HomeMy WebLinkAboutOrdinance 5768ORDINANCE NO. 5768
AN ORDINANCE AMENDING §178.03(E) AND (F) OF THE UNIFIED
DEVELOPMENT CODE TO REMOVE PRE -APPROVED SIDEWALK
VENDOR LOCATIONS IN FRONT OF THE WALTON ARTS CENTER AS
AGREED UPON IN RESOLUTION 118-14, AND TO STREAMLINE THE
APPROVAL PROCESS FOR ALTERNATIVE LOCATIONS
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals §178.03
(E) and (F) of the Unified Development Code and replaces it with the language attached in
Exhibit "A".
PASSED and APPROVED this 5' day of May, 2015.
ATTEST:
By: AD
SONDRA E. SMITH, City Clerk Treasurer
FAYETTEVILLF1 =
Exhibit "A"
178.03
(E) Pre -Approved Locations. Sidewalk vendors are
this determination, the Planning Division shall
permitted in specific locations in Fayetteville as a
consider the following criteria:
use by right. These locations have been
determined by the City Council to have adequate
(1) The application meets all other criteria
sidewalk width, pedestrian traffic flow, and they
established herein for a sidewalk vendor, with
minimize potential conflicts with existing
the exception that the applicant may request
businesses. Sidewalk vendors are not permitted to
that the cart, and/or operating area, may be
operate on days / times associated with special
larger than the dimension required in this
events, unless they have been approved and
chapter. An increase in cart size or operating
granted a Special Events Permit from the
area may be considered by the Planning
organization coordinating the special event. Maps
Commission as a variance. The determination
of approved locations are available in the Planning
of a larger cart size and/or operation area
Division. The locations where street vending is
shall be subject to the variance criteria in
allowed as a permitted use are:
Chapter 156.03(C).
Inside of the Fayetteville Square. Sidewalk
(2) The number of permits issued for the street
vendors may locate along sidewalks on all
vending location shall not exceed the capacity
sides of the interior of the downtown
of the area in terms of maintaining the use of
Fayetteville Square. On days / times that the
the sidewalk as a public right-of-way, with a
Farmers' Market or other special events
minimum 48" pedestrian access route that is
operate, sidewalk vendors shall only be
free and clear of obstructions. The Planning
permitted if approved through the Farmers'
Division shall consider the width of sidewalk,
Market or Special Event Permit process.
the proximity and location of existing street
furniture, including, but not limited to:
(F) Alternative Locations. If an applicant wishes to
signposts, lamp posts, parking meters, bus
operate as a sidewalk vendor in a location other
shelters, benches, phone booths, street trees
than those specifically approved by the City
and newsstands, as well as the presence of
Council, a permit must be obtained. Upon receipt
bus stops, truck loading zones, othersidewalk
of a permit application, the Planning Division shall
vendors or taxi stands to determine whether
review the proposed permit operating area to
the proposed use would result in pedestrian
determine if the said area is suitable for street
or street congestion.
vending in accordance with this chapter. In making
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Text File
File Number: 2015-0211
Agenda Date: 5/5/2015 Version: 1 Status: Passed
In Control: City Council File Type: Ordinance
Agenda Number: C. 4
AMEND §178.03 (E) AND (F)
AN ORDINANCE AMENDING §178.03(E) AND (F) OF THE UNIFIED DEVELOPMENT CODE
TO REMOVE PRE -APPROVED SIDEWALK VENDOR LOCATIONS IN FRONT OF THE
WALTON ARTS CENTER AS AGREED UPON IN RESOLUTION 118-14, AND TO STREAMLINE
THE APPROVAL PROCESS FOR ALTERNATIVE LOCATIONS
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals §178.03 (E) and
(F) of the Unified Development Code and replaces it with the language attached in Exhibit "A".
City or Fayetteville, Arkansas Page 1 Printed on 51612015
City of Fayetteville Staff Review Form
2015-0211
Legistar File ID
5/5/2015
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Jeremy Pate 4/17/2015 Development Services/
Development Services Department
Submitted By Submitted Date Division / Department
Action Recommendation:
An ordinance amending §178.03(E) of the Unified Development Code to prohibit sidewalk vendors in front of the
Walton Arts Center, pursuant to the lease agreement approved by Resolution 118-14, and to ease restrictions on
the process by which other sidewalk vendor locations can be approved.
Account Number
Project Number
Budgeted Item? NA
Does item have a cost? No
Budget Adjustment Attached? NA
Budget Impact:
Fund
Project Title
Current Budget $
Funds Obligated
Current Balance
Item Cost
Budget Adjustment
Remaining Budget
O
V20140710
Previous Ordinance or Resolution N
Original Contract Number:
Comments:
Approval Date:
CITY OF
Ye vile CITY COUNCIL AGENDA MEMO
ARKANSAS
MEETING OF MAY 05, 2015
TO: Mayor Jordan, Fayetteville City Council
THRU: Don Marr, Chief of Staff
FROM: Jeremy Pate, Development Services Director-'
DATE: April 17, 2015
SUBJECT: Sidewalk Vendors in front of Walton Arts Center
RECOMMENDATION:
Staff recommends approval of an ordinance amending §178.03 (E) of Unified
Development Code to remove permission for annual sidewalk vendors to locate on the north
(Dickson) and west (West) sidewalks in front of the Walton Arts Center, pursuant to the amended
lease agreement approved by the University of Arkansas, Walton Arts Center and City of
Fayetteville (Res. 118-14) in 2014; and to modify the process by which sidewalk vendor locations
can be approved.
BACKGROUND:
The City permits sidewalk vendors in multiple locations throughout the downtown area;
some are predetermined and pre -approved locations, such as the wider sidewalks in front of the
Walton Arts Center on DicksonlWest and the sidewalks on the inside of the downtown Square.
Other locations are reviewed on a case by case basis through a Conditional Use Permit. In the
most recent lease agreement between the City, University and Walton Arts Center, a provision
was added that prohibits sidewalk vendors from locating along their boundary. Specifically, in
section 12 (page 7), the language states:
"Lessor shall not permit street vendors to occupy the sidewalks immediately
adjacent to the Premises or to operate thereon to the extent Lessor owns and/or possesses
the right to control any such sidewalks."
Presumably this due to the redesign of the primary entry to the Walton Arts center from Dickson
and West, which incorporates a wider stair entry, new planters, and more interaction with the
public realm. Sidewalk vendors are not permitted in locations where they would interfere with stair
entries or other locations that are normally reserved for entering a building. The first ordinance
amendment is to remove 178.03(E)(1) as permitted sidewalk vendor areas to comply with the
lease language.
The second ordinance amendment request is to change the process by which sidewalk
vendors can request an alternative location than those preapproved by the City Council. The
ordinance currently requires any location that is not preapproved to be considered through a
Conditional Use Permit process. In order to streamline this review process, staff proposes to
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
remove the conditional use permit process and instead allow this review at a staff level, much as
we do already with vendors on private property. Any variances from cart size or operating area
would still have to go to the Planning Commission.
DISCUSSION:
The proposal to remove the currently preapproved sidewalk vending locations on Dickson
and West has been discussed with the Walton Arts Center and the City Attorney's office, who
both concur that an ordinance amendment is needed to comply with the lease agreement
approved by the City Council. Staff has proposed the additional amendment in hopes that the
reduction of preapproved spaces, and indeed the most popular sidewalk vending locations that
we have, will be offset to a degree by streamlining our review process for alternative locations in
our downtown.
