RES 2019-0514 - Addition to Gold Mountain Restaurant of outdoor area E-MAILED TO NLCC
4.04
w�_ •-,. 3 STATE OF NEBRASKA
s<•:Nu,- 1*; Pete Ricketts • NEBRASKA LIQUOR CONTROL COMMISSION
%'43 Governor Hobert B.Rupe
Executive Director
n„art�rr t„�e� 301_Centennial Mall South 5th Floor
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)
April 16, 2019
Omaha City Clerk P.M, IS em2.22
1819 Farnam Street LC-1 city Clerk Omaha F;_-RI_Gas
Omaha, Ne 68183
Dear Clerk:
Please present the following application for Addition to your board and send us the results of that
action.
ADDITION: OUTDOOR AREA
•
• LICENSE #: -119817
LICENSEE: GOLD MOUNTAIN LLC
TRADE NAME: GOLD MOUNTAIN RESTAURANT
ADDRESS: 6750 MERCY ROAD, SUITE 102B
CITY/COUNTY: OMAHA/DOUGLAS
CONTACT NUMBER: 402-312-6958
CONTACT PERSON: JENNIFER FUNG
EMAIL:GM@NEWGOLDMOUNTAIN.COM
•
REQUEST: ADDITION OF OUTDOOR AREA 14 X 34
MAKING THE NEW DESCRIPTION READ: ONE STORY BLDG APPROX 64 X 69
INCLUDING OUTDOOR AREA APPROX 14 X 34
APPROVED DISAPPROVED
12.--1-4 it-02014 ., -)1,4AA A-
Tracy.Burmeister Licensing Divisiont.4°11/11 ,`�tp, C,Le'tic Sii7u�€ `1TG
•
APPLICATION FOR ADDITION
TO LIQUOR LICENSE Office Use
RECEIVED
NEBRASKA LIQUOR CONTROL COMMISSION
301 CENTENNIAL MALL SOUTH
PO BOX 95046
LINCOLN,NE 68509-5046 A P R 1 1 2019
PHONE:(402)471-2571
FAX:(402)471-2814 �y
• Website: www.Icc.nebraska.gov NEBRASKA LIQUOR
CONTROL COMMISSION
Application:
• Must include processing fee of$45.00 check made payable to the Nebraska Liquor Control
Commission or you may pay online at www.ne.gov/go/NLCCpavport
• Must include a copy of the lease or deed showing ownership of area to be added. This is still
required even if it's the same as on file with original application
• 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.
NO BLUE PRINTS
• May include approval from the local governing body; no addition shall be approved unless
endorsed by the local governing body
• Check with your local governing body for any additional requirements that may be necessary in
‘. making this request for addition
LIQUOR LICENSE# 119817 CLASS TYPE
LICENSEE NAME GOId Mountain LLC
TRADENAMEGold Mountain Restaurant
PREMISE ADDRESS 6750 Mercy Road, Suite 102B
CITY Omaha ZIP CODE 68106 COUNTY Douglas
CONTACT PERSON Jennifer Fung
PHONE NUMBER OF CONTACT PERSON 402-312-6958
EMAIL ADDRESS OF CONTACT PERSON gm@newgoldmountain.com
416-IF ()) 1900004532
L�lFORM 11
REV JULY 2015 •
7)/0 ) IT •`yam Page 1 of 2
1. What is being added?
Explain the type of addition that is being requested,i.e.beer garden,adding to building
add patio
2. Will this addition cause the location to be within 150 feet of a church,school,hospital,home for
the aged or indigent persons or for veterans,their wives,and children; or within 300 feet of a college or
university campus?
n YES Q NO
If yes,provide name and,address of such institution and where it is located in relation to the premises
(Neb.Rev.Stat.53-177)(1).
Must include supplemental Form 134 found at this link: http://www.lcc.ne.gov/formsdiv.html
If proposed location is within 300 feet of a campus,the Commission may waive this restriction
upon written approval from the governing body of the college or university.(Rev.Stat.53-177)(1).
Must include supplemental Form 135 found at this link: http://www.lcc.ne.gov/formsdiv.html
3. Include a sketch of the area to be added showing:
✓ existing licensed area with length&width in feet
✓ area to be added with length &width in feet
✓ direction north
4. If adding an outdoor area explain:
✓ type of fencing .
✓ height of fence
✓ length &width of outdoor area in feet ,
12.07 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.
Rule Chapter 2-012.07
I acknowledge under oath that the premises as added to comply in all respects with the requirements of the act.
Neb Rev Stat§53-129
i
r\c, J./( 6 ...
ignature Licens or Officer /
State f Nebraska /
County of )O`1 OS145AS The foregoing instrument was acknowledged before me this
PrV 11 IQ 1 /M by \th�nlcU F(
Y I • wreck
Date name of person acknowledged(indKidual(s)signing document)
Affix Seal
+n;Ms a 1MeauM,
Jary Public signa re COMM.fa oicA Ka i
f\QUi-CI-04 IQ misiDiseliral Mgi
FORM 110
REV JULY 2015
Page 2 of 2
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RECEIV MC)
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NEBRASKA L
CONTROL COMMISSION
OFFICE BUILDING RETAIL LEASE
ZONE 5 OFFICE,LLC,
a Nebraska limited liability company
Landlord
• AND
Gold Mountain,LLC,a Nebraska limited liability company
• Tenant
•
Article I Defined Terms and Basic Terms 1
Article II Premises 5
Section 2.1 Premises 5
•
Section 2.2 Rentable Area 5
Section 2.3 Common Areas 5
Section 2.4 Declaration of Covenants,Conditions and Restrictions for AV 6
Section 2.5 Aksarben Village Master Owners Association 6
Section 2.6 Zone 5 Declaration 6
Section 2.7 Zone 5 Owners Association 7
Article III Construction 7
Section 3.1 Landlord's Work 7
Section 3.2 Tenant's Work 7
Section 3.3 Construction of Additional Buildings 7
Article IV Tenn 8
Section 4.1 Initial Term 8
Section 4.2 Option--To Extend the Term of the Lease 8
Section 4.3 Lease Year Defined 8
Article V Base Rent 9
Section 5.1 Base Rent 9
Section 5.2 Payment 9
Section 5.3 Parital Months 9
Section 5.4 Percentage Rent 9
Section 5.5 Definition of Gross Sales 10
Section 5.6 Tenant's Records 11
Section 5.7 Tenant's Reports 11
Section 5.8 Audit 11
Article VI Direct Expenses and Taxes 12
Section 6.1 Definition of Direct Expenses 12
Section 6.2 Taxes 14
Section 6.3 Additional Taxes 15
Article VII Additional Rent 17
Section 7.1 Additional Rent 15
Section 7.2 Reconciliation Report 15
Section 7.3 Review 16
Section 7.4 Survival 16
Section 7.5 Gross Up 16
Article VIII Security Deposit 17
Article DC Use 17
Section 9.1 General 17
Section 9.2 No Nuisance or Waste • 18
Section 9.3 No Illegal Use i8
Section 9.4 Alterations to Common Areas 18
Section 9.5 Hazardous Substances 18
Article X Services and Utilities 19
Section 10.1 General 19
Section 10.2 Supplementary Services 20
Section 10.3 Interruption of Services ' 20
Article XI Alterations 20
Section 11.1 Use of Premises 20
Section 11.2 Operation of Business 21
Section 11.3 Alterations 21
Section 11.4 Tenant's Property 21
Article XII Repairs 22
Section 12.1 Condition of Premises 23
Section 12.2 Tenant's Repairs 23
Section 12.3 Landlord's Repairs 23
Article XIII Assignment and Subletting 23
Section 13.1 Landlord's Rights 24
Section 13.2 Landlord's Costs 25
Section 13.3 No Release of Tenant 26
Article XIV Indemnification 26 .
Section 14.1 Waiver of Liability 26
Section 14.2 Indemnity 27
Article XV Destruction or Damage 27
Article XVI Waiver of Subrogation 29
Article XVII Rules and Regulations 29
Article XVIII Entry by Landlord 30
Section 18.1 Entry to the Premises 30
Section 18.2 Alterations to Building 30
Article XIX Tenant's Default 31
Section 19.1 Landlord's Remedies 31
Section 19.2 Rent Computation 33
Section 19.3 Interest 33
Section 19.4 Late Charges 33
Section 19.5 Lease Continues Until Termination 34
Section 19.6 Remedies Cumulative 34
Section 19.7 Waiver of Redemption 34
Section 19.8 Landlord's Right to Cure Defaults 34
Article XX Landlord's Default 34
Article XXI Attorneys'Fees 35
Article XXII Holding Over 35
Article XXIII Waiver 35
Article XXIV Eminent Domain 35
Section 24.1 Taking of Premises 35
Section 24.2 Condemnation Award 36
Section 24.3 Temporary Taking 36
Article XXV Sale by Landlord 37
Article XXVI Subordination 37
Section 26.1 Subordination of this Lease 37
Section 26.2 Subordination of Mortgage 38
Article XXVII No Merger 38
Article XXVIII Surrender of Premises 38
Article XXIX Estoppel Certificate 39
Article XXX No Light,Air or View Easement 39
Article XXXI Notices 39
Article XXXII Relocation of Premises 40
Article XXXIII Successors 40
Article XXXIV Insurance 40
Section 34.1 Tenant's Insurance 40
Section 34.2 Landlord's Insurance 41
Section 34.3 Insurance Criteria 41
Section 34.4 Evidence of Coverage 42
Article XXXV Signage 42
Article XXXVI Parking,Skywalk 42
Section 36.1 Garage Parking 42
Section 36.2 Skywalk 43
Article XXXVII Promotion 43
Article XXXVII Miscellaneous 43
Section 38.1 Captions 43
Section 38.2 Time of Essence 43
Section 38.3 Number and Genders;Joint and Several Liability 43
Section 38.4 Governing Law 43
Section 38.5 Cumulative Remedies 44
Section 38.6 Entire Agreement 44
Section 38.7 Invalidity 44
Section 38.8 Authority 44
Section 38.9 Offer 44
Section 38.10 No Representations or Warranties 44
Section 38.11 Brokers 44
Section 38.12 Amendments
44
Section 38.13 Proration 45
Section 38.14 Waiver of Jury Trial 45
Section 38.15 Memorandum of Lease 45
Section 38.16 Liens 45
Section 38.17 Counterparts 45
Section 38.18 Confidentiality 45
Section 38.19 Other Tenants 45
Section 38.20 Force Majeure 46
EXHIBITS
The following Exhibits are attached to this Lease and are incorporated herein by this reference:
Exhibit"A-1"—Floor Plan
Exhibit"A-2"—Site Plan
Exhibit"B"—Legal Description of the Building
Exhibit"C"—Rules and Regulations
Exhibit"D"—Landlord's Work and Tenant's Work
Exhibit"E"—Sign Criteria
Exhibit"F"- Guaranty
Exhibit"G"— Lease Rider
Exhibit"H"— Tenant's Design Concepts
OFFICE BUILDING RETAIL LEASE
THIS OFFICE BUILDING RETAIL LEASE("Lease")is made and entered into by and between
ZONE 5 OFFICE,LLC,a Nebraska limited liability company("Landlord"),and Gold
Mountain,LLC,a Nebraska limited liability company("Tenant"),as of this 1st day
of May ,2016("Effective Date").
Landlord and Tenant specifically agree as follows:
Article I
Defined Terms and Basic Terms
Capitalized terms shall have the following definitions and shall apply for words and phrases as
used in this Lease unless more particularly defined in other sections of this Lease:
(a) Landlord: ZONE 5 OFFICE,LLC
11550 I STREET
Suite 200
Omaha,Nebraska 68137
(b) Landlord's Agent: MAGNUM REALTY,INC.
11550 I STREET
Suite 200
Omaha,Nebraska 68137
(c) Tenant: Gold Mountain,LLC
(d) Building: Pacific Life Office Building
6750 Mercy Road
Omaha,Nebraska 68106
(e) Legal Description of Building: See Exhibit"B"
(f) Premises: Suite 102B as shown on the floor plan attached as
Exhibit"A-1"("Suite 102B"); which is that portion
of the Building located upon the First Floor
containing approximately 2,656.0 useable square
feet.
(g) Rentable Area of Premises: Approximately 2,870.9 square feet
Useable Area of Premises Approximately 2,656.0 square feet
1
•
•
•
(b) Rentable Area of Building: Approximately 123,005.3 square`feet.
(i) Estimated Premises Delivery Date: July 1. 2016; which is the date Landlord estimates
delivering possession of the Premises to Tenant.
(j) Actual Delivery Date: The date that Landlord actually delivers possession
of the Premises to Tenant ready for commencement
of Tenant's Work, shall be referred to herein as the
"Actual Delivery Date"; Notwithstanding the
• foregoing, it is specifically understood and agreed
by Landlord and Tenant that some of Landlord's
Work must be completed in conjunction with the
completion of Tenant's Work. As such,, the
installation of some of Landlord's Work, including
but not limited to, installation. of demising walls,
structural concrete floor, electrical panel and meter,
and the I-IVAC system will occur after the Actual
Delivery Date and shall be completed in
conjunction with Tenant's Work. Completion of
such Landlord Work after the delivery of the
• Premises to Tenant will not affect the Actual
Delivery Date and the Actual Delivery Date shall be
the date Landlord notifies Tenant that Tenant may
commence construction of Tenant's Work.
(k) Term Commencement Date: The date upon which is the earlier of: (i) the date
Tenant.opens_..for-..busine.ss.in...the.._Leased...Premises;--....__..__...:-.._. -_.
or(ii)the date which is one hundred fifty(150)days
after the Actual Delivery Date. •
(1) Initial Term: Sixty(60) Full Calendar Months: Commencing
upon the Rent Commencement Date (defined in
•
subparagraph (s) below) and ending on the last
day of the sixtieth(60th)consecutive full calendar
month following the Rent Commencement Date.
(m) Options: Tenant shall have two (2) additional extension
terms of five (5) years under the same terms,
conditions and covenants set forth for the Initial
Term herein. Each extension term is referred to
herein as an "Extension Term" to differentiate it
• from the Initial Term; however, the Initial Term
•
I
together with every exercised Extension Term is
referred to herein as the"Term".
(n) Expiration Date: The last day of the sixtieth (60th) consecutive full
calendar month following the Rent Commencement
Date, unless sooner terminated as provided in this
Lease or extended pursuant to the Options as
provided in this Lease.
(o) Annual Base Rent: The Annual Base Rent for the Initial Term shall be
Years 1-3 $66,400.00($25.00 psf)
Years 4-5 $70,384.00($26.50 psf)
(p) Monthly Base Rent: The Monthly Base Rent for the Initial Tenn shall be
the Annual Base Rent divided by twelve(12).
(q) Tenant's Proportionate Share: Expressed as a percentage, which percentage is
calculated by dividing the Rentable Area of the
Premises (numerator) by the Rentable Area of the
Building (denominator) and expressing the fraction
as a percentage. Initially the Tenant's Proportionate
Share shall be 2.334%. If the Rentable Area of the
Premises or the Rentable Area of the Buildings
c hangerduring th erm "" -an s 'ropo Iona e
Share shall be adjusted accordingly.
(r) Landlord's Broker: Magnum Realty,Inc.
(s) Rent Commencement Date: The date which is seventy-five
y ve (75) days after the
Term Commencement Date
(t) Security Deposit: $5,533.33
(u) Permitted Uses: Tenant shall be permitted to use the Premises for
the operation of a Chinese restaurant and for no
other use or purpose.
(v) Landlord Work: The Landlord's Work to be performed by Landlord,
at its expense,as defined on Exhibit"D"
3
(w) Tenant Improvement Allowance: See Lease Rider
(x) Tenant Signage Allowance: Not Applicable
(y) Tenant's Work: The Tenant's Work to be performed by Tenant, at
its expense,as defined on Exhibit"D"
(z) Tenant's Address for Notices
Prior to Commencement: Gold Mountain.LLC
Jennifer Fung-Ugarte
15505 Ruggles Street, Ste 105
Omaha NE 68116
After Commencement: Premises
(aa) Landlord's Address for Notices: Magnum Realty,Inc.,
Attn: Teressa Barnes
11550 I Street,Suite 200
Omaha,Nebraska 68137
(bb) CC&Rs: That certain (i) Declaration of Covenants,
Conditions and Restrictions for Aksarben Village,
dated as of August 2, 2007 and filed on August 15,
200 umber 2007093504 m he
Office of the Register of Deeds of Douglas County,
Nebraska, as amended, (ii) Amended and Restated
Declaration of Easements, Covenants, Conditions
and Restrictions for AV Zone 5,dated as of July
18, 2014 and filed on July 17, 2014 as Instrument
Number 2014055117 in the Office of the Register
of Deeds of Douglas County,Nebraska.
(cc) Laws: Statutes, laws, ordinances, rules, regulations, and
orders of all federal, state, county and municipal
governmental bodies or their subdivisions
governmental authorities, CC&Rs, and Rules and
Regulations.
(dd) Tenant's Property: Tenant's personal property located on the Premises,
including inventory and merchandise of every kind,
4
•
nature, and description, furnishings, equipment, •
trade fixtures, computers, phones, records and all
other personal property hereafter placed or kept on
the Premises by Tenant.
(ee) City: City of Omaha,Nebraska
(if) Prime Rate: Means the consensus prime rate (or its equivalent)
of interest announced publicly in New York, New
York from time to time by the Wall Street Journal
(or if the Wall Street Journal ceases to exist or
publish a consensus prime rate, then by the largest
bank headquartered in the State of New York), but
in no event in excess of the maximum rate of
• interest permitted by law.
(gg) Guarantor: Xiao Quan Zheng
•
Certain other defined terms are defined when they first appear within the body of this Lease.
Article II
Premises
Section 21—Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises, for the Term and subject to the agreements, conditions and
provisions contained in this Lease to each and all of which Landlord and Tenant hereby mutually
agree. Subject to anything expressly set forth in this Lease, Tenant shall have unlimited access
to the Building and Premises on a 24 hour basis,7 days a week and for all 52 weeks in the year.
Section 2.2 Rentable Area. The Rentable Area of the Premises and the Rentable Area
of the Building shall mean the amounts as set forth in Article I. The actual Rentable Area of the
• Building is subject to change if the Building is expanded or reduced. During the Term and after •
alterations or changes to the Building, Landlord shall have the right to redetermine the Rentable
Area of the Building and/or the Tenant's Proportionate Share upon providing Tenant with
commercially reasonable information detailing the calculation of such redetermination(s). In
addition, Landlord reserves to itself the right to remeasure the Premises at any time prior to the
end of the first full Lease Year and shall provide Tenant with commercially reasonable
information detailing such remeasurement. In the event the determination of the total square
footage of the Rentable Area of the Premises is not the same as the approximate total square
footage of the Rentable Area of the Premises set forth in Article I, then all terms and provisions
5
•
of this Lease that are dependent upon the size of the Premises,including,but not limited to,Base
Rent, Percentage Rent Breakpoint (to the extent there is a change in Base Rent), Tenant's
Proportionate Share, and any allowance payable pursuant to the terms of this Lease, will
automatically be adjusted without the need for any further documentation. Each party agrees to
execute an amendment to this Lease(in form and content mutually y and reasonably satisfactory to
Landlord and Tenant) reflecting such changes within thirty (30) days after the other party
delivers to it a written lease amendment reflecting such changes,with a request for execution.
Section 2.3 Common Areas. "Common Areas" shall mean any entrances, lobbies,
plazas, stairways, sidewalk area,terraces, and other similar areas of general access and the areas
on individual floors in the Building devoted to corridors, fire vestibules, elevators, foyers,
lobbies, utility,communication, electric and telephone closets, rest rooms, mechanical rooms,
janitor's rooms, and other similar facilities and shall also mean those areas of the Building
devoted to mechanical and service rooms and levels servicing the Building and basement,
mezzanine and penthouse service facilities.
Section 2.4 Declaration of Covenants. Conditions and Restrictions for Aksarben
Village. The Premises and the Building are subject to the Declaration of Covenants, Conditions
and Restrictions for Aksarben Village, Douglas County, Nebraska dated July 26, 2007 and
recorded in the Office of the Register of Deeds of Douglas County,Nebraska as Instrument No.
2007-093504 on August 15, 2007 (the "Declaration"). Landlord and Tenant agree that the
Declaration govern the operation of the Building and the parties agree to abide by all of the
terms, conditions and restrictions set forth in the Declaration, the Zoning Agreement defined in
the Declaration and the Master Plan as also defined in the Declaration. In the event of a conflict
between any provisionin.Xhe Declaration,_Z.oning-Agreement or-Master-flan-and-any-provision
in this Lease, the provision in the Declaration, Zoning Agreement or Master Plan shall govern
the rights of the parties, except that if this Lease imposes any restrictions or obligations on
Tenant or Landlord which are more stringent than the corresponding provision of the
Declaration, Zoning Agreement or Master Plan, the more stringent provision shall govern, and,
conversely, if the Declaration, Zoning Agreement or Master Plan imposes any restrictions or
obligations on Tenant or Landlord which are more stringent that the corresponding provision of
this Lease, the more stringent provision shall govern, Tenant further agrees not to violate the
terms and conditions of the Declaration or any of the foregoing documents and agrees that a
default of any of the foregoing shall constitute a default under this Lease.
Section 2.5 Aksarben Village Master Owners Association. The Aksarben Village
Master Owners Association was formed pursuant to the Bylaws of Aksarben Village Master
Owners Association, Inc. dated August 28, 2008 (the "Master Owners Association Bylaws").
The Master Owners Association Bylaws govern Landlord's contribution to the maintenance and
operation of the common areas of the Village Area (as such term is defined in the Declaration)
and the parties agree to abide by all of the terms,conditions and restrictions set forth therein,and
6
to pay any assessments or installments thereof levied against the Building in accordance
therewith which are due and payable during the Term of this Lease(or a pro rata portion thereof
for the year during which this Lease begins or terminates,if any).
Section 2.6 Zone 5 Declaration. The operation of the Building will be governed by the
Amended and Restated Declaration of Covenants, Conditions and Restrictions For Av Zone 5
("Zone S Declaration")dated July 18. 2014 and recorded in the Office of the Register of Deeds
of Douglas County,Nebraska as Instrument No.2014055117 on July 18.2014. Tenant agrees to
abide by all of the terms,conditions and restrictions set forth therein,and to pay any assessments
or installments thereof levied against the Premises in accordance therewith which are due and
payable during the Term of this Lease(or a pro rata portion thereof for the year during which this
Lease begins or terminates,if any).
Section 2.7 Zone 5 Owner's Association. The Zone 5 Owner's Association was
formed pursuant to the Bylaws of Zone 5 Owners Association,Inc. dated September 21, 2009
(the "Zone 5 Owner's Association Bylaws"). The Zone 5 Owner's Association Bylaws govern
Tenant's contribution to the maintenance and operation of the common areas of the Building and
ne 5 and Tenant agrees to abide by all of the terms, conditions and restrictions set forth therein,
and to pay any assessments or installments thereof levied against the Building in accordance
therewith which are due and payable during the Term of this Lease (or a pro rata portion thereof
for the year during which this Lease begins or terminates,if any).
Article III
Construction
Section 3.1 Landlord's Wo
rk. Landlord shall construct the shell of the Building d g
wherein the Premises are to be located and perform the work described in Exhibit "D" attached
hereto ("Landlord's Work") at Landlord's cost and expense. Landlord shall obtain all required
governmental approvals necessary with respect to Landlord's Work; provided, however, if
Landlord is unable to obtain any such certificates or approvals with respect to Landlord's Work
as a result of the fact that Tenant's Work (as defined in Section 3.2)has not yet been completed,
Tenant shall thereafter be obligated to obtain the same, at its sole cost and expense, as soon as
possible. Acceptance of possession of the 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 any items identified by Tenant on a punch list to be submitted to Landlord within
thirty (30) days after such delivery, which Landlord shall thereafter complete in a good and
workmanlike manner within thirty(30)days from Landlord's receipt of such punch list.
