ORD 42924 - Redevelopment Agreement with Blackstone Parking LLC to implement the Blackstone East Mixed Use Building TIF Project Plan ORDINANCE NO. H-Z !2'4
AN ORDINANCE approving a redevelopment agreement,which incorporates necessary lease and
development management agreements, between the City of Omaha and Blackstone
Parking, LLC, to implement the Blackstone East Mixed Use Building Tax Increment
Financing (TIF) Redevelopment Project Plan for a redevelopment site located at the
southwest corner of 37th and Farnam Streets, which proposes to construct a nine-story,
mixed-use building to include approximately 20,000 square feet of ground floor commercial
space, an enclosed public parking facility with 385 stalls, and 161 apartment units on the
upper levels; the agreement authorizes the use of up to $6,546,750.00, plus accrued
interest, in excess ad valorem taxes (TIF) generated by the development to help fund the
cost of the project, a purchase and sale agreement whereby the City will purchase the
Garage Unit of the condominium, upon substantial completion, for $18,897,134.00 and a
parking lease with the Owner of the Commercial/Residential Unit for 72 stalls, all as further
set forth in the Redevelopment Agreement, and providing for an effective date.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA;
Section 1. The Mayor is hereby authorized to execute, and the City Clerk to attest, the
attached Redevelopment Agreement, including the associated purchase and sale agreement and
parking lease agreeement necessary to complete the proposed redevelopment, between the City of
Omaha and Blackstone Parking, LLC to authorize the use of up to $6,546,750.00, plus accrued
interest, to offset TIF eligible costs as allowed by the Community Development Law for land
acquisition, demolition, site work, utility infrastructure, environmental issues, geotechnical issues
and special foundations, architectural, administration and engineering fees, and surveying for the
multi-family and retail portion of the project with the applicant contributing$62,000.00 of the TIF loan
proceeds to the Midtown Improvement Fund, as required, for a project with total estimated costs of
$43,507,648.00, a purchase and sale agreement whereby the City will purchase the Garage Unit of
ORDINANCE NO. 1-2`1�
Page 2
the condominium, upon substantial completion, for $18,897,134.00 and a parking lease with the
Owner of the Commercial/Residential Unit for 72 stalls, all as further set forth in the Redevelopment
Agreement, all as provided for in the redevelopment agreement; including any other documents in
connection with the Redevelopment Agreement necessary or appropriate to consummate the loan.
Section 2. Said Redevelopment Agreement contains obligations undertaken pursuant to the
Nebraska Community Development Law and Sections 18-2147 through 18-2150; and, are not
otherwise obligations of the City of Omaha.
Section 3. This Ordinance shall be in full force and take effect fifteen (15) days from and
after the date of its passage.
INTRODUCED BY COUNCILMEMBER:
ice,
APPROVED BY:
� Z
MAYOR OF THE CITY OF OMAHA DATE
PASSED APR 0 5 Z02 '
ATTEST:
C Y CLERK OF TH CITY OF OMAHA DATE
APPROVED AS TO FORM:
&I' /Zc�lZ
ASS ANT CITY ATTO EY DATE
MOTION BY
I hereby move that the Redevelopment Agreement attached to Ordinance No. 42924 on
the March 15, 2022 Agenda of the City Council, be deleted in its entirety and substitute, in lieu
thereof, the attached Redevelopment Agreement.
APPROVED AS TO FORM:
2 2 `/IZu2 _
ASSI T CIT AT ORNEY DATE
REDEVELOPMENT AGREEMENT FOR BLACKSTONE EAST MIXED USE BUILDING
THIS AGREEMENT is entered into by and between the City of Omaha, a Nebraska
Municipal Corporation in Douglas County, Nebraska, and Blackstone Parking, LLC, a Nebraska
limited liability company, or assigns.
RECITALS:
WHEREAS, on June 15, 2021 by Resolution No. 2021-0569, the City Council of the City
of Omaha approved the Blackstone East Mixed Use Building Tax Increment Financing (TIF)
Redevelopment Project Plan for a redevelopment site located at the southwest corner of 37th
and Farnam, which proposes the construction of a nine story mixed-use building to include
approximately 20,000 square feet•of ground floor commercial space, an enclosed public parking
facility with 385 stalls, and 161 apartment units on the upper levels, all of which will be subject to
a condominium regime, and all as set forth in Exhibit "A", which is attached hereto and made a
part hereof;
WHEREAS, the Blackstone East Mixed Use Building Tax Increment Financing (TIF)
Redevelopment Project Plan recommends authorizing up to $6,546,750.00 in TIF, plus accrued
interest, to offset eligible expenses, as provided for pursuant to the Nebraska by the Community
Development Law, including, but limited to, acquisition, demolition, site preparation,
architectural and engineering fees, specialized engineered foundations and other public
improvements as required, for public infrastructure enhancements and improvements in the 37'h
and Farnam Street area, as required, with the Owner making a $62,000 contribution to the
Midtown Improvement Fund, for a project with total estimated costs of$60,311,431.00;
WHEREAS, this Agreement is authorized and governed by the Nebraska Community
Development Law and implements the Blackstone East Mixed Use Building Redevelopment
Project Plan, which provides for the use of the excess ad valorem taxes, as provided for herein;
and
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4883-6734-4131.8
WHEREAS, in order to accommodate vehicular parking needs for the Redevelopment
Project and the future development areas immediately surrounding the Redevelopment Project,
the Owner will design and construct an approximate 385 space parking garage on the
Redevelopment Site as part of the Redevelopment Project. The City and Owner acknowledge
and agree that the parking garage shall be built to accommodate tenants of the Redevelopment
Project, employees and patrons of the Redevelopment Project and for the general public, as
further agreed to in the Parking Lease; and
The City and the Owner acknowledge and agree to subject the Redevelopment Project
Site and the improvements thereon to a condominium regime, whereby the City would own the
public parking facility and the Owner would own the commercial space and residential
apartments, in accordance with a master deed and declaration of condominium ownership
mutually agreed upon by the parties and recorded with the Douglas County Register of Deeds.
IN CONSIDERATION OF THESE MUTUAL COVENANTS, AND FOR GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH THE PARTIES
ACCEPT AND ACKNOWLEDGE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS
The following terms, whether plural or singular, shall have the following meanings.
1.1 "Base Year" and "Base Year Valuation" shall mean the year prior to the calendar
year that the division of the property tax levied on the Redevelopment Site is to
become effective. The Base Year is established by the Notice to Divide Tax for
Community Redevelopment Project ("Notice to Divide") form prepared by the City
of Omaha, which establishes the valuation for the base amount and the calendar
year that division of real property tax levied is to become effective. For purposes
of this Agreement, the parties agree the Base Year and associated Base Year
Valuation shall be established on January 1, 2021.
Prior to August 1st of the year of the Division Date, the Director, or Director's
designee, will file the Notice to Divide as required by law and in accordance with
the Division Date set forth below, with the Office of the Douglas County
Assessor/Register of Deeds. Prior to July 1st of the year of the Division Date the
Owner may request, in writing, to change the Base Year and the Division Date.
A request for an extension of the Base Year and Division Date may be approved
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4883-6734-4131.8
administratively by the Director through an addendum to this Agreement. This
addendum shall be executed by the Owner and the Director.
1.2 "City" shall mean the City of Omaha, Nebraska, a Municipal Corporation of the.
metropolitan class or such successor entity lawfully established pursuant to the
applicable provision of the Nebraska Community Development Law.
1.3 "Community Development Law" shall mean the Community Development Law of
the State of Nebraska (Chapter 18, Article 21, Sections 18-2101, et. seq.), as
supplemented by and including Sections 18-2147 to 18-2153, Reissue Revised
Statues of Nebraska, 1943, as amended. All statutory citations in the Agreement
are to the Nebraska Revised Statutes.
1.4 "Condominium" shall mean the condominium regime formed by the Master Deed
and Declaration of Condominium Ownership for Blackstone Mixed Use Building,
substantially in the form of Exhibit "E" attached hereto, in accordance with
Nebraska law.
1.5 "Director" shall mean the Director of the City of Omaha Planning Department.
1.6 "Division Date" shall mean the agreed upon date after which any ad valorem real
estate taxes levied upon the Redevelopment Site shall be divided by the Douglas
County Assessor pursuant to the Community Development.Law and the Notice to
Divide. For purposes of this Agreement, the parties agree the Division Date shall
be January 1, 2022.
1.7 "Excess ad valorem Taxes" shall mean any ad valorem real estate tax levied
upon and generated by the real property in the Redevelopment Site from and
after the Division Date (at the rate fixed each year by or for each of the
hereinafter defined public bodies) by or for the benefit of the State of Nebraska,
the City, and any board, commission, authority, district or any other political
subdivision or public body of the State of Nebraska (collectively "public bodies")
in excess of any ad valorem real estate tax generated by the levy on the Base
Year Valuation.
1.8 "Garage Unit" shall mean the parking garage unit of the Condominium.
1.9 "Owner" shall mean Blackstone Parking, LLC.
1.10 "Parking Lease" shall mean the Parking Lease between the City and Owner
substantially in the form of Exhibit"G" attached hereto.
1.11 "Redevelopment Project" shall be as more particularly described in the
Redevelopment Project Plan and as shown on the Site Plan attached hereto as
Exhibit"A" and incorporated herein.
1.12 "Redevelopment Project Plan" shall mean the Blackstone East Mixed Use
Building Tax Increment Financing Redevelopment Project Plan approved by the
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4883-6734-4131.8
City Council of the City of Omaha on June 15, 2021 by Resolution No. 2021-
0569.
1.13 "Redevelopment Promissory Note" or "Note" shall mean any obligation issued by
the City in the form of Exhibit "C" attached hereto and incorporated herein by
reference, which shall be in the principal amount set forth in such Exhibit
("Redevelopment Loan Proceeds") and which shall be repaid from and secured
by the Excess ad valorem Taxes generated by the real property within the
Redevelopment Site.
1.14 "Redevelopment Site" shall mean the real property legally described on Exhibit
"B", attached hereto and incorporated herein. The Redevelopment Site is
comprised of the Garage Unit and the Commercial/Residential Unit.
SECTION 2. OBLIGATIONS OF THE CITY
The City shall:
2.1 execute and deliver to the Owner within ten (10) calendar days after the request
of Owner, the Redevelopment Promissory Note in substantially the same form as
that which is attached hereto as Exhibit"C".
2.2 grant Redevelopment Loan Proceeds for TIF eligible expenses, including any
public improvements, to the Owner in an amount not to exceed $6,546,750.00,
plus accrued interest.
2.3 establish a special fund, as required by Section 18-2147(b) of the Community
Development Law, for the Excess ad valorem Taxes, if any, generated by the
Redevelopment Project and the Redevelopment Site, which shall be allocated to
and, when collected, paid into this special fund, and shall be used for no other
purpose than to pay debt retirement principal and interest as required by the
Redevelopment Promissory Note. Interest on monies in the special fund shall
accrue first to debt retirement interest and then to principal.
2.4 ensure that prior to expenditure or disbursement of Redevelopment Loan
Proceeds, the following shall be obtained, to wit:
2.4.1 Owner shall provide the Director, or Director's designee, with evidence,
acceptable to the Director, or Director's designee, in their sole discretion,
that sufficient private funds have been committed to complete the
Redevelopment Project.
2.4.2 Owner shall provide evidence of, and maintain, adequate performance
and labor materials bonds in the amount of no less than $6,546,750.00
during the period of construction of the project. The City shall be
specified as a co-obligee. This requirement may be satisfied by
reasonably sufficient labor and materials bond or payment and
performance bond from the Owner's general contractor or contractors, or
the bond required pursuant to Section 3.7 of this Agreement.
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2.5 make payments, as required by this Agreement and the Redevelopment
Promissory Note, of the Excess ad valorem Taxes held in the special fund
pursuant to Section 2.3 above. All Excess ad valorem Taxes shall be allocated,
and when collected, paid into the special fund for a period not to exceed fifteen
(15) calendar years from the Division Date. Under no circumstance shall the
Owner receive payments from the special fund for more than fifteen (15) years of
Excess ad valorem Taxes (i.e. thirty (30) semi-annual installments) or after such
time as the Redevelopment Promissory Note has been paid in full.
The City and Owner acknowledge and agree that the Owner shall receive
the benefit of the Redevelopment Loan Proceeds, as limited to eligible
expenses allowed by the Community Redevelopment Law, with the
understanding that the Excess ad valorem Taxes and resulting
Redevelopment Loan Proceeds may not be available for each and every
installment or may not be sufficient to fully amortize the Redevelopment
Promissory Note issued by the City.
2.6 grant the entire amount of the Redevelopment Loan proceeds to the Owner for
costs of improving and redeveloping the Redevelopment Site, as authorized and
allowed pursuant to the Community Development Law, including, but not limited
to, those estimated eligible costs set forth on Exhibit D", attached hereto.
Expenses identified on Exhibit "D" are a reasonably accurate estimate of the
eligible expenses for the Redevelopment Project.
2.7 execute such documents as may be reasonably necessary to effectuate City's
obligations under this Agreement.
2.8 upon substantial completion thereof, Purchase the Garage Unit from Owner for
$18,897,134.00 pursuant to the Purchase and Sale Agreement in substantially
the form of Exhibit"F" attached hereto.
2.9 The Parking Lease sets forth the City's responsibilities with regard to the day-to-
day management and operation of the Garage Unit, including provisions for the
maintenance, operation, upkeep and security comparable with a first-class
development. The standards for the garage maintenance, operation, upkeep and
security shall be mutually agreeable to the parties.
2.10 The City shall grant Owner a right-of-first refusal and right-of-first offer, as set
forth more specifically in the Parking Lease, to acquire the Garage Unit in the
event the City desires to transfer, sell, convey, divest or dispose of the Garage
Unit. The purchase price shall be the fair market value of the Garage Unit, as
determined by an independent third-party appraiser licensed in the State of
Nebraska and mutually selected by Owner and the City. Alternatively, if the City
receives a bona fide written offer from a third-party to acquire the Garage Unit,
Owner shall have a first right to acquire the Garage Unit based on the same
purchase terms that were presented in the third-party offer to purchase. The
right-of-first refusal and right-of-first offer shall be entered into concurrently with
this Agreement and a memorandum of agreement may be recorded against the
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Garage Unit evidencing the rights of the Owner under this Subsection 2.10 in
substantially the form attached hereto as Exhibit"H".
Notwithstanding anything contained in this Subsection 2.10, in the event Owner
acquires the Garage Unit, its acquisition of the same shall be subject to Owner
agreeing to leaseback a number of parking stalls to the City for the general
benefit of the public, said number to be reasonably determined by the parties.
SECTION 3. OBLIGATIONS OF THE OWNER
The Owner shall:
3.1 complete the Redevelopment Project on or before December 31, 2024. In the
event the Redevelopment Project cannot be completed on or before
December 31, 2024, the Owner may submit a request, in writing,for an extension
of the completion date. The request must be submitted no less than three months
prior to the completion date set forth herein. The request may be acknowledged
and approved by the Planning Director.
3.2 cause all real estate taxes and assessments levied on the Redevelopment Site
and Redevelopment Project to be paid prior to the time such become delinquent.
3.3 loan redevelopment funds to the City in the principal amount of $6,546,750.00,
plus accrued interest, as set forth in Sections 2.1 and 2.2, which, when combined
with other private funds available and the City's payment of the Garage Unit
Purchase Price, will be sufficient to construct the Redevelopment Project.
3.4 execute and deliver the Redevelopment Promissory Note with the terms set forth
below, in conjunction with its request to the City pursuant to Section 2.1 above.
At closing, the loan to be accomplished by this Section and the obligation of the
City to use the Redevelopment Loan Proceeds for redevelopment purposes
under Section 2.2 may be accomplished by offset so that the Owner retains the
Redevelopment Loan Proceeds. If the City so requests, the Owner shall, from
time-to-time, furnish the City with satisfactory evidence as to the use and
application of the Redevelopment Loan Proceeds.
3.4.1 Such Redevelopment Loan Proceeds shall be disbursed as provided in
Section 2.
3.4.2 Such Redevelopment Promissory Note shall bear a 6.00% interest rate.
3.4.3 The principal and interest shall be repaid by the City from the special fund
established pursuant to Section 2.3 to collect and hold Excess ad valorem
Taxes, pursuant to the Redevelopment Project Plan and Section 18-2147
of the Community Development Law, as they become collected in such
fund and available to the City for such use. To the extent such Excess ad
Valorem Taxes are insufficient or unavailable to the City, the loan shall be
forgiven and the obligations of the Owner shall remain unaffected.
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3.5 provide the City with quarterly progress reports during the construction of the
Redevelopment Project and at any time upon written request from the City, and
allow the City reasonable access, upon written request to Owner, to any relevant
financial records pertaining to the Redevelopment Project.
3.6 retain copies of all supporting documents (as defined under Section 18-2119(4)
of the Community Development Law) that are received or generated by the
Owner in relation to the Redevelopment Project or Redevelopment Plan, until the
expiration of three years following the end of the last fiscal year in which Excess
ad valorem Taxes are divided in relation to the Redevelopment Project and
provide such copies to the City upon written request of the Director.
3.7 during the period that the Redevelopment Promissory Note is outstanding:
3.7.1 not protest the real estate improvement valuation on the Redevelopment
Site or request a reduction in the real estate improvement valuation on
the Redevelopment Site certified as of January 1, 2021 (Base Year) prior
to and during construction; and not protest the real estate improvement
valuation on the Redevelopment Site to request a reduction in the real
estate improvement base valuation on the Redevelopment Site to any
amount less than as certified as of January 1, 2021 (Base Year) plus
$40,110,295.00 (excess valuation) after substantial completion or
occupancy of the Redevelopment Project. This covenant is for the
benefit of, and binding upon, both the City and the Owner and any
successors and assigns, but all parties acknowledge that the excess
valuation agreed to herein is not binding on the Douglas County
Assessor and that any partial or full valuation designated by the
Douglas County Assessor may not be an amount sufficient to
produce Excess ad valorem Taxes necessary on an annual basis to
amortize the Redevelopment Promissory Note;
3.7.2 except with respect to the Garage Unit, not convey the Redevelopment
Site or structures thereon to any entity which would be exempt from the
payment of real estate taxes, not apply for exemption of real estate taxes
from the county or the state, or cause the nonpayment of such real estate
taxes; if the county and/or state award the exemption of real estate taxes,
Owner recognizes that the Redevelopment Promissory Note may not be
fully funded through the Excess and valorem Taxes and that such
Redevelopment Promissory Note is non-recourse to the City;
3.7.3 not apply to the Douglas County Assessor for the structures, or any
portion thereof, to be taxed separately from the underlying real property
encompassed within the Redevelopment Site;
3.7.4 maintain insurance for a minimum of ninety percent (90%) of the full value
of the structures on the Commercial/Residential Unit;
3.7.5 in the event of casualty, apply such insurance proceeds to the
reconstruction of the Commercial/Residential Unit, to the extent permitted
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by Owner's mortgage lender, and
3.7.6 except as otherwise set forth herein, cause all real estate taxes and
assessments levied on the Commercial/Residential Unit to be paid prior
to the time such become delinquent. The Owner acknowledges and
agrees that any ad valorem taxes that become delinquent may be
forfeited and any portion of the Excess ad valorem Taxes levied in the
fifteenth year under this Agreement that become delinquent shall be
forfeited and returned to the appropriate public bodies or taxing
jurisdictions.
3.7.7 acquiesce to any and all requests deemed necessary by the City related
to compliance with the Community Development Law.
3.8 provide the City of Omaha Finance Department with an executed copy of the
Redevelopment Promissory Note prior to disbursement of any proceeds for
repayment of such Note pursuant to Section 2.5, so that such payment can be
noted on the Note and the Note returned to Owner.
3.9 the Owner shall provide the City with a penal bond as required by Section 18-
2151 of the Community Development Law. A reasonably sufficient payment and
performance bond from the Owner's general contractor or contractors will satisfy
this requirement in accordance with Section 2.4.2 above.
3.10 install and construct all of the public infrastructure improvements set forth in the
Redevelopment Project Plan approved by the City Council of the City of Omaha
on June 15, 2021 by Resolution No. 2021-0569, in coordination with the Owner's
development team, the City of Omaha Planning Department— Urban Design, and
the City of Omaha Public Works Department as referenced in the
Redevelopment Plan, and as subsequently modified to comply with City of
Omaha requirements.
3.11 Owner shall negotiate in good faith and record against the Redevelopment Site
all documents necessary to create the Condominium. f
3.12 inform the City, in writing, of any conveyance of the entire Redevelopment
Project or Redevelopment Site, which shall include name, and address of the
purchaser and contact information for the purchaser's authorized representative.
3.13 If the Owner violates or breaches any of the agreements, representations or
covenants in this section, the Owner may be required by the City to surrender
any remaining amount outstanding of the Redevelopment Promissory Note, after
reasonable notice and opportunity to cure. Each of the foregoing covenants shall
be referenced in a Notice of Redevelopment Agreement to be recorded by the
Owner with the Douglas County, Nebraska Register of Deeds within sixty (60)
days of the execution of this Agreement. A copy of the Notice of Redevelopment
Agreement shall be delivered to the City within one week of recording. The
Owner shall include the same covenants and restrictions agreed to above in any
conveyance of the Commercial/Residential Unit, or any portion thereof, including
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4883-6734-4131.8
but not limited to, any sale, assignment, sale-leaseback or other such transfer of
the property, but shall not be responsible otherwise for the actions of the third
parties if these covenants are breached by such third parties if the Owner no
longer owns the Commercial/Residential Unit.
SECTION 4. ADDITIONAL OBLIGATIONS OF THE CITY AND OWNER AND GOVERNING
PROVISIONS OF THE AGREEMENT
4.1 Equal Employment Opportunity Clause. Annexed hereto as Exhibit "I" and made
a part hereof by reference are the equal employment provisions of this
Agreement, wherein the "Owner" is referred to as "Contractor".
4.2 Non-discrimination. The Owner shall not, in the performance of this Agreement,
discriminate or permit discrimination in violation of federal or state laws or local
ordinances because of race, color, sex, age, political or religious opinions,
affiliations or national origin.
4.3 Captions. Captions used in this Agreement are for convenience and are not
used in the construction of this Agreement.
4.4 Applicable Law. Parties to this Agreement shall conform with all existing and
applicable city ordinances, resolutions, state laws, federal laws, and all existing
and applicable rules and regulations. Nebraska law will govern the terms and the
performance under this Agreement.
4.5 Interest to the City. Pursuant to Section 8.05 of the Home Rule Charter, no
elected official or any officer or employee of the City of Omaha shall have a
financial interest, direct or indirect, in any City of Omaha Agreement. Any
violation of this section with the knowledge of the person or corporation
contracting with the City of Omaha shall render the Agreement voidable by the
Mayor or Council.
4.6 Merger. This Agreement shall not be merged into any other oral or written
Agreement, lease or deed of any type.
4.7 Administrative Amendments. The parties hereto recognize that certain
administrative amendments may need to be made to this Agreement in order to
carry out the intent of this Agreement and the Redevelopment Plan. The parties
hereto recognize that any such minor amendments to this Agreement negotiated
and executed by the parties' respective representatives or such addendums as
provided for herein, other than those defined in §18-2117 of the Community
Development Law, shall be considered and treated as administrative in nature
and not as a legislative amendment to this Agreement or the Redevelopment
Plan. However, amendments of the following types shall be referred to the City
Council for approval:
(1) Those that materially alter or reduce existing areas or structures
otherwise available for public use or access;
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(2) Those that require the expenditure of $75,000.00 or more of City funds
above the levels contained in this Agreement;
(3) Those that increase City loans, bonded indebtedness, deferred payments
of any types, or other financial obligations above the levels contained in
this Agreement; and
(4) Those otherwise considered major or material in the reasonable
discretion of the City.
4.8 Modification. This Agreement contains the entire agreement of the parties. No
representations were made or relied upon by either party other than those that
are expressly set forth herein. No agent, employee or other representative of
either party is empowered to alter any of the terms herein unless done in writing
and signed by an authorized officer of the respective parties.
4.9 Assignment. The Owner may not assign its rights under this Agreement without
the express prior written consent of the City; such consent not to be
unreasonably withheld. The Mayor may approve, in writing, a collateral
assignment of this Agreement and the Redevelopment Promissory Note to the
Owner's lender, or the assignment of all rights hereunder to a successor entity
owned by, or under common control with Owner.
