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HomeMy WebLinkAbout77-23 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 77-23 File Number: 2023-499 Fayetteville Advertising & Promotion Commission: A RESOLUTION TO APPROVE A 10 YEAR LEASE AGREEMENT WITH THE FAYETTEVILLE ADVERTISING AND PROMOTION COMMISSION FOR THE TOWN CENTER AND TOWN CENTER PARKING DECK WHEREAS, the Fayetteville Advertising and Promotion Commission has leased the Town Center since 1998 and the Town Center Parking Deck since 2015; and WHEREAS, the Advertising and Promotion Commission's 1998 lease agreement with the City required the A & P Commission to "promptly at no cost and expense to Lessor (City) make or cause to be made all necessary repairs, interior or exterior, structural and non-structural, foreseen as well as unforeseen to such improvements (Town Center)"; and WHEREAS, the City of Fayetteville will, under this new Lease Agreement, be responsible for the refurbishing or replacement of most mechanical and structural components of the Town Center; and WHEREAS, the City of Fayetteville believes it is in the best interests of the citizens of Fayetteville for the A& Commission to continue to manage the Town Center and Town Center Parking Deck pursuant to the terms of the new Lease Agreement. 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 approves the attached Lease Agreement and authorizes Mayor Jordan to sign this Lease Agreement with the Fayetteville Advertising and Promotion Commission for the Town Center and Town Center Parking Deck. PASSED and APPROVED on March 21, 2023 Page 1 Resolution: 77-23 File Number. 2023-499 Attest: I- (Z&;� �' �' e, I V c-'d — Kara Paxton, City Clerk Treasurer Page 2 Resolution: 77-23 File Number: 2023-499 Approved: Lioneld Jordan, Mayor Attest: Kara Paxton, City Clerk Treasurer Page 2 CITY OF POW, FAYETTEVILLE ARKANSAS MEETING OF MARCH 21, 2023 CITY COUNCIL MEMO 2023-499 TO: Mayor Jordan and City Council THRU: Susan Norton, Chief of Staff FROM: Waylon Abernathy, Bond Projects & Construction Dir DATE: SUBJECT: Approval of Lease Agreement with Fayetteville Advertising and Promotion Commission for the Town Center and Town Center Parking Deck. RECOMMENDATION: Staff recommends approval of the Lease Agreement between the City of Fayetteville and the Fayetteville Advertising and Promotion Commission for the Town Center and Town Center Parking Deck. BACKGROUND: Resolution 120-98 approved a lease agreement between the City of Fayetteville and the Advertising and Promotion Commission of the City of Fayetteville for the Town Center. Resolution 155-15 approved a lease agreement between the City of Fayetteville and the Advertising and Promotion Commission of the City of Fayetteville for the Town Center Parking Deck. DISCUSSION: This lease agreement incorporates terms of the 1998 Town Center Lease agreement, the 2015 Town Center parking deck agreement, and some new terms for both. Those include a 10 year renewable term, City's commitment to replace Building Systems after Life Cycle, all built in furniture to remain the City's, Town Center to provide the City with Maintenance Records, reasonable rates charged for parking, and parking equipment purchased shall be in keeping with the City's overall parking masterplan. An assessment has been performed by Facilities Management, and found that the building has been well maintained, with some major systems replaced. The City's Facilities team will provide a Capital program for system replacement over the next 5 years to include Fire Alarm, Pumps, and Elevator upgrades. BUDGET/STAFF IMPACT: Future system replacements will be included in the 5-year capital plan. ATTACHMENTS: SRF TC Lease Agreement, FTC_COF_Lease2023 Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 - Legislation Text File #: 2023-499 Approval of Lease Agreement with Fayetteville Advertising and Promotion Commission for the Town Center and Town Center Parking Deck. A RESOLUTION TO APPROVE A 10 YEAR LEASE AGREEMENT WITH THE FAYETTEVILLE ADVERTISING AND PROMOTION COMMISSION FOR THE TOWN CENTER AND TOWN CENTER PARKING DECK WHEREAS, the Fayetteville Advertising and Promotion Commission has leased the Town Center since 1998 and the Town Center Parking Deck since 2015; and WHEREAS, the Advertising and Promotion Commission's 1998 lease agreement with the City required the A & P Commission to "promptly at no cost and expense to Lessor (City) make or cause to be made all necessary repairs, interior or exterior, structural and non-structural, foreseen as well as unforeseen to such improvements (Town Center)"; and WHEREAS, the City of Fayetteville will, under this new Lease Agreement, be responsible for the refurbishing or replacement of most mechanical and structural components of the Town Center; and WHEREAS, the City of Fayetteville believes it is in the best interests of the citizens of Fayetteville for the A& Commission to continue to manage the Town Center and Town Center Parking Deck pursuant to the terms of the new Lease Agreement. 