RES 1997-1617 - Real estate purchase agmt with Jayhawk LLC for 1511 Dodge St and 109 S 16th St o IV NF�A i, s- ' Planning Department
rti -.51W; • y Omaha/Douglas Civic Center
z ��ujC'��' 1819 Farnam Street,Suite 1100
r®,6.Cl '4! 4 C " _ Omaha,Nebraska 68183-0110
�, ro (402)444 5200
O�'T�D FEBR �y (402)444-5150
' Telefax(402)444-6140
City of Omaha -
Hal Daub,Mayor
Honorable President
and Members of the City Council,
The attached proposed Resolution authorizes the City to execute an Assignment and Assumption of
Real Estate Purchase Agreement to acquire property for the Downtown Northeast Redevelopment
Plan. The property is owned by the Omaha Development Council,Inc. and is located at 1511 Dodge
Street and at 109 South 16th Street. This property is part of the site being assembled for a
City-owned parking garage for Redevelopment Project Two within the Downtown Northeast
Redevelopment Area .
•
An Agreement between the City of Omaha and Jayhawk L.L.C., approved by the City Council on
February 4, 1997, approves a Real Estate Purchase Agreement dated December 6, 1996 between
Jayhawk, L.L.C. and the Omaha Development Council, Inc. The attached Assignment and
Assumption of Real Estate Purchase Agreement transfers the right of Jayhawk, L.L.C. to purchase
the property owned by Omaha Development Council, Inc. to the City. The purchase price is
$250,000. Funding for the acquisition will be from the sale of Lease-Purchase Bonds. The
Resolution also approves the attached First Amendment to Real Estate Purchase Agreement
amending the Real Estate Purchase Agreement to conform the legal description of the property to
the survey.
Your favorable consideration of this Resolution is requested.
Sincerely, Referre City Coun •1 for Consideration:
/1,-t•-t.,,-P711 .4 • p7
<7
xt.g Planning Department Director Date Mayor's Office/Title ate
pproved as to Funding:
IL-A 6701 7
Louis A. D'Ercole Date
Acting Finance Director
P:\PLN2\5100.SAP
. to �._
p - ASSIGNMENT AND ASSUMPTION
OF REAL ESTATE PURCHASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF REAL ESTATE PURCHASE
AGREEMENT(this "Assignment") is made and entered into by and between JAYHAWK L.L.C.,
a Delaware limited liability company ("Assignor"), and the CITY OF OMAHA, NEBRASKA
("Assignee").
PRELIMINARY STATEMENTS
WHEREAS, Assignor has entered into that certain Real Estate Purchase Agreement dated
December 6, 1996, between Omaha Development Council, Inc., a Nebraska nonprofit
corporation, as seller, and Assignor, as purchaser, as amended by that certain First Amendment
to Real Estate Purchase Agreement made effective as of February 10, 1997 (the "Contract"), for
the purchase of the real estate legally described in Exhibit "A" attached hereto, which real estate,
together with the improvements located thereon and all hereditaments, appurtenances, easements,
and right-of-ways thereunto belonging or in any way appertaining and also the right, title, and
interest (if any) of seller in and to the bounding and abutting streets, alleys, and highways, will
be referred to in this Assignment as the "Property";
WHEREAS, Assignor has deposited earnest money in the amount of $1,500.00 with
Escrow Agent (as defined in the Contract) which shall be credited toward the purchase price of
the Property at Closing (as defined in the Contract); and
WHEREAS, Assignor desires to assign the Contract to Assignee and Assignee desires to
accept such assignment and assume the obligations of the purchaser under the Contract, pursuant
to Section 2.6(a) of that certain Redevelopment Agreement dated February 10, 1997, among
Assignee, Assignor and First National Bank of Omaha, a national banking association (the
"Redevelopment Agreement").
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right and interest of the
purchaser in, to, and under the Contract, as of the effective date hereinafter set forth. Assignor
represents and warrants to Assignee that Assignor has all right and interest of the purchaser in,
to, and under the Contract, and has full right and lawful authority to transfer and assign the
Contract to Assignee. Assignor further represents that a true and complete copy of the Contract
is attached hereto and marked Exhibit "B."
OMAHA-27969.1
.
2. Assignee hereby accepts such assignment and assumes and agrees to perform all
of the covenants, conditions, duties, and obligations of the purchaser under the Contract accruing
from and after the effective date of this Assignment. Assignee represents to Assignor that
Assignee has full power and lawful authority to accept such assignment and assume such duties
and obligations, and that the execution and delivery of this Assignment on behalf of Assignee has
been duly authorized by all necessary action on the part of Assignee.
3. Pursuant to Section 2.6(a) of the Redevelopment Agreement and upon execution
of this Assignment, Assignee shall reimburse to Assignor the $1,500.00 earnest money deposit
paid to seller under the Contract. In the event Assignee does not reimburse Assignor within three
(3) business days of Assignee's execution of this Assignment, Assignee shall be deemed to have
requested that Assignor advance to Assignee the purchase price for the Property, all such Property
being located within the South Public Parking Garage and Skywalk Plan Area (as defined in the
Redevelopment Agreement). Assignee shall repay Assignor the amount of the advance plus
interest, accruing from the effective date of this Assignment, not later than June 30, 1998, in
accordance with Section 2.6(a) of the Redevelopment Agreement.
4. This Assignment is effective as of February 10, 1997. Assignee hereby agrees to
indemnify, defend and hold Assignor harmless from and against any and all claims, liability or
expense asserted against or incurred by Assignor as a result of the breach by Assignee of any
obligation of the purchaser under the Contract first arising on or after the effective date of this
Assignment. Assignor hereby agrees to indemnify, defend and hold Assignee harmless from and
against any and all claims, liability or expense asserted against or incurred by Assignee as a result
of the breach by Assignor of any obligation of the purchaser under the Contract first arising
before the effective date of this Assignment.
5. This Assignment may be executed in one or more counterparts, each of which will
be deemed to be an original, but all of which will be deemed to be one and the same instrument.
OMAHA-27969.1 2
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y IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the dates
set forth beneath their respective signatures.
ASSIGNOR:
JAYHAWK L.L.C.
BY: Pacific Associates Capital Corp.,
Manager
By: c�kt.�-,
Ja LW.die- President
Date: Vim- 4 /447
ASSIGNEE:
CITY OF , NEBRASKA
By:
ayor o Omaha
Attest: .
By:
....1)701City Clerk
Approved as to Form:
By:
As 1st rty orney
OMAHA-27969.1 3
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this 5— day of N_16v1-ki ,
1997, by Jay B. Noddle, President of Pacific Associates Capital Corp., a Nebraska corporation,
manager of Jayhawk L.L.C.;a Delaware limited liability company, on behalf of the corporation and
the limited liability company.
