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HomeMy WebLinkAbout112-04 RESOLUTIONLEASE This Agreement, made and entered into this 20th day of July, 2004, by and between the City of Fayetteville of Fayetteville, whose address is 113 West Mountain and OPO Enterprises, Inc. whose address is 1 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 OPO Enterprises, Inc as obligations to the City of Fayetteville, the City of Fayetteville leases to OPO Enterprises, Inc., subject to the terms and conditions contained herein, the improved seating area adjoining the old Post Office Building within the fence containing approximately 1,676.16 square feet more or less, situated in Washington County, Arkansas as shown by the Site Plan of Wittenberg, Delony & Davidson, Inc. as attached as Exhibit A. To have and to hold said premises unto said OPO Enterprises, Inc. for and during the term herein stated, subject to the covenants, terms, coriditions and liens herein contained. 2. TERM. This lease shall commence on September 1, 2004 and shall extend for an initial term of two (2) years. If OPO Enterprises, Inc. shall have fully performed every agreement and covenant on OPO Enterprises, Inc. part to have been kept and performed under the term of this lease at the time of exercise and at the time of renewal, OPO Enterprises, Inc. is hereby granted the right if mutually agreeable with the City of Fayetteville and option to extend this lease, upon the same terms, for an additional period of two (2) years, with such option to be exercised in writing by OPO Enterprises, Inc. not later than one hundred eighty (180) days prior to the expiration of the basic or original term of this lease OPO Enterprises, Inc. may extend for up to four additional' two (2) year extension periods utilizing the same procedures outlined above if mutually agreed to by both OPO Enterprises, Inc. and City of Fayetteville for a total lease period of twelve (12) years. 3. RENT. OPO Enterprises, Inc. agrees to pay to City of Fayetteville the annual rental rate of $2,400.00 payable in monthly installments of $200.00 each, to be paid in advance beginning on the first day of August, 2004 and on the first day of each and every month thereafter. No security deposit shall be required. • 4. USE. OPO Enterprises, Inc. agrees to use the leased premises for the purpose of operating an outdoor dining area and for no other purpose or purposes without the written consent of the City of Fayetteville having been obtained in advance. 5. CONSTRUCTION OF IMPROVEMENTS. Any alteration of the improvements within the City of Fayetteville's leased premises must be approved by the Mayor prior to such alteration. 6. 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. 7. MUSIC. OPO Enterprises, Inc. agrees that only live non -amplified music will be permitted on the leased premises which shall not be loud enough to disturb persons enjoying the Square Gardens. 8. 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, or the City of Fayetteville. 9. LITTER REMOVAL. OPO Enterprises, Inc. shall provide daily litter removal from the portion of the Town Square in front of its public entrances. 10. NON -SUCCESSION. This lease agreement shall inure only to the benefit of and be binding upon the parties hereto and not to their respective heirs, successors and assigns. This lease is not assignable without the consent of the City of Fayetteville. 11. TAXES. OPO Enterprises, Inc. 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 12. COMPLIANCE WITH LAWS. OPO Enterprises, Inc. agrees not to violate any law, ordinance, rule or regulation of any government authority having jurisdiction of the leased premises. 13. INSURANCE OF OPO ENTERPRISES, INC.'S PROPERTY. OPO Enterprises, Inc. shall be solely responsible for maintaining insurance on its property, including but not limited to movables, trade fixtures installed by OPO Enterprises, Inc., furniture, furnishings and inventory. 14. RIGHT OF INSPECTION. The City of Fayetteville shall have the right, in person or through the City of Fayetteville's duly authorized representative, at all reasonable times to inspect the leased premises. 2 • • 15. ALTERATIONS. OPO Enterprises, Inc. shall have the right and privilege to make, at OPO Enterprises, Inc.'s expense, ordinary repairs and alterations to the leased premises; however, no alterations shall be made without the prior written consent of the City of Fayetteville. 