejection of the Lease in any bankruptcy or insolvency
proceedings, the Guarantor shall, upon request of the Omaha Airport Authority: (a)
pay to the Omaha Airport Authority all rent, additional rent and other charges due and
owing from tenant to the Omaha Airport Authority under the Lease to and including
the date of such termination, disaffirmance or rejection, and (b) enter, as "Rigel,"into
a new lease with the Omaha Airport Authority, of the premises demised in the Lease,
for a term commencing on the effective date of such termination, disaffirmance or
rejection, and ending on the date fixed in the Lease for its natural expiration (unless
Page 2 of 4
i
such new lease shall be sooner terminated or therein provided) at the same rent,
additional rent and upon the same executor terms, covenants and conditions as are
contained in the Lease except that: (a) the Guarantor's rights as "Rigel" under the
new lease shall be subject to the possessory rights of Rigel under the.Lease and the
possessory rights of any person, firm or corporation claiming by, through or under
Rigel or by virtue of any statute or of any order of any court, and (b) such new lease
to Guarantor shall require that all defaults existing under the Lease be cured by
Guarantor with due diligence. In the event Guarantor shall default in its obligation to
enter into said new lease and such default shall continue for a period of 10 days
following the Omaha Airport Authority's request therefore, then, in addition to all
other remedies by reason of such default, either a law or in equity the Omaha Airport
Authority shall have the same rights and remedies against Guarantor as if Guarantor
has entered into said new lease and said new lease had thereafter been terminated, as
at the commencement date thereof,by reason of Guarantor's default thereunder.
7. Until all Terms in the Lease on Rigel's part to be performed are fully performed,
Guarantor: (a) shall have no right of subrogation against Rigel by reason of any
payments or acts of performance by Guarantor, in compliance with the obligations of
Guarantor hereunder; (b) waives any right to enforce any remedy which Guarantor
now or hereafter shall have against Rigel by reason of any one or more payments or
acts of performance in compliance with the obligations of held by Guarantor to the
obligations of Rigel to the Omaha Airport Authority under said Lease.
8. This Guaranty shall apply to the Lease, any extension or renewal thereof and to any
holdover term following the Term or any extension or renewal thereof.
9. This Guaranty shall be construed in accordance with and governed by the laws of the
State of Nebraska. All litigation between the parties with respect to this Guaranty
shall be conducted in Douglas County.
10. This instrument may not be changed, modified, discharged or terminated in any
manner other than an agreement in writing signed by Guarantor or the Omaha Airport
Authority.
11. This Guaranty shall be binding on Guarantor; its successors and assigns, and shall at
all times inure to the benefit of all parties comprising the Omaha Airport Authority,
their and each of their respective heirs, executors, administrators, successors and
assigns.
12. Upon execution of this Guaranty, the Guaranty of Lease dated September I7, 1999
becomes null and void.
Page 3 of 4
IN WITNESS WHEREOF, Guarantor has hereunto set his hand as of this day of
2012.
RIG IRPORT SERVICES,LLC
By:
Brian Bartling, Shareholder
CS1A%
Bnan Bartling,Individually
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
G�fi�T''
On this day of , 2012, before me a Notary Public for said county and state
personally came Brian Bartling, known to me to be identical person who subscribed his name to
the foregoing as Shareholder of RIGEL AIRPORT SERVICES, LLC and acknowledged the
execution thereof to be his voluntary act and deed and the voluntary act and deed of said
corporation.
Notary Public
GENERAL NOTARY•State of Nebraska
BRENDA L.KNAUB
My Comm.Exp.Aug.31,2013
Page 4 of 4
EXHIBIT C
HOURS OF OPERATION
Location Hours
•
slAngie/oldharddrivelfronldesk/word/KaihoUlease/Rigel hours
-`
`
OMAHA AIRPORT AUTHORITY
LEASE FOR
FOOD AND BEVERAGE CONCESSION
EPPLEY AIRFIELD
RIGEL AIRPORT SERVICES,LLC
July 2012
YangiclRornda Wnoni/KailloUIrxdRi jel 2012
TABLE OF CONTENTS
ARTICLE I-TERM OF LEASE 1
1.1 Dates of Term 1
1.2 Termination 1
1.3 Prior Lease 1
ARTICLE II- LEASED PREMISES 2
2.1 Leased Premises 2
2.2 Terminal Area Occupancy 2
ARTICLE III- RENTALS AND CHARGES 2
3.1 Rent 2
3.2 Branded Items 3
3.3 Gross Receipts 3
3.4 Rental Calculation 3
3.5 Advance Payment 4
3.6 Statement of Gross Receipts 4
3.7 Payment Upon Termination 4
3.8 Independent Contractor 4
3.9 Late Payment 4
3.10 Personal Guaranty 5
3.11 Renovation/Expansion Cost Reimbursement 5
ARTICLE IV-ACTIVITIES, USES,PRIVILEGES AND OBLIGATIONS
OF RIGEL 5
4.1 Definition 5
4.2 No Exclusive Rights 5
4.3 Hours of Operation 6
4.4 Quality of Operation 6
4.5 Licenses 6
4.6 Management and Employees of Rigel 7
4.7 Rules and Regulations 7
4.8 Taxes and Assessments 7
4.9 Waste Disposal 7
4.10 Cleaning and Pest Control 7
4.11 Costs of Operation 8
4.12 Modifications to Leased Premises 8
4.13 Public Address System 8
4.14 Signage 8
4.15 Other Businesses 9
4.16 Quality of Operation 9
4.17 Concept Performance Evaluation 9
ARTICLE V - RIGHTS AND COVENANTS OF THE OMAHA AIRPORT
AUTHORITY 9
5.1 Exclusive Jurisdiction of the Omaha Airport Authority 9
5.2 Peaceful Possession 9
5.3 Maintenance of Publicly Owned Facilities 10
5.4 Development and Improvement of Public Facilities 10
5.5 Protection of Aerial Approaches 10
5.6 Superseding Governmental Agreement 10
5.7 Rights of Rigel 10
5.8 Right of Flight 10
5.9 Insurance on Leased Premises 10
5.10 Right to Enter Leased Premises 11
ARTICLE VI-LEASEHOLD IMPROVEMENTS,FIXTURES,EQUIPMENT,
FURNITURE, SMALLWARES AND MAINTENANCE 11
6.1 Leasehold Improvements 11
6.2 Fixtures and Furnishings and Smallwares 11
6.3 Other Costs 11
6.4 Additional Alterations and Additions 11
6.5 Structural and Exterior Maintenance 12
ARTICLE VII-RECAPTURE AND RESTORATION 12
7.1 Removal of Fixtures and Equipment and Smallwares Upon Termination 12
7.2 Continuation of Business Upon Termination 12
7.3 Liquor License 12
ARTICLE VIII - SECURITY 13
8.1 Directives 13
ARTICLE IX—DAMAGE OR DESTRUCTION TO LEASED PREMISES 13
9.1 Minor Damage Repair 13
9.2 Major Damage Repair 13
9.3 Damage to Rigel's Personal Property 13
ARTICLE X -ACCOUNTING RECORDS AND REPORTS 14
10.1 Rigel Services Records 14
10.2 Audit by Independent Accountant 14
ARTICLE XI-INSURANCE REQUIREMENTS AND INDEMNIFICATION 14
11.1 Indemnification by Rigel 14
11.2 General Liability Insurance 15
11.3 Waiver of Subrogation 15
11.4 Workers' Compensation Insurance 16
ARTICLE XII - TERMINATION BY RIGEL 16
ARTICLE XIII-TERMINATION BY THE OMAHA AIRPORT AUTHORITY 16
13.1 Termination of Lease by the Omaha Airport Authority 16
13.2 Cancellation of Lease by the Omaha Airport Authority 18
ARTICLE XIV -BANKRUPTCY OR INSOLVENCY 18
14.1 Events of Bankruptcy 18
14.2 Petition Filing 18
14.3 Assumption or Assignment in Bankruptcy 19
14.4 Failure by Rigel 20
14.5 No Default Waived 21
14.6 Lease 21
14.7 Obligations 21
14.8 Remedies 21
ARTICLE XV-ASSIGNMENT AND SUBLETTING 22
ARTICLE XVI - HOLDING OVER 22
ARTICLE XVII - GENERAL PROVISIONS 23
17.1 Rules and Regulations 23
17.2 Compliance with Law 23
17.3 Notices, Consents and Approvals 24
17.4 Federal Requirements 24
17.5 Governing Law 26
17.6 Nonliability of Agents and Employees of the Omaha Airport Authority 26
17.7 Incorporation of Required Provisions 26
17.8 Nonwaiver of Rights 26
17.9 Invalid Provision 26
17.10 Consent of the Parties 27
17.11 Force Maj eure 27
17.12 Successor Bound by Terms 27
17.13 Headings 27
17.14 Incorporation of Exhibits 27
17.15 Entire Agreement 27
17.16 Subordination Provision 27
17.17 Subordination to Bonds of Omaha Airport Authority 28
17.18 Issuance of Bonds by Omaha Airport Authority 28
EXHIBIT A - LEASED PREMISES
EXHIBIT B - GUARANTY OF LEASE
EXHIBIT C - HOURS OF OPERATION
OMAHA AIRPORT AUTHORITY
LEASE FOR
FOOD AND BEVERAGE CONCESSION
THIS LEASE, made and entered into this day of , 2012, by
and between the Airport Authority of the City of Omaha, a municipal corporation organized and
existing under the laws of the State of Nebraska, hereinafter referred to as "the Omaha Airport
Authority"and Rigel Airport Services, LLC,hereinafter referred to as "Rigel."
