Loading...
HomeMy WebLinkAbout146-83 RESOLUTION4.4 4 RESOLUTION NO. 146 - 83 i.. A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A TWENTY-SEVEN (27) YEAR LEASE AGREEMENT WITH THE NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY FOR 7.91 ACRES AT $5,000 PER YEAR, THE SITE TO BE USED FOR THE CONSTRUCTION AND OPERATION OF A SOLID WASTE DISPOSAL AND RESOURCE RECOVERY AUTHORITY. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the Board of Directors hereby authorizes the Mayor and City Clerk to execute a twenty-seven (27) yeart lease agreement with the Northwest Arkansas Resource Recovery Authority for 7.91 acres at $5,000 per year, the site to be used for the construction and operation of a solid waste disposal and resource recovery authority. A copy of the lease agreement authorized hereby is attached hereto, marked Exhibit A and made a part hereof. Section 2. That Resolution Number 127-83 is hereby repealed. PASSED AND APPROVED this 6th day of December, 1983. APPROVED: f)la461.4,02doe LEASE AGREEMENT This Lease Agreement executed on this _ day of , 19 , by and between the City of Fayetteville, Arkansas, a municipal corporation organized and existing under the laws of the State of Arkansas, hereinafter referred to as Lessor, and the Northwest Arkansas Resource Recovery Authority, a public body created and existing pursuant to the provisions of. Act 699 of 1979, the Arkansas Joint County and Municipal Solid Waste Disposal Act, hereinafter referred to as Lessee; In consideration of the mutual covenants contained herein, Lessor and Lessee hereby agree as follows: Section 1. Demise, description, and use of premises. Lessor leases to Lessee, and Lessee leases from Lessor, those premises situated in the City of Fayetteville, County of Washington, State of Arkansas, described in Exhibit "A" attached hereto and made a part hereof. As used herein, the term "premises" refers to the real property above described and to any improvements located thereon from time to time during the term hereof. The premises are leased by Lessor to Lessee for the sole purpose of constructing and operating a solid waste disposal and resource recovery facility, including steam generating and transmission facilities and necessary appurtenances. to IMI A Section 2. Term. The initial term of this lease shall be for twenty- seven (27) years commencing on , 19 and ending on , 20 , at 12:00 p.m. As used herein, the expression "term hereof" refers to the initial term and to any renewal thereof as hereinafter provided. Section 3. Rent. The total rent payable by Lessee to Lessor under this lease shall be $5,000.00 per year. Lessee shall pay said rent to Lessor in amounts of $416.56 each month beginning on 1, 19_, with succeeding payments due on the first day of each month thereafter during the term of this lease. Section 4. Warranties of Title and Quiet Possession. Lessor covenants that Lessor is seized of the demised premises in fee simple and has full right to make this lease and that Lessee shall have quiet and peaceful possession of the demised premises during the term hereof. Section 5. Compliance with Laws. During the term of this lease, Lessee shall comply with all federal, state, and local laws and regulations affecting the demised premises and the construction and operation of a solid waste disposal and resource recovery facility. Lessee shall indemnify, defend, and hold Lessor harmless from and against any and all penalties, fines, or charges, howsoever designated, that may be levied by any federal, state, or local government agency having jurisdiction over said facility resulting from Lessee's failure to comply with all applicable regulatory requirements, subject (i) Lessee may appeal, • to the following conditions: at Lessee's expense, any such penalty, fine or charge to or to the courts. Lessee shall control over any (ii) Lessor fines or charges the appropriate agency have sole and exclusive such appeal; and shall refud to Lessee any penalties, for which Lessee has indemnified Lessor and that may subsequently be reduced or rescinded. Section 6. Abandonment of Premises. Lessee shall not vacate or abandon the premises at any t ime during the term hereof. Section 7. Lessor's Right of Entry. Lessee shall permit Lessor and the agents and employees o f Lessor to enter into and upon the demised premises at all reasonable times for the purpose of inspecting the same. Section 8. Encumbrance of Lessee's Leasehold Interest. Lessee shall not encumber by mortgage or deed of trust, or other proper instrument, its leasehold interest and e state in the demises premises, together with all buildings and improvements placed by Lessee thereon, as security for any indebtedness of Lessee without the prior written consent o f Lessor. Section 9. Subletting and Assignment. Lessee shall not subletthe premises in whole or in part