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RESOLUTION NO. 10.498 r
A RESOLUTION TO RATIFY PARKING LEASES BETWEEN
THE LITTLE ROCK ADVERTISING & PROMOTION
COMMISSION AND M.S. GREEN - LITTLE ROCK
CORPORATION; AND FOR OTHER PURPOSES.
WHEREAS, the City of Little Rock, through its Advertising & Promotion Commission,
has come to agreement with M.S. Green -- Little Rock Corporation over terms and conditions for
parking lot lease agreements at the Second and Main Decks in Little Rock, and for the East
One -half of Block Three of the Original City of Little Rock; and
WHEREAS, pursuant to a resolution duly adopted by the Commission the City has been
asked to execute these agreements, and such execution has occurred; and
WHEREAS, for purposes of the public record it is desired that the Board ratify this
action.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
SECTION 1. The Board of Directors ratifies the actions of the Little Rock Advertising
& Promotion Commission, and the execution by the Mayor and City Clerk, of parking lot leases
between the Commission and M.S. Green -- Little Rock Corporation, for parking at the Second
& Main Decks, and at the East One -half of Block Three of the Original City of Little Rock, these
leases being attached as Exhibit A to this Resolution.
ADOPTED: MARCH 16, 1999
ATTESryT: �I n _, aa _ n APPRO W :
Robbie Hancock, City Clerk Jim Nilky, Mayor
APPROVED AS TO LEGAL FORM:
Thomas M. Carpenter, ChyAttorney
EXHIBIT A(1)
(Res. 010,498)
AGREEMENT TO RENT PARKING SPACES
IN 2ND AND MAIN DECK 94
KNOW ALL MEN BY THESE PRESENTS:
THIS AGREEMENT (the "Agreement ") is made and entered into as of the 1 st day of April
1998, by and between the City of Little Rock, Arkansas, a municipal corporation, organized and
existing under and by virtue of the laws of the State of Arkansas, acting by and through its Agent,
the City Advertising and Promotion Commission of Little Rock, Arkansas, (hereinafter referred to
as the "Lessor ") and M.S. Green - Little Rock Corp., an Arkansas Corporation (hereinafter referred
to as the "Lessee ").
WHEREAS, Lessor owns the West one half of Block 3, Original City of Little Rock, Pulaski
County, Arkansas as well as the parking deck situated thereon hereinafter referred to as the "Parking
Deck "; and,
WHEREAS, Lessee desires to rent 100 parking spaces in the Parking Deck.
NOW, THEREFORE,
WITNESSETH:
That for and in consideration of the reciprocal agreements herein set forth, which the Parties
hereto acknowledge to be mutually beneficial, and subject to the following terms and conditions, the
Lessor and Lessee agree as follows:
1. PREMISES: Lessor, for and during the term hereof only and any renewals thereof
but only if Lessee is not otherwise in default under the terms of hereof, Lessor rents to Lessee one
hundred (100) parking spaces (hereinafter referred to as the "Parking Spaces ") situated at various
locations from time to time in the Parking Deck, but to be convenient and accessible to Lessee but
determined by Lessor. Provided, further and so long as Lessee is not otherwise in default under the
terms hereof, Lessor agrees that it will keep and maintain the Parking Deck in good repair, ordinary
wear and tear and casualty excepted, and that Lessor will maintain insurance of such a type and in
such an amount as is necessary to repair the Parking Deck from and against damages caused by the
commonly insured against casualty.
2. LEASE TERM: The term of the Lease shall commence on April 1, 1998, and shall
terminate at 11:59 P.M. on the 31st day of July 2001.
3. CANCELLATION: This Lease and the Lessee's rights hereunder shall automatically
cancel and be terminated on the earlier of
(i) the date that the Lessee obtains adequate and/or closer and/or more
convenient parking; or
F:1 W PCLIENT "8111EXPANS701PKGNSPCS.716
(ii) the date that the Lessee, upon terms and conditions mutually agreed to by the
Lessor and Lessee, has a right to occupy at least the same number of parking
spaces as are then under lease by the Lessee with the Lessor in lot and deck
situated on Block 3, Original City of Little Rock, in a parking deck facility
constructed on Block 2, Original City of Little Rock.
The Lessee covenants and agrees to vacate and surrender possession of the Demised
Premises on the date of cancellation and termination without the necessity of the
Lessor taking any other steps or actions.
4. RENT: Lessee, in consideration of the covenants made by Lessor, covenants and
agrees to pay Lessor rent for the parking spaces Premises according to the following schedule and
in the following amounts:
(a) BASE RENT: Fifty Dollars per parking space payable monthly in advance on
the first day of each month.
