HomeMy WebLinkAbout26-13 RESOLUTIONRESOLUTION NO.26-13
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SELL ABOUT
TWO ACRES OF THE TYSON FACTORY PROPERTY ON HUNTSVILLE
ROAD FOR $1,115,001.00 TO KUM & GO, L.C., TO AGREE TO COST
SHARE WITH KUM & GO FOR ROADS OR DRIVEWAYS WITHIN THE
TYSON PROPERTY ADJOINING THIS TWO ACRE PARCEL AND THE
DEMOLITION OF THE FACTORY AND ALL OTHER TERMS OF THE
LAND SALE AGREEMENT AND ITS ADDENDUM, AND TO
RECOMMEND REZONING THIS PARCEL TO NEIGHBORHOOD
COMMERCIAL OR OTHER ZONING DISTRICT SATISFACTORY TO KUM
& GO, L.C.
WHEREAS, the City of Fayetteville used portions of the Tyson factory's lot obtained in
2004 for Highway 16 East right-of-way needs and for the construction of a new fire station; and
WHEREAS, now Kum & Go, L.C. has offered to purchase about two acres of the
remaining ten acres to be used for a Kum & Go gas station/convenience store; and
WHEREAS, Kum & Go, L.C. has proposed a Land Sale Agreement with Addendum in
which Kum & Go, L.C. would pay $1,115,001.00 for this two acre parcel and the City and Kum
& Go would cost share 50150 for the streets or driveways within the ten acre parcel on the west
and south sides of the two acre parcel, Kum & Go would cost share 25% (up to $100,000.00) for
the demolition of the old factory and both parties would agree to the broad terms of the Concept
Plat submitted by Kum & Go, L.C.
NOW, THEREFORE 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 has
determined that for the purposes of this proposed sale to Kum & Go, L.C., the parcel of about
two acres should be rezoned to Neighborhood Commercial or other zoning district agreeable to
Kum & Go, L.C. prior to its conveyance.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
Mayor Jordan to sign the attached Land Sale Agreement and Addendum with Kum & Go, L.C.
for the parcel shown on the concept plat (about two acres) for $1,115,001.00 plus all additional
considerations and terms therein and to sign the deed conveying such parcel to Kum & Go, L.C.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby agrees: to
cost share 50/50 with Kum & Go, L.C. for streets or driveways running from the intersection of
Happy Hollow and Huntsville through the property (on the west side of the two acre lot) and
along the southern border of this parcel to Ray Avenue; to cost share 75/25 (up to $100,000.00)
Page 2
Resolution No. 26-13
for the demolition and removal of the Tyson factory; to agree not to sell any other city -owned
property within one mile of this parcel for use of another convenience store/gas station, liquor
store or tobacco store; and to agree to the development of this parcel in the general form shown
in the Concept Plat attached to the Land Sale Agreement.
PASSED and APPROVED this 5 h day of February, 2013.
APPROVED:
ATTEST:
r
\ By:
SONDRA E. SMITH, City Clerk/Treasurer
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: FAYE7TEVILLE:M=
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FIRST AMENDMENT
TO LAND SALE AGREEMENT
THIS FIRST AMENDMENT TO LAND SALE AGREEMENT (hereinafter, the
"Amendment") is made and entered into effective the 4th day of February, 2013, by and
between the CITY OF FAYETTEVILLE, AR, a municipal corporation ("City" or
"Fayetteville"), and KUM & GO, L.C., an Iowa limited liability company ("A&E
Leasing"), WITNESSETH:
WHEREAS, Kum & Go and City have entered into that certain Purchase
Agreement (the "Agreement") whereby City has agreed to sell and Kum & Go has agreed
to buy certain real estate situated in Fayetteville, Arkansas; and
WHEREAS, Kum & Go and City desire to amend said agreement to as set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, it is agreed as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have
the same meanings ascribed to them as in the Agreement.
2. Amendment — Purchase Price. The Agreement is hereby modified such
that the total consideration paid by Kum & Go for the Development Site referenced in
the Agreement shall be $1,115,001.00.
3. Amendment — LEED Certification. The Agreement is hereby modified
such that Kum & Go agrees to design, construct, and submit the proposed improvements
to the property such that they meet the requirements for Leadership in Energy and
Environmental Design ("LEED") Certification.
4. Ratification. Except as modified by this Amendment, the Agreement is
ratified and confirmed by the parties.
5. Counterparts, Facsimile. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement. For purposes of executing this
Amendment, a facsimile signature shall be as effective as an actual signature.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed all on or as of the day and year first above written.
Fayetteville AR Huntsville and Happy Hollow - First Amendment to PA 2 4 13
KUM & GO, L.C.
YETTEVILLE, AR
Attest:
By: 4&44-0" �f - 4ew'-M."�
Sondra E. Smith, City Clerk
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LAND SALE AGREEMENT
This Land Sale Agreement is made and entered into by and between the City
of Fayetteville, Arkansas, a municipal corporation of the State of Arkansas
(hereinafter "City" or "Fayetteville") and Kum & Go, L.C., an Iowa limited
liability company authorized to do business in Arkansas (hereinafter "Kum &
Go").
The City -of Fayetteville agrees to sell about a 1.96 acre parcel it owns which
is a northeastern portion of the about 10 acre parcel of the old Tyson factory site at.
1851 East Huntsville Road, Fayetteville, Arkansas to Kum & Go, L.C. for
$1,000,000.00 and to perform the other terms and conditions of this Agreement for
this $1,000,1000.00 and Kum & Go's performance of all of the terms and promises
.set forth later in this Agreement.
Kum & Go, L.C. agrees to pay to the City of Fayetteville $1,000,000.00 for
this 1.96' acre parcel and to perform all of the terms set _forth _later in this
Agreement for the City's performance of all of its required terms and conditions.
TERMS AND CONDITIONS
1. Sale
. . Subject to existing easements and rights of way and subject to the terms and
conditions, mutual promises and covenants of this Agreement, the City of
Fayetteville agrees to sell a northeastern parcel of about 1.96 acres (hereinafter
"Development Site") of the 10.05 acre parcel located at 1851 East Huntsville
Road, Fayetteville, Arkansas (after it has been split or subdivided from the larger
tract) by warranty deed to Kum & Go, L.C. for the amount of One Million. Dollars
($1,000,000.00). This Development Site of about 1.96 acres shall be as shown on
the plat attached at Exhibit A and as more particularly described on Exhibit B (to
be provided).
The parties agree that a new metes and bounds legal description of. the
Development Site will be determined and created pursuant to a survey and a lot
split procedure for the Development Site. Kum & Go shall be responsible for the
cost of any required survey of the Development Site.
2. Purchase
. Subject to the terms and conditions, mutual promises and covenants of this
Agreement, Kum & Go, L.C. agrees to buy the Development Site for
$1,000,000.00 to be paid to the City of Fayettevilleon or before the Closing Date.
3. Demolition Of Tyson Factory.
A. The City of Fayetteville agrees to demolish or pay a reputable contractor
to demolish and remove unsalvageable debris of the old Tyson Factory to include
removing its foundation, footings and slab within four months of both parties'
execution of this Agreement.
B_ In addition to the purchase price, Kum & Go, L.C. agrees to reimburse
the City the lesser of 25% of the demolition and removal costs of the factory. or
$100,000.00 within thirty (30) days after the City notifies Kum & Go that the
demolition is complete. Such payment is not refundable unless the City materially
breaches this Agreement.
-4. Cost Shares for StreetslDriveways
The City of Fayetteville and Kum & Go agree to cost share 50/50 (both to
pay equal amounts) of the design and construction expenses (including the
reasonable value of City professional or construction activities) of a street or
driveway from the in of Happy Hollow and Huntsville Road to the
southwest corner of the Development Site and ftom that point to Ray Avenue
along the southern border of the Development Site. The City will not charge Kum
& Go for the property used for the roadway and the .roadway shall remain City
property, but the City shall grant Kum & Go and the public a. full access easement
to use these streets/driveways. Such street construction and cost share shall not
occur until the Development Site has received formal development approval and
actual construction by Kum & Go has commenced.
S. Landscaped Area
The area northwest of the Development Site and east of the road from the
Happy Hollow intersection with Huntsville Road to the southwest corner of the
Development Site shall be retained as City property. Kum &. Go shall pay to have
this property landscaped with a sufficient and prominent space left .for a City
N
sculpture, monument, sign or piece of art as determined appropriate by the City
Council. Kum & Go and the City shall jointly work on the landscaping plan which
will not include items that would unduly block the view of Kum & Go's store from
the Happy Hollow/Huntsville intersection. Kum & Go will pay for installation of
necessary irrigation, but the City will be responsible for maintenance of this
landscaped area once fully and properly installed. Parts of this area may be used
for future Highway 16 right-of-way needs, including a possible roundabout to
replace the current intersection.
6. Escrow Deposit
Within ten days after the execution of this Land Sale Agreement, Kum & Go
will deposit with Waco Title Company, Fayetteville, Arkansas ("Escrow Agent.")
the sum of Fifteen Thousand Dollars ($15,000.00) as the escrow deposit to be held,
administered and disbursed in accordance with the terms of this Agreement.
7. Closing Date and Place
Closing shall occur within 180 days following the date this -Agreement as
been executed by both parties. The Closing shall occur at 113 West Mountain
Street, Fayetteville, Arkansas in a room supplied by the City of Fayetteville. Kum
& Go shall have the option to extend the Closing date by up two (2) consecutive
sixty (60) day periods by notifying the City of Kum & Go's exercise of each such
extension option: -Upon the exercise of the first such extension option, $5,000.00
of the Escrow Deposit shall become non-refundable to Kum & Go but applicable
to the purchase price at Closing. Upon the exercise of the second such extension
option, $5,000.00 of the Escrow Deposit shall become non-refundable to Kum &
Go, but applicable to the purchase price at Closing.
S. Date of Possession
Possession of the Development Site shall be delivered to Kum & Go on the
Closing date free of any tenancies or other third party possessory rights.
9. Title Insurance
The City of Fayetteville shall order a title commitment .on the Development
Site, as soon a practicable following the full execution of this Agreement, through
a title insurance company selected by the City and acceptable to Kum & Go, for an
ALTA Form. B owner's policy, with extended coverage, or a comparable form,
from a title insurance company in the amount of the purchase price, covering the
date of this Agreement, and said title insurance company shall provide to Kum &
Go the basic owner's title insurance commitment within twenty (20) days of the
effective date. If the report on title, binder or commitment discloses any defects in
title (other than liens or encumbrances of a definite or ascertainable amount which
may be paid at closing from the proceeds due the City), the City shall have thirty
(30) days from the date of Kum .& Go's notice of such defects to make a good faith
effort to cure such defects and to furnish a report showing the defects cured or
removed. If such defects are not cured within thirty (30) days, Kum & Go may
terminate this agreement or may, at its election, take title subject to any such
defects. The cost of the title commitment and the cost of the owner's title policy
shall be borne by the City of. Fayetteville. The cost of any lender's title policy and
extended owner's title insurance coverage shall be borne by Kum & Go.
10. Deed and Other Documents
On the Closing date, the City of Fayetteville shall convey marketable and
insurable title to the premises by general warranty deed, free and clear of all liens,
restrictions, and encumbrances except as provided in this Agreement, subject only
to current real estate taxes (to be apportioned between the parties) and existing
easements. Kum & Go and the City of Fayetteville shall equally share the cost a
reasonable closing fee imposed by the closing agent employed by parties provided
however that Kum and Go shall be responsible. for any revenue stamps resulting
from this transaction and all recordings fees for the deed and other documents that
need to be filed.
11. Use Restriction
At Closing the City of Fayetteville shall restrict the use when sold to a third
party of any and all real estate owned by the City of Fayetteville within one mile of
the Development Site for a period of twenty (20) years by placing within any
deed conveying such City owned property to. a third party during the next 20 years
a prohibition of the use of such property until 2033 for a gas station, convenience
store, tobacco store, or business that generates more than 50% of its revenue from
the sale of alcoholic beverages for off -premises consumption.
12. Real Estate Faxes
Real estate taxes shall be prorated in customary fashion to date of
possession.
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13. Risk of Loss
Risk of loss as to the Development Site shall remain with the City of
Fayetteville until the Closing date.
14. Environmental Matters
. The City warrants to the best of its knowledge and belief that (i) there are no
abandoned wells, solid waste disposal sites, hazardous wastes or substances, or
underground storage tanks located on the Development: Site, (ii) the Development
Site does not contain levels of radon gas, asbestos, or urea -formaldehyde foam
insulation which require remediatinn under current governmental standards,
and(iii) the City had done nothing to contaminate the Development Site with
hazardous wastes or substances. The City warrants that the Development .Site is
not subject to any local, state, or federal judicial or administrative action,
investigation or other, regarding wells, solid waste disposal sites, hazardous wastes
or substances, or underground storage tanks.. Kum & Go shall be responsible for
the costs of any Phase f or Phase -II environmental - site -assessment for t e .
Development Site, and for the costs of other customary third party due diligence
reports.
15. Kunz & Go's Due Diligence
Kum & Go may enter upon the Development Site to conduct any surveying,
testing or inspection it deems necessary to ensure the Development Site will be
appropriate for the construction and use for a Kum & Go gas station/convenience
store. If Kure & Go discovers any problems that would adversely impact its
development and use of the .Development Site for its store, Kum & Go shall notify
the City which is granted sixty (60) days to.remediate. any problem. The City may
also terminate this Agreement without penalty rather then remediating any problem
or issue discovered by Kum & Go.
16. Large Scale Development Approval
Kum & Go shall, at its sole cost and expense, prepare a Large Scale
Development plat of the Development Site and obtain any and all approvals
necessary for Kum & Go's intended use of the Development Site as a gas
station/convenience store. The City shall reasonably cooperate with Kum & Go in
Kum & Go's request for development approval of a gas stationand convenience
E
store. Kum & Go must present its development proposal through the normal City
process and follow the Unified Development Code requirements.