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 approves the attached Lease Agreement and authorizes Mayor Jordan to sign this Lease Agreement with the Fayetteville Advertising and Promotion Commission for the Town Center and Town Center Parking Deck. Page 1 Wade Abernathy Submitted By City of Fayetteville Staff Review Form 2023-499 Item ID 3/21/2023 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 2/28/2023 FACILITIES MANAGEMENT (140) Submitted Date Division / Department Action Recommendation: Fh ase Agreement between the City of Fayetteville and the Fayetteville Advertising and Promotion Commission for e Town Center and Town Center Parking Deck. Budget Impact: N/A N/A Account Number Fund N/A N/A Project Number Budgeted Item? No Does item have a direct cost? No Is a Budget Adjustment attached? No Purchase Order Number: Change Order Number: Original Contract Number: Comments: Project Title Total Amended Budget Expenses (Actual+Encum) Available Budget Item Cost Budget Adjustment Remaining Budget V20221130 Previous Ordinance or Resolution # 120-98, 155-15 Approval Date: LEASE AGREEMENT This Lease Agreement ("Lease Agreement") is by and between the CITY OF FAYETTEVILLE, ARKANSAS ("Fayetteville" or "City"), and the FAYETTEVILLE ADVERTISING AND PROMOTION COMMISSION {which is a governmental agency established by Ordinance No. 2310 of the City of Fayetteville pursuant to A.C.A, §26-75-605) ("A&P Commission" or the "Commission") who jointly state and agree that: 1. WHEREAS, Fayetteville is a duly organized and existing municipality, a city of the first class, under the laws of the State of Arkansas with full and lawful power and authority to enter into this Lease Agreement; and 2. WHEREAS, the A&P Commission is authorized under the laws of the State of Arkansas to enter into this Lease Agreement and to perform all covenants and obligations on its part and to be performed under and pursuant to this Lease Agreement; and 3. WHEREAS, Fayetteville owns the Fayetteville Town Center as a multi -purpose civic center for meetings, conventions, exhibitions, entertainment events, related uses, and parking (the "Town Center"); and 4. WHEREAS, Fayetteville and the A&P Commission entered into a Lease Agreement dated September 15, 1998, but the original term of that 22-year lease has now ended; and 5. WHEREAS, Fayetteville and A&P Commission entered into an agreement and two amendments to that agreement for the operation of the parking deck at the Town Center, but that twice amended agreement's term has now ended; and 6. WHEREAS, A&P Commission is willing and able to continue successfully operating and managing the Town Center and its parking deck for the purpose of fulfilling their statutory purpose of advertising and promoting the City and for maintaining and operating a convention center and/or tourist promotion facility for the City; and 7. WHEREAS, Fayetteville is willing to continue leasing the Town Center and its parking deck to the A&P Commission and believes it is in the best interests of the citizens of Fayetteville, Arkansas for the A&P Commission to manage the Town Center on behalf of the City pursuant to the terms and for the consideration herein stated. NOW, THEREFORE, for the valuable consideration of the mutual benefits, commitments, and covenants herein contained, the City of Fayetteville and the Advertising and Promotion Commission agree as follows: ARTICLE I DEFINITIONS SECTION 101. In addition to the words and terms elsewhere defined in this Lease Agreement, the following words and terms as used in this Lease Agreement shall have the following meanings unless the context clearly indicates a different meaning or intent: "Full Insurable Value" means such value as shall be determined from time to time at the request of Fayetteville or the A&P Commission but not more than once in every forty-eight (48) months by one of the insurers selected by Fayetteville. "Leased Premises" means the lands, buildings, improvements, and facilities covered by the Lease Agreement and defined in Section 201 hereof ARTICLE II DEMISING CLAUSES, DURATION OF LEASE TERM, AND CONSIDERATION SECTION 201. For and in consideration of the covenants, promises, and agreements required, referred to, or contained herein on the part of the A&P Commission to be I fulfilled, kept, and