RES 2023-0722 - Addition of indoor area to Blue Sky Bar & Patio LLC evo� ;.'o y14 STATE OF NEBRASKA
NEBRASKA LIQUOR CONTROL COMMISSION
tie � a Jim Pillen
4 m `r4 -91*a'.; Governor Hobert B.Rupe
ry �;p Executive Director
}N q c-n +ab`'s 301 Centennial Mall South
P.O.Box 95046
Lincoln,Nebraska,68509-5046
Phone(402)471-2571
Fax(402)471-2814 or(402)471-2374
TRS USER 800-833-7352(TTY)
Web Address https://www.lcc.nebraska.gov/
ADDITION LICENSING STAFF: HY 6.20.23
DELETION
CHANGE OF LOCATION
RECONSTRUCTION
TO: OMAHA CITY CLERK
LICENSE #: C-124665
LICENSEE: BLUE SKY BAR & PATIO, LLC
TRADE NAME: BLUE SKY BAR & PATIO
ADDRESS: 10730 PACIFIC ST, STE 10
CITY/COUNTY/ZIP: OMAHA/DOUGLAS/68114
CONTACT PERSON/PHONE #: PHIL SCHAFFART 402.714.7452
CONTACT EMAIL: PHILIPSCHAFFART@GMAIL.COM
REQUEST:ADDITION OF INDOOR AREA APPROX 40 X 90
#9 RES #2023-0722 J U LY 18, 2023
MAKING THE NEW DESCRIPTION:
FIRST FLOOR OF TWO STORY BUILDING APPROX 80 X 180 INCLUDING OUTDOOR AREA APPROX 40 X45,
PICKLEBALL COURTS APPROX 45 X 100 AND AN AREA APPROX 7 X 45 FOR WALK-IN COOLER
1,/ APPROVED
n NO LOCAL RECOMMENDATION
DENIED
ate- 07-19-2023
Clerk's Name: Date:
Kim Lowe Bruce Bailey Harry Hoch
Commissioner Chairman Commissioner
An Equal Opportunity Employer
ADDITION TO LICENSED AREA
RECEIVED
NEBRASKA LIQUOR CONTROL COMMISSION License
301 CENTENNIAL MALL SOUTH Class: Of JUN 1 2 2023
PO BOX 95046
LINCOLN,NE 68509-5046
PHONE: (402)471-2571 License Number: NEBRASKA LIQUOR
FAX: (402)471-2814 CONTROL COMMISSION
EMAIL: Icc.frontdesk(a),nebraska.gov1
WEBSITE: www.lcc.nebraska.gov
Application Requirements:
• Fee of$45.00—You may pay online at www.ne.gov/go/NLCCpayport or include a check made payable
to the Nebraska Liquor Control Commission
• Must include a copy of the lease, deed or purchase agreement showing ownership in the name of the
applicant of area to be added.
• Must include simple hand drawn sketch showing existing licensed area and area to be ADDED, must
include outside dimensions in feet(not square feet), show direction North.
DO NOT SEND BLUE PRINTS, ARCHITECH OR CONSTRUCTION DRAWINGS
• Check with your local governing body for any additional requirements that may be necessary in making
this request for addition
o Rules & Regulations Chapter 2-012.0712.07 Outdoor area shall mean an outdoor area included
in licensed premises,which is used for the service and consumption of alcoholic liquors and
which is contained by a permanent fence,wall or other barrier approved by the Commission and
shall be in compliance with all building and fire, or other applicable local ordinances
LICENSEE NAME 131L e t. SV-'/ e7cu' y P� o LLC
p �j�'
TRADE NAME U (SK Oar r ! Pa 4-; o
PREMISE ADDRESS I 0 hD Pac i c L 1 Sw-be 10
CITY )fr Wick_ ZIP CODE USII Lt COUNTY botAcjl c
CONTACT PERSON 1 1 ( I Sc 1 1 c Y-i--
PHONE NUMBER OF CONTACT PERSON I V 2.
EMAIL ADDRESS OF CONTACT PERSON �� l I � �I �(�U' � rya ( 1 . Ctrs
P
P YMEN .1.1'pT ns— .._.-
i : ..._......I 2300006032
t9' '.
_fitol
1. Will this addition cause the premises to be licensed within 150 feet of a church, school, hospital, home for
indigent persons or for veterans, their wives, and children; OR within 300 feet of a college or university •
campus?
YES X NO
If yes,provide name and address of such institution and where it is located in relation to the premises(Nebraska
Revised Statute 53-177(1)AND PROVIDE FORM 134—CHURCH OR FORM 135—CAMPUS AND
LETTER OF SUPPORT FROM CHURCH OR CAMPUS
2. What is being added? Explain the type of addition that is being requested, i.e. beer garden, adding to
building *if adding an outdoor area permanent fencing is required. Please contact the local governing body
for requirements regarding fencing. �� ioor
9
n� w ,� ,r";"...- '�' °"."`:m'S,r^[454,�:;#�.`7�r,k-',� �^�^�'+a ,Urslh!,'F-fy,J�"`• :m!rt.i
,, +2SCRIPTTON P Nmnm oTou oiko vtro on 'i �,; '
IN THE SPACE PROVIDED BELOW OR ATTACH A DRAWING
SHOW EXISTING LICENSED AREA AND AREA TO BE ADDED
DO NOT SEND BLUEPRINTS,ARCHITECH OR CONSTRUCTION DRAWINGS 1
PROVIDE LENGTH X WIDTH IN FEET(NOT SQUARE FOOTAGE)
INDICATE THE DIRECTION OF NORTH
Building length x width in feet
Is there a basement? Yes No If yes, length x width in feet
Is there an outdoor area? Yes No . If yes, length x width in feet
*If adding an outdoor area permanent fencing is required.Please contact the local governing body for other requirements regarding
fencing
Number of floors of the building
PROVIDE DIAGRAM OF AREA TO BE LICENSED BELOW OR ATTACH SEPARATE SHEET
S diaojaiv
I acknowledge that the premises as added to comply in all respects with the requirements of the act.
Neb Rev Stat§53-129
efi__._.._._.______--
Signature of LI ENSEE cLUT `1 Y
1
Printed Name of LICE SEE
FORM 110
REV 12/8/2022
Page 2 of 2
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PLANNING DEPARTMENT REPORT
DATE: JUNE 20, 2023 DUE DATE: JULY 5,2023
CITY COUNCIL HRG JULY 18,2023
LOCATION: 10730 PACIFIC STREET, SUITE 10
DESCRIPTION: REQ ADDITION OF AN AREA APPROX 40' X 90' TO THE NORTH
APPLICANT: BLUE SKY BAR& PATIO, LLC, DBA "BLUE SKY BAR& PATIO"
REQUESTED LICENSE OR ACTION:_ADDITION TO THEIR PRESENT CLASS "C" LIQUOR
LICENSE LOCATION
NEW LOCATION(X)NEW OWNERSHIP () TYPE OF FACILITY: BAR
THIS REQUEST DOES 0 DOES NOT(X) PERTAIN TO AN OUTSIDE AREA
IF SIDEWALK CAFE: R-O-W-LEASE PERMITS OBTAINED
IF OUTSIDE: OUTSIDE AREA IS FEET FROM THE NEAREST RESIDENCE
THIS PROPERTY IS ( X ) IS NOT ( ) WITHIN OMAHA'S CORPORATE LIMITS
(If not,do not proceed-Notify the City Clerk's Office and return this form)
ANNEXATION DATE: ORDINANCE NO. (Only if within last 24 months)
EXISTING ZONING: CC-MCC EXITING LAND USE: COMMERCIAL
*NAME OF THE NEIGHBORHOOD ASSOCIATION(S) FOR THIS ADDRESS:
N/A
ADJACENT LAND USE AND ZONING:
NORTH: VACANT LOT CC
SOUTH: RESIDENTIAL/OFFICE R1/LO
EAST: COMMERCIAL CC
WEST: COMMERCIAL CC
PARKING STALLS PROVIDED: 100+SHARED LOT
PROPOSED USE DOES(X) DOES NOT( )COMPLY WITH ZONING REGULATIONS
PLUMBING FIXTURES PROVIDED: WOMEN'S 4 TOILET STALLS(1 H/C)
MEN'S 2 URINALS+ 1 H/C TOILET STALL
DATE SUBJECT PROPERTY WAS POSTED: 30 JUNE 2023
(Rule#7) DISTANCE OF PROPOSED LICENSE WITHIN 300 FEET OF ANY CITY PARK: OK
TWISTED CORK
DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: 0'- BISTRO
(State Law) DISTANCE OF PROPOSED LICENSE WITHIN 150 FEET TO ANY CHURCH OK
SCHOOL OK HOSPITAL OK HOME FOR THE AGED,INDIGENT
Of;LOR VETERA S OK WITHIN 300 FEET OF COLLEGE OR UNIVERSITY OK
. L 7 5" 2 0 2 3
(Authorized Signature) (Date)
6/20/23, 1:29 PM Enterprise Mail-ADDITION APPLICATION FOR OMAHA CITY COUNCIL HRG-BLUE SKY
Gmail Carman Johnson CCIk <carman. ohnson cit ofomaha.or >
ADDITION APPLICATION FOR OMAHA CITY COUNCIL HRG -
BLUE SKY
1 message
Carman Johnson (CCIk) <Carman.Johnson@cityofomaha.org> Tue, Jun 20, 2023 at
1:29 PM
To: Philip schaffart <PHILIPSCHAFFART@gmail.com>, Nikki Conner
<nikki@kelleyplucker.com>, Mike Kelley <MIKE@kelleyplucker.com>
Bcc: "Elizabeth Butler (CCIk)" <elizabeth.butler@cityofomaha.org>, "Kimberly Hoesing
(CCIk)" <Kimberly.Hoesing@cityofomaha.org>
Good afternoon
RE: BLUE SKY BAR & PATIO, LLC
The Omaha City Clerk's Office has received your ADDITION application from
the Nebraska Liquor Control Commission. The Omaha City Council will hold a public
hearing on this request on Tuesday, JULY 18, 2023. City Council meetings start at
2:00 PM and are located in the Legislative Chambers in the Omaha/Douglas County
Building located at 1819 Farnam Street, Omaha, NE 68183. You or a representative
is required to attend the meeting.
Pursuant to the City Council Liquor Rule 10, Liquor applicants shall submit a
list of names and addresses of the property owners within 500 feet of the
licensed premises. An abstractor registered under the Nebraska Abstractors
Act shall prepare the list and certify to its accuracy. A list of Title Companies
that you can contact for the 500 foot property search is attached.
This list and mailing labels must be submitted to my office by JULY 5, 2023.
*****Pursuant to Omaha Municipal Code Section 15-41 — Music Venue Permit
If your establishment will hold any type of live concerts where alcohol will be sold
and served, and minors are allowed you are required to obtain a Music Venue
Permit.
Please notify me if you have any questions.
Thanks
Carman Johnson
Liquor Clerk
https://mail.google.com/mai I/u/0/?ik=cd387c45eb&view=pt&search=all&permthid=thread-a:r-6550653475656757906%7Cmsg-a:r12335067902659270... 1/2
6/20/23, 1:29 PM Enterprise Mail-ADDITION APPLICATION FOR OMAHA CITY COUNCIL HRG-BLUE SKY
City of Omaha/City Clerk
1819 Farnam Street
Suite LC-1
Omaha, NE 68183
402-444-5324
402-444-5263 fax
Carman.johnson@cityofomaha.org
TITLE COMPANIES FOR 500 FOOT SEARCH 2022.pdf
60K
https://mai I.google.com/mail/u/0/?ik=cd387c45eb&view=pt&search=all&permthid=thread-a:r-6550653475656757906%7Cmsg-a:r12335067902659270... 2/2
4 oviAx^, N� CITY OF OMAHA
Elizabeth Butler, City Clerk
itir qr
VciaOmaha/Douglas Civic Centerr .t
1819 Farnam Street-Suite LC1
p .� �, Omaha,NE 68183
p ��. 4 (402)444-5550
4gTFD FEBR�A¢ % FAX(402)444-5263
7 / ,r�1 www.cityofomaha.org/ c e,s
JULY 7, 2023
NOTICE OF REQUEST: To consider an APPLICATION FOR AN
ADDITION TO THE PRESENT CLASS "C" LIQUOR LICENSE
LOCATION which allows the sale of beer, wine and liquor, by the drink on the
premises; package in the original package for consumption off premises.
•
APPLICANT: BLUE SKY BAR & PATIO, LLC
DBA BLUE SKY BAR & PATIO
LOCATION: 10730 PACIFIC STREET, SUITE 10
TO ADD THE FOLLOWING:
AN AREA APPROX 40' X 90' TO THE NORTH
As an owner of property within 500 feet of the above referenced location, you are
being notified that the Omaha City Council will hold a meeting and public hearing
on this request on Tuesday, JULY 18, 2023 in the Legislative Chambers
Level LC of the Omaha/Douglas Civic Center, 1819 Farnam Street, Omaha,
Nebraska. The meeting begins at 2:00 PM.
City Council encourages anyone interested in this item to provide testimony by email to
cityclerk a(�citvofomaha.org or send a letter to
City of Omaha
City Clerk's Office
1819 Farnam Street, Suite LC-1
II Omaha, NE 68183
Comments received by email or letter will be shared with all City Council members. Thank you
and please contact our office with any questions.
I
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is entered into
as of the Effective Date (as hereinafter defined), by and between On 680 Zone I, LLC, a
Nebraska limited liability company ("Landlord"), and Blue Sky Bar & Patio, LLC, a Nebraska
limited liability company ("Tenant"). The "Effective Date" shall be the date in which the last of
Landlord and Tenant has signed this Lease.
WITNESSETH:
WHEREAS, Landlord owns that certain real property located in the development
commonly referred to as Regency Landing and legally described on Exhibit A attached hereto
(the "Property"), which includes an approximate 66,043 square foot retail building known as
10730 Pacific Street, Omaha, Nebraska 68114 (the"Building"); and
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated as
of January 1, 2021 (the "Lease"), wherein Tenant leases from Landlord a portion of the Building
consisting of approximately 3,319 rentable square feet in the Building (the "Original Premises");
and
WHEREAS, Landlord and Tenant desire to expand the Premises (as defined in the
Lease) to include an additional approximately 3,150 rentable square feet adjacent to the
Original Premises, as reflected on Exhibit A attached hereto(the "Additional Premises");
WHEREAS, Landlord and Tenant desire to amend the Lease to include the Additional
Premises and to otherwise modify the Lease pursuant to the terms and conditions set forth
below.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the same meaning as
defined in the Lease, unless otherwise defined in this Amendment.
2. Additional Premises. The "Premises" shall be amended to include the Additional
Premises.
3. Lease Commencement Date. The "Lease Commencement Date" shall be
September 1, 2022 for both the Original Premises and the Additional Premises.
4. Rent Commencement Date. The "Rent Commencement Date" shall be
September 1, 2023 for both the Original Premises and the Additional Premises.
5. Landlord's Work for Additional Premises. For the Additional Premises, Landlord
shall, at its sole cost and expense, perform the work described in Exhibit B attached
hereto and shall install a demising wall for the Additional Premises (collectively,
"Landlord's Work"). Landlord shall be obligated to build only those items specifically
enumerated in Exhibit B, and to substantially complete the construction thereof as soon
as reasonably possible after execution of this Lease. Acceptance of possession of the
Additional Premises by Tenant shall be conclusive evidence that Landlord's Work to the
date of possession has been fully performed in the manner required. Except for
•
Landlord's Work, as defined herein, Tenant hereby accepts the condition of the
Additional Premises in its current condition "as-is".
6.
Minimum Rent for the Additional Premises. In addition to the Minimum Rent set
forth in Section 1.1(1)() of the Lease as to the Original Premises, commencing on the Rent
Commencement Date, Tenant shall pay Minimum Rent as follows for the Additional
Premises: 1
Years. ; Per Square.Foot ; Annual Minimum 1 Monthly
Minimum Rent Rent Minimum Rent
1-5 $28.00 ' $88,200.00 $7,350.00
1 6-101 $30.80 i $97,020.00 $8,085.00
Option;Period i
11-15Ti _$33.88 j $106,722.00 $8,893.50
16-20 ; $37.27 $117,400.50 $9,783.38
7. Outdoor Amenity Area.
a. installation of Tent Structure. The parties hereby agree and acknowledge
that adjacent to the Outdoor Seating Area (as defined in the Lease) will be a large
outdoor amenity space that will include an area for pickleball courts, yard games and
small concerts, all as set forth on the agreed upon Site Plan (the "Amenity Area").
Landlord hereby agrees that Tenant shall have the right, at Tenant's sole cost and
expense, to install a tent-like structure over the Amenity Area (the"Installation") pursuant
to the terms and conditions set forth below. Subject to receipt of all approvals necessary
from the City of Omaha, Tenant may, but shall not be obligated to, and at its sole option,
complete the Installation in accordance with plans and specifications prepared by Tenant
and approved in advance and in writing by Landlord, such approval not to be
unreasonably withheld, conditioned or delayed. The Installation shall be performed (i) by
Tenant at Tenant's sole cost and expense, (ii) in a first class, workman-like manner with
first class materials, (iii) in conformance with all building codes, orders and regulations,
(iv) by duly qualified or licensed persons, and (v) in accordance with all requirements set
forth in the ECRs.
b. License. Tenant shall have the right to host private events in the Amenity
Area between the hours of 7 p.m. and 11 p.m., subject, however, to compliance with all
applicable law (including any noise ordinances). Tenant shall provide at least thirty (30)
days prior written notice of the exercise of such right which notice shall include the date,
time and proposed use (the "Use Terms"). Provided the Use Terms are acceptable to
Landlord (approval not to be unreasonably withheld, conditioned or delayed) and the
Amenity Area is otherwise available on such proposed date and time, Landlord shall
grant to Tenant an exclusive license to use and occupy the Amenity Area during such
proposed date and time (the "License"). In exchange for the License and the right to
complete the Installation, Tenant hereby agrees that the Amenity Area shall be
considered part of the Premises for all purposes (including, but not limited to,
maintenance, insurance and indemnification) except that the square footage of the
Amenity Area shall not be included in the square footage of the Premises for purposes of
2
calculating the Minimum Rent, Additional Rent or Tenant Allowance. Landlord shall have
the right to promulgate reasonable rules and regulations in connection with the use and
operation of the Amenity Area. Tenant shall be responsible for ensuring that its use and
operation of the Amenity Area is in compliance with applicable law, the CCRs and any
rules and regulations.
8. Gross Receipts. Notwithstanding anything to the contrary in the Lease, the
parties hereby agree and acknowledge that all Gross Sales of a subtenant or licensee of
a portion of the Premises is included in the Gross Sales for purposes of calculating the
Percentage Rent but any rental income Tenant receives from a subtenant or licensee is
excluded from Gross Sales for purposes of calculating the Percentage Rent. For
clarification purposes, the Percentage Rent shall apply to all Gross Sales for both the
Original Premises and the Additional Premises.
9. Force and Effect. Except as modified and amended herein, all other terms and
conditions of the Lease shall remain unchanged and in full force and effect. This
Amendment shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
10. Counterparts. This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute the binding and
enforceable agreement of the parties hereto. This Amendment may be executed and
delivered by a party by electronic transmission, which transmission copy shall be
considered an original and shall be binding and enforceable against such party.
[Remainder of Page Intentionally Left Blank. Signature Page to Follow.]
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
Effective Date.
LANDLORD
On 680 Zone I, LLC
a Nebraska limited liability company
By: SCM 10X Fund, LLC,
A Delaware limited liability company,
Sole Member
By: SCM 10X Managers, LLC,
a Nebraska limited liability company,
Manager
By: /
Name: �,.vie.+� 4 . 1441
Title: Jitt,� i(i'
Date: /l Z- Zc 2
TENANT:
Blue S & Patio, LLC,
a Nebr sk imited liability company
By: d
Name: Phillip L. Schaffart
Title: Manager
Date: if Z l Z t'L
4
Exhibit A
pepiction of Additional Premises
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6
Exhibit B
Landlord's Work
General:
1. Landlord shall have the right to run roof drainage lines, utility lines, pipes, conduits, duct
work and/or component parts of all mechanical and electrical systems where necessary
or desirable through attic space, column space or other parts of the leased premises, to
repair, alter, replace or remove the same, and to require Tenant to install and maintain
proper access panels thereto.
2. It shall be the Tenant's responsibility to field verify all conditions.
Structure:
1. A structural frame of steel, concrete and/or masonry construction or any combination
thereof, with a floor and roof designed to carry live loads in accordance with applicable
building codes.
Floor:
1. Floors shall consist of existing concrete slab on grade or slab on deck and may include
concrete infill of concrete to repair trenches, underfloor work and openings.
2. Tenant will be responsible to verify existing floor condition for installation of tenants
flooring materials.
3. Tenants shall be responsible for all infill of concrete floors where the slab on grade was
removed for tenant's work, including structural design if required, full depth concrete
pour back, and dowels and reinforcing to connect to existing slab on grade.
4. Tenants shall be responsible for all infill of concrete floors where the slab on deck was
removed for tenant's work, including structural design if required, structural steel
support, full depth concrete pour back similar to existing, and dowels and reinforcing to
connect to existing slab on grade.
Interior:
1. The interior side of exterior walls shall be exposed CMU or concrete walls.
2, Tenant will be responsible for installation of metal stud furring, insulation and drywall to
meet code and building requirements.
•
3. Demising walls will include drywall with Level 1 finish.
4. All ceilings will be exposed and unfinished.
Storefront:
1. Building facade shall include a sign fascia for tenant signage.
2. The main elevation shall include an aluminum storefront system with insulated glass and
one entry door.
7
Roofing:
1. Landlord shall provide a 60-mil membrane roof with rigid insulation to meet local codes.
2. Tenant will be responsible for all penetrations in the existing roof, repair of
weathertightness and maintaining all warranties. Landlord will provide information for
required roofing contractor for the building.
Fire Sprinkler:
1. Shell fire sprinkler system will be installed with upright heads if required by code.
Plumbing:
1. Domestic water will be provided to each Tenant space with a tee and valve for future
connection.
2. Sanitary sewer line will be provided to each Tenant space. Tenant shall verify the size
and location.
3. Natural gas piping will be provided to the building and the landlord provided roof top
unit(s) only. The cost for any deviation from gas meters and installation shall be Tenants
sole responsibility.
HVAC:
1. Landlord will provide roof top unit(s) and curb with one thermostat for each unit and a
combined cooling capacity of one ton for every 350 SF.
2. For lower level tenants:
a. Landlord will provide one chase for HVAC unit from rooftop. Tenant shall provide
ductwork in chase and connections.
b. Landlord will provide one chase for grease exhaust for restaurant tenants.
Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
3. For first level tenants:
a. Landlord will provide one chase for HVAC unit from rooftop. Tenant shall provide
ductwork in chase and connections.
b. Landlord will provide one chase for grease exhaust for restaurant tenants.
Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
4. For second level tenants:
a. Landlord will provide HVAC unit and duct drop through roof deck. Tenant shall
provide ductwork and connections.
b. Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
8
Electrical:
1, Landlord shall coordinate installation of the transformer, main distribution panel and
meter center at the rear wall of the building.
2. Landlord shall provide a conduit from the meter center to Tenant space.
3. Landlord shall provide an electric feeder and panelboard to the interior side of the rear
wall. The capacity of the electrical feeder shall be sized to provide for nominal electric
loads of 120/208 three phase.
4. Electrical panel feeder and main breaker shall be sized for 120/208 200-amp capacity, or
as noted.
Changes &Alterations:
1. Landlord reserves the right to require changes in Tenant's work when necessary by
reason of code requirements or directives of governmental authorities having jurisdiction
over the leased premises.
TENANT'S WORK:
All work done by Tenant shall be governed in all respects by, and shall be subject to the
following:
1. All work required to complete and place the leased premises in finished condition for
opening for business, except that work described in Landlord's Work is to be completed
by Tenant at Tenant's expense. All work shall be done in accordance with the current
codes and regulations, as required by local, state and federal authorities having
jurisdiction.
2. Tenant agrees not to commence Tenant's work until Tenant has secured Landlord's
written approval of the plans and specifications required to be submitted by Tenant to
Landlord. Landlord agrees to notify Tenant in advance of the day when Tenant must
commence Tenant's Work and Tenant agrees that Landlord may require Tenant, subject
to such notice, to commence Tenant's Work before Landlord's Work has been fully
completed, provided that the leased premises and the building of which the leased
premises are a part are completed to the extent that it is practicable for Tenant to
commence Tenant's Work. Tenant Work shall be coordinated with the work being done
by the Landlord and/or other tenant's of Landlord to such a degree that such work will
not interfere with or delay the completion of work by Landlord and/or other tenant's of
Landlord. The performance of Tenant's Work shall cause no interference whatsoever
with the completion of Landlord's Work in the leased premises or in the remainder of the
Shopping Center.
3. Tenant's Work shall be performed in a first class workmanlike manner and shall be in
good and usable condition at the date of completion thereof. Tenant shall require any
such party to be responsible for the replacement or repair without additional charge of
any and all work done or furnished by or through such party which shall become
defective within one (1) year after substantial completion of the Work. The correction of
such Work shall include without additional charge, all expenses and damages in
9
•
connection with such removal, replacement, or repair of any part of the Work which may
be damaged or disturbed thereby. All warranties or guarantees as to materials or
workmanship on or with respect to Tenant's Work shall be contained in the contract or
subcontract which shall be so written that such guarantees or warranties shall inure to
the benefit of both Landlord and Tenant, as their respective interests appear, and can be
directly enforced •by either. Tenant covenants and agrees to give Landlord any
assignment or other assurances necessary to effect the same.
4. Landlord shall have the right (but shall not be obligated) to perform by its own contractor
or subcontractor, on behalf of and for the account of Tenant any Tenant's Work which
Landlord determines should be so performed. Specifically, such work shall include
areas which affect any structural components of or the general utility systems for the
building in which the leased premises are located. If Landlord so determines, it shall so
notify Tenant prior to the commencement of such work. Tenant shall promptly, on
demand, reimburse Landlord for all costs of planning and performing such work when
and as incurred by Landlord and for all permits in connection therewith.
5. Compliance with laws: All Tenant's Work shall conform to applicable statutes,
ordinances, regulations, codes and the requirements of Landlord's fire underwriter.
Tenant shall obtain and covey to Landlord all approvals with respect to electrical, gas,
water heating, and cooling, and telephone work, all as may be required by the utility
company supplying the service.
6. Approvals: No approvals by Landlord shall be deemed valid unless the same shall be in
writing signed by Landlord or Landlord's architect.