17..Kum & Go's Conditions Precedent
Kum & Go's obligation to close this transaction is expressly conditioned
upon each of the following:
(a) City shall have performed and complied in all material respects with
all agreements, terms, and conditions required by this agreement to be
performed by and complied with by City on or before the Closing date,
(b) All representations, warranties and covenants of City contained in
this Agreement shall be true and correct in all material respects as of the
Closing date.
(c) Kum & Go has obtained final approval of its Large Scale
Development proposal to construct a gas station/convenience store on
the Development Site.
If any of Kum & Go's conditions precedent have not .been satisfied or complied
with prior to the Closing date, Kum & Go may, by written notice to City within
seven (7) days of the Closing date cancel and terminate .this Agreement. In the
event that this Agreement is terminated by Kum & Go as permitted by this. Section,
neither party shall retain any rights or obligations under this Agreement, except
that the Escrow Deposit shall be returned to Kum & Go, except any portion thereof
that has become non-refundable to Kum &. Go and the 25% of demolition costs up
to $.100,00.0.00 must still be paid to the City and not be refundable to Kum & Go
unless the City has refused to grant reasonable development rights to Kum & Go
after its good faith application for such development rights. Notwithstanding the
foregoing, Kum &. Go, in its sole discretion, may waive any conditions precedent
in its favor and elect to proceed. with the closing by .the Closing date.
1 S. Broker
Kum & Go has been represented by David Erstine of CSRE I NW Arkansas
during this sale and will be responsible to pay his brokerage fee.
I
1 9. Notices
Notices required by this Agreement shall be in writing and shall'be delivered
to:
Kum & Go, L.C.
ATTN: Real Estate Development
c/o Rob Wadle (or successor)
6400 Westown. Parkway
W. Des Moines, Iowa 50266
or to:.
City of Fayetteville
ATTN: Mayor's Office
113 W. Mountain Street
Fayetteville, AR 72701 72701-6083
20. Authority
or by FAX (515) 226-1595
or by FAX (479) 575-8257.
Each of the undersigned individuals represent and warrant that they are
authorized -to enter into this Agreement on behalf of their respective entities and
that execution hereof will bind the entities to this Agreement.
21. Cnunterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original; .but all of which taken together shall constitute
one and the same agreement.
22. Facsimile
For purposes of executing this Agreement, a facsimile signature shall be as
effective an as actual signature.
7
23. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws
and public policies of the State of Arkansas.
24. Survival
The representations, warranties, and agreements of the parties contained
herein shall survive the closing date.
25. No Waivers
The waiver by either party hereto of any condition or the breach of any term,
covenant or conditions herein contained shall not be- deemed to be a waiver of any
other condition or of any subsequent breach of the same or of any other term,
covenant or condition herein contained.,
26. Time of Essence
Time is of the essence in this Agreement.
27. Invalidity
If for any reason any term or provision of this Agreement shall be declared
void and unenforceable by any courtof law or equity it shall only affect such
particular term or provision of this Agreement and the balance of this Agreement
shall. remain in full force and effect and shall be binding upon the parties hereto.
28. Complete Agreement
All understandings and agreements heretofore existing between the parties
are merged into this Agreement that alone fully and completely expresses their
agreement. This Agreement may. be changed only in writing signed by both of the
parties hereto and shall apply to and bind the successors and assigns of each of the
parties hereto and shall not merge with the deed delivered to Kum & Go at closing.
Date: I hgb-oa-
FCUM & GO, L.C.
By: _
Title:
Date: & /q! j'4`
CITY OF FAYETTE'ILLE,
Witness:
ATTEST:
By:
By:
Sondra B. Smith, City Clerk
Fed. Z.D. No.. 42-1352663
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FAX No.: (515) 457-6179���
Address: 6400 Westown Parkway, West
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Des Moines, IA 50266
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City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
1 /15/2013
City Council Meeting Date
Agenda Items Only
Paul A Becker Finance and Internal Services Finance and Internal Services
Submitted By Division Department
Action Kequirea:
The City has received an offer for the purchase 1.87 acres of City Property known as the old Tyson Property at 1861
E. Huntsville Road. Kum & Go L.C. has made an offer to purchase said property for $900,000 .They also have agreed
to reimburse the City for the costs of demolition of the existing structure including the foundation, footings and
pavement removal. Kum & Go L.C. proposes to construct a convenience store that sells petroleum on the property.
The City administration recommends acceptance of this offer.
NIA
Cost of this request
Aocount Number
Project Number
Category/ Project Budget
Funds Used to Date
Remaining Balance
Budgeted Item Budget Adjustment Attached
Department Director Date
q :t�cjj�,4, �
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13
City Attorney I Date
Finance gnd Internal Services Director Date"
/it
yof'�S Date
ate
: omments:
Program Category / Project Name
Program I Project Category Name
Fund Name
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Received in City i -0 2-1 3 P 12 : 3 5 R C V D
Cleric's Office . i -
Received in
Mayor's Office
1� ,p 5 aD13 %�evised January 15, 2009
1 " "C�J1
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
CITY COUNCIL AGENDA MEMO
To: Mayor Lioneld Jordan and City Council
Thru: Don Marr Chief of Staff
From: Paul A Becker
Date: January 2, 2013
Subject: Sale of 1.87 acres of the former Tyson Property to Kum & Go L.C.
PROPOSAL: The Tyson Property was purchased by the City in 2004 for $1.1 million. The total parcel was
11.17 acres. In addition to property required for right of way for Highway 16 widening, the City constructed a
fire station on a portion of the property.
The City has received an offer to purchase 1.87 acres of the remaining property from Kum & Go
L.C.for $900,000 and 25% (up to $100,000) of the costs of demolition of the existing structure including the
foundation, footings and pavement removal.
If the City Council chooses to accept this offer, the City would receive enough to tear down and
remove a hazardous structure. Still retain in excess of 8 acres of the property and after road improvement costs
still have some cash for future appropriation. An additional benefit would be a new business on the tax rolls.
RECOMMENDATION: The City administration recommends the City Council accept the purchase offer
from Kum & Go.
BUDGET IMPACT: The City would receive sufficient funds to remove the old Tyson building and hopefully
has some left over for future appropriation..
Departmental Correspondence
RKANSA
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
Jeremy Pate, Development Services Director
FROM: Kit Williams, City Attorney
DATE: December 18, 2012
RE: Tyson Property Purchase and Proposed Sale of 2 Acres
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
On November 16, 2004, Mayor Coody and Finance Director Steve
Davis presented an Offer and Acceptance Contract and a Donation
Contract to purchase 11.17 acres on Highway 16 East and Happy Hollow
Road for $1,100,000.00 to the Fayetteville City Council. I could find no
memo from the administration supporting this purchase in the City Clerk's
Agenda packet file, but have attached the City Council minutes in which
the purchase was partially justified as a potential savings of $100,000.00 in
right-of-way costs for the widening of Highway 16 East, as well as to
eliminate the land costs for a new fire station. There was some talk about
being able to use the Tyson Mexican Original taco/corn chip factory
building for fire, police or other city services, but that later proved not
feasible. I believe that the only thing that factory was put to use for was
warehousing of Hurricane Katrina donations.
The City Council voted almost unanimously to purchase this 11 acres
and later built Fire Station Five on a western portion of this land. After
reductions for the land to build the fire station and right-of-way
dedications slightly more than ten acres remains. However, the
Tyson/Mexican Original Factory became an eyesore and has been
vandalized and stripped of its valuable metals by thieves. Our police
frequently have been called to the site for ongoing problems and safety
issues. Mayor Jordan and many aldermen have expressed the need to
demolish the building so the site could eventually be attractively
developed. Strategic Planning even presented scenarios for site
development on this ten acres. One major problem was always money -
full building and foundation demolition and all pavement removal cost
was roughly estimated at $475,000.00 by the contractor who built our
Courts/Prosecutor building. With the City Budget cut over Two Million
Dollars, wages frozen and more than twenty previously budgeted city
positions left vacant, there was no extra money for a demolition project.
A few months ago, Kum & Go, L.C. representatives spoke to Mayor
Jordan and senior staff about acquiring a building site for one of their
convenience store/gas stations on the Tyson Property. Kum & Go, L.C. has
rapidly expanded into Washington and Benton Counties opening or
constructing more than a dozen new and attractive stores the last few
years. Mayor Jordan said he would certainly entertain such proposal
which could help Fayetteville demolish the old factory.
Kum & Go, L.C. initially proposed to buy the entire remaining 10
acres for $985,000.00 which would be reduced by about $40,000.00 for their
realtor's fee. All required rights -of -way, green space, etc. would further
reduce the amount paid to the City for all of our property. There were
other terms in this initial offer that the City could not accept.
Rather than simply rejecting this first proposal, the Mayor authorized
me to develop a counterproposal for his approval. I obtained the actual
amounts Kum & Go, L.C. had paid for its many new acquisitions for its
new stores in Washington and Benton Counties. I analyzed these
acquisition costs on a per square foot, per acre, and per store basis. This
data showed that we had been offered much less per acre than what had
been paid to every other seller. I do not fault or criticize Kum & Go, L.C.
for this. Businesses always seek to get the best deal possible. It is our
responsibility to ensure our taxpayers get fair value for their assets.
2
Mayor Jordan, in consultation with Chief of Staff Don Marr and
Finance Director Paul Becker then authorized me to convey a
counterproposal to Kum & Go, L.C. in which we would sell them either a
single two acre lot or both two acre lots (at a less per acre cost) that front
Highway 16 East, cost share the demolition expense of the Tyson factory,
and cost share a street entry into this 10 acre parcel from the signaled
intersection.
Kum & Go, L.C. graciously worked with us and chose to purchase
the two acre lot on the East side of the property. After further negotiation,
Kum & Go, L.C. agreed to pay $900,000.00 for this 1.87 acre lot, cost share
50/50 with the City to build the center street from the signaled intersection
to the intersection with the street running along the southern portion of
this lot to Ray Avenue. We hope these streets when completed will help
the neighborhood served by Ray to more easily go East on Martin Luther
King or Highway 16 during the morning rush hour.
Kum & Go L.C. also agreed to pay 25% of the costs (to be capped at
$100,000.00) for the demolition of the old Tyson factory, its foundation and
footings and all pavement removal. i believe the Mayor and many
Aldermen will be glad that we can finally remove the unattractive hulk and
return some of this property into productive use.
If the City Council agrees to this sale, then the City will be able to
demolish the factory, build needed streets, net several hundred thousand
dollars, be able to sell a very commercially viable two acre lot fronting
Highway 16 East and keep a 4.7 acre lot on the South side of the lot for City
uses (Police, Parks and Recreation HQ, Transportation, etc.).
I want to thank Mayor Jordan for his leadership and determination
during this negotiation. He has ensured that our citizens will receive fair
value for their property while remaining fair and friendly to Kum & Go.
3
RESOLUTION NO. 183-04
A RESOLUTION APPROVING AN OFFER AND ACCEPTANCE
CONTRACT BETWEEN THE CITY OF FAYETTEVILLE AND
TYSON FOODS, INC. FOR THE PURCHASE OF PROPERTY
LOCATED AT 1851 EAST HUNTSVILLE ROAD IN THE
AMOUNT OF $1,100,000.00 AND A DONATION CONTRACT;
AND APPROVING A BUDGET ADJUSTMENT IN THE AMOUNT
OF $4,000.00 TO COVER APPRAISAL AND CLOSING COSTS.
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 an Offer and Acceptance contract between the City of
Fayetteville and Tyson Foods, Inc. for the purchase of property located at 1851
East Huntsville Road in the amount of $1,100,000.00, and a Donation contract.
Copies of the Offer and Acceptance contract marked Exhibit "A," and the
Donation contract marked Exhibit "B; are attached hereto and made a part
hereof.
Section 2. That the City Council of the City of Fayetteville, Arkansas
hereby approves a Budget Adjustment in the amount of $4,000.00 to cover
appraisal and closing costs.
PASSED AND APPROVED this 16th day of November 2004.
ATTEST:
By: .c.�
SONDRA SMITH, City Clerk
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SELL ABOUT
TWO ACRES OF THE TYSON FACTORY PROPERTY ON HUNTSVILLE
ROAD FOR $900,000.00 TO KUM & GO, L.C., TO AGREE TO COST
SHARE WITH KUM & GO ROADS OR DRIVEWAYS WITHIN THE TYSON
PROPERTY ADJOINING THIS TWO ACRE PARCEL AND THE
DEMOLITION OF THE FACTORY, AND TO RECOMMEND REZONING
THIS PARCEL TO NEIGHBORHOOD COMMERCIAL OR OTHER ZONING
DISTRICT SATISFACTORY TO KUM & GO, L.C.
WHEREAS, the City of Fayetteville used portions of the Tyson factory's lot obtained in
2004 for Highway 16 East right-of-way needs and for the construction of a new fire station; and
WHEREAS, now Kum & Go, L.C. has offered to purchase about two acres of the
remaining ten acres to be used for a Kum & Go gas station/convenience store; and
WHEREAS, the City Administration and Kum & Go, L.C. have worked out a proposed
agreement in which Kum & Go, L.C. would pay $900,000.00 for this two acre parcel and the
City and Kum & Go would cost share 50150 for the streets or driveways within the ten acre
parcel on the west and south sides of the two acre parcel, Kum & Go would cost share 25% (up
to $100,000.00) for the demolition of the old factory and both parties would agree to the broad
terms of the Concept Plat submitted by Kum & Go, L.C.
NOW, THEREFORE 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 has
determined that for the purposes of this proposed sale to Kum & Go, L.C., the parcel of about
two acres should be rezoned to Neighborhood Commercial or other zoning district agreeable to
Kum & Go, L.C. prior to its conveyance.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
Mayor Jordan to sign a Land Sale Agreement with Kum & Go, L.C. for the parcel shown on the
concept plat (slightly less than two acres) for $900,000.00 and sign the deed conveying such
parcel to Kum & Go, L.C.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby agrees: to
cost share 50150 with Kum & Go, L.C. for streets or driveways running from the intersection of
Happy Hollow and Huntsville through the property (on the west side of the two acre lot) and
along the southern border of this parcel to Ray Avenue; to cost share 75/25 (up to $100,000.00)
for the demolition and removal of the Tyson factory; to agree not to sell any other city -owned
property within one mile of this parcel for use of another convenience store/gas station, liquor
store or tobacco store; and to agree to the development of this parcel in the general form shown
in the Concept Plat attached to the Land Sale Agreement.
