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HomeMy WebLinkAbout86-98 RESOLUTION• RESOLUTION NO. 86-98 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT WITH BEKKA DEVELOPMENT COMPANY, FOR PROPERTY KNOWN AS LOT TWO (2) AND THREE (3) IN BLOCK THIRTY (30) IN THE ORIGINAL PLAT OF THE TOWN (NOW CITY) OF FAYETTEVILLE, ARKANSAS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 That the Mayor and City Clerk are hereby authorized to execute a lease agreement with BEKKA Development Company for property known as Lot Two (2) and Three (3) in Block Thirty (30) in the original plat of the town (now city) of Fayetteville, Arkansas, and shall be use for the Fayetteville Town Center Plaza. A copy of the lease agreement is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 16th day of_June—, 1998. APPRO By. /1 � ATTEST: By://,/a72,..) /� 4-,f eather Woodruff, City Jerk - It ! • • e 34 .. _0 � . ••• Y •e;. • Fred Hanna, Mayor lar , • LEASE AGREEMENT Agreement made this 22 day of �C%C�'h�-e-4 , 1998, by and between BEKKA Development Company, an Arkansas Corporation, with offices at One West Mountain Street, Fayetteville, Arkansas 72701, (hereinafter called "Lessor"), and the City of Fayetteville, Arkansas, a municipal corporation, with offices at 113 West Mountain Street, Fayetteville, Arkansas 72701, (hereinafter called "Lessee"). WHEREAS, the City of Fayetteville desires to revitalize its Downtown by building a Town Center with a Plaza connected to the Fayetteville Square; and, WHEREAS, BEKKA Development Company is also interested in revitalizing Downtown Fayetteville; and, WHEREAS, BEKKA Development Company recognizes that its property is much more valuable than indicated by the terms of this Lease Agreement; nevertheless, is willing to lease the hereinafter described property, under the terms and conditions specified herein; and, WHEREAS, the plans contemplate the conversion of an entire tract of Lessor's property to use as an entrance plaza to the Town Center, which may materially and adversely impact Lessor's adjacent developed lots to the east and west of the intended plaza, and will preclude integrated development of Lessor's combined tracts fronting the Fayetteville Square; and, WHEREAS, while the City could exercise its power of eminent domain to acquire Lessor's property, both parties wish to avoid the uncertainties and potential expense of condemnation proceedings, as well as the threat such proceedings could hold for either the project itself or the value to Lessor of this and its adjacent lots. NOW, THEREFORE, IN CONSIDERATION of the rents, promises, recitals and mutual covenants contained herein, the Lessor and Lessee hereby agree as follows: 1. LEASED PREMISES. Lessor hereby lets, leases and demises unto Lessee, without representations as to physical condition or suitability, subject to the terms and conditions contained herein, the following described property situated in Washington County, Arkansas: Lots Two (2) and Three (3) in Block Thirty (30) in the Original Plat of the Town (now City) of Fayetteville, Arkansas, and part of Lot 4 West of Lot 3 to the existing walkway edge, a distance of approximately 15'. To have and hold said premises unto the said Lessee for and during the term herein stated, subject to the covenants, terms and conditions contained herein. 2. TERM. This lease shall commence upon the effective date hereof and shall extend for a term of twenty-five (25) years. Lessee shall have the option to extend said lease in five (5) year increments, on an Evergreen basis, rent to continue as set forth in paragraph 7, if Lessee is not in default. It is the specific intent of the parties that this lease be one of perpetual renewal at the option of the Lessee so long as Lessee is not in default. 4dinC 7-71' 3. DESIGN. Lessor agrees to allow Lessee to construct a Town Plaza in substantially the same design as shown in the architectural drawing attached hereto as Exhibit "A". Before and after initial construction, any substantial changes to the design as shown in Exhibit "A", must be approved by the Lessor in writing prior to construction. Lessor shall not unreasonably withhold such approval 4. ASSIGNMENT. Lessee shall not assign this lease or sublet the leased premises or any part thereof without pnor written consent of the Lessor. 5. POSSESSION. Lessee may take possession of the leased premises when Lessor has given final approval of Lessee's plans for the improvements to be made to the Leased Premises as set forth in paragraph 3 above and, when a construction contract for the Town Center Project, which will be located south of the Leased Premises, has been entered into. 6. COSTS, UTILITIES AND LIABILITY. All costs, utilities, and liability of and for the plaza and connecting areas, steps, and tie ins shall be borne by the Lessee. 