performed, the City of Fayetteville, as owner and landlord, agrees to and does hereby lease to the A&P Commission, and the A&P Commission, as tenant, agrees to, and does hereby lease the Fayetteville Town Center, subject to the terms, conditions and provisions of this Lease Agreement. The following are hereinafter referred to as the "Leased Premises": (a) The lands situation in Washington County, Arkansas, described in Exhibit A attached hereto; (b) The buildings, structures, and other improvements now or at any time hereafter erected and installed on these lands; and (c) All accretions, easements, rights of way and appurtenances belonging to these lands and/or the improvements described in (a) and (b) above. TO HAVE AND TO HOLD possession of the Leased Premises unto the A&P Commission for the term of this Lease Agreement as hereafter set forth. Section 202. The Term of this Lease Agreement shall commence upon the date that both of the proper representatives of the City and the A&P Commission have with proper authority signed this Lease Agreement and shall run for a period of ten (10) years (""Perm"). Section 203. Each party shall notify the other party at least six (6) months prior to the end of the Term this Lease of its intent to renew or end this Lease Agreement. If both parties fail to provide such notice, the City and Commission agree that this Lease Agreement shall not terminate at the end of the term, but shall renew for successive six (6) month periods until proper notice has been provided. Section 204. The Advertising and Promotion Commission covenants, as partial consideration for this Lease Agreement, to properly manage and maintain the Leased Premises and to pay all expenses, liabilities, obligations and other payments of whatever nature which the A&P Commission has agreed to pay or assume under the provisions of this Lease Agreement. Within three months after the end of the A&P Commission's fiscal year, the Commission shall deliver to the Mayor's Office a short review of the previous year's operation, revenues and expenditures by the Commission related to the Premises ('town Center and Parking Deck) which shall include any known or projected expenses for the needed repair or replacement of major building components or systems that the City of Fayetteville may be responsible to fund or partially fund in the coming year. ARTICLE III INSURANCE Section 301. A. At all times during the term, Fayetteville shall at Fayetteville's sole cost and expense keep the Leased Premises and the furniture, fixtures and equipment insured: (1) Against the perils of fire and the hazards ordinarily included under broad form extended coverage endorsements in amounts not less than 90% of the full insurable value thereof within the terms of applicable policies. (2) If there are boiler or pressure vessels, from boiler or pressure vessel explosion in an amount customarily carried in the case of similar industrial operations. B. At all times during the term, the A&P Commission shall at the Commission's sole cost or expense maintain or cause to be maintained: (1) General Public Liability insurance against claims for bodily injury or death occurring upon, in or about the Leased Premises, with such insurance to afford protection to the limits of not less than $1,000,000 in respect of bodily injury or death to any one person and to the limit of not less than $2,000,000 In respect to any one accident; and (2) Properly damage insurance against claims for damage to property occurring upon, in or about the Leased Premises with such insurance to afford protection to the limit of not less than $50,000 in respect of damages to the property of any one owner. C. The insurance required by § 301 shall be maintained in full force and effect at all times during the term of this Lease Agreement; D. Copies or certificates of the insurance provided for by this Article or elsewhere in this Lease Agreement shall be delivered to the parties. And, in the case of expiring policies throughout the term, copies or certificates of any new or renewal policies shall be promptly delivered to the parties. E. All insurance required by this Section 301 shall be placed with insurance companies qualified to do business in the State of Arkansas. Appropriate provisions shall be inserted in each insurance policy making each policy noncancelable without at least ten (10) days prior written notice to Fayetteville and A&P Commission. ARTICLE IV REPAIRS AND MAINTENANCE OF LEASED PREMISES AND ALTERATIONS Section 401. A. The A&P Commission had been responsible during the initial 22 year Lease Agreement of September, 1998 to "promptly at no cost and