HomeMy WebLinkAbout93-79 RESOLUTION•
•
RESOLUTION NO. q3 -17q
•
A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A LEASE WITH THE BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS FOR A CONTINUING EDUCATION CENTER.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
That the Mayor and City Clerk are hereby authorized and
directed to execute a lease with the Board of Trustees of
rthe University of Arkansas for a Continuing Education Center.
A copy of the lease authorized for execution hereby
attached hereto, marked Exhibit "A" and made a part hereof.
PASSED AND APPROVED this day of 6QA..
1979.
€;ATTEST: ,_,_
�-r-1.
LE
APPROVED:
MAYOR
3_LZ..croAdfca
•
140'13OFILM S 1989
ATE..—
REEL��"
MICRQRLMID
DATE AN 3 1960
REEL
•
C
FILED i'MR [Won F7r.
1277 it.1.1 IIIC
�rI�LS1G. I LitSli� .'.F.ii.
CiiiCUli CLERK
LEASE AND AGREEMENT
Between
CITY OF FAYETTEVILLE, ARKANSAS
and
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS
Dated as of October 1, 1979
This instrument prepared by
CLARK
The Fitet Nation! Bulitrt, Twentieth fluor
Little Roth, Ar ansns 72201
2`,
=1002 737
•
•
Section 101
Section 102
Section 201
Section 202
Section 203
Section 301
Section 302
Section 303
Section 304
Section 401
Section 501
Section 502
Section 503
Section 601
Section 602
•
LEASE AND
TABLE OF
Definitions
Use of Words
•
AGREEMENT
CONTENTS
ARTICLE I
DEFINITIONS
•
ARTICLE II
CONSTRUCTING AND EQUIPPING OF PROJECT
Constructing and Equipping of Project
Itemization of Project Costs
Lessee to Have Peaceful and Quiet Enjoyment
ARTICLE III
DEMISING CLAUSES, DURATION OF LEASE TERM
AND RENTAL PROVISIONS
Demise of Leased Premises
Term of Lease and Agreement
Basic Rent; Additional Rent
Method Of Payment of Basic Rent
and Additional Rent
ARTICLE IV
INSURANCE
Insurance Required
ARTICLE V
REPAIRS AND MAINTENANCE OF
LEASED PREMISES AND ALTERATIONS
Lessee Obligated to Maintain Improvements
Lessee Has Right to Make Additions,
Alterations and Changes
Structural Improvements and Alterations
Become Property of Lessor; Machinery,
Equipment and Other Property Installed
at Lessee's Expense Remain Its Property
With Right of Removal
ARTICLE VI
USE OF LEASED PREMISES -
COMPLIANCE WITH ORDERS, ETC.
Permitted Use of Leased Premises and
Compliance With Laws, Etc.
Lessor's Covenant Not to Impose
Burdensome Laws, Etc.
