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HomeMy WebLinkAbout1999-178 CCRits adoption: Member Robert Peppe introduced the following resolution and moved RESOLUTION NO. 99-178 RESOLUTION AUTHORIZING LEASE FOR LIQUOR STORE AT THE CUB FOODS DEVELOPMENT SITE WHEREAS, attached to and incorporated herein by reference is Exhibit A as a proposed shopping center lease between Brookdale Corner LLC and the City of Brooklyn Center for the operation of an approximately 6,300 square feet liquor store; and WHEREAS, the terms and conditions set forth in the shopping center lease attached hereto as Exhibit A appear to be reasonable and proper. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the Mayor and City Manager be and hereby are authorized to execute the shopping center lease attached hereto as Exhibit A on behalf of the City of Brooklyn Center with such finalization of the exact language to be set forth in the Exhibits as are deemed acceptable by the City Manager to finalize the exact descriptions set forth in the Exhibits. 1 November 8. 1999 Date j I A%A ATTEST: City Clerk Mayor a The motion for the adoption of the foregoing resolution was duly seconded by member Kay 'Lasman and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Debra Hilstrom, Kay Lasman, Ed Nelson, and Robert Peppe; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. i RESOLUTION NO. 99-178 SHOPPING CENTER LEASE THIS LEASE (the "Lease's is made as of this November EXHIBIT A , 1999, by and between BROOKDALE CORNER, LLC, a Minnesota limited liability company ("Landlord'; and CITY OF BROOKLYN CENTER, a Minnesota municipal-corporation ("Tenant'). Landlord and Tenant,"intending to be legally bound, hereby covenant and agree as follows: ARTICLE 1. LEASE SUMMARY AND DEFINITIONS The following definitions apply in this Lease: 1.1) Base Rent - PERIOD BASE RENT RATE ANNUAL BASE MONTHLY BASE PER SQUARE FOOT RENT RENT, Initial Term Lease Years 1-5 $14.50 $91,350.00 $7,612.50 Lease Years 6-10 $15.90 $100,170.00 $8,347.50 Extension Term Lease Years 11-15 $17.20 $108,360.00 $9,030.00 Lease Years 16-20 $18.50 $116,550.00 $9,712.50 1.2) Center - The land in Brooklyn Center, Minnesota, legally described on Exhibit A and all improvements, parking,, structures, fixtures, and appurtenances from time to time servicing and appurtenant thereto. 1.3) Exhibits and Riders - Exhibits A, B, C, D, E, F and G are attached hereto and incorporated herein. 1.4) Landlord's Address - c/o Welsh Companies, Inc., Attention: John J. Johannson, 8200 Normandale Avenue South, Suite 200, Bloomington, Minnesota 55437. 1.5) Percentage Rent - One and one-half percent (1.5%) of Tenant's Gross Sales (as defined below) in excess of the following annual Gross Sales breakpoints: Initial Term: Lease Years 1-5 $3,000,000.00 Years 6-10 $3,200,000.00 Option Period: Years 11-15 $3,400,000.00 Years 16-20 $3,600,000.00 1.6) Permitted Use - The Premises shall be used for the operation of a municipal liquor store for off-premises consumption and uses incidental thereto. 1.7) Premises - The space shown as the Premises on Exhibit B, which is approximately Six Thousand Three Hundred (6,300) rentable square feet located in the Center, which shall be constructed in accordance with Exhibit C attached hereto. 1.8) Use Restrictions - The use restrictions as provided in Article 5 of the Lease Agreement between Landlord and Diamond Lake 1994, L.L.C. dated May 12, 1999 (the "Cub Foods Lease Restrictions") shall apply to Tenant's use of the Premises, a copy of which are attached hereto as Exhibit E and incorporated herein. 1.9) Tenant's Address - City of Brooklyn Center, 6301 Shingle Creek Parkway, Brooklyn Center,'Minnesota 55430-2199. 1.10) Tenant's Business or Trade Name - "Brooklyn Center Liquor". 1.11) Term - Ten (10) years, commencing on the earlier of (a) the date Tenant opens for business or (b) sixty (60) days following Landlord's delivery of the Premises to Tenant with Landlord's Work substantially completed (the "Commencement Date'), unless sooner terminated as set forth herein. The Term may be extended as provided in Exhibit D. ARTICLE 2. DEMISE, TERM 1 2.1) Landlord hereby leases to Tenant and Tenant hereby leases the Premises from Landlord, subject to the terms of this Lease and the matters of record against the Center listed on Exhibit F attached hereto, together with the appurtenances specifically granted in this Lease including the nonexclusive use of the Common Areas (as defined below), but reserving and 2. RESOLUTION NO. 99-178 excepting to Landlord the use of the exterior walls (other than storefront), the roof, and the right to install, maintain, use, repair, and replace pipes, ducts, conduits, wires, and appurtenant fixtures leading through the Premises. 2.2) The term "Lease Year" as used herein shall refer to each twelve (12) month period during the Term commencing on the Commencement Date. 2.3) If Tenant fails to open the Premises for business fully fixtured, stocked, and staffed on the Commencement Date, Landlord may, in addition to all other remedies available under this Lease or at law, terminate this Lease upon not less than three (3) days' notice to Tenant. 2.4) In the event the grocery store located adjacent to the Premises permanently closes, Tenant shall have the exclusive right to terminate this Lease upon six (6) months prior written notice to Landlord. Tenant's right to terminate this Lease shall not apply to and Tenant's termination notice shall be deemed rescinded if Landlord replaces the existing grocery store operator with an experienced multi-unit grocery store operator during the six (6) month period which follows Tenant's notice to Landlord. Tenant's right to terminate this Lease shall not apply to a temporary closing of the grocery store for reconstruction or restoration after condemnation or casualty, a temporary closing for remodeling, or a temporary closing for any other reason not to exceed ninety (90) days. ARTICLE 3. BASE RENT Tenant shall pay to Landlord the Base Rent payable in equal monthly installments, on or before the first day of each and every month starting on the Commencement Date and continuing during each Least' Year. If the Commencement Date is other than. the first day of a calendar month, the Base Rent for the first and last fractional month shall be prorated. ARTICLE 4. PERCENTAGE RENT 4.1) Tenant shall pay to Landlord, without setoff, deduction, or demand, within thirty (30) days after June 30 (the "Midyear Date') and December 31 (the "Year-End Date") during the Term, Percentage Rent equivalent to the amount by which the percentage (specified in Section 1.5 hereof) of Gross Sales (as defined below) for each six (6) month period exceeds one- half of the annual Gross Sales breakpoint specified in Section 1.5 hereof for such six (6) month period. Each semi-annual payment of Percentage Rent shall be computed based on the statements of Gross Sales referred to in this Article 4. Within thirty (30) days after delivery of the annual statement of Gross Sales, Landlord or Tenant (as the case may be) shall make an adjusting payment in the amount of the difference between the Percentage Rent actually paid by Tenant during the preceding calendar year and the final Percentage Rent payable for such calendar year, based upon such statement, provided that any adjusting payment by Landlord shall 3. be subject to any audit under this Section 4 and neither party shall be entitled to interest on any such payment. 4.2) "Gross Sales" shall mean the sum of: (a) the actual selling price of all goods sold; (b) the rent received or due and receivable for all goods leased, if any; (c) the charges for all services rendered, if any; and (d) the receipts and receivables from all other business conducted on or from the Premises (or elsewhere if connected with a solicitation by Tenant or any other person on or from the Premises, or if the goods sold were removed from the Premises) without reserve or deduction for uncollected or uncollectible accounts, and irrespective of where the order or purchase pertaining to such transaction is received or executed or how it is communicated. Gross Sales does not include: an exchange of merchandise between stores of Tenant where the exchange is made solely for the convenient operation of Tenant's business; returns to shippers or manufacturers; sales of fixtures, machinery, or equipment after their use in Tenant's business; lottery ticket sales; refundable customer deposits; and sums collected from customers for and paid to a taxing authority by Tenant for retail sales, excise or similar tax imposed by a governmental authority. 