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HomeMy WebLinkAbout4481 RESOLUTION NO. 4,481 A RESOLUTION AUTHORIZING A PARKING LEASE AGREEMENT BY AND BETWEEN THE CITY OF LITTLE ROCK, ARKANSAS , AND THE LITTLE ROCK MUNICI- PAL PARKING AUTHORITY, AS LESSORS , AND CAMELOT INN-LITTLE ROCK, INC. , AS LESSEE , IN SUBSTAN- TIALLY THE FORM AND WITH SUBSTANTIALLY THE CONTENTS SET FORTH IN AND MADE A PART OF THIS RESOLUTION; AUTHORIZING THE EXECUTION AND DELIVERY OF THE PARKING LEASE AGREEMENT; AND PRESCRIBING OTHER MATTERS RELATING THERETO. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS. SECTION 1. That there be , and there is hereby, authorized the execution and delivery of a Parking Lease Agreement wherein the City of Little Rock , Arkansas ( "City" ) and the Little Rock Municipal Parking Authority ( "Parking Authority") are Lessors , and Camelot Inn-Little Rock , Inc. , an Arkansas corporation ("Camelot" ) is Lessee , in substantially the form and with sub- stantially the contents hereafter set forth; provided, however , the authorization herein conferred is expressly conditioned upon receipt of the unconditional guaranty of Kin-Ark Corpo- ration of Tulsa, Oklahoma, of the performance by Camelot of all Camelot' s obligations under the Parking Lease Agreement. The Mayor and City Clerk be, and they are hereby, authorized to execute , acknowledge and deliver the Parking Lease Agreement for and on behalf of the City. The Chairman and Secretary of the Parking Authority be , and they are hereby, authorized to execute , acknowledge and deliver the Parking Lease Agreement, for and on behalf of the Parking Authority. The form and con- tents of the Parking Lease Agreement , which are hereby approved and which are made a part hereof , shall be substantially as follows : LEASE AND AGREEMENT between CITY OF LITTLE ROCK, ARKANSAS and LITTLE ROCK MUNICIPAL PARKING AUTHORITY LESSORS and CAMELOT INN-LITTLE ROCK, INC. LESSEE A A ■ LEASE AND AGREEMENT TABLE OF CONTENTS PAGE RECITALS 1 Section 1. Construction of Parking Deck 1 Section 2. Term of Agreement 2 Section 3. Lease of Spaces 2 Section 4. Rental 3 Section 5. Option to use Additional Space 3 Section 6 . Record keeping and billing Between the Parties 4 Section 7 . Option to Extend Agreement 4 Section 8. Operation and Costs 5 Section 9 . Availability of Spaces 6 Section 10 . Condemnation 6 Section 11. Assignment 8 Section 12. Conditions to Effectiveness 9 Section 13. Easements 10 Section 14 . Allocation of Costs 10 Section 15. Taxes 11 Section 16 . Quiet Enjoyment 11 Section 17 . Insurance 11 Section 18. Memorandum of Lease 12 Section 19 . Notices 12 Section 20 . Rights upon Default 13 Section 21. Lease Binding on Successors and Assigns 14 Section 22. Applicable Law 14 • S PARKING LEASE AGREEMENT THIS AGREEMENT is made and entered into this day of , 1971 , by and between the CITY OF LITTLE ROCK, ARKANSAS , and the LITTLE ROCK MUNICIPAL PARKING AUTHORITY, an administrative agency of the City of Little Rock, Arkansas , created and functioning pursuant to the provisions of Act No. 468 of the Acts of Arkansas of 1949 (herein collectively called "City") , and CAMELOT INN-LITTLE ROCK, INC. , an Arkansas cor- poration (herein called "Camelot") . R E C I T A L S : A. The City of Little Rock, Arkansas , proposes to accomplish the construction of a convention center complex, consisting of the present Robinson Audi- torium (with certain improvements) , an off-street parking facility (herein called "parking deck") , and a convention hotel. B. Camelot is , simultaneously with this Agree- ment, entering into a Lease and Agreement with the City of Little Rock, Arkansas , to lease a site for and construct a convention hotel to be known as "Camelot Inn" , the site being adjacent to Robinson Auditorium and the proposed parking deck. C. Camelot will need parking spaces for use in connection with the operation of Camelot Inn and desires to obtain the necessary spaces in the parking deck. D. The City will own and maintain the parking deck. NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, the parties agree as follows : 1. CONSTRUCTION OF PARKING DECK: The City will proceed promptly with the construction of the parking deck (which is , to contain approximately 575 parking spaces) in accordance with the plans and specifications set forth in "Exhibit A" attached hereto and by this reference made a part hereof, and will use all reasonable efforts to complete construction and have the parking deck in operation on or before the date Camelot completes construction and begins the operation of Camelot Inn. City will make no material change or modifi- cation in the plans set forth on Exhibit A nor any material structural alteration to the parking deck subsequent to the construction thereof without Camelot' s consent. City will use its best efforts to coordinate the planning and con- struction of the parking deck with that of the proposed hotel in order to minimize costs and inconvenience to both parties. 2. TERM OF AGREEMENT: The initial term of this Agree- ment shall be thirty (30) years , commencing on the first day of operation of Camelot Inn by Camelot; provided, however, that in the event the parking deck is not in operation at such date this Agreement shall not commence until the first day the parking deck is in operation, or July 1, 1973 , which- ever occurs first. 