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HomeMy WebLinkAbout14511 1 RESOLUTION NO. 14,511 2 3 A RESOLUTION TO APPROVE AN ESTOPPEL AGREEMENT 4 BETWEEN THE CITY OF LITTLE ROCK, ARKANSAS, JAPB, LLC, 5 D/B/A ROCK CITY YACHT CLUB AND FIRST SERVICE BANK TO 6 ACCOMMODATE A FINANCING ARRANGEMENT FOR THE 7 DEVELOPMENT OF THE MARINA ON THE ARKANSAS RIVER; AND 8 FOR OTHER PURPOSES. 9 10 WHEREAS, after a competitive selection process JAPB, LLC, was deemed the successful bidder to 11 develop a marine, a portion of the Arkansas River Trail, and to assist in the development of a City Park 12 ("the Project")pursuant to Little Rock, Ark., Resolution No. 13,089(February 26, 2010); and, 13 WHEREAS,JAPB, LLC, is ready to move forward with the development of the marina, and pursuant 14 to Section 13.1 of the Lease Agreement entered on December 19, 2013, between the City and JAPB, LLC, 15 the City has agreed to execute any necessary and appropriate estoppel agreements to assist with financing 16 of the improvements to be built at the Project; and, 17 WHEREAS, after review of the documents it has been determined that an Estoppel Certificate between 18 the City,JAPB, LLC,and First Service Bank is in order and appropriate; 19 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY 20 OF LITTLE ROCK,ARKANSAS: 21 Section 1. The Mayor and City Clerk, and any other City Officials deemed necessary to do so, are 22 authorized to execute a Estoppel Agreement between the City,JAPB, LLC, and First Security Bank in the 23 form approved by the City Attorney and attached as Exhibit A to this resolution. i 24 Section 2. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or 25 word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or 26 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and 27 effect as if the portion so declared or adjudged invalid or unconstitutional were not originally a part of the 28 resolution. 29 Section 4. Repealer. All laws,ordinances, resolutions,or parts of the same, that are inconsistent with 1 30 the provisions of this resolution,are hereby repealed to the extent of such inconsistency. 31 ADOPTED: February 21,2017 32 AT T: APPROVE 33 `� AS.�I / 34 W�1tiW / // 35 S �, a ley, City Clerk Mark Stodola, Mayor [Page I of 81 1 APPR VED AS TO LEGAL FORM: 2 3 , , 4 Thomas M. Carpenter,City torney 5 // 6 // 7 // 8 // 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 29 // 30 // 31 // 32 // 33 // 34 // 35 // 36 // (Page 2 of 81 1 EXHIBIT A 2 ESTOPPEL AGREEMENT 3 4 This Agreement Prepared By: 5 Timothy W. Grooms, Esq. 6 Quattlebaum, Grooms&Tull, PLLC 7 111 Center Street, Suite 1900 8 Little Rock, Arkansas 72201 9 (501)379-1700 10 11 LANDLORD'S WAIVER, ESTOPPEL AND NONDISTURBANCE AGREEMENT 12 Landlord: 13 14 CITY OF LITTLE ROCK Office of the City Manager 500 West Markham Street 15 Little Rock, Arkansas 72201 16 Tenant: JAPB,LLC,an Arkansas limited liability company 17 d/b/a Rock City Yacht Club 18 26 Collins Industrial Place 19 North Little Rock, Arkansas 72113 20 Attn: John Burkhalter 21 Lender: FIRST SERVICE BANK 22 an Arkansas banking corporation 23 12921 Cantrell Road, Suite 204 24 Little Rock, Arkansas 72223 25 Attn: Bill Puddephatt, President-Little Rock Market 26 27 28 RECITALS: 29 Landlord is the owner and landlord of the "Land" as defined in that certain Ground Lease, dated 30 December 19, 2013, by and between Landlord and Tenant (the "Lease"). The Lease is memorialized by 31 that certain Memorandum of Lease by and between Landlord and Tenant, dated , 20_, and 32 recorded on , 2017 in the real property records of Pulaski County, Arkansas as Instrument 33 # 34 Lender has been, and may in the future be, requested to make secured loans to Tenant and/or 35 Tenant's affiliates from time to time covering the construction of a marina and the consumer goods, 36 equipment, inventory,accessions and fixtures(collectively the "Personal Property")that may hereafter be 37 delivered to or installed on the Land. Lender has required the execution of this Landlord's Waiver,Estoppel 38 and Nondisturbance Agreement ("Agreement") as a condition precedent to making a loan to Tenant, and 39 Landlord acknowledges that benefits will inure to the undersigned because of the loan. 40 41 AGREEMENT: 42 In consideration of the foregoing and of other good and valuable consideration, the receipt and 43 sufficiency of which is acknowledged, Landlord hereby agrees as follows: [Page 3 of 81 1 1. Landlord hereby consents to Tenant granting Lender a mortgage on Tenant's leasehold interest 2 under the Lease, including without limitation Tenant's interest in the Land and the marina. 3 Landlord further consents to Tenant granting Lender a security interest in and to the Personal 4 Property. 5 2. Landlord hereby waives and subordinates as to the Lender all rights that Landlord now has,or may 6 hereafter have, under the laws of the State of Arkansas, in which the Land is located, or by virtue 7 of any lease, mortgage or deed of trust affecting the Land, now in effect or hereafter executed by 8 Tenant, to levy upon or distrain the Personal Property for rent, or to claim or assert title to or any 9 interest in any of the Personal Property. 