2015-19RESOLUTION NO. 2015- 19
COUNCIL MEMBER WOLFF INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS, the Mayor and City Council has authorized the design of a new Library and Technology
Center to be built on Lot 86 of Deerfield subdivision; and
WHEREAS, the Mayor and City of Blair has sold Lot 86 in the Deerfield subdivision for $250,000
which shall be set aside for purchase of Library Equipment for the new Library and Technology Center;
and
WHEREAS, the Mayor and City Council has authorized the Blair Public Library Foundation to enter
into construction contracts for the site work and utilities installation for the proposed new Library and
Technology Center; and
WHEREAS, the current estimated cost to be financed for the new Library is $3,700,000 for an
estimated 24,965 sq. ft., which deletes from the original design an estimated 2808 sq. ft. previously
included for the Danish American Archives Library; and
WHEREAS, the City of Blair and Blair Public Library Foundation both desire to enter into a lease
agreement to move ahead with the proposed construction of the Library and Technology Center; and
WHEREAS, the Mayor and City Council agree that it is in the best interest of the Citizens of the City of
Blair to proceed with the lease agreement and construction of the new Library and Technology Center.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY COUNCIL OF THE
CITY OF BLAIR, that the Lease agreement with the Blair Public Library Foundation attached hereto,
marked Exhibit "A" and by this reference made a part hereof as though fully set forth herein is hereby
approved by the City of Blair, Nebraska with the following conditions.
1. The Library planning committee shall present the City Council with a final construction plan for
approval prior to bidding for the construction of the new Library and Technology Center not to
exceed 24, 965 sq. ft.
2. The final estimated annual lease payment by the City of Blair to the Blair Public Library
Foundation shall not exceed $175,000 annually, unless further authorized by the City Council, and
amortized over 40 years at 3.5% interest rate.
3. The Foundation shall get approval from the City Council prior to the award of any bids for the
Construction of the Library and Technology Center.
BE IT FURTHER RESOLVED THAT THE MAYOR AND CITY CLERK OF THE CITY OF
BLAIR, NEBRASKA, are hereby authorized to execute and deliver, on behalf of the City of Blair,
Nebraska, any documents that may be necessary for approval of said agreement.
COUNCIL MEMBER WOLFF MOVED THAT THE RESOLUTION BE ADOPTED AS READ,
WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER JENSEN. UPON ROLL
CALL, COUNCIL MEMBERS VOTING "AYE" SHEPARD, STEWART, WILLIS, WOLFF,
JENSEN AND ANDERSEN AND COUNCIL MEMBERS HALL VOTING "NAY ", THE MAYOR
DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 23RD DAY OF
JUNE, 2015.
ATTEST:
BRENDA R. WHEELER, CITY CLERK
(SEAL)
STATE OF NEBRASKA )
):ss:
WASHINGTON COUNTY )
CITY OF BLAIR, NEBRASKA
BY 1^ 0� �
"S REALPH, MAY R
BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified, and acting City
Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and
adopted at a regular meeting of the Mayor and City Council of said City held on the 23rd day of June
2015.
BRENDA R. WHEELER, CITY CLERK
This LEASE AGREEMENT, dated as of the 0 day of June, 2015 (this "Lease ") is by and
between BLAIR PUBLIC LIBRARY FOUNDATION, a nonprofit corporation duly organized and
existing under the laws of the State of Nebraska, as lessor ( "Lessor "), and the CITY OF BLAIR,
NEBRASKA, as lessee ( "Lessee ").
RECITALS
1. Lessor is the owner of certain real property described on Exhibit "A" attached hereto (the
"Real Estate ") upon which Lessor intends to construct a building to be used as a public library and
related facilities (the "Improvements ").
2. Lessee is a city of the first class and political subdivision duly organized and existing
under the laws of the State of Nebraska with full power and authority to enter into this Lease pursuant to
Section 19 -2421, Reissue Revised Statutes of Nebraska, as amended (the "Act ") and to operate a public
library therein.
3. Lessee has determined that it is necessary, desirable, advisable, and in the best interest of
Lessee that the Improvements (hereinafter defined) be constructed and acquired and leased by Lessor to
Lessee upon the terms and conditions set forth in this Lease.