(b) EXCESS RENT: To be billed according to usage at current in and out
parking rates on the date that Base Rent is due for the prior month usage.
5. RENEWAL: So long as the Lessee is not in default hereunder, Lessor grants to
Lessee the right, privilege and option to extend this Agreement through the year 2083 in successive
periods of Three (3) years each, upon and subject to the terms, provisions and conditions of this
Agreement, provided however, the last renewal term shall be extended to and through September 15,
2083 rather than ending on July 31, 2082. The Lease shall be automatically renewable for successive
three (3) year periods unless Lessee notifies Lessor in writing at least ninety (90) days before the
expiration of the initial term or any renewal terms that the Lease will not be renewed by Lessee. The
Rent for each renewal term shall increase by 5% at the beginning of each renewal term, but not to
exceed the then current prevailing market rate for spaces in the Parking Deck.
6. TAXES: Lessor shall pay any ad valorem taxes or special improvement assessments
be levied upon, assessed or charged against the Parking Deck, Lessee agrees to pay prior to
delinquency any sales tax or gross receipts tax or other tax or assessment levied on the rental of the
Parking Spaces hereunder.
LESSOR'S COVENANT OF TITLE: Lessor covenants that it is well seized of and
has good title to the Parking Deck on the date of this Agreement, except that Lessee takes possession
of the Parking Spaces subject to all matters of record and subject specifically to that certain Trust
Indenture, dated November 1, 1997, by and between the City of Little Rock, Arkansas and
Metropolitan National Bank, Trustee and that certain Operating Agreement, dated November 1,
1997, by and between the City of Little Rock, Arkansas and the City Advertising and Promotion
Commission of Little Rock, Arkansas, both pertaining to a Bond Issue used to purchase the Parking
Deck, the terms and provisions of which Trust Indenture and Operating Agreement are incorporated
herein by this reference.
95
8. TENANTS COVENANTS: Lessee covenants and agrees, during the term of this
Lease and for such further time as Lessee, or any person claiming under it, shall hold the Demised
Premises or any part thereof:
(a) RENT: To pay the reserved rent in the amount, on the days and in the
manner as provided in this Lease.
(b) LIENS AND ENCUMBRANCES: Not to allow the Parking Deck or Parking
Spaces at any time during the term to become subject to any lien, charge or
encumbrances. It is expressly agreed that Lessee shall have no authority,
expressed or implied, to create any lien, charge or encumbrance upon the
Parking Deck or Parking Spaces.
(c) INDEMNITY: Lessee further agrees to indemnify, defend and save Lessor
harmless from any liability, loss, cost, expense or claim of any nature resulting
from any damage to person or property arising out of the failure of Lessee, or
Lessee's agents, employees, servants, licensees or guests to fully comply with
and perform all of the requirements and provision of this Lease.
(d) DAMAGES AND RULES: To avoid doing any damage to the Parking Deck
and abide by any Rules made by Lessor from time to time.
(e) COMPLIANCE WITH LAW: To comply with all governmental laws, rules
and regulations applicable to the use, development or operation of the Parking
Deck.
9. USE, ALTERATIONS AND TITLE TO IMPROVEMENTS: Notwithstanding any
other provision herein to the contrary, Lessee shall have the right to use and/or occupy the Parking
Spaces only for the purpose of providing parking to its employees and guests and patrons of the
Excelsior Hotel and none other, except as otherwise provided herein, and for no other purpose.
Lessee may not make alterations, additions and improvements to the Parking Deck or Parking Spaces.
10. ASSIGNMENT AND SUBLETTING: The Lessee shall not sublease this lease or
Demised Premises. Furthermore, the Lessee shall not assign this Lease, the Demised Premises or its
rights or interest hereunder without the prior written consent of the Lessor which consent may be
withheld in the Lessor's reasonable discretion; provided, however, in the event the Construct and
Lease Agreement, dated April 17, 1978 and last amended by the parties hereto is assigned by Lessee,
pursuant to its terms, to another person or entity and so long as the Lessee is not otherwise in default
under the Construct and Lease Agreement aforesaid or hereunder, then and in such events, the Lessor
shall not withhold its consent to the assignment of this Lease to such person or entity, but such person
or entity will be bound to fully comply with the terms and provisions hereof and the Lessee will not
be thereby released of and from its obligations and liability hereunder.