7. Insurance: Prior to commencement of Tenant's Work and until completion thereof, or
commencement of the lease term, whichever is the last to occur, Tenant shall effect and
maintain, and provide certificates for insurance policies of Builder's Risk Insurance
covering Landlord, Landlord's agents and beneficiaries, Landlord's architect, Landlord's
general contractor, Tenant and Tenant's contractors, as their interests may appear,
against loss or damage by fire, vandalism and malicious, mischief and such other risks
as are customarily covered by a so called "extended coverage endorsement" upon all
Tenant's Work in place and all materials stored at the site of Tenant's Work and all
materials, equipment, supplies and temporary structures of all kinds incident to Tenant's
Work and builder's machinery, tools and equipment, all while forming a part or contained
in, such improvements or temporary structures, while on the leased premises or within
100 feet thereof, or when adjacent thereto while on malls, drives, sidewalks, streets or
alleys, all to the full insurable value thereof at all times. In addition, Tenant agrees to
require all contractors and subcontractors engaged in the performance of Tenant's Work
to effect and maintain and deliver to Tenant certificates evidencing the existence of, such
policies prior to the commencement of Tenant's Work and until completion thereof.
10
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease') is made and entered as of the Effective Date (as
hereinafter defined) by and between On 680 Zone I, LLC, a Nebraska limited liability company
("Landlord")and Blue Sky Bar&Patio, LLC, a Nebraska limited liability company("Tenant"). The
"Effective Date"shall be the date on which the last of Landlord and Tenant has signed this Lease.
WHEREAS, Landlord owns that certain real property commonly referred to as Regency
Landing as legally described on Exhibit A attached hereto (the "Property"), which includes an
approximate 66,043 square foot retail building known as 10730 Pacific Street, Omaha, Nebraska
68114 (the"Building"); and
WHEREAS, Tenant desires to lease from Landlord, and Landlord desires to lease to
Tenant, approximately 3,319 rentable square feet in the Building (the "Premises"), as generally
depicted on Exhibit E3 attached hereto, on the terms and conditions hereinafter defined.
NOW THEREFORE, in consideration of the exchange of valuable consideration and in
consideration of the terms, provisions, agreements, covenants and conditions set forth herein,
the sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as follows:
WITN-ESSETH:
ARTICLE 1
FUNDAMENTAL LEASE PROVISIONS, DEFINITIONS AND EXHIBITS
Section 1.1 FUNDAMENTAL LEASE PROVISIONS. Each of the following
subsections is individually referred to in this Lease as a "Fundamental Lease Provision" and is
contained in this section for convenience. Each reference in this Lease to a Fundamental Lease
Provision shall be construed to incorporate all of the terms of such Fundamental Lease Provision.
In the event of any conflict between a Fundamental Lease Provision and any other provision of
this Lease, such other provision shall govern.
(a) Landlord: On 680 Zone I, LLC, a Nebraska limited liability company
(b) Landlord's Address for Notices and Rent Payments:
do Access Commercial
1303 South 72'd Street,Suite 209
Omaha, NE 68124
Email: maintenance@accesscommercial.com
(c) Tenant: Blue Sky Bar& Patio, LLC
(d) Tenant's Address for Notices:
•
(e) Tenant's Trade Name: Blue Sky Bar& Patio
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48 3748 29-8 1 94.A
(f) Address of Premises: p 0
10730 Pacific Street, Suite
Omaha, NE 68114
(g) Approximate Number of Rentable Square Feet in Premises: 3,319
(h) Length of Lease Term:Ten (10) years from the Rent Commencement Date.
(i) Lease Commencement Date: Delivery of possession of the Premises with
Landlord's Work Substantially Complete.
(j) Rent Commencement Date: Three hundred sixty (360) days after the Lease
Commencement Date.
(k) Options to Renew:Two(2) Five (5) Year Options (each, an"Option Period").
(I) Minimum Rent: Commencing on the Rent Commencement Date, Tenant shall
pay Minimum Rent as follows:
Annual Monthly PSF
_Years Minimum Rent. Minimum Rent_ . .Minimum Rent
1-5 $92,932,00 $7,744.33 $28.00
6-10 $102,225.20 $8,754.90 $30.80
�Qppaon Period:.
11-15 $1.10.788.22 $9,232.35. $33.88
16-20 $123,699.13 $10,308,26 _ $37.27
The amounts of annual Minimum Rent and monthly Minimum Rent set forth in the
foregoing table are based on rentable square feet of the Premises equal to 3,319
square feet. Upon substantial completion of Landlord's Work, the actual rentable
square feet of the Premises shall be determined by Landlord's architect, and the
Minimum Rent, computed at the rates set forth in the foregoing table, shall be
determined and confirmed prior to the Rent Commencement Date.
(m) Percentage Rent: Tenant shall pay, in addition to Minimum Rent, Percentage
Rent equal to Four (4%) percent of Tenant's Gross Sales each Lease Year in
excess of$700,000.00.
(n) Additional Rent: This Lease is a triple net lease and Tenant shall be responsible
for Tenant's Proportionate Share of Taxes, Insurance and Common Area
Maintenance Expenses.
(o) Tenant's Proportionate Share: Tenant's Proportionate Share shall be a
percentage calculated by taking the rentable square footage of the Premises
divided by the rentable square footage of the,Building. Tenant's Proportionate
Share is approximately 5.03%.
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(p) Permitted Use of Premises: A restaurant and bar concept to be known as the
"Blue Sky Bar& Patio",which may include, at Tenant's option and sole discretion,
third party vendors and an outdoor seating area, all of which shall be subject to
Landlord's prior written approval, not to be unreasonably withheld, conditioned or
delayed. Tenant intends to sublease space within the Premises for use as"micro
restaurants." Landlord hereby acknowledges that Tenant intends to initially permit
two(2)vendors to operate within the Premises,one of which will serve hamburgers
as its featured menu items, and the other will serve pizzas as its featured menu
items. Said vendors will be subtenants of Tenant. Tenant reserves the right to
add or remove vendors from time to time in its sole discretion. Landlord agrees
that for so long as subtenants of Tenant are operating in the Premises for the sale
of pizza and hamburgers, then Landlord shall not license or lease to any licensee
or tenant for the use of, or allow any other space in the Property to be used for,
any restaurant or businesses engaged primarily in the sale of pizzas or
hamburgers, Such other restaurants or businesses will be deemed to be primarily
engaged in the sale of pizzas or hamburgers if the revenues from the sale thereof,
together or separately,exceed twenty percent(20%) of the revenues from the sale
of food at such restaurants or businesses, for either on or off premises
consumption. In the event of a violation of the foregoing exclusive use rights,
Minimum Rent due under this Lease shall be reduced by fifty percent(50%) until
the violation has been cured and the competing licensee(s) or tenant(s) at the
Property cease the sale of any of the products protected by such exclusive use
described above. In the event the violation continues for more than one hundred
eighty (180) days, then Tenant shall have the right, within sixty (60) days
thereafter,to terminate this Lease upon written notice to Landlord. If Tenant does
not terminate within such sixty (60) day period, then Tenant shall resume paying
full Minimum Rent at then current rates and Tenant shall have no further remedy
with respect to that particular violation. If(a)the Lease is terminated pursuant to
this Section,and(b)if the violation was a result of the intentional,purposeful action
of Landlord in expressly (i.e., by written agreement) allowing another person or
entity to use any portion of the Property in violation of such exclusive use rights,
then in that instance, and in only that instance, Tenant shall be entitled to
reimbursement by Landlord of the unamortized amount of Tenant's improvements
to the Premises as of the effective date of the early termination of this Lease. At
such time as the subtenants of Tenant are not operating in the Premises for the
sale of pizza or hamburgers, as applicable, then with respect to whichever of such
uses has been discontinued (other than for reasons contemplated under Section
4.2 or 4.3), the foregoing restriction shall no longer apply.
(q) Tenant Allowance: $60.00 per rentable square foot.
(r) Landlord's Broker: ACCESS Commercial, LLC
(s) Guarantor: Philip Schaffart
Section 1.2 EXHIBITS AND ADDENDA. The following Exhibits and Addenda are a
part of this Lease and have been attached to this Lease prior to its execution.
Exhibit"A"—Property Legal Description
Exhibit"B"—Site Plan with Outdoor Patio Seating
Exhibit"B-1"—Plans and Specifications for Outdoor Patio Seating
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4837-6829-8194.4
•
Exhibit"C"— Landlord's Work
Exhibit"D"— Rent Commencement Declaration
Exhibit"E"— Form of ECR
ARTICLE 2
GRANT AND TERM
Section 2.1 LEASED PREMISES. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises whose address is set forth as a Fundamental Lease
Provision and which Premises are situated in the Building, as depicted on Exhibit B attached
hereto. The Premises contain the approximate number of square feet of floor space which is set
forth as a Fundamental Lease Provision. Landlord shall have the right, at any time and from time
to time,without notice to or consent of Tenant, and without diminishing Tenant's obligations under
this Lease,to:make alterations, improvements or additions to, and build additional stories on,the
Building or any other building on the Property, and to build adjoining the same;to construct other
buildings and improvements of any type in the Property or the Common Areas,or any part thereto,
including the right to locate and/or erect thereon permanent or temporary kiosks and structures;
to enlarge the Property, and to make alterations therein or additions thereto; to construct decks
or elevated parking facilities and free standing buildings within the parking lot areas of the
Property; and to change the size, location,elevation and nature of any of the stores in the Property
or of the Common Areas,or any part thereof. in the event Landlord elects to enlarge the Property, '
or any part thereof, any additional area may be Included by Landlord in the definition of the
Property for purposes of this Lease. Landlord shall also have the general right from time to time
to include within and/or to exclude from the defined Property any existing or future areas,and the
floor areas of the Property shall be accordingly adjusted.
Section 2.2 TERM. This Lease shall be for the term set forth as a Fundamental Lease
Provision, unless sooner terminated pursuant to the provisions of this Lease and the Term shall
commence on the Rent Commencement Date. All of Tenant's obligations under this Lease other
than the payment of rent shall commence on the date on which Landlord delivers possession of
the Premises to Tenant. Promptly after the Rent Commencement Date, Landlord and Tenant
shall execute and deliver a written declaration, in the form attached hereto as Exhibit D, setting
forth the Rent Commencement Date, the Expiration Date of this Lease, the rentable square
footage of the Premises, the rentable square footage of the Building, and the amount of the
Minimum Rent payable by Tenant(the"Rent Commencement Declaration"). •
Section 2.3 LEASE YEAR DEFINED. For all purposes of this Lease,the term"Lease
Year"shall have the following meaning: the first Lease Year shall be a period beginning with the
Rent Commencement Date and ending on the 319t of December next following the Rent
Commencement Date; and after the first Lease Year, the term"Lease Year"shall mean a period
of twelve (12) consecutive calendar months commencing on January 1 of each calendar year,
except that the last Lease Year shall terminate on the Expiration Date.
Section 2.4 OPTION TO RENEW. Provided Tenant shall not be in default hereunder
beyond applicable notice and cure periods, Tenant shall have the options to extend the Lease
Term as set forth as a Fundamental Lease Provision upon the same terms and conditions herein
contained, except the Minimum Rent shall be increased as specified in Fundamental Lease
Provision, upon delivery by Tenant to Landlord of its written notice of such election at least one
hundred and twenty(120)days prior to the expiration of the existing term hereof. Tenant's failure
to timely exercise its election shall result in termination of Tenant's option to renew. Except in
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4837-6829-8194.4
connection with a Permitted Transfer,as defined in Section 12.1,this option to renew is personal
to Tenant and shall not be assignable to any tenant, subtenant or assignee.
ARTICLE 3
RENT; PERCENTAGE RENT
Section 3.1 MINIMUM RENT. For each Lease Year during the Lease Term, and on
a pro rata basis for any partial Lease Year, Tenant shall pay to Landlord a guaranteed minimum
rent in the amount set forth as a Fundamental Lease Provision (the 'Minimum Rent"). The •
Minimum Rent shall be payable in advance in equal monthly installments on the first day of each
calendar month during the Lease Term. The monthly installment of Minimum Rent for any period
during the Lease Term prior to the commencement of the first Lease Year and for any other period
of less than a calendar month shall be prorated on a daily basis and shall be paid by Tenant to
Landlord within five(5)days after the commencement of the period for which it is due.
Section 3.2 PERCENTAGE RENT.
(a) In addition to the Minimum Rent, Tenant shall also pay to Landlord each year
"Percentage Rent"as specified in the Fundamental Lease Provision.
(b) Tenant shall furnish or cause to be furnished to Landlord a statement of the
monthly Gross Sales of Tenant within twenty (20) days after the close of each
calendar month and a statement of the annual Gross Sales of Tenant within sixty
(60)days after the close of each Lease Year. Such annual statements shall be in
a form mutually acceptable to Landlord and Tenant. Such statements shall be
certified as an accurate accounting of Tenant's Gross Sales by an authorized
representative of Tenant. Within sixty(60) days after the end of the calendar year
in which Percentage Rent is owed by Tenant to Landlord pursuant to clause (a)
above, Tenant shall pay Landlord the Percentage Rent owed by Tenant.
(c) The term "Gross Sales," as used in this Lease, means the actual sales prices of
all goods, wares and merchandise sold, leased, licensed or delivered and the
actual charges for all services performed by Tenant or by any subtenant, licensee
•
or concessionaire in, at, from, or arising out of the use of the Premises, whether
for wholesale, retail, cash or credit, or otherwise, without reserve or deduction for
inability or failure to collect. Gross Sales shall include,without limitation, sales and
services (a) where the orders therefor originate In, at, from, or arising out of the
use of the Premises, whether delivery or performance is made from the Premises
or from some other place; (b) made or performed by mail, telephone, telecopy,
telegraph or other form of order; (c) made or performed by means of mechanical
or other vending devices in the Premises; (d) which Tenant or any subtenant,
licensee, concessionaire or other person in the normal and customary course of
its business, would credit or attribute to its operations at the Premises or any part
thereof. Any deposit not refunded shall be included In Gross Sales. Each
installment or credit sale shall be treated as a sale for the full price in the month
during which such sale is made, regardless of whether or when Tenant receives
payment therefor. No franchise or capital stock tax and no income or similar tax
based on income or profits shall be deducted from Gross Sales. Notwithstanding
the foregoing, Gross Sales shall not include (but Tenant shall keep separate
records of): (a) any cash or credit refunds made upon any sale in or from the
Premises that was originally included in Gross Sales; (b) any sales or excise tax
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4837-6828-8144.4
•
Imposed by and remitted to any governmental authority (provided that no income
or franchise tax, capital stock tax, tax based upon gross receipts, assets or net
worth or similar tax shall be deducted from Gross Sales), (c) employee meals,
discounts, and complimentary meals, not to exceed three percent (3%) of such
Gross Sales, (d) service charges, finance charges, or bank card charges arising
from processing; provided that Tenant shall provide reasonable substantiation of
such charges that exceed three percent(3%) of Gross Sales; (e)the exchange of
merchandise between the stores of Tenant where such exchanges are made •
solely for the convenient operation of Tenant's business and not for the purpose
of consummating a sale which has been made at, on, in or from the Premises; (f)
returns to shippers or manufacturers for credit; (g)sales of fixtures, machinery and
equipment which are not part of Tenant's stock in trade; (h)bulk sales or wholesale
transfers of merchandise not in the ordinary course of business; (i) sales of gift or
merchandise certificates or deposits in anticipation of sales, provided the same
shall be included in Gross Sales upon redemption or completion of a sale for
merchandise or services;(I)Tenant's accounts receivable consisting of bad checks
and bad debts provided that if such accounts are actually collected at a later time, •
the amounts shall be included in Gross Sales at such time; (k) delivery charges;
(I)sales tax, excise tax or any similar tax imposed by governmental authorit y or
any business improvement district tax imposed upon Tenant or the Premises and
collected from customers and paid out by Tenant; (m) gratuities received by and •
retained by Tenant's employees; (n) the value of food, beverages, merchandise
and/or services given for advertising, charitable purposes or corporate goodwill to
the extent that Tenant has not received payment for such items, provided such
charges do not exceed four percent (4%) of Gross Sales in any calendar year;
(o)the value of food,beverages and other giveaways during Tenant's soft opening
or during other promotional events to the extent that Tenant has not received
payment for such items, provided such charges do not exceed four percent (4%)
of Gross Sales in any calendar year; (p) any sales or revenues of any subtenants
operating at the Premises; (q) any rent or other amounts paid to Tenant by any
subtenant operating at the Premises; and (r) sums and credits received in the
settlement of claims for loss of, or damages to, merchandise or equipment.
(d) For at least twelve(12) months after the expiration of each Lease Year, Including
any partial Lease Year at the beginning of the Term, and after the end of the Term,
Tenant shall keep and maintain in the main financial office of Tenant(and Tenant
shall cause all subtenants, concessionaires and licensees to keep and maintain in
their respective main offices)full and accurate books of account and records from
which the Gross Sales can be determined.
(e) Landlord shall have the right from time to time,but no more than once in any Lease
Year,at Tenant's main financial office,upon twenty(20)days written notice,during
such twelve (12) month period ("Landlord's Audit Period")to inspect and audit ail
such books and records relating to Tenant's Gross Sales. If any such inspection
and audit discloses that the Gross Sales were understated, Tenant shall within
thirty(30)days after written demand from Landlord pay to Landlord any additional
Percentage Rent shown to be payable, and if the Gross Sales for any Lease Year
or partial Lease Year were understated by more than five percent (5%) and
resulted in an underpayment of Percentage Rent, Tenant shall also pay the
reasonable cost (not to exceed One Thousand Hundred Dollars ($1,000.00)) of
Landlord's inspection and audit. Landlord's failure to object to any Gross Sales for
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4837-6829-8194.4
the Lease Year covered by Landlord's Audit Period shall constitute Landlord's
acceptance of the Gross Safes with respect to such Lease Year.
(f) Landlord agrees that all statements of Gross Sales furnished to it under this Lease,
if any, and any information obtained by Landlord as the result of an audit of
Tenant's Gross Sales as permitted hereunder, shall be held in strict confidence by
Landlord and shall not be divulged by Landlord to any person or used for any
purpose except that Landlord shall be permitted to divulge such information (i)
when necessary in connection with any bona fide prospective sale of the Premises; •
(ii) when necessary in connection with the trial of any action, proceeding or •
arbitration between Landlord and Tenant; (iii) to any mortgagee or prospective
mortgagee of the Premises; and (iv) pursuant to a subpoena duly and validly
served upon Landlord.
Section 3.3 TAXES. Tenant covenants and agrees to pay to Landlord, in monthly
installments and as additional rent, Tenant's Proportionate Share of Real Estate Taxes (as
hereinafter defined), whether federal, state, county or municipal, levied or assessed against the
Premises, the Property, and buildings of the Property and all other taxes and assessments
attributable to the Property and the operation thereof. Tenant shall pay Landlord, on the first day
of each calendar month during the Term, amounts reasonably estimated from time to time by
Landlord to be Tenant's monthly installment of its Proportionate Share of such Real Estate Taxes.
The term "Real Estate Taxes"includes: (i) any fee, license fee, license tax, business license fee,
commercial rental tax, levy, charge, assessment (whether general or special), ordinary and
extraordinary, of any kind and nature whatsoever, which shall during the Term thereof be laid,
assessed, levied or imposed upon and which are due and payable during the respective year,
penalty or tax imposed by any taxing or judicial authority against the Property or land upon which
the Property is located or land upon which any on or off-site retention and drainage facilities
serving the Property are located; (ii) any tax on Landlord's right to receive, or the receipt of, rent
or income from the Property or against Landlord's business of leasing the Property; (iii) any tax
or charge for fire protection, streets, sidewalks, road maintenance, refuse or other services
provided to the Property by any governmental agency;(iv)any tax imposed upon this transaction •
or based upon a re-assessment of the Property due to a change in ownership or transfer of all or
part of Landlord's Interest in the Property; (v) any charge or fee replacing any tax previously
included within the definition of Real Estate Taxes;and(vi)costs,including reasonable attorneys',
appraisers' and consultants'fees, incurred in contesting any Real Estate Taxes. The term Real
Estate Taxes does not include any income, gross income, franchise, personal property,
devolution, estate and inheritance or gift taxes. Tenant's estimated Real Estate Taxes
Contribution ("Tax Contribution") for the current calendar year, as determined annually and
communicated to Tenant in writing by Landlord;within thirty(30)days after the end of each Lease
Year, Tenant shall pay to Landlord any unpaid portion of its actual Tax Contribution for such
calendar year or shall be entitled to a credit from Landlord for any excess Tax Contribution actually
paid by Tenant for such calendar year. Tenant's Tax Contribution shall be prorated for any period
of Tenant's occupancy of the Premises which is less than a full calendar year unless Tenant is
otherwise obligated under this Lease In respect of all of such calendar year. Tenant shall be
responsible for and shall pay, before the same become delinquent, all federal, state, county and
local taxes (other than Landlord's income taxes) levied or assessed upon: (1) any personal
property, fixtures, or leasehold improvements of Tenant at any time located in or about the
Premises, as well as any increase in the Taxes resulting from any Improvements or alterations
made to the Premises by Tenant pursuant to Article 6; and(2)Tenant's interest under this Lease
or the rentals derived from or paid by Tenant under this Lease. Tenant shall also be responsible
for and shall pay all sales, excise and other equivalent taxes (however denominated)in any way
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4837.8829-8194.4
resulting from Tenant's possession or use of the Premises or payment of rent under this Lease.
Tenant agrees to pay, upon receipt of an invoice from Landlord,its pro rata share of any fees and
expenses charged by Landlord's tax consultants, if any, and/or fees and expenses (including,
without limitation, attorneys'fees and accountants'fees)incurred by Landlord in connection with
the pursuit of any reduction, refund, or revaluation of the real estate taxes.
Section 3.4 RECAPTURE OF CONCESSIONS. Tenant acknowledges and agrees •
that, in entering into this Lease, Landlord is relying upon receipt of all rent and other monies to
become due with respect to all the Premises originally leased hereunder for the full initial Term in
granting certain concessions to Tenant or the payment of any real estate broker commission or
fee. Accordingly, Tenant agrees that Landlord's promise to pay Tenant the Tenant Allowance
and/or Landlord's payment of any lease commission or fee in connection with this Lease is
expressly contingent on Tenant performing its obligations hereunder for the entire initial Term. If
Landlord terminates Tenant's right to possession of the Premises as of any date prior to the
expiration of the full initial Term, as a result of an uncured breach of this Lease by Tenant, then
Tenant must immediately pay to Landlord,as Additional Rent hereunder,the unamortized balance
of the Tenant Allowance and such leasing commission, said amortization to be computed based
on the 10 year initial Term and an annual interest rate of four percent (4%).
Section 3.5 ADDITIONAL_RENT. As of the Rent Commencement Date,Tenant shall
pay, as Additional Rent, any money required to be paid pursuant to this Lease and all other sums
of money or charges required to be paid by Tenant under this Lease,whether or not the same be
designated"Additional Rent". If such amounts or charges are not paid at the time provided in this
Lease, they shall nevertheless, if not paid when due, be collectible as Additional Rent with the
next installment of rent thereafter falling due hereunder, but nothing herein contained shall be
deemed to suspend or delay the payment of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of the Landlord.
Section 3.6 MANNER AND PLACE OF PAYMENTS._ All payments of rent and any
other sums payable by Tenant to Landlord under this Lease shall be made by Tenant to Landlord
without demand, deduction, or set-off at the address set forth as a Fundamental Lease Provision
or at such other place as Landlord from time to time may designate in writing.
Section 3,7 DELINQUENT PAYMENTS. If any rent or other sums payable by Tenant
under this Lease are not paid within five (5)days after such rent or other sums are due, Tenant
shall pay to Landlord a"late charge"of five percent(5%)of the amount so overdue,which amount
shall be due and payable immediately,so overdue. In addition,all unpaid rent or other sums shall
bear interest at the lesser of (a)the rate of 18% per annum or (b)the highest rate per annum
permitted by law, from their respective due dates until paid, which interest shall be due and
payable immediately. If Tenant is late for three(3)or more consecutive months in making any of
its payments of rent due under this Lease, then Landlord, in addition to Landlord's other rights
and remedies under this Lease, thereafter shall have the right to require Tenant to make all rent
payments under this Lease quarterly in advance rather than monthly in advance. Tenant shall
pay to Landlord on demand a handling charge of One Hundred Fifty Dollars ($150.00) for any
check given to Landlord by Tenant for payment of any sums due hereunder which is dishonored
by Tenant's bank for any reason.
Section 3.8 RENT.DURING OPTION PERIOD. Subject to the condition that Tenant
is not in default of the performance of any of the provisions of this Lease,Tenant shall have the
option to renew this Lease for two(2)additional five(5)year terms(the"Extended Term"),subject
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4837-6829-8194.a
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li
to all the same terms and conditions contained herein except that the Base Rent shall increase
as set forth in the Fundamental Lease Provision.
Section 3.9 SECURITY DEPOSIT. Intentionally deleted.
ARTICLE 4
CONDUCT OF BUSINESS BY TENANT
Section 4,1 PERMITTED_USE. Tenant may use the Premises only for the Permitted
Use set forth as a Fundamental Lease Provision and for no other purpose. Tenant agrees to
conduct its business in the Premises in compliance and reputable manner consistent with the
highest standards of service and merchandising and with all laws, ordinances, and governmental
regulations (whether now existing or hereafter enacted or adopted) affecting the Premises and its •
cleanliness, safety, occupancy, and use. After completion of Landlords Work and subject to
Landlord's Warranty set forth in Exhibit C, Tenant at its own expense shall comply with and shall •
make all modifications or accommodations to the interior of the Premises required by the
Americans with Disability Act or any similar state or local handicap discrimination law. Tenant
shall indemnify, defend and hold harmless Landlord from and against any claims, losses,
damages,and expenses(including attorneys'fees)arising out of or resulting from Tenant's failure
to make any such modifications or accommodations and Tenant's failure to comply with all
applicable laws,ordinances, rules, and regulations, including but not limited to the Americans with
Disabilities Act or any similar state or local handicap discrimination law. Without limiting the
foregoing, Tenant shall not use or occupy the Premises unless and until a Certificate of
Occupancy permitting Tenant's use and occupancy has been issued by the appropriate
governmental authority and remains in effect, any and all conditions and requirements of the
Certificate of Occupancy have been complied with, and Landlord has received a copy of the
Certificate of Occupancy and evidence of such compliance. Tenant shall prohibit its customers
from loitering or congregating in the Premises or the Common Areas and from becoming a
nuisance or otherwise disturbing the other tenants of the Property and their respective customers,
employees, and invitees. Tenant agrees not to do or omit to do anything which will cause an
increase in the premiums for the casualty insurance which Landlord maintains on the Property
over and above the premiums which otherwise would be in effect for such insurance or which
would cause the cancellation of any such insurance. Tenant shall pay Landlord on demand any
increase in the insurance premiums on the Property demonstrated to have caused extra risk
solely as a result of Tenant's use of the Premises. •
Section 4.2 OPERATION OF BUSINESS. Tenant shall(a)remain open for business
during customary business days and hours for similar businesses in the city or trade area where
the Property is located and also shall remain open on such days and for such hours as Landlord
generally may require of businesses in the Property; subject to the right of Tenant to close or
operate on reduced hours, as determined by Tenant, on holidays, and subject to any other
provision of this Lease that permits, excuses or necessitates Tenant closing or operating during
reduced or prescribed hours; (b) keep its display windows and signs, if any, well lighted during
Tenant's business hours; (c) keep the Premises and both the exterior and interior portions of
windows, doors, and other glass or plate glass fixtures therein in neat, clean, sanitary, and safe
conditions; (d)warehouse, store, or stock only such goods, wares, and merchandise in the
•
Premises as Tenant(or its subtenants) intends to offer for sale at retail or for consumption in the •
Premises; (e)neither solicit business nor distribute advertising matter in the Common Areas;
(f)not place any excessive weight upon the floor of the Premises; (g) use the insignia or other
identifying math of the Property(if any)designated by Landlord in Tenant's advertising, whether
printed or visual, and make reference to the name of the Property in each instance of audio
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advertising; (h)not place or permit any radio or television antenna, loud speaker, or sound
amplifier, or any phonograph or other devices similar to any of the foregoing,on the roof or outside
of the Premises or at any other place where it may be seen or heard outside of the Premises; and
(i) not permit noise, sounds, activities, odors, or disturbances within the Premises which interfere
or are likely to interfere with the businesses of other tenants in the Property;provided that cooking
odors and noise from concerts customarily associated with restaurant businesses shall in no
event be deemed interference or a nuisance. Tenant agrees not to do or permit anything to be
done which will Interfere with the quiet enjoyment of other tenants or occupants of the Property.