4.10 Strict Compliance. All provisions of this Agreement and each and every
document that shall be attached shall be strictly complied with as written, and no
substitution or change shall be made except upon written direction from
authorized representatives of the parties.
4.11 Binding Effect. This Agreement shall be binding upon the Owner's successors
and assigns, and shall run with the land described in Exhibit "B", attached hereto,
to the benefit of the City of Omaha.
4.12 Force Majeure. Neither the City nor Owner shall be liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; acts of terrorism; sabotage; strikes; disease; pandemics;
quarantines; epidemics; acts of government; a state of emergency; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility, transportation,
computer (hardware or software) or telephone communication service; accidents;
labor disputes; acts of civil or military authority; governmental actions; or inability
to obtain labor, material, equipment or transportation; provided, however, that in
the event of a failure or delay, the affected party shall provide the other party
notice of such delay as soon as reasonably practicable following its discovery,
and each party shall use its best efforts to mitigate the effects of any such failure
or delay.
4.13 Exhibits. Attached hereto and incorporated herein are the following Exhibits:
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4883-6734-4131.8
Exhibit A- Redevelopment Project Site Plan
Exhibit B - Legal Description of Redevelopment Project
Site
Exhibit C - Redevelopment Project Promissory Note
Exhibit D - Eligible Expenses
Exhibit E - Form Master Deed and Declaration of
Condominium Regime
Exhibit F - Purchase and Sale Agreement for Garage
Unit
Exhibit G - Parking Lease
Exhibit H - Right of First Refusal and Right of First
Offer
Exhibit I - Equal Opportunity Clause
SECTION 5. AUTHORIZED REPRESENTATIVE
In further consideration of the mutual covenants herein contained, the parties hereto
expressly agree that for the purposes of notice, including legal service of process, during the
term of this Agreement and for the period of any applicable statute of limitations thereafter, the
following named individuals shall be the authorized representatives of the parties:
(1) City of Omaha:
David K. Fanslau Legal Service
Planning Director do City Clerk
City Planning Department Omaha/Douglas Civic Center
Omaha/Douglas Civic Center 1819 Farnam Street
1819 Farnam Street, Suite 1100 Omaha, NE 68183
Omaha, NE 68183
(2) Owner:
Attn: Thomas McLeay
Blackstone Parking, LLC
3814 Farnam Street
Omaha, NE 68131
Either party may designate additional representatives or substitute representatives by
giving written notice thereof to the designated representative of the other party.
Executed this -4 ay of r ri \ , 2022.
ATTEST: CITY OF OMAHA
—174-J.--
CI CLERK OF THE Y OF OMAHA DATE MAYOR OF THE CITY OF OMAHA DATE
APPROVED AS TO FORM:
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4883-6734-4131.8
3/2Y/an
A Si' T CITY AT ORNEY DATE
Executed this a! day of 4pi , 2022.
OWNER: Blackstone Parking, LLC
By:
Name: homas McDtray
Title: Afq 4g7er—
STATE OF NEBRASKA )
) §
COUNTY OF DOUGLAS )
- L, , rho, acknowledged the foregoing Redevelopment Agreement before me this
/Z day of / , 2022.
GENERAL NOTARY-State of Nebraska at L
SHERI L.WHITE
My Comm.Ev.April 3O,2025 Notary Public, State of Nebraska
4883-6734-4131.8
)
EXHIBIT A
REDEVELOPMENT PROJECT SITE PLAN
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4883-6734-4131.8
EXHIBIT B
LEGAL DESCRIPTION OF REDEVELOPMENT PROJECT SITE
Lot 1, Blackstone-Cottonwood Place, a subdivision as surveyed, platted and recorded in
Douglas County, Nebraska.
4883-6734-4131.8
EXHIBIT C
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE " '33
ACT")AND MAY NOT BE TRANSFERRED,ASSIGNED, SOLD OR HYPOTHECATED UNLESS A
REGISTRATION STATEMENT UNDER THE '33 ACT SHALL BE IN EFFECT WITH RESPECT
THERETO AND THERE SHALL HAVE BEEN COMPLIANCE WITH THE '33 ACT AND ALL
APPLICABLE RULES AND REGULATIONS THEREUNDER, OR THERE SHALL HAVE BEEN
DELIVERED TO THE CITY OF OMAHA PRIOR TO TRANSFER, ASSIGNMENT, SALE OR
HYPOTHECATION AN OPINION OF COUNSEL, SATISFACTORY TO THE CITY OF OMAHA TO
THE EFFECT THAT REGISTRATION UNDER THE'33 ACT IS NOT REQUIRED.
REDEVELOPMENT PROMISSORY NOTE
$6,546,750.00 , 2022
FOR VALUE RECEIVED, the undersigned, City of Omaha (hereinafter known as "Borrower"),
promises to pay to , LLC, 3814 Farnam Street, Omaha, NE 68131, Attention:
Mike Peter ("Holder"), and/or its assigns, the principal sum of Six Million Five Hundred Forty-Six
Thousand Seven Hundred Fifty and No/100 Dollars ($6,546,750.00), together with interest thereon at the
rate of 6.00% per annum from January ls' of the year ad valorem real estate taxes levied upon the
Redevelopment Site are divided in accordance with Section 1.5 of the Redevelopment Agreement until
paid in full. The principal balance and interest thereon shall be due and payable to the Holder of this
Redevelopment Promissory Note as and at such time as any excess ad valorem taxes generated by the
Redevelopment Project as set forth in that certain Redevelopment Agreement dated the day of
, 2022, by and between the Borrower and the Holder (the "Redevelopment Agreement")
are collected by the Borrower and available for the retirement of this debt.
In the event of default under this Redevelopment Promissory Note, all sums secured by this
Redevelopment Promissory Note or any other agreement securing this Redevelopment Promissory Note
shall bear interest at a rate equal to eight percent (8%) above the prime rate as published by the Wall
Street Journal from time-to-time; however, in the event said interest rate exceeds the maximum rate
allowable by law, then such rate of interest shall equal the highest legal rate available.
The Borrower may prepay the principal amount outstanding in whole or in part, without penalty
or the prior consent of the Holder. •
In the event the monies collected and held in that special fund established under Section 182147
of the Nebraska Revised Statutes and pursuant to the Redevelopment Agreement are insufficient to pay in
full all amounts due and owing after all excess ad valorem taxes generated by the Redevelopment Project,
as set forth in the Redevelopment Agreement,have been collected by the Borrower and paid, immediately
upon being available, towards the retirement of the amounts due hereunder, then the Holder shall waive
any unpaid portion of the principal and interest due.
In the event this Redevelopment Promissory Note is referred to an attorney for collection the
Holder shall be entitled to reasonable attorney fees allowable by law and all court costs and other
expenses incurred in connection with such collection.
The Borrower shall be in default in the event the Borrower shall fail to pay, when due, any
amount required hereunder.
4883-6734-4131.8
•
Demand, presentment, protest and notice of nonpayment under this Redevelopment Promissory
Note are hereby waived.
No delay or omission on the part of the Holder in exercising any remedy, right or option under
this Redevelopment Promissory Note shall operate as a waiver of such remedy, right or option. In any
event, a waiver on any one occasion shall not be construed as a waiver or bar to any such remedy,right or
option on a future occasion.
Any notice provided for in this Redevelopment Promissory Note to the Borrower or the Holder
shall be in writing and shall be given by regular mail to the Holder or Borrower, or at such other address
as either party may designate by notice in writing.
This Redevelopment Promissory Note shall be governed by and construed in accordance with the
• Laws of the State of Nebraska. All payments hereunder shall be payable in lawful money of the United
States of America and shall be legal tender for public and private debts at the time of payment.
CITY OF OMAHA, a Municipal Corporation
By:
Mayor of the City of Omaha Date
ATTEST: APPROVED AS TO FORM:
y_ -7 CfLZ y/7/20z
ity Clerk of the C o 'Omaha Date As lstant Ci Atto. ey Date
4883-6734-4131.8
EXHIBIT D
ELIGIBLE EXPENSES
TIF Eligible Expenses Amount
Public Irnprovarrients 8:000000,00
Acquisition {Less Current Tax Vi lue) L623,293.33
Sitework. Iciuding Demolition} 208420572.01
Special Fouridatto,ns (Allowance for Geopiers) 6.00000,.00
Utility Extensions,, 1-l4ok.ups and Rekka bons 1500000.00
Arellitectu re & Engineering Costs 1,;45.40929.00
Til F Applicationi & Contribution 108,000,.00
Total Till Ergible Expensesi 70778r78.4.34
4883-6734-4131.8
EXHIBIT E
MASTER'DEED AND DECLARATION OF
CONDOMINIUM OWNERSHIP FOR
BLACKSTONE EAST MIXED USE BUILDING
PREPARED BY, RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
Koley Jessen P.C., L.L.O.
1125 S. 103rd Street,Suite 800
Omaha,NE 68124
Attention: Max J. Burbach
4883-6734-4131.8
TABLE OF CONTENTS
(continued)
Page
ARTICLE I
SUBMISSION OF PROPERTY
ARTICLE II
DEFINITIONS
Section 2.1 General 1
Section 2.2 Other Terms Defined in Act 4
Section 2.3 Other Terms in Declaration 4
ARTICLE III
CONDOMINIUM INFORMATION
Section 3.1 Name 4
Section 3.2 Association 4
Section 3.3 County 5
Section 3.4 Legal Description 5
Section 3.5 Number of Units 5
Section 3.6 Boundaries and Description of Condominium Unit 5
Section 3.7 Limited Common Elements 6
Section 3.8 Development Rights and Special Declarant Rights 6
Section 3.9 Recording Data 6
Section 3.10 Notices
6
Section 3.11 Use of Units 6
Section 3.12 Easement Rights 6
ARTICLE IV
MEMBERSHIP,VOTING RIGHTS AND ALLOCATIONS
Section 4.1 Membership 7
Section 4.2 Voting Rights and Assignment of Votes 7
Section 4.3 [Allocated Interests 8
ARTICLE V
ASSOCIATION AND EXECUTIVE BOARD
Section 5.1 Authority and Power 8
Section 5.2 Membership 8
Section 5.3 Executive Board Powers and Duties 8
Section 5.4 Professional Management and Contract Termination Provisions 10
Section 5.5 Executive Board Limitations 10
Section 5.6 Executive Board Standard of Care 10
4883-6734-4131.8 _20_
TABLE OF CONTENTS
(continued)
Page
ARTICLE VI
COMMON ELEMENTS
Section 6.1 Dedication of Common Elements 11
Section 6.2 Description of Common Elements 11
Section 6.3 Maintenance,Repairs and Replacements of Common Elements 11
Section 6.4 Common Utilities 11
Section 6.5 Unit Owner's Easements of Enjoyment 11
Section 6.6 Delegation of Use 12
Section 6.7 . No Partition of Common Elements 12
Section 6.8 No Severance of Ownership 12
ARTICLE VII
LIMITED COMMON ELEMENTS
Section 7.1 [Limited Common Elements 12
Section 7.2 Mechanics' Liens and Materialmen's Liens 13
Section 7.3 [Signage 13
Section 7.4 Monument Signs 13
ARTICLE VIII
ASSESSMENTS
Section 8.1 Covenant for Assessments 13
Section 8.2 Purpose and Use of Assessments 13
Section 8.3 Annual Common Expense Assessments 14
Section 8.4 Budget 14
Section 8.5 [Special Assessments 14
Section 8.6 Notice and Quorum 14
Section 8.7 Rate of Assessment 15
Section 8.8 Payment of Assessments 15
Section 8.9 Date of Commencement: Annual Common Expense Assessments 15
ARTICLE IX
ASSOCIATION'S LIEN
Section 9.1 Association Lien and Effect of Non-Payment of Assessments 15
Section 9.2 Priority of Liens 16
Section 9.3 Certificate of Status of Assessments or other Defaults 16
Section 9.4 Common Expenses Attributable to Fewer than All Units 17
Section 9.5 Unit Owner's Negligence and Individual Assessments 17
4883-6734-4131.8 -21-
TABLE OF CONTENTS
(continued)
Page
ARTICLE X
INSURANCE
Section 10.1 Insurance Requirements Generally 17
Section 10.2 Unit Owner's Insurance 18
Section 10.3 The insurance policies purchased by the Association,to the extent reasonably
available, shall contain the following provisions: 18
Section 10.4 Certificate of Insurance 19
Section 10.5 Payment of Premiums 19
Section 10.6 Insurance Obtained by Owners 19
ARTICLE XI
INDEMNIFICATION
Section 11.1 Board Member Indemnification 19
Section 11.2 Unit Owner Indemnification 20
ARTICLE XII
COVENANTS AND OBLIGATIONS
Section 12.1 Maintenance of Units and Improvements 20
Section 12.2 Damage or Destruction of Improvements 20
Section 12.3 Drainage 20
ARTICLE XIII
DAMAGE,DESTRUCTION,CONDEMNATION AND RESTORATION OF BUILDINGS
Section 13.1 Sufficient Insurance 20
Section 13.2 Insufficient Insurance 21
Section 13.3 Eminent Domain 21
Section 13.4 Repair,Restoration or Reconstruction of the Improvements 22
ARTICLE XIV
REMEDIES
Section 14.1 Violations 22
Section 14.2 Remedies 23
Section 14.3 Enforcement by Unit Owners 24
ARTICLE XV
GENERAL PROVISIONS
Section 15.1 Certain Rights of the Declarant 24
Section 15.2 Employees: Maintenance of Common Elements 25
Section 15.3 Record of Receipts and Expenditures 25
Section 15.4 Conveyance and Leases 25
4883-6734-4131.8 -22-
TABLE OF CONTENTS
(continued)
Page
Section 15.5 Term of Declaration 25
Section 15.6 Amendment of Declaration 25
Section 15.7 Assignments by Declarant 26
Section 15.8 Unit Owner's Duty to Disclose 26
Section 15.9 Association Right to Security Interest Information 26
Section 15.10 Taxes 26
Section 15.11 Captions 26
Section 15.12 Waiver 26
Section 15.13 Invalidity and Severability 26
Section 15.14 Conflict 26
Section 15.15 Meetings 27
Section 15.16 Controlling Law Jurisdiction and Venue 27
4883-6734-4131.8 _23_
MASTER DEED AND DECLARATION OF
CONDOMINIUM OWNERSHIP FOR
BLACKSTONE EAST MIXED USE BUILDING
THIS MASTER DEED AND DECLARATION OF CONDOMINIUM OWNERSHIP FOR
BLACKSTONE EAST MIXED USE BUILDING ("Declaration") is made and entered into this
day of , 202 , by Blackstone Parking, LLC, a Nebraska limited liability company
("Declarant").
RECITALS
A. Declarant is the owner of certain real property located in the County of Douglas, State of
Nebraska, which is more particularly described on Exhibit"A"attached hereto(the"Property").
B. Declarant desires and intends by this Declaration to submit the Property to the provisions
of the Nebraska Condominium Act,Neb. Rev. Stat. § 76-825, et seq., as amended from time to time (the
"Act"), as a condominium, as defined in the Act, pursuant to which portions of the Property will be
designated for separate ownership and the remainder of which will be for common ownership solely by
the Unit Owners of the separate ownership interests.
C. Declarant has organized, or will organize Blackstone East Mixed Use Building Owners
Association, Inc., a Nebraska nonprofit corporation, for the purpose of exercising the functions of an
Association organized under Neb. Rev. Stat. §76-859.
ARTICLE I
SUBMISSION OF PROPERTY
Declarant hereby publishes and declares that the Property shall be held, sold, conveyed,
transferred, leased, subleased and occupied subject to the following easements, covenants, conditions, and
restrictions which are for the purpose of protecting the value and desirability of the Property, and which
shall run with the Property and shall be binding upon and inure to the benefit of all parties having any
right, title, or interest in the Property, or any portion thereof, their heirs, personal representatives,
successors, and assigns. Additionally, Declarant hereby submits the Property to the provisions of the Act.
To the extent this Declaration is silent on a matter covered by the Act, the provisions of the Act shall
apply. If the Act is repealed, the Act as it was in effect on the effective date of such repeal shall remain
applicable. To the extent this Declaration and the Act conflict,this Declaration shall govern.
ARTICLE II
DEFINITIONS
Section II.1 General. For the purposes of brevity and clarity, certain words and terms used in this
Declaration are defined as follows:
(a) "Allocated Interests" means the undivided interest in the Common Elements, the Common
Expense Liability and votes in the Association allocated to each Unit.
(b) "Assessments" means all Common Expense Assessments, Special Assessments, Individual
Assessments and fines levied by the Executive Board pursuant to the Declaration and Association
Bylaws.
24
4883-6734-4131.8
(c) "Association" means Blackstone East Mixed Use Building Owners Association, Inc., a Nebraska
nonprofit corporation,its successors and assigns, organized and existing under§76-859 of the Act.
(d) "Association Matters"means those matters upon which a Unit Owner is entitled to vote pursuant
to Article IV hereof.
(e) "Buildings"means the building located on the Property and containing the Units, as shown by the
Plat and Plans depicting the respective floors of such building.
(f) "Bylaws"means the Bylaws of the Association, and all amendments thereto.
(g) "Capital Improvements"means the construction, erection or installation of substantial structure(s)
or other substantial improvement(s) in the Condominium.
(h) "City"means the City of Omaha,Nebraska.
(i) "Commercial/Residential Unit" means the Unit designated as the commercial/residential unit on
the Plats and Plans.
(j) "Common Elements" means all portions of the Property except the Units, as more specifically
described in Article VI hereof.
(k) "Common Expense Liability" means the liability for Common Expenses allocated to each Unit
pursuant to Section 4.3 of this Declaration and §76-844 of the Act.
(1) "Common Expenses"means expenditures made or financial liabilities incurred by or on behalf of
the Association, together with any allocations to reserves. These expenses for the operation of the
' Condominium include,but are not limited to:
(i) Expenses of administering, operating, maintaining, insuring, repairing or replacing the Common
Elements;
(ii) Expenses declared to be Common Expenses by this Declaration;
(iii) Expenses agreed upon as Common Expenses by the Association; and
(iv) Such reasonable reserves as may be established by the Association,whether held in trust or by the
Association: for repair, replacement or addition to the Common Elements or any other real or personal
property acquired or held by the Association.
(m) "Declarant" means Blackstone Parking, LLC, a Nebraska limited liability company, and its
successors and assigns.
(n) "Declaration" means this Master Deed and Declaration of Condominium Ownership for
Blackstone East Mixed Use Building, as recorded in the office of the Register of Deeds of Douglas
County, Nebraska, together with any other recorded amendments and supplements to the Declaration
from time to time.
(o) "Executive Board" means the body, regardless of name, designated in the Declaration to act on
behalf of the Association.
(p) "Garage Unit"means the Unit designated as the parking garage on the Plat and Plans.
25
4883-6734-4131.8
(q) "Identing Number" means a symbol or address that identifies only one Unit in the
Condominium
(r) "Individual Assessments" means any Assessments made against a Unit or Unit Owner by the
Association, other than Common Expense Assessments or Special Assessments.
(s) reserved.
(t) "Manager" means a Person employed or engaged to perform management services for the
Condominium and the Association.
(u) "Member"means every Person who is a Unit Owner.
(v) "Person" means a natural person, corporation, business trust, estate, trust, limited liability
company, limited partnership, general partnership, association, joint venture, government, government
subdivision or agency, or other legal, or commercial entity, or any combination thereof.
(w) "Plat and Plans" means the Plat and Plans prepared in accordance with §76-846 of the Act and
attached hereto as Exhibit"B",Plat and Plans.
(x) "Property" means all of the real property described in Recital "A" above and Exhibit "A"
attached hereto,together with all improvements and structures erected, constructed or contained therein or
thereon, and all easements, rights and appurtenances belonging thereto, and all fixtures and equipment
intended for the mutual use, benefit or enjoyment of the Unit Owners submitted to the provisions of the
Act pursuant to this Declaration or any amendment hereto, as a condominium.
(y) "Purchaser" means any Person, other than the Declarant, who, by means of a voluntary transfer,
acquires a legal or equitable interest in a Unit other than (a) a leasehold interest in a Unit of less than
twenty (20)years, including renewal options, with the period of the leasehold interest, including renewal
options,being measured from the date the initial term commences, or(b) a Security Interest.
(z) "Real Estate" means any leasehold or other estate or interest in, over, or under land, including
structures, fixtures, and other improvements and interests that, by custom, usage, or law, pass with a
conveyance of land though not described in the contract of sale or instrument of conveyance. Real Estate
includes parcels with or without horizontal boundaries and spaces that may be filled with air or water.
(aa) "Rules and Regulations"means any instruments,however denominated,which are adopted by the
Association for the regulation and management of the Condominium, including any amendments to those
instruments.
(bb) "Security Interest" means an interest in Real Estate or personal property, created by contract or
conveyance which secures payment or performance of an obligation. The term includes a lien created by
a mortgage deed of trust, trust deed, security deed, contract for deed, land sales contract, lease intended as
security assignment of lease or rents intended as security, pledge of an ownership interest in an
association,and any other consensual lien or title retention contract intended as security for an obligation.
(cc) "First Security Interest" means a Security Interest in a Unit prior to all other Security Interests
• except the Security Interest for real property taxes and assessments made by Douglas County Nebraska,
or other governmental authority having jurisdiction over the Condominium.
26
4883-6734-4131.8
(dd) "Special Assessments" means the special assessments for Capital Improvements and other items
which are described in Article VIII,Paragraph 6 of this Declaration.
(ee) "Transfer Date" means the date, which is the earlier of (a) sixty (60) days after the date the
Declarant has sold and delivered its deed for at least ninety percent (90%) of the Unit Ownerships or (b)
the voluntary surrender of any such power by the Declarant, which shall be accomplished by the
Declarant's delivery of written notice of such surrender to each Unit Owner; provided, however, that the
words "ninety percent(90%) of the Unit Ownerships" as used in this definition shall mean ninety percent
(90%) of the Unit Ownerships (by Allocated Interests of Common Elements) listed on Exhibit "C"
attached hereto.
(ff) "Unit" means the physical portion of the Condominium designated for separate ownership or
occupancy and the boundaries of which are described in or determined from this Declaration, and shown
on the Plat and Plans. A Unit includes the heating, water and electrical apparatus exclusively serving
such Unit, whether or not located within the boundaries of the Unit.
(gg) "Unit Owner" means the Declarant or other Person who owns a Unit but does not include a
Person having solely a Security Interest in a Unit. The Declarant is the Unit Owner of any Unit created in
this Declaration until that Unit is conveyed to another Person.
(hh) "Unit Ownership" means a part of the Property consisting of one Unit and its undivided interest
in the Common Elements appurtenant thereto. A Unit Ownership shall include(a) a fee simple interest in
the Unit, and(b) an undivided interest in the Common Elements of the Condominium.
(ii) "Condominium" means the Blackstone East Mixed Use Building condominium property regime
created by the Declaration.
Section II.2 Other Terms Defined in Act. Unless the context clearly indicates otherwise, other terms
defined in the Act shall have the meanings attributable to such terms in the Act.
Section II.3 Other Terms in Declaration. The other terms in this Declaration shall be defined in
specific provisions contained herein and shall have the meaning assigned by such definition.
ARTICLE III
CONDOMINIUM INFORMATION
Section III.1 Name. The name of the Condominium is Blackstone East Mixed Use Building.
Section III.2 Association. The name of the Association is Blackstone East Mixed Use Building
Owners Association, Inc., a Nebraska nonprofit corporation.
Section III.3 County. The name of every county in which any part of the Condominium is situated is
Douglas County,Nebraska.
Section III.4 Legal Description. The legal description of the Property included in the Condominium is
set forth in Exhibit"A"attached hereto.
Section III.5 Number of Units. As set forth in the Plat and Plans, the Condominium has two (2) Units.
The Declarant reserves the right to create additional Units within the Condominium.
Section III.6 Boundaries and Description of Condominium Unit.