BUDGET/STAFF IMPACT:
N/A
178.03 Sidewalk Vendors
(A) Purpose. Public rights -of -way are designed for
free and unobstructed travel. However, the City of
Fayetteville recognizes that certain development
patterns with wide sidewalks are unique and that
certain public amenities are not inconsistent with
the underlying dedication for the public right-of-
way, as long as they do not impede travel or
interfere with the public safety. This ordinance is
designed to regulate open air vending of goods on
public rights -of -way.
(B) Sidewalk Vendor Authorization. The Zoning and
Development Administrator may issue a permit for
a sidewalk vendor to use a specific sidewalk or
plaza location for specified hours to sell specified
goods for up to a one year period. In addition to
the general use requirements, the Zoning and
Development Administrator shall ensure that no
permit is granted unless:
(1) The applicant has obtained all necessary
permits from State or County authorities,
including any Transient Merchant permit
requirements.
(2) The applicant has submitted a sales and use
tax number, sales tax remittance forms and
an affidavit that the applicant has fully paid all
sales and use taxes during the previous
twelve months, if applicable.
(3) The applicant has filed a HMR tax remittance
form with the City of Fayetteville, when
applicable.
(4) The applicant has notified all adjacent property
owners, by certified mail, of the application.
(C) Permit Application. Each application for a permitto
conduct business on a sidewalk shall be
accompanied by a $100 application and permit
fee. Permits issued after July 1st shall be
accompanied by a $50 application and permit fee.
Each permit will expire at 3 a.m. on January 1st
following the year issued. The permit fee shall be
collected prior to issuance of the permit
(1) Application for a sidewalk vendor permit shall
include the following items in a format
acceptable to the Zoning and Development
Administrator:
(a) Name, address and contact information.
(b) Type of items sold or services rendered.
(c) A valid copy of all necessary permits
required by State and County health
authorities.
(d) Proof of application for remittance of
HMR tax to the City of Fayetteville.
(e) Means to be used in conducting
business, including but not limited to, a
description of any mobile container or
device to be used for transport or to
display approved items or services.
(f) A site plan indicating the location and
dimensions of the proposed use and
device or pushcart.
(g) A detailed scale drawing, picture or
diagram and material specifications of
the device or pushcart to be used.
(2) The permit issued shall not be transferable in
any manner.
(3) The permit is valid for one sidewalk vending
location only.
(D) Permitted Vending Products and Goods.
(1) The City of Fayetteville permits the following
types of goods for street vending in approved
locations:
(a) Cut Flowers
(b) Food and Beverage
(c) Arts and Crafts: Only objects of art or
craft produced and sold by a local artist
or craft person may be sold by street
vendors.
(2) All goods being sold from sidewalk vendors
shall:
(a) Be located within the permitted area and
be attended at all times. Sidewalk
vendors shall not conduct transactions
with vehicular traffic located in the right-
of-way.
(b) Not lead to or cause congestion or
blocking of pedestrian traffic on the
sidewalk.
(c) Involve a short transaction period to
complete the sale or render the service.
(d) Not cause undue noise or offensive
odors.
(e) Be easily carried by pedestrians.
(E) Pre -Approved Locations Requimments. Sidewalk
vendors are permitted in specific locations in
Fayetteville as a use by right. These locations
have been determined by the City Council to have
meters, bus shelters, benches, phone booths,
adequate sidewalk width, pedestrian traffic flow,
street trees and newsstands, as well as the
and they minimize potential conflicts with existing
presence of bus stops, truck loading zones,
businesses. Sidewalk vendors are not permitted to
other sidewalk vendors or taxi stands to
operate on days I times associated with special
determine whether the proposed use would
events, unless they have been approved and
result in pedestrian or street congestion.
granted a Special Events Permit from the
organization coordinating the special event. Maps
(G) Requirements. Sidewalk vendors conducting
of approved locations are available in the Planning
business on the sidewalks of the City of
Division. The locations where street vending is
Fayetteville with a valid permit issued under this
allowed as a permitted use are:
Chapter may transport and/or display approved
goods upon the approved mobile device or
(1) North and West pidowaiks in front of the
pushcart, under or subject to the following
Walton Arts Center. Sidewalk vondoro rray
conditions:
locate along West Avenue and DicP1oon St. in
front of tho Walton Arts Center
(1) The operating area shall not exceed 40
square feet of sidewalk, which shall include
(2) Inside of the Fayetteville Square. Sidewalk
the area of the mobile device, operator and
vendors may locate along sidewalks on all
trash receptacle. The Planning Division will
sides of the interior of the downtown
provide a map of approved vendor locations.
Fayetteville Square. On days / times that the
Farmers' Market or other special events
(2) The length of the mobile device or cart shall
operate, sidewalk vendors shall only be
not exceed 7 feet, including the carts trailer
permitted if approved through the Farmers'
tongue or hitch that is not removed or
Market or Special Event Permit process.
collapsible, and any propane tanks or other
attachments to the mobile device. The width
(F) Alternative Locations. Conditional Usc Permit. If
shall not exceed 4 feet, including the carts
an applicant wishes to operate as a sidewalk
wheel wells or tires, and any accessory
vendor in a location other than those specifically
components of the cart such as retractable or
approved by the City Council, a saaditional-use
collapsible sinks or shelves.
permit must be obtained. Upon receipt of a
conditional use permit application, the Planning
(3) The height of the mobile device or pushcart,
Division Gernmissien shall review the proposed
excluding canopies, umbrellas, or transparent
permit operating area to determine if the said area
enclosures, shall not exceed 5 feet.
is suitable for street vending in accordance with
this chapter. In making this determination, the
(4) No permanent hardware shall be affixed to
Planning Division Commission shall consider the
the sidewalk or adjacent buildings.
following criteria:
(5) Mobile generators are prohibited.
(1) The application meets all other criteria
established herein fora sidewalk vendor, with
(6) No sidewalk vendor may conduct business on
the exception that the applicant may request
a sidewalk in any of the following places:
that the cart, and/or operating area, may be
larger than the dimension required in this
(a) Within 10 feet of the intersection of the
chapter. An increase in cart size or operating
sidewalk with any other sidewalk.
area may be considered by the Planning
Sidewalk intersections shall be kept clear
Commission as a variance and —deer —not
for pedestrian safety.
The
determination of a larger cart size and/or
(b) Within 10 feet of any handicapped
operation area shall be subject to the variance
parking space, or access ramp.
criteria in Chapter 156.03(C).
(c) Within 15 feet of a fire hydrant.
(2) The number of permits issued for the street
vending location shall not exceed the capacity
(d) Within 15 ft. of an entrance to a building.
of the area in terms of maintaining the use of
the sidewalk as a public right-of-way, with a
(7) Street vending facilities shall be removed
minimum 48" pedestrian access route that is
from the public right-of-way when not in use.
free and clear of obstructions. The Planning
Sidewalk vendors are only allowed to operate
Division Commission shall consider the width
between the hours of 5 a.m. and 3 a.m. All
of sidewalk, the proximity and location of
carts shall be removed from the public right -
existing street furniture, including, but not
of -way during non -operational hours.
limited to: signposts, lamp posts, parking
(8) Prior to final approval, Planning Staff shall
inspect the sidewalk vendor set up in the
proposed location. The applicant shall make
an appointment between the hours of 8 a.m.
to 5 p.m. in which Planning Staff will inspect
the cart and all proposed accessories such as
coolers, trash receptacle, chairs, etc. that the
applicant is proposing for the site. Upon
approval, sidewalk vendors shall display in a
prominent and visible manner the permit
issued by the Planning Division.
(9) The Fire Marshal shall inspect and approve
any food and beverage pushcart to assure the
conformance of all cooking or heating
apparatus with the provisions of the City Fire
Code.