4.3) Tenant shall deliver to Landlord: (a) not later than the 30th day after the Midyear Date and the Year-End Date, a written statement certified by Tenant, showing the Gross Sales for the preceding six (6) calendar months of the calendar year; and (b) not later than sixty (60) days after the end of each calendar year, a written statement of Gross Sales for the preceding such calendar year, certified by an independent certified public accountant or by the chief financial officer of Tenant, all in such form and style and containing such details and breakdowns as Landlord may reasonably require. 4.4) If Tenant fails to deliver any statement referred to in this Section 4 within the time stipulated therein, Landlord may, in addition to all other remedies available to Landlord and without notice to Tenant, employ a certified public accountant to examine the books and records of Tenant and to certify the amount of Gross Sales for the applicable period. 4.5) After delivery of each statement of Gross Sales referred to in this Section 4 or certification of the amount of Gross Sales in accordance with Section 4.4, Landlord may establish the amount of Percentage Rent to be paid by Tenant for the applicable period. 4.6) Tenant shall keep or cause to be kept on the Premises or at Tenant's administrative office, for a period of not less than two (2) years following the end of each calendar year, full and accurate records of all business from which its Gross Sales may be readily and accurately determined including, without limitation, all pertinent original sales records. Landlord or its appointee shall have access to the Premises at any and all times during normal business hours for the purpose of examining and reviewing all such records. 4.7) Landlord, in addition to all other rights and remedies available to it, may from time to time have all or any of Tenant's records and procedures affecting the determination of Gross Sales audited or examined by an independent certified public accountant (who may be Landlord's accountant). If such, accountant shall report in such audit that Tenant's records and procedures were inadequate, or Tenant was not in compliance with this Section 4, Tenant shall 4. RESOLUTION NO. 99-178 take such steps as may be recommended, necessary, or advisable to remedy the default. If the audit states that Tenant's records and procedures were not sufficient to permit a determination of Gross Sales for any period, and sets out a determination of Gross Sales for such period, Tenant shall pay to Landlord the amount necessary to adjust any underpayment of Percentage Rent, with interest thereon from the date it was originally due until the date it is paid, at an annual rate of eighteen percent (18%) (or the maximum rate permitted by applicable law, whichever is less) (the "Interest Rate"). Every such estimate shall be binding upon Tenant unless Tenant proves it inaccurate within thirty (30) days thereafter. All costs of any audit, examination, or report under this Section 4, shall be payable by Tenant to Landlord on demand, as Additional Rent, if the audit states that Tenant's records and procedures were inadequate, Tenant was not complying with any provision in this Section 4, or Gross Sales or Percentage Rent for any period as determined by such accountant were greater than those reported or paid by Tenant. ARTICLE 5. ADDITIONAL RENT 5.1) Tenant shall pay, without setoff, deduction, or demand (unless otherwise noted), as "Additional Rent," Tenant's share of Center Costs (as defined below) for each calendar year during the Term, as determined by Landlord, and all other sums of money required under this Lease to be paid to Landlord or others by Tenant. If the Commencement Date is other than the first day of a calendar month, Additional Rent for the first and last fractional month shall be prorated. 5.2) The "Common Areas" shall be those portions of the Center which are not now or hereafter leased to tenants including parking areas, roadways, pedestrian sidewalks, truckways, loading docks, delivery areas and landscaped areas. The use and occupancy by Tenant of the Premises shall include the right to use, in common with all others to whom Landlord has or may hereafter grant rights to use the same, the Common Areas, subject, however, to such rules and regulations for the use thereof as may be prescribed from time to time by Landlord. Landlord has made no representation. as to identity, type, size, or number of other stores or tenancies in the Center, and Landlord reserves the unrestricted right to change the improvement perimeters, driveways, parking areas, store sizes, and, except as provided in Exhibit D, identity and type of other stores or tenancies and add buildings and other structures, provided only that the size of the Premises, reasonable access thereto, reasonable visibility of the Premises and parking therefor shall not be substantially or materially impaired, subject to the provisions of Article 13 hereof. Landlord shall operate and maintain the Common Areas or shall cause the same to be operated and maintained in a manner deemed by Landlord to be reasonable, appropriate and for the best interests of the occupants of the Center. 5.3) "Center Costs" shall be all costs incurred by Landlord in connection with operating, managing, maintaining, repairing, lighting, cleaning, heating, air conditioning, ventilating, painting, insuring (including liability insurance for personal injury, death and property liability, insurance against fire, theft or other casualties, rent insurance for business interruption and the costs of all deductible amounts under such policies), removal of snow, ice, 5. debris and surface water, sewer, striping, security police (including cost of uniforms, equipment and all employment taxes), electronic intrusion and fire control devices and telephonic alert system devices, inspecting, equipment depreciation, Workers' Compensation Insurance covering personnel, fidelity bonds for personnel, insurance against liability for defamation and claims of false arrest occurring in and about the Common Areas, regulation of traffic, fees for permits, program services and loudspeaker systems, all costs and expenses associated with holiday decorations, all costs and expenses (other than those of a capital nature) of replacement of paving, curbs, sidewalks, walkways, roadways, parking surfaces, landscaping, drainage, utilities, lighting facilities and roofs and a management fee of four percent (4%) of net rent shall be added for the management of the Center. Center Costs shall not include any initial construction costs of a capital nature nor profit or interest on Landlord's investment, but shall include the acquisition cost (rental fees and/or purchase price or in lieu of purchase price, the annual depreciation allocable thereto) of machinery and equipment used in connection with the maintenance and operation of the Center and the Common Areas, provided, however, that the acquisition costs of any such machinery or equipment shall be amortized over the useful life of such machinery or equipment as determined by Landlord in its sole and absolute discretion. 5.4) Tenant's share of Center Costs shall be based on the proportion the total rentable area of the Premises bears to the total rentable area of the Center and, in the case of Taxes, shall be based on the proportion the total rentable area of the Premises bears to the total rentable area of the Center. The monthly payments of Additional Rent shall be based on Landlord's reasonable estimate of Center Costs made at the beginning of each calendar year. Within one hundred twenty (120) days after the end of each calendar year, Landlord shall furnish a statement of all Center Costs and Tenant's share thereof. If the amount paid by Tenant is less than its share as shown on such annual statement, the balance shall be paid by it within thirty (30) days thereafter. If the amount paid by Tenant is greater than its share as shown on such annual statement, the excess shall be credited against the payment(s) of Rent next due hereunder. Failure by Landlord to timely furnish its statement of Center Costs shall not excuse Tenant from its obligation to pay its prorata share of Center Costs or constitute a waiver of Landlord's right to bill and collect Tenant's prorata share of Center Costs. 5.5) "Taxes" shall mean all taxes, rates, duties, levies, and assessments whatsoever including, without limitation, local improvement taxes and levies, now or hereafter levied, rated, charged, imposed, or assessed by any lawful taxing authority, whether federal, provincial, municipal, school, or otherwise, against the Center or upon Landlord in respect thereof, whether of the foregoing character or not, and all costs, fees, and penalties incurred by Landlord in good faith in contesting, resisting, or appealing such. Taxes shall also include any tax or excise imposed upon Landlord which is measured by or based in whole or in part upon the capital employed by Landlord and includes the amount of any capital or place of business tax levied by any such lawful taxing authority against Landlord with respect to the Center. Taxes shall not include any taxes on Landlord's income nor any sales tax. 5.6) Tenant shall pay, as Additional Rent, to the applicable taxing authority, all taxes and assessments of any kind attributable to the improvements, trade fixtures, equipment, and 6. RESOLUTION NO. 99-178 other items installed in the Premises by or for Tenant or to the business carried on in, or the use of, the Premises. 