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HomeMy WebLinkAbout2361 RESOLUTION NO. 2361 A RESOLUTION AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO ENTER INTO AND EXECUTE A LEASE AGREEMENT ON BEHALF OF THE CITY OF LITTLE ROCK FOR CERTAIN PROPERTY HEREINAFTER DESCRIBED, OWNED BY THE OAKLAND CEMETERY, TO THE EAST 26th ST. DEVELOPMENT CORP. ; AND FOR OTHER PURPOSES . WHEREAS, the Board of Commissioners of the Oakland Cemetery is in need of additional revenue for the purpose of maintaining the said cemetery; and WHEREAS, said Board of Commissioners has under its control and jurisdiction for the benefit of the said cemetery certain real property which can be leased and produce revenue for these purposes; and WHEREAS , the Board of Directors desires to authorize the lease of said premises to the East 26th St. Development Corp. ; NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS: SECTION 1. The Mayor and City Clerk are hereby authorized and directed to enter into and execute a Lease Agreement with the East 26tri St . Development Corp. covering certain property hereinafter described in the Lease Agreement owned by the Oakland Cemetery, which Lease Agreement is in words, terms and form as follows: • LEASE AGREEMENT THIS AGREEMENT OF LEASE, Made and entered into this day of , 1959 , by and between the CITY OF LITTLE ROCK , ARKANSAS , acting through the Mayor and City Clerk of the City, pursuant to the provisions of Resolution No. , hereinafter called 'Lessor' , and EAST 26th ST. DEVELOPMENT CORP . , hereinafter called "Lessee' , its suc- cessors and assigns, said parties for and in consideration of the cove- nants set forth hereinafter, hereby mutually agree as follows: 1. Property and Term of Lease. Lessor hereby lets, leases, and demises to Lessee the following real property in Pulaski County, Arkansas, to-wit : Starting at the point where the most Northerly right-of-way line of East Roosevelt Road intersects the West line of the SEA; of Section 11, Township 1 North, Range 12 West; thence East along the said most Northerly right-of-way line of East Roosevelt Road for 575 feet to the Soutneast corner of the Little Rock School District (Horace Mann School) property and to the point of begin- ning of the herein described parcel of land; from said point of beginning thence by an angle to the left from the last above described course of 91 degrees 53 minutes along the East line of the said Little Rock School District property for a distance of i12. i feet to the West right-of-way line of Barber Avenue, or Confederate Blvd. ; thence in a Southerly and Southeasterly direc- tion along the Westerly right-of-way line of Barber Avenue or Confederate Blvd. for 726.7 feet to the Northern most point of the Peoples Oil Company leased area ; thence in a Southwesterly direc- tion along the Northwesterly line of said Peoples Oil Company leased area for 195 .6 feet to a point on the most Northerly right- of-way line of East Roosevelt Road; thence West along the most Northerly right-of-way line of East Roosevelt Road for 311 feet , more or less, to the point of beginning, containing 3 .97 acres, more or less. for the term of fifteen (15) years commencing on the day of , 1959 and ending on the day of 1974, for the rental specified hereinafter. 2. Rental. Lessee agrees and promises to pay to Lessor the fol- lowing rental, to-wit: (a) During the primary term of this lease, Lessee shall pay to Lessor a monthly guaranteed minimum rental of Three Hundred Dollars ($300.00) to be paid monthly on or before the 10th day of each current month. c � (b) Lessor here:.>y grants the Lessee nine (9) consecutive five- year options as follows ? Each option called fot ,.n this Lease instrument shall Le au- tomatically exercised u+i less cne Lessee notifies the Lessor to the con- trary ninety (a0) days prior to the expiration date of any option .called for in this Lease instrument ; and Lessee, for said options , snail pay the following: ::ousnencing witn the sixteenth, twenty-first , and twenty- sixth lease year , Lessee will pay to Lessor as minimum guaranteed rental Four hundred )oltars $4U0.J0, per month; commencing with the thirty- first, thirty-sixth anu forty-firsr lease year, Lessee shall pay to Lessor as mirilmuni guaranteed rental :Six Hundreu joilars ; S(7,0 0 .J0) per month; and commencing with the forty-sixth, fifty-first , and fifty- sixth lease year Lessee shall pay to Lessor as minimum guaranteed rental Eight Hundred Dollars 0800.00 ; per month. In addition to the minimum guarantee] rental as set out a, ove , aftei the first five (5) years of the primary term of this Lease instrument , and continuing throughout the primary tern of this Lease and any renewal thereof, Lessee agrees to pay to Lessor one-fourth of one percent ( 1/4 of lZ ) in excess of Four Million Dollars ($4, Uu,L?JO.t)O: of alt gross sales done by any and all merchants located or to be locates ut, the remised premises; it being understood that in any event Lessor will receive the minimum guaranteed rental as herein provided. (c) The term Gross Sales ` as used herein means all sales for cash or on credit and all receipts for services performed on or from the demised premises, less any amount of credit given for merchandise re- turned, hut shall not ..:.cluck the amount of sales tax, federal excise tax, gross receipts tax, or any similar tax or imposition whatsoever or howsoever imposed