30
1!002 738
3
5
6
6
7
8
8
e
9
10
12
12
12
14
15
xr
•
Section 701
•
ARTICLE VII
WORK PERFOPIIED BY LESSEE
•
Obligations of Parties Concerning Work
on Leased Premises and Obtaining
Necessary Permits
ARTICLE VIII
MECHANICS' LIENS
16
Section 801 - Lessee to Keep Leased Premises Free
of Construction Liens 17
•
Section 901
ARTICLE IX
LESSOR MAY PERFORM LESSEE'S OBLIGATIONS
Lessor May Perform Lessee's Obligations;
Lessee to Reimburse Lessor for Costs and
Expenses Incurred in Doing So
ARTICLE X
PUBLIC UTILITIES AND CHARGES
18
Section 1001 Lessee to Pay Public Utility Charges - 19
ARTICLE XI
INSPECTION OF LEASED PREMISES
BY LESSOR AND TRUSTEE
Section 1101 Lessor and Trustee to Have Right of
Inspection and Right to Perform Work
Subject to Certain Restrictions 20
ARTICLE XII
DAMAGE AND DESTRUCTION
Section 1201 Lessee to Restore in Event of Damage
or Destruction; Application of Insurance
Moneys 21
ARTICLE XIII
CONDEMNATION
Section 1301 Right of Parties in Event of Condemna-
tion; Bonds Protected in Any Event- 23
ARTICLE XIV
ASSIGNMENT
Section 1401 Assignment and Subletting Permitted But
Lessee Not Relieved of Obligations;
Assignment to Trustee Permitted 25
ARTICLE XV
PRIORITY OF LEASE
Section 1501 Lease and Agreement Superior and Prior 26
31
=1002 739
•
Section
•
ARTICLE XVI
REMEDIES ARE CUMULATIVE
NO IMPLIED WAIVER
1601 Specific Relief; Remedies are Cumulative;
No Implied Waiver
Section 1701
Section 1702
Section 1703
Section 1704
ARTICLE XVII
DEFAULT PROVISIONS
Events of Default
Remedies
Remedies Not Exclusive
Rental, Damages and Reletting Handled
as Provided in Lease and Agreement and
Indenture
Section 1801 Notices
Section 1901 Recording
Section
Section
Section
Section
2001
2002
2003
2004
Section 2005
Section 2006
Section 2007
Section 2008
Section 2009
Secticn 2010
Section 2011
Section 2012
Section 2013
Section 2014
ARTICLE XVIII
NOTICES
ARTICLE XIX
RECORDING
ARTICLE XX
GENERAL
Arkansas Law Applicable
Severability
Captions for Reference Only
Trustee's Rights Cease When Bonds
and Trustee's Fees Paid or Provided For
Enforcement Rights of Trustee
Provisions Binding on Successors
and Assigns
Trustee's Consent Required for
Modification
Signs on Leased Premises
Key System
Right to Sell Goods and Services
Lease Agreement Constitutes Entire Agreement
Lease Agreement Not To Waive Sovereign
Immunity
Appropriations by General Assembly
Option to Purchase Leased Premises
32
cm1e02 740
27
28
28
29
29
30
31
32
32
32
33
33
33
34
34
34
34
34
34
35
36
LEASE AND AGREEMENT
This LEASE AND AGREEMENT made as of October 1, 1979, by
and between the CITY OF FAYETTEVILLE, ARKANSAS ("Lessor" or "City").
and THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS ("Lessee");
WITNESSETU:
WHEREAS, Lessor is a duly organized and existing
municipality, a city of the firstclass, under the laws of
the State of Arkansas with full and lawful power and authority
to enter into this Lease and Agreement, acting by and through
its Board of Directors, in the public interest and for a public
purpose in securing and developing tourism, providing employment
and adding to the welfare and prosperity of the Lessor and its in-
habitants, all pursuant to the provisions of Act No. 380 of the .
Acts of Arkansas of 1971, as amended (the "Act"); and .
WHEREAS, Lessee is authorized under the laws of the
State of Arkansas to enter into this Lease and Agreement and to
perform all covenants and obligations on its part to be performed •
under and pursuant to this Lease and Agreement; and
.WHEREAS, Lessee is not prohibited under the terms
of any outstanding trust indentures, deeds of trust, mortgagees,
loan agreements or other instruments or evidences of indebtedness
of whatever nature from entering into this Lease and Agreement
and discharging and performing all covenants and obligations on
its 'part to be performed under and pursuant to this Lease and
Agreement (or if so, a proper waiver has been obtained) and a£fir--
atively so represents to Lessor; and
WHEREAS, the Lessor is undertaking the acquiring and
constructing of a continuing education and convention center
consisting of lands, buildings, improvements and facilities (the
"Project"); and
1GQ2 ?41
__ 33
•
'..'ICPLAS, Lessor one
sec
that Lessor has und_rcaken to Purais'.a oermancit _mane. m: o`
Proiect costs and expenses of aut.`.orioin7 and issuing the 3oncs
by the issuance of Tourism Revenue Bonds ,...der the Act (the
"Fonds");
NOW, THEREFORE, for valuable consideration, receipt
of which is hereby acknowledced by Lessor and Lessee, and in
consida_acion of the mutual benefits and covenants hereein. con-
tained, Lessor and Lessee AGREE as follows:
mr1GG2 742
2
ARTICLE I
DEFINITIONS
Section 101. In addition to the words and terms
elsewhere defined in this
Lease Agreement, the following words
and terms as used in this Lease Agreement shall have the following
meanings unless the context clearly indicates a different meaning
or intent:
"Act" - Act No. 380 of the Acts of Arkansas of 1971,
as amended.