27
4883-6734-4131.8
(a) Each Unit consists of the space enclosed and bounded by the horizontal and vertical planes set
forth in the Plat and Plans including, without limitation, the following as it relates to Units: pipes, ducts,
flues, chutes, conduits,wires,and other utility, heating, cooling or ventilation systems or equipment to the
extent and only to the extent serving only such Unit; and (anything herein to the contrary
notwithstanding) excluding all structural components of the Building, the term "structural components"
including structural columns or pipes, wires, conduits, ducts, flues, shafts, or public utility lines running
through the Unit and forming a part of any system serving more than the Unit, or any components of
communication, cable television systems, or internet service systems, if any, located in the Unit, whether
or not any such items shall be located in the floors, ceilings or perimeter or interior walls of the Unit.
(b) To the extent such data is available to the Declarant at the time this Declaration is filed, the Plat
and Plans set forth the measurements, elevations, locations and other data, as required by the Act, with
respect to (i) the Property and its exterior boundaries; (ii) the Building and each floor thereof; and (iii)
each Unit in the Building and such Unit's horizontal and vertical dimensions. However, the Declarant
hereby reserves unto itself-and the Association, the right, from time to time, as further data becomes
available, to amend the Plat and Plans so as to set forth the measurements, elevations, locations and other
data required by the Act, with respect to the Building and the Units now or hereafter constructed on the
Property. In furtherance of the foregoing, a power coupled with an interest is hereby granted to the
Declarant, acting by or through its duly authorized officers, its successors, or its designee, as attorney-in-
fact, to amend the Plat and Plans, as described above. The Declarant must provide written notice of such
an amendment to all Unit Owners and mortgagees by certified mail and other appropriate means prior to
such an amendment taking effect. Each deed, mortgage or other instrument with respect to a Unit, and
the acceptance thereof, shall be deemed a grant of such power to each of these attorneys-in-fact, and
acknowledgment of and consent to such power, and shall be deemed to reserve to each of these attorneys-
in-fact the power to amend the Plat and Plans, as described above.
(c) After the Plat and Plans and this Declaration have been recorded in the office of the Register of
Deeds of Douglas County,Nebraska,Units may be legally described as follows:
Condominium Unit , in accordance with the Master Deed
and Declaration of Condominium Ownership for Blackstone East
Mixed Use Building, dated and recorded
, 20 , Instrument No. in the Office
of the Douglas County Register of Deeds.
Every such description shall be good and sufficient for all purposes to sell, convey,
transfer, encumber, or otherwise affect not only the Unit, but also the undivided interest in the
Common Elements appurtenant to said Unit and all other appurtenant properties and property
rights, and incorporate all of the rights and burdens incident to ownership of a Condominium Unit
and all of the limitations thereon as described in this Declaration and the Plat and Plans. Each
such description shall be construed to include a non-exclusive easement for use of all of the
Limited Common Elements appurtenant to said Unit, and all the general Common Elements.
Section III.7 Limited Common Elements. The Limited Common Elements are set forth on the Plat
and Plans, and are designated thereon. Limited Common Elements also include those items in §76-839 of
the Act,unless specifically provided for to the contrary herein.
Section III.8 Development Rights and Special Declarant Rights. Declarant reserves the right, in
addition to other rights reserved pursuant to the Act, to perform any acts, including but not limited to any
Special Declarant Rights as defined in Article XV, necessary to complete the construction of the
improvements upon the Property including all Buildings, Units, Common Elements, Limited Common
28
4883-6734-4131.8
Elements and all structures and items related thereto. Declarant shall have the right to combine or
subdivide any Units upon the approval of a majority of the total Number of votes in Association Matters
placed by the Unit Owners as set forth in Exhibit"C". Declarant shall have the right to convert any Unit
to Common Elements or Limited Common Elements upon the approval of a majority of the total Number
of votes in Association Matters placed by the Unit Owners as set forth in Exhibit "C". The impact of
such a combination, subdivision, or conversion of Units on the respective allocation of interests belonging
to each Unit Owner is set forth in Section 4.3.
Section III.9 Recording Data. All easements and licenses to which the Condominium is presently
subject are set forth on the Plat and Plans.
Section III.10 Notices. Notice of matters affecting the Condominium may be given to Unit Owners by
the Association or by other Unit Owners in the following manner: Notice shall be hand- delivered or sent
by United States mail postage prepaid, to the mailing address of each Unit or to any other mailing address
designated in writing by the Unit Owner to the Association, in conjunction with delivery by other
appropriate means, including but not limited to electronic mail transmittal. Such notice shall be deemed
given when hand-delivered or when deposited in the United States mail,postage prepaid.
Section III.11 Use of Units. The Property is intended to be used for parking garage, commercial and
residential uses. Each Unit Owner, its heirs ucc s essors and assigns, covenants it will not use, cause or
permit its Unit to be used other than as provided in this Declaration, without having obtained(i) approval
by a majority of the total Number of votes in Association Matters placed by the Unit Owners as set forth
in Exhibit "C" and (ii) an Amendment to this Declaration in accordance with §76-854 of the Act.
Residential uses are defined as for residential living. Commercial uses are defined as those uses that
conduct the affairs of a business, profession, service, industry or government. Parking garage uses are
limited to providing parking for motor vehicles.
Section III.12 Easement Rights. In addition to any exclusive easements established in the Limited
Common Elements, each of the Units and Common Elements shall also be subject to the following
nonexclusive easements which shall be easements appurtenant to and running with the land, perpetually
in full force and effect:
(a) Appurtenant to each Unit shall exist a nonexclusive easement: (1) over all the Common Elements
for ingress, egress, utility services, support, maintenance and repairs to the Units; (2) over the Limited
Common Elements as necessary for structural support, utility services, maintenance and repairs; and (3)
over all parts of the Condominium and Property (including all other Units and Limited Common
Elements) for structural support.
(b) Appurtenant to the Garage Unit shall exist an exclusive easement over the Common Elements as
necessary to access the Garage Unit Exhibit"B". Notwithstanding the Allocated Interest of the Common
Elements allocated to each Unit as set forth in Exhibit "C", the percentage of total costs exclusively
associated with maintenance of parking upon the Garage Unit shall be allocated entirely to the Garage
Unit.
(c) Should any part of the Common Elements encroach upon any Unit or Limited Common Element,
a valid nonexclusive easement shall exist for such encroachment and its maintenance. In the event any
improvement constituting part of the Condominium shall be partially or totally destroyed and then rebuilt,
minor encroachments of any parts of the Common Elements due to construction shall be permitted, and
valid nonexclusive easements shall exist for such encroachments and their maintenance. A valid
easement also exists with respect to that portion of the Common Elements occupied by any part of a Unit
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not contained within the physical boundaries of such Unit, including but not limited to, space occupied by
heating and air conditioning equipment,utility lines and similar equipment which serves only one Unit.
(d) Declarant and its successors and assigns (including but not limited to the Association) shall have
an easement through the Common Elements as is reasonably necessary for the purpose of discharging
Declarant's obligations or exercising Special Declarant Rights (defined below).
(e) Declarant and its successors and assigns (including but not limited to the Association) shall have,
and are hereby granted the right and easement (to be exercised by any officers, agents, employees or
independent contractors) to enter any Unit and any Limited Common Elements from time to time during
reasonable hours, provided at least forty-eight (48) hours advance notice is given to the particular Unit
Owner (except that access may be had at any time in case of emergency), (1) for purposes of
reconstructing, making repairs or performing maintenance, or (2) for essential operations of the
Condominium or (3) to prevent damage to any Units or Common Elements. In addition, the Declarant
shall have all other easements and rights granted under the Act.
ARTICLE IV
MEMBERSHIP,VOTING RIGHTS AND ALLOCATIONS
Section IV.1 Membership. Every Unit Owner shall be a Member of the Association and, by its
purchase or acquisition and ownership of a Unit, shall be deemed to have agreed to be bound by all
provisions of this Declaration and all amendments, as well as all other Association documents, including
but not limited to, the Bylaws and Rules and Regulations. No Unit Owner may avoid the obligations and
burden coincident to Unit Ownership or membership in the Association. The foregoing is not intended to
include Persons who hold only a Security Interest. Membership shall be appurtenant to and may not be
separated from ownership of any Unit which is subject to Common Expense Assessments by the
Association. Ownership of such Unit shall be the sole qualification for membership. Where there is more
than one (1) record owner of a Unit ("co-owners"), all of the co-owners may attend any meeting of the
Association, but for the purposes of voting, only one (1) of the co-owners shall be entitled to exercise all
of the votes allocated to the Unit.
Section IV.2 Voting Rights and Assignment of Votes. The effective date for assigning votes to Units
created pursuant to this Declaration shall be the date on which this Declaration is recorded in the records
of the Register of Deeds of Douglas County,Nebraska.
Section IV.3 [Allocated Interests. The Allocated Interests of Common Elements, Allocated Interests of
Common Expenses, and Percentage of votes in Association Matters shall be allocated among the Unit
Owners and individual Units as follows:
(a) Except as set forth in Section 3.12(b) with regard to parking spaces upon the Garage Unit, each
Unit Owner's appurtenant percentage of undivided interests in the Common Elements and Common
Expense Liability shall be allocated as set forth on Exhibit "C".
(b) The total percentage of votes of all Unit Owners shall be one hundred percent (100%). The
percentage of total votes delegated to the holders of Units 1 and 2 shall correspond with their respective
Allocated Interests in the Common Elements. Each of the other Unit Owners shall be entitled to a
percentage of total votes equal to that Unit Owner's Allocated Interests of Common Elements multiplied
by the percentage of total votes not belonging to the holders of Unit Numbers 1 and 2. These values shall
be referred to as the Percentage of votes in Association Matters belonging to the Unit Owner. These
values shall be set forth in Exhibit "C."
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(c) The Number of votes in Association Matters belonging to each Unit Owner shall equal the
Percentage of votes in Association Matters belonging to each respective Unit Owner multiplied by the
total number of available votes as established from time to time by the Association as set forth in Exhibit
"C". In all actions requiring a vote of the members of the Association, each Unit Owner shall be
entitled to the number of votes as established in this Section and correspondingly set forth in Exhibit "C."
The undivided interest in the Common Elements, Common Expenses and votes in the Association
for each Unit are set forth in the Unit Ownership and Percentage Interests table, attached hereto as
Exhibit "C." In the event of addition or withdrawal of Units from the Condominium, the percentage
interest of each Unit Owner in the Common Elements, Common Expenses and votes in the Association
shall be adjusted accordingly in accordance with this section.]
ARTICLE V
ASSOCIATION AND EXECUTIVE BOARD
Section V.1 Authority and Power. The business and affairs of the Condominium shall be managed by
the Association. The administration of the Condominium shall be governed by the Bylaws and the Act.
The Association shall have all of the powers, authority and duties permitted pursuant to the Bylaws and
the Act which are necessary and proper to manage the business and affairs of the Condominium.
Section V.2 Membership. The Executive Board shall consist of Members or representatives of a
Member elected in accordance with the Association's Bylaws.
Section V.3 Executive Board Powers and Duties. The Executive Board may act in all instances on
behalf of the Association, except as provided in this Declaration or the Bylaws. The Executive Board
shall have, subject to the limitations contained in this Declaration and the Act, the powers and duties
necessary for the administration of the affairs of the Association and of the Condominium, including but
not limited to the following:
(a) Adopt and amend Bylaws;
(b) Adopt and amend Rules and Regulations regarding the use and enjoyment of the Common
Elements, and the activities of occupants thereon;
(c) Adopt and amend budgets for revenues, expenditures and reserves;
(d) Collect Assessments from Unit Owners;
(e) Collect amounts necessary to cover any shortage in revenue due to under-budgeting or due to
failure to ratify a budget;
(f) Hire and discharge Managers, independent contractors and other employees and agents;
(g) Institute, defend or intervene in litigation or administrative proceedings or seek injunctive relief
for violation of the Bylaws in the Association's name, on behalf of the Association or one (1) or more
Unit Owners on any matters affecting the Condominium;
(h) Make contracts and incur liabilities;
(i) Regulate the use,maintenance,repair,replacement and modification of the Common Elements;
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(j) Cause additional improvements to be made as a part of the Common Elements;
(k) Acquire, hold, encumber and convey in the Association's name, any right, title or interest to real
or personal property, except for Common Elements which may be conveyed or subjected to a Security
Interest only pursuant to §76-870 of the Act;
(1) Grant easements for any period of time, including permanent easements, leases, licenses and
concessions through or over the Common Elements; provided, however, no such easements shall
unreasonably interfere with the use of operation of any Unit, access points or utilities within the
Condominium;
(m) Impose and receive payments, fees or charges for the use, rental or operation of the Common
Elements, other than the Limited Common Elements described in §76-839(2) and (4) of the Act, and for
services provided to Unit Owners;
(n) Impose reasonable charges for late payment of Assessments, recover reasonable attorneys' fees
and other legal costs for collection of Assessments and other actions to enforce the power of the
Association,regardless of whether legal proceedings were initiated, and after notice and an opportunity to
be heard, levy reasonable fines for violation of this Declaration, the Bylaws or other Association
documents;
(o) Impose reasonable charges for the preparation and recordation of supplements or amendments to
this Declaration, for resale statements required by §76-884 and for statements of unpaid Assessments;
(p) Provide for the indemnification of the Association's officers and the Executive Board and
maintain Directors' and Officers' liability insurance;
(a) Make Assessments for legal, accounting and other professional employment regarding taxes,
legal and general advice;
(r) Exercise any other powers conferred by this Declaration, the Bylaws or other Association
documents;
(s) Exercise all other powers that may be exercised in this state by legal entities of the same type as
the Association;
(t) Exercise any other powers necessary and proper for the governance and operation of the
Association;
(u) By resolution establish permanent and standing committees of Executive Board members to
perform any of the above functions under specifically delegated administrative standards as designated in
the resolution establishing the committee. All committees must maintain and publish notice of their
actions to Unit Owners and the Executive Board. Actions taken by a committee may be appealed to the
Executive Board by any Unit Owner within forty-five(45) days of publication of a notice. If an appeal is
made, the committee's action must be ratified, modified or rejected by the Executive Board at its next
regular meeting, or at a special meeting called for that purpose;
(v) Refund or credit excess reserves, if it determines that reserves are excessive. In refunding or
crediting any excess reserves, the Executive Board shall allocate such refunds or credits in the same
proportion as the Common Expenses were allocated. However, the Executive Board may allocate a
reasonably disproportionate amount to any Unit Owner who has owned a Unit for less than twelve (12)
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months and has, therefore, contributed a disproportionate share to the reserve fund. A refund or credit of
excess reserves may also be approved in accordance with this provision by a majority of the total Number
of votes in Association Matters placed by the Unit Owners as set forth in Exhibit"C"; and
(w) Exercise all other powers necessary and proper to ensure that the Common Elements conform to
all applicable federal, state and local laws, statutes, ordinances, and regulations. Specifically, and without
limitation, the Association may ensure that the Common Elements and the use thereof comply with the
federal Americans with Disabilities Act, and all hazardous materials laws.
Section V.4 Professional Management and Contract Termination Provisions. The Association may
utilize professional management in performing its duties hereunder. Any contracts, licenses or leases
entered into by the Association while there is Declarant control of the Association may be teiuiinated
pursuant to §76-863 of the Act.
Section V.5 Executive Board Limitations. The Executive Board may not act on behalf of the
Association to amend this Declaration, to terminate the Condominium, or to elect members of the
Executive Board or determine their qualifications, powers and duties or the terms of office of Executive
Board members, but the Executive Board may fill vacancies in its membership for the unexpired portion
of any term.
Section V.6 Executive Board Standard of Care. The Executive Board officers and members shall
exercise ordinary and reasonable care in the performance of their duties.
ARTICLE VI
COMMON ELEMENTS
Section VI.1 Dedication of Common Elements. Declarant hereby dedicates the Common Elements to
the common use and enjoyment of the Members, as hereinafter provided.
Section VI.2 Description of Common Elements. The Common Elements within the Condominium
shall consist of the following property, easements and such additional Common Elements as shall be
conveyed to the Association in the future.
(a) Easements. The Common Elements include the right to maintain and use, and to the extent
necessary for the Association to perform its duties with respect to the Common Elements, all utility
easements, access easements, pedestrian access easements and landscaping easements as shown on the
Plat and Plans. Nothing in this Article shall be construed as creating an ownership interest by the
Association in said easements.
(b) Landscaping. All ground level lawns, shrubs, bushes, trees, flowers other plants and landscaping
materials, and any additions or replacements thereof.
(c) Sidewalks and Driveways. All sidewalks leading to exterior entrances of the building or
otherwise utilized by the general public All driveways, curbs and gutters not maintained by the City of
Omaha and lighting components related to the sidewalks and driveways.
(d) Water Facilities. All underground water lines, up to the point at which such water lines enter a
Unit, or the point at which a Unit's shutoff valve is located, whichever is further from the Unit.
Underground sprinkler systems, including lawn and landscape sprinkler systems now in existence or
installed in the future.
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(e) Miscellaneous Improvements. All other improvements installed by the Association within any
utility easements, access easements,pedestrian access easements, and/or landscaping easements.
(f) Walls, Floors or Ceilings. All portions of the walls, floors or ceilings not within Unit boundaries
shall be part of the Common Elements.
Section VI.3 Maintenance, Repairs and Replacements of Common Elements. The Association shall
maintain, repair, and replace the Common Elements. Maintenance, repairs and replacements of the
Common Elements shall be furnished by the Association acting by and through the Executive Board as
part of the Common Expenses, subject to the Bylaws or rules and regulations of the Association.
Section VI.4 Common Utilities. The Association shall charge each Unit Owner an allocated share of
the utilities for maintenance of the Common Elements, including but not limited to, water, sewer and
electricity for exterior building lighting, which allocated share shall be part of the regular Assessment
described in Article VIII and shall be based upon the Unit Owner's Allocated Interests of Common
Expenses as set forth in Article IV and Exhibit"C"attached hereto.
Section VI.5 Unit Owner's Easements of Enjoyment. Each Unit Owner shall have a right and
easement of enjoyment in and to the Common Elements and such easement shall be appurtenant to and
shall pass with title to every Unit,subject to the following provisions:
(a) The right of the Association to promulgate and publish reasonable Rules and Regulations as
provided in this Declaration.
(b) The right of the Association to suspend voting rights and the right to use the Common Elements
by a Unit Owner for any period during which any Assessment against his or her Unit remains unpaid
following a grace period of thirty (30) days; and for a period not to exceed sixty (60) days for any
infraction of its published Rules and Regulations.
(c) The right of the Association to close or reasonably limit use of the Common Elements while
maintaining,repairing and making replacements in or to the Common Elements.
Section VI.6 Delegation of Use. Unit Owners may delegate in accordance with the Bylaws their right
of enjoyment to the Common Elements and facilities, but not their voting rights, to their tenants or
contract Purchasers who occupy the relevant Unit.
Section VI.7 No Partition of Common Elements. The Common Elements are not subject to partition,
and any purported conveyance, encumbrance,judicial sale, or other voluntary or involuntary transfer of
an undivided interest in the Common Elements made without the Unit to which that interest is allocated is
void.
Section VI.8 No Severance of Ownership. No Unit Owner shall execute any deed, mortgage, lease or
other instrument affecting title to such Unit Owner's Unit Ownership without including therein both such
Unit Owner's interest in the Unit and such Unit Owner's corresponding percentage of ownership in the
Common Elements, it being the intention hereof to prevent any severance of such combined ownership.
Any such deed, mortgage, lease or other instrument purporting to transfer a Unit Owner's interest in the
Unit shall include a transfer of the corresponding percentage of ownership in the Common Elements, even
if the latter interest is not mentioned. However, an attempted transfer of just a Unit Owner's percentage
ownership in the Common Elements without the corresponding Unit Owner's interest in the Unit shall be
void and of no effect.
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ARTICLE VII
LIMITED COMMON ELEMENTS
Section VII.I [Limited Common Elements. The Limited Common Elements are such parts of the
Common Elements serving exclusively a single Unit or adjoining Units as an inseparable appurtenance
thereto, as designated as such in this Declaration, included in the Plat and Plans, or which by the nature
or location thereof or by the terms of this Declaration, are clearly intended to be reserved for or for the
use of one or more Units to the exclusion of other Units. The Limited Common Elements appertaining to,
or designated or reserved for or for the use of or serving any Unit (alone or in conjunction with other
Units) are hereinafter from time to time referred to as the Limited Common Elements of such Unit. The
Limited Common Elements shall include, but shall not be limited to, the following: (a) the interior surface
of the perimeter walls, ceilings and floors which define the boundary planes of a Unit; (b) perimeter
doors and windows, including skylights, if any, which serve exclusively a single Unit (including, without
limitation, any Unit plate glass windows); (c) any system or component part thereof(including, without
limitation, flues, furnaces, fittings, housings, ducts, flues, shafts, electrical wiring and conduits) which
serves a Unit exclusively, to the extent that such system or component part is located outside the
boundaries of a Unit; (d) the sign band located on the Building, as depicted on Exhibit "B" attached
hereto (the "Sign Band"); and (e) the monument signs shown on Exhibit "B" attached hereto (each a
"Monument Sign"and together, the `Monument Signs').] [Need to address expenses/assessments for
LCE.J
Section VII.2 Mechanics' Liens and Materialmen's Liens. No labor performed, or materials furnished
and incorporated in a Unit, notwithstanding the consent or request of the Unit Owner, his agent,
contractor or subcontractor, shall be the basis for filing a lien against the Common Elements. Each Unit
Owner shall indemnify, defend and hold harmless each of the other Unit Owners and the Association
from and against all losses, damages, costs and expenses, including, without limitation, reasonable
attorneys' fees, arising from any lien against the Unit of any other Unit Owner or against the Common
Elements for construction performed or for labor, materials, services or other products incorporated in the
indemnifying Owner's Unit or such Owner's request.
Section VII.3 [Signage. Signage within the Sign Band as shown on Exhibit "B". Each Unit Owner
shall be entitled to place signage within the Sign Band as shown on Exhibit "B",provided that, except as
set forth on Exhibit "B", such signage receives the approval of the Declarant.
Section VII.4 Monument Signs. The Monument Signs shall be placed in the locations set forth on
Exhibit "B" attached hereto. Each Unit Owner shall be entitled to one Monument Sign, provided that,
except as set forth on Exhibit "B", any such signage or modifications thereto, shall receive the prior
approval of the Declarant.]
ARTICLE VIII
ASSESSMENTS
Section VIII.1 Covenant for Assessments. Each Unit Owner shall_pay to the Association its Allocated
Interests of all general and special condominium assessments levied by the Executive Board for Common
Expenses pursuant to this Declaration, which Allocated Interests shall be the Unit Owner's Allocated
Interests of Common Expenses, as set forth in Article IV and Exhibit "C" attached hereto. Such
assessments, together with such interest and late charges thereon and costs of collection thereof(including
reasonable attorneys' fees), as hereinafter provided, shall be a charge on the land and shall be a
continuing lien upon the Unit against which each such assessment is made, subject to Article XIV hereof.
Each such assessment, together with such interest, late charges and costs of collection, shall also be the
personal obligation of the person who was the Unit Owner of such Unit at the time when the assessment
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fell due. Except as otherwise provided in this Declaration, such personal obligation shall pass to such
Unit Owner's successors in title if not fully discharged by the transferor Unit Owner prior to any transfer
of such Unit. In addition to the annual assessments authorized above, the Association may levy special
assessments for the purpose of defraying, in whole or in part, the cost of any construction or
reconstruction, unexpected repair, maintenance or replacement item not contemplated in the annual
budget. The foregoing special assessments may be levied notwithstanding the fact that the Association
may have then accumulated a reserve.
Section VIII.2 Purpose and Use of Assessments. The assessments levied pursuant to this Declaration
shall be used for the purpose of promoting the health, safety and welfare of the residents or occupants of
the Property and in particular for the improvement and maintenance of the Property, services and facilities
devoted to this purpose and related to the use and enjoyment of the Property, and of the Units situated
upon the Property, and for such other purposes as may be described in this Declaration. Such uses shall
include, but are not limited to, the cost to the Association of any and all insurance premiums with respect
to, and the expense of operation, repair, replacement and maintenance of, the Building, Common
Elements and other facilities and activities, including, but not limited to, caring for the grounds,
maintenance of utilities which serve the Common Elements, landscaping,paving, equipment, sanitary and
storm sewer and water service lines which service the Condominium, structures and appurtenances (other
than facilities and activities maintained by any governmental authority or utility company), the expenses
incurred by the Association or Declarant in connection with the ingress and egress, driveways, sidewalks'
and other accessways benefiting the Property but which may be located on adjacent property, expenses
incurred by the Executive Board in performing its activities authorized hereunder, the expenses incurred
by the Committees in performing their respective activities authorized hereunder and other charges
required by this Declaration or that the Executive Board shall determine to be necessary or desirable to
meet the primary purpose of the Association. In addition,water, waste removal and/or any utilities which
are not separately metered or otherwise directly charged to individual Unit Owners shall be paid for by
the Association from such assessments. The Executive Board shall, pursuant to Section 76-844 of the
Act, assess any Common Expenses benefiting fewer than all of the Units exclusively against the Units
benefited thereby. Notwithstanding the foregoing, the Executive Board shall not include any item for
which the Association is reimbursed by insurance or otherwise compensated in the assessments.