Section 3.2 Tenant's Work and Landlord's Contribution. All work other than
Landlord's Work to be carried out and completed in the Premises shall be performed by Tenant
at its own cost and expense ("Tenant's Work"). Tenant shall construct Tenant's Work in
7
•
accordance with(i) the provisions set forth in Exhibit D, (ii)Tenant's Design Concepts attached
to this Lease as Exhibit H ("Tenant's Design Concepts"), (iii)Tenant's plans and specifications
which have been approved by Landlord prior to commencement of construction ("Drawings"),
and (iv) in a good and workmanlike manner, including all other fixturing, furnishing and
.equipping of the Premises and any other improvements required to be made to the Premises
beyond the scope of Landlord's Work necessary for Tenant to open for business to the public.
Tenant shall not begin Tenant's Work prior to delivery of possession of the Premises to Tenant
without Landlord's prior approval.
Section 3.3 Construction of Additional Buildings. Landlord reserves the right from
time to time in its reasonable discretion to construct other buildings,parking areas,structures and
related improvements which may but need not adjoin the Building in which the Premises are
located, which improvements, parking areas and structures shall comply with the terms of the
Declaration, Zoning Agreement, Master Plan and Zone 5 Declaration, and to modify the
Common Areas(as defined in Section 2.3)as they may exist from time to time.
Article IV
Term
Section 4.1 Initial Term. Upon the Actual Delivery Date and prior to the occurrence
of the Term Commencement Date, the terms and provisions hereof shall be fully binding upon
Landlord and Tenant except Tenant shall have no obligation to pay Base Rent or Additional Rent
until the Rent Commencement Date. Notwithstanding any other provision of this Lease all of
Tenant's b-tigations undei this Lease,other than he payment of Base Rent and Direct Expenses,
shall commence on the date on which Landlord delivers possession of the Premises to Tenant.
Section 4.2 Option to Extend the Term of the Lease. Subject to the conditions set
forth below,Tenant shall have two(2)options to renew this Lease for additional terms of five(5)
years (the "Extension Terms"), such Extension Terms commencing on the date following the
Expiration Date,or the date following the expiration of the First Extension Term,whichever may
apply. Said Extension Terms shall be on the same terms,conditions,provisions and covenants as.
are set forth herein, except the Monthly Base Rent during such Extension Terms shall be as
follows:
First Extension Term:
Year 1 $5,982.64 •
Year 2 $6,102.29
Year 3 $6,224.34 •
Year 4 $6,348.83
Year 5 $6,475.80
8
Second Extension Term:
Year 1 $6,605.32
Year 2 $6,737.42
Year 3 $6,872.17
Year 4 $7,009.62
Year 5 $7,1 49.81
Tenant's Options shall be conditioned upon and subject to each of the following: (i)Tenant shall
notify Landlord in writing of Tenant's exercise of its Option no later than six(6)months prior to
the Expiration Date or First Extension Term, whichever may apply; and(ii)at the time Landlord
receives Tenant's notice to exercise such Option and at the scheduled commencement of such
Extended Term no Event of Default (as defined in Article XIX) shall exist under this Lease
beyond any applicable cure or notice period.
Section 4.3 Lease Year Defined. The term "Lease Year" as used herein shall mean a.
period of twelve (12) consecutive full calendar months, plus any partial first month. The first
Lease Year shall begin on the Term Commencement Date, if the Term Commencement Date
shall occur on the first day of a calendar month; if not,then the first Lease Year shall commence •
upon the first day of the calendar month next following the Term Commencement Date. Each
succeeding Lease Year shall commence upon the anniversary date of the first Lease Year.
Article V
Base Rent
Section 5.1 Base Rent. Tenant shall pay to Landlord for the use of the Premises (in
addition to the Additional Rent as described in Article VI below) an Annual Base Rent in an
amount specified in Article I,payable without notice or demand in equal monthly installments in
advance, beginning on the Rent Commencement Date and on the first day of each calendar
month thereafter during the Term in the amount of the Monthly Base Rent specified in Article I
(or Section 4.2 with respect to the Extension Terms).
Section 5.2 Payment. All payments required to be made by Tenant under this Lease
shall be in lawful money of the United States of America and shall be made without any set off,
deduction or counterclaim whatsoever and shall be made payable to and delivered to Landlord at •
the office of Landlord or such other place as Landlord may designate. Unless otherwise stated,
all sums of money or charges of any kind or nature payable by Tenant to Landlord pursuant to
this Lease or the exhibits attached hereto (exclusive of Base Rent, but inclusive of Additional
Rent) are deemed to be additional rent and, unless otherwise stated herein, are due thirty (30)
days after the rendering of an invoice therefor,and failure to pay such sums of money or charges
shall carry the same consequences as Tenant's failure to pay Base Rent. No payment by Tenant
or receipt by Landlord of a lesser amount than the correct rent shall be deemed to be other than a
9
payment on account, and no endorsement or statement on any check or other communication
accompanying a check for payment of any amounts payable hereunder shall be deemed an
accord and satisfaction, and Landlord may accept such check as partial payment without
prejudice to Landlord's right to recover the balance of any sums owed by Tenant hereunder or to
pursue against Tenant any additional remedies available under this Lease or provided at law or in
equity.
Section 5.3 Partial Months. If the Rent Commencement Date is a day other than the
first day of a calendar month or if the Term expires or is terminated on a day other than the last
day of a calendar month, then the Monthly Base Rent for such fractional months shall be
prorated on the basis of the number of days elapsed in the subject month.
Section 5.4 Percentage Rent. In addition to the Base Rent provided for in Section 5.1,
Tenant also shall pay to Landlord for each Lease Year during the Term, as Additional Rent, a
sum equal to three percent (3_0%) of those Gross Sales (as defined below) that are in excess of
the natural breakpoint calculated by dividing the Annual Base Rent for the then current Lease
Year or any fractional period thereof by three percent (3.0%) (the "Natural Breakpoint"). Such
Additional Rent is referred to in this Lease as the "Percentage Rent". For example purposes
only, during the first Lease Year the Natural Breakpoint would be calculated as $66,400.00 T
0.03 = $2,213,333.33, such that the Percentage Rent for the first Lease Year would be a sum
equal to three percent(3 0%) of those Gross Sales that are in excess of the Natural Breakpoint--
$2,213,333.33. Except as provided in this Section as to estimated Percentage Rent,Tenant shall
pay the Percentage Rent within sixty(60)days after the last day of each Lease Year with respect
to Gross Sales during such Lease Year. Each Lease Year shall be considered as an independent
--accounting-period-for--the-purpose-of-computing-the•-amount of-P-ereentage-Rentsexcept
that Gross Sales for any period during the Lease Term which is prior to the first day of the first
Lease Year shall be included in Gross Sales for the first Lease Year. In the event of the
expiration or termination of this Lease at such time that twelve (12) full months have not elapsed
between the last day of the immediately preceding Lease Year and the expiration or termination
date of this Lease, then such period of less than twelve (12) months shall constitute the final
Lease Year of this Lease; and the Percentage Rent for such final Lease Year shall be based upon
Gross Sales for such final Lease Year. After the first Lease Year for which Percentage Rent is
payable, Tenant agrees to pay estimated Percentage Rent equal to seventy-five percent(75%)of
the total Percentage Rent payable for the previous Lease Year. Such estimated Percentage Rent
shall be paid quarter annually. The first payment of estimated Percentage Rent shall be paid on
or before the thirtieth(30th)day after the last day of the first three calendar months of the Lease
Year in which estimated Percentage Rent is payable, and another payment of estimated
Percentage Rent shall be paid on or before the thirtieth (30th) day after the end of each
successive three (3)month calendar period thereafter. If, at the end of any Lease Year, the total
amount of estimated Percentage Rent actually paid by Tenant for such Lease Year exceeds the
total amount of Percentage Rent required to be paid by Tenant for such Lease Year, then Tenant
to
•
shall receive a credit equivalent to such excess which shall be applied against the next payments
of rent due under this Lease. Landlord shall refund to Tenant any excess estimated Percentage
Rent actually paid by Tenant for the final Lease Year as soon as the amount of such excess
estimated Percentage Rent for such final Lease Year is ascertained. If, at the end of any Lease
Year,the total amount of estimated Percentage Rent actually paid by Tenant for such Lease Year
is less than the total amount of Percentage Rent required to be paid by Tenant for such Lease
Year, then Tenant shall pay to Landlord the balance of the Percentage Rent due for such Lease
Year within sixty(60)days after the end of such Lease Year.
Section 5.5 Definition of Gross Sales. The phrase "Gross Sales", as used in this
Lease, shall mean the aggregate dollar amount of (a) sales price of all goods, wares, and
merchandise sold and the charges for all services performed by Tenant or anyone else in, at, or
from the Premises, whether sold or performed for cash, for check, on credit, or other-wise,
without reserve or deduction for any inability or failure to collect therefore, including but not
limited to such sales and services (i) where the orders therefore originate at and are accepted by
Tenant in the Premises, but delivery or performance thereof is made from or at any other place,
(ii) pursuant to mail, telegraph, telephone, electronic, video, computer or the Internet, or other
similar orders received or billed at or from the Premises, (iii) by means of mechanical or other
vending devices, or(iv) as a result of transactions originating from any other source and which
Tenant in the normal and customary course of its operations would credit or attribute to its
business conducted in, at, or from the Premises; and (b) all moneys or other things of value
received by Tenant from its business conducted in, at, or from the Premises which are neither
included in nor excluded from Gross Sales by the other provisions of this definition. "Gross
Sales" shall not include (i) the exchange of merchandise between stores of Tenant where such
—exchanges-are-made-solely-for-the-convenient operatic business, (ii)returns to
vendors or manufacturers, (iii)sales of fixtures and equipment after use thereof in the conduct of
Tenant's business,(iv)cash or credit refunds made upon transactions included within Gross Sales
not exceeding the selling price of merchandise returned by the purchaser and accepted by
Tenant, (v)the amount of any city,county,state, or federal sales,luxury,excise or similar tax on
such sales, which tax either is added to the selling price or absorbed therein and also is paid
directly to the taxing authority by Tenant; provided, however, that no franchise or capital stock
tax and no income or similar tax based upon income, profits, or gross sales as such shall be
deducted from Gross Sales in any event whatsoever, (vi) gift certificates or like vouchers until
such time as the same shall be converted into a sale by redemption thereof. Each charge or sale
upon installments or credit shall be treated as a sale for the full price in the month during which
such charge or sale occurs regardless of the time when Tenant is to receive payment therefore. •
Section 5.6 Tenant's Records. Tenant shall prepare and keep, for a period of not less •
than three (3) years following the end of each Lease Year, books and records pertaining to its
business and Gross Sales in the Premises, including but not limited to records of inventories,
purchases, and receipts of merchandise, bank deposit slips and records, and such other records
tt
which normally would be examined or required to be kept by an independent certified public
accountant pursuant to generally accepted auditing standards in performing an audit of Tenant's
Gross Sales.
Section 5.7 Tenant's Reports. Tenant shall submit to Landlord, on or before the 30'h
day after the last day of the first three (3) calendar months of the first Lease Year and thereafter
on or before the 30th day after the end of each successive three (3) calendar month period
thereafter(including the 30th day after the end of the successive three(3)calendar month period
following the end of the Term), a written statement, signed by Tenant and certified by Tenant to
be true and correct,showing the amount of Gross Sales during each month of the preceding three
(3)month calendar period. Tenant also shall submit to Landlord, on or before the sixtieth(60th)
day following the end of each Lease Year (including the last Lease Year), a written statement
signed by Tenant and certified by Tenant to be true and correct,setting forth the amount of Gross
Sales during such preceding Lease Year. The statements referred to in this Section shall be in
such form and contain such details as Landlord reasonably may require. The acceptance by
Landlord of payments of Percentage Rent or reports thereon shall be without prejudice to and in
no way shall constitute a waiver of Landlord's right to examine Tenant's books and records of its
Gross Sales and inventories of merchandise. Tenant shall pay to Landlord, on demand, a late
report charge of fifty dollars($50.00)for each report that is not submitted by Tenant to Landlord
on or before the due date.
Section 5.8 Audit. At any time within three(3)years after the end of any Lease Year,
Landlord shall have the right, at Landlord's expense, upon ten (10) days' notice to Tenant, to
audit Tenant's Gross Sales and all records relating thereto and Tenant shall make all such records
available_for_examination-at_the_Premises._If the results-off any4uch audit show.that—Tenant's
statement of Gross Sales for any Lease Year has been understated by five percent(5%)or more,
then Tenant shall pay Landlord the cost of such audit in addition to any deficiency payment of
Percentage Rent required. If Landlord and Tenant's accountants disagree on the findings of such
audit, an independent accounting firm, which shall be mutually acceptable to both parties, shall
be appointed and the findings of such independent accounting firm shall be binding and
conclusive upon both Landlord and Tenant.
Article VI
Direct Expenses and Taxes
Section 6.1 Definition of Direct Expenses. "Direct Expenses" as used herein shall
include all actual and reasonable costs, charges, expenses and disbursements of every kind,
nature and character incurred in the course of ownership,management,administration,operation,
repair, replacement, insuring, security and maintenance of the Building, the Premises, the
Common Areas, the Parking Garage, the areas, facilities and structures used in connection with
the maintenance and/or operation of, and whether located within or outside of, the foregoing,
12
including(without limitation) all streets,roads,driveways,parking garages,paving and curbing,
buffer areas,parks and detention ponds serving the Building which are maintained or repaired by
Landlord or at Landlord's expense,including,without limitation:
(a) Wages, salaries and other compensation, expenses, benefits, and other
sums payable, as well as any adjustment thereto, for employees, independent contractors
and agents of Landlord.
(b) Costs and payments of service, maintenance, repair, replacement and
inspection for the following: landscaping, lawns, trees, shrubbery, janitorial (but
excluding janitorial services for the 2"d through 5th floors of the Building which janitorial
expenses shall be allocated exclusively to office tenants), windows, window cleaning,
rubbish removal, exterminating, driveways, drives, elevator, escalator, life and safety,
security, plumbing, telecommunication, exterior building maintenance, electrical,
mechanical equipment, including, but not limited to the Building heating and cooling
system maintenance, repair, replacement and inspection, the costs of purchasing or
renting all such additional mechanical installations and equipment, service contacts,
painting, exterior waterproofing and caulking, wall covering, carpeting, bathroom repairs
and modernization, building identification signs (except those relating to a specific
tenant),roof maintenance and repair,equipment,supplies,tools,materials and uniforms.
(c) Premiums and other charges for insurance, including without limitation,
all risk (special form of loss), earthquake, public/general liability, property damage and
workers' compensation insurance, cost of insurance deductibles and charges, and such
other insurance coverage in such amounts as Landlord,in tts sole discretion,shi 1 elect to
maintain.
(d) Costs of electricity, water, gas, steam, chilled water, sewer, stormwater,
communication,internet,data,cable,phone,and other utility services.
(e) Costs incurred pursuant to the CC&R's or any private covenant,
declaration,indenture or easement agreement appurtenant to the Building.
(f) Sales, use and excise taxes on goods and services purchased or furnished
by Landlord.
(g) License,permit,testing and inspection costs and fees.
(h) Reasonable attorneys',accountants'and consultants'fees.
13
(i) Fees for local civic organizations and dues for professional and trade
associations that directly impact the Building, including without limitation, any amount
paid to local civic groups for the betterment of the neighborhood in which the Building is
located.
(j) Fees for management and accounting services and costs incidental thereto,
whether provided by an independent management company, Landlord, or an affiliate of
Landlord.
(k) The costs of any improvements,equipment or devices installed or paid for
by Landlord in order to conform to any Laws or requirements of any governmental or
quasi-governmental authority having jurisdiction or of the Board of Fire Underwriters or
similar insurance body.
(1) The costs of any improvements,equipment or devices installed or paid for
by Landlord and reasonably intended to effect a labor saving, energy saving measure or
to effect other economies in the operation or maintenance of the Building, provided,
however, all such costs which are capital in nature, shall be first amortized on a straight-
line basis over their normal expected useful life as reasonably determined by and then
only the annual amortized installment amount shall be included as a part of the Direct
Expenses for each applicable year.
• Direct Expenses shall not include: (i) expenses for repairs, replacements, and general
maintenance paid by proceeds from insurance,condemnation awards, or by Tenant or other third
parties, including payments under guaranties or warranties, iijalterations attributable solely to
tenants of the Building other than Tenant; (iii)principal and interest payments made by Landlord
on mortgages on the Building; (iv) depreciation and amortization on the Building; (v) leasing
commissions, costs, disbursements and other expenses incurred for leasing, renovating or
improving space for tenants except as a result of a default of Tenant (vi) any franchise, income
excess profit, transfer, inheritance or similar taxes, (vii) costs, including legal fees, incurred
because the Landlord or another tenant violated the terms of any lease,(viii) overhead and profit
paid to subsidiaries or affiliates of Landlord for management or other services on or to the
Premises for supplies or other materials,only to the extent that the costs of the services,supplies
or materials exceed the competitive costs of such services, supplies or materials had they not
been provided by a subsidiary or affiliate of Landlord, (ix) costs incurred to remedy defects in
original construction materials or installations provided by Landlord, (x) any costs, fines,
penalties (including legal fees) incurred because Landlord violated any governmental rule or
authority except to the extent directly caused by Tenant's breach of this Lease, (xi) costs for
which one or more tenants are either paying directly or for which Landlord is to be reimbursed
directly by one or more tenants, (xii)costs of replacement of personal property or equipment for
which depreciation costs are or have been included as Direct Expenses, (xiii)costs and expenses
•
14
of compliance with ADA, environmental, ambient air standards, ground water, soils,
underground tanks, other environmental matters, latent defects or punch list items to the extent
that such condition or environmental hazards are present as of the date of this Lease and were not
caused by Tenant, and (xiv)any expenses that are considered to be capital expenses according to
generally accepted accounting principles. Capital expenses are more specifically defined as (1)
costs incurred in connection with the original construction of the building or with any major
changes to same, including but not limited to, additions or deletions of corridor extensions,
renovations and improvements of the Common Areas beyond the costs caused by normal wear
and tear and upgrades or replacements of major building systems; (2)costs of correcting defects
(including latent defects), including any allowances for same, in the construction of the building
or its related facilities; and (3) costs incurred in renovating or otherwise improving, designing,
redesigning, decorating or redecorating space for tenants or other occupants in the building or
other space leased or held for lease in the building.
Section 6.2 Taxes. "Taxes" as used herein shall include all real estate taxes,
assessments, special assessments and charges (including out-of-pocket costs and expenses
(including without limitation, legal fees and disbursements) of contesting the amount or validity
thereof by appropriate administrative or legal proceedings) levied by the United States of
America, the State of Nebraska, or any political subdivision (collective, the "Taxing
Authority") upon or with respect to the Building or any personal property of Landlord, or
Landlord's interest in the Building or such personal property, including without limitation, all
real property taxes and general and special assessments; charges, fees, levies or assessments for
transit,housing,police,fire or other governmental services or purported benefits to the Building;
service payments in lieu of taxes; and any tax,fee or excise on the act of entering into this Lease
or any other lease of space in the Building, on the use or occupancy of the Building or any part
thereof, or on the rent payable under any lease or in connection with the business of renting
space in the Building, which may now or hereafter be levied or assessed against Landlord by a
Taxing Authority, and any other tax, fee or other excise, however described, that may be levied
or assessed as a substitute for, or as an addition to(in whole or in part)any other property taxes,
whether or not now customary or in the contemplation of the parties on the date of this Lease.
Section 6.3 Additional Taxes. In addition to the Monthly Base Rent, Additional Rent
and other charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord upon
demand for any and all taxes, surcharges, levies, assessments, special assessments, fees and
charges payable by Landlord, whether or not now customary or within the contemplation of the
parties hereto: (a) upon, measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures,trade fixtures and other personal property located in the Premises,
or the cost or value of any leasehold improvements located in the Premises, regardless of
whether title to such improvements shall be in Tenant or Landlord; (b) upon, or measured by,
any rent or other amounts payable hereunder, including, without limitation, any gross income
tax, gross receipts tax or excise tax levied by the City of Omaha, County of Douglas, State of
15
Nebraska, the federal government of the United States or any other governmental body with
respect to the receipt of such rent or other amounts, but only to the extent such tax measured
upon rents payable to Landlord are in substitution of real estate taxes; (c) upon, or with respect
to, the possession, leasing, operation, management, maintenance, alteration, repair, restoration,
use or occupancy by Tenant of the Premises or any portion thereof; or(d) upon this transaction
or any document to which Tenant is a party creating or transferring an interest or an estate in the
Premises.
Article VII
Additional Rent
Section 7.1 Additional Rent. Commencing upon the Rent Commencement Date and •
continuing throughout the Term of the Lease, Tenant shall pay to Landlord (in addition to the
Annual Base Rent, as described in Article IV above), as additional rent, during each calendar
year(or partial calendar year),an amount equal to Tenant's Proportionate Share of(a)the Direct
Expenses incurred and paid by Landlord during such calendar year, and (b) the Taxes incurred
and paid by Landlord during such calendar year (collectively the "Additional Rent"). Prior to
the beginning of each calendar year, Landlord shall estimate the amount of Additional Rent due
for such year, and Tenant shall pay Landlord one-twelfth (I/12th) of such estimate on the first
day of each month during such year with Tenant's payment of the Monthly Base Rent. Such
estimate may be revised by Landlord not more than once per calendar year upon at least thirty
(30)days prior written notice to Tenant.
Section 7.2 Reconciliation Report. Within one hundred twenty (120) days after the
end of each calendar year, Landlord shall deliver to Tenant a reconciliation report setting forth
the actual Direct Expenses and Taxes for such calendar year and a statement in the amount of
Additional Rent that Tenant has paid and is payable for such year(hereafter,the"Reconciliation
Report"). Within thirty (30) days after receipt of such report, Tenant shall pay to Landlord the
amount of Additional. Rent due for such calendar year minus any payments of estimated
Additional Rent made by Tenant for such year. If Tenant's estimated payments of Additional
Rent exceed the amount due Landlord for such calendar year, Landlord shall,provided Tenant is
not then in payment default hereunder beyond any applicable grace and notice periods, apply
such excess as a credit against Tenant's other payment obligations under this Lease or promptly
refund such excess to Tenant if the Term has already expired, in either case without interest to
Tenant. In the event Landlord shall fail to give Tenant an estimate of Additional Rent prior to.
the beginning of the Term Commencement Date or any calendar year, Tenant shall continue to
pay Additional Rent at the rate for the previous calendar year until Landlord delivers such
estimate and failure to provide the estimate shall not be deemed a waiver of Landlord's rights
hereunder. Notwithstanding the foregoing, Landlord's obligation to credit Tenant's account
pursuant to this Section 7.2 shall be conditional upon Tenant having first paid all of its monthly
16
installments toward Tenant's Proportionate Share of the estimated Direct Expenses and Taxes
pursuant to this Section. With respect to any partial calendar year, amounts payable hereunder
on the basis of the calendar year shall be prorated based on the number of calendar months in
such calendar year. If Landlord receives a refund or credit of Direct Expenses within the year
after the calendar year in which such expense was charged to Direct Expense and paid by
Tenant, Landlord shall pay (or credit as part of the annual reconciliation) to Tenant the amount
of such refund or credit to the extent Tenant directly was charged and in fact paid for such Direct
Expenses during such prior calendar year.