PASSED and APPROVED this 15'h day of January, 2013.
APPROVED:
M.
LIONELD JORDAN, Mayor
ATTEST:
SONDRA E. SMITH, City Clerk/Treasurer
REAL ESTATE DEPARTMENT
Direct Tel: 515.457.6162
Direct Fax: 515.457.1595
E-mail: REW@kumandgo.com
REVISED LETTER OF INTENT
December 14, 2012
To: City of Fayetteville, Fayetteville AR
In response to the City of Fayetteville's letter, dated December 5, 2012, the purpose of
this letter (the "Letter") is to set forth certain nonbinding understandings between City of
Fayetteville ("Seller"), and KUM & GO, L.C., an Iowa limited liability company ("Buyer").
This Letter reflects our mutual understanding of the matters described in it, but each party
acknowledges that the provisions of this Letter are not intended to create or constitute any legally
binding obligation between Seller and Buyer, and neither party shall have any liability to the
other party with respect to this Letter unless or until a definitive agreement has been executed
and delivered by and between the parties. If a definitive agreement is not executed and delivered
by and between the parties for any reason, no party to this Letter shall have any liability to the
other based upon, arising from, or relating to the provisions set forth in this Letter.
Premises:
Locally known as 1851 E. Huntsville Rd, Fayetteville,
Arkansas.
Approximately +/- 81,612 sf (1.87+ acres) as shown as
Lot 1 on the visual depiction is attached hereto on
Exhibit "A."
The actual legal description shall be substituted herein
following receipt by Buyer of a title commitment for the
Premises.
Purchase Price:
The Purchase Price of the Premises shall be 900 000.
Closing:
One -hundred and eighty (180) days from execution of
purchase agreement with Buyer having 3 options to
extend the Closing Date by 60 days each, upon the
exercise of each such option, 1/3 of the Escrow Deposit
shall become non-refundable to Buyer, but shall be
applicable to the Purchase Price.
Conveyance:
Seller shall convey marketable and insurable title to the
Premises by general warranty deed, free and clear of all
liens, restrictions and encumbrances except as provided
in the Purchase Agreement.
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Buyer's Due Diligence ! Buyer shall have until the Closing Date in order to
Inspections: conduct its "due diligence" inspections and to determine
the suitability of the Premises for Buyer's intended use
and/or development. During such period, Buyer shall be
entitled to enter upon the Premises to conduct such
testing/inspections as Buyer deems necessary for
Buyer's intended use of the Premises. Buyer shall be
permitted to terminate the purchase agreement by notice
to Seller at any time until the closing, as it may be
extended. Further, in the event that more than sixty (60)
days have elapsed since the Closing Date and Buyer has
not terminated the agreement or otherwise elected to
proceed to closing as provided therein, then at any time
thereafter Seller may, by written notice to Buyer, cancel
and terminate the agreement, unless Buyer within ten
(10) days of such notification waives the conditions
precedent in writing and elects to proceed with the
closing.
Environmental: Seller warrants to the best of its knowledge and belief
that (i) there are no abandoned wells, solid waste
disposal sites, hazardous wastes or substances, or
underground storage tanks located on the Premises, (ii)
the Premises does not contain levels of radon gas,
asbestos, or urea -formaldehyde foam insulation which
require remediation under current governmental
standards, and (iii) Seller has done nothing to
contaminate the Premises with hazardous wastes or
substances. Seller warrants that the property is not
subject to any local, state, or federal judicial or
administrative action, investigation or order, as the case
may be, regarding wells, solid waste disposal sites,
hazardous wastes or substances, or underground storage
tanks.
Abstract/Title Insurance: Seller shall provide Buyer with its most recent abstract
and/or title commitment. Buyer shall order a title
commitment on the Premises, as soon as practicable
following the full execution of the purchase agreement
contemplated by this letter of intent, through Escrow
Agent for an ALTA Form B owner's policy (2006
version, if available), with extended coverage, or a
comparable form, from a title insurance company
approved by Buyer in the amount of the purchase price,
covering the date of this Agreement, and shall provide to
Buyer the basic owner's title insurance commitment
within twenty (20) days of the effective date. If the
Yage 3
report on title, binder or commitment discloses any
defects in title (other than liens or encumbrances of a
definite or ascertainable amount which may be paid at
closing from the proceeds due Seller), Seller shall have
thirty (30) days from the date of Buyer's notice of such
defects to make a good faith effort to cure such defects
and to fi -iish a report showing the defects cured or
removed. if such defects are not cured within thirty (30)
days, Buyer may terminate this agreement or may, at its
election, take title subject to any such defects. The cost
of the title commitment and the cost of the owner's title
policy shall be borne by Seller. The cost of any lender's
title policy and extended owner's title insurance
coverage shall be borne by the Buyer.
Escrow Deposit: Within ten (10) days after the date of the signature of the
full execution of the purchase agreement contemplated
by this letter of intent, Buyer shall deposit with the
Escrow Agent the sum of SEVEN THOUSAND FIVE
HUNDRED DOLLARS ($7,500) ("Escrow Deposit").
Escrow Agent/Title Company: I Waco Title, Fayetteville, Arkansas
Use Restriction: Seller and its affiliates shall restrict the use of any and
all real estate owned or controlled by Seller and its
affiliates within one mile of the Premises for a period of
twenty (20) years from being used for the following
uses:
a. A gasoline station, including any type of
business that sells diesel fuel, ethanol fuel, bio-fuel or
any other type of fuel used to power motorized vehicles
designed primarily for use on public streets and
highways.
b. A convenience store.
C. A cigar, tobacco or pipe shop.
d. A business that generates more than fifty percent
(50%) of its gross revenue from the sale of beer or liquor
products for off premise consumption.
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Real Estate
CBRE I NW Arkansas, David Erstine, represents Buyer
Brokers/Commissions:
as Buyer's Broker. Buyer's broker commission to be
paid by Buyer at closing (or pursuant to a separate
agreement).
Seller's Work:
Seller, at Seller's cost and expense not to exceed one-
half (50%), shall construct or contribute funds for the
construction of adequate streets, per the design standards
of the City of Fayetteville, along the western and
southern boundaries of Lot 1, including the intersection
of the two planned streets, as shown on Exhibit "A".
Buyer shall be responsible for the cost and expense of
the remaining one-half (50%) of the street construction
costs excluding any land cost;
Prior to Closing, Seller, at Seller's cost and expense,
shall raze any existing building and site improvements
on the Premises. At the later of Closing or the
completion of such work, Buyer shall reimburse the
lesser of twenty-five (25%) or $100,000 to the City for
such work;
Buyer's Work:
Buyer shall, at Buyer's sole cost and expense, complete
any such City required street improvements, as typically
required, on the eastern boundary of Lot 1 and as shown
on Exhibit "A", along Ray Avenue;
Buyer shall, at Buyer's sole cost and expense, complete
the construction of the Regional Detention Pond
("Pond") as shown on Exhibit "A". Said Pond shall
serve Lots 1 & 2 as shown on Exhibit "A". The Pond
shall meet City design requirements and include a low
impact development design.
Purchase Agreement:
Within ten (10) days of the full execution of this letter of
intent, Buyer shall prepare and present to Seller a draft
of a binding purchase agreement on a form substantially
similar to Exhibit `B" attached hereto, as altered by the
terms and conditions set forth herein.
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Very truly yours,
KUM & GO, L.C.
By:
eal Esta a Development Rep.
Agreed and accepted this day of , 20
City of Fayetteville
Print:
Its:
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EXHIBIT "A"
VISUAL DEPICTION
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1 1 Departmental Correspondence
�AAKANSA'
Kit Williams
City Attorney
TO: Mayor Jordan Jason B. Kelley
City Council
Assistant City Attorney
FROM: Kit Williams, City Attorney
DATE: January S, 2013
RE: Concept Plat from CEI for Kum & Go
Attached please find "Concept 4" for the Lot proposed to be sold to Kum &
Go, L.C. It has agreed to remove the direct driveway access onto Huntsville and
eliminate one of the curb cuts onto the southern drive or street. The lot is still less
than 2 acres, but is now shown to be about 1.94 acres.
One thing that needs to be clarified is that only City of Fayetteville owned
property within a mile of this site would be restricted from being sold to be used
as a convenience store/gas station. There would be no such restrictions for
privately owned property. This restriction would primarily affect the other
possible commercial lot along Happy Hollow (Highway 16 East) which is part of
the 10 acre Tyson factory parcel.
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a V 4 STORE xxx, FAYETTEVILLE, AR E"9d.L 9
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REv�sror+s CONCEPT4
Departmental Correspondence
Kit Williams
CityAttorney
TO: Mayor Jordan Jason B. Kelley
City Council Assistant City Attorney
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney (t
DATE: January 15, 2013
RE: Resolution to. Acce.pt.$1,000,000.00 Offer
From Casey's Marketing Company, Inc -
Since we have received a signed original offer from Casey's Marketing
_Company,- Inc. r /bfa Casey's General Store in the alinourit_ of ONE M1i�L10Ti
I1O1,I;Al2S �$1;000,400.00) for the two acre parcel of the old Tyson factory
property, i have prepared the attached Resolution for the City Councii's
consideration and: use if the .City Council determines this is the best offer to
purchase the two acre parcel.
if an Alderman wishes to propose that Casey's million dollar offer be
.accepted,, the Alderman should move to amend the Resolution in your Agenda
Packet which 1 drafted when the only offer was one for $900,000.00 from Kuril &
.Ciro, L.C. to the Resolution attached to this memo.
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SELL ABOUT
TWO ACRES OF THE TYSON FACTORY PROPERTY ON HUNTSVILLE
ROAD FOR $1,000,000.00 TO CASEY'S MARKETING COMPANY, INC., TO
AGREE TO COST SHARE WITH CASEY'S MARKETING COMPANY, INC.
ROADS OR DRIVEWAYS WITHIN THE TYSON PROPERTY ADJOINING
THIS TWO ACRE PARCEL AND THE DEMOLITION OF THE FACTORY,
AND TO RECOMMEND REZONING THIS PARCEL TO NEIGHBORHOOD
COMMERCIAL OR OTHER ZONING DISTRICT SATISFACTORY TO
CASEY'S MARKETING COMPANY, INC.
WHEREAS, the City of Fayetteville used portions of the Tyson factory's lot obtained in
2004 for Highway 16 East right-of-way needs and for the construction of a new fire station; and
WHEREAS, now Casey's Marketing .Company, Inc. has offered to purchase about two
acres of the remaining ten acres to be used for a Casey's Marketing Company, Inc. gas
station/convenience store; and
WHEREAS, the City Administration and Casey's Marketing Company, Inc. have
worked out a proposed agreement in which Case 's -Marketing Company,Inc. would a
p P g Y g pay
$1,000,000.00 for this two acre parcel and the City, and Casey's MarketingCompany, Inc.,
would cost share 50150 for the streets or driveways within the ten acre parcel on the west and
south sides of the two. acre parcel, Casey's Marketing Company, Inc., would cost .share 25% (up
to $100;000.00) for the demolition of the old factory and both parties would agree to the broad
terms of the Concept Plat submitted by Casey's Marketing Company, Inc.
NOW, THEREFORE 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 has
determined that for the purposes of this proposed sale to Casey's Marketing Company, Inc., the
parcel of about two acres should be rezoned to Neighborhood Commercial or other zoning
district agreeable to Casey's Marketing Company, Inc. prior to its conveyance.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
Mayor Jordan 'to sign the attached Land Sale Agreement with Casey's Marketing Company, Inc.
for the parcel shown on the concept. plat (about two acres) for $1,000,000.00 and sign the deed
conveying such parcel to Casey's Marketing Company, Inc.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby agrees: to
cost share 50150 with Casey's Marketing Company, Inc. for streets or driveways running from
the intersection of Happy Hollow and Huntsville through the property (on the west side of the
two acre Iot) and along the southern border of this parcel to' Ray Avenue; to cost share 75/25
(up to $100,000.00) for the demolition and removal of the Tyson factory; to agree not to sell any
other city -owned property within one mile of this parcel for use of another convenience store/gas
station, liquor store or tobacco store; and to agree to the development of this parcel in the general
form shown in the Concept Plat attached to the Land Sale Agreement.
PASSED and APPROVED this 15`h day of January, 2013.
APPROVED: ATTEST:
By:
LIONELD JORDAN, Mayor
0
By:
SONDRA E. SMITH, City Clerk/Treasurer
CASEY' S GENERAL STORES, INC.
P.O. Box 3001 • One Convenience Blvd., Ankeny, Iowa 50021-8045 • 515-965-6I00
Sender's Direct -Dial Telephone Number: 515-965-6284
E-mail Address: doug.beech@caseys.com
Fax Number: 515-965-6160
January 14, 2013
Via Overnight 1MIaiC
City of Fayetteville
Attn: Kit Williams, City Attorney
113 West Mountain
Fayetteville, AR 72701
RE: Land Sale Agreement
Dear Kit:
Please find enclosed the original Land Sale Agreement that has been signed on behalf of
Casey's Marketing Company. If the Agreement is approved by the City, please have it signed
and return it back to my attention at Casey's.
If you have any questions, please feel free to contact me. Thank you.
Very truly yours,
Douglas M. Beech
Legal Counsel
DMB/slc
Enclosure
PC: Kirk Haworth/Melani Samora
t:ldou$Veal esta€elfayettevillea6williams-Itr I-14-13.docx
- Y-Ae
Departmental Correspondence
RKANSA
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney
DATE: January 14, 2013
Kit Williams
CityAttorney
Jason B. Kelley
Assistant City Attorney
RE: Offer from Casey's Marketing Company, Inc. d/b/a/ Casey's General Store
This afternoon I received the attached Land Sale Agreement signed by Casey's
Marketing Company, Inc. for the two acre parcel of the old Tyson factory property that is
also sought by Kum & Go, L.C. Casey's has raised Kum & Go's offer of $900,000.00
(plus other agreements) by $100,000.00 to $1,000,000.00 (plus the same agreements) for
this property.