WITNESSETH
WHEREAS, the Omaha Airport Authority controls and operates an airport known as Eppley
Airfield, located in the City of Omaha, State of Nebraska, which airport and any additions,
improvements or modifications thereto or hereinafter referred to as the "Airport,"and,
WHEREAS, the parties desire to enter into a Lease for the use of certain premises and facilities
at the Airport for the purpose of operating a Food and Beverage Concession at the Airport
passenger terminal all as more fully hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the Omaha Airport Authority and Rigel do hereby mutually undertake, promise and
agree as follows:
ARTICLE I-TERM OF LEASE
1.1 Dates of Term
The term of this Lease shall commence on July 17, 2012 (the "commencement date")and
end October 31,2021,("Term") unless sooner terminated as hereinafter provided.
1.2 Termination
In addition to the Lease termination provisions as outlined in Article XII and XIII, the
Omaha Airport Authority reserves the right to terminate this Lease with ninety (90) days
prior written notice to Rigel for the failure of Rigel to adequately and properly operate
the concession as hereinafter defined at Article IV. If the Omaha Airport Authority
exercises this right of termination, Rigel agrees to cooperate fully and exercise its best
efforts to operate the concession in a manner acceptable to the Omaha Airport Authority
until the Omaha Airport Authority has established a replacement operator.
1.3 Prior Lease
Upon execution of this Lease, the prior Lease for Food and Beverage Concession dated
September 21, 1999 as amended by.Supplemental Agreement No. 1-4 dated March 27,
1
2003 through February 15,201.1 will be terminated and become null and void.
ARTICLE II-LEASED PREMISES
2.1 Leased Premises
For and in consideration of the compensation and sundry covenants and conditions set
forth herein to be kept and performed by Rigel, all of which Rigel accepts, the Omaha
Airport Authority does hereby and by these presents demise and lease unto Rigel, for use
by Rigel in the operation of the Food and Beverage Concession, as hereinafter defined,
approximately 34,000 square feet of space in the passenger terminal building (Terminal)
together with ingress and egress therefrom.
2.2 Terminal Area Occupancy
The areas of the Terminal to be occupied by Rigel are shown on Exhibit A, (the "Leased
Premises"), attached hereto, which is stipulated by the parties to be correct and which is
herewith by reference incorporated herein and made a part hereof.
ARTICLE III-RENTALS AND CHARGES
3.1 Rent
During the Term of this Lease the rent to be paid by Rigel to the Omaha Airport
Authority shall be an amount determined by applying separate percentages to the
categories of annual gross receipts in accordance with the following table:
Branded food sales for which 5% of gross receipts from $0 to
a franchise fee is paid as $500,000. 7 1/2% of gross receipts
defined below from$500,001 to$750,000. 10%
of gross receipts from$750,001 to
$1,000,000. 12%of gross receipts
from$1,000,001 to$1,600,000. 14%
of gross receipts from$1,600,001 to
$1,800,000. 17% of gross receipts
over$1,800.000.
Other food and drink sales 10%of gross receipts from$0 to
for which no franchise fee is paid $250,000. 13%of gross receipts
from$250,001 to$2,500,000. 15%
of gross receipts from$2,500,001 to
$2,800,000. 18%of gross receipts
over$2,800,000.
Employee non-branded food and 7%
drink sales
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In-flight and off-airport catering 7%
food sales
Alcoholic beverages 15%of gross receipts from$0 to
$450,000. 17%of gross receipts
from$450,001 to $1,000,000. 19%
of gross receipts fror41.,:000,001 to
$1,200,000. 21%of gross receipts
over$1,200,000.
Conference Room rental 50%
(food and drink as per above)
Merchandising 22%
The minimum guaranteed annual rental for the lease year November 1, 2011 — October
31, 2012 (in process) shall be $586,951.61. For each succeeding contract year, the
minimum guarantee shall be adjusted to an amount equal to ninety percent (90%) of the
actual rental paid for the immediate preceding contract year, but in no event less than
$586,951.61. Rigel agrees to pay the minimum guaranteed annual rental of the
percentage rental,as computed above,whichever is greater.
3.2 Branded Items
"Branded food sales" shall include food or beverages sold at the Airport by Rigel
pursuant to a franchise or license agreement with a non-affiliated company and for which
Rigel is required to pay the franchisor or licensor a percentage of its gross receipts for
franchise or license fees, advertising charges, and other fees or charges incidental to such
franchising or licensing, or Rigel is required to buy substantially all of the products sold
at the Airport from the franchisor or licensor.
3.3 Gross Receipts
The term "Gross Receipts," shall mean the aggregate amount of all sales made and
services performed of every kind, name and nature directly or indirectly derived from
operation of the concessions at the Terminal by or through Rigel,whether for cash,credit
or otherwise regardless of when or whether payment is received, excluding only any sales
taxes separately assessed and paid by customers, or charged Rigel.
3.4 Rental Calculation
For purposes of rental calculation, gross receipts from all sales made through vending
machines (if any) shall be the gross payment by the customer for the product vended
rather than the payment by the vending machine owner to Rigel.
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1 1
3.5 Advance Payment
One-twelfth (1/12) of the minimum guaranteed annual rental will be paid to the Omaha
Airport Authority, in advance, on the first day of each and every calendar month during
the Term of this Lease hereof without notice to Rigel.
3.6 Statement of Gross Receipts
Rigel shall furnish to the Omaha Airport Authority by the twentieth day of each month a
statement, certified by an officer of Rigel, showing total Gross Receipts, as defined
herein, for the preceding month. Such statement must include separate totals for the
categories of Gross Receipts cited in Paragraph 3.1 above. With such monthly statement,
Rigel shall remit to the Omaha Airport Authority the above stated percentage of its
aggregate gross receipts derived through the end of the preceding calendar month during
such contract year, only to the extent that such percentage of said aggregate exceeds the
payments made through the end of the preceding calendar month to the Omaha Airport
Authority. For the purposes of the Lease, a contract year shall be a period of twelve (12)
consecutive months beginning on each November ls`and every twelve(12)month period
thereafter. If for any reason this Lease is terminated prior to the end of the contract year,
Gross Receipts shall nevertheless be accounted for through such termination date, but the
minimum guaranteed annual rental shall be prorated to the portion of the contract year for
which this Lease was in effect.
3.7 Payment Upon Termination
Within sixty (60) days following the anniversary date of each contract year of the Term
of this Lease hereof, or within sixty (60) days following the date this Lease is terminated
where such termination is effective on a date other than an anniversary date, Rigel shall
pay to the Omaha Airport Authority the balance of rent, if any, due to the Omaha Airport
Authority for the preceding year on account of the percentage payment provisions hereof;
it being understood that the rental though payable monthly, shall be computed on an
annual basis. If any refund is due Rigel, such refund shall likewise be paid within sixty
(60) days following such anniversary or termination date.
3.8 Independent Contractor
Notwithstanding the provision herein contained for the payment by Rigel to the Omaha
Airport Authority of rent based upon percentages of Gross Receipts as above provided, it
is expressly understood and agreed that the Omaha Airport Authority shall not be
construed or held to be a partner, associate, or joint venturer of Rigel in the conduct of its
business, but Rigel shall at all times have the status of an independent contractor, without
the right or authority to impose tort or contractual liability upon the Omaha Airport
Authority.
3.9 Late Payment
The Omaha Airport Authority is entitled to collect and Rigel agrees to pay all rentals due
under this Lease to the Omaha Airport Authority, Eppley Airfield, Omaha, Nebraska
without notice to Rigel. Rentals more than thirty (30) days past due may be subject to a
service charge on one and one-half percent (1 1/2%) per month, based on an annual rate
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of eighteen percent (18%). This remedy is not exclusive and is in addition to any other
rights and remedies the Omaha Airport Authority may have for Rigel's non-performance
under this Lease, at law or in equity.
3.10 Personal Guaranty
This Lease shall be personally guaranteed by the shareholder(s) of Rigel in the form of
Exhibit B attached hereto.
3.11 South Food Court Renovation and North Concourse Snack Bar Seating Expansion Cost
Reimbursement
The Omaha Airport Authority previously contracted for the renovation of the south food
court area during 2011. The Omaha Airport Authority now agrees to contract for the
expansion of the north concourse snack bar seating area (an addition to the Leased
Premises as depicted on Exhibit A-1 attached hereto)during 2012. The total construction
costs, exclusive of any future change orders, for both of the aforementioned projects is
$771,480. In addition to the rental charges due as per Paragraph 3.1 herein, Rigel agrees
to reimburse the Omaha Airport Authority for 100% of the actual total project costs
spread over the remaining Term, with payments, at Wall Street National prime rate+ 1%
(as of the date the first construction contract was awarded), on a monthly basis. The
following is a summary of the remaining outstanding monthly repayment amount:
1. Total cost of both projects$771,480
2. Prime Rate+ 1 =4.25%
3. Original months of amortization 120
4. Revised monthly payment over original 120 month Term of this Lease$7,902.85
5. Credit for total of payments already made to date<$59,925.96>
6. 111 months of Term of this Lease remaining commencing August 1,2012
7. Revised monthly payment over remaining 111 months$8,003.75
ARTICLE IV-ACTIVITIES,USES,PRIVILEGES AND
OBLIGATIONS OF RIGEL
4.1 The Food and Beverage Concession is defined as the privilege of operating a general
restaurant business within the Terminal at the Airport including food courts, snack bars,
cocktail lounges, preparation of in-flight meals, catering of private events and rental of
conference room facilities designated for public use by the Omaha Airport Authority.
4.2 No Exclusive Rights
It is specifically agreed that the following are not exclusive rights of Rigel:
A. The operation of a snack bar on the lower level of the Terminal in the space
presently occupied by Simply Scrumptious and a snack bar in the south concourse
presently occupied by Kracky McGee's Snack Shack.
B. The sale of packaged food products, snacks or beverages by vendors not intended
for consumption within the vendor's leased area.
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C. Operation of vending machines dispensing coffee, cold drinks, sandwiches, candy
bars or other food products. The Omaha Airport Authority agrees not to
authorize the installation of such vending machines within the public areas of the
Terminal by other vendors without first giving Rigel the opportunity to provide
such service under the terms of this Lease or on terms at least as favorable to the
Omaha Airport Authority as those offered by the other vendor, whichever will
result in the most revenue to the Omaha Airport Authority net of allocable
expenses.