Nota Public
My Commission expires:
GENERAL NOTARY-State of Nebraska
'� i C.WILLIAM JOHNSON
` i , III I II II , July 31,1999
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this /3 4day of ,
t1997,by
he Citycs
Ti h°4'n ca L., ,who is theMayor of the City of Omaha,Nebras a, on behalf of
1_
t�JtALNOTARY, ,,•.,x..,.4.A LA /J GA✓
MORAL
r`» 'u ,lic
NY Comm.Exp.Na 24 I997
My Commission expires:
Le,,,,,i,_ aC( /99 7
OMAHA-27969.1 4
41)
EXHIBIT A
LEGAL DESCRIPTION
The South 62 feet of the West 22 feet of Lot 4, the South 63 feet of the East 44 feet of Lot
4, and the South 63 feet of the West 22 feet of Lot 3, all in Block 106, ORIGINAL CITY
OF OMAHA, as surveyed and lithographed, in Douglas County, Nebraska; and
The West 22 feet of Lot 2, and the East 22 feet of Lot 3, Block 106, ORIGINAL CITY
OF OMAHA, as surveyed and lithographed, in Douglas County, Nebraska.
OMAHA-27969.1
EXHIBIT "B" 5'9"` ‘)
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (this "Agreement") is made and
entered into between Omaha Development Council, Inc., a Nebraska nonprofit corporation,
referred to in this Agreement as "Seller," and Jayhawk L.L.C., a Delaware limited liability
company, referred to in this Agreement as "Purchaser."
Introduction
Seller has represented to Purchaser that Seller is the owner of the real estate described in
Exhibit "A" to this Agreement, which real estate, together with the improvements located thereon
and all hereditaments, appurtenances, easements, and right-of-ways thereunto belonging or in any
way appertaining and also the right, title, and interest(if any) of Seller in and to the bounding and
abutting streets, alleys, and highways, will be referred to in this Agreement as the "Property."
Purchaser desires to acquire the Property upon the terms set forth in this Agreement, and Seller
is willing to sell the Property to Purchaser upon such terms.
* * *
In consideration of the provisions of this Agreement, Seller and Purchaser agree as
follows:
1. Purchase and Sale. Purchaser agrees to purchase the Property from Seller, and
Seller agrees to sell the Property to Purchaser, for a total purchase price of$250,000, which shall
be paid by certified check, cashier's check, or wire transfer at Closing.
2. Earnest Money Deposit. Within five (5) days after receiving a fully executed and
acknowledged copy of this Agreement, Purchaser will deposit earnest money of$500 in escrow
with Pacific Realty Group, Inc., 1905 Harney Street, Suite 403, Omaha, Nebraska 68102. Such
deposit will initially be deposited in Pacific Realty Group, Inc.'s Real Estate Brokerage Trust
Account. Pacific Realty Group, Inc. will transfer the earnest money to ATI Title Co. or another
title insurance company doing business in Omaha, Nebraska, to be held subject to all of the terms
of this Agreement. The holder of such earnest money at any time is referred to herein as the
"Escrow Agent". Purchaser will have the right to direct that the title insurance company acting
as Escrow Agent hold the earnest money in a federally insured interest bearing account.
The entire earnest money deposit will be paid over to Seller as part of the purchase price
at the Closing, unless the purchase contemplated hereby does not close, in which case the earnest
money deposit will be paid over to Purchaser and Seller pursuant to the relevant provisions of this
Agreement. All interest earned on Purchaser's earnest deposit will be paid to Purchaser or, at
Purchaser's direction, applied to the purchase price when the earnest money is disbursed.
OMAHA-22613.2
3. Title Insurance. Promptly after full execution of this Agreement, Purchaser shall
obtain a current commitment for an ALTA Form B owner's title insurance policy in the full
amount of the purchase price, with the standard exceptions deleted, which Seller represents will
show good, marketable and insurable fee simple title to the Property in Seller. Purchaser shall
provide Seller with a copy of such commitment promptly after receipt. If Purchaser objects to the
condition of the title disclosed by such title insurance commitment, Purchaser shall notify Seller
in writing within thirty (30) days after receipt of such commitment and Seller at its expense
promptly shall use reasonable efforts to remedy such objectionable matters (which may include
payment of liens at Closing out of the proceeds of the sale of the Property). If Seller does not so
remedy the title matters objected to by Purchaser (other than liens to be paid at Closing) within
forty-five (45) days after the date of such notice from Purchaser, then, at the exclusive election
of Purchaser, exercisable in its absolute discretion, Purchaser either(a) may complete the purchase
of the Property and accept such title thereto as Seller is able to convey without reduction of the
purchase price(unless such title objections are encumbrances or liens for an ascertainable amount,
in which case that amount may be deducted from the purchase price) or (b) for a period of thirty
(30) days after the expiration of such forty-five (45) day period may elect to terminate this
Agreement. Such commitment shall be updated to the date of Closing. The premium for the title
insurance policy and all other charges by the title company relating to the issuance of the
commitment or the policy shall be divided equally by Seller and Purchaser.
4. Survey. Purchaser, at its expense, shall have the right to obtain a survey or
surveys of the Property. If such survey discloses any right-of-way, easement, encroachment or
other matter on or applicable to the Property which in Purchaser's reasonable business judgment
will interfere with Purchaser's intended use of the Property, then, at the exclusive election of
Purchaser, exercisable in its absolute discretion, Purchaser either (a) may complete the purchase
of the Property in its existing condition or (b) at any time prior to Closing may elect to terminate
this Agreement.
5. Environmental Inspection. Within ten(10) days after execution of this Agreement
by Seller, Seller shall deliver to Purchaser copies of all environmental audits, tests, samplings,
and reports pertaining to the Property that Seller has in its possession or to which it is entitled,
as well as copies of any notices of violation of any environmental law or regulation Seller has
received from anyone pertaining to the Property.and Seller's response thereto, if any. If Seller has
none of the foregoing, it shall so notify Purchaser. Purchaser, at its expense, may obtain such
environmental audits, tests, samplings, analyses, and reports of the Property as it desires. If such
environmental audits, tests, samplings, analyses, or reports indicate that the Property is
contaminated by regulated substances, hazardous or toxic substances, pollutants or contaminants,
then Seller shall have the option to either terminate this Agreement (in which event Purchaser's
earnest deposit shall be refunded in full) or, at Seller's expense, take such prompt action as is
required to clean up and remediate the contamination of the Property; provided, that if Seller
elects to terminate this Agreement, Purchaser shall have five (5) days after receipt of notice of
termination to waive Seller's obligation to clean up the Property, in which case Seller's
termination notice shall be null and void. At Purchaser's option, the Closing shall be postponed
OMAHA-22615.2 2
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for such period of time as may be reasonably required in order for Seller to complete Seller's
obligations under this paragraph. If Purchaser elects to proceed with Closing before clean up or
remediation is complete, Seller's obligation to complete the same shall survive Closing, and
Purchaser may require that all or part of the purchase price be held in escrow by the Escrow
Agent until completion to pay the cost thereof. The amount to be held in escrow shall be mutually
determined by Purchaser and Seller after consultation with environmental remediation consultants
concerning the probable cost of remediation and contingencies for unknown conditions.
6. Redevelopment Project Approval Contingency. Purchaser's obligation to purchase
the Property pursuant to this Agreement is conditioned upon the approval by the. Omaha City
Council and the execution on behalf of the City of a Redevelopment Agreement for a
redevelopment project on the Property and certain other neighboring property that is satisfactory
to Purchaser, in Purchaser's absolute discretion. Purchaser may elect to waive this condition at
any time. If this condition has not yet been satisfied or waived by Purchaser, Purchaser shall have
the right to terminate this Agreement by notice given to Seller on or before February 14, 1997.