Casey's offer will be able to be considered along with Kum & Go's proposal at
tomorrow night's meeting.
LAND SALE AGREEMENT
This Land Sale Agreement is made and entered into by and between the City
of Fayetteville, Arkansas, a municipal corporation of the State of Arkansas
(hereinafter "City" or "Fayetteville") and Casey's Marketing Company, an Iowa
corporation authorized to do business in Arkansas (hereinafter "Casey's").
The City of Fayetteville agrees to sell an approximate 2 acre parcel it owns
which is a northeastern portion of the about 10 acre parcel of the old Tyson factory
site at 1851 East Huntsville Road, Fayetteville, Arkansas to Casey's for
$1,000,000.00 and to perform the other terms and conditions of this Agreement for
this $1,000,000.00 and Casey's performance of all of the terms and promises set
forth later in this Agreement.
Casey's agrees to pay to the City of Fayetteville $1,000,000.00 for this
approximate 2 acre parcel and to perform all of the terms set forth later in this
Agreement for the City's performance of all of its required terms and conditions.
TERMS AND CONDITIONS
1. Sale
Subject to existing easements and rights of way and subject to the terms and
conditions, mutual promises and covenants of this Agreement, the City of
Fayetteville agrees to sell a northeastern parcel of approximately 2 acres
(hereinafter "Development Site") of the 10.05 acre parcel located at 1851 East
Huntsville Road, Fayetteville, Arkansas (after it has been split or subdivided from
the larger tract) by warranty deed to Casey's for the amount of One Million Dollars
($1,000,000.00). This Development Site shall be approximately 2 acres. The
parties hereby agree that at this time there is no existing survey or plat of the
Development Site. The parties acknowledge that the Development Site being
conveyed to Casey's is a portion of a larger existing real estate parcel of which the
City does not have a current legal description. The parties agree that the
Development Site will be approximately located as set forth on Exhibit "A"
attached hereto and incorporated herein by reference.
The parties agree that a new metes and bounds legal description of the
Development Site will be determined and created pursuant to a survey and a lot
split procedure for the Development Site. Casey's shall be responsible for the cost
of any required survey of the Development Site.
2. Purchase
Subject to the terms and conditions, mutual promises and covenants of this
Agreement, Casey's agrees to buy the Development Site for $1,000,000.00 to be
paid to the City of Fayetteville on or before the Closing Date.
3. Demolition Of Tyson Factory
A. The City of Fayetteville agrees to demolish or pay a reputable contractor
to demolish and remove unsalvageable debris of the old Tyson Factory to include
removing its foundation, footings and slab within four months of both parties'
execution of this Agreement.
B. In addition to the purchase price, Casey's agrees to reimburse the City
the lesser of 25% of the demolition and removal costs of the factory or
$100,1000.00 within thirty (30) days after the City notifies Casey's that the
demolition is complete. Such payment is not refundable unless the City materially
breaches this Agreement.
4. Cost Shapes for Streets/Driveways
The City of Fayetteville and Casey's agree to cost share 50/50 (both to pay
equal amounts) of the design and construction expenses (including the reasonable
value of City professional or construction activities) of a street or driveway from
the intersection of Happy Hollow and Huntsville Road to the southwest corner of
the Development Site and from that point to Ray Avenue along the southern border
of the Development Site. The City will not charge Casey's for the property used
for the roadway and the roadway shall remain City property, but the City shall
grant Casey's and the public a full access easement to use these streets/driveways.
Such street construction and cost share shall not occur until the Development Site
has received formal development approval and actual construction by Casey's has
commenced.
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5. Landscaped Area
An agreed upon area northwest of the Development Site and east of the road
from the Happy Hollow intersection with Huntsville Road to the southwest corner
of the Development Site shall be retained or easement granted for the City's use.
Casey's shall pay to have this property landscaped with a sufficient and prominent
space left for a City sculpture, monument, sign or piece of art as determined
appropriate by the City Council. Casey's and the City shall jointly work on the
landscaping plan which will not include items that would unduly block the view of
Casey's store from the Happy Hollow/Huntsville intersection. Casey's will pay for
installation of necessary irrigation, but the City will be responsible for maintenance
of this landscaped area once fully and properly installed. Parts of this area may be
used for future Highway 16 right-of-way needs, including a possible roundabout to
replace the current intersection.
6. Escrow Deposit
Within ten days after the execution of this Land Sale Agreement, Casey's
will deposit with Waco Title Company, Fayetteville, Arkansas ("Escrow Agent")
the sum of Fifteen Thousand Dollars ($15,000.00) as the escrow deposit to be held,
administered and disbursed in accordance with the terms of this Agreement.
7. Closing Date and Place
Closing shall occur within 180 days following the date this Agreement has
been executed by both parties. The Closing shall occur at 113 West Mountain
Street, Fayetteville, Arkansas in a room supplied by the City of Fayetteville.
Casey's shall have the option to extend the Closing date by up to two (2)
consecutive sixty (60) day periods by notifying the City of Casey's exercise of
each such extension option. Upon the exercise of the first such extension option,
$5,000.00 of the Escrow Deposit shall become non-refundable to Casey's but
applicable to the purchase price at Closing. Upon the exercise of the last extension
option, $5,000.00 of the Escrow Deposit shall also become non-refundable to
Casey's, but applicable to the purchase price at Closing.
8. Date of Possession
Possession of the Development Site shall be delivered to Casey's on the
Closing date free of any tenancies or other third party possessory rights.
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9. Title Insurance
The City of Fayetteville shall order a title commitment on the Development
Site, as soon a practicable following the full execution of this Agreement, through
a title insurance company selected by the City and acceptable to Casey's, for an
ALTA Form B owner's policy, with extended coverage, or a comparable form,
from a title insurance company in the amount of the purchase price, covering the
date of this Agreement, and said title insurance company shall provide to Casey's
the basic owner's title insurance commitment within twenty (20) days of the
signing of the Agreement. If the report on title, binder or commitment discloses
any defects in title (other than liens or encumbrances of a definite or ascertainable
amount which may be paid at closing from the proceeds due the City), the City
shall have thirty (30) days from the date of Casey's notice of such defects to make
a good faith effort to cure such defects and to furnish a report showing the defects
cured or removed. If such defects are not cured within thirty (30) days, Casey's
may terminate this agreement or may, at its election, take title subject to any such
defects. The cost of the title commitment and the cost of the owner's title policy
shall be borne by the City of Fayetteville. The cost of any lender's title policy and
extended owner's title insurance coverage shall be borne by Casey's.
10. Deed and Other Documents
On the Closing date, the City of Fayetteville shall convey marketable and
insurable title to the premises by general warranty deed, free and clear of all liens,
restrictions, and encumbrances except as provided in this Agreement, subject only
to current real estate taxes (to be apportioned between the parties) and existing
easements. Casey's and the City of Fayetteville shall equally share the cost a
reasonable closing fee imposed by the closing agent employed by parties provided
however that Casey's shall be responsible for any revenue stamps resulting from
this transaction and all recordings fees for the deed and other documents that need
to be filed.
11. Use Restriction
At Closing the City of Fayetteville shall restrict the use when sold to a third
party of any and all real estate owned by the City of Fayetteville within one mile of
the Development Site for a period of twenty (20) years by placing within any
deed conveying such City owned property to a third party during the next 20 years
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a prohibition of the use of such property until 2033 for a gas station, convenience
store, tobacco store, or business that generates more than 50% of its revenue from
the sale of alcoholic beverages for off -premises consumption.
12. Real Estate Taxes
Real estate taxes shall be prorated in customary fashion to date of
possession.
13. Risk of Loss
Risk of loss as to the Development Site shall remain with the City of
Fayetteville until the Closing date.
14. Environmental Matters
The City warrants to the best of its knowledge and belief that (i) there are no
abandoned wells, solid waste disposal sites, hazardous wastes or substances, or
underground storage tanks located on the Development Site, (ii) the Development
Site does not contain levels of radon gas, asbestos, or urea -formaldehyde foam
insulation which require remediation under current governmental standards,
and(iii) the City had done nothing to contaminate the Development Site with
hazardous wastes or substances. The City warrants that the Development Site is
not subject to any local, state, or federal judicial or administrative action,
investigation or other, regarding wells, solid waste disposal sites, hazardous wastes
or substances, or underground storage tanks. Casey's shall be responsible for the
costs of any Phase T or Phase Yl environmental site assessment for the Development
Site, and for the costs of other customary third party due diligence reports.
15. Casey's Due Diligence
Casey's may enter upon the Development Site to conduct any surveying,
testing or inspection it deems necessary to ensure the Development Site will be
appropriate for the construction and use for a Casey's gas station/convenience
store. If Casey's discovers any problems that would adversely impact its
development and use of the Development Site for its store, Casey's shall notify the
City which is granted sixty (60) days to remediate any problem. The City may also
terminate this Agreement without penalty rather then remediating any problem or
issue discovered by Casey's.
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16. Large Scale Development Approval
Casey's shall, at its sole cost and expense, prepare a Large Scale
Development plat of the Development Site and obtain any and all approvals
necessary for Casey's intended use of the Development Site as a gas
station/convenience store. The City shall reasonably cooperate with Casey's in
Casey's request for development approval of a gas station and convenience store.
Casey's must present its development proposal through the normal City process
and follow the Unified Development Code requirements.
17. Casey's Conditions Precedent
Casey's obligation to close this transaction is expressly conditioned upon
each of the following:
(a) City shall have performed and complied in all material respects with
all agreements, terms, and conditions required by this agreement to be
performed by and complied with by City on or before the Closing date.
(b) All representations, warranties and covenants of City contained in
this Agreement shall be true and correct in all material respects as of the
Closing date.
(c) Casey's has obtained final approval of its Large Scale Development
proposal to construct a gas station/convenience store on the
Development Site.
If any of Casey's conditions precedent have not been satisfied or complied with
prior to the Closing date, Casey's may, by written notice to City within seven (7)
days of the Closing date cancel and terminate this Agreement. In the event that
this Agreement is terminated by Casey's as permitted by this Section, neither party
shall retain any rights or obligations under this Agreement, except that the Escrow
Deposit shall be returned to Casey's, except any portion thereof that has become
non-refundable to Casey's and the 25% of demolition costs up to $100,000.00
must still be paid to the City and not be refundable to Casey's unless the City has
refused to grant reasonable development rights to Casey's after its good faith
application for such development rights. Notwithstanding the foregoing, Casey's,
in its sole discretion, may waive any conditions precedent in its favor and elect to
proceed with the closing by the Closing date.
no
18. Broker
Casey's has been represented by Steve Fineberg & Associates, Inc. during
this sale and will be responsible to pay their brokerage fee.
19. Notices
Notices required by this Agreement shall be in writing and shall be delivered
to:
Casey's General Stores, Inc.
ATTN: Kirk Haworth
One S.E. Convenience Blvd.
P.O. Box 3001
Ankeny, IA 50021
or to:
City of Fayetteville
ATTN: Mayor's Office
113 W. Mountain Street
Fayetteville, AR 72701 72701-6083
20. Authority
or by FAX (515) 965-6107
or by FAX (479) 575-8257.
Each of the undersigned individuals represent and warrant that they are
authorized to enter into this Agreement on behalf of their respective entities and
that execution hereof will bind the entities to this Agreement.
21. Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute
one and the same agreement.
22. Facsimile
For purposes of executing this Agreement, a facsimile signature shall be as
effective an as actual signature.
7
23. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws
and public policies of the State of Arkansas.
24. Survival
The representations, warranties, and agreements of the parties contained
herein shall survive the closing date.
25. No Waivers
The waiver by either party hereto of any condition or the breach of any term,
covenant or conditions herein contained shall not be deemed to be a waiver of any
other condition or of any subsequent breach of the same or of any other term,
covenant or condition herein contained.
26. Time of Essence
Time is of the essence in this Agreement.
27. Invalidity
If for any reason any term or provision of this Agreement shall be declared
void and unenforceable by any court of law or equity it shall only affect such
particular term or provision of this Agreement and the balance of this Agreement
shall remain in full force and effect and shall be binding upon the parties hereto.
28. Complete Agreement
All understandings and agreements heretofore existing between the parties
are merged into this Agreement that alone fully and completely expresses their
agreement. This Agreement may be changed only in writing signed by both of the
parties hereto and shall apply to and bind the successors and assigns of each of the
parties hereto and shall not merge with the deed delivered to Casey's at closing.
8
Date: %&L
CASEY'S MARKETING COMPANY
By•
AM J. BILLM YER
Vice President
Witness:
By:
Fed. I.D. No.: 42-1435913
FAX No.: (515) 965-6107
Address: One S.E. Convenience Blvd.
P.O. Box 3001
Ankeny, IA 50021
SELLER:
Date:
CITY OF FAYETTEVILLE,
ARKANSAS
By:
LIONELD JORDAN
Mayor
ATTEST:
By:
Sondra E. Smith, City Clerk
0
DESIGNATED
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{1/15/2013) Sondra Smith ,Casey's Photo a _ Seite 1
From: "Amy Mills" <amy@arkrealestate.com>
To: "Kit Williams"<kwilliams@ci.fayetteville.ar.us>
Date: 1/15/2013 12:25 PM
Subject: Casey's Photo
Attachments: Caseys exterior 3.jpg; caseys exterior 1.jpg; Caseys exterior.jpg
Thank you Kit.
I am attaching a few photos of some other Casey's in Northwest Arkansas. We currently have 9 open
stores in Northwest Arkansas and 6 more under construction. Hopefully you have visited one of our
locations in Arkansas but if you haven't you will be surprised to see that the stores offer many features
including home made to go items including subs, pizza and cookies.
