HomeMy WebLinkAbout147-10 RESOLUTIONRESOLUTION NO. 147-10
A RESOLUTION APPROVING A LEASE AGREEMENT WITH OZARK
ASSET MANAGEMENT GROUP, INC. FOR THE LEASE OF 89 PARKING
SPACES ON THE FIRST LEVEL OF THE FAYETTEVILLE MUNICIPAL
PARKING GARAGE AT 25 E. MEADOW STREET
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 agreement, a copy of which is attached as Exhibit "A," with Ozark Asset Management
Group, Inc. for the lease of eighty-nine (89) parking spaces on the first level of the Fayetteville
Municipal Parking Garage at 25 E. Meadow Street.
PASSED and APPROVED this 3`d day of August, 2010.
APPROVED:
By:
ATTEST:
By:
andiA. amiAtk
SONDRA E. SMITH, City Clerk/Treasurer
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AGREEMENT
This Agreement, made and entered into this 104day of cJ cc.,C , 2010, by and
between the City of Fayetteville, Arkansas, a Municipal Corporation, 113 W. Mountain St.,
Fayetteville, Arkansas, and Ozark Asset Management Group Inc., 25 Oxford Drive, Rogers,
Arkansas 72758.
WITNESSETH:
The City of Fayetteville, for and in consideration of the rents hereinafter reserved, and of the
covenants and agreements hereinafter set forth, to be kept and performed by Ozark Asset
Management Group Inc., and Ozark Asset Management Group Inc. does hereby lease from the City
of Fayetteville, that parcel of land situated in the County of Washington and State of Arkansas, and
more particularly described as:
Eighty-nine (89) parking spaces located in the first level of a multi-level
parking deck located upon real property more particularly described as:
A part of Block numbered Fifteen (15) in the original plat of the City of
Fayetteville, Arkansas, described as follows: Beginning at a point 127 feet
west of the northeast corner of said Block Fifteen; and running thence west
177 feet; thence south 206 feet; thence east 177 feet; thence north 206 feet to
the place of beginning.
Said parcel of land and parking spaces hereinafter referred to as the "Leased Premises."
1. Term of Lease. The term of this Lease shall be for a period of one (1) year, with an
automatic annual renewal for up to four (4) additional years, commencing on the date of
execution hereof.
2. Right of First Refusal. If at any time during the term of this Lease the City of Fayetteville
receives an acceptable bona fide offer to purchase the Leased Premises, or any part thereof,
the City of Fayetteville shall submit a written copy of such offer to Ozark Asset Management
Group Inc. giving Ozark Asset Management Group Inc. thirty (30) days within which to elect
to meet such offer.
3. Parking Spaces. This Lease shall be for the entire first level of the Leased Premises
consisting of eighty-nine (89) parking spaces of the Fayetteville Municipal Parking Deck
located at 25 E. Meadow Street.
4. Rent. Ozark Asset Management Group Inc. shall pay to the City of Fayetteville as rent for
the Leased Premises the following:
a. The sum of fifty dollars ($50.00) per month per parking space rented on the first level
of the Leased Premises.
b. The monthly rental shall be payable in consecutive monthly installments payable in
advance on or before the first day of every calendar month.
5. Deposit. Ozark Asset Management Group Inc. shall pay to the City of Fayetteville a deposit
in advance equal to two (2) months rent. Deposit must be paid to the City of Fayetteville
within five (5) business days upon execution of this Agreement. Upon termination of this
Agreement, the deposit shall be applied to any outstanding balance due and the remainder
returned to Ozark Asset Management Group Inc. within forty-five (45) days after termination
of Agreement.
6. Use. Ozark Asset Management Group Inc. and their subtenant or occupants shall have the
right to use the Leased Premises for parking only; any other use of the Leased Premises must
be pre -approved by the City of Fayetteville which shall meet all present and future building
codes, zoning and other laws.
7. Repairs. The City of Fayetteville shall, during the term of this Lease and any renewal or
extension thereof, at its sole expense, keep the Leased Premises in as good order and repair as
it is at the date of the commencement of this Lease, reasonable wear and tear and damage by
accidental fire or other casualty not within the control of City of Fayetteville excepted.