Section 7.3 Review. Provided that Tenant is not in default under this Lease and
provided further that Tenant strictly complies with the provisions of this paragraph,Tenant shall
have the right, at its cost,upon reasonable prior written notice to Landlord, to inspect, audit and
make copies of Landlord's accounting records relative to Direct Expenses and Taxes during
normal business hours at Landlord's offices, at any time within sixty (60) days following the
furnishing to Tenant of the annual Reconciliation Report of Additional Rent; and, unless Tenant
shall issue an Objection Notice taking written exception to any item in any such statement within
such sixty (60) day period, such statement shall be considered as final and accepted by Tenant.
Within sixty(60)days after the records are made available to Tenant,Tenant shall have the right
to give Landlord written notice(an"Objection Notice")stating in reasonable detail any objection
to Landlord's statement of Direct Expenses and Taxes for that year. If Tenant provides Landlord
with a timely Objection Notice, Landlord and Tenant shall work together in good faith to resolve
any issues 'raised in Tenant's Objection Notice. If the results of any such audit show that the
Direct Expenses and/or Taxes on the Landlord's annual Reconciliation Report of Additional
Rent were overstated by five percent (5%) or more, then Landlord shall pay Tenant the cost of
such-audit-in--addition to reimbursement of ally-amount-shown-by-t en an -"
Landlord disagree on the findings of such audit, an independent accounting firm, which shall be
mutually acceptable to both parties, shall be appointed and the findings of such independent
accounting firm shall be binding and conclusive upon both Tenant and Landlord.
Section 7.4 Survival. In the event of the termination of this Lease prior to any
determination of Additional Rent, Tenant's agreement to pay any such sums and Landlord's
obligation to refund any such sums shall survive the termination of this Lease.
Section 7.5 Gross Up. In the event less than one hundred percent (100%) of the
Rentable Area of the Building is occupied by tenants at all times during any calendar year during
the Term, or Landlord is not supplying services to one hundred percent (100%) of the Rentable
Area of the Building, then those Direct Expenses which are variable for that year (that is, those .
Direct Expenses which change depending upon the occupancy level of the Building [such as
janitorial costs and usage of electricity], as distinguished from those Direct Expenses which do
not change depending upon the occupancy level of the Building [such as landscaping costs and
casualty insurance]), shall be deemed to be increased by an amount reasonably determined by
17
Landlord to reflect the Direct Expenses which would have been expended had one hundred
percent(100%)of the Rentable Area of the Building been occupied by tenants at all times during
such Lease Year and had Landlord been supplying services to one hundred percent(100%)of the
Rentable Area of the Building. Notwithstanding the foregoing, Landlord shall not recover as
Direct Expenses more than 100%of the Direct Expenses actually paid by Landlord.
Article VIII
• Security Deposit
Tenant shall deposit with Landlord as a security deposit under this Lease the amount set
forth in Article 1. Such Security Deposit shall be held by Landlord, without interest, as security
for the faithful performance by Tenant of all the terms of this Lease to be observed and
performed by Tenant. The Security Deposit shall not be mortgaged, assigned, transferred, or
encumbered by Tenant without the written consent of Landlord; and any such act on the part of
Tenant shall be without force and effect and shall not be binding upon Landlord. If any rent or
other sum payable by Tenant to Landlord is overdue and unpaid, or if Landlord makes any
payments on behalf of Tenant, or if Tenant fails to perform any of the terms of this Lease, then
Landlord may, at its option and without prejudice to any other remedy which Landlord may have
on account thereof, appropriate and apply such deposit or so much thereof as may be necessary
toward the payment of the rent or other sum due Landlord by reason of such breach on the part
of Tenant or toward the performance of any other overdue obligation of Tenant under this Lease; •
and Tenant forthwith upon demand by Landlord shall restore such Security Deposit to its original
amount. If Tenant fails to conform or comply with terms or conditions of this Lease resulting in
. . three.(3)defaults within.a._twely.e..(12)_month:.period,...as.provided in this_Lease,_Tenant's..Security....... ._.___._.._.__ ...__._._.
Deposit requirement may be increased to 150% of the original Security Deposit as an additional
default cure provision. If Tenant complies with all of the terms of this Lease,then such Security
Deposit (or the portion thereof not applied by Landlord to cure a default by Tenant) shall be
returned to Tenant within thirty (30) days of the end_of the Lease Term. In the event .of
bankruptcy or other creditor proceedings against Tenant, such Security Deposit shall be deemed
to be applied first to the payment of.rent and other sums due Landlord for periods prior to the
commencement of such proceedings. Landlord may deliver such Security Deposit to the
purchaser of Landlord's interest in the Premises in the event that such interest is sold, and
thereupon Landlord shall be discharged from any further liability with respect to such Security
Deposit.
Article IX
Use
18
Section 9.1 General. The Premises shall be used only for the Permitted Uses specified
in Article I and for no other use or purpose.
Section 9.2 No Nuisance or Waste. Tenant shall not do or permit anything to be done
in,or about the Premises which will in any way obstruct or interfere with the rights of Landlord
and other tenants or occupants or invitees of the Building or injure or annoy them or use or allow
the Premises to be used for any improper, immoral or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on, or about the Building or the Premises. Tenant
shall not commit or suffer the commission of any waste in, on, or about the Building or the
Premises.
Section 9.3 No Illegal Use. Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict with any applicable Laws now in
force or which may hereafter be enacted or promulgated or which conflicts with any certificate
of occupancy for the Building or is prohibited by the Rules and Regulations attached hereto as
Exhibit"C"("Rules and Regulations"). The current Rules and Regulations are attached hereto
may not be modified by Landlord in a manner that is discriminatory on Tenant or that materially
adversely impacts Tenant's use of the Premises or increases Tenant's expenses. In the event of
any conflict between said Rules and Regulations and other provisions of this Lease, the other
terms and provisions of this Lease shall control. Tenant shall not do or permit anything to be
done in or about the Premises or bring or keep anything therein which will in any way increase
the rate of applicable insurance upon the Building or any of its contents, and Tenant shall, at its
sole cost and expense, promptly comply with all applicable Laws now in force or which may
hereafter be in force, and with the requirements of any Board of Fire Underwriters or other
-similar-bodes na or-hereafler-constituted-relating-to-or-af€-cting-Tenant's-use-oi-eoeupaney-of
the Premises.
Section 9.4 Alterations to Common Areas. If changes or alterations are made by
Landlord to any portion of the Building, including, without limitation, the Common Areas, but
excluding the Premises,Landlord shall not thereby be subject to any liability nor shall Tenant be
entitled to any compensation or any reduction or abatement of rent and such changes or
alterations shall not be deemed to be a constructive or actual eviction or a breach of Landlord's
covenant of quiet enjoyment. In the event of any such changes or alterations,Landlord agrees to
use reasonable good faith efforts to provide uninterrupted access to the Premises and Common
Areas and to avoid unreasonable interference with Tenant's use of the Premises.
Section 9.5 Hazardous Substances. In the event Tenant knows, or has reasonable
cause to believe, that any release by Tenant of a hazardous substance has come to be located on,
within or beneath the Premises or the Building,Tenant shall give written notice of such condition
to Landlord, and Tenant, at its expense, shall comply with all Laws with respect to any such
hazardous substances released by Tenant. Landlord and Tenant represent to each other that to
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each parry's knowledge it is not aware of any hazardous substances used, released, generated,
stored, treated,drained or disposed of from,on,or about the Premises or the Building. Landlord
and Tenant hereby agree not to use, permit,hold,release or dispose of any hazardous substances
on, under or at the Premises or Building (except for those substances that are typically used in
the operation of a general office, restaurant or retail use (like ordinary cleaning supplies) and
except in compliance with all Laws) and each shall be responsible for removing any such
hazardous substances it respectively uses or releases upon the Premises and/or Building, except
to the extent caused by or through the other party and other Building tenants. Notwithstanding
anything herein to the contrary, Tenant shall not have any liability to Landlord hereunder
resulting from any conditions existing, or event occurring,or any hazardous substances existing
or generated, at, in, on or under the Building or prior to the Term Commencement Date of the
Lease,nor shall Tenant have any liability for any condition existing or event occurring due to the
act of'omission of anyone other than Tenant or its agents, employees or contractors. For
purposes of this Lease"hazardous substances"shall mean and include any hazardous,explosive,
asbestos containing,petroleum, toxic or highly combustible materials, substances or wastes now
or hereinafter defined or designated or regulated from time to time by any Laws applicable to the
Building(and the land it is situated upon)or any governmental authority having jurisdiction over
the Building(and the land it is situated upon).
Article X
Services and Utilities
Section 10.1 General. During the Term, Landlord shall operate or cause the operation
in good working condition of the heating and cooling system serving the Building. Tenant at all
times agrees to cooperate fully with Landlord and to abide by the reasonable regulations and
requirements which Landlord may prescribe for the proper functioning and protection of the
heating and cooling systems of the Building. Landlord,its contractors and agents throughout the
Term, shall have free access to any and all mechanical installations of Landlord or Tenant,
including, but not limited to, heat pumps, air-cooling, variable air volume fan boxes, fans,
ventilating and machine rooms and electrical, communication and telephone closets; and Tenant
agrees there shall be no construction of partitions or other obstructions which may interfere with
Landlord's free access thereto, or interfere with the moving of Landlord's equipment to and from
the enclosures containing such installations. Tenant further agrees that neither Tenant, nor its
agents, employees or contractors shall at any time enter the said enclosures or tamper with,
adjust or touch or otherwise in any manner affect such mechanical installations.
Section 10.2 Supplementary Services. If desired, Tenant may request supplementary
services in frequency,scope, quality or quantities requested by Tenant. If available to Landlord,
Landlord shall use reasonable efforts to attempt to furnish the same to Tenant, and Tenant shall
pay Landlord, at the reasonable charges established by Landlord from time to time, for all
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supplementary services requested by Tenant and provided by Landlord or its agents, which
charges shall be payable by Tenant within thirty (30) days after receipt of Landlord's invoice.
Such supplementary services may include, without limitation, maintenance, repair, janitorial,
cleaning and other services in addition to those otherwise provided by Landlord.
Section 10.3 Interruption of Services. Landlord shall not be liable for any failure to
provide access to the Premises,assure beneficial use of the Premises or to furnish any services or
utilities when such failure is caused by natural occurrences,riots,civil disturbances,insurrection,
war, court order, public enemy, accidents, breakage, repairs, strikes, lockouts, other labor
disputes, the making of repairs, alterations or improvements to the Premises or the Building
required by the terms of this Lease,the inability to obtain an adequate supply of fuel,gas, steam,
chilled water, water, electricity, labor or other supplies resulting from any condition beyond
Landlord's reasonable control, and Tenant shall not be entitled to any damages resulting from
such failure,nor shall such failure relieve Tenant of the obligation to pay all sums due hereunder
or constitute or be construed as a constructive or other eviction of Tenant. If any governmental
entity promulgates or revises any Laws or building, fire or other code, or imposes mandatory or
voluntary controls or guidelines on Landlord or the Building or any part thereof, relating to the
use or conservation of energy, water, gas, steam, chilled water, light or electricity or the
provision of any other utility or service provided with respect to this Lease, or if Landlord is
required or elects to make alterations to the Building in order to comply with such mandatory or
voluntary controls or guidelines, Landlord may, in its sole discretion, comply with such
mandatory or voluntary controls or guidelines, or make such alterations to the Building. Neither
such compliance nor the making of such alterations shall in any event entitle Tenant to any
damages, relieve Tenant of the obligation to pay any of the sums due hereunder, or constitute or
be construed-as a-construetive-orother eviction of T-nant.
Article XI
Alterations
Section 11.1 Use of Premises. The Premises are leased to Tenant for the Permitted
Uses. The Tenant shall not operate the Premises for any other purpose or use without the prior
written consent of the Landlord. The Tenant agrees not to commit or permit any act to be
performed on the Premises or any omission to occur which will be in violation of any Laws or
which will increase the rate of insurance on the Premises which will be in violation of any
insurance policy carried on the Premises by Landlord. The Tenant shall not disturb other
occupants of the Building by making any undue noise,vibration, odor or otherwise and shall not
do or permit to be done in or about the Premises anything which will be dangerous to life or
limb.
Section 11.2 Operation of Business. Tenant shall (a) conduct its business in the entire
Premises; (b) remain open for business during customary business days and hours for similar
21 •
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businesses in the city or trade area where the Building is located and also shall remain open on
such days and for such hours as Landlord generally may require of businesses in the Building;
(c) adequately staff its store with sufficient employees to handle the maximum amount of
business and carry a stock of merchandise of such size, character, and quality as may be
necessary to accomplish such maximum amount of business; (d) keep its display windows and
signs, if any, well lighted during all business hours; (e) 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; (f) warehouse, store, or stock only such goods, wares, and
merchandise in the Premises as Tenant intends to offer for sale at retail in the Premises; (g)
neither solicit business nor distribute advertising matter in the Common Areas without the
consent of Landlord; (h) not place any excessive weight upon the floor of the Premises; (i) 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 without the
consent of Landlord; (j) 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
Building and shall install a ventilation system in the Premises which is sufficient to ensure that
odors do not permeate through the walls or ceiling of the Premises into adjacent bays of the
Building,and(k)not operate or permit gambling or wagering of any kind within the Premises or
the Building. 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 Building.
Section 11.3 Alterations. Tenant shall not make or suffer to be made any future •
alterations, additions or improvements (collectively "Alterations") in, on or to the Premises or
-- -arty-part-thereof-without-the prior-written consenttf`Landlord,-which consent will not be
unreasonably withheld; provided, however, Landlord may withhold its consent in its reasonable
discretion if any proposed Alterations may adversely affect the structure or safety of the
Building, the electrical, plumbing, heating and cooling systems of the Building, mechanical or
life safety systems of the Building. If Landlord, in its reasonable opinion, determines that a third
party engineer or consultant should review Tenant's plans for such Alterations, then in such
event Landlord reserves the right, upon prior written notice to Tenant, to charge Tenant, and
Tenant shall pay to Landlord upon demand, a Review Fee in the amount charged by such third
party consultant or engineer to review the plans of the Alterations. If Landlord consents to the
making of any Alterations, the same shall be made by Tenant at Tenant's sole cost and expense
or, if Landlord and Tenant so agree, by Landlord at Tenant's sole cost and expense. Upon
expiration of the Term, the Tenant's Work and any subsequent Alterations shall be the property
of the Landlord and shall be deemed to be part of the Premises, subject to Tenant's rights under
Section 11.4 below. Notwithstanding the foregoing, Landlord shall have the right to require at
the time of approval that Tenant Work or any subsequent Alterations be removed from the
Premises prior to expiration of the Lease. Notwithstanding the provisions of this Section to the
contrary,Tenant shall not be required to obtain Landlord's consent with respect to non-structural
22
alterations costing$20,000 or less provided that such alterations are cosmetic, do not involve the
movement of walls or the reconfiguration of heating, ventilating and air conditioning systems,
the relocation or installation of new electrical, plumbing or millwork and would not require the
issuance of a permit by any authority of competent jurisdiction.
Section 11.4 Tenant's Property. All Tenant's Property is and shall continue to be the
sole property and responsibility of the Tenant, unless the same shall have been installed to
replace fixtures or equipment previously installed. Tenant may, during the Term of this Lease
remove any Tenant's Property as it may so desire, provided Tenant shall repair all.damages
resulting from such removal.
Article XII
Repairs
Section 12.1 Condition of Premises. No representations, except as contained herein,
have been made to Tenant respecting the condition of the Premises or the Building, and the
acceptance of possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that the Premises will be in a tenantable and good condition, subject to any Landlord
Work punch list items for incomplete or unfinished improvements and subject to latent defects in
the original construction of the Building and Landlord's Work. Notwithstanding the foregoing,
Landlord hereby represents and warrants that the Landlord's Work and the Building, including
the roof and building systems, shall be in compliance with all federal, state and local codes,
including but not limited to ADA. Tenant hereby represents and warrants that the interior of the
Premises and all of Tenant's Work shall be in compliance with all federal, state and local codes,
including but nofl mited10 ADA.
Section 12.2 Tenant's Repairs. Except for those portions to be maintained by Landlord
as provided in Section 12.3 below, and subject to Article XIII, Tenant, at its expense, shall take
good care of the Premises and shall make all repairs and maintenance as and when necessary in
order to preserve all interior portions of the Premises (including interior demising walls, plate
glass windows and doors/frames comprising a part thereof)in good working order and condition,
subject to normal wear and tear and damages due to casualty/condemnation. Tenant shall be
responsible for and shall pay all costs associated with regularly scheduled preventative
maintenance, repair and replacement of all heating and cooling systems designated to directly
service the Premises, and for the regular maintenance of grease line piping connected to
Landlord's common grease line. All other costs and expenses associated with the scheduled
maintenance, repair and replacement of the heating and cooling systems designated to service the
Building and Common Areas, shall be the responsibility of Landlord, subject to reimbursement
as a Direct Expense in accordance with Article VI. In addition,Tenant shall reimburse Landlord,
within thirty (30) days after demand, for the cost of any and all structural or nonstructural
repairs, replacements or maintenance necessitated or occasioned by the acts, omissions or
23
negligence of Tenant or any person claiming through or under Tenant, or any of its servants,
employees, contractors, or agents, subject to Article XIV. Landlord shall not be liable for, and
there shall be no abatement of rent with respect to any injury to or interference with Tenant's
business arising from any maintenance, alteration, repair, replacement or improvement in or to
any portion of the Premises, the Common Areas or the Building or in or to the fixtures,
appurtenances or equipment therein that is required hereby, except to the extent such work is
necessary due to Landlord's negligence or the negligence of its servants,employees, contractors,
or agents. All damages or injury done to the Premises by Tenant or any of its servants,
employees, contractors, or agents, which Tenant is liable hereunder for repairing shall be
repaired or replaced with material of equal or better quality than the then existing installation of
Building Standard materials and Tenant shall, at the termination of this Lease, surrender the
Premises to Landlord in a good condition,reasonable wear and tear and damage due to casualty
excepted. Notwithstanding anything to the contrary contained in this Section 12.2, Tenant shall
not be liable for any such maintenance and repairs the need for which is caused, in part or in
whole,by the act,neglect,fault or omission of any duty by the Landlord,its servants,employees,
contractors, or agents; in which case Landlord shall pay to Tenant the actual cost of such
maintenance and repairs attributable to such act,neglect, fault or omission.
Section 12.3 Landlord's Repairs. Subject to Landlord's right to be reimbursed pursuant
to Article VI, Landlord covenants and agrees to maintain in good order, condition, replacement
and repair the foundation, roof, exterior walls/windows and any other structural components of
the Building (including the Skywalk) and Premises, the conduits providing utility services for
gas, electricity and water to the Premises,the main sewer and utility lines servicing the Building
and Premises, the Building's electrical, plumbing, heating and cooling systems of the Building
(excluding-any-heating and-cooling-system designated to directly service-the Premises and
Tenant responsibilities described under Section 12.2)and fire protection/life safety systems, and
parking areas and Common Areas of the Building. Notwithstanding anything to the contrary
contained in this Section 12.3, Landlord shall not be liable for any such maintenance and repairs
the need for which is caused, in part or in whole, by the act, neglect, fault or omission of any
duty by the Tenant, its servants, employees, contractors, or agents; in which case Tenant shall
pay to Landlord the actual cost of such maintenance and repairs attributable to such act, neglect,
fault or omission.
Article XIII
Assignment and Subletting
Section 13.1 Landlord's Rights.
(a) Except in the case of a Permitted Transfer (defined below), Tenant shall
not assign, transfer, mortgage, pledge, hypothecate, or encumber this Lease or any
interest therein, nor sublet the whole or any part of the Premises (collectively
24
"Assignment")without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Without in any way limiting Landlord's
right to refuse to give such consent for any other reason or reasons,Landlord reserves the
right to refuse to give such consent if, in Landlord's reasonable business judgment, the
proposed assignee's or subtenant's use of the Premises would mean that Hazardous
Materials in unreasonable quantities would be present on the Premises. In the event
Landlord does not consent to an Assignment by Tenant, Landlord shall provide Tenant
with a reasonably detailed written explanation as to the reasons for withholding such
consent. If Landlord 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 unless otherwise
specifically agreed to by Landlord in writing.
(b) Notwithstanding anything contained herein to the contrary, Tenant shall
have the right to assign the Lease in its entirety or to sublease all or a portion of the
Premises without the consent of Landlord to: (i) any entity resulting from a merger or
consolidation with Tenant; (ii) any entity succeeding to a significant portion of the
Tenant's business stock, assets or offices of Tenant in the geographic area where the
Premises are located; (iii) any parent, subsidiary or affiliate of Tenant having direct or
indirect common ownership or control with Tenant; or (iv) any subtenant whose primary
use is the sale of coffee provided that said subtenant shall not sublease more than 200
square feet of the Premises from the Tenant (each a "Permitted Transfer"). Permitted
Transfers also include (i) Tenant's going from a publicly held corporation to a privately
held corporation; (b) any public offering of Tenant's stock; or (c) any change in
ownership of stock of Tenant. At the time of any assignment of this Lease which is
approved by Landlord, the assignee shall assume all of the obligations of Tenant under
this Lease pursuant to a written assumption agreement in form and substance acceptable
to Landlord. Such assignment of the Lease shall not relieve Tenant of its obligations
respecting this Lease unless otherwise specifically agreed to by Landlord in writing. Any
assignment, transfer,conveyance,pledge or mortgage in violation of this Section shall be
voidable at the sole option of Landlord. Any consent to an assignment given by Landlord
hereunder shall not be deemed a consent to any subsequent assignment.
(c) In determining whether to grant or withhold its consent to such proposed
Transfer, Landlord may consider any reasonable factor "Reasonable Factor". Without
limiting the conditions that may be construed as a Reasonable Factor, it is deemed
reasonable that Tenant demonstrate to Landlord's reasonable satisfaction each of the
following: (a) the proposed transferee has sufficient financial worth to fully and timely
discharge all of the then remaining obligations of Tenant under this Lease, (b) the
proposed transferee is of sound business reputation, (c) the use of the Premises by the
25
proposed transferee will be the Permitted Use, and(d)such proposed Transfer would not
breach any covenant of Landlord respecting radius or location, use or exclusivity in any
other lease, fmancing agreement or other agreement relating to Zone 5, Tenant shall
supply such information reasonably requested by Landlord to determine if the
Reasonable Factors are met.
(d) Payment or performance of this Lease by any person or entity claiming an interest
in this.Lease or the Premises by, through or under Tenant without Landlord's consent in
writing shall not constitute a Transfer or create any interest in this Lease or the Premises.
Section 13.2 Landlord's Costs. Should Landlord consent to a Transfer,Tenant shall
pay to Landlord on demand $500.00 to cover Landlord's reasonable costs, including attorneys'
fees,incurred in connection with processing and documenting such Transfer.
Section 13.3 No Release of Tenant. Notwithstanding any transfer under this Article,
Tenant and Guarantor (if any) shall at all times remain directly and primarily responsible and
liable for the payment of the Base Rent and Additional Rent herein specified and for compliance
with all other obligations under this Lease. Upon the occurrence of a default, if the Premises or
any part thereof are then sublet, Landlord, in addition to any other remedies provided herein or
by Law, may collect directly from any subtenants all rents due and becoming due to Tenant
under such sublease and apply such rent against any sums due to Landlord from Tenant
hereunder. No such collection directly from an assignee or subtenant shall be construed to
constitute a novation or a release of Tenant from the further performance of Tenant's obligations
hereunder. The acceptance by Landlord of any payment due hereunder from any other person
shall not be deemed to be a waiver by Landlord of any provision of this Lease or a consent to any
Transfer.__Any violation-of-this-Lease-by-any-assignee-or-subtenant-shall-bc-deemed-to-be-a
violation of this Lease by Tenant.