D. Operation of general restaurant and/or bar facilities on Airport property outside of
the Terminal.
E. Preparation and sales of in-flight meals.
F. The Omaha Airport Authority specifically reserves the right to arrange for the
installation of such pay telephones as Rigel may desire and secure the income
from such installation.
4.3 Hours of Operation
The minimum number of hours per day Rigel shall serve the public in each area of the
Terminal shall be posted and subject to prior approval of the Omaha Airport Authority.
Unless or until the parties agree in writing to a different schedule, Rigel's hours of
operation shall be set forth on Exhibit C attached hereto. All venues will be open seven
(7)days per week.
4.4 Quality of Operation
Rigel shall maintain and operate the Food and Beverage Concession at all times in a first
class mariner with up-to-date decor, equipment and furnishings and shall keep the Leased
Premises in a safe, clean, orderly and inviting condition at all times, satisfactory to the
Omaha Airport Authority. All foods, drinks, beverages, confections and other items sold
or offered for sale shall be of highest quality, wholesome and pure, and must conform in
all respects to Federal, State and City food, health and other applicable laws, ordinances
and regulations, and shall offer a wide range of alcoholic and non-alcoholic beverages.
There shall be no sales of package liquor or alcoholic beverages for off-premises
consumption without the prior written approval of the Omaha Airport Authority, which
approval may be withheld arbitrarily.
4.5 Licenses
Rigel shall maintain continuously the necessary restaurant and liquor license(s) and said
Food and Beverage Concessions shall be maintained and operated in conformity with
requirements of Omaha-Douglas County Health Department standards, requirements of
the United States Public Health Services standards, and all other applicable laws and
regulations.
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4.6 Management and Employees of Rigel
Rigel shall retain active, qualified, competent and experienced management personnel at
the Airport to supervise the Food and Beverage Concession operations at all times and be
authorized to represent and act for Rigel. RigeI's employees shall be clean, courteous,
efficient and neat in appearance. Rigel shall not employ any person or persons in or
about the Leased Premises who shall use improper language or act in a loud or boisterous
or otherwise improper or disruptive manner, or who poses an unacceptable security risk
in the opinion of the Omaha Airport Authority. Rigel agrees to promptly terminate the
employment of any employee whose conduct the Omaha Airport Authority feels is
detrimental to the best interest of the Omaha Airport Authority.
4.7 Rules and Regulations
Rigel, its employees, agents or servants, shall at all times comply with the laws and
regulations of the United States of America and the State of Nebraska and all applicable
ordinances, codes and regulations of the City of Omaha and the rules and regulations
governing the operation of the Airport, as adopted from time to time by the Omaha
Airport Authority. Violations thereof by Rigel, its agents or employees or revocation of
permits or licenses required in the performance of this Lease shall be cause for
termination of this Lease at the option of the Omaha Airport Authority.
4.8 Taxes and Assessments
Rigel agrees, at its own expense, to pay any and all taxes or assessments properly levied
by the City, County or other governmental units against its property or income.
4.9 Waste Disposal
Rigel shall provide sanitary handling and disposal, away from the Airport, of all trash,
garbage and other refuse caused as a result of the operation of its business. Rigel shall
provide and use suitable covered metal or high impact plastic (for internal use)
receptacles for all garbage, trash and other refuse on or in connection with the Leased
Premises. Piling of boxes, pallets, cartons, barrels or other similar items, on or about the
Leased Premises is forbidden. The Omaha Airport Authority will designate a location
outside the building for covered metal receptacles. The location may be changed at the
discretion of the Omaha Airport Authority. All such refuse must be removed by Rigel at
least three times per week or more frequently as containers become full, or if odors,
insects or vermin are present. Rigel may coordinate its use of and payment for the
outside covered metal compacting receptacle service with the Omaha Airport Authority
and other tenants of the Terminal. Rigel shall not dispose of any materials (hazardous or
otherwise) in the sanitary sewer system which would adversely affect such system or
which are not typically intended to be disposed of in such sanitary sewer system.
4.10 Cleaning and Pest Control
Rigel agrees to provide at its own expense, such janitor, toilet, cleaning and pest control
services and supplies as may be necessary or required in the operation and maintenance
of the Leased Premises and the improvements and appurtenances thereto.
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4.11 Costs of Operation
Rigel shall bear at its own expense all costs of operating the concession, and shall pay in
addition to rental,all other costs connected with the use of the Leased Premises, facilities,
rights and privileges granted, including but not limiting the generality hereof;
maintenance, including store-front windows (except building structure, exterior of
perimeter building walls, exterior of outside perimeter windows on second level, and
roof), insurance, hot and cold water (Rigel has separate water sub-meter) (except for
heating and air conditioning), back-flow preventer inspections, electricity and gas (Rigel
has separate gas and electric sub-meters), janitor services and supplies, sewer use fee
services and all licenses,permits or other similar authorizations as required under federal,
state or local laws and regulations insofar as they are necessary to comply with the
requirements of this Lease and the rights and privileges extended hereunder. Rigel will
provide for the regular and timely cleaning/maintenance of grease traps, fire suppression
systems and special exhaust systems for its equipment. Rigel also will provide periodic
maintenance, cleaning and necessary repair of sanitary sewer. Exterior cleaning of
heating and air conditioning grills, lights fixtures and ceiling tiles within the Leased
Premises are the responsibility of Rigel. Rigel agrees to repair or pay for all damage to
the Omaha Airport Authority's property caused by the wrongful or negligent acts or
omissions of Rigel, its agents, servants, employees, contractors, invitees, guests, patrons,
and suppliers and arising out of, directly or indirectly, Rigel's use or occupancy of the
Lease Premises.
4.12 Modifications to Leased Premises
Rigel shall not do anything or permit anything to be done within its Leased Premises
which may interfere with the effectiveness or accessibility of the drainage and sewer
system, the fire protection system, the alarm system, and the facilities for the protection
of the Airport and the public. Modifications made by Rigel to the building leasehold
improvements, electrical, plumbing or HVAC shall not be made unless approved in
advance in writing by the Omaha Airport Authority. In addition, Rigel is solely
responsible for securing all necessary building permits for such modifications.
4.13 Public Address System
Rigel shall allow the installation in its premises of the Airport public address system,and
the reception within its premises of flight announcements and other information
broadcast over the Omaha Airport Authority's systems as well as placement of flight
information display system monitors.
4.14 Signage
Rigel may install signs in harmony with the architectural treatment of the Terminal which
identify its business,provided however that the number, location, size and design of such
signs are subject to the prior written approval of the Omaha Airport Authority.
8
4.15 Other Businesses
Rigel agrees that it will not engage in other businesses or activities within the confines of
the Airport, or within a two mile distance thereof, which are in any way competitive with
the activities authorized by this Lease, either directly or indirectly (e.g., through a
shareholder, affiliate or otherwise). If a court of competent jurisdiction shall determine
that this restriction is not legally enforceable as written, then it shall be reformed by the
court to conform to the maximum restrictions allowed by applicable law and yet be
consistent with this paragraph.
4.16 Quality of Operation
In furtherance of the purpose of this Lease, the Omaha Airport Authority has foremost in
mind the provision of restaurant facilities of the highest quality, commensurate with the
quality that the public would be accustomed to receiving at better restaurants or branded
concept outlets in metropolitan Omaha area. To accomplish this, Rigel shall serve and
dispense high quality foods with adequate portions and at prices comparable to those
maintained at other first-class or branded concept restaurants, and cocktail lounges in the
Metropolitan Omaha area. The Omaha Airport Authority may review Rigel's price,
quality and portion schedules then in effect and any time and may require the adjustment
thereof to conform with the price, quality or portions then in effect at comparable
restaurants and cocktail lounges in the Metropolitan Omaha area. Failure on the part of
Rigel to promptly correct, rectify or modify its price, quality or quantity schedules upon
written notice by the Omaha Airport Authority shall be considered a breach of this Lease.
4.17 Concept Performance Evaluation
Periodically throughout the Term of this Lease, Rigel agrees to meet with the Omaha
Airport Authority to review and evaluate the performance of its operations at each.
location in the Terminal. If the Omaha Airport Authority believes that a new or different
concept of food service would benefit the public and the Omaha Airport Authority, Rigel
agrees to negotiate terms upon which a change could be accomplished.
ARTICLE V-RIGHTS AND COVENANTS OF THE OMAHA AIRPORT AUTHORITY
5.1 Exclusive Jurisdiction of Airport
The Omaha Airport Authority covenants that it has exclusive jurisdiction and control of
the Leased Premises and had full right and authority to lease the same as herein set forth.
5.2 Peaceful Possession
The Omaha Airport Authority covenants that Rigel shall have peaceful possession and
quiet enjoyment of the Leased Premises during the Term of this Lease so long as Rigel
timely performs and observes all of the covenants, agreements, terms and conditions
hereof.
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5.3 Maintenance of Publicly Owned Facilities
The Omaha Airport Authority reserves the right to maintain and keep in repair all
publicly owned facilities of the Airport, together with the right to direct and control all
activities of Rigel to effect the right to maintain and repair all publicly-owned facilities.
5.4 Development and Improvement of Public Facilities
The Omaha Airport Authority reserves the right to further develop or improve the landing
area and all publicly owned air navigation and support facilities of the Airport at its
discretion, regardless of the desire or views of Rigel, and without interference of
hindrance.
5.5 Protection of Aerial Approaches
The Omaha Airport Authority reserves the right to take any action it considers necessary
to protect the aerial approaches of the Airport against obstruction or interference,together
with the right to prevent Rigel from erecting or installing, or permitting to be erected or
installed, any building or other structure, fixture or equipment on the Airport which in the
opinion of the Omaha Airport Authority would limit the usefulness of the Airport or
constitute a hazard to aircraft the public or security.
