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HomeMy WebLinkAbout100-98 RESOLUTIONRESOLUTION NO 10 0- 9 8 A RESOLUTION APPROVING A LEASE WITH HOG CITY DINER FOR A ANNUAL RENTAL RATE OF $1,677 PAYABLE IN MONTHLY INSTALLMENTS OF $139.75, FOR A PERIOD OF TEN (10) YEARS, WITH A FIVE (5) YEAR OPTION, AND ALLOWING THE LESSEE FOUR ADDITIONAL FIVE (5) YEAR PERIODS RENEWING THE LEASE FOR OUTDOOR DINING ON THE TOWN SQUARE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 That the City Council hereby approves a lease with Hog City Diner for a annual rental rate of $1,677 payable in monthly installments of $139 75, for a period of ten (10) years, with a five (5) year option, and allowing the Lessee four additional five (5) year periods renewing the lease for outdoor dining on the Town Square. A copy of the lease with attachments are attached hereto marked Exhibit "A" and Exhibit "B" and made a part hereof. PASSED AND APPROVED this _Zit day of July , 1998. ATTEST: By: %% Heather Woodruff, City Clerk APPROVE By 441444 ed Hanna, Mayor • LEASE This Agreement, made and entered into this between the City of Fayetteville, whose address is 1 and Hog City Diner Company, whose address is 1 hereinafter called Lessee, EXHIBIT A a at day of J'u // , 1998, by and 13 West Mountain, hereinafter called Lessor, West Center, Fayetteville, Arkansas 72701, WITNESSETH: 1. LEASED PREMISES. For and in consideration of the rents, covenants and agreements herein entered into and agreed upon by the Lessee as obligations to the Lessor, the Lessor lets, leases and demises unto Lessee, subject to the terms and conditions contained herein, the following described property containing approximately 1,676.16 square feet more or less, situated in Washington County, Arkansas: See Exhibit A attached hereto and made a part hereof. To have and to hold said premises unto the said Lessee for and during the term herein stated, subject to the covenants, terms, conditions and liens herein contained. 2. TERM. This lease shall commence on the date of this agreement and shall extend for a term of ten (10) years. 3. OPTION TO EXTEND. If the Lessee shall have fully performed every agreement and covenant on Lessee's part to have been kept and performed under the term of this lease at the time of exercise and at the time of renewal, the Lessee is hereby granted the right and option to extend this lease, upon the same terms, for an additional period of five (5) years, with such option to be exercised in writing by the Lessee not later than one hundred eighty (180) days prior to the expiration of the basic or onginal term of this lease. Lessee may extend for up to four additional five (5) year extension periods utilizing the same procedures outlined above. 4. RENT. Lessee agrees to pay to Lessor the annual rental rate of $1,677.00 payable in monthly installments of $139.75 each, to be paid in advance beginning on the first day of the month following the issuance of a Certificate of Occupancy for the leased premises and on the first day of each and every month thereafter. The annual rental rate of $1,677.00 shall constitute the basic rental for the lease. During any five (5) year extension hereof, this lease shall be recalculated for such five (5) year term in accordance with the following procedure: The basic rental herein set forth of $1,677.00 shall be divided by the figure in the Consumer Price Index appearing in the column "Food Items" or in any similar breakdown therein for the month of August 1998, and then multiplying that amount by the corresponding index for the month next preceding the first month of the next five (5) year term of this lease. The Consumer Price Index referred to is the [Revised 1953 Consumer Pnce Index U.S. (1957-1959 equal to 100) New Series • Page 3 Lease --Hog City Diner beginning with January, 1964 (reflecting the change in prices of goods and services purchased by city wage earners and clerical -worker families to maintain their level of living)] published by the Bureau of Labor Statistics, United States Department of Labor. If the Bureau of Labor Statistics changes the form or the basis of calculating the Consumer Price Index, the parties agree to request the Bureau to make available, for the life of this agreement, a monthly Consumer Pnce Index in its present form and calculated on the same basis as its present form as the Index for 1998. The figure so obtained shall be used for calculating a comparative rental figure for the extended term of this lease, and the Lessee shall be liable to the Lessor for whichever is the larger of the rental so calculated upon comparison thereof, and if it appears that the adjusted rental rate based upon fluctuations m the Consumer Price Index results in a larger minimum rental than that applying to the original term of this lease, then such larger sum of rent shall be the rental to be paid by the Lessee during the remaining or extended term of this lease. 5. ADDITIONAL CONSIDERATION. As additional consideration for the leased premises Lessee agrees to construct a new potting shed for use in maintaining the town square gardens at the location indicated on Exhibit "A", attached hereto at a cost not to exceed $3,000 and in a design mutually agreed upon by the parties hereto. 