15868302/10/03
PARKING STRUCTURE RETAIL LEASE
THIS PARKING STRUCTURE RETAIL LEASE (“Lease”), made and entered into this ____ day of
___________, 2003, in Wichita, Sedgwick County, KansasBY AND BETWEEN THE CITY OF WICHITA
Hereinafter referred to as “Landlord”
AND CINEMA OLD TOWN, L.L.C.
Hereinafter referred to as “Tenant”
WITNESSETH:
WHEREAS, Landlord is the owner of certain real property located in the northwestern portion of “OldTown” district in Wichita, Sedgwick County, Kansas, as depicted on the Exhibit “A” attached hereto which realproperty and improvements are referred to herein as the “Cinema Plaza”; and
WHEREAS, Landlord intends to construct a parking structure within the Cinema Plaza, containingapproximately 500 parking stalls on multiple
levels (the “Parking Structure”); and
WHEREAS, Landlord intends to construct within the Parking Structure one (1) space on the ground
level containing approximately 17,500 square feet of surface floor area as depicted on Exhibit “B” hereto,
which space is
referred herein to as the “premises”; and
WHEREAS, Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, thepremises.NOW THEREFORE, for good and valuable consideration, the parties do hereby agree as follows:1. TERM; USE; RENEWAL.a. Grant, Term and Possession. Landlord does hereby grant, lease and let to Tenant, andTenant does hereby rent from Landlord the premises for a term of sixty (60) months commencing on
the date (the “commencement date”) Landlord delivers the pre
mises to Tenant, "Ready forOccupancy" (hereafter defined). Landlord shall endeavor in good faith to deliver possession of thePremises to Tenant, Ready for Occupancy, on February 1, 2003. For the purposes of this Lease,"Ready for Occupancy" means that Landlord has completed construction of the Parking Structure,
and has substantially completed Landlord’s work described in Exhibit “C” (herein "Landlord’s Work"),
which is attached hereto and made a part hereof by this reference. The term "substantiallycompleted" shall mean that Landlord shall have completed all of Landlord's Work with the exceptionof items which do not materially interfere with Tenant's use of the premises as a retail store.b. Use. Tenant shall use and occupy the premises for any lawful purposes and uses incidentalthereto; provided the premises may not be used or occupied for any of the Prohibited Activities listed
on Exhibit “D” hereto.
c. Holdover. In the event of a holdover beyond the term hereof by Tenant, without Landlord'spermission, Tenant shall be liable to Landlord for rent during the unauthorized holdover period(determined on a daily basis) in an amount equal to 150% of the amount of the rent in effect as of the
2
expiration or earlier termination of this Lease. Such unauthorized holdover shall not be construed tocreate any periodic tenancy rights in favor of Tenant.d. Renewal. If Tenant is not in default of any provision of this Lease either at the time ofexercise or as of the commencement of the renewal, then Tenant shall have two (2) options to extendthe term of this Lease, for periods of five (5) years each. In the event Tenant wishes to exercise therenewal option, Tenant shall give Landlord a prior written notice of Tenant's intent to renew aminimum of sixty (60) days prior to the commencement of the renewal period. All terms andconditions of the renewal option period shall be the same as provided herein except for the rent,which shall be adjusted as provided in subparagraph 2.a. below.2. RENTAL.a. Amount. Tenant agrees and covenants to pay as fixed rent for the premises, for the primaryterm hereof, one dollar ($1) per year on or before the first day of each lease year. As used herein the
term “lease year” shall mean each consecutive twelve (12) mo
nth period, commencing on thecommencement dated hereof :The annual fixed rent payable during the renewal first option hereunder shall be increased to theproduct resulting from multiplying (i) the number of surface square feet contained in the premises by(ii) $2.50 in the case of the first period, and $7.50 in the case of the second option period. The annualfixed monthly rent shall be paid in equal monthly installments on the first day of each month during theterm of this Lease. In the event the commencement date occurs other than the first day of a calendarmonth, the fixed monthly rent shall be prorated for the first and final month of the term hereof and therent for the partial month at the beginning of the term shall be paid to the Landlord on the DeliveryDate.b. Landlord's and Tenant's Address.(1) The rental payments and notices shall be taken to or mailed to Landlord at thefollowing address: City of Wichita, Property Management, 455 North Main, 12 Floor, Wichita,Kansas 67202; with a copy
of any notice sent to the City Attorney’s Office, 455 North Main,
13th Floor, Wichita, Kansas 67202, to the attention of the City Attorney, or to such otherperson or corporation or at such other place as Landlord shall designate in writing to Tenant.
