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HomeMy WebLinkAbout300-21 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 Resolution: 300-21 File Number: 2021-0921 LUSHBAUGH HOLDINGS, LLC: A RESOLUTION TO APPROVE AN AGREEMENT FOR EASEMENTS WITH LUSHBAUGH HOLDINGS. LLC AS WELL AS PARKING AND ACCESS, SIDEWALK, AND TEMPORARY CONSTRUCTION AND GRADING EASEMENTS FOR PROPERTY LOCATED AT 418 WEST MEADOW STREET ASSOCIATED WITH THE WEST AVENUE STREETSCAPES IMPROVEMENT PROJECT WHEREAS. the West Avenue Streetscapes Improvement Project requires the acquisition of a sidewalk easement on property located at 418 West Meadow Street owned by Lushbaugh Holdings, LLC: and WHEREAS, on October 5, 2021. the City Council approved Resolution 244-21 authorizing a lease amendment with TheatreSquared. Inc. that included removal of 91 square feet of property from its lease so that an access easement could be granted to Lushbaugh Holdings, LLC; and WHEREAS, the proposed easement agreement provides for a permanent sidewalk easement and temporary construction and grading easement to be conveyed to the City and a parking and access easement for the 91 square foot portion of property to be conveyed to Lushbaugh Holdings. LLC for the full use of the driveway, as well as other terms and conditions related to the West Avenue Streetscapes Improvement Project as it impacts this property. NOW, THEREFORE, BE 1T RESOLVED BV THE CITY COUNCIL OF THE CITY OF FAVETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville. Arkansas hereby authorizes Mayor Jordan to execute the Agreement for Easements. Parking and Access Easement. Sidewalk Easement. and Page 1 Printed on 12/8/21 Resolution: 300-21 File Number: 2021-0921 Temporary Construction and Grading Easement, copies of which are attached to this Resolution, with Lushbaugh Holdings, LLC for property located at 418 West Meadow Street associated with the West Avenue Streetscapes Improvement Project. PASSED and APPROVED on 12/7/2021 Attest: Kara Paxt ,City Clerk Treasurer Y FAYETTEVILLE: s Page 2 Printed on 1218121 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 6- . '@ (479) 575-8323 Text File — File Number: 2021-0921 ,Agenda Date: 12/7/2021 Version: 1 Status: Passed In Control: City Council Meeting File Type: Resolution Agenda Number: A.13 LUSHBAUGH HOLDINGS, LLC: A RESOLUTION TO APPROVE AN AGREEMENT FOR EASEMENTS WITH LUSHBAUGH HOLDINGS, LLC AS WELL AS PARKING AND ACCESS, SIDEWALK, AND TEMPORARY CONSTRUCTION AND GRADING EASEMENTS FOR PROPERTY LOCATED AT 418 WEST MEADOW STREET ASSOCIATED WITH THE WEST AVENUE STREETSCAPES IMPROVEMENT PROJECT WHEREAS, the West Avenue Streetscapes Improvement Project requires the acquisition of a sidewalk easement on property located at 418 West Meadow Street owned by Lushbaugh Holdings, LLC; and WHEREAS, on October 5, 2021, the City Council approved Resolution 244-21 authorizing a lease amendment with TheatreSquared, Inc. that included removal of 91 square feet of property from its lease so that an access easement could be granted to Lushbaugh Holdings, LLC; and WHEREAS, the proposed easement agreement provides for a permanent sidewalk easement and temporary construction and grading easement to be conveyed to the City and a parking and access easement for the 91 square foot portion of property to be conveyed to Lushbaugh Holdings, LLC for the full use of the driveway, as well as other terms and conditions related to the West Avenue Streetscapes Improvement Project as it impacts this property. 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 authorizes Mayor Jordan to execute the Agreement for Easements, Parking and Access Easement, Sidewalk Easement, and Temporary Construction and Grading Easement, copies of which are attached to this Resolution, with Lushbaugh Holdings, LLC for property located at 418 West Meadow Street associated with the West Avenue Streetscapes Improvement Project. City of Fayetteville, Arkansas Page 1 Printed on 121812021 Peter Nierengarten Submitted By City of Fayetteville Staff Review Form 2021-0921 Legistar File ID 12/7/2021 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 11/17/2021 SUSTAINABILITY/RESILIENCE (631) Submitted Date Division / Department Action Recommendation: Staff recommends approval of an access easement, sidewalk easement and temporary construction easement with Lushbaugh Holdings, LLC for the premises located at 418 W. Meadow St., in consideration of the terms and conditions more fully described in the agreement for easements. Account Number 46080.7800 Project Number Budgeted Item? Yes Does item have a cost? Yes Budget Adjustment Attached? No Budget Impact: Cultural Arts Corridor Bond Fund Arts Corridor Improvements Project Title Current Budget Funds Obligated Current Balance Item Cost Budget Adjustment Remaining Budget $ 18,678,413.00 $ 8,798,959.07 $ 9,879,453.93 $ 1,299.00 $ 9,878,154.93 V20210527 Purchase Order Number: Previous Ordinance or Resolution # 244-21 Change Order Number: Original Contract Number: Comments: Approval Date: 10/5/2021 CITY OF FAYETTEVILLE ARKANSAS MEETING OF DECEMBER 7, 2021 TO: Mayor and City Council THRU: Susan Norton, Chief of Staff FROM: Peter Nierengarten, Environmental Director