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RESOLUTION NO. n,1Z
A RESOLUTION TO ACCEPT THE RECOMMENDATION OF THE
LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION TO
ENTER INTO A LEASE AGREEMENT WITH BG EXCELSIOR LIMITED
PARTNERSHIP FOR PARKING PLACES IN THE ROBINSON CENTER
PARKING DECK; AND FOR OTHER PURPOSES.
9 WHEREAS, the City Board of Directors previously authorized entry into an Amended,
10 Restated and Substituted Lease and Concession Agreement with BG Excelsior Limited Partnership
11 ( "BGE "), an Arkansas limited partnership, for the rehabilitation, development and lease of a hotel
12 in downtown Little Rock, and
13 WHEREAS, the City has taken numerous other steps to make this agreement work and to
14 develop a Peabody Hotel in downtown Little Rock at the foot of the Main Street Bridge and
15 adjacent to the Statehouse Convention Center, and
16 WHEREAS, BGE has expressed a desire for a formal lease agreement for 50 parking spaces
17 in the Robinson Center Parking Deck and this desire has been reviewed by the Little Rock
18 Advertising & Promotion Commission which, in support of such a lease, adopted a resolution
19 dated July 18, 2001, to recommend entry into such an agreement,
20 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE
21 CITY OF LITTLE ROCK, ARKANSAS:
22 Section 1. The Board authorizes the Mayor and City Clerk to execute any and all
23 documents necessary to effect, execute and deliver a parking lease referred to as the Robinson
24 Center Parking Lease with BGE — attached as Exhibit A to this Resolution — in accordance with the
25 recommendations of the Little Rock Advertising and Promotion Commission ( "Commission ").
26 Section 2. The Board makes this authorization upon the recommendation of the
27 Commission as expressed in a Commission resolution adopted on July 18, 2001 — attached as
28 Exhibit B.
[PAGE 1 OF 11]
I Section 3. The Board authorizes the filing of a copy of this lease with the Circuit Clerk
2 and Ex- Officio Recorder of Pulaski County, Arkansas, if the Commission, acting through its
3 Executive Director or otherwise, deems such action to be in the best interests of the City.
4 Section 4. Severability. In the event any title, section, paragraph, item, sentence, clause,
5 phrase, or word of this resolution is declared or adjudged to be invalid or unconstitutional, such
6 declaration or adjudication shall not affect the remaining portions of the resolution which shall
7 remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional
8 was not originally a part of the resolution.
9 Section 5. Repealer. All laws and parts of laws are hereby repealed to the extent of such
10 inconsistency.
11 ADOPTED: September 18, 2001
12 ATTEST: APPROVED:
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15 Nan6 Wood City Clerk Jim iley, Mayor
16 APPROVED // AS TO LEGAL FORM:
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19 Thomas M. Carpenter, City Atijrney
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[PAGE 2 OF 11 ]
12o ii �z4
AGREEMENT TO RENT PARKING SPACES
IN ROBINSON CENTER DECK
KNOW ALL MEN BY THESE PRESENTS:
THIS AGREEMENT (the "Agreement ") is made and entered into as of the
18th day of September 2001, by and between the City Advertising and
Promotion Commission of Little Rock, Arkansas (the, "Lessor'), as agent of and for the
City of Little Rock, acting by duly adopted resolution (hereinafter referred to as
"Lessor "); and BG Excelsior Limited Partnership, an Arkansas limited partnership, acting
by and through, BEY, Inc., an Arkansas corporation, its duly authorized and empowered
General Partner, both the limited partnership and the general partner thereof being
authorized to do business in Arkansas, hereinafter referred to as " BGE" or "Lessee ".
WHEREAS, Lessor operates a parking deck situated on a part of Block 99,
Original City of Little Rock. Pulaski County, Arkansas, hereinafter referred to as the
"Robinson Center Parking Deck "; and.
WHEREAS, Lessee desires to rent 50 parking spaces in the Robinson Center
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 fifty (50) parking spaces (hereinafter referred to as the 'Parking Spaces ")
situated at various locations from time to time in the Robinson Center Parking Deck as
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 Robinson Center
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 Robinson Center Parking Deck from and against damages caused by the
commonly insured against casualty.
2. LEASE TERM: The term of this Agreement commenced on January
1 , 2001 and shall end at 12:00 Midnight, December 31, 2004, unless sooner
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AGREEMENT TO RENT PARKING SPACES
0
extended or terminated as provided herein. PROVIDED, FURTHER, So long as Lessee
is not then otherwise in default hereunder and has exercised its right to extend the term of
the Amended, Substituted and Restated Lease and Concession Agreement pertaining to
the Peabody Hotel, dated September 18, 2000 (the, "Lease and Concession Agreement "),
Lessor wants 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 only to September 14. 2083. This Lease shall be automatically
renewable for successive three (3) year periods unless the Lessee notifies the 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 the Lessee. The rental owed in each renewal
term shall be calculated under the same terms and conditions as stated in Section 3 below.
