Use and Operation. Developer covenants that at all times during the Term, it will, at its expense: (a) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use"). (b) Conduct its business at all times in a dignified quality manner and in conformity with first-class industry standards and in such manner as to help establish and maintain a high reputation for the Project. (c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows: (i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and (ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction; (iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding; (iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region. (d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein. (e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then: (i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects; (ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds; (iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2. (f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UG: (i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG and Developer in their reasonable discretion. (ii) A car wash facility. (iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal. (iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals. (v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry. (vi) Salvage or reclamation yards and the storage of inoperative vehicles. (vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores. (viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project. (ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements. (x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted). (xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements. (xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model. (xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above). (xiv) Any mortuary or funeral home. (xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials. (xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant. (xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue. (xviii) Any hookah bars or other establishment with a primary focus on smoking. (xix) Pay-day or title loan facilities. (xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project. (xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic. (xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations. (xxiii) A flea market. (xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term of this Agreement.
Appears in 1 contract
Sources: Development Agreement
Use and Operation. Developer covenants that at all times during the Term, Term it will, will at its expense:
(a) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use").
(b) : Conduct its business at all times in a dignified quality manner and in conformity with first-class the industry standards for similar facilities and in such manner as to help establish maximize sales and/or rentals and maintain a high reputation for the Project.
(c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding Perform its duties to maintain the foregoing, Project and the parties hereby agree District as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject set forth in Section 6.03 hereof. Perform its duties to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenancerestore, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or and replace portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
Sections 6.07(b) and (e) d). Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are shopping center to be developed pursuant to this Agreement was critical to the UG's creation approval of the same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF DistrictProject (notwithstanding anything to the contrary herein, except as otherwise provided herein or with the prior written approval none of the UG:current uses of the Project as of the date hereof shall be prohibited hereunder):
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Projectshopping center. No oil, as determined by gasoline or flammable liquid shall be stored within the UG and Developer in their reasonable discretionDistrict.
(ii) A gas station or car wash facilitywash.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, Any pawn shop or smelting, drilling, mining, exploring or the producing of oil, gases or other mineralsflea market.
(v) Any use which involves the longstore selling discounted tobacco products or tobacco-term raising, breeding, and keeping of any animals or poultrysmoking paraphernalia.
(vi) Salvage Pay-day or reclamation yards and the storage of inoperative vehiclestitle loan facilities.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(xviii) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xiix) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations CERCLA, RCRA and other Applicable Laws and Requirements (as defined herein).
(x) Any automobile, truck, trailer or recreational vehicle with outside sales, leasing, or display unless (i) previously approved by the City, or (ii) in conjunction with temporary promotions, displays and other similar marketing activities, or (iii) for the sale of luxury vehicles displayed only within an indoor showroom for purposes of taking orders for cars, not storing inventory of any kind, subject, however, to compliance with all Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xvxi) Any establishment selling or exhibiting pornographic sexually oriented materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed nude dancers or wait staff and/or any massage parlors or similar establishmentsstaff; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xxxii) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that facility which uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic; provided however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxiixiii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiiixiv) A flea marketHousing in which rent is government-subsidized or "low income" housing.
(xxivxv) Any use not permitted by the applicable zoning ordinance of the UGCity. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UGCity’s Code and/or the City’s zoning ordinance.
2. Any notice sent in accordance with the Development Agreement to Assignee shall constitute notice under the Development Agreement and the Assignee shall be deemed to have knowledge of the contents of such notice if sent to an agent registered to receive service for Assignee in any jurisdiction where Assignee has registered such an agent or to the following address ("Assignee's Code Notice Address"): EEL ▇▇▇▇▇, LLC P.O. Box 309 Paicines, CA 95043 Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
3. If at any time a payment is due to be paid by the City to the Developer under the Development Agreement, then the City shall be deemed to have satisfied its obligation to make such payment to Developer upon dispatch of Ordinancesa check in the amount of such payment, payable and addressed to the payee of Developer in accordance with the Development Agreement. If at any time a payment is due to be paid by the City to Assignee under the Development Agreement, then the City shall be deemed to have satisfied its obligation to make such payment to such Assignee upon dispatch of a check in the amount of such payment, payable to Assignee, and addressed care of any agent registered to receive service for Assignee in any jurisdiction where Assignee has registered such an agent or to Assignee's Notice Address. No Party will have any action or claim against the City for any payment made in accordance with this Section 3.
4. Each Party hereby grants to each other Party, and their respective agents, successors, and assigns, nonexclusive easements on, over, under, and across all portions of the Project Site owned by such grantor Party to use, for as long as the Development Agreement is in effect and not terminated or expired, to the extent necessary to perform any and all obligations under the Development Agreement.
5. The UG's Board Parties consent to, and shall cooperate in, recording an executed original of Commissioners may grant variances this Agreement for public notice in the office of the Johnson County Records and Tax Administration, as soon as practical after this Agreement has been executed by all Parties, and the Parties agree to deliver a copy of the same to the restrictions set forth in this Section 6.2(f) City as soon as practicable after such recording.