expense to Lessor (City) make or cause to be made all necessary repairs, interior or exterior, structural and non-structural, foreseen as we]] as unforeseen to such improvements (the Town Center)." The City of Fayetteville shall now assume through this Lease Agreement a large portion of those duties and costs by becoming responsible during this lease Term for the replacement or refurbishing of the following systems of the Town Center after the end of the life cycle of each system: (1) Ileating and air conditioning system (2) Roof (3) Exterior walls (4) Interior and exterior plumbing (5) Electrical systems (6) Fire sprinkler systems (7) Fire alarm system (8) Elevators (9) Parking deck (10) Paved sidewalks and ramps (11) Town Center plaza B. The City shall determine and notify the Commission of the life cycle of each such system listed above and is not required to repair, replace or refurbish any system which has not achieved its expected life cycle date nor if any defect, damage, or needed repair to a system is due to the A&P Commission's neglect, failure to properly and timely maintain and service the system, or because of any negligence by the A&P Commission or its agents, invitees, or customers. Fayetteville will present to the A&P Commission the expected life cycle for each of the systems and may require specific, regular preventive maintenance for any system to be accomplished and certified to by the A&P Commission. Fayetteville may inspect at its discretion such maintenance logs and reports during normal business hours of the Fayetteville Town Center. C. The A&P Commission shall throughout the term, at no cost to the City, satisfactorily maintain or cause to be maintained all the systems which the City may need to repair, refurbish or replace at the end of life cycle for such system established by the City of Fayetteville pursuant to this Lease Agreement. The A&P Commission shall document all such maintenance and minor repair of these systems and allow Fayetteville to inspect those maintenance records upon request. The City may inspect any or all of these systems with reasonable notice to the A&P Commission and may require additional, better, or more frequent preventive maintenance by the A&P Commission if a system appears to need increased maintenance, has apparently suffered insufficient preventive maintenance in the past, or is in danger of not reaching its expected life cycle before repair, refurbishment or replacement is necessary. Any such uncured or unresolved r, problems may relieve the City from some or all of its responsibilities to repair, refurbish or replace such system. D. The A&P Commission shall, at no cost to the City, be responsible for maintenance and upkeep of the Town Center, Parking Deck, Plaza and other premises beyond the systems specified in Section 401 A. The A&P Commission shall also be responsible for the proper maintenance and repair of all fixtures in the kitchen and bathrooms, all lighting and furniture and as well as all carpeting, flooring, rugs and other floor coverings. Section 402. The A&P Commission shall have the right from time to time to make additions, alterations, and changes in or to the improvements constituting part of the Leased Premises and shall have the right to construct new improvements with the prior written approval of the City of Fayetteville. Such approval shall not be unreasonably withheld. in the event the A&P Commission makes any additions, alterations, and changes in or to the improvements constituting part of the Leased Premises as authorized by this Section, the A&P Commission shall be under no obligation at the expiration of the term to restore the Leased Premises to their original condition prior to such additions, alterations, or changes. Section 403. All structural improvements and alterations, which are permanent in nature, made on the Leased Premises by or on behalf of A&P Commission shall immediately upon completion thereof be and become the property of Fayetteville without payment therefor by Fayetteville but subject to this Lease Agreement. All machinery and equipment, trade fixtures, movable partitions, furniture, and furnishings and other property purchased and installed on the Leased Premises at the expense ofA&P Commission, including but not limited to lighting systems, audio visual equipment, freezers, and desks, shall remain the property of the A&P Commission. Any and all built-in equipment and built-in furniture shall be and remain the property of the City of Fayetteville at the end of the Lease Agreement's Term. Section 404. The A&P Commission agrees to timely and completely pay or cause to be paid all charges for