"Bond Fund" - The fund created by Section 501 of the
Indenture into which moneys
are to be deposited and out of which
disbursements are to be made for paying the principal of and interest
on the Bonds in the manner and for the purposes specified in Article
V of the Indenture.
"Bonds" - The
Revenue Bonds, dated as
City of Fayetteville, Arkansas Tourism
of October 1, 1979, issued under and
secured by the Indenture, in the principal amount of $4,475,000.
"Construction Fund" - The fund created by Section 601
of the Indenture into which the portion of the proceeds of the
sale of the Bonds specified in Section 601 is to be deposited and
out of which disbursements are to be made for Project costs in
the manner and for the purposes specified in Article VI of the
Indenture.
"Indenture" or "Trust Indenture" - The Trust Indenture
between the City and the Trustee, of even date herewith, which is
recorded in the office of the Circuit Clerk and Ex Officio Recorder
of Washington County, Arkansas and which sets forth the details
pertaining to the Bonds, the provisions pertaining to the issuance
of additional parity bonds, the nature and extent of the security
and the rights, duties and obligations of the City, the Trustee
and the holders and registered owners of the Bonds and the terms
under which the Bonds are secured.
35
a1CO2 743
"Lease Agreement" - The within Lease and ,Agreement.
"lease term" or "term" - The term of the Lease
Agreement set forth in Section 302.
"Leased Premises" - The lands, buildings, improvements,
and facilities covered by the Lease Agreement and defined in
Section 301 hereof.
"Lessee" - The Board of Trustees of the University of
Arkansas, governing body of the University of Arkansas.
"Lessor" - The City of Fayetteville, Arkansas, a city
of the first class and located in Washington County, Arkansas.
"permitted encumbrances" - (1) This Lease Agreement
and the Trust Indenture, (ii) utility, access and other easements
and rights of way, restrictions, reversions and exceptions that
the Lessee certifies will not interfere with or impair the opera
tions being conducted in the Project,.and (iii) such minor defects,
irregularities, encumbrances, easements, rights of way, and clouds
on title as normally exist with respect to properties similar in
character to the Project, and as do not materially impair the
property affected thereby for the purpose for which it was acquired
or held by the City.
"Project" - The lands, buildings, improvements, facilities
financed out of proceeds of the Bonds and leased under this Lease
Agreement. The lands included in the Project are described as
Exhibit A attached hereto. Attached hereto as Exhibit B are plans
and specifications for the buildings, improvements and facilities
to be included in the Project.
"rent" or "rents" - The Basic Rent (provided for in
Section 303(a)(1) hereof) and the Additional Rent (provided for
in Section 303(b) hereof), unless the context clearly indicates
both are not intended.
sg1CC2 744
36
•
"Trustee" - The Trustee for the time being, whether
original or successor. The identity of the Trustee shall be
furnished to the Lessee by Lessor.
Section 102. Words of the masculine gender shall be
deemed and construed to include the correlative words of the
feminine and neuter genders. Unless the context shall otherwise
indicate, words shall include the plural, as well as the singular,
number.