Section VIII.3 Annual Common Expense Assessments. The total annual Common Expense
Assessments against all Units Owners shall be based upon the Association's advance budget of the cash
requirements needed by it to provide for the administration and performance of its duties during such
Common Expenses Assessments year.
Section VIII.4 Budget. The Executive Board shall fix the amount of the annual Common Expense
Assessments against each Unit at least annually. Adjustments to the budget may be made by the
Executive Board more frequently. Written notice of the Common Expense Assessments shall be sent to
every Unit Owner subject thereto by certified mail and other appropriate means. After the first budget
year of the Association,within thirty(30)days after adoption of a proposed budget for the Condominium,
the Executive Board shall mail by ordinary first-class mail, or otherwise deliver a summary of the budget
to all Unit Owners and shall set a date for a meeting of the Unit Owners to consider ratification of the
budget. The meeting shall be not less than fourteen (14) nor more than thirty (30) days after mailing or
other delivery of the summary. Unless at that meeting a majority of all Unit Owners accept the budget,
the budget shall not be ratified. If the proposed budget is rejected, the periodic budget last ratified by the
Unit Owners shall continue until the Unit Owners ratify a new budget proposed by the Executive Board.
The failure or delay of the Executive Board to give notice to each Unit Owner of the annual budget shall
not constitute a waiver or release in any manner of such Unit Owner's obligation to pay such Unit
Owner's respective monthly assessment, as herein provided, whenever the same shall be determined, and
in the absence of the annual or adjusted budget, the Unit Owner shall continue to pay monthly assessment
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at the then existing monthly rate established for the previous period until the monthly assessment which is
due more than ten(10)days after notice is given of such new annual budget.
Section VIII.5 [Special Assessments. In addition to the Common Expense Assessments authorized
above, subject to the exclusions set forth in Section 8.2, the Association may at any time,from time to
time, determine, levy and assess Special Assessments for the purpose of defraying in whole or in part,
payments for any construction reconstruction, repair, demolition, replacement or maintenance of the
Common Elements or for Capital Improvements. Any such Special Assessments made by the Executive
Board must be approved by not less than Seventy-Five Percent (75%) of the Members who are voting in
person or by proxy at a meeting duly called for that purpose. The amounts determined, levied and
assessed pursuant hereto shall be assessed proportionately against each Unit based upon the Unit
Holder's Allocated Interests of Common Expenses, in accordance with Section 4.3 and as set forth in
Exhibit "C." Notice in writing setting forth the amount of such Special Assessments per Unit and the due
date for payment thereof shall be given to the Unit Owners not less than thirty (30) days prior to such due
date by certified mail and other appropriate means.]
Section VIII.6 Notice and Quorum. Written notice of any meeting called for the purpose of taking any
action authorized under this Article shall be sent to all Members not less than ten (10) nor more than
thirty (30) days in advance of the meeting by certified mail and other appropriate means. The required
quorum at the meeting shall be One-Hundred Percent(100%)of all votes of the membership.
Section VIII.7 Rate of Assessment. Both annual Common Expense Assessments and Special
Assessments shall be fixed at a unifoiiu rate for all Units, in accordance with Sections 8.3 and 8.5 above.
The Assessments for each Unit Owner shall be proportionate to the Allocated Interests of Common
Expenses for each Unit Owner, as set forth in Exhibit"C."
Section VIII.8 Payment of Assessments. Assessments shall be collected monthly, or at such other
intervals as determined by the Executive Board,but in no event less than annually. The due dates shall be
established by the Executive Board. Payment for Assessments shall be delinquent if not received on or
before the tenth(10t) day after the due date. The Executive Board may establish and charge a late fee for
failure to pay Assessments when due. The Executive Board shall fix the amount of the annual assessment
against each Unit at least thirty(30) days in advance of each annual assessment period. Written notice of
the annual assessment shall be sent to every Owner subject thereto by certified mail and other appropriate
means.
Section VIII.9 Date of Commencement: Annual Common Expense Assessments. The Assessments
provided for herein shall commence as to all Units on the first day of the month following the conveyance
of a Unit by the Declarant to a Purchaser. The first annual assessment shall be adjusted according to the
number of months remaining in the calendar year.
ARTICLE IX
ASSOCIATION'S LIEN
Section IX.1 Association Lien and Effect of Non-Payment of Assessments. The Assessments
including all charges, fees, fines, impositions, interest, costs, late charges, expenses and reasonable
attorneys' fees which may arise under the provisions of this Declaration, also including any installment
thereof(collectively "Assessments"), shall be burdens running with, and perpetual liens in favor of the
Association upon the specific Unit to which such Assessments apply. Recording of this Declaration
constitutes record notice and perfection of the Association's lien. Further recording of a claim of lien for
Assessments is not required. Any Assessments provided for in this Declaration which are not fully paid
within thirty (30) days after the due date thereof shall bear interest at the rate of the lesser of: (i) fourteen
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(14%)percent per annum, or(ii)the maximum set forth in the Act, from the due date or a date established
by the Association, and the Association may assess a late charge thereon which late charge shall also be
subject to interest charges. In the event of default in which any Unit Owner does not make payment of
any Assessments levied against the Unit Owner's Unit within thirty (30) days of the due date, the
Executive Board may declare all unpaid Assessments for the pertinent fiscal year immediately due and
payable.
The Association may bring an action at law or in equity or both against any Unit Owner
personally obligated to pay such overdue Assessments, may foreclose its lien against such Unit Owner's
Unit, and may, in its sole discretion, accept a deed in lieu of foreclosure. An action at law or in equity by
the Association against a Unit Owner to recover money judgment for unpaid Assessments may be
commenced and pursued by the Association without foreclosing or in any way waiving the Association's
lien therefor. If any such Assessments are not fully paid when due and the Association commences such
action (or counterclaims or cross claims for such relief in any action) against any Unit Owner personally
obligated to pay the same, or proceeds to foreclose its lien against the particular Unit, then all unpaid
Assessments,and any and all late charges and accrued interest under this Article, the Association's costs,
expenses and reasonable attorneys' fees incurred in preparing and recording any lien notice, and the
Association's costs of suit, expenses and reasonable attorneys' fees incurred for any such action and/or
foreclosure proceedings shall be taxed by the court as a part of the cost of any such action or foreclosure
proceeding and shall be recoverable by the Association from any Unit Owner personally obligated to pay
the same and from the proceeds of the foreclosure sale of such Unit Owner's Unit. Foreclosure,
attempted foreclosure, or failure to foreclose by the Association of its lien shall not be deemed to estop or
otherwise preclude the Association from thereafter again foreclosing or attempting to foreclose its lien for
any subsequent Assessments not fully paid when due.
The Association, or any other Unit Owner or Person, may bid on or purchase any Unit at
foreclosure or other legal sale, and acquire and hold, lease, mortgage, vote the Association votes
appurtenant to ownership thereof, convey or otherwise deal with the same. A lien for unpaid Assessments
is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full
amount of Assessments becomes due, except that if a Unit Owner subject to a lien under this Article files
a petition for relief under the United States Bankruptcy Code, the time period for instituting proceedings
to enforce the Association's lien shall be tolled until ninety (90) days after the automatic stay of
proceedings under §362 of the Bankruptcy Code is lifted. In any action by the Association to collect
Assessments or to foreclose a lien for unpaid Assessments, the court may appoint a receiver for the Unit
to collect all sums alleged to be due from the Unit Owner or a tenant of the Unit Owner prior to or during
the pendency of the action. The court may order the receiver to pay any sums held by the receiver to the
Association during the pendency of the action to the extent of the Association's Assessments, based on a
periodic budget adopted by the Association.
Section IX.2 Priority of Liens. A lien under this Article is prior to all other liens and encumbrances on
a Unit(if applicable to that Unit)except:
(a) liens and encumbrances recorded before the recordation of this Declaration;
(b) a First Security Interest on the Unit recorded before the date on which the Assessments sought to
be enforced became delinquent; and
(c) liens for real estate taxes and other governmental assessments including without limitation
assessments made under the Property Assessed Clean Energy (PACE) program, Omaha Ordinance No.
41152, as amended, against the Unit.
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A lien under this Article is also prior to all Security Interests to the extent that the Assessments
are based on the periodic budget adopted by the Association and which would have become due in the
absence of acceleration during the six(6)months immediately preceding institution by the Association or
any party holding a lien senior to any part of the Association's lien created herein, of an action or a
nonjudicial foreclosure either to enforce or extinguish the lien. If a holder of a First Security Interest in a
Unit forecloses that Security Interest, the Purchaser at the foreclosure sale is not liable for any unpaid
Assessments against the Unit which became due before the sale, other than the Assessments which are
prior to the Security Interests under this Article of the Declaration. Any unpaid Assessments not satisfied
from the proceeds of sale become Common Expenses collectible from all Unit Owners, including the
Purchaser. Sale or transfer of any Unit shall not affect the lien for said Assessments except that a sale or
transfer of any Unit pursuant to foreclosure of any First Security Interest, or any proceeding in lieu
thereof, including deed in lieu of foreclosure, or cancellation or forfeiture of any such executory land
sales contracts shall only extinguish the lien of Assessments which became due more than six (6)months
immediately preceding institution of an action to enforce either the Association's lien or a Security
Interest, and statutory liens recognized under Nebraska law. No such sale, transfer, foreclosure or other
proceeding in lieu thereof, including deed in lieu of foreclosure, shall relieve any Unit from liability for
any Assessments charges thereafter becoming due, nor from the lien thereof. This Article does not affect
the priority of mechanics' or materialmen's liens.
Section IX.3 Certificate of Status of Assessments or other Defaults. The Association, upon written
request to the Association's registered agent,personally delivered or delivered by certified mail, first class
postage prepaid, return receipt requested, and upon payment of a reasonable fee but in no event more than
ten dollars ($10.00) shall furnish to a Unit Owner or such Unit Owner's designee or to a holder of a
Security Interest or its designee, a written statement, in recordable form, setting out the amount of the
unpaid Assessments or other defaults against the Unit. The statement must be furnished within fourteen
(14) calendar days after receipt of the request and is binding on the Association,the Executive Board and
each Unit Owner. A properly executed certificate of the Association as to the status of Assessments on a
Unit is binding upon the Association as of the date of its issuance. Omission or failure to fix Assessments
or deliver or mail a statement for any period shall not be deemed a waiver, modification or release of a
Unit Owner from his or her obligation to pay the same.
Section IX.4 Common Expenses Attributable to Fewer than All Units.
(a) Assessments to pay a judgment against the Association may be made only against the Units in the
Condominium and respective Unit Holders at the time the judgment was entered, in proportion to their
Allocated Interests of Common Expenses.
(b) If a Common Expense is caused by the misconduct of a Unit Owner the Association may assess
that expense exclusively against that Unit Owner's Unit as more fully provided in Article IX,paragraph 6
herein.
(c) Fees, charges, taxes, impositions, late charges, fines, collection costs and interest charged against
a Unit Owner pursuant to the Bylaws or the Act are enforceable as Common Expense Assessments.
Section IX.5 Unit Owner's Negligence and Individual Assessments. Notwithstanding anything to the
contrary contained in this Declaration, if the need for maintenance or repair of the Common Elements or
any improvements located thereon is caused by the willful or negligent act, omission or misconduct of
any Unit Owner, or by a tenant, guest, or invitee of such Unit Owner, the costs of such repair and
maintenance shall be the personal obligation of such Unit Owner, and any costs (including court costs),
expenses and fees, including reasonable attorneys' fees, incurred by the Association for such
maintenance, repair or reconstruction shall constitute an "Individual Assessment' and shall be added to
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and become part of the Assessments to which such Unit Owner's Unit is subject and shall be a lien
against such Unit Owner's Unit as provided in this Declaration. In addition, the Executive Board may
levy an Individual Assessment against any Unit Owner or his or her Unit if the Unit Owner, its tenants,
guests or invitees willfully and intentionally fail to comply with the terms and provisions of the Bylaws or
other Association documents, resulting in the expenditure of funds by the Association to cause
compliance by such Person with the terms and provisions of the Bylaws or other Association documents.
The Executive Board shall be entitled to recover all costs (including court costs), expenses and fees,
including reasonable attorneys' fees related thereto, whether or not legal proceedings are instituted. An
Individual Assessment shall be levied and the amount of the Individual Assessment shall be established
only after notice by certified mail and other appropriate means is given to the Unit Owner and the right to
be heard before the Executive Board in connection therewith (the timing of such hearing to be as
determined by the Executive Board and set forth in such notice,but in all events not less than ten (10)nor
more than thirty (30) days after the date of such notice), provided that any such determination for an
Individual Assessment pursuant to the terms of this Article may be appealed by said Unit Owner to a
court of law.
ARTICLE X
INSURANCE
Section X.1 Insurance Requirements Generally. To the extent reasonably available, and to the extent
the Association deems necessary,the Association shall obtain and maintain the following insurance:
(a) directors' and officers' liability insurance, if available, covering all of the directors and officers of
the Association;
(b) casualty insurance in amounts and coverages sufficient to insure the Common Elements and
[Limited Common Elements] at replacement value; and
(c) such other insurance which the Executive Board considers appropriate to protect the Association.
If such insurance is not reasonably available, and the Executive Board determines that any
insurance described in this Article will not be provided by the Association, the Executive Board shall
cause notice of that fact to be hand-delivered or sent, postage prepaid, by United States mail to all Unit
Owners at their respective last known addresses and delivered by other appropriate means. Such
insurance shall cover liabilities of the Association, its Directors, officers, employees, agents and Members
arising in connection with the ownership, operation, maintenance, occupancy or use of the Common
Elements and any other area the Association is required to maintain,repair or replace.
Section X.2 Unit Owner's Insurance. Each Unit Owner shall obtain and pay for (a) property
insurance for the personal property in such Unit Owner's Unit, and any additions, alterations,
improvements and betterments to such Unit Owner's Unit and(b) such Unit Owner's personal liability to
the extent not covered by the policies of liability insurance obtained by the Association for the benefit of
all of the Unit Owners.
Section X.3 The insurance policies purchased by the Association, to the extent reasonably available,
shall contain the following provisions:
(a) Each Unit Owner shall be an insured under the policy with respect to liability arising out of his
ownership of an undivided interest in the Common Elements and Limited Common Elements and/or their
membership in the Association.
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(b) There shall be no subrogation with respect to the Association, •its agents, servants, and
employees, or with respect to the Unit Owners and their respective agents, servants and employees. Each
of the foregoing parties hereby waives, releases and discharges any right of subrogation against the other
for any loss arising out of damage to or destruction of all or any portion of the Property or contents
thereof when such loss is caused by any perils included within either party's insurance provisions.
(c) No act or omission by any Unit Owner, unless acting within the scope of their authority on behalf
of the Association, shall void the policy or be a condition to recovery on the policy.
(d) The coverage afforded by such policy shall not be brought into contribution or proration with any
insurance which may be purchased separately by Unit Owners or their mortgagees or beneficiaries under
deeds of trust.
(e) A "severability of interest" endorsement which shall preclude the insurer from denying the claim
of a Unit Owner because of the negligent acts of the Association or other Unit Owners.
(f) Statement of the name of the insured as Blackstone East Mixed Use Building Owners
Association, Inc., for the use and benefit of the individual Unit Owners (designated by name if required
by the insurer).
(g) For policies of hazard insurance, a standard mortgagee clause providing that the insurance carrier
shall notify the Qualified Lender named in the policy at least ten (10) days in advance of the effective
date of any reduction or cancellation of the policy.
(h) A "Guaranteed Replacement Cost Endorsement" (under which the insurer agrees to replace the
insurable property regardless of the cost), and if the policy includes a coinsurance clause, an "Agreed
Amount Endorsement" (which waives the requirement for coinsurance), or a "Replacement Cost
Endorsement" (under which the insurer agrees to pay up to 100% of the property's insurable replacement
cost, but no more) and, if the policy includes a coinsurance clause, an "Agreed Amount Endorsement"
(which waives the requirement for coinsurance).
(i) An"Inflation Guard Endorsement".
It shall be the duty of the Board at least annually to conduct an insurance review to determine if
the policy in force is adequate to meet the need of the Association and to satisfy the requirement of this
Declaration and the Act. Such responsibility may be performed and shall be deemed reasonably
performed,by the Board's Managing Agent requesting the Association's insurance agent to verify that the
insurance policies in existence meet the needs of the Association as set forth herein and satisfies the
requirements of this Declaration and the Act. In all events, each Unit Owner shall have the right to obtain
additional coverage for such improvements, or betterments or personal property within the Unit at its own
expense. Each policy may contain reasonable deductibles and the amount thereof shall be added to the
face amount of the policies in determining whether the insurance equals at least full replacement cost.
Section X.4 Certificate of Insurance. An insurer that has issued an insurance policy under this Article
shall issue certificates or a memorandum of insurance to the Association and, upon request, to any Unit
Owner, mortgagee or beneficiary under a deed of trust. Any insurance obtained pursuant to this Article
may not be canceled until thirty (30) days after notice of the proposed cancellation has been mailed to the
Association, each Unit Owner and each Qualified Lender who is listed as a scheduled holder of an
Eligible Mortgage in the insurance policy.
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Section X.5 Payment of Premiums. Premiums for all insurance obtained by the Association pursuant
to this Article shall be Common Expenses and shall be paid for by the Association.
Section X.6 Insurance Obtained by Owners. The issuance of insurance policies to the Association
pursuant to this Article shall not prevent a Unit Owner or its tenants from obtaining insurance for their
own benefit and at their own expense covering their Unit, other than the original improvements and
betterments installed or constructed within the Unit by the Declarant, personal property and providing
personal liability coverage. Unit Owners shall, for their own benefit and interest, and at their own
expense, insure all additions, alterations, improvements and betterments installed or constructed within
any Unit, whether constructed by Declarant or Unit Owner, and shall also separately insure their personal
property and liability coverage.
ARTICLE XI
INDEMNIFICATION
Section XI.1 Board Member Indemnification. Subject to the waiver of subrogation provision set forth
in Section 10.3(b), each officer and Director of the Executive Board of the Association shall, to the full
extent permitted by law, be and are hereby indemnified by the Unit Owners and the Association against
all expenses and liabilities, including attorneys' fees reasonably incurred by or imposed upon them in any
proceeding to which they may be a party, or in which they may become involved,by reason of their being
or having been an officer or Director of the Executive Board of the Association, or any settlement thereof,
whether or not they are an officer or Director of the Executive Board of the Association at the time such
expenses are incurred, except in such cases where such officer or Director of the Executive Board is
adjudged guilty of willful misfeasance or malfeasance in the performance of his or her duties; provided
that in the event of a settlement, the indemnification shall apply only when the Executive Board approves
such settlement and reimbursement as being in the best Interests of the Association.
Section XI.2 Unit Owner Indemnification. Subject to the waiver of subrogation provision set forth in
Section 10.3(b), each Unit Owner ("Indemnifying Party") shall, to the full extent permitted by law,
indemnify, defend and hold harmless all other Unit Owners and their respective officers, directors,
owners, employees and agents (each an "Indemnitee"), from and against an Indemnitee's damages,
claims, expenses and liabilities, including reasonable attorneys' fees, relating to or arising out of any use,
misuse,possession or control of a Unit(s)by the Indemnifying Party which is negligent or materially and
adversely inconsistent with this Master Deed or any other instrument to which the Unit Owners are
bound.
ARTICLE XII
COVENANTS AND OBLIGATIONS
Section XII.l Maintenance of Units and Improvements. Each Unit Owner shall keep or cause to be
kept its Unit in good repair.
Section XII.2 Damage or Destruction of Improvements. If any Unit or structure constructed on a Unit
is damaged, either in whole or in part, by fire or other casualty, said structure shall be rebuilt in a timely
manner, not to exceed twelve (12) months from the date of damage, subject to delays caused by events
beyond the control of the Unit Owner.
Section XII.3 Drainage. No Unit Owner shall modify or change the topography or contour of any
drainage areas or easements, including swales, existing upon any portion of the Condominium.
ARTICLE XIII
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DAMAGE,DESTRUCTION, CONDEMNATION AND RESTORATION OF BUILDINGS
Section XIII.1 Sufficient Insurance. In the event the improvements forming a part of the Property, or
any portion thereof, including any Units, shall suffer damage or destruction from any cause and the
proceeds of any policy or policies insuring against such loss or damage, and payable by reason thereof,
plus capital reserves, shall be sufficient to pay the cost of repair, restoration or reconstruction, then such
restoration, repair, replacement or reconstruction shall be undertaken and the insurance proceeds and, if
necessary, the capital reserve shall be applied by the Executive Board or the payee of such insurance
proceeds in payment therefor; provided, however, that in the event within one hundred eighty (180) days
after such damage or destruction,the Unit Owners shall elect either to sell the Property or to withdraw the
Property from the provisions of this Declaration and from the provisions of the Act as therein provided,
then such restoration, repair, replacement or reconstruction shall not be undertaken. In the event such
restoration, repair, replacement or reconstruction is not undertaken, the net proceeds of insurance policies
shall be divided by the Executive Board or the payee of such insurance proceeds among all Unit Owners
according to each Unit Owner's Allocated Interests of Common Elements as set forth in Exhibit "C,"
after first paying from the share of each Unit Owner the amount of any unpaid liens on such Unit Owner's
Unit, in the order of the priority of such liens.
Section XIII.2 Insufficient Insurance.
(a) If the insurance proceeds and any capital reserve are insufficient to reconstruct the Buildings and
the Unit Owners and all other parties in interest do not voluntarily make provision for reconstruction of
the Building(s) within one hundred eighty (180) days from the date of damage or destruction, then the
provisions of the Act and this Paragraph 2 shall apply.
(b) In the case of damage or other destruction in which fewer than one half ('/2) of the Units are
rendered uninhabitable, upon the affirmative vote of eighty percent (80%) of the voting Members (by
Allocated Interests of Common Elements) at a meeting called for that purpose, the affected Building(s) or
other portion of the Property shall be reconstructed. The meeting shall be held within thirty (30) days
following the final adjustment of insurance claims, if any; otherwise, such meeting shall be held within
ninety (90) days of the occurrence of the damage or other destruction. At such meeting the Executive
Board or its representatives shall present to the members present an estimate of the cost of repair or
reconstruction and the estimated amount of necessary assessments against each Unit Owner.
(c) In the case of damage or other destruction, upon the unanimous affirmative vote of the voting
Members at a meeting called for that purpose, any portion of the Property affected by such damage or
destruction may be withdrawn from the Act. Upon the withdrawal of any Unit or portion thereof, the
Allocated Interests of Common Elements and Allocated Interests of Common Expenses appurtenant to
such Unit or portion thereof shall be reallocated among the remaining Units on the basis of the Allocated
Interests of Common Elements and Allocated Interests of Common Expenses of each remaining Unit. If
only a portion of a Unit is withdrawn, the percentage of interest appurtenant to that Unit shall be reduced
accordingly, upon the basis of diminution in market value of the Unit, as determined by the Executive
Board. The payment of just compensation or the allocation of any insurance or other proceeds to any
withdrawing or remaining Unit Owner shall be on an equitable basis, which need not be a Unit's
percentage interest. Any insurance or other proceeds available in connection with the withdrawal of any
portion of the Common Elements, not necessarily including the Limited Common Elements, shall be
allocated on the basis of each Unit Owner's Allocated Interests of the Common Elements. Any proceeds
available from the withdrawal of any Limited Common Elements will be distributed in accordance with
the interest of those entitled to their use. Upon the withdrawal of any Unit or portion thereof, the
responsibility for the payment of assessments on such Unit or portion thereof by the Unit Owner shall
cease.
