Loading...
HomeMy WebLinkAbout124821 RESOLUTION NO. 12,482 2 3 A RESOLUTION TO APPROVE THE SETTLEMENT AGREEMENT 4 WITH ARKANSAS RIVERVIEW DEVELOPMENT, LLC, AND OTHER 5 PARTIES TO FEDERAL LITIGATION AS TO CITY AIR RIGHTS OVER 6 GARLAND STREET, THE CITY'S RELATIONSHIP WITH CAPITOL 7 CITY HOTEL LIMITED PARTNERSHIP (the DOUBLETREE HOTEL); 8 AND FOR OTHER PURPOSES. 9 10 WHEREAS, on July 14, 2006, Arkansas Riverview Development, LLC ( "ARD ") filed a federal 11 civil action against the City of Little Rock and the Capitol City Hotel Limited Partnership 12 ( "CCH ") because of the temporary revocation of a building permit to make improvements in 13 the air space over Garland Street until ARD could obtain the City's consent to build on its prop - 14 erty; and, 15 WHEREAS, this litigation later included the Arkansas Bar Foundation ( "the Foundation ") and 16 Metropolitan National Bank ( "Metropolitan "), and was officially styled Arkansas Riverview De- 17 velopment, LLC v. City of Little Rock Et Capitol City Hotel Limited Partnership v. Arkansas Bar 18 Foundation and Metropolitan National Bank, No. 4:06CV817JLH, U.S. District Court (E.D. Ark.); 19 and, 20 WHEREAS, the parties sought and received assistance from U.S. Magistrate Judge Tom Ray in 21 a court sanctioned settlement conference which was conducted on March 7 -8, 2007; and 22 WHEREAS, at the conclusion of this conference Mayor Mark Stodola, City Manager Bruce T. 23 Moore, and City Attorney Thomas M. Carpenter, stated that they would use their best efforts to 24 have the Board of Directors approve this settlement agreement; and 25 WHEREAS, this approval or rejection is to occur no later than April 3, 2007; and, 26 WHEREAS, in a detailed memorandum from the City Attorney, and a formal resolution from 27 the Little Rock Advertising Et Promotion Commission ( "the Commission "), it is recommended 28 that the settlement be approved; 29 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE 30 ROCK, ARKANSAS: 31 Section 1. Reference to Property in Question. For the ease of the draft of this Resolution, 32 and for no other purpose: 33 (a) References to Lots 4,5,6,7,8,and 9, refer to a lot located within Block 99 of the 34 Original City of Little Rock; [PAGE 1 OF 7] Resolution to approve settlement of federal litigation in Arkansas Riverview Development, LLC v. City of Little Rock & Capitol City Hotel Limited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No. 4:06CV817,, o. U.S. Distrito Court (E.D. Ark) I (b) Reference to the City's air rights refers to air rights that the City enjoys above Gar - 2 land Street of the Original City of Little Rock. 3 Section 2. Conveyance of Air Rights to ARD in Fee Simple. 4 (a) The City shall grant fee simple title, with a reverter, to Arkansas Riverview Devel- 5 opment, LLC, for air rights above Garland Street to the extent necessary to encom- 6 pass the envelope of air necessary for the construction of a building by ARD subject 7 to the restrictions contained in the restrictive covenants outlined in this Section 2; 8 (b) The reverter shall provide that should ARD, upon the damage or destruction of its 9 structures within these air rights, fail to make substantial progress toward making 10 the structures habitable within three years from the date of such damage or de- 11 struction, the fee simple title to these air rights shall revert to the City; 12 (c) The following restrictive covenants are an integral part of the agreements set forth 13 in the settlement agreement and in this Section 2, and shall be as follows: 14 (i) No part of ARD's building constructed over the Garland Street air rights shall 15 be used for a hotel, motel, or other similar facility, nor shall any food service 16 be operated in the building except to the limited size and extent necessary to 17 provide food services only for the tenants of the building; 18 (ii) No construction by ARD shall increase the load of its building in excess of the 19 capacity of the weight which can be borne by the parking deck and its sup- 20 porting piers; 21 (iii) ARD shall make no further attachments to, or alterations of, the common wall 22 with the Doubletree Hotel, it successors, or assigns; 23 (iv) The top seven floors of the building shall be used as residential