3. RENT: Lessee, in consideration of the covenants made by Lessor,
covenants and agrees to pay Lessor rent for the Parking Spaces according to the
following schedule and in the following amounts:
(a) For the period from the date hereof through September 14, 2002,
the Lessee covenants and agrees to pay to the Lessor as Rent of and for
the Parking Spaces, rent of $28.00 Dollars per parking space (the, 'Base
Rent ") payable per month in advance on the first day of each month, and,
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.-
(b) For the period from September 14, 2002 through September 14,
2033 and during any Renewal Term hereof, the Lessee covenants and
agrees to pay to the Lessor as Rent of and for the Parking Spaces, Base
Rent per parking space payable per month in advance on the first day of
each month (calculated on the first day of each Renewal Term by
multiplying the Base Rent for the preceeding Renewal Term by 5 %, but
not to exceed the then current prevailing monthly parking market rate for
spaces in the Parking Deck), and, 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.
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=4. TAXES: Lessor shall pay any ad valorem takes or special improvement
assessments levied upon, assessed or charged against the Robinson Center 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.
5. QUIET ENJOYMENT. The Lessor acknowledges that the Lessee. upon
paying the Rent and performing all the covenants and conditions of this Lease
Agreement, shall (subject to the matters and things of record and the Lessor's rights
specified in this Lease Agreement) lawfully and quietly occupy the Parking Spaces
during the term of this Lease Agreement without hindrance or molestation by Lessor or
any persons claiming under the Lessor.
6. 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 Parking Spaces 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 Robinson Center 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 Robinson Center 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 provisions of this Lease.
(d) DAMAGES AND RULES: To avoid doing any damage to the Robinson Center
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 Robinson Center
Parking Deck.
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AGREEMENT TO RENT PARKING SPACES.
L]
7. USE, ALTERATIONS AND TITLE TO IMPROVEiN[ENTS:
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 Peabody Hotel and none other, except as
otherwise provided herein, and for no other purpose. Lessee may not make alterations,
additions and improvements to the Robinson Center Parking Deck or Parking Spaces.
S. ASSIGNMENT: The Lessee shall not assign this Lease or its rights or
interest hereunder without the prior written consent of the Lessor: provided, however, in
the event the Lease and Concession Agreement, as amended from time to time, 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 Lease and Concession 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.
9. LESSOR'S RIGHTS: Lessee shall be in default under the provisions of
this 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 the Lessee shall be in default under and pursuant to the provisions of Article
XV of the Lease and Concession Agreement resulting in its termination.
(d) 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.
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AGREEMENT TO RENT PARKING SPACES
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In the event of a default by Lessee during the term hereof, then Lessor may, at anv
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.
10. 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.
11. CONDEMNATION: If the whole or any part of the Robinson Center
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.
12. 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 Robinson Center Parking Deck or things in and about the Robinson
Center Parking Deck during the term hereof or any period Lessee remains in possession
of the Parking Spaces by the Lessee, its employees, agents, services, independent
contractor's, licensees and guests.
13). 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.
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la. TOTAL DESTRUCTION: The Parties agree that in the event the
Robinson Center 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 Robinson Center
Parking Deck by fire or other casualty, the terms hereby created shall cease and
terminate.
15. 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 assiens.
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 (Yender 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:
M
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Executive Director
Advertising and Promotion Commission
Robinson Center
Little Rock, Arkansas 72201
and (b) if intended for Lessee, shall be addressed to:
BG Excelsior Limited Partnership
5 113 Park Avenue, Suite 249
Memphis, TN 33117
Attention: Martin S. Belz
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 Agreement 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. .
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AGREEMENT TO RENT PARKING SPACES
N WITNESS WHEREOF, THE PARTIES TO AFFIX THEIR HANDS AND
SEALS ON THIS 1,5' DAY OF 2001.
LESSOR:
City of Little Rock, Arkansas
BY:
V yor
ATTEST:
YClerk
7 "
ci� n •
1\364, 7
00737701 11:39 AM
hjkpa.apcoinm .Robin- Peabody$paces
City Advertising and Promotion
Commission
IC 1
Chaifman _
ATTEST:
l
Execu 've Di ector
LESSEE:
BG Excelsior Limited Partnership, an
Arkansas limited partnership, by and
through its General Partner:
BEX, In ansas or t'
B
TITLE:rji�EOgr %