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HomeMy WebLinkAbout136-07 RESOLUTIONRESOLUTION NO. 136-07 A RESOLUTION APPROVING A LEASE WITH GROWTH GROUP, LLC TO RENT SPACE IN THE E.J. BALL BUILDING TO HOUSE THE CITY OF FAYETTEVILLE INFORMATION TECHNOLOGY DIVISION'S SERVER ROOM FOR THE ANNUAL AMOUNT OF $18,510.00. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas, hereby approves a Lease with Growth Group, LLC to rent space in the E J Ball Building to house the City of Fayetteville Information Technology Division's Server Room for the annual amount of $18,510.00. A copy of the Lease, marked Exhibit "A," is attached hereto and made a part hereof. PASSED and APPROVED this 17th day of July, 2007. APPROVED: ATTEST: By: c-' .4, .Uk.G pr • \iY• •• n�3 FAYETTEVILLE : 9• P; •;,pfA NSP• • Jam'`; ,,iicrop iiii a� SONDRA E. SMITH, City Clerk/Treasurer LEASE 1. PARTIES: This lease, dated this 17`h day of July, 2007. between Growth Group Building, LLC, Fayetteville, Arkansas. (hereinafter called "GROWTH GROUP"). and City of Fayetteville, Arkansas (hereinafter called "the C I FY"); W -I -T -N -E -S -S -E -T -H 2. CONSIDERATION: Each of the parties acknowledges receipt of valuable consideration from the other and each of them act herein in further consideration of the covenants of the other as herein stated. 3 PREMISES: GROWTH GROUP does hereby grant, demise and lease unto the CITY the premises or space in the office building which is located at 112 West Center, in Fayetteville. Washington County, Arkansas (hereinafter referred to as "Building"), on the basement floor(s) of Building, consisting of 1234 square feet (hereinafter referred to as "Premises"). 4. USE OF PREMISES: Premises are to be used and occupied continuously throughout the term hereof for general office purposes and computer database use and all uses customarily and incidentally related thereto. 5. TERM OF LEASE: TO HAVE AND TO HOLD unto the CITY the above described PREMISES for a period of three years commencing on the 17`h day of July, 2007 and ending on the 16`h day of July, 2010, (the "Primary Term") with the option to extend for two additional terms of three (3) years. 6. RENTAL: The CITY shall pay GROWTH GROUP as rental for Premises for the term herein specified, unless adjusted or escalated as herein provided, an annual sum of fourteen thousand eight hundred eight and 00/100 Dollars ($14,808.00), which is to be paid in equal monthly installments of one thousand two hundred thirty four • • • and 00/100 Dollars ($1234.00), payable in advance on the first day of each month throughout the term or period of this Lease. In addition to the rental amount stated above, the CITY shall pay GROWTH GROUP for Common Area Maintenance charges of three thousand seven hundred two and 00/100 dollars ($3,702 00) annually, or three hundred eight and 00/100 dollars ($308.00). If the CITY shall have fully performed this Lease during the term hereof, then the CITY shall have the option to extend this lease for two additional terms of three (3) years at the rentals specified herein. The CITY shall notify GROWTH GROUP in writing ninety (90) days in advance if the CITY wishes to exercise this option. 7 ADJUSTMENT OF RENTAL. It is further understood and agreed, subject to the conditions and provisions hereinafter stated, that the above stipulated rental, payable monthly, shall be adjusted or escalated for each lease year throughout the term or penod of this Lease subsequent to the base year, as such terms are hereinafter defined, in accordance with the following provisions and formula: "Base Year" shall be 2007. "Adjusted Lease Year" shall mean each successive calendar year following the Base Year. If GROWTH GROUP desires to adjust the annual rental, it shall, by written notice to the CITY within thirty (30) days before or after the commencement of an adjusted lease year, make reference to the Consumer Price Index maintained by the United States Bureau of Labor Statistics, or such other Federal Agency which maybe preparing and maintaining such statistical data. Particular reference shall be made to the index figures for "All Items" for Urban Wage Earners and Clerical Workers in the United States, and not in any particular community surveyed. In the event the percentage change in such index figures between the Base Year of this Lease and the Adjusted Lease Year set forth in the notice required hereunder, equals to or exceeds one percent (1%) of such index figure, then for the succeeding Adjusted Lease Year, the annual rental hereunder shall be adjusted upward in accordance with such percentage. 