5.7) Tenant shall indemnify Landlord against all charges and costs arising with respect to the Taxes or Center Costs due to any action or inaction by Tenant or its agents, contractors, licensees, or employees, or related to the use of the Premises. 5.8) Base Rent, Percentage Rent, Additional Rent, and all sums due from Tenant under this Lease are collectively referred to herein as the "Rent. ARTICLE 6. USE OF PREMISES 6.1) The Premises may be used and occupied only for the Permitted Use and for no other purpose. Tenant agrees to operate the entire Premises, fully stocked and adequately staffed during the Term and to conduct its business at all times in good faith, and in a high grade and reputable manner. Tenant shall promptly comply with all laws, ordinances, and regulations promulgated by any duly constituted governmental authority, and all insurance company requirements affecting the Premises. Tenant shall store and stock in the Premises only such goods, ware, and merchandise as Tenant intends to offer for sale at retail in the Premises. Without limiting the general prohibition against other uses, it is expressly agreed that Tenant in no event will use or permit the use of the Premises for any of the Prohibited Uses specified in Exhibit E. 6.2) No industrial, manufacturing, or processing activities shall be conducted in the Premises. Tenant shall not use the Premises for any purpose which increases the rate of premium cost or invalidates any policy of insurance covering or carried on the Center or the operation thereof or any pakt of appurtenances thereof; nor conduct any auction, fire, closing-out or bankruptcy sales in or about the Premises; nor obstruct the Common Areas nor use the same for business or display purposes; nor abuse walls, ceilings, partitions, floors, wood, stone, ironwork; nor use plumbing for any purpose other than that for which constructed; nor make or permit any noise or odor to emit from the Premises that disturbs other occupants of the Center or the Landlord. Tenant shall not create, maintain, or permit a nuisance in the Premises; nor do any act tending to injure the reputation of the Center; nor place nor permit any radio or television antenna, loud speaker, or sound amplifier, or any phonograph or any similar device anywhere but inside the Premises where the same may not be seen nor heard outside the Premises. Tenant shall not permit any entrances to be used for delivery or pick-up of merchandise or supplies to or from the Premises, nor permit trucks or other delivery vehicles for any such purpose to be parked at any place within the Center, except as designated by Landlord and except for the rear door to the Premises shown on the site plan for the Center. 6.3) Subject to limits contained in Minnesota law, Tenant shall conduct its business in the Premises during the business days and hours designated for the Center and shall comply with all rules and regulations regarding the Center promulgated by Landlord from time to time. 7. 6.4) Tenant shall keep the Premises, and the sidewalks adjacent thereto and loading platform areas allocated for Tenant's use, clean and free from rubbish and dirt at all times, and shall store all trash and garbage within the Premises and will make the same available for regular pick-up which Tenant will obtain, at the Tenant's expense. Tenant shall not bum any trash or garbage at any time in or about the Center. 6.5) Tenant shall at all times use and occupy the Premises in strict accordance with the provisions, limitations and restrictions contained in the Cub Foods Lease Restrictions. ARTICLE 7. UTILITIES 7.1) Tenant shall contract for and pay for all heating, air conditioning, electricity, gas, water, sewer charges, and other utilities used in the Premises. 7.2) Landlord shall not be liable for any damages, losses, claims, or costs related to the furnishing by Landlord or by any other person or entity of any utility or service to the Premises. 7.3) Landlord has advised Tenant that Northern States Power Company is the utility company selected by Landlord to provide electric service for the Center. Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any time and from time to time during the Term to either contract for service from a different company or companies providing electric service or continue to contract for service from the current service provider. ARTICLE 8. REPAIRS 8.1) Landlord shall make necessary structural repairs to the foundations, exterior wall surfaces (except plate glass or glass or other breakable materials used in such structural portions) and roof of the Premises, and if necessary or required by proper governmental authority, make modifications or replacements thereof, except that Tenant shall be liable for any repairs, modifications, or replacements which are necessary or desirable due to the negligence of Tenant, its agents, licensees, invitees, or employees, or by reason of anyone illegally entering the Premises. 8.2) Except as provided in Section 8.1, Tenant shall make all repairs, replacements, or improvements of any kind upon the Premises, or any equipment, facilities or fixtures therein contained. Without limiting the generality of the foregoing, Tenant is specifically required to make repairs and replacements (a) to the portion of any pipes, lines, ducts, wires or conduits contained within the Premises; (b) to windows, plate glass, doors and any fixtures or appurtenances composed of glass, floor coverings, ceilings and wallcoverings; (c) to Tenant's sign(s); (d) to any heating or air conditioning equipment serving the Premises; and (e) to the Premises or the Center when repairs to the same are necessitated by any act or omission of Tenant or the failure of Tenant to perform its obligations under this Lease. In addition, upon 8. RESOLUTION NO. 99-178 Landlord's request, Tenant shall promptly furnish to Landlord evidence that Tenant has performed recommended maintenance and service on the heating and air conditioning equipment serving the Premises. Tenant shall maintain the Premises in a clean, sanitary, and safe condition and in accordance with all applicable laws, ordinances, and regulations. Tenant shall permit no waste, damage, or injury to the Premises. 8.3) Tenant shall, at its expense, immediately replace with materials of the same quality, any cracked or broken glass, or other breakable materials used in the structural portions of, and any interior and exterior windows or doors in, the Premises. If required by Landlord, Tenant shall maintain a policy with a company acceptable to Landlord insuring Landlord and Tenant, as their interests may appear, against breakage of all such glass in the Premises. 8.4) Tenant shall give immediate notice to Landlord in case of fire or accidents in the Premises or the Center, or of defects therein. 8.5) Notwithstanding any other provision of this Lease, all repairs, replacements, maintenance, alterations, decorations, improvements and other matters which are the responsibility of Tenant under this Lease may be paid or performed by Landlord, at Landlord's option and Tenant's expense, if Tenant has failed to fulfill such obligations. Upon fulfillment of such obligations by Landlord, Tenant shall pay to Landlord, on demand, as Additional Rent, Landlord's costs and expenses in connection therewith, together with a sum equal to fifteen percent (15%) of the total of all such costs and expenses representing Landlord's overhead. ARTICLE 9. INSTALLATIONS, ALTERATIONS, AND SIGNS 9.1) Except for professionally prepared window and door signs covering not more than fifty percent (50%) of window and door area and the signage depicted and/or described on Exhibit G attached hereto (the "Approved Signage'), Tenant shall not erect or install any exterior or interior window or door signs, advertising media, window or door lettering, placards, or other signs in the Premises or elsewhere, without obtaining Landlord's prior written consent in each instance. Tenant shall not install any lighting or plumbing fixtures, shades or awnings, or make any decoration or painting, or make any changes to the exterior of the Premises or the Approved Signage, without Landlord's prior written consent in each instance. 