6. Each Party hereby certifies, represents, and warrants to the City that the transfer and assignment from time Developer to time in its sole Assignee is permitted under the terms and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and conditions of the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term of this Development Agreement.
7. The City may rely on this Agreement and its contents in performing its obligations under the Development Agreement.
Appears in 1 contract
Sources: Assignment and Assumption Agreement
Use and Operation. Developer covenants that at all times during the Term, it will, at its expense:
(a) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use").
(b) Conduct its business at all times in a dignified quality manner 2.01 Subject to and in conformity accordance with first-class industry standards all rules, regulations, laws, ordinances, statutes and in such manner requirements of all governmental authorities and the Fire Insurance Rating Organization and Board of Fire Insurance Underwriters, and any similar bodies having jurisdiction thereof as to help establish well as the terms and maintain a high reputation provisions of the Condominium Documents, Tenant covenants and agrees that it shall use the Demised Premises solely for the Project.
(c) Open retail sale of apparel, shoes, fragrances, cosmetics and occupy accessories all bearing the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇“M▇▇▇▇▇▇ hereby understands ▇▇▇▇”, “KORS M▇▇▇▇▇▇ ▇▇▇▇” or “M▇▇▇▇▇▇ M▇▇▇▇▇▇ ▇▇▇▇” labels and other such merchandise as may be sold in other “M▇▇▇▇▇▇ ▇▇▇▇” stores from time to time and for no other purpose.
2.02 Tenant agrees that that, notwithstanding anything to the nature contrary contained in this lease, Tenant will comply, and cause its employees to comply, with the provisions of this lease and the rules and regulations relating to the Building and the Condominium Documents. Without intention to limit the generality of the retail uses within foregoing in any respect, in no event shall pornographic or “X-rated” books, newspapers, magazines, literature, or other merchandise, or books, newspapers, magazines, literature, or other merchandise of an obscene or sexually-oriented nature, be displayed and/or sold in the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UGDemised Premises.
2.03 Tenant agrees to:
(ia) Any use which is offensive by reason at Tenant’s sole cost and expense, keep the Demised Premises (including the exterior and interior portions of odorall windows, fumesdoors and all other glass) in a neat and clean condition and, dustif the Demised Premises become infested with vermin, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious cause the same to be exterminated from time to time to the reasonable satisfaction of Landlord;
(b) maintain, at Tenant’s sole cost and expense, the Demised Premises and all of Tenant’s personal property therein in accordance with the general reputation and character of the Project, as determined by the UG and Developer in their reasonable discretion.Building;
(iic) A car wash facility.Intentionally omitted;
(iiid) A facility primarily used obey and observe (and compel its officers, employees, contractors, licensees, invitees, subtenants, concessionaires and all others doing business with it, to obey and observe), at Tenant’s sole cost and expense, all rules and regulations reasonably established by Landlord from time to time for the Building, so long as a storage warehouse operationthe same be not discriminatory with respect to Tenant; but Landlord shall, mini- warehouseexcept in case of emergency, or freight terminal.give Tenant at least five (5) days’ notice of the establishment thereof;
(ive) A facility for the assemblinghandle and dispose of all rubbish, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, garbage and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not waste from Tenant’s operations in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved areas designated by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) Landlord from time to time in its sole accordance with regulations reasonably established by Landlord and absolute discretion. At Closingnot permit the accumulation of any rubbish or garbage in, on, or within thirty about any part of the Building;
(30f) days thereaftercomply with all of the terms and provisions of the Declaration and By-Laws of the Condominium; and
(g) Tenant hereby agrees that the agreements, Developer terms, covenants and the UG shall execute a document which shall memorialize the restrictions set forth conditions contained in this Section 6.2(f2.03 shall, in no event or respect, be taken, deemed, interpreted, or construed to limit the generality of Section 2.02 in any respect or to define or otherwise affect the scope or breadth of the said Section 2.02.