Article XIV
Indemnification
Section 14.1 Waiver of Liability. Neither Landlord nor any of the Landlord Parties(as
hereinafter defined) nor any mortgagee of any Mortgage (collectively the "Indemnitees") shall
be liable or responsible in any way for, and Tenant hereby waives all claims against the
Indemnitees with respect to or arising out of any death or any injury of any nature whatsoever
that may be suffered or sustained by Tenant or any employee, licensee, invitee, guest, agent or
customer of Tenant or any other person upon or within the Premises,or for any loss or damage to
any property outside or within the Premises belonging to Tenant or its employees, agents,
customers, licensees, invitees, guests or any other person, except to the extent caused by the
gross negligence or willful misconduct of the Indemnitees, their managers, members, officers,
employees, servants, contractors or agents. Without limiting the generality of the foregoing,
none of the Indemnitees shall be liable for any damage or damages of any nature whatsoever to
26
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persons or property caused by explosion, fire, theft or breakage, by sprinkler, drainage or
plumbing systems, by failure for any cause to supply adequate drainage, by the interruption of
any utility or service, by steam, chilled water, gas, water, rain or other substances leaking,
issuing or flowing into any part of the Premises, or by natural occurrence, acts of the public
enemy, riot, strike, insurrection, war, court order, requisition or order of governmental body or
authority, or for any damage or inconvenience which may arise through repair, maintenance or
alteration of any part of the Building, or by anything done or omitted to be done by any tenant,
occupant or person in the Building, except to the extent caused by the gross negligence or willful
misconduct of the Indemnitees, their managers, members, officers, employees, servants,
contractors or agents. Neither Landlord's Agent nor any partners, managers or members
comprising Landlord and Landlord's Agent,nor any partners,managers,members,shareholders,
directors, officers or employees of Landlord or Landlord's Agent (collectively, the "Landlord
Parties")shall be liable for the performance of Landlord's obligations under this Lease. Tenant
shall look solely to Landlord to enforce Landlord's obligations hereunder and shall not seek any
damages against any of the Landlord Parties. The liability of Landlord for Landlord's
obligations under this Lease shall not exceed and shall be limited to Landlord's interest in the
Building (including all rent/profits, sale proceeds, insurance proceeds and casualty proceeds
applicable thereto) and Tenant shall not look to the property or assets of any of the Landlord
Parties in seeking either to enforce Landlord's obligations under this Lease or to satisfy a
judgment for Landlord's failure to perform such obligations. In the event of any transfer of title
to the Building by Landlord, Landlord shall be relieved of all liability relative to Landlord's
obligations to be performed from and after the date of such transfer, provided, that any funds in
the hands of Landlord in which Tenant has an interest shall be delivered to the transferee and
receipt shall be acknowledged by such transferee.
Section 14.2 Indemnity of Landlord. Tenant shall hold the Indemnitees harmless and
defend the Indemnitees 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 Indemnitees, their
employees or agents; and (b) occurring in, on, or about any part of the Building 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 gross negligence or willful misconduct of Tenant, its agents,
servants, employees, invitees or licensees. 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 14.3 Indemnity of Tenant. Landlord shall hold the Tenant and Tenant's
partners, managers, members, shareholders, directors, officers and employees (collectively, the
"Tenant Parties") harmless and defend the Tenant and the Tenant Parties from and against any
27
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 Building or the areas adjacent thereto other
than 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 Tenant, their
employees or agents; and (b) occurring in, on, or about any part of the Premises, when such
damage, injury, illness or death shall be caused in whole or in part by the gross negligence or
willful misconduct of Landlord, its agents, servants, employees, invitees or licensees. The
provisions of this Section 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 Tenant and
the Tenant Parties shall include their respective agents and employees.
Article XV
Destruction or Damage
In the event of a fire or other casualty in the Premises, Tenant shall immediately give
notice thereof to Landlord. If any fire or other casualty renders any portion of the Premises or
the Building untenantable, Landlord shall, with reasonable promptness, but in all events within
thirty (30) days after the occurrence of such damage, estimate the length of time that will be
required to substantially complete the repair and restoration and shall by written notice advise
Tenant of such estimate ("Landlord's Notice"). The following provisions shall apply to fire or
other casualty occurring in the Premises and/or the Building:
(a) If the damage is limited solely to the Premises and Landlord confirms and
commits in the Landlord's Notice that the Premises can be made tenantable with all
damage substantially repaired within six (6) months from the date of damage or
destruction, then Landlord shall be obligated to rebuild the same and shall proceed
diligently to do so;provided,however,that Landlord shall have no obligation to repair or
restore the Tenant's Work or Alterations in the Premises(whether installed by Tenant or
by Landlord) except to the extent that Landlord has received insurance proceeds from
either Landlord's or Tenant's casualty insurer sufficient for such purposes and for all other
restoration and repair purposes or unless Tenant pays all costs and expenses related to the
reconstruction of uninsured or underinsured Tenant's Work or Alterations.
(b) If portions of the Building outside the boundaries of the Premises are
damaged or destroyed (whether or not the Premises are also damaged or destroyed) and
Landlord confirms and commits in the Landlord's Notice that the Premises and the
Building can both be made tenantable with all damage substantially repaired within six
(6)months from the date of damage or destruction, Landlord shall be obligated to do so;
provided, however, that Landlord shall have no obligation to repair or restore Tenant's
Work or Alterations in the Premises except to the extent that Landlord has received
insurance proceeds from either Landlord's or Tenant's casualty insurer sufficient for such
28
purposes and for all other restoration and repair purposes or unless Tenant pays all costs
and expenses related to the reconstruction of uninsured or underinsured Tenant's Work or
Alterations.
(c) If neither clause(a)nor(b)above applies,or if the fire or casualty occurs
in the last year of the term (subject to Tenant's election to exercise any unexercised
options, if applicable), then either Tenant or Landlord may terminate this Lease within
thirty(30) days after the date of Landlord's Notice(or, if not timely received by Tenant,
then the date upon which such Landlord's Notice was due). Unless this Lease is
terminated as provided herein, Landlord shall proceed with reasonable promptness to
repair and restore the Premises to its condition as existed prior to such casualty. Landlord
shall have no liability to Tenant,and Tenant shall not be entitled to terminate this Lease if
such repairs and restoration are not in fact completed within the time period estimated by
Landlord so long as Landlord shall proceed and continue with reasonable diligence to
complete such repairs and restoration; provided, however, if such work is not completed
within forty-live(45)days after the time period estimated by Landlord, then Tenant may
• terminate this Lease upon notice.
(d) During any period when the Premises or any portion thereof, as a result
of destruction or damage, are unusable and are actually unused by Tenant,Monthly Base
Rent and Tenant's Proportionate Share of the estimated Direct Expenses and Taxes shall
abate proportionately until such time as the Premises, or any applicable portion thereof,
are made tenantable, including such .time as is needed for purposes of Tenant
reconstructing its Tenant's Work and Alterations (if_not a part of Landlord's
reconstruetion-work).—There-shall-be-no-abatement-of fonthly-Base-Rent-attributable-to
the time period following the repair of damage to the Premises by the Landlord where the
Premises would have been otherwise reasonably deemed available for Tenant's
occupancy, except for reconstruction of the Tenant's Work or Alterations where such
reconstruction did not or has not occurred because of any delays to Landlord's
reconstruction work directly caused by Tenant.
(e) The proceeds from any insurance paid by reason of damage to or
destruction of the Building or any part thereof, insured by Landlord, shall belong to and
be paid to Landlord subject to the rights of any mortgagee of any Mortgage which
•
constitutes an encumbrance.
(f) Notwithstanding anything contained in this Article XV, Landlord shall
have no obligation to rebuild the Premises or the Building in the event any mortgagee of
• any Mortgage shall retain, and not make available to Landlord, the proceeds from any
insurance or in the event the damage or destruction of the Premises or the Building
29
occurs during the last year of the Term (subject to Tenant's election to exercise any
unexercised options,if applicable).
Article XVI
Waiver of Subrogation
Tenant and Landlord agree that insurance required to be carried by either of them against
loss or damage to their respective property by fire or other casualty shall contain a clause
whereby the insurer waives its rights to subrogation against the other party, its agents, officers
and employees for any loss or damage to its property or to the property of others covered by
insurance. Landlord and Tenant hereby waive and release each other from any and all rights and
claims for recovery for any loss or damage to any of its property which is due to the negligence
of the other party or any such person, or which is covered by valid and collectible insurance
policies carried or required to be carried under this Lease. Each party shall inform its respective
insurance carriers of this waiver in the manner required with respect to policies issued by such
carriers or otherwise arrange,to the extent necessary,so that the coverage afforded thereby is not
adversely affected.
Article XVII
Rules and Regulations
Tenant shall faithfully observe and comply with the Rules and Regulations and, after
notice thereof, all reasonable modifications thereof and additions thereto from time to time
promulgated-in-writirsg-by-L-andlord,-all-of--which-are-hereby incorporated-herein-by-thus
reference, but only to extent and so long as such Rules and Regulations (and modifications and
additions) do not adversely and materially affect Tenant's rights under this Lease, do not
discriminate against Tenant and are uniformly applied amongst all retail users of the Building.
Landlord shall not be responsible to Tenant for the nonperformance by any other tenant or
occupant of the Building of any of the Rules and Regulations.
Article XVIII
Entry by Landlord
Section 18.1 Entry to the Premises. Landlord, its agents, contractors or employees may
during normal business hours and upon at least 48 hours prior written notice(except in the event
of an emergency, in which event only reasonable advance notice under the circumstances shall
be required) enter the Premises to: (a) inspect the same; (b) exhibit the same to prospective
purchasers, lenders or, during the last six (6) months of the Term and after Tenant's rights to
exercise any Extension Term has expired, prospective tenants; (c) determine whether Tenant is
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•
•
•
complying with all of its obligations hereunder; (d) supply services to be provided by Landlord
to Tenant hereunder or to any other tenant of the Building; (e)post notices of non-responsibility;
and (f) make repairs required of Landlord under the terms hereof for which Landlord deems
necessary or desirable;provided,however,that all such work shall be done so as to cause as little
interference to Tenant and its business operations as reasonably possible. Except for claims .
arising from the negligence or willful misconduct of Landlord or Landlord Parties, Tenant
hereby waives any claim for damages for any injury or inconvenience to or interference With
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned by such proper entry. Landlord shall at all times have and retain a key with which to
unlock all of the doors in, on or about the Premises (excluding Tenant's vaults, safes and other
confidential or secured areas designated in writing by Tenant to Landlord). Landlord shall have
the right to use any and all means which Landlord may deem proper to open the doors to the
Premises in an emergency in order to obtain entry to the Premises, and no entry to the Premises
obtained by Landlord by any of such means under any legitimate emergency circumstance shall
• be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises or
an eviction,actual or constructive,of Tenant from the Premises,or any portion thereof.
Section 18.2 Alterations to Building. Landlord shall have the right from time to time to
alter the Building and Common Areas and, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to change the •
arrangement or location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known, provided any such change does not (a)
unreasonably reduce, interfere with or deprive Tenant of use of or access to the Building or
• -- Premises or(b)reduce the Rentable Area(except by a-deminimis amount) of the Premises. All`
;parts (except surfaces facing the interior of the Premises) of all walls, windows and doors
bounding the Premises (including exterior Building walls, exterior core corridor walls, exterior
doors and entrances), all balconies, terraces and roofs adjacent to the Premises, all space in or
adjacent to the Premises used for shafts, stacks, stairways, chutes,, pipes, conduits, ducts, fan
-rooms, heating, air cooling, plumbing and other mechanical facilities, service closets and other
Building facilities are not part of the.Premises, and Landlord shall have the use thereof, as well
as access thereto through the Premises for the purposes of operation, maintenance, alteration,
repair and replacement (subject to Section 18.1 and all other limitations set forth herein,
including, without limitation, utilizingall reasonable efforts not to unreasonably interfere with
Tenant or its business operations in the Premises).
•
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•
•
Article XIX
• Tenant's 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 Monthly Base Rent
or Additional Rent within ten (10) days after the date the same is due; (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 hereunder, 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 Laws, 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
I aws,-such-proceeding-shall-not-have-been-dismissedr-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 (or bonded over) within twenty
(20)days after written notice of such levy.
Section 19.1 Landlord's 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. Subject to
all necessary legal proceedings, upon any such Event of Default, 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
32
Landlord's rights to rent or any other right given to Landlord hereunder or by operation of
law.
(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 reasonable 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(4%)per annum.
Section 19.2 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 Monthly Base Rent for the balance of the Term;plus
(b) recapture of the prorated portion (over the initial Term) of any
construction allowance, lease commission or fee paid by Landlord to Tenant or on
Tenant's behalf(or to Tenant or.any affiliate of Tenant), or any free rent period (granted
to Tenant or any affiliate of Tenant) or other fees that were left unpaid by Tenant or any
affiliate of Tenant;plus
(c) the Additional Rent for the balance of the Term. For purposes of
computing Direct Expenses, the Direct Expenses for the calendar year of the default and
each future calendar year in the Term shall be assumed to be equal to the Direct Expenses
33
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 19.3 Interest. Every installment of rent and every other payment due hereunder
from Tenant to Landlord not paid within fifteen(15)days of the date when due shall bear interest
at the rate of four percent (4%) over the Prime Rate, or at the highest rate legally permitted,
whichever is less,from the date that the same became due and payable until paid, whether or not
demand be made therefor.
Section 19.4 Late Charges. Tenant acknowledges that late payment by Tenant to
Landlord of Monthly Base Rent or Additional Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation,processing and accounting charges,
and late charges that may be imposed on Landlord by the terms of any note secured by an
encumbrance covering the Premises. Therefore, if any installment of Monthly Base Rent or
Additional Rent due from Tenant is not received by Landlord within ten (10) days of the date
when due, Tenant shall pay Landlord a late charge equal to five percent(5%)of such delinquent
amount. The parties agree that this late charge represents a fair and reasonable estimate of the
costs that Landlord will incur by reason of such late payment by Tenant. Acceptance of any late
charge-shall-not--constitute--a-waiver-of—Tenant's default-with-respect-to-the-overdue-amount, or
prevent Landlord from exercising any of the other rights and remedies available to Landlord.
Notwithstanding the foregoing,once each calendar year Landlord shall give Tenant notice of late
payment and Tenant shall have five (5) days after receipt of such notice to make a payment
before the late charge is assessed.
Section 19.5 Lease Continues Until Termination. Even though Tenant may breach this
Lease or abandon the Premises, this Lease shall continue in effect for so long as Landlord does
not terminate this Lease under Section 19.2 or otherwise 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
appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. •
Section 19.6 Remedies Cumulative. The remedies provided for in this Lease are in
addition to any other remedies available to Landlord and Tenant at law or in equity by statute or
otherwise.
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• Section 19.7 Waiver of Redemption. 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 or ejected from
the Premises.
Section 19.8 Landlord's Right to Cure Defaults. All agreements and provisions to be
performed by Tenant under any of the terms of this Lease shall be at Tenant's sole cost and
expense. If Tenant shall fail to perform any of its obligations hereunder,then Landlord may,but
• shall not be obligated so to do, and without waiving or releasing Tenant from any obligations,
perform any such obligations on Tenant's behalf. All sums so paid by Landlord and all costs
incurred by Landlord in performing Tenant's obligations shall be deemed additional rent
hereunder and shall be paid,with interest at the rate of four percent.(4%)over the Prime Rate,to
Landlord on demand.
Article XX
•
Landlord's Default
In the event Landlord fails to keep and perform any of the terms,covenants,warranties or
conditions hereof, time being of the essence, and such defaults continues for thirty (30) days
after written notice of default from Tenant, or in the case of a default which cannot, in the
exercise of reasonable diligence, reasonably be cured within such thirty (30) day period, such
default continues beyond such period as is reasonably required in order to cure the same with the
exercise of all reasonable diligence, then the Tenant may resort to any remedy at law or in
equity.
Article XXI
Attorneys' Fees
In the event of any action or proceeding brought by either party against the other under
this Lease,the prevailing party shall be entitled to recover court costs and the fees of its attorneys
in such action or proceeding(whether at the administrative,trial or appellate levels)to the extent
permitted by law.
Article XXII
Holding Over
If Tenant shall remain in possession after the expiration or sooner termination of this
Lease with Landlord's consent (which Landlord may withhold in its sole and absolute
discretion), all of the terms, covenants and agreements hereof shall continue to apply and bind
35
Tenant so long as Tenant shall remain in possession insofar as the same are applicable;provided,
however,the Monthly Base Rent shall be the greater of(a) one and a half(1 1/2) times the sum of
the Monthly Base Rent payable for the last month of the Term, prorated on a daily basis for each
day that Tenant remains in possession,or(b)one and a half(1 %)times the rate Landlord is then
asking for comparable space in the Building. Tenant shall indemnify Landlord and Landlord's
Agent against any and all claims,losses and liabilities for damages resulting from failure to
surrender possession, including, without limitation, any claims made by any succeeding tenant.
If Tenant remains in possession with Landlord's written consent, such tenancy shall be from
month to month, terminable by either party on not less than thirty(30)days written notice.
Article XXIII
Waiver
The failure of either party hereto to exercise its rights in connection with any breach or
violation of any term, covenant or condition herein contained or in the Rules and Regulations
shall not be deemed to be a waiver of such term,covenant or condition or any subsequent breach
of the same or any other term, covenant or condition herein contained. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
Article XXIV
Eminent Domain
Section 24.1 Taking of Premises. If all or any part of the Premises shall be taken by
any public or quasi-public authority as a result of the exercise of the power of eminent domain,
this Lease shall terminate as to the part so taken as of the date of taking. In the case of a partial
taking, Tenant shall have the right to terminate this Lease as to the balance of the Premises by
written notice to the other within thirty (30) days after the date of such taking; provided,
however, that a condition to the exercise by Tenant of such right to terminate shall be that the
portion of the Premises taken shall, in Tenant's judgment, be of such extent and nature as
substantially to handicap, impede and impair Tenant's use of the balance of the Premises. If a
material part of the Common Areas or the Building is condemned or taken, or if substantial
alteration or reconstruction of the Building shall, in Landlord's sole opinion, be necessary or
desirable as a result of such condemnation or taking, either Tenant or Landlord may terminate
this Lease by written notice to the other party within thirty(30) days after the date of taking. In
the event of a taking of any portion of the Premises and/or Building not resulting in a termination
of this Lease, Landlord shall at its sole cost and expense, promptly and with all due diligence
36
restore the Premises and Building as nearly as practicable to a complete architectural unit of like
quality and character as existed just prior to such taking,subject to the amount of condemnation
proceeds provided to Landlord.
Section 24.2. Condemnation Award. In the event of any taking, Landlord shall be
entitled, subject to Tenant's rights described herein, to any and all compensation, damages,
income, rent, awards, and any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease or otherwise except as described herein. In the event of a partial
taking of the Premises which does not result in a termination of this Lease, the Monthly Base
Rent and Tenant's Proportionate Share of the estimated Direct Expenses and Taxes thereafter to
be paid shall be equitably reduced due to the nature and degree of the interference with Tenant's
business operations. Nothing herein shall be construed to prevent Tenant from claiming from the
condemning authority such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right for its damages to the extent relating to its leasehold interest
• hereunder, all improvements/fixtures constructed or made by Tenant, interruption of Tenant's
business, and for Tenant's moving,relocation or other similar expenses.
Section 24.3 Temporary Taking. If all of the Premises shall be condemned or taken for
governmental occupancy for a period of more than one hundred twenty (120) days, this Lease
shall terminate as of the date of taking and Landlord shall be entitled to any and all
compensation, damages, income, rent and awards in connection therewith. If all or any part of
the Premises shall be taken by any public or quasi-public authority on a temporary basis for a
period of one hundred twenty(120) days or less,this Lease shall remain in full force and effect.
Tenant's-Monthly-Base-Rent-and-Tenant-s-Preportionate-Share-of the-estimated-Direct-Expenses
and Taxes hereunder shall be abated for the period of the temporary taking and Landlord shall be
entitled to any and all compensation, damages, income, rent, awards and interest in connection
therewith. Nothing herein shall be construed to prevent Tenant from claiming from the
condemning authority such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right for its damages to the extent relating to its leasehold interest
hereunder, all improvements/fixtures constructed or made by Tenant, interruption of Tenant's
business,and for Tenant's moving,relocation or other similar expenses.
Article XXV
Sale by Landlord
In the event of a sale or conveyance by Landlord of the Building, the same shall operate
to release Landlord from any future liability first accruing after the date of such sale/conveyance
upon any of the agreements, obligations covenants or conditions, express or implied, herein
contained in favor of Tenant, and in such event Tenant agrees to look solely to the successor in
interest of Landlord in and to this Lease as to such liability. This Lease shall not be affected by
37
any such sale,however,and Tenant agrees to attorn to the purchaser or assignee,such attornment
to be effective and self-operative without the execution of any further instruments on the part of
any of the parties to this Lease. Landlord shall give or cause the transferee to give Tenant
prompt written notice of any such sale or conveyance, including the identity of the transferee and
any change in the address for giving notices or paying rent hereunder. Tenant may rely upon and
proceed in accordance with any notice of change of ownership of Landlord's interest given in
accordance with this Lease without a duty of inquiry and even if Tenant has knowledge or notice
contrary thereto.
• Article XXVI
Subordination
Section 26.1 Subordination of this Lease. Unless Landlord or any lender holding a lien
which affects the Premises elects otherwise, this Lease shall be subordinated at all times to the
first priority lien of any mortgages and deeds of trust ("Mortgage") in any amount or amounts
whatsoever now or hereafter placed on or against the Building, on or against Landlord's interest
or estate therein, provided that such subordination by Tenant is condition upon each of
,mortgagees or beneficiaries named in said Mortgage to recognize the interest of Tenant under
this Lease and not disturb Tenant's possession of the Premises so long as Tenant is not then in
default hereunder beyond all applicable notice and cure periods. Notwithstanding the foregoing
in the event of a foreclosure of any such Mortgage or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, or the giving of any deed in lieu of such
foreclosure, Tenant shall, if requested, attom to the purchaser at such foreclosure sale or other
action-orproceeding,-or-to-the-grantee-under-any-such-deed-given in--lieu-of-foreclosure-or--if
requested,enter into a new lease with such successor to Landlord's interest for the balance of the
original or extended Term then remaining upon the same terms and provisions as are in this
Lease contained(it being understood,however,that no such successor to Landlord's interest shall
be bound by any payment of Base Rent under this Lease, other than security deposits and pre-
payments of Direct Expenses,made more than one(1)month in advance);and(iii)Tenant agrees
to execute and deliver upon demand such instruments evidencing such aforementioned non-
disturbance agreement and subordination of this Lease to the lien of any such Mortgages as may
reasonably be required by Landlord, Tenant shall from time to time on request from Landlord
execute and deliver any documents or instruments that may be required by any lender to
effectuate any subordination and non-disturbance, in such form as are mutually acceptable to
Tenant and lender.
Section 26.2 Subordination of Mortgage. Notwithstanding anything to the contrary set
forth above,any mortgagee under any Mortgage may at any time subordinate its Mortgage to this
Lease in whole or in part, without any need to obtain Tenant's consent,by execution of a written
document subordinating such Mortgage to this Lease to the extent set forth in such document and
38
thereupon this Lease shall be deemed prior to such Mortgage to the extent set forth in such
document without regard to their respective dates of execution,delivery and/or recording. In that
event, to the extent set forth in such document, such Mortgage shall have the same rights with
respect to this Lease as would have existed if this Lease had been executed, and a memorandum
thereof,recorded prior to the execution,delivery and recording of the Mortgage.
Article XXVII
No Merger
' The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof,shall not work a merger unless Landlord shall elect otherwise.