Tenant shall not conduct auction sales,fire sales,vacancy sales,or"going out of business'sales
in or from the Premises without written consent of Landlord, nor shall Tenant use or permit the
use of vending machines inside the Premises(except for exclusive use of employees) or outside
the Premises. Tenant shall not conduct business promotions on the sidewalks or parking lot of
the Property, without Landlord's prior written consent.
Section 4.3 CONTINUOUS OCCUPANCY. Subject to Section 4.2, Tenant agrees
continuously throughout the Lease Term to occupy the Premises and to conduct its business
therefrom during Tenant's normal business hours, (excepting temporary store closings for
casualty, condemnation, remodeling, force majeure, alterations or restoration work and further
excepting Tenant's store closing in conjunction with an assignment or subletting to the extent that
the assignee or subtenant opens its store In the Demised Premises within ninety (90) days after
the closing of Tenant's store) and Tenant's failure to comply with the preceding provisions of this
sentence for ten (10)days after written notice from Landlord shall constitute a default under this
Lease.
Section 4.4 ECRS. This Lease of the Premises is or will be subject to easements,
covenants and restrictions of record and the terms and conditions of that certain Declaration of
Easements, Covenants, Conditions and Restrictions in substantially the form attached hereto as •
Exhibit E (collectively, the "ECRs"). In the event of a conflict between this Lease and the ECRs,
the Lease shall govern. In addition,the Lease of the Premises is subject to all applicable building
restrictions, planning and zoning ordinances, governmental rules and regulations and all other
encumbrances, covenants, restrictions and easements affecting the Property or any portion
thereof that includes the Premises.
Section 4.5 OUTDOOR SEATING AREA.Tenant shall be permitted,at Tenant's sole
cost and expense, to install tables and chairs, subject to municipal approvals, in the patio area
identified in Exhibit B(the"Outdoor Seatino Area")all in accordance with Tenant's specifications
identified in Exhibit B-1.The Outdoor Seating Area shall be considered a part of the Premises for
all purposes of this Lease, except that the square footage of the Outdoor Seating Area shall not
be included in the square footage of the Premises for purposes of calculating the Minimum Rent,
Additional Rent or Tenant Allowance. Tenant shall at all times keep the Outside Seating Area
clean and free of waste at its sole cost and expense. Tenant shall have the excusive rights to
use the Outdoor Seating Area.
Section 4.6 RULES AND REGULATIONS. Landlord reserves the right from time to
time to adopt and promulgate reasonable rules and regulations applicable to the Premises and
the Property. Subject to the provisions of this Section, Tenant agrees to comply with and observe
any rules and regulations promulgated by Landlord. Tenant's failure to keep and observe said
rules and regulations shall constitute a breach of the terms of this Lease as if the same were
contained herein as covenants. Notice of such additional rules and regulations,and amendments,
if any,shall be given to Tenant, and Tenant agrees thereupon to comply with and observe all such
rules and regulations,and amendments thereto and supplements thereof,provided the same shall
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•
apply uniformly to all tenants of the Property. Notwithstanding the foregoing, no rule or
regulations, however, shall operate to amend the terms of this Lease, or impose additional
financial obligations on Tenant, or restrict in any way the rights of Tenant hereunder, without
Tenant's prior written approval,which may be granted or withheld by Tenant in its sole discretion.
Section 4.7 LANDLORD'S RESERVED RIGHTS Without notice to Tenant, without
liability to Tenant for damage or injury to property, person, or business, and without effecting an
eviction of Tenant or a disturbance of Tenant's use or possession or giving rise to any claim for
set off or abatement of rent, Landlord shall have the right to: •
(a) Change the name or street address of the Property.
(b) Install and maintain signs on the Property.
(c) Have access to all mail chutes according to the rules of the United States Post
Office Department. '
(d) At reasonable times, to decorate, and to make, at its own expense, repairs,
alterations, additions, and improvements, structural or otherwise, in or to the
Premises (with proper prior notice, exclusive of an emergency), the Property, or
part thereof, and any adjacent Property, land, street, or alley, and during such •
operations to take into and through the Premises or any part of the Property all
materials required, and to temporarily close or suspend operation of entrances,
doors,corridors, elevators, or other facilities to do so.
(e) Possess passkeys to the Premises.
(f) During the last one hundred twenty(120)days of the Term, show the Premises to
prospective tenants at reasonable times and upon reasonable notice.
(g) Take any and all reasonable measures, including inspections or the making of
repairs, alterations, and additions and improvements to the Premises or to the
Property, which Landlord deems necessary or desirable for the safety, protection,
operation,or preservation of the Premises or the Property,provided any such work
is conducted so as to cause minimal interference in Tenant's business.
(h) Approve all sources furnishing signs, painting, and/or lettering to the Premises,
and approve ail signs on the Premises prior to Installation thereof, such approval
not to be unreasonably withheld, conditioned or delayed.
Section 4.8 RADIUS. Neither Tenant nor Guarantor shall directly or indirectly,either
individually or as a partner, officer,director or stockholder or otherwise, own,operate, or become
financially Interested in a business operating under the same trade name as the trade name used
at the Premises or in competition with the business of Tenant, within a radius of two (2) miles
measured from the outside boundary of the Property. The foregoing shall not apply to any
business venture in which Guarantor has an direct or indirect interest as of the Effective Date.
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ARTICLE 5
LANDLORD AND TENANT WORK
Section 5.1 LANDLORD'S WORK. Landlord shall, at its sole cost and expense,
perform the work described in Exhibit C attached hereto ("Landlord's Work"). Landlord shall be
obligated to build only those items specifically enumerated in Exhibit C, and to substantially
complete the construction thereof as soon as reasonably possible after execution of this Lease.
Landlord's Work shall be deemed to be"Substantially Complete"when Landlord's architect shall
have issued to Tenant a certification In form and content reasonably acceptable to Tenant to the
effect that Landlord's Work has been substantially completed in accordance with Exhibit C,except
for Punch List items as established pursuant to Exhibit C, and for minor or insubstantial Items
which, either individually or in the aggregate, do not adversely restrict or affect Tenant's ability
immediately to legally occupy the Premises and which by their nature can be completed within
thirty(30)days. If Landlord is delayed or interrupted in the completion of the Landlord's Work by
reason of Tenant Delay, then the date of Substantial Completion shall be deemed to be the date
in which Landlord would have delivered the Premises with Landlord's Work if such Tenant Delay
had not occurred. All such work shall be done in a good and workmanlike manner and so as to ;
conform to all building codes,ordinances and regulations. As used herein, "Tenant Delay"means
any delay actually incurred by Landlord in completing the Landlord's Work if caused by(i)a delay
by Tenant, or by any person employed or engaged by Tenant, in approving or delivering to
Landlord any plans, schedules or information, beyond the applicable time period set forth in this
Section, if any; (ii) a delay in the performance of work in the Premises by Tenant or any person
employed by Tenant; (ill)any changes requested by Tenant in or to previously approved work or
in the approved plans and specifications; (iv)requests for materials and finishes which are not
available in a commercially reasonable time given the anticipated date of Substantial Completion
of the Landlord's Work, and/or delays in delivery of any materials specified by Tenant through
change orders, provided Landlord has first advised Tenant of the availability or unavailability of
any such materials and finishes and has given Tenant the opportunity to revise the same so as
to not cause delay; or (v) interference by Tenant with the construction of the Landlord's Work.
Tenant Delay shall not include any delay in Substantial Completion caused by Landlord or
Landlord's contractors. Notwithstanding anything to the contrary contained herein, no Tenant
Delay shall be deemed to have occurred unless and until Landlord has provided written notice to
Tenant specifying the action or inaction that Landlord contends constitutes a Tenant Delay. If
such action or inaction is not cured within two(2)business days after receipt of such notice,then
a Tenant Delay, as set forth in such notice, shall be deemed to have occurred commencing as of
the date such notice is received and continuing for the number of days that Substantial Completion
of the Landlord's Work was in fact delayed as a result of such action or inaction.
Section 5.2 TENANT'S WORK. Tenant shall, at Its sole cost and expense, build out
the Premises and construct all improvements necessary to prepare for the opening to the public
of Tenant's store in the Premises iertAnt's.Work") In accordance with plans and specifications
prepared by Tenant and approved in advance and in writing by Landlord ("Tenant's Plans").
Tenant's Work shall be performed(i)by Tenant at Tenant's sole cost and expense, subject to the
Tenant Allowance(as hereinafter defined),(ii)in a first class,workman-like manner with first class •
materials, (ill)In conformance with all building codes, orders and regulations, (Iv)by duly qualified
or licensed persons, and(v) in accordance with all requirements set forth in this Lease, including
but not limited to, the provision of Article 6 of this Lease and the ECRs. Landlord hereby agrees
to pay to Tenant an amount equal to $60.00 per rentable square foot towards Tenant's
construction costs(the"Tenant Allowance"). The Tenant Allowance shall be paid to Tenant within
thirty(30) days after the following conditions have been satisfied: (i)Tenant has completed all of
Tenant's Work in accordance with plans approved in writing by Landlord and is open for business
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to the public in the Premises, (ii)Tenant has paid the first months Minimum Rent, (iii)Tenant has
furnished to Landlord properly executed final lien waivers from all of the contractors,
subcontractors and material suppliers performing Tenant's Work, and (iv) Tenant provides
Landlord with a copy of the final Certificate of Occupancy, if required by local authorities. Any
work in addition to any of the items specifically enumerated in said Exhibit C shall be performed
by Tenant at its own cost and expense.
(a) Landlord's approval of Tenant's Plans shall not constitute the assumption of such
items. Notwithstanding anything to the contrary contained herein, Landlord's approval of
any plans and specifications submitted by Tenant pursuant to this Section 5.2 or otherwise
is not intended and shall not be deemed to constitute a representation, warranty or
assurance of any kind that such plans and specifications and Tenant's Work shown
thereon comply with any applicable building or zoning codes or that Tenant's Work, as
depicted on such plans and specifications, is structurally sound. Tenant shall be solely
responsible for causing such compliance and for the quality and structural integrity of any
Tenant's Work, and Tenant acknowledges that it is not relying on Landlord or its agents,
employees or contractors for the same. All work performed by Tenant shall be performed
diligently and in a good and workmanlike manner and in compliance with such reasonable
rules and regulations as Landlord and its representatives may make and in accordance
with all applicable laws,ordinances,codes and insurance company requirements. Tenant
shall not open the Premises for business until all construction has been completed in
accordance with the final plans and specifications as approved by Landlord and a
Certificate of Occupancy has been issued. It is further understood and agreed that (i)
Landlord shall have no responsibility or liability whatsoever for any loss to, or damage to,
any fixtures, equipment, merchandise or other property belonging to Tenant installed or
left in the Premises; and (ii) Tenant's entry upon and occupancy of the Premises prior to
the Rent Commencement Date shall be governed by and subject to all the provisions,
covenants and conditions of this Lease. Tenant shall obtain at its sole cost, and
immediately thereafter furnish to Landlord, all certificates and approvals with respect to
work done and installations made by Tenant that may be required for the issuance of a
Certificate of Occupancy for the Premises, so that such Certificate of Occupancy shall be
issued and the Premises shall be ready for the opening of Tenant's business on the Rent
Commencement Date. Unless already obtained by Landlord, upon the issuance of the
Certificate of Occupancy,a copy thereof shall be promptly delivered to Landlord. Promptly
upon the completion of Tenants Work, Tenant shall repair, clean and restore all portions
of the Property affected by Tenant's Work to their prior condition.
Section 5,3 CONDITION OF PREMISESAND_.QPE.RATIONS. Except as provided
in this Lease, Tenant agrees that no promises, representations, statements, or warranties have
been made on behalf of Landlord to Tenant respecting the condition of the Premises, or the
manner of operating the Property, or the making of any repairs to the Premises. By taking
possession of the Premises, Tenant acknowledges that the Premises were in good and
satisfactory condition (subject to latent defects and Punch List items identified by Tenant pursuant
to Exhibit CI. Tenant shall keep and maintain the Premises in a clean,sanitary and safe condition
in accordance with applicable laws and in accordance with all directions, rules and regulations of
the health officer, the building inspector, the National Fire Protection Association and any other
officials of the governmental or quasi-governmental agencies having jurisdiction, at the sole cost
and expense of Tenant, and Tenant shall comply with all requirements of laws, ordinances,rules,
regulations and orders of any lawful authority having jurisdiction affecting the Premises or
Tenant's use thereof. Tenant, at its expense, shall install and maintain fire extinguishers and
other fire protection devices as may be required by reason of the conduct of Tenant's business
13
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from time to time by any agency having jurisdiction or the underwriters insuring the building in
which the Premises are located.
ARTICLE 6
ALTERATIONS,TRADE FIXTURES, SIGNS AND LIENS •
Section 6.1 ALTERATIONS BY TENANT. Tenant, at its expense, during the Lease
Term may make such non-structural alterations to the interior of the Premises as it deems
appropriate; provided, that (I)the structural integrity of the Premises is not thereby adversely
affected or diminished, (Ii)the roof of the Premises is not affected, (iii)the value of the building in
which the Premises are located is not thereby diminished, (iv)the exterior appearance(including
the store front)of the Premises is not thereby altered or changed,(v)the locations of interior walls
and restrooms are not altered, and (vi)the cost of alteration does not exceed $50,000.00, In all
other instances Tenant shall secure the prior written approval of Landlord before making any •
alterations, which consent may be conditioned on the furnishing by Tenant of a bond of a surety
company reasonably acceptable to Landlord. In all cases,Tenant must obtain Landlord's written
consent before making any installations on the roof of the Premises or any roof penetrations for
the purpose of installing vents, exhaust fans or similar devices to serve the Premises or for any
other purpose. All such alterations shall be completed in a good and workmanlike manner with •
first-class materials and workmanship. Tenant shall make no additions or alterations whatsoever
to the exterior of the Premises without the prior written consent of Landlord. Any additions or
alterations made to the interior of the Premises by Tenant (including but not limited to any
carpeting, linoleum, or other floor covering which is cemented, glued, or otherwise affixed to the
floor of the Premises)shall remain a part of the Premises and be surrendered therewith upon the
expiration or termination of this Lease, excluding Tenant's, or any subtenant's, trade fixtures,
equipment, furniture and personal property. Furthermore, advance written approval of Landlord
is required before Tenant removes or replaces any existing glass frontage including doors and
windows. •
Section 6.2 INSURANCE.DURING CONSTRUCTION. During any construction by
Tenant, Tenant agrees, at its sole cost and expense, to obtain and maintain Builder's Risk
Insurance or such other insurance as is necessary and adequate to fully protect Landlord,as well
as Tenant, from and against any and all liability for death or injury to person, or damage to
property, caused by the construction of Tenant's Work and construction of any alterations or
improvements during the Lease Term ("Construction Liability Insurance") and to carry worker's
compensation insurance within statutory limits. Construction Liability Insurance limits of
$2,000,000.00 shall be deemed to be adequate. Tenant shall provide Landlord with certificate of
insurance prior to commencement of construction.
Section 6.3 PERSONAL PROPERTY AT RISK OF TENANT. All personal property
in the Premises shall be at the risk of Tenant only. Landlord shall not be liable for any damage to
any property of Tenant or its agents or employees in the Premises caused by any reason
whatsoever, including, without limitation, fire, theft, steam, electricity, sewage, gas or odors, or
from water,rain,or snow which may leak into,issue or flow into the Premises from any part of the
Property, or from any other place, or for any damage done to Tenant's property In moving same
to or from the Property or the Premises. Tenant shall give Landlord, or its agents, prompt written
notice of any damage to or defects in water pipes, gas or warming or cooling apparatus in the
Premises_
•
Section 6.4 SIGNS. Tenant may install upon the exterior of the Premises and remove
therefrom, at Tenant's expense, signs relating solely to the businesses conducted in the
•
•
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Premises, provided such signage is approved by Landlord, approval not to be unreasonably
withheld, conditioned or delayed, and such signage shall be compliant with the ECRs and all
applicable laws, ordinances, and governmental regulations and which will cause no damage to
the Premises. Tenant shall not place or erect any signs or other devices upon any of the Common
Areas.
Section 6.5 MECHANIC'S LIENS. Tenant shall at all times keep and maintain the
Premises and all other parts of the Property free from any and all liens arising out of any work
performed,materials furnished or obligations incurred by or for the benefit of Tenant in connection
with the Premises. The interest of Landlord in the Premises and the Property shall not be subject
to liens for improvements made by or on behalf of Tenant, and nothing contained in this Lease
shall be construed as a consent on the part of Landlord to subject Landlord's estate in the
Premises or the Property to any lien or liability under applicable law. In the event that any
mechanic's, materialman's or other lien or any notice of claim, including (without limitation) any
stop notice (each, a"lien"), is filed against the Premises or the Property as a result of any work,
labor, services or materials performed or furnished, or alleged to have been performed or
furnished, to or for the benefit of Tenant or to anyone holding the Premises by,through or under
Tenant, Tenant, at its expense, shall cause the lien to be discharged of record or fully bonded to
the satisfaction of Landlord within twenty(20)days after notice of the filing thereof. If Tenant fails
to discharge or bond against said lien within twenty (20) days after notice of the filing thereto,
Landlord may, In addition to any other rights or remedies Landlord may have, but without
obligation to do so, bond against or pay the lien without inquiring into the validity or merits of such
lien, and all sums so advanced, Including reasonable attorneys' fees incurred by Landlord in
defending against such lien, procuring the bond or discharging such lien, shall be paid by Tenant
on demand as additional rent. In addition, Tenant shall replace any bonds posted by Landlord
pursuant hereto with a suitable bond of equivalent amount within ten (10) days after Landlord's
demand therefor.
Section 6.6 WAIVER. OF _LANDLORD'S_ .LIEN. Landlord hereby waives any
statutory,common law or other right to distrain for rent against and any lien on or against Tenant's
inventory, goods,equipment, trade fixtures and personal property. Additionally, upon request by
Tenant, Landlord agrees to execute a commercially reasonable collateral access agreement for
the benefit of Tenant's lender.
Section 6.7 CHANGES AND ADDITIONS TO BUILDINGS. Landlord hereby
reserves the right at any time to make alterations or additions to and to build additional stories on
the Building, provided none of the same adversely affects the Premises or the operation of the
businesses therein. Landlord also reserves the right to construct other buildings or improvements
on the Property (including common areas), and to make alterations thereof or additions thereto
and to build additional stories on any such building or buildings.
ARTICLE 7
COMMON AREAS 1
Section 7.1 DEFINITION OF COMMON AREAS. Subject to the ECRs, in addition to
the occupancy of the Premises,Tenant and Tenant's employees,agents,customers,and invitees
also shall have the right to the non-exclusive use of all common areas within the exterior boundary
and ingress and egress roadway of the Property ("Common Areas") which are now or may
hereafter be available for the joint and common use and benefit of Landlord, Tenant and the other
tenants in the Building, and their employees, agents and other permittees,which common areas
shall include, but not be limited to, automobile customer and employee parking areas; access
15
4837-8829-8194.4
1
roads; driveways and sidewalks; fences; water, sewer, gas, electric, telephone and other utility
lines serving the Building; landscaped areas; restrooms; and such other facilities as may be
designated from time to time by Landlord as Common Areas. Such use of the Common Areas at
all times shall be subject to the ECRs and to such reasonable rules and regulations as Landlord
from time to time may establish in accordance with Section 4.6 of this Lease, and Tenant shall
abide by all such rules and regulations established by Landlord, provided that neither the ECRs,
or any amendments or modifications thereof, nor such rules and regulations impose additional
financial obligations on Tenant, restrict Tenant's rights under this Lease, or interfere with the
ability of Tenant to conduct its business at the Premises in the manner contemplated In this Lease.
Landlord shall have the right in its sole and absolute discretion, without the consent or approval
of Tenant, at any time and from time to time (i)to enter into, modify, and terminate easements
and other agreements pertaining to the use and maintenance of the Common Areas; (ii)to close
temporarily or permanently any or all portions of the Common Areas; (iii)to change the
dimensions, configurations, and locations of the Common Areas, as well as the location,
dimensions, configurations, identity, and type of any buildings shown thereon, to construct
additional buildings or additional stories on existing buildings or other improvements on the
Property, and to eliminate buildings from the Property excluding the building in which the
Premises are located;(iv)to operate for its own account various income-producing facilities in the
Common Areas; (v)to erect such promotional and other displays within the Common Areas as
Landlord may deem desirable;(vi)to do and perform such other acts in and to the Common Areas
as Landlord shall determine to be necessary or appropriate; provided that none of the foregoing
shall not adversely restrict visibility of or access to the Premises or adversely affect the Premises
or the operation of the businesses conducted therein. No exercise by Landlord of any rights
herein reserved shall be deemed to be a constructive or actual eviction of Tenant or entitle Tenant
to any compensation or damages from Landlord for any injury,inconvenience, or loss of business
or to the abatement of any Minimum Rent or Percentage Rent. Nothing contained in this section
shall be deemed to create any liability upon Landlord for any damage to motor vehicles of
customers or employees or for loss of property from within such motor vehicles while located on
the Common Areas. Tenant shall not use any portion of the Common Areas for the conduct of its
business or for the solicitation of business without the prior written consent of Landlord.
Section 7.2 COMMON AREA MAINTENANCE EXPENSES. "Common Area
Maintenance Expenses" shall mean all costs and expenses of every kind and nature paid or
incurred by Landlord, or for which Landlord is obligated,during each Lease Year(or Partial Lease
Year, as the case may be), for owning, operating,equipping, policing and protecting, heating, air
conditioning, providing sanitation and sewer and other services, lighting, insuring, repairing,
replacing and maintaining (i)the Common Areas; (ii) all buildings and roofs within the Property;
and (iii) all other areas, facilities and buildings used in connection with the maintenance and/or
operation of, and whether located within or outside of, the Property, including(without limitation)
all roads and driveways serving the Property which are maintained or repaired by Landlord or at
Landlord's expense. The Common Area Maintenance Expenses shall include, without
duplication, but are not limited to, costs and expenses of:water, gas, sewage, electricity, refuse
disposal, grease collection, air conditioning, heating and other utilities, including (without
limitation) all usage, service, hook-up, connection, availability and/or standby fees or charges
pertaining to same all to the extent located in or serving the Common Areas; illumination and
maintenance of signs, whether located on or off the Property; maintenance, repair and
replacement of directories, electronic or otherwise, cleaning, lighting, snow removal and
landscaping; security control and fire protection; uniforms for maintenance, administrative and
security personnel for the Property; maintenance for wooded areas, retention ponds and
wetlands; premiums for Insurance to the extent maintained by Landlord for liability, casualty and •
property damage, including (without limitation) insurance against vandalism, plate glass
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breakage, fire and extended coverage insurance,rent loss coverage and such other coverage as
reasonably determined by Landlord, if any; personal property taxes on equipment used in the
operation and maintenance of the Property; the Building's share of all charges and assessments
under the ECRs; the reasonable depreciation of equipment used in the operation and
maintenance of the Common Areas; total compensation and benefits (including premiums for
workers' compensation and other insurance) paid to or on behalf of employees of Landlord
involved in the performance or administration of the work specified in this Section 7.2, but only to
the extent such employee's time is directly spent working on the Common Areas or administering
the work specified in this Section 72; repair, maintenance and cleaning of the Common Areas;
operation,repair,maintenance and reasonable depreciation of all temporary and permanent utility
systems for the Common Areas of the Property, including (without limitation) heating, ventilating
and air conditioning Systems (HVAC systems), gas system(s), plumbing system(s), electrical
equipment and irrigation pumping system(s); operation, repair, maintenance and reasonable
depreciation of emergency water and sprinkler main system(s) and security alarm system(s);
operation, maintenance, repair and replacement of mechanical equipment, including any
automatic door openers, elevators, escalators, lighting fixtures (including replacement of poles,
tubes and bulbs) and all other items of equipment used in connection with the Common Areas;
supplies in restrooms located In, on or about the Common Areas; cleaning, lighting, striping and
landscaping,curbs,gutters,sidewalks,drainage and irrigation ditches,conduits, pipes and canals
serving the Property; reserves for replacement of all roofs and parking lots in the Property
("Reserves"); and management and administrative fees not to exceed four percent (4%) of the
total Rent paid by Tenant (including Common Area Maintenance Expenses, Taxes and
Insurance). Notwithstanding the foregoing, Common Area Maintenance Expenses shall not
include expenses due to, (I) capital improvements however, Landlord can Include capital
expenditures made in order to (A) reduce Common Area Maintenance Expenses, (B) Increase
energy efficiency of the Building, (C) replace existing equipment, machinery or improvements,
such capital costs and expenses to be amortized over such reasonable period as Landlord shall
determine; (ii)costs of correcting latent defects In Landlord's Work or(D)comply with applicable
laws; (iii) painting, redecorating or other work that Landlord performs for any other tenant or
prospective tenant of the Property; (iv)repairs or other work(including rebuilding) occasioned by
fire, windstorm or other casualty or by condemnation to the extent that proceeds of insurance or
condemnation awards are received therefor; (v) any costs that are separately charged to and
payable by tenants or for which Landlord is compensated by insurance proceeds or warranties;
(vi)costs incurred in connection with the initial construction of the Property, Building or Landlord's
Work or in connection with original or subsequent land acquisitions; (vii) expenses incurred In
teasing or procuring new tenants, including leasing commissions, legal or consulting fees,
advertising and marketing expenses and expenses for preparation of leases or renovating space
for new tenants,rent allowances, lease takeover costs,payment of moving costs and similar costs
and expenses; (viii) interest, principal, late charges, default fees, prepayment penalties or
premiums on any debt owed by Landlord, including any mortgage debt (provided that the
foregoing shall not include the costs related to financed or leased equipment or fixtures, to the
extent they would otherwise be includable in Common Area Maintenance Expenses if such •
equipment or fixtures were purchased by Landlord without any debt); (ix) any rental payments
and related costs pursuant to any ground lease of land underlying all or any portion of the
Property; (x) costs in connection with work or services which Landlord performs solely for any
other tenant and which are not available to Tenant without specific charge therefor, (xi) wages,
salaries, benefits, reimbursable expenses and taxes(or allocations thereof)for full and part time
personnel involved in management of the Property at or above the level of senior property
manager or for any officers or executives of Landlord or its affiliates;(xii)amounts paid to Landlord
or to affiliates of Landlord for goods and/or services in or to the Property that exceed the costs for
such services exceed competitive costs for such services if they were rendered by an unaffiliated
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party on a competitive basis; or (xiii) costs of removal or remediation of Hazardous Substances
required in order to comply with any Environmental Laws applicable to the Property. If Landlord
incurs Common Area Maintenance Expenses for the Property together with one or more other
buildings or properties, whether pursuant to a reciprocal easement agreement, common area
agreement or otherwise, the shared costs and expenses shall be equitably prorated and
apportioned between the Property and the other buildings or properties. Upon the expiration or
termination of this Lease, if Tenant has contributed to the Reserves pursuant to this Section 7.2
and Landlord has not expended the Reserves for the purposes for which they were collected,
then Landlord will promptly refund to Tenant the amount of such unexpended Reserves
contributed by Tenant,
Section 7.3 CONTROLLABLE COMMON AREA.MAINTENANCE EXPENSES. The
foregoing provisions notwithstanding, beginning with calendar year 2022, for purposes of
calculating Tenant's Proportionate Share of Controllable Common Area Maintenance Expenses
(defined below), Controllable Common Area Maintenance Expenses shall not increase by more
than 5% per year over the actual Controllable Common Area Maintenance Expenses for the
preceding calendar year on a non-cumulative basis. "Controllable Common Area Maintenance.