2.04 Tenant agrees that it shall not, at any time, without first obtaining Landlord’s prior written consent:
(a) use, or permit to be used or obstructed, any corridor, or any other space outside the Demised Premises, for display, sale, storage, or any other similar undertaking;
(b) use the plumbing facilities for any purpose other than that for which they were constructed, or dispose of any garbage or other foreign substance therein, whether through the utilization of so-called “disposal” or similar units, or otherwise;
(c) perform any act, or carry on any practice, that damages, mars, or defaces the Demised Premises or any other part of the Building;
(d) permit window cleaning or other maintenance and janitorial services in and for the Demised Premises to be performed except in accordance with all laws and by such person(s) or entities as shall be approved by Landlord (which approval Landlord shall not unreasonably withhold or delay) and record except during reasonable hours designated for such purposes by Landlord;
(e) place a load on any floor in the Demised Premises exceeding the floor load per square foot that such floor was designed to carry and that is allowed by law, or install, operate or maintain therein any heavy item of equipment;
(f) take any action that would (i) violate Landlord’s union contracts, if any, affecting the Building, (ii) create any work stoppage, picketing, labor disruption, or labor dispute, (iii) interfere with the business of Landlord or any customer or other person(s) lawfully in and upon the Building or (iv) cause any impairment or reduction of the good will or reputation of the Building;
(g) subject any fixtures, equipment or any Tenant’s Property in or on the Demised Premises and affixed to the realty, to any mortgages, liens, conditional sales agreements, security interests, chattel mortgages, financing statements, pledges or encumbrances of any kind whatsoever which in any manner affect or encumber the Demised Premises. In furtherance thereof, Tenant shall pay for all fixtures, furnishings, equipment and any Tenant’s Property in cash or its equivalent; however, notwithstanding the foregoing, Tenant may finance the acquisition of trade fixtures and trade equipment provided same do not result in an lien or encumbrance upon the Demised Premises;
(h) suffer, allow or permit any offensive or obnoxious vibration, unreasonable noise or odor or other undesirable effect to emanate from the Demised Premises; upon notice by Landlord to Tenant that any of the aforesaid is occurring, Tenant shall forthwith (but in all events within three (3) days) remove or control the same, and if any such condition is not so remedied, then Landlord may, at its discretion, treat such failure as a default hereunder; and Tenant hereby agrees that the agreements, terms, covenants and conditions contained in this Section 2.04 shall, in no event or respect, be taken, deemed, interpreted, or construed to limit the generality of Section 2.02 in any respect or to define or otherwise affect the scope or breadth of the said Section 2.02.
2.05 If any governmental license or permit, other than a temporary or permanent Certificate of Occupancy permitting the Demised Premises to be used for the purposes permitted under this lease which Landlord shall secure, shall be required for the proper and lawful conduct of Tenant’s business in the Demised Premises, or any part thereof, and if failure to secure such license or permit would in any way affect Landlord or the Condominium, Tenant, at its expense, shall duly procure and thereafter maintain such license or permit and submit the same against the Project Site, which restrictions for inspection by Landlord. Tenant shall be effective and run at all times comply with the land terms and conditions of each such license or permit.
2.06 Tenant shall not at any time use or occupy, or suffer or permit anyone to use or occupy, the Demised Premises, or do or permit anything to be done in the Demised Premises, in violation of the Certificate of Occupancy for the Term Demised Premises or for the Building.
2.07 Tenant acknowledges that the provisions of this AgreementArticle 2 are a material inducement to the Landlord for the execution of this lease.
Appears in 1 contract
Sources: Lease Agreement (American Realty Capital New York Recovery Reit Inc)
Use and Operation. Developer covenants that at all times during of the Term, it will, at its expense:Hotel and Quiet Enjoyment --------------------------------------------------
(a) Use A. Tenant shall operate the Project only Hotel as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use").
(b) Conduct hotel and for no other use and under standards comparable to those prevailing for other Courtyard by Marriott hotels operated by Tenant or its business at Affiliates and for all times in a dignified quality manner and in conformity with first-class industry standards and in such manner as to help establish and maintain a high reputation for the Project.
(c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only activities in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days therewith that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in usual to such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG and Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse an operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction Tenant shall not be held to such standard if Landlord fails (i) to approve the Repairs and Equipment Estimate or provide funds necessary to pay for the repairs, replacements, and renewals covered therein in the event funds in the Reserve are inadequate, or (ii) to approve the Building Estimate or provide funds necessary to pay for the alterations, improvements, renewals and replacements covered therein, in either case if Landlord's failure to so approve or provide funds prevents Tenant from maintaining such standard. Tenant shall, except as otherwise provided in this Agreement, be responsible for the proper and efficient operation of the Hotel.
B. Tenant shall have the option to terminate the Agreement at any way prohibit time upon sixty (60) days' written notice to Landlord in the event of a withdrawal or revocation, by any lawful governing body having jurisdiction thereof, of any license or permit required for Tenant's performance where such withdrawal or revocation is due to circumstances beyond Tenant's control.
C. Except as otherwise provided herein, Tenant shall, during the Term, operate the Hotel continuously except to the extent and for such time as Tenant is unable to operate the Hotel according to the standards set forth herein as a result of (1) damage or destruction caused by fire, casualty, or other cause, (2) condemnation, (3) any of the occurrences described in Section 15.03, or (4) all or any portion of the Hotel being closed for alterations, improvements, renewals, rebuilding, or repairs.
D. Tenant shall, upon the request of Landlord or Landlord's mortgagees, or the agent of either of them, make a qualified representative from Tenant's corporate staff available at reasonable times and intervals to answer questions regarding the operation of high quality antique or so-called vintage storesthe Hotel.
E. Tenant shall use reasonable efforts to comply with and abide by all applicable laws and regulations, including, without limitation, environmental laws and regulations, pertaining to its operation of the Hotel, provided that (viiii) Any mobile home parkall costs and expenses of such compliance shall be paid from Gross Revenues as Deductions or from the Reserve, camp groundwhichever is applicable under the provisions of this Agreement, trailer courtand (ii) Tenant shall have the right, or labor camp; providedbut not the obligation, however, that the foregoing restriction subject to Landlord's prior written approval which approval shall not be applicable to: (1) unreasonably withheld, to contest or oppose, by appropriate proceedings, any such laws and regulations; the temporary use reasonable expenses of construction trailers during periods such contest shall be paid from Gross Revenues as Deductions.