without Lessor's prior written consent, and the making of any such sublease shall not release Lessee from or other- wise affect in any manner, any of Lessee's obligations here- under. Lessee shall not assign or transfer this lease, or any interest herein, without the prior written consent of Lessor, and a consent to an assignment shall not be deemed to be a consent to any subsequent assignment. Lessor hereby consents to Lessee's subleasing the premises, or assigning this lease, to the party with which Lessee contracts for the construction and operation of a solid waste disposal and resource recovery facility on the premises. Section 10. Notices. All notices required to be given or authorized to be given by any party pursuant to this agreement shall be in writing and shall be served personally or sent by certified mail, return receipt requested, to: Northwest Arkansas Resource Recovery Authority c/o Chairperson P.O. Box 74S Springdale, AR 72764 City of Fayetteville, Arkansas c/o City Manager P. 0. Drawer F Fayetteville, Arkansas 72702 Section 11. Taxes and Assessments. As additional rental hereunder, Lessee shall pay and discharge as they may become due, promptly and before delinquency, all taxes and assessments, whether general or special, which may become a lien or charge on or against the land hereby demised, or any part thereof, or any building, or other improvement now or hereafter located thereon; provided, if Lessee shall in good faith desire to contest the validity or amount of any such tax or assessment, Lessee shall be permitted to do so, and to defer payment of such tax or assessment, the validity or amount of which Lessee is so contesting, until final determination of the contest. Lessee shall give Lessor written notice of such contest prior to,the commencement thereof, which shall be at least ninety (90) days prior to delinquency. On demand by Lessor, Lessee shall protect Lessor by a good and sufficient surety bond approved by Lessor against any such tax or assessment, and from any cost liability, or damage arising out of any such contest. Section 12. Condemnation. If, during the term of this agreement, all or substantially all of the solid waste disposal and resource recovery facility to be constructed on the premises shall be taken by eminent domain, Lessee shall have the right to terminate this agree- ment. If substantially less than all of said facility shall be taken by eminent domain and if the awardon such taking is in an amount which will fully recompense the operator of the facility for the cost of reconstruction of the facility and if the facility can thereafterbe operated without substantially increasing the operating cost thereof, Lessee shall not have the right to terminate this lease. If the award received by the operator of the facility is less than the estimated cost of reconstructing the facility, or if the operating cost would thereafter be substantially higher, Lessee shall have the right to terminate this agreement within thirty days of the taking by eminent domain. Section 13. Casualty. If, during the term of this agreement, the solid waste disposal and resource recovery facility to be constructed on the premises is damaged by fire or other casualty and if the insurance proceeds received by the operator of the facility are in an amount which will fully recompense the operator for the cost of reconstructing the facility, and if the facility can thereafter be operated without substantially increasing the operating cost thereof, Lessee shall not have the right to terminate this lease. If the insurance proceeds received by the operator of the facility are less than 75% of the estimated cost of reconstructing the facility, on account of any changes in environmental laws from the date hereof or any changes in building codes from the date hereof, or if the operating costs would thereafter be substantially higher on account of any such changes, Lessee shall have the right to terminate this agreement within thirty (30) days of the casualty. Section 14. Indemnification. Lessee shall indemnify Lessor from and against all liabilities, losses, damages (excluding special or con- sequential damages), costs, expensesand disbursements, including reasonable legal fees and expenses, imposed on, asserted against or incurred by Lessor as a result of the act, failure to act, or omissions of Lessee (or any sublessee or assignee) in any way relating to or arising out of the operation of the solid waste disposal and resource recovery facility to be located on the premises; provided, however, Lessee shall not be liable to Lessor for any loss resulting from the act or failure to act or neglect of Lessor or Lessor's agents or employees. Section 15. Option to Renew. Lessor grants to Lessee the right and option to renew this lease for a period of five (5) years beginning on 20 , and