1CC2 745
37 - 5
•
•
ARTICLE II
CONSTRUCTING AND EQUIPPING OF PROJECT
Section 20L. The Lessor has acquired the lands to be
included in the Project and has undertaken and will complete
the acquiring, constructing and equipping of the Project in
accordance with the plans and specifications attached hereto
as Exhibit B, and has executed, or will execute necessary con-
tracts and purchase orders therefor. All expenditures made by
it in connection with the acquiring, constructing and equipping
of the Project will be paid from the Construction Fund (and
Lessor shall be reimbursed therefrom for all such expenditures
made by it from other funds to the extent provided in the Indenture).
Title to the lands, improvements, machinery, equipment and facilities
paid for out of the Construction Fund (either by direct payment or
by virtue of reimbursement to the Lessor) shall be placed in the
Lessor.
Lessor, with the cocperation of Lessee when necessary,
shall obtain all necessary approvals from any and all governmental
agencies requisite to the constructing and equipping of the Project,
and the Project shall be constructed and equipped in compliance
with all State and local laws, ordinances and regulations applicable
thereto.
Section 202. Costs incurred by Lessor under Section 201
hereof and in other sections of this Article II shall be referred
to as "Project costs". Project costs, as that term is used in
this Lease Agreement, may include all costs and expenses of every
nature incurred by Lessor in acquiring, constructing and equipping
the Project, all costs and expenses incidental thereto, and all
costs and expenses incurred in connection with the issuance of the
Bonds, including without limitation, the following:
(1) All amounts paid for lands and paid under all
constructing, engineering, architectural or other contracts
and all purchase orders;
38
m1CC2 746
6
•
•
YE-
•
(2) A11 amounts paid for extras, changes or addi-
tions;
(3) All payments incurred in acquiring and installing
machinery, equipment and other personal property;
(4) All amounts necessary to reimburse Lessor for
any payments made by Lessor out of funds other than Bond proceeds
for items of Project Costs;
(5) All costs and expenses, including attorneys fees,
incurred by Lessor in connection with the authorization and issuance
of the Bonds;
(6) Any cost or expense, not otherwise provided for
herein, incurred by Lessor pertaining to the acquiring, constructing
and equipping of the Project.
Section 203. Lessor covenants that the Lessee, upon
paying the rentals and performing all.ccvenants, obligations and
agreements on the part of Lessee to be erformed under this Lease
Agreement, shall and may peaceably and cuietly have, hold and enjoy
the Leased Premises for the tern of this Lease Agreement, subject
to the rights of the general public as _rovided in Section 601.
39
'$CG2 747
ARTICLE 117
DE (7 CL`U :s DC':.'r:c:I 07 r„:SE
Section 301. Lessor, for and in consideration of
the rents, covenants and acreemen-s herein rescrvod, mentioned
and contained, on the part of Lessee to be raid, kept and per-
formed,
erformed, agrees to and does hereby lease to Lessee, and Lessee
agrees to, and does hereby lease, take and hire from Lessor,
subject to the terms, conditions and provisions of this Lease
Agreement expressed, the following:
(a) The lands situated in Washington County, Arkansas,
described in Exhibit A attached hereto (the "lands");
(b) The buildings, structures and other improvements
now or at any time hereafter erected and installed on the lands;
and
(c) All accretions, easements, rights of way and
appurtenances belonging or in any wise appertaining to the
lands and/or the improvements described in (a) and (b) above.
The properties described in (a), (b), and (c) above
are herein collectively referred to as the "Leased Premises."
TO HAVE AND TO HOLD the Leased Premises untc the
Lessee for the term of this Lease Agreement as hereafter set
forth.
Section 302. The term of this Lease Agreement shall
commence upon substantial completion of the Project in accordance
with the plans and specifications attached as Exhibit B hereto
and shall run for a period of twenty-three years.
Section 303. (a) Basic Rent.