5.6 Superseding Governmental Agreement
During time of war or national emergency, the Omaha Airport Authority shall have the
right to enter into an agreement with the United States Government for military or naval
use of part of all of the landing area, the publicly owned air navigation facilities and/or
other areas or facilities of the Airport. If such agreement is executed the provisions of
this Lease, insofar as they are inconsistent with the provisions of the agreement with the
Government, shall be suspended.
5.7 Rights of Rigel
It is understood and agreed that the rights granted to Rigel by this Lease will not be
exercised in such a way as to interfere with or adversely affect the use, operation,
maintenance or development of the Airport.
5.8 Right of Flight
There is hereby reserved to the Omaha Airport Authority, for the use and benefit of the
public, a free and unrestricted right of flight for the passage of aircraft in the airspace
above the surface of the Leased Premises herein conveyed, together with the right to
cause in said air space such noise as may be inherent in the operation of aircraft, now
known or hereafter used for navigation of or flight in the air, using said air space or
landing at,taking off from, or operating on or above the Airport.
5.9 Insurance on Leased Premises
The Omaha Airport Authority shall carry such insurance on the Leased Premises as it
determines to be appropriate; however, the Omaha Airport Authority shall not, by reason
of such insurance, or for any other reason, be liable for any damage to persons or
10
property in the Leased Premises or any interruption of Rigel's business resulting from
structural failure, the elements, fire, explosion, wind, tornadoes, act of a public enemy,
act of God or other cause.
5.10 Right to Enter Leased Premises
The Omaha Airport Authority and its duly authorized representatives shall have at any
and all times the full and unrestricted right to enter the Leased Premises for the purpose
of inspecting and of doing any and all things with reference thkrkto which the Omaha
Airport Authority is obligated to do as set forth herein or which may be deemed
necessary for the proper general conduct and operation of the Airport or in the exercise of
the Omaha Airport Authority's police power, provided said entry shall not unreasonably
interfere with Rigel's operations in non-emergency situations.
ARTICLE VI -LEASEHOLD IMPROVEMENTS,FIXTURES,
EQUIPMENT, FURNITURE SMALLWARES AND MAINTENANCE
6.1 Leasehold Improvements
Once leasehold improvements are made/installed in the Leased Premises, and are not
readily removed without causing damage to the Leased Premises, ownership of such shall
be with the Omaha Airport Authority regardless of which party to this Lease funded the
leasehold improvements. However, Rigel is responsible to maintain and repair all
leasehold improvements within the Leased Premises during the Term of this Lease.
6.2 Fixtures and Furnishings and Smallwares
Much of the fixtures and furnishings used in Rigel's concession have been provided by
the Omaha Airport Authority prior to or during Rigel's occupancy and ownership stays
with the Omaha Airport Authority throughout the Term of this Lease. Certain other
fixtures and furnishings and all smallwares have been provided by Rigel. Rigel is
responsible to maintain and repair or replace all fixtures, furnishings and smallwares in
the concession regardless of who furnished such. Written permission must be obtained
by Rigel prior to the removal of any owned Omaha Airport Authority fixtures and
furnishings.
6.3 Other Costs
All costs and expenses beyond those separately referred to in paragraphs 6.1 and 6.2
above, relating to other leasehold improvements, fixtures, equipment, furniture, start-up,
maintenance and operating expenses are solely the responsibility of Rigel.
6.4 Additional Alterations and Additions
Rigel shall make no alterations, additions or replacements (including signage) without
obtaining the advance written approval of the Omaha Airport Authority.
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6.5 Structural and Exterior Maintenance
The Omaha Airport Authority shall be responsible for structural maintenance of the
Terminal and the exterior of outside building perimeter walls and windows, including
washing the exterior side the perimeter windows.
ARTICLE VII-RECAPTURE AND RESTORATION
7.1 Removal of Fixtures, Equipment and Smallwares Upon Termination
Upon termination of this Lease through passage of time or otherwise, Rigel shall, unless
otherwise directed in writing by the Omaha Airport Authority, timely remove its owned
furniture, furnishings, fixtures, equipment and smallwares (excludes all leasehold
improvements which become Omaha Airport Authority property upon installation) from
such space and restore the Leased Premises, and all leasehold improvements to the
condition in which they were received, constructed or installed, reasonable wear and tear
and damage by fire or the elements excepted. In the event of the failure on the part of
Rigel to immediately remove all property from the Leased Premises owned by it under
the requirements set forth herein, on or before the termination date, the Omaha Airport
Authority may effect such removal and restore the Leased Premises at Rigel's expense.
7.2 Continuation of Business Upon Termination
Upon the termination of this Lease, through passage of time or otherwise, Rigel shall aid
the Omaha Airport Authority in all ways possible in continuing the business of operating
the concession uninterruptedly. Rigel further agrees to sell any and all of its owned
furniture, furnishings, fixtures, equipment and smallwares installed or used upon the
Leased Premises by Rigel to the Omaha Airport Authority or any interest thereto which
Rigel may have, should the Omaha Airport Authority notify Rigel in writing prior to such
termination date that the Omaha Airport Authority desires to purchase any or all of said
Rigel owned furniture, furnishings, fixtures, equipment and smallwares. It is agreed that
the purchase price shall be Rigel's initial cost of such items reduced by straight line
depreciation using a five (5) year life for furniture, fixtures, equipment and smallwares.
Rigel agrees to maintain accounting records adequate to establish said initial costs.
7.3 Liquor License
Upon termination of this Lease,through passage of time or otherwise, Rigel agrees not to
sell, transfer or otherwise convey or attempt to convey its liquor license to a different
location or party and agrees to assist the Omaha Airport Authority in obtaining a new
license for the new operator of the Leased Premises. Except as required by law, Rigel
shall not relinquish its liquor license for the concession without the written consent of the
Omaha Airport Authority.
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ARTICLE VIII-SECURITY
8.1 Directives
Rigel shall abide by the Omaha Airport Authority directives, rules and regulations and
indemnification provisions for penalties and fines as my from time to time be issued
and/or amended, so as to assure compliance with all security regulations and directives
which are currently in effect or which may be promulgated by either the Federal Aviation
Administration ("FAA") or the Transportation Security Administration, (Regulation
1542; Airport Security) Rigel certifies that its personnel will be made familiar with
directives, rules and regulations prior to being assigned to the Air Operations Area of
Eppley Airfield.
ARTICLE IX-DAMAGE OR DESTRUCTION TO LEASED PREMISES
If, by reason of any cause the Leased Premises are damaged to such an extent that they are
untenantable in whole or in substantial part,then in that event:
9.1 . Minor Damage Repair
If the repairs and rebuilding necessary to restore the Leased Premises to their condition
prior to the occurrence of the damage can in the reasonable judgement of the Omaha
Airport Authority be completed within ninety (90) days from the date on which the
damage occurred, the Omaha Airport Authority shall notify Rigel in writing and shall
proceed promptly with such repairs and rebuilding, and in such event the rental for the
affected Leased Premises for which provision is made in Article III hereof shall be abated
pro-rata for the period from the date of the occurrence of such damage to the date upon
which such repairs and rebuilding are completed.
9.2 Major Damage Repair
If such repairs and rebuilding cannot, in the reasonable judgement of the Omaha Airport
Authority, be completed within ninety (90) days, the Omaha Airport Authority, at its
option, to be evidenced by notice in writing to Rigel, may either (I) proceed promptly
with said repairs and rebuilding, in which event the said rental shall be abated as
aforesaid, or (2) terminate the letting of the affected Leased Premises, in which event the
said rent therefore for which provision is made in Article III hereof shall be abated from
and after the date of the occurrence of the damage.
9.3 Damage to Rigel's Personal Property
The obligations contained hereinabove shall not be construed to impose upon the Omaha
Airport Authority any obligations with respect to Rigel's personal property or leasehold
improvements installed by Rigel.
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ARTICLE X-ACCOUNTING RECORDS AND REPORTS
10.1 Rigel Accounting Records and Reports •
Rigel will keep true, complete and accurate records of its Airport operations including but
not limited to records of Gross Receipts from all of its operations at the Airport in
accordance with generally accepted accounting principles. Such records shall be kept
within the City of Omaha, and shall be open to inspection/ audit by authorized
representatives of the Omaha Airport Authority at all reasonable times. If the inspection
procedures performed by the Omaha Airport Authority reveals that Rigel has underpaid
the Omaha Airport Authority, Rigel shall immediately reimburse the Omaha Airport
Authority for the cost of the inspection procedures along with all additional rental
amounts determined to be due by the inspection procedures. All supporting records,
documents, books and accounts shall be kept and retained by Rigel for a period of not
less than two (2) years,provided that this shall not preclude the Omaha Airport Authority
from inspecting/auditing records of years prior to that.
10.2 Audit by Independent Accountant
Within ninety (90) days after the close of each year of the Term of this Lease, Rigel shall
cause an audit.to be made, by and independent certified public accountant, acceptable to
the Omaha Airport Authority, of its annual Gross Receipts from all operations at the
Airport and of the rent payments it made to the Omaha Airport Authority in relation
thereto, and such other details as the Omaha Airport Authority may require consistent
with this Lease, and shall submit to the Omaha Airport Authority a copy of such audit
together with a statement from the Certified Public Accountant stating that in its opinion
the rental paid to the Omaha Airport Authority was in full compliance with this Lease.
Should such audit disclose a discrepancy between the amount paid to the Omaha Airport
Authority and the amount due as indicated by such audit,then an appropriate adjustment
shall be made between the parties.
