HomeMy WebLinkAboutResolution - 2009-R0425 - Lease Agreement - KIMCO Lubbock LP - 10/08/2009Resolution No. 2009-RO425
October 8, 2009
Item No. 5.22
RESOLUTION
I,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
f
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Lease Agreement in
connection with certain real property described generally as Space "C," South Plains
Plaza, Lubbock, Texas, and all related documents. Said Lease Agreement is attached
hereto and incorporated in this Resolution as if fully set forth herein and shall be included
in the minutes of the Council.
Passed by the City Council this 8th day of October 2009.
TOM MARTIN, MAYOR
(ATTEST:
Rebecca rza, City Secretary
APPROV FD AS TO CONTENT:
Dave Booher, Right -of -Way
j
Scott Snider, Assistant City Manager
APPROVED AS TO FO M:
Mitchell Sa terw rty Att rney
Barnes&Nobles Lease.res(Q)
10.01.09
Resolution No. 2009-RO425
SHOPPING CENTER LEASE
This lease ("Lease'), dated as of 10r,i o6erQ7. ROW , by and between KIMCO LUBBOCK
L.P. ("Landlord") and CITY OF LUBBOCK ("Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements
contained in this Lease, Landlord and Tenant hereby agree as follows:
Tenant hereby leases the Leased Premises (as hereinafter defined) from Landlord and Landlord
hereby leases the Leased Premises to Tenant upon, and subject to, the terms and conditions hereinafter
set forth in this Lease.
1. Basic Lease Provisions and Definitions.
In addition to other terms defined in this Lease, the following terms whenever used in this Lease with
the first letter of each word capitalized shall have only the meanings set forth in this Article, unless such
meanings are expressly modified, limited or expanded elsewhere herein.
(A) Shopping Center Location: Depicted on Exhibit "A", located in
South Plains Plaza
Lubbock, TX
Site No.: STXL0678
(B) Leased Premises: The premises identified as plot OCO shown hatched on Exhibit "A".
(C) Floor Area: Approximately 18,000 square feet.
(D) Lease Commencement Date: The date that Landlord tenders the Leased Premises to Tenant (see
Article 39).
(E) Rent Commencement Date: Thirty (30) days after the Lease Commencement Date.
(F) Lease Term: Commencing on the Lease Commencement Date and ending at 12
noon on the Expiration Date.
(G) Expiration Date: September 30, 2014.
(G-1) Additional Term: One (1) five (5) year option. See Rider "B" Article 34.
(H) Base Rent Schedule — Original Term:
Year Monthly Rent Amount Annual Base Rent
1 $17,250.00 $207,000.00
2 $17,250.00 $207,000.00
3 $17,250.00 $207,000.00
4 $17,250.00 $207,000.00
5 $17,250.00 $207,000.00
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(H)(i) Base Rent — Additional Term:
Year Monthly Rent Amount Annual Base Rent
1 $18,975.00 $227,700.00
2 $18,975.00 $227,700.00
3 $18,975.00 $227,700.00
4 $18,975.00 $227,700.00
5 $18,975.00 $227,700.00
(1) Tax Rent: As provided in Article 3.
(J) Common Area Rent:
As provided in Article 4.
(K) Percentage Rent Rate:
N/A.
(L) Security Deposit:
None.
(M) Permitted Use:
A city library open to the public and for no other use or purpose (See
Article 8).
(N) Landlord's Notice Address:
3333 NEW HYDE PARK ROAD
(see Article 27)
SUITE 100
P.O. BOX 5020
NEW HYDE PARK, NEW YORK 11042-0020
(0) Tenant's Notice Address:
1625 13TH STREET
LUBBOCK, TX 79457
ATTN: DAVE BOOHER
(P) Broker(s): D. Lewis
Brad Andrews Realty
8001 Quaker Avenue, Suite K
Lubbock, TX 79424
Tenant's Telephone No.:
Tenant's Fax No.:
Tenant's Email Address:
Tenant's Business Name:
Tenant's Contact Person:
Guarantor(s):
FOR INFORMATION ONLY
(806) 775-2352
(806)775-3074
dbooher@mylubbock.us
City of Lubbock
Dave Booher
None
The following riders and exhibit(s) are hereby incorporated into this Lease and made a part of this Lease
for all purposes:
Riders: Rider "A" General Lease Provisions (set forth in Articles 2
through 29).
Rider "B" Specific Lease Provisions (beginning with Article 30).
Exhibit(s):
Exhibit "A" — Site Plan
Exhibit "B-1" — Contractors Indemnity Agreement
2
IN WITNESS WHEREOF, the parties hereto have executed this Lease under their respective hands
and seals as of the day and year first above written.
WITNESSES TO LANDLORD:
ATTEST:
Rebecca Zkarza, City Secretary
APPROVED AS TO CONTENT:
LANDLORD:
KIMCO LUBBOCK L.P.
By: Kimco Lubboc 678, In ., General Partner
By:
gif�zy--
NAme:
Title: Scott Gerber
Date: Vice President
TENANT:
CITY OF LUBBOCK�
By: fClss*i
N e: Tom Martin
Title: Mayor
Date: October 9 2009
Fed Tax I.D. # 75-9000590-6
ACKNOWLEDGMENT
State of )
)ss.:
County of �j )
On the 7 day of _%��iJ in the year 2009 before me, the undersigned,
a Notary Public in and for said State, personally appeared Tom Martin, personally known to me to be the
individual whose name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his capacity, and that by his/her signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed the instrument.
My Commission expires: () 3— 0l- 2 010
K \�A;
IK I J 1
Resolution No. 2009-RO425
RIDER A
2. Base Rent/Additional Rent. The Lease Term shall commence on the Lease Commencement Date. The first Lease
Year shall commence on the Rent Commencement Date and end on the first September 301h following the Rent
Commencement Date. Each succeeding Lease Year shall be each successive twelve (12) month period. On the first day
of each month throughout the Lease Term commencing on the Rent Commencement Date, Tenant shall pay, in
advance: (i) Base Rent, (ii) all Additional Rent as set forth herein, and (iii) any tax or license fee measured by Tenant's
Rents receivable by Landlord (if any). Tenant shall pay the first month's installment of Rent on the execution hereof.
Base Rent and all other payments required to be made by Tenant (including, but not limited to, Tax Rent and Common
Area Rent), which are collectively referred to herein as Additional Rent, are included in the term "Rent". All Rent shall
be due and payable without any notice, demand, offset, credit, deduction or abatement.