DATE: November 16, 2021 CITY COUNCIL MEMO SUBJECT: Agreement for Easement with Lushbaugh Holdings, LLC RECOMMENDATION: Staff recommends approval of an access easement, a sidewalk easement and a temporary construction easement with Lushbaugh Holdings, LLC for the premises located at 418 W. Meadow St., in consideration of the terms and conditions more fully described in the agreement for easements. BACKGROUND: During right-of-way acquisition phase of the Ramble/Cultural Arts Corridor project along West Ave, it was discovered that a portion of the property leased to Theatre Squared (at 477 W. Spring Street) was being utilized by the property owner to the south, Lushbaugh Holdings, LLC (at 418 W. Meadow St.) for driveway access to the property. Lushbaugh Holdings, LLC requested an access easement for that portion of property from the City in order to continue using the driveway. On October 5, 2021 the Fayetteville City Council approved Resolution No. 244-21 authorizing a lease amendment with Theatre Squared, Inc. that included removal of 91 square feet of property from their lease so that it could be granted to Lushbaugh, LLC as an access easement. DISCUSSION: The agreement for easements includes a sidewalk easement, a temporary construction and grading easement for sidewalk improvements and a driveway access easement for the 91 square foot portion of property used as a driveway by Lushbaugh Holdings, LLC. Additionally the agreement for easements includes provisions related to the replacement retaining wall and landscaping along West Avenue and includes stipulations related to the reconstruction of the sidewalk and driveway improvements along Meadow Street. BUDGET/STAFF IMPACT: The cost for the four month temporary construction and grading easement is $1,299.00, however if the constructon easement is required beyond May 31, 2022, the cost of the agreement shall be $649.50 for each additional month. Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 Attachments: • Agreement for Easements • Driveway Assess Easement • Driveway Access Easement Exhibit • Sidewalk Easement • Temporary Construction & Grading Easement • Sidewalk and Temporary Construction & Grading Easement Exhibit • Resolution No. 244-21 AGREEMENT FOR EASEMENTS BETWEEN THE CITY OF FAYETTEVILLE, ARKANSAS AND LUSHBAUGH HOLDINGS, LLC This agreement ("Agreement") is entered into on 2.C.twwb e.r Q , 2021, by and between the City of Fayetteville, Arkansas ("City") and Lushbaugh Holdings, LLC ("Lushbaugh"). In consideration of the foregoing and the mutual promises, covenants, and agreements contained in this Agreement, the Parties agree as follows: 1. Sidewalk Easement. Lushbaugh shall convey a 70 square foot permanent sidewalk easement to the City for the purpose of constructing and maintaining a public sidewalk. A copy of the easement is attached to this agreement as Exhibit A. The easement shall provide that the easement may be revoked by abandonment of the sidewalk area by the City. 2. Parking and Access Easement. As consideration for Lushbaugh's conveyance of the sidewalk easement, the City shall convey a 91 square foot permanent access easement to Lushbaugh for the driveway area that is located on City property. Lushbaugh agrees to coordinate and cooperate with TheatreSquared, Inc. or its successor in interest in the event TheatreSquared requires access to the easement area for construction or maintenance activities. The easement shall provide that the easement may be revoked by abandonment of the driveway area by Lushbaugh and its successors and assigns. A copy of the easement is attached to this agreement as Exhibit B. 3. Temporary Construction and Grading Easement. Lushbaugh shall convey to the City a 432 square foot temporary construction and grading easement in exchange for, the sum of $1,299.00 which the City shall pay Lushbaugh when the temporary construction and grading easement is executed. The temporary construction and grading easement shall expire one hundred twenty (120) days after the date the City or its contractor begins staging or construction in the temporary construction and grading easement. Construction is scheduled to be completed on Lushbaugh's property by May 31, 2022. However, in the event the temporary construction and grading easement is required for more than one hundred twenty (120) days or has not been terminated by May 31, 2022, the City shall pay Lushbaugh a monthly rate of $649.50 for each additional month or portion of a month it continues to occupy or use the temporary construction and grading easement until the temporary construction and grading easement is no longer being used and is terminated by appropriate instrument executed and recorded by the City. 4. Replacement of Retaining Wall in West Avenue Right of Way. The City shall replace the existing poured concrete retaining wall next to the West side of Lushbaugh's property, which is also along West Avenue, with a native stone retaining wall which shall not have any fence on top of it but will have bermuda grass on top of the backfill dirt which shall be graded downhill from East to West to the top of the native stone retaining wall so surface water can flow freely over the top of the native stone retaining wall. 5. Landscaping Restrictions in West Avenue Right of Way. The City shall not plant, or allow to be planted, any trees within the right of way of West Avenue that will be of a type that, at Page 1 of 3 maturity, will block Lushbaugh's view of Old Main. Such trees may include, but are not limited to, redbuds and dogwoods but in any event shall not exceed 12 feet in height at maturity. 