If I can provide any other details about Casey's stores to help familiarize you and the council with Casey's
stores let me know how I can help.
Amy
Amy Mills, CCIM
Executive Broker
Commercial Sales & Leasing
Steve Fineberg & Associates, Inc.
479-2714161 (Office) 47M85-8875 (Cell)
www.arkrealestate.com
-----Original Message ---
From: Kit Williams[mailto:kwilliams@ci.fayetteville.ar.usj
Sent: Tue 1/15/2013 10:58 AM
To: Amy Mills
Subject: RE: Attached Image
Amy,
We received and distributed Casey's better offer to the City Council. I will have a substitute
Resolution ready to accept this offer if that is what the City Council wants to do tonight.
Kit
Kit Williams, Fayetteville City Attorney
(479) 575-8313
FAX (479) 575-8315
113 West Mountain
Fayetteville, AR 72701
>>> "Amy Mills" <amy@arkrealestate.com> 1/15/2013 9:37 AM >>>
Hi Kit,
Wanted to let you know that the client I called about earlier this month
is Casey's as they disclosed in their offer to you yesterday.
I will be at the city council meeting tonight and look forward to
meeting you.
If you need anything from me or Casey's before the meeting please let us
(1I1512013) Sondra Smith NCasey's Photo __.. _.._. _....,, r,_.T Seite.2.
know.
Amy
Amy Mills, CCIM
Executive Broker
Commercial Sales & Leasing
Steve Fineberg & Associates, Inc.
479-271-4161 (Office) 479-685-8875 (Cell)
www.arkrealestate.com
-----Original Message ----
From: Kit Williams[mailto:kwilliams@ci.fayetteville.ar.us]
Sent: Friday, January 04, 2013 3:58 PM
To: Lioneld Jordan
Subject: Fwd: Attached Image
Mayor,
Pursuant to their request, I am forwarding the proposed land
Sale Agreement to representatives of the other entities which might want
to make an offer to buy the 1.87 acre parcel from the Tyson property.
Kit
Kit Williams, Fayetteville City Attorney
(479) 575-8313
FAX (479) 575-8315
113 West Mountain
Fayetteville, AR 72701
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Departmental Correspondence
Kit Williams
TO: Mayor Jordan CityAttorney
City Council Jason B. Kelley
Assistant City Attorney
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney
DATE: January 15, 2013
RE: Resolution to Accept $1,000,000.00 Offer
From Kum & Go, L.C.
We have received a signed original offer from Kum & Go, L.C. in the
amount of ONE MILLION DOLLARS ($1,000,000.00) for the two acre parcel of
the old Tyson factory property. I have prepared the attached Resolution for the
City Council's consideration and use if the City Council determines this is the best
offer to purchase the two acre parcel.
If an Alderman wishes to propose that Kum & Go's million dollar offer be
accepted, the Alderman should move to amend the Resolution in your Agenda
Packet which I drafted when the only offer was one for $900,000.00 from Kum &
Go, L.C. to the Resolution attached to this memo.
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SELL ABOUT
TWO ACRES OF THE TYSON FACTORY PROPERTY ON HUNTSVILLE
ROAD FOR $1,000,000.00 TO KUM & GO, L.C., TO AGREE TO COST
SHARE WITH KUM & GO ROADS OR DRIVEWAYS WITHIN THE TYSON
PROPERTY ADJOINING THIS TWO ACRE PARCEL AND THE
DEMOLITION OF THE FACTORY, AND TO RECOMMEND REZONING
THIS PARCEL TO NEIGHBORHOOD COMMERCIAL OR OTHER ZONING
DISTRICT SATISFACTORY TO KUM & GO, L.C.
WHEREAS, the City of Fayetteville used portions of the Tyson factory's lot obtained in
2004 for Highway 16 East right-of-way needs and for the construction of a new fire station; and
WHEREAS, now Kum & Go, L.C. has offered to purchase about two acres of the
remaining ten acres to be used for a Kum & Go gas station/convenience store; and
WHEREAS, the City Administration and Kum & Go, L.C. have worked out a proposed
agreement in which Kum & Go, L.C. would pay $1,000,000.00 for this two acre parcel and the
City and Kum & Go would cost share 50150 for the streets or driveways within the ten acre
parcel on the west and south sides of the two acre parcel, Kum & Go would cost share 25% (up
to $100,000,00) for the demolition of the old factory and both parties would agree to the broad
terms of the Concept Plat submitted by Kum & Go, L.C.
NOW, THEREFORE 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 has
determined that for the purposes of this proposed sale to Kum & Go, L.C., the parcel of about
two acres should be rezoned to Neighborhood Commercial or other zoning district agreeable to
Kum & Go, L.C. prior to its conveyance.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
Mayor Jordan to sign a Land Sale Agreement with Kum & Go, L.C. for the parcel shown on the
concept plat (about two acres) for $1,000,000.00 and sign the deed conveying such parcel to
Kum & Go, L.C.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby agrees: to
cost share 50150 with Kum & Go, L.C. for streets or driveways running from the intersection of
Happy Hollow and Huntsville through the property (on the west side of the two acre lot) and
along the southern border of this parcel to Ray Avenue; to cost share 75/25 (up to $100,000.00)
for the demolition and removal of the Tyson factory; to agree not to sell any other city -owned
property within one mile of this parcel for use of another convenience store/gas station, liquor
store or tobacco store; and to agree to the development of this parcel in the general form shown
in the Concept Plat attached to the Land Sale Agreement.
PASSED and APPROVED this 150' day of January, 2013.
ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
LO/1512013) Lisa Branson _ Kum & Go concept plan and building elevations
Seite 1
From; Jesse Fulcher
To: Branson, Lisa
CC: Garner, Andrew; Williams, Kit
Date: 1/15/2013 2:25 PM
Subject: Kum & Go concept plan and building elevations
Attachments: Kum & Go concept plan overall site.pdf; Kum & Go concept plan close up.pdf;
Kum & Go Elevations.pdf
I've attached the concept site plans (close up and overall site) and the proposed bullding elevations.
Jesse
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KUM & GO FAYETTEVILLE, ARKANSAS
HUNISVILLE AND HAPPY HOLLOW
SHIFFLER ASSOCIATES ARCHITECTS. P.L G
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113
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Departmental Correspondence
-APKANSAS .
Kit Williams
TO: Mayor Jordan City Attorney
Jason B. Kelley
City Council Assistant City Attorney
FROM: Kit Williams, City Attorney C
DATE: January 15, 2013
RE: Options
OPTIONS FOR THE CITY COUNCIL
Regarding Proposed Land Sale Agreement For Two Acre Parcel
I believe that the City Council has at least the following options regarding
the proposed sale of about two acres of the ten acre Tyson factor site:
(1) Approve the sale to Kum & Go, L.C. for One Million Dollars, plus up
to $100,000.00 in demolition costs of the old factory and other terms with the Land
Sale Agreement Kum & Go has provided. This would be accomplished by
amending the old Resolution in your Agenda Packet to the new one handed out
tonight and passing it.
(2) Approve the sale to Casey's Marketing Company, Inc. for One
Million Dollars, plus up to $100,000,00 in demolition costs of the old factory and
other terms with the Land Sale Agreement Kum & Go has provided. This would
be accomplished by amending the old Resolution in your Agenda Packet to the
new one handed out tonight and passing it.
(3) Table the Resolution and authorize both parties to provide a sealed
offer to sweeten or improve their offer so that the decision of which purchase offer
is best for our citizens and City is made at the next (February 5, 2013) City Council
meeting. This sealed offer to improve the current offer should be delivered to me
in sealed envelope by 4:00 p.m. on February 5, 2013 and not opened until the City
Council reaches the Old Business section for the Land Sale Agreement. I would
then publicly open and read such sealed offer to the City Council and provide it to
City Clerk Sondra Smith for our records.
This sealed offer would only include whatever enhancements in price
over and above the current offers that either Kum & Go or Casey's General
Store would wish to make. This can be zero or any amount of additional money
that the company wishes to make. No language to the effect that the company
would match or equal the other company's final offer will be considered or have
any operative effect. Only an actual amount of dollars increasing its current offer
of $1,000,000.00 will be considered.
The City Council will then consider both final offers and determine which is
the most advantageous for the citizens and City of Fayetteville. No further offers
to increase or match a competitor's bid will be considered.
If another party wished to submit its offer for this property, it must notify the
Mayor's Office no later than 4:30 p.m. on January 28, 2013 by providing a signed
Land Sale Agreement in the form as agreed to by both Kum & Go, L.C., and
Casey's Marketing Company, Inc. in an amount of at least $1,000,000.00. If the
City determines that this is a valid and proper offer from a company that has
established its financial and commercial ability to develop a good business on this
parcel, this business will also be allowed to submit a final sealed improvement
offer to the City Attorney's Office by 4:00 p.m. on February 5, 2013.
(4) The City Council may reject all offers to purchase this two acre site for
$1,000,000.00, plus another $100,000.00 for the demolition of the old factory.
kL4,A O'k -tv� 4,_ 'p- � r, I I -_s C'&
1
T le Departmental Correspondence
'ARKA 7-SAS
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney
DATE: February 4, 201.3
Kit Williams
CityAttorney
Jason B. Kelley
Assistant City Attorney
RE: Considerations relevant to the offers to purchase the two acre parcel
Exactly two months after I had assumed the duties as Fayetteville City
Attorney, I had to advise the Mayor and City Council that a Resolution passed by
the City Council and signed by Mayor Hanna the previous year was
unconstitutional. This Resolution promised to pay about $2.3 Million of property
taxes to the Boys and Girls Club to match an over $10 Million grant from the
Donald W. Reynolds Foundation to build a new Boys and Girls Club in
Fayetteville. My opinion was so disliked that an Attorney General's Opinion was
immediately sought by Aldermen. In Opinion No. 2001-135, Attorney General
Pryor confirmed that I had been correct. More important now were the Attorney
General's comments that a city can consider more than just money when
considering a conveyance of city property.
"With respect to the issue of consideration, it is well established that a
municipal corporation may convey public property or an interest
therein based upon consideration other than money."
The Attorney General then quoted from an earlier Opinion concerning what
type of non -monetary consideration could be appropriate:
"The Arkansas Supreme Court has held that even non -monetary
consideration can be adequate if a `public advantage' will result from
the lease."
CONCLUSION
Therefore, I believe that the City Council may consider any "public
advantage" in conjunction with the monetary offers made by Kum & Go and
Casey's General Store. My advice is that the principal consideration by far should
be the amount of money actually offered by the businesses. However, if the
monetary offers from both stores are relatively close, then the City Council may
consider other "public advantages" that one or the other of the two businesses
could offer and be received by the City and our citizens.
2
February 5, 2013
To: The Honorable Mayor Lioneld Jordan, and Fayetteville City Council Members
From: Lorel Hoffman
Regarding: Proposed development of City owned property on 1851 E. Huntsville Road, the former Tyson Complex.
Ladies and Gentlemen:
I am writing in opposition of the sale of city owned land, and development of the two competing proposals for gas
stations and convenience stores to be built on the referenced City owned site. As I understand it, the competing
offers are from Kum & Go, and The Country Market.
As a longtime Fayetteville resident and former Planning Commission Chair, I feel compelled to urgently request that
this course of action be immediately abandoned, until a more suitable use of this valuable asset is presented.
This location is located on a major traffic corridor leading to central Fayetteville, the University of Arkansas, and the
technology park. During my tenure on the PC, great care was taken to insure that traffic gateway roads were
developed in a responsible and appropriate manner. Cato Springs Road, just to the South of this location, is a prime
example. In addition, I can find no support of this type of development on either the 2030 Plan, the City's own
"Tyson Building Best Use and Financial Alternatives Report", or in any scenario of responsible and sustainable urban
planning common practice.
The arguments against such development are many:
• A new mega gas station and convenience store will force the two existing locally owned businesses, located
within less than one block of the site, to close.
• The proposed use is not sustainable in any way, and further encourages the use of the automobile and its
associated waste stream.
• The location, in the midst of a low to moderate income neighborhood, perpetuates, actually increases a food
desert condition where no healthy, locally grown food is available in the immediate vicinity.
• A convenience store is a magnet for crime. Many residents in the area have expressed fear of increased
traffic, crime, the sale of beer and wine in a residential area, loitering, and fumes.
• This type of development will produce a domino effect of undesirable commercial development; fast food
establishments purveying more junk food come first to mind.
The only favorable argument that I can see is that the City of Fayetteville makes some money on the sale of the
land. While this may appear good in the very short term, one needs only to look at the Mayor's 2013 State of the City
address. According to Mayor Jordan, the City coffers are full thanks to his careful stewardship of financial resources
during the recession. Why, then must the City sell an asset to a development which sets such a poor standard?
In summary, Fayetteville has so many great opportunities, natural beauty, and is poised to be recognized on a
national level for raising the bar of sustainable, responsible urban planning. Please don't take us backwards. Thank
you for your time.
Lore] Hoffman
Casey's General Stores, Inc.
One Convenience Blvd.
Ankeny, Iowa 50021
www.caseys.com
JONI DYAR
Real Estate/Store Development
Associate
Cell 515-490-7908
FAX 515-MB-6107
E-ma
jani.dyar@ca
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CC,t� Coc��L �Kee�1��
Cas 's Mission Statement:
It is Casey's Mission to:
Provide quality products at
competitive prices with
courteous service in clean stores
at convenient locations.
To provide a work environment
where employees are treated with
respect, dignity, and honesty, and
where high performance is
expected and rewarded.
To provide shareowders with a
fair ratnrn n-n insror+mono
I
Casey's Values: Our values are the same for all employees, regardless of position, and are
refined through experience and appointment to positions of greater responsibility. They are
the foundation of our character and are at the Dore of what makes us great as a team. Our
values support Casey's Business Code of Conduct and Ethics, as they bind all members into
a team dedicated to serving each other, our customers, our shareholders and the community.