If this condition has not been satisfied and Purchaser has not elected to terminate this Agreement
by midnight on February 14, 1997, this condition will be deemed waived by Purchaser.
7. Relocation Assistance. Seller acknowledges that Seller has received and read the
City of Omaha Planning Department Relocation Information Booklet. Seller understands that if
the Property becomes part of, or Seller is displaced on account of, a redevelopment project, then
if not for this paragraph 7, Seller could be eligible for relocation payments and other relocation
assistance under the Nebraska Relocation Assistance Act as a result of the sale of the Property for
or on account of the redevelopment project. Seller agrees that the consideration to be paid to Seller
pursuant to paragraph 1 is sufficient to compensate Seller for all of Seller's moving, relocation,
and reestablishment expenses. Therefore, Seller has determined not to claim any benefits under
the Nebraska Relocation Assistance Act or any other similar law and hereby knowingly and
voluntarily waives all such claims and releases Purchaser, the City of Omaha, and their officers,
officials, agents, successors and assigns from any and all liability whatsoever for relocation
payments or other relocation assistance under the Nebraska Relocation Assistance Act and any
other similar law. Seller understands that the foregoing waiver and release is a material
inducement to Purchaser to enter into this Agreement and pay the consideration specified in
paragraph 1 of this Agreement.
8. Representations, Warranties and Covenants of Seller. Seller represents, warrants,
and covenants to and with Purchaser that:
(a) Seller is a nonprofit corporation duly organized and validly existing under the laws
of the State of Nebraska; the execution, delivery and performance of the terms of
this Agreement on behalf of Seller have been duly authorized by all necessary
corporate actions of Seller; and Seller has full authority and power to enter into this
Agreement and to consummate the transactions contemplated herein. Neither the
OMAHA-22615.2 3
execution, delivery nor performance of this Agreement shall violate or constitute
a breach of any existing agreement or applicable law, rule or regulation;
(b) There is no action, suit, proceeding or investigation pending or, to Seller's
knowledge, threatened before any agency, court or other governmental authority
which would materially affect the Property or Seller's ability to perform its
obligations under this Agreement;
(c) Seller has not received notice of any default or breach by Seller under any
agreements, covenants, conditions, restrictions, rights-of-way, or easements which
may affect the Property, and no such default or breach now exists to the best of
Seller's knowledge;
(d) To the best of Seller's knowledge, the Property does not contain and is not
contaminated with any asbestos or any other hazardous, toxic, or regulated
substance, pollutant or contaminant. To the best of Seller's knowledge, there have
never been any underground storage tanks located on the Property;
(e) As of the date of Closing, there will be no management, service or other contracts
pertaining to the Property, except the Lease (defined below);
(f) As of the date of Closing, no third parties will be in possession or have any right
to possession of the Property,-except for the rights of the tenant of the Property
under the lease now in effect(the "I ease"). Seller will deliver a true and complete
copy of the Lease to Purchaser within five (5) days after execution of this
Agreement by Seller, and Seller agrees not to approve or consent to any
modification of the terms of the Lease without Purchaser's written consent. Seller
also agrees that Purchaser will have the right to contact the tenant under the Lease
to negotiate an agreement to terminate the Leases if Purchaser purchases the
Property. Purchaser's obligation to purchase the Property pursuant to this
Agreement is conditioned upon Purchaser's review and approval of the Lease, in
Purchaser's absolute discretion,• and Purchaser's ability to negotiate a lease
termination agreement with the tenant of the Property on terms acceptable to
Purchaser, in Purchaser's absolute discretion. If the conditions set forth in this
paragraph have not yet been satisfied or waived by Purchaser, Purchaser will have
the right to terminate this Agreement by notice to Seller given on or before
February 14, 1997. If the conditions set forth in this paragraph have not been
satisfied and Purchaser has not elected to terminate this Agreement by midnight on
February 14, 1997, the conditions set forth in this paragraph will be deemed
waived by Purchaser;
(g) Seller shall deliver possession of the Property to Purchaser at Closing, subject to
the Lease; and
OMAHA-22615.2 4
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(h) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal
Revenue Code, and at Closing Seller shall deliver to Purchaser an affidavit or
certificate to that effect satisfying the requirements of such Section.
All of the representations, warranties and covenants of Seller contained in this Agreement
shall be true and complete as of the date of this Agreement and as of the date of Closing, and shall
survive Closing.
9. Closing. The closing of the purchase of the Property(referred to in this Agreement
as the "Closing") shall take place at the office of the Escrow Agent within one hundred twenty
(120) days after the satisfaction or waiver of the redevelopment project approval contingency set
forth in paragraph 6, upon not less than ten (10) days notice from Purchaser to Seller specifying
the date and time of Closing. If the Closing has not yet taken place, then prior to 5:00 p.m. on
the thirtieth (30th) day of such one hundred twenty day period Purchaser shall deposit with the
Escrow Agent an additional earnest money deposit of$1,000.00..If Purchaser does not specify
another time for Closing, Closing shall take place at 10:00 a.m., on the last day of such one
hundred twenty(120) day period. In addition to the other conditions set forth in this Agreement,
Purchaser's obligation to close and pay the purchase price for the Property is subject to the
satisfaction of the following conditions as of Closing:
10. Conveyance. At Closing, Seller shall execute and deliver to Purchaser a good and
sufficient general warranty deed, in recordable form, conveying to Purchaser good, marketable,
and insurable fee simple title to the Property, free and clear of all liens, charges, claims, actions,
encumbrances, easements, rights-of-way, restrictions, title exceptions of any kind whatsoever
except ad valorem real estate taxes not yet delinquent, title exceptions or other matters shown on
the title insurance commitment referred to in paragraph 4 and not objected to by Purchaser, and
the rights of the tenant under the I pace. At Closing, Seller shall also deliver to the title insurance
company any other documentation reasonably requested by the title insurance company in order
to confirm (i) the authority of Seller to consummate the transactions contemplated hereby, and (ii)
the marketability and insurability of Seller's title to the Property, including but not limited to the
title insurance company's customary form of affidavit and indemnification regarding title matters.
11. Possession. Purchaser shall be entitled to possession of the Property, subject to the
Lease, at Closing.
12. Prorations. General ad valorem Property taxes on the Property which became due
on December 31 of the year preceding Closing shall be prorated as of Closing. Rents shall be
prorated as of the date of the Closing. Fees of Escrow Agent for acting as such shall be divided
equally by Purchaser and Seller.
13. Tax Stamps. The amount of the tax imposed by the Documentary Stamp Act,
Article 9, Chapter 6 of the Nebraska statutes which will be payable in connection with the
recording of the deed to the Property either shall be paid by Seller, or shall be credited to
Purchaser as part of Purchaser's payment of the purchase price at Closing.