6. Sidewalk Improvements on Meadow Street. The City shall reduce the elevation and flatten the grade of the sidewalk across Lushbaugh's driveway on Meadow Street in order to alleviate high -centering problems for automobiles attempting to turn into and out of the driveway and parking spaces on Lushbaugh's property, which will also allow the City to move parallel parking to the south side of Meadow Street. 7. This agreement is binding upon, and inures to the benefit of, the parties and their respective successors and assigns. [Signature Page Follows] Page 2 of 3 IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties as of the day and year first written above. CITY OF FAYETTEVILLE, ARKANSAS Mayor Date: ATTEST: By: Kim o nson, e uty City Clerk LUSHBAUGH HOLDINGS, LLC i By: Brad Baugh, Managing Member Date: _ -Z,�3 —5` -,;>- / I �TrRf • .�`r �MEj(EVILLE: _ Page 3 of 3 Protect: West Avenue Improvements Parcel No. 765-01754-000 TEMPORARY CONSTRUCTION AND GRADING EASEMENT BE IT KNOWN BY THESE PRESENTS: THAT Lushbaugh Holdings, LLC, an Arkansas limited liability company, hereinafter called GRANTOR, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby GRANT SELL and CONVEY unto the City of Fayetteville, Arkansas, a municipal corporation, hereinafter called GRANTEE, and unto Grantee's successors and assigns, a temporary construction and grading easement on, over, and through the land described below as Temporary Construction and Grading Easement Description, situated in the County of Washington, State of Arkansas, to -wit: TEMPORARY CONSTRUCTION AND GRADING EASEMENT DESCRIPTION: IIIIUN11111 III III NII III {�I SIN II{II IIIII IIII III11 IIIII IIIII IIINII{ Doc ID: 020279030004 Type: REL Kind: EASEMENT Recorded: 12/09/2021 at 11:42:45 AM Fee Amt: S30.D0 Page 1 of 4 Washington County, AR Kyle Sylvester Circuit Clerk F1192021-00047161 A part of the Southwest Quarter (SW'/4) of Block Numbered Nine (9) in the City of Fayetteville, Arkansas, also being described as follows, to -wit: Beginning at the Southwest corner of said Block Nine (9), thence North 02°41'07" East 12.00 feet along the existing right-of-way of West Avenue to the Point of Beginning; thence North 02041'07" East 69.28 feet along the existing right of way of West Avenue; thence South 88042'06" East 5.00 feet; thence South 02°41'07" West 67.35 feet; thence South 41 °56'26" East 19.50 feet; thence North 87050'57" West 6.96 feet along the North right of way of Meadow Street; thence North 41'56'26" West 16.71 feet to the POINT OF BEGINNING; having an area of 432 square feet. A sketch of this easement is attached as Exhibit 'A' and is to be considered as part of this document. It is understood that this sketch is descriptive only of the size, shape, and location of the temporary easement and does not constitute a plat or survey of the Grantor's property. Togetherwith the rights, easements, and privileges in or to said lands which may be required for the full enjoyment of the rights herein granted. TO HAVE AND TO HOLD the same unto the said Grantee, its successors and assigns, together with free ingress to and egress from the real estate first herein above described as Temporary Construction and Grading Easement for the uses and purposes, and subject to the obligations, duties, and conditions, hereinafter set forth. The purpose of this Temporary Construction and Grading Easement is to allow Grantee to use the property described above as the "Temporary Construction and Grading Easement Description" in order to expand its sidewalk and to replace the current poured concrete retaining wall with a native stone retaining wall of similar size and shape. GRANTOR'S (SERVIENT); PROPERTY DESCRIPTION: (Deed Ref. 2004-17115) The West Eighty-eight (88) Feet of the South Half (S'h) of the Southwest Quarter (SW /4) of Block Numbered Nine (9) in the Town (now City) of Fayetteville, Arkansas, also being described as follows: Beginning at the Southwest comer of said Block Nine (9), said point being a set'i2" iron rebar; thence N 00°42'43" East along the West line of said Block Nine (9) 81.28 feet to a set %n iron rebar; thence N 89' 19'26' E 88.94 feet (deed- 88 feet) to a set'1W iron rebar; thence S 00°45'49'W 81.27 feet to an existing iron on the South line of said Block Nine (9); thence S 89'19'22" W 88.87 feet (deed=88 feet) to the Point of Beginning. This temporary construction and grading easement as conditioned hereinafter shall terminate upon the EARLIER OF (1) one hundred twenty (120) days after Grantee or Grantee's agent has commenced work on the Temporary Construction and Grading Easement Description or (2) when the above -referenced project has been completed by Grantee or Grantee's contractor and accepted by Grantee; this Temporary Construction and Grading Easement is anticipated to be abandoned by May 31, 2022; however, in the event Grantee requires additional time to complete construction, Grantee shall pay the amount of $649.50 for each additional month or portion of a month it continues to occupy the temporary construction easement. It is expressly understood that the Temporary Construction and Grading Easement granted herein shall exclude any permanent structure(s) located or under construction within said temporary construction easement area during the construction of this project. Grantee shall be obligated to maintain, and not adversely affect, the structural integrity of the improvements on Grantor's (Servient) property while working on the above -referenced project; furthermore, Grantee shall preserve the grade on Grantor's (Servient) Property so that water will be able to easily drain over all improvements constructed pursuant to the above - referenced project Grantee shall not construct any wall or fence above grade on or adjacent to Grantor's (Servient) Property. Grantee shall, within the time period allowed by this temporary construction and grading easement, return all Bermuda turf and landscaping immediately to the east of the new native stone retaining wall to the same or better condition it was in before the said easement period commenced. Grantor makes no representations or warranties regarding legal title to the land described above in the Temporary Construction and Grading Easement Description or reversionary rights, if any therein. TEMPORARY CONSTRUCTION AND GRADING EASEMENT Page 2 of 3 The consideration first above recited as being paid to the Grantor by Grantee is in full satisfaction of every right hereby granted. All covenants and agreements herein contained shall extend to and be binding upon the respective heirs, legal representatives, successors and assigns of the parties hereto. WITNESS the execution hereof on this S( day of 'De,U-A0df V 2021 LUSHBAUGH HOLDINGS, LLC, GRANTOR By: '600,Lifshbaugh, Trustee, Managing Member ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Brad Lushbaugh, Trustee, to me well known as the person who executed the foregoing document, and who stated and acknowledged that he is the Managing Member of Lushbaugh Holdings, LLC, an Arkansas limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said company, and further stated and acknowledged that he had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNESS 1 on this day of ,2021. MY COMMIS S �A%F91 Z 40TAR Notary Pu c (n —mow cn z a PUBL�O oh NO COON TEMPORARY CONSTRUCTION AND GRADING EASEMENT Page 3 of 3 CITY OF FA a municipal By: ATTEST: TA W . .- . uty City Clerk ,AtrurfifKI., '!' rR' ;FAYETTEVIL0 V ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON ARKANSAS, ,GRANTEE BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lioneld Jordan and Kim Johnson, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the Mayor and Deputy City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and In the name and behalf of said municipal corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNE d seal on this day of n ��� �� 2021. S i i 814706" E 5.00' 5' Not to Scole G) c Z N m o s -' 765-01754-000 m !4 Lushbaugh Holdings LLC 0 418 Meadow Street Warranty Deed Inst. No. 2004-17115 E><11809 — vrapoaed jW Z S s ,. it 0 0 �• F m ExlAing FVW 11.74' 6.9g' N 87.50'57" w POB-P W Southwest Corn-er-1l Bb:k 9 of the I °'�'^o' `°- Plot ? T Meadow Street SIDEWALK EASEMENT — 70 S.F EXHIBIT FJUN�E 2020 TEMPORARY CONSTRUCTION SIDEWALK EASEMENT AND EASEMENT (5- WIDE) TEMPORARY CONSTRUCTION EASEMENT — 432 S.F. FOR LUSHBAUGH HOLDINGS LLC Parcel No. 765-01754-000 PARKING AND ACCESS EASEMENT BE IT KNOWN BY THESE PRESENTS: THAT the City of Fayetteville, Arkansas, a municipal corporation, hereinafter called GRANTOR, for and in consideration of the conveyance of a sidewalk easement, the receipt of which is hereby acknowledged, does hereby GRANT, SELL and CONVEY unto Lushbaugh Holdings, LLC, an Arkansas limited liability company, hereinafter called GRANTEE, and unto Grantee's successors and assigns, a permanent easement for parking, ingress, egress, and access purposes in, on, over, and across the land described below as Permanent Parking and Access Easement (Servient) Description, situated in the County of Washington, State of Arkansas, to-wd: PERMANENT PARKING AND ACCESS EASEMENT (SERVIENT) DESCRIPTION: Doc ID: 020279040004 Type. REL Kind: EASEMENT Recorded: 12/09/2021 at 11:44:15 AM Fee Amt: $30.00 Pape t of 4 Washington County, AR Kyle Sylvester Circuit Clerk Fi1e2021-00047162 A part of the Southwest Quarter (SWY.) of Block Numbered Nine (9) in the City of Fayetteville, Arkansas, also being described as follows, to -wit: Beginning at the Southwest comer of said Block Nine (9), thence North 02°41'07" East 81.28 feet along the existing right-of-way of West Avenue to the point of beginning which is the northwest comer of the Property described in Instrument No. 2004-17115; thence North 02°41'07' East 2.50 feet; thence South 87 59 49" East 40.61 feet; thence South 02*15'00* West 2.00 feet; thence North 88°42'06' West 40.63 feet to the point of beginning, having an area of 91 square feet, more or less. A sketch of this easement is attached as Exhibit "A' and is to be considered a part of this document It is understood that this sketch is descriptive only of the size, shape, and location of the Permanent Parking and Access Easement and does not constitute a plat or survey of the Grantor's property. Togetherwith the rights, easements, and privileges in orto said lands which may be required forthefull enjoyment of the rights herein granted. TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, for the uses and purposes, and subject to the obligations, duties, and conditions, hereinafter set forth; provided, however, the easement may be terminated by mutual written agreement of Grantor and Grantee or Grantee's successors and assigns. if Grantee, or Grantee's successors and assigns, permanently ceases to use the Easement for parking, ingress, egress, or access to the real property described below as Grantee's (Dominant) Legal Description. The Permanent Parking and Access Easement granted herein shall run with the land and inure to the benefit of Grantee, and Grantee's successors and assigns, forever. GRANTEE'S (DOMINANT) LEGAL DESCRIPTION: (Deed Ref. 2004-17115) The West Eighty-eight (88) Feet of the South Half (S Y2) of the Southwest Quarter (SWY.) of Block Numbered Nine (9) in the Town (now City) of Fayetteville, Arkansas, also being described as follows: Beginning at the Southwest comer of said Block Nine (9), said point being a set '/' iron rebar, thence N 00°42'43' East along the West line of said Block Nine (9) 81.28 feet to a set Y:' iron rebar, thence N 89019'26" E 88.94 feet (deed- 88 feet) to a set %" iron rebar; thence S 00°45'49" W 81.27 feet to an existing iron on the South line of said Block Nine (9), thence S 89"19'22" W 88.87 feet (deed=88 feet) to the Point of Beginning. Neither of the panties hereto, nor their successors and assigns, shall erect, or permit the erection of, any buildings or structures in said access easement area. However, Grantee, and its successors and assigns, shall have the right to replace any portion or all of existing concrete driveway located in the Permanent Parking and Access Easement area and may also replace existing sewer drain lines, if any, running below grade across the Permanent Parking and Access Easement area. Grantee has agreed to coordinate and cooperate with TheatreSquared, Inc. or its successor in interest to the lease agreement in the event TheatreSquared requires access to the easement area for temporary construction or maintenance purposes, PROVIDED. HOWEVER: 1. That neither Grantor nor TheatreSquared,lnc. and its successors and assigns, shall permit their staff, agents, customers, invitees, patrons or contractors to park motor vehicles or equipment, or store supplies, in the Permanent Parking and Access Easement area; and 2. In the event that either Grantor or TheatreSquared, Inc. or its successors and assigns, needs to use the Permanent Parking and Access Easement area for temporary construction or maintenance purposes, reasonable notice shall be given in writing to Grantee, or its successors and assigns, of the specific date, time, and reasonable duration the Permanent Parking and Access Easement area will be used for temporary construction or maintenance, afterwhich the permanent parking and access easement area shall be unobstructed for the exclusive use of Grantee, its successors and assigns, clients, licensees, and invitees. ACCESS EASEMENT Page 2 of 3 The consideration first above recited as being paid to Grantor by Grantee is in full satisfaction of every right hereby granted. All covenants and agreements herein contained shall extend to and be binding upon the respective heirs, successors and assigns of the parties hereto. WITNESS the execution hereof on this the � day of 'De ezA& 3!r ,2021, CITY OF FAY EVILCE, ARKANSAS, a municipal rporat' nl GRAOTOR .41 ATTEST: ����� I TR fps Lioneld an a of .���ZY OF �G•G _ [Seal] *Ki4!hns&on, D(p ty City Clerk FpyE�EV1I LE: y •.RKA o. u n+%.- LUSHBAUGH HOLDINGS, LLC, GRANTEE By: B ugh, Trustee, Managing Member ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lioneld Jordan and Kim Johnson, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the Mayor and Deputy City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municippal corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. WITNES&qW4*q4_and seal on this _ b 0 40TA19y ;1pd. U) S C: •. z Ov,co GA Na A �y QQ- cow4 ACCESS EASEMENT Page 3 of 3 ACKNOWLEDGMENT STATE OF ARKANSAS ) )) COUNTY OF WASHINGTON ss. BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and ailing Notary Public within and for said County and State, personally appeared Brad Lushbaugh, Trustee to me well known as the person who executed the foregoing document, and who stated and acknowledged that he is the Managing Member of Lushbaugh Holdings, LLC, an Arkansas limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said company, and further stated and acknowledged that he had so signed, executed and delivered said instrument for the consideration, uses and pu es therein WITNESS my hand and seal on this day of OTARr '� N �r z S o pU B�-��' Q NO. N Cove Not to Scale 3 765-01751-00 City of Fayetteville 477 W. Spring Warranty Deed 3 Inst. No. 98-286605 S 0201W N 02041'07" E S 87°5949" E 40.61' 2.00' 2.50' R N 88042'06" W 40.63' 765-01754-000 Lushbaugh Holdings LLC > N 418 Meadow Street Warranty Deed N Inst. No. 2004-17115 O w Vo O a Z N O Z r P.O.C. Southwest Corner Block 9 of the Original Town Plat EASEMENT ®ACCESS — 91 S.F EXHIBIT MAY 2020 ACCESS EASEMENT FOR LUSHBAUGH HOLDINGS LLC Parcel No. 765-01754-000 SIDEWALK EASEMENT BE IT KNOWN BY THESE PRESENTS: THAT Lushbaugh Holdings, LLC, an Arkansas limited liability company, hereinafter called GRANTOR, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration including, but not limited to, t e covenants contained in one Easement Agreement dated the recel'pt of which is hereby acknowledged, does hereby LL and CONVEY unto the City of Fayetteville, Arkansas, a municipal corporation, hereinafter called GRANTEE, and unto Grantee's successors and assigns, a permanent easement to construct, maintain, repair and/or replace a sidewalk for public access on, over, across, and through the land described below as Permanent Sidewalk Easement Description, situated in the County of Washington, State of Arkansas, to -wit: PERMANENT SIDEWALK EASEMENT DESCRIPTION: �, ��, l Iil�t�l�lt<IIINlllllillllllllllll�l�lllllllllllll i�I��I�N1111111�1111 d: EAS02027905o003 TYPe: RE Doc ID 1:44:58 At1 KinEL Z 09/2021 at 1 Fee AMt: 825.00 page t of 3 Recorded. KY1 iSAlveste�nc��cuRi O47 163 File 2021-04 A part of the Southwest Quarter (SW'/4) of Block Numbered Nine (9) in the City of Fayetteville, Arkansas, also beingg described as follows, to -wit: gebinningg at the Southwest corner of said Block Nine (9), thence North 1 020 '07* East 12.00 feet; thence South 41 °56'26- East 16.71 feet; thence North 87"50'57' West 11.74 feet to the POINT OF BEGINNING; having an area of 70 square feet. Together with the rights, easements, and privileges in or to said lands which may be required for the full enjoyment of the rights herein granted. TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such sidewalk shall be maintained, together with free ingress to and egress from the land described in the Permanent Sidewalk Easement Description for the uses and purposes, and subject to the obligations, duties, and conditions, hereinafter set forth. GRANTOR'S (SERVIENT) PROPERTY DESCRIPTION: (Document. 2004-17115) The West Eighty-eight (88) Feet of the South Half (S'/a) of the Southwest Quarter (SWY4) of Block Numbered Nine (9) in the Town (now City) of Fayetteville, Arkansas, also being described as follows: Beginning at the Southwest comer of said Block Nine (9), said point beinga set %' iron rebar, thence N 00042'43' East along the West line of said Block Nine (9) 81.28 feet to a set A iron rebar, thence N 89° 19'26' E 88.94 feet (deed- 88 feet) to a set 1W iron rebar, thence S 00045'49' W 81.27 feet to an existing iron on the South line of said Block Nine (9); thence S 89'19'22' W 88.87 feet (deed=88 feet) to the Point of Beginning. The parties hereto shall not erect any buildings, structures, or monuments within the said Permanent Sidewalk Easement. This Permanent Sidewalk Easement shall terminate at such time as the sidewalk on the land described above as the Permanent Sidewalk Easement Description is abandoned or permanently demolished by Grantee, or its successors or assigns. Grantor makes no representations or warranties regarding legal title to the land described above in the Permanent Sidewalk Easement Description or reversionary rights, if any, therein. The consideration first above recited as being paid to Grantor by Grantee is in full satisfaction of every right hereby granted. All covenants and agreements herein contained shall extend to and be binding upon the respective heirs, successors and assigns of the parties hereto. WITNESS the execution hereof on this the 'W lk I day of ('(yv1{?ti .2021. LUSHBAUGH HOLDINGS, LLC, GRANTOR By: Br ushbaugh, Trustee, Managing Member Skiewalk Easement Page 2 ACKNOWLEDGMENT STATE OF ARKANSAS ss. COUNTY OF WASHINGTON BE IT REMEMBERED, that on this date, before the undersigned, a duty commissioned and acting Notary Public within and for said County and State, personally appeared Brad Lushbaugh, Trustee, to me well known as the person who executed the foregoing document, and who stated and acknowledged that he is the Managing Member of Lushbaugh Holdings, LLCM an Arkansas limited liability company, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said company, and further stated and acknowledged that he had so signed, executed and delivered said instrument for the consideration, uses pynd purposes therein mentioned and set forth. WITNESS my hand and seal on this day ofg�� ,2021. r v2` 1 a� �QTARY o ¢ Z�r�N NO. co I Or ATTEST: AX C AKimphnsonf[Dkputy City Clerk �•,r'9Rf{A�.