8. SERVICES TO BE FURNISHED BY GROWTH GROUP: GROWTH GROUP shall furnish the CITY while occupying Premises the following services on all days except Sundays, Holidays, and as otherwise stated (a) Water. Cold water from mains for drinking, lavatory and toilet purposes drawn through fixtures installed by GROWTH GROUP, or by the CITY with GROWTH GROUP's written consent, and hot water for 2 • • • • lavatory purposes from regular Building supply at the prevailing temperature. The CITY shall pay GROWTH GROUP reasonable rates fixed by GROWTH GROUP for water furnished for any other purposes. The CITY shall not waste or permit the waste of water If the CITY fails to pay promptly GROWTH GROUP'S proper charge for water, GROWTH GROUP, upon of not less than ten (10) days' notice, may discontinue furnishing that service and no such discontinuance shall be deemed an eviction or disturbance of THE CITY'S use of Premises or render GROWTH GROUP liable for damages or relieve THE CITY from any obligation. (b) Heating and air conditioning shall be available to the CITY twenty-four (24) hours per day, seven (7) days per week, except for periods of maintenance or repair. Wherever heat generating machines or equipment are used m Premises which affect the temperature otherwise maintained by the air conditioning system, GROWTH GROUP reserves the right to install supplementary air conditioning units in Premises and the cost, operation and maintenance thereof shall be paid by the CITY to GROWTH GROUP at reasonable rates. (c) Nightly Housekeepmg and Janitor Service Monday through Friday in and about Premises. The CITY shall not provide any janitor services without GROWTH GROUP's written consent and then only subject to supervision of GROWTH GROUP and at the CITY's sole responsibility and by janitor contractor or employees at all times satisfactory to GROWTH GROUP. (d) Electrical Current for Standard Building Lighting Fixtures provided by GROWTH GROUP and for ordinary purposes connected with the aforesaid use of Premises. All other electrical consumption by the CITY in Premises, including consumption for lighting fixtures beyond normal building standards shall be paid by the CITY to GROWTH GROUP at reasonable rates. (e) Electrical lighting services and heating and air conditioning for all public areas of Building in the manner and to the extent deemed by GROWTH GROUP to be standard. (f) Passenger Elevator service in common with GROWTH GROUP and other tenants, shall be provided twenty-four (24) hours per day, seven (7) days per week, except for periods of maintenance or repair. 3 • • • • • INTERRUPTION OF SERVICE. GROWTH GROUP does not warrant that any service will be free from interruptions caused by repairs, renewals, improvements, changes of service, alterations, strikes, lockouts, labor controversies, civil commotion, riot, accidents, inability to obtain electncal power, fuel, steam, water, supplies or labor or other cause beyond the reasonable control of GROWTH GROUP No such interruption of service shall be deemed an eviction or disturbance of the CITY's use and possession of Premises or any part thereof, or render GROWTH GROUP liable to the CITY for damages, or relieve the CITY from performance of the CITY's obligations under this Lease. The CITY hereby waives and releases all claims against GROWTH GROUP for damages for interruption or stoppage of service. In the event that by agreement with the CITY, GROWTH GROUP furnishes extra or additional services to be paid for by the CITY, a failure to pay for such services within ten (10) days after the CITY's receipt of written notice thereof shall, ipso facto, authorize GROWTH GROUP, in GROWTH GROUPs discretion and without further notice, to discontinue such services. The CITY's obligation to pay for such additional services shall be deemed additional rental due hereunder and the same shall be subject to all of the provisions pertaining to the payment of rental. Any additional service charges paid by the CITY to GROWTH GROUP for extra or additional services pursuant to this paragraph 8 shall be subject to adjustment in the same manner as the Base Rent as provided for in Paragraph 7 hereof. 9. QUIET POSSESSION: The CITY shall keep and perform all of its covenants of this Lease on the part of the CITY to be performed, and GROWTH GROUP shall guarantee to the CITY the quiet, peaceful and uninterrupted possession of Premises. 10. LAWFUL USES: Premises during the term of the Lease shall be used for the purpose of office space and only and exclusively for lawful purposes, and no part of Premises or improvements thereon shall be used in any manner whatsoever for any purposes in violation of the laws of the United States, the State of Arkansas, or the ordinances and the laws of the City of Fayetteville. • 11. MAINTENANCE OF PREMISES: The CITY is or shall become familiar with Premises, acknowledges that the same are received by the CITY in good state of repair, accepted by the CITY in the condition in which they are now or shall be when ready for occupancy, and that GROWTH GROUP shall not be liable to the CITY or the CITY's agents, employees, invitees or visitors for any injuries, death or damage to persons or property due to condition, design, or defect in building or its mechanical systems or elsewhere in Premises or Buildmg which may now exist or hereafter occur unless the same results from the gross negligence or willful misconduct of GROWTH GROUP. The CITY accepts Premises as suitable for the purposes for which the same are leased and agrees that no representations except such as are. contained herein or endorsed hereon have been made to the CITY respecting the condition of Premises. Notwithstanding the foregoing, GROWTH GROUP shall have the carpets on the Premises cleaned before the CITY takes possession of the Premises. 