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Section XIII.3 Eminent Domain. In the event any portion of the Property is taken bycondemnation or
p
eminent domain proceedings,provision for withdrawal of the portions so taken from the provisions of the
Act may be made by the Executive Board. Upon the withdrawal of any Unit or portion thereof due to
eminent domain, the percentage of interest in the Common Elements appurtenant to such Unit or portion
so withdrawn shall be reallocated among the remaining Units on the basis of the Allocated Interests of
Common Elements allocable to each remaining Unit based upon the standards set forth in Section 4.3. If
only a portion of a Unit is withdrawn, the percentage of interest appurtenant to that Unit shall be reduced
accordingly, upon the basis of diminution in market value of the Unit, as determined by the Executive
Board, and the other Unit Owners' percentages shall be correspondingly increased. The allocation of any
condemnation award or other proceeds to any withdrawing or remaining Unit Owner shall be on an
equitable basis, which need not be a Unit's percentage interest. Any condemnation award or other
proceeds available in connection with the withdrawal of any portion of the Common Element, not
necessarily including the Limited Common Elements, shall be allocated on the basis of each Unit
Owner's Allocated Interests of the Common Elements. Proceeds available from the withdrawal of any
Limited Common Element will be distributed in accordance with the interests of those entitled to their
use. Upon the withdrawal of any Unit or portion thereof, the responsibility for the payment of
assessments on such Unit or portion thereof by the Unit Owner shall cease. The Association shall
represent the Unit Owners in any condemnation proceedings or in negotiations, settlements and
agreements with the condemning authority for the acquisition of the Common Elements or any part
thereof, and the Association is hereby appointed as attorney in fact for each Unit Owner to represent the
Unit Owners in any condemnation proceedings or in negotiations, settlements and agreements with the
condemning authority relating to such acquisitions of the Common Elements or any part thereof. In the
event of the total taking of the Property by eminent domain, the condemnation award available in that
connection shall be divided by the Association among all Unit Owners according to each Unit Owner's
Allocated Interests of the Common Elements as set forth in Exhibit "C," after first paying from the share
of each Unit Owner the amount of any unpaid liens on such Unit Owner's Unit,in the order of the priority
of such liens.
Section XIII.4 Repair, Restoration or Reconstruction of the Improvements. As used in this Article,
"restoration, repair, replacement or reconstruction" of improvements means restoring the improvements
to substantially the same condition in which they existed prior to the damage or destruction, with each
Unit and Common Element having the same vertical and horizontal boundaries as before, unless, if
allowed by the Act, other action is approved by Unit Owners and their respective mortgagees representing
at least eighty percent (80%) of the votes in the Association (by Percentage of votes in Association
Matters). Any repair, restoration or reconstruction shall be in accordance with law and this Declaration
and shall be made subject to the rights of the mortgagees.
ARTICLE XIV
REMEDIES
Section XIV.1 Violations. Upon the occurrence of any one or more of the following events, the
Executive Board shall have the rights and remedies set forth below:
(a) _ Failure by a Unit Owner to pay when due any sums required to be paid by such Unit Owner
pursuant to the provisions of this Declaration, for thirty(30) days after written notice of such nonpayment
shall have been given such Unit Owner, provided that such defaulting Unit Owner shall not be entitled to
written notice and opportunity to cure such failure if such Unit Owner has been given two (2) or more
notices pursuant to this Article XIV, Paragraph 1(a) during the twelve (12) month period immediately
preceding the first day of such failure. All notices shall be sent by certified mail and other appropriate
means. If the assessment is not paid within thirty (30) days after the due date, then (i) the amount of the
assessment shall bear interest from the date of delinquency at a rate reasonably determined by the
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Executive Board, and (ii) in addition to such interest, the Association shall charge a delinquent Unit
Owner a late fee of five percent (5%) of the assessment for each month or portion thereof that such
amount remains delinquent, such late charge to cover the Association's administrative costs in monitoring
and collecting such amount. Such assessments, interest, late charges and all costs of collection shall be a
continuing lien upon the Unit against each such assessment was made.
(b) Violation or breach by a Unit Owner or an Occupant of any provision, covenant or restriction of
the Act, this Declaration, the Bylaws, contractual obligation to the Executive Board or Association
undertaken by such Unit Owner, or rules and regulations promulgated by the Executive Board, and
continuation of such violation or breach for thirty (30) days after written notice thereof shall have been
given such Unit Owner, provided that such defaulting Unit Owner shall not be entitled to written notice
and opportunity to correct such violation or breach if such Unit Owner has been given two (2) or more
notices pursuant to this Article XIV, Paragraph 1(b) during the twelve (12) month period immediately
preceding the first day of such violation or breach. All notices shall be sent by certified mail and other
appropriate means.
Section XIV.2 Remedies. Upon the occurrence of any one or more of the events described in Paragraph
1 above,the Executive Board shall have the following rights and remedies:
(a) For a violation or breach described in Paragraph 1(b) above, the Executive Board shall have the
right: (i)to enter upon that part of the Property where such violation or breach exists and summarily abate
and remove or do whatever else may be necessary to correct, at the .expense of the defaulting Unit
Owner, any such violation or breach or the cause of such violation or breach, and the Declarant or its
successors or assigns, or the Executive Board, or its agents, shall not thereby be deemed guilty in any
manner of trespass, or(ii) to enjoin, abate or remedy by a proceeding at law or in equity the continuance
of any such violation or breach; provided, however, that no summary abatement shall be undertaken in
connection with any alteration or demolition of improvements until judicial proceedings are instituted.
(b) Upon the occurrence of one of the events described in Paragraph 1(a) above, including, without
limitation, failure by a Unit Owner to pay such Unit Owner's Allocated Interests of Common Expenses or
user charges, the Executive Board shall have a lien on the interest of the defaulting Unit Owner in such
Unit Owner's Unit Ownership in the amount of any sums due from such Unit Owner; provided, however,
that such lien shall be subordinate to the lien of any recorded mortgage encumbering the interest of such
Unit Owner. Except as hereinafter provided, the lien provided for in this Paragraph 2(b) shall not be
affected by any transfer of title to the Unit Ownership. Where title to the Unit Ownership is transferred
pursuant to a decree of foreclosure or by deed in lieu of foreclosure, such transfer of title shall, to the
extent permitted by law, extinguish the lien described in this Paragraph 2(b) for any sums which became
due prior to (i) the date of the transfer of title or (ii) the date on which the transferee comes into
possession of the Unit Ownership, whichever occurs first. However, the transferee of a Unit Ownership
shall be liable for such Unit Owner's share of any sums with respect to which a lien against such Unit
Owner's Unit Ownership has been extinguished pursuant to the preceding sentence which are reallocated
among the Unit Owners pursuant to a subsequently adopted annual revised or special assessment, and
nonpayment thereof by such transferee shall result in a lien against the transferee's Unit Ownership as
provided in this Paragraph 2(b).
(c) The Executive Board shall have the power to issue to the defaulting Unit Owner a ten (10) day
notice in writing by certified mail and other appropriate means to terminate the right of such defaulting
Unit Owner to continue as a Unit Owner and to continue to occupy, use, or control such Unit Owner's
Unit Ownership and thereupon an action may be filed by the Executive Board against the defaulting Unit
Owner for a decree declaring the termination of the defaulting Unit Owner's right to occupy, use or
control the Unit owned by him and, subject to the limitations of applicable law, ordering that all the right,
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title and interest of such defaulting Unit Owner in the Property shall be sold at a judicial sale, upon such
notice and terms as the court shall determine, except that the court shall enjoin and restrain the defaulting
Unit Owner from reacquiring such Unit Owner's interest in the Unit Ownership at such judicial sale. It
shall be a condition of any such sale, and the decree shall so provide, that the Purchaser shall take the
interest in the Unit Ownership sold subject to this Declaration. The proceeds of any such judicial sale
shall first be paid to discharge court costs, court reporter charges, reasonable attorneys' fees, and all other
expenses of the proceeding and sale, and all such items shall be taxed against the defaulting Unit Owner
in such decree. Any balance of proceeds,after satisfaction of such charges and any unpaid assessments or
other sums due hereunder or any liens, shall be paid to the defaulting Unit Owner. Upon the confirmation
of such sale,the Purchaser at such sale shall be entitled to a deed to the Unit Ownership and to immediate
possession of the Unit sold and may apply to the court for a writ of assistance for the purpose of acquiring
such possession.
(d) In addition to or in conjunction with the remedies set forth above, the Executive Board or its
agents shall have the right to bring an action at law or in equity against the Unit Owner or Occupant as
permitted by law, including, without limitation, an action (i) to foreclose a lien against the Unit
Ownership, (ii) for damages, injunctive relief or specific performance, (iii) for judgment or for the
payment of money and the collection thereof, (iv) for any combination of the remedies set forth in this
Article or (v) for any other relief which the Executive Board may deem necessary or appropriate. Any
and all rights and remedies provided for in the Act, this Declaration, the Bylaws, any contractual
obligation to the Executive Board or Association undertaken by such Unit Owner, or rules and regulations
promulgated by the Executive Board may be exercised at any time and from time to time cumulatively or
otherwise by the Executive Board in its discretion. The failure of the Executive Board to exercise any
such rights or remedies to enforce any provisions of this Declaration, the Bylaws or rules and regulations
of the Executive Board shall in no event be deemed a waiver of the right to do so thereafter.
(e) All expenses incurred by the Executive Board in connection with any actions, proceedings or self
help in connection with the exercise of its rights and remedies under this Article, including, without
limitation, court costs, reasonable attorneys' fees and all other fees and expenses, and all damages,
together with interest thereon at the rate of eighteen percent(18%)per annum(or such lesser rate charged
by law should eighteen percent (18%) be held to be in excess of the maximum legal rate allowable by
law), shall be charged to and assessed against the defaulting Unit Owner, and shall be added to and
deemed part of such Unit Owner's respective share of the Common Expenses, and the Executive Board
shall have a lien for all of the same upon the Unit Ownership of such defaulting Unit Owner and upon all
of such Unit Owner's additions and improvements thereto.
Section XIV.3 Enforcement by Unit Owners. Any aggrieved Unit Owner (including Declarant) may
enforce the provisions of this Declaration, the Bylaws or any rules and regulations promulgated by the
Executive Board by an action at law or in equity against the defaulting Association or against the
defaulting Unit Owner or Occupant upon a violation or breach described in Paragraph 1(b) above against
any person or persons either to restrain such violation or breach or to recover damages.
ARTICLE XV
GENERAL PROVISIONS
Section XV.1 Certain Rights of the Declarant. Until the Transfer Date, the rights, titles, powers,
privileges, trusts, duties and obligations vested in or imposed upon the Executive Board in the Act or in
this Declaration shall be held and performed by the Declarant,which may be exercised by the designation
of an initial Executive Board in accordance with the terms hereof and in accordance with the procedure
set forth in the Bylaws. If the initial Executive Board shall not be elected by the Unit Owners at the time
established by the Bylaws, the Declarant shall continue in the aforesaid office for a period of thirty (30)
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days after written notice of its resignation is sent to all of the Unit Owners entitled to vote at such election
by certified mail and other appropriate means. In exercising such rights, and the other rights reserved by
the Declarant pursuant to this Declaration, the Declarant shall not be under any disability which would
otherwise be imposed by law by reason of the Declarant's interest in the subject matter of any transaction;
provided, however, that any such transaction shall have been entered into in good faith. Prior to the
Transfer Date, notwithstanding any provision herein to the contrary, the Declarant shall have the
following rights and privileges, which are hereby reserved only to itself and to its successors and assigns
and their respective agents:
(a) The Declarant may exercise any of the "development rights" or "special declarant rights"
described in Section 76-827 of the Act (collectively, the "Special Declarant Rights") to the extent the
exercise of such rights are not materially and adversely inconsistent with the provisions of this
Declaration
(b) The Declarant may(i) relocate the boundaries of any Unit or Units, and(ii) further subdivide any
one or more of the Units into additional Units, Common Elements or both. Declarant shall have the right
to reallocate percentages of undivided interests in the Common Elements, liability for payment of
Common Expenses, allocation of Limited Common Elements, and allocation of votes in the Association,
as to be done strictly in accordance with this Declaration and the Act. The Declarant shall cause such
relocation or subdivision by its adoption, execution or recordation of an amendment to this Declaration by
recording such certificates and plans as required by the Act. Such amendment shall not be adopted by the
Declarant pursuant to the terms hereof without the prior consent of[Seventy-Five percent (75%)] of the
voting power of the Association (by Percentage of votes in Association Matters) given by the Unit
Owners as set forth in Exhibit "C." From time to time, as the Declarant shall file permitted amendments
to this Declaration, each then owner and each Person or entity thereafter becoming a Unit Owner and its
successors in title shall, upon the reallocation of such Common Elements or Limited Common Elements
automatically be vested with the appropriate undivided percentage interest in such Common Elements and
Limited Common Elements under the standards herein, specifically Section 4.3, and as set forth in
Exhibit"C."
Section XV.2 Employees: Maintenance of Common Elements. The Association shall have no
employees. All maintenance of the Common Elements will be contracted to outside companies. The
Executive Board may set a management fee for the managing Director to cover accounting, legal and
other costs associated with management of the Association and management of the Common Elements.
Section XV.3 Record of Receipts and Expenditures. The Association shall keep detailed and accurate
records in chronological order of all of its receipts and expenditures, specifying and itemizing the
maintenance and repair expenses of the Common Elements and any other expenses incurred. Such
records and the vouchers authorizing the payments shall be made promptly available on request for
examination by the Unit Owners and others with an interest, such as prospective lenders, within fifteen
(15)business days of such a request.
Section XV.4 Conveyance and Leases. Each grantee of the Declarant, each subsequent grantee by the
acceptance of a deed of conveyance, each Purchaser under a Deed to a Unit and each tenant under a lease
for a Unit Ownership accepts the same subject to all restrictions, conditions, covenants,reservations, liens
and charges, and the jurisdiction,rights and powers created or reserved by this Declaration, and all rights,
benefits and privileges of every character hereby granted, created, reserved or declared, and all
impositions and obligations hereby imposed, shall be deemed and taken to be covenants running with the
land and shall bind any person having at any time an interest or estate in the Property and shall inure to
the benefit of such Unit Owner in like manner as though the provisions of the Declaration were recited
and stipulated at length in each and every deed of conveyance.
47
4883-6734-4131.8
Section XV.5 Term of Declaration. This Declaration shall run with the land, shall be binding upon all
Persons owning Units and any Persons hereafter acquiring said Units, and shall be in effect in perpetuity
unless amended or terminated as provided in the Act.
Section XV.6 Amendment of Declaration. No provision of this Declaration affecting the rights,
privileges and duties of the Declarant may be modified without the Declarant's prior written consent.
Except as otherwise provided in the Act and this Declaration, provisions, covenants, conditions,
restrictions or equitable servitudes contained in this Declaration may be amended or repealed at any time
and from time to time upon approval of the amendment or repeal by Members of the Association holding
at least [Seventy-Five percent(75%)] of the voting power of the Association (by Percentage of votes in
Association Matters) as set forth in Exhibit "C" present in person or by proxy at a duly constituted
meeting of the Members. The approval of any such amendment or repeal shall be evidenced by the
certification by the Executive Board of the Association of the vote of Members. The amendment or
repeal shall be effective upon the recordation in the office of the Register of Deeds of Douglas County,
Nebraska, of a certificate, executed by the President or a Vice President and the Secretary or an Assistant
Secretary of the Association setting forth the amendment or repeal in full and certifying that the
amendment or repeal has been approved by the Members and certified by the Executive Board as set forth
above.
Section XV.7 Assignments by Declarant. All rights which are specified in this Declaration to be rights
of the Declarant are mortgageable, pledgeable, assignable or transferable. Any successor to, or assignee
of, the rights of the Declarant hereunder (whether as the result of voluntary assignment, foreclosure,
assignment in lieu of foreclosure or otherwise) shall hold or be entitled to exercise the rights of Declarant
hereunder as fully as if named as such party herein. No party exercising rights as Declarant hereunder
shall have or incur any liability for the acts of any other party which previously exercised or subsequently
shall exercise such rights.
Section XV.8 Unit Owner's Duty to Disclose. Unit Owners are hereby required to disclose the
existence and contents of this Declaration and any related documents, including Rules and Regulations to
their tenants. Unit Owners are also required to inform their tenants that the tenants are obligated to
conduct business and otherwise perform the duties imposed by the Declaration and any related
documents, including Rules and Regulations. Nothing in this Article shall be construed to allow a tenant
voting rights.
Section XV.9 Association Right to Security Interest Information. Each Unit Owner hereby authorizes
any First Security Interest holding a Security Interest on such Unit Owner's Unit to furnish information to
the Association concerning the status of such First Security Interest and the loan which it secures.
Section XV.10 Taxes. Each Unit Owner shall be solely responsible for payment of real property,
personal property, sales and use taxes regarding the Unit Owner's Unit.
Section XV.11 Captions. The captions contained in the Bylaws are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope of the Bylaws or the
intent of any provision thereof.
Section XV.12 Waiver. No provision contained in the Bylaws is abrogated or waived by reason of any
failure to enforce the same, irrespective of the number of violations or breaches which may occur.
Section XV.13 Invalidity and Severability. The invalidity of any provision of the Bylaws does not
impair or affect in any manner the validity, enforceability of effect of the remainder, and if a provision is
invalid, all of the other provisions of the Bylaws shall continue in full force and effect.
48
4883-6734-4131.8
Section XV.14 Conflict. The Bylaws and other Association documents are intended to comply with the
requirements of the Act. If there is any conflict between the Bylaws or other Association documents and
the provisions of the Act the provisions of the Bylaws or other Association documents shall control,
unless such control would invalidate the Bylaws or other Association documents, in which case the Act
shall control. If the Bylaws or other Association documents are silent as to a particular issue, the Act
shall control. In the event of any conflict between this Declaration and any other document, this
Declaration shall control.
Section XV.15 Meetings. Meetings of the Unit Owners shall be held at least once each year, or more
often as determined by the Unit Owners, Executive Board or Association. Meetings shall be held in
conformity with this Declaration,and with §76-866 of the Act.
Section XV.16 Controlling Law Jurisdiction and Venue. This Declaration shall be interpreted, construed
and applied in accordance with the laws of the State of Nebraska. Jurisdiction and venue shall be solely
vested in Douglas County,Nebraska.
[Signature page to follow]
49
4883-6734-4131.8
IN WITNESS WHEREOF the undersigned has caused this Declaration to be executed as of the
day and year first above written.
[Blackstone Parking, LLC, a Nebraska limited
liability]
By: 1,-01--Name: ' s AG Gti`f'
Title: Afriqr
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
1L
SUBSCRIBED, SWORN TO and ACKNOWLEDGED before me this /2 day of
iip'r I , 202Z , by 6,6. )_ , as the flAof
[Blackstone Parking, LLC, a Nebraska limited liability company.]
WITNESS my hand and official seal. tJL
GENERAL NOTARY-State of Nebraska I
SHERI L WHITE Notary Public
My Comm.Exp.April 30,2025
My commission expires:
L( ifs
•
50
4883-6734-4131.8
CONSENT OF MORTGAGEE
, holder of a [Deed of Trust,
Security Agreement and Assignment of Rents], dated , and recorded on
, as Instrument No. , hereby consents to the execution
and recording of the within Declaration and Master Deed of Condominium Ownership and agrees that
such Deed of Trust is subject thereto and to the provisions of the Nebraska Condominium Act of the State
of Nebraska.
IN WITNESS WHEREOF, has
caused this Consent of Mortgagee to be signed by its duly authorized officers on its behalf, on this
day of ,202 .
,
a
By:' 11 - - til.A.4.—
Name: -1--E—N,J 'rTr/i-i
Title: iv) A,) A,,
STATE OF N thr/ L 1 )
ss.
COUNTY OF , A1C1l15 )
-11
The foregoing instrument was acknowledged befo e me this day of
2022 , lby �.� f1 �'! `�'' ,
1 rt of of E t111i 11 ,
a on behalf ofi
k'tm bilkHtiA
Notary Public
Mycommission expires:
P
GENERAL NOTARY-State of Nebraska
I,l KIMBERLY HOESING
• . My Comm.Exp.December 14,2025
51
4883-6734-4131.8
II
EXHIBIT "A"
LEGAL DESCRIPTION
Lot 1, Blackstone-Cottonwood Place, a subdivision as surveyed, platted and recorded in Douglas
County,Nebraska.
Ii.
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4883-6734-4131.8
EXHIBIT "B"
PLATS AND PLANS
[To be provided before recording]
53
4883-6734-4131.8
EXHIBIT "C"
UNIT OWNERSHIP AND PERCENTAGE INTERESTS TABLE
Unit Addresses Allocated Allocated Percentage Number of
Numbers Interests of Interests of of votes in votes in
Common Common Association Association
Elements 1 Expenses2 Matters3 Matters4
Unit 1
Unit 2
Total 100% 100% 100%
•
1 Each Unit Owner's Allocated Interests in the Common Elements shall be divided equally between
Units 1 and 2.
2 Each Unit Owner's Allocated Interests in the Common Expense Liability shall be equal to their
respective Allocated Interests; provided, however, the treatment of parking expenses shall be distinct as
set forth in Section 3.13(b).
3 The total Percentage of votes in Association Matters shall be one hundred percent (100%). The
Percentage of votes in Association Matters delegated to the holders of Unit Numbers 1 and 2 shall
correspond with their respective Allocated Interests of Common Elements, but under no circumstances
may decrease below %,regardless of the Allocated Interests of Common Elements belonging to the
holders of Units 1 and 2. Each of the other Unit Owners shall be entitled to a Percentage of votes in
Association Matters equal to that Unit Owner's Allocated Interests in the Common Elements.
4 The Number of votes in Association Matters belonging to each Unit Owner shall equal the Percentage
of votes in Association Matters belonging to each respective Unit Owner multiplied by the total number
of available votes as established from time to time by the Association.
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4883-6734-4131.8
EXHIBIT F
PURCHASE& SALE AGREEMENT
THIS PURCHASE & SALE AGREEMENT (this "Agreement") is made and entered as
, 2022 (the "Effective Date") by and between BLACKSTONE PARKING, LLC, a
Nebraska limited liability company, or assigns with an address of 3814 Farnam Street, Suite 201, Omaha,
Nebraska 68131 ("Seller"), and CITY OF OMAHA, a Nebraska municipal corporation in Douglas
County,Nebraska with an address of 1819 Farnam Street, Omaha,Nebraska 68183 ("Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner or developer of certain tracts or parcels of land situated in
Omaha, Douglas County, Nebraska, more particularly described in Exhibit "A" attached hereto and by
this reference made a part hereof (the "Condominium Site"), which Condominium Site is being
developed by Seller or its affiliates or successors as commercial and residential project to be known as
"Blackstone East Mixed Use Building" (the"Condominium"); and
WHEREAS, the Condominium Site includes, among other properties, a parking garage unit
(the "Garage Unit") more particularly described in Exhibit "B" attached hereto and by this reference
made a part hereof; and
WHEREAS, Purchaser desires to purchase the Garage Unit,which Garage Unit will be located
in the Condominium as shown on the plans therefor; and
WHEREAS, the parties have determined that, in order to satisfy the requirements of Nebraska
law regarding creation and formation of condominiums, it is essential to have the Condominium
constructed, with "as built" plans of the constructed building prepared and filed prior to conveyance of
the Garage Unit to Purchaser; and
WHEREAS, the parties have determined that the Garage Unit will be conveyed to Purchaser at
Closing hereunder in fee promptly following completion of construction of the Garage Unit; and
WHEREAS,the parties desire to enter into this Agreement to set forth the terms and conditions
upon which (i) the Garage Unit shall be conveyed to Purchaser (on and subject to the terms and
conditions hereof), and(ii)the Condominium will be created;
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) paid by
Purchaser to Seller,in consideration of the promises and agreements of the parties set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, Seller and Purchaser hereby agree as follows:
1. SALE AND PURCHASE OF REAL PROPERTY
Upon and subject to the terms and conditions set forth in this Agreement, (i) Seller shall sell to
Purchaser and Purchaser shall purchase from Seller the Garage Unit at the price herein set forth, (ii) the
Condominium shall be created and (iii) the parties shall take the other actions and enter into the other
agreements contemplated by this Agreement.