11. LESSOR'S RIGHTS: Lessee shall be in default under the provisions of this
FAW FCLIENTSTS l nExPANSIOTWNSPCS.716
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Agreement upon the happening of any of the following events or conditions:
(a) Failure to pay the rentals provided herein at the times, in the amounts and in
the manner set forth herein and such failure continues for ten (10) days after
written notice is sent to Lessee.
(b) If the Lessee shall fail to promptly keep and perform any other covenants of
this Agreement strictly in accordance with the terms of this Agreement and
shall continue in default for a period of thirty (30) days after written notice by
Lessor of default and demand for performance.
(c) If Lessee is adjudicated a bankrupt, or if Lessee makes a general assignment
for the benefi *, of creditors, or, if in any proceedings based upon the
insolvency of Lessee, a receiver of all the property of Lessee is appointed and
not discharges within ninety (90) days after appointment.
In the event of a default by Lessee during the term hereof, then Lessor may, at any time
hereafter, terminate this Agreement and Lessee's right of occupancy by delivering written notice of
such termination to the Lessee. In addition to the foregoing remedies, in the event of any such
default, the Lessor shall have all other remedies afforded by law or in equity and in the event of any
litigation between the parties, the successful party shall be awarded its attorney's fees and court costs.
No delay or failure to exercise any of the options herein granted to Lessor by reason of a default shall
be a waiver thereof, and the waiver on one occasion of a default shall not be deemed a waiver of
Lessor's right to exercise its remedies by reason of the same or a similar default at any later occasion.
12. FAILURE TO YIELD POSSESSION: The Lessee covenants that at the termination
of the Agreement, by lapse of time, cancellation, default or otherwise, Lessee will yield immediate
possession to the Lessor, and that on Lessee's delinquency in so doing, or failure so to do, Lessee
shall be liable to and shall pay to Lessor as damages the value of rents for the time, damages for any
inconvenience, injury or loss the Lessor may have suffered, including any consequential damages.
If Lessee continues to occupy the Parking Spaces after the last day of the term, or after the last day
of any extension of the term, and Lessor elects to accept rent thereafter, a tenancy from month to
month only shall be created, and not for any longer period.
13. CONDEMNATION: If the whole or any part of the Parking Deck is taken or
condemned by any competent authority for any public use or purpose during the term or any
extension of this Agreement, Lessee reserves unto itself the right to claim and prosecute its claim in
all appropriate courts and agencies for any award or damages for such taking without impairing any
rights of Lessor for the taking of or injury to the reversion.
14. RISK OF LOSS: Lessee does hereby indemnify, defend and hold Lessor harmless of,
from and against all damages, claims, causes of action, accidents and injuries to person or property
caused by or resulting from or in connection with the use and occupancy of the Parking Deck or
things in and about the Parking Deck during the term hereof or any period Lessee remains in
F1W MLIENTSIO811\EXPANS101PKGNSPCS .716
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possession of the Parking Deck by the Lessee, its employees, agents, services, independent
contractor's, licensees and guests.
15. WAIVER OF SUBROGATION: The Parties agree to waive any right of subrogation
which either may have against the other for any losses paid to them on any policy of insurance to
extent permitted by the terms of any such policy.
16. TOTAL DESTRUCTION: The Parties agree that in the event the Parking Deck shall
be rendered untenantable by fire or other casualty, the Lessor may at Lessor's option, terminate this
Agreement or repair said premises within 30 days, and failing to do so, or upon the destruction of said
Parking Deck by fire or other casualty, the terms hereby created shall cease and terminate.
17. ADDITIONAL PARKING RENT AND AVAILABILITY. (a) Lessee shall have the
option during the term hereof and any renewal or extensions thereof, but only if Lessee is not
otherwise in default hereunder, to rent additional parking spaces from time to time, if and as such
parking spaces are otherwise available, upon payment of Additional Parking Rent (hereinafter referred
to as the "Additional Parking Rent ") equal to the regular rate charged by the Lessor for such spaces
to the Lessee. The rate charged by Lessor to rent additional parking spaces so established by the
Lessor shall be subject to the increase during the renewal term as provided in paragraph five (5)
hereof. The Lessor shall have the privilege to use and rent the Lessee's Parking Spaces from time
to time at the then prevailing rate (on a space available basis) and shall credit the Lessee with all fees
charged for the rental of these spaces. Lessee shall establish procedures to ensure that the foregoing
restrictions are enforced as to such additional parking spaces and shall permit the Lessor from time
to time upon reasonable notice during business hours to review such procedures and/or to review or
audit the Lessee's records relating thereto. The Lessor and the Lessee will establish a method of
accounting among themselves for the sums collected by the Lessor in its operation of the Parking
Deck for which the Lessee is to receive a credit and for the sums due by the Lessor for the additional
space used by Lessee's customers.