for such sales and charges. Within sixty (60) days after the expiration date of each lease year (after the fifth year of the primary term or any extensions called for herein) , Lessee shall compute the total gross sales for the preceding year and pay to Lessor one-fourth of one percent (1/4 of a) of all gross sales in excess of Four Million Dollars ($4,000,000.00) . It is agreed that Lessor, or its agent, shall have the right, which shall be reasonably exercised, to examine during regular business hours all pertinent records to verify the correctness of the amount of gross sales to be furnished to Lessor. (e) Lessee agrees to pay the minimum guaranteed rental monthly in advance on or before the 10th day of each month. The payments are to be made to the Board of Commissioners of Oakland Cemetery in the office of the City Collector of the City of Little Rock or to any one else that the Board shall designate. Lessor shall have the right to designate and change the place of payment by giving Lessee, its successors or as- signs, written notice to that effect. Any installment of rent whi h is not paid when due shall, at the option of the Lessor, Lear interest at the rate of six percent (6`4) per annum from the due date until paid. 3 . Use of eremiaes. Lessee covenants that it will initially =eruct a retail Kroger store. Throughout the term of this lease, at Lessee' s option, it may construct additional buildings for lease to other occupants; and Lessee covenants that it will comply with all state, muni- cipal, and federal laws. Lessee further covenants that it will not sell or permit to be sold alcoholic beverages for consumption on the demised premises throughout the term of this Lease or any extension called for nerein . 4. Taxes. Lessor shall pay all taxes, charges, and special as- easements of whatever kind and character levied against the land of the leased premises during the primary term of this Lease or any extension called for herein; and Lessee shall pay all taxes, charges and special assessments of whatever kind and character levied against the inrovements to be located on the demised premises during the term of this Lease or any extension called for nerein . In the event the Lessor fails to pay any tax, charge, or special assessment on the land within thirty (30) days after the same becomes payable, Lessee, at it.i )ption , may pay the same and any . amount so paid, with interest at six percent (t7) per annum, shall become due and payable by Lessor on the date of the next monthly payment of rent, and Lessee may deduct the said taxes from the next rentals due until all taxes assessed against the land shall have been paid. In the event that Lessee fails to pay any tax, charge, or special assessment on improvements located or to be located on the demised pre- mises within thirty (30) days after the same becomes payable, Lessor, at its option, may pay the same, and any amount so paid, with interest at six percent (67.) per annum, shall immediately constitute a lien against said improvements and Lessor shall have the right of an assignment of rents due Lessee until such taxes are paid. 5 . Improvements and Maintenance. Lessee may, during the term of this Lease, remove such trees from the leased premises as it wishes, grade, till, and drain said premises as it desires, and erect such im- provements as it may desire, provided Lessee complies with all lawful requirements of the local Board of Health, Police, and Fire Departments , and governmental authorities, respecting the manner in which it uses the leased pre.i.. ses. (Lessee agrees not to sell or permit the salsa of alco- holic beverages for consumption or the demised premises. ) Lessee sna11 pay all costs of any improvements which Lessee may elect to place or the leased premises and shall pay for such maintenance and utilities as Lessee may require in the operation of such improvements, it beinz rho intention of the Lease to make the rentals herein provid for "net" to Lessor. Any buildings or improvements placed upo the leuaea premises . mall be the sole property of Lessee until the termination of this Lease . Lebbe, shall have ttLe right during the term of this Lease to carry at its our cost such insurance as it may wish or any improvements on the leased pre- mises up to the full insurable value thereof with the proceeds from any Loss under said policies of insurance payable in full to Lessee. A11 improvements, installations, machinery, furniture, and fixtures owned by Lessee shall be subject to a lien for unpaid rent . Lessee will not do, or permit to be done, anything about the leased premises that con- flicts with the state, county, or municipal laws, or the regulations of the Fire Department or Board of Health, or that is dangerous to persons or property. 6. Hold Harmless Agreement. Lessee assumes all risk of and liability for damages to persons and/or property arising during the term of the Lease from the present or future condition of the leased premises, and agrees to hold the Lessor harmless therefrom. 7. Warranty of Title. Lessor hereby warrants that it will fur- nish an abstract of title prepared for the examination of Lessee' s attor- ney, and Lessor further warrants that ft will during the term of this Lease defend Lessee's right to possession of the leased premises under the terms of this Lease and will hold Lessee harmless against any ana all claims or encumbrances arising by, through, or under Lessor . 