or office con - 24 dominiums, with related amenities, which may include a fitness center; 25 (v) The use of floors three through 6 will be restricted to "quiet office," as that 26 phrase is now defined under the City of. Little Rock's zoning ordinances as 27 shown in Exhibit A, or as amended at the time any question arises, provided 28 that the restriction of uses noted in this Section 2 shall never be available to 29 ARD even if they are included in the present, or any future, definition of the 30 phrase "quiet office," and provided further, that no future definition of "quiet 31 office," is more restrictive than that contained in Exhibit A; 32 (vi) The use of floors 1 and 2 shall be restricted to underground parking facilities; 33 (vii) The height of ARD's building constructed over the Garland Street air rights 34 shall be limited to the level that existed on March 8, 2007; 35 (viii) No material alteration or change shall be made by ARD to the exterior of the 36 building, including the color of the building, without the prior written consent 37 of the City, said consent not to be unreasonably withheld. [PAGE 2 OF 7] Resolution to approve settlement of federal litigation in Arkansas Riverview Development, LLC v. City oftittle Rock & Capitol City Hotel Limited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No. 4:06CV817n.n U.S. District Court (E.D. Ark) 1 Section 3. Inclusion of City on Master Deed. ARD shall file a Master Deed as soon as prac- 2 ticable which shall contain, among other things, the six specific restrictions set forth on the 3 document attached to the memorandum from ARD's counsel to the City dated June 21, 2006: 4 (a) These restrictions shall govern, among other things: 5 (i) No television, radio or other electronic antennae or device of any type shall be 6 erected, constructed, placed or permitted to remain on any part of the Build - 7 i ng; 8 (ii) No wiring or installation of air conditioning or other machines shall be in- 9 stalled on the exterior of the Building or be allowed to protrude through the 10 walls or roof of the Building with the exception of that installed as part of the 11 initial construction; 12 (iii) No unit owner shall make any exterior addition, change or alteration of the 13 Building; 14 (iv) No doors or windows in the Building shall be covered or obstructed, so as to be 15 visible from the exterior of the Building; 16 (v) Nothing shall be done or permitted that will materially affect the structural 17 integrity of the unit, and specifically the fire rating of the drywall in the unit; 18 and, 19 (vi) There shall be no exposed trash, waste or containers for same the deposited, 20 accumulated or preserved anywhere on the property that is exposed to public 21 view. 22 (b) The City shall have the right to enforce only these six restrictions set forth in the 23 Master Deed; 24 (c) The City shall have the right to approve any future amendment of the Master Deed 25 as it relates to any of these six conditions. 26 Section 4. Liability. Insurance. ARD shall procure and maintain a policy of liability insur- 27 ante in the amount of two million five hundred thousand ($2,500,000.00) dollars, for the bene- 28 fit of: 29 (a) The City of Little Rock, Arkansas; 30 (b) The Little Rock Advertising ft Promotion Commission and its operating arm cur - 31 rendy known as The Little Rock Convention l* Visitors Bureau; and, 32 (c) The operator of the convention hotel currently known as the Doubletree Hotel, and 33 currently operated and maintained by Capital City Hotel Limited Partnership; 34 Section 5. Screening of HVAC. ARD, consistent with the recommendations of its engineers 35 and architects, shall screen the heating, ventilation and air conditioning ( "HVAC ") unit on the 36 roof of its south building constructed over Lots 4,5, and 6 so that the HVAC is not visible from [PAGE 3 OF 7] Resolution to approve settlement of federal litigation in Arkansas Riverview Development, LLC v. City of Little Rock & Capitol City Hotel Limited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No. 4:06CV817na U.S. District Court (E.D. Ark) 1 the street, and so the noise from the HVAC shalt be reduced to the extent reasonably neces- 2 sary. 3 Section 6. Conveyance of Underground Property to City in Fee Simple. 