ARTICLE XI- INSURANCE REQUIREMENTS AND INDEMNIFICATION
11.1 Indemnification by Rigel
Rigel covenants and agrees to indemnify and save harmless the Omaha Airport'
Authority, its members, agents, officers, directors and employees, their successors and
assigns, individually or collectively, from and against all liability for any fines, claims,
suits, liens, demands, actions or causes of action of any kind and nature for personal
injury or death, property damage or regulatorily imposed sanctions in any way arising out
of or resulting from any activity or operations of Rigel on the Leased Premises or the
Airport or in connection with its use of the Leased Premises or the Airport. Rigel shall
give prompt and timely notice of any claim made or suit instituted which, in any way,
directly or indirectly, contingently or otherwise, affects or might affect either party.
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11.2 General Liability Insurance
Rigel agrees to carry, and keep in force during the Term of this Lease, and any hold over
periods thereafter, liability insurance covering personal injury liability, property damage
and such other insurance as may be necessary to protect the Oniaha Airport Authority
herein from such claims and actions aforesaid. Without limiting its liability as aforesaid,
Rigel agrees to carry and keep in force such insurance with limits of liability for personal
injury,property damage or death in a sum not less than Five Million Dollars ($5,000,000)
per occurrence or in aggregate. All such insurance will be equivalent to coverage
offered by a commercial general liability form (2004 ISO version or equivalent),
including without limitation personal injury and contractual liability coverage for the
performance by Rigel of the indemnity agreements set forth in this Lease. The Omaha
Airport Authority, its agents, and employees, make no representation that the limits of
liability specified to be carried by Rigel pursuant to this paragraph are adequate to protect
Rigel. If Rigel believes that any coverages are inadequate, Rigel will obtain additional
insurance coverage as Rigel deems adequate, at Rigel's sole expense. Throughout the
Term of this Lease, with or without notice by the Omaha Airport Authority, Rigel agrees
to timely furnish the Omaha Airport Authority with a valid non-lapsed certificate
certifying that such insurance is in force and naming the Omaha Airport Authority as an
additional insured. Each such insurance policy shall contain a valid provision or
endorsement that the policy may not be non-renewed, canceled, terminated, changed or
modified without giving sixty (60) days advance written notice thereof to the Omaha
Airport Authority. The Omaha Airport Authority shall be designated as an additional
insured on such insurance contract and such policy or contract shall contain a clause
which provides that the inclusion of more than one corporation, person, organization,
firm or entity as an insured under this policy shall not in any way affect the rights of any
such corporation, person, organization, firm or entity with respect to any claim, demand,
suit or judgement made, brought.or recovered by or in favor of any other insured,or by or
in favor of any employee of such other insured. This policy shall protect each
corporation, person, organization,firm or entity in the same manner, as though a separate
policy had been issued to each. All commercial general liability and property policies
maintained by Rigel will be written as primary policies, not contributing with and not
supplemental to the coverage that the Omaha Airport Authority may carry.
11.3 Waiver of Subrogation
The Omaha Airport Authority and Rigel each waive any and all rights to recover against
the other or against any other tenant or occupant of the Terminal, or against the officers,
directors, shareholders, partners,joint venturers, employees, agents, customers, invitees,
or business visitors of each other or of the other tenants or occupants of the Terminal, for
any loss or damage to the waiving party arising from any cause covered by any property
insurance required to be carried by the party pursuant to this paragraph or any other
property insurance actually carried by the party to the extent of the limits of the policy.
The Omaha Airport Authority and Rigel, from time to time, will cause their respective
insurers to issue appropriate waiver of subrogation rights endorsements to all property
insurance policies carried in connection with the Terminal or the Leased Premises or the
contents of the Terminal or the Leased Premises. Rigel agrees to cause all other
occupants of the Leased Premises claiming by, under or through Rigel to execute and
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deliver to the Omaha Airport Authority a waiver of claims and to obtain waiver of
subrogation rights endorsements.
11.4 Workers' Compensation Insurance
Rigel shall furnish to the Omaha Airport Authority satisfactory evidence, and shall
maintain throughout the Term of this Lease, and any hold over period thereafter of this
Lease such evidence that it carries Workers' Compensation Insurance in accordance with
the laws of the State of Nebraska including broad form other states coverage and
voluntary compensation coverage. In the event coverage is canceled, non-renewed, or
modified, sixty(60) days advance notice will be given to the Omaha Airport Authority.
ARTICLE XII-TERMINATION BY RIGEL
12.1 Termination of Lease
In addition to all other remedies available to Rigel, this Lease shall be subject to
cancellation by Rigel should any one or more of the following events occur:
A. The permanent abandonment of the Airport.
B. The issuance by any court of competent jurisdiction of any injunction preventing or
restraining the use of the Airport in such a manner as to substantially restrict Rigel
from conducting its normal operations, and the remaining in force of such injunction
for at least sixty(60)days.
C. The breach by the Omaha Airport Authority of any of the terms, covenants, or
conditions of this Lease to be kept, performed, and observed by the Omaha Airport
Authority, and the failure of the Omaha Airport Authority to remedy such breach for
a period of sixty (60) days after written notice from Rigel of the existence of such
breach.
D. The assumption by the United States Government, or any authorized agency thereof,
of the operation, control or use of the Airport and its facilities in such a manner as to
substantially restrict Rigel from conducting its Food and Beverage Concession, if
such restriction be continued for a period of ninety(90)days or more.
E. The destruction of the Leased Premises, by catastrophe or other cause, to the extent
that Rigel is substantially restricted from conducting its concession,and the failure of
the Omaha Airport Authority to restore the Leased Premises within sixty(60)days.
ARTICLE XIII -TERMINATION BY THE OMAHA AIRPORT AUTHORITY
13.1 Termination of Lease by the Omaha Airport Authority
In addition to all other remedies available to the Omaha Airport Authority, this Lease shall
be subject to cancellation by the Omaha Airport Authority should any one or more of the
following events occur:
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A. If Rigel shall be divested of its rights, powers and privileges under this Lease by
operation of law.
B. If Rigel shall default in or fail to make any payments at the times and in the amount
as required of it under this Lease.
C. If Rigel shall abandon and discontinue the conduct of its business and use of the
Leased Premises for a period of twenty-four (24) hours at any one time, except
when such abandonment and cessation is due to fire, earthquake, strike,
governmental action, default of the Omaha Airport Authority, or other cause
beyond its control.
D. If Rigel shall fail to perform, keep and observe all the covenants and conditions
contained in this Lease to be performed, kept and observed by it; or if Rigel shall
use or permit the use of the Leased Premises at any time for any purposes for
which the use thereof at the time is not authorized by this Lease or is in violation
of any law,rule or regulation to which Rigel has agreed to in this Lease.
E. If Rigel shall fail to abide by all applicable laws, ordinances,rules and regulations
of the United States, State of Nebraska, City.of Omaha, or the Omaha Airport
Authority.
F. If,for any reason, Rigel is unable to obtain or maintain a valid liquor license
Provided that upon the happening of any of the contingencies recited in subparagraphs B,
C, D, E or F above, the Omaha Airport Authority shall give written notice to Rigel to
correct or cure such default, failure to perform or breach and if, within thirty (30) days
(for subparagraphs D, E and F) and within ten(10)days (for subparagraph B) and within
twenty-four (24) hours (for subparagraph C) from the date of such notice, the default,
failure to perform or breach complained of shall not have been corrected in a manner
satisfactory to the Omaha Airport Authority, then, and in such event, the Omaha Airport
Authority shall have the right at once and without further notice to Rigel to declare this
Lease terminated and to enter upon and take full possession of the Leased Premises and
provided further that upon the happening of any one of the contingencies enumerated in
subsection A hereof, this Lease shall be deemed to be breached by Rigel and thereupon
ipso facto and without entry or any other action by the Omaha Airport Authority the
Lease shall terminate, subject to be reinstated only if such involuntary bankruptcy or
insolvency proceedings, petitions for reorganization, trusteeship, receivership, or other
legal act divesting Rigel of its rights under this Lease shall be denied, set aside, vacated
or terminated in Rigel`s favor within forty-five (45) days from the happening of the
contingency. Upon the happening of said latter event, this Lease shall be reinstated as if
there had been no breach occasioned by the happening of said contingencies provided
that Rigel shall, within ten (10) days, discharge any and all sums of money, which may
have become due under this Lease in the interim and shall then remain unpaid and shall
likewise fully perform and discharge all other obligations which may have accrued and
become payable in the interim. The acceptance of rentals and fees by the Omaha Airport
Authority for any period or periods after a default of any of the terms, covenants, and
conditions shall not be deemed a waiver of any rights on the part of the Omaha Airport
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Authority to cancel this Lease for failure by Rigel to so perform, keep or observe any of
the terms of this Lease to be kept, performed, and observed by Rigel. The Omaha
Airport Authority shall also have the right to have a receiver appointed to continue
operation of the concession if continued operation thereof is jeopardized or suspended by
Rigel contrary to the terms of this Lease.
13.2 Cancellation of Lease by the Omaha Airport Authority
The Omaha Airport Authority shall have the right to cancel this Lease, upon ninety(90)
days written notice to Rigel, if, in its sole judgement, the Leased Premises hereunder are
required for other uses in the proper operation of the Airport. In the event of the
happening of such cancellation, the Omaha Airport Authority shaII offer to Rigel a new
Lease covering premises suitable and appropriate to Rigel's use as contemplated
hereunder, and containing terms and provisions no less favorable to Rigel as are
contained in the Lease; and, upon execution of such new Lease the Omaha Airport
Authority shall provide for, and pay all costs in connection with the moving of or
replacement of Rigel's facilities and improvements to or on the new Leased Premises. It
is understood, however, that nothing stated or contained herein shall in any way be
construed to be a waiver of or limitation upon the Omaha Airport Authority's powers to
invoke its rights of eminent domain.