F. Possession of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, gueststhe Hotel shall be delivered to Tenant on the Effective Date, and participants Tenant shall quietly hold, occupy, and enjoy the Hotel throughout the term of the Project.
(ix) Any dumpingthis Agreement without any hindrance, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF Districtejection, or elsewhere within TIF District subject molestation by Landlord or anyone claiming under or through Landlord, subject, nevertheless, to the approved final Development Plan, the Project Plan, terms and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term conditions of this Agreement.
Appears in 1 contract
Sources: Lease Agreement (Courtyard by Marriott Limited Partnership)
Use and Operation. (a) Developer covenants that at all times during the TermTerm (or such lesser period as set forth in Section 7.2(e) below), it will, at its expense:
(ai) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (for the "Permitted Use")Uses.
(bii) Conduct its business at all times in a dignified quality manner and in conformity with the first-class industry standards and in such manner as to maximize sales (if applicable to operations of any particular use) and to help establish and maintain a high reputation for the Project.
(ciii) Open and occupy Occupy the Homefield Project by as soon as possible in accordance with the Completion Date Dates described in Section 6.6 above and for fifteen (15) years thereafter continuously operate and conduct business in 100% of the Homefield Project, and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar office space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; maintain an adequate number of trained personnel for efficient service to customers; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class industry standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to maximize sales and to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, Developer hereby understands and agrees that if Developer fails to continuously operate the Homefield Project at any time during the Term, Developer shall no longer be entitled to any CID Proceeds hereunder. Notwithstanding the foregoing, the parties hereby agree as follows:
(i1) the Improvements shall Homefield Project may be continuously open during reasonable Business Hours, subject to Developer's closed for all legal holidays; (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii2) the ImprovementsHomefield Project, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, Casualty and/or reconstruction;
; (iii3) portions of the Improvements or portions thereof Homefield Project may be temporarily closed during remodeling or remodeling; (4) Homefield Outdoor and Homefield Baseball may be closed during periods of rebranding;
off-peak seasonal periods; and (iv5) all or a portion of the garden center/outdoor sales area of the Homefield Project may be closed on a seasonal basis during other unusual circumstances which would preclude Developer from conducting business as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 belowusual, including without limitation, the right but not limited to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noiseRace Days, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG for health and safety reasons if Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record reasonably believes the same against the Project Site, which restrictions shall to be effective prudent and run with the land for the Term of this Agreementnecessary.
Appears in 1 contract
Sources: Development Agreement
Use and Operation. Developer covenants that at all times during the Term, it will, at its expense:
(a) Use and operate the Commercial Unit portion of the Project in accordance with the Bridge Lease only as for a prototypical Menards home improvements store as first-class recreational, entertainment and commercial space for the uses described in Section 2.2 above (for each of the "Permitted Use")Improvements.
(b) Use and operate the Public Use Unit portion of the Project as public spaces in accordance with the Management Agreement, it being understood and agreed that these portions of the Project shall be deemed to be community assets and shall be open and available to the public during hours of operation that are consistent with other similar publicly available spaces and more particularly set forth in the Management Agreement. Without limiting the generality of the foregoing, Developer understands and agrees that the Trail and Trail Amenities shall be open and available to pedestrians and bicycle traffic at least during hours of operation that are consistent with other similar UG trails and amenities.
(c) Conduct its business at all times in a dignified quality manner and in conformity with first-class industry standards and in such manner as to help establish and maintain a high reputation for the Project.
(c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ Developer hereby understands and agrees that the nature of the retail commercial uses within the TIF District are Project Site were critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF DistrictProject Site, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG and Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) food trucks, trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District Project Site subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District Project Site to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations (as defined in Annex 1) and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District Project Site of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A The Project shall not be a nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided however that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurantthe parties hereby understand and agree that the bars in the Project may remain open and operating and serving alcoholic beverages after the Food Hall and other components of the Project have closed for the night.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners Commission may grant variances to the restrictions set forth in this Section 6.2(f7.2(d) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f7.2(d) and record the same against the real property within the Project Site, which restrictions shall be effective and run with the land for the Term of this Agreement. The UG shall consent to additional reasonable development, use and maintenance covenants for the Project Site to ensure the ongoing, high-quality use of the Project.
Appears in 1 contract
Use and Operation. Developer covenants that at all times during the Term, Term it will, at its expense:
(a) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use").
(b) Conduct its business at all times in a dignified quality manner and in conformity with first-class the industry standards for similar facilities and in such manner as to maximize sales and/or rentals and to help establish and maintain a high reputation for the Project.
(b) Perform its duties to maintain the Project and the District as set forth in Section 6.3 hereof.
(c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as Perform its duties to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or restore and replace portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers set forth in the Midwest regionSections 6.7(b) and (d).