(b) Notwithstanding anything herein to the contrary, in the event of fire or other casualty, act
of God, labor dispute or any other occurrence which makes it not possible or at least impractical in
the Lessor's sole discretion to famish the Parking Spaces mentioned above, the Lessor will take only
such corrective measures as shall be necessary to again furnish said parking spaces for the Lessee but
only to the extent of any insurance proceeds available so to do.
18. MISCELLANEOUS PROVISIONS:
A. If any term or provision of this Lease or the application to any person or circumstance
shall, to any event, be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision to persons whose circumstance other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
B. The terms, conditions and covenants of this Lease shall be binding upon and shall inure to
the benefit of each of the parties, their heirs, personal representatives, successors or assigns, and shall
FAW MLIENTS\08111ExPANS101PKGNSPCS .716
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r-
run run with the land; and where more than one party shall be lessors under this Lease, the word "Lessor"
whenever used in this Lease shall be deemed to include all lessors jointly and severally.
C. No waivers, alterations or modifications of this Lease or any agreements in connection
with this Lease shall be valid unless in writing duly executed by both Lessor and Lessee.
D. The captions appearing in this Lease are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or intent of such paragraphs of this Lease or in
any way affect this Lease. Any gender used shall be deemed to refer to any other gender more
grammatically applicable to the party to whom such use of gender relates. The use of singular shall
be deemed to include the plural and, conversely, the plural shall be deemed to include singular.
E. If, at any time after the execution of this Lease, it shall become necessary or convenient
for one of the parties to serve any notice, demand or communication upon the other party, such
notice, demand or communication shall be in writing, signed by the party serving the same, sent by
registered or certified United States mail, return receipt requested, postage prepaid and (a) if intended
for Lessor, shall be addressed to:
with copy to:
City Manager
City of Little Rock
City Hall
Little Rock, Arkansas 72201
Executive Director
Advertising and Promotion Commission
Robinson Center
Little Rock, Arkansas 72201
and (b) if intended for Lessee, shall be addressed to:
with copy to:
MS Green -Little Rock Corp.
c/o Linus Raines
General Manager
Statehouse Convention Center
Little Rock, Arkansas 72201
MS Green - Little Rock Corp.
Attention: President
FA W FCLIENTS1081 I\EXPANSIOIPKGNSPCS.716
99
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with copy to:
225 Fifth Avenue, Suite 519
New York, New York 10010
Paul W. Hoover, Jr.
Giroir, Gregory, Holmes & Hoover, PLC
111 Center, Suite 1900
Little Rock, Arkansas 72201
M•M M M
or to such other address as either party may have furnished to the other in writing as a place for the
service of notice. Any notice so mailed shall be deemed to have been given as of the time it is
deposited in the United States mail.
F. This Agreement contains all the terms and conditions agreed upon by the parties hereto
with respect to the transactions contemplated hereby, and shall not be amended or modified except
by written instrument signed by all of the parties.
G. Nothing expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person, firm or corporation, other than the parties hereto, their successors
and assigns, any benefits, rights or remedies under or by reason of this Agreement.
H. The obligations and undertakings of the Parties hereto shall be performed within the time
specified therefor, time being of the essence of this Agreement, and the failure to perform within such
time shall constitute a breach of and default under this Contract on the part of the Party who fails to
perform.
I. This Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
J. This Agreement shall be governed by and construed under the laws of the State of
Arkansas.
K. For purposes of this Lease, the Little Rock Advertising and Promotion Commission or
its successors, is the Lessor for any and all administrative purposes pertaining to and/or provided for
in this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO AFFIX THEIR HANDS AND SEALS
ON THIS 17th DAY OF March 1999
FA W P1C LIENTS\0811\ExPANSIG\PKGNSPCS .716
m
ATTEST
City Clerk �ttagtnt °rnnmrnii
cc. OF
A
FAW P\ CLIENTS \0811\EAPANSIO\PKGNSPCS.716
LANDLORD: 1al
City of Little � Rock
BY: 6� /'u
a or
Little ock Advertising and
Prom lion o n
BY:
Chairman
n
T
Executive Director
ATTEST:
TENANT:
M.S. Green -Lit Ie Rock Corp
BY:
TITLE:
102
EXHIBIT A(2)
PARKING LOT LEASE AGREEMENT (Res. #10 , 498 )
(E1/2 of Block 3, Original City) ICL3
KNOW ALL MEN BY THESE PRESENTS:
THIS PARKING LOT LEASE AGREEMENT (the "Lease ") is made and entered into as of
the 1 st day of April 1998 by and between the City of Little Rock, Arkansas, a municipal corporation,
organized and existing under and by virtue of the laws of the State of Arkansas, acting by and through
its Agent, the City Advertising and Promotion Commission of Little Rock, Arkansas, (hereinafter
referred to as the "Lessor ") and M.S. Green - Little Rock Corp., an Arkansas Corporation (hereinafter
referred to as the "Lessee ").