ARTICLE XIV-BANKRUPTCY OR INSOLVENCY
14.1 Events of Bankruptcy
For purposes of this Lease, the following will be deemed "Events of Bankruptcy" of
Rigel:
A. If Rigel becomes"insolvent,"as defined in any insolvency laws; or
B. If Rigel files a voluntary petition under any insolvency laws; or
C. If a receiver or custodian is appointed for any or all of Rigel's property or assets,
or if there is instituted a foreclosure action on any of Rigel's property;or
D. If there is filed an involuntary petition against Rigel as the subject debtor under
any insolvency laws, which is not dismissed within thirty (30) days of filing, or
results in issuance of an order for relief against the debtor; or
E. If Rigel makes or consents to an assignment of its assets, in whole or in part,for
the benefit of creditors, or undertakes a common law composition of creditors.
14.2 Petition Filing
Upon the filing of a petition by or against Rigel under any insolvency laws, Rigel as
debtor and as debtor in possession, and any trustee who may be appointed, agree as
follows:
A. To perform each and every obligation of Rigel under this Lease until this Lease is
either rejected or assumed by order of the United States Bankruptcy Court;
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B. To pay monthly in advance on the first day of each month as reasonable
compensation for use and occupancy of the Leased Premises an amount equal to
all rent due pursuant to this Lease;
C. To give at least thirty (30) days prior written notice of any abandonment of the
Leased Premises and any abandonment will be deemed a rejection of this Lease;
D. To do all other things of benefit to the Omaha Airport Authority otherwise
required under any insolvency laws; and
E. To be deemed to have rejected this Lease in the event of the failure to comply
with any of the above.
14.3 Assumption or Assignment in Bankruptcy
If Rigel becomes the subject debtor in a case pending under the Bankruptcy Code, the
Omaha Airport Authority's right to terminate this Lease under this Section will be subject
to the applicable rights of the Trustee in Bankruptcy to assume or assign this Lease as
then provided for in the Bankruptcy Code. However, the Trustee in Bankruptcy must
give to the Omaha Airport Authority and the Omaha Airport Authority must receive
proper written notice of the Trustee's assumption or rejection of this Lease within one
hundred twenty (120) days after the entry of the Order for Relief, or the date of the entry
of an order confirming a Chapter 11 Plan, or such other applicable period as is provided
for in the Bankruptcy Code. It is further agreed that failure of the Trustee to give notice
of the assumption within the specified period will conclusively and irrevocably constitute
the Trustee's rejection of this Lease and a waiver of any rights of the Trustee to assume
or assign this Lease. The Trustee will not have the right to assume or assign this Lease
unless the Trustee:
A. Promptly and fully cures all defaults under this Lease;
B. Promptly and fully compensates the Omaha Airport Authority and any party to
the Lease other than Rigel for all monetary damages and any actual pecuniary loss
to each party incurred as a result of the default;
C. The Bankruptcy Court, or other court of competent jurisdiction, enters an order
authorizing the assumption or assignment;
D. The assumption or assignment is not prohibited under applicable law, including,
but not limited to, Section 365 of the Bankruptcy Code;
E. Provides to the Omaha Airport Authority "adequate assurance of future
performance," as defined below:
(1) The Omaha Airport Authority and Rigel hereby agree in advance that
"adequate assurance of future performance," as used in Subsection 14.3E
above will mean that all of the following minimum criteria must be met:
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(a) Rigel's gross receipts at the Leased Premises if any, in the ordinary
course of its business during the thirty (30) days immediately
preceding the initiation of the case under the Bankruptcy Code
must be at least three (3)times greater than the next installment of
rent due under this Lease;
(b) Both the average and median of Rigel's monthly gross receipts at
the Leased Premises, if any, in the ordinary course of its business
during the six (6) months immediately preceding initiation of the
case under the Bankruptcy Code must be at least three (3) times
greater than the next installment of rent due under this Lease;
(c) Rigel must pay in advance to the Omaha Airport Authority all rent
payable by Rigel hereunder including, but not limited to, its share
as estimated by the Omaha Airport Authority of the cost of all
services provided by the Omaha Airport Authority whether directly
or through agents or contractors, and whether or not the cost of the
services is to be passed through to Rigel, in advance of the
performance or provision of the services; and
(d) Rigel must agree by writing delivered to the Omaha Airport
Authority that Rigel's business will be conducted in a first class
manner, and that no liquidating sales, auctions, or other non-first
class business operations will be conducted on the Leased
Premises and that the use of the Leased Premises as stated in this
Lease will remain unchanged, and that the assumption or
assignment of this Lease will not violate or adversely affect the
rights of other tenants located on the Airport.
14.4 Failure by Rigel. In the event Rigel is unable to:
A. Cure its defaults;
B. Reimburse the Omaha Airport Authority or any other party to this Lease for its
monetary damages or actual pecuniary loss to a party resulting from the defaults;
C. Pay the rent due under this Lease or any other payments required of Rigel under
this Lease on time;or
D. Meet the criteria and obligations imposed by subsections 14.3E(1)(a) through
14.3E(1)(d)in the previous subsection.
Then Rigel hereby agrees in advance that it has not met its burden to provide adequate
assurance of future performance and therefore cannot assume or assign this Lease, and
this Lease may be immediately terminated by the Omaha Airport Authority.
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14.5 No Default Waived
No default of this Lease by Rigel, either prior to or subsequent,to the filing of a
bankruptcy petition, will be deemed to have been waived unless expressly agreed to in
writing by the Omaha Airport Authority.
14.6 Lease
It is understood and agreed that this Lease is a lease of real property as a lease is
described in the Bankruptcy Code.
14.7 Obligations
Included within and in addition to any other conditions or obligations imposed upon
Rigel, or its successor in the event of assumption and/or assignment, in accordance with
this Section XIV are the following obligations:
A. The cure of any monetary defaults and the reimbursement of pecuniary loss
immediately upon assumption and or assignment;
B. The deposit of a sum equal to three (3) months' rent to be held as a security
deposit;
C. The use of the Leased Premises as set forth in this Lease;
D. The reorganization debtor or assignee of the debtor in possession or of Rigel's
Trustee must demonstrate in writing that it has sufficient background including,
but not limited to, substantial experience in managing operations of comparable
type and size and the financial ability to operate the business out of the Leased
Premises in the manner contemplated in this Lease and to meet all other
reasonable criteria of the Omaha Airport Authority as did Rigel upon execution of
this Lease and that any assignee of the debtor will represent a competitive
environment at the Airport for the provision of aeronautical services and will not
result in aeronautical services being provided or controlled by a single entity; and
E. No physical changes of any kind may be made to the Leased Premises unless in
compliance with the applicable provisions of this Lease.
14.8 Remedies
In the event of any default or breach by Rigel, in addition to any and all other remedies
available to the Omaha Airport Authority at law and in equity, the Omaha Airport
Authority will have the right at any time thereafter, with or without notice or demand:
A. To declare this Lease terminated and to reenter the Leased Premises and take
possession thereof and remove all persons therefrom, and Rigel will have no
further claim thereon or thereunder; or
B. Without declaring this Lease terminated, to reenter the Leased Premises and
hik
occupy, relet or sublet the whole or any part thereof for and on account of Rigel
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and to collect the rent and other sums that may thereafter become due and
payable; or
C. Without declaring this Lease terminated, to collect rent, including but not limited
to interest and late charges, as they become due and payable; or
D. To reenter the Leased Premises pursuant to subsection 14.8 B above and
thereafter elect to terminate this Lease and all of the rights of Rigel in or to the
Leased Premises.
ARTICLE XV-ASSIGNMENT AND SUBLETTING
15.1 The activities, uses, privileges, and obligations authorized herein are personal to Rigel
and Rigel agrees that it will not assign, subcontract, sublet or underlet the same or any
portion thereof, or assign, subcontract, sublet or underlet the Leased Premises or any
portion thereof without the express written consent of the Omaha Airport Authority in its
sole and absolute discretion and any purported assignment or subcontract in violation
hereof shall be void.
15.2 Without Iimiting the foregoing, the following shall be considered an assignment for
purposes hereof:
A. The sale, exchange or transfer on a cumulative basis, whether in one transaction
or multiple transactions, of twenty-five percent (25%) or more of the stock or
other ownership interests of Rigel or any entity which, either directly or
indirectly, owns or controls Rigel (including but not limited to a merger,
consolidation or reorganization)or the guarantor of Rigel on this Lease; or
B. The sale, exchange or transfer of all, or substantially all, of the assets or the
business related to the performance of this Lease. In the event the Omaha Airport
Authority consents to an assignment, this Lease shall be binding upon both Rigel
and the successors and assigns of Rigel and under such circumstances, Rigel
agrees to have executed and delivered all assignment and assumption documents
requested by the Omaha Airport Authority. No assignment shall relieve Rigel of
its obligations hereunder absent the express written consent of the Omaha Airport
Authority.
15.3 The Omaha Airport Authority in its absolute discretion shall be the sole judge as to the
reliability, capability, character, and desirability of any parties proposed as assignees of
this Lease or any part or parcel thereof.
ARTICLE XVI-HOLDING OVER
16.1 Holding Over
In the event Rigel shall hold over and remain in possession of the Leased Premises herein
leased after expiration of this Lease without any written renewal thereof, such holding
over shall not be deemed to operate as a renewal or extension of this Lease, but shall only
create a tenancy from month to month which may be terminated at any time by the
Omaha Airpbrt Authority.
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ARTICLE XVII-GENERAL PROVISIONS
17.1 Rules and Regulations
A. The Omaha Airport Authority may, from time to time, and during the Term of this
Lease adopt and enforce certain rules and regulations with respect to the use and
operation of the Airport. Rigel agrees to observe and obey such rules and
regulations.
B. It is understood and agreed that the rights granted by this Lease will not be
exercised in such a way as to interfere with or adversely affect the use,operation,
maintenance or development of the Airport.
C. This Lease shall become subordinate to provisions of any existing or future
agreement between the Omaha Airport Authority and the United States of
America or any agency thereof relative to the operation, development or
maintenance of the Airport, the execution of which has been or may be required
as a condition precedent to the expenditure of federal funds for the development
of the Airport.