8. Condemnation. In the event any portion of the leased pre- mises shall be taken or condemned (or privately purchased in lieu there- of) by any competent authority for public or quasi-public use, that por- of the award attributable to damages to the land bhall L7e paid to Lessor, and that portion of the award attributable to damages to tt,e im- provements shall be paid to Lessee, as the interest of each may appear. Lessor's and Lessee 's interest in this Lease shall pass to and be vested in Lessor's and Lessee ' s heirs, successors, and assigns. The relationship of the parties hereto is that of Lessor and Lessee; nothing contained herein shall be construed as creating a part- nership or joint venture between the parties hereto, and Lessor shall not be liable to third parties for any debts or liabilities of Lessee. 9. Breach by Lessee. In the event of default for a period of thirty (30) days or more by Lessee, its successors or assigns (and after Lessee has been notified) , in the payment of any part of the rental when due or in the performance of any of the agreements contained herein, the Lessor shall have the right and option to re-enter and take possession of said leased premises and may, at its option: (a) Lease the same as agent of the Lessee upon such terms as may be acceptable to Lessor; or (b) Cancel and terminate this Lease; or (c) Pursue such other remedy or remedies as may be avail- able to Lessor at law or in equity. As security for the payment of the rent as provided hereinabove , Lessor shall have a lien on all property of Lessee in or upon the leased premises. 10 . Bankruptcy or other Insolvency of Lessee. Should bankruptcy or insolvency proceedings of any kind be instituted by or against %essee, or should the interest of Lessee in this Lease pass by operation of law or under an execution or attachment to any other person or corporation , then Lessor shall have the right and option to cancel and terminate this lease and to re-enter and take possession of said leased property and pre- mises immediately and thereupon all right , title, and interest of the Lessee in and to said leased property and premises shall terminate and cease to exist, and it is specifically agreed that the provisions of this paragraph of this Lease shall run with the land during the entire terse of this Lease or any extensions hereof . 11 . Cumulative Remedies . Failure of Lessor to insist upon the performance of any agreement or condition herein or to exercise any option granted Lessor in event of default by Lessee sloth not be a waiver of the right thereafter to insist upon and enforce full and complete performance of such conditions and agreements nora waiver of the right to exercise such option as is granted herein because of such default or because of any subsequent default, time being exlressly made of the essence of this agreement . 12. Holdover. It is agreed that any holdove!_ kv the Lessee after the expiration date of the primary term of this !ease , or any ex- tension thereof , shall be from month b month and not from year to year . 13 . Notices. Any notice prodded for herein may be delivered personally and will be deemed to havebeen given Lessee when deposited in Registered Mail addressed to Lasso at Lessee's last known address. Any notice provided for herein will b deemed to have been given Lessor when depaited in Registered Mail ad4essed to Lessor at Lessor 's last known address. Either Lessor or Lesse may hereafter furnish in writing p • a new mailing address to the other party. IN WITNESS WHEREOF, the parties have hereunto set their hands this day of , 1959. EAST 26th ST. DEVELOPMENT CORP . , CITY OF LITTLE ROCK, ARKANSAS LESSEE LESSOR By: By: President Werner C. Knoop, Mayor By. By: Secretary Pauline G. Beeson, City Clerk STATE OF ARKANSAS) )ems . ACKNOWLEDGEMENT COUNTY OF PULASKI) On this day personally appeared before me the undersigned, a Notary Public within and for the County and State aforesaid, duly quali- fied and acting, the within named Werner C. Knoop and Pauline G. Beeson, to me well known as the Mayor and City Clerk, respectively, of the City of Little Rock, Arkansas, and stated that they had executed the foregoing Lease Agreement pursuant to the provisions of Resolution No. for the consideration and purposes therein mentioned and set forth. WITNESS my hand and off,_cia: seal this day of , 1959. My commission expires: Notary Public (Notarial Seal) STATE OF ARKANSAS) )ems. ACKNOWLEDGEMENT COUNTY OF PULASKI) On this day personally appeared before me the undersigned, a Notary Public within and for the County and State aforesaid, duly quali- fied and acting, the within named and to me well Imam, who stated that they are the President and Secretary, respectively, of East 26th St . Develop- ment Corp. , and that they were duly authorized in their respective vapa- cities to execute the foregoing instrument for and in the name and behalf of said corporation, and further stated and acknowledged that they had so signed, executed, and delivered said foregoing instrument for the consider- ations, uses, and purposes therein mentioned and set forth. WITNESS my hand and official seal this day of ,1959. My commission empires: "Notary Public (notarial Seal) SECTION 2. This resolution shall be in full force and effect from and after its adoption . ADOPTED: June 1, 1959 ATTEST: APPROVED: //1 City Clerk Ma