12. WASTE: The CITY shall not commit or permit any waste to be committed whatsoever. 13. NUISANCES: The CITY shall not create or allow any nuisance to exist in Premises, and that it shall abate any nuisance caused by the CITY that may arise promptly and free of expense to GROWTH GROUP. 14. INVALIDATION OF INSURANCE: The CITY shall not suffer anything to be or remain upon or about Premises which will invalidate any policy of insurance which GROWTH GROUP may now or hereafter have upon Building. 15. INCREASED PREMIUMS. The CITY shall not suffer anything to be or remain upon or about Premises nor carry on nor permit upon Premises any trade or occupation or suffer to be done anything which may render an increased or extra premium payable for the insurance of Premises or Buildmg against fire, casualty, liability or any other insurable causes, unless consented to in writing by GROWTH GROUP and if so consented to the CITY shall pay such increase or extra premium within ten (10) days after the CITY shall have been advised of the amount thereof. • • 16 ALTERATIONS: The CITY shall have the right to make no changes, alterations, floor covering, or additions in Premises until it has first obtained GROWTH GROUP'S approval in writing, which approval shall not be unreasonably withheld. Such changes, alterations, floor covering or additions, when made to Premises by the CITY shall at once become the property of GROWTH GROUP and shall be surrendered to GROWTH GROUP upon termination in any manner of the Lease; but this clause shall not apply to movable fixtures or furniture of the CITY. 17. USE OF BUILDING NAME: The CITY shall not, except to designate the CITY's business address (and then only in a conventional manner and without emphasis or display), use the name E. J. Ball Plaza, Inc., or E. J. Ball Plaza, or any simulation or abbreviation of such name for any purpose whatsoever GROWTH GROUP shall have the right to change the name of the building at any time. The CITY will discontinue using any such name and any simulation or abbreviation thereof for the purpose of designating the CITY'S business address within thirty (30) days after the GROWTH GROUP shall notify the CITY that Building is no longer known by such name. Notwithstanding the provisions herein, the CITY shall be entitled to use the name "E. J. BALL PLAZA" as designating the building in connection with its address and for advertising purposes. 18. SIGNS: The CITY shall not paint, display, inscribe, maintain or affix any sign, picture, advertisement, notice, lettering or direction on any part of the outside, except on hallway doors, of Premises, and then only such name or names or matter and in such color, size, style, character and material as may be first approved by GROWTH GROUP in writing. GROWTH GROUP shall have the right to remove, at the CITY's expense, all matter other than that above provided for without notice to the CITY. 19. DEFACING PREMISES AND OVERLOADING: The CITY shall not place anything or allow anything to be placed near the glass of any door, partition, wall or window which may be unsightly from outside Premises, and the CITY shall not place or permit to be placed any article of any kind on any window ledge or on the exterior walls. Blinds, shades, awnings, or other forms of inside or outside window coverings, or window ventilators or similar devices, shall not be placed in or about the outside windows in Premises except to the extent that the character, shape, color, material and make thereof is 6 approved by the GROWTH GROUP, and the CITY shall not do any painting or decorating in the Premises or make, paint, cut or drill into, or in any way deface any part of Premises or Building without the written consent of GROWTH GROUP. The CITY shall not overload any floor or part thereof in Premises, or any facility in Building or any public corridors or elevators therein while bringing in or removing any large or heavy articles, and GROWTH GROUP may direct and control the locations of safes and all other heavy articles. Furniture and other large or heavy articles may not be brought into Building, removed therefrom or moved from place to place within any portion of Premises or other portion of the Building or its equipment that would exceed the allowable load limits as set forth in rules of Building. 20. REPAIRS• The CITY shall at its costs and expense, repair and replace any damage or injury done to Premises, or Building or any part thereof, caused by the CITY, or its agents, employees, invitees or visitors; and should the CITY fail to make such repairs or replacements within fifteen (15) days of the CITY's receipt of written notice thereof from GROWTH GROUP, GROWTH GROUP may, at its option, make such repairs and replacements and the CITY shall pay the cost thereof to GROWTH GROUP upon demand. 21. SUBLETTING: Neither this Lease, nor any interest therein, nor any estate created hereby shall pass to any trustee or receiver in bankruptcy, or to any other receiver or assigns for the benefit of creditors or otherwise by operation of law. The CITY agrees not to assign, sublet, or in any manner transfer this Lease or any estate or interest therein without the previous written consent of the GROWTH GROUP, or allow anyone to come in with, through or under it without like consent. Consent of the GROWTH GROUP to one assignment of this Lease or to one subletting of the Premises, shall not operate to exhaust GROWTH GROUP'S rights under this paragraph. The CITY shall continue to be liable under said Lease notwithstanding that the GROWTH GROUP has consented to such assignment or subletting 22. ATTORNEY FEES: The CITY shall pay all costs of collection, including reasonable attorney fees, if all or any part of the rent reserved herein is collected after maturity with the aid of any attorney, and also, the CITY shall pay GROWTH GROUP's reasonable attorney fees in the event it becomes necessary for GROWTH GROUP 7 to employ an attorney to force the CITY to comply with any of the covenants, obligations, or conditions imposed by this Lease, and GROWTH GROUP shall pay the CITY's reasonable attorney's fees in the event it becomes necessary for the CITY to employ an attorney to force GROWTH GROUP to comply with any of the covenants, obligations, or conditions imposed by this Lease. 23. RULES OF BUILDING: The CITY shall comply, and cause the CITY's agents, employees, invitees and visitors to comply, fully with all requirements of the rules of Building which may be made by GROWTH GROUP, and any amendments or modifications thereto. The Rules and Regulations of Building are attached hereto as Exhibit A and made a part of this Lease. 24. ENTRY FOR REPAIRS, ETC.: GROWTH GROUP, its officers, agents or representatives shall have the right to enter into and upon Premises at all reasonable times to inspect same or make such repairs or alterations as GROWTH GROUP may deem necessary or desirable. The CITY shall permit GROWTH GROUP at reasonable times to inspect, erect, use and maintain, pipes, ducts, conduits and similar devices in and through Premises, and to make any necessary repairs or alterations. GROWTH GROUP shall be allowed to take all material into and upon Premises that may be required therefore without the same constituting an eviction of the CITY in whole or in part and the rent reserved shall in no way abate while said repairs and maintenance are being made, by reason of loss or interruption of business of THE CITY, or otherwise unless such repairs and maintenance shall render the Premises untenable for a period of three days, in which case the rent shall abate until the Premises are returned to a reasonable state. 25. SURRENDER OF PREMISES. Upon any termination of this Lease, by expiration, lapse of time or otherwise: (a) The CITY shall immediately vacate Premises and surrender Premises to GROWTH GROUP in good order, condition and repair, reasonable wear and tear and casualty damage to be repaired by GROWTH GROUP excepted. (b) The CITY shall surrender all keys of Premises to GROWTH GROUP. 8 • • (c) The CITY grants to GROWTH GROUP full authority and license to enter Premises and take possession thereof (d) All installations, decorations, additions, partitions, hardware, light fixtures, non -trade fixtures and improvements, temporary or permanent, except movable furniture and equipment belonging to the CITY, in or upon Premises, whether placed there by the CITY or GROWTH GROUP, shall be GROWTH GROUP's property and shall remain upon Premises, all without compensation, allowance or credit to the CITY. 26. RIGHTS RESERVED TO GROWTH GROUP: GROWTH GROUP shall subject to the CITY's right to abate rent in the event Premises are rendered untenable for more than three (3) days as set in Paragraph 6 of the Rider hereto, have the following rights exercisable without notice unless expressly set forth herein and without liability to the CITY for damage or injury to property, persons or business (all claims for damage therefore being hereby released by the CITY), and without effecting an eviction or disturbance of the CITY's use of possession or giving rise to any claim for setoffs: (a) To name the building and change the name or street address of the building (b) To install and maintain signs on the exterior and interior of the building. (c) To designate all sources furnishing sign painting and lettenng, ice, mineral or drinking water, beverage, foods, towels, vending machines, or toilet supplies used or consumed on Premises, and the CITY shall not place any vending or dispensing machines of any kind in or about Premises without the prior written consent of GROWTH GROUP. (d) To retain at all times, and to use in emergency instances, keys to all doors within and into Premises With the express exception of the Server Room, the CITY shall not replace any locks without the prior written consent of GROWTH GROUP. (e) To decorate, remodel, repair, alter or otherwise prepare Premises for re -occupancy during the last six months of the term hereof, if during or prior to such time the CITY vacates the Premises, or at any time after the CITY abandons Premises. 