6. USE Lessee agrees to use the lease premises for the purpose of operating an outdoor dining area and for no other purpose or purposes without the written consent of Lessor having been obtained in advance. 7. CONSTRUCTION OF IMPROVEMENTS. All improvements constructed by the Lessor on the leased premises shall be accomplished within the boundaries of the leased premises and Lessor shall make every effort to conduct such construction so as to have a minimal impact on the town square gardens. Construction shall proceed in substantially the same stages and manner as set forth in Section 01100 of the Project Manual attached hereto as Exhibit B. 8. INGRESS AND EGRESS. Except for emergency and handicapped access, all ingress and egress to and from the leased premises shall be through the Old Post Office building. Handicapped access is limited to the east area of the leased premises. 9. MUSIC. Lessee agrees not to provide or allow any live music on the premises and any amplified music will be limited to background music for the outdoor dining area. 10 SIGNS AND ADVERTISING. No sign, picture, advertisement, or notice shall be displayed on any part of the leased premises visible to the public without the previous consent, in writing, of the Lessor. 11. COST OF REPLANTING. Lessee agrees to reimburse Lessor for all reasonable costs, including material and labor, incurred by Lessor in any replanting made necessary by the construction of any and all improvements made by the Lessee to the leased property. • • Page 4 Lease --Hog City Diner • 12. NON -SUCCESSION. This lease agreement shall insure only to the benefit of and be bmdmg upon the parties hereto and not to their respective heirs, successors and assigns. 13. TAXES. Lessee shall pay any and all ad valorem taxes special improvement district taxes levied and assessed against said premises and the improvements located thereon during the term of this lease. 14. COMPLIANCE WITH LAWS. Lessee agrees not to violate any law, ordinance, rule or regulation of any governmental authority having jurisdiction of the leased premises. 15. INSURANCE OF LESSEE'S PROPERTY. Lessee shall be solely responsible for maintaining insurance on his property, including but not limited to movables, trade fixtures installed by Lessee, furniture, furnishings and inventory. 16. RIGHT OF INSPECTION. The Lessor shall have the right, in person or through Lessor's duly authonzed representative, at all reasonable times to inspect the leased premises. 17. ALTERATIONS. Lessee shall have the right and privilege to make, at Lessee's expense, ordinary repairs and alterations to the leased premises; however, no alterations shall be made without the prior written consent of Lessor. 18. FIXTURES. All trade fixtures installed by Lessee or acquired by Lessee independently of this lease shall remain Lessee's property and may be removed by Lessee at the expiration of this lease, provided, however, Lessee shall restore the leased premises and repair any damage thereto caused by such removal. 19. ACCEPTANCE OF PREMISES. It is expressly understood and agreed by the Lessee that it is leasing the demised premises in its current condition and that if the plumbing or electrical wiring proves to be inadequate for its purposes that it may, at its own expense, have such required additional plumbing and electrical wiring installed. 20. MAINTENANCE OF LEASED PREMISES The Lessee shall be liable for all license fees, occupation taxes and the like in connection with the operation of any business on the leased premises, and shall pay all charges incurred by Lessee in connection with utility services of whatever kind or nature including any sewer charges and pickup of Lessee's trash and garbage. The Lessee shall be responsible for maintaining the improvements upon the leased premises in a satisfactory condition and the premises shall, at all times, be maintained in a neat and orderly condition. Lessee's business operations will be carried on in accordance with the highest standards for such businesses, particularly in the areas of cleanliness and service. 21. INDEMNIFICATION OF LESSOR. The Lessee shall defend, indemnify and hold the Lessor harmless against any expense, claim, loss or liability as the result of any breach by the • • Page 5 Lease --Hog City Diner • • • Lessee, Lessee's agents, servant, employees, customers, visitors or licensees, of any covenant or condition of this lease, or as a result of the Lessee's use or occupancy of the demised premises, or the carelessness, negligence or improper conduct of the Lessee, Lessee's agents, servants, employees, customers, visitors or licensees. To facilitate the provisions hereof, the Lessee shall keep and maintain at all times during the term of this lease, or any extension thereof, in full force and effect with a company or companies acceptable to Lessor, insurance against third party liability by reason of the Lessee's occupancy of the demised premises with limits of liability thereunder of not less than $100,000 per person and $500,000 per accident with $500,000 coverage for property damage. 