Ozark Asset Management Group Inc. shall not knowingly commit or willfully permit to be
committed on the Leased Premises any act or thing contrary to the rules and regulations
prescribed from time to time by either federal, state or municipal authority.
8. Casualty. If at any time the Leased Premises or the building which forms the principal
component of the Leased Premises should be damaged by fire or any major casualty to the
fault of the Lessee and the cost of repairing the damage does not exceed 35% or the value of
the improvements of the premises herein leased or the building which forms the principal
component part of the Leased Premises, then Lessor shall as soon as reasonably practical
repair the damage cased by said fire or other casualty. If, however, the damage should
exceed 35% of the value of the improvements of the premises herein leased or the building
which forms the principal component part of the Leased Premises, the Lessor shall have the
option of either repairing said premises or terminating this Lease as of the date of said fire or
other casualty by notice to lessee within thirty (30) days after said date. If the damages
should render the Leased Premises untenantable for the use of Lessee's business as set forth
herein, the rental from the date of said fire, or any major casualty not the fault of the Lessee,
to the date of the completion of the restoration of the premises shall be abated, such
abatement being figured on a pro rata basis of the rentals, herein provided.
In the event the damage should exceed 35% of the value of the improvements of the premises
herein leased or the building which forms the principal component part of the Leased
Premises and the City of Fayetteville makes the decision not to repair the Leased Premises
such a decision must be submitted in writing to Ozark Asset Management Group Inc.. Upon
receipt of the notice from City of Fayetteville Ozark Asset Management Group Inc. has thirty
(30) days to elect either, or both, of the following options:
a. To purchase the entire Leased Premises from City of Fayetteville at its then fair
market value and/or,
b. To repair the Leased Premises at Ozark Asset Management Group Inc.'s sole and
exclusive expense with all terms of the Lease Agreement, except for abatement of
rent provided for herein, continuing in effect.
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9. Lighting and Painting. City of Fayetteville shall, during the term of this Lease and any
renewal or extension thereof, at its sole expense, keep, in the same manner as it is as of the
date of the commencement of this Lease, the Leased Premises lighted, have all parking
spaces properly striped and the premises painted.
10. Parking Equipment. City of Fayetteville shall, during the term of this Lease and any renewal
or extension thereof, at its sole expense, provide revenue control and access equipment for
the Leased Premises. This equipment shall include parking gates, parking card readers, and
automatic revenue control machines located at the entrance of the parking deck.
11. Parking Management Services. The City of Fayetteville shall provide services to manage the
municipal parking deck located directly east of Ozark Asset Management Group Inc. This
service shall include the following:
a. Provide parking revenues and access control equipment for both levels of Leased
Premises.
b. Program parking cards and distributing them to Ozark Asset Management Group
Inc.; activate and deactivate parking cards as requested by Ozark Asset Management
Group Inc.
c. Provide routine maintenance on gates, card readers, revenue control machines, etc.
Expenses incurred for maintenance on equipment shall be borne by the City of
Fayetteville, unless damages for required repairs were directly caused by Ozark Asset
Management Group Inc. and/or its employees.
d. Provide a minimum of four (4) hours of cleaning services per week; cleaning services
include sweeping; blowing; vacuuming; spot washing of soft drinks, mud, or other
spills; and the emptying of trash containers into the dumpster.
e. Retrieve revenues from revenue control machines no less than twice per month.
f. Frequently service the revenue control machines to ensure quarter hoppers have
sufficient coins to make change to customers. City staff will take sufficient amount
of money from the revenues collected in order to purchase enough quarters and dollar
coins to keep revenue machines fully operational. One hundred percent (100%) of
the revenues collected, less monies used to replenish quarter and dollar coin hoppers,
will be deposited into the City's account; a check will be issued to Ozark Asset
Management Group Inc. for one hundred percent (100%) of the total revenues, less
monies used to replenish quarter and dollar coin hoppers and/or cost to replenish
parking cards. This revenue shall be reimbursed to Ozark Asset Management Group
Inc. within forty (45) days of receipt of monies collected.