9.2) Tenant shall not make any repairs, alterations, or additions to the Premises, or make any contract therefor, without first procuring Landlord's written consent and delivering to Landlord the plans and specifications and copies of the proposed contracts and necessary permits, and furnishing indemnification against liens, costs, damages, and expenses, as may be required by Landlord. All alterations, additions, improvements, and fixtures, including floor coverings, (other than trade fixtures), which are made by either party- hereto to the Premises shall become the property of Landlord at the end of the Term, and shall remain upon and be surrendered with the Premises as a part thereof, all without compensation or credit to Tenant. 9. 9.3) Tenant shall not suffer or permit any mechanic's or other liens or encumbrances, for work, labor, services, or materials ordered by it or for the cost of which it may in any way be obligated (the "Tenant's Liens', to attach to the Premises or to the Center, and whenever and so often as such Tenant's Liens shall attach or claims therefor shall be filed, Tenant shall, within ten (10) days after Tenant has notice thereof, procure the discharge thereof by payment or by giving security or in such manner as is or may be required or permitted by law. In addition, should any such Tenant's Liens result in Landlord either suffering a delay in receiving payment of all or part of any monies from its Mortgagee or result in such Mortgagee advancing funds that are not made available to Landlord for its sole use, Tenant shall be responsible for and shall pay to Landlord, on demand, an amount equal to the sum of. interest on such monies and funds at the Interest Rate, until Tenant's Liens have been discharged; an administration fee equal to fifteen percent' (15%) of such Tenant's Liens and such interest; and any damages, legal and/or other fees or costs suffered or incurred by Landlord in arranging for removal of Tenant's Liens or otherwise in connection with such Tenant's Liens. ARTICLE 10. INDEMNITY 10.1) Tenant agrees to indemnify and save Landlord, and its members, agents, , contractors, invitees, customers, employees, and licensees, harmless against any and all claims, demands, damages, costs, and expenses, including reasonable attorneys' fees for the defense thereof, arising from the conduct or management of the business conducted by Tenant in the Premises or from any breach or default on the part of Tenant in the performance of any covenant which Tenant is to perform pursuant to this Lease, or from any act or negligence of Tenant, its agents, contractors, invitees, customers, employees, or licensees, in or about the Premises or the Center. If any action or proceeding is brought against Landlord due to any such claim, upon notice from Landlord, Tenant shall defend such action or proceedings, with counsel satisfactory to Landlord. Landlord shall not be liable, and Tenant waives all claims, for damage to person or property sustained by Tenant relating to the Center, including, but not limited to, damage caused by refrigerators, sprinkling devices, air conditioning apparatus, water, snow, frost, steam, excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or plumbing fixtures. Tenant indemnifies Landlord from all such liability due to any damage or claim related to the Premises or this Lease. All property in the Premises and all property of Tenant's in the Center shall be there at Tenant's risk, and Landlord shall not be liable for any damage thereto or theft or misappropriation thereof. Nothing in this Lease shall be deemed a waiver by Tenant of the limitations on liability set forth in Chapter 466 of Minnesota Statutes and Tenant's obligation to indemnify Landlord shall be limited to the amount specified in Chapter 466 of Minnesota Statutes, less any amounts which Tenant is required to pay on its own behalf for claims arising out of the same occurrence. 10.2) Landlord hereby waives and releases all claims, liabilities, and causes of action against Tenant and its agents, servants, and employees for loss or damage to, or destruction of, the improvements in or on the Center resulting from fire, explosion or other perils insured against by Landlord's insurance, whether caused by the negligence of any of said persons or 10. RESOLUTION NO. 99-178 otherwise, provided that Landlord's insurer shall consent thereto without additional premium, or if additional premium is charged, Tenant pays the same. Tenant hereby waives and releases all claims, liabilities, and causes of action against Landlord and its agents, servants, and employees for loss or damage to, or destruction of, any of the improvements, fixtures, equipment, supplies, merchandise or other property, whether that of Tenant or of others in, upon or about the Premises or the improvements in the Center resulting from fire, explosion, or the other perils insured against by Tenant's insurance, whether caused by the negligence of any of said persons or otherwise. ARTICLE 11. INSURANCE 11.1) Landlord shall carry and maintain insurance against such perils and in such amounts as Landlord may from time to time determine consistent with coverage which is now, or may in the future be, considered prudent for similar income producing property situated in the Minneapolis-St. Paul metropolitan area or which any Mortgagee requires Landlord to carry. The named insured on all policies of insurance maintained by Landlord shall be the Landlord, and, if required, any Mortgagee. The cost of all insurance maintained by Landlord shall be a Center Cost. 11.2) Tenant shall carry and maintain, during the Term, at Tenant's expense, the following types of insurance, issued by an insurer satisfactory to Landlord, in the following. amounts and form: (a) Commercial General Liability and Property Damage insurance on an occurrence basis with respect to Tenant's business and occupancy of the Premises with limits of not less than One Million Dollars ($1,000,000) per occurrence naming Landlord and any Mortgagee (as defined below) as additional insureds. Such insurance shall contain a. provision including coverage for all liabilities of, or assumed by Tenant under this Lease (including all of Tenant's indemnity obligations hereunder). (b) The plate glass described in Section 8 hereof, if applicable. (c) Worker's Compensation insurance for all of Tenant's employees working in the Premises in an amount sufficient to comply with applicable laws and regulations. (d) Fire insurance, including extended coverage, vandalism and malicious mischief and demolition and debris removal, insuring for an amount not less than the current replacement cost of all of Tenant's leasehold improvements, trade fixtures, and merchandise, and all personal property from time to time in or upon the Premises. All policy proceeds shall be used to repair or replace the property damaged or destroyed. 11.3) All policies described in Section 11.2 must provide that they cannot be altered, cancelled, or allowed to expire without at least thirty (30) days' prior written notice to Landlord and any Mortgagee (as defined below). Tenant shall, on or before the Commencement Date, and 11. thereafter at least ten (10) days prior to the expiration of each such policy, promptly deliver to Landlord a certificate or other evidence of such policies and evidence satisfactory to Landlord that all premiums have been paid and all policies are in effect. If Tenant fails to secure or maintain any insurance coverage required by Landlord or should insurance secured not be approved by Landlord and such failure or approval not be corrected within forty-eight (48) hours after written notice from Landlord, Landlord may, in Landlord's sole discretion, purchase such insurance coverage required at Tenant's expense and Tenant shall reimburse Landlord on demand for such expense. ARTICLE 12. DAMAGE BY FIRE OR OTHER CASUALTY 12.1) If the Premises are partially damaged by fire or other insured casualty so as to be partially or totally untenantable, the same shall be repaired as soon as reasonably possible thereafter, at Landlord's expense, subject to Section 12.2 hereof, and a proportionate part of the Base Rent shall be abated for the length of time and to the extent to which the Premises are untenantable due to such damage. 