OMAHA-22615.2 5
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14. Special Assessments. All special assessments against the Property for public
improvements completed or commenced prior to Closing, whether or not levied or assessed prior
to Closing, shall be the obligation of and shall be paid in full by Seller. If such special
assessments have not been levied or assessed prior to Closing, then Seller's obligation to pay such
special assessments as soon as they have been levied and assessed shall survive Closing; and Seller
shall pay such special assessments in full as soon as they have been levied and assessed. At
Purchaser's request, an appropriate escrow will be established at the Closing to provide for the
payment of any special assessments for which Seller is liable under this paragraph but the exact
amount of which is not known at the time of Closing.
15. Refund of Downpayment. In the event that Purchaser becomes entitled to terminate
this Agreement and elects to do so, then Escrow Agent shall, forthwith upon receiving notice from
Purchaser of such election, refund to Purchaser the full amount of the earnest deposit made by
Purchaser pursuant to paragraph 2. Purchaser's acceptance of such refund shall not be deemed
to be a waiver of Seller's liability to Purchaser for any default on the part of Seller in the
performance of Seller's obligations under this Agreement.
16. Risk of Loss. Risk of loss with respect to the Property shall be on Seller until
Closing. In the event of any damage to or destruction of the Property prior to Closing, Purchaser
at its exclusive election, exercisable in its absolute discretion, either (a) may complete the
purchase of the Property in its existing condition and receive from Seller at Closing any insurance
proceeds relating to such damage or destruction which have been received by Seller and not
expended to repair or restore the Property (or an assignment of the right to receive such proceeds
from the insurance company if they have not yet been paid) or (b) at any time prior to Closing
may elect to terminate this Agreement.
17. Inspection of Property. Purchaser and its agents shall have the right to conduct
inspections, reinspections, analyses and feasibility studies regarding the Property at any time prior
to Closing. At Purchaser's option, such inspection may be conducted by one or more surveyors,
engineers, contractors, environmental consultants, architects, or other consultants the expense of
which shall be borne by Purchaser. Seller agrees to cooperate fully with Purchaser and
• Purchaser's agents to allow them full access to the Property during normal business hours.
Following completion of any such activity, Purchaser shall restore the Property to a condition
substantially equal to that existing prior to such activity. Purchaser shall indemnify and hold
Seller and the Property harmless from and against any liens or claims arising out of any such
activity.
18. Protection Against Construction Liens. Seller represents and warrants to Purchaser
that all contractors, subcontractors, laborers, and materialmen performing work upon or furnishing
labor and materials to improve or benefit the Property at Seller's request have been or will be paid
in full by Seller, prior to the date Seller delivers possession of the Property to Purchaser.
Accordingly, Seller hereby agrees to indemnify, defend, and save Purchaser harmless from any
claims, liabilities, damages, or expenses which.Purchaser, or its successors or assigns, may incur
by reason of any construction liens being filed against the Property for work performed or
materials furnished by or at the request of Seller. Seller will execute the necessary affidavits and
OMAHA-22615.2 6
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• indemnities required by the title insurance company to eliminate from its owner's and lender's title
policies any exception for unfiled construction liens.
19. Offer to Purchase. In the event that Purchaser has signed this Agreement prior to
Seller, then this Agreement shall be deemed to be merely an offer to purchase on the part of
Purchaser which automatically shall terminate five (5) days after the date upon which this
Agreement is delivered to Seller for signature unless Seller shall have signed this Agreement and
delivered a fully executed copy thereof to Purchaser within such five (5) day period.
20. Purchaser's Remedies. Although Purchaser has the right under various
circumstances to terminate this Agreement, such right shall not be Purchaser's exclusive remedy
in the event of a breach by Seller of any of Seller's obligations under this Agreement; and
Purchaser shall also have available to it the remedy, among others, of an action for damages or
for specific performance.
• 21. Multiple Copies. Seller and Purchaser may execute multiple copies of this
Agreement, each of which shall be an original for all purposes.
22. Binding Agreement. This Agreement shall run with the land which is the subject
of this Agreement and shall be binding upon and inure to the benefit of Seller and Purchaser and
their respective heirs, personal representatives, successors, and assigns.
23. Notices. All notices required or permitted to be given under this Agreement shall
be in writing and either personally delivered or sent by prepaid United States certified mail, return
receipt requested, addressed as follows:
If to Seller:
Omaha Development Council, Inc.
1301 Harney Street
Omaha, NE 68102
Attn: Barbara Haggart .
If to Purchaser:
Jayhawk L.L.C.
do Pacific Realty Group, Inc.
1905 Harney Street, Suite 403
Omaha, NE 68102
Attn: Jay B. Noddle
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Either party may change its address shown above by giving notice of such change to the other
ply
24. Agency and Brokerage Commissions. Pacific Realty Group, Inc. is acting as a dual
agent for Purchaser and Seller in connection with the transaction contemplated by this Agreement,
OMAHA-22615.2 7 e
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with the informed written consent of Purchaser and Seller, which both hereby reaffirm. Seller
shall pay to Pacific Realty Group, Inc., at Closing, a real estate commission on account of this
transaction in accordance with the terms of the existing listing agreement between Seller and
Pacific Realty Group, Inc.
25. Interest of Real Estate Licensees. Seller has been advised in writing, prior to the
execution of this Agreement by Seller, that Jay Noddle and John Waldbaum are members of
Purchaser and shareholders of Pacific Associates Capital Corp. and Pacific Realty Group, Inc.
As such, they have ownership interests in Purchaser and Pacific Realty Group, Inc. Jay Noddle
and John Waldbaum are real estate professionals and hold real estate salesperson licenses under
the Nebraska Real Estate License Act. This disclosure has been given pursuant to the Nebraska
Real Estate License Act and the Nebraska Real Estate Commission Rules and Regulations.
Purchaser. Purchaser shall have the right to assign Assignable by all of Purchaser's
rights and delegate all of Purchaser's duties under this Agreement to.anyone. In the event of such
an assignment, all references to "Purchaser" in this Agreement thereafter shall mean such
assignee; and upon the assumption by such assignee of Purchaser's duties under this Agreement,
the assignor shall have no further liability under this Agreement.
27. Condemnation. In the event that any action is initiated prior to Closing by any
governmental entity to acquire all or any portion of the Property by condemnation or eminent
domain proceedings, then Purchaser at its exclusive election may terminate this Agreement by
giving written notice of the exercise of such election to Seller within thirty (30) days after Seller
furnishes written notice of the commencement of such condemnation or eminent domain
proceedings to Purchaser or, if no such notice is furnished by Seller, at any time prior to Closing.
28. Liquidated Damages. Purchaser's liability to Seller for nonperformance of this
Agreement shall be limited to the forfeiture of its earnest money deposit, as liquidated damages,
and Seller shall have no further remedies (including, without limitation, specific performance)
against Purchaser.
29. Governing Law. This Agreement shall be governed by the laws of the State of
Nebraska.
30. Paragraph Titles. The paragraph titles in this Agreement are solely for convenient
reference and shall not be considered in the interpretation or application of this Agreement.
31. Number and Gender. Where the context requires, all singular words in this
Agreement shall be construed to include their plural and all words of neuter gender shall be
construed to include the masculine and feminine forms of such words.