expiring on 2 , with the rental to be agreed upon by the parties, but otherwise subject to all of the terms and conditions herein contained. This option must be exercised by the giving to Lessor, on or before , 2 , a written notice of the exercise thereof by Lessee, but Lessee shall in no event be entitled to renew the term hereof, even though such notice be timely given, unless Lessee shall have timely performed all of its obligations hereunder, and shall not be in default in the performance of any term hereof, on the date of the expiration of the initial term hereof. Section 16. Insurance. During the term of this lease, Lessee shall cause the following insurance to be maintained in accordance with the laws of the State of Arkansas and with insurers acceptable to Lessor: (i) During construction ofthe solid waste disposal and resource recovery facility to be constructed on the premises, Lessee shall cause to be maintained builder's risk insurance on an "all risk" basis with a replacement cost valuation having limits of not less than $8,000,000; and (ii) From the date on which the operator of the aforesaid facility commences commercial operation and notifies Lessee in writing that it is prepared to receive acceptable waste at the facility, Lessee shall cause to be maintained broad form fire and extended coverage insurance (including coverage for boiler and machinery) with a replacement cost valuation of not less than $3,000,000. Section 17. Utilities. Lessee shall arrange for, and shall fully and promptly pay for, all water, gas, heat, light, power, telephone service and other public utilities of every kind furnished to the premises throughout the term hereof. • Section 18. Liens. Lessee shall keep all of the premises, and every part thereof and all buildings and other improvements of any kind located thereon free and clear of any and all liens. Lessee shall at all times promptly and fully pay and dis- charge any and all claims on which any lien may or could be based and shall indemnify Lessor against all such liens; provided, Lessee may contest any lien but shall notify Lessor in writing of its intention to do so within thirty (30) days after the filing of such lien. On demand by Lessor, Lessee protect Lessor by a good and sufficient surety bond against any such lien or any cost, liability, or damage arising out of such contest. Section 19. Notice of Default Lessee shall not be deemed to be in default hereunder unless Lessorshall first give to Lesseefifteen (15) days written notice of such default, and Lessee fails to cure such default within such fifteen (15) day period, or, if the default is of such a nature that it cannot be cured within fifteen (15) days, Lessee fails to commence to cure such default within such period of fifteen (15) days or fails thereafter to proceed to cure any such default with all possible diligence. Section 20. Default. In the event of any breach of this lease by Lessee, Lessor, in addition to the other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Lessee. Should Lessor elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant •to any notice provided for by law, Lessor may either terminate this lease or it may from time to time, without terminating this lease, re -let the demised premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this lease) and at such rental or rentals and on such other terms and conditions as Lessor in the sole discretion of Lessor may deem advisable with the right to make alterations and repairs to the demised premises. On each such re -letting (a) Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other than rent due hereunder, the expenses of such re -letting and of such alterations and repairs, incurred by Lessor, and the amount, if any, by which the rent reserved in this lease for the period of such re -letting (up to but not beyond the term of this lease) exceeds the amount agreed to be paid as rent for the demised premises for such period on such re-letting; or (b) at the option of Lessor, rents received by such Lessor from such re-letting shall be applied, first, to the payment of any indebtedness, other than rent due hereunder from'Lessee to Lessor; second, to the payment of any expenses of such re-letting and of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by Lessor and applied in payment of future rent as the same may become due and payable hereunder. If Lessee has been credited with any rent to be received by such re-letting under option (a) hereof, and such rent shall notbe promptly paid to Lessor by the new tenant, or if such rentals received from such re- lettingunder option (b) hereof during any month is less than that to be paid during that month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of the demised premises by Lessor shall be construed as an election on the part of Lessor to terminate this