Article XXVIII
Surrender of Premises
At the end of the Term or upon sooner termination of this Lease,Tenant shall peaceably
deliver up to Landlord possession of the Premises, together with Tenant's Work and Alterations
(other than Tenant's Property), by whomsoever made, in good condition, reasonable wear and
tear excepted and damages due to casualty/condemnation excepted. Tenant shall, upon the
termination of this Lease, remove all Tenant's Property and repair any damage caused by such
removal. Any of Tenant's Property not so removed within thirty (30) days of the expiration of
the Term or any Extension Term shall be deemed abandoned by Tenant and title to the same
•
shall-thereupon-pass-to--L-andlord. Notwithstanding-the-foregoing, if Landlord's-consent-was
required herein as a condition to making any Alteration, then Tenant, at its cost, shall remove
any or all Alterations which were designated in writing by Landlord as required to be removed at
the end of the Term as conditioned to Landlord's consent at the time prior to installation of such
Alterations.
Article XXIX
Estoppel Certificate
At any time and from time to time,but in no event on less than ten(10)days prior written
request by either Tenant or Landlord, the other party shall execute, acknowledge and deliver to
the requesting party, promptly upon request, a certificate certifying: (a) that the Premises has
been accepted (or, if Tenant has not done so, that Tenant has not accepted the Premises, and
specifying the then known reasons therefor); (b) the commencement and expiration dates of this
Lease; (c) whether there are then known existing defaults in the performance of its obligations
under this Lease (and, if so, specifying the same) (d) 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
• I
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•
modified, and stating the date and nature of each modification); (e) the capacity of the person
executing such certificate, and that such person is duly authorized to execute the same on behalf
of signing party;•(f) the date, if any, to which rent and other sums payable hereunder have been
paid; (g) that the requesting party is not in default under the Lease nor does any event exist
which, with the passage of time or the giving of notice or both would constitute an Event of
Default(except as to defaults specified in the certificate); (h)the amount of any security deposit
and prepaid rent; and (i) such other matters as may be reasonably requested by the requesting
party. Any such certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any Mortgage affecting the Building. If Tenant fails to deliver the executed
certificate within ten(10)days after receipt thereof by Tenant,the same shall constitute an event
of default under the Lease.
•
Article XXX
No Light,Air or View Easement
Any diminution or shutting off of light, air or view by any structure which is now or may
• hereafter be erected on lands adjacent to the Building shall in no way affect this Lease or impose
any liability on Landlord. Noise, dust or vibration or other incidents due to new construction of
improvements on lands adjacent to the Building, whether or not owned by Landlord, shall in no
way affect this Lease or impose any liability on Landlord.
Article XXXI
Notices
All notices or other communications which are required or permitted herein shall be in
writing and delivered personally, or sent by prepaid reputable overnight courier, or sent by
registered or certified mail,postage prepaid,return receipt requested,at the addresses set forth in
Article I or at such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such communication shall be deemed
to have been given when delivered if delivered personally, on the business day of receipt from
the courier if sent by overnight courier,or on the third business day after depositing in the mail if
sent by registered or certified mail.
Article XXXII
Relocation of Premises
Upon the mutual consent of Landlord and Tenant, Landlord shall have the option to
relocate Tenant to alternative space in the Building, which alternative space shall be of
comparable size to or larger than the Premises. Landlord shall give Tenant not less than ninety
•
40 •
(90) days prior written notice of such relocation, which notice shall include the date on which
Tenant shall be required to relocate or move and a description of the space to which Tenant will
be relocated. Landlord shall pay all out of pocket costs and expenses of relocating Tenant
(including the cost of preparing such comparable space for occupancy). In the event of such
relocation, such alternative space shall for all purposes be deemed the Premises hereunder and
this Lease shall continue in full force and effect without any change in the other terms or
condition hereof.
Article XXXIII
Successors
All the terms, covenants, and conditions hereof shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto,
provided that nothing in this Article XXXIII shall be deemed to permit any assignment,
subletting,occupancy or use by Tenant contrary to the provision of Article XIII.
Article XXXIV
Insurance
Section 34.1 Tenant's Insurance.
(a) From the Actual Delivery Date of the Premises to Tenant through the later
of the end of the Term or the date Tenant surrenders physical possession of the Premises
to-Landlord, Tenant shad-keep-in-force: (i) commercial general-Minty insurance, on a
per location basis; naming Landlord and Landlord's Agent and others designated by
Landlord as additional insureds, with a limit of not less than $1,000,000 per occurrence
and not less than$2,000,000 in the annual aggregate,covering bodily injury and property
damage, and $1,000,000 products/completed operations aggregate; (ii) business auto
liability covering owned, non-owned and hired vehicles with a combined single limit of
not less than $1,000,000 per accident; (iii) statutory workers' compensation insurance;
(iv) employers' liability with limits.of$500,000 each accident, $500,000 disease policy
limit, $500,000 disease--each employee; (v) All Risk or Special Causes of Loss Form
. coverage protecting Tenant against loss of or damage to the alterations, additions,
leasehold improvements, carpeting, floor coverings, paneling, decorations, fixtures,
inventory, plate glass and other business personal property situated in or about the
Premises in an amount not less than one hundred percent (100%) of the replacement
value thereof, naming the Landlord Entities (as identified in the Basic Lease Provisions),
and others designated .by Landlord, as additional named insureds; (vi) business
interruption insurance with limits of liability representing at least approximately twelve
(12) months of income including but not limited to continuing Rent obligations to
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Landlord; and(vii)liquor Law liability insurance with a limit of not less than$2,000,000
per occurrence if Tenant is in the business of selling or distributing alcohol.
(b) In no event shall there be any reduction in the amount of coverage
provided by Tenant below the initial amount set forth herein. If,in Landlord's reasonable
judgment, good business practice or changes in conditions indicate a need for additional
and/or different types of insurance, Tenant shall upon notice from Landlord obtain such
insurance at its own expense.
Section 34.2 Landlord's Insurance. Subject to the right of reimbursement under Article
VI above, Landlord, at its cost, shall maintain special cause of loss form insurance in an amount
equal to the full replacement cost of the Building (excluding Tenant's Work, Alterations,
Tenant's Property) and Common Area. Any such policy shall contain an agreed amount
endorsement and/or shall waive the penalty for any co-insurance deficiency. Subject to the right
of reimbursement under Article VI above, Landlord shall obtain and keep in full force and effect
liability insurance for the Building, in such reasonable amounts with such reasonable deductions
as would a prudent owner of a similar Building in the area. All premiums for which Tenant is
liable hereunder for the calendar years of commencement and termination of this Lease shall be
prorated from the Commencement Date and to the Termination Date. Tenant acknowledges that
it will not be a named insured in such policies and that it has no right to receive any proceeds
from any such insurance policies carried by Landlord. Tenant shall comply with the
requirements of all Landlord's insurance at any time in force with respect to the Building.
Landlord shall have the right to carry or maintain such insurance under "blanket policies"
covering the Building and other properties owned or managed by Landlord or its affiliates.
Section 34.3 Insurance Criteria. All the insurance required under this Lease shall:
(a) be issued by an insurance company with an A.M. Best Rating of A- or
better;
(b) be issued as a primary policy;
(c) contain an endorsement requiring thirty(30) days' written notice from the
insurance company to both parties and to Landlord's lender before cancellation of any
policy;and
(d) with respect to property loss or damage by fire or other casualty, a waiver
of subrogation must be obtained,as required by Article XVI.
Section 34.4 Evidence of Coverage. A certificate of insurance for the policies required
to be carried by Tenant under this Lease, together with evidence of payment of premiums, shall
be deposited with Landlord on the Actual Delivery Date. On or before the anniversary date of
42
the Term Commencement Date, the Tenant shall provide the Landlord or its property
management entity a current certificate of insurance for the policies required to be carried by
Tenant under this Lease.
Article XXXV
Landlord's Sian Criteria
Tenant shall provide and install interior and exterior signage with all associated wiring,
conduits and anchorage,in accordance with the Exhibit E. Tenant shall comply at all times with
the provisions of Exhibit E with respect to Tenant's interior signs. Tenant's sign plans for any
sign to be installed on the exterior of the Premises shall be prepared by Tenant in accordance
with the sign criteria of the Building(the"Sign Criteria")set forth in Exhibit E and submitted to
Landlord for Landlord's prior written approval,which shall not be unreasonably withheld,
conditioned or delayed. All of Tenant's signs shall comply with all applicable Laws and
CC&R's. Tenant shall be responsible for the costs of designing,manufacturing,installing, •
illuminating,operating and maintaining its signs. Upon the expiration or sooner termination of
this Lease,Tenant shall remove its signs and restore the Premises and the Building affected by
the installation or removal of its signs,to the condition existing prior to installation or to a
condition reasonably acceptable to Landlord. If Tenant fails or refuses to remove its sign as
herein required,Landlord may,but shall not be obligated to,remove such signs and repair and
restore all damage caused by their removal,and Tenant shall pay to Landlord the costs of all
such removal,repair and restoration,together with an amount equal to 15%of such costs,within
ten(10)days after receipt of an invoice therefor.
Article XXXVI
Parking Skvwalk
Section 36.1 Garage Parking. Landlord will construct and maintain a 930 stall parking
garage ("Parking Garage") located immediately north of the Building. Tenant, together with
Tenant's employees, agents and invitees, shall have the non-exclusive right to utilize on a first
come, first serve basis those surface parking areas adjacent to the Building, street parking and
parking garages located in the Zone 5 (the "Parking Areas"). Tenant shall at all times comply
with (and the provisions hereof shall be expressly subject to) all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state, county and municipal
governmental bodies or their subdivisions and the CC&R regarding the use of the Parking Areas.
Landlord reserves the right to adopt, modify and enforce reasonable rules governing the use of
the Parking Areas from time to time. Landlord may refuse to permit any person who violates
any such rules to park in the Parking Areas,and any violation of the rules shall subject the car to
removal, at such person's expense from the Parking Areas. Except in cases of Landlord's gross
negligence or willful misconduct, Landlord shall have no liability whatsoever for any damage to
43
•
property or any other items located in the Parking Areas, nor for any personal injuries or death
arising out of any matter relating to the Parking Areas, and in all events,Tenant agrees to look to
its insurance carrier for payment of any losses sustained in connection with any use of the
Parking Areas. Landlord reserves the right to assign a reasonable number of specific spaces for
visitors, small cars,handicapped persons and for other tenants, guests of tenants or other parties
•designated by Landlord, and Tenant•shall not park in any such assigned or reserved spaces.
Landlord also reserves the right to close all or any portion of the Parking Areas in order"to make
repairs or perform maintenance services, or to alter, modify, restripe or renovate the Parking
Areas, or if required by casualty, strike, condemnation, act of God, governmental law or
requirement or other reason beyond Landlord's reasonable control.
Section 36.2 Skywalk. The Building is being designed with a Skywalk connection to
the Parking Garage ("Skywalk"). For all purposes of this Lease,the Skywalk is considered part •
of the Building. Tenant shall at all times comply with all applicable Laws regarding the use of
the Skywalk. Landlord reserves the right to adopt, modify and enforce reasonable rules
governing the use of the Skywalk from time to time which may include exclusive access to the
Skywalk for office tenants of the Building. Landlord may refuse to permit any person who
violates any such rules to use the Skywalk. Landlord reserves the right to close all or any portion
of the Skywalk in order to make repairs or perform maintenance services, or to modify the
Skywalk, or if required by casualty, strike, condemnation, act of God, governmental law or
requirement or other reason beyond Landlord's reasonable control.
Article XXXVII
Promotion
Landlord shall have the right, but in no event shall be required to, to advertise the
Building in the local metropolitan statistical area, and formulate, provide, and carry out an
ongoing Program of Events(as hereinafter defined),both of which,in Landlord's sole judgment,
shall serve to enhance and promote the Building and its occupants. For purposes of this Section,
"Program of Events" shall mean, without limitation,all shows, displays, signs,marquees,decor,
special events, seasonal and holiday events, promotional literature to be distributed within and
outside the Building, advertisements for the Building, and other activities within the Building
designated to attract customers. The cost of such promotional activities shall be considered a
Direct Expense.
•
Article XXXVIII
Miscellaneous
•
44
Section 38.1 Captions. The captions and headings of the Articles and Sections in this
Lease are for convenience only and shall not in any way limit or be deemed to construe or
interpret the terms and provisions hereof.
Section 38.2 Time of Essence. Time is of the essence of this Lease and of all
provisions hereof,except in respect to the delivery of possession of the Premises.
Section 38.3 Number and Genders:Joint and Several Liability. The words"Landlord"
and"Tenant,"as used herein,shall include the plural as well as the singular. Words used in the
masculine gender include the feminine and neuter. If there be more than one Landlord or Tenant
or if Tenant is a partnership, the respective obligations hereunder imposed upon Landlord,
Tenant and the general partners of Tenant,as the case may be,shall be joint and several.
Section 38.4 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Nebraska.
Section 38.5 Cumulative Remedies. It is understood and agreed that the remedies
herein given to Landlord shall be cumulative, and the exercise of any one remedy by Landlord
shall not be to the exclusion of any other remedy.
Section 38.6 Entire Agreement. The terms of this Lease are intended by the parties as a
final expression of their agreement with respect to such terms as are included in this Lease and
may not be contradicted by evidence of any prior or contemporaneous agreement. The parties
further intend that this Lease constitutes the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial proceedings, if any,
involving this Lease.
Section 38.7 Invalidity. If any provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each provision of this
Lease shall be valid and be enforced to the full extent permitted by law.
Section 38.8 Authority. If Tenant signs as a corporation or a partnership, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and warrant that Tenant
is a duly authorized and existing entity, that Tenant has and is qualified to do business in
Nebraska, that Tenant has full right and authority to enter into this Lease, and that each and both
of the persons signing on behalf of Tenant are authorized to do so. Upon Landlord's request,
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord confirming the
foregoing covenants and warranties.
45
Section 38,9 Offer. The submission and negotiation of this Lease shall not be deemed
an offer to enter into a lease by Landlord, but the solicitation of such an offer by Tenant and
Landlord's acceptance of this Lease shall be evidenced only by Landlord signing and delivering
this Lease to Tenant.
Section 38.10 No Representations or Warranties. Neither Landlord nor Landlord's
agents or attorneys have made any representations or warranties with respect to the Premises,the
Building or this Lease, except as expressly set forth herein, and no rights, easements or licenses
are or shall be acquired by Tenant by implication or otherwise.
Section 38.11 Brokers. Tenant represents to the Landlord that it has dealt with no broker
in connection with this Lease, and Landlord represents to the Tenant that it has dealt with no
broker in connection with this Lease other than Joseph Kutilek with Magnum Realty, Inc., who
shall be paid by Landlord pursuant to a separate agreement. Tenant and Landlord each shall hold
the other harmless from and against any and all liability, loss, damage, expense, claim, action,
demand,suit or obligation arising out of or relating to a breach of such representation.
Section 38.12 Amendments. This Lease may not be altered,changed,or amended except
by an instrument signed by both parties hereto.
Section 38.13 Proration. Any proration required hereunder shall, unless expressly
provided otherwise herein,be done on the basis of a three hundred sixty(360)day year and/or a
thirty(30)day month.
Section 38.14 Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in
any action,proceeding or counterclaim brought by either of the parties to this Lease against the
other on any matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises, or any other
claims(except claims for personal injury or property damage).
Section 38.15 Memorandum of Lease. At the request of either party, the parties shall
execute and deliver a recordable memorandum or short-form Lease sufficient to put third parties
on constructive notice of the interests of the parties hereunder.
Section 38.16 Liens. Tenant shall be responsible for the satisfaction or payment of any
liens for any provider of work, labor, material or services claiming by, through or under Tenant.
Tenant shall also 'indemnify, hold harmless and defend Landlord against any such liens,
including the reasonable fees of Landlord's attorneys incurred in connection with such liens, to
the extent permitted by law. Such liens shall be discharged by Tenant within thirty (30) days
after notice of filing thereof by bonding, payment or otherwise, provided that Tenant may
contest,in good faith and by appropriate proceedings,any such liens.
46
•
•
•
Section 38.17 Counterparts. This Lease•may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed and
delivered shall, be deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
Section 38.18 Confidentiality. Unless required by law, the parties agree that no party
will, without the written consent of the other party, disclose to any other person or entity any
terms, conditions or other facts relating to this Lease; provided that, the parties may (i) inform
the applicable governmental entity of certain terms necessary to secure governmental approvals
described in this Lease, (ii) inform potential or actual equity investors and debt lerider(s) •
necessary to obtain equity and debt financing/refinancing for the Building and/or this Lease, (iii).
inform any managers, directors, officers; employees, agents, independent contractors,
accountants,attorneys,lien holders or financial advisors of the parties so long as said party needs •
to know and is informed of this confidentiality provision and agrees to maintain such
information, terms and conditions confidential, and (iv) may file a memorandum or short-form
Lease sufficient to put third parties on constructive notice of the interests of the parties
hereunder.
•
Section 38.19 Other Tenants. Tenant acknowledges that Landlord has made no
representations regarding the presence of a certain tenant or store or the number, types or hours
of operation of tenants or stores in the Building or Zone 5. An abandonment or cessation of
business by any other occupant shall not release Tenant from its obligations under this Lease.
• Tenant acknowledges that any site or lease plan attached hereto as an exhibit is intended only to
show the general layout of the Building and Zone 5 or a part thereof, and shall not be deemed a
— ----- warranty-or-agreement-by-Landlord-as-to-the--Building;Zone-S—the-Premises.,-the-existene..e-of any---------
particular anchor tenant or other stores or occupants, or any matter shown thereon. All
measurements and distances are approximate and are not to be scaled.
Section 38.20 Ouiet Possession. Upon Tenant paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder,Tenant shall have quiet possession of the Premises for the
entire Term hereof, subject to all the provisions of this Lease, as against persons claiming by,
through,or under Landlord.
Section 38.21 Tenant acknowledges that Landlord has made no representations
regarding the presence of a certain tenant or store or the number, types or hours of operation.of
tenants or stores in the Building or Zone 5. An abandonment or cessation of business by any other
•
occupant shall not release Tenant from its obligations under this Lease. Tenant acknowledges that •
any site or lease plan attached hereto as an exhibit is intended only to show the general layout of the
Building,Zone 5 or a part thereof,and shall not be deemed a warranty or agreement by Landlord as
to the Building,Zone 5,the Premises,the existence of any particular anchor tenant or other stores or
47
occupants, or any matter shown thereon. All measurements and distances are approximate and are
not to be scaled.
Section 38.22 Force Majeure. If either Landlord or Tenant is delayed in performing any
obligation hereunder by any cause beyond the reasonable control of the party required to perform
such obligation,the time period for performing such obligation shall be extended by a period of •
time equal to the period of the delay. For the purpose of this Section:
(i) A cause shall be beyond the reasonable control of a party when such cause
would affect any person similarly situated (such as a power outage, labor strike or
truckers' strike) but shall not be beyond the reasonable control of such party when
peculiar to such party(such as financial inability or ordering materials requiring a long
lead time).
(ii) This Section shall not excuse any rental obligations, nor delay the
• Commencement Date for any time period in excess of thirty(30)days.
(iii) In the event of any occurrence which a party believes constitutes a cause
beyond the reasonable control of such party pursuant to this Section, such party shall
promptly in writing notify the other party of the occurrence and nature of such cause,
the anticipated period of delay and the steps being taken by such party to mitigate the
effects of such delay.
[Remainder ofpage intentionally left blank]
48
IN WITNESS WHEREOF,Landlord and Tenant have executed this Lease on the dates set forth
below and this Lease shall be effective as of the date first written above.
LANDLORD: ZONE 5 OFFICE,LLC,
a Nebraska limited liability company
By:
Name: John Hughes,Jr.
Title: Manager
By:
Name: Pat McNeil
Title: Manager
TENANT: Gold Mountain,LLC
a Nebraska limited liability company
By:
Name: Xiao Quan Zheng
Title: Manager
49
•
EXHIBIT A-1"
FLOOR PLAN •
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EXHIBIT"A-2"
SITE PLAN
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EXHIBIT'B"
LEGAL DESCRIPTION OF THE BUILDING
Lot 7,Aksarben Village Replat 11,being a replatting of Lot 1,Aksarben Village Replat 7,a
subdivision as surveyed,platted and recorded in Douglas County,Nebraska together with Lots 1
through 6,Aksarben Village Replat 8,a subdivision as surveyed,platted and recorded in
Douglas County,Nebraska.
•
•
C-2
EXHIBIT"C"
RULES AND REGULATIONS
l. Tenant shall not make any room-to-room canvas to solicit business from other tenants in
the Building and shall not exhibit, sell or offer to sell,use,rent or exchange any item or services
in or from the Premises unless ordinarily included within Tenant's use of the Premises as
specified in the Lease.
2. Tenant shall not make any use of the Premises which may be dangerous to person or
property or which shall increase the cost of insurance or require additional insurance coverage.
3. Tenant shall not paint, display, inscribe or affix any sign,picture, advertisement, notice,
lettering or direction or install any lights on any part of the outside or inside of the Building,
other than the Premises,and then not on any part of the inside of the Premises which can be seen
from outside the Premises,except as approved by Landlord in writing.
4. Omitted.
5. Tenant shall not obstruct or place objects on or in sidewalks, entrances, passages,courts,
corridors, vestibules, halls, elevators and stairways in and about the Building. Tenant shall not
place objects against glass partitions or doors or windows adjacent to any open common space
which would be unsightly from the Building corridors or from the exterior of the Building.
6. Bicycles shall not be permitted in the Building other than in locations designated by
Landlord.
7. Tenant shall not allow any animals,other than seeing eye or service dogs,in the Premises
or the Building.
8. Tenant shall not disturb other tenants or make excessive noises, cause disturbances,
m operate anyelectrical or electronic
create excessive vibrations, odors or noxious fumes or use or
devices or other devices that emit excessive sound waves or are dangerous to other tenants of the
Building or that would interfere with the operation of any device or equipment or
communication, radio or television broadcasting or reception from or within the Building or
elsewhere, and shall not place or install any projections,antennae,aerials,dishes,or other similar
devices outside of the Building or the Premises.
9. Tenant shall not waste electricity or water and shall cooperate fully with Landlord to
assure the most effective operation of the Building's heating and air conditioning, and shall
refrain from attempting to adjust any controls except for the thermostats within the Premises.
Tenant shall keep all doors to the Premises closed.
C-1
•
10. , Unless Tenant installs new doors to the Premises, Landlord shall furnish two (2) sets of
keys for all doors to the Premises at the commencement of the Term. Tenant shall furnish
Landlord with duplicate keys for any new or additional locks on doors installed by Tenant.
When the Lease is terminated, Tenant shall deliver all keys to Landlord and will provide to
Landlord the means of opening any safes,cabinets or vaults left in the Premises.
11. Except as otherwise provided in the Lease, Tenant shall not .install any 'signal,
communication, alarm or other utility or service system or equipment without the prior written
consent of Landlord.
12. Tenant shall not use any draperies or other window coverings instead of or in addition to
the Building standard window coverings designated and approved by Landlord for exclusive use
throughout the Building.
13. Landlord may require that all persons who enter or leave the Building identify themselves •
to watchmen, by registration, security system, or otherwise. Landlord, however, shall have no •
responsibility or liability for any theft,robbery or other crime in the Building. Tenant shall keep
all doors to the Premises locked after the close of business.
14. Tenant shall not overload floors; and Tenant shall obtain Landlord's prior written
approval as to size, maximum weight, 'routing and Iocation of business machines, safes and
heavy objects. Landlord shall provide Tenant with weight and size limitations upon Tenant's
reasonable request. Tenant shall not install or operate machinery or any mechanical devises of a
nature not directly related to Tenant's ordinary use of the Premises. •
•
15 In no-event-shall Tenant bring•into.t a Building-inflammables-such....as...gasoline;...kerosene
naphtha and benzene, or explosives or firearms.or any other article of an intrinsically dangerous
nature.