3. Taxes/Tax Rent. Taxes shall mean real estate taxes, special and general assessments, water and sewer rents,
governmental license/permit fees, and all other governmental impositions and charges relating to the use, ownership,
operation, rental, occupancy or possession of the Shopping Center, and also: taxes, license fees or other charges
measured by the rents or other revenues receivable by Landlord from the Shopping Center or by the business of
owning or leasing the Shopping Center, or any portion thereof, including any business, gross margins, franchise, or
similar tax payable by Landlord which is attributable to rent or other revenue derived from the Shopping Center. On
the first day of each month during the Lease Term, Tenant shall pay to Landlord, as Tax Rent, one -twelfth (1 / 12th) of
Tenant's annual share of Taxes pursuant to Landlord's estimates (which may be adjusted from time to time). If after
the end of the fiscal year the total of the monthly payments by Tenant for the year is more or less than the annual
Taxes actually due, then an adjustment shall be made with appropriate payments to or repayment (or credit to future
Tax Rent) by Landlord. Tenant's share (for purposes of Tax Rent and Common Area Rent) shall be equal to a fraction
('Tenant's Fraction'), the numerator of which is the ground floor area of the Leased Premises, and the denominator of
which is the total square foot ground floor area which is leasable for space (on the first day of the month in question)
inside all the buildings of the Shopping Center, less any space where the Common Area maintenance is performed,
and/or Taxes are paid, by a third party. Tenant shall pay all taxes lawfully attributable to its personal property,
leasehold interests; occupancy taxes, taxes on its Rent, and other taxes imposed on tenants generally.
4. Common Area/Common Area Rent. Tenant shall have the non-exclusive right to use the Common Area.
Common Area is defined as the common areas and facilities of the Shopping Center. Landlord reserves the right at any
time and from time to time to change or reduce or add to the Common Area, and further, Landlord reserves to itself the
exclusive right at any time to use the roof, foundation or exterior walls (other than Tenant's storefront) for placing of
signs or equipment, including utility equipment, or for purpose of additional construction. On the first day of each
month during the Lease Term, Tenant shall pay to Landlord, as Common Area Rent, one -twelfth (1 / 12th) of Tenant's
annual share of Yearly Common Area Costs, pursuant to Landlord's estimates (which may be adjusted from time to
time). Tenant's annual share shall be determined by multiplying the Yearly Common Area Costs by Tenant's Fraction.
Yearly Common Area Costs mean all costs and expenses incurred by Landlord during each twelve (12) month period
selected by Landlord for repair, replacement, maintenance, insurance, protection and operation of the Common Area,
and for compensation to management and service personnel; plus fifteen (15%) percent of all Yearly Common Area
Costs as a fixed administrative fee for Landlord. If after the end of the fiscal year the total of the monthly payments by
Tenant for the year is more or less than the annual Yearly Common Area Costs, then an adjustment shall be made
with appropriate payments to or repayment (or credit to future Common Area Rent) by Landlord.
S. Intentionally Deleted.
6. Intentionally Deleted.
7. Construction: Condition of Premises. Tenant has inspected the Leased Premises and Common Areas of the
Shopping Center. Landlord makes no representations as to the physical condition of the Leased Premises or the
Shopping Center. Tenant agrees to accept the Leased Premises in its "as is" and 'where -is' condition. Prior to Tenant
entering the Leased Premises, Tenant shall obtain a certificate of occupancy and any other governmental permits
required for Tenant to use and occupy the Leased Premises, and deliver a copy of same to Landlord. Notwithstanding
anything contained in the Lease to the contrary, in the event (1) Tenant discovers a "latent" defect in the structure of
the Leased Premises or in any of the plumbing or mechanical systems serving the Leased Premises within thirty days of
the date Landlord tenders the Leased Premises to Tenant; (2) the "latent" defect is not due to an act or omission of
Tenant or its agents, employees or contractors; and (3) Landlord receives written notice from Tenant within thirty days
of the discovery of the "latent" defect, Landlord shall correct the "latent" defect. After the thirty day period, Tenant
shall have full responsibility with respect to the Leased Premises including any defects ("latent" or otherwise") not
discovered within such time period. A defect shall be considered "latent" if with the exercise of reasonable diligence
such defect could not have been discovered upon a reasonable inspection of the Leased Premises. With respect to
"patent" defects in the Leased Premises, Tenant must notify Landlord of same within thirty days of the date Landlord
tenders possession of the Leased Premises to Tenant. If Tenant fails to timely notify Landlord of such "patent" defect,
Landlord shall not be responsible for correcting same. A defect shall be considered "patent" if with the exercise of
reasonable diligence such defect could have been discovered upon an inspection of the Leased Premises.
S. Use of Premises. The Leased Premises will be used only for the Permitted Use, and for no other use or purpose.
Landlord has not made any representations as to whether the Permitted Use is permitted by the municipality, or
whether the Leased Premises is zoned for such use. No sale or dispensing of alcoholic beverages shall be permitted
and no preparation of any food, cooking, baking or frying shall be permitted. Tenant shall continuously keep the
Leased Premises open and operated for business during such days and hours that are typical for a City of Lubbock
library. Tenant agrees that: no auction, fire, bankruptcy, going out of business or similar sale will be conducted or
advertised; no merchandise will be kept, displayed or sold or business solicited in the Common Areas; no nuisance will
be permitted; and no emission of any objectionable odors, sounds or vibrations will be permitted. Tenant shall keep
the leased Premises free of rodents, vermin, insects and other pests and provide regular extermination services when
necessary. Tenant and its agents, employees and subtenants shall comply with all rules and regulations promulgated
by Landlord. All garbage, waste and refuse will be kept stored temporarily inside the Leased Premises and then
regularly removed at Tenant's ex rise and, if Landlord opts, only by a contractor designated by Landlord, provided its
price is competitive. Tenant shall not commit or sutler to be committed any waste upon the Leased Premises. Tenant
shall comply with all laws and requirements of all governmental authorities, including, but not limited to, all
environmental laws and regulations, pertaining to the Leased Premises or Tenant's use thereof, and all requirements
and recommendations of Landlord's and Tenant's insurance companies and any rating bureau or similar organization,
including maintaining and servicing fire extinguishers. Tenant shall be prohibited from operating a similar business
within three (3) miles of the Shopping Center. Tenant will become a dues -paying member of any merchants'
association and pay its prorate share of any expenses incurred.
9. Utilities. All applications and connections for utility services at the Leased Premises shall be made in the name of,
and paid for by, Tenant, and Tenant shall pay all utility charges as they become due, including, but not limited to, all
charges for sewer, water, gas (if available), electricity, and telephone services. If Tenant receives utilities through a
shared meter, Tenant will pay to landlord Tenant's proportionate share (based on relative square feet size and use of
the Leased Premises) of the total meter charges. See also Article 32 regarding Utility Deregulation.