Expenses" means Common Area Maintenance Expenses other than Taxes, Insurance, utility
costs, and snow removal costs.
Section 7.4 TENANT'S PAYMENT OF CAM. Tenant agrees to pay to Landlord from
and after the Rent Comniencemerit Date, in the manner hereinafter provided, Tenant's
Proportionate Share of all Common Area Maintenance Expenses. Prior to the commencement
of each Lease Year throughout the term of this Lease, Landlord will deliver an estimated
statement of Common Area Maintenance Expenses for such Lease Year by sending a statement
to Tenant. Tenant covenants to pay Landlord the amount reflected on said statement as Tenant's
Proportionate Share on a monthly basis with each installment of Minimum Rent falling due. The
actual amount of Tenant's Proportionate Share of Common Area Maintenance Expenses shall be
calculated at the end of each Lease Year, and Tenant shall pay any shortfall or Landlord shall
refund any overcharge, as applicable, within thirty (30) days of submission of Landlord's final
statement for such Lease Year. Landlord shall send a final statement of Common Area
Maintenance Expenses for each Lease Year within one hundred twenty (120)days of the end of
such Lease Year. With respect to any Lease Year that is less than or greater than three hundred
sixty-five(365)days,Tenant's Proportionate Share of Common Area Maintenance Expenses and
all other amounts payable hereunder on the basis of a Lease Year shall be prorated based on the
number of days in such Lease Year. Any amount contributed by Tenant toward Reserves shall
be applied as a credit to Tenant's Proportionate Share of Common Area Maintenance Expenses
in the year such Reserves are expended by Landlord.
Section 7.5 AUDIT RIGHTS. Tenant shall have the right, at Tenant's sole cost and
expense, upon at least thirty (30) days' prior notice to Landlord, at any time during regular
business hours,to review Landlord's records pertaining to Common Area Maintenance Expenses •
for the immediately preceding Lease Year, Landlord shall upon request provide Tenant with
electronic copies of all information relating to Common Area Maintenance Expenses. The
inspection of Landlord's records must be completed within thirty (30)days after such records are
made available to Tenant, and the written determination of Tenant must be delivered to Landlord
within six (6) months after Tenant's receipt of the applicable final statement. If Tenant fails to
deliver the written determination of Tenant within said six (6) month period, Tenant shall forfeit
any right to claim a refund,rebate, or return of Common Area Maintenance Expenses set forth In
the applicable statement. If Tenant engages a certified public accountant or any other firm,
service or professional(collectively,*.Tenant's CPA")to inspect Landlord's records,then Tenant's
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CPA shall not be compensated on a contingency basis, in whole or in part. If, following the date
Landlord receives the written report of Tenant or Tenant's CPA,as applicable(the"Report Date"),
Landlord disputes the findings therein, and Landlord and Tenant are not able to resolve their
differences within thirty (30) days following the Report Date, the dispute shall be resolved by
binding arbitration as follows: Landlord and Tenant shall each designate an independent certified
public accountant, who shall in turn jointly select an independent certified public accountant (the
Independent CPA"). Within sixty(60)days after selection,the Independent CPA shall review the
relevant records relating to Tenant's Common Area Maintenance Expenses and determine the
proper amount payable by Tenant,which determination shall be final and binding upon the parties.
If the Independent CPA determines that the amount of Common Area Maintenance Expenses
billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or
overpayment, as applicable, within thirty(30)days following delivery of the Independent CPA's
decision, without interest. The fees and costs of the Independent CPA shall be paid by Tenant
unless the Independent CPA determines that Tenant has overpaid Common Area Maintenance
Expenses for the applicable Lease Year, in the aggregate, by more than five percent (5%), in
which case Landlord shall pay the fees and costs of the Independent CPA not to exceed
$1,500.00. Tenant shall keep all information obtained by Tenant in connection with its review of
Landlord's records confidential and obtain the agreement of Tenant's CPA, if applicable,and the
Independent CPA to keep all such information confidential.
Section 7.6 PARKING. Tenant and its employees,customers and invitees shall have
the non-exclusive right,at no-additional cost or expense,to use any parking area now or hereafter •
made available and designated for parking generally for tenants and their employees, customers
and visitors in the Property. Such general parking shall be on a "first come, first served"
unassigned basis, with Landlord and other tenants of Property and their employees and visitors.
Tenant and its employees shall park their motor vehicles in the areas of Property specifically
designated from time to time by Landlord for that purpose. Upon Landlord's request, Tenant
agrees to furnish Landlord with a list of the automobile numbers of Tenant's employees.
ARTICLE 8
MAINTENANCE OF PREMISES
Section 8.1 MAINTENANCE.AND REPAIRS. Except as otherwise provided in this
Lease and subject to reimbursement of certain costs thereof as Common Area Maintenance
Expenses, Landlord at its expense shall keep and maintain the foundation, roof, and structural
portions of the walls of the Premises, and the main utility connections serving the Premises, in
good condition and repair at all times during the Lease Term, except for damage thereto caused
by the acts or omissions of Tenant or any of Tenant's contractors,employees, agents,customers,
or invitees. Tenant shall be responsible for and shall at its expense repair any damage to the roof
of the Premises resulting from any penetration of the roof of the Premises made by Tenant or its
agents or contractors for the purpose of installing vents, exhaust fans, or similar devices serving
the Premises or for any other purpose. Tenant at Its expense shall repair any damage to any
portion of the Premises caused by the acts or omissions of Tenant or any of Tenant's contractors,
employees, agents, customers, or invitees. Except for those Items for which Landlord is
responsible pursuant to the first sentence of this section, Tenant at its expense shall keep and
maintain the Premises in good condition and repair at all times during the Lease Term and as
may be required to comply with all applicable laws, ordinances, rules, and regulations, now
existing or hereafter enacted, of any federal, state, or local governmental agency or subdivision
having Jurisdiction over the Premises. Tenant's responsibilities under this Section shall include
but are not limited to all plate glass windows and doors in the Premises,the store front or fronts
of the Premises, and the fixtures and equipment serving or constituting a part of the Premises
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(including but not limited to the lighting, heating,air conditioning, ventilating, plumbing, electrical,
sewer, and other mechanical systems and equipment serving the Premises). Tenant at its
expense promptly shall make any and all repairs and replacements to the Premises and to the
fixtures and equipment serving or constituting a part thereof which may be required to comply
with the obligations of Tenant under this Section, in each case in a good and workmanlike manner
using materials, fixtures, and equipment whose quality is at least equal to that of the materials,
fixtures, and equipment being repaired or replaced. Upon the expiration or termination of this
Lease, Tenant shall deliver the Premises and the fixtures and equipment constituting a part
thereof(excluding Tenant's trade fixtures) to Landlord in good condition and repair, reasonable
wear and tear and damage by casualty or condemnation excepted. Notwithstanding the foregoing
provisions of this section, Landlord and Tenant agree that this Section shall not be applicable to
any damage to or destruction of the Premises falling within the scope of Article 14 (dealing with
casualties) or Article 15 (dealing with eminent domain), which damage or destruction shall be
governed by the provisions of such other Sections.
Section 8.2 SURRENDER OF PREMISES. Upon the expiration or termination of this
Lease, Tenant agrees forthwith to surrender to Landlord possession of the Premises and the
fixtures and equipment constituting a part thereof with all keys thereto, in the condition the
Premises were in after initial improvements had been completed by Landlord and Tenant in
accordance with this Lease (reasonable wear and tear excepted and damage by casualty or
condemnation excepted), and shall surrender all keys for the Premises to Landlord at the place
then fixed for the payment of rent, Tenant shall remove all its personal property, equipment,
furnishings and trade fixtures,in accordance with Section 6.1,and its signage before surrendering
the Premises as aforesaid and shall repair any damage to the Premises and the sign facia caused
thereby. Tenant's obligation to observe or perform this covenant shall survive the expiration or
other termination of the Lease Term.
Section 8.3 ENTRY BY LANDLORD. Landlord shall have the right upon not less
than 24 hours prior notice to Tenant,to enter upon the Premises at all reasonable hours for the
purpose of inspecting the Premises, for the purpose of making repairs, additions or alterations
thereto, or for any other lawful purpose. For a period commencing one hundred twenty (120)
days prior to the expiration of this Lease, Landlord may have reasonable access to the Premises
for the purpose of exhibiting the Premises to prospective tenants thereof and may display "For
Rent"signs on the Premises.
ARTICLE 9
INSURANCE
Section 9.1 LANDLORD INS PRANCE. Landlord at all times during the Lease Term
and any other period of occupancy of the Premises by Tenant shall obtain and keep in force with
respect to the Common Areas commercial general public liability insurance in form customarily
written for the protection of owners, landlords, and tenants of real estate, which insurance shall
provide coverage for both Landlord and Tenant of not less than $2,000,000 for each occurrence
of bodily injury or property damage. Landlord further agrees at all times during the Lease Term
and any other period of occupancy of the Premises by Tenant to maintain and keep in force with
respect to the Property(i) an all-risk form of replacement value Insurance against physical loss or
damage on at least an eighty percent (80%) co-insurance basis, (Ii) insurance against loss of
rents, and (iii)commercial general liability insurance.
Section 9.2 TENANT'S INSURANCE CONTRIBUTION. Commencing upon the
Rent Commencement Date,Tenant shall pay to Landlord for each calendar year during the Lease
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•
Term and any other period of occupancy of the Premises by Tenant, as Additional Rent, and
without duplication as to any amount thereof included in Common Area Maintenance Expense,
Tenant's Proportionate Share of the premiums actually paid by Landlord during such calendar
year for the Insurance coverages required hereunder. if any building in Property is separately
insured against physical loss or damage and the premiums for such separate insurance are
payable by a tenant or owner other than Landlord, then such insurance premiums shall not be
included in the premiums upon which Tenant's Proportionate Share of insurance costs is based;
and In such event the denominator for purposes of calculating Tenant's Proportionate Share shall
be reduced by the number of square feet of leasable floor space contained in the building or
buildings which are covered by such separate insurance. Tenant shall pay to Landlord,
concurrently with Tenant's payments of monthly installments of Minimum Rent, an amount equal
to one-twelfth (1/12) of the estimated Tenant's Proportionate Share of insurance costs for the
current calendar year as determined annually and communicated to Tenant in writing by Landlord;
within thirty(30)days after the end of each calendar year,Tenant shall pay to Landlord any unpaid
portion of its actual estimated Tenant's Proportionate Share of insurance costs for such calendar
Year or shall be entitled to a credit from Landlord for any excess insurance contribution actually
paid by Tenant for such calendar year. Tenant's Proportionate Share of insurance costs shall be
prorated for any period of Tenant's occupancy of the Premises which is less than a full calendar
year, unless Tenant Is otherwise obligated under this Lease in respect of all of such calendar
year.
Section 9.3 TENANT INSURANCE. Tenant at its expense at all times during the
Lease Term and any other period of occupancy of the Premises by Tenant shall obtain and keep
in force with respect to the Premises (i)commercial general public liability insurance in form
customarily written for the protection of owners, landlords, tenants, tenants' agents, patrons,
employees,invitees and contractors or anyone else for whom Tenant is responsible of real estate,
with Landlord (and Landlord's management company) and Tenant as named insureds, which
insurance shall provide coverage of not less than$1,000,000 for each occurrence of bodily injury
or property damage, (ii)workers'compensation insurance as required by statute, and employers'
liability insurance in the amount of at least $500,000 per occurrence, (iii)plate glass insurance
covering all plate glass and the storefront therefore and (iv)liquor liability coverage. Tenant also
shall carry such personal injury and special liability insurance coverages, including but not limited
to premises-operations, products and professional liability coverages as may be customary or
appropriate with respect to Tenant's business or as Landlord reasonably may require and shall
include Landlord (and Landlord's management company) as a named insured thereunder.
Tenant understands and acknowledges that the insurance which the second sentence of this •
requires Landlord to obtain and keep in force will not cover any of Tenant's property, including
but not limited to leasehold improvements. Tenant agrees,at its expense,during the Lease Term •
and other period of occupancy of the Premises by Tenant to obtain and keep In force with respect
to Tenant's leasehold Improvements, inventory,fixtures and equipment,signs,and other personal
property in the Premises replacement value fire and broad form extended coverage insurance on
at least an eighty percent (80%) co-insurance basis; Landlord (and Landlord's management
company)shall be included as a named insured under the policies providing such insurance with
respect to Tenant's leasehold improvements, and Tenant shall furnish Landlord (and Landlord's
management company) with an appropriate certificate evidencing that all such insurance is in
force and that Landlord is a named insured thereunder as to such leasehold improvements. All
policies of insurance required to be carried by Tenant hereunder shall provide that they may not
be canceled without at least thirty (30) days prior written notice to Landlord. Prior to Tenant's
taking possession of the Premises, Tenant shall furnish to Landlord appropriate certificates
evidencing that such insurance is in force and that Landlord is named as an insured thereunder;
and Tenant shall pay to Landlord, on demand, a late charge of fifty dollars ($50.00) if such
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certificates are not delivered to Landlord within thirty(30)days after Landlord has made a written
request to Tenant for such certificates.
Section 9.4 INDEMNIFICATION:_ Tenant shall hold Landlord, its employees or •
agents harmless and defend the Landlord, its employees or agents from and against any and all
losses, damages, claims, or liability for any damage to any property or injury, illness or death of
any person: (a)occurring in, on, or about the Premises, or any part thereof, arising at any time
and from any cause whatsoever other than solely by reason of the gross negligence or willful
misconduct of the Landlord, its employees or agents; and (b) occurring In, on, or about any part
of the Property or the areas adjacent thereto other than the Premises,when such damage,injury,
illness or death shall be caused in whole or in part by the negligence or willful misconduct of
Tenant, Its agents, servants, employees, invitees or licensees. Landlord shall hold Tenant, its
employees or agents harmless and defend Tenant, its employees or agents from and against any
and all losses, damages, claims, or liability for any damage to any property or injury, illness or
death of any person: (a) arising by reason of the gross negligence or willful misconduct of the
Tenant, its employees or agents;and(b)occurring in, on, or about any part of the Property or the
areas adjacent thereto other than the Premises,when such damage, injury, illness or death shall
be caused In whole or in part by the negligence or willful misconduct of Landlord, its agents,
servants, contractors or employees. The provisions of this Article shall survive the termination of
this Lease with respect to any damage, injury, illness or death occurring prior to such termination.
References herein to the indemnitees shall include their respective agents and employees.
Section 9.5 WAIVER OF CLAIMS. Each party hereto hereby waives any and all
claims for or rights of recovery which such party or anyone claiming through such party may have
against the other party hereto (or such other party's officers, agents, or employees) for or with
respect to any loss of or damage to such waiving party's property or for any business interruption
which is insured or indemnified under valid insurance policies, whether or not such loss,damage,
or business interruption is caused by the negligence of such other party or such other party's
officers, agents, employees, or any other person or persons for whose actions such other party
may be responsible or liable; provided, that the foregoing waiver shall be effective only to the
extent of the insurance proceeds actually collected under such policies in respect of such loss,
damage, or business interruption and only when permitted by the applicable insurance policy.
Section 9.6 NO LIABILITY OF.LANDLORD. Landlord shall not be responsible or
liable to Tenant or anyone claiming through Tenant for any loss or damage that may be caused
by or through the acts or omissions of persons occupying premises adjacent to the Premises or
in any other part of the Property (or of their customers, employees, agents, or invitees)or for any
expense, loss, or damage sustained by Tenant or anyone claiming through Tenant from (a) the
•
bursting, stoppage, or leaking of water, gas,sewer or steam pipes,downspouts,tanks,drains, or
fixtures wherever located, (b) broken glass, (c)water, snow, or ice upon the Property or any
portion thereof, (d)theft or other dishonest act by anyone other than Landlord, (e)water,wind, or
other weather or natural condition or event, or (f)defects in the Premises or any fixtures or
equipment therein which Landlord has not expressly agreed in writing to remedy or which
Landlord is not otherwise obligated to remedy under the terms of this Lease.
ARTICLE 10
UTILITIES
Section 10.1 UTILITIES. As of the Lease Commencement Date, Tenant shall pay for •
all gas, water, electricity, telephone, and other utility services used or consumed in or about or
furnished to the Premises during the Lease Term and shall pay all sewer use fees or similar
22
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charges made or imposed with respect to or against the Premises during the Lease Term. Tenant
shall hold Landlord and the Premises harmless from all liens, charges, and costs with respect to
such items. Tenant agrees that it will not install any equipment which will exceed or overload the
capacity of any utility facilities serving the Premises and that if any equipment installed by Tenant
requires additional utility facilities, such additional utility facilities shall be installed at Tenant's
expense in accordance with plans and specifications approved in writing in advance by Landlord.
Landlord shall not be liable for any interruption in the supply of any utilities to the Premises or for
any damage caused either to the electrical system or to Tenant's equipment in the Premises by
any power surge. Landlord does not guarantee the availability of any utilities,
ARTICLE 11
SUBORDINATION
Section 11.1 ESTOPPEL CERTIFICATES. Each party,from time to time upon written
request from the other party,agrees to execute, acknowledge, and deliver to the requesting party
within ten (10) days after such written request,without charge, in form reasonably satisfactory to
the requesting party, a written statement certifying that Tenant has accepted the Premises, that
this Lease is unmodified and in full force and effect(or, if there have been modifications,that this
Lease is in full force and effect as modified, setting forth the modifications), that it has performed
all of its obligations under this Lease and is not in default under this Lease, and such additional
facts as reasonably may be required by the requesting party.
Section 11.2 SUBORDINATION. Landlord may assign its rights under this Lease as
security to the holders of one or more mortgages (which term shall include a mortgage,deed of
trust, or other encumbrance) now or hereafter in force against the Premises or the Property.
Within ten (10) days after receipt of written request from Landlord, Tenant agrees, at no charge,
to subordinate its rights under this Lease to the lien of one or more mortgages (which term shall
include a mortgage, deed of trust, or other encumbrance now or hereafter In force against the
Premises or the Property) and to all advances made or hereafter to be made upon the security
thereof; provided, that any such mortgage shall provide, or the mortgagee shall agree, that the
mortgagee, in the event of its acquiring title to the Premises or the Property, whether through
foreclosure,judicial process,power of sale,or otherwise,shall recognize the validity of this Lease
and shall honor the rights of Tenant under this Lease so long as Tenant(a)is not in default under
this Lease beyond applicable notice and cure periods at the time such mortgagee acquires title
to the Premises or the Property and (b)agrees to attorn to such mortgagee as if it were the
original landlord under this Lease. Such subordination shall be in such form as Landlord or the
mortgagee may reasonably require.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
Section 12.1 ASSIGNMENT AND SUBLETTING. Except as otherwise provided
herein, Tenant shall have no right to assign this Lease or to sublet the Premises without the prior
written consent of Landlord, which consent may be withheld by Landlord In Landlord's sole
discretion for any reason whatsoever; provided, that if Landlord in its absolute discretion gives
such consent, then Tenant shall remain primarily liable to Landlord for the payment of the rent
and the performance of all of Tenant's other obligations under this Lease for the remainder of the
Lease Term. Tenant shall not allow or permit any transfer of this Lease, or of any interest in or
rights under this Lease, by operation of law and shall not mortgage, pledge, or encumber this
Lease or any interest herein. For purposes of this section, a change in control of Tenant shall be
deemed to be an assignment of this Lease requiring Landlord's prior written consent. if Landlord
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•
consents to an assignment of this Lease by Tenant, then such consent shall apply only to the
remainder of the then current Lease Term and not to any subsequent periods as to which Tenant
has an unexercised option to extend the Lease Term;and any such option or options shall be of
no further force or effect after such assignment has been consented to by Landlord. Landlord
shall have the absolute right, exercisable in its sole discretion for any reason, to withhold any
consent which may be required under this section. In the event Tenant requests Landlord's
consent to a sublease or assignment hereunder,Tenant shall pay Landlord a non-refundable fee
of Seven Hundred Fifty Dollars $750,00, in advance, to cover Landlord's expenses incurred in
connection with reviewing and processing such request, Notwithstanding the foregoing, Tenant
shall have the right, without Landlord's prior written consent, to sublease the Premises or assign
this Lease (each, a "Permitted_ Transfer"); (1) to an entity controlled by, controlling, or under
common control with Tenant;(2)1n connection with an acquisition,reorganization or consolidation
of Tenant; or(3) to a company or other entity which acquires all or substantially all of the assets •
or equity interests of Tenant Notwithstanding the foregoing, in the case of a Permitted Transfer,
Tenant and Guarantor shall remain primarily liable for all obligations and the performance under •
this Lease.
Section 12.2 SALE.OR UNDERLYING LEASE. In the event of a sale or transfer of all
or any portion of the Property or any undivided Interest therein, or in the event of the making by
Landlord of an underlying lease of all or substantially all of the Property, or in the event of an
assignment or transfer of the leasehold estate under any such underlying lease, the respective
grantor,transferor, landlord,or assignor, as the case may be,thereafter shall be entirely relieved
of all obligations to be performed by Landlord under this Lease to the extent of the interest in or
portion of the Property so sold, transferred, or leased, Notwithstanding the foregoing provisions •
transferor, landlord, or assignor, as the case maybe, referred to in
the grantor, ,of this Section, gatg
this Section shall not be relieved of any liability to Tenant arising or occurring prior to the sale,
transfer, or lease referred to in this section.
ARTICLE 13
WASTE, GOVERNMENTAL REGULATIONS
Section 13.1 WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the Premises or any nuisance or other act or thing which may disturb
the quiet enjoyment of any other tenant in the building in which the Premises may be located, or
in the Property, or which may disturb the quiet enjoyment of any person within five hundred(500)
feet of the boundaries of the Property.
Section 13.2 ODORS. Tenant expressly agrees to prevent the permeation or spread
of odors from the Premises which interfere or are likely to interfere with the business of the other
tenants in the Property. Tenant shall install a ventilation system in the Premises which is sufficient
to insure that odors do not permeate through the walls or ceiling of the Premises into adjacent
walls of the Building or into adjacent buildings in the Property; provided, however, that cooking
odors customarily associated with restaurant businesses shall In no event be deemed interference
spread,
or a nuisance. Subject to the foregoing, in the event such odors should permea to or
Tenant agrees, at its own expense, to timely make all necessary repairs or take other remedial
action to insure the containment of such odors and to indemnify and hold Landlord harmless from
all damages, liabilities, costs and expenses incurred by Landlord, including without limitation
reasonable attorneys'fees which in any way result from the permeation or spread of odors from
the Premises.
•
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Section 13.3 GOVERNMENTAL REGULATIONS. Subject to Landlord's obligations
hereunder and in connection with the performance'of Landlord's Work, Tenant shall, at Tenant's
sole cost and expense, comply with all of the requirements of all county, municipal, state,federal
and other applicable governmental authorities, now in force, or which may hereafter be in force,
pertaining to the Premises, and shall faithfully observe in the use of the Premises all municipal
and county ordinances and state and federal statutes now in force or which may hereafter be in
force.
Section 13.4 ENVIRONMENTAL MATTERS. For purposes of this Section
"Hazardous. Substance" shall have the meaning given to such phrase in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §
9601, et seq.)and also shall include any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials which are •
regulated by any federal, state, or local law, ordinance, rule, regulation, or policy relating to the
protection of the environment. For purposes of this Section an'_ghyifonmcntal Rea uiation'is any
federal, state, or local law, ordinance, rule, regulation, or policy governing the use, storage,
treatment,transportation, manufacture, refinement, handling, production, discharge,emission, or
disposal of any Hazardous Substance. Tenant shall not use, store, handle, produce,dispose of,
discharge, take any other actions, or allow anyone else to take any of such actions,with respect
•
to any Hazardous Substance in, at, on, or from the Premises in any manner which violates any
Environmental Regulation. During the Lease Term and any other periods of Tenant's occupancy
of the Premises, Tenant at its expense shall obtain,maintain in effect,and comply with all permits
and licenses required by any Environmental Regulation applicable to Tenant or the Premises.
Within three(3)business days after Tenant is notified or otherwise becomes aware of any actual
or potential violation or alleged violation of any Environmental Regulation involving or relating to
the Premises,Tenant shall notify Landlord in writing of such actual or potential violation or alleged
violation and promptly shall deliver to Landlord copies of any written materials that Tenant may
have or thereafter receive which pertain to or purport to give notice of such actual or potential
violation or alleged violation. Tenant at its expense promptly shall conduct and complete all
investigations, studies, sampling, testing, removal, and other actions necessary to clean up and
remove from the Premises any Hazardous Substance which may have been introduced into or
upon the Premises by Tenant during the Lease Term or any other period of,occupancy of the
Premises by Tenant, all in accordance with and as required by any applicable Environmental
Regulation and the orders and directions of federal, state, and local governmental authorities
having jurisdiction over the Premises or such actions. Tenant shall provide Landlord and
Landlord's agents or representatives with access to the Premises and to Tenant's files and
records at all reasonable times for the purpose of verifying Tenant's compliance with the
requirements of this Section. Tenant shall indemnify Landlord against and hold Landlord
harmless from any and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs, or expenses of whatever kind or nature (including but not limited to attorney fees, fees of
environmental consultants, and laboratory fees) known or unknown, contingent or otherwise,
arising out of or in any way related to the presence, release, threatened release, or disposal of
any Hazardous Substance in, upon, or from the Premises by Tenant or arising out of or in any
way related to the violation by Tenant of any Environmental Regulation during the Lease Term
and any other period of Tenant's occupancy of the Premises, Notwithstanding the foregoing,
Tenant's indemnification obligations shall not apply to any damages suffered or incurred by
Landlord as a result of (a) Hazardous Substances existing at the Premises or Property prior to
the date of this Lease or(b)a release of Hazardous Substances caused by any person other than
Tenant. The obligations of the parties under this Section shall survive the termination of this
Lease and of Tenant's occupancy of the Premises.