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are project to be redeveloped pursuant to this Agreement was critical to the UG's creation approval of the same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UGProject:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the shopping center. No oil, gasoline or flammable liquid shall be stored within the Project, as determined by the UG and Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop shop, flea market or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viiiiii) Any mobile home park, camp ground, trailer court, Pay-day or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Projecttitle loan facilities.
(ixiv) Any store selling discounted tobacco products or tobacco-smoking paraphernalia, including without limitation, smokeless cigarettes, electronic and vapor smoking devices.
(v) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within in the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(xvi) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within of the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xivii) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with all Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) aboveas hereinafter defined).
(xiv) Any mortuary or funeral home.
(xvviii) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishmentsstaff; except that this provision shall not be deemed to preclude the operation within in the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xviix) A nightclub, which shall be deemed to mean any bar, club Any restaurant or other establishment tavern that derives more than seventy percent (70% or more %) of its gross receipts sales from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality breweryalcohol, distillery or restaurant.which includes any nightclub;
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxiix) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operationsbut not including any reputable jewelry
(xi) Housing in which rent is government-subsidized or "low income" housing.
(xxiii) A flea market.
(xxivxii) Any use not permitted by the applicable zoning ordinance Zoning Ordinance of the UGCity. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's City’s Code of Ordinances. The UG's Board of Commissioners may grant variances to and/or the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. City’s Zoning Ordinance At the Closing, or within thirty (30) days thereafter, Developer and the UG City shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f6.2(d) and record the same against the Project Sitereal property within the District, which restrictions shall be effective and run with the land for the Term of this Agreement.
Appears in 1 contract
Sources: Redevelopment Agreement
Use and Operation. Developer covenants that at all times during the Term, it will, at its expense:
(a) Use the Project only as a prototypical Menards home improvements store as described in Section 2.2 above (the "Permitted Use").
(b) Conduct its business at all times in a dignified quality manner and in conformity with first-class industry standards and in such manner as to help establish and maintain a high reputation for the Project.
(c) Open and occupy the Project by the Completion Date and thereafter continuously operate and conduct business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest region.
(d) Developer hereby recognizes that its covenants in this Section 6.2 are a material consideration to the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth herein.
(e) Developer acknowledges that damages for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 below, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ Developer hereby understands and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG and Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within the TIF District of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvi) A nightclub, which shall be deemed to mean any bar, club or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted by the applicable zoning ordinance of the UG. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term of this Agreement.
Appears in 1 contract
Sources: Development Agreement
Use and Operation. Developer covenants that at all times during the Term, it will, at its expense:
(a) Use the Project only for retail, restaurant, and/or other commercial uses, and surface parking, as a prototypical Menards home improvements store well as described in Section 2.2 above all associated public and private infrastructure (the "Permitted UseUses").
(b) Conduct its business at all times in a dignified and quality manner and in conformity with first-class the highest industry standards and in such manner as to help establish and maintain a high strong reputation for the ProjectProject in accordance with industry standards.
(c) Open and occupy Use commercially reasonable efforts to cause the Project by the Completion Date and thereafter to be continuously operate and conduct operated during normal business and without interruptionhours; provided, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection with the business conducted by Developer in the Project; furnish and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region ("Business Hours") and in such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoinghowever, the parties hereby acknowledge and agree as follows:
that it shall not constitute a default of this Agreement, nor entitle the UG to exercise any remedies hereunder or at law or in equity, in the event that the Project (i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods thereof) is not continuously operated at any point during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest regionTerm.
(d) Developer hereby recognizes that its covenants Maintain the Site in this Section 6.2 are a material consideration to compliance with the UG. Without the covenants set forth in this Section 6.2, the UG would not agree to provide the TIF Financing set forth hereinLandscape Plan and at all times trimmed and well-maintained.
(e) Developer acknowledges that damages Provide reasonable security for the breach of the covenants contained in this Section 6.2 may be very difficult to ascertain. Accordingly, in the event of a breach of the covenants contained in this Section 6.2, then:
(i) The UG shall be entitled to pursue such damages for any breach of the covenants contained in this Section 6.2 as it elects;
(ii) The UG shall have the right to exercise all of its rights and remedies described in Section 8.2 belowProject, including without limitation, the right to a return of any previously disbursed TIF Proceeds and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2appropriate lighting.
(f) Perform its duties to repair, restore and replace the Improvements as set forth in Sections 5.4 and 5.10 hereof; provided however that notwithstanding anything herein to the contrary, nothing in this Agreement shall require Developer to make renovations or upgrades to the Improvements beyond what is set forth in the Plans and Specifications.
(g) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands Developer and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties UG hereby agree that the following uses shall be prohibited within on or about the TIF DistrictSite, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is unreasonably offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion,. No oil, gasoline or injurious flammable liquid shall be stored in bulk in greater than fifty-five gallon containers except in underground storage tanks, except as otherwise allowed pursuant to the reputation of the Project, as determined by the UG all Applicable Las and Developer in their reasonable discretionRequirements.