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4883-6734-4131.8
2. PROPERTY; TITLE REVIEW; TITLE INSURANCE
(a) On and subject to the terms,provisions and conditions hereof, Seller agrees to sell and convey the
Garage Unit to Purchaser by special warranty deed (the "Deed") (warranting title against claims of all
persons claiming by, through or under the grantor, but not otherwise), and Purchaser agrees to purchase
and pay for the Garage Unit, subject to the provisions hereof respecting creation of the Condominium.
(b) At the Closing, Seller shall convey to Purchaser title to the Garage Unit in good and indefeasible
condition, free and clear of all liens,tenants, occupancies and encumbrances, subject only to:
(i) the lien for current real property taxes which are not yet due or payable (and subject to prorations
as hereafter provided);
(ii) those additional permitted exceptions arising pursuant to Paragraph 2(c)below;
(iii) the provisions of this Agreement respecting creation of the Condominium; and
(iv) the Master Deed and Declaration of Condominium Ownership for Blackstone East Mixed Used
Building(the"Master Deed").
The title exceptions referred to in subparagraphs 2(b)(i) — (iv) above, inclusive, are hereinafter included
with the definition of"Permitted Exceptions"below.
(c) Seller shall furnish to Purchaser a title commitment in the amount of $18,897,134.00 (the
"Commitment") issued by First American Title Insurance Company (the "Title Company") showing
title to the Garage Unit to be titled in Seller, subject to the Permitted Exceptions. Seller shall deliver the
Commitment, together with copies of any documents noted as exceptions to title therein, to Purchaser not
later than fifteen (15) days prior to Closing. Within fifteen (15) days after Seller's delivery to Purchaser
of the Commitment, copies of all documents noted therein as exceptions to title and the Survey (as
defined herein) (whichever is latest), Purchaser shall notify Seller of any modifications to the
Commitment and/or Survey required by Purchaser to be made and any exceptions or defects to title
revealed thereby not consented to by Purchaser (any such modification, exceptions or defects being
collectively referred to herein as "Title Objections"). Any matters revealed by the Title Commitment
and/or Survey to which no objection is timely made by Purchaser as provided in this Paragraph 2(c) shall
be considered"Permitted Exceptions" hereunder. In the event that Purchaser shall give Seller notice of
any Title Objections, Seller may, at its option and at its sole cost and expense, make such modifications,
remove such exceptions and/or cure such defects (any such action being hereinafter "Cure"). If each of
such Title Objections are not Cured to Purchaser's reasonable satisfaction within fifteen (15) days after
Purchaser's notice of the Title Objections or if, alternatively, Seller shall not notify Purchaser within such
fifteen (15) day period that it will endeavor by Closing to Cure any remaining Title Objections (or if,
having notified Purchaser of intent to effect such Cure by Closing, Seller fails or is unable to do so to
Purchaser's reasonable satisfaction), Purchaser may terminate this Agreement by giving notice to Seller at
any time within ten (10) days following expiration of Seller's Cure period (or, as to matters to be Cured
by Closing, on or before the Closing Date, if not Cured); provided, however, if Purchaser elects to close
without any such Title Objections being Cured,the parties shall proceed to Closing without adjustment of
the Purchase Price and such Title Objections shall be deemed to be Permitted Exceptions. Failure by
Purchaser to give notice of termination within the periods contemplated above shall be deemed an
election by Purchaser to waive the Title Objection(s) at issue and to close with such matters included
among the Permitted Exceptions. In the event of termination pursuant to the provisions of this Paragraph
2(c),this Agreement shall be deemed a nullity and of no further force and effect, and neither party hereto
56
4883-6734-4131.8
shall thereafter have any rights, duties, liabilities or obligations whatsoever under this Agreement, other
than for those provisions that expressly survive termination. Should the Commitment and/or Survey be
revised after Purchaser submits its notice of the Title Objections as set forth above, Purchaser shall have
an additional fifteen(15)days after receipt of such revised Commitment and/or Survey to make additional
objections (which shall be included within the term "Title Objections") and, as above, Seller may
endeavor to Cure or give notice of intent to Cure such Title Objections within fifteen (15) days after
delivery of such notice in accordance with the foregoing provisions, failing which Purchaser shall again
have the right either to terminate this Agreement in accordance with the foregoing provisions, or to
proceed to Closing without adjustment of the Purchase Price(in which case such uncured Title Objections
shall be included within the Permitted Exceptions). Notwithstanding anything contained in this
Agreement to the contrary, Seller shall be required to Cure, at or before Closing, all Monetary
Encumbrances,whether or not Purchaser includes them iri the Title Objections or otherwise notifies Seller
of same. "Monetary Encumbrances" are herein defined to be encumbrances on title that may be cured
by performance of the following acts: (i) satisfaction of any mortgages placed upon the Garage Unit as a
lien to secure indebtedness; (ii) causing the release of any mechanic's liens placed upon the Garage Unit
by a third party(except by Purchaser or persons claiming through or under Purchaser) in connection with
work performed or alleged to have been performed on the Garage Unit or materials delivered or alleged to
have been delivered on the Garage Unit; (iii) causing the release of any ad valorem tax lien; and (iv)
causing the release of any other judgment lien or other lien; provided that, except for matters voluntarily
created or not contested by Seller (as to which there shall be no cap on Seller's obligation), Seller shall
have no obligation by virtue of the foregoing provisions to Cure any Monetary Encumbrances if the cost
to do so will exceed $100,000.00 in the aggregate. Promptly after Closing, Seller shall, at Seller's
expense, cause the Title Company to issue to Purchaser a title insurance policy (the "Policy")pursuant to
the final Commitment insuring title to the Garage Unit in Purchaser in the amount of$18,897,134.00,
subject only to the Permitted Exceptions. The Policy shall contain such endorsements as requested by
Purchaser to the extent the same are available for owner's policies of title insurance issued in the state
where the Garage Unit is located. Purchaser shall be responsible for paying that portion of the Policy
premium attributable to any such endorsements; provided, however Seller shall be responsible for any
premium associated with the deletion of the so-called"standard exceptions"from the Policy.
3. PURCHASE PRICE
Purchaser agrees to pay to Seller at Closing, for the Garage Unit, $18,897,134.00. The Purchase
Price shall be payable at Closing, subject to the closing costs, adjustments, prorations and credits
provided for herein, by Purchaser's wire transfer of immediately available federal funds as provided in
Paragraph 7 of this Agreement.
4. TAXES AND ASSESSMENTS
(a) Taxes and assessments on or respecting the Garage Unit delinquent in the year of Closing shall be
prorated to the date of Closing.
(b) If the Garage Unit or any portion thereof is not a separate tax parcel, then and in that event, the
taxes attributable to the Garage Unit shall be determined by multiplying the total tax bill(s) for the tax
parcel(s) of which the Garage Unit is a part by a fraction,the numerator of which is the amount of square
footage contained in the Garage Unit and the denominator of which is the total amount of land, computed
in square footage, contained in the tax parcel(s)of which the Garage Unit is a part.
(c) The provisions of this Paragraph 4 shall survive Closing and shall not be merged upon delivery
and acceptance of the Deed or upon payment of the Purchase Price by Purchaser to Seller.
57
4883-6734-4131.8
5. SURVEY
Seller, at Seller's sole cost and expense, shall furnish to Purchaser a current ALTA/NSPS
survey (the "Survey") of the Garage Unit. The Survey shall contain a correct metes and bounds legal
description of the Garage Unit, as well as a map showing the boundaries of the Garage Unit and showing
the location(to the extent plottable)of each utility line, easement,right-of-way,restriction, encroachment,
encumbrance and improvement which is indicated of record, visible or apparent from a physical
inspection, or otherwise known to the surveyor, including without limitation all plottable exceptions
shown on the Commitment (as may be modified from time to time through Closing). If previously
prepared as of the Effective Date hereof, a copy of the Survey is incorporated by reference herein as
Exhibit "C". If the Survey is not so attached, then in such case Seller shall endeavor to cause a copy of
same to be delivered to Purchaser not later than fifteen (15) days prior to Closing. Notwithstanding the
foregoing, the Survey must be acceptable to the Title Company to enable the issuance of any
endorsements reasonably required by Purchaser, subject to paragraph 2(c) hereof. No adjustment of the
Purchase Price shall be made if the Survey reveals that the Garage Unit (or any portion thereof) contains
more or less acreage than any approximated acreage of same stated or contained in this Agreement or any
of the exhibits hereto.
6. RESERVED •
7. CLOSING
The term"Closing" shall be defined herein as the consummation of the sale of the Garage Unit
by Seller to Purchaser upon the satisfaction of the conditions/requirements of Paragraph 15, Seller's
execution and delivery of the Deed to Purchaser, the acceptance thereof by Purchaser, the payment of the
Purchase Price by Purchaser to Seller and execution and delivery (into escrow, where applicable) of the
other instruments contemplated by this Agreement. Subject to the provisions herein, the Closing of this
transaction shall take place at the offices of the Title Company or its representative within thirty (30)
days, or as otherwise agreed by the parties in writing, after Substantial Completion (as defined in
Paragraph 15 below) of the Garage Unit (such date being the "Closing Date"). At the Closing, the
following shall occur:
A. Seller shall convey the Garage Unit to Purchaser by delivery of the Deed as provided
herein;
B. Purchaser shall pay Seller the Purchase Price to Seller as provided herein;
C. The Title Company shall record the Deed.
D. The parties shall execute settlement sheets confirming credits, prorations, and other
adjustments to the Purchase Price provided for herein; and
E. Seller and Purchaser shall enter into a lease agreement (the "Parking Lease"), pursuant
to which Purchaser will lease to Seller and its assigns 72 parking spaces in the Garage
Unit, in substantially the form of Exhibit G" to the Redevelopment Agreement for
Blackstone East Mixed Use Building between Seller and Purchaser(the"Redevelopment
Agreement").
F. The parties shall perform such other actions as shall be necessary to vest title to the
Garage Unit in Purchaser, subject only to the Permitted Exceptions, which agreement
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4883-6734-4131.8
shall include, as to Seller, the obligation to pay such taxes on Seller's other property as
may be payable as a condition to the filing of the Deed to be delivered to the Purchaser
and, as applicable, execution of affidavits, tax returns and forms and other closing
documentation in form reasonably acceptable to the parties and customarily delivered in
connection with commercial real estate transactions comparable to the sale of the Garage
Unit in the State of Nebraska. Without limitation, (i) Seller and Purchaser each shall
deliver to the other and to the Title Company reasonable evidence of the delivering
parry's authority to enter into the documents and consummate the transactions
contemplated by this Agreement, (ii) Seller and Purchaser each shall execute and deliver
at Closing affidavits, certificates and other information in customary form sufficient to
satisfy requirements of the Internal Revenue Code (including Sections 1445 and 6045
thereof) and the withholding requirements of any comparable laws of the State of
Nebraska and demonstrating that there is no obligation under any such laws to withhold
any monies from the Purchase Price or other consideration in accordance with the
provisions of such laws in connection with the transactions contemplated hereby (or, if
same shall not be the case such that either party is obligated to withhold from the
Purchase Price or such other consideration under any such laws, establishing the amount
necessarily withheld in accordance with such laws and, in case withholding is so
required, Seller and Purchaser shall cooperate with each other in connection with Closing
to allow for withholding and compliance with such laws, as necessary); and (iii) Seller
and Purchaser shall execute and deliver at Closing(or in connection with break of escrow
under the Escrow Agreement) affidavits, certificates and other information as may be
reasonably and customarily required by the Title Company (including without limitation
an owner's affidavit in customary form) to issue the Title Policy, a policy of title
insurance in Purchaser's favor insuring title to the Garage Unit, so long as same exposes
Seller or Purchaser, as the case may be, to no additional cost, expense, liability or
obligation, any endorsements reasonably requested by the other party, with the foregoing
provisions respecting break of escrow to survive Closing.
8. TITLE CHARGES AND CLOSING COSTS
(a) Seller shall be responsible for all recording fees,transfer taxes, and documentary fees imposed on
the sale. Seller shall pay one-half(1/2) of the fees charged in connection with Closing and Seller's own
attorneys' fees. Purchaser shall pay one-half(1/2) of any escrow fees charged in connection with Closing
and Purchaser's own attorneys' fees. Any other closing costs incurred in connection with the Closing
shall, unless contrary provision for payment is expressly made elsewhere in this Agreement, be paid by
the party customarily paying such costs in commercial real estate transactions in Omaha,Nebraska.
(b) Regarding the Condominium, Seller shall be responsible for all recording fees,transfer taxes, and
documentary fees incurred in recording the Condominium Documentation (including without limitation
the declaration and all requisite plats and plans, including the "as-built" plans). Purchaser shall be
responsible for the cost of any title insurance acquired by Purchaser with respect to the Garage Unit.
(c) The provisions of this Paragraph 8 shall survive Closing and shall not be merged upon delivery
and acceptance of the Deed or upon payment of the Purchase Price by Purchaser to Seller.
9. BROKER'S FEES
Each party represents and warrants to the other that it has not employed, retained or consulted a
broker, agent or finder in carrying on the negotiations in connection with this Agreement or the purchase
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4883-6734-4131.8
and sale referred to herein. Seller and Purchaser each hereby indemnifies and agrees to defend and hold
the other harmless from and against any and all claims, demands, causes of action, debts, liabilities,
judgments and damages (including, without limitation, court costs and attorneys' fees, inclusive of fees
incurred in connection with enforcement of this indemnity and fees on appeal) that may be asserted or
recovered against the indemnified party on account of any brokerage fee, commission or other
compensation arising by reason of the indemnitor's breach of these representations and warranties or, in
Seller's case, by reason of Seller's failure to pay the commission due to Brokers (the foregoing
indemnities being herein referred to as the "Brokerage Indemnities"). The Brokerage Indemnities shall
survive Closing or any sooner termination of this Agreement and shall not be merged upon delivery of the
Deed from Seller to Purchaser or upon payment of the Purchase Price by Purchaser to Seller,
notwithstanding any contrary provision of this Agreement.
10. RIGHT OF ENTRY AND INSPECTION
(a) Purchaser and its designated agents, consultants and employees shall (at such parties' respective
risk) have reasonable access to the Garage Unit after construction thereof and prior to Closing in order to
make inspections, surveys, and such other observations, tests, and studies as are required by Purchaser
and as are reasonable and customary (or otherwise approved in advance by Seller), subject to the terms,
provisions and limitations of this Paragraph 10. Purchaser agrees to cause all surveys, tests, analyses and
inspections perfoiiued in accordance herewith to be conducted in a commercially-reasonable manner, and
Purchaser shall pay all costs incurred in connection with any and all such surveys, tests, analyses and
investigations. If this Agreement is terminated for any reason (other than Seller's default hereunder),
Purchaser shall promptly deliver to Seller any and all documents, plans and other items furnished
Purchaser by Seller or its agents without retaining copies thereof, and in such case Purchaser likewise
shall deliver to Seller,promptly following Seller's request therefor, any reports, studies, surveys, analyses
or other information obtained pursuant to or in connection with this Agreement with regard to the Garage
Unit; provided that all such materials shall be submitted by Purchaser without representation or warranty,
and any reliance upon same by Seller shall be subject to Seller's ability, at its expense, to make separate
arrangements regarding reliance with the preparers of such materials. In connection with the exercise of
such right of access, Purchaser agrees to defend and indemnify and hold harmless Seller from all claims,
liens, actions, costs, damages, and/or liabilities (including, without limitation, injury or loss of life to
person(s) in, on, or about the Condominium Site, damage to the Condominium Site or any portion thereof
and/or court costs and attorneys' fees,inclusive of fees on appeal) arising out of, resulting from or caused
by (i) the activities of Purchaser or its agents, consultants or employees on or about the Garage Unit or
balance of the Condominium Site prior to the Closing; and/or (ii) any work performed or material
furnished, or work claimed to have been performed or material claimed to have been furnished, upon or
for the Garage Unit or any other portion of the Condominium Site at the request of Purchaser or its
agents, consultants or employees. The foregoing indemnity shall survive Closing or any sooner
termination of this Agreement.
(b) Purchaser shall endeavor in good faith to keep Seller reasonably apprised of its schedule with
regard to any entries upon the Garage Unit prior to Closing for testing and inspection as contemplated
hereby. At Seller's election, a representative of Seller may be present during any entry by Purchaser or its
representatives upon the Garage Unit for conducting its tests and studies as contemplated hereby.
Purchaser agrees that, in entering onto the Garage Unit as permitted by this Agreement, Purchaser and its
representatives will take reasonable steps to minimize any interference with on-going construction and/or
business operations then occurring on or about the Garage Unit and, to the extent there will be any such
disruption, Seller shall have the right to approve in advance the date, time and methodology of
Purchaser's studies and investigations. Purchaser shall not cause or permit any mechanic liens,
materialmen's liens or other liens to be filed against the Garage Unit or any other portion of the
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4883-6734-4131.8
Condominium Site as a result of its activities contemplated hereby and will cause any such lien to be
removed, by payment or bonding, not later than thirty (30) days of Purchaser's notice of the filing of
same.
(c) Notwithstanding any contrary provision of this Agreement, Purchaser is not permitted to perform
any environmental sampling,boring, drilling or other physically-intrusive environmental testing in, on or
about the Garage Unit, including, without limitation, a so-called "Phase II environmental assessment",
without (i) submitting to Seller the scope and specifications for such testing; and (ii) obtaining the prior
written consent of Seller with respect to the scope and specifications for such testing,which consent shall
not be unreasonably withheld, denied, delayed or conditioned and which consent shall be deemed given if
Seller does not notify Purchaser that it does not approve same within three (3)business days of its receipt
of the proposed scope and specifications. The foregoing does not apply to geotechnical soil borings and
similar geotechnical tests and studies needed to determine the physical characteristics of the Garage Unit
with regard to matters of compaction and like construction issues.
(d) In the event that the Condominium Site or any portion thereof is disturbed or altered in any way
as a result of Purchaser's pre-Closing activities, then unless Seller specifically consents to the contrary in
writing, Purchaser shall promptly restore the affected portion of the Condominium Site to its condition
existing prior to the commencement of such activities which disturb or alter same, exclusive of normal
wear and tear and customary effects of the surveys, tests, inspections and other activities so performed.
Furthermore, Purchaser agrees to maintain and cause any of its representatives (whether agents,
consultants or otherwise) conducting any studies or investigations on the Garage Unit to maintain and
have in effect commercial general liability insurance with limits of not less than One Million and No/100
Dollars ($1,000,000.00) for personal injury, including bodily injury and death, and property damage.
Purchaser may, as long as its net worth equals or exceeds One Hundred Million Dollars
($100,000,000.00), elect to provide all or any portion of the required liability insurance by means of"self-
insurance".
(e) The indemnity provision of subparagraph (a) of this Paragraph 10, as well as the provisions of
subparagraphs (b), (d) and(e)shall survive Closing or any termination of this Agreement.
11. DEFAULT BY PURCHASER;REMEDIES OF SELLER
(a) In the event Purchaser fails to close the purchase of the Garage Unit (to the extent Purchaser
becomes required hereunder to do so) on the Closing Date, if Seller is not otherwise in default hereunder,
and if such failure continues uncured for fifteen (15) days after Seller gives Purchaser notice thereof, (i)
Seller may bring an action in equity against Purchaser for the specific performance by Purchaser of the
terms and provisions of this Agreement, and/or(ii) Seller shall have the right to terminate this Agreement
by giving written notice of such termination to Purchaser, whereupon this Agreement shall be deemed
null and void and of no further force and effect, and neither party hereto shall thereafter have any rights,
duties, liabilities, or obligations whatsoever under this Agreement, except for matters that by the express
terms of this Agreement survive termination.
(b) Following Closing, if Purchaser fails to perform any of its obligations hereunder intended to
survive or be performed after Closing, and if any such failure continues uncured for fifteen(15) days after
Seller gives Purchaser notice thereof, Seller shall be entitled to exercise and pursue any and all remedies
available at law and/or equity as a result of such default, including(without limitation) pursuit of specific
performance of the obligations of Seller,the foregoing provisions to survive Closing hereunder.
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12. DEFAULT BY SELLER; REMEDIES OF PURCHASER
(a) In the event Seller fails to comply with any or all of the obligations, covenants, or agreements to
be performed, honored, or observed by Seller under and pursuant to the terms and provisions of this
Agreement, if such failure continues uncured for fifteen (15) days after Purchaser gives Seller notice
thereof and if Purchaser is not otherwise in default hereunder, (i) Purchaser may bring an action at law
against Seller for damages, including reasonable attorneys' fees, incurred by Purchaser by reason of any
such default, (ii)Purchaser may bring an action in equity against Seller for specific performance by Seller
of the terms and provisions of this Agreement; and/or (iii) Purchaser may terminate this Agreement by
giving written notice of such termination to Seller, whereupon this Agreement shall be deemed null and
void and of no further force and effect, and neither party hereto shall thereafter have any rights, duties,
liabilities, or obligations whatsoever under this Agreement, except for matters that by the express terms of
this Agreement survive termination and except for Purchaser's entitlement to pursue damages against
Seller as aforesaid.
(b) Following Closing, if Seller fails to perform any of its obligations hereunder intended to survive
or be performed after Closing, and if any such failure continues uncured for fifteen (15) days after
Purchaser gives Seller notice thereof, Purchaser shall be entitled to exercise and pursue any and all
remedies available at law and/or equity as a result of such default, including (without limitation) pursuit
of specific performance of the obligations of Seller, the foregoing provisions to survive Closing
hereunder.
13. CONDEMNATION; DAMAGE OR DESTRUCTION
Seller represents to Purchaser that, to the best of Seller's knowledge, there is no pending or
threatened litigation or proceeding regarding condemnation or eminent domain against the Garage Unit
that would have a material adverse impact on use and operation of the Garage Unit. If prior to Closing
(x) all or any part of the Garage Unit shall be destroyed, substantially damaged, subjected to a bona fide
threat of condemnation or shall become the subject of any proceedings, judicial, administrative or
otherwise with respect to taking by eminent domain or condemnation or(y) all or any material part of the
balance of the Condominium Site shall be destroyed, substantially damaged, subjected to a bona fide
threat of condemnation or shall become the subject of any proceedings, judicial, administrative or
otherwise, with respect to all or any material taking by eminent domain or condemnation, Seller shall
notify Purchaser thereof within twenty four (24) hours after receipt of actual notice of such event or
occurrence by Seller, but in no event later than Closing, and Purchaser, at its option, may within five (5)
days after receipt of such notice elect to terminate this Agreement by giving notice of termination to
Seller, whereupon this Agreement shall be deemed null and void and of no further force and effect, and
neither party hereto shall thereafter have any rights, duties, liabilities, or obligations whatsoever under
this Agreement, other than for those provisions that expressly survive termination. If the Closing is within
the aforesaid five (5) day period, then Closing shall be extended to the next business day following the
end of such five (5) day period. If Purchaser elects to proceed to close its purchase of the Garage Unit,
this Agreement shall remain in full force and effect and the purchase contemplated herein, less any
interest taken by eminent domain or condemnation, shall be effected with no adjustment of the Purchase
Price;however,upon the Closing of the purchase, Seller shall assign,transfer and set over to Purchaser all
of the right, title and interest of Seller in and to any awards that have been or that may thereafter be made
for any taking or condemnation respecting the Garage Unit and Seller shall assign, transfer and set over to
Purchaser any sums of insurance money paid for any damage or destruction of the Garage Unit, and shall
set over any insurance awards that may thereafter be made for such damage or destruction of the Garage
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Unit. Notwithstanding the foregoing, Purchaser shall have no right to terminate this Agreement and the
parties shall proceed to Closing hereunder without regard to any casualty respecting the Garage Unit and
without any adjustment to the Purchase Price.
14. REPRESENTATIONS BY SELLER
(a) Seller hereby represents to Purchaser:
(i) that Seller has no knowledge of any pending or threatened litigation regarding the Condominium
Site.
(ii) that, to the best knowledge of Seller and except as provided to the contrary by the Environmental
Reports, the Condominium Site is in compliance with all laws, including without limitation
Environmental Laws (as defined herein), and shall continue to be so through and including the Closing.