��pJ���~ ACKNOWLEDGMENT STATE OF ARKANSAS )) COUNTY OF WASHINGTON Ss. [Seal] BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Lioneld Jordan and Kim Johnson, to me well known as the persons who executed the foregoing document, and who stated and acknowledged that they are the Mayor and Deputy City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipal corporation, and further stated ed that they had so signed, executed and delivered said instrument for the consideration, uses and p \eltporktZ',oned and set forth. ?nj lidg on this _ day of 2021. S i i 8'42'08' E 5.00' • � 5' Not to Scole i t% ?fix C Z r N 0 Q N N J o 765-01754-000 m • a, Lushbaugh Holdings LLC r y 418 Meadow Street' z Warranty Deed Inst. No. 2004-17115 Extsiing RM < Proposed RM 6 S 4T��r N •� T `dl�C.�v Tii�'D�� 7 o - T,v tC V r is <: �? ExisOng RM m ; V a\ AA 11.74' 6.96' N 87.50'5r W P0.8.-R W Souih.esl Corner 91ck 9 of 1hr P 9. 060nal T..Plat Meadow Street SIDEWALK EASEMENT EXHIBIT 'mot;< — 70 S.F FJUNE 2020 TEMPORARY CONSTRUCTION SIDEWALK EASEMENT AND EASEMENT (5- WIDE) TEMPORARY CONSTRUCTION EASEMENT — 432 S.F. FOR LUSHBAUGH HOLDINGS LLC 00, VAYErrf 44KAHSPS 113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 Resolution: 244-21 File Number: 2021-0733 THEATRESQUARED, INC. LEASE AGREEMENT AMENDMENT: A RESOLUTION TO APPROVE AN AMENDMENT TO THE LEASE AGREEMENT WITH THEATRESQUARED, INC. TO REMOVE 91 SQUARE FEET OF PROPERTY FROM THE LEGAL DESCRIPTION, AND TO ALLOW THE RESIDENTIAL FACILITIES TO BE USED AS SHORT TERM RENTALS WHEN NOT NEEDED FOR PERFORMANCES 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 amendment to the Lease Agreement with TheatreSquared, Inc. to remove 91 square feet of property from the legal description and to allow the residential facilities to be used as short term rentals when not needed for performances. PASSED and APPROVED on 10/5/2021 Attest: y GOER Ki/ T�F!,,. CITYun • 9 Kara Paxton, CityClerk Treasuret: FgYE s ,ON ; DO,N``�� Page 1 Printed on 10/0/21 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 Text File File Number: 2021-0733 Agenda Date: 10/5/2021 Version: 1 Status: Passed In Control: City Council Meetinq File Type: Resolution Agenda Number: A.12 THEATRESQUARED, INC. LEASE AGREEMENT AMENDMENT: A RESOLUTION TO APPROVE AN AMENDMENT TO THE LEASE AGREEMENT WITH THEATRESQUARED, INC. TO REMOVE 91 SQUARE FEET OF PROPERTY FROM THE LEGAL DESCRIPTION, AND TO ALLOW THE RESIDENTIAL FACILITIES TO BE USED AS SHORT TERM RENTALS WHEN NOT NEEDED FOR PERFORMANCES 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 amendment to the Lease Agreement with TheatreSquared, Inc. to remove 91 square feet of property from the legal description and to allow the residential facilities to be used as short term rentals when not needed for performances. City of Fayetteville, Arkansas Page 1 Printed on 101612021 Peter Nierengarten Submitted By City of Fayetteville Staff Review Form 2021-0733 Legistar File ID 10/5/2021 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 9/16/2021 SUSTAINABILITY/RESILIENCE (631) Submitted Date Division / Department Action Recommendation: Staff recommends approval of a lease amendment with Theatre Squared, Inc. for the premises located at 477 W. Spring St., in consideration of the terms and conditions more fully described in the lease amendment. Account Number Project Number Budgeted Item? No Does item have a cost? No Budget Adjustment Attached? No Budget Impact: Current Budget Funds Obligated Current Balance Item Cost Budget Adjustment Remaining Budget Fund Project Title $ - V20210527 Purchase Order Number: Previous Ordinance or Resolution # 121-16 Change Order Number: Approval Date: Original Contract Number: Comments: CITY OF FAYETTEVILLE ARKANSAS MEETING OF OCTOBER 5, 2021 TO: Mayor and City Council THRU: Susan Norton, Chief of Staff FROM: Peter Nierengarten, Environmental Director DATE: September 15, 2021 SUBJECT: Lease Amendment with Theatre Squared CITY COUNCIL MEMO RECOMMENDATION: Staff recommends approval of a lease amendment with Theatre Squared, Inc. for the premises located at 477 W. Spring St., in consideration of the terms and conditions more fully described in the lease amendment. BACKGROUND: On June 7, 2016, the Fayetteville City Council approved Resolution No. 121-16 authorizing a long-term lease agreement with Theatre Squared, Inc. for property located at the southeast corner of Spring Street and West Ave (477 W. Spring Street). Since that time Theatre Squared constructed a state -of -the-art theatrical performance facility on the premises, including a restaurant/coffee shop and several residential apartments. During right-of-way acquisition phase of the Ramble/Cultural Arts Corridor project along West Ave, it was discovered that a portion of the property leased to Theatre Squared is being utilized by the property owner to the south, Lushbaugh Holdings, LLC at 418 W. Meadow St. for driveway access to the property. Lushbaugh Holdings, LLC has requested an access easement for that portion of property from the City in order to continue using the driveway. DISCUSSION: The lease amendment with Theatre Squared, Inc. excludes from the leased premises the 91 square foot portion of property used as a driveway by Lushbaugh Holdings, LLC, the property owner to the south. Additionally, during discussions with Theatre Squared, Inc. about the lease amendment, they requested an additional amendment to the portion of the lease regarding assignment and subletting. Their request is to allow residential units on the premises to be rented as short term rentals when not needed for visiting performance artists, playwrights, set/lighting/costume designers or directors. Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 BUDGET/STAFF IMPACT: None Attachments: Amendment No. 1 to Lease Agreement Between the City of Fayetteville, Arkansas and TheatreSquared, Inc. Exhibit A Resolution No. 121-16 Amendment No. 1 to Lease Agreement Between the City of Fayetteville, Arkansas And TheatreSquared, Inc. WHEREAS, the Fayetteville City Council approved Resolution No. 121-16 authorizing a long term lease agreement with TheatreSquared, Inc. for approximately 0.90 acres of land at 477 W. Spring Street (the "Lease Agreement") and the Lease Agreement was signed by Mayor Lioneld Jordan on behalf of the City of Fayetteville on June 9, 2016; and WHEREAS, TheatreSquared has requested an amendment to the Lease Agreement to allow it to utilize its residential facilities as short term rentals when not being used to provide free housing for visiting artists and others involved in its artistic endeavors; and WHEREAS, the City and TheatreSquared wish to remove from the Leased Premises a 91 square foot portion of land currently used as a driveway by the property owner to the south. NOW, THEREFORE, The City of Fayetteville ("City"), TheatreSquared, Inc. (TheatreSquared) hereby amend the Lease Agreement as follows: l . Section 1 of the Lease Agreement is amended to replace Exhibit "A" with the new Exhibit "A" attached hereto, which excludes from the Leased Premises the 91 square foot portion of property used as a driveway by Lushbaugh Holdings, LLC, the property owner to the south. 2. Section 17 of the Lease Agreement is amended to read as follows: (17) Assignment and Subletting. Subject to Section 39, Theatre Squared, Inc. may not assign, sublet, mortgage or otherwise encumber its interest or estate in the Premises, or any part thereof, or its rights pursuant to this Lease Agreement, without the prior written consent of City of Fayetteville, Arkansas, which consent shall not be unreasonably withheld. Notwithstanding the foregoing. Lessee shall be permitted to allow use of the Premises by art -related entities and resident companies. Temporary subletting of community meeting or education space and subletting portions of its planned residential facilities to visiting performance artists: playwrights: set, lighting. costume and similar designers: and directors around the period of their pertormances. rehearsals for said performances or artistic work at the Theatre Squared. Inc.'s theater are authorized without further Resolution of the City Council. When not needed for the above - described purposes. TheatreSquared may utilize its residential facilities as short term rentals (regardless of whether such rentals are art -related) without further Resolution of the City Council. Any assignment or subletting by Theatre Squared, Inc. shall not act or release Theatre Squared, Inc. from its obligations pursuant to this Lease Agreement. CITY OYAYE ,��111111//i/ iviayvi �yv'leyer ru'uari ;ATTE T: %�o0��ERK : r ���� City Clerk Treasurer = FgYE �V I <<f Date: 1��C1L—•• y �O,V ATRE SQUARED, INC. �1111 By_ At), ✓ Title: Ere utive Director ATTEST: —c oc y G J'CA ",�/Q Secretary Date: September 17 .2021 EXHIBIT "A" DESCRIPTION OF PREMISES LEGAL DESCRIPTION: A PART OF BLOCK 9 IN THE ORIGINAL PLAT OF THE TOWN OF FAYETTEVILLE, AR AND BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE NW CORNER OF BLOCK 9 THENCE S87027'31"E 155.00 FEET, THENCE S03000'42"W 151.50 FEET, THENCE S87027'31"E 6.00 FEET, THENCE S03000'42"W 92.13 FEET, THENCE N87043'20"W 161.76 FEET, THENCE N03011'17"E 244.38 FEET TO THE P.O.B., CONTAINING 0.88 ACRES MORE OR LESS SUBJECT TO EASEMENTS AND RIGHT OF WAY OF RECORD. LESS AND EXCEPT: A FIFTEEN FOOT STRIP DESCRIBED AS BEGINNING AT THE NORTHWEST CORNER OF BLOCK 9; THENCE NORTH 89 DEGREES 27 MINUTES 19 SECONDS EAST 15 FEET; THENCE SOUTH 0 DEGREES 06 MINUTES 07 SECONDS WEST 151.50 FEET; THENCE SOUTH 89 DEGREES 27 MINUTES 19 SECONDS WEST 15 FEET; THENCE NORTH 0 DEGREES 06 MINUTES 07 SECONDS EAST 151.50 FEET TO THE POINT OF BEGINNING. LESS AND EXCEPT: A part of the Southwest Quarter (SW'/) of Block Numbered Nine (9) in the City of Fayetteville, Arkansas, also being described as follows, to -wit: Beginning at the Southwest corner of said Block Nine (9), thence North 02041'07" East 81.28 feet along the existing right-of-way of West Avenue to the point of beginning which is the northwest corner of the property described in Instrument No. 2004- 17115; thence North 02041'07" East 2.50 feet; thence South 87059'49" East 40.61 feet; thence South 02015'00" West 2.00 feet; thence North 88042'06" West 40.63 feet to the point of beginning, having an area of 91 square feet, more or less. \ ry Not to Scale 765-01751-00 City of Fayetteville 477 W. Spring \ Warranty Deed Inst. No. 95-286605 N 02°41'07" E S 87°59'49" E 40.61' S 02'15'00" W 2.50' 2.00' R N 88042'06" W 40.63' F' E-, c 00 N Q 00 765-01754-000 Lushbaugh Holdings LLC 418 Meadow Street w Warranty Deed Inst. No. 2004-17115 ..0 i� O O z N O Z P.O.C. Southwest Corner Block 9 of the Original Town Plat Less & Except 91 S.F EXHIBIT THEATERSQUARED, INC. AUG.2021