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ARTICLE 14
DESTRUCTION OR DAMAGE •
Section 14.1 CONTINUANCE OF LEASE. In the event of any damage to the
Premises by fire or other casualty,this Lease shall not be terminated or otherwise affected;except
that, if more than fifty percent (50%) of the square footage of the Premises shall be damaged by
any such fire or other casualty during the last year of the Lease Term (as it may be extended
hereunder), or if Landlord is unable to rebuild any portion of the Building in which the Premises
are located or of the Property due to any inability to obtain any required governmental approval •
in connection therewith, despite Landlord's best efforts to obtain such approval, or if more than •
fifty percent (50%) of the floor area of the Building in which the Premises are located or of the
Property shall be damaged or destroyed by fire or other casualty,or if all or any part of the Building
in which the. Premises are located or of the Property or the Premises shall be damaged or
destroyed at any time by the occurrence of any risk not insured under the insurance required to
be carried under Article 9 above, or if for any reason whatsoever sufficient insurance proceeds
are not available, then each of Landlord and Tenant shall have the option to terminate this Lease
within ninety (90) days following the occurrence of such fire or other casualty by giving written •
notice to the other during such period.In the event Landlord exercises any of the foregoing options
to terminate, this Lease shall immediately terminate upon such written notice and (a)the entire
proceeds of the insurance provided for in Article 9 above shall be paid by the insurance company
or companies directly to Landlord, and shall belong to, and be the sole property of, Landlord;
(b) the portion of the proceeds of the insurance provided for in Article 9 which is allocable to
equipment, fixtures and other items which,by the terms of this Lease, rightfully belong to Landlord •
upon the termination of this Lease by whatever cause, shall be paid by the insurance company
or companies directly to Landlord, and shall belong to,and be the sole property of, Landlord; and
(c) Landlord and Tenant shall be relieved from any and all further liability or obligation accruing
under this Lease from and after the date of such termination.
Section 14.2 RECONSTRUCTION. If the Premises are damaged by fire or other
casualty and this Lease is riot terminated in accordance with Section 14.1 above,then the damage
to the Premises shall be promptly repaired by Landlord, at Landlord's sole expense, and the
Minimum Rent, Percentage Rent and other charges payable by Tenant to Landlord shall be
abated in proportion to the floor area of the Premises rendered untenantable. In the event
Landlord has not commenced restoration or rebuilding of the Premises within one hundred twenty
(120) days of the date of such fire or casualty loss, or does not diligently proceed to complete
such restoration or rebuilding so that the Premises are restored or rebuilt to its former condition
within three hundred sixty (360) days of the date following such fire or casualty loss, Tenant will
have the right,in either case,to terminate this Lease by providing Landlord notice of such election,
in which event Tenant will vacate and surrender the Premises pursuant to Section 8.2. Payment
of full rent and all other charges so abated shall re-commence and Tenant shall be obligated to
reopen for business on the ninetieth (90th) day following the date that Landlord advises Tenant
that the Premises are tenantable and Landlord has substantially completed Landlord's work
related thereto, unless Tenant opens at an earlier time in the damaged area or remains open In
such area following destruction or damage, in which event there shall be no abatement or any
such abatement shall terminate as of the date of Tenant's earlier reopening. Landlord shall be
obligated to diligently pursue the completion of its work and shall cause the same to be completed •
•
as soon as reasonably possible under the circumstances, In no event shall Landlord be required
to repair or replace Tenant's merchandise, trade fixtures, furnishings or equipment. If Landlord
repairs or rebuilds, Tenant, at Tenant's sole cost, shall repair or replace Tenant's merchandise,
trade fixtures, furnishings and equipment in a manner and to at least a condition equal to that
prior to the damage or destruction thereof.Any and all proceeds of the property insurance required
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4837-6829-8194:4
' !I
hereunder to be maintained by Tenant, so long as this Lease shall remain in effect, shall be used
only to repair or replace or pay for the items so insured.After Landlord has completed Landlord's
work, Tenant shall commence such Tenant's work, at its expense. Tenant shall be obligated to
diligently pursue the completion of its work and shall cause the same to be completed as soon as
reasonably possible under the circumstances, Tenant shall comply with all laws, ordinances and
governmental rules or regulations,and shall perform all work or cause such work to be performed
with due diligence and in a first-class manner.All permits required in connection with said repairs,
restoration and reconstruction to be performed by Tenant shall be obtained by Tenant at Tenant's
sole cost and expense. Any amount expended by Tenant in excess of any insurance proceeds
received by Tenant shall be the sole obligation of Tenant.The Premises shall be reconstructed in
accordance with the working drawings originally approved by Landlord or with(at Landlord's sole
election) new drawings prepared by Tenant and acceptable to Landlord and Tenant. Except as
may be specifically set forth in this Article 14, Landlord shall not be liable or obligated to Tenant
to any extent whatsoever by reason of any fire or other casualty damage to the Premises,or any
damages suffered by Tenant by reason thereof, or the deprivation of Tenant's possession of all
or any part of the Premises.
ARTICLE 15
EMINENT DOMAIN
Section 15.1 EMINENT DOMAIN. If twenty percent(20%)or more of the floor area of
the Premises shall be taken or condemned by any governmental authority(including,for purposes
of this Article, any purchase by such governmental authority in lieu of a taking),then either party
may elect to terminate this Lease by giving notice to the other party not more than sixty(60)days
after the date on which such title shall vest in the authority. If, as a result of such taking, the
parking facilities are reduced below the minimum parking requirements imposed by the applicable
authorities,Tenant may elect to terminate this Lease by giving Landlord notice within one hundred
twenty (120) days after such taking. In the case of any taking or condemnation, whether or not
the Lease Term shall cease and terminate, the entire award shall be the property of Landlord;
provided, however, Tenant shall be entitled to any award as may be made for trade fixtures and
other equipment which under the terms of this Lease would not have become the property of
Landlord;further provided,that any such award to Tenant shall not be in diminution of any award
otherwise to be made to Landlord in the absence of such award to Tenant.
Section 15.2 RENT APPORTIONMENT. In the event of any taking or condemnation,
the then current Minimum Rent or Percentage Rent and the rentable square footage of the •
Premises shall be apportioned as of the date when possession of the Premises is required to be
delivered to the condemning authority or termination of this Lease, as the case may be, and, if
the Lease Term shall not have ceased and have been terminated as of said date, Tenant shall be •
entitled to a pro rata reduction in the Minimum Rent and Percentage Rent payable or, if Tenant
has prepaid Minimum Rent,Tenant shall be entitled to a pro rata credit for the Minimum Rent paid
hereunder, based on the proportion which the rentable square footage taken from the Premises
bears to the entire rentable square footage of the Premises immediately prior to such taking.
Section 15.3 TEMPORARY TAKING. Notwithstanding anything to the contrary in this
Article 15,the requisitioning of the Premises or any part thereof by military or other public authority
for purposes arising out of a temporary emergency or other temporary situation or circumstances
shall constitute a taking of the Premises by eminent domain when the use or occupancy by the
requisitioning authority is expressly provided to continue, or shall in fact have continued, for a
period of one hundred eighty (180) days or more, and If this Lease is not thereafter terminated
under the foregoing provisions of this Article 15, then for the duration of any period of use and
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4837-6829.8194.A
occupancy of the Premises by the requisitioning authority, all the terms and provisions of this
Lease and obligations of Tenant hereunder shall remain In full force and effect, except that the
Minimum Rent and Percentage Rent shall be reduced in the same proportion that the rentable
square footage of the Premises so requisitioned bears to the total rentable square footage of the
Premises, and Landlord shall be entitled to whatever compensation may be payable from the
requisitioning authority for the use and occupation of the Premises for the period involved,
ARTICLE 16
DEFAULT
Section 16.1 EVENTS OF-:DEFAULT. In addition to any other event specified in this
Lease as an event of default,the occurrence of any one or more of the following events(each, an
"Event of Default") shall constitute a breach of this Lease by Tenant: (a)failure by Tenant to pay
any Minimum Rent or Percentage Rent or Additional Rent within five (5) days after the date the
same is due, if such failure Is not cured within five (5) days after receipt of written notice from
Landlord, provided that Landlord shall not be required to give such notice more than two(2)times
in any Lease Year; (b)failure by Tenant to pay any other sum when and as the same becomes
due and payable if such failure continues for more than ten (10) days after written notice thereof
from Landlord; (c) failure by Tenant to perform or observe any other obligations of Tenant here-
under, or to comply with the rules and regulations, if such failure continues for more than thirty
(30) days after written notice thereof from Landlord (unless such failure cannot reasonably be
cured within such thirty (30) day period and Tenant shall within such period commence and
diligently pursue the curing of such failure); (d)the making by Tenant of a general assignment for
the benefit of creditors, or the admission of its inability to pay its debts as they become due or the
filing of a petition, case or proceeding in bankruptcy, or the adjudication of Tenant bankrupt or
insolvent, or the filing of a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute, law or
regulation, or the filing of an answer admitting or failing reasonably to contest the material
allegations of a petition filed against it in any such proceeding, or the seeking or consenting to or
acquiescence in the appointment of any trustee, receiver or liquidator of Tenant or any material
part of its properties; (e)if within ninety (90) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement,composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute,law or regulation,such proceeding
shall not have been dismissed, or if, within ninety (90) days after the appointment without the
consent or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of any
material part of its properties, such appointment shall not have been vacated; or(f) if this Lease
or any estate of Tenant hereunder shall be levied upon under any attachment or execution and
such attachment or execution is not vacated within ten(10) days.
Section 16.2 LANDLORD'$REMEDIES.
(a) Upon the occurrence of an Event of Default, Landlord may elect to terminate this
Lease, or, without terminating this Lease, terminate Tenant's right to possession
of the Premises. Upon any such termination, Tenant shall immediately surrender
and vacate the Premises and deliver possession thereof to Landlord. Tenant
grants to Landlord the right to enter and repossess the Premises and to expel
Tenant and any others who may be occupying the Premises and to remove any
and all property therefrom, without being deemed in any manner guilty of trespass
and without relinquishing Landlord's rights to rent or any other right given to
Landlord hereunder or by operation of law.
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•
(b) If Landlord terminates Tenant's right to possession of the Premises without
terminating this Lease, Landlord may relet the Premises or any part thereof. In
such case, Landlord may first lease Landlord's other available space and shall not
be required to accept any tenant offered by Tenant or to observe any instructions
given by Tenant about such reletting. Tenant shall reimburse Landlord for the •
costs and expenses of reletting the Premises including, but not limited to, all
brokerage, advertising, legal, alteration and other expenses incurred to secure a
new tenant for the Premises, In addition,if the consideration collected by Landlord
upon any such reletting, after payment of the expenses of reletting the Premises
which have not been reimbursed by Tenant, Is insufficient to pay monthly the full
amount of the Rent (as hereinafter defined), Tenant shall pay to Landlord the
amount of each monthly deficiency as it becomes due. If such consideration is
greater than the amount necessary to pay the full amount of the Rent, the full
amount of such excess shall be retained by Landlord and shall in no event be
payable to Tenant.
(c) If Landlord terminates this Lease, Landlord may recover from Tenant and Tenant
shall pay to Landlord, on demand, as and for liquidated and final damages, an
accelerated lump sum amount equal to the amount by which the aggregate amount
of Rent owing from the date of such termination through the Expiration Date plus
the aggregate expenses of reletting the Premises, exceeds the fair rental value of
the Premises for the same period (after deducting from such fair rental value the
time needed to relet the Premises and the amount of concessions which would
normally be given to a new tenant), both discounted to present value using a
discount rate of four percent(4%) per annum.
Section 16.3 RENT COMPUTATION. For purposes of computing the rent which would
have accrued from the date of termination through the Expiration Date, Rent shall consist of the
sum of:
(a) the total Minimum Rent and Percentage Rent for the balance of the Term;plus
(b) the Additional Rent for the balance of the Term. For purposes of computing
Common Area Maintenance Expenses, Taxes and Insurance the Common Area
Maintenance Expenses, Taxes and Insurance for the calendar year of the default
and each future calendar year in the Term shall be assumed to be equal to the
Common Area Maintenance Expenses,Taxes and Insurance for the calendar year
prior to the year in which default occurs compounded at a rate equal to the mean
average rate of inflation for the three (3) calendar years preceding the calendar
year of the default, as determined by using the United States Department of Labor,
Bureau of Labor Statistics Consumer Price Index(All Urban Consumers,All Items,
1982-84=100). If such Index is discontinued or revised, the average rate of
inflation shall be determined by reference to the index designated as the successor
or substitute index by the government of the United States.
Section 16.4 -LEASE CONTINUES UNTIL TERMINATION. Even though Tenant has
breached this Lease and abandoned the Premises,this Lease-shall continue in effect for so long
as Landlord does not terminate this Lease under Section 16,2 and Landlord may enforce all its
rights and remedies under this Lease, including the right to recover the Rent as it becomes due
under this Lease. Acts of maintenance or preservation or efforts to relet the Premises or the
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1
appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this
Lease shall not constitute a termination of Tenants right to possession. •
Section 16.5 REMEDIES CUMULATIVE. The remedies provided for in this Lease are
in addition to any other remedies available to Landlord at law or in equity by statute or otherwise.
Section 16.6 WAIVER Oir. tED.EMPTION. Tenant hereby waives, for itself and all •
persons claiming by and under Tenant, all rights and privileges which it might have under any
present or future law to redeem the Premises or to continue the Lease after being disposed a
ejected from the Premises.
ARTICLE 17
HOLDING OVER, SUCCESSORS•
Section 17.1 HOLDOVER. In the event that Tenant remains in possession of the •
Premises after the expiration or termination of this Lease, then Tenant shall be deemed to be
occupying the Premises as a Tenant from month-to-month, subject to all of the conditions,
provisions, and obligations of this Lease, but without any rights to extend the Lease Term;
provided, that the Minimum Rent payable by Tenant during any such period of holdover shall be
•
computed at the rate of one hundred fifty percent(150%)of the Minimum Rent payable by Tenant
during the Lease Year most recently ended. Landlord's acceptance of rent from Tenant in such
event shall not alter the status of Tenant as a r"tiol t-tiftonth-:tenant whose occupancy of the
Premises may be terminated by Landlord at any time upon one month's notice in advance.
Section 17.2 SUCCESSORS. All rights and liabilities given to, or imposed upon,
Landlord or Tenant in this Lease shall extend to and bind their respective executors,
administrators, personal representatives, successors and assigns.
•
• ARTICLE 18
QUIET ENJOYMENT
Section 18.1 LANDLORD'S COVENANTS. Landlord covenants that it is the owner or
ground lessee of the Property and thaLandlord has full power and authority to make this Lease
with Tenant. Landlord further covenants that Tenant, upon the complete and timely payment of
all rent and performance of all of Tenant's other obligations under this Lease, shall peacefully and
quietly have, hold, and enjoy the occupancy of the Premises throughout the Lease Term or until
this Lease is sooner terminated in accordance with its provisions without any disturbance from
Landlord or anyone claiming by, through, or under Landlord.
ARTICLE 19
MISCELLANEOUS
Section 19.1 PATRIOT ACT. Neither Tenant nor its constituents or affiliates are in
violation of any laws relating to terrorism or money laundering, including the Executive Order
and/or the Uniting and Strengthening America by Providing Appropriate Tools Required to
intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the "Patriot Act"). Neither
Tenant nor any of its constituents or affiliates is a "Prohibited Person" (as defined in the Patriot
Act). Neither Tenant nor any of its affiliates or constituents is or will: (i) conduct any business or
engage in any transaction or dealing with any Prohibited Person, including the making or receiving
any contribution of funds,goods or services to or for the benefit of any Prohibited Person, (ii)deal
in or otherwise engage in any transaction relating to, any property or interests in property blocked
30 •
4837.6829-8194.4
•
pursuant to the Executive Order; or(iii) engage in or conspire to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in the Executive Order or the Patriot Act.
Section 19.2 WAIVERS. One or more waivers by Landlord or Tenant of a breach of
any covenant or condition by the other of them shall not be construed as a waiver of a subsequent
breach of the same covenant or condition, and the consent or approval by Landlord or Tenant to
or of any act by either requiring the other's consent or approval shall not be deemed to waive or
render unnecessary either parry's consent to or approval of any subsequent similar act by the
other party_ No waiver or consent of either party shall be binding unless In writing,and Landlord's
acceptance of rent with knowledge of the existence of any breach of this Lease by Tenant shall
not constitute a waiver of such breach.
Section 19,3 ENTIRE AGREEMENT. Landlord and Tenant hereby agree that this
document contains the entire agreement between them and that there are no other agreements,
written or verbal, between them pertaining to the Premises or the subject matter hereof. This
Lease may not be amended or supplemented orally but only by an agreement in writing which
has been signed by the party against whom enforcement of any such amendment or supplement
is sought.
Section 19.4 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by Landlord or Tenant, or by any third party, to create the relationship of
principal and agent or of partnership or of joint venture between Landlord and Tenant.
Section 19.5 OTHER TENANTS. Nothing contained in this Lease, or any exhibit or
rider attached hereto, shall be construed,deemed or interpreted to be a warranty,representation,
or agreement on the part of Landlord that any department store or regional or national chain store
or other merchant shall remain open for business or continue to occupy any premises in or
adjoining the Property during the Lease Term or any renewal or extension thereof, Landlord
reserves the absolute right to effect such other tenancies in the Property as Landlord, in the
exercise of its sole business judgment, which it may determine best promotes the interest of
Property. Tenant does not rely on the fact, nor does Landlord represent that any specific tenant
or number of tenants shall during the Lease Term occupy any space in the Property.
Section 19.6 FORCE MAJEURE. In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required hereunder by reason of
strikes, lock-outs, labor troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, civil commotion, or other reason of a
like nature not the fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such acts shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a period equivalent to
the period of such delay. Subject to the following, the provisions of this section shall not operate
to excuse Tenant from prompt payment of rent, Additional Rent or any other payments required
by the terms of this Lease. Landlord agrees that, during any period of health emergencies (as
defined below) under this Lease, Minimum Rent shall be reduced as follows:
(I) in the event of any health emergencies lasting more than forty-five
(45) continuous days, the Minimum Rent shall be the greater of: (i) twenty-five
percent (25%) of the then current Minimum Rent or (ii) Four (4%) percent of
Tenant's Gross Sales each Lease Year in excess of$525,000.00; •
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it
II((I
(ii) in the event of any health emergencies lasting more than seventy-
five(75)continuous days,the Minimum Rent shall be the greater of: (i)fifty percent
(50%)of the then current Minimum Rent or(ii)Four(4%)percent of Tenant's Gross
Sales each Lease Year in excess of$350,000.00;
Oil) in the event of any health emergencies lasting more than one
hundred (100) continuous days, the Minimum Rent shall be the greater of: (i)
seventy-five percent (75%) of the then current Minimum Rent or (ii) Four (4%)
percent of Tenant's Gross Sales each Lease Year in excess of$175,000.00;
•
Within ten(10)days after any health emergencies are no longer in effect by Governmental
Order (as defined below), Tenant shall again pay the full amount of Minimum Rent (and any
applicable Percentage Rent)after the official conclusion of the health emergencies.
For purposes of this Section 19.6, "health emergencies"shall be defined as any period of
time when the United States government,the State of Nebraska government or the City of Omaha
issues a decree, order, ordinance, statute, moratorium, or other governmental action or
proceeding relating to any actual or threatened health emergency, including, but not limited to,
epidemics, pandemics, disease, plague, quarantine and other health risks, including, but not
limited to, health risks declared or recognized by the Centers for Disease Control or the World
Health Organization(collectively,a"Govprnmental Order"),and the Governmental Order requires
ore recommends the closure or partial closure of Tenant's business and/or other non-essential
businesses for any period of time exceeding twenty-four(24)hours, and Tenant thereafter closes
or partially closes its business for such period of time and Tenant's business is negatively
impacted by the Governmental Order which resulted in Tenant's closure or partial closure, as
applicable.
Section 19.7 NOTICES. Whenever under this Lease a provision is made for notice of
any kind, such notice and the service thereof shall be deemed sufficient if such notice to Tenant
is in writing addressed to Tenant at the address set forth as a Fundamental Lease Provision and
is delivered personally or sent by overnight express delivery or by United States certified mail,
return receipt requested, with postage prepaid and if such notice to Landlord is in writing
addressed to Landlord at the address set forth as a Fundamental Lease Provision and is delivered
personally or sent by overnight express delivery or by United States certified mail, return receipt •
requested,with postage prepaid. Either party may by notice to the other party change the address
at which it wishes to receive any notice given under this Lease.
Section 19.8 FINANCIAL.STATEMENTS. In the event of an Event of Default, upon
Landlord's written request from time to time, Tenant shall, within ten (10) days after Landlord's
request therefor, furnish Landlord financial statements outlining Tenant's then current financial
condition as well as financial statements outlining the then current financial condition of any
guarantor of this Lease.
Section 19.9 CAPTIONS AND SECTION.NUMBERS. The captions, section umbers,
article numbers and indeiCappearing in this Lease are inserted only as a matter of convenience
and for reference only and shall not be deemed in any manner to define,limit,construe or describe
the scope or intent of such sections or articles of this Lease nor in any way affect this Lease.
Section 19.10 BROKERS. Each of the parties represent and warrant that there are no
claims for brokerage commissions or finder's fees in connection with the execution of this Lease,
other than those set forth as a Fundamental Lease Provision, and each of the parties agrees to
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4837-6829-8194.4
•
indemnity the other against, and hold it harmless from, any expense or liability for commissions •
or other compensation or charges claimed by any other broker or agent with respect to this Lease.
Section 19.11 SEVERABILITY. If any provision of this Lease shall be declared legally
invalid or unenforceable,then the remaining provisions of this Lease nevertheless shall continue
in full force and effect and shall be enforceable to the fullest extent permitted by law.
Section 19.12 EXECUTION REQUIRED. The submission of this Lease for examination
does not constitute a reservation of or option for the Premises and this Lease becomes effective
as a lease only upon execution and delivery thereof by Landlord and Tenant.
Section 19.13 RECORDING. Tenant shall not record this Lease without the written
consent of Landlord, however, upon the request of either party hereto the other party shall join in
the execution of a memorandum or so-called "short form" of this Lease for the purposes of
recordation.. Said memorandum or short form of this Lease shall describe the parties, the
Premises and the Lease Term and shall incorporate this Lease by reference.
Section 19.14 BANKRUPTCY. In the event Tenant becomes the subject of voluntary
or involuntary proceedings under the federal bankruptcy statutes as in effect from time to time,
Landlord shall have all of the rights and remedies which are available to a landlord under such
statutes in such an event. Such event also shall constitute a default under this Lease, and
Landlord thereupon may exercise all of its rights and remedies under Section 17.2 unless
prohibited from doing so by such statutes,
Section 19.15 CUMULATIVE RIGHTS. The rights,options, elections,and remedies of
Landlord and Tenant contained in this Lease shall be cumulative and may be exercised on one
or more occasions:and none of them shall be construed as excluding any other or additional right,
priority, or remedy allowed or provided by law.
Section 19.16 GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located. •
Section 19.17 MULTIPLE COUNTERPARTS. This Lease may be executed in multiple
counterparts, each of which shall be deemed to be an original for all purposes.
Section 19.18 DEFINITIONS. Except as otherwise expressly stated in this Lease, the
"term"of this Lease shall include the original term and any additional period as to which this Lease
may be extended, and references to this "Lease" shall include this document and any properly
executed amendment thereof or supplement thereto.
Section 19.19 LIABILITY OF LANDLORD. Notwithstanding any other provision of this •
Lease, Tenant agrees that it will look solely to the equity, estate, and property of Landlord in the
land and buildings comprising the Building (subject to prior rights of the holder of any mortgage
or deed of trust thereon) for the collection of any judgment requiring the payment of money by
Landlord; and Tenant understands and agrees that no other assets of Landlord shall be subject
to levy, execution, or other process for the satisfaction of any such judgment or for the
enforcement of any rights or remedies of Tenant.
Section 19.20 TIME OF ESSENCE. Time Is of the essence of this Lease, and all
provisions of this Lease relating to the time of performance of any obligation under this Lease
shall be strictly construed.
33
4837-6829-8194.4
Section 19.21 LANDLORD'S RIGHT TO CURE. Landlord may, but shall not be
obligated to, cure any default by Tenant in the performance of any of Tenant's obligations under
this Lease, including but not limited to Tenant's failure to pay any taxes, obtain any insurance,
make any repairs, or satisfy any lien claims, after complying with the notice provisions contained
in Section 19.7; in the event that Landlord elects to so cure any default by Tenant, then all costs
and expenses paid by Landlord in so curing such default, including but not limited to reasonable
attorneys' fees, shall be deemed to be Additional Rent due immediately after such payment by
Landlord, together with interest thereon (except in the case of such attorneys' fees) at the rate
provided for in Section 3.5 from the date of such payment by Landlord to the date of repayment
by Tenant to Landlord. •
Section 19.22 COMPLIANCE WITH ADA. Tenant shall be responsible for all costs of
complying with the Americans with Disabilities Act (ADA) and all similar laws and regulations
within the Premises, including the removal of barriers which do not necessitate the removal or
modification of load-bearing walls,and excluding any other structural updates except to the extent
required as a result of Tenant's alterations in the Premises or Tenant's specific use of the
Premises.
Section 19,23 NUMBER AND GENDER. Where the context of this Lease requires,
singular words shall be read as if plural, plural words shall be read as if singular and words of
neuter gender shall be read as if masculine or feminine.
[The Remainder of this Page Intentionally Left Blank.
Signature Page to Follow.]
.
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' I
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
LANDLORD:
On 680 Zone I, LLC,
a Nebraska limited liability company
By: SCM 10X Fund, LLC,
a Delaware limited liability company,
Sole Member
By: SCM 10X Managers, LLC,
a Nebraska limited liability company,
Maui e r r
i
By:
Name: Kirk Hanson
Title: Manager
Date: - I /d- 1 /9
TENANT:
Blue Sky Bar& Patio, LLC,
a Nebias a1ttile liability company
By: lAttr-
,
Name: Philip L. Schaffart '
Title: Manager Date:. . ItII 2( {Z b 2 `
t
i
35
GUARANTY
In consideration of On 680 Zone I, LLC, a Nebraska limited liability company("Landlord")
entering into that certain Lease Agreement(the'Lease")dated as of _ , 2021,by and
between Landlord and Blue Sky Bar&Patio, LLC,a Nebraska limited liability company("Tenant"),
and for other good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged,the undersigned, Philip Schaffart("Guarantor), covenants and agrees as follows:
1. Guarantor is financially interested In Tenant and acknowledges that financial
accommodations extended by Landlord to Tenant in making the Lease will be of substantial •
benefit to Guarantor and Guarantor acknowledges that Landlord is willing to enter into the Lease •
•
with Tenant only upon the condition that Guarantor enter into this Guaranty.