water, gas, sewer, electricity, light, heat or power, telephone or other service used, rendered or supplied to or for the A&P Commission upon or in connection with the Leased Premises throughout the Term of this Lease Agreement. ARTICLE V USE OF LEASED PREMISES - COMPLIANCE WITH ORDERS. ETC. Section 501. Subject to the following provisions of this Section, Fayetteville and the A&P Commission agree that the A&P Commission shall use the Leased Premises for a multi- purpose civic center for meetings and conventions, exhibitions, entertainment events and related uses and related parking facilities. The A&P Commission shall promptly comply with all valid statutes, laws, and requirements of all federal, state, local, and other governments or governmental authorities now or hereafter applicable to the Leased Premises. The A&P Commission shall during the term comply with the mandatory requirements, rules and regulations of all insurers under the policies required to be carried under the provisions of this Lease Agreement. Section 502. The A&P Commission covenants that it will operate the Town Center in a prudent and financially responsible manner, and will fix, charge, and collect reasonable rates, fees, and charges for the use of the Town Center and for services performed by the A&P Commission in connection therewith. Section 503. The A&P Commission covenants that it will at all times operate the Town Center as a convention center within the requirements of the Advertising and Promotion Commission Act (Ark. Code Ann. § 26-75-601 et. seq.) so that Fayetteville will qualify under the 8 provisions of the City -County Tourist Meeting and Entertainment Facilities Assistance Law (Ark. Code Ann. § 14-171-2I0 et. seq.) for turnback funds. Section 504. The A&P Commission agrees that all its records, reports, accounts, writings, and documents are and shall be covered by the Freedom of Information Act (Ark. Code Ann. § 25-19-101 et. seq.) and shall be open for inspection and copying at all times as set forth in that Act. Section 505. The A&P Commission agrees to present annual reports to Fayetteville and its City Council near the anniversary date of this agreement. This report will include documentation on how and whether the Town Center has been managed to accomplish the following goals: (1) generate increased tourism for Fayetteville; (2) remain financially viable with all debts and obligations paid timely; (3) serve the Fayetteville community by its use for local non- profit groups and other community events such as dances, dinners, receptions, and other meetings. If the City Council determines the A&P Commission has failed to properly accomplish any of the three stated goals, the A&P Commission shall be given written notice of such failure. A special review to determine if corrective action taken by the A&P Commission has resolved any failure will be conducted after six months. If the City Council then determines the problem has been resolved to its satisfaction, the report process will continue as stated above. if the City Council determines the failure has not been satisfactorily resolved, the City Council can allow additional time to the A&P Commission to resolve the problem, or the City Council may declare the A&P Commission to be in default and Fayetteville may re-enter and take possession of the Leased Premises as provided in Section 1102. Section 506. Maintenance records are to be kept and presented to City of Fayetteville Facilities Management Division annually. An annual audit of the systems will be 9 performed by the Facilities Management Director or assigned personnel to ensure proper maintenance is being done. In the event deficiencies are found, Fayetteville may require the A&P Commission to perform immediate repairs, increased preventive maintenance, or take other actions to correct the deficiencies. See §401 C. for additional requirements and consequences for unresolved problems. Section 507. At the request of either Fayetteville or the A&P Commission, but not more frequently than once every other year, a meeting may be called for the purpose of proposing amendments to this agreement. The staff of Fayetteville and the A&P Commission agree to be present at such meeting to negotiate concerning any proposed amendments. ARTICLE VI PARKING DECK Section ti01. Fayetteville agrees to operate the parking deck at the Town Center (the "Deck"), during the Term of this Lease Agreement and any extension thereof. The City shall: A. Collect the revenues generated from the parking system in the Deck and transfer said revenues to the designated personnel at the Commission. The City shall enforce the Deck consistent with other city -managed parking facilities and will retain all revenues resulting from enforcement of the parking in the Deck. B. Facilitate the purchase of parking permits for the Deck and maintenance associated customer accounts. C. Coordinate with designated personnel of the Commission regarding parking needs for events taking place at the Town Center. D. Provide to the designated personnel of the Commission on a regular basis an accounting of all revenues received. E. Provide routine maintenance on the parking system of the Deck provided that any costs and expenses incurred for vendor -provided equipment maintenance shall be borne by the Commission. Additionally, all costs and expenses incurred for the purchase of equipment and supplies for the operation of the Deck shall be borne by the Commission, provided that such purchases have the prior 10 approval of a designated representative of the Commission in keeping with the City's overall parking masterplan. F. Take calls and complaints concerning the Deck. G. Provide a minimum of eight (8) hours of general cleaning services per week in the following areas: 1. All levels of the parking deck; 2. Plaza contracted parking lot (below); 3. Alleyway running between East Avenue and Block Avenue; 4. Town Center Plaza area (above); 5. As used in this Lease Agreement, general cleaning services include sweeping, blowing, vacuuming, spot washing of soft drinks, mud, or other spills, and the emptying of trash containers into the Town Center dumpster. All other cleaning and maintenance of the aforementioned areas, included any cleaning needs resulting from events taking place at the Town Center, shall be the responsibility of the Commission. Section 602. In exchange for the services listed in Section 601 herein, the Commission agrees to provide fifty-five (55) parking spaces on the deck to be used by employees of the City, provided that: A. The City agrees to abide by the same rules that apply to the other customers leasing spaces on the deck. B. The City agrees to allocate parking only to City employees. C. The City shall expend its best efforts to discourage nighttime parking, as the Town Center frequently holds nighttime events. D. The City shall encourage employees to park towards the west end of the deck, leaving spaces closest to the elevators open for Town Center customer parking. Section 603. Except as provided in Section 602 herein, The Commission shall manage the parking deck in a prudent and financially responsible manner, and will fix and charge reasonable rates, fees and charges for the use of the parking deck. The Commission shall be responsible for all collection actions associated with delinquent accounts, provided that the City shall be responsible for informing the Commission of such accounts in a timely manner. Section 604. Neither party may assign any of its rights or obligations under this Article VI without the express written consent of the other. A waiver by either party of any of the terms or conditions of this Article VI herein shall be limited to that particular instance and shall not be construed as a general waiver of any other breaches by either party. ARTICLE VII FAYETTEVILLE MAY PERFORM A&P COMMISSION'S OBLIGATIONS Section 701. If the A&P Commission shall fail to keep or perform any of its obligations as provided in this Lease Agreement in respect to (a) maintenance of insurance; (b) repairs and maintenance of the Leased Premises; (c) compliance with legal or insurance requirements; or (d) making of any other payment or performance of any other obligations, then Fayetteville may (but shall not be obligated to), upon the continuance of such failure on the A&P Commission's part for thirty (30) days after written notice to the A&P Commission, and without waiving or releasing the A&P Commission from any obligation, and as an additional but not exclusive remedy, make any such payment or perform any such obligation (not under circumstances where such payment or performance would defeat any rights, herein specifically given to the A&P Commission, to withhold such performance or to contest such obligation to the extent herein provided), and all sums so paid by Fayetteville and all necessary incidental costs and expenses incurred by Fayetteville shall be paid to Fayetteville on demand. ARTICLE VIII INSPECTION OF LEASED PREMISES Section 801. The A&P Commission shall permit Fayetteville or its authorized representatives to enter the Leased Premises at all reasonable times during usual business hours for the purpose of general inspection or for inspection of the performance of any maintenance, repairs, or construction work done by the A&P