NOW, THEREFORE, IN CONSIDERATION of the premises and the mutual covenants as
and agreements set forth herein, the Lessor and the Lessee do hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
The following words and phrases used in this Lease have the following meanings, unless the
context or use indicates another or different meaning or intent:
"Additional Rent" means the amounts payable by the Lessee pursuant to Section 3.2.
"Lease" means this Lease Agreement and all amendments and supplements thereto.
"Basic Rent" means the amounts specified in Section 3.1, payable by the Lessee as provided in
Section 3.1.
"Improvements" means the improvements to be constructed upon the Real Estate and are
presently anticipated to consist of those improvements thereon described in Exhibit `B" (subject to
change in accordance with the terms of the final plans and specifications as approved by Lessor and
Lessee and in accordance with the terms of the Construction Contract (defined in Section 5.1 below)
including any change orders thereto.
"Premises" means the library property.
"Term" means the initial term of this Lease as specified in Section 2.2, and any Extension
Terms, if exercised by Lessee as provided in Section 2.3.
"USDA" shall mean the United States Department of Agriculture.
" USDA Loan" means the proceeds loaned to the Lessor pursuant to the USDA Rural
Development Loan dated between the Lessor and the USDA.
ARTICLE II
GRANTING OF LEASEHOLD AND TERM
Section 2.1 Subject to the terms and conditions hereof, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, for an Initial Term described in Section 2.2 below, the Premises. The
lease of the Premises includes the right of the Lessee and Lessee's employees, agents, contractors,
licensee and invitees to utilize the common areas and limited common areas appurtenant to the Premises
for any purpose allowed by the Declaration.
Section 2.2 The Term of this Lease shall commence upon the substantial completion of the
Improvements, execution of a certificate of acceptance by Lessee and the issuance of a certificate of
occupancy and, unless sooner terminated as provided here, shall end on the last day of the four hundred
eighth (480 full month thereafter ( "Initial Term ").
Section 2.3 Provided this Lease is not in default beyond applicable cure periods and remains
in full force and effect, Lessee shall have the option to extend the Term of this Lease for two (2)
additional consecutive twenty (20) year terms (each an "Extension Term "). Each option to extend the
Lease Term shall be exercised by written notice to the Lessor, given at least ninety (90) days prior to the
expiration of the then current Term.
ARTICLE III
RENT
Section 3.1 Lessee shall pay the Lessor, in advance on the first day of each month during the
Term, Basic Rent in the amount equivalent to the Lessors payments under the USDA Rural Development
Loan. In the event that the Term commences on a date other than the first day of the month, then at the
date the Lease Term commences, Lessee will pay to Lessor the prorated rental due for the period from the
date of commencement to the last day of that same month. Thereafter, the Basic Rent shall be paid on the
first day of each month during the Term. It is the intention of the Lessor and the Lessee that the Basic
Rent herein specified shall be net to the Lessor in each year during the term of this Lease, that all costs,
expenses and obligations of every kind (except as otherwise specifically provided in this Lease) that may
arise or become due with respect to the Premises during the term of this Lease, shall be paid by the Lessee
and that the Lessor shall be indemnified by the Lessee against all such costs, expenses and obligations. In
addition to Basic Rent, the Lessee agrees to pay as Additional Rent the items set forth in Section 3.2.
Section 3.2 Lessee shall pay as Additional Rent all impositions (as defined in Article VII
hereof), costs, expenses, liabilities, obligations and other payments of whatever nature that the Lessee has
agreed to pay or assume under the provisions of this Lease. If at any time any amount paid by the Lessee
to the Lessor as Additional Rent is or becomes in excess of the amount required for the purpose for which
it was paid, such excess amount shall be refunded to the Lessee. Additional Rent shall include fiinding of
a USDA extension reserve account as required in Lessors the USDA Rural Development Loan obligation.
Section 3.3 All payments of Basic Rent and Additional Rent shall be made by Lessee, on or
before the date the same shall become due, without notice or demand, and without abatement or setoff
except as specifically allowed herein, irrespective of whether the Lessee shall have taken possession of
any part of the Premises, or of the right of temporary use of all or part thereof, change in the Lessor's
legal organization or status, or any loss or damage to the Premises from any cause whatsoever, none of
which shall relieve the Lessee of the liability for payment of Basic Rent and Additional Rent as herein
provided, except as condemnation proceeds may be applied on Basic Rent as herein specifically
permitted.