12.2) If the Center shall be damaged by a casualty and: (a) more than twenty-five percent (25%) thereof is rendered untenantable; or (b) such damage is uninsured or the cost of repair exceeds the insurance proceeds available to Landlord; or (c) a Mortgagee (as defined below) refuses to allow insurance proceeds to be used for such repairs, then Landlord may, at its option, rebuild or restore such portion of the Center within a reasonable time thereafter, or may, at its election, by notice in writing to Tenant, within sixty (60) days after such damage, terminate this Lease. If Landlord elects to restore such portion of the Center, it shall, within such sixty (60) day period, give Tenant notice of its intention to do so and proceed with the restoration as promptly as may be reasonable, and a proportionate part of the Base Rent shall be abated for the length of time and to the extent the Premises are untenantable due to such damage. 12.3) Notwithstanding anything contained in this Article 12 or in this Lease to the contrary, if fire or other insured casualty renders the Premises substantially untenantable and the Premises is not made tenantable within six (6) months after the date of the fire or other insured casualty, Tenant may terminate this Lease by giving written notice thereof to Landlord of such termination and this Lease shall terminate and be of no further force and effect from and after the date which is thirty (30) days after the date of Tenant's notice unless Landlord completes restoration of the Premises within such thirty (30) day period in which case Tenant's exercise of its termination right shall be null and void. ARTICLE 13. EMINENT DOMAIN 13.1) If the entire Premises or the entire Center is taken by any public authority under the power of eminent domain or by a conveyance in lieu thereof (a "Taking"), then the Term shall cease as of the day possession shall be taken by such public authority. If a Taking of more 12. RESOLUTION NO. 99-178 than ten percent (10%) of the Center occurs, Landlord shall have the right to terminate this Lease by giving to Tenant thirty (30) days' written notice thereof, effective on the date of possession by such public authority. If Landlord elects not to terminate the Lease, Rent will be reduced in proportion to the square footage of the Premises, if any, that is untenantable due to such Taking until such time as Landlord shall restore the Premises to as much like its former condition as is feasible or relocate the Premises elsewhere within the Center. 13.2) All damages awarded for a Taking shall be the property of Landlord, whether such damages shall be awarded as compensation for diminution in value of the leasehold or fee interests in the Premises. ARTICLE 14. ASSIGNMENT AND SUBLETTING 14.1) In the event Tenant no longer operates municipal liquor stores, Tenant may assign this Lease upon prior written consent of Landlord, which consent shall not be unreasonably withheld, provided however, Tenant's proposed assignee must possess financial capabilities deemed reasonably acceptable to Landlord. Except as otherwise provided herein, Tenant shall not assign or in any manner transfer this Lease or any interest therein, nor sublet the Premises or any part or parts thereof, nor pledge or mortgage its interest in the Lease or the Premises, nor permit occupancy of any portion of the Premises by anyone with, through or under it (an "Assignment'), without Landlord's prior written consent. If Tenant is a corporation, partnership or other entity, any change in the control of Tenant shall be deemed to be an Assignment. Consent by Landlord to an Assignment shall not operate as a waiver of Landlord's rights with respect to any subsequent Assignment. No Assignment shall release Tenant of any of its obligations under this Lease. 14.2) Tenant agrees not to change Tenant's trade or business name set forth in Section 1.10 hereof, without Landlord's prior written consent. 14.3) Neither this Lease nor any interest therein, nor any estate thereby created, shall pass to any trustees or receivers in bankruptcy, or any assignees for the benefit of creditors, or by operation of law, unless Landlord's prior written consent has been obtained. 14.4) In the event of the sale, transfer, or lease by Landlord of the Center, or any interest therein, or assignment by Landlord of this Lease or any interest of Landlord therein, to the extent that the purchaser, transferee, lessee, or assignee assumes the covenants and obligations of Landlord which under this Lease from and after the date of such sale, transfer or lease, Landlord shall, without further written agreement, be freed and relieved of liability under such covenants and obligations. This Lease may be assigned by Landlord to any Mortgagee (as defined below) as security. 13. ARTICLE 15. ACCESS TO PREMISES Landlord shall have the right to enter upon the Premises at all reasonable hours for the purposes of the inspecting thereof, the making repairs, additions, or alterations thereto, or the exhibiting thereof to prospective tenants, purchasers, or others. Landlord shall have the right to place "for rent" sign(s) in the Premises during the last six (6) months of the Term. Landlord shall not be liable to Tenant in any manner for any expense, loss, or damage by reason of Landlord's exercise of any of these rights, nor shall the exercise of such right be deemed an eviction or disturbance of Tenant's use or possession. ARTICLE 16. DEFAULTS AND REMEDIES 16.1) If, during the Term: (a) Tenant shall make an assignment for the benefit of creditors; (b) a voluntary petition be filed by Tenant under the Bankruptcy Code of the United States or any state statute similar thereto, or Tenant be adjudged insolvent or a bankrupt pursuant to an involuntary petition; (c) a receiver or trustee be appointed for the property of Tenant by reason of insolvency of Tenant; (d) any department of the state or federal government, or any officer thereof duly authorized, shall take possession of the business or property of Tenant by reason of the insolvency of the Tenant; (e) if, under Chapter 11 of the Bankruptcy Code, Tenant continues in possession without the appointment of a receiver or trustee; (f) Tenant is the subject of any petition or proceeding related to relief from creditors, the Lease shall, upon the happening of any of such contingencies (the "Contingencies") and at Landlord's option, be terminated and the same shall expire as fully and completely as if the day of the happening of such Contingency were the date herein specifically fixed for the expiration of the Term, and Tenant will then quit- and surrender the Premises, but Tenant shall remain liable as hereinafter provided. 16.2) If, during the Term, Tenant shall default in fulfilling any of the covenants of the Lease, except as set forth in Section 16.3 hereof, Landlord may give Tenant notice of any default and if, upon the expiration of twenty (20) days after the service of such notice, such default shall. continue to exist, Landlord, at its option, may terminate the Lease and upon such termination, Tenant will quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided. 16.3) If: (a) Tenant shall default in the payment of any installment of Rent; or (b) if the Lease shall terminate as provided in Sections 16.1 and 16.2, Landlord or Landlord's agents and servants may immediately or at any time thereafter reenter the Premises and remove all persons and all or any property therefrom, either by summary dispossession proceedings or by any suitable action or proceedings at law or by force or otherwise, and repossess and enjoy said Premises, together with all additions, alterations, and improvements, without reentry and repossession working forfeiture or waiver of the Rent to be paid and the covenants to be performed by Tenant during the Term. Upon the termination of this Lease due to Tenant's 14. RESOLUTION NO. 99-178 breach thereof, or upon Landlord recovering possession of the Premises in any manner, Landlord first to the payment of such expenses as Landlord may have incurred in recovering possession of liability of Tenant as hereinafter provided arises by reason of the happening of any of the 16.4) The specified remedies to which Landlord may resort under the terms of the Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled in case of any breach or threatened breach by Tenant of any provision of the Lease. The failure of Landlord to insist in any one or more cases upon the strict performance of any of the covenants of the Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Lessor of Rent, including payment of Rent by Tenant's receiver, trustee in bankruptcy, creditor, or assignee, with knowledge of breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provisions of this Lease shall be deemed to have been made unless in writing and signed by Landlord. In addition to other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction for the violation or attempted or threatened violation of the covenants, conditions, or provisions of the Lease. may,. at its option, at any time and from time to time, relet the Premises, or any part thereof, for _ the account. of Tenant or otherwise, and receive and collect the rent therefor,. applying