32. Entire Agreement. This document contains the entire Agreement between Seller
and Purchaser with respect to the subject matter of this Agreement; and there are no Agreements,
promises, assurances, representations, warranties, undertakings, or understandings, either written
or oral, between Seller and Purchaser concerning the Property other than those set forth in this
OMAHA-22615.2 8
t
•
Agreement. No amendment of this Agreement shall be effective or binding unless it is in writing
and has been signed by both Seller and Purchaser.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Real Estate Purchase
Agreement on the dates set forth beneath their respective signatures, the latter of which dates shall
be considered the date of this Agreement.
JAYHAWK L.L.C.
By: Pacific Associates Capital Corp.,
Manager �
eop,
By:
J ''o i dle, President
Date: /'f/i/fb
OMAHA DEVELOPMENT COUNCIL, INC.
By: l�4✓
Name: (Ul 1?1 Ci ) 1 1 Uui.,A---be-vi
Title: !ems 1 ce,
Date: (r 1.91 (0
•
oMaxn-22615s 9
•
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
' The foregoing instrument was acknowledged before me this __ day of
4,.,__, , 1996, by Jay B. Noddle, President of Pacific Associates Capital Corp., a
Ne raska corporation, Manager of Jayhawk L.L.C., a Delaware limited liability company, on
behalf of the corporation and limited liability company.
0_. -L,P--cx )--/;)
Notary Public
Commission ex ire
GENERAL NOTARY•
•
�2 ��► Slafe ofPie-FIT--
My ,
"k \ -1 C.L. ROSS
MY Comm.Exp.Sept 16. port ,
J
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this 6 day of
9)P Chzm 6e.A_ , 1996, by h i w/ Grp - ,
of Omaha Development Council, Inc., a Nebraska nonprofit
corporation, on behalf of the corporation.
GENERAL NOTARY-81�h of N��lu �,/ �/' �� Q ..
DIANE p. IAICEK Q ,,,, / ._ / 7/ l 17
My Cm�.E�Joni 20,19➢1
Notary Public
My Commission expires:
pti/i--.( t5//f7
•
OMAHA 22615.2 10
Il
•
•
ACCEPTANCE OF ESCROW AGENT
Pacific Realty Group, Inc., designated as Escrow Agent pursuant to the foregoing
Agreement, hereby acknowledges receipt of a fully executed counterpart of the foregoing
Agreement, and hereby agrees to act as Escrow Agent and to hold and apply all sums received by
it as Escrow Agent in accordance with the terms and provisions of the foregoing Agreement.
DATED: /y/G/f PACIFIC REALTY GROUP, INC.,
Escrow Agent
By: 16
Name: %
Title: - •
•
•
•
•
OMAHA-22615.2 11 4111)
•
EXHIBIT A TO REAL ESTATE PURCHASE AGREEMENT
BETWEEN
OMAHA DEVELOPMENT COUNCIL, INC.
AND
JAYHAWK L.L.C.
All of the property owned by Omaha Development Council, Inc. located in Block One
Hundred Six (106), ORIGINAL CITY OF OMAHA, as surveyed and lithographed, in Douglas
County, Nebraska. The legal description of such property will be determined by the title
insurance commitment and the survey to be obtained by Purchaser pursuant to this Agreement.
When such legal description has been determined, the parties will enter into an amendment to this
Agreement setting forth such legal description.
•
OMAHA 22615.2
•
FIRST AMENDMENT
TO REAL ESTATE PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT (this
"Amendment") is made effective as of February 10, 1997, by and between OMAHA
DEVELOPMENT COUNCIL, INC., a Nebraska nonprofit corporation, referred to in this
Agreement as "Seller," and the JAYHAWK L.L.C., a Delaware limited liability company,
referred to in this Agreement as "Purchaser."
WITNESSETH:
WHEREAS, Seller and Purchaser, entered into that certain Real Estate Purchase
Agreement dated December 6, 1996 (the "Contract") for the purchase of that certain real estate
legally described in Exhibit "A" to the Contract, which real estate, together with the
improvements located thereon and all hereditaments, appurtenances., easements, and right-of-ways
thereunto belonging or in any way appertaining and also the right, title, and interest (if any) of
Seller in and to the bounding and abutting streets, alleys, and highways, will be referred to in this
Amendment as the "Property";
WHEREAS, pursuant to the Contract, (i) the legal description of the Property is to be
determined by the title insurance commitment and the survey to be obtained by Purchaser pursuant
to the Contract and (ii) the closing of the purchase of the Property is to occur within 120 days
after the satisfaction or waiver of redevelopment project approval;
• WHEREAS, a title commitment was issued by ATI Title Company on behalf of Stewart
Title Guaranty Company, effective date December 5, 1996, Commitment number 96010249 (the
"Commitment") and a survey was prepared by Kirkham Michael, dated March 24, 1997, job
number A970136 (the "Survey"); and
WHEREAS, the redevelopment project was approved on February 10, 1997;
WHEREAS, Seller and Purchaser wish to amend the Contract to (i) include the legal
description as determined by the Commitment and the Survey and (ii) extend the closing date.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Legal Description. The legal description of the Property, as set forth in Exhibit
"A" to the Contract, is hereby deleted in its entirety and replaced with the following:
OMAHA-28262.2 e
! n
The South 62 feet of the West 22 feet of Lot 4, the South 63 feet of the East 44
feet of Lot 4, and the South 63 feet of the West 22 feet of Lot 3, all in Block 106,
ORIGINAL CITY OF OMAHA, as surveyed and lithographed, in Douglas
County, Nebraska; and
The West 22 feet of Lot 2, and the East 22 feet of Lot 3, Block 106, ORIGINAL
CITY OF OMAHA, as surveyed and lithographed, in Douglas County, Nebraska.
2. Closing. The closing of the purchase of the Property shall be on or before Friday,
June 27, 1997. Notwithstanding the foregoing, Seller and Purchaser shall use their best efforts
to close the purchase of the Property on Tuesday, June 17, 1997.
3. Miscellaneous. Except as expressly modified herein, all terms and conditions of
the Contract are hereby ratified and confirmed as set forth in the Contract.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment as of the
day and year first above written.
SELLER:
OMAHA DEVELOPMENT COUNCIL, INC.
By: /0
Name: r ka.ra ,c� • 44 A5r,u,t
Title: tc� {-ti th9
Date: �� .� S i /99 J
PURCHASER:
JAYHAWK L.L.C., a Delaware limited liability
company
By: Pacific Ass• '. - . Capital Corp., a Nebraska
corpora 's
By:
IWO oddle,,�President
Date: 644 f , if
1
OMAHA-28262.2 2
; ,
..
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this day of %AAAt9 ,
1997, by 64 . l%t'7 a , P j of Omaha Development
Council, Inc., a Nebraska nonprofit corporation on behalf of the corporation.