Positive: The Casey's attitude and passion to
achieve excellence. This can -do, enthusiastic
spirit energizes every member of the
company's team. Our positive personal
demeanor defines our working environment
everyday, fuels motivation and encourages
others on the team do their
best to accomplish our Confidence
mission. �1
Teamwork
Proud
Community
Polite: Live the Golden Rule --Treat others as
you want to be treated. Casey's consistently
fosters a climate of service in which our most
precious resources; customers and employees, are
treated with dignity and respect. Fostering a
balanced and dignified climate at every level in
Positive Casey's begins with our leaders'
Leads by Example _ personal example.
Store Performance -
CD
Commitment to
Integrity Excellency
Professional
Polite
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1 CASEY' S GENERAL STORES, INC.
P.O. Box 3001 • One Convenience Blvd., Ankeny, Iowa 50021-8045 • 515-955-6100
Casey's General Stores has a lot of different energy initiatives, listed
below are some of them:
• All of our newly constructed stores use 100 percent high
efficiency LED lighting. Also, when we perform a major remodel
of an existing store, we replace the fluorescent lighting with LED
lighting.
o New canopies over the fuel pumps are being installed with both
time systems and photo eyes to help control the canopy lighting
in a more efficient manner.
• High efficiency natural gas heating and cooling units are
installed in all newly constructed stores, along with tankless
water heaters.
• Separate electrical and exhaust systems are installed for the
kitchen in new stores, which enable them to be completely
shut -down when the rest of the store is open and reduces the
amount of temperature -controlled air that escapes our stores.
Casey's General Stores are committed to delivering value and the
initiatives we have in place make good business sense, as well as a
positive environmental and social impact.
CASEYS GENERAL STORE
a a Bates SITE PLAN „Y
L—J
&AYETTEMLLE, ARKANSAS
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements �U uY i LU--1
NIA- Mayor's Approval w 6l•�I , � V
City Council Meeting Date
Agenda Items Only C* j
David.Jurgens Utilities Managem
ent Utilities
Submitted By Division Department
Action Required:
Approve an engineering contract with Garver, LLC, for $19,600, for the design required for removal of the Tyson
Building.
$ 19,600
Cost of this request
4470-9470-5400
Account Number
02046-1301
Project Number
Budgeted Item yes
PA
$ 797,331 Tyson Building Demolition
Category I Project Budget
Funds Used to Date
Program Category/ Project Name
5,950 Building Improvements
Program I Project Category Name
791,381 Sales Tax Capital
Remaining Balance Fund Name
Budget Adjustment Attached
14 AAK
Date
3-f8-1�
C4-'Attorney Date
)X7A
i ance and Internal Services Director Date 7
ate
3 /3
Date
Previous Ordinance or Resolution # 26-13
Original Contract Date: 2/5/2013
Original Contract Number:
Received in f,,4 :3 -1 3 A. 0 7: 15 R C V D
Clerk's Office t _
Received in WI—A
f
Mayor's Office
Revised January 15, 2009
s
Z•
aylep.,V, Hie
�ARKANSAS�
To: Mayor Lioneld Jordan
Thru: Don Marr, Chief of Staff
From: David Jurgens, Utilities Director
Date: March 16, 2013
CONTRACT APPROVAL MEMO
MAYOR'S APPROVAL
THE CITY OF FAYETTEVILLE, ARKANSAS
Subject: Garver Engineers Tyson Building Removal Design Contract for $19,600
RECOMMENDATION
City Staff recommends approving an engineering contract with Garver, LLC, for $19,600, for the design
required for removal of the Tyson Building.
BACKGROUND
The City of Fayetteville is removing the Tyson Building at 1851 East Huntsville Road, in preparation for sale
and development of approximately two acres of the site to and by Kum & Go. The sale contract was executed
February 5'l', 2013, and contains the following statement: "The City of Fayetteville agrees to demolish or pay a
reputable contractor to demolish and remove unsalvageable debris of the old Tyson Factory to include removing
its foundation, footings and slab within four months of both parties' execution of this Agreement." Staff is
working to sell the structure itself at open on-line auction (GovDeals) in an effort to reduce the overall cost of
removing the building. The GovDeal bid opens Wednesday, March 20''. Per the specifications of that bid, the
contractor will leave all masonry and concrete on site for grinding by a follow-on contractor. We then intend to
execute a traditional style construction contract for removal of the slab, foundation, and for grinding of all
concrete and masonry material.
DISCUSSION
This contract with Garver is to develop plans and specifications for removal of the slab and foundation and
grinding of all concrete, masonry, and asphalt material. Garver will provide professional engineering and
surveying services as required to demolish and remove the Tyson Building slab and below -grade foundation
material (to 30" below grade). On written instructions, if deemed required by the City because the GovDeals
auction does not work, Garver will provide professional engineering and surveying services as required to
demolish and remove the Tyson Building above -grade structure. Garver will also include the storm water
pollution prevention plan (SWPPP), erosion control plan, City required grading plan, and bidding phase
services. The City of Fayetteville will provide all construction phase services.
BUDGET IMPACT
Funding for this contract is coming in the short term from Building Maintenance capital funding. That is
intended to be reimbursed by proceeds from the Tyson Building sale, when received.
Garver Tyson Slab CCMemoMarl3
AGREEMENT
For
PROFESSIONAL ENGINEERING SERVICES
Between
CITY OF FAYETTEVILLE, ARKANSAS
And
GARVER, LLC
THIS AGREEMENT is made as of MUM d 8 i , 2013, by and between City of
Fayetteville, Arkansas, acting by and through its Mayor (hereinafter called CITY OF FAYETTEVILLE)
and GARVER, LLC (hereinafter called ENGINEER).
CITY OF FAYETTEVILLE from time to time requires professional engineering services in connection
with the evaluation, design, and/or construction supervision of capital improvement projects. Therefore,
CITY OF FAYETTEVILLE and ENGINEER in consideration of their mutual covenants agree as follows:
ENGINEER shall serve as CITY OF FAYETTEVILLE's professional engineering consultant in those
assignments to which this Agreement applies, and shall give consultation and advice to CITY OF
FAYETTEVILLE during the performance of ENGINEER's services. All services shall be performed
under the direction of a professional engineer registered in the State of Arkansas and qualified in the
particular field.
SECTION 1 - AUTHORIZATION OF SERVICES
1.1 Services on any assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of ENGINEER.
1.2 Assignments may include services described hereafter as Basic Services or as Additional Services
of ENGINEER.
1.3 Changes, modifications or amendments in scope, price or fees to this contract shall not be
allowed without a formal contract amendment approved by the Mayor and the City Council in
advance of the change in scope, costs, fees, or delivery schedule.
SECTION 2 - BASIC SERVICES OF ENGINEER
2.1 Perform professional services in connection with the Project as hereinafter stated.
2.1.1 The Scope of Services to be furnished by ENGINEER during the Project is included in
Appendix A attached hereto and made part of this Agreement.
2.2 ENGINEER shall coordinate their activities and services with the CITY OF FAYETTEVILLE.
ENGINEER and CITY OF FAYETTEVILLE agree that ENGINEER has full responsibility for
the engineering services.
Garver Contract - Professional Engineering Services
SECTION 3 - RESPONSIBILITIES OF CITY OF FAYETTEVILLE
3.1 CITY OF FAYETTEVILLE shall, within a reasonable time, so as not to delay the services of
ENGINEER.
3.1.1 Provide full information as to CITY OF FAYETTEVILLE's requirements for the Project.
3.1.2 Assist ENGINEER by placing at ENGINEER's disposal all available information pertinent to
the assignment including previous reports and any other data relative thereto.
3.1.3 Assist ENGINEER in obtaining access to property reasonably necessary for ENGINEER to
perform its services under this Agreement.
3.1.4 Examine all studies, reports, sketches, cost opinions, proposals, and other documents
presented by ENGINEER and render in writing decisions pertaining thereto.
3.1.5 Provide such professional legal, accounting, financial, and insurance counseling services as
may be required for the Project.
3.1.6 The Utilities Director is the CITY OF FAYETTEVILLE's project representative with respect
to the services to be performed under this Agreement. The Utilities Director shall have
complete authority to transmit instructions, receive information, interpret and define CITY
OF FAYETTEVILLE's policies and decisions with respect to materials, equipment, elements
and systems to be used in the Project, and other matters pertinent to the services covered by
this Agreement.
3.1.7 CITY OF FAYETTEVILLE and/or its representative will review all documents and provide
written comments to ENGINEER in a timely manner.
SECTION 4 - PERIOD OF SERVICE
4.1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
4.2 The provisions of this Agreement have been agreed to in anticipation of the orderly progress of
the Project through completion of the services stated in the Agreement. ENGINEER will proceed
with providing the authorized services immediately upon receipt of written authorization from
CITY OF FAYETTEVILLE. Said authorization shall include the scope of the services
authorized and the time in which the services are to be completed. The anticipated schedule for
this project is included as Appendix A.
SECTIONS - PAYMENTS TO ENGINEER
5.1 The maximum not -to -exceed amount authorized for this Agreement shall be based on a Unit Price
or Lump Sum basis as described in Appendix A.
5.2 Statements
5.2.1 Monthly statements for each calendar month shall be submitted to CITY OF
FAYETTEVILLE or such parties as CITY OF FAYETTEVILLE may designate for
professional services consistent with ENGINEER's normal billing schedule. Once
established, the billing schedule shall be maintained throughout the duration of the Project.
Garver Contract - Professional Engineering Services
Applications for payment shall be made in accordance with a format to be developed by
ENGINEER and approved by CITY OF FAYETTEVILLE. Applications for payment shall
be accompanied each month by the updated project schedule as the basis for determining the
value earned as the work is accomplished. Final payment for professional services shall be
made upon CITY OF FAYETTEVILLE's approval and acceptance with the satisfactory
completion of the study and report for the Project.
5.3 Payments
5.3.1 All statements are payable upon receipt and due within thirty (30) days. If a portion of
ENGINEER's statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion
shall be paid by CITY OF FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE
shall advise ENGINEER in writing of the basis for any disputed portion of any statement.
CITY OF FAYETTEVILLE will make reasonable effort to pay invoices within 30 days of
date the invoice is approved, however, payment within 30 days is not guaranteed.
5.4 Final Payment
5.4.1 Upon satisfactory completion of the work performed under this Agreement, as a condition
before final payment under this Agreement, or as a termination settlement under this
Agreement, ENGINEER shall execute and deliver to CITY OF FAYETTEVILLE a release of
all claims against CITY OF FAYETTEVILLE arising under or by virtue of this Agreement,
except claims which are specifically exempted by ENGINEER to be set forth therein. Unless
otherwise provided in this Agreement or by State law or otherwise expressly agreed to by the
parties to this Agreement, final payment under this Agreement or settlement upon termination
of this Agreement shall not constitute a waiver of CITY OF FAYETTEVILLE's claims
against ENGINEER or his sureties under this Agreement or applicable performance and
payment bonds, if any.
SECTION 6 - GENERAL CONSIDERATIONS
6.1 Insurance
6.1.1 During the course of performance of these services, ENGINEER will maintain (in United
States Dollars) the following minimum insurance coverages:
Tvoe of Coveraee
Workers' Compensation
Employers' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability:
Bodily Injury and
Property Damage
Professional Liability Insurance
Garver Contract - Professional Engineering Services
Limits of Liability
Statutory
$500,000 Each Accident
$1,000,000 Combined Single Limit
$1,000,000 Combined Single Limit
$1,000,000 Each Claim
ENGINEER will provide to CITY OF FAYETTEVILLE certificates as evidence of the
specified insurance within ten days of the date of this Agreement and upon each renewal of
coverage.
6.1.2 CITY OF FAYETTEVILLE and ENGINEER waive all rights against each other and their
officers, directors, agents, or employees for damage covered by property insurance during
and after the completion of ENGINEER's services.
6.2 Professional Responsibility
6.2.1 ENGINEER will exercise reasonable skill, care, and diligence in the performance of
ENGINEER's services and will carry out its responsibilities in accordance with customarily
accepted professional engineering practices. CITY OF FAYETTEVILLE will promptly
report to ENGINEER any defects or suspected defects in ENGINEER's services of which
CITY OF FAYETTEVILLE becomes aware, so that ENGINEER can take measures to
minimize the consequences of such a defect. CITY OF FAYETTEVILLE retains all
remedies to recover for its damages caused by any negligence of ENGINEER.
6.3 Cost Opinions and Projections
6.3.1 Cost opinions and projections prepared by ENGINEER relating to construction costs and
schedules, operation and maintenance costs, equipment characteristics and performance, and
operating results are based on ENGINEER's experience, qualifications, and judgment as a
design professional. Since ENGINEER has no control over weather, cost and availability of
labor, material and equipment, labor productivity, construction Contractors' procedures and
methods, unavoidable delays, construction Contractors' methods of determining prices,
economic conditions, competitive bidding or market conditions, and other factors affecting
such cost opinions or projections, ENGINEER does not guarantee that actual rates, costs,
performance, schedules, and related items will not vary from cost opinions and projections
prepared by ENGINEER.
6.4 Changes
6.4.1 CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
ENGINEER's services, with an appropriate change in compensation and schedule only after
Fayetteville City Council approval of such proposed changes and, upon execution of a
mutually acceptable amendment or change order signed by the Mayor of the CITY OF
FAYETTEVILLE and the duly authorized officer of ENGINEER.
6.5 Termination
6.5.1 This Agreement may be terminated in whole or in part in writing by either party in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party, provided that no termination may be effected unless the
other party is given:
6.5.1.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
6.5.1.2 An opportunity for consultation with the terminating party prior to termination.
Garver Contract - Professional Engineering Services 4
6.5.2 This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that ENGINEER is given:
6.5.2.1 Not less than ten (10) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
6.5.2.2 An opportunity for consultation with the terminating party prior to termination.
6.5.3 If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made, but
6.5.3.1 No amount shall be allowed for anticipated profit on unperformed services or other work,
6.5.3.2 Any payment due to ENGINEER at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of ENGINEER's default.
6.5.4 If termination for default is effected by ENGINEER, or if termination for convenience is
effected by CITY OF FAYETTEVILLE, the equitable adjustment shall include a reasonable
profit for services or other work performed. The equitable adjustment for any termination
shall provide for payment to ENGINEER for services rendered and expenses incurred prior to
the termination, in addition to termination settlement costs reasonably incurred by
ENGINEER relating to commitments which had become firm prior to the termination.