22. RETURN OF LEASED PROPERTY. At the end of the term of this lease, or upon any other earlier termination, the Lessee agrees promptly and peaceably to restore possession of the leased premises to the Lessor in as good condition as they were when delivered to Lessee, ordinary wear and tear excepted. To accommodate this covenant, the Lessee hereby waives any and all notice to which Lessee may be entitled under the laws of the State of Arkansas as a prerequisite to a suit against Lessee for the unlawful detention of the property. 23. NOTICES. Any notice called for or permitted under the terms hereof shall be given in writing and sent by certified mail to the Lessee at 1 West Center, Fayetteville, Arkansas 72701, and to the Lessor at 113 West Mountain, Fayetteville, Arkansas 72701. 24. WASTE Lessee agrees not to commit waste, nor permit waste to result or to be done to or upon the aforesaid property and premises; not to conduct any other business thereon or therein, nor store or permit to be stored thereon or therein any explosives, combustible substances or materials of any nature, which would increase the fire hazard or cause a premium to be charged for insurance higher than that charged for the present use of said property; and not to operate, nor permit to be operated, nor to exist thereon or therein, any public or private nuisance. 25. RIGHT TO CURE If the Lessee shall default in any of the covenants, agreements, conditions, or undertakings herein contained to be kept, observed and performed by the Lessee, the Lessor shall give notice of such default in writing to the Lessee and the Lessee shall have thirty (30) days from and after the giving of such notice to eliminate and/or cure the cause of such default. If said default is eliminated or cured within the aforementioned thirty (30) days, the Lessee shall not be considered in default or in breach of this lease. 26. SEVERABILITY. Each paragraph of this lease agreement is severable from all other paragraphs In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs will remain in full force and effect. 27. INTERPRETATION. This lease agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. • Page 6 Lease --Hog City Diner 28. ENTIRE AGREEMENT. This lease agreement contains the entire agreement of both parties hereto, and not other oral or written agreement shall be binding on the parties hereto. 29. NON -WAIVER PROVISION. The failure of the Lessor or Lessee to insist upon the strict and literal performance of any agreement or condition herein or to exercise any option retained or granted by reason of a default by the lessee shall not constitute a waive of the Lessor's right thereafter to insist upon and enforce full performance of such conditions and agreements. IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and seals and have caused their names to be hereunto affixed by the undersigned officers who are duly authorized so to act, on this 0217 day of TEit y , 1998. ATTEST: By 4 Li/ Heather Woodruff, City Jerk LESSOR: CITY OF FAYETTEVILLE, ARKANSAS A Municipal Corporation. By. 4,04141, -- Fred Hanna, Mayor SECTION 01100 SUMMARY OF WORK PART 1 - GENERAL 1.01 CONTRACT BASIS A. Work is based upon conditions at Site, Project Manual, and Drawings for Project No. 97042, dated December 31, 1997, all addenda issued and the Contract executed between Owner and Contractor. 1.02 OWNER A. Wherever term "Owner" or "Owners" is used in Project Manual it refers to : Hog City Diner Company 3401 South Peoria Tulsa, Oklahoma All papers required to be delivered to Owner shall be delivered to Mr. Michael Watkins Mr. Michael O'Brien 1.03 ARCHITECT A. Wherever term "Architect" or "Architects" is used in these specifications it refers to Wittenberg, Delony & Davidson, Inc., Architecture & Interior Design, 100 West Center, suite 102, Fayetteville, Arkansas 72701. 1.04 TIME FOR COMPLETION A. Time for completion of all Work under this contract is as stated in the Owner \ Contractor Agreement. 1.05 RESPONSIBILITIES OF CONTRACTOR A. Work is to be performed within the boundaries as leased from the city. At no instance may contractor or subcontractor encroach more than 2' from back of existing curb into the City Garden during the time for construction of the project. All access vehicular, pedestrian or otherwise shall be from the service drive of the Hog City Diner. Material delivery and staging of the construction will be required to be coordinated with City. Vehicular Parking in service drive Will be allowed only along north side to allow adequate access to temporary location of potting shed. The project is to be completed in the following stages in the fastest possible time frame without compromise to the quality of labor or materials. Required clearances to be confirmed with Utility Companies prior to the commencement of work. All necessary approvals from the City of Fayetteville, State Historic Preservation Board, and the Alcoholic Beverage Control Board must be obtained. Sidewalk along service drive to remain accessible for the pedestrian during OPO Renovation - Hog City Diner 01100-1 construction. Contractor to maintain daily jobsite cleanliness and quick disposal of construction debris. STAGE 1 - Coordinate removal of the picnic table, furniture, rocks, screens etc., to begin work. - Plants that can be relocated or potted