(1) Lessee covenants to pay to Lessor, in the manner
hereinafter provided in Section 304, Basic Rent of $122,000 per
year. Basic Rent shall be payable in equal semiannual installments
of 561,000 each, the first such installment to be paid six months
after commencement of the term and subsecucnt installments to be
paid each si:: months the__act_r.
mi1OC2 748
40 - 8
(b) i:ddlt_cnal acne. Durinc tho term her_e.,
shall pay.as Additional Rent all expenses. iiao._itis ,
and Other payment_ of 'whatever nature which Lessee has ag_eec
to pay or assume under the provisions of this Lease hcreement.
_f at any tine any amounts paid by Lesfee a- *dd4 ional Rent here-
under are or become in excess of the amounts required for the
purpose far which they were paid, such excess amounts shall be
refunded to the Lessee.
Section 304. Payments of Basic Rent shall be made
to Lessor by Lessee renit`=ng the same directly to the Trustee,
for the account of Lessor, and shall be deposited by the Trustee
in the Bond Fund provided for in the Indenture, to be used by
the Trustee as provided in the Indenture. Additional Rent
specified in Section 303(b) shall be paid by Lessee either making
•
direct payment in the case of impositions and other costs, expenses,'
liabilities and payments assumed and agreed to be paid by Lessee
under this Lease Agreement, or reimbursing Lessor if, pursuant
to the provisions of this Lease Agreement, Lessor shall make
payment thereof.
millet 749
41 -
sole cost and expense,
insured:
?RTICL: 77
A. Each party ;hall, at that ,-r_. s
keen its interest in th^_ Lcas^_c _'remises
(i) Against the perils of fire and the hazards
ordinarily included under bread form extended
ccverace endorsements in amounts necessary to
prevent the application of the co-insurance
provisions of the applicable policies but net
less than 80% of the full insurable value thereof
within the terms of applicable policies.
(ii) If there are boiler or pressure vessels,
from boiler or pressure vessel explosion in an
amount customarily carried in the case of similar
industrial operations.
The term "full -insurable value" means such valde as
shall be determined from time to time at the request cf Lessor,
Lessee or Trustee (but not more frequently than once in every
forty-eight (48) months) by one of the insurers selected by
Lessee.
B. At all times during the term, Lessee shall, at
no cost or expense to Lessor, maintain or cause to be maintained:
(i) General Public Liability insurance against
claims for bodily injury or death occurring upon,
in or about the Leased Premises, with such in-
surance to afford protection to the limits of not
less than $500,000 in respect of bodily injury or
death to any one person and to the limit of not
less than $1,000,000 in respect of any one acci-
dent; and
(ii) Property damage insurance against claims for
damage to property occurring upon, in or about the
Leased Premises with such insurance to afford pro-
tection to the limit of not less than $100,000
in respect of damages to the property of any one
owner.
C. The insurance required by this Article IV shall
be maintained in full force and effect at all times during the
term of this Lease Agreement, except:
(i) The insurance required by Section 401 A. (i)
need not be placed in force and effect until the
completion of the construction of the Project; and
42
•
®1002 750
In
(ii) The Insurance r=_cuir:d by Sec i';n 401 2.
need not b ?lace: _into force and cffocc until
Lessee cOT___es the Project, oithec ❑son eo.tt-
oloticn or __`_ore ettoletion in the =.enc Lessee
undertakes to per'_or= ,vor;, or store materials and
supplies in she Prcent prior to cams:Lotion as
permitted ;.:7 the provisions of Article 11 hereof.
D. Conies cr certi`_ cate_s of the insurance provided
for by this Article cr elsewhere in this Lease Agreement shat_
be delivered to the _a -ties ani the Trustee. And, in the case
of e::piring policies throughout the term, copies or certificates
of any new or renewal policies shall be delivered to the parties
and the Trustee.