3. LEASE OF SPACES : The City hereby leases to Camelot the space outlined in red on Exhibit A attached hereto and incorporated herein by reference , containing approximately 205 parking spaces , throughout the term of this Agreement. City agrees to award a binding construction contract for at least the aforementioned 205 spaces in the parking deck, which contract shall contain provisions for a completion date not later than January 1 , 1973 , and which contract shall con- tain a provision for payment of liquidated damages in an amount at least $200. 00 per day in the event construction of said space is not complete by the date the hotel is ready for operation, with exception of delays caused by strikes , -2- labor disputes , war, acts of God or weather not under control of the Contractor. It is understood that Camelot' s damages from loss of use of the parking spaces to be constructed by reason of delays in completion will amount to at least $200 . 00 a day and City agrees to use reasonable efforts to collect liquidated damages in the event of delay in completion and transfer liquidated damages collected, up to $200 . 00 per day , to Camelot. 4 . RENTAL: Camelot shall pay the City, or order, during the term of this Lease as basic rent for the premises , the total sum of $1 , 830 ,000 . 00 payable in semi-annual installments of $31,016 . 95 in advance , on the dates hereinafter set out. No rent shall be due hereunder for the first six (6) months during which time both the Hotel and parking facility are in operation; provided, however, the rent reserved hereunder shall be payable in semi-annual installments commencing not later than July 1 , 1973 ; provided, further, however , that in the event both the Hotel and the parking facility are in oper- ation for more than six (6) months prior to July 1 , 1973 , for each month in excess of the first six (6) months of operation, Camelot will pay monthly rental at the rate of $5 ,169 . 48 . 5 . OPTION TO USE ADDITIONAL SPACE : Camelot shall have the option at any time and from time to time to rent additio- nal parking spaces (on a space available basis) , upon payment of additional rent equal to 85% of the regular rate charged by the City for such spaces . The rate (but not the percen- tage set forth in the previous sentence) so established by the City shall be subject to change based upon changes in comparable local prevailing rates . The City shall have the privilege to use and rent the Camelot space at then prevailing rate (on a space available basis) and shall credit Camelot with all fees charged for the rental of these spaces . -3- 9 a - 1 1 The use of such additional parking spaces at the dis- counted rate shall be limited to overnight guests of Camelot or customers whose minimum purchases are not less than $5. 00. Camelot shall establish procedures to insure that the fore- going restrictions are enforced as to such additional parking spaces and shall permit City from time to time upon reason- able notice during business hours to review such procedures and/or to review or audit Camelot' s records relating thereto. 6 . RECORD KEEPING AND BILLING BETWEEN THE PARTIES : The City and Camelot will establish a method of accounting among themselves for sums collected by the City in its oper- ation of the parking deck for which Camelot is to receive credit and for sums due City for additional space used by Camelot customers . Such system of bookkeeping and accounting shall be established in consultation with a certified public accountant and shall be reduced to writing when agreed on by the parties . Payments due from Camelot to the City and pay- ments due from the City to Camelot shall be made as soon as possible after the end of each month. 7 . OPTION TO EXTEND AGREEMENT : Camelot shall have the option to extend this Agreement for an additional term of up to twenty (20) years (the precise duration thereof to be selected by Camelot) upon the following terms and conditions : (a) Such option shall expire , if not sooner exercised, at the close of business on the last day of the initial term hereof. The option may be exer- cised by notice , in writing, to City mailed prior to that date. (b) If the option is exercised, the rental for each space with respect to which the option is exer- cised shall be no greater than 75% of the prevailing -4- i daily rate for parking in the facility, based upon the average rate for the six months preceding the effective date of the extension. (c) The option may be exercised with respect to all or any part of the premises herein leased; but, except as provided in this paragraph, the terms and conditions of such extension shall be identical in all material respects to this Agreement unless other- wise agreed upon by City and Camelot. 8 . OPERATION AND COSTS : Except to extent modified by § 9 of a Lease and Agreement between the parties of even date herewith, throughout the term of this Agreement, and any extension hereof, the City shall operate the parking deck; make all necessary repairs and replacements to the improve- ments thereon and all appliances, appurtenances , and equip- ment relating thereto; and pay all necessary costs of opera- tion (including but not limited to debt service, personnel , utilities and taxes) , maintenance and repair, not to exceed, however, the City' s revenues from the parking deck. However, Camelot will contribute $7 ,966 . 