(10) Sidewalk vendors who sell food and beverage
are required to be permitted, and receive
approval, through the Arkansas Department
of Health and Human Services for food
related establishments. A copy of the permit
issued by the State, and inspected and
approved by the Washington County Health
Department, shall be supplied to the Planning
Division prior to Planning Division approval.
(11) Sidewalk vendors are required to provide a
trash receptacle for public use located within
their permitted operating space. All sidewalk
vendors must pick up and property dispose of
all paper, cardboard, metal, plastic or other
litter in any form (including cigarette butts)
within the sidewalk area assigned to the
vendor within thirty minutes of the end of daily
operations. Failure to completely remove all
such litter from the authorized sidewalk
location shall constitute a violation of the
permit approval.
(12) No sidewalk vendor shall solicit, berate or
make any noise of any kind by vocalization or
otherwise, for the purpose of advertising or
attracting attention to his wares. No audible
amplified music shall be permitted.
(H) Signage. Sidewalk vendors shall obtain a sign
permit from the Planning Division prior to the
issuance of a permit to operate. Sidewalk vendors
are permitted a total of one (1) A -frame
sandwich/menu board subject to Ch. 174 Signs
regulating these types of signs. The menu board
shall list the products and prices for the items
being vended. Only products or services available
at the vending location shall be displayed.
(I) Revocation of the Sidewalk Vendor Permit. The
Zoning and Development Administrator is
authorized to revoke a sidewalk vendor's permit if
it is determined that a violation of the requirements
of the Unified Development Code has occurred.
(Ord. 5185, 10-7-08; Ord. 5321, 5-18-10; Ord. 5459, 11-15-
11)
RESOLUTION NO. 118-14
A RESOLUTION TO APPROVE AN AMENDED AND RESTATED LEASE
AGREEMENT AMONG THE UNIVERSITY OF ARKANSAS AND CITY OF
FAYETTEVILLE AS LANDLORDS AND THE WALTON ARTS CENTER
COUNCIL, INC. AS TENANT
WHEREAS, the University, City of Fayetteville and Walton Arts Center Council, Inc.
agreed to a 25 year lease to be effective on April 1, 1992 for the Walton Arts Center; and
WHEREAS, in 2001 the Walton Arts Center Council, Inc. deeded the parcel for the
Nadine Baum building to the City of Fayetteville and University of Arkansas; and
WHEREAS, it is in the best interests of the Citizens, Businesses and City of Fayetteville
to amend and restate the Original Lease Agreement to ensure that the Walton Arts Center on
Dickson Street will continue to be operated, managed and maintained "in a manner that is
generally commensurate with the quality and quantity of performances and activities occurring
prior to 2013;" and
WHEREAS, the Amended and Restated Lease Agreement together with proper
amendments to the Articles of Incorporation of Walton Arts Center Council, Inc. and Walton
Arts Center Foundation, Inc. should assist in the campaign to ensure completion of the Walton
Arts Center enlargement and enhancement project; and
WHEREAS, the University of Arkansas Board of Trustees, the Walton Arts Center
Council, Inc. Board of Trustees and the Walton Arts Center Foundation, Inc. Board of Trustees
have approved this Amended and Restated Lease Agreement for the Walton Arts Center.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves
the Amended and Restated Lease Agreement attached as Exhibit 1 and authorizes Mayor Jordan
to sign this Lease.
PASSED and APPROVED this l' day of July 2014.
ATTEST:
,c 1 Y p,M'Sn
FAYETTEVILLE;p-
By: 4cata& 4Lth
SONDRA E. SMITH, City Clerk/Treasurer
AMENDED AND RESTATED LEASE AGREEMENT
BETWEEN
BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS FOR THE
UNIVERSITY OF ARKANSAS, FAYETTEVILLE, AND THE CITY OF
FAYETTEVILLE, ARKANSAS
"Lessor"
and
WALTON ARTS CENTER COUNCIL, INC.
"Lessee"
Table of Contents
Page
1.
Premises and Improvements Leased.............................................................................2
2.
Term..............................................................................................................................2
3.
Rental............................................................................................................................
3
4.
Taxes.............................................................................................................................
3
5.
Insurance.......................................................................................................................4
6.
Waiver of Subrogation Rights......................................................................................5
7.
Maintenance by Lessee..................................................................................................5
8.
Utilities..........................................................................................................................5
9.
Lessee's Improvements and Modifications.....................................................................6
10.
Surrender of Premises....................................................................................................
6
11.
No Offsets.....................................................................................................................6
12.
Lessee's Use..................................................................................................................
6
13.
Abatement of Lessee's Obligations................................................................................7
14.
Restoration of Improvements.........................................................................................7
15.
Waste - Liens.................................................................................................................8
16.
Indemnification..............................................................................................................
8
17.
Assignment and Subletting...........................................................................................9
18.
Total Condemnation of the Premises.............................................................................9
19.
Partial Condemnation of the Premises..........................................................................10
20.
Determining Fair Market Value..................................................................................11
21.
Holding Over..............................................................................................................11
22.
Inspection....................................................................................................................12
23.
Default.........................................................................................................................12
24.
Remedies.....................................................................................................................13
25.
No Waiver...................................................................................................................14
26.
Quiet Eni oyment.........................................................................................................14
27.
Further Assurances.....................................................................................................15
28.
Entire Agreement........................................................................................................15
29.
Severabilitv.................................................................................................................15
30.
Applicable Law...........................................................................................................15
31.
Venue..........................................................................................................................15
32.
Amendment.................................................................................................................15
33.
Headings.....................................................................................................................16
34.
Recorded Memorandum.............................................................................................16
35.
Binding Effect.............................................................................................................16
36.
Notices........................................................................................................................16
37.
Representations and Warranties of Lessee.................................................................17
38.
Execution....................................................................................................................18
39.
Counterparts................................................................................................................18
Table of Contents
(continued)
Page
Exhibit A
Description of Real Property
Exhibit B
Plan of Improvement
Exhibit C
Memorandum of Lease
ii
AMENDED AND RESTATED LEASE AGREEMENT
This Amended and Restated Lease Agreement is made and entered into this _ day of
2014, by and among Board of Trustees of the University of Arkansas for the
University of Arkansas, Fayetteville ("University of Arkansas"), the City of Fayetteville, Arkansas
(the "City"), and Walton Arts Center Council, Inc., an Arkansas not -for profit corporation (the
"Walton Arts Center"). The University of Arkansas and the City are collectively referred to in the
singular tense from time to as "Lessor", and the Walton Arts Center is referred to as "Lessee".
RECITALS:
A. The twenty five (25) year Original Lease Agreement from the City of Fayetteville and
the University of Arkansas as the Lessor was effective on April 1, 1992, and leased to
Lessee Walton Arts Center lands which included all of Block Six (6) of the Original Plat
of the Town of Fayetteville, Arkansas, as per plat on file in the office of the Circuit
Clerk and Ex -Officio Recorder of Washington County, Arkansas. The Original Lease
Agreement was signed by the University of Arkansas on November 24, 1993, the Mayor
of the City of Fayetteville after the Fayetteville City Council approval on January 18,
1994, and by Lessee on January 4, 1994. The parcel containing the Nadine Baum
building was deeded to the City and the University in 2001 by the Walton Arts Center
Council, Inc. Capitalized terms not otherwise defined in this Lease Agreement (as
defined below) shall have the meanings given them in the Original Lease Agreement.
B. The Original Lease Agreement expires on March 30, 2017, subject to certain renewal
options granted to Lessee.