Section 3.4 Any payment of Basic Rent not paid when due shall bear interest at the rate of
5% per annum beginning ten (10) days after the due date thereof.
Section 3.5 In the event that Lessor fails to pay any amount due on any obligation that is
secured by the Real Estate, Lessee may, but shall not be obligated to, pay such amount, and the amount
so paid may be deducted from any installment of Basic Rent due hereunder.
ARTICLE IV
COLLATERAL ASSIGNMENT OF LEASE
Section 4.1 The Lessee accepts notice that this Lease and the Basic Rent and Additional Rent
payable to the Lessor under this Lease may be assigned to USDA as collateral security for the USDA
Loan. Lessor will promptly notify Lessee of any such collateral assignment. The Lessor and any
subsequent Lessor have and may exercise all rights and remedies of the Lessor provided for in this Lease.
No transfer or assignment of this Lease shall be effective except pursuant to a written assignment in form
satisfactory to Lessee and recordation of such assignment in the Office of the Register of Deeds of
Washington County, Nebraska.
Section 4.2 At Lessor's option, this Lease shall be subordinate to any future mortgage or
deed of trust (a "Mortgage ") by Lessor which from time to time may encumber all or part of the Real
Estate and Improvements; provided, however, as a condition precedent to Lessee being required to
subordinate its interest in this Lease to any future Mortgage covering the Property, Lessor shall obtain for
Lessee's benefit a non - disturbance and attornment agreement in the form reasonably satisfactory to
Lessee, and containing the terms described below (the "Non- Disturbance Agreement "), and shall
recognize Lessee's right to remain in occupancy of and have access to the Premises and the common
areas and limited common areas as long as Lessee is not in default of this Lease beyond applicable notice
and cure periods. The Non - Disturbance Agreement shall include the encumbering party's ( "Lender's ")
agreement that, if Lender or its successor -in- interest or any purchaser of Lender's or its successor's
interest (a "Purchaser ") acquires an ownership interest in the Property, Lender or such successor -in-
interest or Purchaser will (1) honor all of the terms of the Lease, (2) fulfill Lessor's obligations under the
Lease, and (3) promptly cure all of the then - existing Lessor defaults under the Lease. Such Non -
Disturbance Agreement must be binding on all of Lender's participants in the subject loan (if any) and on
all successors and assigns of Lender and /or its participants and on all Purchasers. In return for such Non -
Disturbance Agreement, Lessee will execute an agreement for Lender's benefit in which Lessee (1)
confirms that the Lease is subordinate to the Mortgage or other real property interest in favor of Lender,
(2) agrees to attorn to Lender if Lender becomes the owner of the Property and (3) agrees to accept a cure
by Lender of any of Lessor's defaults, provided such cure is completed within the deadline applicable to
Lessor.
ARTICLE V
CONSTRUCTION OF IMPROVEMENTS
Section 5.1 Lessor agrees to construct the Improvements pursuant to a construction contract
or contracts (collectively, the "Construction Contract ") between Lessor and the contractor(s) constructing
the Improvements (collectively, the "Contractor "). The Improvements shall be constructed in a good and
workmanlike manner and in material compliance with the plans and specifications approved by Lessee
and in compliance with all applicable laws, ordinances, regulations and codes. Lessor and Lessee may,
by separate agreement, appoint Lessee as Lessor's agent for purposes of administering the Construction
Contract on behalf of Lessor and for the purposes of authorizing disbursements of proceeds of the USDA
Loan and of Lessor's funds to pay amounts due thereunder. All plans and specifications for the
Improvements are subject to the written approval of the Lessee, which will not be unreasonably withheld,
conditioned or delayed.
Section 5.2 The Lessor and the Lessee agree that the Lessor shall use the proceeds of the
USDA Loan to pay the cost of constructing and equipping of the Improvements. The Lessee hereby
acknowledges and agrees that the Lessor shall not in any event be obligated to pay or provide for the
payment of any funds for the acquisition, construction or equipping of the Improvements and issuance
expenses, in excess of the total amount of the USDA Rural Development Loan dated between the Lessor
and the USDA. The Lessee acknowledges and agrees that it will bear any costs of acquiring furniture,
fixtures and equipment for the Improvements that are needed to operate the public library once Lessor has
spent all of the Maximum Lessor Expenditure for acquisition, construction or equipping of the
Improvements.