"Environmental Laws" shall mean shall mean and include all federal, state, and local environmental,
health, and safety statutes, regulations, ordinances, codes, rules, decrees, and other governmental
restrictions and requirements relating to the existence, treatment, generation, storage, release,
transportation, remediation management,regulation, or disposal of pollutants, water pollutants or process
waste water, oil and gasoline products, or otherwise relating in any way to the environment or any
Hazardous Substance (as defined herein), including, but not limited to, (i) CERCLA; (ii) the Resource
Conservation and Recovery Act of 1976 (42 USC §6901, et seq.); (iii) the Hazardous Materials
Transportation Act(49 USC §1801, et seq.); (iv) the Clean Air Act (42 USC §7401, et seq.); (v) the Safe
Drinking Water Act(USC 21 §§201 and 300 et seq.); (vi) the National Environmental Policy Act of 1969
(42 USC §4321); (vii) the Superfund Amendment and Re-Authorization Act of 1986 (42 USC §9601, et
seq.); (viii) all rules and regulations of the United States Environmental Protection Agency; (ix) all rules
and regulations of any other federal, state or local department, board, or agency, or any other agency or
governmental board or entity having jurisdiction over the Condominium Site, as any of the foregoing
have been, or are hereafter, amended. "Hazardous Substance" shall mean (i) any substance now or
hereafter defined as a "hazardous substance" under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980(42 USC §9601, et seq.)("CERCLA"), (ii)petroleum,petroleum
products,natural gas,natural gas liquids, liquefied natural gas, and synthetic gas,natural gas, and(iii) any
other substance, material or product addressed under any Environmental Law or otherwise deemed to be
hazardous,harmful, dangerous,toxic,or a pollutant.
(iii) that Seller has the right, power and authority to enter into this Agreement,to sell the Garage Unit
in accordance with the terms hereof, to perform its obligations hereunder(including those set forth in the
documents attached hereto) and that Seller has granted no option to any other person to purchase the
Garage Unit or any portion thereof.
All of the foregoing representations shall be reaffirmed by Seller as true and correct as of the
Closing Date and it shall be a condition to Purchaser's obligations hereunder that such representations be
and remain true and correct in all material respects at Closing. If any such representation is not true and
correct in all material respects as of Closing, Purchaser shall have the right, at its option, either to waive
the breach and close without an adjustment of the Purchase Price or to terminate this Agreement by notice
to Seller, in which case neither party shall have any further right, duty, liability or obligation hereunder,
except for matters that by the express terms hereof survive termination of this Agreement.
(b) The provisions of this Section shall survive the Closing for a period of six(6)months.
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15. CLOSING CONDITIONS
(a) Without in any way limiting any other provisions of this Agreement, Purchaser's obligation to
consummate the Closing under this Agreement shall be subject to satisfaction of each of the following
conditions at or before the Closing:
(i) All of Seller's representations and warranties contained herein being true and correct in all
material respects as of the Closing.
(ii) Seller shall not be in default in any material respect, as of the Closing Date, with respect to
Seller's covenants, agreements and undertakings set forth in this Agreement.
(iii) The construction of the Garage Unit shall be Substantially Complete. As used herein "Substantially
Complete"means the date on which the construction of the Garage Unit is substantially complete, as determined by
Seller's architect, and notwithstanding that the Commercial/Residential Unit, or other portions of the Condominium,
may not then be complete. Seller agrees that its additional work relating to construction of the
Commercial/Residential Unit will not materially interfere with use and access to the Garage Unit.
(b) Without in any way limiting any other provisions of this Agreement, the obligations of Seller to
be performed at the Closing shall be subject to satisfaction of the following conditions:
(i) Any and all representations and warranties of Purchaser set forth in this Agreement shall be true,
correct and complete in all material respects as of the Closing Date.
(ii) Purchaser shall not be in default in any material respect, as of the Closing Date, with respect to
Purchaser's covenants, agreements or undertakings set forth in this Agreement.
(iii) Purchaser shall have delivered and paid the Purchase Price to Seller as required by this
Agreement.
(iv) Purchaser shall have executed and delivered the Parking Lease to Seller.
(c) Purchaser shall have the right to waive any condition in its favor set forth in subparagraph 15(a)
above. Seller shall have the right to waive any condition in its favor set forth in subparagraph 15(b)
above. Any waiver of a condition under this Paragraph 15 must be in writing and must refer specifically
to the condition being waived. If the Closing occurs, the conditions in this Paragraph 15 shall be deemed
to have been satisfied unless specified to the contrary in writing, whether or not specifically waived;
provided, however,that neither party shall be released from any obligations which survive the Closing.
(d) If, before the Closing Date, either party becomes aware that any of the representations and
warranties in this Agreement is untrue, incorrect, or incomplete in any material respect, such party shall
give notice to the other party as promptly as practicable.
(e) Seller and Purchaser each hereby agree to use commercially reasonable efforts to cause each of
the conditions precedent to the obligations of the other party to be fully satisfied, performed and
discharged on and as of the Closing Date, except that neither party shall have any obligation to expend
any funds or incur any liabilities or obligations which it would not otherwise be required to spend or incur
under the provisions of this Agreement.
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(f) Should any of the conditions in favor of a party to this Agreement not be satisfied or waived in
writing by such party on or before the Closing Date hereunder, then the party benefiting from such
condition may terminate this Agreement by giving written notice to the other party, whereupon this
Agreement shall be deemed null and void and of no further force or effect with Purchaser and Seller
having no further rights, duties, obligations or liabilities hereunder, except for matters that by the express
terms of this Agreement shall survive termination. If the party benefiting from a condition that has not
been satisfied prior to Closing fails timely to give notice of termination on or before the Closing Date,
such party shall be deemed to have waived the condition at issue. Notwithstanding the foregoing, neither
party shall be entitled to terminate this Agreement as the result of failure of a condition in its favor if
failure of the condition at issue results from such party's breach or default of this Agreement and the
terms and provisions hereof.
16. RESERVED
17. CONDOMINIUM DOCUMENTATION
(a) Seller and Purchaser acknowledge and agree that, to achieve the intended separate ownership of
the Garage Unit, Commercial/Residential Unit (with legal title thereto properly vested in each of Seller
and Purchaser, as appropriate), it is necessary that the Condominium Site be converted to a condominium
form of ownership pursuant to the applicable Nebraska Condominium Act (herein, the "Real Property
Law"), and Seller and Purchaser agree that Seller, at Seller's sole cost and expense shall create the
Condominium pursuant to a properly recorded and filed Master Deed satisfying applicable requirements
of the Real Property Law and in the form of the documentation attached to the Redevelopment Agreement
as Exhibit "E" and by this reference made a part hereof (or in such other form as may be mutually
acceptable to Seller and Purchaser), all requisite plans (including "as-built" plans) and plats for the
Condominium likewise completed in form mutually approved by the parties and properly filed, together
with all organizational documents (and the filing thereof where applicable) to form the not-for-profit
corporation to act as the association referenced in the condominium declaration (all such materials being
herein sometimes collectively referred to as the "Condominium Documentation"). The Condominium
so created is to include two separate units (each a"Unit" and, collectively, the "Units") comprised of(x)
the Garage Unit and (y) the Commercial/Residential Unit located above the Garage Unit and shown on
the plan attached Exhibit "E" to the Redevelopment Agreement (the "Commercial/Residential Unit"),
all as more fully described in the Condominium Documentation.
18. RESERVED
19. LIKE-KIND EXCHANGE
Purchaser, at Seller's request, shall cooperate with Seller in structuring this transaction as a tax-
deferred exchange pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended.
Accordingly, in the event Seller so elects to pursue a like-kind exchange: (A) Seller (or an affiliate of
Seller to whom this Agreement may be assigned) may hereafter execute and enter into an exchange
agreement ("Seller's Exchange Agreement") and/or a trust agreement ("Seller's Trust Agreement"),
which pertain to the disposition by Seller or such affiliate of Seller of the Garage Unit, and the acquisition
by Seller or such affiliate of Seller of replacement or exchange property, in transactions that will qualify
as a tax deferred exchange of like-kind property under said Section 1031 of the Internal Revenue Code of
1986, as amended; (B) Seller or such affiliate of Seller may sell the Garage Unit under Seller's Exchange
Agreement or Seller's Trust Agreement; and(C) in connection therewith,the right to this Agreement may
be assigned to another entity, as exchangor, pursuant to an assignment agreement ("Seller's Exchange
Assignment"). Seller and Purchaser shall cooperate with each other, or their affiliates, as shall be
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reasonably requested in consummating the sale of the Garage Unit in a manner that will qualify as such a
tax deferred exchange of like-kind property, including, without limitation, execution of Seller's Exchange
Assignment as and when requested and conveying the Garage Unit in accordance with the instructions set
forth therein; provided, however, that Purchaser shall not be required to incur any additional cost or
expense or to assume or incur any liability or potential liability in connection therewith. Further, and
without limiting the foregoing, Purchaser shall not be liable for the effectiveness of Seller's efforts to
accomplish a tax-deferred exchange.
20. MISCELLANEOUS
(a) Execution by Both Parties; Effective Date; Time Periods. This Agreement shall not become
effective and binding until fully executed by both Purchaser and Seller,but upon such full execution, shall
be deemed effective as of the Effective Date. Whenever a deadline under this Agreement or the last day
for the exercise of any privilege or the discharge of any duty hereunder by either party shall fall upon a
Saturday, Sunday or any United States or State holiday, the party having such privilege or duty shall have
until 11:59 p.m. Central Time on the next succeeding Business Day to exercise such privilege or to
discharge such duty. "Business Days" shall mean each Monday through Friday, excluding United States
and State of Nebraska holidays, and "Business Day" shall mean any one of the days otherwise
comprising Business Days.
(b) Notice. All notices,requests, demands or other communications hereunder shall be in writing and
deemed given when delivered personally,when deposited to be sent via a nationally-recognized overnight
courier keeping receipts of delivery, service prepaid or billed to sender, or on the day said communication
is deposited in the U.S. mail, by registered or certified mail, return receipt requested, postage prepaid.
While notice given by courier service or mail shall be effective when deposited with the courier service or
in the mails, properly addressed and postage paid or shipping charges paid or billed to the sender, all as
aforesaid, the period in which a response to such a notice must be given or taken shall run from the date
of receipt by the addressee. Rejection, refusal to accept delivery or inability to deliver due to changed
address of which no notice has been given shall be deemed receipt by the addressee. All such notices and
communications shall be addressed to the parties hereto at the respective addresses set forth at page 1
hereof, or at such other addresses as either may specify to the other in writing by notice given in
accordance with the provisions hereof. Further, a copy of all notices, demands or requests required or
permitted to be given to Seller pursuant to this Agreement shall also be sent in like manner to Max J.
Burbach, Koley Jessen P.C., L.L.O., 1125 S. 103rd Street, Suite 800, Omaha, Nebraska 68124. For the
purpose of this Agreement, counsel for either Seller or Purchaser may provide notices to the other party
hereto on behalf of such counsel's client, and such notices given by counsel for a party shall be binding
on the receiving party as if such notices had been provided directly by the client of the counsel sending
such notice.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Nebraska.
(d) Assignment. Purchaser shall not have the right to assign this Agreement or any of the rights or
obligations hereunder without obtaining the prior written consent of Seller. Notwithstanding any contrary
provision of this Agreement or any other document entered into in connection herewith, Seller may assign
its rights under this Agreement and any other documentation related to the transactions contemplated
hereby at any time to any joint venture or other entity in which Seller or one or more of the entities
comprising Seller or owned or controlled by such entities and/or one or more of the principals thereof is
or are principals that assumes the obligations of Seller hereunder (the "Assignee"). Upon such
assignment, assumption of the obligations of Seller with respect to the assigned document(s) by the
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Assignee and delivery of a copy of the instrument of assignment and assumption to Purchaser, Seller shall
be altogether released and discharged of further responsibility, liability or obligation under the Agreement
and/or any such other document so assigned and assumed. While such release shall occur automatically
and without further act of the parties upon satisfaction of the foregoing requirements, Purchaser agrees
nevertheless that it will, upon request by Seller or the Assignee, execute and deliver documentation in
confirmation of Seller's release, such agreement to survive Closing under this Agreement..
(e) Successors and Assigns.Except as qualified and limited in(d)hereinabove,this Agreement shall
apply to, inure to the benefit of, and be binding upon and enforceable against the parties hereto and their
respective successors and assigns.
(I) Time. Time is of the essence of this Agreement.
(g) Paragraph Headings; Number and Gender. The headings inserted at the beginning of any
paragraph or subparagraph are for convenience of reference only and shall not limit or otherwise affect or
be used in the construction of any of the terms or provisions hereof. Wherever appropriate in this
Agreement, personal pronouns shall be deemed to include the other genders and the singular to include
the plural.
(h) Possession. Possession of the Garage Unit shall be delivered to Purchaser at Closing, subject to
the terms of the Permitted Exceptions, this Agreement and the Parking Lease.
(i) Entire Agreement; Exhibits; Amendment. This Agreement(inclusive of the exhibits hereto, all
of which are incorporated by this reference as fully as if set forth herein in their entirety) contains the
entire agreement between Seller and Purchaser respecting the subject matter hereof, and all the terms,
promises, covenants, conditions, and representations made or entered into by and between Seller and
Purchaser respecting the subject transaction are set forth herein or will be reflected in documentation
hereinafter negotiated as contemplated herein. Accordingly, this Agreement supersedes all prior
discussions and agreements, whether written or oral, between Seller and Purchaser with respect to the
Garage Unit and all other matters contained herein and constitutes the sole and entire agreement between
Seller and Purchaser with respect thereto.
(j) Severability; Judicial Construction. This Agreement is intended to be performed in accordance
with and only to the extent permitted by all applicable laws, ordinances, rules and regulations. If any of
the provisions of this Agreement or the application thereof to any person or circumstance shall for any
reason or to any extent be invalid or unenforceable, then the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be affected thereby,but shall be
enforced to the greatest extent permitted by law. Should any provision of this Agreement require judicial
interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party who itself or through its
agent prepared the same, it being agreed that the agents of all parties have participated in the preparation
hereof.
(k) Counterparts This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which, collectively, shall constitute one and the same instrument.
[Remainder of page intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under proper
authority the day and year first above written.
SELLER:
BLACKSTONE PARKING, LLC, a
Nebraska limited liability company
By:
Name: 1-hd m p , L e
7
Title: f iq l 7c2
PURCHASER:
ATTEST: CITY OF OMAHA
q- 'Z
CITY CLERK OF T CITY OF OMAHA MAYOR OF THE CITY OF OMAHA
DATE: Apr`, 1 -9- 7,6727 , DATE:
APPROVED AS TO FORM:
ASSISTANT CITY ATTORNEY DATE
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EXHIBITS
The following Exhibits are attached to this Agreement and made a part hereof by this reference:
EXHIBIT "A" --- Description of Condominium Site
EXHIBIT "B" --- Description of Garage Unit
EXHIBIT "C" --- Survey(if completed at time of execution)
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EXHIBIT"A"
Description of Condominium Site
Lot 1, Blackstone-Cottonwood Place, a subdivision as surveyed,platted and recorded in Douglas County,
Nebraska.
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EXHIBIT"B"
Description of Garage Unit
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EXHIBIT"C"
Survey(if completed at time of execution)_
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EXHIBIT G
PARKING LEASE AGREEMENT
THIS PARKING LEASE AGREEMENT (this "Agreement") is entered into as of
, 2022,between the CITY OF OMAHA, NEBRASKA ("City") and BLACKSTONE
PARKING,LLC, a Nebraska limited liability company, or assigns("Blackstone").
RECITALS
This Agreement is made with respect to the following facts:
A. Whereas, Blackstone is constructing a single building bounded by Farnam Street on the
North, 37th Street on the East, Harney Street on the South, and 38`h Street on the West,with residential and
commercial space, as well as a parking garage (i.e., the "Garage Unit", as defined in the Redevelopment
Agreement dated , 2022, by and among the City and Blackstone (the
"Redevelopment Agreement")), which Garage Unit will be part of the building (collectively, the
"Project").
B. Pursuant to a Redevelopment Agreement, the City has agreed to lease to Blackstone, and
Blackstone has agreed to lease from the City, 72 parking spaces (the "Parking Spaces") in the Garage
Unit to be constructed by Blackstone and owned operated by the City pursuant to the terms of the
Redevelopment Agreement, and as provided for herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are acknowledged,the City and Blackstone agree as follows:
ARTICLE I
PARKING SPACES
The City, for and in consideration of the rents herein reserved and of the covenants and
agreements contained herein on the part of Blackstone to be performed, leases to Blackstone and
Blackstone leases from the City, 72 Parking Spaces in the Garage Unit on an exclusive basis for use 24
hours per day, 7 days per week (with any excess parking spaces above said 72 spaces being reserved for
the general public), together with the right of ingress to and egress from the Parking Spaces over and
across such portions of the Garage Unit as reasonably may be designated by the City from time to time.
Blackstone may designate and redesignate, from time to time, the location of said 72 Parking Spaces
within the Garage Unit by written notice to City, as agreed to and approved in writing by the City.
Blackstone may, at its option, designate by signage the Parking Spaces leased hereunder as reserved
exclusively for use by Blackstone or its customers, tenants, licensees or invitees. If any of the Parking
Spaces are unavailable for use because the Garage Unit has been damaged or destroyed or because of the
need for maintenance, repairs or alterations, and other parking spaces in other City parking facilities are
unusable for parking, the City will undertake all reasonable efforts make such other spaces available to
serve as Blackstone's Parking Spaces at the currently existing rate that the City is charging for similarly
situated parking garages.
ARTICLE XVI
TERM
4883-6734-4131.8
Section XVI.1 Commencement of Term. The basic term of this Agreement (the "Basic Term") will
commence on the date the Garage Unit is substantially completed(the"Commencement Date") and ready
for use by Blackstone and their invitees, guests, and tenants ("Authorized Users"), and terminate on a date
which is the last day of the twelfth (12th) full calendar month after the Commencement Date (the
"Expiration Date").
Section XVI.2 Options to Extend.
(a) Blackstone may, provided there is no existing uncured Event of Default, extend
the Term for unlimited successive one (1) year tejuis (each, an "Extension Term") commencing on the
first day following the expiration of the Basic Term and each successive Extension Term.
(b) To exercise each option described in Section 2.2(a), Blackstone must deliver to
the City written notice of the exercise thereof not later than thirty (30) days before the expiration of the
then-current Term;provided,however, that in the event Blackstone fails to deliver such notice of exercise
within said time period, this Lease shall nonetheless continue in effect until City provides not less than
thirty(30) days prior notice of its intention to terminate this Lease.
ARTICLE XVII
MONTHLY RENT
Section XVII.1 Monthly Rent. Commencing on the Commencement Date and continuing through the
Term, Blackstone will pay monthly rent("Monthly Rent") for the Parking Spaces. The Monthly Rent for
years one (1) through five (5) of the Basic Term and Extension Terms, if applicable, shall equal $200.00
per stall per month ("Base Rent"). Thereafter, on the fifth (5th) anniversary of the Commencement Date
and each successive five (5) year anniversary of the Commencement Date, the Monthly Rent shall be
adjusted to the fair market rental rate then in effect for garage parking in the Market Area (as hereafter
defined). For purposes hereof, the "Market Area" shall mean the Blackstone District, extending from 36th
Street to 42°d Street along Farnam Street,Omaha.
Section XVII.2 Payment. Monthly Rent will be paid in advance on or before the Commencement Date
and on or before the first day of each successive calendar month during the Term. If the Commencement
Date is a day other than the first day of the calendar month, Monthly Rent will be appropriately prorated.
Monthly Rent will be paid to the City without notice or demand, in lawful money of the United States of
America, at the office of the Omaha City Finance Department or to such other person or at such other
place as the City may from time to time designate in writing.
Section XVII.3 Interest on Late Payments. All Monthly Rent, if not paid when due, will bear interest
from the due date until paid at the lesser of(a) the highest interest rate permitted by law, or(b) the then-
current"Base Rate" (as defined below) plus 2%,provided, however, that no such interest will be payable
with respect to any payment of Monthly Rent that is received by the City within twenty (20) days after
receipt by Blackstone of notice of rental delinquency from the City. The "Base Rate" is the rate of
interest from time to time established by the State Court Administrator pursuant to Neb. Rev. Stat. § 45-
103 (Reissue 1993).
ARTICLE XVIII
OPERATING EXPENSES
The City will operate and pay, all costs of management, operation and maintenance of the Garage
Unit, including without limitation, the following costs: real and personal property taxes and assessments
allocable to the Garage Unit (and any tax levied in whole or in part in lieu of or in addition to real
4883-6734-4131.8
property taxes), wages, salaries and compensation of employees, costs of consulting, accounting, legal,
janitorial, maintenance, guard and other services, management fees, costs of power, water, waste disposal
and other utilities, materials and supplies, costs of maintenance and repairs, condominium dues or
assessments, owner association dues or fees, costs of insurance obtained with respect to the Garage Unit,
ground lease payments, depreciation on personal property and equipment, any general assessments,
special assessments, or other fees or charges assessed by any entity authorized to operate, maintain, and
repair the Garage Unit.
ARTICLE XIX
CITY'S INSURANCE
The City will carry property insurance and is self-insured for liability.
ARTICLE XX
USE
Section XX.1 Entry System; Reserved Spaces; and Authorized Users. The City will construct and
at all times maintain a card entry system for ingress to and egress from the Garage Unit. City will issue
cards to the Authorized Users needing the cards for the spaces. If a card is lost or stolen,Blackstone may
notify the City and the City will promptly cancel the lost or stolen card. There will be a$10.00 charge for
each card issued to Blackstone.
(a) The City may, at is discretion, number and identify certain Parking Spaces as
"reserved", provided, that, such reservation shall only apply to Parking Spaces that have not been leased
to Blackstone pursuant to this Lease. The City will not be liable for use of any of the Parking Spaces by
persons other than Authorized Users so long as the City makes reasonable efforts to prevent such usage
(including the immediate towing of unauthorized vehicles parked in the Parking Spaces upon notification
by Blackstone).
Section XX.2 Manner of Use and Access. Blackstone and Authorized Users will use the Parking
Spaces only for parking of passenger model vehicles, small vans, and small trucks. Blackstone and
Authorized Users will use the Parking Spaces in a safe, careful and proper manner, in compliance with
any present or future governmental or quasi-governmental laws,rules,regulations or orders.
ARTICLE XXI
MAINTENANCE AND ALTERATIONS
Section XXI.1 Operation and Maintenance of Garage Unit. The City, at its expense, and through
such agents, representatives or independent contractors as it may designate, will operate, maintain and
keep the Garage Unit in good condition and repair, reasonable wear and tear excepted, in such manner as
will ensure Blackstone and any Authorized Users the continued availability, use and enjoyment of the
Parking Spaces during the Term. Such maintenance includes, but is not limited to, keeping the Garage
Unit reasonably clean, free of debris, ice and snow, and appropriately sanding, salting, painting and
striping the Garage Unit and Parking Spaces. The City will have the right to enter upon or restrict access
to the Parking Spaces or any of them for purposes of performing the City's obligations under this Section
7.1,provided that the City will use its best efforts in connection with such entry or restriction of access to
minimize any disruption to any Authorized User's use of the Parking Spaces. Blackstone will be entitled
to abatement of Monthly Rent on a prorata basis during the period of unavailability of any Parking Space
unless an alternate parking space is made available in the Garage Unit or in the vicinity of the Garage
Unit.
4883-6734-4131.8
Section XXI.2 Alterations and Improvements. The City may, from time to time, make additions,
improvements and alterations to the Garage Unit; provided, however, that any addition, alteration, or
improvement(other than as necessary to operate and maintain the Garage Unit as provided in Section 7.1) •
which materially impairs access to or use of the Parking Spaces, either temporarily or permanently, will
be made only with reasonable prior notice to and written approval by Blackstone. Notwithstanding
anything contain herein, in no event shall the City make any changes to the Garage Unit that may reduce
the 72 Parking Spaces that have been leased to Blackstone. If any such addition, improvement or
alteration to the Garage Unit causes Parking Spaces to be unavailable for use and alternate spaces are not
available in the Garage Unit,Monthly Rent will abate on a prorata basis.
ARTICLE XXII
CASUALTY
If the Garage Unit is damaged or destroyed in whole or in part by any casualty, the City will
promptly commence and diligently complete any necessary repairs or restoration. During any period
when any Parking Spaces are not available for use,Monthly Rent will abate on a prorata basis.