2. Guarantor unconditionally guarantees that all rentals and all sums, costs,
expenses, charges, payments and deposits (including sums payable as damages upon a default
under the Lease)which are at any time payable by Tenant under the provisions of the Lease (the
"Payment Obligations")will be paid when due(whether at the stated due date or by acceleration •
or otherwise). If any default shall be made by Tenant with respect to any such Payment
Obligations, Guarantor shall pay, and hereby agrees to pay, Landlord such rentals, sums,costs,
expenses, charges, payments and deposits.
3. Guarantor hereby waives all notice of default by Tenant in performance of the
Payment Obligations by Tenant, and Landlord shall not be required to take any steps to enforce •
any rights against Tenant or any other person to compel observation or performance of any of the
Payment Obligations of Tenant prior to requiring Guarantor to observe and perform such Payment
Obligations.
4. Guarantor does further covenant and agree to pay all of Landlord's expenses,
including attorneys' fees, incurred in enforcing Tenant's Payment Obligations or in enforcing this
Guaranty.
5. Guarantor does further covenant and agree that Landlord may from time to time
during the term of the Lease or any extension or renewal thereof modify, change or alter any of
the terms of the Lease by agreement with Tenant without notice to Guarantor, and Guarantor
shall not be relieved of its liabilities hereunder as a result of such modifications, changes or
alterations, it being expressly understood and agreed that, subject to the terms of this Guaranty,
Guarantor will recognize and be bound by any such modifications, changes or alterations to the
extent as though each modification, change or alteration had been part of the Lease as originally
drawn, No notice shall be required to be given by Landlord in the event the Lease is extended or
renewed, it being the intention hereof that this Guaranty shall cover any such extension or •
renewal.
6. Subject to the terms hereof, this Guaranty shall not be waived, released,
discharged, diminished, or otherwise affected by, and Guarantor hereby expressly consents to
and waives notice of, the following:
(a) Any assignment of the Lease or subletting of all or any portion of the
Premises by Tenant with or without the consent of Landlord;
4837-6829-8194.4
(b) The assignment or transfer in whole or in part of Landlord's interest in the
Lease and/or the Project;
(c) The bankruptcy, reorganization or insolvency of Tenant or any successor
or assignee of Tenant, or the release, discharge, impairment, limitation or
modification of the liability of Tenant or of the estate of Tenant in any
bankruptcy or other proceedings, or any rejection or abandonment of the
Lease by Tenant or any trustee of Tenant in any such proceedings,or the
cessation from any cause whatsoever of the liability of Tenant, or the
occurrence of any of the foregoing with respect to Guarantor or any of them;
(d) The granting of indulgences or extensions of time by Landlord with respect
to the performance of any of the terms and provisions of the Lease;
•
(e) Any deferral, reduction, increase or compromise of any rental or other
charge due Landlord under the provisions of the Lease;
(f) The failure by Landlord to require strict performance of any term or
provision of the Lease or to exercise any right, power or remedy granted to
Landlord in the Lease;
(g) The repossession of the Premises by Landlord;
(h) Landlord's acceptance of other or additional security for the payment and
performance of the obligations secured hereby, and the enforcement, •
exchange, waiver or release of any such security; or
(i) Landlord's acceptance of additional guarantors and/or the release or
substitution of anyone primarily or secondarily liable for the payment and
performance of the obligations secured hereby,whether by Landlord or by
operation of law.
7. Guarantor hereby waives any right, statutory or otherwise, to be discharged from
liability hereunder by reason of Landlord's failure, after demand from Guarantor, to bring suit
against Tenant and further waives notice of Landlord's acceptance of this Guaranty. Without in
any way limiting any of the foregoing waivers of Guarantor, Guarantor hereby expressly waives
(a) any right of setoff against amounts due under this Guaranty and (b) any homestead or other
exemption right of Tenant or Guarantor.
8. The obligations of Tenant under the Lease to execute and deliver certificates(and
financial statements, if any) as required therein shall be deemed to apply with equal force and
effect to Guarantor. Guarantor hereby acknowledges and agrees that Landlord is relying on the
assets of Guarantor as presented by said Guarantor to Landlord as of the date of this Guaranty.
Guarantor hereby represents, warrants and covenants not to transfer any such assets except
upon receipt of reasonable consideration therefor representing the full value thereof.
9. Guarantor's liability for Payment Obligations of Tenant arising or accruing during
the Lease Term, or any extension thereof, shall survive any repossession of the Premises by
Landlord and any subsequent expiration or termination of said Lease Term. The liability of
Guarantor under this Guaranty shall be continuing, irrevocable and primary and in any right of
action that shall accrue to Landlord under the Lease, Landlord may,at its option, proceed against
37
4837-6829-8194..4
Guarantor without having commenced any action against Tenant, or Landlord may proceed
against Tenant without having commenced any action against Guarantor. In either event, the
election by Landlord to proceed against only Tenant or Guarantor shall not release the other from
liability under the Lease or this Guaranty.
10. Notwithstanding anything herein to the contrary, the liability of Guarantor under
this Guaranty shall in no event exceed the amount of the Tenant Allowance provided by Landlord
to Tenant plus twelve (12) months Minimum Rent pursuant to the Lease. This Guaranty,and the
obligations of Guarantor hereunder, shall expire and be of no further force and effect upon the
expiration of the third (3"') Lease Year(the"Exoiration Date"), except with respect to any default
by Tenant of a Payment Obligation occurring prior to the Expiration Date.
The use of the singular herein shall include the plural. All capitalized terms not specifically
defined herein shall have the same meaning as defined in the Lease unless the context requires
otherwise. This Guaranty shall be binding upon the successors and assigns of Guarantor and
shall inure to the benefit of Landlord and any person or entity that shall hereafter acquire
Landlord's interest in said Lease, Guarantor agrees that Landlord shall have the right (but not
the obligation)to bring any action or other proceeding under or in connection with this Guaranty
in the State of Nebraska,and that Landlord shall have the further right to designate that the venue
of such action or proceeding shall be, in in Douglas County,Nebraska, or such other place where
Landlord may from time to time properly designate.
IN WITNESS WHEREOF, this Guaranty has been executed by Guarantor this- �day of
1-G t ,2021. r
GU NTOR:
Philip ScP affart
38
4837-6829.8194:4
EXHIBIT"A"
LEGAL DESCRIPTION
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EXHIBIT"B"
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EXHIBIT"B-1"
PLANS AND SPECIFICATIONS FOR OUTDOOR SEATING AREA :
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EXHIBIT"C"
DESCRIPTION OF LANDLORD'S WORK
Outdoor Seating Area:
1. Landlord shall install an outdoor seating area based on mutually agreed upon plans and
specifications by Landlord and Tenant. The outdoor seating area will have "Top Goir style
heaters and accordion walls attached to the main Premises. Attached to the outdoor seating area
will be a large outdoor space for pickleball courts,yard games and concerts. Landlord agrees to
install two (2) pickleball courts that shall be regulation size according to USA Pickleball, and
suitable for consistent commercial use. Landlord agrees to Install the pickleball courts as part of
Landlord's Work. Tenant shall have exclusive use of the outdoor green space during nights (i.e.,
after 5 p.m.)and during weekends(i.e.,starting Friday night at 5 p.m. and extending until Monday
morning 8 a,m.). The outdoor green space shall include a fenced in area where Tenant is able to
serve alcohol.
General:
1. Landlord shall have the right to run roof drainage lines, utility lines, pipes, conduits, duct
work and/or component parts of all mechanical and electrical systems where necessary
•
or desirable through attic space, column space or other parts of the leased premises, to
repair, alter, replace or remove the same, and to require Tenant to install and maintain
proper access panels thereto.
2, It shall be the Tenant's responsibility to field verify all conditions.
Structure:
1. A structural frame of steel, concrete and/or masonry construction or any combination
thereof, with a floor and roof designed to carry live loads in accordance with applicable
building codes.
Floor:
1. Floors shall consist of existing concrete slab on grade or slab on deck and may include
concrete infitl of concrete to repair trenches, underfloor work and openings.
2. Tenant will be responsible to verify existing floor condition for installation of tenants
flooring materials. '•
3. Tenants shall be responsible for all infitl of concrete floors where the slab on grade was
removed for tenant's work, including structural design if required,full depth concrete pour
back, and dowels and reinforcing to connect to existing slab on grade.
4. Tenants shall be responsible for all infill of concrete floors where the slab on deck was
removed for tenant's work, including structural design If required, structural steel support,
full depth concrete pour back similar to existing, and dowels and reinforcing to connect to
existing slab on grade.
Interior:
1. The interior side of exterior walls shall be exposed CMU or concrete walls.
2. Tenant will be responsible for installation of metal stud furring, insulation and drywall to
meet code and building requirements. ;
3. Demising walls will include drywall with Level 1 finish.
4. All ceilings will be exposed and unfinished. •
42
4837-6829-8194.4
� I
I i
i �
Storefront:
1. Building facade shall include a sign fascia for tenant signage.
2. The main elevation shall include an aluminum storefront system with insulated glass and
one entry door. Notwithstanding the foregoing, Landlord shall not provide the storefront
system with insulated glass provided; however, Landlord shall provide Tenant a credit of j
("Storefront Credit") to install Tenant's storefront system including the
insulated glass. Such design and specifications of the storefront system and glass shall
be mutually agreed upon by Landlord and Tenant and in compliance with all applicable
laws. Except for the Storefront Credit, all costs associated with the storefront system and
insulated glass including installation with be at Tenant's sole cost and expense.
Roofing:
1. Landlord shall provide a 60-mil membrane roof with rigid Insulation to meet local codes.
2. Tenant will be responsible for all penetrations in the existing roof, repair of
weathertightness and maintaining all warranties. Landlord will provide information for
required roofing contractor for the building.
Fire Sprinkler:
1. Shell fire sprinkler system will be installed with upright heads if required by code.
Plumbing:
1. Domestic water will be provided to each Tenant space with a tee and valve for future
connection.
2: Sanitary sewer line will be provided to each Tenant space. Tenant shall verify the size
and location.
3. Natural gas piping will be provided to the building and the landlord provided roof top unit(s)
only. The cost for any deviation from gas meters and installation shall be Tenants sole
responsibility.
HVAC:
1. Landlord will provide roof top unit(s) and curb with one thermostat for each unit and a
combined cooling capacity of one ton for every 175 SF.
2. For lower level tenants:
a. Landlord will provide one chase for HVAC unit from rooftop. Tenant shall provide
ductwork in chase and connections.
b. Landlord will provide one chase for grease exhaust for restaurant tenants.
Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
3. For first level tenants:
a. Landlord will provide one chase for HVAC unit from rooftop; Tenant shall provide
ductwork in chase and connections.
b. Landlord will provide one chase for grease exhaust for restaurant tenants.
Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
43
4637-6829-8194.4
4. For second level tenants:
a. Landlord will provide HVAC unit and duct drop through roof deck. Tenant shall
provide ductwork and connections,
b. Restaurant tenants shall provide exhaust fans, scrubbers, air cleanup units,
makeup air units, ductwork, grease duct and hoods per code.
Electrical: •
1. Landlord shall coordinate installation of the transformer,main distribution panel and meter
center at the rear wall of the building.
2. Landlord shall provide a conduit from the meter center to Tenant space.
3. Landlord shall provide an electric feeder and panelboard to the interior side of the rear •
wall, The capacity of the electrical feeder shall be sized to provide for nominal electric
loads of 120/208 three phase.
4. Electrical panel feeder and main breaker shall be sized for 120/208 400-amp capacity,or
as noted.
Parking:
Changes &Alterations:
1. Landlord reserves the right to require changes In Tenant's work when necessary by
reason of code requirements or directives of governmental authorities having jurisdiction
over the leased premises.
Landlord's Warranty:
•
Landlord hereby covenants and warrants to Tenant as of the Commencement Date and for a
period of one (1) year thereafter (collectively, "Landlord's Warranty') as to Landlord's Work that
(1)all work shall be of good workmanship and like quality;(2)'Landlord's Work shall be performed
pursuant to required permits and will comply with all applicable Laws; and (3) Landlord shall, for
a period of one (1) year following the Commencement Date and at Landlords sole cost and
expense, remedy or correct any material or workmanship in Landlord's Work which is inconsistent
with the warranties made in the foregoing subparts(1)through(3),as well as failure of any portion
of Landlord's Work that does not work or function as Intended.
Within thirty (30) days after receipt of the Substantial Completion certification contemplated in
Section 5.1 of the Lease, Landlord and Tenant shall conduct a Joint "walk-through" of the
Premises and shall prepare a written punch list (the "Punch List") setting forth any additional
corrective work with respect to Landlord's Work which Tenant reasonably believes is required to
be performed pursuant to this Lease and the plans for Landlord's Work, provided that Tenant's
failure to discover any item needing corrective work within said thirty (30) day period shall in no
event constitute a waiver of Tenant's right to demand that Landlord repair or correct any
incomplete or defective items under Landlord's Warranty. Landlord shall use all reasonable
efforts to complete ail of the items on the Punch List within thirty(30)days after preparation of the
Punch List. In the event all items on the Punch List are not completed within forty-five (45)days
after preparation of the Punch List,then,subject to delays caused by Force Majeure,the potential
need to order materials with long lead-times and delays caused by governmental officials in
scheduling inspections and granting required approvals, Landlord shall be in default and Tenant
shall be entitled to all rights and remedies under the Lease.
44
4837-6829-8194.4
TENANT'S WORK:
All work done by Tenant shall be governed in all respects by,and shall be subject to the following:
1. All work required to complete and place the leased premises in finished condition for
opening for business, except that work described in Landlord's Work is to be completed
by Tenant at Tenant's expense. All work shall be done in accordance with the current
codes and regulations, as required by local, state and federal authorities having
jurisdiction:
2. Tenant agrees not to commence Tenant's work until Tenant has secured Landlord's
written approval of the plans and specifications required to be submitted by Tenant to
Landlord. Landlord agrees to notify Tenant in advance of the day when Tenant must
commence Tenant's Work and Tenant agrees that Landlord may require Tenant, subject
to such notice, to commence Tenant's Work before Landlord's Work has been fully
completed, provided that the leased premises and the building of which the leased
premises are a part are completed to the extent that it is practicable for Tenant to
commence Tenant's Work. Tenant Work shall be coordinated with the work being done
by the Landlord and/or other tenant's of Landlord to such a degree that such work will not
interfere with or delay the completion of work by Landlord and/or other tenant's of
Landlord. The performance of Tenant's Work shall cause no interference whatsoever with
the completion of Landlord's Work in the leased premises or in the remainder of the
Shopping Center.
3. Tenant's Work shall be performed in a first class workmanlike manner and shall be in good
and usable condition at the date of completion thereof. Tenant shall require any such
party to be responsible for the replacement or repair without additional charge of any and
all work done or furnished by or through such party which shall become defective within
one (1)year after substantial completion of the Work. The correction of such Work shall
include without additional charge, all expenses and damages in connection with such
removal, replacement, or repair of any part of the Work which may be damaged or
disturbed thereby. All warranties or guarantees as to materials or workmanship on or with
respect to Tenant's Work shall be contained In the contract or subcontract which shall be
so written that such guarantees or warranties shall inure to the benefit of both Landlord
•
and Tenant, as their respective interests appear, and can be directly enforced by either.
Tenant covenants and agrees to give Landlord any assignment or other assurances
necessary to effect the same. •
4. Landlord shall have the right (but shall not be obligated)to perform by its own contractor
•
or subcontractor, on behalf of and for the account of Tenant any Tenant's Work which
Landlord determines should be so performed. Specifically, such work shall Include areas
which affect any structural components of or the general utility systems for the building In
which the leased premises are located. If Landlord so determines,it shall so notify Tenant
prior to the commencement of such work. Tenant shall promptly, on demand, reimburse
Landlord for all costs of planning and performing such work when and as incurred by
Landlord and for all permits in connection therewith.
45
4837-6829-8 194,4 •
•
5. Compliance with laws; All Tenant's Work shall conform to applicable statutes,ordinances, •
regulations,codes and the requirements of Landlord's fire underwriter. Tenant shall obtain
and covey to Landlord all approvals with respect to electrical, gas, water heating, and
cooling, and telephone work, all as may be required by the utility company supplying the
service. •
6. Approvals: No approvals by Landlord shall be deemed valid unless the same shall be in
writing signed by Landlord or Landlord's architect.
7. Insurance: Prior to commencement of Tenant's Work and until completion thereof, or
commencement of the lease term, whichever is the last to occur, Tenant shall effect and
maintain, and provide certificates for insurance policies of Builder's Risk Insurance
covering Landlord, Landlord's agents and beneficiaries, Landlord's architect, Landlord's
general contractor, Tenant and Tenant's contractors, as their interests may appear,
against loss or damage by fire, vandalism and malicious, mischief and such other risks as
are customarily covered by a so called "extended coverage endorsement" upon all
Tenant's Work in place and all materials stored at the site of Tenant's Work and all
materials, equipment, supplies and temporary structures of all kinds incident to Tenant's
Work and builder's machinery, tools and equipment, all while forming a part or contained
in, such improvements or temporary structures, while on the leased premises or within
100 feet thereof, or when adjacent thereto while on malls, drives, sidewalks, streets or
alleys, all to the full insurable value thereof at all times. In addition, Tenant agrees to
require all contractors and subcontractors engaged in the performance of Tenant's Work
to effect and maintain and deliver to Tenant certificates evidencing the existence of, such
policies prior to the commencement of Tenant's Work and until completion thereof.
46
4837.6829-8194.4
EXHIBIT"D"
RENT COMMENCEMENT DECLARATION
THIS RENT COMMENCEMENT DECLARATION, made as of the Effective Date by and
between On 680 Zone I, LLC, a Nebraska limited liability company ("Landlord"), and
("Tenant"). The"Effective Date" shall
be the date this Rent Commencement Declaration Is fully executed by the last of Landlord and
Tenant.
WIT.NESETH:.
WHEREAS, Landlord and Tenant have entered into that certain Lease Agreement dated
, 2021 (the 'Lease"), with respect to that certain property located at
in . Omaha, Nebraska.
WHEREAS, Landlord and Tenant wish to set forth their agreement as to the Rent
Commencement Date as well as certain other terms in the Lease.
NOW,THEREFORE, Landlord and Tenant agree as follows:
1. The Rent Commencement Date is
2. The Initial Term of the Lease shall expire on
3. Tenant has ( )options of years each.
4. As of the Rent Commencement Date, the Premises is square feet.
5. As of the Rent Commencement-:Date, the rentable area of the Building is
square feet and.Tenant's ProportionateShare is
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Rent
Commencement Declaration as of the Effective Date.
LANDLORD: TENANT:
On 680 Zone I, LLC,
a Nebraska limited liability company
By: SCM 10X Fund, LLC, By:
a Delaware limited liability
company, Sole Member Name:. _
Title:
By.: SCM 10X Managers, LLC,
a Nebraska limited liability Date:
company, Manager
47
If
By:
Name:
Title:
Date:
48
EXHIBIT"E"
FORM of ECR
THE PARTIES HEREBY AGREE AND ACKNOWLEDGE THAT THIS DECLARATION
IS IN DRAFT FORM AND SUBJECT TO FINALIZATION BY THE DECLARANT. DECLARANT
SHALL HAVE THE RIGHT TO MODIFY THE DECLARATION PRIOR TO RECORDING
PROVIDED SUCH MODIFICATION DOES NOT ADVERSELY AFFECT TENANT'S RIGHTS OR
OBLIGATIONS IN THIS LEASE.
DECLARATION OF
EASEMENTS, COVENANTS,CONDITIONS,AND RESTRICTIONS
FOR
REGENCY LANDING
THIS DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS, AND
RESTRICTIONS FOR REGENCY LANDING (this"Declaration"), is made and entered into as of
, 2021 (the"Effective Date"), by::and rbetween On 680, LLC, a Nebraska
limited liability company("On 680"), and On 680 Zone I,LLC,a Nebraska limited liability company
("Declarant").
WI TNESSETH; •
WHEREAS, On 680 is the owner of certain-real property located in the City of Omaha,
Douglas County, Nebraska,-which is legally described on Exhibit A attached hereto (the"On 680
Property")and is generally depicted on Exhibit C attached hereto(as may be amended from time
to time by Declarant, the"Site Plan");
WHEREAS, Declarant is the;_owner of certain real property located in the City of Omaha,
Douglas County, Nebraska, which is legally described on Exhibit B attached hereto (the
"Declarant Property and togeth°err with the On 680 Property, the "Property") and is generally
depicted on Exhibit C attached hereto; and
WHEREAS, On 680 and Declarant Intend that the Property be developed as a unified
commercial development to be known as Regency Landing (the"Development'").
NOW, THEREFORE, On 680 and Declarant hereby declare that the Property shall be
held, sold, leased, and=conveyed subject to the following easements, covenants, conditions, and
restrictions which are for°the purpose of protecting the value and desirability thereof and which
shall run with the Property and be binding on all parties having any right, title, or interest in such
Property, or any part thereof,their heirs, successors, and assigns and shall inure to the benefit of
each owner or occupant thereof. •
ARTICLE 20
DEFINITIONS
Section 20.1 "Association" shall mean Regency Landing Commercial Owner's
Association, Inc., a Nebraska non-profit corporation, its successors and assigns, and unless the
49 I;
i
•
context otherwise requires, shall mean and include its Board of Directors, officers, and other
authorized agents,
Section 20.2 "Board" shall mean the Board of Directors of the Association, as
contemplated in the Bylaws of the Association.
Section 20.3 "Building" or "Buildings" shall mean the building or buildings which have
been, will be, or may be constructed on the Lots.
Section 20.4 "Common Areas!' shalt mean the portion of the Development intended for
the non-exclusive use by the Owners and their Permittees, in common with other users. Common
Areas shall generally consist of all areas outside of the footprint,of any Buildings within the •
Development and shall Include, but not be limited to,comrtion.. tility lines and systems,all surface
parking areas and structures (including those parking structures and facilities owned by the
Association), access roads, driveways, lanes, entrances, walkways, sidewalks, landscaping, any
detention or retention ponds, areas, and drainage facilities, parks, plaza areas and other open
spaces that comprise the public realm,directional signage, signage promoting the Development,
public lighting, security lighting and facilities, if any, and any other areas designated as common
areas by Declarant; provided, however, Common Areas shall not include any facilities in the
Interior of any Building:
Section 20.5 "Declarant" shall mean.On 680 Zone f, LLC, a Nebraska limited liability
company, as set forth in the introductory clause of this Declaration, until such time as On 680
Zone I, LLC, a Nebraska limited liability company, is no longer the record owner of any Lot in the
Development. •
Section 20.6 "Declarant Control Period";shall mean the time period commencing with the
recording of this Declaration and continuing until'the earlier of(a) the date Declarant no longer
owns any Lot in the.DevetoprnenLjb).the;date:'Oe:cl; rant elects, in its discretion, in an instrument
recorded against the t ribberty; to;transfer, i.�egnqulsh, and/or surrender all of its rights and
obligations in this Declaration; or(e)ten.,(10) years after the Effective Date. Declarant shall be
deemed to own any Lot in which:Declarant directly owns an interest in such Lot. AU rights and
obligations of Declarant shall automatically become the rights and obligations of the Board upon
expiration of the Declarant Control Period.
Section 20.7 "pevelopment" shall mean the Regency Landing development, as
described In the recitals hereof.
Section 20,8. ..."L vernertts"shall mean all land preparation and excavation, Buildings,
outbuildings, structures, underground installations, slope and grade alterations, lighting, roads,
walkways, curbs, gutters, storm drains, drainage ways, utilities, driveways, parking areas and
structures, fences, screening walls and barriers, retaining walls, stairs, decks, patio areas,
windbreaks,plantings, planted trees and shrubs, sidewalks, bicycle racks, planters, poles.flags,
signs, storage or display areas, loading areas, docks, water retention areas, fountains, water
features, ponds, recreational facilities, and all other structures, land development, or landscaping
improvements of every type and kind.
Section 20.9 " "or"Lots"shall mean and refer to the Property and any lot(s)into which
the Property may be subdivided or platted. The current Lots are reflected on the Site Plan
attached hereto as Exhibit C.
50
ownerfee simple title to
Section 20.10 "Owner"shall mean and refer to the record ofp any •
Lot,excluding,however,those parties having such interest merely as security for the performance
of any obligation (such as a contract seller, the trustee or beneficiary of a deed of trust, or a
mortgagee).
Section 20.11 "Permittee"shall mean all Owners, their Tenants or licensees of the Lots,
and each of their respective officers, directors, employees, agents, contractors, customers,
vendors, suppliers, visitors, and invitees.
Section 20.12 "Tenant" shall mean and refer to the designated tenant or lessee under a
lease agreement for all or portion of a Lot or Improvement constructed thereon,and including any
sublessees or subtenants of such a tenant.
Section 20.13 In addition to the definitions set forth above,there are other defined terms
set forth elsewhere in this Declarations All of the preamble clauses to this Declaration are
incorporated into this Declaration as though fully rewritten here at length.
ARTICLE 21
ASSOCIATION
Section 21.1 Formation of Association. The Association shall be a non-profit
corporation formed under the laws of `the State of Nebraska, charged with the duties and
empowered with the rights prescribed by law and set forth herein and in the Articles of
Incorporation of the Association as filed with the Nebraska Secretary of State (the"Articles") and
the Bylaws of the Association(the"Bylaws"). Upon incorporation of the Association by Declarant,
the Association shall be charged with the duties and vested,with the powers set forth in the
Articles, the Bylaws, and this Declaration.
Section 21.2 Powers...and-iesponslbilities. The Association shall have the powers
conferred upon non-profit:eprporations organized under the laws of the State of Nebraska and all
powers and duties necessa ry°.and-appropriate to accomplish the purposes and administer the
affairs of the Association as provided In this Declaration, the Articles, and the Bylaws. The
business;and affairs of the Association shall be managed by its Board, such Directors of whom
shall have all of the power's set forth in the Bylaws and all other powers now or hereafter conferred
by law.
Section 21.3 Meinbershie. Each Owner.including Declarant, shall be a member of the
Association (a ' ember") anti:, by Its.`purchase or acquisition and ownership of a Lot, shall be •
deemed to have agreed to be bound by all provisions of this Declaration, the Bylaws, and at
amendments thereto,as,well as all other Association documents, including, but not limited to, any
rules and regulations 'promulgated by the Association or the Board. Membership shall be
appurtenant to ownership of any Lot, and may not be separated from ownership of each Lot,
Membership shall not be transferred, pledged, or alienated in any way, except as appurtenant to
the transfer of ownership of a Lot. Any attempt to transfer a membership except as appurtenant
to the transfer of ownership of a Lot shall be void and shall not be reflected upon the Association's
books and records.
Section 21.4 Voting. Each Member shall be entitled to vote on each matter properly
coming before the Members as determined by the Bylaws. Votes shall be allocated to each Lot •
pro rata based on the Building square footage of each Lot as compared to the Building square
51
footage of all Lots. The total number of votes for all Lots in the Development shall be one hundred
(100).