9 • • (0 Upon not less than 24 hour advance written notice, to enter Premises at reasonable hours to make inspections or to exhibit Premises to prospective tenants, purchasers, or others or for other reasonable purposes, except in emergencies then Lessor can enter at anytime. The Server Room is expressly exempt from this provision. (g) To have access to all mail chutes according to the rules of the United States Postal Office (h) To require all persons entermg or leaving Building, during such hours as GROWTH GROUP may from time to time reasonably determine, to identify themselves to watchman by registration or otherwise and to establish their right to enter or leave, and to exclude or expel any peddler, solicitor or beggar at any time from Premises or Building. (i) To approve the weight, size and location of safes, computers (other than desk top models), and other heavy articles in and about Premises and building and to require all such items and other office furniture and equipment to be moved in and out of building and Premises only at such times and in such manner as GROWTH GROUP shall direct and in all events at the CITY's sole risk and responsibility. (j) To decorate and to make at any time or times, at its own expense, repairs, alterations, additions and improvements, structural or otherwise, in or to Premises, Building or part thereof as GROWTH GROUP may deem necessary or desirable and to perform any acts related to the safety, protection or preservation thereof, and during such operations to take into and through Premises or any part of Building all material and equipment required; and to close or temporarily suspend operation of entrances, doors, corridors, elevators or other facilities, provided that GROWTH GROUP shall cause only such inconveniences or annoyance to the CITY as is reasonably necessary in the circumstances. (k) To do or permit to be done any work in or about Premises or Building or any adjacent or nearby building, land, street, or alley. (1) To grant to anyone the exclusive right to conduct any lawful business or render any lawful service in Building. 10 • (m) To close Building at 6:00 p.m. or at such other reasonable time as GROWTH GROUP may determine, subject, however, to the CITY's right to admittance 24 hours a day, seven days a week, under such regulations as shall be prescribed from time to time by GROWTH GROUP. (n) To designate and approve, prior to installation, all types of window shades, blinds, drapes, awnings, window ventilators and other similar equipment, and to control all internal lighting that maybe visible from the exterior of Building. (o) To have and retain a paramount title to Premises free and clear of any act of the CITY. 27. DEFAULT: The following events shall be deemed to be events of default by THE CITY under this Lease: (a) The CITY shall fail to pay any installment of rent hereby reserved and such failure shall continue for a period of ten days after the CITY's receipt of written notice thereof from GROWTH GROUP. (b) The CITY shall fail to comply with any term, provision or covenant of this Lease, other than the payment of rent, and shall not cure such failure within fifteen days after the CITY's receipt of written notice thereof (c) The CITY or any guarantor of the CITY's obligations shall make an assignment for the benefit of creditors. (d) The CITY shall file a petition under any section or chapter of the Bankruptcy Codes, 11 USC §101 et seq, as amended, or under any similar law or statute of the United States or any State thereof, or the CITY or any guarantor of the CITY's obligations shall be adjudged bankrupt or insolvent in proceedings filed against the CITY or any guarantor of the CITY's obligations thereunder and such adjudication shall not be vacated or set aside or stayed within the time permitted by law. (e) A receiver or trustee shall be appointed for all of or substantially all of the assets of the CITY and such receivership shall not be terminated or stayed within the time permitted by law. 11 • • (f) The CITY shall desert or vacate any substantial portion of Premises. Upon the occurrence of any of such events of default, GROWTH GROUP shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever; provided, however, that GROWTH GROUP's actions shall at all times comply with all applicable state and municipal laws, rules and regulations. (a) Terminate this Lease, in which event the CITY shall immediately surrender the Premises to GROWTH GROUP, and if the CITY fails to do so, GROWTH GROUP may without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession and expel or remove the CITY and any other person who may be occupying Premises or any part thereof, without being liable for prosecution or any claim of damages therefore, and the CITY agrees to pay to GROWTH GROUP the amount of all loss and damage which GROWTH GROUP may suffer directly by reason of such termination. (b) Enter upon and take possession of the Premises and expel or remove the CITY and any other person who may be occupying Premises or any part thereof, without terminating this lease, make such alterations and repairs as may be necessary in order to relet the Premises, and relet the Premises or any part thereof for such term and at such rental and upon such other terms and conditions as GROWTH GROUP in its sole discretion may