g. Provide accounting of all revenues received through the revenue control machines on
a monthly basis; provide audit statements of revenues collected to Ozark Asset
Management Group Inc. on a monthly basis.
h. All expenses incurred for the purchase of equipment and supplies for the operations
of the deck shall be borne by the City of Fayetteville. All purchases shall be initiated
by the City of Fayetteville.
i. The City agrees to allocate parking cards only to Ozark Asset Management Group
Inc. and employees of the Parking Management Division for purposes of executing
parking services.
j. Ozark Asset Management Group Inc. may reallocate parking cards to a second party
as they deem necessary; however, Ozark Asset Management Group Inc. may not
resell parking spaces for a greater amount than that paid by Ozark Asset Management
Group Inc. to the City of Fayetteville as set forth in this contract.
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12. Tenant Responsibilities. Ozark Asset Management Group Inc. shall provide the following:
a. Reimburse the City of Fayetteville for cost of all parking cards provided for access
into the Leased Premises. The City of Fayetteville shall bill Ozark Asset
Management Group Inc for all parking cards issued to Ozark Asset Management
Group Inc. at the actual cost of the cards plus applicable sales tax. The City of
Fayetteville shall have the option to bill Ozark Asset Management Group Inc. for this
cost, or may deduct the cost directly from the money collected from the revenue
control machines. If invoiced, Ozark Asset Management Group Inc. shall submit
payment within thirty (30) days of invoice date to the City of Fayetteville.
b. Provide advance notification and post signage at the Leased Premises at least forty-
eight (48) hours in advance prior to any parking area closure on Leased Premises.
c. Provide advance notification at least forty-eight (48) hours in advance to the City of
Fayetteville when gates need to be programmed to open/close for special events or
any other reason.
13. Insurance. Ozark Asset Management Group Inc. shall be solely responsible for insuring its
interests in the Leased Premises and improvements for its protection.
14. Taxes. The City of Fayetteville shall pay all real estate taxes and special assessments, if any,
during the term of the Lease.
15. Utilities/Janitorial. The City of Fayetteville shall pay for all utility service and janitorial
service in the Leased Premises.
16. Nuisance. Ozark Asset Management Group Inc. covenants and agrees that Ozark Asset
Management Group Inc. will not use or allow the Leased Premises to be used for any purpose
or in any manner which would constitute or create a nuisance, which would constitute waste,
which would interfere with the lawful rights of owners, Ozark Asset Management Group Inc.
or occupants to adjoining property or which would in any way be contrary to the law,
ordinances, orders, rules, regulations or requirements of the federal, state, county or
municipal governments or any department, board or bureau thereof. Ozark Asset
Management Group Inc. further agrees that Ozark Asset Management Group Inc. will
promptly comply with the requirements of any of the aforesaid authorities with reference to
the installation, erection, construction, use, repair or modifications or any improvements
situated upon the Leased Premises during the term of this Lease.
17. Holding Over. Any occupancy by Ozark Asset Management Group Inc. of the Leased
Premises beyond the expiration of this Lease as herein provided shall be a tenancy from
month to month.
18. Notices. All notices, demands and requests provided for or permitted to be given under this
Agreement must be in writing and shall be deemed to have been properly given or served by
depositing the same in the United States Mail, addressed to the City of Fayetteville or to
Ozark Asset Management Group Inc., as the case may be, prepaid and certified mail, return
receipt requested, at the party's last known address. All notices, demands and requests shall
be effective seventy-two (72) hours after being deposited in the United States Mail.
Rejection or other refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice, demand or request.
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Either party shall have the right from time to time and at any time upon at least ten (10) days
written notice thereof, to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America.
19. Legal Representatives, Successors and Assigns. It is further covenanted and agreed by and
between the City of Fayetteville and Ozark Asset Management Group Inc., that all covenants,
agreements, provisions, conditions and undertakings in this Lease contained shall extend to
and be binding upon the heirs, executors, successors and assigns of the respective expressed,
and shall be construed as covenants and conditions running with the land and the reversion;
and that wherever in this Lease reference is made to either the City of Fayetteville or Ozark
Asset Management Group Inc. hereto, it shall be held to include and apply to (wherever and
whenever applicable) the heirs, executors, successors, personal or legal representatives and
assigns of the City of Fayetteville or Ozark Asset Management Group Inc., the same as if in
each and every case so expressed.