10 3. The Personal Property shall remain personal property notwithstanding its attachment to or 11 installation on the Land and none of the Personal Property shall become a fixture. The Personal 12 Property may be installed, kept, maintained, used and operated on the Land, and the Lender's 13 interest in the Personal Property shall be superior to any interest which the Landlord may now have, 14 or hereafter may acquire in the Personal Property, by operation of law or otherwise. 15 4. 16 In the event of a default by Tenant in the payment or performance of any of its obligations to Lender, Lender may (i)enter upon the Land and remove the Personal Property or any part thereof 17 from the Land,or(ii)enter upon the Land and maintain the Personal Property on the Land with full 18 right of access thereto for a reasonable period of time for purposes of disposing of the same,either 19 privately or publicly, provided Lender pays any rent or other payments to Landlord that Tenant 20 would have been required to pay during the same period under any rental or lease agreement or 21 mortgage or deed of trust between Tenant and the Landlord. Except for payment of rent or other 22 payments during periods in which it occupies the Land, Lender shall have no obligation for rent or 23 any other payments or obligations of Tenant to the Landlord. Upon default, if Lender chooses to 24 remove some or all of the Personal Property, without obligation to do so, Landlord may require 25 Lender, to the extent of conditions caused by removal by Lender of some or all of the Personal 26 Property, to restore the Land to a reasonably safe condition acceptable to Landlord at the expense 27 of the Tenant or Lender. 28 5. The initial term of the Lease commenced on December 19, 2013 and ends on December 18, 2112. 29 6. The Lease is in full force and effect. 30 7. As of the date hereof, the rent obligation under the Lease is as set forth in Article 2.2 of the Lease 31 has been paid in full. Landlord does not currently hold a security deposit from Tenant. 32 8. To the best of Landlord's knowledge, there is no existing default or claimed default by either 33 Landlord or Tenant under the Lease. To the best of Landlord's knowledge, no event has occurred 34 that, with the passage of time or the giving of notice, or both, would constitute a default by either 35 Landlord or Tenant under the Lease. I Page 4 of 81 1 9. If any proceedings are brought by Lender to (a) foreclose its lien or security interest or (b) to 2 succeed to the interest of Tenant by foreclosure, deed in lieu thereof or otherwise, Landlord and 3 Lender agree that the Lease shall in accordance with all terms,conditions and covenants remain in 4 full force and effect as a direct lease and easement between Lender (or the purchaser through 5 foreclosure or other sale)and Landlord for the unexpired balance(and any extensions or renewals 6 provided for in the Lease, including, without limitation, any extensions or renewals pursuant to 7 options contained in the Lease and previously,at that time or thereafter exercised by Tenant)of the 8 term of the Lease, with the same force and effect as if originally entered into with Lender. If any 9 default occurs in the Lease following succession to Lender (or the purchaser through foreclosure 10 or other sale), this Agreement shall have no impact on future estoppel agreements between 11 Landlord and future lenders. 12 10. In the event of any such foreclosure or succession to the interest of Tenant by deed in lieu thereof 13 or otherwise by Lender or by any purchaser of such interest through foreclosure or other sale, 14 Landlord shall attorn to and shall be bound to Lender or such purchaser under all of the terms, 15 conditions and covenants in the Lease for the unexpired balance (and any extensions or renewals 16 provided for in the Lease, including, without limitation, any extensions or renewals pursuant to 17 options contained in the Lease and previously,at that time or thereafter exercised by Tenant)of the 18 term of the Lease without the execution of any further instrument on the part of the parties hereto. 19 11. Notwithstanding anything to the contrary contained herein or in the Lease or Easement,in the event 20 of foreclosure of,or other execution on,Lender's lien or security interest(by judicial process,power 21 of sale or otherwise)or conveyance in lieu of foreclosure, Lender shall in no event or to any extent: 22 (1) be liable to Landlord for any past act,omission or default on the part of Tenant except acts, 23 omissions or defaults which continue subsequent to the time Lender acquires Tenant's interest in 24 the Lease,and only to the extent of such continuation; 25 (2) be subject to any defenses which Landlord might have against Tenant, unless Landlord has 26 given Lender notice and opportunity to cure any default pursuant to the provisions below; 27 (3) bound by any Lease amendment after the effective date of this Agreement that is made 28 without Lender's written consent which shall not be unreasonably withheld,conditioned or delayed. 