(ii) A gas station or car wash facilityfacility other than in accordance with Applicable Laws and Requirements including an approved Development Plan.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal; provided however that the foregoing restriction shall not in any way prohibit the operation of small warehouse or mini-warehouse if operated in connection with and ancillary to a permitted retail use.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any use which involves the long-term raising, breeding, and or keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, provided however, that the foregoing restriction shall not in any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near on the rear of any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and Site in compliance accordance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted)operation.
(xi) Any shows or sales of guns and/or ammunition.
(xii) Any central laundry, or laundromat; provided.
(xiii) Any automobile, truck, trailer or recreational vehicle with outside sales, leasing, or display unless approved by the UG or in conjunction with promotions, displays and other similar marketing activities, subject, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies compliance with Environmental Regulations and other all Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiiixiv) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above)including a quick service facility.
(xivxv) Any mortuary or funeral home.
(xvxvi) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision shall not be deemed to preclude the operation within in the TIF District Site of either a nationally or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory of books, magazines and/or related pharmaceutical materials.
(xvixvii) A nightclub, which shall be deemed to mean any bar, restaurant, club or other establishment that derives 70% fifty percent (50%) or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xviixviii) Any store selling discounted tobacco products, CBD products, electronic or vapor cigarettes or other smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality and reputable gas station or convenience store, or other businesses where such products are sold but are not relevant to the business's primary source of revenue.
(xviiixix) Any hookah bars or other establishment with a primary focus on smoking.
(xixxx) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kind, including without limitation, inflatable signs or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular trafficprecious metal facilities.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use ; provided however that the foregoing restriction shall not permitted by in any way prohibit the applicable zoning ordinance operation of a "city market" for the UG. The foregoing list sale of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinancesfresh fruits, vegetables and other foods and flowers and other similar items. The UG's Board of Commissioners may Commission is hereby authorized to grant variances to the restrictions set forth in this Section 6.2(f5.2(g) from time to time in its sole and absolute discretion. At Closing, or within thirty (30) days thereafter, Developer and the UG shall execute a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term of this Agreement.Within thirty
Appears in 1 contract
Sources: Redevelopment Agreement
Use and Operation. Developer covenants that at all times during the Term, it will, at its expense:
(a) Use The Premises shall be used and occupied by Tenant (and its permitted assignees and subtenants) for general office purposes, including, as incidental thereto, SCIF areas (provided that such SCIF areas shall not comprise greater than 1,000 rentable square feet in the Project only as aggregate without Landlord’s prior consent, which consent shall not unreasonably withheld, conditioned or delayed), server room and telecom closets, conference facilities, meeting and training facilities, and the operation of a prototypical Menards home improvements store as described in Section 2.2 above cafeteria for use by Tenant’s employees, clients and invitees (the "“Permitted Use"”), and for no other purpose whatsoever, without Landlord’s prior written consent. The Premises shall not be used for any purpose which is is not commonly found and operated in other Comparable Buildings. Tenant shall be solely responsible for obtaining and maintaining all governmental licenses, permits and operating certificates necessary for Tenant’s use of the Premises (other than the base building non-residential use permit which shall permit use of the Premises for general office purposes, which Landlord has obtained), Tenant shall keep current such permit or license at Tenant’s sole expense, and shall promptly deliver a copy thereof to Landlord.
(b) Conduct its business In addition to and not in limitation of the other restrictions on use of the Premises set forth in this Section 5, Tenant hereby agrees that the following uses of the Premises shall not be considered to be part of the Permitted Use and shall not be permitted: (i) any use of the Premises by an organization or person enjoying sovereign or diplomatic immunity (although the presence of governmental employees within the Premises in connection with Tenant’s government contracts shall be permitted); (ii) any use of the Premises by or for any medical, mental health or dental practice; (iii) any use of the Premises by or for an employment agency or bureau; (iv) any use of the Premises for classroom purposes (in the manner of a for-profit college or university, tutoring programs for minors and other similar uses, but excluding employee training); (v) any use of the Premises by or for any user which distributes governmental or other payments, benefits or information to persons that personally appear at all times the Premises; or (vi) any other use of the Premises or any portion of the Project by any user that will attract a volume, frequency or type of visitor or employee to the Premises or any portion of the Project or the Building which is not consistent with the standards of Comparable Buildings or that will in a dignified quality manner any way impose an excessive and in conformity with first-class industry standards and in such manner as to help establish and maintain a high reputation for unreasonable demand or use on the Projectfacilities or services of the Premises or the Building.