WHEREAS, Lessor owns certain real property described below on which a vehicular parking
lot has been constructed; and,
WHEREAS, Lessee desires to lease the real property from Lessor in order to enhance and
support Lessee's hotel facilities and operate a parking lot on said real property to serve present and
futurethotel patrons.
... - -- -- NOW, THEREFORE,
WITNESSETH:
That for and in consideration of the reciprocal agreements herein set forth, which the Parties
hereto acknowledge to be mutually beneficial, and subject to the following terms and conditions, the
Lessor and Lessee agree as follows:
1. PREMISES: Lessor, for and in consideration of the covenants contained in this Lease
and made on the part of Lessee, does hereby demise, rent, let and lease unto Lessee, and Lessee does
hereby lease from Lessor, the parcel of land which is located in the City of Little Rock, County of
Pulaski, State of Arkansas, being more particularly described on Exhibit "A" attached hereto and by
this reference fully incorporated herein, together with all appurtenances thereunto belonging
(collectively referred to as "Demised Premises ").
2. LEASE TERM: The term of the Lease shall commence on April 1, 1998 and shall
terminate at 11:59 PM on the 31st day of July, 2001.
3. CANCELLATION: This Lease and the Lessee's rights hereunder shall automatically
cancel and be terminated on the earlier of
(i) the date that the Lessee obtains adequate and/or closer and/or more
convenient parking; or
F: \W P\ CLIENTS \0811 \EXPANSI0\AGRMNT.729
Ai') .
104
(ii) the date that the Lessee, upon terms and conditions mutually agreed to by the
Lessor and Lessee, has a right to occupy at least the same number of parking
spaces as are then under lease by the Lessee with the Lessor in lot and deck
situated on Block 3, Original City of Little Rock, in a parking deck facility
constructed on Block 2, Original City of Little Rock.
The Lessee covenants and agrees to vacate and surrender possession of the Demised
Premises on the date of cancellation and termination without the necessity of the
Lessor taking any other steps or actions.
4. RENT: Lessee, in consideration of the covenants made by Lessor, covenants and
agrees to pay Lessor rent for the Demised Premises according to the following schedule and in the
following amounts:
(a) For the period beginning on April 1, 1998 and ending on September 30, 1998,
Lessee agrees to pay to the Lessor the sum of $31,920.00 payable in equal
monthly installments of $5320.00 per month on the first day of each month
during the period beginning October 1, 1998 and ending on March 31, 2001,
Lessee agrees to pay to Lessor the sum of $182,400.00 in equal monthly
installments of $6080.00 per month beginning on the first day of October 1,
1998 and ending March 1, 2001.
5. RENEWAL: So long as the Lessee is not in default hereunder, Lessor grants to
Lessee the right, privilege and option to extend this Lease through the year 2083 in successive periods
of Three (3) years each, upon and subject to the terms, provisions and conditions of this Agreement,
provided, however, the last renewal term shall be extended to and through September 15, 2083 rather
than ending on March 31, 2082. The Lease shall be automatically renewable for successive three (3)
year periods unless Lessee notifies Lessor in writing at least ninety (90) days before the expiration
of the initial term or any renewal terms that the Lease will not be renewed by Lessee. The Rent for
each renewal term shall increase by 5% at the beginning of each renewal term, but not to exceed the
amount of 709/6 of the then current prevailing market rate for spaces in the Parking Deck situated on
the East half of Block 3, Original City of Little Rock.