1
Notary Public
My Commission Ex
GENERAL NOTARY-State of Nebraska
C.WILLI JHNS
MyCamm.Ex AM..JuOly31,199ON9
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this 5— day of ,
1997, by Jay B. Noddle, President of Pacific Associates Capital Corp., a Delaware corporation,
Manager of Jayhawk L.L.C., a Delaware limited liability company, on behalf of the corporation
and limited liability company. •
/ 1/Ii)if
or&Notary Public
My Commissio
GENERAL NOTARY-State of Nebraskal
C.WILLIAM JOHNSON
My Comm.Exp.July 31,1999
•
•
OMAHA-28262.2 3
0
s
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE is made and entered into by and
between OMAHA DEVELOPMENT COUNCIL, INC., a Nebraska nonprofit corporation,
hereinafter referred to as "Assignor," and the CITY OF OMAHA, NEBRASKA, hereinafter
referred to as "Assignee." '
1. For good and valuable consideration from Assignee to Assignor, the receipt of
which is hereby acknowledged, Assignor hereby sells, transfers, and assigns to Assignee all right,
title, and interest of the lessor in, to, and under the following lease:
Lease Agreement dated August 13, 1992 between Assignor, as Landlord, and Easy
Parking of America, Inc., a Nebraska corporation, as Tenant, demising the property
legally described as follows:
The South 62 feet of the West 22 feet of Lot 4, the South 63 feet of the East 44
feet of Lot 4, and the South 63 feet of the West 22 feet of Lot 3, all in Block 106,
ORIGINAL CITY OF OMAHA, as surveyed and lithographed, in Douglas
County, Nebraska; and
The West 22 feet of Lot 2, and the East 22 feet of Lot 3, Block 106, ORIGINAL
CITY OF OMAHA, as surveyed and lithographed, in Douglas County, Nebraska.
Such lease will hereinafter be referred to as the "Lease." Assignor represents and warrants to
Assignee that Assignor is the owner of all right, title, and interest of the lessor in, to, and under
the Lease, and has full right and lawful authority to sell, transfer, and assign the Lease to
Assignee. Assignor further represents that a true and complete copy of the Lease is attached
hereto and marked "Exhibit "A," Assignor is not in default in any material respect under the
Lease as of the date hereof, and that Assignor will not be in default in any material respect under
the Lease on the effective date hereof.
2. Assignee hereby accepts such assignment and assumes and agrees to perform all
of the covenants, duties, and obligations of the lessor under the Lease accruing from and after the
effective date of this Assignment. Assignee represents and warrants to Assignor that Assignee
has full power and lawful authority to accept such assignment and assume such duties and
obligations, and that the execution and delivery of this Assignment on behalf of Assignee has been
duly authorized by all necessary company action on the part of Assignee.
3. This Assignment will become effective on u/te 17 , 1997.
4. This Assignment may be executed in one or more counterparts, each of which will
be deemed to be an original, but all of which will be deemed to be one and the same instrument.
OMAHA-31555.1
IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the dates
. set forth beneath their respective signatures.
ASSIGNOR:
OMAHA DEVELOPMENT COUNCIL,INC.,
a Nebras a nonprofit corporation
By:. c(14.4-,%- L - c.G
Name: 34 g.,t3 8, 4/;T ; 4:7
Title: EXECc(riVV p/JeEC7O,�
Date: J u N E 17, 19 97
ASSIGNEE:
CI OF O AHA, NEB'
''111
1 . —ofe City of Omaha
Date: //177-
Attest:
By:
7>trt, ity Clerk
Approved as to orrm:
By: (/
Assis ant C. Attorne
OMAHA-31555.1
•
115502F3 .
• LEASE AGREEMENT
THIS LEASE, made this /3 day off?ryu , 1992, between the OMAHA
DEVELOPMENT COUNCIL, INC. , a Nebraska nprofit corporation (here-
inafter called "Landlord") , and EASY PARKING OF AMERICA, INC. , a
Nebraska corporation (hereinafter called "Tenant") .
WITNESSETH, that the Landlord, in consideration of the
covenants hereinafter set forth, does by these presents lease to
Tenant, the following described property ("leased premises") ,
to-wit:
The South 62 feet of the West 22 feet of Lot 4 , the South '.3L'
63 feet of the East 44 feet of Lot 4, and the South 63
feet of the West 22 feet of Lot 3 , all in Block 106,
Original City of Omaha, as surveyed and lithographed in
Douglas County, Nebraska; and
The West 22 feet of Lot 2, and the East 22 feet of Lot 3 , 5,,S."-
Block 106, Original City of Omaha, as surveyed and -
lithographed, in Douglas County, Nebraska.
1. The leased premises shall be used by Tenant only as a
commercial parking and storage facility for motor vehicles and any
other purpose incidental thereto, including, but not limited to,
the right to erect, at its expense, a sign or signs suitable for
the Tenant' s purposes and to place any personal property (including
trade fixtures) necessary for such purposes on the leased premises.
•
2. The term of this lease shall begin on the first day next
following the completion of Tenant's Site Preparation as provided
in paragraph 20 hereof or October 1, 1992, whichever is earlier and
shall continue thereafter, unless earlier terminated as hereinafter
provided, and end on the last day of the sixtieth (60th) calendar
month wholly included in the term of this lease. Landlord and
Tenant hereby agree to confirm in writing the actual beginning date
of the term of this lease.
3 . Landlord shall have the right to terminate this lease at
any time by giving Tenant at least sixty (60) days prior written
notice thereof and on or prior to the effective date of termination
paying to Tenant the then applicable "Termination Amount" (as
defined in paragraph 18) (any such termination shall not be effec-
tive unless and until Tenant has received the then applicable
Termination Amount) ; provided, however, Landlord may not exercise
such termination right unless Landlord has entered into a bona fide
sale of the leased premises, or any part thereof (in which case the
termination shall become effective on the date of the sale) .
b _ (a) In the event that Tenant is not able for reasons
beyond its control to obtain or continue in effect all governmental
approvals, permits, and licenses necessary to operate or continue
to operate a commercial parking facility for automobiles on the
leased premises; or (b) in the event through governmental zoning or
other ordinances, laws, or regulations the leased premises can not
or can no longer be used for a commercial parking facility for
automobiles; or (c) in the event that Tenant is not able to obtain
or continue to have automobile access between the street(s)
adjacent to the leased premises and the leased premises at least to
the extent that such access was available at the beginning of the
term of this lease (other than for temporary closures of five (5)
days or less for street repairs or emergency situations) ; or (d) in
the event that there is a "Revenue Reduction" (as herein defined)
at the leased premises together with one or more of the following
contemporaneous conditions: •
(1) there is imposed by any governmental authority or agency
any automobile gasoline supply rationing or general
automobile use restrictions affecting private automobiles
operated in the city in which the leased premises are
located; or
(2) fifty percent (50%) or more of the number of tenants
(including their employees) occupying the United States
Government Building located at the intersection of 15th
•
Street and Dodge, Omaha, Nebraska as of the beginning of
the term of this lease vacate the United States Govern-
ment Building; or
(3) - fifty percent (50%) or more of the number of tenants
(including their employees) occupying the Union Pacific
Building located at the intersection of 15th Street and
Dodge, Omaha, Nebraska as of the beginning of the term of
this lease vacate the Union Pacific Building;
then in or upon the occurrence of any one or more of such events,
and while any one or more of such events exists or continues,
Tenant may elect to terminate this lease. If the event allowing
Tenant to terminate this lease under this provision occurs, Tenant
shall make its election to terminate this lease, if at all, by
written notice to Landlord setting forth its election to terminate
and the event authorizing it. If Tenant dayss termination,
r Tenant giveshe
termination shall take effect thirty (30) Ys
notice of its election thereof.