7. RENT. As partial consideration, in addition to the terms, conditions and covenants hereof, Lessee agrees to pay Lessor the sum of one hundred twenty thousand dollars ($120,000.00) upon possession and one dollar ($1.00) per year during the term or any extended terms, hereof. 8. TAXES. Lessee shall pay any and all ad valorem taxes, fees and assessments levied against said premises during the term of this lease; including, but not limited to, real estate taxes, personal property taxes, sales taxes and off-street parking district taxes. 9. PARKING. Lessee shall at no cost to the Lessor provide and maintain a paved area adjacent to the Executive Square Office Building, underneath the Town Plaza, sufficient to accommodate 32 parking spaces. Said area shall be for the exclusive use of the Lessor and/or Lessor's Tenants and guests; however, when not in use by Lessor, said spaces may be utilized by the Lessee for public purposes. Lessee shall provide and maintain reasonable access which is satisfactory to the Lessor from the parking area provided to Lessor hereunder, to the premises to the east and west of the Leased Premises; and shall provide and maintain lighting, ventilation and upkeep of said parking area in a manner which is satisfactory to Lessor. 10. USE. Lessee shall use the Leased Premises for the purpose of building and operating a Town Plaza, which shall be the entrance from the south side of the Fayetteville Square to the Town Center, and for no other purpose or purposes without the written consent of Lessor. 11. DEFAULT. Lessor may declare a default by Lessee upon the following: A. Lessee failing to pay any installment of rent and the failure continues for a period of 60 days after written notice to the Lessee. B. Failure to comply with any other terms of this Lease Agreement, and not curing such failure within 60 days after written notice to the Lessee. 12. REMEDIES. Upon the occurrence of any default by the Lessee, which is not timely cured after written notice, Lessor may terminate this Lease Agreement and immediately enter upon 4 and take possession of the leased premises. Pursuit of said remedy shall not preclude pursuit of any other remedies herein provided, or provided by law. No waiver by Lessor or any violation or breach of any portion hereof shall be deemed or construed to constitute a waiver of any other violation or breach of the same or otherwise. Lessee shall pay any and all costs and expenses resulting from an event of default hereunder or incurred in the collection of any past due balances hereunder, including reasonable attorney fees, whether said attorney is in-house or not, and whether or not suit is brought. 13. CONTINUING OBLIGATIONS. Lessee shall bear all cost and expenses, directly or indirectly associated with the Leased Premises, including, but not limited to, any and all improvements, maintenance, up -keep, lighting, utilities, insurance, accidents, taxes, fees, assessments, cleaning, snow removal and trash removal, and shall defend, indemnify and hold Lessor harmless therefore. Lessee shall maintain the Leased Premises in a clean, attractive, healthful condition, and in accordance with all laws and ordinances. Lessee's obligations under this agreement shall contmue and shall survive the expiration or termination hereof, until all obligations of the Lessee incurred hereunder have been met. Nothing herein is to be interpreted or intended as a waiver of the tort immunity granted Lessee under the law of the State of Arkansas. 14. MISCELLANEOUS PROVISIONS. A. Lessee shall pay any and all costs and expenses associated with, directly or indirectly, the removing, relocating, replacing, providing, etc., any and all utilities, electrical service, heating and air-conditioning, water, sewer, steps, entrances, driveways, parking, etc., to or for the Leased Premises. Said removal, relocations, etc., shall be subject to Lessor's prior approval and shall be done with minimum disruption of services. B. Lessee shall provide and maintain reasonable access from the Leased Premises (plaza and parking) to the premises east and west of the Leased Premises, to Lessor's satisfaction, including at least three (3) walkways from the plaza to the premises located to the west of the Leased Premises. C. The rent provided in this lease shall not be used directly or indirectly in determining fair market value in any subsequent condemnation action regarding this property. D. All risk and loss to the Leased Premises during the term or any extended terms hereof shall be borne by Lessee. E. Upon termination of the lease, Lessee shall continue to provide Lessor reasonable ingress and egress to and from the Leased Premises across Lessee's property lying south of the Leased Premises. Said access is currently being afforded by a driveway/alley along the south edge of the Leased Premises from both East and Block Streets. F. Lessee shall provide, at no cost to Lessor, during the term and any extended term hereof, reasonable space for trash/garbage disposal and pickup for use by Lessor and the occupants of the premises lying east and west of the Leased Premises. 