17.2 Compliance with Law
A. Rigel shall not use the Leased Premises or any part thereof, or knowingly permit
the same to be used by any of its employees, officers, agents, subtenants, invitees,
or licensees for any illegal purposes and shall, at all times during the Term of this
Lease, comply with all applicable and lawful regulations, ordinances,and laws of
any city, county, or state government or, of the United States Government, and of
any political division or subdivision or agency, authority, or commission thereof
that may have jurisdiction to pass laws or ordinances or to make and enforce rules
or regulations with respect to the uses hereunder of the Leased Premises.
B. At all times during the Term of this Lease, Rigel shall, in connection with its
activities and operations at the Airport:
(1) Comply with and conform to all applicable and lawful present and future
statutes and ordinances, and regulations promulgated thereunder, of all
federal, state and other government bodies of competent jurisdiction that
apply to or affect, either directly or indirectly, Rigel or Rigel's operations
and activities under this Lease.
(2) Reimburse the Omaha Airport Authority for Rigel's proportional share of
all nonstructural improvements, repairs, and alterations to the Leased
Premises described in Article II that are required to comply with or
conform to any of such laws, ordinances and rules and regulations referred
to in subsection(1) above.
(3) Be and remain an independent contractor with respect to all installations,
construction, and services performed by or at the request of Rigel
hereunder.
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17.3 Notices, Consents and Approvals
All notices, consents and approvals required or authorized by this Lease to be given by or
on behalf of either party to the other, shall be in writing and signed by a duly designated
representative of the party by or on whose behalf they are given.
Until further notice to Rigel, the Omaha Airport Authority hereby designates its
Executive Director as its representative to sign such notices, consents and approvals on
its behalf, and until further notice to the Omaha Airport Authority Rigel hereby
designates Brian Bartling to sign such notices,consents and approvals on its behalf.
Notices to the Omaha Airport Authority shall be addressed to it at 4501 Abbott Drive,
Suite 2300, Eppley Airfield, Omaha,Nebraska 68110, and delivered either by hand or by
certified or registered mail, postage prepaid, or at such other office in the continental
United States as the Omaha Airport Authority hereafter may designate by notice to Rigel
in writing.
Notices to Rigel shall be addressed to it and delivered at the office of Rigel Airport
Services, LLC, 4501 Abbott Drive, Suite 2200, Omaha, NE 68110 either by hand or
registered mail, postage prepaid, or at such other office in the continental United States as
Rigel hereafter may designate by notice to the Omaha Airport Authority in writing.
17.4 Federal Requirements
A. Rigel for itself, its successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a covenant running with
the land that in the event facilities are constructed, maintained, or otherwise
operated on the said property described in this Lease for a purpose for which a
Department of Transportation program or activity is extended or for another
purpose involving the provision of similar services or benefits, Rigel shall
maintain and operate such facilities and services in compliance with all other
requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in
Federally Assisted Programs of the Department of Transportation, and as said
Regulations may be amended.
B. Rigel for itself, it successors in interest, and assigns, as a part of the consideration
hereof, does hereby covenant and agree as a covenant running with the land that:
(1) no person on the grounds of race, color or national origin shall be excluded
from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities; (2) that in the construction of any
improvements on,over, or under such land and the furnishing of services thereon,
no persons on the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or otherwise be subjected to
discrimination; (3) that Rigel shall use the Leased Premises in compliance with all
other requirements imposed by or pursuant to 49 CFR Part 21,Nondiscrimination
in Federally Assisted Programs of the Department of Transportation, and as said
Regulations may be amended.
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C. Rigel covenants that it shall comply fully with applicable laws governing non-
discrimination in public accommodations and commercial facilities, including the
requirements of the Americans with Disabilities Act and all regulations
hereunder,and that Leased Premises shall remain in compliance with throughout
the Term of this Lease.
D. The use of a portion of Airport property for operation of the Leased Premises is
subordinate to the use of Airport property for aviation purposes. The Omaha
Airport Authority reserves the right to develop and improve the Airport and all
roadways, terminal facilities, land areas, and taxiways and any other facilities at
the Airport as it may see fit.
E. In the event that the FAA or other governmental authority shall require any
modifications or changes in this Lease as a condition precedent to the granting of
funds for the improvement of the Airport, or to impose or use passenger facilities
charges under 49 U.S.C. § 40117, or if it is necessary to modify this Lease to
comply with the requirements of applicable law, orders and decisions of a Court,
the FAA or other governmental authority, the Omaha Airport Authority may
unilaterally modify this Lease,upon advice of its Iegal counsel, as may reasonably
be required to obtain such funds or comply with law. Nothing herein shall
preclude Rigel from contesting such orders or decisions, but Rigel shall abide by
the unilateral modification by the Omaha Airport Authority, until or unless
rescinded, overturned, or if stayed, for the duration of the stay. In no event will
Rigel be required, pursuant to this paragraph, to pay rent greater than specified
herein. If a unilateral modification by the Omaha Airport Authority has a material
adverse effect upon the profitability of the operations of Rigel under this Lease
taken as a whole, and the Omaha Airport Authority fails to offer alternatives that
reasonably mitigate such material adverse effect,then Rigel shall have the right to
terminate this Lease by written notice delivered to the Omaha Airport Authority
delivered within sixty (60) days after the Omaha Airport Authority notifies Rigel
of the unilateral modifications
F. Rigel shall make the Leased Premises available to all users thereof on reasonable,
and not unjustly discriminatory basis, and shall charge reasonable, and not
unjustly discriminatory, prices for each unit or service, provided that Rigel may
make reasonable and nondiscriminatory discounts, rebates or similar types of
price reductions to volume purchasers.
G. Rigel shall not discriminate on the basis of race, color, nationality, or sex in the
performance or this agreement. Rigel shall carry out applicable requirements of
the Department of Transportation Airport Concession Disadvantaged Business
Enterprise (ACDBE) requirements as further defined in 49CFR Part 23 and the
Omaha Airport Authority Airport Concession DBE program. Failure by Rigel to
carry out these requirements is a material breach of this agreement, which may
result in termination of this agreement or such other remedy as the Omaha Airport
Authority deems appropriate.
H. Noncompliance with any Section above, after timely notice by the FAA where
applicable to the Omaha Airport Authority of Rigel's noncompliance and a failure
of Rigel to substantially remedy such noncompliance within a reasonable period,
shall constitute a material breach thereof, and in the event of such noncompliance,
the Omaha Airport Authority shall have the right to terminate this Lease.
25
17.5 Governing Law
This Lease is entered into pursuant to the provisions of the appropriate statutes of the
State of Nebraska. This Lease shall be governed exclusively by the provisions hereof and
by the laws of the State of Nebraska as the same from time to time exist, subject to the
waivers and exclusions herein contained. Any litigation or suit brought relating to this
Lease shall be brought in the state or federal court sitting in Omaha, Nebraska, The
Omaha Airport Authority and Rigel each waive any claim or defense that such forum is
not convenient or proper. The Omaha Airport Authority and Rigel each agree that any
such court shall have personal jurisdiction over each party and each party hereby
consents to service of process by any means authorized by Nebraska law.
17.6 Nonliability of Agents and Employees of the Omaha Airport Authority
No director, officer, member, agent, or employee of the Omaha Airport Authority shall
be liable for any acts or omissions of Rigel, or its agents, servants, employees or
independent contractors, or for any conditions resulting from the operations or activities
of Rigel, its agents, servants, employees, or independent contractors either to Rigel or to
any other person, nor shall the Omaha Airport Authority be liable for any loss of or
damage to any personal property, fixtures or equipment of Rigel installed or stored in the
Leased Premises or elsewhere on the Airport. The Omaha Airport Authority shall not be
liable for the failure of Rigel to perform any of the obligations under this Lease or for any
delay in the performance thereof.
17.7 Incorporation of Required Provisions
Rigel and the Omaha Airport Authority incorporate herein by reference all provisions
lawfully required-to be contained herein by any governmental body or agency having
jurisdiction over the Airport.
17.8 Nonwaiver of Rights
No waiver or default by the Omaha Airport Authority or Rigel of any of the terms,
covenants, and conditions hereof to be kept, performed, and observed by the other party
shall be construed as, or shall operate as, a waiver of any subsequent default of any of the
terms, covenants, or conditions contained herein, to be performed, kept, observed by the
other party.
17.9 Invalid Provision
In the event any covenant, condition, or provision in this Lease is held to be invalid by
any court of competent jurisdiction, the invalidity of any such covenant, condition, or
provision shall in no way affect any other covenant, condition, or provision herein
contained; provided that the invalidity of any such covenant, condition, or provision does
not materially prejudice either the Omaha Airport Authority or Rigel in its respective
rights and obligations contained in the valid covenants, conditions, or provisions of this
Lease.
26
17.10 Consent of the Parties
Where this Lease requires the consent, approval, designation, or any other affirmative act
of one or more parties, Rigel and the Omaha Airport Authority agree that such consent,
approval, designation, or affirmative act shall not be unreasonably withheld or made.
17.11 Force Majeure
Neither the Omaha Airport Authority nor Rigel shall be deemed to be in breach of this
Lease by reason of failure to perform any of its obligations hereunder if, while and to the
extent that such failure is due to strikes, boycotts, labor disputes, embargoes, shortages of
materials, acts of God, acts of the public enemy, acts of superior governmental authority,
weather conditions floods, riots, rebellion, sabotage or any other circumstances for which
it is not responsible and which are not within its control. This provision shall not apply to
failures by Rigel to pay rents or charges or to make any other money payments required
by this Lease. This provision shall not prevent either party from exercising its rights of
termination under Article XI,XII or XIII of this Lease.
17.12 Successor Bound by Terms
All Terms, covenants, stipulations and agreements in this Lease shall extend to and bind
the legal representatives and successors of the respective parties hereto.
17.13 Headings
The paragraph headings contained herein are for convenience in reference and are not
intended to define or limit the scope of any provision of this Lease.