6. TAXES: Should any ad valorem taxes or special improvement assessments be levied
upon, assessed or charged against the Demised Premises, then the Lessee and Lessor shall jointly
institute action or proceeding to have a judicial determination of whether or not the Demised
Premises should be subject to any such tax, assessment or charge and, if so, in what amount. But,
and notwithstanding the commencement and prosecution of such an action, Lessee agrees to pay prior
to delinquency any and all taxes and assessments levied on the Demised Premises due and payable
during the term and/or terms hereof. Lessee agrees to pay prior to delinquency any and all taxes
levied on any personal property situated on the Demised Premises and to pay, prior to delinquency,
any and all other taxes, fees and charges, including but not limited to any sales or gross receipts taxes,
growing out of or in connection with the business conducted on or use of the Demised Premises,
whether or not measured by gross revenue from such business; provided, however, the foregoing
FAWRCLIENTS \0811 \EXPANSIO\AGRMNT.729
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105
provisions are not to be construed as meaning that Lessee shall pay federal or state taxes on income
accruing to the Lessor under this Lease. Each party agrees to indemnify the other against, and save
it harmless from, any liability for taxes, assessments or charges in regard to which the other, under
the terms of this lease, is not liable.
7. LESSOR'S COVENANT OF TITLE: Lessor covenants that it is well seized of and
has good title to the Demised Premises on the date of this Lease, except that Lessee takes possession
of the Parking Spaces subject to all matters of record and subject specifically to that certain Trust
Indenture, dated November 1, 1997, by and between the City of Little Rock, Arkansas and
Metropolitan National Bank, Trustee and that certain Operating Agreement, dated November 1,
1997, by and between the City of Little Rock, Arkansas and the City Advertising and Promotion
Commission of Little Rock, Arkansas, both pertaining to a Bond Issue used to purchase the Parking
Deck, the terms and provisions of which Trust Indenture and Operating Agreement are incorporated
herein by this reference.
8. TENANTS COVENANTS: Lessee covenants and acres, during the term of this Lease
and for such further time as Lessee, or any person claiming under it, shall hold the Demised Premises
or any part thereof:
(a) RENT: To pay the reserved rent in the amount, on the days and in the
manner as provided in this Lease.
(b) LIENS AND ENCUMBRANCES: Not to allow the Demised Premises at any
time during the term to become subject to any lien, charge or encumbrances.
It is expressly agreed that Lessee shall have no authority, expressed or
implied, to create any lien, charge or encumbrance upon the Demised
Premises, except as provided for in this Lease.
(c) INSURANCE AND INDEMNITY: At its own expense, Lessee shall also
maintain and keep in force for the mutual benefit of Lessor and Lessee
Commercial public liability insurance against claims for personal injury, death
or property damage occurring in, on or about the Demised Premises (other
than easements and common areas under the control of Lessor) to afford
protection to the limit of not less than $1,000,000.00 with respect to bodily
injury or death and to property damage. Lessee shall deliver to Lessor, upon
request, a certificate of insurance and of any renewals from time to time
during the term of this Lease. Lessee further agrees to indemnify, defend and
save Lessor harmless from any liability, loss, cost, expense or claim of any
nature resulting from any damage to person or property arising out of the
failure of Lessee, or Lessee's agents, employees, servants, licensees or
contractors, in any respect, to keep the Demised Premises (other than
easements and common areas under the control of Lessor ) in a safe condition
and to comply with and perform all of the requirements and provision of this
Lease.
F9WPiCLIENTSM 11\EXPANS101AGRMNT.729
(d) REPAIRS: To keep the Demised Premises in a safe and good condition and 106
repair, subject to ordinary wear and tear only.
(e) UTILITIES: To pay when due all charges for all utility services used on the
Demised Premises.
(f) COMPLIANCE WITH LAW: To comply with all governmental laws, rules
and regulations applicable to the use, development or operation of the
Demised Premises.
9. USE, ALTERATIONS AND TITLE TO IMPROVEMENTS: Notwithstaiiding any
other provision herein to the contrary, Lessee shall have the right to use and/or occupy the Demised
Premises only for the purpose of providing parking to its employees and guests and patrons of the. .
Excelsior Hotel and none other,. except as otherwise provided herein; and for no other: purpose.:.
Further, Lessee may during the term hereof make alterations, additions and improvements to the .
Demised Premises, but only to the extent that such alterations, additions and improvements are
consistent with the use of the Demised Premises as a vehicular parkin lot. All improvements located
on the Demised Premises on the date of the termination of this Lease, whether at maturity or by
cancellation as herein provided, shall become the property of the Lessor, other than concrete wheel
stops, steel post and fencing, access control systems, signage; she}ters or enclosures all of which
Lessee may remove at termination of the Lease whether at maturuty or by cancellation as herein
provided.