•
Section 21.5 Board of Directors.
(a) The affairs of the Association shall be conducted by the Board and such
officers as the Board may elect or appoint in accordance with the Articles and the Bylaws.
Except as otherwise provided herein or in the Articles or the Bylaws, all acts of the
Association shall be made by a majority of the Directors on the Board. The Board may
also appoint various committees at its discretion and may contract with a person or entity
to serve as a manager who shall, subject to the direction of the Board, be responsible for
the day-to-day operation of the Association. The Board shall determine the compensation
to be paid to the manager and any employees of:the Association; provided such
compensation shall be consistent with similarly situated developments in Douglas County,
Nebraska.
(b) The number of Directors on the Board shall not be less than three (3) nor
more than seven (7). The initial Board of the Association shall consist of three (3)
Directors,which shall be appointed by:Declararittpan,expitiort,ofthe Declarant Control
Period or the earlier relinquishment.by Declarant bf its appointment fights, the Directors
on the Board shall be elected annually by majority voteoof the Members of the Association
at its annual meeting.
(c) No member of the Board or of any committee of the Association or
employee or manager of the Association, or Declarant, or any agent employee, or officer
of Declarant, shall be personally liable to:any Owner,>or to any Tenant or other party,
including the Association,. for any damage, loss, or prejudice suffered or claimed on
account of any:act, omission, error, or negligence of any such person or entity, if such
person or entity has, on the basis of such. information as may be possessed by such
person or entity, acted In good faith without willful or intentional misconduct.
Section 21`.6 Rules andReaulations.The Board shall have the right to promulgate such
rules and regulations as:;:.deems necessary, and each Member shall be bound by such rules and
regulations; provided, however,thatwithout its written consent, no Member shall be bound by(a)
any rule or regulation impostlg any fees or costs on such Member that are not specified in this
Declarationas of the date hereof, or(b) any rule or regulation that would impose restrictions on
the use of a Lot owned by such-Member,other than those restrictions specified in this Declaration
as of the date hereof.Subject:to the foregoing,the rules and regulations may govern and restrict
the use of any portion of the Property. Upon adoption and written consent of the Members if •
required under this paragraph, the rules and regulations shall have the same force and effect as
if set forth herein.
Section 2.7 Administration and.Compliance. If the Articles or the Bylaws are in any
way inconsistent with this Declaration,then this Declaration shall prevail and control. Each Owner
and Tenant of a Lot shall comply with, and shall cause their respective Permittees to comply with,
the provisions of this Declaration, the Bylaws, and, subject to Section 2.6, such rules and
regulations as the Association may implement, as each may be amended from time to time.
Failure to so comply shall be grounds for(a) action for damages and/or injunctive relief, and (b)
such remedies, by legal proceedings or otherwise, as are available by reason of this Declaration
52
or by law, each of which remedies shall be cumulative and In addition to any other available
remedy.
ARTICLE 22
CONSTRUCTION REQUIREMENTS
Section 22.1 Plan Approval. Prior to commencing any work on Improvements on any
Lot, including, but not limited to the construction,addition, installation, modification, demolition, or
•
alteration of any Building eriClosucr ,iaridscaplhg fence,-.parking facility,sign, light pole or fixture,
or any other structure or,temporaiy orpernrai ent fmpro.Veircents lwithln such Lot (except for
interior construction or remodeling), the Owner of such Lot shall first submit to Declarant during •
the Declarant Control Period or, thereafter,to the Board, for prior written approval,the site plans,
grading and utility plans, landscaping plans, signage plans, floor plans and building elevations,
materials plans, demolition plans, and such other plans and specifications as may be appropriate
•
(collectively, the "Plans"). Within sixty (60) days after its receipt of the Plans, Declarant or the
Board, as applicable, shall approve such Plans in writing or furnish the Owner with a written
disapproval stating specifically the reason(s)for such disapproval. In the event Declarant or the
Board, as applicable, disapproves the Plans, the Owner may resubmit revised Plans at any time
thereafter, which shall be subject to the same sixty(60)-day review period by Declarant, Failure
of Declarant or the Board, as applicable, to respond within said sixty (60)-day period shall be
deemed approval of the submitted Plans Upon approval of'tfe.Plans by Declarant or the Board,
as applicable,any proposed Common Areas shall become and'-remain Common Areas under this
Declaration and the Bylaws unless otherwise-designated by Declarant or the Board, as applicable.
The approval of the Plans by Declarant or the Board, as applicable, shall not constitute any
representation or warranty as to the adequacy, sufficiency, performance or compliance with laws . I
and regulations.All modifications to any approved Plans now orhereafter proposed by the Owner
of such Lot must be approved_by Declarant or the Board, as applicable, in accordance with this
Article Ill prior to commencement of such modifications,
Section 22.2 -Pettftitnlaiido.of-Construction. Each Owner shall be bound to perform all
construction on its Lot or Lots (a) in accordance with the Plans as approved by Declarant or the
Board, as applicable;=,(b)with due.diligence and in a good and workmanlike manner, using new
and first-class materials,;,(c) in accordance with all applicable laws, ordinances, rules, and
regulations of all governmental and quasi-governmental agencies and authorities having
jurisdiction over such construction, (d) only after having procured and paid for authorizations of
the various departments and govemmental agencies having jurisdiction, and (e) in accordance
with the terms and provisions'.of this Declaration, Each Owner shall be responsible for providing
staging and parking areas on its Lot for its construction workers so as to keep the Common Areas
available for the other Owners and their Permittees. The Owners shall keep all Common Areas
and other Lots free from debris and shall repair or replace any Common Areas damaged by such
Owner or its agents, employees or contractors. The Owners, in the performance of their
construction, shall not (x) cause any unnecessary or unreasonable increase in the cost of
construction of any other Owner, (y) unreasonably interfere with any other construction being
performed on the Property, or(z) unreasonably impair the use, occupancy, or enjoyment of the
Property or any part thereof.
Section 22.3 Indemnity. Each Owner shall indemnify, defend, and hold harmless the
other Owners from and against all claims and all costs, expenses, and liabilities incurred in
connection with all claims, including any action or proceedings brought thereon, arising from or
as a result of any mechanic's liens or other claims regarding materials supplied or work performed,
53
or the death of, or any accident, injury, loss, or damage whatsoever caused to, any person or to
the property of any person, as shall occur by reason of the performance of any construction by or
at the request of the indemnitor,except for claims caused by the gross negligence or willful act or
omission of the Indemnitee, its licensees, concessionaires,agents,servants, or employees. If any
mechanic's, materialman's, or other similar lien shall at any time be filed against any portion of
the Property on account of any work, labor, or services performed or claimed to have been
performed or on account of any materials furnished or claimed to have been furnished,for or at
the direction of an Owner, such Owner shall,without cost or expense to any other Owner, cause
the same to be discharged of record by payment, bond, or order of a court of competent •
jurisdiction within thirty(30)days after the filing of said lien.
ARTICLE 23
USE RESTRICTIONS AND COVENANTS
Section 23.1 Use in General.Subject to the limitations set forth below,the Development
shall be used as a mixed-use development, including retail, office, hotel, and residential uses.
Section 23,2 Zoning and Use Compliance. All uses on the Lots must conform to this
Declaration and any subsequent amendments hereto and to all applicable zoning regulations of
any municipal body or agency with jurisdiction over the Development.
Section 44.3 No interference. No`_Owner shall keep or-maintain anything or shall permit
any condition to exist upon such Owner's:lot.:or..cause any other condition on any Lot which
materially impairs or interferes with any easement;:or right of any other Owner hereunder or
otherwise materially impairs or interferes with.the use and;,enjoyment of any other Owner as to
the Common Areas. No Owner shall engage-in,or permit''ahy activity which interferes with the
reasonable enjoyment of:any4ther Owner within7the Devetoprnent.
Section 4.4 Storane.and'L.oadina Areas. No materials, supplies, or equipment shall
be stored in or allowed`To remain:in any area on any Lot except inside a closed Building.
Notwithstanding the foregoing, during:the construction of any Building on a Lot, construction
materials may be stored on such Lot provided such storage is lawful and accomplished in a
manner reasonably designed to minimize any interference with the use and enjoyment of any
existing Building and/or Common Areas by any Owner(s) and Permittee(s)thereof.
Section 23.5 Prohib1ted Uses. None of the following uses or operations shall be
conducted or permitted on qr=with respect to all or any portion of the Devetopment unless
otherwise approved by Declarant or the Board, as applicable;
(a) Any public or private nuisance:
(b) Any use which emits or results in strong, unusual or offensive odors (but •
not such odors as shall normally emit from restaurants)fumes,dust or vapors, is a public
or private nuisance, emits noise, creates a hazardous condition, or Is used, in whole or in
part, as or for warehousing or the dumping or disposing of garbage or refuse, other than
in enclosed receptacles intended for such purpose;
(c) Any use which emits excessive quantity of dust, dirt, or fly ash; provided
however, this prohibition shall not preclude the sale of soils, fertilizers, or other garden
materials or building materials in containers if incident to the operation of a home
54
•
improvement or other similar store;
(d) Any use which could result in, or cause fire, explosion, or other damaging
or dangerous hazard, including the storage, display, or sale of explosives or fireworks;
(e) Any drilling for and/or removal of subsurface substances;
(f) Any flea market, swap meet, or second hand store;
(g) Any abortion clinic or drug rehabilitation clinic;
(h) Any central laundry, dry cleaning plant, or Laundromat; provided, however,
this prohibition shall not preclude nominal supportive facilities for on-site service oriented
to pick up and delivery by the ultimate consumer;
(i) Pool hail;
(j) Children's entertainment complex or facility;
•
(k) Game room or arcade;
(I) An adult entertainment facility, including, but not limited to, an adult
bookstore, adult video store, adult movie house, nude or semi-nude entertainment facility, •
massage parlor, strip show, lingerie exhibition or shop (excluding a Victoria's Secret or
similar high quality national retailer), establishment,for the sale, rental, display, viewing,
or exhibition of pornographic or "adult only materials (including, without limitation,
magazines, books,,m.ovies, videos and`'photographs), a so called "gentlemen's" club or
facility, or any establishment for the sale of items or paraphernalia that are intended to be
or commonly are utilized in connection with the use of illegal drugs; provided, however,
this prohibition shall not preclude(i)the sale or rental of adult books,magazines,or videos
as an incidental part of the'business of a general purpose bookstore or video store,(Ii)the
operation ofabusiness.providing"boria.fide massage therapy,and(iii)the showing of films
in any first-rate motion picture theater;
(m) Off-track betting, gaming or bingo establishment;
(n) Any mobile home or trailer court, junk yard, stock yard or animal raising
operation; provided, however, this prohibition shall not preclude pet shops or veterinary
offices;
(o) Any place of gathering for temporary or day labor;
(p) Any paycheck advance,check cashing, or similar establishment open past
6:00 p.m.;
(q) Any dumping of garbage, junk, recyclable materials, or refuse, other than
that produced in connection with the Development and disposed of in enclosed
receptacles intended for such purpose;or
•
•
(r) Any cemetery, crematorium, mausoleum, mortuary, funeral parlor, or
55
similar service establishment.
Section 4.6 Declarant's .Authority. to Grant Exclusive Uses Within the
Development. Declarant reserves the right during the Declarant Control Period to agree, from
time to time, to an exclusive covenant/agreement which would grant an Owner and/or its
Tenant(s) with the exclusive right to operate a certain type of business or use within the
Development. Upon approval by Declarant, such exclusive use covenao#lagreettient shall be
binding upon all Owners, and Declarant shall provide written notice of such exclusive use
covenant/agreement to all Owners within a commercially reasonable time following Declarant's
approval thereof; provided, however, that any such exclusive use covenant/agreement shall not •
be retroactive but shall only be effective against any future use (and not any uses then currently
in place within the Development), and any such exclusive use covenait/agreemenit shall only be •
applicable while such Owner or Tenant, as applicable, is actively operating such use within the
Development. In the event the lease which is the subject of the exclusive use
covenant/agreement is terminated or, alternatively, in the event that an Owner ceases such use
for a period of six (6) months or longer (excluding remodeling or reconstruction periods), then
such exclusive use covenant/agreement shall automatically terminate. This right shall terminate
and be of no further force and effect upon expiration of the Declarant Control Period. •
ARTICLE 24
GRANT OF EASEMENTS
•
Section 24.1 easements. Subject to the terms of this Declaration, Declarant hereby
grants and conveys the following non-exclusive easements appurtenant,in,to, on, over, through,
•
upon, across, and under (hereinafter, the word "in" with resPect to an easement granted "in" a
particular Lot means, as the context may require, .In, to, on; over, through," upon, across,
and "under,"or any one or snore"of:the foregoing), the Common Areas for the benefit and use of
the Owners and their Permittees:
(a) Cross_.Parkirip-.l=aseinent. A.anon-exclusive easement for parking in the
portions of the CommonCorrinOntAediith4tiscentain paved parking surfaces or structures for the
vehicles .of::Owners anOiiiipermitteiealhereon as designated from time to time by the
Declarant. Exnept;as expressly set forth herein or otherwise designated by the Declarant,
there shall be cross_;parkingrights on all designated parking areas within the Common
Areas of each Lot. Declarant reserves the right to agree to an exclusive
Overlent/agreement which would grant an Owner and/or its Tenant(s)with the exclusive
right to:park In a specified number of parking stalls within the Development. Upon approval
by Declarant, such exclusive covenant/agreement shall be binding on all Owners, and
Declarant shall provide written notice of such:icovenant/agreement to all Owners within a
commercially'reasonable time following Declarant's approval`thereof.
(b) Access. Easement. A non-exclusive easement in the portions of the
Common Areas containing paved surfaces for driveways, perimeter roads, and access
ways for vehicular and pedestrian ingress and egress as designated from time to time by
the Declarant, and access and the right of access over established circulation elements
between the public streets and perimeter roads and access ways and any portion of the
Development, as designated from time to time by the Declarant.
(c) Construction of the Development. A non-exclusive easement and right of
access, ingress, and egress appurtenant to the Development, to permit each Owner to
56
i i
construct, maintain, repair and renovate its respective Lot; provided, however, that as to
any construction work affecting or Involving the use of another Owner's Lot (the"Other
Areal, such construction work will only result in incidental, temporary encroachment that
may occur as a result of the use of construction equipment, ladders, overhead cranes,
scaffolding,barricades, and similar facilities, resulting in temporary obstruction of portions
of the Other Areas, all of which are permitted hereunder so as such work is performed, to
the extent applicable, In accordance with the provisions of Article III and such use is kept
within reasonable requirements of construction work expeditiously pursued.
(d) Ufility Easement. A non-exclusive easement in the Common Areas for
utility lines,which easement shall include the right to install, use,test, connect to,operate,
maintain, repair, replace, and remove water lines and systems, telephone lines and
systems, gas lines and systems, sanitary sewer lines and systems, storm sewers,
drainage lines and systems, electrical lines and systems,and other utility lines or systems
developed to serve one or more of the Lots; provided,however,that all pipes,wires, lines,
conduits, mains, sewers,systems, and related equipment will be installed underground or
otherwise enclosed and will be installed, operated, and maintained in a manner which will
not unreasonably Interfere with the use of any other Lot or Improvements, The location of
any such utility facilities shall be subject to the reasonable approval by the Owner of the
burdened Lot, shall be located within or immediately adjacent to public utility easements
or Lot lines, and when approved by such Owner, shall be evidenced by a recorded
instrument legally describing and.depicting the location:of such easements. The Owner
of each Lot shall cooperate in the granting of additional or appropriate and proper
easements for the installation, repair, and replacement of storm drains, sewers, utilities,
and other proper services necessary:for the orderly.development and operation of the
Development. If an Owner, in the course of installing, using, testing, connecting to,
operating,maintaining;repairing,replacing, or removing utility facilities on a Lot other than
the Lot owned by the Owner, damages pavement,landscaping, or other Improvements on
that Lot, such Owner shall`promptly repair, at its sole cost and expense, all such damage
and restore such Lot.substantlally to its prior condition and shall defend, indemnify and
hold harmless and 'all ()Viet' Owners or Tenants against all loss, liability, and costs
(including reasonable attorneys'fees)which may result from the negligent act or omission
of such Owner,:Its agentg employees or contractors. No Owner shall have the right to tie
:into utility facilitlei:?f` Sfalid; popifically to serve another Lot without the prior written
consent of the Ownerof the other Lot.
(e) SurfaceWaterArainaae Easement A non-exclusive easement in,to,over,
and through the drainage patterns and systems as are established within the Common'
Areas, for reasonable surface drainage purposes; provided, however, all surface water
drainage from any Lot shall be consistent with any approved drainage plan for the
Development and shall be in accordance with all applicable laws,codes, and regulations
of governmental authorities. To the extent an Owner's Lot includes Common Areas,
nothing herein shall prevent such Owner from relocating the drainage patterns established
upon such Owner's Lot, provided such Owner first provides Declarant with plans
respecting such relocation and such relocation does not unreasonably interfere with the
drainage of other Lots within the Development.
(f) Sipn Easement Declarant shall have an exclusive easement to install,
access,and maintain signage on the Common Areas.
57
(g) Easement for all Common Areas. A non-exclusive easement appurtenant
to the portions of the Development consisting of the Common Areas, for the benefit of
Declarant,the Association, and all Owners and Permittees. Such easement shall include
the right of ingress/egress and the right to install, repair, reconstruct, restore, and/or
replace any Improvements located within the Common Areas, as permitted pursuant to
the terms hereof, and the general right to utilize and enjoy the Common Areas.
Each Owner may, at any time and from time to time, remove, exclude, and restrain any
person from the use, occupancy, or enjoyment of any easement hereby created or the area
covered thereby for failure to observe the covenants and restrictions set forth herein. If the
unauthorized use is being made of any easement area, such unauthorized use may be
permanently restrained or terminated by appropriate proceedings after written notice and
opportunity to cure as may be required by Section 10.4 below.
Section 24.2 ,Mature of Easements and Rlahts Granted.
(a) Taserrments Appurtenant. Each and all of the easements and rights granted
or created herein are appurtenances to the Lots and none of the easements and rights
may be transferred, assigned or encumbered except as an appurtenance to such Lots.
(b) Nature and Effect. Each and all of the easements, covenants, conditions,
restrictions and provisions contained In this Declaration:
(I) Are made for the direct, mutual, and reciprocal benefit of the
Owners and Permittees of the Lots;
(ii) Create mutual equitable servitudes upon each Lot in favor of
the other Lots, except as otherwise specifically set forth herein;
(iii) Constitute covenants running with the land; and
(iv) Shall bind every person or entity having any fee, leasehold, or
other interest in any portion of the Development, at any time and from time •
to time,to-the extent that such portion is affected or bound by the easement,
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covenant,condition, restriction,or provision in question, or to the extent that
such easement, covenant, condition, restriction, or provision is to be
performed on such portion.
(c) Transfer of Title. The acceptance of any transfer or conveyance of title
from any Owner or Tenant or their respective heirs, representatives, successors, or
assigns of all or any part of its interest in its Lot, or lease, or any portion thereof, shall be
deemed to:
(I) Require the prospective grantee to agree not to use or
occupy,or permit any other party to use or occupy, its Lot or Improvements
in any manner which would constitute a violation or breach of any of the
easements, covenants, conditions, or restrictions contained herein; and
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(ii) Require any prospective lease assignee to assume and agree
to perform each and all of the obligations of the conveying party under this
Declaration with respect to the Lot, Improvements, or interest to be
conveyed.
Section 24.3 Abandonment of Easements. After the expiration of the term of this
Declaration, the easements granted pursuant to Section 5.1 hereof, or all or any part or parts
thereof, may be abandoned and terminated only if the use thereof shall have ceased and f
cessation thereof continues for a continuous period of five (5) years.Thereafter, the then record
owner of fee simple title of the Lot burdened with such easement may give written notice by United
States certified mail, return receipt requested, mailed to the then record owner of the fee of the
Lot(s)benefited by such easement and the then record owner, if any of any leasehold interest in
such benefited Lot(s), stating that such easement has been abandoned and may place of record
in the Office of the Register of Deeds of Douglas County, Nebraska, an affidavit that such
abandonment has taken place and that such notice has been properly given. If the then record
owner of fee simple title of the benefited Lot fails to place of record in the Office of the Register of
Deeds of Douglas County, Nebraska, within ninety (90)days after the giving of such notice, an
affidavit that such easement has not ceased to be used during such continuous five (5)-year F
period, such easement shall thereupon be conclusively deemed abandoned and any person
having or thereafter acquiring an interest in the Lot previously burdened shall hold and take such
interest free of and unencumbered'by such easement.
Section 24.4 Restriction. No Owner shall grant any easement for the benefit of any
property not within the Development; provided, however,that the foregoing shall not prohibit the
granting or dedicating of easements by an Owner.:oh itsLot to-governmental authorities or to
public utility companies.
Section 24.5 _PO Barrier_Agreement. No barriers, fences, grade changes, or other
obstructions shall be ereoted so as=to impede or interfere in any way with the free flow of vehicular
and pedestrian traffic between those portions of the Lots located in the Common Areas available
for pedestrian access, vehicular roadways, or parking area, or in any manner unreasonably
restrict or interfere with the use and enjoyment by any of the Owners or Permittees of the rights
and easements created:by this Article V. The preceding sentence shall not prohibit the
reasonable designation and:relocationof traffic and pedestrian lanes. In addition, each Owner
may temporarily close or block traffic of its Lot for the time necessary for the purpose of protecting
ownership rights and preventing creation of easements to the public and unrelated third parties
(provided, however,that priorfto closing off any portion of the Common Areas, as herein provided,
such Owner shall give fifteen;(15)days'prior written notice to each other Owner of its intention to
do so and shall attempt to coordinate such closing with each other Owner, so that no
unreasonable interference in the passage of pedestrians or vehicles shall occur), and may
temporarily fence off portions of its Lot as reasonably required for the purpose of repair,
construction, and reconstruction.
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ARTICLE 25
RULES AND REGULATIONS
Section 25.1 Fjules.and.Reaulations, Declarant or the Board,as applicable,shall have the right to promulgate such rules and regulations as it deems necessary and each Owner shall
have bound by such rules and regulations. The rules and regulations may govern and restrict the
59
use of any portion of the Development; provided, however, that the same must be reasonable
and must not discriminate among Owners except to reflect their different rights as provided herein,
and shall not be inconsistent with this Declaration, Upon adoption,the rules and regulations shall
have the same force and effect as if set forth herein.
ARTICLE 26
MAINTENANCE AND TAXES
Section 26.1 Maintenance by Owners.
(a) Buildings, Each Owner shall maintain or cause to be maintained, at its
expense, any Building(s) located on its respective Lot, including, but not limited to,(i) any
signage located on the façade of the Building(s), Oftall windows, doors, and exterior
Building walls,(iii)the HVAC unit exclusively serving the Building(s), (iv)any portion of the
Building(s) overhanding onto the,Common Areas or extending into the Common Areas
below the surface (i.e., the foundation), and (v) the roof drainage systems serving such
Lot(including all downspouts and rain gutters), in a well-maintained, safe, clean,neat and
attractive condition at all times, in compliance with all applicable health, fire, building, and
safety ordinances, codes, regulations, and requirements. No Building shall be permitted
to fall into disrepair, No Owner shall do any act or work that will impair the structural
soundness or safety of any Building.
(b) Damage and Destruction:_of.Buildings, In the event a Building is damaged
or destroyed, such Building shall be diligently.reconstructed, restored, and/or repaired
within a reasonable time and in full compliance With the terms and provisions of this
Declaration and all applicable local and: governmental codes and regulations. Any
reconstruction, restoration, and/or repair:Of a Building in connection with damage and/or
destruction thereto shall be:made by and at the individual expense of the Owner of the Lot
• upon which..the Building is located. This provision, however, does not prevent an Owner
from requiring a contributio i from another Owner or third party pursuant to any rule of law
regarding,liability for negliigent:or willful.,acts or omissions. In the event a Building is
destroyed and-reconstruction of suchBoitding does not commence within sixty (60)days
from the date of.destruction=::ihe Owner of such Lot shall immediately undertake steps to
abate any unsightly or dangerous conditions thereon and restore such Owner's Lot to a
clean, safe, and attractive condition.
Section 26.2 Maintenance by the Association.
(a) -Common Areas. The Association shall maintain the Common Areas and
the Improvements:thereon in good condition and repair, and shall replace the same as
may be necessary from time to time,in compliance with all applicable health, fire,building,
and safety ordinances, codes, regulations, and requirements. The Association's
maintenance, repair, and replacement obligations hereunder shall include, but are not
limited to, the following:
(i) Maintaining paved surfaces in a level, smooth and evenly-
covered condition with the type of surfacing material originally approved by
Declarant, or such substitute as shall in all respects be equal in quality, use
and durability to that originally approved and installed;
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(ii) Maintaining any storm sewer detention system in good
working condition;
(iii) Removing all paper, mud and sand, snow and ice, trash,
debris, filth, and refuse and thoroughly sweeping the area to the extent
reasonably necessary to keep the area in a clean and orderly condition;
(iv) Placing, keeping in repair and replacing any necessary or
appropriate directional signs, markers, and lines, and maintaining all other
signage (excluding signage on the exterior façade of Buildings) in a good
condition and state of repair;
(v) Operating, keeping in repair and replacing, where necessary,
such lighting facilities as shall be required or permitted within the
Development;
(vi) Maintaining, mowing, weeding, thinning, trimming, watering,
fertilizing, cultivating, and pruning all landscaped areas, including any
adjacent public rights-of-way, to maintain the same in a neat, well-groomed
condition, and replacing=.;as necessary shrubs and other landscaping on a
regular basis; dead or dying;plants shall be removed within thirty(30)days;
all plants and trees are to,be irrigated as often;'as necessary to maintain
healthy growing conditions;Owners:shall,also adjust tree guys,stakes, etc.,
on a regular basis to maintain a neat appearance and to prevent damage
to trees; and
(vii) Maintaining any pedestrian, vehicular, or other easements
granted or reserved pursuant to theterms and conditions of this Declaration.
(tr) :Maintenance Standard: The Board shall maintain a commercially
reasonable standard in providing for the repair, management, maintenance, and
replacement of the Common.Areas: however,the Board shall be the sole judge as to the
appropriate maintenance thereof. •
Section 26.3 Common Area Charges. Each Owner shall be responsible for its share of
actual expenses..incurred by the Association in operating, maintaining, repairing, rebuilding,
replacing, restoring, securing, monitoring, and insuring the Common Areas and Improvements
thereon pursuant to Section 7.2 above, and paying any taxes assessed with respect to such
Common Areas (collectively, the "Common Area Charges"). Common Area Charges shall be
allocated among the Owners pursuant to Section 7.6 below;
Section 26.4 Damage by Owner. In the event any act, omission, or condition caused
by any Owner or its Permittees results In the destruction or removal of any portion of the Common
Areas, the Association shall have the right to either(a) require the Owner, at its sole cost and
expense, repair and replace, fn a good and workmanlike manner, free of liens and to as good a
condition as the condition of such Improvements prior to such destruction or removal, at such
Common Areas, or(b)after reasonable notice to the Owner, cause the repair and replacement of
such Common Areas, in which case the Owner shall promptly reimburse the Association for such
61
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costs. Any landscape Improvements shall be promptly replaced with landscaping and other
materials of like size and kind as approved by the Association or committee thereof.