17.14 Incorporation of Exhibits
All Exhibits referred to in this Lease are intended to be and hereby are specifically made
a part of this Lease.
17.15 Entire Agreement
A. This Lease together with all Exhibits attached hereto, constitute the entire
agreement between the parties hereto, and all other representations or statements
heretofore made, verbal or written, are merged herein, and this Lease may be
amended only in writing, and executed by duly authorized representatives of the
parties hereto.
B. Rigel represents that is has carefully reviewed the terms and condition of the
Lease and is familiar with such terms and conditions and agrees faithfully to
comply with the same to the extent to which said terms and conditions apply to its
activities,authorized and required by this Lease.
17.16 Subordination Provision
This Lease is subject to and subordinate to the provisions of any agreement heretofore
made between the Omaha Airport Authority and the United States Government relative to
the operation or maintenance of the Airport,the execution of which has been required as
a condition precedent to the transfer of federal rights or property to the Omaha Airport
27
Authority for Airport purposes, or the expenditure of federal funds for the development
of the Airport, including the expenditure of federal funds for the development of the
Airport in accordance with the provisions of the FAA's Airport Improvement Program
and specifically the Airport Sponsors Grant Assurances 49 U.S.C. § 47107 et seq. (or its
successors), or in order to impose or use passenger facilities charges under 49 U.S.C. §
40117.
17.17 Subordination to Bonds of Omaha Airport Authority
This Lease and all rights granted to Rigel hereunder are expressly subordinated and
subject to the lien and provisions of the pledges, transfer, hypothecation or assignment
made by the Omaha Airport Authority in any Bond Ordinance executed by the Omaha
Airport Authority to issue Bonds. The Omaha Airport Authority expressly reserves the
right to make such pledges and grant such liens and enter into covenants as it may deem
necessary or desirable to secure and provide for the payment of Bonds, including the
creation of reserves therefore, provided that the Omaha Airport Authority shall not take
any actions that would be inconsistent with the terms and conditions of this Lease. Rigel
understands that the Omaha Airport Authority is and will be the issuer of Bonds. With
respect to Bonds on which the interest is intended to be excludable from gross income for
Federal income tax purposes under the Internal Revenue Code of 1986 as amended or
superseded, Rigel shall:
A. Not use, without prior written consent of the Omaha Airport Authority any
portion of the Leased Premises for any purpose other than as permitted by the
terms and provisions of this Lease;and
B. Immediately cease and desist from any action, other than as expressly permitted
by the terms and provisions of this Lease, with respect to the use of the Airport,to
the extent such action is described in written notice delivered by the Omaha
Airport Authority as an action that,pursuant to the written advice of bond counsel
to the Omaha Airport Authority or the Internal Revenue Service, may adversely
affect the treatment of interest on any Bond as excludable from gross income for
federal income tax purposes.
17.18 Issuance of Bonds by Omaha Airport Authority
In connection with any issuance of Bonds by the Omaha Airport Authority, upon not less
than twenty (20) day's prior written request by the Omaha Airport Authority, Rigel shall
deliver to the Omaha Airport Authority a statement in writing certifying, to the extent
correct and accurate:
A. That this Lease is unmodified and in full force and effect (or if there have been
modifications, a description .of such modifications and that the Agreement as
modified is in full force and effect);
B. That the Omaha Airport Authority is not in default under any provision of this
Lease, or if in default, the nature thereof in detail; and
C. Such further matters as may be reasonably requested by the Omaha Airport
Authority, it being intended that the parties may rely upon such statements
involved in such issuance of Bonds.
28
IN WITNESS WHEREOF, the parties have caused this Lease to be signed by their duly
authorized officers.
ATTEST: AIRPORT AUTHORITY OF THE
CITY OF OMAHA
10,7— / 74041/4/Asf
ATTEST: RIGEL AIRPORT SERVICES,LLC
Brian Bartling
29
HUDSON NEWS/GIFTS
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Omaha, Nebraska
•• •����_
1
PLANNING DEPARTMENT REFJFTL , E { V E U
DATE: JUNE 25,2013 DUE DATE: JULY 11, 2013
13 JUL --:? Pk7 213
CITY COUNCIL HRG JULY 23,2013
,
LOCATION: 4501 ABBOT DRIVE-EPPLEY AIR IE�L�' ,1
NmA-{A. iv._ ', '
LEGAL DESCRIPTION: REQ ADD TO EXTEND THE EXISTING NORTH TERMINAL-
SNACK BAR FROM 78' X 42' TO 93' X 42'
APPLICANT: RIGEL AIRPORT SERVICES , LLC, DBA"RIGEL AIRPORT SERVICES"
REQUESTED LICENSE OR ACTION: ADDITION TO THEIR PRESENT CLASS "C"
LIQUOR LICENSE LOCATION
NEW LOCATION(X)NEW OWNERSHIP ( ) TYPE OF FACILITY: BARJRESTAURANT
THIS REQUEST DOES O DOES NOT(X) PERTAIN TO AN OUTSIDE AREA
IF SIDEWALK CAFE: R-O-W-LEASE ' (4 PERMITS OBTAINED !\V ./
IF OUTSIDE: OUTSIDE AREA ISWitk-- 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 if wi i t 24 months)
EXISTING ZONING: ----KEXITING LAND USE:0/ V— P�2.fa'(n�—
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EXISTING USE DOES(} DOES NOT( )COMPLY WITH ZONING REGULATIONS
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City of ;�
,�sra°i�'�rt►�
r iretir='t
1819 Farnam Suite LC 1
Omaha, Nebraska 68183-0112 o �'
Buster Brown (402) 444-5550 �A 1 �
City Clerk FAX (402) 444-5263 o4b
44
0 FEBR�r4�
July 9, 2013
Rigel Airport Services, LLC Application for an addition to your present
Dba"Rigel Airport Services" Class "C" Liquor License location to extend
4501 Abbott Drive the existing North Terminal-Snack Bar area
Omaha,NE 68110 from 78' x 42' to 93' x 42'
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 July 23, 2013 . 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,
.4e‘t
Buster Brown
City Clerk
BJB:clj
_ ot&NHA,
City ofOmaha, Webras&a 1/, f
AliMta4ev..111115 IA
.... "'..,li I kLi ''''..a
1819 Farnam Suite LC 1 ,V lr - iI, IC
N.Omaha, Nebraska 68183-0112 o' 3 ^�•�. .. :f.,
Buster Brown (402) 444-5550 'pA eV.
ies
City Clerk FAX (402) 444-5263 04, D1rEFEissx
July 9, 2013
Tim Kenny, Attorney Application for an addition to the present Class "C"
Abrahams Kaslow& Cassman, LLP Liquor License location for Rigel Airport Services,
8712 West Dodge Road, Suite 300 LLC, dba"Rigel Airport Services", 4501 Abbott Dr.
Omaha, NE 68114-3450 to extend the existing North Terminal-Snack Bar area
from 78' x 42' to 93' x 42'
Dear Liquor License Applicant Attorney:
This letter is notification that a hearing before the Omaha City Council on your application for
liquor license has been set for July 23, 2013 . 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,
ti":-:-
.e‘c
Buster Brown
City Clerk
BJB:clj
j
i l'Oc)
ci ° iP 7- / /
�
NOTICE OF LIQUOR LICENSE APPLICATION
This notice is to inform you that
RIGEL AIRPORT SERVICES, LLC
DBA "RIGEL AIRPORT SERVICES"
has applied for an
ADDITION TO THEIR PRESENT CLASS "C" 1On & Off Sale
beer,wine and liquor] LIQUOR LICENSE LOCATION TO
EXTEND THE EXISTING NORTH TERMINAL-SNACK BAR
AREA FROM 78' X 42' TO 93' X 42'
located at 4501 ABBOTT DRIVE
The Omaha City Council will hold a public hearing regarding this
application on Tuesday, JULY 23, 2013 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
Farnam 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.
Johnson, Carman (CCIk)
From: Timothy Kenny<tkenny@akclaw.com>
Sent: Tuesday, July 09, 2013 12:24 PM
To: Johnson, Carman (CCIk)
Cc: Thomas Malicki
Subject: Omaha Airport Authority Address; Rigel Airport Services
Carmen...
The lease provides that all notices to the Omaha Airport Authority should be addressed as follows:
Omaha Airport Authority
c/ Executive Director
P.O. Box 19103
Eppley Airfield
Omaha, Nebraska 68119
I have arranged to have the search with Dakota called off in respect to the City's approval of the recent addition to be
heard on July 23. My understanding from our conversation is that the City has decided that the only notice needed to
be sent is to the Omaha Airport Authority.
Please confirm your receipt of this email.
Thanks for your help....Tim
Timothy M. Kenny
Abrahams Kaslow& Cassman LLP
8712 West Dodge Road, Suite 300
Omaha, NE 68 1 1 4-341 9
Phone: 402-392-1250
Fax: 402-392-0816
E-Mail: tkenny('akclaw.com
This message and any attachments are intended only for the use of the addressee and may contain information that is
privileged and confidential. If the reader of the message is not the intended recipient or an authorized representative of
the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you
have received this communication in error, please notify us immediately by e-mail at tkenny( akclaw.com or by telephone
at 402-392-1250 and delete the message and any attachments from your system.
Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax
advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be
used, for the purpose of(i) avoiding penalties under the Internal Revenue Code, or(ii) promoting, marketing or
recommending to another party any matters addressed herein.
1
No. 7
Rigel Airport Services, LLC, dba "Rigel
Airport Services", 4501 Abbot Drive, Eppley
Airfield, requests permission for an addition to
their present Class "C" Liquor License location
to extend the existing North Terminal — Snack
Bar area from 78' x 42' to 93' x 42'. Property
posted: 07-02-13; Notification sent: 07-12-13.
07-23-13;cj
tit
RECEIVED
Presented to Council:
July 23, 2013 - Approved ;
Buster Brown
City Clerk