the same the Premises, including legal expenses and attorneys' fees, and for putting the same into good order or condition or preparing or altering the same for rerental, and all other expenses, commissions, and charges, paid, assumed, or incurred by Landlord in or about reletting the Premises. and then to the fulfillment of the covenants of Tenant hereunder.. Any such reletting may be for the remainder of the Term or for a longer or shorter period. Whether or not the Premises, or any part thereof, be relet, Tenant shall pay to Landlord the Rent required to be paid by Tenant up to the time of such termination of the Lease, and thereafter, except. in a case where Contingencies, Tenant covenants and agrees, if required by Landlord, to pay to Landlord until the end of the Term the equivalent of the amount of all Rent reserved herein less the net proceeds of reletting, if any. Landlord may, at its option, recover from Tenant, as damages for loss of the bargain and not as penalty, an aggregate sum which at the time of such termination of the Lease or such recovery of possession of the Premises by Landlord, as the case may be, represents the then present worth of the excess, if any, of the aggregate of the Rent payable by Tenant hereunder that would have accrued for the balance of the Term over the aggregate rental value of the Premises for the balance of such Term. 16.5) If Tenant defaults in the performance or observance of any of the terms, conditions, covenants or obligations contained in this Lease and Landlord places the enforcement of all or any part . of this Lease, the collection of any rent due or to become due or the recovery of possession of the Premises in the hands of an attorney, or if Landlord incurs any fees. or out-of- pocket costs in any litigation, negotiation or transaction in which Tenant causes Landlord (without Landlord's fault) to be involved or concerned, Tenant shall reimburse Landlord for the attorneys' fees and costs incurred thereby, whether or not suit is actually filed. 16.6) If Tenant.. fails to pay, when due, any amount or charges required to be paid or perform any covenant pursuant to this Lease, Landlord may, but shall not be obligated to, pay or 15. perform all or any part of the same. All expenses incurred by or on behalf of Landlord under this Section 16, plus a sum equal to fifteen percent (15%) thereof representing Landlord's overhead, shall be paid by Tenant to Landlord, on demand, as Additional Rent. Landlord shall have no liability to Tenant for any loss or damages resulting from any such action by Landlord, which shall not constitute breach of the covenant for quiet enjoyment or an eviction or re-entry. 16.7) In the event of any default hereunder by Tenant, Tenant, so far as permitted by law, hereby expressly waives any and all rights to notice, a jury trial, and redemption (under Minn. Stat. Section 504.02 or otherwise), or to restore the operation of this Lease which it may have under applicable laws. 16.8) Tenant's failure to make any monetary payment required of Tenant hereunder within five (5) days after the due date therefore shall result in the imposition of a service charge for such late payment in the amount of ten percent (10%) of the amount due. In addition, any sum not paid within thirty (30) days after the due date therefore shall bear interest at the Interest Rate from the date due until paid. 16.9) Landlord shall have a lien on all stock-in-trade, inventory, fixtures, equipment, and property of Tenant on or in the Premises as security against any loss or damage resulting from a default hereunder by Tenant, and Landlord may sell the same and apply the sale proceeds to remedy such default and the costs and expenses of Landlord arising therefrom. ARTICLE 17. SURRENDER OF POSSESSION 17.1) At the end of the Term, whether by lapse of time or otherwise, Tenant shall surrender the Premises in good condition and repair, reasonable wear and tear and loss by fire or unavoidable casualty excepted. If the Premises are not surrendered at the end of the Term, Tenant shall indemnify Landlord against loss or liability resulting from delay by Tenant in doing so, including, without limitation, claims made by any succeeding tenant founded on such delay. Tenant shall promptly surrender all keys for the Premises to Landlord at the place then fixed for payment of Rent and shall inform Landlord of combinations of any locks and safes on the Premises. 17.2) If Tenant remains in possession of the Premises after the end of the Term without the execution of anew lease, it shall be deemed to be occupying the Premises as a tenant from month-to-month, at twice the Rent due and payable in the last month of the Term, subject to all the other conditions, provisions, and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy including payment of Additional Rent. 17.3) Prior to the end of the Term, at Landlord's request, Tenant shall promptly remove any additions, fixtures, and installations placed in the Premises by or for Tenant, and repair any damage occasioned by such removals, at Tenant's expense. If Tenant fails to do so, Landlord may effect such removals and repairs, and Tenant shall pay Landlord the cost thereof, as Additional Rent, with interest at the Interest Rate from the date of payment by Landlord. 16. RESOLUTION NO. 99-178 ARTICLE 18. SUBORDINATION 18.1) Tenant agrees that this Lease shall, at the request of the holder of any mortgage (a "Mortgagee'D secured by a lien on all or part of the Center (a "Mortgage', be subordinate or prior to any Mortgage and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacements, and extensions thereof, and Tenant shall attorn to such Mortgagee. 18.2) Upon Landlord's request, from time to time, Tenant shall (a) confum in writing. and in recordable form that this Lease is subordinate or prior (as Landlord may elect) to any Mortgage and/or (b) execute an instrument making this Lease subordinate or prior (as Landlord may elect) to the lien of any Mortgage, in a form as may be required by any applicable Mortgagee. 18.3) Within ten (10) days after request by Landlord or any prospective purchaser or Mortgagee or other lender, Tenant agrees to deliver to the requesting parry Tenant's most recent financial statements and most recent annual report, if any, all prepared in accordance with generally accepted accounting principles consistently applied. Such statements shall be signed by a duly authorized officer or partner who shall certify that the statement fairly presents the financial condition of Tenant as of the date stated. ARTICLE 19. CONTROL BY LANDLORD 19.1) Landlord shall operate and maintain Center in such manner as Landlord, in its sole discretion, shall determine. Without limiting the generality of the foregoing, Landlord shall have the right to police and supervise the Center; close all or any portion of the same to such extent as may, in Landlord's opinion, be legally sufficient to prevent a dedication thereof, or the accrual of any rights therein, to any person or the public; construct, maintain, operate, and change lighting facilities and heating, ventilating, and air-conditioning systems; grant, enter into, modify, and terminate any agreements pertaining to the use and maintenance of all or any part of the Center and convert portions of the Center from Common Areas to leasable premises, and vice versa, at any time; obstruct or close off all of any part of the Center for maintenance, repair, construction, prevention of misuse or other reasons considered by Landlord to be advisable at any time; and use any part of the Common Areas from time to time for merchandising, display, decorations, entertainment, or structures designed for special features and promotional activities. Landlord shall not make any changes to the Common Areas which would materially and adversely affect the access to or visibility of Tenant's business. 