C. The parties desire to amend and restate the Original Lease Agreement in its entirety so
as to, among other things, extend the primary term of the Original Lease Agreement and
permit Lessee to begin a fund raising campaign with the intention of renovating,
refurbishing, and enlarging, and operating the Premises if successful, to remove from the
leased premises that portion of Block Six upon which the City of Fayetteville is to
1
construct a parking deck using citizen approved bond revenues and to add the Nadine
Baum building and parcel. The area to be retained by the City includes the entire
parking deck site from the west side of the parking deck east to School Avenue and from
the north side of the parking deck south to Spring Street except for the north liner
building which replaces the Walton Arts Center Administrative Headquarters building.
D. The Original Lease Agreement is hereby amended and restated in its entirety by this
Amended and Restated Lease Agreement ("Lease Agreement") and shall be effective
as of the latest date set forth on the signature page.
E. Within a reasonable period of time from the date Lessor executes this Lease Agreement,
Lessee shall begin a capital fund raising campaign to cultivate, develop and solicit
donors and the general public for funds to renovate, refurbish, enlarge, and operate the
Premises in accordance with the renderings, documents, and drawings attached as
Exhibit "B" to this Lease Agreement (the "Lessee Improvement Work"). While
Lessee will use its best efforts with regard to the capital campaign to pay for the Lessee
Improvement Work, Lessee offers no assurances that the campaign will be successful or
a timeline for completion of the Lessee Improvement Work. Lessor acknowledges that
Lessee may be required to complete the Lessee Improvement Work in phases or stages
over several years.
In consideration of the terms and conditions contained herein, the sufficiency of which is
acknowledged by Lessor and Lessee, the parties agree as follows:
1. Premises and Improvements Leased. Subject to the terms and conditions set forth
in this Lease Agreement, Lessor leases and lets the Premises as referred to in C. and as more
particularly described in Exhibit "A" unto Lessee who hereby accepts the Premises.
2. Term. Unless sooner terminated as set forth below, the term of this Lease
Agreement ("Term") shall be twenty-five (25) years, commencing as of the date Lessor and Lessee
execute this Lease Agreement (the "Lease Commencement Date") and shall continue through the
2
last day of the month at 5:00 PM CST in which the twenty-fifth (25th) anniversary of the Lease
Commencement Date occurs. At the end of the original Term and subject to Lessor's right to
terminate this Lease Agreement, Lessee shall have the option to extend the Term of this Lease
Agreement for a period of twenty-five (25) years subject to the terms and conditions herein set
forth, provided Lessee is not otherwise in default. Lessor shall have the right to terminate this Lease
Agreement by providing written notice of termination to Lessee at least ninety (90) days prior to of
the expiration of the original Term. If Lessor does not exercise its right terminate this Lease
Agreement by providing written notice to Lessee at least 90 days prior to the expiration of the
original Term, then Lessee shall have the right to extend the Term by providing written notice to the
Lessor at any time prior to the expiration of the original Term.
3. Rental. As rental for the Premises, within ten (10) business days of the Lease
Commencement Date, Lessee shall pay to Lessor in advance the sum of ONE DOLLAR ($1.00) for
rental of the Premises for the entire Term. As additional rental, Lessee shall pay in full on a timely
basis all costs, expenses, fees, and assessments owed in connection with any Lessee Improvement
Work that Lessee may commence. As further consideration for the rental for the Premises, the
Walton Arts Center agrees to faithfiilly perform all of its Representations and Warranties of Lessee
contained in Paragraph 37 of this Lease Agreement.
4. Taxes. As additional rental, Lessee shall pay, before they become delinquent, all ad
valorem taxes, if any, and special or general assessments, if any, lawfully levied or assessed against
the Premises, or which may become a lien against the Premises, or which become due and payable
during the term hereof. Upon giving notice to Lessor, Lessee may, in good faith and in the manner
provided by law, contest any such tax or assessment against the Premises; provided, all costs and
expenses incident to contesting such taxes or assessments shall be paid by Lessee, and Lessee shall:
3
(i) if necessary to prevent any sale of the Premises or any loss or damage to Lessor, pay such tax or
assessment under protest; (ii) in the event of an adjudication adverse to Lessee, promptly pay such
tax or assessment; (iii) indemnify and hold Lessor harmless against any losses or damages arising
from such contest; (iv) take all such other actions as may be reasonably necessary to prevent any
such sale or loss; and (v) before such taxes or assessments become delinquent, deliver to Lessor
proof of Lessee's timely and full payment of all such taxes and assessments. The duty of
indemnification shall survive the expiration or termination of this Agreement. Additionally, nothing
contained in this provision shall be a waiver of Lessor's right, at Lessor's cost, to challenge the
imposition of any type or kind of taxes on the Premises.
5. Insurance. Nothing contained herein shall obligate or otherwise require Lessor to
procure or maintain any insurance pertaining to the Premises. Lessee will, at its sole cost and
expense, at all times, keep the Premises insured under special form policies of fire and extended
coverage for its full insurable value, with vandalism, sprinkler leakage, and malicious mischief
insurance, and such other additional coverages as may from time to time be designated by Lessor,
including, without limitation, all-risk coverage, boiler and machinery insurance, flood insurance,
earthquake, and war damage insurance added as endorsements to said insurance policy. This
insurance must be maintained with a reliable insurance company or companies licensed to do
business in the state of Arkansas. These policies shall also include a replacement cost coverage
endorsement and must meet all coinsurance requirements of the insurer, in an amount affording
coverage of not less than eighty percent (80%) of the full insurable value of the Premises. Such
policy or policies shall provide that coverage is noncancelable without thirty (30) days prior written
notice to Lessor.
Lessee further agrees to carry and maintain commercial general liability insurance written
li
as primary coverage with a reliable insurance company licensed to do business in the state of
Arkansas, and acceptable to Lessor, covering occurrences that may arise on the Premises as a
result of the operations thereon, in amounts not less than $1,000,000 per occurrence for bodily
injury and $1,000,000 per occurrence for property damage and $3,000,000 per occurrence of
combined bodily injury and property damage. All policies required by this provision shall be
jointly payable to the University of Arkansas and the City.
6. Waiver of Subrogation Rights. Lessor and Lessee each hereby waive their
respective rights of subrogation against the other for any and all claims and causes of action
whatsoever arising out of any injury upon, or loss or damage to, the Premises, or any part
thereof, resulting from any risk or peril insured against by any of the insurance policies herein
required or purchased by the Lessee. Lessor and Lessee shall each promptly notify their
respective insurers of such waiver of subrogation rights.
7. Maintenance by Lessee. Lessee shall, at its sole cost, risk and expense: (i) maintain
the Premises in good condition and repair, excepting therefrom only normal, reasonable wear and
use; (ii) keep the Premises in a clean, safe and sanitary condition; (iii) make, or cause to be made, all
necessary repairs, whether interior, exterior or structural, on the Premises; and (iv) provide for the
reasonable care, landscaping and cleaning of the Premises.
8. Utilities. Lessee shall, at its sole cost and expense, provide utilities for the Premises,
including without limitation all initial installation or connection fees or charges, and all monthly
fees, service charges or late charges for electricity, television, cable, telephones, water, gas, sewer
and garbage service, or any other expenses arising out of, or incident to Lessee's occupancy of the
Premises; provided, however, Lessor shall, to the best of its ability, continue to furnish on an on-
going basis those services to the Premises that it currently provides.
F!