deem advisable; upon each such reletting all rentals received by GROWTH GROUP from such reletting shall be applied: First, to the payment of any indebtedness other than rent due hereunder from the CITY to GROWTH GROUP; second, to the payment of any costs and expenses of such reletting including brokerage fees and attorney's fees and costs of such alterations and repairs; third, to the payment of any rent due and unpaid hereunder; and the residue, if any, shall be held by GROWTH GROUP and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month shall be less than the rent to be paid during that month by the CITY hereunder, the CITY shall pay any such deficiency to GROWTH GROUP upon demand. No such reentry or taking possession by GROWTH GROUP shall be construed as an election on its part to terminate this lease unless a written notice of such intention shall be given to the CITY; and any attempt by GROWTH GROUP to mitigate its claim for damages against the 12 • • CITY by reletting the Premises shall not be construed as a waiver of its right to damages under this section. (c) Enter upon Premises by force if necessary without being liable for prosecution or any claim for damages therefore, and do whatever the CITY is obligated to do under the terms of this Lease; and the CITY agrees to reimburse GROWTH GROUP on demand for any expenses GROWTH GROUP may incur in thus effecting compliance with the CITY's obligations under this Lease. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided, or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to GROWTH GROUP hereunder or of any damages accruing to GROWTH GROUP by reason of the violation of any of the terms, provisions and covenants herein contained. No waiver by GROWTH GROUP of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions, and covenants herein contained. Forbearance by GROWTH GROUP to enforce one or more of the remedies herein provided upon any event of default shall not be deemed or construed to constitute a waiver of such default. 28. ESTOPPEL CERTIFICATE BY THE CITY: From time to time, upon not less than ten (10) days' pnor request by GROWTH GROUP, the CITY shall execute and deliver to GROWTH GROUP a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and certifying the modifications), (b) the dates to which the rent and other charge have been paid, and (c) that so far as the person making the certificate knows, GROWTH GROUP is not in default under any provision of this Lease. 29. SUBORDINATION OF LEASE: The rights of the CITY under this Lease shall be and are hereby made subject and subordinate at all times to the lien of any mortgage or mortgages (or trust indentures) now or hereafter in force against the land, Building, the fee or the underlying leasehold estate, if any, and to all renewals, modifications, consolidations, replacements and extensions thereof; and to all advances made or hereafter to be made upon the security thereof, and the CITY shall execute such further instruments subordinating this Lease to such lien as shall be requested by 13 • • GROWTH GROUP. The CITY agrees in the event of any proceedings are brought for the foreclosure of any such mortgage to attom to the purchaser upon any such foreclosure sale and to recognize such purchaser as GROWTH GROUP under this Lease. The CITY agrees to execute and deliver at any time and from time to time upon the request of the GROWTH GROUP any instrument which may be reasonably necessary or appropriate in any such event to evidence such attormnent. The CITY further waives the provisions of any statute or law now or hereafter in effect which may give or purport to give the CITY any right to terminate or otherwise adversely affect this Lease in the event any such foreclosure proceeding is brought. 30. RENEWAL OR AMENDMENT: No renewal or amendment of this Lease shall be binding on either party unless it be in writing and signed by GROWTH GROUP and the CITY. 31. WAIVER OR BREACH: No waiver of a breach of any of the covenants of this Lease shall be construed to be a waiver of any succeeding breach of the same or any other covenant 32. HOLDING OVER: No holding over by the CITY after the term of this Lease, or any renewed term either with or without consent and acquiescence of GROWTH GROUP shall operate to extend Lease for a longer period than one month. Any holding over with consent of GROWTH GROUP shall thereafter constitute this Lease a lease from GROWTH GROUP's consent after expiration or termination, the CITY shall pay as liquidated damages one hundred fifty percent (150%) of the rent for said holdover period. 33. COVENANTS TO RUN TO HEIRS, ETC.: All covenants, conditions agreements and undertakings in this Lease contained shall extend and inure to the benefit of GROWTH GROUP and its successors and assigns and, subject to paragraph 21 hereof and paragraph 11 of the Rider hereto, to the successors and assigns of the CITY the same as if they were in every case named and expressed; and except as herein otherwise provided, all said covenants, conditions and agreements shall be binding upon the successors and assigns of the respective parties. 