10 per annum, in equal semi- annual installments with rental payments , toward the City' s costs of operating the parking deck. It is further understood and agreed that Camelot and the management of the parking deck will from time to time and as may be necessary and convenient, at least annually, confer regarding policies to be promulgated pertaining to the operation of the total parking deck and such policy shall be reduced to writing by the City. If City elects not to operate the parking deck, it shall give Camelot the right of first refusal to operate the faci- lity on terms and conditions acceptable to the City which -5- shall not be less favorable than those made available to any other party. If Camelot elects not to exercise its right of first refusal to operate the parking deck, Camelot shall have the right to approve any third party designated to operate the parking deck, which approval shall not be unreasonably withheld. 9. AVAILABILITY OF SPACES : The City covenants that, except as herein provided, there shall always be available for use by the customers of Camelot Inn, during the initial and any additional term of this Agreement, upon payment of the basic rent provided for in this Agreement, the parking area leased. In the event of fire or other casualty, act of God, labor dispute, or any other occurrence beyond the control of the City which makes it temporarily impossible or impractical to furnish the parking area leased, the City will proceed promptly and use all reasonable efforts to re- pair or restore the parking deck or take such other corrective measures as shall be necessary to again furnish for use of Camelot Inn customers the area leased to the extent only that insurance proceeds available will permit. During the period Camelot Inn customers are deprived of use of the leased area, there shall be a proportionate abatement in basic rent. 10 . CONDEMNATION: If the whole of the parking deck or air rights on which Camelot Inn is built, or such portion thereof as will make the parking deck unsuitable for con- tinued use as a parking deck , is condemned for any public use or purpose by any legally constituted authority, then in either of such events , the obligations of the parties hereunder shall cease from the time when possession is taken by such public authority and basic and additional rent shall -6- t t be accounted for between the City and Camelot as of the date of the surrender of possession. If a portion of the parking deck is condemned for public use and the remainder continues to be suitable for operation as a parking deck, this Agreement shall continue in full force and effect, with a proportionate abatement in basic rent in the event less than the parking area leased is available. Any award to the City for a partial or total taking of the leased premises shall be paid into the fund the monies of which are pledged for payment of bonds of the City, and in the event of such total taking all obligations of what- soever nature to pay the rentals reserved hereunder shall terminate. If the whole of the air rights on which Camelot Inn is to be constructed or such portion thereof as will make the Camelot Inn unsuitable for continued use as a hotel , is con- demned for any public use or purpose by any legally consti- tuted authority, then all obligations of any kind whatsoever for the payment of rentals hereunder shall cease from the time the possession is taken by such public authority and the basic and additional rent should be accounted for between the • City and Camelot as of the date of the surrender of possession. Any award to the City for a partial or total taking shall be deposited into the fund, the monies of which are pledged for payment of bonds of the City. In the event of either total or partial condemnation, whether or not this Agreement continues in force , the City and Camelot shall each be entitled to recover compensation from the condemning authority for any loss or damage caused by condemnation. Neither the City nor Camelot shall have any rights in or to any award made to the other by the con- demning authority. -7- 11. ASSIGNMENT : Camelot shall not assign this Agreement, in whole or in part, without the express written consent of the City in each instance; provided, however, that such written consent shall not be unreasonably withheld and shall be granted in any case in which another person, firm or corporation shall become the owner of the Camelot Inn hotel in accordance with the provisions of the "Lease and Agreement" relating to air rights executed between the City and Camelot contemporaneously herewith. Without the written consent of the City, provided there shall be no enforceable default on the part of Camelot in its performance hereunder, Camelot may give or grant mortgages or security interest in or hypothecate (collectively herein referred to as "mortgages") , this Lease and any extension or renewal thereof, subject to the following : (a) Any such mortgages by Camelot covering the premises herein leased shall be subject and subordinate to this lease. (b) The City will not accept any surrender or enter into any substantial modification of this Lease without the prior written consent of any secured party of whose interest City has notice. (c) Any secured party shall have and be subro- gated to any and all rights of Camelot with respect to the curing of any default hereunder by Camelot. Such rights shall include without being limited to, the right of a secured party to an extension of up to thirty (30) days after Camelot' s time to cure a default has expired, after receipt by such secured party from City of written notice of any such default (which notice may be given simultaneously with the -8- • notice to Camelot) . City and Camelot shall execute such instruments as may be reasonably necessary to accomplish the purposes of this paragraph. 