16. FIXTURES. All trade fixtures installed by OPO Enterprises, Inc. or acquired by OPO Enterprises, Inc. independently of this lease shall remain OPO Enterprises, Inc.'s property and may be removed by OPO Enterprises, Inc. at the expiration of this lease, provided, however, OPO Enterprises, Inc. shall restore the leased premises and repair any damage thereto caused by such removal. 17. ACCEPTANCE OF PREMISES. The OPO Enterprises, Inc. acknowledges it has inspected the premises and determined them adequate for its intended uses. OPO Enterprises, Inc. accepts the premises in their current condition. 18. MAINTENANCE OF LEASED PREMISES. OPO Enterprises, Inc. 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 OPO Enterprises, Inc. in connection with utility services of whatever kind or nature including any sewer charges and pickup of OPO Enterprises, Inc.'s trash and garbage. OPO Enterprises, Inc. 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. OPO Enterprises, Inc.'s business operations will be carried on in accordance with the highest standards for such businesses, particularly in the areas of cleanliness and service. 19. INDEMNIFICATION OF CITY OF FAYETTEVILLE. OPO Enterprises, Inc. shall defend, indemnify and hold the City of Fayetteville harmless against any expense, claim, loss or liability as the result of any breach by OPO Enterprises, Inc., OPO Enterprises, Inc.'s agents, servant, employees, customers, visitors or licensees, of any covenant or condition of this lease, or as a result of OPO Enterprises, Inc.'s use or occupancy of the demised premises, or the carelessness, negligence of improper conduct of OPO Enterprises, Inc., OPO Enterprises, Inc.'s agents, servants, employees, customers, visitors or licensees. To facilitate the provisions hereof, OPO Enterprises, Inc. 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 City of Fayetteville, insurance against third party liability by reason of OPO Enterprises, Inc.'s occupancy of the demised premises with limits of liability thereunder of not less 3 • than $100,000.00 per person and $500,000.00 per accident with $500,000.00 coverage for property damage. 20. RETURN OF LEASED PROPERTY. At the end of the term of this lease, or upon any other earlier termination, OPO Enterprises, Inc. agrees promptly and peaceably to restore possession of the leased premises to the City of Fayetteville in as good condition as they were when delivered to OPO Enterprises, Inc., ordinary wear and tear excepted. To accommodate this covenant, OPO Enterprises, Inc. hereby waives any and all notice to which OPO Enterprises, Inc. may be entitled under the laws of the State of Arkansas as a prerequisite to a suite against OPO Enterprises, Inc. for the unlawful detention of the property. 21. NOTICES. Any notice called for or permitted under the terms hereof shall be given in writing and sent by certified mail to OPO Enterprises, Inc., at P.O. Box 519, Flippen, AR 72634 and to the Mayor's Office, City of Fayetteville, 113 W. Mountain St., Fayetteville, AR 72701. If such certified mail is returned to sender, the City of Fayetteville may provide adequate notice by posting said Notice on the premises. 22. WASTE. OPO Enterprises, Inc. agrees not to commit waste, not 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 or 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. 23. RIGHT TO CURE. If OPO Enterprises, Inc. shall default in any of the covenants, agreements, conditions, or undertakings herein contained to be kept, observed and performed by OPO Enterprises, Inc., the City of Fayetteville shall give notice of such default in writing to OPO Enterprises, 'Inc. and OPO Enterprises, Inc. 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 with the aforementioned thirty (30) days, OPO Enterprises, Inc. shall not be considered in default or in breach of this lease 24. SEVERABILITY. Each paragraph of this lease agreement is severable from all other paragraphs. In the event any court of competent Jurisdiction deterrmnes that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs will remain in full force and effect. 4 • • 25. INTERPRETATION. This lease agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. 26. ENTIRE AGREEMENT. This lease agreement contains the entire agreement of both parties hereto, and no other oral or written agreement shall be binding on the parties hereto. 