14 • • 34. DAMAGE BY FIRE OR OTHER CASUALTY: If any part of Premises or a material portion of Building in which Premises are located which affects the CITY's occupancy is rendered untenable by fire or other casualty, GROWTH GROUP may elect (a) to terminate this Lease as of the date of the fire or casualty by notice to the CITY within sixty (60) days after the date of fire or casualty or (b) to repair, restore or rehabilitate Building or Premises at GROWTH GROUP's expense, in which event this Lease shall not terminate but rent shall be abated on per diem basis while Premises are untenable pro rated for that portion of the CITY's Premises that are untenable. If GROWTH GROUP elects so to repair, restore or rehabilitate Building or Premises, said work shall be undertaken and prosecuted with all due diligence and speed. In the event of termmation of the Lease pursuant to this paragraph, rent shall be apportioned on a per diem basis and paid to the date of the fire or casualty. 35. CONDEMNATION: If the land or building, or any part thereof, or any interest therein, be taken by virtue of eminent domain or for any public or quasi -public use or purpose, GROWTH GROUP shall have the right to terminate this Lease at the date of such taking or within six (6) months thereafter by giving the tenant sixty (60) days' prior notice of the date of such termination. Any interest which the CITY may have or claim to have in any award resulting from any condemnation proceedings shall be limited to the unamortized value or any permanent improvements to the structure of Building paid for by the CITY and any claim for furniture or fixtures of any nature whatsoever shall be excluded. 36. NOTICES: Any notice required or desired to be given in connection with this Lease shall be in writing sent by certified or registered mail, postage prepaid. Such notice to GROWTH GROUP shall be sent to E. J. Ball Plaza, Inc., P. 0. Box 17, Fayetteville, Arkansas, 72702. 37. LATE PAYMENT PENALTY: A late payment charge of 11/2% per month will be charged on the unpaid balance of all overdue accounts, or the maximum allowed by law, whichever is less. Penalty to attach if not paid by fifth of the month. 39. TIME. Time is of the essence regarding this Lease. 15 • 40. RECORDING: This Lease shall not be recorded. Should either party deem it essential that said Lease be recorded, then the parties agree to execute in duplicate originals for recording only a "Short Form Lease" which shall not exceed two pages. 41. CAPTIONS: The captions used in this Lease are for convenience only and do not in any way limit or amplify the terms and provisions hereof. 42. ENTIRE AGREEMENT: This Lease contains the entire agreement of the parties hereto with respect to the matters contained herein and no other representations, inducements, promises or agreements, oral or otherwise, have been made between the parties. Submission of the Lease for exammation does not constitute a reservation of or option for Premises. This Lease becomes effective only upon execution and delivery by both GROWTH GROUP and the CITY. All exhibits and riders attached to this Lease and initialed by GROWTH GROUP and the CITY are incorporated into and made a part of this Lease. 43. RIDER: GROWTH GROUP and the CITY have, on the date aforesaid, executed the Rider attached hereto and fully incorporate herein by reference. IN TESTIMONY WHEREOF, the above named GROWTH GROUP and the above named CITY OF FAYETTEVILLE have executed this instrument in duplicate originals on the day and year set forth in Paragraph 1 of this Lease. GROWTH BUILDING By J. CHELL MASSEY Managing Member By: By: S CITY OF FAYETTEVILLE DAN COO Mayor ATTEST: 16 242 dra E. Smith, City Clerls/Treasurer' i %TON �c,0%` • EXHIBIT "A" RULES The following regulations govern occupancy of E. J. Ball Plaza: 1. No mechanical machinery, steam engine, boiler or stove may be operated without the written consent of GROWTH GROUP. This Lease and these Rules, when executed, shall constitute GROWTH GROUP's wntten consent for the CITY to install a fire suppression system, and an emergency Back-up Generator. 2. GROWTH GROUP shall have the right to prescribe the weight and position of safes, computers and other heavy equipment which shall, in all cases, in order to distribute their weight, stand on supporting devices approved by GROWTH GROUP. All damage done to the Building by placing in or taking out any property of the CITY while in the Building shall be repaired promptly at the expense of the CITY. 3. Should the CITY require telegraphic, telephonic, annunciator or other communication services, GROWTH GROUP shall direct where and how wires are to be introduced and placed and none shall be introduced or placed except as GROWTH GROUP shall direct. GROWTH GROUP and the CITY shall coordinate the introduction and placement of the required fiber connection to the Premises. 4. No inflammable or explosive article may be brought into or stored in the Building. the CITY may not use oil, burning oil, burning fluid, kerosene, gasoline, or other fuels in the Building. 5. Food for consumption in the Building will not be prepared, nor facilities for the preparation of food installed, without written consent of GROWTH GROUP. Leased Premises will not be used for housing, lodging, sleeping or any immoral or illegal purposes. 