(2)
Notices and invoices shall be taken or mailed to Tenant as follows: prior to thecommencement of the term hereof to 230 North Mosely, Suite E, Wichita, Kansas 67202;with a copy to Ron H. Harnden, Triplett, Woolf & Garretson, LLC, 2959 North Rock Road,Suite 300, Wichita, Kansas 67226.3. ADDITIONAL CHARGES; UTILITIES AND OTHER MATTERS.a. Interest Charges. Rent and other monies due Landlord under this Lease not paid within five(5) days after its due date shall bear interest from the date due at the highest rate allowed by law butnot to exceed one (1%) percent per month.b. Utilities, Janitorial and Telephone Service.(1) Tenant shall provide and pay for its trash removal service from the premises.(2) Tenant agrees to contract with and timely pay for electric current, gas, water, sewerand other utilities, janitorial service, and telephone service serving the premises.
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(3) Except for a cessation or interruption cause by the negligence or intentional
misconduct of Landlord or Landlord’s agen
ts, employees or contractors, Landlord shall not beliable to Tenant for any cessation or interruption of gas, water, electricity, telephone, or otherutility service during the term hereof, or any extension thereof, which are beyond thereasonable control of Landlord. A cessation or interruption of gas, water, electricity,telephone, or other utility service shall not be construed as an eviction of Tenant, work asabatement of rent, or relieve Tenant from fulfillment of any covenant or agreementhereunder; provided, however, if such cessation or interruption lasts longer than two (2)
business days, is caused by an act or acts of Landlord or Landlord’s agents, employees or
contractors and, as a result thereof, so that Tenant is unable to reasonably use the premisesfor its intended use, then rent shall abate during the period that such cessation or interruptioncontinues from and after the expiration of the two (2) business day grace period.4. INSURANCE; WAIVER.a.
Tenant’s Liability Insurance
. With respect to the premises, Tenant shall, at Tenant's sole costand expense, obtain and keep in force at all times during the term of this Lease, comprehensivegeneral liability insurance, including property damage, in the amount of at least One Million Dollars($1,000,000.00) combined single limit, insuring Landlord and Tenant against any liability arising out of
Tenant’s use or occupancy of the premises. Tenant may carry said insurance under a blanket policy
providing, however, said insurance by Tenant shall have a Landlord's protective liability endorsementattached thereto. Insurance required hereunder shall be in companies licensed in the State ofKansas and shall have a rating of B+ or better in "Best's Insurance Guide" and a financial rating ofClass VII or better. Mutual insurance companies may be used only if they are nonassessable. Suchpolicy shall name Landlord as an additional insured. No policy shall be cancelable or subject toreduction of coverage except after fifteen (15) days written notice to Landlord. Tenant shall provideLandlord a certificate, or other evidence reasonably satisfactory to Landlord, of insurance at or prior tothe commencement of the term hereof, and thereafter upon request by Landlord.b. Contents. At all times during the term of this Lease, Tenant shall maintain at its own cost andexpense, with a responsible insurance company or companies, a policy of insurance coveringTenant's trade fixtures, furniture, furnishings, inventory, equipment and leasehold improvements,insuring same against all risk perils.c.
Landlord’s Liability Insurance
. Intentionally omitted.d. Landlord Casualty Insurance. During the term of this Lease, Landlord shall maintain in full
force and effect “all risk” property insurance on a replacement cos
t basis, insuring against fire andloss or damage from risks or hazards covered by a broad form extended coverage policy, includingwater damage, throughout the term hereof in an amount equal to the full replacement value (withoutdeduction for depreciation but exclusive of the cost for excavation or foundations) of the building inwhich the premises are located, including any leasehold improvements made to the premises byLandlord. Such insurance policy shall state that it is primary over any insurance carried by Tenant.e. Waiver of Subrogation. Landlord and Tenant each waive and release the other from anyliability, claim, right of recovery or cause of action for any damage or destruction to the property of thereleasing party, even if caused by the negligence of the other party, or of its contractors,
representatives, agents or employees, if any of the loss is covered by the releasing party’s insurance.
5. MAINTENANCE, REPAIRS AND OTHER MATTERS.a. Landlord's Responsibilities. Landlord shall, at La
ndlord’s expense, perform the following
maintenance, repairs and replacements:
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Old Town Cinema Parking Structure Retail Lease
Wichita, Kansas: Old Town Cinema Parking Structure Retail Lease
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