16. Furniture, equipment and other large articles may be brought into the Building only at the
time and in the manner designated by Landlord. Tenant shall furnish Landlord with a list of
furniture,equipment and other large articles which are to be moved in or out of the Building,and
Landlord may require permits before allowing anything to be moved in or out of the Building.
Movements of Tenant's Property into or out of the Building and within the Building are entirely
at the risk and responsibility of Tenant.
17. No person or contractor, unless approved in advance by Landlord, shall be employed to
do janitorial work, interior window washing, cleaning, decorating or similar services in the
Premises.
•
18. Tenant shall not use the Premises for lodging or for any illegal purposes.
C-2
19. Tenant shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.
20. Tenant shall cooperate and participate in all reasonable security programs affecting the
Building.
21. Tenant shall not loiter,eat,drink,or lie in the lobby or other public areas of the Building.
Tenant shall not go onto the roof of the Building or any other non-public areas of the Building
(except the Premises) and Landlord reserves all rights to control the public and non-public area
of the Building. In no event shall Tenant have access to any electrical, telephone, plumbing or
other mechanical closets without Landlord's prior written consent.
22. Tenant shall obey all Laws, rules and regulations of the State Fire Marshall and other
governmental entities have jurisdiction over the Premises.
23. Tenant shall deposit all trash and rubbish of Tenant only within receptacles provided or
approved by Landlord and no other trash receptacles shall be maintained outside the Building.
All trash,debris,and garbage shall be emptied into outside trash dumpster daily.
24. Tenant shall engage such pest extermination contractor to treat the Premises from time to
time as may be needed or as Landlord may direct.
25. Tenant and its users shall not use multiple-plug outlet converters for electrical appliances
drawing more than the allowed amperage from the outlet. Excessive numbers of appliances shall
not be plugged into one outlet. Damaged or overloaded extension cords are prohibited. The use
of-extension-cordsraspermanent wir not-allowed.
26. Tenant shall not store any items on the fire escape route.
27. Tenant shall not use the Premises in violation of any federal,state, or local Laws.
28. Tenant shall not use the freight or passenger elevators, loading docks or receiving areas
of the Building except in accordance with regulations for their use established by Landlord.
29. Tenant shall not dispose of any foreign substances in the toilets, urinals, sinks or other
washroom facilities, nor shall Tenant permit such items to be used other than for their intended
purpose;and Tenant shall be liable for all damage as a result of a violation of this rule.
30. Subject to applicable Laws,the Building is designated as a non-smoking building.
•
31. In the event any of the foregoing rules and regulations are inconsistent with the express
terms of the Lease, the terms of the Lease shall govern the rights and obligations of the parties
thereto.
C-3
•
32. Landlord reserves the right, at all times and from time to time, to: rescind any one or
more of these rules and regulations, or to make such other and further reasonable rules and
regulations as in the Landlord's judgment may from time to time be necessary for the safety, care
and cleanliness of the Premises; provided any further rules and regulations or modifications to
existing rules and regulations shall not adversely affect. Tenant's use of, or access to, the
Premises.
•
C-4
EXHIBIT"D"
LANDLORD'S AND TENANT'S WORK
AKSARBEN VILLAGE,ZONE 5,BUILDING I .
This Exhibit is attached to and forms a part of that certain Office Building Retail Lease("Lease")dated_
May 1 , 2016, by and between ZONE 5 OFFICE, LLC, a Nebraska
limited liability company("Landlord") and Gold Mountain,LLC. a Nebraska limited liability company,
("Tenant"). All terms used in this Exhibit but not defined in this Exhibit shall have the meanings
provided for them in the body of the Lease.
J
SECTION I. DELIVERY OF PREMISES BY LANDLORD
DESCRIPTION OF LANDLORD'S WORK: Landlord shall complete only the items hereinafter
detailed as to the premises,unless as otherwise completed as referred to above.
A. LANDLORD WORK. The term "Landlord Work"shall mean the completion by Landlord,
at Landlord's sole cost and expense, of all work necessary to construct the Premises in accordance with
(A) the Landlord Plans defined as the Core and Shell Package dated June 30, 2014 by Holland Basham
Architects and(B)the terms of this Exhibit"D"of the Lease.
1. Except as may be otherwise specifically set forth in this Lease, Tenant shall take the
Premises in an"as is" condition and all work to be performed at the Premises shall be
performed by Tenant at Tenant's expense.
2. Landlord does not warrant any information Landlord may have furnished or will furnish
Tenant regarding the Premises. It shall be Tenant's responsibility to verify existing field
conditions of the Premises. Tenant's failure to verify the existing conditions of the _
Premises shall not relieve Tenant of any expenses or responsibilities resulting from such
failure, nor shall Landlord have any liability or obligations to Tenant arising from such
failure.
3. Landlord has provided or will provide the following at Landlord's expense:
(a) A basic structure for the Premises, of Type IA construction, 2006 IBC, including the
following:
(i) unfinished and uninsulated exterior walls;
(ii) roof structure,and roof or structured floor above;
(b) Storefronts and Doors: One exterior entrance at the front ("storefront"), one interior
door at the rear("back of house"), and one set of double doors on the east side of the
Premises to provide access to the outdoor patio space available to the Premises
("outdoor patio"), per Landlord specifications. Storefront door shall be clear anodized
aluminum, ADA compliant with double door storefront doors (minimum 36" width
each),to be located on main entry storefront per Landlord Plans; facade and full height
glazing to twelve feet (12') as indicated on Landlord Plans. The storefront glass
assembly shall be tempered safety glass, where required by code. All rear exit doors
shall be installed per the Landlord Plans and shall provide an emergency exit(s) to
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satisfy local fire codes. Such exit door(s)shall include hardware and weatherproofing
(c) Demising Walls: Demising Walls shall be of metal stud construction and shall extend to
the structure with gypsum board. Wall assembly to provide an insulation rating of R-13
(minimum)or as required by code(whichever is greater). Gypsum board shall be taped,
sanded and ready for Tenant's finish covering to twelve (12) feet above finished floor,
fire taped only from twelve(12)feet above finished floor to deck above.
The following are types of demising walls:
(i) demising walls which separate the Premises from adjacent spaces,
which shall be metal stud framing from floor to deck above;
(ii) demising walls which separate the Premises from service corridors, or common
areas,which shall be metal stud framing from floor to deck above,with one layer
gypsum board installed on the corridor or common side of the wall by Landlord;
and
(iii)demising walls which separate the Premises from egress routes and/or fire-rated
shaft-walls,which shall be metal stud with gypsum board walls or other similar
fire-rated wall construction installed on both (Landlord and Tenant) sides of the
wall. Concrete masonry walls or other cast-in-place concrete at egress routes
and/or fire-rated shafts will not have framing or drywall by Landlord.
(d) Clear Ceiling Height: Clear Ceiling Height within Tenant's Premises shall be a
minimum of fourteen(14)feet from the finished floor to the bottom of structure.
• (e) Floors: Landlord shall provide a concrete slab floor in conformance with Landlord's
structural requirements. It is understood and agreed by Landlord and Tenant that
Landlord's installation of the structural floor shall occur after the Actual Delivery Date
and shall be completed in conjunction with Tenant's Work. Tenant acknowledges that •
Landlord has installed grade beam footings for a structural slab.
(f) Water Service: Landlord will provide water service per the Landlord Plans with a 3"
cold water main with a 2" branch take off from the 3" main with an isolation valve.
Water pressure will be between 130 and 145 psi. Water service to building is metered
through a master water meter. Water/sewer utility fees will be charged to Tenant per
the Lease Agreement All additional water distribution throughout the Premises shall be
borne by Tenant. Landlord will provide a separate supply line to sprinkler system as
required by code.
(g) Gas Service: Gas piping has been provided to allow individual gas metering to the
Premises. A 1" gas service line is distributed from an outdoor manifold and a t" line is
routed to Premises and capped. A gas meter at manifold can be added as required by
tenant space gas requirements. Building service pressure is 2 psi. The gas distribution
and building service size was based on each lower level tenant requiring 1500 cfh of gas
. load.
(h) Sanitary Sewer: A 4" underfloor sanitary main along with a 4" vent main shall be
provided to the Premises to facilitate connection to the Restroom fixtures. Any additional
sewer extension throughout the Premises shall be the responsibility of the Tenant.
(i) Electrical Service: Landlord will provide separately metered electrical service
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including 1 -277/480 volt,3 phase,4 wire,42 pole, 200 amp main breaker panel, I -45
kVA dry type step down transforiner,and 1 - 120/208 volt,3 phase,4 wire,42 pole, 150
amp main breaker panel. It is understood and'agreed by Landlord and Tenant that
Landlord's installation of the electrical service may occur after the Actual Delivery Date
and shall be completed in conjunction with Tenant's Work.
(j) Heating, Ventilation and Air-Conditioning System: Chilled water and heating hot
water will be available for the tenant's use at the capacity of 300 sq.ft./ton of cooling
and 45 Btuh/sq.ft of heating. Chilled water will be delivered(on peak design days)at
44°F(at chiller)and the system shall be designed for a 12°F+delta T(56°F return temp).
Heating hot water will be delivered (on peak design days) of 180°F and shall be
designed for a 30°F+T. Landlord shall install for air handling unit system. Tenant shall
be responsible for ductwork, exhaust, controls (extension of the building system),
piping, insulation, etc. Chilled water Will not be available in winter months. Heating
hot water may not be available in summer months. Additional capacity requirements
above the indicated.capacity shall be supplemented by the tenant. Outdoor air louvers
along the perimeter of building shall be used for outdoor air intake and exhaust
discharge. Coordination of exhaust discharge shall be made with overall building design
to ensure recirculation of exhaust into intakes does not happen. It is understood and
agreed by Landlord and Tenant that Landlord's installation of the HVAC system floor
may occur after the Actual Delivery Date and Shall be completed in conjunction with
Tenant's Work.
(k) Sprinkler System: Landlord willprovide a fire sprinkler main (upright endants The
P � Y P � pendants).
tenant 'shall be responsible for modifying the existing piping and sprinkler heads to
.accommodate their space layout.
(I) Fire.Alarm: Landlord shall furnish a central building fire alarm system with addressable
detection loops and notification loops Within the Premises for connection by Tenant_
furnished within the Premises as required by
Code.
(m)Grease Sanitary Line & Common Grease Interceptor: A 4" common grease line
connected to a common grease interceptor shall be provided to the Premises to facilitate
connection to Tenant's equipnent. Any additional grease line extension throughout the
Premises shall be the responsibility of the Tenant. A 4" grease vent is also routed
overhead.
(n) Kitchen Hood Grease Exhaust: For Tenant as a restaurant tenant, the Landlord shall
provide welded steel grease duct capped at the Tenant's space and routed up through a
chase to the roof. The grease duct shall be capped at the roof. If Tenant is a restaurant
tenant,Tenant shall connect to the Landlord provided grease duct at the Premises and at
the roof, and locate rooftop equipment per Landlord's direction. Tenant shall use
Landlord's roofing contractor. Tenant shall not make any alterations to the roof/vent
system without written Landlord approval. Landlord requires Tenant to comply with all
Building roofing and mechanical specifications that are necessary to maintain all
warranties.
(o) Tele/Com: Landlord shall furnish a designated connection point on a tele/com
distribution backboard located in the Landlord's electrical room located on the first floor.
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The Landlord shall install an empty conduit from the Landlord's electrical room to a
point within the Premises for Tenant's tele/com service.
(p) The following is a summary of the work that may be performed by Landlord and
Landlord's Contractor(s) at Tenant's expense. Tenant's architect shall include in the
Working Drawings all relevant scope completion terms and conditions that are included
in the Lease and in this document(including a note in the Working Drawings referring to
the Lease or this document shall not suffice). For all work that is to be completed by
Landlord, Tenant shall require that Bidders nonetheless include bid amounts for that
scope as a separate line item.
(i) Trash Disposal(During Construction)
(ii) Roof Penetrations and duct risers through upper floors
• (iii)Fire suppression system(Sprinklers)
(iv)Coring and Cutting Floors
(v) Plumbing Tie-In's when located outside of demised premises
(vi)Fire Alarm System Connections
SECTION II, TENANT'S WORK
"Tenant's Work" shall mean any work performed by Tenant, whether Tenant's Initial Work or work
subsequent thereto.
"Tenant's Initial Work" shall mean work performed by Tenant prior to opening for business in the
Premises.
Tenant shall complete all work not specifically included in Landlord's Work including,but not limited to,
the work hereinafter detailed, as to the Premises at Tenant's sole expense (subject the Tenant
Improvement Allowance). Tenant's general contractor and all of the subcontractors must be approved by
Landlord.
PART ONE. General Criteria for Tenant's Work
A. Tenant shall construct improvements in the Premises'as provided in this Exhibit and in as provided
in other relevant provisions of the Lease. In the event of any conflict between the provisions of this
Exhibit and other provisions of this Lease,the provisions of this Exhibit shalt control.
B. Tenant shall perform Tenant's Work in accordance with all applicable laws including,without
limitation,the building, fire and life safety codes of the jurisdiction of the City of Omaha and all
requirements of the Americans with Disabilities Act.
C. Tenant shall prepare its Drawings for its Work in accordance with this Exhibit and Tenant's Design
Concepts.
D. Tenant's Initial Work and,except to the extent as may be specifically otherwise provided in this
Lease,all subsequent work in the Premises which Tenant may wish to perform,shall be subject to
the advance written approval by Landlord,which shall not be unreasonably withheld,conditioned or
delayed.
E. Tenant shall,prior to commencement of Tenant's Work,obtain all required building and other
permits at Tenant's expense and post said permits at the Premises as required.
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F. The loads imposed by Work at the Premises(including dead and live loads)shall not exceed the
allowable load capacity of the existing structural systems and components thereof. Suspension or
anchoring to the upper floor deck above shall be limited to ceilings,conduit,and piping,with a
maximum 3/4 inch anchor penetration into the concrete deck above. All other loads shall be
supported by the Tenant's floor or by means approved by the Landlord's design engineer.
G. Tenant shall use only new materials for Tenant's Work, including all improvements,equipment,
trade fixtures and all mechanical,plumbing and electrical systems and components.
H. Tenant shall make no marks or penetrations into the roof,upper floor decks,exterior walls,or floors,
unless approved in writing by Landlord in advance.
I. If any Tenant's Work to connect to Landlord's utilities requires access through the premises of any
other tenant or otherwise will affect any other tenant and Landlord has approved such work,Tenant
shall be responsible for coordinating such Tenant's Work with such other tenant,restoring said
tenant's premises to its original condition following the Tenant's Work,and compensating said other
tenant for any costs incurred by it on account of such Tenant's Work.
J. If any of Tenant's Work necessitates any special work outside the Premises,such as,but not limited
to,increasing the size of electric conduit or adding or relocating water service or sanitary service,
Landlord,at Landlord's election,may perform such work and Tenant shall reimburse Landlord the
cost thereof plus 10%thereof for administration,or require Tenant perform the work at Tenant's
cost.
K. Tenant shall retain Landlord's identification signs or,at Tenant's cost,provide new signs for
Landlord's utilities,valves,and other such devices in the Premises.
L. Landlord may at its election require any aspect of Tenant's Work to be tested,and Tenant shall
cooperate with any such testing procedure.
M. No approval from Landlord with respect to any aspect of Tenant's Work shall be valid unless in
writing.
PART TWO. Certain Specific Criteria for Tenant's Work
A. Walls;Partitions:Doors;Floors
1. All exterior walls shall be finished with metal stud furring,R-19 thermal insulation,vapor
retarder and gypsum board.All gypsum wall board at demising walls and exterior walls must
be carried to the underside of the structure and sealed top and bottom to maintain a one(1)
hour fire rating.Any penetrations through the rated wall must be properly sealed to meet all
codes and to insure that the fire rating of the wall is maintained.No penetrations through
walls,ceilings,and floors will be permitted without Landlord's prior approval.
Premises metal stud construction,and shall
2. All partitions within the interior of the P ses shall be of a
extend to the structure with gypsum board to the ceiling(except if required as a rated wall in
which case the gypsum board shall extend to the structure),and shall have gypsum board
finish on all sides with taped and sanded joints.Any combustible materials applied to
partitions shall be covered with a fire retardant coating.Perimeter demising and common area
wall shall be acoustic insulated,and gypsum board full height and sealed to structure to
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ensure separate atmosphere from adjacent spaces,vapor retarder will be provided at food
service tenants.
3. Tenant shall install and finish gypsum board from floor to deck above on the Premises side of'
all demising walls where such walls have metal stud framing provided by the Landlord.
4. Tenant shall maintain all structural fireproofing to comply with the fire rating requirements.
5. Commercial grade finish hardware,labeled where required,shall be used throughout.
6. Tenant shall install appropriate waterproofing material to make the Premises water-tight,and
shall properly maintain said material during the Term.If any part of the floor of the Premises
may be exposed to liquids,either accidentally or for cleaning purposes,Tenant shall provide
adequate waterproofing protection beneath its finished flooring.Tenant shall sleeve,fire stop,
flash and caulk all penetrations of floors so that odors or liquids will not penetrate the slab at
openings.
7. Tenant shall not use flooring,tile or adhesives at the Premises containing asbestos or similar
material.
8. If Tenant has a door leading to the exterior or a service corridor,Tenant shall install on the
door an identification sign setting forth Tenant's name and address number.
B. Ceilings
1. Ceilings shall be non-combustible construction,and shall be gypsum board or acoustical tile,
which such tile shall be the regular edge type with regressed metal grid lay-in type
incorporating a 2' x 2' acoustical tile. 2' x 4' grid systems shall be permitted only in stock
areas not visible to the public. Other ornamental or acoustical tile ceilings may be permitted
only if Landlord shall so approve in writing.
2. Ceilings shall be of the accessible type, or access panels shall be provided as required by
Landlord.
3. Furring, framing, and blocking above ceiling shall be of non-combustible materials meeting
codes.
4. No wood(even if fire treated)or any other combustible material shall be permitted above the
ceiling.
C. Structural
1. Without limitation, any alterations, additions or reinforcements to Landlord's structure,
piping, conduit or duct work to accommodate Tenant's Work, or any work that may
otherwise affect Landlord's structure, including mezzanines, shall not be performed without
in each instance the prior written approval of Landlord.
2. Upon completion of Tenant's Work, Tenant shall leave Landlord's structure as strong or
stronger than the original design and with finishes unimpaired.
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3. Tenant shall submit detailed and certified engineering documents to show any proposed work
involving Landlord's structure, and Landlord may require said documents to be reviewed by
Landlord's structural engineer at Tenant's cost.Further,Landlord may require Tenant to use,
at Tenant's cost, Landlord's structural engineer to design Tenant's structural modifications.
Landlord may also elect to require that any structural modifications proposed by Tenant be
performed by Landlord's contractor at Tenant's cost.
(a) No welding to the building structure shall be permitted.
(b) Modifications to the structured floor above the Premises or to the existing structural floor
slab within the Premises shall not be permitted without Landlord's prior written approval.
(c) Support of all mechanical equipment shall be subject to Landlord's advance written
approval. If in the Landlord's opinion structural analysis of the method of support is
necessary, Tenant shall at Tenant's expense utilize Landlord's structural engineer to
evaluate or design the support.
D. Roofs
All work affecting or pertaining to the roof, including roof penetration and installation of
structural supports, curbing and flashing on or to the roof, shall be subject to Landlord's prior
written consent and,if consented to,shall be performed only in the manner specifically approved
by Landlord. All such approved work (including repair or maintenance of such work) shall be
performed by Landlord's designated roofing contractor at Tenant's expense.
All restaurant tenants shall be required to install a roof protection system approved by the
Landlord around all cooking exhaust fan equipment on the roof to protect the roof from grease
damage.
E. Storefront •
If Tenant desires to modify or alter the storefront provided by Landlord, Tenant may do so,
provided Tenant has drawings and specifications for such modifications or alterations and
obtained Landlord's prior written consent for the work described.therein. If Tenant modifies the
storefront, Tenant's modified storefront shall be self-supporting and shall be designed and
constructed to transfer all loads to the concrete slab in the manner so indicated in the design
criteria.
F. Restroom
Tenant shall install a restroom (or restrooms) within the Premises in accordance with all
requirements of Law.
G. Mechanical
1. HVAC Equipment: Tenant shall be responsible for air handling unit system, ductwork.
exhaust,controls(extension of the building system),piping,insulation,etc.
2. Exhaust Air Configuration: The Tenant shall provide all equipment required to provide code
required exhaust for bathrooms and janitor rooms. The Tenant shall route all exhaust duct to
the Landlord provided louvers above the Premises storefront windows. If Tenant requires
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dishwasher hood exhaust, the Tenant shall provide all equipment required for dishwasher
hood exhaust. Dishwasher hood exhaust shall also be routed to the Landlord provided
louvers above the Premises storefront windows. The Tenant shall maintain all code required
intake and exhaust air clearances.
3. Kitchen Hood Grease Exhaust: If Tenant intends to use the Premises as a restaurant,Tenant
shall provide kitchen hoods,associated welded steel grease exhaust duct,and kitchen exhaust
fans. Tenant shall provide welded steel grease exhaust duct connected to the Landlord
provided welded steel grease duct. The Tenant shall provide additional welded steel grease
duct connected to Landlord provided capped grease duct at the roof,as required. The Tenant
shall provide roof mounted kitchen exhaust fans and spring vibration isolating supports. The
kitchen exhaust fan configuration,fan supports and location shall be subject to approval by
the Landlord. See the Landlord Plans for locations of the grease exhaust chases and capped
grease exhaust ducts. See the Landlord Plans for roof equipment support requirements.
4. Makeup and Ventilation Air Intake: The Tenant shall provide makeup and HVAC ventilation
air duct routed from Landlord provided louvers located above the Premises storefront
windows to the Tenant's kitchen hoods and HVAC equipment. The Tenant shall provide
code required HVAC ventilation air to the HVAC equipment. The Tenant shall be required
to maintain all code required intake and exhaust air clearances at the louvers.
H. Gas Piping
The Tenant shall provide gas piping required in the Premises downstream of the Landlord
provided service and shut off valve located in the Premises. The gas meter for the Premises shall
be provided by the Tenant. V •
Water Piping
The Tenant shalt provide water piping as required in the Premises downstream of the Landlord
provided service and shut off valve located in the Premises. If a water line is located within the
Premises that connects to an exterior hose bibb,Tenant shall provide an accessible shut off valve
no higher than six feet above finished floor in a location approved by Landlord. This shut off
valve shall be accessible during normal working hours to facilitate Fall and Spring draining,
shutoff and start-up of water flow.
J. Waste and Vent Piping
The Tenant shall provide all sanitary waste piping required within the Premises. The Tenant shall
connect to sanitary waste piping provided by the Landlord in the Premises. The Tenant shall
Prove id vent piping required within the Premises and shall connect to Landlord provided vent
piping routed overhead in the Premises.
K. Grease Sanitary
If Tenant intends to use the Premises as a restaurant, Tenant shall provide all grease sanitary
piping,required by code,within the Premises. The Tenant shall connect to grease sanitary waste
piping provided by the Landlord in the Premises. The Tenant shall provide separate grease waste
vent piping,required by code,within the Premises and shall connect to Landlord provided grease
vent piping routed overhead in the Premises.
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L. Fire Protection
The Tenant shall provide all piping, sprinkler heads, and other accessories required to provide a
fire protection system for the Premises in accordance with NFPA 13 and the authority having
jurisdiction. The Tenant shall connect to the Landlord provided fire sprinkler main located in the
Premises. Tenant shall be responsible for making all modifications,additions and revisions such
that it will be adequate for the Tenant's use and in compliance with all applicable codes and
requirements of the authority having jurisdiction.
1. Tenant's fire sprinkler contractor shall be approved by the Landlord.
2. Restaurant tenants shall provide a kitchen exhaust hood fire extinguishing system in
accordance with NFPA 17A and the authority having jurisdiction.