15. SUCCESSION. This lease agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors and permitted assigns. • • 16. SEVERABILITY. Each provision of this lease agreement is severable from all other provisions. In the event any court of competent jurisdiction determines that any provision is invalid or unenforceable for any reason, all remaining provisions shall remain in full force and effect and shall be construed to best effectuate the intent of the parties. 17. INTERPRETATION. This Lease Agreement shall be deemed to have been made under and shall be governed by the laws of the State of Arkansas in all respects, including without limitation, matters of construction, validity, performance and venue. Venue of any legal actions shall be in Washington County, Arkansas and the parties specifically waive any and all other. 18. AUTHORIZATION. The persons executing this agreement covenant and represent that they are duly authorized and empowered to do so on behalf of the party they purport to represent. 19. LIABILITY. Lessor shall not be liable to Lessee or any other party, person, or entity for damage, injury or loss of any kind arising from or associated with the Leased Premises, directly or indirectly, and Lessee shall defend, indemnify and hold Lessor and its officers, agents, employees, directors, and shareholders harmless therefrom. The Lessee shall be liable for any and all damages from their construction, development, and use of the Leased Premises. Nothing herein is to be interpreted or intended as a waiver of the tort immunity granted Lessee under the Law of the State of Arkansas. 20. TIME OF ESSENCE Time shall be of the essence in this Lease Agreement. 21. ALL RIGHTS NOT SPECIFIED All rights not specifically granted under this Lease shall remain with the Lessor. 22. ENTIRE AGREEMENT. This Lease Agreement including Exhibit "A" contains the entire agreement of both parties hereto, and no other oral or written agreement shall be binding on the parties hereto. This Lease Agreement supersedes all prior agreements, contracts, and understanding of any kind between the parties relating to the subject matter hereof. IN WITNESS E OF, the parties hereto have hereunto set their hands and seals on this day of�� , 1998. LESSOR: BEKKA DEVELOPMENT CO. An Arkan ' .c Co poration By: i 4_, J/ /./ as r A.Jj1iL Secretary LESSEE: CITY OF FAYETTEVILLE, ARKANSAS A Municipal Corporation By: Fred Hanna, Mayor ATTEST By:7 " t ) H4ther Woodruff, City Clerk ;, • • • Page 5 Bekka Development/ City of Fayetteville Lease ACKNOWLEDGMENT STATE OF ARKANSAS ) )ss. COUNTY OF WASHINGTON ) Before me, a Notary Public duly commissioned, qualified and acting within and for the County and State aforesaid, appeared in person the within named, Fred Hanna and Heather Woodruff, Mayor and City Clerk, respectively, for the City of Fayetteville, Arkansas, a municipal corporation, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the municipal corporation, and further stated and acknowledged that they had so signed, executed and delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TEMONY MONY WHEREOF, I have hereunto set my hand and official seal on this a_Z day of b,L2 , 1998. My Comniission Expires: otary Public mm % nyo„ .?.."1411'. •BA'Oyl�� 0 Fe iH' ACKNOWLEDGMENT t6::.., PUBUIC ::1Q STATE OF ARKANSAS ) °j",,,,,OU NT,�,, )ss: COUNTY OF WASHINGTON ) On this day before me, a Notary Public, duly commissioned, qualified and acting within and for the State and County aforesaid, appeared E. G. Bradberry, known to me to be the person and officer whose name is subscribed to the foregoing instrument for and in the name and on behalf of BEKKA Development Company, and further stated that he had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. IN S MONY WHEREOF, I have hereunto set my hand and official seal, this 4 a. day oft� , 1998. My Commission Expires: q--i-zoo P Notary Public �a \.p......... O ee, •• NOTq� N o' 1/431.1C 0,brury PQc WITTENBERG, DELONY & DAVIDSON, INC. WITTENBERG, DELONY & DAVIDSON, INC.