29 Lender shall be deemed to have given its consent to any amendment of the Lease to which Lender 30 would not otherwise be bound, if Lender fails to respond,either by reasonably requesting additional 31 information or by disapproving the request, within ten (10) days after Lender's receipt of such 32 request from Landlord or Tenant. 33 12. Landlord agrees to give Lender a copy of any notice of default served upon Tenant. Lender shall 34 thereafter have the right, but not the obligation, to cure the default within the longer of(i) the [Page 5 of 81 1 expiration of Tenant's cure period, if any,under the Lease;(ii)thirty(30)days after Lender receives 2 a copy of such notice of default,or(iii)such other period negotiated between Landlord and Lender. 3 13. This Agreement shall inure to the benefit of the successors and assigns of the Lender and shall be 4 binding upon the successors and assigns of Landlord, and upon any purchaser of the undersigned's 5 interest in the Land. 6 14. Whenever in this Agreement or in any proceedings involving the foreclosure of Lender's liens or 7 security interests in the leasehold interests or the exercise of any power of sale it shall be required 8 or desired that notice or demand be given or served by any party hereto, such notice or demand 9 shall be in writing and shall be given by United States certified or registered mail,postage prepaid, 10 return receipt requested,or by messenger or overnight delivery, addressed to the party for whom it 11 is intended at the address provided at the beginning of this Agreement. 12 15. The obligations and covenants of the parties hereto shall be binding upon and shall inure to the 13 benefit of the parties hereto,their respective successors and assigns. 14 16. The parties hereto agree that this Agreement may be recorded in the public records in the county 15 where the Premises are located. 16 IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed this 17 _day of , 2017. 18 LANDLORD: 19 CITY OF LITTLE ROCK 20 By: 21 Name: Mark Stodola 22 Title: Mayor 23 // 24 // 25 // 26 // 27 // 28 // 29 // 30 // 31 // 32 // 33 // 34 // 35 // 36 // 'Page 6of81 1 STATE OF ARKANSAS ) 2 )ss. ACKNOWLEDGMENT 3 COUNTY OF_PULASKI ) 4 On this day, before me, a Notary Public, duly commissioned, qualified and acting, with and for said 5 County and State, appeared in person the within named Mark Stodola, to me well known, who stated he 6 was the Mayor of the City of Little Rock, an Arkansas municipality, and was duly authorized in such 7 capacity to execute the foregoing instrument for and in the name and on behalf of the municipality, and 8 further stated and acknowledged he had so signed,executed and delivered the foregoing instrument for the 9 consideration, uses and purposes therein mentioned and set forth. 10 IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of 11 , 2017. 12 13 Notary Public 14 My commission expires: 15 16 (SEAL) 17 TENANT: 18 JAPB,LLC, 19 an Arkansas limited liability company 20 d/b/a Rock City Yacht Club 21 By: 22 John C. Burkhalter, Manager 23 STATE OF ARKANSAS ) 24 )ss. ACKNOWLEDGMENT 25 COUNTY OF_PULASKI ) 26 On this day, before me, a Notary Public, duly commissioned, qualified and acting, with and for said 27 County and State,appeared in person the within named John C.Burkhalter,to me well known,who stated 28 he was the Manager of JAPB, LLC, an Arkansas limited liability company, and was duly authorized in 29 such capacity to execute the foregoing instrument for and in the name and on behalf of the company, and 30 further stated and acknowledged he had so signed,executed and delivered the foregoing instrument for the 31 consideration, uses and purposes therein mentioned and set forth. 32 IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of 33 , 2017. 34 35 Notary Public 36 My commission expires: 37 38 (SEAL) 39 LENDER: 40 FIRST SERVICE BANK, 41 an Arkansas banking corporation 42 By: 43 Bill Puddephatt, President-Little Rock Market 44 'Page 7 of 81 I STATE OF ARKANSAS ) 2 )ss. ACKNOWLEDGMENT 3 COUNTY OF_PULASKI ) 4 On this day, before me, a Notary Public, duly commissioned, qualified and acting, with and for said 5 County and State,appeared in person the within named Bill Puddephatt,to me well known,who stated he 6 was the President-Little Rock Market of First Service Bank,an Arkansas banking corporation,and was 7 duly authorized in such capacity to execute the foregoing instrument for and in the name and on behalf of 8 the company, and further stated and acknowledged he had so signed,executed and delivered the foregoing 9 instrument for the consideration, uses and purposes therein mentioned and set forth. 10 IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of 11 , 2017. 12 13 Notary Public 14 My commission expires: 15 16 (SEAL) 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 29 // 30 // 31 // 32 // 33 // 34 // 35 // 36 // [Page 8 of 81