ARTICLE XXIII
ASSIGNMENT AND SUBLETTING
Blackstone may assign this Agreement to any other party. If Blackstone requests the City to do
so, the City and Blackstone will amend this Agreement to reflect the Assignment or to reduce the number
of Parking Spaces leased to Blackstone and the City will enter into a separate Parking Lease Agreement
with such third party in substantially the form of this Agreement. Blackstone shall have the right, without
the written consent of the City, but with notice to the City, to collaterally assign its interests in this Lease
to a third party lender (a "Lender"), who is providing financing to Blackstone, as additional security for
such Lender's security interest in the real property owned by Blackstone that is a part of the building that
surrounds the Garage Unit.
ARTICLE XXIV
QUIET ENJOYMENT
So long as Blackstone pays Monthly Rent and observes and performs all the terms, covenants and
conditions of this Agreement on Blackstone' part to be observed and performed, Blackstone may
peaceably and quietly enjoy the Parking Spaces subject to the terms and conditions of this Agreement.
ARTICLE XXV
DEFAULT
Section XXV.1 Events of Default. The following events are referred to collectively as "Events of
Default,"or individually, as an"Event of Default":
(a) Blackstone defaults in the due and punctual payment of Monthly Rent, and such
default continues for thirty(30) days after written notice from the City;
(b) This Agreement or the Parking Spaces are taken upon execution or by other
process of law directed against either party (provided, that, this sentence shall not relate to any action
commenced by or on behalf of the City), or are subject to any attachment at the instance of any claimant
against either party and such attachment is not discharged with sixty (60) days after its levy, and the party
subject to such execution or attachment is not actively seeking such discharge;
4883-6734-4131.8
(c) Either party files a petition in bankruptcy or insolvency, or a petition for
reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act
of any state, or admits the material allegations of any such petition by answer or otherwise, or is
dissolved, or makes an assignment for the benefit of creditors;
(d) Involuntary proceedings under any such bankruptcy law or insolvency act or for
the dissolution of either party are instituted against such party or a receiver or trustee is appointed for all
or substantially all of the property of such party, and such proceeding is not dismissed or such
receivership or trusteeship vacated within sixty (60) days after such institution or appointment, and such
party is not actively pursuing the vacation of such action; or
(e) Either party breaches any of its other obligations under this Agreement, and such
breach continues for thirty (30) days after notice by the non-breaching party to the breaching party or, if
such default cannot reasonably be cured within such 30-day period, the breaching party fails to commence
curative efforts within such 30-day period or thereafter fails to proceed in good faith to cure such breach
within a reasonable time, but in no event more than an additional one-hundred eighty (180) days without
the City's further written consent,not to be unreasonable withheld, conditioned or delayed.
Notwithstanding anything contained in this Section 11.1, the City acknowledges that any Lender of
Blackstone shall have thirty(30) days beyond any cure time period contained herein to cure any Event of
Default by Blackstone, and any such Lender's foreclosure of Blackstone' rights and interest in this Lease
shall not constitute an Event of Default by Blackstone, provided, that, such Lender continues to pay
Monthly Rent, and otherwise complies with all terms and provisions of this Lease. The City agrees to
work in good faith with Blackstone and any Lender to negotiate and execute any commercially reasonable
agreements to further memorialize the intent of this paragraph.
Section XXV.2 Remedies. If an Event of Default occurs, then the non-defaulting party has the right, at
its election,to:
(a) Give the defaulting party written notice of termination of this Agreement, in
which case Blackstone' right to possession of the Parking Spaces will cease and this Agreement will be
terminated thirty(30) days from the first day of the calendar month following the date of such notice and
the parties shall have no further rights or obligation under this Agreement; or
(b) With respect to Blackstone's default, the City may after demand and notice,
expel Blackstone and those claiming through or under Blackstone, except for any Authorized Users who
maintain a valid sublease agreement with Blackstone for such Parking Spaces. Should the City expel
Blackstone pursuant to legal proceedings or pursuant to any notice provided by law, the City may, from
time to time, without terminating this Agreement, collect and receive payments from the Authorized
Users for use of all or any portion of the Parking Spaces. The expulsion of Blackstone by the City shall
not be construed as an election on the City's part to terminate this Agreement unless a written notice of
such intention is given to Blackstone and the Authorized Users. No notice from the City under this
subsection or under a forcible or unlawful entry and detainer statute or similar law will constitute an
election by the City to terminate this Agreement unless such notice specifically so states. The City
reserves the right following any such expulsion to exercise its right to terminate this Agreement by giving
Blackstone written notice in accordance with subsection(a), in which event this Agreement will terminate
as specified in such notice, subject to the rights of the Authorized Users.
(c) With respect to the City's default,whether in the performance of the City's duties
under Article 7 or otherwise, Blackstone may provide written notice to the City specifying the nature of
such default, and, if the City fails to cure such default within thirty (30) days following receipt of such
4883-6734-4131.8
written notice, Blackstone may cure such default and offset the cost and expense of such cure against on
or more future installments of Monthly Rent.
Section XXV.3 Cumulative Remedies. Unless otherwise provided in this Agreement, each right and
remedy provided in this Agreement is cumulative and in addition to every other right or remedy provided
in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by either party of any one or more of such rights or remedies will
not preclude the simultaneous or later exercise by such party of any or all other such rights or remedies.
ARTICLE XXVI
MISCELLANEOUS
Section XXVI.1 Time of the Essence. Time is of the essence of each and every provision of this
Agreement.
Section XXVI.2No Waiver. The waiver by either party of any agreement, condition or provision
contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or
any other agreement, condition or provision contained in this Agreement, nor will any custom or practice
which may occur between the parties in the administration of the terms of this Agreement be construed to
waive or to lessen the right of either party to insist upon the performance by the other party in strict
accordance with the terms of this Agreement.
Section XXVI.3Estoppel Certificate. At any time and from time to time but within ten (10) business
days after written request made by the City or Blackstone to the other party to this Agreement, such other
party will execute, acknowledge and deliver to the requesting party a certificate certifying (a) that this
Agreement is unmodified and in full force and effect or, if there have been modifications, that this
Agreement is in full force and effect, as modified, and stating the date and nature of each modification,
(b)the date, if any,to which Monthly Rent payable under this Agreement has been paid, (c)that no notice
has been delivered to such party of any default by such party which has not been cured, except as to
defaults specified in such certificate, (d) that to the other party's actual knowledge, no Event of Default
then exists under this Agreement and that no event has occurred which, with the giving of notice or
passing of time, or both, could result in an Event of Default, except as to Events of Default or other events
specified in such certificate, and (e) such other factual matters with respect to this Agreement as may be
reasonably requested by such requesting party. Any such certificate may be relied upon by any
prospective purchaser of, or existing or prospective mortgagee or beneficiary under any deed of trust
encumbering,the Garage Unit or any real estate owned, leased, or used by Blackstone.
Section XXVI.4Alternative Dispute Resolution. In the event of any dispute between the City and
Blackstone arising out of this Agreement, the relationship of the City and Blackstone, Blackstone' use
and occupancy of the Parking Spaces,or any related matter,the City and Blackstone agree to cooperate in
the exploration of alternative forms of dispute resolution, such as mediation and arbitration, provided,
however, that this will not limit: (a) either party's right to terminate this Agreement if an Event of
Default described in subsections 11.1(c) or 11.1(d) occurs, (b) the City's right to seek an order granting
possession of the Parking Spaces to the City upon the occurrence of any other Event of Default, or(c)the
right of either the City or Blackstone to seek emergency injunctive relief in situations in which irreparable
harm might otherwise result.
Section XXVI.5Notices. All notices, demands, requests or other communications to be sent by one party
to the other hereunder or required by law will be in writing and will be deemed to have been validly given
or served by delivery of the same in person to the intended addressee, or by depositing the same with
Federal Express or another reputable private courier service for next business day delivery to the intended
4883-6734-4131.8
addressee at its address set forth below, or by depositing the same in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to the intended addressee at is
address set forth below:
City: City of Omaha
Omaha City Attorney
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha,NE 68183
Blackstone: Blackstone Parking, LLC
Attn: Tom McLeay
3814 Farnam Street, Suite 201
Omaha,NE 68131
All notices, demands and requests are effective upon receipt. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given as required will be deemed
to be receipt of the notice, demand or request sent. By giving to the other party at least fifteen (15) days'
prior notice,the parties will have the right to change their addresses.
Section XXVI.6Severability. If any provision of this Agreement proves to be illegal, invalid or
unenforceable, the remainder of this Agreement will not be affected, and in lieu of each provision of this
Agreement that is illegal, invalid or unenforceable, a provision will be added as a part of this Agreement
as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
Section XXVI.7Written Amendment Required. No amendment, alteration, modification or addition to
this Agreement will be valid or binding unless expressed in writing and signed by the party or parties to
be bound.
Section XXVI.8Indemnification. The City agrees to indemnify, defend, and hold harmless Blackstone
and any Authorized User from and against any loss, liability, damage, cost, or expense resulting from the
City's gross negligence or failure to properly maintain the Garage Unit and Parking Spaces,or perform its
other obligations under this Agreement.
Section XXVI.9Cooperation in Design Phase. The City and Blackstone agree to cooperate and consult
with each other in connection with the design, layout, and function of the Garage Unit so that the Garage
Unit will be reasonably satisfactory to the City and Blackstone.
Section XXVI.10 Entire Agreement. This Agreement contains the entire agreement between the
City and Blackstone with respect to the subject matter of this Agreement, and may be amended only by
subsequent written agreement.
Section XXVI.11 Captions. The captions of the various Articles and Sections of this Agreement
are for convenience only and do not necessarily define, limit, describe or construe the contents of such
Articles or Sections.
Section XXVI.12 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nebraska.
4883-6734-4131.8
Section XXVI.13 Binding Effect. The covenants, conditions and agreements contained in this
Agreement will bind and inure to the benefit of the City and Blackstone and their respective successors
and assigns.
[SIGNATURE PAGE FOLLOWS]
li
4883-6734-4131.8
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
CITY OF OMAHA,
Bye
Title: Mayor of the City of Omaha
Date: j'r-pY �- Pig
Attest:
By:
City Clerk
Approved as to Form:
By: `//7 /Zd ZZ
BLACKSTONE PARKING, LLC
By:
Name: /7m ea A L
Title: Aq7 efs.
4883-6734-4131.8
EXHIBIT H
RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL
THIS RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL (this "Agreement") is
entered into as of the day of , 20 , by and between , a
Nebraska limited liability company ("Grantee"), whose address for purposes of this Agreement is 3814
Farnam Street, Omaha, Nebraska 68131, attn.: Thomas McLeay, and City of Omaha, Nebraska, a
municipal corporation ("Grantor"), whose address for purposes of this Agreement is attn.: David
Fanslau, Planning Director, City Planning Department, Omaha/Douglas Civic Center, 1819 Farnam
Street, Suite 1100 and Legal Service c/o City Clerk, Omaha/Douglas Civic Center, 1819 Farnam Street,
Omaha,Nebraska 68183.
RECITALS:
A. Grantor owns Unit , Blackstone East Mixed Use Building Condominium Property Regime
located in Omaha, Douglas County, Nebraska, which is comprised of a parking structure containing
approximately 385 parking stalls within Unit as further legally described on the attached Exhibit"A"
(the"Garage Unit"); and
B. Grantee desires to obtain a right of first offer and right of first refusal to purchase the Garage
Unit, and Grantor is willing to grant to Grantee such right of first offer and right of first refusal on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the matters recited herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and
Grantee hereby agree as follows:
1. Rights to the Garage Unit. Grantor hereby grants to Grantee a right of first offer and right of first
refusal to purchase all or any portion of the Garage Unit (together with all tenements, hereditaments and
appurtenances located thereon).
(1) Right of First Offer. In the event Grantor decides to offer the Garage Unit for sale to
third parties (an"Offer to Sell"),it shall first offer in writing to sell the Garage Unit to Grantee at the price
and on the terms of such Offer to Sell. Grantee shall have the first right to accept such Offer to Sell for a
period of twenty(20) days after Grantee's receipt of such Offer to Sell. If Grantee declines to accept such
Offer to Sell within such twenty(20) day period, Grantor may thereafter sell the Parking Unit which were
the subject of such Offer to Sell to any third-party at the same price and on the same terms stated in such
Offer to Sell,provided that such third-party sale closes on such terms within ninety(90)days after the date
on which Grantee declines such Offer to Sell. If not closed within such ninety(90) day period and Grantor
still intends to sell the Garage Unit to such third-party, Grantor must re-offer the Garage Unit for sale to
Grantee in the manner provided herein. This right of first offer shall continue as to any portion of the
Garage Unit that is not so sold. Each attempt by Grantor to sell the Garage Unit (or any part thereof),
including without limitation any subsequent attempts by Grantor to Offer to Sell the Garage Unit which
were the subject of a prior Offer to Sell(or the continuation of any prior offer to sell)after the expiration of
such ninety(90)day period,shall give rise to Grantee's rights to exercise the right of first offer with respect
to such Garage Unit as set forth in this Section 2(a). The right of first offer set forth in this Section 2(a)is
in addition to, and not in limitation of, the right of first refusal set forth in Section 2(b) below. To the
extent that the offer does not include the whole Garage Unit and the sale closes, this Right of First Offer
shall continue as to the Garage Unit remaining unsold.
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4883-6734-4131.8
(m) Right of First Refusal. In the event that Grantor receives a bona fide offer (a "Third-
Party Offer") from any third-party (the "Offeror") to purchase the Garage Unit at any time during the
term of this Agreement, Grantor shall first offer in writing to sell the Garage Unit to the Grantee at the
same price and upon the same terms and conditions as such Third-Party Offer. Grantee shall have the first
right to accept such offer to sell for a period of twenty(20)days after Grantee's receipt of such offer to sell.
If Grantee declines to accept such offer to sell within such twenty(60) day period, Grantor may thereafter
sell the Garage Unit which were the subject of such Third-Party Offer to the Offeror, but only at the same
price and upon the same terms and conditions of Grantor still intends to sell the Garage Unit pursuant to
such Third-Party Offer, Grantor must re-offer the Garage Unit for sale to Grantee in the manner provided
herein. This right of first refusal shall continue as to any portion of the Garage Unit that are not so sold.
Each Third-Party Offer received by Grantor (including offers from the same Offeror on varying terms),
regardless of when received, shall give rise to Grantee's rights to exercise the right of first refusal with
respect to such Garage Unit as set forth in this Section 2(b). The right of first refusal set forth in this
Section 2(b)is in addition to,and not in limitation of,the right of first offer set forth in Section 2(a)above.
(n) Effect of Sale. If Grantor closes the sale of any portion of the Garage Unit pursuant to
and in accordance with Section 2(a) or Section 2(b) above, the right of first offer and right of first refusal
pursuant to such provisions shall terminate with respect to the portion of the Garage Unit sold, but shall
continue in full force and effect with respect to the remaining Garage Unit.
(o) Recordable Agreement. Grantor agrees to execute and acknowledge a memorandum in
recordable form reflecting Grantee's rights under this Agreement,which memorandum may be recorded in
the official real estate records in the counties in which the Garage Unit are located.
21. Term of Agreement; Options to Extend. The term of this Agreement shall be for twenty(20)years
from the date of this Agreement.
22. Representations and Covenants of Grantor. Grantor represents and warrants to Grantee and agrees
with Grantee that Grantor is a Nebraska municipal corporation in existence and good standing under the laws of the
State of Nebraska, and is duly authorized by all necessary actions to execute and deliver this Agreement and carry
out its terms.
23. Notice of Defaults by Grantor; Certain Rights to Cure. In the event that Grantor fails to perform
any of its obligations hereunder, Grantee shall have all rights and remedies as provided for at law or in equity,
including,but not limited to injunctive relief and specific performance.
24. Miscellaneous.
(a) Entire Agreement; Binding Effect; Severability. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements, oral or written with respect to the
matters addressed herein. This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. If any severable provision of this Agreement is held to
be invalid or unenforceable by any judgment of a court of competent jurisdiction, the remainder of this
Agreement shall not be affected by such judgment, and the Agreement shall be carried out as nearly as
possible according to its original terms and intent.
(b) Notice. Any notice, demand or other communication required or permitted by any
provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes
when delivered in person or sent by facsimile transmission (with telephone confirmation of receipt),
overnight courier or registered or certified mail, return receipt requested, all postage and other charges
prepaid,to the address for such party as set forth on the first page hereof,or at such other address as may be
designated by notice pursuant to this paragraph from such party to the other parties.
83
4883-6734-4131.8
(c) Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nebraska. This Agreement is made and entered into in Omaha,
Douglas County,Nebraska and is being performed in Douglas County. The Parties hereby agree that any
action to enforce the terms of this Agreement, or for any other remedy arising out of this Agreement shall
be brought solely in a Douglas County state court or federal court in the State of Nebraska,and in no other
court, and each Party specifically acknowledges and submits to the personal jurisdiction of said court, and
waives as to any such court any defense of inconvenient forum or improper venue.
(d) Captions. The captions appearing herein are for the convenience of the parties only and
shall not be construed to affect the meaning of the provisions of this Agreement.
(e) Amendment. This Agreement may be amended, modified, superseded or cancelled, and
any of the terms, provisions, covenants, representations, warranties or conditions hereof may be waived,
only by a written instrument executed by the parties hereto or,in the case of a waiver,by the party waiving
compliance.
(fl Waiver. The failure to enforce or to require the performance at any time of any of the
provisions of this Agreement shall in no way be construed to be a waiver of such provisions and shall not
affect either the validity of this Agreement or any part hereof or the right of any party thereafter to enforce
each and every provision in accordance with the terms of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more counterparts,all of which
shall be considered one and the same Agreement. This Agreement shall become effective when one or
more counterparts shall have been signed by each of the parties and delivered to the other parties.
(h) Specific Performance. In the event of a breach of this Agreement, the parties
acknowledge and agree that each of them shall, in addition to any other remedies available at law or in
equity, have the right to seek specific performance by the other parties of their respective obligations
hereunder.
(i) Further Actions. At the request of Grantee,Grantor shall deliver such further instruments
of transfer and take all reasonable action as may be necessary or appropriate to effectuate this Agreement
and the transactions contemplated hereby.
(j) No Third-party Beneficiary; No Partnership or Joint Venture. This Agreement is for the
sole benefit of the parties hereto, and their respective successors and permitted assigns, and nothing herein,
express or implied,is intended to or shall confer upon any other person any legal or equitable right,benefit
or remedy of any nature whatsoever under or by reason of this Agreement. The relationship between
Grantee and Grantor established hereunder shall be that of Grantee and Grantor only, and this Agreement
shall not be construed to establish any partnership,joint venture or other arrangement between Grantee and
Grantor.
(k) Assignability. Grantee may assign its rights and obligations under this Agreement to any
entity which controls, is controlled by, or is under common control with, Grantee, without the consent of
Grantor. Other than the assignment referred to in the forgoing sentence,no party hereto shall have the right
to assign their respective rights or obligations under this Agreement without the prior written consent of the
other parties.
[SIGNATURE PAGE TO FOLLOW]
84
4883-6734-4131.8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
GRANTOR:
ATTEST: BY:
City Clerk, City of Omaha Mayor, City of Omaha
APPROVED AS TO FORM:
ASSISTANT CITY ATTORNEY DATE
GRANTEE:
c4540, ill Pc /mil ci l ,LLC
a l ebraska limited liability it y co pany
By:
Name: + 1Ilet A i-v6e.eir
Its: fitqfRet • -
85
4883-6734-4131.8
EXHIBIT "A"
LEGAL DESCRIPTION
Lot 1, Blackstone-Cottonwood Place, a subdivision as surveyed,platted and recorded in Douglas
County,Nebraska.
I,I
86
4883-6734-4131.8
EXHIBIT "B"
MEMORANDUM OF AGREEMENT
MEMORANDUM OF RIGHT OF FIRST OFFER
AND RIGHT OF FIRST REFUSAL
THIS MEMORANDUM OF RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL
(this "Memorandum ") is made and entered into this day of , 20 ,by and
between , a Nebraska limited liability company("Grantee"), whose
address for purposes of this Agreement is 3814 Farnam Street, Omaha,Nebraska 68131, attn.:
Thomas McLeay, and City of Omaha,Nebraska, a municipal corporation ("Grantor"), whose
address for purposes of this Agreement is attn.: David Fanslau, Planning Director, City Planning
Department, Omaha/Douglas Civic Center, 1819 Farnam Street, Suite 1100 and Legal Service
do City Clerk, Omaha/Douglas Civic Center, 1819 Farnam Street, Omaha,Nebraska 68183.
WITNESSETH:
The parties hereto have entered into an Right of First Offer and Right of First Refusal
dated as of , 20 (the "Agreement"), wherein, among other matters, Grantor has
granted to Grantee a right of first refusal and right of first offer of the real property and
improvements thereon described as:
Lot 1,Blackstone-Cottonwood Place, a subdivision as surveyed,platted and recorded in
Douglas County,Nebraska. (including all or any part thereof, the "Garage Unit").
Said rights provide Grantee with: (a)the first right to purchase the Garage Unit from
Grantor in the event Owner receives any bona fide offers to purchase the Garage Unit during the
term of the right of first refusal, and(b)the first right to purchase the Garage Unit from Grantor
in the event that Owner desires to offer the Garage Unit for sale, all as more specifically
provided for in the Agreement. The rights described herein are effective from the date of the
Agreement until , 20 . In the event of any inconsistency between the terms and
conditions of the Agreement and of this Memorandum, the terms of the Agreement shall in all
respects govern and control.
[SIGNATURE PAGES TO FOLLOW]
87
4883-6734-4131.8
IN WITNESS WHEREOF, this Memorandum has been executed the day and year first above
written.
GRANTOR:
CITY OF OMAHA, a Municipal Corporation
ATTEST: BY:
47 i / z1
City Clerk, City of Omaha Mayor, City of Omaha
APPROVED AS TO FORM:
(717
ASSISTANT CITY ATTORNEY DATE
STATE OF NEBRASKA ) •
) SS
COUNTY OF DOUGLAS )
On this l3hday of l , 20 2-Z.,before me, a Notary Public in and for said
County, personally came J , Mayor of the City of Omaha,Nebraska,
a Municipal Corporation, to me personally known to be the respective officer of said Municipal
corporation and the identical person whose name is affixed to the foregoing instrument, and
acknowledged the execution thereof to be their respective voluntary act and deed as Mayor and
the voluntary act and deed of said Municipal Corporation.
WITNESS my hand and Notarial Seal the day and year lastabove written.
Notary Seal: GENERALKlI�I NOTARYBERLY StateHOESI of Nebraskaf�G J 'j4(, h JI/(� a
�I ,,,lll��� 1 L
.ed My Comm.Exp.December 14,2025 N ARY PIBLPC
STATE OF NEBRASKA )
) SS
COUNTY OF DOUGLAS )
On this 1411 day of , 20 , before me, a Notary Public in and for said
County, personally came , City Clerk of the City of Omaha,Nebraska, a
Municipal Corporation,to me persona ly known to be the respective officer of said Municipal
corporation and the identical person whose name is affixed to the foregoing instrument, and
acknowledged the execution thereof to be their respective voluntary act and deed as City Clerk
and the voluntary act and deed of said Municipal Corporation.
WITNESS my hand and Notarial Seal the day and year last above written.
88
4883-6734-4131.8
•
Notary Seal: GENERAL NOTARY-State of Nebraska It
KIMBERLY HOESING NO A Y PUBLIC
My Comm.Exp.December 14,2025
89
4883-6734-4131.8
GRANTEE:
A' f 1 7 1Q/l-� , LLC,
a Nebraska limited liability comp ny
By: ��
Name: a
Its: 9 4���. `
STATE OF NEBRASKA )
) SS
COUNTY OF/ DOUGLAS )
,it1,-- /H,, l acknowledged the foregoing Memorandum before me this
L`day of //{it),'/ , 20 Z 1_ Ct.\-4---:d,- 1A.A.: 2,„
GENERALSHERI L.WHITEf �
d1 Notary Public, State of Nebraska
_Y," My Comm,Exp.Apri130,2025 , ` /
My commission expires on T f 30 f.2s- .
90
4883-6734-4131.8
EXHIBIT I
EQUAL OPPORTUNITY CLAUSE
91
4883-6734-4131.8