3. All fire sprinkler work shall be done without interrupting service to the remainder of the
building. All sprinkler work shall be coordinated with other tenants and residents of the
building.
4. All fire sprinkler work, including system design,equipment, materials, and installation shall
be in accordance with the requirements of, and be approved by the Landlord's insurance
underwriter and the authority having jurisdiction.
5. Tenant's fire sprinkler contractor shall prepare shop drawings and plans of the proposed
work, with appropriate calculations and submit them to the Landlord, Fire Marshall, and
Landlord's insurance underwriter for approval prior to commencing work. Approved shop
drawings and plans shall be filed with the Landlord prior to commencement of fire sprinkler
system construction. Upon completion of work, copies of the material and test certificates
shall be filed with the Landlord and all required agencies prior to occupancy of the Premises.
6. Should Tenant's Work or use of the Premises require a main larger than the main provided by
the Landlord,the"Tenant shall be responsible for the cost of prove•ing t e arger main to meet
its requirements.
Theintroductionq P
?. Th of stock, furniture, fixtures,equipment ment or other combustible material to the
Premises is prohibited until the fire sprinkler system is placed in service. Testing of the fire
sprinkler system as required by the Fire Marshall shall be completed before Tenant opens for
business in the Premises.
8. Landlord's insurance underwriter shall have the right to inspect the fire sprinkler system and
its component parts. The system shall,at all times,comply with the reasonable requirements
of the insurance underwriter. Any alterations, improvements, repairs, or maintenance
required by the underwriter shall be the Tenant's sole responsibility and shall be performed
promptly at Tenant's expense upon notice of the necessity for such work.
M. Tele/Comm
Tenant shall extend the empty conduit provided by Landlord to a distribution point within the
Premises for connection between the Premises and the Landlord furnished electrical room.Tenant
shall make arrangements with telephone carrier and provide all telephone system panels, outlets
and conduits within the Premises and wire to the distribution point within the Premises. All
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tele/comm. wiring within the ceiling of the Premises shall be installed to conform to applicable
requirements of the Law for a ceiling return air plenum if one exists.
N. Electrical
Electrical Systems: Tenant shall design and install a complete electrical system for the Premises
which may include but not be limited to the following
1. Tenant shall be obligated to use only the provider designated by Landlord to obtain such
electrical service.
2. Branch breakers in Tenant's electrical panel(s), conduit and branch circuits as required to
accommodate Tenant's requirements.
3. All receptacles and devices as required by Code, and as required to accommodate Tenants
requirements.
4. Lighting for illuminating the path of emergency egress as required by Code,and as required
to accommodate Tenants requirements.
5. Without limitation to any other requirements in connection with the electrical work, all
wiring shall be installed in conduit and Tenant shall balance all phases of Tenant's electrical
system upon completion of construction to meet all code requirements.
6. Fire Alarm: Tenant shall install a fire alarm system for the Premises as required by Code.
The Premises shall be connected to central building fire alarm system using the Landlord's
designated fire alarm contractor. All fire alarm wiring shall be installed in conduit.
7. Security Devices. Tenant's freestanding security devices, if any, shall not be installed or
placed in operation on the exterior of the Premises unless the size,location and design of such
security devices are shown on the Working Drawings (defined in Section III, paragraph 1)
and have specifically been approved by Landlord. Any such device installed without such
prior consent shall be subject to removal by Landlord without notice to Tenant or liability
therefor.Landlord's approval of the Working Drawings shall not be deemed as its approval of
such security devices unless such devices are specifically shown as approved on said
Working Drawings.Surface mounted raceways or conduits will not be allowed.
SECTION M. PROCEDURES AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS
A. All prints, drawing information, and other materials to be furnished by Tenant as required
hereinafter, shall be delivered to Landlord in care of Magnum Development Corp., 11550 "I"
Street, Suite 200, Omaha, NE 68137, or such different address as Landlord may designate to
Tenant from time to time.Tenant's preliminary drawings and specifications are herein referred to
as the"Preliminary Drawings"and Tenant's final drawings and specifications are herein referred
to as the"Working Drawings".The Preliminary Drawings and Working Drawings are sometimes
referred to herein as the"Drawings".
B. Tenant shall, at its sole expense, utilize the services of an architect and engineer to prepare all
Drawings. Said architect and engineer shall be registered in Nebraska. All Drawings shall be
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submitted to Landlord for approval in the form of one(1)half-size set of prints. In addition PDF
and AutoCAD files shall be submitted electronically.
C. Landlord will furnish Tenant a drawing that shows the dimensions and square footage of the
Premises(the"Lease Outline Drawing").The Lease Outline Drawing may also show the location
of certain existing base building improvements,such as utility lines:If,pursuant to the foregoing,
Tenant is supposed to receive the Lease Outline Drawing and has not received the same by the
date this Lease is fully executed, Tenant shall promptly notify Landlord and Landlord shall
furnish said item(s)to Tenant as soon as reasonably possible.
D. Tenant shall submit the Preliminary Drawings promptly,and in no event later than four(4)weeks
after receipt of the Lease Outline Drawing. The Preliminary Drawings shall show a general
rendering of the storefront modifications, interior layout, signage, and any other work Tenant
intends to perform. With the Preliminary Drawings Tenant shall submit a color rendering of
Tenant's storefront with any proposed modifications, Tenant's proposed signage, and a sample
board of the materials to be used in the interior of the Premises,if requested by Landlord.
1. The purpose of Preliminary Drawings is to secure approval of the basic parameters of the
design to enable Tenant and Tenant's architects and engineers to proceed with detailed
construction documentation. It is understood that Tenant's Preliminary Drawings will be
prepared in accordance with Tenant's Design Concepts. Although submission of additional
• information is encouraged,Preliminary Drawings shall include, at a minimum,the following
information:
(a) Key Plan showing the location of the store within the building Shell.
• Tenant e.space number and square foots
p q g
• Preliminary floor plans (1/4" = 1'-0") indicating interior design. All materials,
colors,and finishes must be identified and all Lease Lines must be accurately shown.
• Reflected ceiling plans (1/4"= 1'0") indicating ceiling materials, all ceiling heights
and dimensions,and the location(s)and type(s)of all light fixtures.
• Storefront elevation showingstorefront concept, includingstore signand any
P,
graphics, film or lettering applied to glass. Indicate all materials and finishes(1/4"=
1'-0").
• Section through storefront (full storefront height) showing construction concept,
closure, Lease Lines,materials,and finishes, if the storefront is modified by Tenant.
Indicate all dimensions for heights and depths(1/4"= 1'-0").
• Typical interior sections and elevations (1/4" = 1'-0"). Indicate all materials and
finishes.
• After review of the Preliminary Drawings by Landlord,Tenant will receive approval
or disapproval. If the store design is found to be in need of revision,the submission
documents will be returned marked "not accepted" and a complete resubmission of
the Preliminary Drawings package will be required prior to proceeding to Working
Drawings. If the design is found to be generally acceptable and in conformance with •
this Exhibit, but with minor deficiencies, the documents will be returned marked
"accepted as noted."In this case,the noted comments must be incorporated into the
Working Drawings. Incomplete drawings,either Preliminary or Working,will not be
accepted for review.
Landlord shall use reasonable efforts to send notification to Tenant that it approves or
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disapproves the Preliminary Drawings within fourteen(14)days after receipt thereof.If Landlord
disapproves, Landlord shall specify the reasons for the disapproval. If Landlord disapproves,
Tenant shall within ten(10)days after receipt of Landlord's disapproval, send Landlord revised
Preliminary Drawings addressing Landlord's comments. This procedure shall be repeated until
Landlord has approved the Preliminary Drawings. Landlord may give approval "as noted" in •
which event the changes noted by Landlord shall be deemed incorporated into the Preliminary
Drawings; provided, if Tenant notifies Landlord within five (5)days thereafter that it does not
accept said changes,then the Preliminary Drawings shall be deemed disapproved on account of •
the changes Landlord had requested.
E. Within twenty-eight (28) days after Landlord approves the Preliminary Drawings, Tenant shall
submit the Working Drawings. The Working Drawings shall include detailed final drawings for
architectural, electrical,mechanical, sprinkler and plumbing and all other work to be performed
by Tenant and shall be prepared consistent with the approved Preliminary Drawings. Landlord
shall use reasonable efforts to send notification to Tenant that it approves or disapproves of the
Working Drawings within twenty-one (21) days after receipt thereof, If Landlord disapproves, •
Landlord shall specify the reasons for the disapproval. If Landlord disapproves, Tenant shall
within fourteen(14)days after receipt of Landlord's disapproval,send Landlord revised Working
Drawings addressing Landlord's comments.This procedure shall be repeated until Landlord has
approved the Working Drawings. Landlord may give approval "as noted" in which event the
changes noted by Landlord shall be deemed incorporated into the Working Drawings;provided,if
Tenant notifies Landlord within five(5)days thereafter that it does not accept said changes, the
Working Drawings shall be deemed disapproved on account of the absence of the changes
Landlord had requested.
•
F. Working Drawings shall include,but not be limited to,the following:
1. Key plan showing location of Premises
2. Floor and fixture layout plans
3. Overall sections •
4. Reflected ceiling plans
5. i)etat s o specia con.itions encountere•
- 6. Interior elevations
7. Full sections of types of partitions
8. Door schedule with jamb details,including list of hardware
9. Storefront and interior finish color sample
10. Sprinkler,plumbing riser diagram,heating,ventilating,and cooling plans
11. Mechanical details
12. Electrical plans(circuited lighting plan and circuited power plan)
13. Electrical details,fixture schedules,diagram,and phase balanced panel board schedules
G. The approval by Landlord or Landlord's agent of any Drawings or of Tenant's Work shall not
constitute an implication, representation or certification by Landlord or Landlord's agent that
• either said Drawings or Tenant's Work is accurate, sufficient, efficient or in compliance with
insurance and indemnity requirements, or any Laws, including but not limited to code and the
Americans with Disabilities Act,the responsibility for which belongs solely to Tenant.
H. In those instances where multiple standards and requirements apply with respect to Tenant's
Work, the strictest of such standards and requirements shall control unless prohibited by
applicable Law.
Notwithstanding anything contained in this Exhibit D to the contrary, if Landlord, in its
D-12
reasonable opinion, determines that a third party engineer or consultant should review any of
Tenant's Drawings for Tenant's Work, then in such event Landlord reserves the right to charge
Tenant,and Tenant shall pay to Landlord upon demand,a Review Fee in the amount charged by
such third party consultant or engineer to review Tenant's Drawings.
SECTION IV. CONSTRUCTION
A. Tenant may not commence any Tenant's Work until this Lease has been fully executed,Landlord
has approved Tenant's Working Drawings,all required insurance certificates have been furnished
to Landlord, all building permits have been obtained, and Tenant has complied with all other
requirements herein and elsewhere in this Lease.
B. A representative of Tenant shall meet with Landlord prior to start of construction to discuss
construction-related items.Tenant's representative shall contact Landlord in advance to schedule
said meeting at a mutually satisfactory time.
C. Without limitation to any provision of this Lease,prior to commencement of any Tenant's Work
at the Premises,Tenant shall furnish Landlord the following:
1. The names,addresses,representatives and telephone numbers of Tenant's general contractor.
Additionally,Tenant shall use reasonable efforts to furnish Landlord such information for all
subcontractors("Tenant's Contractors").
2. Amounts of the general contract and each subcontract.
3. Certificates of Insurance evidencing the insurance required of Tenant and Tenant's general
contractor as provided in this Lease.
4. A copy of the building permit(s).
5. A detailed construction schedule.
6. If required by Landlord, a deposit (the "Construction Deposit") to cover damage to
Landlord's property during Tenant's construction and payment of any charges due from
Tenant. The Construction Deposit, or the balance remaining, if any, after application
pursuant to the following sentence, shall be returned to Tenant upon completion of all
Tenant's Work in accordance with the approved Working Drawings. Landlord shall have the
right to apply the Construction Deposit to pay for the repair of any damage to Landlord's
property caused by Tenant's contractors or subcontractors or the payment of any charges due
from Tenant.
D. All of Tenant's contractors shall be licensed contractors, having good labor relations, be capable
of working in harmony with Landlord's general contractor and other contractors working in the
Village. Tenant shall coordinate Tenant's Work with other construction work at the Village, if
any.Landlord specifically reserves the right to approve Tenant's contractors.If Landlord does not
give Tenant such approval with respect to any contractor(s) Tenant shall contract with another
general contractor and/or subcontractors(s), as the case may be, for the completion of Tenant's
Work.
E. In addition to the items above,Landlord may require either or both of the following:
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I. Proof in form satisfactory to Landlord of Tenant's financial ability to cause Tenant's Work to
be completed and fully paid for prior to opening for business.
2. A completion bond or an irrevocable letter of credit in Landlord's favor in the amount of the
cost of Tenant's Work which Landlord may draw upon in order to pay the Tenant's
contractors if Tenant fails to pay for any of Tenant's Work.
F. Tenant's Work shall be subject to the inspection of Landlord's representative from time to time
during the period in which the Work is being performed.
G. Tenant's general contractor shall maintain at the Premises during construction a complete set of
approved Working Drawings bearing Landlord's approval stamp.
H. Temporary Facilities.
I. If not already available in the Premises,Tenant shall provide temporary heat,air-conditioning
and ventilation for the Premises during construction if Tenant desires the same..
2. If Tenant requires water service during construction and Landlord is able to provide it,
Landlord shall do so and bill Tenant as Landlord reasonably determines, or as otherwise
provided for in this Lease.
3. Tenant shall place all trash in trash containers at a pick-up area or areas designated by
Landlord.Tenant shall be responsible for breaking down boxes.
4. Tenant shall not permit trash to accumulate within the Premises or in any common area space
such as corridors, service courts or other common areas,and Tenant shall deposit its trash in
designated trash containers at least once a day during Tenant's construction period, If Tenant
fails to dispose of trash as required above, and Landlord elects to pick up or otherwise
remove enan s ras , e c arge o enan s a •e equa o an' or. s actua costs or suc
removal(as Landlord reasonably determines),plus 15%thereof for administrative costs.
I. ' Common Areas
All space outside Tenant's demised space is common area,including fire corridors,service areas,
promenades and terraces,parking garages and loading docks.
Tenant's Contractor must keep these areas clean and damage-free,and must remove debris and/or
repair damage immediately. Tenant's Contractor must keep the common areas outside the store
clean and free of construction debris.
Notification to Tenant's Contractor by any Landlord representative of a condition to be corrected
or process to be stopped is the only, notification required, whether verbal or in writing. Such
notice must be complied with or Landlord representative has authority to stop and bar further
work or presence at the site. After verbal or written notification of any requirements to Tenant's
Contractor,Landlord will,without any further notice,proceed to clean up any debris or move any
obstructions caused by Tenant's Contractor or its subcontractors. Assessment fees, if incurred,
will be paid by Tenant's Contractor on the same day incurred or Landlord may cause Tenant's
Contractor to cease work at the site until the fee has been paid.
D-l4
Tenant's General Contractor is responsible for all acts by his subcontractors, including
assessments.
Tenant and Tenant's Contractor must check in with Landlord before erecting any scaffolding or
utilizing a mechanized man lift in Common Areas.
J. Housekeeping
I. All materials used for Tenant's Work will be maintained at all times within Tenant's leased
area. Under no circumstances will any portion of the Premises be used to store Tenant
materials or Contractor equipment. Landlord reserves the right—and fully intends—to clear
the Premises of any and all such items and charge Tenant for their removal.No storage will
be allowed in service corridors or loading dock.
2. Each Tenant's Contractor is responsible for daily removal of all construction debris and trash
from the Premises. Failure to comply will result in fines and/or expulsion of Tenant's
Contractor from property.
3. Tenant's Contractor(s) is(are)responsible to maintain adequate fire extinguishers within the
workspace to comply with all fire regulations throughout the duration of the work. No open
fires are permitted anywhere within the Building.
4. Construction Barricade:
(a) If Tenant elects to take down Landlord's provided storefront(which shall only be done
with Landlord's prior approval),Landlord may,at Landlord's election,require Tenant to
install and maintain a rough finished temporary construction barricade of minimum six
foot(6-0")height across the front of the Premises.
5. Deliveries
(a) Tenant's Contractor may not convey construction materials or debris through the
Premises between Tenant storefronts when the Premises are open for business. Delivery
of material/removal of debris must be accomplished via the rear exits,unless specifically
approved by Landlord in advance,and in writing.
(b) All visitors to the site must check in with Landlord and/or Tenant's Contractor's
representative for instructions. Workmen and visitors are to comply with all federal,state,
and local safety regulations,as well as these criteria.
(c) Except when unloading materials at the rear exits, all designated Tenant and Tenant's
Contractor vehicles must be parked in the designated parking area arranged through
Landlord.No parking will be allowed on the ground floor of the parking garage,Mercy
Road, Aksarben Drive or 67th Street. No vehicles of any type will be allowed into the
Premises. Unattended, parked vehicles in service courts or other areas will be towed at
the expense of the owner of the vehicle.No notice is required.
(d) No tools or machinery will be furnished by Landlord.Landlord is not responsible for any
tools or machinery left unattended. Tenant's Contractor will furnish and use his own
broom,mop,and buckets and all other cleanup and transport tools and equipment
D-I5
(e) All deliveries of supplies and materials to Tenant's Contractor must include the store
name and space number to facilitate delivery.
(0 Landlord will not accept or unload supplies or materials for any Tenant or Tenant's
Contractor.
K. The cost of any work permitted or required to be performed by Landlord on behalf of Tenant
under this Exhibit shall become due and payable in full within thirty(30) days after Tenant has
been invoiced for same by Landlord and said charges shall be deemed Rent under the Lease.
L. Upon completion of Tenant's Initial Work and before Tenant opens for business at the Premises,
Tenant shall submit to Landlord written proof from Landlord's insurance underwriter that the
fully installed sprinkler system was approved by such underwriter, and Tenant shall submit to
Landlord and Landlord's insurance underwriter copies of all material and test certificates.
M. All work performed by Tenant during its construction period,or otherwise during the Term,shall
be performed so as to cause the least possible interference with other tenants,and the Landlord's
construction activities or operation of the property, and Landlord shall have the right to impose
reasonable requirements with respect to timing and performance of the Work in order to minimize
such interference. Work causing noise,odor or vibration outside the Premises shall be performed
only during hours approved in advance by Landlord. Tenant shall take all precautionary steps to
protect its facilities and the facilities of others affected by the Work and shall police same
properly. Construction equipment and materials are to be located in confined areas and truck
traffic is to be routed to and from the site as directed by Landlord so as not to burden the
construction or operation of the Village. All Work shall be confined to the Premises. Tenant's
Contractor shall coordinate with Landlord's on-site representative for the delivery and removal of
its equipment and materials. Landlord shall have the right to order Tenant or any Tenant's
contractor or subcontractor who willfully.violates the above requirements to cease work and to
remove its equipment and employees from the building. Tenant's Work shall be properly
supervised by a qualified construction superintendent at all times when worki being pe orme•
at the Premises.
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EXHIBIT"E"
SIGN CRITERIA
Landlord has established the following sign criteria to assure a quality retail/office building
and will require any non-conforming signs to be brought into conformance at Tenant's cost.
1. General Requirements
A. Tenant shall submit to Landlord for written approval before fabrication
a digital pdf file and/or at least two (2) copies of detailed drawings,
indicating the location, size, layout, design, materials, and color of the
proposed sign,including all lettering and/or graphics.
B. Tenant shall obtain and pay for all permits, approvals, installation, and
maintenance.
C. Tenant shall be responsible for the fulfillment of all requirements of
these sign criteria.
D. Tenant shall be fully responsible for the conduct and operations of its
sign contractor. In addition,prior to commencement of any work at the
Premises, Tenant will obtain from its si'.n contractor and fu is
Landlord certificates of insurance covering such sign specified by
Landlord,including,but not limited to,completed products coverage.
E. All signs will be reviewed by the Landlord for conformance with this
criteria and overall design quality. Approval or disapproval of sign
submittal based on aesthetics or design shall remain the sole right of the
Landlord.
F. All signs and their installation shall comply with all local building and
electrical codes.
G. Within fourteen (14) calendar days of the termination of this Lease,
Tenant shall have all Tenant's signage removed by a sign company
(approved by Landlord). If signage is not removed within fourteen(14)
days, Landlord reserves the right to have signage removed at Tenant's
expense. Tenant shall be responsible for the repair of any damage to the
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building caused by the removal of Tenant's signage.
H. Each Tenant who has a non-customer door for receiving merchandise
may have, as approved by Landlord, uniformly applied on said door in
location as directed by Landlord in 2" high letters, the Tenant's name
and address. Where more than one Tenant uses the same door, each
•name and address shall be applied.
I. All signs shall be constructed and installed, including electrical hook-
up, at Tenant's expense. Tenant shall cause its sign to be installed no
later than thirty(30)days after Tenant opens for business.
J. Landlord shall have and hereby reserves at any time during the Term of
this Lease the right to designate and to change the signage of the
Building.
K. All interior or exterior signs, posters, advertising, graphic designs,
decals, paintings, window coverings, etc. must be approved by
Landlord. Tenant must remove anything in the windows that has not be
approved by Landlord within 7 days of receiving notice from Landlord
or Tenant will be in default of the Lease. Tenant shall provide signs
prior to lease signing for Landlord approval.
2. Location and Placement Requirements
A. Signs on the exterior of the Building shall be located within the sign
areas designated and approved by the Landlord.
B. No signs perpendicular to the face of the Building will be permitted
without prior written approval of the Landlord.
3. Design Requirements
A. All cabinets,conductors, transformers and other equipment shall be concealed in
location specified by Landlord.
B. All channel letters minimum height is 12"with maximum height of 24".
C. Materials:
1. All signs shall have individual channel letters installed on a raceway.
E-2
2. . The raceway must match the fascia and/or metal awning,and shall not
exceed 8"x 8".
3. All signs shall be entirely illuminated.
4. All signs must be UL approved.
5. Width of Tenant sign shall not exceed(66%)of width of store or awning
and shall be centered within the Tenant's space or awning.
6. No exposed lamps,transformers,tubing,raceways,conductors,conduit
will be permitted.
7. No audible,flashing,or animated signs will be permitted.
8. No exposed fastening shall be permitted.
9. No labels will be permitted on exposed surface of sign except those
required by local ordinance,and those shall be placed in an inconspicuous
location.
4. Construction Requirements
A. All signs, bolts, fastenings and clips shall be of a non-corrosive metal or
equivalent approved by Landlord.
R J ocation_of_alL_openings-fur. conduit-in-sign-panels-af-Building—walls
and/or metal awnings shall be indicated by the sign contractor on
drawings submitted to the Landlord.
C. All penetration of the building structure required for sign installation
shall be sealed in a watertight condition and shall be patched to match
the adjacent finish.
D. No labels will be permitted on the exposed surface of signs except those
required by the Requirements which shall be applied in an
inconspicuous location.
E. Tenant will repair or cause its sign contractor to repair any damage to the
Building caused by the installation of Tenant's signs.