10. Maintenance and Repairs. Except to the extent caused by the grossly negligent acts or omissions of Landlord,
Tenant shall maintain the Leased Premises in good and safe condition and Tenant shall be required to make all repairs
and replacements to the Leased Premises including, but not limited to all utilities, plate glass, electrical wiring,
plumbing, heating, air conditioning, sprinklers, fixtures, equipment, Tenant's personal property, signs, and other
systems and equipment at, or serving, the Leased Premises, whether located inside or outside. However, if they exist
outside of the Leased Premises, Tenant shall be responsible only up to a common pipe or conduit. Tenant shall perform
regular seasonal maintenance (as per manufacturers recommendation, but not less than four (4) times per year,
including the manufacturers recommended points for service and repair, documentation of said recommendations to
be provided to Tenant by Landlord upon final execution of this Lease) of the heating, ventilating and air conditioning
("HVAC") system servicing the Leased Premises, or shall maintain a service contract with a licensed HVAC contractor
for such maintenance, and shall provide a copy of same to Landlord. In the event Landlord has or initiates a uniform
HVAC maintenance program for the Shopping Center, Tenant agrees, at Tenant's expense, to participate and use
Landlord's designated contractor, provided its price is competitive with other licensed contractors in the region.
Tenant shall also keep the sidewalks adjacent to the Leased Premises broom clean, and free of ice, snow, and rubbish.
Tenant shall not be required to repair the foundation, roof, exterior of the perimeter demising walls, and load bearing
structural columns and beams of the Leased Premises, unless the need for the repairs arises out of an act or omission
of Tenant or Tenant's specific use of the Leased Premises, in which case Tenant shall make the repairs, or at
Landlord's option, Landlord shall make the repairs at Tenant's expense. Upon the expiration of the Lease, Tenant shall
surrender the Leased Premises in good condition and repair, ordinary wear and tear excepted.
11. Sfanst Paintinic Displays. Tenant shall install an exterior lighted storefront sign approved by Landlord and in
compliance with governmental regulations. Tenant may not place any other sign on the exterior, or in the windows, of
the Leased Premises, or in the interior of the Leased Premises if visible from the exterior, without Landlord's prior
written consent. See also Article 31 regarding Shopping Center Sign Criteria.
12. Alterations/Liens. Tenant shall not make any alterations or improvements, in, to or about the Leased Premises
without first obtaining the written consent of Landlord. Tenant shall pay promptly when due all charges for labor and
materials in connection with any work done by or for Tenant or anyone claiming under Tenant. Tenant shall remove
within ten (10) days after notice, all liens placed against Landlord's interest or the Shopping Center resulting from any
act of Tenant or on Tenant's behalf or anyone claiming under Tenant ('Liens'), failing which Landlord may remove
such Liens and collect all expenses incurred from Tenant as Additional Rent.
13. Indemnification of Landlord. To the extent permitted by law, Tenant shall defend, and indemnify Landlord and
any fee owner of the Shopping Center against all losses, claims, liabilities, injuries, expenses (including reasonable
legal fees), lawsuits and damages: (i) claimed to have been caused by or resulted from any act, omission or negligence
of Tenant or its subtenants, employees, and contractors no matter where occurring, or (ii) occurring in the Leased
Premises except to the extent caused by Landlord's negligence; (iii) for compensation or brokerage fees made by any
broker or other party in connection with the making of this Lease (except for any broker with whom Landlord has
agreed to compensate per separate agreement); (iv) arising out of any Liens, and (v) arising out of any breaches of any
representations or warranties made by Tenant. Except to the extent caused by the grossly negligent acts or omissions
of Landlord, Landlord shall not be liable for any injury or any loss or damage to or interference with any merchandise,
equipment, fixtures, or other personal property or the business operations of Tenant or anyone in the Leased Premises
occasioned by (i) the act or omission of persons occupying other premises, or (ii) any defect, latent or otherwise, in any
building or the equipment, machinery, or utilities, or (iii) any breakage or leakage of the roof, walls, floor, pipes or
equipment, or (iv) any backing up, seepage or overflow of water or sewerage, or (v) flood, rain, snowfall or other
elements or Acts of God. See also Article 7.
14. Insurance. Tenant shall maintain: public liability insurance (including bodily injury and property damage)
insuring Tenant, Landlord and Kimco Realty Corporation, with minimum coverage of $2,000,000 combined single limit
with a nationally known insurance company having a 'Best Rating" of A -VIII or better. Prior to the Lease
Commencement Date and annually thereafter, Tenant shall provide Landlord with a Certificate of Insurance which
names Landlord and Kimco Realty Corporation as additional insureds, provides for a waiver of any right of recovery by
way of subrogation against Landlord in the event of any loss, and provides for a thirty (30) day written notice to
Landlord prior to cancellation or material change of coverage. Each of Landlord and Tenant hereby releases the other
for property damage to the extent of the insurance it is required to carry under this Lease. All policies of insurance
required of Tenant shall have terms of not less than one (1) year.
15. Access to Premises. Landlord and its agents may enter the Leased Premises at any reasonable time to:
a) inspect or repair the same; b) place upon the Leased Premises "For Lease" signs; and c) permit persons to inspect the
Leased Premises.
16. Destruction of Premises. In the event that either (i) the Leased Premises, or (ii) a substantial portion of the
Shopping Center are materially damaged and rendered untenantable during the term of this Lease by fire or other
casualty, Landlord shall have the option, upon written notice to Tenant within ninety (90) days after Landlord receives
notice of the damage, to either terminate the Lease, in which case the Lease shall end on the date Tenant receives
Landlord's notice, or restore the damage, in which case the Lease shall continue, and during such period of restoration
there shall be a fair and equitable proportionate abatement of all Rent.
17. Eminent Domain. If any part of the Leased Premises shall be taken by eminent domain, this lease shall
terminate on the date when title vests pursuant to such taking. If a substantial portion of the Shopping Center
(including the Leased Premises) is taken, and Landlord has not elected to restore the portions so taken, either party
shall have the right to terminate this Lease. If this Lease is terminated pursuant to this Article, Rent shall be
apportioned as of the termination date. Tenant shall not be entitled to any part of the award for such taking or any
payment in lieu thereof.
18. Tenant Default. If Tenant defaults in the payment of Rent or any of the other covenants or conditions herein
then Landlord shall have all rights and remedies available at law or equity. Notwithstanding any dispossession or
termination of the Lease by Landlord, Tenant will remain liable for all damages as a result of such default. No failure
to enforce any provision of the Lease shall be deemed a waiver. Notwithstanding anything contained herein to the
contrary, in the event of Tenant's default and removal from the Leased Premises, Landlord will make reasonable efforts
to mitigate its damages as may be required by, and in accordance with, applicable law and in accordance with
Landlord's usual business practices. However, Landlord shall not be obligated to lease the Leased Premises to a tenant
for a rent that is less than prevailing market rates or to a tenant whose use, reputation, experience, or financial status
Landlord, in its sole judgment, deems undesirable, or to re -let the Leased Premises before leasing other stores Landlord
may have available. Nothing contained herein is intended to modify any of Tenant's obligations or Landlord's remedies
under the Lease. The non -prevailing party shall pay all attorneys' fees, costs and expenses incurred by the prevailing
party in enforcing the provisions of this Lease whether the lawsuit or other action was commenced by Landlord or by
Tenant. Landlord and Tenant waive trial by jury in any action, proceeding or counterclaim brought by either against
the other as to any matters arising out of or in any way connected with this Lease, or their relationship as Landlord
and Tenant, or Tenant's use or occupancy of the Leased Premises. Tenant agrees that no counterclaim or setoff will be
interposed in any action by Landlord based on non-payment of Rent, even if such counterclaim or setoff is based on
Landlord's alleged breach of a duty to repair or alleged breach of quiet enjoyment, or any other allegation.