(c) Open The Building is currently in the Planned Development Commercial (PDC) zoning district. Tenant acknowledges and occupy the Project by the Completion Date and thereafter continuously operate and conduct agrees it is solely responsible for determining its business and without interruption, use, occupy and operate all of the same, other than such minor portions thereof as are reasonably required for maintenance, storage and office purposes; use such storage and similar space only in connection complies with the business conducted by Developer in the Project; furnish applicable zoning regulations, and install all trade fixtures and permitted signs; open for business and remain open during the entire Term from at least the hours and days that are customary in conformance with first-class standards for other similar home improvement retail stores in the Midwest region Landlord makes no representation ("Business Hours"explicit or implied) and in concerning such manner as to help establish and maintain a high reputation for the Project. Notwithstanding the foregoing, the parties hereby agree as follows:
(i) the Improvements shall be continuously open during reasonable Business Hours, subject to Developer's (x) security and management restrictions; and (y) right to temporarily close as necessary for repair, maintenance, etc.; and
(ii) the Improvements, or any portion thereof may be closed temporarily for periods during national or regional pandemics, casualty, and/or reconstruction;
(iii) the Improvements or portions thereof may be temporarily closed during remodeling or during periods of rebranding;
(iv) all or a portion of the garden center/outdoor sales area of the Project may be closed on a seasonal basis as is customary for other similarly-situated garden centers in the Midwest regionzoning regulations.
(d) Developer hereby recognizes that its covenants Tenant shall not do or permit anything to be done in this Section 6.2 are a material consideration or about the Premises other than the Permitted Use which will in any way (i) unreasonably and materially interfere with the rights of, or injures, other tenants of the Building; or (ii) unreasonably interferes with the operation of the Building or Project; or (iii) allow to be committed any waste to the UGPremises, Building or Project; or (iv) constitute a public or private nuisance in, on, or about the Premises based on a Comparable Buildings standard. Without Tenant shall keep all doors leading from the covenants set forth Premises to the rest of the Building closed when not in this Section 6.2use. Tenant shall not occupy or use, or permit any portion of the UG Premises to be occupied or used for any business or purpose which is unlawful or permit anything to be done, other than the Permitted Use, which would not agree to provide in any way increase the TIF Financing set forth hereinrate of all-risk property insurance coverage carried by Landlord on the Project and/or its contents.
(e) Developer acknowledges Without limiting the foregoing or any other provisions of this Lease, Tenant shall observe and conform to the rules and regulations attached hereto as Exhibit I (as the same may be modified from time to time by Landlord in accordance with this Lease provided that damages (a) a copy thereof is sent to Tenant and (b) such new rule or regulation does not materially, adversely affect Tenant’s use and enjoyment of, or access to, the Premises for the breach Permitted Use) (the “Rules and Regulations”). Landlord shall make commercially reasonable efforts to enforce such rules and regulations in a uniform and non-discriminatory manner and Landlord shall not discriminate against Tenant in the enforcement of the covenants contained in this Section 6.2 may be very difficult to ascertainany rule or regulation. Accordingly, in In the event of a breach conflict between the provisions of such rules and regulations and the provisions of this Lease, the provisions of this Lease shall control.
(f) Subject to compliance with all of the covenants contained other terms and provisions of this Lease, Tenant shall be entitled, without Landlord’s consent, to permit Tenant’s clients, service providers, teaming partners, subcontractors, and/or independent contractors of Tenant business partners, subsidiaries, affiliates and customers with whom Tenant has a direct business relationship to use in this Section 6.2the ordinary course of, then:
and incidental to, Tenant’s business, portions of the Premises for a period not to exceed twenty-four (24) months as to any such client, business partner, subsidiary, affiliate or customer; provided (i) The UG shall be entitled such use is permitted under, and in compliance with, the terms of this Lease and is related to pursue Tenant’s business in the Premises and Tenant does not directly charge such damages user for any breach of the covenants contained in this Section 6.2 as it elects;
such use, (ii) The UG shall have such user does not acquire any possessory interest in the right to exercise Premises or any portion thereof, (iii) all such users, in the aggregate, do not occupy more than twenty percent (20%) of its rights and remedies described in Section 8.2 belowthe rentable square footage of the Premises, (iv) such user complies with the terms of this Lease, including without limitation, the right to a return of any previously disbursed TIF Proceeds Rules and the right to withhold any future TIF Proceeds;
(iii) Without limiting the generality of Sections 8.1 Regulations, and 8.2 of this Agreement, the UG shall be entitled to all reasonable costs and charges, including attorneys’ fees, lawfully and reasonably incurred by or on behalf of the City in connection with the enforcement of the covenants contained in this Section 6.2.
(f) Additionally, ▇▇▇▇▇▇▇▇▇ hereby understands and agrees that the nature of the retail uses within the TIF District are critical to the UG's creation of same. Accordingly, the parties hereby agree that the following uses shall be prohibited within the TIF District, except as otherwise provided herein or with the prior written approval of the UG:
(i) Any use which is offensive by reason of odor, fumes, dust, smoke, noise, or pollution, or which constitutes a nuisance or is hazardous by reason of fire or explosion, or injurious to the reputation of the Project, as determined by the UG and Developer in their reasonable discretion.
(ii) A car wash facility.
(iii) A facility primarily used as a storage warehouse operation, mini- warehouse, or freight terminal.
(iv) A facility for the assembling, manufacturing, refining, or smelting, drilling, mining, exploring or the producing of oil, gases or other minerals.
(v) Any the portion of the Premises used pursuant to this Section 5(f) does not have a separate entrance and is not separated from the other portions of the Premises by demising walls or similar slab-to-slab partitions (any such user permitted to use which involves the long-term raising, breeding, and keeping of any animals or poultry.