12. CONDITIONS TO EFFECTIVENESS : The effectiveness of this Agreement shall, at Camelot' s option, be conditioned upon the following: (a) Receipt of a final unconditional and binding commitment letter from the "Lenders" as contemplated in a Letter Agreement dated Sep- tember 5 , 1970 , between Kin-Ark Corporation and certain banks , savings and loan associations , and insurance companies. (b) Completion of plans and specifications and completion of financial arrangements reasonably satisfactory to Camelot for the minimum repairs and renovation to the Auditorium previously agreed upon between the City and Camelot, or in the alternative, the completion of financial arrangements and the award of a firm contract for the completion of the full scale repair and renovation of the Auditorium in accordance with the plans and specifications previously agreed upon between the City and Camelot, which contract shall provide for completion at the earliest possible date. (c) Completion of plans and specifications satisfactory to Camelot and City with respect to the convention hotel and the execution and deli- very of a lease , binding in all respects on the City and any other governmental agency whose con- sent is required for air rights and related rights and easements for the construction of the hotel. -9- P (d) The execution and delivery of an Agreement between City or the Little Rock Auditorium Commis- sion and Camelot for the food and service concessions for Robinson Auditorium on terms and conditions satisfactory to Camelot. 13. EASEMENTS : City hereby acknowledges that the con- struction, maintenance and operation of the parking deck shall be subject to the easements and related rights granted to Camelot and its Customers in Paragraph 2 and other ap- plicable Paragraphs of the "Lease and Agreement" above re- ferred to. City and Camelot agree to exercise their respec- tive rights under easements and other rights herein or therein granted or reserved in such a way as not to interfere unreasonably with the enjoyment and operation of the other party hereto. 14 . ALLOCATION OF COSTS : City and Camelot agree that to the extent that in the construction of the parking deck and/or the proposed hotel and related facilities , supports , pillars , or columns are used or to be used both by City and Camelot, a reasonable allocation of the initial cost and, thereafter, all costs of maintenance , repair or renovation of supports , pillars , columns , footings and foundation used by both parties shall be made as between the City and Camelot, which allocation, unless otherwise agreed upon, shall be made by the architects who have prepared the plans and specifications upon consideration of all relevant factors including usage or probable usage , benefit, and relevant costs and savings if such facilities were provided separately. Such allocated costs of construction shall be paid by the respective parties as called for in contractor ' s or archi- tect' s estimates. -10- 15. TAXES : If, during the lease term, any taxes or assessments are imposed upon or with respect to the parking deck, City shall pay such taxes and assessments ; provided, however, that if any such taxes or assessments relate to the parking deck and the hotel or related facilities a reason- able allocation thereof shall be made as between the parties hereto. 16 . QUIET ENJOYMENT: City warrants that except for the portion of the property shown on Exhibit A owned by the Arkansas Bar Association as to which City has an assignable 99 year lease , it has good and merchantable fee simple title to the property shown on Exhibit A, free and clear of any easements , encumbrances , or restrictions except such as are set forth or referred to herein. Camelot, upon payment of the rent herein reserved and upon the performance of all of the terms of this Agreement, shall , at all times during the lease term and any extensions thereof, peaceably and quietly enjoy the leased premises without any disturbance from the City or from any other person. 17 . INSURANCE : City , at its own expense , shall keep the leased premises insured throughout the term of this Agreement against the loss or damage by fire and such other risks as may be included in insurance from time to time available in an amount equal to the replacement cost with extended coverage. Both City and Camelot will carry lia- bility insurance adequate to protect each other from liabil- ity relating to the operation of the parking deck. All insurance required to be maintained hereunder shall be effected by valid and enforceable policies issued by insurers of recognized responsibility, licensed to do business -11- in Arkansas , and reasonably satisfactory to the City. All policies of insurance shall name City, Camelot and Mortgagee as the insured, as their respective interests may appear. 18. MEMORANDUM OF LEASE : The parties agree that this Parking Lease Agreement shall not be recorded but that they shall execute, acknowledge, and record an appropriate memo- randum of this Agreement adequate to constitute public notice of the rights and responsibilities of the parties hereunder. 