4 (a) ARD shall convey to the City of Little Rock, Arkansas, in fee simple, with a re- 5 verter, the subsurface rights under Lots 4, 5, and 6, beginning at "the level of the 6 top deck of the parking facility," as shown on Exhibit A to the March 15, 1971, 7 Lease and Agreement ( "the 1971 Foundation Lease "), between the Arkansas Bar 8 Foundation and the City, with the understanding of the parties that everything 9 owned above "the top deck of the parking facility," as shown on Exhibit A to the 10 1971 Foundation Lease shall be owned in fee simple by ARD, its successors and as- 11 signs; 12 (b) The conveyance set forth in this Section 6 shall be subject to a reverter to ARD, its 13 successors, and assigns, if the City parking facilities cease to be used for the pur- 14 pose of parking, and are used for any other purpose not reasonably acceptable to 15 ARD, its successors, or assigns. 16 Section 7. Restrictive covenant on ARD buildings on Lots, 4, 5 & 6. Restrictive covenants 17 shall exist as to the property owned by ARD, its successors, or assigns, in Lots 4, 5 & 6 as fol- 18 lows: 19 (a) The height of any such structure shall be limited to 427 -feet (MSL); 20 (b) ARD may not operate a hotel or motel on the properties, or any other similar facil- 21 ity, and any food service operated in the building shall be limited in size and op- 22 eration to provide food service only for the tenants in the building; and, 23 (c) The use of floors 3 through 6 will be restricted to "quiet office," as that phrase is 24 now defined under the City of Little Rock's zoning ordinances as shown in Exhibit 25 A, or as amended at the time any question arises, provided that the restriction of 26 uses noted in this Section 7 shall never be available to ARD even if they are in- 27 cluded in the present, or any future, definition of the phrase "quiet office," and 28 provided further, that no future definition of "quiet office," is more restrictive 29 than that contained in Exhibit A. 30 Section 8. Restrictive Covenant as to Lots 7, 8 Ft 9. The limitation in the 1971 Foundation 31 Lease which restricts the uses of Lots 7, 8 Et9, for any and all purposes except as a park or 32 plaza, shall be converted to a restrictive covenant which shall expire by its own operation at 33 midnight, December 31, 2025; further, all language in paragraph 6, on pages 3, 4 and 5 of the 34 1971 Foundation Lease shall be converted to restrictive covenants. 35 Section 9. Dismissal of all claims with prejudice. In relation to the federal litigation iden- 36 tified as Arkansas Riverview Development, LLC v. City of Little Rock Et Capitol City Hotel Lim - 37 ited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No. Resolution to approve settlement of federal litigation in [PAGE 4 OF 7] Arkansas Riverview Development, LLC v. City oJLitfle Rock & Capitol City Hotel Limited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No 4:06CV817na U.S. District Court (E.D. Ark.) 1 4:06CV817JLH, U.S. District Court (E.D. Ark.) ( "the Litigation "), ARD and the City agree to dis- 2 miss, with prejudice, all claims that have been asserted in this action, or could have been as- 3 serted, of any nature whatsoever, and further: 4 (a) Both parties shall execute mutual releases pursuant to which they effectuate the 5 release and dismissal of all claims of whatsoever nature and kind that have been, 6 or could have been, asserted against each other as a part of the Litigation; and 7 (b) Both parties shall bear, and be as to each other solely responsible for, its own costs 8 and attorneys' fees. 9 Section 10. Authorization of the City Attorney to Approve Settlement Documents. The 10 settlement of the Litigation, and the fulfillment of the requirements set forth in this Resolu- 11 tion, shall be accomplished after the City Attorney has approved the legal form and substantive 12 content of any deeds, documents, of writings of whatever nature, necessary to fulfill the terms 13 and conditions of the settlement of the Litigation. 14 Section 11. Authorization of the Mayor, City Manager, City Clerk, and City Attorney. 15 The Mayor, City Manager, City Clerk, and City Attorney, are authorized to execute and sign any 16 documents, in compliance with Section 10 of this Resolution, necessary to fulfill the terms and 17 conditions of the settlement of the Litigation. 