9. Lessee's lmprovements and Modifications. Subject to the teens and conditions
contained herein, Lessee shall have the right, at its sole cost, expense, and risk: (i) to modify the
Premises existing on the Lease Commencement Date hereof in accordance with the Lessee
Improvement Work as outlined in Exhibit B attached; and (ii) construct or install on the Premises
such other structures, improvements, or fixtures as Lessee may desire in order to continue to satisfy
audience and artist demands and so as to remain competitive as an arts center.
10. Surrender of Premises. At the termination under this Lease Agreement or the
expiration of the Term: (i) Lessee shall surrender and deliver up to Lessor the Premises in good
repair and condition, excepting therefrom only damage by fire, tornado or other casualty and
normal, reasonable wear and use; and (ii) all improvements and fixtures, whether existing on the
Lease Commencement Date hereof or subsequently constructed on, or affixed to, the Premises, shall
be and remain the sole property of Lessor without any payment whatsoever by Lessor to Lessee or
any offset in favor of Lessee against Lessor.
11. No Offsets. In the event Lessee shall have any claim whatsoever against Lessor,
such claim may not be offset against the rental payments or any other sum payable to Lessor
pursuant hereto.
12. Lessee's Use. Lessee shall use and occupy the Premises as an arts center for the
residents of Northwest Arkansas and related ancillary support services and educational activities
throughout the State of Arkansas; provided, however, certain portions of the Premises may continue
to be utilized for general commercial purposes in accordance with applicable laws. At all times
Lessee shall conduct its business and control its agents, employees, invitees, licensees, and all other
persons entering upon the Premises, or any part thereof, under the authority or by permission of
Lessee, in such a manner as is lawful and reputable. Lessee shall not permit, allow or otherwise
3
suffer any operations to be conducted on the Premises that would cause the suspension or
cancellation of the fire and extended coverage insurance policies required under Paragraph 5.
Lessee, in the use and occupancy of the Premises, and in the conduct of its business thereon, shall at
all times comply with all applicable plat or zoning restrictions, deed restrictions, and all other laws,
statutes, ordinances, or regulations applicable to the Premises, and Lessee shall, at its sole cost and
expense, secure and maintain all necessary licenses and permits required for the conduct of its
business upon the Premises. Lessor shall not permit street vendors to occupy the sidewalks
immediately adjacent to the Premises or to operate thereon to the extent Lessor owns and/or
possesses the right to control any such sidewalks.
13. Abatement of Lessee's Obligations. Lessee's obligations and duties pursuant to this
Lease Agreement, including without limitation its obligations under this Lease Agreement, shall not
be abated, terminated or diminished during any period that the Premises, or any part thereof, are
untenantable, except as provided in Paragraphs 14, 18 or 19; provided, however, that Lessee shall
remain responsible to pay all amounts required to be paid under this Lease Agreement and that
became due and owing prior to the events identified in Paragraphs 14, 18 or 19.
14. Restoration of Improvements. In the event any or all improvements to the Premises
are either partially or entirely destroyed or damaged by any cause whatsoever, Lessee shall notify
Lessor of such loss or damage. Thereafter, Lessee shall, at its sole cost, risk and expense, promptly
commence and diligently complete, or cause to be promptly commenced and diligently completed:
(i) the removal of any debris on the Premises, salvaging to the extent economically feasible any
salvageable or reusable materials remaining thereon, and Lessee shall promptly alleviate any
dangerous conditions existing on the Premises as a result of such damage or destruction; and (ii) the
repair and restoration of the Premises, so that upon the completion of such repairs and restoration,
7
the Premises will (a) be suitable for Lessee's use, (b) have a commercial value at least as great as
that before such loss or destruction, and (c) retain, to the extent practicable, the same appearance
and character. If such loss, damage or destruction results from a casualty covered by one or more
policies of casualty insurance, the proceeds of such policies shall, to the extent necessary, be paid to
Lessee as reimbursement for its reasonable expenses incurred in the repair and restoration of the
Premises; provided, however, prior to the payment to Lessee of the proceeds of such insurance
policies, Lessee shall deliver to Lessor satisfactory evidence of the completion of such repairs and
restoration, and the cost thereof, and the reasonableness of all such costs. If the proceeds from such
insurance policies are insufficient to reimburse Lessee for its expenditures relating to the repair and
restoration of the Premises, Lessee alone shall bear all costs of such repairs and restoration which
are in excess of the proceeds of such insurance policies. In the event the proceeds of such insurance
policies are greater than, the sums required to repair and restore the Premises, all such remaining
sums shall be the sole property of Lessee.
15. Waste - Liens. Lessee shall not allow or suffer: (i) any waste of the Premises; or (ii)
permit, by reason of any act of Lessee or failure by Lessee to perform any act required herein, any
liens or other encumbrances to attach to, or to exist against, the Premises.
16. Indemnification. Lessee shall indemnify, defend, save and hold harmless from and
against all liabilities, claims, losses, damages, fines or causes of action (including without limitation
all costs of court, investigation, or attorney's fees incurred in connection with such causes of action
or claims and any appellate litigation) due to any death or personal injury to any person
whomsoever or any property damage whatsoever arising out of, from, or pertaining to:
A. Lessee's operations or the conduct of its business upon the Premises, including
without limitation any condition pertaining to the Premises attributable thereto;
and
B. Any breach violation, or nonperformance of any term, covenant, or provision under
this Lease Agreement by Lessee, its employees, invitees, licensees and agents.
If Lessor is made a party to any suit or legal action for damages arising from the negligence
or other actions of Lessee, its employees, invitees, licensees, or agents (including any of the causes
enumerated above), Lessor shall give notice to Lessee of such suit or legal action and Lessee shall
thereupon assume all burden, cost and expense incident to the defense, investigation, and settlement
of such cause of action or claim, including all costs of court, investigation and attorney's fees in
connection therewith, and Lessee shall promptly pay any judgment which may be obtained in such
suit or legal action against the Lessor.
17. Assignment and Subletting. Except as to the premises located at 220 North West
Avenue, Fayetteville, AR 72702, which currently are sublet for the operation of a "Grubb's"
restaurant and as set forth in the next sentence, Lessee may not assign, sublet, mortgage or
otherwise encumber its interest or estate in the Premises, or any part thereof, or its rights
pursuant to this Lease Agreement, without the prior written consent of Lessor, which consent
shall not be unreasonably withheld. Lessee may, without Lessor's consent, assign or sublet all or
part of its rights and interests under this Lease Agreement to a wholly -owned subsidiary or any
affiliated entity; provided, however, any such assignment or subletting by Lessee, with or
without the prior written consent of Lessor, shall not act or release Lessee from its obligations
pursuant to this Lease Agreement, including, without limitation, its obligation to pay the rental.
Notwithstanding the foregoing, Lessee shall be permitted to allow use of the Premises by art -
related entities and resident companies.
18. Total Condemnation of the Premises. If, during the term under this Lease
9
Agreement, all or a substantial part of the Premises are condemned by an entity having the power of
eminent domain, and if such condemnation will materially interfere with Lessee's use of the
Premises so that the Premises cannot be made suitable for occupation by reasonable repairs or
restoration, or if the Premises are sold to such condemning authority or entity under the threat of
condemnation, then Lessee may terminate this Lease Agreement by giving notice thereof to Lessor;
thereafter, any award of damages in connection with such condemnation proceedings, or the
proceeds of any such sale made to such condemning authority, shall be and remain the sole property
of Lessor as to value of any improvements and as to the Lessor with regard to the value of land or
real property taken.