should be removed at this time. -Existing Potting Shed to be relocated to the southeast corner of the paved area. - Relocate portion of the existing lattice fence along the building line to form screening for work. - This fence line will serve as the boundary of construction until the completion of the project. STAGE 2 - Construct 2' wide form work for the concrete retaining wall at perimeter of patio at face of curb. - Pour concrete from pumping line into form work from access drive. All required sleeves to be in place. And to be inspected prior to pour. - Construct fence posts on retaining wall at locations shown on plans and sections in contract documents. Finish material to be stucco or EIFS system to eliminate painting. -Provide extension for all lines, drains manholes, hose bibs, etc. STAGE 3 - Install fence panels between posts with treated wood to weather. Finish trim work and flower boxes on outside of fence prior to completion of interior trim. - Remove existing lattice screen. Plants can be located in flower boxes and edge to fence can be landscaped. Fence will serve as new boundary for construction. - Fill patio area with gravel, install reinforcement and pour concrete according to specification and drawing requirements. 4. STAGE 4 - Install new door ways into the building. Install Cooler according to manufacturers recommendations. -Build new potting shed wall and parapet to enclose cooler according to drawings and specifications. - Remove Old Potting Shed to location designated by City. - Pour new concrete steps. -Install final portion of fence panels and posts. - Install ADA handicap lift at new stairs. - Provide new striping at handicap parking space, access lane as required according to Historic Structure Accessibility Standards. Except as otherwise specifically stated in the contract, Contractor shall provide and pay for all materials, labor, tools, equipment, water, light, heat, power, transportation, superintendence, temporary construction of every nature, taxes legally collectible because of the Work and all other services and facilities of any nature necessary to execute Work as shown and/or specified under the contract and deliver it complete in every respect within specified time. If, during the course of construction of this project, the Contractor discovers errors, incon- OPO Renovation - Hog City Diner 01100-2 • • • • sistencies or omissions in the Contract Documents, the Contractor will report them to the Architect who will issue written instructions to the Contractor. If the Contractor performs Work knowing there is an error, inconsistency or omission in the Contract Documents without giving notice to the Architect or receiving written instruction from the Architect, the Contractor assumes responsibility for the Work and will bear all costs associated with the performance or correction of the Work. 1.06 COORDINATION OF WORK A. General Contractor to give special attention for coordination of work by various trades to provide uniform and symmetrical layout and spacing of exposed components which affect the finished architectural design and appearance. Where spacing and related locations are not specifically shown on the drawings, or where in doubt, Contractor's Superintendent shall consult Architect's Representative prior to installation of that part of the Work. Location of electrical and telephone outlets shall be verified with Architect prior to installation. 1.07 PRECONSTRUCTION CONFERENCE A. Either before or soon after actual award of Contract (bit in any event prior to start of construction), Contractor or his representative shall attend Preconstruction Conference with representatives of Owner and Architect. Conference will serve to acquaint partici- pants with general plan of contract administration and requirements under which construc- tion operation is to proceed, and will inform Contractor, in detail, of obligations imposed on him and his subcontractors. 1.08 LIQUIDATED DAMAGES A. It is understood and mutually agreed, by and between Contractor and Owner, that date of beginning and time for completion of Work are essential conditions of the contract; and it is further mutually understood and agreed that Contractor shall commence Work embraced in this contract on date specified in Written Notice to Proceed and fully complete Work within the agreed on time in consecutive calendar days. Contractor agrees to prosecute regularly, diligently, and uninterruptedly said Work at rate of progress as will complete Work within time specified. It is expressly understood and agreed, by and between Contractor and Owner, that time for completion of Work described is reasonable time for completion of same, taking into consideration average climatic range and usual industrial conditions prevailing in this locality. If Contractor neglects, fails or refuses to complete work within time specified, or within any proper extension granted by Owner, then Contractor does hereby agree, as a consideration for awarding of this contract, to pay Owner the amount of $100.00 per day, not as a penalty but as liquidated damages for such breach of contract as hereinafter set forth, for each and every calendar day that Contractor is in default after