19.2) Landlord may prohibit Tenant and its employees from parking in certain portions of the Center. If Landlord designates tenant parking areas in the Center, Tenant and its employees shall park their vehicles only in such parking area. Tenant shall furnish Landlord with the license numbers of all vehicles owned or used by Tenant and its employees, within 17. five (5) days after taking possession of the Premises and within five (5) days after any change occurs. If Tenant or any of its employees fail to comply with this Section 19.2, Landlord, may tow any such vehicle, at Tenant's expense, and assess to Tenant a daily charge per vehicle as determined by Landlord, which shall be Additional Rent, payable on demand. ARTICLE 20. ENVIRONMENTAL COMPLIANCE Tenant shall not store, treat, dispose, handle or otherwise use any hazardous or toxic substances, wastes, or materials, or other pollutants or contaminants (collectively "Hazardous Substances"), upon the Premises without the prior written consent of Landlord. Tenant shall at all times remain fully responsible and liable for compliance with all federal, state and local statutes, ordinances, regulations and other requirements relating to human health or the environment which are applicable to the Premises and Tenant's use thereof, including, but not limited to those respecting the storage, treatment, disposal, handling or release of Hazardous Substances (collectively, "Environmental Laws'. Tenant shall indemnify and hold Landlord harmless from any and all claims, causes of actions, damages, penalties, and costs (including attorneys' fees, consultant fees and related expenses) which may be asserted against or incurred by Landlord resulting from the spill, disposal or other release or threatened release of any Hazardous Substance on the Premises or caused by the Tenant, or resulting from or due to any violation or alleged violation by Tenant of any Environmental Law. Tenant's obligation to indemnify and hold Landlord harmless hereunder shall survive the expiration or termination of this Lease. ARTICLE 21. MISCELLANEOUS 21.1) Whenever under this Lease a provision is made for notice of any kind, such notice shall be in writing and signed by or on behalf of the parry giving or making the same, and it shall be deemed effective when personally delivered or deposited in the U.S. mails, registered or certified mail, postage prepaid, to Tenant at Tenant's Address, or at the Premises; and to Landlord, at Landlord's Address. Any parry may change the address to which notices to it are sent by written notice as set forth above. 21.2) Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto. Whenever herein the singular number is used, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders. 21.3) The headings of the several articles contained herein are for convenience only and do not define, limit, or construe the contents of such articles. All negotiations, considerations, representations, and understandings between the parties are incorporated herein. This Lease may only be modified or altered by written agreement executed by the parties. 18. RESOLUTION NO. 99-178 21.4) The covenants, agreements, and obligations herein contained shall extend to, bind, and inure to the benefit not only of the parties hereto but their respective personal representatives, heirs, successors, and assigns. 21.5) Tenant shall not record this Lease without Landlord's prior written consent. 21.6) No receipt by Landlord of a lesser amount than any installment of Rent due shall be deemed to be other than a partial payment on the total Rent due, nor shall any endorsement or statement on any check or any letter accompany any check or payment as Rent be deemed an accord and satisfaction. Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy in this Lease . provided. 21.7) Unenforceability of any provision contained in this Lease shall not affect or impair the validity of any other provision of this Lease. The laws of the State of Minnesota shall govern the validity, performance, and enforcement of this Lease. 21.8) Within ten (10) days after request therefor by Landlord, Tenant shall deliver in recordable form a certificate to any proposed Mortgagee or purchaser, or to Landlord, certifying (if such be the case) that this Lease is in full force and effect and there are no defenses or offsets thereto, or stating those claimed by Tenant (the Estoppel Certificate). If Tenant should refuse to execute and deliver the Estoppel Certificate, Landlord shall have the right to cancel this Lease by giving Tenant an additional ten (10) days' notice in writing, whereupon this Lease shall be of no further force and effect. 21.9) Tenant undertakes and agrees that if it has dealt with any agent or broker in connection with its leasing of the Premises, Tenant shall pay any commissions, fees, or other amounts payable to or demanded by such agent or broker and shall indemnify and save Landlord harmless from any such commissions, fees, or amounts. 21.10) The submission of the form of this Lease for examination or execution does not constitute a reservation of or option for the Premises. This Lease shall become effective only upon execution and delivery thereof by Landlord and Tenant. 21.11) Landlord may perform all or any of its obligations hereunder by or through such managing or other agency or agencies as it may from time to time determine, and Tenant shall, as from time to time directed by Landlord, pay to any such agent any sums payable hereunder to Landlord. 21.12) If this Lease is executed by more than one person or party as Tenant, all covenants, conditions, and agreements herein contained shall be constructed and taken as against all such executing parties as joint and several. 21.13) If Tenant shall at any time obtain any judgment or other remedy against Landlord, only the Center shall, notwithstanding any law or statute to the contrary, be available for the satisfaction of any such judgment or other remedy, and Tenant shall look solely to those assets 19. and not to any other or personal assets of Landlord, or of any partner, member or shareholder thereof. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first above written. LANDLORD: BROOKDALE CORNER, LLC By: Its: Chief Manager TENANT: CITY OF BROOLYN CENTER By: Its: Mayor By: Its: City Manager 0498878.01 j; 20. RESOLUTION NO. 99-178 EXHIBIT A to LEASE Legal Description of the Center: Lot 1, Block 1, Brookdale Corner, according to the duly recorded plat thereof, Hennepin County, Minnesota. 0498878.01 EXHIBIT B to LEASE TIE PREMISES 0498878.01 Landlord makes no representation concerning the location or dimensions of common areas or tenant spaces. Landlord reserves the right to configure and reconfigure the common areas and tenant spaces in its discretion. RESOLUTION NO. 99-178 EXHIBIT C to LEASE CONSTRUCTION AGREEMENT 1. Landlord's Work Landlord shall deliver the Premises to Tenant with the following work to be performed by Landlord at Landlord's expense ("Landlord's Work': A. A complete building shell including roof, concrete slab floor and exterior walls and/or demising walls from the adjacent tenant. No "ship's ladder" or other roof access equipment or structures will be located in the Premises. Landlord shall provide a floor drain for Tenant's cooler and the roof structure shall be sufficient to support the weight of the cooler mechanical equipment to be located on the roof. The concrete slab will be of sufficient thickness to support a fork lift. B. Approximately twenty (20) tons of HVAC (based on a retail standard of 350 square feet per ton). C. 200 amp electrical service to a panel located in the rear of the Premises. D. Final electrical hook-up for coolers. E. Distributed fire sprinkler system and heads. F. No more than eighty-eight (88), two (2) foot by four (4) foot fluorescent light fixtures, or equivalent (one (1) fixture per eighty (80) square feet). G. Convenience wall outlets which comply with Code requirements. H. Phone line conduits to a location designated by Tenant, with final wiring to be performed by Tenant. I. Two (2) elevated offices including, but not limited to, entry doors and a finished file ceiling. J. Finished grid and tile ceiling, constructed with a twelve (12) foot clearance to the ceiling tile. K. Restrooms as required by Code, including but not limited to fixtures and a convenience water heater. L. Interior wall (or cooler framing) to separate sales floor from storage area. M. Interior surfaces of exterior walls sheetrocked, taped, sanded and painted. N. Store front door and clear store front glazing. 0. Emergency exit door with emergency exit lights, as required by ordinance or regulation. P. Rear loading door constructed "at grade" to accommodate a forklift. 