6.5.5 Upon receipt of a termination action under Paragraphs 6.5.1 or 6.5.2 above, ENGINEER
shall:
6.5.5.1 Promptly discontinue all affected work (unless the notice directs otherwise),
6.5.5.2 Deliver or otherwise make available to CITY OF FAYETTEVILLE all data, drawings,
specifications, reports, estimates, summaries and such other information and materials as
may have been accumulated by ENGINEER in performing this Agreement, whether
completed or in process.
6.5.6 Upon termination under Paragraphs 6.5.1 or 6.5.2 above CITY OF FAYETTEVILLE may
take over the work and may award another party an agreement to complete the work under
this Agreement.
6.5.7 If, after termination for failure of ENGINEER to fulfill contractual obligations, it is
determined that ENGINEER had not failed to fulfill contractual obligations, the termination
shall be deemed to have been for the convenience of CITY OF FAYETTEVILLE. In such
event, adjustments of the agreement price shall be made as provided in Paragraph 6.5.4 of
this clause.
6.6 Delays
6.6.1 In the event the services of ENGINEER are suspended or delayed by CITY OF
FAYETTEVILLE or by other events beyond ENGINEER's reasonable control, ENGINEER
shall be entitled to additional compensation and time for reasonable costs incurred by
ENGINEER in temporarily closing down or delaying the Project.
Garver Contract - Professional Engineering Services 5
6.7 Rights and Benefits
6.7.1 ENGINEER's services will be performed solely for the benefit of CITY OF
FAYETTEVILLE and not for the benefit of any other persons or entities.
6.8 Dispute Resolution
6.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes
between CITY OF FAYETTEVILLE and ENGINEER which arise from, or in any way are
related to, this Agreement, including, but not limited to the interpretation of this Agreement,
the enforcement of its terms, any acts, errors, or omissions of CITY OF FAYETTEVILLE or
ENGINEER in the performance of this Agreement, and disputes concerning payment.
6.8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 6.8.3, but an action is initiated prior to exhaustion
of these procedures, such action shall be stayed, upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 6.8.3 and 6.8.4 have been complied
with.
6.8.3 Notice of Dispute
6.8.3.1 For disputes arising prior to the making of fnaI payment promptly after the occurrence of
any incident, action, or failure to act upon which a claim is based, the party seeking relief
shall serve the other party with a written Notice.
6.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give ENGINEER written Notice at the address listed in
Paragraph 6.14 within thirty (30) days after occurrence of any incident, accident, or first
observance of defect or damage. In both instances, the Notice shall specify the nature
and amount of relief sought, the reason relief should be granted, and the appropriate
portions of this Agreement that authorize the relief requested.
6.8.4 Negotiation: Within seven days of receipt of the Notice, the Project Managers for CITY OF
FAYETTEVILLE and ENGINEER shall confer in an effort to resolve the dispute. If the
dispute cannot be resolved at that level, then, upon written request of either side, the matter
shall be referred to the President of ENGINEER and the Mayor of CITY OF
FAYETTEVILLE or his designee. These officers shall meet at the Project Site or such other
location as is agreed upon within 30 days of the written request to resolve the dispute.
6.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of obtaining
funds to remit payment to ENGINEER for services rendered by ENGINEER.
6.10 Publications
6.10.1 Recognizing the importance of professional development on the part of ENGINEER's
employees and the importance of ENGINEER's public relations, ENGINEER may prepare
publications, such as technical papers, articles for periodicals, and press releases, pertaining
to ENGINEER's services for the Project. Such publications will be provided to CITY OF
FAYETTEVILLE in draft form for CITY OF FAYETTEVILLE's advance review. CITY OF
FAYETTEVILLE shall review such drafts promptly and provide CITY OF
FAYETTEVILLE's comments to ENGINEER CITY OF FAYETTEVILLE may require
Garver Contract - Professional Engineering Services (?
deletion of proprietary data or confidential information from such publications, but otherwise
CITY OF FAYETTEVILLE will not unreasonably withhold approval. The cost of
ENGINEER's activities pertaining to any such publication shall be for ENGINEER's
account.
6.11 Indemnification
6.11.1 CITY OF FAYETTEVILLE agrees that it will require all construction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and ENGINEER from and
against any and all loss where loss is caused or incurred or alleged to be caused or incurred in
whole or in part as a result of the negligence or other actionable fault of the Contractors, or
their employees, agents, Subcontractors, and Suppliers.
6.12 Ownership of Documents
6.12.1 All documents provided by CITY OF FAYETTEVILLE including original drawings, CAD
drawings, estimates, field notes, and project data are and remain the property of CITY OF
FAYETTEVILLE. ENGINEER may retain reproduced copies of drawings and copies of
other documents.
6.12.2 Engineering documents, computer models, drawings, specifications and other hard copy or
electronic media prepared by ENGINEER as part of the Services shall become the property
of CITY OF FAYETTEVILLE when ENGINEER has been compensated for all Services
rendered, provided, however, that ENGINEER shall have the unrestricted right to their use.
ENGINEER shall, however, retain its rights in its standard drawings details, specifications,
databases, computer software, and other proprietary property. Rights to intellectual property
developed, utilized, or modified in the performance of the Services shall remain the property
of ENGINEER.
6.12.3 Any files delivered in electronic medium may not work on systems and software different
than those with which they were originally produced. ENGINEER makes no warranty as to
the compatibility of these files with any other system or software. Because of the potential
degradation of electronic medium over time, in the event of a conflict between the sealed
original drawings/hard copies and the electronic files, the sealed drawings/hard copies will
govern.
6.13 Notices
6.13.1 Any Notice required under this Agreement will be in writing, addressed to the appropriate
party at the following addresses:
CITY OF FAYETTEVILLE's address:
113 West Mountain Street
Fayetteville, Arkansas 72701
ENGINEER's address:
2049 East Joyce Blvd., Suite 400
Fayetteville, AR 72703
Garver Contract - Professional Engineering Services
6.14 Successor and Assigns
6.14.1 CITY OF FAYETTEVILLE and ENGINEER each binds himself and his successors,
executors, administrators, and assigns to the other party of this Agreement and to the
successors, executors, administrators, and assigns of such other party, in respect to all
covenants of this Agreement; except as above, neither CITY OF FAYETTEVILLE nor
ENGINEER shall assign, sublet, or transfer his interest in the Agreement without the written
consent of the other.
6.15 Controlling Law
6.15.1 This Agreement shall be subject to, interpreted and enforced according to the laws of the
State of Arkansas without regard to any conflicts of law provisions.
6.16 Entire Agreement
6.16.1 This Agreement represents the entire Agreement between ENGINEER and CITY OF
FAYETTEVILLE relative to the Scope of Services herein. Since terms contained in
purchase orders do not generally apply to professional services, in the event CITY OF
FAYETTEVILLE issues to ENGINEER a purchase order, no preprinted terms thereon shall
become a part of this Agreement. Said purchase order document, whether or not signed by
ENGINEER, shall be considered as a document for CITY OF FAYETTEVILLE's internal
management of its operations.
SECTION 7 - SPECIAL CONDITIONS
7.1 Additional Responsibilities of ENGINEER
7.1.1 CITY OF FAYETTEVILLE's review, approval, or acceptance of design drawings,
specifications, reports and other services furnished hereunder shall not in any way relieve
ENGINEER of responsibility for the technical adequacy of the work. Neither CITY OF
FAYETTEVILLE's review, approval or acceptance of, nor payment for any of the services
shall be construed as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement.
7.1.2 ENGINEER shall be and shall remain liable, in accordance with applicable law, for all
damages to CITY OF FAYETTEVILLE caused by ENGINEER's negligent performance of
any of the services furnished under this Agreement except for errors, omissions or other
deficiencies to the extent attributable to CITY OF FAYETTEVILLE or CITY OF
FAYETTEVILLE-furnished data.
7.1.3 ENGINEER's obligations under this clause are in addition to ENGINEER's other express or
implied assurances under this Agreement or State law and in no way diminish any other
rights that CITY OF FAYETTEVILLE may have against ENGINEER for faulty materials,
equipment, or work.
7.2 Remedies
7.2.1 Except as may be otherwise provided in this Agreement, all claims, counter -claims, disputes
and other matters in question between CITY OF FAYETTEVILLE and ENGINEER arising
Garver Contract - Professional Engineering Services 8
out of or relating to this Agreement or the breach thereof will be decided in a court of
competent jurisdiction within Arkansas.
7.3 Audit: Access to Records
7.3.1 ENGINEER shall maintain books, records, documents and other evidence directly pertinent
to performance on work under this Agreement in accordance with generally accepted
accounting principles and practices consistently applied in effect on the date of execution of
this Agreement. ENGINEER shall also maintain the financial information and data used by
ENGINEER in the preparation of support of the cost submission required for any negotiated
agreement or change order and send to CITY OF FAYETTEVILLE a copy of the cost
summary submitted. CITY OF FAYETTEVILLE, the State or any of their authorized
representatives shall have access to all such books, records, documents and other evidence for
the purpose of inspection, audit and copying during normal business hours. ENGINEER will
provide proper facilities for such access and inspection.
7.3.2 Records under Paragraph 7.3.1 above, shall be maintained and made available during
performance on assisted work under this Agreement and until three years from the date of
final payment for the project. In addition, those records which relate to any controversy
arising out of such performance, or to costs or items to which an audit exception has been
taken, shall be maintained and made available until three years after the date of resolution of
such appeal, litigation, claim or exception.
7.3.3 This right of access clause (with respect to financial records) applies to:
7.3.3.1 Negotiated prime agreements:
7.3.3.2 Negotiated change orders or agreement amendments in excess of $10,000 affecting the
price of any formally advertised, competitively awarded, fixed price agreement:
7.3.3.3 Agreements or purchase orders under any agreement other than a formally advertised,
competitively awarded, fixed price agreement. However, this right of access does not
apply to a prime agreement, lower tier subagreement or purchase order awarded after
effective price competition, except:
7.3.3.3.1 With respect to record pertaining directly to subagreement performance, excluding
any financial records of ENGINEER;
7.3.3.3.2 If there is any indication that fraud, gross abuse or corrupt practices may be involved;
7.3.3.3.3 If the subagreement is terminated for default or for convenience.
7.4 Covenant Against Contingent Fees
7.4.1 ENGINEER warrants that no person or selling agency has been employed or retained to
solicit or secure this Agreement upon an agreement of understanding for a commission,
percentage, brokerage or continent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by ENGINEER for the purpose of
securing business. For breach or violation of this warranty, CITY OF FAYETTEVILLE shall
have the right to annul this Agreement without liability or at its discretion, to deduct from the
Garver Contract - Professional Engineering Services 9
contract price or consideration, or otherwise recover, the full amount of such commission,
percentage, brokerage, or contingent fee.
7.5 Gratuities
7.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that ENGINEER or any of
ENGINEER's agents or representatives, offered or gave gratuities (in the form of
entertainment, gifts or otherwise) to any official, employee or agent of CITY OF
FAYETTEVILLE, in an attempt to secure an agreement or favorable treatment in awarding,
amending or making any determinations related to the performance of this Agreement, CITY
OF FAYETTEVILLE may, by written notice to ENGINEER terminate this Agreement. CITY
OF FAYETTEVILLE may also pursue other rights and remedies that the law or this
Agreement provides. However, the existence of the facts on which CITY OF
FAYETTEVILLE bases such finding shall be in issue and may be reviewed in proceedings
under the Remedies clause of this Agreement.
7.5.2 In the event this Agreement is terminated as provided in Paragraph 7.5.1, CITY OF
FAYETTEVILLE may pursue the same remedies against ENGINEER as it could pursue in
the event of a breach of the Agreement by ENGINEER As a penalty, in addition to any other
damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue
exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which
shall be not less than three nor more than ten times the costs ENGINEER incurs in providing
any such gratuities to any such officer or employee.
7.6 Arkansas Freedom of Information Act
7.6.1 City contracts and documents, including internal documents and documents of subcontractors
and sub -consultants, prepared while performing City contractual work are subject to the
Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is
presented to the CITY OF FAYETTEVILLE, ENGINEER will do everything possible to
provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom
of Information Act (A.C.A. §25-19-101 et seq.). Only legally authorized photocopying costs
pursuant to the FOIA may be assessed for this compliance.
IN WITNESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and
ENGINEER, by its authorized officer have made and executed this Agreement as of the day and year first
above written.
CITY OF FAYETTEVILLE, ARKANSAS
By.
Lioneld rdan, NIa
ATTEST:
By:
S xt tp(i l ri Clerk
"-
GARVER, L
B y: f� �4 -
g20cK NoSKints
Title: �i' � V P
:''G1TY 0 0 s'.
NK& AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES
FAYETTEVILLE %7-0=
�girRI Engineering Services
/°•.R••R•R
GrON a, .
10
Appendix A- I
Scope of Work
I. Project Title: Tyson Complex Demolition Design Services
Project Description: GARVER will provide professional engineering and surveying services as
required to demolish and remove the Tyson Building slab and below -grade foundation material
(to 30" below grade). On written instructions, if deemed required by the City, GARVER will
provide professional engineering and surveying services as required to demolish and remove the
Tyson Building above -grade structure.