F. Electrical service and hook-up to all signs shall be from Tenant's meter
at Tenant's expense. •
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•
EXHIBIT F
PERSONAL GUARANTY
CONTINUING(INDIVIDUAL)LEASE GUARANTY
In consideration of ZONE 5 OFFICE, LLC, a Nebraska limited liability company
("Landlord") entering into a lease (the "Lease") dated the same as hereinbelow, with Gold
Mountain, LLC, a Nebraska limited liability company ("Tenant") for the premises commonly
described as Suite 102B,containing approximately 2.656 square feet of floor area in Pacific Life
Building, located in Omaha, Nebraska and more particularly described in the Lease (the
"Premises"), the undersigned (and if more than one signatory, each jointly and severally)
(collectively, the"Guarantor")hereby unconditionally guarantee(s) the full and prompt payment
of rent and all other sums required to be paid by Tenant under the Lease for a period of three(3)
years after the Rent Commencement Date ("Guaranteed Payments"), and the Guarantor hereby
unconditionally guarantees the full and complete performance of all other provisions and
obligations of Tenant under the Lease for a period of three (3) years after the Rent
Commencement Date ("Guaranteed Obligations"),and the Guarantor further promises to pay all
of Landlord's costs and expenses (including reasonable attorneys' fees) incurred in endeavoring
to collect the Guaranteed Payments, to enforce the Guaranteed Obligations or incurred in
enforcing this Guaranty as well as all damages which Landlord may suffer in consequence of any
default or breach occurring during a period of three(3)years after the Rent Commencement Date
under the Lease or this Guaranty.
1. Landlord may,at any time and from time to time,without notice to the Guarantor,
take any or all of the following actions without affecting or impairing the liability and obligations of
the Guarantor under this Guaranty:
A. Grant an extension or extensions of time of payment of any Guaranteed
Payments or time for performance of any Guaranteed Obligations;
B. Grant an indulgence or indulgences in any Guaranteed Payments or in the
performance of any Guaranteed Obligations;
C. Modify or amend the Lease or any term thereof,or any obligations of Tenant
arising thereunder;
D. Consent to any assignment(s),sublease(s)or transfer(s)and successive
assignment(s),sublease(s)or transfer(s)by Tenant or the Tenant's assigns or sublessees or
transferees or a change(s)or different use(s)of the Premises;
E. Consent to any extension(s)of the Term of the Lease;
F. Accept other guarantors;and/or
•
G. Release any person(s)primarily or secondarily liable. "
F-1
The liability of the Guarantor under this Guaranty shall in no way be affected or impaired by
any failure or delay in enforcing any Guaranteed Payments or Guaranteed Obligations or this
Guaranty or any security therefor in exercising any right or power in respect thereto,or by any
compromise,waiver,settlement,changes,subordination,modification or disposition of any
Guaranteed Payments or Guaranteed Obligations or of any security therefor. In order to hold the
Guarantor liable hereunder,there shall be no obligation on the part of the Landlord,at any time,to
resort for payment to Tenant or any other guaranty or to any security or other rights and remedies,
and Landlord shall have the right to enforce this Guaranty irrespective of whether or not other
proceedings or steps are pending or being taken seeking resort to or realization upon or from any of
the foregoing.
2. The Guarantor waives all diligence in collection or in protection of any security,
presentment,protest,demand,notice of dishonor or default,notice of acceptance of this Guaranty,
i taken in reliance hereon and all de
mands and
notice of any extensions granted or other actions
with this Guarantyor anyGuaranteed Payments or Guaranteed
notices of any kind in connection Y
Obligations.
3. The Guarantor hereby acknowledges full and complete notice and knowledge of all
of the terms,conditions,covenants,obligations and agreements of the Lease.
4. The payment by the Guarantor'of any amount pursuant to this Guaranty shall not in
any way entitle the Guarantor to any right,title or interest(whether by subrogation or otherwise)of
the Tenant under the Lease or to any security being held for any Guaranteed Payments or
Guaranteed Obligations.
5. This Guaranty shall be continuing,absolute and unconditional and remain in full
fore-and-effect-until-all-Guaranteed-Payments-are-made,-all-Gliaranteed-Obligations-are-performed,
and all obligations of the Guarantor under this Guaranty are fulfilled.
6. This Guaranty shall also bind the successors and assigns of the Guarantor and inure
to the benefit of Landlord,its successors and assigns. This Guaranty shall be construed according to
the laws of Nebraska,in which state it shall be performed by the Guarantor.
7. If this Guaranty is executed by more than one person,all singular nouns and verbs
herein relating to the Guarantor shall include the plural number and the obligations of the several
Guarantors shall be joint and several. IF NO SIGNATURE FOR A SPOUSE APPEARS BELOW
FOR ANY INDIVIDUAL GUARANTOR,THEN SUCH GUARANTOR REPRESENTS AND
WARRANTS THAT HE/SHE IS AN UNMARRIED PERSON.
8. The Landlord and the Guarantor intend and believe that each provision of this
Guaranty comports with all applicable law. However,if any provision of this Guaranty is found by
a court to be invalid for any reason,the parties intend that the remainder of this Guaranty shall
continue in full force and effect and the invalid provision shall be construed as if it were not
contained herein.
F-2
•
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF,the undersigned have executed this Guaranty this 1st day
of May ,2016.
GUARANTOR:
Xiao Ouan Zheng
Address: 15505 Ruggles Street,Ste 105
Omaha,NE 68116
Social Security No.: 101-68-8512
Phone: 402-496-1688
F-3
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•
EXHIBIT G
LEASE RIDER
•
This Exhibit is made and entered into contemporaneously with the Lease,by and between
ZONE 5 OFFICE,LLC, a Nebraska limited liability company("Landlord")and Gold Mountain, .
LLC,a Nebraska limited liability company("Tenant"). This Exhibit shall constitute an integral
• part of the Lease. In-the event of any inconsistency between the terms and provisions of this
Exhibit and the other terms and provisions of the Lease,the terms and provisions of this Exhibit
shall be controlling for all purposes and in all respects.
•
1. Exclusive.
(a) During the tenn of this Lease, Landlord shall not permit any portion of the Building
to be used by a Competing Business. A "Competing Business" shall mean a
Chinese restaurant or any Asian style restaurant where DimSum is a major part of
the menu. ' •
(b) If a Competing Business shall operate for business with Landlord's consent iri the
Building at any time during the Lease Term, and shall continue to operate after
sixty (60) days written notice from Tenant to Landlord, Tenant shall have all
. remedies available at law or in equity.
(c) A Competing Business shall be considered to be operating with Landlord's consent
only if: (1) Landlord after the date of this Lease entered into a lease or other
• occupancy agreement with the tenant in question expressly permitting it to engage
in the Competing Business.(excluding extensions or renewals of existing leases or
occupancy agreements signed with a tenant or occupant,or any replacement of such
- __ - --tenant-or occupant);-or (2)-1:andlords consent Ts-require-0-for any change to a
tenant's permitted use and Landlord can withhold consent without being required to
be reasonable, and Landlord consents, after the date of this Lease,to change such
use to permit such tenant to be a Competing Business. A Competing Business shall
not be considered to be operating with Landlord's consent if the Competing
Business has been permitted to assume a lease or operate its business based upon ot
as a result of a bankruptcy, insolvency, or similar action or if the Competing
Business has been permitted to operate as the result of an action or order by a court.
(d) Notwithstanding anything herein to the contrary, Tenant shall not be entitled to the
remedy set forth in this provision if Tenant shall have ceased to operate a Chinese
restaurant in the Premises of which at least seventy percent (70%) of the menu
items are Chinese foods, or if Tenant is in default under this Lease, or if Tenant
shall have sublet this Lease at any time (except for any permitted subletting as
provided in Section 13.1 of this Lease).
• (e) Notwithstanding anything foregoing to the contrary, in no event shall a parent, •
• subsidiary or affrliate,of Tenant, or any operation in any other building on Zone 5
be deemed to be a"Competing Business"under this provision.
•
G-I
•
2. Outside Seating Area. Tenant shall have the right to utilize an area outside of the
Premises for an outdoor seating area ("Outside Seating Area"), The exact configuration of the
Outside Seating Area shall be approved by Landlord prior to installation of any personal property.
Any improvements to the Outside Seating Area, including fencing, shall be subject to Landlord's
written consent and shall be completed by Tenant at its sole cost and expense. Such Outside
Seating Area shall be considered a part of the Premises for all purposes in this Lease except that the
square footage of such area shall not be included in the square footage of the Premises for purposes
of determining Base Rent or Additional Rent. Tenant's responsibilities with respect to the Outside
Seating Area shall include but not be limited to: (a) cleaning and maintaining such area in a first
class condition; (b)maintaining any personal property located in such area in a first class condition,
including fencing; (c) maintaining personal property and liability insurance on such area in
accordance with the provisions of this Lease. All other terms and provisions of this Lease with
respect to the Premises shall extend to the Outside Seating Area.
3. Tenant Improvement Allowance. In consideration of the performance by Tenant
of Tenant's Work in the Premises and the timely fulfillment of all of the terms of this Lease,
Landlord agrees to pay the Tenant Improvement Allowance to Tenant in the amount of$30.00
per useable square foot.
The Tenant Improvement Allowance shall be applicable only to the"hard costs"and"soft costs"
expended by Tenant to complete Tenant's Work. For this purpose, "hard costs"shall mean only
the cost of labor and materials incorporated into the Premises as permanent leasehold
improvements, and"soft costs"shall mean design/architectural/engineering fees,permits,bonds,
excise taxes or license fees, but shall not include the cost of any personal property of
Tenant. Notwithstanding the foregoing, Landlord may, in its reasonable discretion, issue joint
--checks_to_TenanLand its general-contractor-and/or-any-ofits-subcontractors;-materialmen-or
suppliers for any portion of the Tenant Improvement Allowance. The Tenant Improvement
Allowance shall be applicable only to Tenant's Work actually performed and completed to the
Premises and shall be paid as follows:
The first installment of the Tenant Improvement Allowance will be paid within fifteen(15) days
after Landlord's receipt of(i) a written certificate from Tenant's project manager certifying that
Tenant's Work is fifty percent (50%) complete, (ii) Landlord's receipt of copies of all paid
invoices for such Tenant Work evidencing the total amount actually expended by Tenant in
connection therewith, and (iii) Landlord's receipt of releases of all liens and notices of liens
and/or affidavits from all contractors and other parties performing labor or supplying materials or •
services in connection with Tenant's Work through the date thereof.
The second and final installment of the Tenant Improvement Allowance shall be paid within
fifteen(15)days after the last to occur of the following:
(1) Opened. Tenant has opened for business in the Premises as required by this Lease and has
paid to Landlord the first and any subsequently owed Base Rent and any additional rent due
under the Lease;and
G-2
(2) No Default.No Event of Default exists;and
(3) Work Completed. Tenant's Work is completed in accordance with the approved
construction documents;and
(4) Debris. The Premises and the Common Areas surrounding the Premises are free of Tenant's
debris, all contractor equipment and materials have been removed from the Premises, and
any damage to the Building or the Common Areas caused by Tenant, its agents or
contractors,has been repaired;and
(5) Liens,Judgments,Levies, or Tax Liens. The Premises, including all installations therein,
are free and clear of all Liens relating to Tenant's Work;and
(6) Required Documentation.Tenant has submitted the following completed documentation to
Landlord:
La Lien Waivers Invoices. Full, final and unconditional lien waivers and releases, as
well as copies of applicable invoices, in favor of Landlord,Landlord's mortgagee, any
proposed purchaser,or any other person/entity reasonably requested by Landlord, from
Tenant's general contractor and from al.l Tenant's subcontractors having contracts in
excess of$5,000.00;and'
WI Certificates. A copy of the permanent Certificate of Occupancy and any temporary
Certificates of Occupancy;and
fijil Contractor's Final Billing. A copy of the final billing from Tenant's general
contractor (broken down in reasonable detail and showing the cost of work performed
at the Premises adequate to componentized for tax purposes under either generally
accepted accounting principles or Internal Revenue guidelines);and
iv . Architect Certificate. Tenant's architect's certificate certifying that Tenant's Work is
completed in accordance with the approved construction documents,including all items
on Landlord's representative's punch list.
Warranties. Tenant will provide Landlord with copies of all warranties or guarantees
on Tenantsupplied-equipment.-including-H\1A T andlord shall-require-guarant-_ .
the work is free from any and all latent defects in workmanship and materials for one
year from the date of substantial completion.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
G-3
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(2)No Default.No Event of Default exists;and
(3) Work Completed. Tenant's Work is completed in accordance with the approved
construction documents;and
(4) Debris. The Premises and the Common Areas surrounding the Premises are free of Tenant's
debris, all contractor equipment and materials have been removed from the Premises, and
any damage to the Building or the Common Areas caused by Tenant, its agents or
•
contractors,has been repaired;and
(5) Liens, Judgments, Levies, or Tax Liens. The Premises, including all installations therein,
are free and clear of all Liens relating to Tenant's Work;and
(6) Required Documentation.Tenant has submitted the following completed documentation to
Landlord:
•
Q Lien Waivers; Invoices. Full, final and unconditional lien waivers and releases, as
well as copies of applicable invoices, in favor of Landlord, Landlord's mortgagee, any
proposed purchaser,or any other person/entity reasonably requested by Landlord, from
Tenant's general contractor and from all Tenant's subcontractors having contracts in
excess of$5,000.00;and'
ii Certificates. A copy of the permanent Certificate of Occupancy and any temporary
Certificates of Occupancy;and
iii Contractor's Final Billing. A copy of the final billing from Tenant's general
contractor (broken down in reasonable detail and showing the cost of work performed
at the Premises adequate to componentized for tax purposes under either generally
accepted accounting principles or Internal Revenue guidelines);and
ail Architect Certificate. Tenant's architect's certificate certifying that Tenant's Work is.
completed in accordance with the approved construction documents,including all items
on Landlord's representative's punch list.
Lvl Warranties. Tenant will provide Landlord with copies of all warranties or guarantees
onTenantsupplied-equipmentancluding-I -V-AG,—Landlord-shall-require-guarantees-that
the work is free from any and all latent defects in workmanship and materials for one
year from the date of substantial completion.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
•
•
•
G-3
Except as hereinbefore specifically amended,all the provisions of said Lease referred to
hereinabove shall remain in full force and effect.
LANDLORD: ZONE 5 OFFICE,LLC,
a Nebraska limited liability company
By:
Name: John Hughes,Jr.
Title: Manager
By:
Name: Pat McNeil
Title: Manager
TENANT: Gold Mountain,LLC,
a Nebraska limited liability company
•
By: `�;✓�--�' _
Name: Xiao Quan Zheng
Title: Manager
G-5
1
EXHIBIT H
TENANT'S DESIGN CONCEPTS
This Exhibit is attached to and forms a part of that certain Office Building Retail Lease
("Lease")dated May 1 , 2016, by and between ZONE 5
OFFICE, LLC, a Nebraska limited liability company ("Landlord") and Gold Mountain. LLC, a
Nebraska limited liability company,("Tenant"). All terms used in this Exhibit but not defined in
this Exhibit shall have the meanings provided for them in the body of the Lease.
1. Landlord and Tenant agree that the Gold Mountain New Location Preliminary Design
Concept pages attached to this Exhibit H(the"Tenant's Design Concepts") are attached
to the Lease for purposes of assuring that Tenant design and construct a restaurant
substantially similar in class and design as is shown on the attached pictures.
2. Landlord and Tenant agree that all plans and specifications are subject to Landlord's
prior written approval.
3. Landlord and Tenant agree that the dining area of the restaurant will be designed with
an open concept seating with either natural butcher block wood table tops or
marble/granite table tops. Seating shall consist of high quality wooden chairs.
4. Landlord and Tenant agree that the patio will be designed with either an iron fence,or a
wooden fence substantially similar to those shown on the attached photos. Exterior
tables will be gray marble or granite table tops, and seating will consist of high quality
brown wicker chairs. •
5. It is understood and agreed that any changes to the Tenant's Design Concepts set forth
in the attached photographs may only be made upon the mutual agreement of the
parties, based on Tenant showing that the proposed change(s) will not materially
diminish the level of quality of the relevant feature or design
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
H-t
Except as hereinbefore specifically amended,all the provisions of said Lease referred to
hereinabove shall remain in full force and effect.
LANDLORD: ZONE 5 OFFICE,LLC,
a Nebraska limited liability company
By:
Name: John Hughes,Jr.
Title: Manager
By:
Name: Pat McNeil
Title: Manager
TENANT: Gold Mountain,LLC,
a Nebraska limited liability company
By:
Name: Xiao Ouan Zheng
Title: Manager
H-2
•
Gold Mountain(GM)N ew location Preliminary Design Concept
•
The Chinese culture is traditionally marked with Intense hospitality and generosity.Food I sseen as a
chosen form of affection.In fact,all major celebrations Involve food as their focal point,and It Is a
celebration in Itself each and every day.To mirror this commitment to experiencing food es en emotion
end sharlrg in It graciously with others,the design of the regaurant in many ways calls back to an open
market square.While food may lie at the heart of the event,the interaction of people and the
knowledge shared are what make the comings and goings of friends and strangers alike a cherished
experience.
- • • • '," The fundamental desgn decisions made in
•
'AL I this space aredriventomakefoodan
.. . ¢• —�- • s• experience;en experience similar to that
• p s found in the comfort of one's home,
/ : gathered around the family dMertable.
Warmth and interaction are crucial,making
flexibility a driving factor in accommodating
tr' * '^"' fa Mlles,friends,and colleagues in group of
all sizes,even encouraging a joining of stranger
to stranger overthemost communal end ' •
affectionate of activities As such neutral warm •..,. `far`
colors such as tans;browns and orange will be ••
Incorporated Into the overall design.The floors
•
•
will be polish light gray concrete. ,. . ;�' :•
Moreover,as the warmer month's rolls around,It would be even more fun and festive when visitors can
sit outside on the patio adorn with pretty plants end flowers to make their dining experience more
intimatefeaturirg white and gray marble/granite tabletops and comfortable brown wicker chairs. We
.:"'-a 1}
re `
41.
g. :
.+ ' ,.air
—. .w:Kr •i:t •
1
. 'A'. � •• •
H-3
•
Zmow
are undecided on the look of the enclosing fence but we have narrow it down to the two look and feel of
the two concepts In these pictures,
rxt
"1 7. .
•
e •110
PLANNING DEPARTMENT REPORT
DATE: APRIL 17,2019 DUE DATE: MAY 9, 2019
CITY COUNCIL HEARING MAY 21,2019
LOCATION: 6750 MERCY ROAD, SUITE 102B
DESCRIPTION: REQ ADDITION OF AN OUTDOOR AREA APPROX 14' X 34' TO THE EAST
APPLICANT: GOLD MOUNTAIN,LLC,DBA "GOLD MOUNTAIN RESTAURANT"
REQUESTED LICENSE OR ACTION ADDITION TO THE PRESENT CLASS "I" LIQUOR
LICENSE LOCATION
NEW LOCATION(X)NEW OWNERSHIP () TYPE OF FACILITY: RESTAURANT/BAR
THIS REQUEST DOES(X) DOES NOT 0 PERTAIN TO AN OUTSIDE AREA
IF SIDEWALK CAFE: R-O-W-LEASE NOT REQUIRED PERMITS OBTAINED NO BLD PERMIT FOR
PATIO AREA
IF OUTSIDE: OUTSIDE AREA IS 1678 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) (Except Class D-1 Package Liquor License)
ANNEXATION DATE: ORDINANCE NO. (Only if within last 24 months)
EXISTING ZONING: MU EXITING LAND USE: RESTAURANT/BAR
ADJACENT LAND USE AND ZONING:
NORTH: 5 LEVEL PARKING GARAGE MU-FF
SOUTH: CIVIC—STINSON PARK MU-FF
EAST: VACANT LOT MU
WEST: PAPIO NRD MU-FF
PARKING STALLS PROVIDED: 1000+PARKING GARAGE/30+SHARED STREET STALLS
PROPOSED USE DOES(X) DOES NOT( )COMPLY WITH ZONING REGULATIONS
PLUMBING FIXTURES PROVIDED: WOMEN'S 2 TOILET STALLS(1 H/C)
MEN'S SINGLE USER H/C TOILET ROOM w/URINAL
DATE SUBJECT PROPERTY WAS POSTED: 08 MAY 2019
(Rule#7) DISTANCE OF PROPOSED LICENSE TO ANY SCHOOL,CHURCH,OR CITY PARK: 90'-
STINSON PARK
DISTANCE OF PROPOSED LICENSE TO ANY EXISTING LICENSE: O'-PAULI'S SPORTS
BAR
(State Law) DISTANCE OF PROPOSED LICENSE TO ANY CHURCH OK
SCHOOL OK HOSPITAL OK HOME FOR THE AGED,INDIGENT
OR VETERANS OK COLLEGE OR UNIVERSITY OK
_Ae.4 5/V79
(Authorize Signature) (Date)
0
•
•Cityof Omaha, Webraskg OMNA, N
Neqw
1819 Farnam —Suite LC 1 4( i• �¢r
Omaha, Nebraska 68183-0112 n ;W i+
Elizabeth Butler (402) 444-5550 �,o` --- s ti,
City Clerk FAX (402) 444-5263 �9 r` A
TED FEBR�P
May 7, 2019 .
•
Gold Mountain, LLC Application for addition to the present
Dba"Gold Mountain Restaurant" Class"I" Liquor License location
6750 Mercy Road, Suite 102B
Omaha,NE 68106
Dear Liquor License Applicant:
This letter is notification that a hearing before the Omaha City Council on your application for
liquor license has been set for May 21, 2019 . The City Council Meeting begins at 2:00 P.M.
in the Legislative Chamber, (LC-4), Omaha/Douglas Civic Center, 1819 Farnam Street, Omaha,
Nebraska. City Council Liquor Rule No. 6 states, "Each applicant or his/her representative for any
type of license shall be personally present in the Council Chambers, in order that the Council may
make inquiries, on the date of public hearing of the application for said license". Failure to be
present at this Council Meeting is grounds to recommend denial of your application to the Nebraska
Liquor Control Commission.
If you are making changes to the type of business or the type of activities that will be operated
on the new premises. Please complete and return the attached. Ordinance No. 37046, passed
June 7, 2005, requires each applicant to submit a written statement describing all types of business
or activities that will be operated on the premises in conjunction with the proposed license.
Attached is the Mandatory statement that must be signed and returned (hand deliver, mail or fax) to
the City Clerk's Office 7 days in advance of the public hearing.
Sincerely yours,
Elizabeth Butler
City Clerk
EB:clj
Cityof ornnxn�yN��
ofOmaha, SJ'lebraskg A4"
.11411‘f'
k4%113 5
1819 Farnam — Suite LC 1 z i1 ,�
Omaha, Nebraska 68183-0112 2ii- 1 � , '^
Elizabeth Butler (402) 444-5550
•
6.ti'
City Clerk FAX (402) 444-5263 p�
9T�D FEB0P
MAY 10, 2019
Akii ‘c e-s
NOTICE OF REQUEST: To consider an APPLICATION FOR AN
ADDITION TO THE PRESENT CLASS "I" LIQUOR LICENSE LOCATION
which allows the sale of beer, wine and distilled spirits, by the drink on the
premises only.
APPLICANT: GOLD MOUNTAIN, LLC II, LLC
DBA GOLD MOUNTAIN RESTAURANT
LOCATION: 6750 MERCY ROAD, SUITE 102B
TO ADD THE FOLLOWING:
AN OUTDOOR AREA APPROX. 14' X 34' TO THE EAST
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, MAY 21, 2019 in the Legislative Chambers — Level
LC of the Omaha/Douglas Civic Center, 181.9 Farnam Street, Omaha, Nebraska.
The meeting begins at 2:00 PM.
Anyone interested in the actions of the Omaha City Council should be in
attendance. To obtain additional information or to submit written testimony, please
contact Carman Johnson at 402-444-5324 or carman.johnson(cr�.cityofomaha.orq.
ALL REQUESTS FOR SIGN LANGUAGE INTERPRETERS (SIGNERS) WILL REQUIRE A MINIMUM
OF 48 HOURS ADVANCE NOTICE. IF ALTERNATIVE FORMATS ARE NEEDED, ALL REQUESTS
WILL REQUIRE A MINIMUM OF 72 HOURS ADVANCE NOTICE.
PLEASE NOTIFY ELIZABETH BUTLER, (402) 444-5557, IF ARRANGEMENTS NEED TO BE MADE.