27. NON -WAIVER PROVISION. The failure of the City of Fayetteville or OPO Enterprises, Inc. to insist upon the strict and literal performance of any agreement or conditions herein or to exercise any option retained or granted by reason of a default by OPO Enterprises, Inc. shall not constitute a waiver of the City of Fayetteville's right thereafter to insist upon and enforce full performance of such conditions and agreements. IN WITNESS WHEREOF, the City of Fayetteville and OPO Enterprises, Inc. have hereunto set their hands and seals and have caused their names to be hereunto affixed by the undersigned officers who are duly authorized to act, on this 20th day of July, 2004. OPO ENTERPRISES, INC. CITY OF FAYETTEVILLE, ARKANSAS By: )4 f GARY HER Title: Attest: By p111,11„p,1// 4- `•G�6FtYJTR�S,a��, DA COON , =:\+•• G\SVO,c•�•es Mayor rU; :13 1 c ;FAVEUEVILLE; •1,0 S. .r�i 2 •. KAN P'J2+ titin ..••� ,,,,,roN,„ Attest: Name & Title Sondra Smith, City Clerk 5 • 0 17 • • V1 �1 Top c z3-5 0 101:A S!!if; "I AlOri 4De 1 __ — mes ithitittri — _�,� ox 'ITTENBERG, DELONY& DAVIDS_QN_INC- I O0.•\Ur ¶ILCI If CI I 1 1 l I Hoail� Gtr b1P�.-. NAME OF FILE: CROSS REFERENCE: Item # Date Resolution No. 112-04 w/agreement Document 1 06/30/04 memo to mayor & City Council 2 draft resolution 3 draft lease 4 map of leased area 5 memo to mayor & City Council 6 copy of City Council minutes 3/3/98 7 copy of City Council minutes 7/7/98 8 copy of City Council minutes 7/21/98 g copy of Res. 100-98 w/lease 10 memo to City Council 11 copy of lease 12 draft resolution 13 draft lease 14 Staff Review Form 15 email to Gary Dumas 16 email to cpearman from Gary Dumas 17 memo to Gary Dumas NOTES: • City Council Agenda Memo To: Mayor and City Council From: Gary Dumas �3---r—s Date: June 25, 2004 Subject: Resolution Approving Lease with OPO Enterprises, Inc for the patio within the Square Garden on the Town Square Recommendation: Staff recommends approval of the attached resolution providing for the lease of the 1,676.16 square feet patio within the Square Garden on the Town Square for $1.00 annually plus other good and valuable consideration. Background: The site of the former Hog City Diner has been vacant for several months. The former tenant provided some improvements and made the patio space useable. The City had and still has no investment in the patio improvements. A new tenant, OPO Enterprises, is now requesting a lease from the City for the patio area to be used in conjunction the new activity. This new enterprise will include a soda fountain, restaurant, and downstairs sports bar. Discussion: The lease proposed differs from the prior lease in a few areas. 1. The term of the lease is for two years with 4 two year extensions. 2. Access to the patio may be gained through the existing gate along the west side of the property or through the opening along the east side. 3. Only live non -amplified music is permitted. 4. Lessee will be responsible for damage to plant materials and will provide daily litter control for the Garden and Inner Square. 5. Annual lease will be $1.00 plus other good and valuable consideration. Budget Impact: There will be some savings of staff time in not having to perform daily maintenance cleaning the Gardens and Square. • 7/zo/o t ©PO { pristcl 1oft 6/25/2004 11:37:50 AM RESOLUTION NO. A RESOLUTION APPROVING A TWO YEAR LEASE WITH OPO ENTERPRISES, INC. FOR RENTAL RATE OF $1 PER YEAR PLUS OTHER GOOD AND VALUABLE CONSIDERATION, FOR A PERIOD OF TWO (2) YEARS, AND ALLOWING THE LESSEE FIVE ADDITIONAL TWO (2) YEAR PERIODS RENEWING THE LEASE FOR OUTDOOR DINING ON THE TOWN SQUARE FOR A TOTAL LEASE PERIOD OF TWELVE (12) YEARS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby approves a lease with OPO Enterprises, Inc for a rental rate $1 per year plus other good and valuable consideration, for a period of two (2) years, and allowing the Lessee five additional two (2) year periods renewing the lease for outdoor dining on the Town Square if mutually agreeable with the City. 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 day of , 2004. APPROVED: By: Dan Coody, Mayor ATTEST: By: Sondra Smith, City Clerk LEASE This Agreement, made and entered into this day of , 2004, by and between the City of Fayetteville, whose address is 113 West Mountain, hereinafter called Lessor, and OPO Enterprises, Inc., whose address is 1 West Center, Fayetteville, Arkansas 72701, hereinafter called Lessee, 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 B 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 two (2) 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 if mutually agreeable with the City an option to extend this lease, upon the same terms, for an additional period of two (2) 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 original term of this lease. Lessee may extend for up to four additional two (2) year extension periods utilizing the same procedures outlined above if mutually agreed to by both Lessee and Lessor for a total lease period of twelve (12) years. 