Services of Garver:
a. Develop specifications and, if required, plans, for the removal of the slab, below -grade
foundation material (to 30" below grade), and all pavement of the existing Tyson Building
facility located within the property to be sold to the Kum & Go development, 1851 E. Huntsville
Road, Fayetteville, AR 72701, and restoration to existing grade with suitable material in
preparation for development (per the planned Kum & Go development) or as an open lot (for the
remainder of the space).
b. Develop specifications and, if required, plans, for the grinding of all residual masonry and
concrete material to product standards for reuse in the construction of a Kum and Go facility on
the site where the Tyson Building is removed. The Kum & Go intends to reuse all possible
material to obtain LEED certification. Reinforcing metal and other non-grindable material must
be removed and recycled and/or properly disposed of. Contractor must document all recycled
and/or reused material.
c. If directed in writing by the City, develop specifications to remove the structure of the Tyson
Building. This task will only be executed if other means of removal are not successful. The City
has posted the Tyson Building removal in an on-line auction on GovDeals, with the objective of
receiving bids for removal of the building to within 6" of the slab and/or existing grade. This is
the first time the City has employed GovDeals in this fashion, so this contract task is a backup in
case the GovDeals auction does not work as planned.
d. Bidding: Develop bid package, respond to contractor questions prior to bidding, develop
addendum as required.
e. Construction phase services: The CITY OF FAYETTEVILLE will provide all construction
phase services.
f. Extra Work: In addition to the items aforementioned as extra work outside of this agreement or
provided by the CITY OF FAYETTEVILLE, the following items are considered extra work:
I. Boundary surveys and lot splits.
2. Utility location, design of utilities, and coordination with franchise utility companies.
3. Property record research.
4. Design of an above ground or below ground storm water system.
5. Hazardous materials identification.
6. Preparation of a City Demolition Permit.
7. Preparation of a City Storm Water Permit.
8. Environmental Handling and Documentation, including wetlands identification or
mitigation plans or other work related to environmentally or historically (culturally)
significant items.
9. Coordination with FEMA and preparation/submittal of a CLOMR and/or LOMR.
4. Payment to Engineer: The CITY OF FAYETTEVILLE will pay GARVER, for time spent on the
project, at the unburdened hourly payroll rate of each of GARVER'S personnel during the
performance of these services for work time directly connected with the project, plus payroll and
general overhead costs of 191.95% of the unburdened hourly rate, plus direct reimbursable
expenses normal and necessary for the completion of the project, plus a professional fee of 12%
of actual work invoiced. The not to exceed cost of these services is $19,600.00. The actual total
fee may not exceed this amount without a formal contract amendment approved by the CITY OF
FAYETTEVILLE. For informational purposes, a breakdown of Garver's approximate current
hourly rates for each employee classification is included in Exhibit A.
Expenses other than salary costs that are directly attributable to performance of professional
services will be billed as follows:
a. Direct cost for travel, outside reproduction and presentation material preparation, and
mail/courier expenses.
b. Direct cost plus 10 percent for subcontract/subconsultant fees (not subject to professional
fee).
C. Charges similar to commercial rates for reports, plan sheets, presentation materials, etc.
d. The amount allowed by the federal government for mileage with an additional $0.05 for
survey trucks/vans.
C. $20 per hour for GPS survey equipment use.
In addition to the fees described above and as may be modified for additional services required,
the CITY OF FAYETTEVILLE will reimburse GARVER the actual amount invoiced to
GARVER plus a 10 percent administrative markup.
Schedule. This is a very fast paced project, with the City required to complete demolition no later
than June 5, 2013. Documents are required to be completed no later than 30 calendar days from
notice to proceed.
6. Deliverables:
a. Sealed Construction Drawings (if required), including Details printable at 22"x36" (full
size) and 11"x17" (half size) in .pdf format.
b. Opinion of Probable Construction Cost
C. SWPPP Document and Drawings
7. Attachments: Exhibit A - Hourly Rate Schedule
Exhibit B - Site Map
EXHIBIT A
Tyson Complex Demolition
Garver Hourly Rate Schedule
Classification Rates
Engineers 1 Architects ,°, � ,
E-1.............................................................................. $ 26.50
E-2.............................................................................. $ 34.00
E-3.............................................................................. $
40.00
E4.............................................................................. $ 49.00
E-5.............................................................................. $ 60.00
P-1................................................. ........................ $ 31.50
P-2.............................................................................. $ 42.50
D-1 .......................................................................... $ 27.50
T-1............................................................................... $ 20.00
_. _.
S-1..............................................................................
$ 13.00
S-2..............................................................................
$ 15.50
S-3..............................................................................
$ 21.00
S-4..................................................................I...........
$ 29.00
S-5 ..............................................................................
$ 43.00
2-Man Crew (Survey).......................................................
$ 48.00
3-Man Crew (Survey).......................................................
$ 64.00
2-Man Crew (GPS Survey) ................................................
NA
3-Man Crew (GPS Survey) ................................................
NA
'Construction Ubsn
C-1..............................................................................
NA
C-2..............................................................................
NA
anon;
X-1...................................................................I.—...... $ 17.00
X-2.............................................................................. $ 23.00
X-3.............................................................................. $ 41.00
Agreement for Professional Services
Tyson Complex Demolition Garver Project No. 13047050
4::II;j1.f I
CITY OF FAYETTEVILLE
TYSON COMPLEX DEMOLITION
FEE SUMMARY
Title I Services Estimated Fees
Record Research $0.00
Utility Marking $0.00
Environmental Handling/Documentation $0.00
Surveys $4,450.00
Construction Documents - Pavement Removal $9,300.00
Construction Documents - Building Removal $4,000.00
Bidding Services $1,850.00
Subtotal for Title I Services $19,600.00
Title II Services
Construction Materials Testing
$0.00
Construction Phase Services
$0.00
Subtotal for Title II Services
$0.00
X:\2013\13047050 - Fayetteville Warehouse Demolition\Contracts\Client\APPENDIX B - Garver Fee Spreadsheet - cost plus
fixed fee
EXHIBIT A
CITY OF FAYETTEVILLE
TYSON COMPLEX DEMOLITION
SURVEYS
Hours
Som Coati
SUBTOTAL -SALARIES.
LRSOR AND GENERAL
AIM INISTRAMP GVi RHM
DIRECT RONIABOR EXPENSES
JO umoa FMM roMmpro&e WAsae *
PoabMfff0Q64C0UrW
3u Supplies
Tray 10C
SUBTOTAL • DIRECT 7W WLAeOR EXPENSES:
a o � e ❑ o
50 ❑❑ $0.00 F13.00 $145.90 10,DD -... 50m
71.310A0
rAS7l.13
d2U..08
s0.00
$15.00
SUBTOTAL $A973.21
PROFESSIONAL FEE s476.79
TOTALFEE: s<muo
❑ 24 0 0
50.00 51.162m Y0.00 $0.00
MARHOUR
SUBTOTALS
30
EXHIBIT A
CITY OF FAYETTEVILLE
TYSON COMPLEX DEMOLITION
CONSTRUCTION DOCUMENTS - PAVEMENT REMOVAL
■■r���■moo
Neu.
s.0.y ❑ue[a
sLUMTAL • SAE ES:
LABOR AND GENERAL
ADMINISTRATIVE DYERNEAD
DIRECT NONAABGR EXROM6
Doc9 Pm&Wrdpmdudiwraaer4*q
Pwm./F.ghLK w' r
TraveiOw�
SUBTOTAL- DIRECT NON -LABOR EVENSE&
0 6 0 0 20 33 0
$oW 53 -w mpg $0.00 6664.00 2674.50 SD.00
&ZI0YA0
A37EA4
smm
slaw
$7000
SIM13
SIBTQTAL 3%30347
PRaFES' !. FEE %096A3
TOTAL FEE. fk,S
9 0 m 0
�sso Do.00 swo.w m.i
MA3JRouR
BtlBZ7AL$
f4
EXHIBIT A
CITY OF FAYETTEVILLE
TYSON COMPLEX DEMOLFTION
CONSTRUCTION DOCUMENTS - BUILDING REMOVAL
WORK TASK DESCRIPTION
E-6
E-6
E-4
E-3
E-2
E-1
T-2
T-1
X-1
$61.50
$60.00
W-clo
W-00
$M-00
Szr 60
Mix)
620.00
W.00
hr
hr
hr
hr
hr
IX
hr
hr
hr
1. Ciwl Enpineeriy
ConsuuglOn Dowments
Plan SheeE(s)
1
4
5
Typinl Damn
2
6
SpeaCimlimslConVOrl �MJmENs
$
Cnardlnwl and Mee fts nth Ow m
1
1
OuBi1DYR6
-_r_
2
2
Option of Prabebte Canslrw7ion Cast ---- --- --.. ........
2
2
OC Review
ubmtal- 5vW Erk&"rng
0
0
1 0
0
20
4
0
12
0
llou rs
SalarycOfits
0 S 0 0 20 d 0 12 0
S0.00 $180.00 50.00 $0.00 $690.00 S1D8.00 50.00 5240M 50.00
SUBTOTAL - SALARIES:
$1,206.00
LABOR AND GENERAL
ADMINISTRATIVE OVERHEAD
M314.92
DIRECT NOW -LABOR EXPENSES
Document PfintOtWRBproQve[IaNPssanmry
$3D.61
P—tagdFr6Qhvcmr; r
10.00
Travel C..N
M.00
SUBTOTAL - DIRECT NON -LABOR EXPENSES:
360.51
SUBTOTAL:
$8,571A3
PROFESSIONAL FEE
942E-57
TOTAL FEE:
KOW..00
~OUR
SUBTOTALS
39
EXHIBIT A
CITY OF FAYETTEVILLE
TYSON COMPLEX DEMOLITION
BIDDING SERVICES
WORK TASK DESCRIPTION
E-6
E•6
E•4
E-3
E-2
E1
T-2
T•1
X-1
$01.85
$10.00
hr
$49.Do
hr
$4001
---hr
$34.00
626.50
630.00
$20.00
$17.00
hr
hr
hr
hr
he
Ir
1. Civil ENineering
Addenda Arqulbna
0.5
3
Old Openlrg
2
Prepare bid t bJeBna
evaluate bids and recommend award
Prepare wmlrmlon oonnm
-
0.5
2
Nuli-In P—d
--
1
0
0
0
Subtutil - Civil Ewhmmdn0
0
1.s
0
9
0
4
Yours 0 1.5 0 9 0 4 0 0 0
Salary Coats Moo U0.00 $0.00 M-00 60.00 M051o0 $0.00 $0.00 $0-I
SUBTOTAL - SALARIES: $56&00
LABOR AND GENERAL
ADh11NISTRATIVE OVERHEAD $1,067.24
DIRECT NOPiLA®DR F]fPENSE3
9ocumerm PfmtiftWRbprodv%i0NA$somW S13.54
PwtagelFreigM6Courier SO.00
Travel Ceala 415.00
SUBTOTAL - DIRECT NON -LABOR EXPENSES: M64
SUBTOTAL: $1,051.78
PROFESSIONAL FEE $196.21
TOTAL FEE: 11.850A0
NIANHOUR
SUB707ALS
" - a& - /3
WevilleDepartmental Correspondence
RKANSAS
TO: Mayor Jordan
City Council
CC: Sondra Smith, City Clerk
Paul Becker, Finance Director
David Jurgens, Utilities Director
Peggy Vice, Purchasing Manager
FROM: Kit Williams, City Attorney
DATE: April 2, 2013
RE: Second Amendment to Land Sale Agreement
K �I
Kit Williams
CityAttorney
Jason B. Kelley
Assistant City Attorney
Kum & Go, L C has just supplied me with the attached signed copy of the
Second Amendment To Land Sale Agreement which extends the date for the City
to finish the demolition of the Tyson Factory including its foundation/slab.
Without such an extension, we would not have had enough time for the salvage of
the factory itself and the later demolition of the foundation.
This salvage sale rather than demolition of the factory not only is good for
the environment and LEED certification, but should save Kum & Go around
$50,000 and save the City more than $150,000. I want to thank Mayor Jordan,
Finance Director Paul Becker, Utilities Director David Jurgens and Purchasing
Manager Peggy Vice and her staff for coming up with this innovative, cost savings
plan that has been so successful to save our citizens substantial money.
SECOND AMENDMENT
TO LAND SALE AGREEMENT
THIS SECOND AMENDMENT -TO LAND SALE AGREEMENT
(her, fter, the "Amendment") is made and entered into effective the �/ day
of 2013, by and between the CITY OF FAYETTEVILLE, AR, a municipal
corporation ("City" or "Fayetteville"), and KUM & GO, L.C., an Iowa limited
liability company ("Kum & Go"), WITNESSETH:
WHEREAS, Kum & Go and City have entered into that certain Purchase
Agreement (the "Agreement") whereby City has agreed to sell and Kum & Go has
agreed to buy certain real estate situated in Fayetteville, Arkansas; and
WHEREAS, Kum & Go and the City have entered into the First
Amendment to Land Sale Agreement on February 4, 2013; and
WHEREAS, Kum & Go and City desire to amend this Agreement for a
second time as set forth herein.
NOW THEREFORE, in - consideration of the mutual promises and
covenants herein contained, and for other good and valuable consideration, it is
agreed as follows:
1. Extension of Time for Demolition. In order to permit enough time for
the City of Fayetteville to attempt to sell the Tyson Factory building above the
foundation prior to demolishing and crushing the building's foundation, Kum &
Go, L.C. and the City of Fayetteville agree to extend the period of time allowed to
complete the demolition in Paragraph 3.A. until August 22, 2013.
2. Reducing Demolition Costs by Any Proceeds From Sale. The City of
Fayetteville agrees that any and all proceeds (if any) derived from the sale of the
building shall be used to offset the total demolition costs (which are shared 75% to
City and 25% to Kum & Go, L.C. (with a cap of $100,000.00)).
3. Ratification. Except as modified by this Amendment, the Agreement
and its First Amendment are ratified and confirmed by the parties.
4. Counterparts, Facsimile. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement. For purposes of
executing this Amendment, a facsimile signature shall be as effective as an actual
signature.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed all on or as of the day and year first above written.
KUM & GO, L.C.
By: B
NM DePHILLIPS,
SVP Store Development
lei N.Y'1
ATTEST:
VILLE, AR
By: �Q«—
SONDRA E. SMITH, City Clerk
• � r
: FAYETTEVILLE
'9 S •a.:
5 �
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