Commission, and records thereof. ARTICLE IX DAMAGE AND DESTRUCTION Section 901. A. The A&P Commission covenants and agrees that in the event of damage to or destruction of the Leased Premises, or any part thereof, by fire or other casualty, the A&P Commission shall immediately notify Fayetteville. If the Leased Premises sustains "Major Damage or Destruction," (as hereafter defined) either party may terminate this Lease Agreement by giving written notice to the other party within 45 days after the date of the casualty. If the damage does not constitute Major Damage or Destruction, the parties shall use the insurance proceeds to restore, repair, rebuild or replace the Leased Premises as nearly as possible to the condition they were in immediately prior to such damage or destruction. B. The term "Major Damage or Destruction" means any damage or injury to or destruction of the Leased Premises or any part thereof (whether or not resulting from an insured peril) such that the Leased Premises cannot reasonably be restored to their condition immediately preceding such damage, injury or destruction within a period of ninety (90) working days, or which would prevent the A&P Commission from carrying on its operations therein for at least ninety (90) working days or if the restoration cost would so exceed the total amount of insurance or other I proceeds that repair, restoration, or reconstruction would not be feasible nor desirable as determined by the Fayetteville City Council. C. All insurance money paid on account of such Major Damage or Destruction shall be paid to the City of Fayetteville and applied only to the payment of the cost of the restoration, repairs, replacements, or rebuilding, including expenditures made for temporary repairs or for the protection of property pending the completion of permanent restoration, repairs, replacements, or rebuilding or to prevent interference with the business operated thereon unless the insurance funds are insufficient to accomplish full restoration, repair, replacement, rebuilding, and the other necessary expenses. if the insurance money is insufficient for those purposes, it shall be paid to the City of Fayetteville to be used preferably for a capital expenditure similar to the Town Center to be determined by the City Council to be in the best interests of Fayetteville. ARTICLE X ASSIGNMENT Section 1001. The A&P Commission may not assign this Lease Agreement or sublet the Leased premises or part thereof for a period longer than sixty (60) days without the prior written consent of Fayetteville. No assignment or subletting and no dealings or transactions between Fayetteville and any or assignee shall relieve the A&P Commission of any of its obligations under this Lease Agreement. The A&P Commission shall remain as fully bound as though no assignment or subletting had been made, and performance by any assignee or sublessee of the A&P Commission shall be considered as performance by the Advertising & Promotion Commission. ARTICLE XI DEFAULT PROVISIONS Section 1101. The following shall be "Events of Default" under this Lease Agreement and the terms "Event of Default" or "Default" shall mean, whenever they arc used in this Lease Agreement, any one or more of the following events: failure by the A&P Commission to observe and perform any covenant, condition or agreement on its part to be observed or perfonned, (1) for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, given to the A&P Commission by Fayetteville unless the Fayetteville shall agree in writing to an extension of such time prior to its expiration or (2) for such longer period as may be reasonably necessary to remedy such default provided that the A&P Commission is proceeding with reasonable diligence to remedy the same. Section 1102. Whenever any Event of Default shall happen and then be continuing, Fayetteville may take any or all of the following remedial steps: (1) Fayetteville may re-enter and take possession of the Leased Premises without terminating this Lease Agreement and sublease the Leased Premises. (2) Fayetteville may terminate the Lease Agreement and exclude the A&P Commission from possession of the Leased Premises. (3) Fayetteville shall have access to and inspect, examine and make copies of the books and records relating to the Leased Premises. (4) Fayetteville may take whatever legal action may appear necessary or desirable to collect any rent of the Town Center and any other amounts payable to the A&P Commission hereunder, then due and thereafter to become due, and/or to enforce performance and observance of any obligation, agreement or covenant of the A&P Commission under this Lease