19. Partial Condemnation of the Premises. In the event less than a substantial portion of
the Premises is taken or condemned by an entity having the power of eminent domain, or sold to
such entity under the threat of condemnation, so that such condemnation or sale will not materially
interfere with Lessee's use of the Premises, this Lease Agreement shall not terminate, and Lessee
shall, at its sole expense, cost and risk, promptly commence and diligently complete, or cause to be
promptly commenced and diligently completed, the repair and restoration of the Premises, so that
upon the completion of such repairs and restoration the Premises will, to the extent practicable, be
suitable for use by Lessee and retain the same appearance, character and commercial value as
immediately preceding such condemnation or sale. If the estimated cost of such restoration or
repairs equals or exceeds twenty per cent (20%) of the then fair market value (as defined in
paragraph 20 below) of the Premises, then prior to the commencement of restoration of repairs,
Lessee shall submit for Lessor's approval all drawings and specifications pertaining to repairs or
restorations, and Lessee shall not commence any repairs or restorations until Lessor has approved
all such drawings and specifications, contracts, contractors, performance and payment bonds (and
10
the respective sureties thereon) pertaining to such repairs or restoration. An award of damages in
connection with such condemnation proceedings, or the proceeds of any such sale made to such
condemning entity, shall be applied to reimburse Lessee for its expenses relating to the restoration
and repair of the Premises; provided, Lessee alone shall bear all costs of such restoration or repairs
in excess of such award pursuant to such condemnation proceedings or the proceeds of any such
sale. In the event the award pursuant to such condemnation proceedings or the proceeds of such sale
are in excess of the amount necessary to repair and restore the Premises, then all such awards or
proceeds shall be and remain the sole property of Lessee. Such partial condemnation of the
Premises shall not release Lessee from its obligation to pay any rental then owed.
20. Determining Fair Market Value. If Lessor and Lessee are unable to agree on a
fair market value of the Premises, for the purpose of Paragraph 19 above, then Lessor and Lessee
shall, within thirty (30) days, each appoint a qualified person to act as an appraiser, and the
decision by such appraisers as to the fair market value of the Premises, shall be binding upon
Lessor and Lessee (the "Fair Market Value"). In the event such appraisers are unable to agree
upon a fair market value for purpose of Paragraph 19, then the appraisers designated by Lessor
and Lessee shall choose a third duly qualified person, acceptable to both Lessor and Lessee, and
the decision of the third appraiser as to the fair market value of the Premises, shall be binding
upon both Lessor and Lessee. In the event the fair market value as determined by such
appraisers differs from the rental during the month in which the casualty or loss occurred, then
upon the determination of a fair market value for the Premises, Lessor and Lessee shall
respectively make such reimbursements or payments of excess or insufficient rental as may be
appropriate to the extent legally permitted for Lessor.
21. Holding Over. In the event Lessee shall hold over on the Premises, or any part
11
thereof, after the termination under this Lease Agreement or the expiration of the Term or any
extension, unless otherwise agreed in writing such holding over shall constitute and be construed
as a tenancy from month to month only; provided, the rental payments during such period of
holding over shall be a sum equal to the Fair Market Value of the rental during the month
immediately preceding the termination under this Lease Agreement or the expiration of the Term
hereof.
22. Inspection. Lessor, acting through its authorized agents and representatives, shall
have the right to enter upon the Premises at any and all reasonable times for the purpose of
inspecting the general state of repair and condition of the Premises, or for any other reasonable
purpose whatsoever, including, but not limited to, emergencies.
23. Default. Any or all of the following shall constitute an event of default ("Event of
Default") pursuant to the terms under this Lease Agreement:
A. Lessee's failure for any reason whatsoever to comply with the terms, covenants,
conditions and agreements contained herein or to promptly discharge any and all
of its obligations and duties pursuant hereto, including without limitation Lessee's
failure to pay any sum herein required or failure to provide proof of payment of
Same;
B. The filing of a petition in bankruptcy by or against Lessee pursuant to any section
or chapter of the Bankruptcy Code, as amended, or any other similar law or
statute of the United States of America or any state thereof, or entering into any
agreement, plan of reorganization or composition with creditors, or any
committee thereof;
C. Lessee's becoming insolvent or making a transfer or assignment for the benefit of
12
creditors;
D. The appointment of a receiver or trustee for all, or a substantial part, of Lessee's
assets; or
E. The issuance of process for execution upon or the attachment of Lessee's property
upon, or interest in, the Premises.
24. Remedies. Upon the occurrence of any Event of Default, Lessee waives all
statutory rights of ejectment, and Lessor shall have the option of pursuing any one or more of the
following remedies without any notice or demand whatsoever:
A. Terminate this Lease Agreement, in which event Lessee shall promptly surrender
the Premises to Lessor, and, if Lessee fails to do so, Lessor may, without
prejudice to any other remedy which it may have for possession of the Premises
or the collection of any arrearages in rental payments, enter upon, and take
possession of, the Premises and expel or remove any agent, representative or
employee of Lessee or any other person who may be occupying the Premises, or
any part thereof, under the authority of Lessee, without being liable for
prosecution of any claim for damages therefore; Lessee agrees to pay to Lessor on
demand the amount of all losses and damages which Lessor may suffer by reason
of such termination, whether through an inability to relet the Premises on
satisfactory terms or otherwise;
B. Enter upon or take possession of the Premises and expel or remove any agent,
representative or employee of Lessee, or any other person occupying the
Premises, or any part thereof, under the authority of Lessee, without being liable
for prosecution or any claim for damages therefore, and thereafter Lessor shall
13
make a diligent and reasonable effort to relet the Premises on commercially
reasonable terms, and Lessee shall pay to Lessor, on demand, any deficiency that
may arise by reason of Lessor's inability to relet the Premises for a rental equal to
that provided herein, regardless of the reason for such failure; Lessor's good faith
determination as to what constitutes commercially reasonable terms for reletting
the Premises shall be conclusive for purposes of this paragraph; or
C. Enter upon the Premises without being liable for prosecution or any claims for
damages therefore, and do and perform whatever acts Lessee is obligated to do
pursuant to the terms under this Lease Agreement. Lessee shall reimburse Lessor
on demand for any expenses which Lessor may incur in thus affecting compliance
with Lessee's obligations pursuant hereto, including, without limitation, all court
costs and attorney's fees.
25: No Waiver. The waiver by any party hereto of any breach or violation of any
provision under this Lease Agreement shall not act or be construed as a waiver of any prior or
subsequent breach hereof, nor shall the pursuit of any of the foregoing remedies (as set forth in
Paragraph 24) preclude the pursuit of any other remedies provided herein or applicable law, nor
shall the pursuit of any remedy provided herein or by applicable law constitute a forfeiture or
waiver of any payments or other sums payable to Lessor pursuant hereto, or of any damages
accruing to Lessor by reason of Lessee's violation of any of the terms, conditions, and covenants
contained herein.
26. Quiet Enjoyment. Lessor warrants and represents to Lessee that it has fully right
and power to execute and perform this Lease Agreement and that Lessee, upon the payment of
rental and the performance of the other covenants and terms contained herein, shall peaceably
14
and quietly have, hold, and enjoy the Premises during the full term under this Lease Agreement.
27. Further Assurances. From time to time, and at all times, Lessor and Lessee shall
do all such further acts as may be reasonably required to fully perform and carry out the terms
and intent under this Lease Agreement.
28. Entire Agreement. This Lease Agreement constitutes the sole and only agreement
between Lessor and Lessee concerning the subject matter hereof and supersedes all prior
agreements, arrangements or understandings, if any, whether written or oral, relating to the
subject matter hereof.
29. Severability. In case any one or more of the provisions contained in this
agreement shall for any reason whatsoever be held invalid, illegal or otherwise unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Lease Agreement shall be construed as if such illegal, invalid or unenforceable
provision had never been contained as a part hereof.
30. Applicable Law. This Lease Agreement shall be interpreted and construed, and
the respective rights of Lessor and Lessee governed, according to the laws of the State of
Arkansas. Nothing contained in this Lease Agreement shall be deemed, construed or operate as
a waiver of any immunities to suit available to the University of Arkansas, the City or their
respective trustees, officials, or employees.
31. Venue. Unless otherwise finally determined by court of competent jurisdiction,
the venue of any suit, cause of action or other legal proceeding pertaining to this Lease
Agreement shall be in Washington County, Arkansas, subject to the non -waiver of immunities
provision set forth in Paragraph 31.
32. Amendment. This Lease Agreement may only be amended by a writing executed
15
by both Lessor and Lessee, and thereafter duly delivered by each respectively to the other and
incorporated by reference as a part hereof.
33. Headings. The headings of the respective articles or paragraphs under this Lease
Agreement are for the purpose and convenience of reference only, and are not intended to be a
part of, or to affect the meaning and interpretation of, this Lease Agreement. The Recitals as the
beginning of the Lease Agreement are and shall be construed in harmony with all other
substantive provisions of this Lease Agreement.
34. Recorded Memorandum. Concurrently with the execution and delivery under this
Lease Agreement, Lessor and Lessee shall execute, deliver and promptly file for record in the
deed records of Washington County, Arkansas, a memorandum evidencing this Lease
Agreement in substantially the same form as the attached Exhibit "C", to which reference is
made for all purposes.
35. Binding Effect. This Lease Agreement is binding upon and shall inure to the
benefit of the Lessor and Lessee and their respective successors in title and permitted assigns.
36. Notices. All notices, information, offers, payments of rental, or other
communications herein required or permitted, shall be in writing and shall be properly given,
made or sent when delivered personally to the below identified representative of such party
addressed in such writing, or when mailed by prepaid certified or registered mail, return receipt
requested, or by overnight delivery service, to such party at its respective address as follows:
If to Lessor:
The City of Fayetteville, Arkansas
, Arkansas
Office of the Chancellor
16
425 Administration Building
University of Arkansas
Fayetteville, Arkansas 72701
With a copy to:
Office of the General Counsel
421 Administration Building
University of Arkansas
Fayetteville, Arkansas 72701
If to Lessee:
Walton Arts Center Council, Inc.
P. O. Box 3547
Fayetteville, Arkansas 72702
Attention: President and CEO
With a copy to:
Attention: John Alan Lewis
Mitchell, Williams, Selig, Gates & Woodyard, PLLC
5414 Pinnacle Point Drive, Suite 500
Rogers, Arkansas 72758
(479) 464-5656
or to such other respective addresses either Lessor or Lessee may hereafter designate and give
notice thereof to the other.
37. Representations and Warranties of Lessee. Lessee hereby covenants and warrants
to Lessor that:
A. Lessee is a not -for-profit corporation incorporated pursuant to the laws of the
State of Arkansas, has duly paid all applicable franchise taxes and charter fees,
and is duly authorized to do business in the State of Arkansas;
B. The undersigned individual, acting as the duly authorized agent of Lessee, has full
power and authority to execute this Lease Agreement as the act and deed of
Lessee; provided, however, Lessee's taking possession of the Premises, or any
part thereof, shall be conclusively deemed as Lessee's ratification under this Lease
17
Agreement; and Lessee has fully and completely inspected the Premises, and as of
the effective date hereof the Premises are adequate and sufficient for the purposes
for which they are herein leased. At all times during the Term, shall operate,
manage and maintain the Walton Arts Center on Dickson Street in a manner that
is generally commensurate with the quality and quantity of performances and
activities occurring prior to 2013. In determining whether this standard is met,
the City of Fayetteville and the University of Arkansas may take into account the
quality, type and number of performances and activities occurring at the Dickson
Street facility, including the quality, type and number of: (i) Broadway Musicals
and performances; (ii) other theatrical, dance and musical performances; (iii)
concert performances and (iii) educational programs.
C. Notwithstanding the foregoing, nothing in this Lease Agreement shall prevent
Lessee from providing administrative or support services at the Premises for the
benefit of other arts and entertainment venues in and around Northwest Arkansas
which are owned, leased, operated or managed by Lessee.
38. Execution. This Lease Agreement was executed by Lessor and Lessee on the
dates shown respectively on the acknowledgments of each, but is effective for all purposes on the
effective date as set forth above.
39. Counterparts. This Lease Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and together shall constitute one and the same
instrument. Signatures transmitted electronically via PDF copy or via facsimile shall be binding
and make this Lease Agreement effective.
[SIGNATURE PAGE(S) FOLLOW]
18
ATTEST:
City Clerk
Date: D7/t27 ,2014
ATTEST:
Marcia Overby
Notary Public
v/fr//I
lila
"LESSOR"
CITY OF FA7ETTEVLI,J
SP By:
ayor �FtK / If
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e.-:
E : FAYEITEVILI
►�z.••9 5
•.QkAMSP.
BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS, ACTING FOR THE
UNIVERSITY OF ARKANSAS,
FAYETTEVILLE
By: ,-,or-,4 IA44t
G. David Gearhart
Chancellor
c/irl/y
"LESSEE"
WALTON ARTS CENTER COUNCIL, INC.
19
EXHIBIT "A"
DESCRIPTION OF PREMISES
Tract A:
All of Block Six (6), of Original Town of Fayetteville, as per Plat of Record in the
Office of the Circuit Clerk and Ex -Officio Recorder of Washington County,
Arkansas; LESS AND EXCEPT the southeast corner of said block more
particularly described as follows: BEGINNING at the Southeast (SE) corner of
said Block; thence along the East line of said Block N02°40'06"E a distance of
289.09 feet; thence leaving said East line N87°19'54"W a distance of 105.17 feet;
thence S47°59'48"W a distance of 30.24 feet; thence S03°05'54"W a distance of
56.54 feet; thence N87°06'23"W a distance of 14.83 feet; thence S02°37'21"W a
distance of 211.63 feet to the South line of said Block; thence along said South
line S87°26'40"E a distance of 141.77 feet to the POINT OF BEGINNING.
In addition to the above described parcel, once the parking deck and its north liner
building have been completed, the premises leased by the City of Fayetteville and the University
of Arkansas to the Walton Arts Center Council, Inc. shall include the north liner building of the
parking deck for use of the Walton Arts Center as its Administrative Headquarters, and the lower
level as the expanded backstage area for the Walton Arts Center. Upon completion of the
parking deck the City agrees to provide twenty-eight (28) parking spaces within the deck for the
Walton Arts Center staff's use and another seven (7) parking spaces in the Spring Street parking
lot.
Tract B:
A part of Bock 8 of the original town (now City) of Fayetteville, Arkansas, being
more particularly described as follows: Beginning at the Northeast corner of
Block 8, thence North 87 degrees 50 minutes West 90.82 feet to the East railroad
right of way, thence South 29 degrees 34 minutes West 215.87 feet, thence South
27 degrees 34 minutes West 43.4 feet, thence South 22 degrees 28 minutes West
62.9 feet, thence South 18 degrees 24 minutes West 42.4 feet along the East right
of way, thence South 88 degrees 57 minutes East 254.70 feet, thence North
325.82 feet to the point of beginning, containing 1.34 acres, more or less.
Exhibit A
2620313.3
Exhibit B
The Walton Arts Center Fayetteville Expansion and Renovation will allow the facility to meet growing
demand for arts and special events and will improve the patron experience when they visit the theater. The
project focuses on the expansion and renovation of the main lobby, Starr Theater, backstage support
spaces, and technical upgrades.
I. The Main Lobby will be expanded and reconfigured, and a new plaza will create synergy with
Dickson Street. The lobby will have more room for concessions, coat check, etc. and will serve as
a great special event space. New multi -purpose rooms and support spaces (such as catering space,
storage and concession areas) will be added.
2. Starr Theater will be upgraded and will have a dedicated lobby and entry. Additional backstage
support spaces will be built to accommodate additional performance activities and events.
3. Backstage areas will be expanded to accommodate simultaneous performances in Baum Walker
Hall and in Starr Theater and for growing touring production needs.
4. Theatrical lighting systems and audio systems will be upgraded to meet modem production needs.
Accessible seating in Baum Walker Hall (main floor and balcony) will be added and upgraded to
meet ADA standards.
EXHIBIT "C"
MEMORANDUM EVIDENCING AN AMENDED AND RESTATED LEASE AGREEMENT'
STATE OF ARKANSAS )
)ss
COUNTY OF WASHINGTON )
THIS MEMORANDUM is executed to evidence the terms contained in a written instrument
executed A-,Iji!- I9 , 2014, and effective as provided therein, styled "Amended and
Restated Lease Agreement", by which the Board of Trustees of the University of Arkansas, acting
for the University of Arkansas, Fayetteville and the City of Fayetteville, Arkansas (collectively,
"Lessor") has leased the herein described real property to Walton Arts Center Council, Inc.
("Lessee"), a non-profit corporation, with its principal place of business in Fayetteville, Arkansas.
Such Amended and Restated Lease Agreement pertains to the following described tract of real
property, to wit:
Tract A:
All of Block Six (6), of Original Town of Fayetteville, as per Plat of Record in the
Office of the Circuit Clerk and Ex -Officio Recorder of Washington County,
Arkansas; LESS AND EXCEPT the southeast corner of said block more
particularly described as follows: BEGINNING at the Southeast (SE) corner of
said Block; thence along the East line of said Block N02°40'06"E a distance of
289.09 feet; thence leaving said East line N87° 19' 54"W a distance of 105.17 feet;
thence S47°59'48"W a distance of 30.24 feet; thence S03°05'54"W a distance of
56.54 feet; thence N87°06'23"W a distance of 14.83 feet; thence S02°37'21"W a
distance of 211.63 feet to the South line of said Block; thence along said South
line S87°26'40"E a distance of 141.77 feet to the POINT OF BEGINNING.
Tract B:
A part of Bock 8 of the original town (now City) of Fayetteville, Arkansas, being
more particularly described as follows: Beginning at the Northeast corner of
Block 8, thence North 87 degrees 50 minutes West 90.82 feet to the East railroad
right of way, thence South 29 degrees 34 minutes West 215.87 feet, thence South
27 degrees 34 minutes West 43.4 feet, thence South 22 degrees 28 minutes West
62.9 feet, thence South 18 degrees 24 minutes West 42.4 feet along the East right
of way, thence South 88 degrees 57 minutes East 254.70 feet, thence North
325.82 feet to the point of beginning, containing 1.34 acres, more or less.
Exhibit C
This memorandum evidencing the Amended and Restated Lease Agreement shall be filed
for record in the deed records of Washington County, Arkansas.
EXECUTED AND EFFECTIVE this -0 -7 --day of Oy,
ATTEST:
Jlflat
City Clerk
Date: C7/o7 ,2014
Marcia Overby
Notary Public
Date: / , 2014
"LESSOR"
CITY OF
By:
,2014.
TV
FAYE T1 EVIttE:
y9;kANSO 4�
BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS, ACTING FOR THE
UNIVERSITY OF ARKANSAS,
FAYETTEVVIILLEE
By:
G. David Gearhart
Chancellor
"LESSEE"
WALTON ARTS CENTER COUNCIL, INC.
By: ({�
Title:
Exhibit C
ACKNOWLEDGMENT
STATE OF ARKASNAS
)ss:
COUNTY OF WASHINGTON
On this 11th day of August, 2014, before me, the undersigned, a Notary Public, duly
commissioned, qualified and acting within and for said County and State, appeared in person the
within -named G. David Gearhart to me personally well known, who stated he is the Chancellor
of the University of Arkansas, Fayetteville, and is duly authorized in that capacity to execute the
foregoing instrument for and in the name and behalf of said entity, and further stated and
acknowledged that he had so signed, executed, and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal on this I I°i
day of August, 2014.
Notar Public
My Commission Expires:
MARIM OVI
MY COMMISSION N 12398258
EXPIRES: May 15,2924
�I�(
a a �1 4 ilk<MST
Washington County
Exhibit C
ACKNOWLEDGMENT
STATE OF ARKANSAS
)ss:
COUNTY OF WASHINGTON
On this the day of t �,i Gam, 2014, before me, the undersigned, a Notary Public, duly
commissioned, q alified and acu' gJwithin and for said Con, c� Slat appeared in person the
within -named �h�j () IV � and { 1 me personally well
known, who stated they were the Mayor and City Clark of the City of Fayetteville, Arkansas, a
municipality, and were duly authorized in their respective capacities to execute the foregoing
instrument for and in the name and behalf of said municipality, and further stated and acknowledged
that they had so signed, executed, and delivered said foregoing instrument for the consideration,
uses and purposes therein mentioned and set forth.
STIMONY WHEREOF,! have hereunto set my hand and official seal on this
day of 2014. r
U 4A ¶b)Jili.......
diary Pubiic
My Commission Expires: /oa
ai t1074gr
%te'bettc :f=
Exhibit C
ACKNOWLEDGMENT
STATE OF ARKANSAS
)ss:
COUNTY OF WASHINGTON
On this the 1Q day of UbE 2014, before me, the undersigned, a Notary Public,
duly commissioned, lified ctin within and for said County and State, appeared in person
the within -named and to me personally well
known, who stated they we the Chairman and Secretary of the Walton Arts Center Council, Inc., a
non-profit corporation, and were duly authorized in their respective capacities to execute the
foregoing instrument for and in the name and behalf of said non-profit corporation, and further
stated and acknowledged that they had so signed, executed, and delivered said foregoing instrument
for the consideration, uses and purposes therein mentioned and set forth.
IN TESTI NY WHEREOF, I have hereunto set my hand and official seal on this
day of ftI, 2014.
to Pubh
My Commission Expires:
/��� KAREN S PERCIVAL
WASHINGTON COUNTY
NOTARY PUBIS SAS I
ommission Expires Sept. �2t
My Commission No.123g4127
RECEIVED
NORTHWEST ARKANSAS JUN 03 2015
Democrat C Azette e�ITYCLERKS0FFICEE
P.O. BOX 1607, FAYETTEVILLE, AR, 72702 • 479-442-1700 • FAX: 479-695-1118- WWW.NWADG.COM
AFFIDAVIT OF PUBLICATION
I, Cathy Wiles, do solemnly swear that I am the Legal Clerk of the
Northwest Arkansas Democrat Gazette, printed and published in
Washington and Benton County, Arkansas, and of bona fide circulation,
that from my own personal knowledge and reference to the files
of said publication, the advertisement of:
CITY OF FAYETTEVILLE
Ordinance 5768
Was inserted in the Northwest Arkansas Democrat
Gazette on:
May 21, 2015
Publication Charges: 58.37
Cr(%ut Vt/4
Cathy Wiles
Subscribed and sworn to before me
This 3 day ofj , 2015.
t-�-
otary Public
My Commission Expires:
- NOTARY'%
**NOTE** PUBLIC
Please do not pay from Affidavit. Invoic a ?"s4W9 :
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