2. Tenant's Work - Except for Landlord's Work identified in Paragraph 1 of this Exhibit C, Tenant shall perform all other improvements which are necessary or desirable for the operation of Tenant's business in the Premises at Tenant's expense ("Tenant's Work"). Tenant's Work shall include, but is not limited to, installation of phones, equipment, interior signage, fixtures, coolers, counters, floor covering, check-out counters, an alarm system, and security system. Tenant shall also provide a store front sign or signs prepared by a professional contractor based on drawings reviewed and approved by Landlord. All of Tenant's Work shall be performed in strict accordance with plans and specifications and construction guidelines approved by Landlord. Tenant shall not commence any portion of Tenant's Work before Tenant's plans and specifications have been approved by Landlord in writing. Tenant's Work. shall be completed in a good and workmanlike manner with new materials. Tenant's Work shall be completed in full compliance with all applicable federal, state and local laws, regulations, statutes, ordinances and codes, including, but not limited to, the Americans With Disabilities Act of 1990. Prior to commencing Tenant's Work, Tenant shall obtain all necessary building permits and provide a copy of each permit to Landlord. Landlord, by any implied or express approval of the plans and specifications for Tenant's Work, assumes no liability or responsibility for such compliance. Tenant shall indemnify and save Landlord harmless from all liabilities, costs and expenses (including reasonable attorneys' fees), mechanic's liens, claims or damages to persons or property or the Premises which arise out of or are related to the performance of Tenant's Work. 3. Contracts; Insurance; Liens. All contractors performing any portion of Tenant's Work shall be required to enter into written contracts with Tenant which shall provide for such insurance as Landlord may require naming Landlord as an additional insured. Tenant shall, upon Landlord's request, promptly provide Landlord with a list of all contractors, subcontractors and materialmen who will be performing any of Tenant's Work on the Premises. Tenant shall promptly pay the cost of all labor, services, materials, supplies or equipment furnished or alleged to have been furnished to Tenant in, at or about the Premises or furnished to Tenant's agents, employees, contractors or subcontractors which may give rise to the filing of a mechanic's or other type of lien against the Premises or the Center. If any such lien shall be filed, Tenant shall give Landlord notice thereof within twenty-four (24) hours of receipt thereof and, within thirty (30) days thereafter, discharge such lien by payment of the amount claimed due or by posting a bond or depositing cash with the court, each in the manner required by law. Landlord shall have the right to post and maintain a notice of nonresponsibility for liens on the Premises as authorized by Minnesota law. RESOLUTION NO. 99-178 LANDLORD: BROOKDALE CORNER, LLC By: Its: Chief Manager TENANT: CITY OF BROOKLYN CENTER By: Its: Mayor By: Its: City Manager 0498878.01 1 EXHIBIT D to LEASE ADDITIONAL LEASE PROVISIONS 1. Ontion to Extend - Tenant, at its option, may extend the Term for the entire Premises for an additional ten (10) years by giving written notice to Landlord ("Tenant's Extension Notice's at least twelve (12) months (but not more than fifteen (15) months) before the expiration of the initial Term, provided that: (a) at the time of Tenant's Extension Notice and at the commencement of the extended Term, there shall be no default by Tenant under this Lease and (b) no material, adverse change in the financial condition of Tenant has occurred. Upon the service of the Tenant's Extension Notice and subject to the preceding conditions, this Lease shall be extended without the necessity of the execution of any further instrument or document. The extended Term shall commence upon the expiration date of the initial Term, expire upon the annual anniversary of such date ten (10) years thereafter, and be upon the same terms, covenants, and conditions as provided in this Lease, except that Tenant shall not have any additional rights to extend the Term, the Base Rent payable during the extended Term shall be at the rates and amounts set forth in Section 1.1 and the annual Gross Sales breakpoints for calculating the Percentage Rent shall be at the amounts set forth in Section 1.5. Payment of all Additional Rent and other charges required to be made by Tenant as provided in this Lease for the initial Term shall continue to be made during the extended Term. Any termination of this Lease during the initial Term terminates all rights of extension. Any unauthorized assignment or subletting by Tenant of this Lease terminates this option of Tenant to extend the Term. 2. Prohibited Uses - In addition to the use restrictions provided in the Cub Foods Lease Restrictions, Landlord agrees that it will not lease any portion of the Center for the following purposes: pawn shop; check cashing store; currency exchange; massage parlor; tattoo parlor; sauna; sale of adult books, entertainment, and other items; a child care facility; church purposes or a school. 3. Construction - Landlord will use reasonable efforts to begin construction on or about October 1, 1999, with delivery of the Premises on or about March 1, 2000. TENANT: CITY OF BROOKLYN CENTER By: Its: Mayor By: Its: City Manager LANDLORD: BROOKDALE CORNER, LLC By: Its: Chief Manager RESOLUTION NO. 99-178 EXHIBIT E to LEASE CUB FOODS LEASE RESTRICTIONS EXHIBIT F to LEASE MATTERS OF RECORD AGAINST CENTER 1. Combination Mortgage, Security Agreement and Fixture Financing Statement executed by Brookdale Comer, LLC, a Minnesota limited liability company, as mortgagor, to U.S. Bank National Association, a national banking association, as mortgagee, dated August 28, 1998, recorded October 7, 1998, as Document No. 3069064, as amended by First Amendment to Mortgage dated October 9, 1998 and filed October 19, 1998, as Document No. 3072267. 2. Assignment of Leases and Rents by Brookdale Corner, LLC, a Minnesota limited liability company dated August 28, filed October 7, 1998, as Document No. 3069065, in favor of U.S. Bank National Association, a national banking association, as modified by First Amendment to Assignment of Leases dated October 9, 1998, filed October 19, 1998, as Document No. 3072268. 3. Snow fence easement, ditch and drainage rights and limitations of access to Trunk Highway No. 100 in favor of the State of Minnesota as evidenced by Final Certificate filed June 5, 1963 in Book 2035 of Deeds, Page 7. 4. Public highway easement, right to maintain snow fences and limitation of access to Trunk Highway No. 152, in favor of the State of Minnesota, as evidenced in Book 2392 of Deeds, Page 562, as assigned to Hennepin County by Quit Claim Deed filed as Document Number 2035836. 5. Public highway easement, right to maintain snow fences and limitation of access to Trunk Highway No. 152 in favor of State of Minnesota as evidenced in Book 2461 of Deeds, Page 401, as assigned to Hennepin County by Quit Claim Deed filed as Document Number 2035836. 6. Snow fence easements in favor of the City of Brooklyn Center as contained in Highway Easements filed in Book 2382, Pages 254 and 256 and as Document Number 720378. 7. Easement for sanitary sewer purposes in favor of the City of Brooklyn Center as contained in Grant of Easement dated September 15, 1965 and filed September 21, 1965 as Document Number 821683. 8. Utility easement in favor of Northern States Power Company as evidenced by document dated December 10, 1965 and filed January 13, 1966 as Document Number 835906. 9. Rights of access granted to Hennepin County as evidenced by Quit Claim Deed dated July 21, 1966'and filed August 17, 1966 as Document Number 855383. °RESOLUTION NO. 99-178 10. Sidewalk easement in favor of the City of Brooklyn Center as contained in Easement Grant dated. September 8, 1971 and filed June 2, 1972 as. Document Number 1032883. 11. Sidewalk easement in favor of the City of Brooklyn Center as contained in Easement Grant dated June 22, 1972 and filed February 9, 1973 as Document Number 1061497. 12. Utility easement in favor of Northern States Power Company as evidenced by Easement Grant dated July 3, 1975 and filed July 10, 1975 as Document Number 1145295. 13. Sidewalk easement in favor of the City of Brooklyn Center contained in Easement Agreement dated March 18, 1982 and field July 12, 1982 as Document Number 1473764. 14. Sanitary sewer and storm sewer easements in favor of Tract F, RLS No. 1142 as evidenced by Easement Agreement dated July 9, 1984 and filed September 30, 1985 as Document Number 1674605. 15. Sidewalk easement in favor of the City of Brooklyn Center contained in Easement Agreement dated April 30, 1987 and filed March 26, 1987 as Document Number 1834984. 16. Covenants, conditions and sidewalk easement in favor of the City of Brooklyn Center as evidenced in Easement Grant No. 100 filed as Document. No. 1032881. 17. Perpetual, non-exclusive public sidewalk easement in favor of the City of Brooklyn Center as evidenced in Easement Grant filed as Document No. 1473765. 18. Utility and drainage easements shown on the recorded plat of Brookdale Comer Addition filed July 6, 1999, as Document No. 3176949. 19. UCC Fixture Financing Statement dated August 5, 1999, filed September 28, 1999, as Document No. 3208880, between Diamond Lake 1994 L.L.C., d/b/a Cub Foods, as debtor, and SuperValu Inc. as secured party. 20. Interest of Diamond Lake 1994 L.L.C. d/b/a Cub Foods, as tenant, as disclosed by Document No. 3208880.