lease unless a written notice of such intention is given to Lessee or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any such re-letting without termination, Lessor may at any time thereafter elect to terminate this lease for such previous breach. Should Lessor at any time terminate this lease for any breach, in addition to any other remedy it may have, • MM 4 Lessor may recover from Lessee all damages incurred by reason of such breach, including the cost of recovering'the premises, and including the worth at the time of such termination of the excess,. if any, of the amount of rent and charges equivalent to rent reserved in this lease for the remainder of the stated term over the then reasonable rental value of the premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Lessee to Lessor. Section 21. Lessor's Right to Perform. In the event that Lessee by failing or neglecting to do or perform any act or thing herein provided by it to be done or performed, shall be in default hereunder and such failure shall continue for a period of fifteen (15) days after written notice from Lessor specifying the nature of the act or thing to be done or performed, then Lessor may, but shall not be required to, do or perform or cause to be done or performed such act or thing (entering on the demised premises for such purposes, if Lessor shall so elect), and Lessor shall not be or be held liable or in any way responsible for any loss, inconvenience, annoyance, or damage resulting to Lessee on account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof, including compensation to the agents and employees of Lessor. Any act or thing done byLessor pursuant to the provisions of this section 4 • shall not be or be construed as a waiver of any such default by Lessee, or as a waiver of any covenant, term, or condition herein contained or the performance thereof, or of any other right or remedy of Lessor, hereunder or otherwise. All amounts payable by Lessee to Lessor under any. of the provisions of this lease, if not paid when the same become due as in this lease provided, shall bear interest from the date they become due until paid at the maximum rate allowed by law. Section 22. Surrender of Lease. The voluntary or other surrender of this lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Lessor,terminate all or any existing subleases or subtenancies, or may, at the option of Lessor, operate as an assignment to it of any or all such subleases or subtenancies. Section 23. Disposition of Improvements on Termination of Lease. On termination of this lease for any cause, Lessor shall become the owner of the solid waste disposal and resource recovery facility to be located on the premises and shall be the owner of any other building or improvements constructed on the premises. Section 24. Waiver. The waiver by Lessor of, or the failure of Lessor to take action with respect to any breach of any term, covenant, • or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term, covenant, or condition therein contained. The subsequent acceptance of rent hereunder by Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of any term, covenants, or condition of this lease, other than the failure of Lessee to pay the particular rental so accepted, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such rent. IN WITNESS WHEREOF, this lease agreement has been executed on the date first above written. CITY OF FAYETTEVILLE, ARKANSAS, LESSOR .2 `ATTEST: d�iity er. a I: li.- ATTEST: Secretary By: Mayor NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY LESSEE By: Chairperson TRACT 1 A tract of land situated in the NE1 of the NE; of Section 20, T -16-N, R -30-W of the 5th Principal Meridian, being more particularly described as follows', to wit: Beginning at a point which is 1318.36' West and 266.5' South 0° 07' West of the Northeast corner of the above described quarter quarter, thence North 0° 07' East 266.5', thence East 823.36', thence South 0° 07' West 266.5', thence West 823.36' to the point of beginning and containing 5.04 acres, more or less. Less and except 175' of equal and uniform width off the East side of the above described tract, containing 1.07 acres, more or less. TRACT 2 A tract of land situated in the NE< of the NE; of Section 20, T -16-N, R -30-W of the 5th Principal Meridian, being more particularly described as follows, to wit: Beginning at a point which is 1318.36' West and 266.5' South 0° 07' West of the Northeast corner of the above described quarter quarter, thence East over the centerline of an existing well 823.36' thence South 0° 07' West 264.52', thence West 823.36', thence North 0° 07' East 264.52' to the point of beginning and containing 5.0 acres, more or less. Less and except 175' of equal and uniform width off the East side of the above described tract, containing 1.06 acres, more or less.