Agreement. Section 1103. No remedy herein conferred upon or reserved to the Fayetteville is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease Agreement as now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof but any such right or power may be exercised from time to time as often as may be deemed expedient. ARTICLE XII NOTICES Section 1201. All notices, demands and requests which may or are required to be given by either party to the other shall be in writing, and each shall be deemed to have been properly given when served personally on an executive officer of the party to whom such notice is to be given, or when sent postage prepaid by certified mail by deposit thereof in a duly constituted United States Post Office or branch thereof located in one of the present states of the United States of America in a sealed envelope addressed as follows: If intended for A&P Commission: CEO Advertising and Promotion Commission City of Fayetteville, Arkansas 21 South Block Avenue Suite 100 Fayetteville, AR 72701 If intended for Fayetteville: Mayor City Administration Building 113 W. Mountain Street Fayetteville, AR 72701 Any party may change the address and the name of addressee to which subsequent notices are to be sent by notice to the other parties given as aforesaid. 16 ARTICLE XIII GENERAL Section 1301. This Lease Agreement shall be construed and enforced in accordance with the laws of the State of Arkansas. Proper venue and jurisdiction is Fayetteville, Washington County, Arkansas. Section 1302. If any provision of this Lease Agreement or the application thereof to any person or circumstance shall, to any extent, be determined to be invalid or unenforceable, the remainder of this Lease Agreement and the application of its provisions to persons or circumstances other than those as to which it has been determined to be invalid or unenforceable, shall not be affected thereby, and each provision of this Lease Agreement shall be valid and shall be enforced to the fullest extent permitted by law. Section 1303. The provisions of this Lease Agreement shall bind and inure to the benefit of the parties hereto and their respective successors. Section 1304. This Lease Agreement constitutes the entire agreement between these parties relating to the Leased Premises described herein and recites the entire consideration given and accepted by the parties. No representations not expressed herein have been made by either party or their agents. No representative of either party shall have any authority to bind the party allegedly represented concerning any modifications, additions, amendments or changes to this Lease Agreement. Section 1305. Nothing in this Lease Agreement shall be construed to waive the sovereign immunity of the State of Arkansas or any entity thereof and nothing herein shall be M construed to waive the statutory tort immunity of the City of Fayetteville and any potential immunity of the Fayetteville Advertising and Promotion Commission. IN WITNESS WHEREOF, Mayor Jordan having been properly authorized to execute this Lease Agreement by City Council Resolution and CEO Molly Rawn having been properly authorized by resolution of the Fayetteville Advertising and Promotion Commission do hereby sign their names to express Fayetteville's and the Fayetteville Advertising and Promotion Commission's full approval and acceptance of this Lease Agreement and all of its promises, covenants, and requirements therein contained. This Lease Agreement may be signed in counterparts which shall be considered originals, FAYETTEVILLE ADVERTISING & PROMOTION COMMISSION MoI awn, CEO — — Mum 3" .q0103 Date WITNESS Printed Name & Title CITY OF FAYETTEVILLE, ARKANSAS Z _V_ n, Mayor Date ATTEST: +``1���� �� � � �►►r►rfi Kara Paxton, City erk Treasurer ; FAY7 EXHIBIT A To the LEASE AGREEMENT by and between the CITY OF FAYETTEVILLE, ARKANSAS and the FAYETTEVILLE ADVERTISING AND PROMOTION COMMISSION: The following described land situated in the County of Washington, State of Arkansas, to -wit: Lot Numbered Eight (8), the north seven (7) feet of equal and uniform width of Lot Numbered Nine (9), Lots Numbered Twelve (12), Thirteen (13), Fourteen (14) and Fifteen (15), including the interest in any vacated alley associated with each lot or partial lot, all in Block Numbered Thirty (30) in the 'Town (now City) of Fayetteville, as designated upon the original plat of said town filed In the Office of the Circuit Clerk and Ex-Officio Recorder of Washington County, Arkansas. Also any and all interest in "partnership" or common "walls" which were previously conveyed to the Grantor. Said walls and buildings are no longer in existence.