time stipulated in contract for completing Work. Said amount is fixed and agreed upon by and between Contractor and Owner because of damages Owner would in such event sustain, and said amount is agreed to be the amount of damages which Owner would sustain. OPO Renovation - Hog City Diner 01100-3 • • 1.09 CONSTRUCTION DRAWINGS AND SPECIFICATIONS Architect to furnish 3 sets of contract drawings and specifications, without cost, to General Contractor for use in constructing Work. General Contractor to supply all contract drawings and specifications to his subcontractors or material suppliers. Additional sets or portions of contract drawings and specifications, beyond sets furnished by Architect, requested by General Contractor, will be furnished for actual cost of printing at General Contractor's expense. Contract Documents (including all drawings, specifications, addenda and supplemental information) will not be made available on computer disk or on reproducible sepia to Bidders or Sub -bidders before the award of a Contract nor will they be made available to the Contractor or Sub -contractors after the award of a Contract. Only conventional, paper reproductions of such information will be made available to parties listed above. Conven- tional reproductions of Contract Documents may be obtained by means described in Document 00100 or as directed by Architect. 1.10 WORK TO BE PERFORMED BY THE OWNER A. It will be the Contractors responsibility to work with the Owner to understand and plan • for any and all work to be performed by the Owner or other forces of the Owner. No additional compensation will be granted for proper coordination, connections, interfacing with materials and products supplied and/or installed by the Owner or forces of the Owner. 1.11 DEFINITION A. The word "Provide", as used throughout these specifications, means furnish and install. 1.12 REFERENCE STANDARDS A. Except as otherwise noted, references throughout Project Manual to Codes, Federal Specifications, ASTM Standards, Association or Industry Specifications and other published standards, are to latest edition or publication of such standards. 1.13 PERMITS Utilizing the contract documents (Project Manual and Drawings) prepared by the Architect and his Consultants, along with information provided by the Owner or his Consultants, the Contractor is responsible for securing permits required to successfully complete the project. This responsibility includes payment for the permit and coordination of all submittals. 1.14 INFORMATIONAL DRAWINGS A. Drawings bound into working drawing set and labeled as informational drawings are not part of the Contract Documents. Information on these drawings is for reference and coordination only and is not a representation or warranty of existing or proposed OPO Renovation - Hog City Diner 01100-4 • • conditions. ' The Architect and Owner are not responsible for interpretations or conclusions made by the Contractor based on these drawings. 1.15 SAFETY PROCEDURES A In accordance with Act 291 of 1993 of the Arkansas State Legislature, the Contractor shall include a separate pay item for trench or excavation safety systems for any trench or excavation which equals or exceeds five (5) feet in depth and this pay item shall be a part of the base bid. The Occupational Safety and Health Administration (OSHA) Standard for Excavation and Trenches Safety System, 29 CFR 1926, Subpart P is hereby incorporated into this Project Manual by reference. A copy of this document is available for inspection at the office of the Architect during regular business hours. 1.16 ELECTRICAL LICENSE REQUIREMENT A. No person shall perform electrical work on the contract without possessing an Arkansas State Master or Journeyman License from the Arkansas State Electrical Examiners Board. All electrical work and apprentice electricians shall be supervised by a Master or Journeyman Electrician on a one to one ratio. All electricians shall have a copy of their license with them and shall be required to show it to an appropriate inspector upon request. 1.17 INSPECTION BY CITY, STATE AND 0111/14 OFFICIALS A. C PART 2 - PART 3 - It is the responsibility of the Contractor to provide for, call for, initiate, coordinate with and complete all activities associated with inspections of City, State and any or all other agencies that have jurisdiction over the project. Including providing drawings and paying fees associated with such requirements. It will be the responsibility of the Contractor to obtain all approvals of all agencies having jurisdiction and to secure all occupancy permits, use permits and certificates needed for a complete and usable project. All requirements for inspection and approval of the Restaurant and Restaurant Equipment by Local and State Health Departments, including local County Sanitarians shall be the responsibility of the. Contractor. The Contractor awarded this project agrees to allow City, State and all other inspectors having jurisdiction over the project, acting in their official capacity, to have access to the job site PRODUCTS (Not Applicable) EXECUTION (Not Applicable) END OF SECTION 01100 OPO Renovation - Hog City Diner 01100-5 WITTENBERG, DELONY & DAVIDSON, INC.