(vi) Salvage or reclamation yards and the storage of inoperative vehicles.
(vii) Any pawn shop or "second hand" store; provided, however, that Premises pursuant to the foregoing restriction shall not in be referred to as a “Permitted Desk User”); it being agreed that any way prohibit the operation of high quality antique or so-called vintage stores.
(viii) Any mobile home park, camp ground, trailer court, or labor camp; provided, however, that the foregoing restriction shall not be applicable to: (1) the temporary such use of construction trailers during periods of construction, reconstruction or maintenance; or (2) trailers, delivery trucks or recreational vehicles of invitees, guests, and participants of the Project.
(ix) Any dumping, disposing, incineration or reduction of garbage; provided, however, that this prohibition shall not be applicable to garbage compactors located near the rear of occupancy by any building within the TIF District, or elsewhere within TIF District subject to the approved final Development Plan, the Project Plan, and in compliance with all Applicable Laws and Requirements.
(x) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation (but this provision shall not restrict the absolute freedom of an owner of any portion within the TIF District to determine its own selling prices nor shall it preclude second-hand sales or the conduct of periodic seasonal sales, promotional or clearance sales, all of which are specifically permitted).
(xi) Any central laundry, or laundromat; provided, however, this prohibition shall not be applicable to a drop-off and pickup facility, or a central laundry or laundromat that complies with Environmental Regulations and other Applicable Laws and Requirements.
(xii) Any automobile, truck or equipment dealerships of any kind, including without limitation, facilities with permanent sales, leasing or displays of any automobile, truck, trailer or recreational vehicle, except for in conjunction with promotions, displays, and other marketing activities (subject to Applicable Laws and Requirements). Such restriction shall not be construed to apply to any ancillary vehicle or equipment rental that may be a part of Developer’s prototypical business model.
(xiii) Any body shop repair operation, engine repair or vehicle repair facility for all vehicles, including motorcycles, unless ancillary to new vehicle sales (if such new vehicle sales are entirely interior or are approved by the UG under subparagraph (xii) above).
(xiv) Any mortuary or funeral home.
(xv) Any establishment selling or exhibiting pornographic materials or which sells drug-related paraphernalia or which exhibits either live or by other means to any degree, nude or partially clothed dancers or wait staff and/or any massage parlors or similar establishments; except that this provision Permitted Desk User shall not be deemed a Transfer (as defined in Section 11(a)) or otherwise subject to preclude the operation within provisions of Section 11. A Permitted Desk User occupying any portion the TIF District Premises pursuant to this Section 5(f) shall be deemed not to have sublet any such space for purposes of either a nationally this Lease. Nothing contained in this Lease or regionally recognized high-quality book store, or a drug store or pharmacy, or a department within a retail store offering for sale its usual or customary inventory otherwise (including the provision of books, magazines and/or related pharmaceutical materials.
(xviany services to the Premises) A nightclub, which shall be deemed to mean (a) create any bar, club landlord-tenant or other establishment that derives 70% or more of its gross receipts from the sale of alcoholic beverages; provided that this restriction is not intended to prohibit a high-quality brewery, distillery or restaurant.
(xvii) Any store selling tobacco products, CBD products, electronic or vapor smoking devices or paraphernalia; provided that this restriction is not intended to prohibit a grocery store, drug store, high-quality relationship between Landlord and reputable gas station or convenience storeany Permitted Desk User, or other businesses where such products are sold but are not relevant (b) create any contractual liability or duty on the part of Landlord to the business's primary source of revenue.
any Permitted Desk User. Any act, omission or default (xviii) Any hookah bars or other establishment with a primary focus on smoking.
(xix) Pay-day or title loan facilities.
(xx) Any seasonal tax preparation facilities; provided, however, for purposes of clarity, nothing herein is intended to prohibit independent certified public accountants with office space in the Project.
(xxi) Any store or business that uses "street marketing" of any kindprovision of this Lease) by any such Permitted Desk User shall be deemed an act, including without limitation, inflatable signs omission or characters, people dressed in costume, holding signs or wearing sandwich-boards or otherwise advertising directly to pedestrians or vehicular traffic.
(xxii) Any precious metals facilities, except for and excluding high quality jewelry stores that purchase precious metals as an ancillary part of their business operations.
(xxiii) A flea market.
(xxiv) Any use not permitted default by the applicable zoning ordinance of the UGTenant. The foregoing list of prohibited uses is not intended to supplant the requirements and/or prohibition of uses stated within the UG's Code of Ordinances. The UG's Board of Commissioners may grant variances to the restrictions set forth in this Section 6.2(f) from time to time in its sole and absolute discretion. At Closing, or within Within thirty (30) days thereafterafter request by Landlord, Developer and the UG Tenant shall execute provide a document which shall memorialize the restrictions set forth in this Section 6.2(f) and record the same against the Project Site, which restrictions shall be effective and run with the land for the Term list to Landlord of this Agreementall then Permitted Desk Users.
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