Notwithstanding the provisions of Article 18 of this Lease to the contrary, Tenant may interpose any mandatory or
compulsory counterclaims that, by operation of law, would be lost if not brought in this action.
19. Subordination. This Lease is and shall be subject and subordinate to (i) all underlying leases and all security
instruments now or hereafter affecting such leases, (ii) all mortgages and/or other security instruments now or
hereafter affecting the fee title of the Shopping Center, (iii) all documents and agreements of record affecting the
Shopping Center, and (iv) all renewals, modifications, and extensions of any such underlying leases, mortgages and/or
other security instruments and documents of record. This clause shall be self -operative and no further instrument of
subordination shall be required, but Tenant, to the extent permitted by law, agrees to execute promptly any instrument
that may be requested. If Landlord transfers its interest in the Leased Premises, or proceedings are brought for
foreclosure of any such mortgage or in case of sale in lieu thereof, or termination of any such underlying lease, Tenant
shall, if requested, attorn to such transferee and execute instruments acknowledging the attornment.
20. Assfanment and Subletting. Tenant shall not, whether voluntarily or b� operation of law or otherwise: (i) assign,
mortgage, pledge, hypothecate, or otherwise transfer or encumber any of its interest in Tenant, this Lease or the
Leased Premises, in any manner, nor (ii) sublet or license any portion of the Leased Premises (all of the foregoing are
collectively called a 'Transfer'), without obtaining on each occasion the prior written consent of Landlord, which
consent Landlord may deny, regardless of commercial reasonableness. In the event Tenant desires to engage in a
Transfer, Tenant shall give Landlord written notice ('Transfer Notice') containing: (i) the name and address of the
proposed assignee, subtenant or occupant (the 'Proposed Transferee'), (ii) current financial and other information with
respect to the financial ability, operating experience, and business reputation of the Proposed Transferee, (iii) true and
complete copies of all the documents and agreements related to the Transfer, and (iv) payment of Landlord's reasonable
administrative and attorneysfees in reviewing the proposed Transfer, which is currently $1,500, subject to reasonable
increases. Within thirty (30) days after Landlord's receipt of the Transfer Notice, Landlord shall elect by written notice
to Tenant ('Landlord's Notice') to either: (1) consent to the proposed Transfer to the Proposed Transferee; (2) deny its
consent to such proposed Transfer; or (3) terminate this Lease. In the event Landlord shall elect to terminate this
Lease: (i) the Lease shall expire on the date which is specified in the Landlord's Notice, which date will not be less
than sixty (60) days after the date of Landlord's Notice; (ii) Tenant shall be released from all liability which accrues
under the Lease after the latter of (the "Release Date"): (1) the date Tenant surrenders possession of the Leased
Premises to the Landlord in the condition required by this Lease, or (2) the date set forth in Landlord's Notice to Tenant
that it has elected to terminate this Lease (other than indemnities and obligations of Tenant which expressly survive
termination of this Lease, as set forth herein). Tenant shall be required to pay all Rent which accrues under the Lease
through the Release Date. In any assignment the assignee must assume this Lease in writing on Landlord's form.
Notwithstanding any Transfer, Tenant shall not be released from any obligations, liabilities or covenants under this
Lease. In any Transfer the Leased Premises shall be used for the Permitted Use only. If any person other than Tenant
shall pay rent for the Leased Premises, Landlord may accept the rent as having been paid on behalf of Tenant and not
be deemed to have consented to that person occupying the Leased Premises. Notwithstanding anything contained in
this Lease to the contrary, in the event Landlord approves a Transfer with respect to a sublease or license of all or any
portion of the Leased Premises: (i) the subrent or other amounts received or accrued by Tenant from subleasing or
licensing the Leased Premises is not based on the income or profits of any person, excluding for this purpose subrent
or other amounts based on a fixed percentage or percentages of gross receipt or gross sales of any person, and (fi)
Tenant shall not assign, convey, sell, pledge, mortgage, hypothecate or otherwise encumber, transfer or dispose of all
or any part of this Lease or Tenant's leasehold estate hereunder with any person, or in any manner, which could cause
any portion of the amounts received by Landlord pursuant to this Lease to fail to qualify as "rents from real property"
within the meaning of section 856(d) of the Internal Revenue Code of 1986, as amended (the 'Code'), or any similar or
successor provision thereto or which would cause any other income of Landlord to fail to qualify as income described
in section 856(c)(2) of the Code.
21. Exculpation. Tenant agrees it will look solely to Landlord's estate in the Shopping Center, subject to the rights of
the holder of any mortgage thereon, as the sole asset for collection of any claim, judgment or damages sought by
Tenant.
22. Intentionally Deleted.
23. Unavoidable Delays. Where either party hereto is required to do any act, the time attributable directly to delays
caused by an Act of God, inclement weather, war, civil commotion, casualty, labor difficulties, government regulations
or other causes beyond such party's reasonable control shall not be counted in determining the time during which
such act is to be completed. The provisions of this Article shall not be applicable at all to excuse or permit delay of the
time for Tenant to pay Rent or other money or to obtain and maintain insurance policies. If Landlord is unable to
deliver the Leased Premises by the end of one (1) year after Landlord's execution of this Lease, then either party may
terminate this Lease by giving thirty (30) days written notice to the other at any time thereafter and prior to tender.
24. Estoppel Certificates. Within ten (10) days following written notice, Tenant shall deliver to landlord a signed
statement certifying: the date of this Lease and that this Lease is in full force and effect; the monthly Base Rent and
Additional Rent payable during the Lease Term; the date to which the Rent and other payments have been paid;
whether landlord is in default, or if there are any offsets, defenses, or counterclaims claimed by Tenant, and if a
default, offset, defense, or counterclaim is claimed, specifying the specific nature and default; and stating any
additional matters requested by Landlord, any mortgagee, or the fee owner.