18 Section 12. Direction to Assist in the Filing of Necessary Documents. To the extent 19 deemed appropriate by the City Attorney, the Board of Directors directs that any and all docu- 20 ments necessary to be filed with the real estate records of the Pulaski County Circuit Clerk and 21 Ex- Officio Recorder be filed as soon as practicable after the execution of a settlement agree - 22 ment for the Litigation, or as soon as appropriate as determined by the attorneys for the vari- 23 ous parties included in the litigation. 24 Section 13. Clarification as to Inadvertent Omissions of Words and Phrases. It is the 25 intention of the Board of Directors of the City of Little Rock, Arkansas, that the settlement of 26 the Litigation be full and final; therefore, the inadvertent omission within this Resolution of 27 terms such as "successors and assigns "; or, the reference to the full name of a party after an 28 indication that a shortened reference will be used; or, any other designation or assertion that 29 would not be in compliance with the language and spirit of this Resolution; shall be resolved in 30 favor of Resolution, and the City Attorney shall have the delegated authority to accept such 31 language in the documents for settlement necessary to clarify and represent this intention of 32 the Board of Directors. 33 Section 14. Severability. In the event any title, section, paragraph, item, sentence, 34 clause, phrase, or word of this resolution is declared or adjudged to be invalid or unconstitu- 35 tional, such declaration or adjudication shall not affect the remaining portions of the resolu- 36 tion which shall remain in full force and effect as if the portion so declared or adjudged invalid 37 or unconstitutional was not originally a part of the resolution. Resolution to approve settlement of federal litigation in [PAGE 5 OF 7] Arkansas Riverview Development, LLC v. City of Little Rock & Capitol City Hotel Limited Partnership P. Arkansas Bar Foundation and Metropolitan National Bank, No. 4:06CV817,u U.S. District Court (H.D. Ark) 1 2 3 4 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 37 Section 15. Repealer. All laws, ordinances, resolutions, or parts of the same, that are in- consistent with the provisions of this resolution, including but not limited to any ordinances or resolutions that have dealt with the lease agreements between the City and the operators of the convention hotel, or the City and the Arkansas Bar Foundation, are hereby repealed to the extent of such inconsistency. ADOPTED: April 3, 2007. ATTEST: APPROVED• cy Wood/City' oo City Clerk AP ROVED AS TO LEGAL FORM: Thomas M. Carpenter, City t orney Resolution to approve settlement of federal litigation in Arkansas Riverview Development, LLC v. City of Little Rock & Capitol City Hotel Limited Partnership V. Arkansas Bar Foundation and Metropolitan National Bank, No. 4:O6CV817.,i,„, U.S. District Court (E.D. Ark) [PAGE 6 OF 7] - ;' Mar Stodola, Mayor 1 2 3 4 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 37 LITTLE ROCK, ARK., REV. CODE S 36 -277 (1988) 0 -1 QUIET OFFICE DISTRICT (b) Use regulations. (1) Permitted uses. Permitted uses are as follows: a. Bank or saving and loan office. b. Church. c. Clinic (medical, dental or optical). d. Day nursery or day care center. e. Day care center, adult. f. Establishment of a religious, charitable or philanthropic organization. g. Family care facility. h. Fire station. i. Group care facility. j. Library, art gallery, museum or similar public use. k. Office (general and professional). 1. Orphanage. m. Private school, kindergarten or institution for special education. n. Rooming or boarding. o. School (public or denominational). p. Studio (art, music, speech, drama, dance or other artistic endeavors). q. Travel bureau. r. Single- family residences. s. Two - family residences. EXHIBIT A [PAGE 7 OF 7] Resolution to approve settlement of federal litigation in Arkansas Riverview Development, LLC v. City of 'Little Rock & Capitol City Hotel Limited Partnership v. Arkansas Bar Foundation and Metropolitan National Bank, No.4:06CV817,. . U.S. District Cmrt (E.D. Ark)