Section 5.3 Upon completion of the construction of the Improvements, and acceptance
thereof by the Lessee, the fact of such completion and acceptance shall be evidenced by a Certificate of
Acceptance signed by the Lessee.
ARTICLE VI
COVENANTS OF THE LESSEE
Section 6.1 The Lessee covenants that it is a city of the first class and political subdivision
duly organized and existing under the laws of the State of Nebraska with full power and authority to enter
into this Lease pursuant to the Act, and that it has taken all actions necessary to validly enter into this
Lease.
Section 6.2 The Lessee covenants and agrees that throughout the term of this Lease it will
observe all budget and spending limitations now or hereafter imposed by law in such a manner that a
sufficient portion of its tax levy or other money shall be available to pay all rentals due hereunder.
Section 6.3 The Lessee has complied with all bidding requirements, if necessary, and any and
all appropriations, funding, notice, hearing or other requirements under law, and no other consent,
approval or ratification of the terms hereof are necessary for this Lease to be valid.
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1'
The Lessee shall pay prior to delinquency all taxes and assessments, general and special, or other
governmental charges and impositions on or related to the Premises, or any part thereof, which become
due or payable or are assessed during the term of this Lease (collectively, the "Impositions "). The
Lessor shall promptly forward to the Lessee any notice, bill or other advice received by the Lessor
concerning any Imposition. Lessee shall have the right to contest any such Impositions at its cost and
Lessor shall cooperate with Lessee in contesting such Impositions. The Lessee shall provide funding of
the USDA extension replacement reserve account. Any payments made directly to the USDA shall be
accomplished through electronic means (PAD).
ARTICLE VIII
REPAIR, MAINTENANCE AND ALTERATIONS
Section 8.1 The Lessee shall keep the Premises and all parts thereof in good condition and
repair during the term of this Lease.
Section 8.2 The Lessee agrees to pay for and indemnify and save the Lessor harmless against
any and all costs, expenses, liabilities or damages relating to the operation, maintenance, use and upkeep
of the Premises, and shall obtain all required permits and licenses for the operation of the Premises for the
purposes herein set forth.
Section 8.3 The Lessee shall have the right, at its own expense, to make additions, alterations
and changes in or to the Premises as it determines its discretion. All alterations, additions and
improvements shall be deemed a part of the Premises subject to this Lease and, upon termination of this
Lease, shall be surrendered to the Lessor, subject to the provisions of Article XVIII concerning
conveyance to the Lessee.
Section 8.4 It is the intention of the parties that the Lessor have no obligation for any cost in
connection with the Premises or Improvements beyond the Maximum Lessor Expenditure described in
Section 5.2 above, that the Basic Rent due hereunder be net to the Lessor, and that this Lease be
construed accordingly.
Section 8.5 At and upon the expiration or earlier termination of this Lease, Lessee shall
surrender and deliver to Lessor immediate possession of the Premises in good condition, reasonable were
and tear and damage by casualty excepted. Lessee may, at any time during the Term hereof, and shall,
upon termination or expiration of this Lease, remove from the Premises any trade fixtures, machinery, or
equipment belonging to Lessee, provided that Lessee shall repair any damage to the Premises caused by
such removal.
11Z 11
Section 9.1 During the Term of this Lease, the Lessee shall, at the Lessee's expense, keep the
Premises insured against loss or damage by fire and extended coverage perils in an amount not less than
the full insurable value thereof, with such insurance to be under policies issued by responsible insurers
authorized to do business in the State of Nebraska, with deductibles not to exceed the requirements of the
USDA Rural Development Loan dated between the Lessor and the USDA. Such insurance policies shall
name the Lessor and the Lessee as insureds as their respective interests may appear, but so long as the
Lessee is not in default hereunder, any loss shall be adjusted by and paid to the Lessee. The Lessee
hereby agrees to provide such evidence of the insurance required by this Section as may be requested by
the Lessor.
Section 9.2 Upon the occurrence of any damage covered by the insurance required by
Section 9.1, the proceeds of such insurance shall be used to repair, replace or reconstruct the Premises as
may be directed by the Lessee. The Lessee agrees that if the available proceeds are insufficient to fully
restore the Premises to the condition existing prior to the loss, such insufficiency shall not constitute any
default of the Lessor and the Lessor shall have no responsibility to provide funds for such purpose beyond
the funds available from such insurance, and further that such insufficiency shall not relieve the Lessee of
the responsibility for payment of all Basic Rent and Additional Rent as provided hereunder, unless Lessee
shall elect to provide to the Lessor funds sufficient to pay all Basic Rent and Additional Rent then
outstanding.