25. Miscellaneous Provisions. This lease contains the entire agreement between the parties. No oral or written
statements or representations not contained in this lease shall have any force or effect. This lease cannot be modified
or terminated orally, but only by a writing signed by landlord and Tenant, except for a termination expressly permitted
by this lease. If more than one party executes this Lease as "Tenant", the liability of all such signatories shall be joint
and several. Neither this Lease nor any memorandum, thereof shall be recorded in any public records. Tenant
represents that it has not dealt with any broker, finder, or other person entitled to compensation in connection with
this lease, other than as set forth herein. If any provision of this Lease shall be declared by a court to be invalid, the
remainder of this Lease shall not be affected, provided the intent of the parties can still be effectuated. If Tenant is not
an individual, the person signing this document on behalf of Tenant represents (by such signature) that he or she has
been duly authorized by Tenant to execute this document and that such signature creates a binding obligation of
Tenant. This Lease is binding upon the heirs, assigns and successors in interest to the parties. Any Rent or Security
Deposit not paid on or before the 50- day of the month for which the Rent is due shall bear interest at fifteen percent
(15°/d per annum on the payable amount from the 611, day after when due until paid; in addition, Tenant shall pay
Landlord a Fifty ($50.00) Dollar late charge for each such late payment. If Tenant or anyone claiming under Tenant
remains in possession of the Leased Premises after the expiration of the Lease Term, that person shall be a tenant at
sufferance, and during such period, Base Rent shall be twice the rate which was in effect immediately prior to the
Lease Term expiration, which Landlord may collect without admission that Tenant's estate is more than a tenancy at
sufferance, and all the provisions of this Lease shall apply as the same are applicable to a tenancy at sufferance.
26. Quiet Enioyment. Subject to all mortgages, encumbrances, easements and underlying leases to which this Lease
may be or become subordinate, landlord covenants that, upon Tenant's performance of all of the terms of the Lease,
Tenant's peaceful and quiet enjoyment of the Leased Premises shall not be disturbed by Landlord or anyone properly
claiming through landlord.
27. Notices. Any notice which either party may give, shall be given by mailing the notice certified, return receipt
requested, or by sending the notice by nationally recognized overnight courier service (e.g. Federal Express or UPS) to
Tenant or Landlord at the address shown above, or at such other place designated by the parties by written notice.
Notice shall be effective on the earlier of (i) the third day after it was sent, (ii) the date received, or (iii) the date delivery
refused.
28. OFAC. Tenant represents and warrants to Landlord that neither Tenant nor any affiliate or representative of
Tenant (i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign
Asset Control, Department of the Treasury ("OFAC") pursuant to Executive Order number 13224, 66 Federal Register
49079 (September 25, 2001) (the "Order"); (ii) is listed on any other list of terrorists or terrorist organizations
maintained pursuant to the Order, the rules and regulations of the OFAC or any other applicable requirements
contained in any enabling legislation or other executive orders in respect of the Order (the Order and such other rules,
regulations, legislation or orders are collectively called the "Orders"); (iii) is engaged in activities prohibited in the
Orders; or (iv) has been convicted, pleaded nolo contendere, indicted, arraigned or detained on charges involving money
laundering or predicate crimes to money laundering. In the event any of the representations in this Article are
determined to be false now or at any time during the Lease Term, Tenant shall be deemed to have committed an
incurable default, entitling Landlord, in addition to all other remedies at law or in equity, to terminate this Lease on
five (5) days written notice to Tenant.
29. Intentionally Deleted.
END OF RIDER A
Resolution No. 2009-RO425
RIDER B
30. Notwithstanding anything provided herein, if there is any discrepancy between Rider "A"
and Rider "B", Rider "B" shall prevail.
31. Sion Criteria - Reference to Article 100). (A) Tenant must obtain Landlord's written
approval of its sign design drawings prior to the fabrication and installation of Tenant's sign. The
drawings must include the dimensions, color, style and types of materials to be used. The sign
shall be placed in the designated area in such a manner that it does not extend above the
parapet or facade and does not exceed 2/3 of Tenant's storefront. The plans and permits for,
and the installation of, Tenant's sign shall all be at Tenant's sole cost and expense. The sign
shall be governed by all applicable provisions of this Lease, including, but not limited to,
Tenant's duty to repair (Article 10) and insure (Article 11) the sign. The sign shall be subject to
all governmental authorities' codes and restrictions.
(B) Upon the expiration or sooner termination of this Lease, Tenant shall remove its sign
and restore the sign band/fascia to its original condition.
32. Utility Deregulation.
(A) Landlord Controls Selection. Landlord and Tenant acknowledge that utility
deregulation may allow Landlord to change electric service providers in the future. Landlord
shall have the right at any time and from time to time during the Lease Term to either (i)
continue to contract for service from the present electric utility company (the "Electric Service
Provider'), or (ii) contract for services from a different company or companies providing
electricity service, whether through a solar energy provider ("Solar Provider") or otherwise (each
such company shall hereinafter be referred to as an "Alternate Service Provider"). In the event
that the entire Shopping Center is required to be serviced by the Alternate Service Provider,
Tenant agrees to contract for service from the Alternate Service Provider. If Landlord elects to
provide solar generated electricity ("Solar Energy") at the Shopping Center, Landlord reserves
the right to cause the Solar Provider to sell to Tenant Solar Energy produced from the solar
system, and Tenant will purchase from the Solar Provider up to 100% of Tenant's energy
requirements, as and when the same is produced, at the energy price in effect at the time of
delivery; provided that in no event shall the price for Solar Energy exceed the total cost of
comparable electricity service that otherwise would have been purchased from the electric utility
provider, and Solar Provider shall have no obligation to meet the full energy requirements of
Tenant, including the provision of any capacity, and Tenant will have no requirement to
purchase more than 100% of Tenant's energy requirements from Solar Provider. Upon request
by Landlord, Tenant shall execute such reasonable documentation to reflect the foregoing.
(B) Tenant Shall Give Landlord Access. Tenant shall cooperate with Landlord, the
Electric Service Provider, and any Alternate Service Provider, at all times as reasonably
necessary, and allow the foregoing to have reasonable access to any and all electric lines,
feeders, risers, wiring, and any other machinery within the Leased Premises.
(C) Landlord Not Responsible for Interruption of Service. Landlord shall not be liable or
responsible for any loss, damage, or expense that Tenant may sustain or incur by reason of any
change, failure, interference, disruption, or defect in the supply or character of the electric
energy furnished to the Leased Premises, or if the quantity or character of the electric energy
supplied by the Electric Service Provider or any Alternate Service Provider is no longer available
or suitable for Tenant's requirements, and no such change, failure, defect, unavailability, or
unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations
under the Lease.