4. RENT. Lessee agrees to pay to Lessor the rental rate of $1 per year plus other good and valuable consideration. The rental rate of $1 per year plus other good and valuable consideration shall constitute the basic rental for the lease. 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. 6. CONSTRUCTION OF IMPROVEMENTS. All improvements constructed by the Lessee on the leased premises shall be accomplished within the boundaries of • • the leased premises and Lessee shall make every effort to conduct such construction so as to have a minimal impact on the town square gardens. 7. INGRESS AND EGRESS. Access to the leased premise may be from the existing gate access along the west fence or from the existing access along the east line. 8. MUSIC. Lessee agrees that only live non -amplified music will be permitted on the property in compliance with all City codes. 9. 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. 10. SQUARE GARDEN & LITTER REMOVAL. Lessee will be responsible for any damage to Square Garden plantings and shall provide daily litter removal from the Town Square. 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 or by damage caused by Lessee's patrons' use of the Square Garden. 12. NON -SUCCESSION. This lease agreement shall insure only to the benefit of and be binding 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 government 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 authorized 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. 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. 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 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 terns hereof shall be given in writing and sent by certified mail to the Lessee at P.O. Box 519, Flippen, AR 72634, and to the Lessor at 113 West Mountain, Fayetteville, Arkansas 72701. 24. WASTE. Lessee agrees not to commit waste, not 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. 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 conditions 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 to act, on this _ day of , 2004. • • ATTEST: By: Name & Title ATTEST: By: Sondra Smith, City Clerk LESSEE: By: Name & Title LESSOR: CITY OF FAYETTEVILLE, ARKANSAS A Municipal Corporation. By: Dan Coody, Mayor • FAYETTEVI LLE THE CITY OF FAYEIIEVIIIE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT • TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorne DATE: July 1, 2004 RE• Lease of city -owned plaza adjoining the old Post Office on the Square In order to accommodate and encourage the Hog City Diner to occupy the old Post Office (which had remained empty after the "Old Post Office" and associated downstairs bar had closed), the City Council agreed to lease a portion of city owned lands adjoining the building upon several conditions. The City agreed to charge only $1,677.00 annual rent for the first ten years. Extension of the lease would have the rent increased by theamount of Consumer Price Index increase since the inception of the lease. The reason for this very modest rent was primarily because Hog City agreed to build and pay for very substantial permanent improvements to our property so they could utilize it as an enclosed outdoor dining area for their restaurant. The originally proposed rent had been three times higher ($419.25 per month or $5,031 00 annually). Hog City's president, Michael O'Brien agreed to that amount according to the minutes of the July 7, 1998 City Council meeting (attached). However, at the next City Council meeting, Mr. O'Brien requested a reduction to $1,677.00 annual rent. He stated: "They've been willing to risk close to a million dollars, and counting, in this project" (Minutes of July 21, 1998 City Council Meeting, page 3). He pointed out that he agreed to spend $3,000.00 to construct a new potting • • shed for the city as well as numerous improvements on the city property "a beautiful fence, screening, lattice work, pillar columns, the concrete leveled and a fountain. These would remain if the restaurant ever closes." (Minutes of July 21, 1998 City Council Meeting, page 4). "Mayor Hanna stated it is not unusual for cities to give businesses incentives to locate there. It creates Jobs, tax money, and, in this case, it brings back something to the square that has been missed He felt a $1 a sq. ft. was a fair charge for the concrete driveway they already have the use of and will improve." (Minutes of July 21, 1998 City Council Meeting, page 5). Even taking into consideration the $3,000.00 for the new potting shed and the many thousands of dollars of improvements made to turn a driveway into an enclosed seating area with a fountain and