"Revenue Reduction" as used herein shall mean whenever the
• Gross Receipts for any calendar month following the occurrence of
an applicable event is equal to less than eighty percent (80%) of
the average monthly Gross Receipts for the three (3) calendar
months next preceding the occurrence of the applicable event.
2
•
"Gross Receipts" as used herein mean all revenue collected by
Tenant from Tenant' s operations on the leased premises (including
any revenue from subletting for automobile parking or otherwise)
exclusive of any (if any) sales, parking, or other taxes (but not
income taxes imposed on Tenant) or levies that Tenant is or may
become obligated by law to collect from its customers, either
directly or indirectly, that are or may be imposed on or with
respect to gross receipts from parking or storing automobiles, or
that are or may be imposed based on the number of parking spaces on
the leased premises.
5 . Tenant covenants and agrees to pay Landlord a monthly
rental for each calendar month in the lease term in accordance with
the following schedule:
For each calendar month in the period beginning on the
first day next following the completion of Tenant's Site
Preparation as provided in paragraph 20 hereof and ending
on the last day of the twelfth (12th) calendar month
wholly included in the term of this lease, the sum of One
Thousand One Hundred Fifty and No/100 Dollars
($1, 150 . 00) ; and
For each calendar month in the period beginning on the
first day of the thirteenth (13th) calendar month wholly
included in the term of this lease and ending on the last
day of the twenty-fourth (24th) calendar month wholly
included in the term of this lease, the sum of One
Thousand Two Hundred and No/l00 Dollars ($1, 200.00) ; and
For each calendar month in the period beginning on the
first day of the twenty-fifth (25th) calendar month
wholly included in the term of this lease
and
nending
gnon
the last day of the thirty-sixth (36th) calendar
wholly included in the term of this lease, the sum of One
Thousand Two Hundred Twenty-Five and No/100 Dollars
($1,225. 00) ; and
For each calendar month in the period beginning on the
first day of the thirty-seventh (37th) calendar month
wholly included in the term of this lease and ending on
•
the last day of the forty-eighth (48th) calendar month
wholly included in the term of this lease, the sum of One
Fifty Two Hundred F y and No/100 Dollars
($1, 250.00) ; and
For each calendar month in the period beginning on the
first day of the forty-ninth (49th) calendar month wholly
included in the term of this lease and ending on the last
day of the sixtieth (60th) calendar month wholly included
in the term of this lease, the sum of One Thousand Two
Hundred Seventy-Five and No/100 Dollars ($1, 275. 00) .
3
11
Said rental shall be paid monthly in advance on the first day of
each calendar month to which it relates, without notice. It is
agreed that the rental for any calendar month partially within the
term of this lease shall be prorated.
6 . Landlord and Tenant agree and acknowledge that Tenant has
previously deposited with Landlord the sum of One Thousand One
Hundred Fifty Dollars ($1, 150. 00) as security deposit for the full
and faithful performance by the Tenant of all the terms and
conditions upon the Tenant' s part to be performed, which sum will
be returned to the Tenant without interest at the expiration date
of this lease. If Tenant fails to pay any rent or perform any
covenants when due hereunder, Landlord may apply such deposit
toward curing such default; whereupon Tenant shall replenish such
security deposit immediately upon invoice by Landlord.
Tenant will not be entitled to any interest or other yield
upon said deposit at any time, even though Landlord is free to
commingle, invest or otherwise use said deposit, subject to
Landlord' s obligation to return the deposit as herein provided.
7. Tenant agrees that it will not damage the surrounding
•
property, and will not damage or in any way interfere with any
existing improvements on the leased premises.
8 . At the conclusion of the term of this lease, or upon
termination hereof, Tenant shall return the leased premises to the
Landlord in its present condition, subject to . Tenant's Site
Preparation as hereinafter provided, normal wear and tear excepted.
•
9 . Tenant agrees that it will protect and save and keep
Landlord harmless and indemnify against and from any penalty or
damage charges imposed for any violation of any laws or ordinances,
whether occasioned by the neglect of Tenant or its representatives,
will at all times protect, indemnify and save and keep harmless the.
Landlord against and from any and all loss, costs, damage or
• expense arising out of or from any accident or other occurrence on
or about the leased premises, causing injury to any person or
property, whomsoever or whatsoever and will protect, indemnify and
save and keep harmless the Landlord against and from any and all
claims and against and from any. and all loss, costs, damage or
expense arising out of any failure of Tenant or its representa-
tives, agents or employees in any respect to comply .with and
perform all of the requirements and provisions -hereof.
10. If Tenant makes default in the payment of any rent or
additional rent amount due Landlord and remains in default with
respect thereto for five (5) days after receipt of notice in
writing pointing out such default; of if Tenant makes default in
the performance of any of Tenant's other obligations hereunder and
remains in default with respect thereto for thirty (30) days after
receipt of notice in writing pointing out such default, unless such
4
•
default cannot be reasonably cured in such thirty (30) days in
which case provided that Tenant has promptly commenced to cure so
long thereafter as Tenant is diligently attempting to cure such
default; or if Tenant be declared bankrupt or insolvent, or if a
receiver, trustee or liquidator be appointed for Tenant, or a
substantial part of its property; or if Tenant attempts to transfer
this lease for the benefit of creditors; or if Tenant vacates the
premises during the lease term; or if Tenant shall make a general
assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts as they become due, or shall file a
petition in bankruptcy or insolvency or have a petition in
bankruptcy or insolvency filed against it; or shall file a petition
seeking reorganization, arrangement, composition, adjustment,
liquidation or similar relief; or if the leasehold interest of
Tenant shall be taken on execution or other process of law, then in
any of said cases, Landlord may at Landlord's option (i) declare
this lease terminated immediately or at any time thereafter while
such default or contingency continues without any right by Tenant
to reinstate by performance and may thereupon without further
notice enter upon the leased premises and take possession thereof,
or (ii) Landlord may at Landlord' s election re-enter the premises
and re-let them as agent of Tenant and receive the rent therefor, .
applying same first upon such expenses as Landlord may be put to in
re-entering, re-letting, operating and maintaining the leased
premises and then to the payment of rent or any other sum accruing .
under the terms of this lease, and Tenant shall remain liable for
any deficiency.
No waiver by Landlord of any breach of any of the covenants .to
be performed by Tenant shall be construed as a waiver of any other
breach of any of the covenants of this lease and any such waiver
must be in writing to be effective. Any and all remedies available
to Landlord hereunder, and at law and in equity, shall be
cumulative and concurrent. Neither the termination of this lease,
nor the taking or recovering possession of the leased premises
shall be deprive Landlord of any remedies or actions, actions
against Tenant for rent or damages for the breach of any covenant
or condition contained herein, nor shall the bringing of any action
for rent or damages, nor the resort to any other remedy from
recovery of rent or damages be construed as a waiver or release of
the right to obtain possession.