33. PLANS AND SPECIFICATIONS.
(A) In the event Tenant desires to perform any work, or make any alterations or
modifications in and to the Leased Premises (other than installation of shelves, painting and
carpeting, and other similar interior non-structural minor cosmetic changes) exceeding $25,000,
or in the event Tenant desires to perform any work in the Leased Premises which requires the
submittal of plans to the municipality and/or requires municipal permits and approvals, Tenant
shall submit to Landlord, for Landlord's written approval the following items (hereinafter
collectively referred to as "Required Items"):
1. Complete detailed drawings and specifications in sufficient detail for Tenant to
obtain all necessary building permits (hereinafter collectively referred to as "Plans") for
all the work to be done by Tenant to the Leased Premises. Each of Tenant's Plans
submissions shall include two sets of full-size construction drawings and specifications,
as well as one set of computerized construction drawings saved on a CD ROM in .DWG
or .DXF file format.
2. A contractor's "Payment and Performance Bond" in favor of Landlord as
obligee, in form approved by Landlord, issued by a surety company satisfactory to
Landlord, guaranteeing completion of Tenant's work in accordance with the Plans free of
liens and security agreements.
3. A comprehensive general liability insurance policy from Tenant's contractor's
insurer (with a rating of not less than A-8) naming Landlord and Kimco Realty
Corporation as additional insureds for at least $3,000,000 combined single limit for
bodily injury and property damage and contractor's Workers' Compensation and
Occupational Disease insurance with statutory limits and employer's liability with a limit
of at least $1,000,000.
4. The general contractor's written indemnity agreement in the form attached
hereto as Exhibit "B-1" that the contractor shall indemnify, defend, save and hold
harmless Landlord, its mortgagee, agents, employees and assigns, from all liabilities,
claims, losses, liens, damages and suits of whatsoever nature for personal injury, death
or property damage alleged to arise out of the work performed under the contract,
whether by contractor or by any subcontractor, and whether asserted against Landlord
or contractor.
(B) Landlord shall inform Tenant of any objections to the Required Items within
thirty (30) days after receipt of all such items. If Tenant fails to deliver any of the Required Items
timely, then Landlord shall have the right to terminate this Lease and retain the Tenant's entire
security deposit as liquidated damages. Furthermore, Landlord shall have no obligation to
review Tenant's Plans unless and until Landlord is in receipt of all Required Items. Tenant,
within fifteen (15) days of receiving Landlord's objections to the Required Items, shall deliver to
Landlord corrected Required Items, which Landlord shall accept or reject within the next fifteen
(15) days.
(C) Tenant must obtain Landlord's written approval of all Required Items prior to
commencing any of its work at the Leased Premises. Landlord's approval of Tenant's Plans
shall not constitute an affirmation by Landlord that they conform to law or impose any liability on
Landlord. Upon Landlord's approval of the Required Items Tenant shall immediately apply for
all permits necessary for its work. After the permits are issued and Landlord has completed the
work, if any, that it has specifically agreed in this Lease to do, Tenant shall promptly commence
and complete Tenant's work in conformity with the Plans, building department requirements and
all relevant laws and regulations.
(D) Tenant shall comply with all legal requirements during its work and, when
completed, Tenant's work must comply with all laws, ordinances, regulations or orders of public
authority, and with the requirements of the appropriate Fire Insurance Rating Organization and
Landlord's insurance company. Prior to opening for business, Tenant shall obtain and deliver to
Landlord: (a) Tenant's affidavit that all work, labor and materials have been paid for, (b) final lien
waivers, as well as paid invoices or statements, from all contractors and subcontractors who
performed work at the Leased Premises and all materialmen and suppliers who provided
materials and/or equipment used in connection with Tenant's work at the Leased Premises, and
(c) a copy of the certificate of occupancy (or its local equivalent) for the Leased Premises. If a
temporary Certificate of Occupancy is issued, Tenant shall deliver a copy of that document to
Landlord and then, upon issuance of a permanent Certificate of Occupancy, immediately
forward a copy of it to Landlord.
(E) If Landlord or its representative inspects the Leased Premises and determines
that Tenant's work is not being done in accordance with the approved Plans, Tenant shall
correct any deficiencies or omissions immediately.
(F) Tenant shall not permit any mechanic's or other lien to be filed either against the
Leased Premises or the Shopping Center or Tenant's leasehold interest by reason of work,
labor, services or materials supplied. If any lien is filed, Tenant shall, within ten (10) days after
notice of the filing, cause it to be discharged of record, failing which Landlord, in addition to any
other right or remedy, may (but shall not be obligated to) discharge such lien by deposit,
bonding proceedings or by payment of the claimed amount for Tenant's account. Any amounts
so paid, together with interest at the Default Interest Rate from the date of payment, shall be
paid by Tenant to Landlord on demand as additional Rent. Nothing herein shall be construed as
the consent or request of Landlord to any contractor, subcontractor, laborer or materialman to
perform work or furnish materials. Furthermore, nothing herein shall give Tenant the authority
to contract for or permit the rendering of any service or furnishing of any material that could give
rise to the filing of any lien.
(G) Tenant shall require its contractor to furnish to both Tenant and Landlord on
completion of the work a guaranty, for a period of one (1) year from final completion of all work,
that all work and materials will be free from all defects and that all apparatus (e.g.,
air-conditioning equipment) will develop capacities and characteristics specified in the approved
Plans upon use, and that whenever within one (1) year of the final acceptance of the work,
contractor is notified in writing by either Landlord or Tenant that any equipment, material or
workmanship is defective or in some way does not meet specifications, contractor shall
immediately replace, repair or otherwise correct the defect or deficiency without cost to
Landlord. Additionally, the following items shall be guaranteed for periods in excess of the one
(1) year: Motor Compressor Units - five (5) years; Exterior Walls - two (2) years (guaranteed
against air and moisture leakage); Roofing - two (2) years.
(H) In the event Tenant's work involves the construction of a demising wall, Tenant
shall physically indicate the proposed location of the demising wall on the floor of the Leased
Premises, notify Landlord's architect that the location has been marked and that construction of
the wall is about to begin, and give Landlord's architect a reasonable opportunity to come to the
Leased Premises and inspect the proposed placement of the wall.
(1) For any Tenant work that involves penetration of the roof surface, Tenant shall
employ Landlord's roofing contractor, thereby ensuring that the roofing bond and/or warranty will
remain in full force and effect. The maintenance of Tenant's roof work will be the sole
responsibility of Tenant and shall include the repair of adjoining areas that might have been
affected due to water penetration through Tenant's roof work.
(J) In the event Tenant must obtain a zoning variance, waiver or other change in
order to use the Leased Premises for the purposes described in Article 1(M), or for any work
Tenant desires to perform at the Leased Premises, Tenant shall first obtain Landlord's written
approval, not be unreasonably withheld or delayed, prior to seeking such a change. If Landlord's
consent is given, Landlord agrees to cooperate with Tenant in such application and Tenant
agrees to: (i) keep Landlord advised of all developments as they occur, (ii) provide Landlord with
an opportunity to review all documents before they are filed, and (iii) give Landlord a reasonable
amount of notice before any hearings are held so that Landlord's representative shall have an
opportunity to attend. Tenant shall not be permitted to enter into any agreements that affect the
use, access, or condition of the Shopping Center without first obtaining Landlord's written
consent, and any attempt to do so shall constitute a default under the Lease.