19 . NOTICES : Any notice required or permitted to be given under this Agreement must be in writing and must be sent by registered or certified mail to the last address of the party to whom notice is to be given, as designated by such party in writing. The following addresses are hereby desig- nated for notice : CITY MORTGAGEE City of Little Rock, Arkansas Worthen Bank & Trust Company c/o City Clerk Worthen Building City Hall Little Rock , Arkansas 72203 Little Rock, Arkansas 72201 CAMELOT GUARANTOR Camelot Inn-Little Rock , Inc. Kin-Ark Corporation Post Office Box 1499 Post Office Box 1499 Tulsa, Oklahoma 74101 Tulsa, Oklahoma 74101 Either party may change its address by written notice to the other party and may designate , by written notice, not more than two additional persons to whom copies of any notice re- quired or permitted hereunder shall be sent. Any notice or other communication shall be deemed to have been given at the time it is deposited and registered or cer- tified in any United States Post Office or branch post office. Any notice given pursuant to this Agreement which asserts -12- t • that a breach or default hereunder has occurred shall specify the acts or grounds which are the basis therefor, and the period of time within which the asserted breach or default, in the opinion of the sender, may be cured. 20 . RIGHTS UPON DEFAULT: If either: (a) The leased premises shall be deserted or vacated for a period in excess of ninety (90) days for reasons other than destruction, partial destruction or other casualty, strikes, labor problems , condemnation (partial or complete) , acts of God or other causes beyond Came- lot' s control; or (b) Camelot is adjudicated a bankrupt under the Bankruptcy Act, or a trustee or receiver has been appointed for Camelot or the hotel constructed under the Lease and Agreement between the parties of even date herewith, and any such adjudication or appoint- ment remains undischarged for a period of more than six (6) months and the operation of the hotel has been discontinued; or (c) If there shall be a default in the payment of rent or any part thereof for more than sixty (60) days after written notice of such default by the City; or (d) If there shall be a default in the performance of any other material covenant or agreement of this Lease and if such default is not cured within twenty (20) days after written notice by the City of such default; or if such default shall be of such nature that it cannot reasonably be cured within such twenty (20) days , if Camelot shall not have promptly com- menced within such 20-day period or shall not there- after proceed with reasonable diligence and in good -13- • faith, to remedy such default; then this Lease (if the City so elects) shall , thereupon, terminate and the City shall have the right to reenter and repossess the leased premises and dispossess and re- move Camelot therefrom, subject, however, to the right of any mortgagee (s) as specified in Paragraph 11 hereof. In such case, the City may, at its option, relet the leased premises in a manner consistent with the best market con- ditions , terms , and uses available at the time and Camelot or its guarantor, Kin-Ark Corporation, Tulsa, Oklahoma, shall pay to the City the difference between the rent hereby reserved and agreed to be paid for that portion of the term remaining and the amount to be received under such reletting for such portion of the term; provided, however, that the amount payable by Camelot or its guarantor here- under, shall not exceed thirty-five (35%) percent of the unpaid principal balance of the indebtedness of the City for construction of the parking deck , reduced by thirty- five (35%) percent of all other amounts available for that purpose, but not reduced by any amount of any tax revenue pledged to secure payment of revenue bonds of the City, the proceeds of which were used or are to be used in the construction of the parking deck. 21. LEASE BINDING ON SUCCESSORS AND ASSIGNS : This Parking Lease Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns . 22. APPLICABLE LAW: This Lease shall be interpreted in accordance with the laws of the State of Arkansas . -14- r r ; .1 •_� • • } a IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day of , 1971. CITY OF LITTLE ROCK, ARKANSAS BY : t f^' Mayor ATTEST: LITTLE ROCK MUNICIPAL PARKING AUTHORITY BY Chairman ATTEST: Secretary CAMELOT INN-LITTLE ROCK, INC. BY President ATTEST: Secretary -15- . 1 4. -2- SECTION 2 . That the Mayor, City Clerk and City Manager, or any of them, for and on behalf of the City, and the mem- bers of the Parking Authority, or any of them, for and on behalf of the Parking Authority, be , and they are hereby authorized and directed to do all things , execute all instru- ments and otherwise take all action necessary to the reali- zation of the rights of the City and the Parking Authority and to the discharge of the obligations of the City and Parking Authority as Lessors under the Parking Lease Agree- ment. SECTION 3 . That the provisions of this Resolution are hereby declared to be separable , and if any section, phrase or provision shall, for any reason, be declared to be invalid such declaration shall not affect the validity of the remain- der of the sections , phrases or provisions. SECTION 4 . That all ordinances and resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5. This Resolution shall be in full force and effect from and after its adoption. ADOPTED: January 4, 1971 ATTEST: APPROVED: .t► EAL,91444.17 City Cler Mayor