10. ASSIGNMENT AND SUBLETTING: The Lessee I hall not sublease this Lease or
Demised Premises. Furthermore, the Lessee shall not assign this Lease, the Demised Premises or its
rights or interests hereunder without the prior written consent of the Lessor which consent may be
withheld in the Lessor's reasonable discretion; provided, however, in the event the Construct and
Lease Agreement, dated April 17, 1978 and last amended by the parties hereto is assigned by Lessee,
pursuant to its terms, to another person or entity and so long as the Lessee is not otherwise in default
under the Construct and Lease Agreement aforesaid or hereunder, then and in such events, the Lessor
:: :shall not withhold its consent.to:the,assignment of this Lease to such person or entity, but such person:
or entity will be boundao fully comply.-with the terms and provisions hereof, and the Lessee will not
be thereby. released of and from its obligations or liability hereunder:
11. LESSOR'S RIGHTS: Lessee shall be in default under the provisions of this Lease
agreement upon the happening of any of the following events or conditions:
(a) Failure to pay the rentals provided herein at the times, in the amounts and in
the manner set forth herein and such failure continues for ten (10) days after
written notice is sent to Lessee.
(b) If the Lessee shall fail to promptly keep and perform any other covenants of
this Lease strictly in accordance with the terms of this Lease and shall
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107
continue in default for a period of thirty (30) days after written notice by
Lessor of default and demand for performance.
(c) If Lessee is adjudicated a bankrupt, or if Lessee makes a general assignment
for the benefit of creditors, or, if in any proceedings based upon the
insolvency of Lessee, a receiver of all the property of Lessee is appointed and
not discharges within ninety (90) days after appointment.
In the event of a default by Lessee during the tern hereof, then Lessor may, at any time
hereafter, terminate this lease and Lessee's right of occupancy by delivering written notice of such
termination to the Demised Premises. In addition to the foregoing remedies, in the event of any such
default, the Lessor shall have all other remedies afforded by law or in equity and in the event of any
litigation between the parties, the successful party shall be awarded its attorney's fees and court costs. .
No delay or failure to exercise any of the options herein granted to Lessor by reason of a default shall
be a waiver thereof, and the waiver on one occasion of a default shall not be deemed a waiver of
Lessor's right to exercise its remedies by reason of the same or a similar default at any later occasion.
12. FAILURE TO YIELD POSSESSION: The Lessee covenants that at the termination
of the lease, by lapse of time, cancellation, default or otherwise; Lessee will yield immediate
possession to the Lessor, and that on Lessee's delinquency in so doijng, or failure so to do, Lessee
shall be liable to and shall pay to Lessor as damages the value of rents; for the time, damages for any
inconvenience, injury or loss the Lessor may have suffered, including any consequential damages.
If Lessee continues to occupy the Demised Premises after the last d1y of the term, or after the last
day of any extension of the term, and Lessor elects to accept rent th reafter, a tenancy from month
to month only shall be created, and not for any longer period.
13. CONDEMNATION: If the whole or any part of the Demised Premises is taken or
condemned by any competent authority for any public use or purpose during the term or any
extension of this Lease, Lessee reserves unto itself the right to claim and prosecute its claim in all
appropriate courts and agencies for any award or damages for such taking based upon its leasehold
::interest: and:ownership of buildings .alteiations and improvements - without impairingany'rights of:?
Lessor for the taking of or injury to the`mversion:.
If 'a part'of the Demised Premises shall be takenor condemned: which, in the sole judgment
of Lessee, is sufficient to render the remaining portion unsuitable for its continued use or occupancy,
then Lessee may, at any time, either prior to or within a period of thirty (30) days after the date when
possession of the Demised Premises shall be required by the condemning authority, elect to terminate
this Lease. In the event that Lessee shall fail to exercise any such option to terminate this Lease, then
this Lease shall continue in effect with respect to the portion of the Demised Premises not so taken
and monthly and annual rent shall be reduced based upon the number of parking spaces so taken times
the then current rental rate per parking space pursuant to this Agreement.
FAWP\CLIENTS1081 I \EXPANSIOW GRMNT.729
!'
14. RECORDING: Lessee and Lessor agree to execute and record a short form or
memorandum of this Lease within 60 days of the date hereof. The cost of all documentary stamps
or conveyancing, transfer tax and recording fees shall be paid equally by the parties.
15. RISK OF LOSS: Lessee does hereby indemnify, will defend and hold Lessor harmless
of, from and against all damages, claims, causes of action, accidents and injuries to person or property
caused by or resulting from or in connection with the use and occupancy of the Demised Premises
or things in and about the Demised Premises during the term hereof or any period Lessee remains in
possession of the Demised Premises by the Lessee, its agents, employees, contractors, licenses and
guests.