34. Option to Extend Lease. (A) Provided Tenant is not in default under any provision of the
Lease and has faithfully performed the terms or conditions of the Lease and Tenant is in actual
physical possession of all of the Leased Premises (and operating and open for business as
contemplated by this Lease, in all of the Leased Premises), Tenant shall have the right to
extend the term of this Lease as set forth in Article 1 (the "Original Term") for one additional
period of five (5) years (the "Additional Term") commencing upon the expiration of the Original
Term, provided that Tenant shall give Landlord written notice of such election at least one (1)
year prior to the expiration of the Original Term. TIME IS OF THE ESSENCE WITH RESPECT
TO THIS ARTICLE. Such notice of election to extend the term of the Lease shall be
irrevocable. Except as expressly otherwise provided herein, the Additional Term shall be upon
all of the terms and conditions of the Lease except that any articles which were intended to be
one time, initial provisions or concessions (such as free Rent, Landlord Work, or a Tenant
improvement allowance) shall be deemed to have been satisfied and shall not apply to the
Additional Term. Also, there is no option to further extend the Term of the Lease beyond the
expiration date of the Additional Term. The renewal option set forth in this Article is exclusively
for the benefit of the City Of Lubbock and shall not be available to any successor, assignee,
subtenant or transferee of the City Of Lubbock. In the event of any assignment, subletting, or
other transfer of the City Of Lubbock's interest in this Lease or the Leased Premises, this Article
shall be deemed deleted from the Lease.
(B) Option Base Rent. In the event Tenant exercises its option to extend the Term
of the Lease as provided above, the annual Base Rent during each Lease Year of the Additional
Term shall be as set forth in Article 1(H)(i).
35. Texas Department of Licensing and Regulation Inspections. Tenant acknowledges that the
Texas Department of Licensing and Regulation (the "Department") requires that prior to
commencing construction, a review of the plans for the improvements to the Leased Premises
be conducted by the Department to ensure that the Leased Premises complies with the Texas
Architectural Barriers Act (the 'TAS") and the regulations promulgated thereunder, and to the
extent the plans for the Leased Premises do not comply, that they will be brought into
compliance. In the event that Tenant, at any time during the Lease Term, desires to perform
work in or to the Leased Premises which meets the minimum requirements of the Department
for TAS plan review and inspection, then Tenant shall provide Landlord with a copy of the plan
review application form submitted to the Department and the assigned "EAB" number, along
with a copy of the check showing Tenant has paid the required review fee. Upon completion of
construction Tenant shall provide Landlord with a copy of the inspection application form
submitted to the Department along with a copy of the check showing the Tenant has paid the
inspection fee, as well as a copy of the Notice of Substantial Compliance Certificate, and failure
to do so shall constitute a default under the Lease. Furthermore, if the Department's inspection
requires modifications to be made to the Leased Premises so as to comply with the TAS, then
Tenant shall be responsible to perform any such necessary modifications. Tenant shall defend,
indemnify and hold Landlord harmless from all loss, costs, actions, damages or claims which
Landlord may be subject to as a result of Tenant failing to timely comply with the provisions of
this Article.
36. Determination of Charges. Landlord and Tenant agree that each provision of this Lease for
determining charges and amounts payable by Tenant is commercially reasonable and, as to
each such charge or amount, constitutes a statement of the amount of the charge or a method
by which the charge is to be computed for purposes of Section 93.012 of the Texas Property
Code.
37. Tenant Termination Right. Provided Tenant is not in default under any of the terms or
conditions of the Lease, and provided that the City Council of Lubbock, Texas does not approve
the library budget for the following fiscal year by September 15`h in any Lease Year, the Tenant
shall have the right to terminate the Lease as of September 30th of that calendar year, on not
less than sixty (60) days prior written notice to Landlord, and on the later of September 301h or
the 61" day after such prior written notice, the Lease Term shall expire as if such date was the
date of expiration originally provided in the Lease. TIME IS OF THE ESSENCE WITH
RESPECT TO THE RIGHTS GRANTED HEREUNDER. Tenant will remain liable to Landlord for
all payment obligations (including, without limitation, rent, additional rent, and tax, common area
maintenance and insurance reimbursement, if any) and all other obligations under the Lease
(including Tenant's obligation to insure the Leased Premises) accrued through (and including)
the termination date of the Lease. Furthermore, the rights contained in this Article are intended
exclusively for the benefit of the City of Lubbock and shall not be available to any successor,
assignee, subtenant or transferee of the City of Lubbock. In the event of any assignment or
other transfer of the City of Lubbock's interest in this Lease or the Leased Premises, this Article
shall be deemed deleted from the Lease.
38. Landlord Termination Right.
(A) Notwithstanding anything contained in the Lease to the contrary, at any time after
September 30, 2012 Landlord shall have the right to terminate the Lease upon not less than
ninety (90) days written notice to Tenant. In the event the Lease is terminated pursuant to this
Article, the Lease Term shall expire on the September 301h following the date of the Landlord's
notice (provided such notice was given at least 90 days prior to such date) as if that were the
date of expiration originally provided in the Lease. Tenant will remain liable to Landlord for all
payment obligations (including, without limitation, rent, additional rent, and tax, common area
maintenance and insurance reimbursement, if any) and all other obligations under the Lease
(including Tenant's obligation to insure the Leased Premises) accrued through (and including)
the termination date of the Lease.
(B) Tenant acknowledges that leases with other tenants in the Shopping Center and a
reciprocal easement agreement ("REA") applicable to the Shopping Center prohibit the Landlord
from allowing certain uses at the Shopping Center, including, but not limited to, a reading room
and a place of instruction (the "Prohibitions"). Landlord does not believe that Tenant's Permitted
Use violates the Prohibitions. However, in the event Landlord receives a written notice from
another tenant or a party under the REA that Tenant's Permitted Use violates the Prohibitions,
Landlord will use reasonable, good faith efforts to try and resolve the matter with such third
parry; provided, however, that any such resolution shall be at no cost to the Landlord, and the
Landlord shall not be required to make any modifications to other leases or the REA as a part of
any resolution. If Landlord is unable to resolve such matter and Landlord reasonably believes it
could be found in default of another lease or the REA due to a violation of the Prohibitions,
Landlord shall have the right to terminate the Lease upon not less than ninety (90) days written
notice to Tenant. Tenant will remain liable to Landlord for all payment obligations (including,
without limitation, rent, additional rent, and tax, common area maintenance and insurance
10
reimbursement, if any) and all other obligations under the Lease (including Tenant's obligation
to insure the Leased Premises) accrued through (and including) the termination of the Lease.