bar, the reduction of the rent from $5,031.00 to $1,677.00 only passed when Mayor Hanna broke the 4-4 aldermen vote. Now the taxpayers of Fayetteville own a beautiful seating area for 75- 80 people. (Minutes of July 7, 1998 City Council Meeting, page 8 — estimate by restaurant owner) This improved, ready to go seating area is certainly worth far more than the $139.75 monthly rent agreed to by a divided City Council as an incentive for the improvements to be made. One way to determine the fair rent would be to base it upon the rent being charged by the building's owner. The outdoor seating would constitute a very large increase in the restaurant's seating capacity for the six months or so per year it would be usable. However, a substantial portion of the total rent would be tied to the kitchen facilities inside so that amount would need to be deducted before whatever percentage of seasonal seating capacity the plaza represents could be used as a fair market rent amount. Just as with all other city properties and assets, the City Council must ensure we receive fair market value for the taxpayers The outdoor seating area for the old Post Office is not only surrounded by beautiful city paid landscaping, the improvements to the plaza were an investment for the taxpayers, financed by accepting a lower monthly rent to get the Hog City to build and pay for these improvements. • • • • Not only is this plaza area beautiful and inviting, it may be important to the restaurant owners if they wish to allow a smoking area. It certainly provides an unique outdoor environment that the building otherwise cannot offer. Music was also an important concern of the City Council in 1998 and was controlled in the first lease in paragraph 9 "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." The new proposed lease allows "live non -amplified music" which can be far louder (drums, brass instruments, etc.) than "background music." Entry areas are changed to allow entry directly into the plaza (rather than through the old Post Office). Could this become a stand alone bar? The amount of rent, control of music, and allowable access points should all be carefully considered before entering into a long term (12 year) lease of the city's enclosed plaza area adjoining the old Post Office. ITTENBERG, DELONY & DAVIDSON, INC. �.-ic+a+.• I , to Hotoorry prom • • • • • • 100 March 3, 1998 the construction of this project total $454,498.71. Mayor Hanna informed the Council that if this is passed at this meeting, the only thing preventing this from being completed this year would be procuring the steel. Charles Venable, Assistant to the Public Works Director, stated the traffic count taken just after Joyce Street opened was 7,000 cars a day on this one -lane bridge. It has increased since then. This project will provide four lanes. Alderman Williams moved to accept the resolution. Alderman Daniel seconded. Upon roll call, the resolution passed on a vote of 7 to O. RESOLUTION 29-98 AS RECORDED IN THE CITY CLERK'S OFFICE. USE OF SOUARE GARDENS FOR OUTSIDE DINING Mayor Hanna introduced consideration of a.conceptual plan for outdoor dining on park property located within the Square Gardens. Mike O'Brien, Cafe Company, stated there is an area where they have an existing easement that is part of the Parks Department that they would like to turn into outdoor dining. He passed out a handout regarding what is being proposed. He asked that the Council review this and recommend that the staff negotiate an agreement for the purpose of using this area for outdoor dining. Richard Alderman, architect, used a drawing to walk through the area. He pointed out how this would provide convenient access for the handicapped. He stated this would not impact any of the existing gardens, except for moving a potting shed. Mr. O'Brien stated this area would be closed to the public during non business hours. They are looking at the screening requirements. Alderman Williams stated he would hate to see a tall fence. Outdoor dining was recommended in town meetings to enhance the downtown area. The attractiveness of this would be in sitting by the garden. Mr. Alderman stated the screening is required and dictated by ABC. He stated he wanted the Council's approval to begin negotiation with the City staff to come up with what the City requires. They would also work with the historic people. Mr. O'Brien stated the State law requires the classification of private club if open and serving alcohol on Sundays. Alderman Williams stated he has a problem with making a public space into a private club. He pointed out that Jose's is both a 16