E. A11 insurance re•_uired by this Section 401 shall
be effected with insurance cortanies qualified to do business
in the State of Arkansas and acceptable to the Trustee. Appropriate
provisions shall be inserted in each insurance policy making each
policy noncancellable withou
t least ten (10) days prior written
notice to Lessor, Lessee and t==_ Trustee.
wa1CG2 751
43 11
P_PAl S .SID ;1?.I=4:Cu (.. C1' 1,721/437.-.2
PFLLdi5:r ASD 1C"_7:\rIr`;I„
Section 501. Lessee shall throughout the term, at
no cost and expense to Lessor, maintain, or cause to bt main-
tained, and at the expiration of the term hereof, yiclii up cr
cause to be yielded up, in good and tenantable repair, order
and condition, reasonable wear and tear excepted, the improve-
ments now or at any time erected on the lands included in the
Leased Premises and sidewalks adjoining the Leased Premises;
and promptly at no cost and expense to Lessor make or cause to
be made all necessary repairs, interior and exterior, structural
and non-structural, foreseen as well as unforeseen to such im-
provements.
Section 502. Lessee shall have the right from time
to time to make additions, alterations and changes in or to
the improvements constituting part of the Leased Premises and
shall have the right to construct new improvements. It is under-
stood and agreed that in the event the Lessee makes any additions,
alterations and changes in or to the improvements constituting
part of the Leased Premises as authorized by this Section, the
Lessee shall be under no obligation at the expiration of the term
to restore the Leased Premises to their original condition prior
to such additions, alterations or changes.
•
Section 503. All structural improvements and altera-
tions made on the Leased Premises by or on behalf of Lessee shall
immediately upon completion thereof be and become the property
of the Lessor without payrent therefor by Lessor but subject to
this Lease Agreement. All machinery and equipment, trade fixtures,
movable partitions, furniture and furnishings and other oroperty
installed at the expense of Lessee shall remain the property of
4•:.
n1002 752
12
the Lessee with the richt of removal, whether or not affi
ancier attached to the real estate, and
Lessop shall, so
lcng as it is not it default hereunder, be entitled but snail
not
obligated to remove the same, or any Dart thereof, durir.c
tho term, or within a reasonable time thereafter, but Lessc-.
shall at its own cost and expense repair any and all damages
to the Leased Premises resulting from or caused by their removal_
therefrom.
n Za1602 753
13
•
_. ..0 n - .. f.
Section 601. Subject to the following nra•.ici:;s
of c..__ Section, Lessor and Les ee agree that
use the Leased Promises for continuing education and related
purposes. Lessee shall during the torn
ono,'; ,orn1_
all valid statutes, laws, ordinances, orders, judgment:, dec-=
regulations, directions and requirements of all federa'_, state,
local and other governments or governmental authorities, now or
hereafter applicable to the Leased Premises. Lessee shall,
ever, have the right to contest any of the foregoing, and if
compliance therewith may legally be held in abeyance during such
contest without incidence of any liens on the Leased Premises,
Lessee may postpone compliance until final determination' of such
contest, provided such contest shall be prosecuted with due
diligence; and even though a lien against the Leased Premises
nay be incurred by reason of such non-compliance, Lessee may
nevertheless delay compliance therewith during contests thereof,
provided Lessee, if required, furnishes Lessor reasonable satis-
factory security against any loss by reason of such lien and
effectively prevents foreclosure thereof. Lessee shall during
the term comply with the mandatory requirements, rules and
regulations of all insurers under the policies required to be
carried under the provisions of this Lease Agreement.
The Leased Premises and portions thereof shall be
made available by Lessee for use by the general public at such
times as the same not needed for continuing education and related
purposes so long as such uses do not conflict with the public
use policies of Lessee for off -campus facilities.
Fees charced
by Lessee for use by the general public shall not exceed the cost
to Lessee of custodian, janitorial and other special services
(e::c!us lye of utility services) in connection with suet Use.
n1UC2 754
46 1.1
i',_. Lessor ro::.,,',*arc
•
•
e::t permitted by law, it will not act^^,nt to 1::cos.i rcn
rho or occupancy of the LLased ^remises by the Les e any
hors, ordinances, rules or regulations mor' burdensome or
team those in effect upon the data of execution of tis L_asc t:y_
went.
mai C2 755