39. Possession. Tenant acknowledges that the Leased Premises is presently occupied by
another tenant (the "Existing Tenant") under a different lease. Landlord is in the process of
terminating the Existing Tenant's Lease. In the event Landlord is delayed in obtaining
possession of the Leased Premises from the Existing Tenant, then Landlord will be delayed in
delivering possession of the Leased Premises to Tenant. If Landlord fails to tender possession
of the Leased Premises to Tenant by December 31, 2009, then either party shall have the right
to terminate this Lease on thirty (30) days prior written notice to the other party at any time
thereafter but prior to tender.
40. HVAC. Notwithstanding anything provided in the Lease to the contrary, provided 1) the
failure is not due to an act or omission of Tenant or its agents, employees or contractors;
2) Tenant has complied with its HVAC maintenance obligations under Article 10; and 3) despite
proper maintenance and repair, the motor and/or compressor in the HVAC unit must be
replaced during the Lease Term, then Landlord shall replace the motor and/or compressor in
the unit.
41. Trade Fixtures. Tenant has requested that it be allowed to utilize certain trade fixtures
which presently are located in the Leased Premises (the 'Trade Fixtures"). The Trade Fixtures
were left in the Leased Premises by a prior tenant. Landlord is not aware of any claims to these
Trade Fixtures made by any other party, but Landlord does not warrant that it has clear title to
the Trade Fixtures, nor does Landlord warrant whether the trade fixtures are in good working
order or comply with code, Tenant expressly agreeing to take them in their "as -is", "where -is"
condition. TENANT HEREBY ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER WHETHER EXPRESSED OR
IMPLIED WITH RESPECT TO THE VALUE, NATURE, QUALITY OR CONDITION OF THE
TRADE FIXTURES OR THE SUITABILITY OF THE TRADE FIXTURES FOR ANY PURPOSE
OR THE HABITABLITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR ANY PURPOSE. Tenant agrees that, in the event a third party asserts a claim
to the Trade Fixtures, Tenant will not look to Landlord for any compensation whatsoever, and
Tenant will allow the third party to peaceably enter the Leased Premises and remove the Trade
Fixtures. Subject to the provisions of this Article, Landlord has no objection to Tenant using the
Trade Fixtures, provided that Tenant shall have no right to remove the Trade Fixtures from the
Leased Premises at any time, and at the expiration of the Lease Term or sooner termination of
the Lease, Tenant shall surrender the Trade Fixtures to Landlord in the same condition as they
were in upon delivery of possession of the Leased Premises to Tenant, reasonable wear and
tear excepted.
END OF RIDER B
Resolution No. 2009-RO425
EXHIBIT A
This site elan is intended to be an appro amate depiction of the 5hopping Center. No
representation or warren��yy ns made with rdpect to the ac4nal location, number or configuration
ol'Buddin% Curb Cuts,
Ws in Thoroughfares, Parking Areae. Traffic Patterns, or of the
Tenants I -tended to be within the Shopping Center. The Landlord specifically reserves the
right to change the content and configuration of the Shopping Center from time to time and at
any time the Landlord desires In its sale and absolute discretion, or as is required to conform
to Local Governing Agencies.
The leased premises shall be the area Identified below.
Loop 289
1 ® 69th Street
K I M C O I �� #678 EXHIBIT A PD: 81 709
REALTY
12
Resolution No. 2009-RO425
EXHIBIT "B-1"
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT pertains to work to be performed at the South Plains Plaza, and
located in Lubbock, Texas, herein referred to as "Shopping Center' (Kimco Site STXL0678),
by (herein referred to as "Contractor"), having an address at:
and is part of the Contract with
(herein referred to as "Tenant"), having an address at
which Contract is
dated for work to be done at the Shopping Center from approximately
through
Contractor acknowledges that Tenant is contractually obligated to obtain this Agreement under a
lease for its store at the Shopping Center. Contractor has entered into this Agreement in order to induce
Tenant to retain Contractor to perform certain work at its store.
Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Kimco Lubbock L.P., and
Kimco Realty Corporation, hereinafter collectively referred to as Landlord, its respective agents and
employees, assigns, and architects of and from all liabilities, claims, losses, damages, injury, causes of
actions and suits of whatever nature for personal injury, including death, and for property damage, arising
out of or alleged to arise out of, or any conditions of, the work performed under this Contract, whether by
Contractor or by any sub -contractor, and whether any claim, cause of action, or suit is asserted against
Landlord or its agents and employees, assigns, and architects, or Contractor, severally, jointly, or jointly
and severally. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, its
agents and employees, assigns, and architects of and from any and all costs of any nature, including
without limitation investigation, adjustment, attorney's fees, expert's fees, court costs, administrative
costs, and other items of expense arising out of any claim, cause of action or suit of the kind and nature
herein set forth.
Neither Contractor nor any sub -contractor shall file any mechanic's, materialmen's, or other liens
either against the Leased Premises or the Shopping Center from any work, labor, services or materials
supplied or performed by Contractor or by any sub -contractor. Contractor hereby agrees to INDEMNIFY,
SAVE & HOLD HARMLESS Landlord, its agents and employees, assigns, and architects of and from any
and all costs of any nature, including without limitation investigation, adjustment, attorney's fees, expert's
fees, court costs, administrative costs, and other items of expense arising out of any mechanic's,
materialmen's, or other liens filed against the either against the Leased Premises or the Shopping Center
by Contractor or by any sub -contractor.
Contractor hereby agrees that it will obtain Comprehensive General Liability insurance including
Blanket Contractual Liability with minimum amount of $3,000,000.00 Combined Single Limit for bodily
injury and property damage.
Additionally, Contractor must also obtain Workers Compensation and Occupational Disease
insurance with statutory limits and form as required by the State in which the work is to be performed, and
Employers Liability with a limit of not less than $1,000,000.00 for all damage.
Certificates for all insurance will be submitted to Landlord before commencement of any work. The
Certificates must indicate that the "HOLD HARMLESS AGREEMENT' contractual indemnity as set forth
in this agreement is insured. Landlord must be named as an additional insured and the policy must
provide that no less than 15 days advance written notice will be given to both the party to whom such
Certificates are issued and the additional insured in the event of cancellation of the policies or a reduction
in the limits of liabilities set forth above. At Landlord's request, Contractor will immediately furnish
Landlord with a true and complete copy of any insurance policy Landlord wants to renew. No invoices for
payments will be honored unless such Certificates of Insurance (or the policy, if requested) had been filed
timely with Landlord at 3333 New Hyde Park Road, Suite 100, New Hyde Park, NY 11042-0020.
Contractor acknowledges that Landlord did not retain Contractor to perform any work at the
Shopping Center and agrees that Contractor will not look to Landlord for any compensation whatsoever
for any work it performs at the Shopping Center.
IN WITNESS HEREOF, this Contractor has executed this Agreement this _day of
200 .
�0l�lfff. «SON
By:
Name:
Title:
13