6. Musical instruments and sound producing equipment may not be used inside or outside the Premises in a manner such that they may be heard outside the leased Premises. 7. The CITY will not permit odors or objectionable noise to emanate from the leased Premises. 17 • 8. The CITY will not disturb, solicit or canvass any occupant of the Building and shall cooperate with GROWTH GROUP to prevent such activities. 9. The CITY shall store all its trash and garbage within its Premises. No tenant shall accumulate trash within the Premises, and the Premises shall be subject to periodic inspection by local Fire Department officials. No material shall be placed in the trash boxes or receptacles if such material is of such nature that it may not be disposed of in the ordinary and customary manner of removing and disposing of trash and garbage m the City of Fayetteville without being in violation of any law or ordinance governing such disposal. All garbage and refuse disposal shall be made only through entryways and elevators provided for such purposes and at such times as GROWTH GROUP shall designate. 10. GROWTH GROUP reserves the right to exclude from the Building between the hours of 6:00 p.m. and 8.00 a.m. on week days and all day on Sunday and legal holidays all persons not possessing a pass to the Building signed by the CITY. The CITY is responsible for all persons to whom they issue such passes and shall be liable to GROWTH GROUP for all acts of such persons. 11. The CITY shall install biometric locks, limiting access to the Server Room and other sensitive areas of the Premises.. 12. GROWTH GROUP will provide and maintain in the lobby of the Building an alphabetical directory board of the tenants and no other directory shall be permitted without previous consent in writing by GROWTH GROUP. 13. None of the entries, passages, doors or hallways shall be blocked or obstructed, or any rubbish, litter, trash or material of any nature placed, emptied or thrown into these areas, or such areas be used at any time except for access or egress by the CITY, the CITY's agents, employees or invitees. 14. No portion of Premises or any other part of the Building shall at any time be used or occupied as sleeping or lodging quarters. 15. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed, no foreign substance of any kind whatsoever shall be thrown therein and the expense of any breakages, stoppage or damage resulting from the violation of this rule shall be borne by the CITY who or whose employees or invitees shall have caused it 18 • • 16. No bicycle, vehicle of any type, dog (except in the company of a blind person) or any other animal or bird may be brought into the Building 17. The CITY is granted permission to install a wireless point-to- point antenna 18. No other radio or television antennas may not be installed on the roof, outside of the Building, or in any other part of the Building other than inside the leased Premises. Signs may not be installed on the outside of the Building. All interior signs must be approved by GROWTH GROUP prior to installation. 19. The CITY will not use any illumination or power any equipment from a source other than that provided by GROWTH GROUP, with the express exception of the emergency back-up generator referenced above. 20. With the express exception of the fiber connection referenced above, no wires, cables, or lines may be brought into the leased Premises nor may any electrical device be operated which may emanate electrical waves capable of interfenng with radio or television reception in or broadcasting from the Building. 21. Movement in or out of the Building of furniture, office equipment or other bulky materials, or movement through Building entrances or lobby shall be restricted to hours designated by GROWTH GROUP. All such movement shall be under supervision of GROWTH GROUP and in the manner agreed in writing between the CITY and GROWTH GROUP by prearrangement before performance. Such prearrangement initiated by the CITY will include determination by GROWTH GROUP and subject to his decision and control of the time, method and routing of movement, limitations imposed by safety or other concerns which may prohibit any articles, equipment or any other item from being brought into the Building. The CITY is to assume all risk as to damage to articles moved and injury to persons or public engaged or not engaged in such movement, including equipment, property and personnel of GROWTH GROUP if damaged or injured as a result of acts in connection with carrying out this service for the CITY from time of entering property to completion of work; and GROWTH GROUP shall not be liable for acts of any person engaged in, or damage or loss to any of said property or persons resulting from any act in connection with such service performed for the CITY and the CITY hereby agrees to indemnify and hold harmless GROWTH GROUP from and against any such damage, injury or loss, including attorney's fee, unless such loss is caused by the gross negligence or willful misconduct of GROWTH GROUP. 19