11. Tenant agrees not to assign or in any manner transfer
this lease or any estate or interest therein without the prior
written consent of Landlord, and not sublet the leased premises or
any part or parts thereof or allow anyone to come in, with,
through or under it without the like consent; provided, however,
that this shall not be construed as prohibiting or restricting
Tenant from entering into parking agreements with its customers for
period of one month or less for part or all of the leased premises
without Landlord' s consent.
5
12 _ During the term of the lease Tenant shall, at its own
expense, provide and maintain in full force and effect an insurance
policy or policies protecting Landlord and Tenant and their
officers and employees against any loss, liability or expense from
personal injury, death, property damage or otherwise arising or
occurring upon or in connection with the- leased premises or by
reason of the Tenant' s operations upon or occupancy of the leased
premises. Landlord shall be included as an additional insured
under such policy or policies. Such insurance shall be written by
responsible insurance companies reasonably satisfactory to the
Landlord and shall be in an amount not less than $100,000 for
injuries to any one person, not less than $500, 000 for injuries to
more than one person arising out of one accident or occurrence, and
not less than $50, 000 for damage to property. Certificates of
insurance showing compliance with the foregoing requirements shall
be furnished by Tenant to Landlord. Such certificate shall state
that polices will not be cancelled nor altered without ten (10)
days' prior written notice to Landlord.
13 . Landlord agrees to pay before they become delinquent all
ad valorem real estate taxes and special assessments lawfully
levied -or assessed against the leased premises, including, without
limitation, any possessory interest created hereby;- however, Land-
lord may at its expense contest and dispute the same, and in such
case the disputed item need not be paid until finally adjudged to
•
be valid.
14 . Tenant shall pay or cause to be paid throughout the term
of this lease all taxes and assessments whatsoever levied or
assessed against Tenant's personal property situated on the leased
premises.
15. Tenant agrees to procure any and all permits or licenses
necessary for its operation of an automobile parking facility at
the leased premises. If Tenant is unable to obtain any such permit
or license preventing Tenant from operating, Tenant may thereupon
terminate this lease upon written notice of termination to Landlord
without liability hereunder, termination being effective on the
date such notice is given.
•
16: Tenant shall, at its expense, repair all damage caused by
Tenant' s employees, agents or contractors and perform custodial
services -to the property to keep the same in a clean, neat and safe
condition. •
17 . It is agreed and understood that any holding over by
Tenant of the leased premises after the expiration of this lease
shall operate and be construed as tenancy from month to month at
the same rental rate as provided in paragraph 5 for the last -month
in the lease term.
6
r
18 . Landlord covenants, warrants and represents that it has
full right and power to execute this lease and to grant the estate
demised herein and, so long as Tenant is not in default under any
Tenant. shall peaceably
helddand quietly enjoyyiof the terms and conditions
leased premises, and shall have the
h
right of ing
ressd egress spect and from the leased
leased premisesrfrometime to
reasonably neces y
time at any reasonable time.
19. Any notices or communications required by this lease
shall be given or served by mailing the same, properly addressed
and stamped, by United States registered
ttenenoticea rtifie ma addressesil, uof
receipt requested. Unless changed by l
the respective parties shall be as follows:
As to Landlord: Omaha Development Council, Inc. .
Attn: Michael C. Wiese
1301 Harney Street
Omaha, Nebraska 68102
As to Tenant: Easy Parking of America, Inc.
202 N. 19th Street
Omaha, Nebraska 68102
20. Subject to Tenant obtaining all requisite governmental
permits to construct a commercial parking lot for automobiles on
the leased premises, Tenant will repair andfor replace the
s
the s adjoining (all eased suchwork isehereinafter referred repair and utoace
as
the leased premisesgood and
"Site Preparation") . All such work shall be done in a l
workmanlike manner and in conformity
twinhsall
llllaws
eatnd o herelegal
requirements. All such Site Prep letion of the Site
and the sole responsibility of Tenant. Upon comp
Preparation, Tenant shall furnish Landlord with an itemized
statement, certified by an officer of Tenant, on which is stated
the total cost incurred by Tenant for the Site
Tenant reparati ill prerei(herein
referred to as Site Preparation Cost") .
Landlord with appropriate should exercisesLa verifying' right of such a termination
the event Landlord sTenant as
as provided in paragraph 3, Landlord covenants topay the lesser
provided in paragraph 3 , a Termination Amount equal of (i) the product of the total Site Preparation Cost (as snshown
ho_invoices) ,
Tenant' s aforesaid statement and verified by appropriate
multiplied by a fraction the numerator of which shall be the number
fective date of such termination and the
e months between thise elease and the denominator of which shall be
and of the term of
sixty (60) or (ii) $100 .00 multiplied by the number of months
between the effective date of termination and the end of the term
of this lease.
21. This lease contains the entire nderstandings and
agreement of the parties, supersedes all prior
7
• `1 I•
agreements and cannot be changed orally. Upon becoming effective,
this lease shall supersede and cancel that one certain lease dated
February 1, 1991 by and between Landlord and Tenant covering the
leased premises .
22 . The provisions of this Lease shall be binding upon,
ensure to the benefit of and apply to the respective heirs,
executors, administrators, successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto execute this Lease as
of the day and year first above stated.
LANDLORD
Omaha Development Council, Inc.
W' ness• a Nebraska nonprofit corporation
�`P By /
TENANT
EASY PARKING OF AMERICA, INC.
Wi ss:
By
Its
8
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4c-25A - _
• CITY OF OMAHA
1111k):
LEGISLATIVE CHAMBER
Omaha,Nebr 19
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS,the Downtown Northeast Redevelopment Plan was approved by the City
Council as the Redevelopment Plan for the redevelopment area bounded by 17th Street on the west,
Interstate 480 on the north and east and Douglas Street on the south on December 17, 1996; and,
WHEREAS,the City Council approved an Agreement between the City of Omaha and
Jayhawk, L.L.C. on February 4, 1997 that approves a certain Real Estate Purchase Agreement
between Jayhawk,L.L.C. and Omaha Development Council,Inc. dated December 6, 1996 for the
purchase of property at 1511 Dodge Street and at 109 South 16th Street for$250,000.00; and,
WHEREAS, the attached Assignment and Assumption of Real Estate Purchase
Agreement transfers and assigns to the City.of Omaha all right and interest of Jayhawk,L.L.C.to the
City of Omaha; and,
WHEREAS, the attached First Amendment to Real Estate Purchase Agreement
amends the Real Estate Purchase Agreement to conform the legal description of the property to the
survey.
NOW THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, the Mayor is hereby authorized to execute,and the City Clerk to attest,the
attached Assignment and Assumption of Real Estate Purchase Agreement and the attached First
Amendment to Real Estate Purchase Agreement with Jayhawk,L.L.C.,a Delaware Limited Liability
Corporation, 1905 Harney Street,Omaha,Nebraska 68102 in the amount of$250,000.00; including
any other documents necessary or appropriate to purchase property at 1511 Dodge Street and at 109
South 16th Street. Funding shall be payable from Lease-Purchase Bonds Fund No. 356,Organization
No. 2025.
APPRO D A TO FORM:
% K
Aar CITY ORNEY DATE
P:\PLN2\5101.SAP
By v '-
ouncilmember
Adopted JUN 1 1997
.... . . .... .. .. . .
sty Clerk
Approve
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