Notwithstanding anything herein to the contrary, in the event of an emergency or if any portion of
the Common Areas located on a Lot is rendered unsafe or hazardous for any reason, at the
Association's reasonable discretion and after reasonable notice to the Owner, the Association
shall have the right, but not the obligation, to repair or remove such condition, in which case the
Owner shall promptly reimburse the Association for such costs:
Section 26.5 Capital Assessments. The Association shall have the right and power to •
assess, in any fiscal year, special assessments to construct, reconstruct, or replace capital
improvements in the Common Areas, including but not limited to, access roads, utilities, and
parking facilities ("Car itat_.Assessments"). Any such Capital Assessments shall be allocated
among the Owners pursuant to Section 7.6 below.
Section 26:6 Proportionate Share. Each Owner shall reimburse the Association for its
respective Proportionate Share(as hereinafter defined)of the Common Area Charges and Capital
Assessments, including a management fee not to exceed fifteen percent (15%) of the Common
Area Charges. Each Lot's "Proportionate Share" shall be determined based upon the Building
square footage of each Lot divided by the total Buitding.square footage of all Lots. In addition,
the Association may, from time to time, designate specific Common Areas or capital repairs or
improvements as benefiting specific Lots. The Common Area Charges applicable to such
Common Areas or the Capital Assessments applicable to such Capital repairs or improvements
shall be allocated pro rata to such benefited L.otsbased upon the Building square footage of each
benefited Lot divided by the total Building square footage of all benefited Lots or some other pro
rata method as determined by the Association. The Association shall provide yearly estimates of
the Common Area Charges..to the Owners and shall levy assessments against each Lot in
accordance with the Bylaws.The_Association shall also have the right to levy special assessments
against each Lot, in its reasonable discretion, in accordance with the Bylaws. The time and
manner of payment of such assessments shall be governed by the Bylaws.
Section 26.7 Taxes:anitaiiiSeiletrerts. Each Owner shall pay,or cause to be paid prior
to delinquency, all taxes and assessmentsvvith respect to its Lot and any Improvements located
thereon,and any personal:,property;:owned or leased by such Owner in the Development,provided
that if such taxes or assessments or ar>y part thereof may be paid in installments, each Owner
may pay each such installment as and when the same becomes due and payable. Nothing
contained heroin_shall prevent,any Owner from contesting,at its cost and expense,any taxes and
assessments with.respect:to.ita Lot in any manner such Owner elects, so long as such contest is
maintained with:reasonable•.dlligence:and in good faith. At the time such contest is concluded
'(allowing for appeal:to the blithest appellate court), the contesting Owner shall promptly pay all
taxes and assessments determined to be owing, together with all interest, penalties and costs
thereon.
Section 26.8 Covenant to Pay Assessments. Each Owner, by owning or hereinafter
acquiring a Lot, shall be deemed to covenant and agree to pay Common Area Charges, Capital
Assessments, and any special assessments levied by the Association as established herein.
Section 26.9 Liens for Assessments Qr Fines. The Common Area Charges, Capital
Assessments, and any special assessments levied by the Association, together with interest
thereon, costs, and reasonable attorneys' fees incurred by the Association to collect the same,
shall be the personal obligation of the Owner of each Lot at the time such first become due and
62
payable pursuant to this Declaration and shall further be a charge and continuing lien upon the
Lot against which such Common Area Charges, Capital Assessments, and special assessments
are charged.The grantee of any Lot shall be jointly and severally liable with the grantor of the Lot
for all unpaid Common Area Charges,Capital Assessments,and/or special assessments charged
to such Lot and due prior to the time of the grant of conveyance,without prejudice to the grantee's
right to recover from the grantor the amount paid by the grantee.
Section 26.10 Non-Use. No Owner may waive or otherwise escape liability for the
Common Area Charges or Capital Assessments by non-use of the Common Areas or capital
improvements, or any part thereof.
Section 26.11 Certificate ReoardingAssessments. The Association shall,upon written
request, for a reasonable charge, furnish a certificate setting.forth whether the Common Area
Charges, Capital Assessments, and special assessments on a Lot have been paid. The
certificate shall be conclusive evidence of payment of any Common Area Charges, Capital
Assessments, and special assessments therein stated to have been paid.
ARTICLE 27.
INSURANCE
Section 27.1 Insurance by the Association. The Association shall maintain or cause
to be maintained in full force and effect commercial general liability insurance in an amount to be
determined by the Board and such other insurance which the Board considers appropriate to
protect the Association.
Section 27.2 Insurance by Owners. Each Owner(as to its Lot only) shall maintain or
cause to be maintained in full force and effect at least the minimum insurance coverages in
constant dollars set forth below:
(a) Commercial::general liability insurance with a combined single limit of
liability of Two Million;DollarS=($2,000,000.00)in constant dollars for bodily injury,personal
injury and property damage, arising out of any one occurrence. The other Owners shall
be "additional'insureds" under such policy as it applies to the insuring Owner's Lot;
provided, however, this insurance shall not apply to any occurrence based on the
negligence, or willfulact or omission of such"additional insured".
(b) Worker's compensation insurance as required by any applicable law or
regulation.
(c) Employer's liability insurance in the amount of One Million Dollars
($1,000,000.00)each accident for bodily injury, One Million Dollars ($1,000,000.00)policy
limit for bodily Injury by disease and One Million Dollars ($1,000,000.00) each employee
for bodily injury by disease.
(d) Automobile Liability Insurance for owned, hired and non-owned
automobiles. The limits of liability shall not be less than One Million Dollars
($1,000,000.00) combined single limit each accident for bodily injury and property
damage,
(e) Any other insurance required pursuant to the Bylaws.
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Each Owner agrees to defend, protect, indemnify, and hold harmless each other
Owner from and against all claims or demands, including any action or proceedings brought
thereon, and all costs, losses, expenses, and liability of any kind relating thereto, including
reasonable attorneys'fees and cost of suit, arising out of or resulting from the Injury to or death
of any Permittee, or damage to the property of any Permittee located on the Lot owned by each
indemnifying Owner, provided, however, that the foregoing obligation shall not apply to claims or
demands based on the negligence or willful act or omission of such other Owner, its licensees,
concessionaires, agents, servants, or employees, or the agents, servants, or employees of any
licensee or concessionaire thereof. In the event it is determined that such other Owner was not
at fault, then the indemnifying Owner shall reimburse such other Owner for all reasonable costs
and expenses incurred defending against such claim or demand.
Section 27.3 Insurance Durinr Construction. Prior to commencing any construction
activities within the Development, each Owner shall obtain or require Its contractor to obtain and
thereafter maintain so long as such construction activity is occurring, at least the minimum
insurance coverages in constant dollars set forth below:
(a) Worker's compensation insurance as required by any applicable law or
regulation.
(b) Employer's liability insurance in the amount of One Million Dol
lars
($1,000,000.00)each accident for bodily injury,One Million Dollars($1,000,000.00)policy
limit for bodily injury by disease and One Million Dollars ($1�000,000.00) each employee
for bodily injury by disease.
(c) Commercial general liability insurance covering all operations by or on
•
behalf of the contractor, which shall include the following minimum limits of liability and
coverages:
(I) Required coverages:
(a) Premises and Operations;
(b) Products and Completed Operations;
(c) Contractual Liability, insuring the indemnity obligations
assumed by contractor under the contract documents;
(d) Broad Form Property Damage (including Completed
Operations);
(e) Explosion, Collapse and Underground Hazards;and
(f) Personal Injury Liability.
(ii) Minimum limits of liability:
(a) One Million Dollars ($1,000,000) each occurrence (for
bodily injury and property damage);
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1
(b) One Million Dollars ($1,000,000) for Personal Injury
Liability;
(c) Two Million Dollars ($2,000,000) aggregate for 1
Products and Completed Operations; and
1
(d) Two Million Dollars ($2,000,000) general aggregate
applying separately to the project. 1
(d) Automobile liability Insurance, if applicable, including coverage for owned,
hired, and non-owned automobiles.The limits of liability shall not be less than One Million
Dollars($1,000,000,00)combined single limit each accident for bodily injury and property
damage. The contractor shall require each of their subcontractors to include in their
liability insurance policies coverage for automobile contractual liability.
(e) The contractor shall also carry umbrella/excess liability insurance in the
amount of Five Million Dollars ($5,000,000.01 ).,. if thereiis no per project aggregate under
the commercial general liability policy, tha limit shall be Ten Million Dollars($10,000,000).
(f) If the construction activities involve the use of another Lot, then the
constructing Owner shall cause(i)the owner of such other Lot to be an additional insured
on each policy, (ii) with respect to tha work on such other.-Lot, the coverage set forth In
Subsection 8.3(c) above to be extended for three (3);year period following final
completion of work, and (lii) each such policy:to proviide`that the same shall not be
cancelled, allowed to expire, nor reduced in amount:;4r.,coverage below the requirements
set forth above withoutsat least thirty(30).days'prior written notice to each insured. If any
of the insurance policies:are cancelled;;.expire or the amount or coverage thereof is
reduced below the level required, then the car}structtng;Owhier shall immediately stop all
work on and use::_.of the other Lot until either the required insurance is reinstated, or
replacement insurance is obtained, and evidence thereof is given to the owner of such
other Lot.
(g) Effective upon the commencement of construction of any Building on its
Lot and so long as such Building exists, an Owner shall carry, or cause to be carried,
property insurance with Special Form coverage, In the amount of one hundred percent
(100%)of full replacement cost thereof(excluding footings,foundations and excavations).
Each Owner (the "Releasing Party") hereby releases and waives for itself, and each
Person claiming by, through or under It, each other Owner (the °Released Party") from
any liability forany loss or damage to all property of such Releasing Party located upon
any portion ofthe Development, which loss or damage is of the type covered by the
insurance required to be maintained under this Subsection 8.3(g), irrespective of the
amount of such insurance required or actually carried, including any deductible or self-
insurance reserve. Each Releasing Party agrees to use its reasonable efforts to obtain, if
needed, appropriate endorsements to its policies of insurance, and to the policies of
insurance carried by its occupants, with respect to the foregoing release; provided,
however,that failure to obtain such endorsements shall not affect the release and waiver
hereinabove given.
Section 27.4 General-Reaulrements..
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I I
(a) All insurance required by this Article VIII shall be written on an occurrence
basis and procured from companies rated by Best's Rating Guide not less than A-IX which
are authorized to do business in the state where the Development is located. All insurance
may be provided under (i) an individual policy covering the Development; (ii) a blanket
policy or policies which includes other liabilities, properties, and locations of such Owner;
provided, however, that if such blanket commercial general liability insurance policy or
policies contain a general policy aggregate of less than Twenty Million Dollars
($20,000,000.00)in constant dollars,then such insuring Owner shall also maintain excess
liability coverage necessary to establish a total liability insurance limit of Twenty Million
Dollars ($20,000,000,,00) in constant dollars; (iii) a plan of self-insurance, provided that
any Owner so self-insuring notifies the other Owners of its intent to self-insure and agrees
that upon request it shall deliver to such other Owners each calendar year a copy of its
annual report that is audited by an independent certified:public accountant which discloses
that such Owner has Two Hundred Fifty Million Dollars ($250,000,000.00) in constant
dollars of both net worth and net current assets; or (iv) a combination of any of the
foregoing insurance programs. Any deductible permitted or allowed as a part of any
insurance policy carried by an Owner in compliance with this Article VIII shall be a
commercially reasonable deductible in constant dollars unless such Owner complies with
the requirements regarding self-insurance pursuant to(iii)above. Each Owner agrees to
furnish to the other Owners, upon request, a certificate of insurance evidencing that the
insurance required to be carried by such Owner is in full force and effect.
(b) The insurance required, pursuant to this Article VIII shall include the
following provisions:
(i) Shall provide that the policy shall not be canceled or reduced
in amount or coverage below the requirements of this Declaration, nor shall
such policy be allowed to expire, without at least thirty (30) days' prior
written notice by the insurer to each insured and to each additional insured;
(ii) Shall provide for.severability of interests;
(iii) Shall provide that an act or omission of one(1) of the insureds
or additional insureds which would void or otherwise reduce coverage shall
not reduce or void the coverage as to the other insureds; and
(iv) Shall provide for contractual liability coverage with respect to
the indemnity obligation set forth in Sections 8.2.
ARTICLE IX
EMINENT DOMAIN
Section e_1 Owner's Right to Award. Nothing herein shall be construed to give any
Owner any interest in any award or payment made to the other Owners in connection with any
exercise of eminent domain or transfer In lieu thereof affecting said other Owner's Lot or giving
the public or any government any rights in said Lot. In the event of any exercise of eminent
domain or transfer in lieu thereof of any portion of the Common Areas located in the Development,
the award attributable to the land and Improvements of such portion of the Common Areas shall
66
be payable only to the Owner thereof, and no claim thereon shall be made by the Owners of any
other portion of the Common Areas except as set forth in Section 9.2 below.
Section 9.2 Collateral Claims. All other Owners of the Common Areas may file
collateral claims with the condemning authority for their losses with respect to the loss of Common
Areas or the overall reduction the Property comprising the Development, if any, which are
separate and apart from the value of the land area and Improvements taken from another Owner.
Section 9.3 Tenant's,Claim. Nothing in this Article is intended to alter the rights
between a Tenant of a°Lot and the Owner of such Lot pursuant to the provisions of any lease
Owner with respect to anysuch award or payment.
between such Tenant and such e p P Y
Section 9.4 Restoration of Common Areas. The Owner of any portion of the
Common Areas so condemned shall, at its sole cost and expense, promptly repair and restore
the remaining portion of the Common Areas within its respective Lot as nearly as practicable to
the condition of the same immediately prior to such condemnation or transfer. In the event the
Owner does not repair and restore the remaining portion of the Common Areas in a reasonable
timeframe,the Board shall have the right,but not the obligation,to cause the repair and restoration
of such remaining portion of the Common Areas, in which case the Owner shall promptly
reimburse the Association for such costs.
ARTICLE X
MISCELLANEOUS
Section 10.1 Nature and Effect. Each and,all-bf the easements, covenants,conditions,
restrictions, and provisions contained in this Declaration:
(a) Are made'':for the direct, mutual, and reciprocal benefit of Declarant, the
Association, and the Owners and Permittees of the Lots;
(b) Create'mutual equitable servitudes upon each Lot in favor of the other Lots,
except as otherwise specifically set forth'herein;
(c) Constitute covenants running with the land; and
(d) Shall bind every person or entity having any fee,leasehold,or other interest
in any portion of the Property, at any time and from time to time, to the extent that such
portion is affected or bound by the easement, covenant,condition, restriction, or provision
in question, -or to the extent that such easement, covenant, condition, restriction, or
provision is tote performed on such portion.
Section 10.2 .Jtlahts and Obligations of Lenders. If, by virtue of any right or obligation
set forth herein,a lien shall be placed upon the Lot of any Owner hereto, such lien shall expressly
be subordinate and inferior to the lien of any first lien holder now or hereafter placed on such Lot.
Any holder of a first lien on any Lot, and any assignee or successor in interest of such first lien
holder, shall be subject to the terms and conditions of this Declaration.
Section 10.3 Release from Liability. Any person acquiring fee or leasehold title to any
Lot shall be bound by this Declaration only as to the Lot or portion of the Lot acquired by such
person. In addition, such person shall be bound by this Declaration only during the period such
67
person Is the fee or leasehold owner of such Lot or portion of the Lot, except as to obligations,
liabilities, or responsibilities that accrue during said period. Although persons may be released
under this Section 10.3, the easements, covenants, and restrictions in this Declaration shall
continue to be benefits to and servitudes upon said Lots running with the land.
Section 10.4 Breach.
(a) Right to Cure. Declarant or the Board,on behalf of the Association,or their
respective duly authorized agents shall have the right, upon violation or breath of any
other covenant, restriction, or easement set forth herein, if such violation or breach
continues for a period of thirty(30)days after written notice thereof is given to the Owner,
to enter upon the Lot where such violation or breach exists, and summarily remove,at the
expense of the Owner thereof,who shall pay all such expenses, plus interest at the prime
rate of interest announced from time to time in the Wall Street Journal, plus five percent
(5%)(not to exceed the maximum rate of Interest allowed by law),within five(5)days after
demand, any structure, thing, or condition that may be or exist thereon contrary to the
provisions of this Declaration or the Bylaws. Notwithstanding the foregoing, if the cure of
such violation or breach cannot reasonably be effected within such thirty(30)-day period,
Declarant or the Board shall take no action so long as such Owner has commenced the
cure of such breach or violation within such thirty(30)=day period and is diligent in pursuing
the completion of such cure.
(b) Other Remedies. In addition to the rights and:remedies set forth herein, in
the event of any breach,default, non-compliance,violation, or failure to perform or satisfy
any of the covenants,conditions, restrictions,and easements contained in this Declaration
or the Bylaws by an.Owner, if the default is not cured.Within thirty (30)days after written
notice describing the default is given to such Owner by the Board, then any one or more
of the following rights or remedies or any other rights or remedies available at law or in
equity,whether or not set forth herein, may be enforced.All rights and remedies set forth
in this Declaration-or available at law or in,equity shall be cumulative and not mutually
exclusive.
(I) Damages. Declarant,the Board,or any Owner may bring a suit for
damages arising from_or with respect to any such default.
(ii) Lien. In the event of a failure of an Owner to pay any Common Area
Charges or Capital Assessments, Declarant or the Association shall have the right
to file a lien against the Owner's Lot(s)and to prosecute and foreclose on such lien
in compliance with all applicable laws, codes and regulations of governmental
authorities.
(iii) Declaratory Relief. Declarant, the Board, or any Owner may bring
a suit for declaratory relief to determine the enforceability of any of the provisions
of this Declaration.
(iv) injunctive Relief,.Specific Performance. it is recognized that a
default hereunder may cause material injury or damage not compensable by an
award of money damages
gact on inthat
equity orDeclarant,
otherwisse for specific performance to
ll
be e entitled to bring an
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enforce compliance with this Declaration or for any injunctive relief to enjoin the
continuance of any default or to prevent a default.
(v) Fines. This Subsection 10.4(b)(iv) may be enforced only by the
Board. Upon a default by an Owner, the Board may assess fines based on a
schedule of fines (to be reasonably related to the nature of the default) adopted
from time to time by the Board for various types of defaults that may arise under
this Declaration,or as the Board may assess for defaults not covered by an existing
schedule of fines, provided that the Board shall assess a fine that is reasonable
and appropriate under the circumstances, and provided further that the •
assessment of a fine shall be in addition to all ether-rights and remedies available
hereunder.
(vi) Rights of Lenders. No default under or violation of any provision of
this Declaration shall defeat or render invalid the lien of any mortgage, deed of
trust, or similar instruments securing a loan with respect to the permanent
financing, construction financing, or any refinancing of any Lot or portion thereof
or any Improvement thereon.However,all of the provisions of this Declaration shall •
be binding upon and effective against any subsequent Owner of any Lot or any
portion thereof whose title is acquired by foreclosure,trustee sale, deed in lieu of
foreclosure, or otherwise,...pursuant to the lien, rights under any such mortgage,
deed of trust, or similar instrument.
Section 10.5 Non-Merger. This Declaration shall not be subject to the doctrine of
merger.
Section 10.6 Headings. The headings herein are inserted only as a matter of
convenience and for reference andiin no way define, limit, or describe the scope or intent of this
document nor in any way:affect thetiterms and provisions hereof.
Section Itz Entice Aareement:. :This Declaration constitutes the entire agreement
between thwpairlf$S.hereto as to the matters set forth in this Declaration.
Section 10.8 ,Estoppel Certificates. Each Owner shall, upon not less than thirty (30)
days from:receipt of written'notice from.any other Owner,execute and deliver to such other Owner
a certificate:stating that (a) either this Declaration is unmodified and in full force and effect or is
modified (and,Stating the mod cation), and (b) whether or not to the best of its knowledge the
other Owner or Owners are in default in any respect under this Declaration, and if in default,
specifying such default. •
Section 10.9 Notice.Any notice required or permitted to be given under this Declaration
shall be in writing and shall be made by personal delivery or deposit In the United States Mail as
Certified Mall, Return Receipt Requested, postage prepaid, or deposit with a recognized national
overnight courier and addressed to the Owner being notified at the address given below(or such
other address which any Owner may designate for itself from time to time hereafter by written
notice to the other Owners):
If to On 680: On 680, LLC
c/o Access Commercial, LLC
1303 South 72nd Street, Suite 209
69
Omaha, Nebraska 68124
Attn: Darren Hicks
if to Declarant: On 680 Zone I, LLC
c/o Access Commercial, LLC
1303 South 72nd Street, Suite 209
Omaha, Nebraska 66124
Attn: Darren Hicks
if to Owner/Tenant: To the party at the street address of the Lot owned or
occupied.
Any such notice, request or other communication shall be considered given or delivered,
as the case may be,on the date of hand or overnight courier delivery or upon deposit in the United
States mail as provided above. Rejection or other refusal to accept or inability to deliver because
of changed address of which no notice was given shall be deemed to be receipt of the notice,
request or other communication.
Section 10.10 Assignment. The rights and obligations of any Owner hereunder may be
assigned in whole or in part to any person acquiring the entire interest of such Owner in its Lot or
to one or more ground lessees or lessees which rights and obligations shall be expressly assumed
by such ground lessee or lessees for the term of the ground lease or lease between such Owner
and such ground lessee or lessee.
Section 10.11 Amendment. This Declaration and any provision contained herein may
be extended, modified, altered,..repealed, supplements, or amended in any respect by at least
seventy-five percent (75%) of``the, votes of the.Members. Any such extension, modification,
alteration, repeal, supplement, or-amendment shall be memorialized via a written document
executed by such authorizing Members, which document shall be recorded in the Office of the
Register of Deeds of Douglas County, Nebraska. Notwithstanding the foregoing, during the
Declarant Control Period, Declarant-must concur in all alterations, amendments and/or
revocations_of this-Deola ration:. ...
Section 10.12 pititbiti. •Eatit reference herein to an exhibit refers to the applicable
exhibit that is attached to this Dedlaratfon. All=such exhibits constitute a part of this Declaration
and by this reference are expressly made a part hereof.
Section 1013 Limitation of Liability. Any person acquiring fee or leasehold title to any
of the Lots or any portion thereof, shall be bound by this Declaration only as to the Lot or portion
of the Lot acquired by`such person. In addition, such person shall be bound by this Declaration
only during the period such person is the fee or leasehold owner of such Lot or portion of the Lot,
and upon conveyance or transfer of the fee or leasehold interest, shall be released from liability
hereunder, except as to the obligations, liabilities, or responsibilities that accrue prior to such
conveyance or transfer. Although persons may be released under this Section 10.13, the
easements, covenants and restrictions in this Declaration shall continue to be benefits to and
servitudes upon said tracts running with the land.
Section 10.14 Term of this Declaration. This Declaration shall be effective as of the
date first above written and shall continue in full force and effect until December 31, 2099, and
shall automatically renew for successive ten (10)-year periods thereafter unless, by affirmative
70
•
vote of sixty percent (60%) of all Member votes entitled to be cast, the Association elects, by
written declaration signed and acknowledged by the approving Members and duly recorded with
the Office of the Register of Deeds of Douglas County, Nebraska,to terminate this Declaration,
effective as of the end of the then-current term. Notwithstanding the foregoing, the easements
referred to in Article V hereof shall continue in full force and effect as provided herein. Upon the
termination of this Declaration,all rights and privileges derived from and all duties and obligations
created and imposed by the provisions of this Declaration, except as relates to the easements
mentioned above, shall terminate and have no further force or effect; provided, however, that the
termination of this Declaration shall not limit or affect any remedy at law or in equity that an Owner
may have against any other Owner with respect to any liability or obligation arising or to be
performed under this Declaration prior to the date of such termination.
Section 10.15 Severability. In the event any provision or portion of this Declaration is
held by any court of competent jurisdiction to be invalid or unenforceable, such holding will not
affect the remainder hereof,and the remaining provisions shall continue in full force and effect at
the same extent as would have been the case had such invalid or unenforceable provision or
portion never been a part hereof.
[Remainder of Page Intentionally Left Blank. Signature Pages to Follow.]
71
IN WITNESS WHEREOF, the undersigned have executed and delivered this Declaration
as of the Effective Date.
ON 680:
On 680, LLC,
a Nebraska limited liability company
By: SCM 10X Fund, LLC,
a Delaware limited liability company
Its: Sole Member
By: SCM 10X Managers, LLC,
a Nebraska limited liability company,
Its: Manager
• By:
Kirk Hanson, Manager
STATE OF NEBRASKA )
) SS
COUNTY OF DOUGLAS )
On this day of , 2021, before me, a Notary Public in and for
said county and state, personally appeared Kirk Hanson,who executed the foregoing Declaration,
and acknowledged before me that he was duly authorized and did execute the same as the
Manager of SCM 10X Managers,LLC,a Nebraska(united liability company, as the Sole Member
of SCM 10X Fund, LLC, a Delaware limited liability company, Sole Member of On 680 Zone I,
LLC, a Nebraska_limited liability company, on behalf of said company.
GIVEN under my hand and Notarial Seal, this day of
2021.
Notary Public
My Commission expires:
[Signature Page to Declaration of Easements,Covenants,Conditions and Restrictions for Regency Landing,
DECLARANT:
On 680 Zone I, LLC,
a Nebraska limited liability company
By: SCM 10X Fund, LLC,
a Delaware limited liability company
Its: Sole Member
By: SCM 10X Managers, LLC,
a Nebraska limited liability company,
Its: Manager
By:
Kirk Hanson,Manager
STATE OF NEBRASKA )
) SS
COUNTY OF DOUGLAS )
On this day of .. . 2021, before me, a Notary Public in and for
said county and state,personally appeared Kirk Hanson,who executed the foregoing Declaration,
and acknowledged before me that he was duly authorized and did execute the same as the
Manager of SCM 10X Managers, LLC, a Nebraska limited liability company,as the Sole Member
of SCM 10X Fund, LLC, a Delaware limited liability company, Sole Member of On 680 Zone I,
LLC, a Nebraska limited liability company, on behalf of said company.
GIVEN under my hand and Notarial Seal,this day of_ 2021.
Notary Public
My Commission expires-
(Signature Page to Declaration of Easements,Covenants,Conditions and Restrictions for Regency Landing]
•
,EXHIBIT A
'
LEGAL DESCRIPTION OF THE ON 680 PROPERTY
•
•
[Exhibit A to Declaration of Easements,Covenants,Conditions and Restrictions for Regency Landing[
EXHIBIT B
LEGAL DESCRIPTION OF THE DECLARANT PROPERTY
[Exhibit B to Declaration of Easements,Covenants,Conditions and Restrictions for Regency Landing]
EXHIBIT C
SITE PLAN
E i
i I
[Exhibit B to Declaration of Easements,Covenants,Conditions and Restrictions for Regency Landing]