Section 9.3 Lessee shall, at its cost and expense, at all times during the Term, maintain in
force, for the joint benefit of Lessor and Lessee, commercial general liability insurance issued by a carrier
reasonably satisfactory to Lessor and licensed to do business the State of Nebraska with a Best's
Insurance Guide Rating of A +, by the terms of which Lessor and Lessee are named as insureds and are
insured against liability for damage or injury to the property or person (including death) of any person
entering upon or using the Premises. Such insurance policy or policies shall be maintained on the
minimum basis as required within the USDA Rural Development Loan dated between the Lessor and the
USDA. Lessor reserves the right to require reasonable increases in the limits of coverage from time to
time during the Term consistent with commercially reasonable practices for similar facilities in the same
geographic area and consistent with cost of living increases as reflected in the United States Department
of Labor Bureau of Labor Statistics cost of living indices applicable to the geographic area in which the
Premises are located. This maximum deductible amount shall also be so adjusted from time to time based
upon such cost of living indices. Such insurance policy or policies shall be stated to be primary and
noncontributing with any insurance which may be carried by Lessor. A certificate of said insurance,
together with proof of payment of the premium thereof shall be delivered to Lessor at the Commencement
of the Term, effective from and after such commencement date, and renewal certificates and proof of
payment of premium therefor shall be delivered to Lessor not less than fifteen (15) days prior to the
renewal date of any such insurance policies during the Term and any extension thereof. Such insurance
shall be endorsed to be cancelable only after thirty (30) days' prior written notice to Lessor and Lessee.
Section 9.4 Lessor and Lessee and all parties claiming under them mutually release and
discharge each other from all claims and liabilities arising from or caused by any casualty or hazard
covered or required hereunder to be covered in whole or in part by the casualty and liability insurance on
the Improvements or Premises or in connection with any activities conducted on the Premises, and waive
any right of subrogation which might otherwise exist in or accrue to any person on account thereof to the
extent of insurance proceeds collected or collectable thereunder. Waiver of subrogation shall be
evidenced by endorsement to the required insurance policies. This waiver or subrogation shall not
operate in any case where the effect is to invalidate or increase the cost of such insurance coverage
(provided that in the case of increased cost, the other party shall have the right, within thirty (30) days
following written notice, to pay such increased cost, thereby keeping such release and waiver in full force
and effect).
G'!
ARTICLE X
:WSPECTION OF PREMISES BY
Upon at least twenty -four hours prior notice, the Lessor may inspect the Premises during usual
business hours as may be reasonably necessary for the protection of the Lessor's interest or to examine
the Premises for the performance of any work therein made necessary by reason of the Lessee's default
under any of the provisions of this Lease.
ARTICLE XI
INDEMNIFICATION BY THE LESSEE
To the extent permitted by law, the Lessee shall indemnify and save the Lessor harmless, against
and from all claims by or on behalf of any person, firm, or corporation, including the Lessee itself, arising
from the Lessor's acquisition and ownership of the Premises, including but not limited to: (a) any
condition of the Premises; (b) any breach or default on the part of the Lessee in the performance of any of
its obligations under this Lease; (c) any act or negligence of the Lessee or of its officers, agents,
contractors, servants, employees, or licensees relating to the Premises; (d) any accident, injury, or death of
any person or damage to any property occurring in or about the Premises; (e) the failure of the Lessee to
comply with any requirement of any governmental authority relating to the Premises; (f) any construction
lien or security agreement filed against the Premises or any part thereof; or (g) the Lessor's perfonnance
of, or the failure of the Lessor to perform, any obligation to be performed hereunder. To the extent
permitted by law, the Lessee shall indemnify and save the Lessor harmless from and against all costs and
expenses incurred in or in connection with any such claim arising as provided or in connection with any
action or proceeding brought thereon. Upon notice from the Lessor, the Lessee shall defend them or
either of them in any such action or proceeding.