20. Condemnation. If during the term of this Lease, or any renewal thereof, all or substantially
all of the Leased Premises shall be taken or condemned by a competent authority for any
purpose or use, then the Lease shall terminate immediately after the vesting of title in such
authority and rent shall be paid to and adjusted as of that day. The term "all or substantially
all" shall be deemed to mean a taking of all of the Leased Premises or a taking of such
portion of the Leased Premises that Ozark Asset Management Group Inc. cannot reasonably
operate in the remainder in substantially the same manner as before.
21. Right Upon Default. Whenever Ozark Asset Management Group Inc. shall do either of the
following:
a. Default in the payment of any installment of monthly rent and continue in default for
thirty (30) days after the City of Fayetteville gives Ozark Asset Management Group
Inc. written notice specifying the default; or
b. Fails to timely pay monthly rental payments for two (2) or more months during any
consecutive twelve (12) month period during the term of this lease may, at the
discretion of the Lessor constitute default.
c. Default in any other covenant of Ozark Asset Management Group Inc. in this Lease
and fail to commence (subject to unavoidable delay) to take steps to remedy same
within twenty (20) days after the City of Fayetteville gives Ozark Asset Management
Group Inc. written notice specifying same; then the City of Fayetteville may
terminate this Lease upon ten (10) days written notice of their intent to so terminate,
provided the termination shall not be allowed if either of the following provisions are
complied with during the notice period or at any prior time:
i. Ozark Asset Management Group Inc. proceeds to cure same or takes
remedies to cure same; or
ii. Ozark Asset Management Group Inc. contests the amount claimed to be due
or any other item for which an amount could be estimated (definite or
estimated), and Ozark Asset Management Group Inc. deposits the contested
amount in an escrow account with instructions to the escrow agent to disburse
the amount in accordance with the written agreement of Ozark Asset
Management Group Inc. and the City of Fayetteville or in accordance with
the order of a court exercising jurisdiction over the controversy.
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22. Termination. Either party shall be permitted to terminate this Lease Agreement without
cause at any time during the Term of the Lease provided that the terminating party provides
the other party with sixty (60) days advance notice of said termination. Such notice must be
in compliance with the Notice requirements set forth herein.
23. Assignability. Ozark Asset Management Group Inc. shall not, without the written consent of
City of Fayetteville, assign this Lease, or any rights thereunder, or sublet any part of the
Leased Premises, provided however, Ozark Asset Management Group Inc. is authorized to
assign this Lease as part of any sale of the hotel that is located adjacent to the Leased
Premises provided that, at the time of the closing of the sale, it is the intention of the
purchaser to continue to operate the purchased improvements as a hotel. Upon any
assignment of this lease by Ozark Asset Management Group Inc. Ozark Asset Management
Group Inc. is released and discharged from any further obligations or liabilities it has
hereunder and any assignee of Ozark Asset Management Group Inc. shall have all rights
belonging to Ozark Asset Management Group Inc. under this Lease.
24. Entire Agreement. All previous negotiations and understandings between the City of
Fayetteville and Ozark Asset Management Group Inc., or their respective agents and
employees, with respect to the Lease Agreement set forth herein are merged in this Lease
Agreement which alone fully and completely expresses the parties' rights, duties and
obligations.
25. Amendments. No waivers, alterations or modifications of this Lease shall be valid unless
written upon or attached to the fully executed copies of this Lease and further executed by
both the City of Fayetteville and Ozark Asset Management Group Inc. herein.
26. Binding. This Lease shall be binding upon the parties and upon their heirs, successors and
assigns. This Lease shall be construed under the laws of the State of Arkansas.
IN WITNESS WHEREOF, the City of Fayetteville and Ozark Asset Management Group Inc.
have executed this Agreement on or as of the date first written above.
ATTEST:
CIT PF FAYE ' ' ILLE
ONELD JO , Mayor
S 0 NDRA SMITH, City Clerk
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OZARK ASSET MANAGEMENT GROUP INC.