16. WAIVER OF SUBROGATION: The Parties agree to waive any right of subrogation .
which either may have against the other for any losses paid to them on any policy or insurance to
extent permitted by the terms of any such policy.
17. TOTAL DESTRUCTION: The Parties agree that in the event the Demised Premises
shall be rendered untenantable by fire or other casualty, the Lessor may at Lessor's option, terminate
this lease or repair said premises within 30 days, and failing to do so, 'or upon the destruction of said
Demised Premises by fire or other casualty, the terms hereby created shall cease and terminate.
18. MISCELLANEOUS PROVISIONS:
A. If any term or provision of this Lease or the application'to any person or circumstance
shall, to any event, be invalid or unenforceable, the remainder of this Lase, or the application of such
term or provision to persons whose circumstance other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
B. The terms, conditions and covenants of this Lease shall be binding upon and shall inure to
the benefit of each of the parties, their heirs, personal representatives, successors or assigns, and shall
run with the land; and where more than one party shall be lessors under this Lease, the word "Lessor"
Whenever used in this Lease shall be deemed.to include all lessors.jpintly and severally..:::.
C. No waivers, alterations or modifications of this Lease or: any agreements in connection
with,this Lease shall be valid unless in writing duly executed by both Lessor and Lessee:
D. The captions appearing in this Lease are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or intent of such paragraphs of this Lease or in
any way affect this Lease. Any gender used shall be deemed to refer to any other gender more
grammatically applicable to the party to whom such use of gender relates. The use of singular shall
be deemed to include the plural and, conversely, the plural shall be deemed to include singular.
E. If, at any time after the execution of this Lease, it shall become necessary or convenient
for one of the parties to serve any notice, demand or communication upon the other party, such
notice, demand or communication shall be in writing, signed by the party serving the same, sent by
F: \WP\CLIENTS\0811 \EXPANSI0\HGRMNT.729
109
registered or certified United States mail, return receipt requested, postage prepaid and (a) if intended
for Lessor, shall be addressed to:
City Manager
City of Little Rock
City Hall
Little Rock, Arkansas 72201
with copy to:
Executive Director
Advertising and Promotion Commission
Robinson Center
Little Rock, Arkansas 72201
and (b) if intended for Lessee, shall be addressed to:
with copy to:
MS Green - Little Rock Corp.
c/o Linus Raines
General Manager
Statehouse Convention Center
Little Rock, Arkansas 72201
MS Green- Little Rock Corp.
Attention: President
225 Fifth Avenue, Suite 519
New York, New York 10010
with copy to:
Paul W. Hoover, Jr.
Giroir, .Gregory; Holmes &'Hoover; PLC,
111 Center, Suite 1900
Little Rock, Arkansas 72201
or to such other address as either party may have furnished to the other in writing as a place for the
service of notice. Any notice so mailed shall be deemed to have been given as of the time it is
deposited in the United States mail.
F. This Agreement contains all the terms and conditions agreed upon by the parties hereto
with respect to the transactions contemplated hereby, and shall not be amended or modified except
by written instrument signed by all of the parties.
F:\WMLIENISM I I\EXPANSIOWGRMNT.729
11G
G. Nothing expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person, firm or corporation, other than the parties hereto, their successors
and assigns, any benefits, rights or remedies under or by reason of this Agreement.
H. The obligations and undertakings of the Parties hereto shall be performed within the time
specified therefor, time being of the essence of this Agreement, and the failure to perform within such
time shall constitute a breach of and default under this Contract on the part of the Party who fails to
perform.
I. This Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
J. This Agreement shall be governed by: and construed under the laws of the State of. .
Arkansas.
K. For purposes of this Lease, the Little Rt
[THE REMAINDER OF THIS PAGE IS
F: \WP\CLIENTS \Og l 1\EXPANSI0\AGRMNT.729
Promotion Commission or
(LEFT BLANK]
its successors, is the Lessor for any and all administrative purposes pertaining to and/or provided
for in this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO AFFIX THEIR HANDS AND
SEALS ON THIS 17th DAY OF March , 1999.
_G L iF ri., AN
ATTEST: %-, "L'' ,
City Clerk Robbie Hancock
ATTEST:
Executive Director
ATTEST:
City of Little Rock
BY: uM S
Mayor im Dailey
Little Rock Advertisine and
1.11
TENANT:
M.S. Green - Little Rock Co
BY:
TITLE:
111
112
EXHIBIT "A"
Lots 1, 2, 3, 4, 5 and 6, Block 3 of the Original City of Little Rock, Pulaski County, Arkansas.
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