ARTICLE XII
LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS
If the Lessee fails to keep or perform any of its obligations provided for in this Lease, then the
Lessor may (but shall not be obligated to do so) upon the continuance of such failure on the Lessee's part
for thirty (30) days after written notice to the Lessee, and without waiving or releasing the Lessee from
any obligation, as an additional but not exclusive remedy, make any payment or perform any obligation,
and all sums paid by the Lessor in performing such obligation shall be deemed Additional Rent and shall
be paid to the Lessor, on demand or, at the Lessor's option, may be added to any installment of Basic
Rent thereafter falling due, and if not so paid by the Lessee, the Lessor shall have the same rights and
remedies as in the case of default by the Lessee in the payment of Basic Rent.
ARTICLE XIII
DAMAGE OR DESTRUCTION
Section 13.1 If the Premises are damaged from any cause whatsoever, the Lessee shall, at the
Lessee's expense, promptly and with reasonable diligence proceed to repair or replace the Premises to the
extent required so that, in the judgment of the Lessee, the Premises shall be suitable for use for its purpose
as required by the Lessee. Insurance money may be used for such repair, replacement or reconstruction
as provided in Article VIII hereof, or for the prepayment of all or part of the Basic Rent and Additional
Rent due hereunder. Lessee shall be liable for and bear any deficiency (which shall include any policy
deductible if the resulting insurance proceeds are insufficient for defraying all costs of restoration). In the
event the cost of repair of such casualty loss exceeds 50% of the actual insured value of the
Improvements, immediately preceding such loss, or in the event a Mortgagee applies any insurance
proceeds to payment of the Mortgage, Lessee may elect to not reconstruct the Improvements. In such
it
event, Lessee may use any available insurance proceeds to demolish any remaining Improvements, clear
the Premises of any building materials from such Improvements, and then surrender the Premises to
Lessor. In that event, this Lease shall terminate as of the date Lessee surrenders the Premises as provided
herein. If a Mortgagee on the Real Property applies any insurance proceeds to the indebtedness and sums
secured by the Mortgage, and Lessee elects to reconstruct the Improvements, then Lessee shall bear, and
shall be responsible for securing alternative sources of financing for, the restoration costs that would
otherwise be defrayed from those insurance proceeds. If said insurance proceeds are not used in any of
the ways stated herein, they will be paid over to Lessee.
Section 13.2 No damage to or destruction of the Premises or any part thereof from any cause
whatsoever shall reduce or affect the Lessee's obligation to pay Basic Rent and Additional Rent as
provided in this Lease, unless the Lessee shall provide to the Lessor funds sufficient to pay all Basic Rent
and Additional Rent due hereunder.
ARTICLE XIV
CONDEMNATION
Section 14.1 If during the term hereof, the title to, or the right to temporary use of, any part of
the Premises shall be taken by the exercise of the right of eminent domain and if in the opinion of the
Lessee, the utilization of the Premises by the Lessee is not impaired by such taking, neither the terms nor
any of the obligations of either party under this Lease shall be reduced or affected in any way and the net
award or payment for such taking shall be paid to the Lessee and the Lessor shall not have any claim to
such award or payment, unless the Lessee shall elect to prepay all Basic Rent and Additional Rent due
hereunder.
Section 14.2 If, during the term of this Lease, the title to, or the right to temporary use of,
sufficient portions of the Premises shall be taken by eminent domain that in the opinion of the Lessee the
use of the Premises for the Lessee's purposes shall be impaired, the net award or payment from such
eminent domain taking may be applied in either of the following ways, at the Lessee's option: (a) The net
award or payment may be paid to the Lessor and in such case the amount shall be considered as an
advance payment by the Lessee on the Basic Rent payable tinder this Lease, or (b) The net award or
payment may be applied as directed by the Lessee toward the acquisition of additional or replacement
facilities to replace or supplement the portions of the Premises so taken. Proceeds realized from eminent
domain actions as described herein will need to be accounted for and applied to the USDA loan by Lessor
unless the proceeds are used for the replacement of areas taken by eminent domain. In any event, the
taking of all or any portion of the Premises by the right of eminent domain by any governmental body
shall not affect or reduce the Lessee's obligation to make payments of Basic Rent and Additional Rent as
provided in this Lease, unless the Lessee shall elect to prepay all Basic Rent and Additional Rent due
hereunder.
ARTICLE XV
ASSIGNMENTS AND SUBLEASES
The Lessee may not assign its rights under this Lease or sublet the Premises or any part thereof
during the term of this Lease unless the Lessee has received the written consent of the Lessor to such
assignment or subletting which shall not be unreasonably withheld, conditioned* or relayed. The
temporary use of portions of the Premises pursuant to a license granted by Lessee shall not be considered
a subletting under this Article.
8
This Lease is made on condition that if [CONFORM TO DEFAULT PROVISIONS OF USDA
LOAN] :
(a) the Lessee defaults in the due and punctual payment of Basic Rent or Additional
Rent and such default continues for a period as described in the USDA Rural Development Loan
dated between the Lessor and the USDA after the Lessee's receipt of notice of such nonpayment
from the Lessor; or
(b) the Lessee defaults in the keeping or performance of any other covenant or
obligation herein contained on the Lessee's part to be kept or performed, and the Lessee fails to
remedy the same [within thirty (30) days after the Lessor has given the Lessee written notice
specifying such default (or within such additional period, if any, as may be reasonably required to
cure such default if it is of such nature that it cannot be cured within such 30-day period because
of any cause beyond the control of the Lessee)], then the Lessor may, at the Lessor's election then
or at any time thereafter while such event of default shall continue, give the Lessee written notice
of intention to terminate this Lease and the term herein provided for on a date specified therein,
[which date shall not be earlier than thirty (3 0) days after such notice is given],
and if all defaults have not been cured on the date so specified, then the Lessee's rights to possession of
the Premises shall cease and the term and this Lease shall thereupon be terminated, and the Lessor may
re -enter and take possession of the Premises as of the Lessor's former estate; or, as an alternative remedy,
the Lessor may, without terminating the term of this Lease, re -enter as above provided or take possession
pursuant to legal proceeding or pursuant to any notice provided for by law and thereafter shall use
reasonable diligence to re -let the Premises, or part thereof, for such term or terms, and at such reasonable
rental or rentals and upon such other terms and conditions as the Lessor may deem advisable, with the
right to make alterations and repairs to the Premises; and no such re -entry or taking of possession of the
Premises by the Lessor shall be construed as an election on the Lessor's part to terminate this Lease
unless the termination thereof be decreed by a court of competent jurisdiction, and no such repossession
by the Lessor shall relieve the Lessee of its obligation to pay Basic Rent and Additional Rent or of any of
its other obligations under this Lease, all of which shall survive such repossession, and the Lessee shall
continue to pay the Basic Rent and all Additional Rent provided for in this Lease until the end of the term
and whether or not the Premises shall have been re -let, less the net proceeds, if any, of any re- letting of
the Premises after deduction of all of the Lessor's expenses in or in connection with such re- letting,
including without limitation all repossession costs, brokerage commissions, legal expenses, attorney's
fees, expenses of employees, alteration costs, and expenses of preparation for re- letting. Having elected
to re -enter or take possession of the Premises without terminating this Lease or the term herein provided
for, the Lessor may by notice to the Lessee given at any time thereafter while the Lessee is in default in
the payment of Basic Rent or Additional Rent or in the performance of any other obligation under this
Lease, elect to terminate this Lease and the term then in effect on a date to be specified in such notice,
which date shall be not earlier than ten days after the giving of such notice, and if all defaults of the
Lessee shall not have been cured, on the date so specified, then the term and this Lease shall thereupon be
terminated.
If, in accordance with any of the foregoing provisions of this Article XVI, the Lessor shall have the right
to elect to re -enter and take possession of the Premises, the Lessor may enter and expel the Lessee and
those claiming through or under the Lessee and remove the property and effects of both or either (forcibly
if necessary) without being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenant.
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ARTICLE XVII
REMEDIES TO BE CUMULATIVE
(No Implied Waiver)
The Lessor and the Lessee shall each be entitled to specific performance and injunctive or other
equitable relief for any breach or threatened breach of any of the provisions of this Lease, notwithstanding
the availability of an adequate remedy at law, and each party hereby waives the right to raise such defense
in any proceeding in equity. The specific remedies provided for in this Lease are cumulative and not
exclusive of any other remedy. The failure of either party to insist in any one or more cases upon strict
performance shall not be construed as a waiver or relinquishment for the future. No acceptance of rent
with knowledge of any default shall be deemed a waiver of such default.
ARTICLE XVIII
MISCELLANEOUS
Section 18.1 If any provision of this Lease shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case, for any reason, such circumstances shall
not have the effect of rendering the provision in question inoperative and unenforceable in any other case
or circumstance, or of rendering any other provision or provisions herein contained, invalid, inoperative
or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or
paragraphs in this Lease contained shall not affect the remaining portions of this Lease or any part
thereof.
Section 18.2 So long as Lessee performs and observes all of its promises and obligations
under this Lease, it shall peaceably and quietly have, hold and enjoy the use of the Premises during the
Term of this Lease, subject to all the terms and provisions of this Lease.
Section 18.3 Lessee will, at any time and from time to time, upon not less than 20 days' prior
request by Lessor, execute, acknowledge, and deliver to Lessor a statement in writing, executed by the
Lessee, certifying that this Lease is unmodified and in full effect (or, if there have been modifications,
that this Lease is in full effect as modified, and setting forth such modifications) and the dates to which
the Basic Rent, and other sums payable hereunder have been paid, and either stating that to the knowledge
of the signer of such certificate, no default exists hereunder, or specifying each such default of which the
signer may have knowledge; it being intended that any such statement by Lessee may be relied upon by
the Mortgagee or by any prospective purchaser of the Premises.
Section 18.4 No failure by Lessor or Lessee to insist upon the strict performance of any term,
covenant, or agreement contained in this Lease or to exercise any right or remedy in connection therewith,
and no acceptance of full or partial payment during the continuance of any default by Lessee or default by
Lessor, shall constitute a waiver of any such term, covenant, or agreement or any such right or remedy for
any such default by Lessee or default by Lessor, it being understood and agreed by the parties hereto that
any such waiver shall be effective only to the extent expressly and specifically set forth in a written
instrument executed by the party against whom such waiver is sought, unless a consent or waiver is
deemed to have occurred under another provision of this Lease. Any waiver of a default by Lessee or
default by Lessor or any right or remedy applied thereto shall not serve to waive any other default by
Lessee or default by Lessor or the same default by Lessee or default by Lessor arising in the future or
other rights or remedies or the same rights or remedies as applied to any future default by Lessee or
default by Lessor.
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Section 18.5 Except as otherwise specifically provided herein, any notice, request, consent,
complaint, demand, communication or other papers, shall be sufficiently given and shall be deemed given
when hand delivered, sent by nationally recognized air courier providing proof of delivery or mailed by
registered or certified mail, postage prepaid, or sent by facsimile or other similar electronic
communication addressed to the parties as follows:
Lessee: City of Blair
218 South 16 Street
Blair, NE 68008
Lessor: Blair Public Library Foundation
210 South 17 Street
Blair, NE 68008
The above parties may, by notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 18.6 If the date of payment of any Basic Rent or Additional Rent shall be a Saturday
or Sunday or a legal holiday on which banking institutions are authorized by law to close in the City of
Blair, Nebraska, then payment of Basic Rent or Additional Rent shall be made on the succeeding business
day with the same force and effect as if made on the date specified herein.
Section 18.7 This Lease shall not be recorded but at Lessor's or Lessee's request both Lessor
and Lessee shall execute one or more memoranda or short form leases to evidence and represent the
provisions of this Lease for recording in the office of the Register of Deeds of Washington County,
Nebraska. Lessor agrees to execute and deliver such memoranda or short form in recordable form, in a
form approved by Lessor in its reasonable discretion.
Section 18.8 This Lease may be amended by the Lessor and the Lessee only by an amendment
in writing duly executed by the parties hereto.
Section 18.9 This Lease may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
Section 18.10 This Lease shall be governed by and construed in accordance with the laws of the
State of Nebraska.
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IN WITNESS WIIEREOF, Lessor has caused this Lease to be signed in its name and behalf by
its authorized officer, and Lessee has caused this Lease to be signed in its name and behalf by its Mayor
and City Cleric, this Lease to be effective as of the date of its execution and delivery.
CITY OF BLAIR, NEBRASKA, Lessee
B
Ma or
ATTEST:
By:
Clerk
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EXHIBIT A TO LEASE AGREEMENT
REAL ESTATE
Lot 86, Deerfield Addition, City of Blair, Washington County, Nebraska
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EXHIBIT ', LEASE AGREEMENT
IMPROVEMENTS
[ATTACH PLAN OR DESCRIPTION]
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