Bv:
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Brian Ferguson, President
Sharon Waters
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
8/3/2010
City Council Meeting Date
Agenda Items Only
Parking Management
Division
Action Required:
Transportation Services
Department
An Resolution approving a Lease Agreement with Ozark Asset Management Group, Inc. for the lease of 89 parking
spaces in the first level of the Fayetteville Municipal Parking Garage located at 25 E. Meadow Street.
(53,400.00)
Cost of this request
2130-0913-4426-10
Account Number
Project Number
Budgeted Item
X
Category / Project Budget
Parking Deck Revenue
Program Category / Project Name
Parking Management
Funds Used to Date Program / Project Category Name
Off -Street Parking
Remaining Balance Fund Name
Budget Adjustment Attached
7-/s- /0
Date
744-07
Date
2.0 tO
Finance and Internal Services Director Date
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Received in City C 7-16-10A11* 2 R C V D
Clerk's Office
Comments:
Revised January 15, 2009
'Fayetteville
ARKANSAS
www.accessfayetteville.org
CITY COUNCIL AGENDA MEMO
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
To: Mayor and City Council
Thru:
Don Marr, Chief of Staff
Terry Gulley, Director of Transportatio ) f
From: Sharon Waters, Parking and Telecom Manager
Date: July 14, 2010
Subject: Resolution Approving Parking Lease Agreement with Ozark Asset Management Group, Inc.
PROPOSAL:
City staff recommends the approval of a Parking Lease Agreement with Ozark Asset Management Group, Inc.
for a term of one (1) year, with automatic annual renewal for up to four (4) additional years for the use of 89
parking spaces in the first level of the Municipal Parking Garage located at 25 E. Meadow Street.
BACKGROUND
The City entered into the original Lease Agreement with The Hilton Hotel on October 16, 1990 to lease 178
parking spaces on the first and third levels of the Municipal Parking Garage. The latest renewal of this
Agreement occurred on June 20, 2006 with the Radisson Hotel Fayetteville, which later transferred through
assignment to the Cosmopolitan Hotel Ventures, Inc. In September 2009, the hotel fell delinquent on their
payment of the parking lease. The City took back possession of the third level of the deck and entered into an
amendment to the Lease Agreement that would reduce the lease to the first level only, and set up a payment
plan to help them get current on their bill. The hotel started out $49,054.30 past due, and has paid in
accordance to the amended contract until June. On June 16, they defaulted on the agreement again and now
have an outstanding balance of $17,110.80. In June, the Cosmopolitan Hotel went into receivership and was
taken over by Ozark Asset Management Group, Inc. They solicited a Lease Termination Agreement from the
previous owners have now requested that the City enter into a Lease Agreement with them for the spaces.
DISCUSSION:
In the new Lease Agreement, we added a requirement of two (2) months deposit payable upon execution of the
Agreement. The spaces are used primarily by their hotel guests who have access into the first level with an
access card provided by the hotel. The general public may also use this parking area by paying $4.00 upon
entry. The city staff retains service and control of all the parking equipment and revenue control machines.
The hotel will lease the first level of the parking garage and retain all parking revenues collected from the
machines. This is the same agreement that the City currently has with the Fayetteville Town Center.
BUDGET IMPACT:
The first level of the parking deck rents for $50.00 per space per month. The lease of the 89 spaces on the first
level will generate $53,400.00 in parking revenues per year.
RESOLUTION NO.
A RESOLUTION APPROVING A LEASE AGREEMENT WITH OZARK
ASSET MANAGEMENT GROUP, INC. FOR THE LEASE OF 89 PARKING
SPACES ON THE FIRST LEVEL OF THE FAYETTEVILLE MUNICIPAL
PARKING GARAGE AT 25 E. MEADOW STREET
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 agreement, a copy of which is attached as Exhibit "A," with Ozark Asset Management
Group, Inc. for the lease of eighty-nine (89) parking spaces on the first level of the Fayetteville
Municipal Parking Garage at 25 E. Meadow Street.
PASSED and APPROVED this 3"' day of August, 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer