/
     
4071 RESOLUTION NO. 4,071 A RESOLUTION APPROVING A LEASE AND AGREEMENT TO BE ENTERED INTO BETWEEN THE LITTLE ROCK PORT AUTHORITY AND GENERAL STEVEDORES , INC. PERTAINING TO THE OPERATION OF A LITTLE ROCK BARGE TERMINAL FACILITY; AND FOR OTHER PURPOSES. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS . SECTION 1. That certain Lease and Agreement proposed for execution between the Little Rock Port Authority and General Stevedores, Inc. regulating the operation of the Little Rock Barge Terminal Facility is hereby approved for execution by the Little Rock Port Authority. Said Lease and Agreement shall be in form and substance as follows : • LEASE AND AGREEMENT This Lease and Agreement entered into this day of , 1968 , by and between the Little Rock Port Authority of the City of Little Rock, a muni- cipal corporation, Party of the First Part , and General Stevedores , Incorporated, a corporation organized and existing under the laws of the State of Texas, Party of the Second Part . W I T N E S S E T H: WHEREAS, the First Party is constructing and will be the owner of the Little Rock Barge Terminal facility, a river and rail terminal located in the County of Pulaksi, State of Arkanss ; and WHEREAS, the First Party anticipates that construc- tion of the Little Rock Barge Terminal Facility will be completed during December 1968 ; and WHEREAS , Second Party is engaged in the business of, stevedoring and operation of docks and desires to lease andito operate the Little Rock Barge Terminal facility; and WHEREAS , the First Party is willing to lease the said Little Rock Barge Terminal facility, upon completion of its construction, to the Second Party, provided, however, that the said Little Rock Barge Terminal Facilities will be so maintained and operated as to provide adequate service at reasonable rates for water borne traffic in a manner which shall be in the best interests of the City of Little Rock, • Arkansas , and in the best interests of the shippers in this area and of the public generally ; NOW, THEREFORE, in consideration of these premises and the mutual promises , covenants and agreements of the respective parties hereto , it is hereby agreed as follows : 1 . Premises Demised. First Party hereby leases , lets and demises , commencing on the Effective Date here- of, as hereinafter defined, to Second Party and Second Party hereby hires from First Party the Little Rock Barge Terminal facility (hereinafter generally called "Terminal" ) , that area outlined in red on Exhibit "A" and specifically described in Exhibit "B" , both of which Exhibits being at- tached hereto and by this reference made a part hereof. 2 . Term. The term of this Lease and Agreement shall commence on the Effective Date hereof as defined hereinafter and shall remain in force and effect for a period of three years thereafter, unless the same shall be sooner terminated as provided herein. The term "Effective Date" of this Lease and Agree- ment shall mean the date of the Engineer' s Certificate certifying that the construction of the Terminal has been completed according to specification; provided, however, that if First Party has not provided Second Party with written notice of anticipated completion at least 30 days prior to the date of such Engineer' s Certificate , then the Effective Date shall be 30 days following the date of re- ceipt of such notice whenever such may be given. First -2- Party agrees to allow Second Party free access to the Terminal during the period of such notice for the pur- pose of installing equipment and preparing to commence operations . 3. Building and Tracks Included. First Party leases to and will make available to Second Party all of the facilities located on the real property of the Terminal, including buildings, sea wall and agreed track- age and all land located on said site as outlined in red on Exhibit "A" and as described in Exhibit "B" . 4 . Maintenance & Repairs . The Second Party agrees to take the said leased property and equipment in its con- dition as of the Effective Date and shall, to the extent that only minor repairs are required, maintain and keep it in like condition during the term hereof, reasonable wear and tear excepted. Second Party further agrees to provide normal maintenance to keep the Terminal facili- ties in operating condition, including the clearance of debris and other items from and about the Terminal . Second Party further agrees that it will maintain the building and grounds in a neat and orderly manner and will not per- mit the accumulation of debris or other unsightly accumu- lations at any time . First Party agrees that channel maintenance and all major repairs shall be for its account . Second Party agrees to notify First Party in writing as soon as prac- ticable after it becomes apparent that a major repair is -3- required. If First Party shall refuse or neglect to make or commence such major repair within 15 days fol- lowing the date of such notice, Second Party shall have the right to declare this Lease and Agreement terminated. For the purpose of this paragraph, a major repair shall mean any repair which is required in order to render all or any part of the facility operable ; all other repairs shall be deemed minor . 5 . Services Furnished. Second Party agrees to operate the Terminal as a public facility and to provide and furnish adequate facilities and services as needed, subject to the reasonable capacity of the Terminal , for loading, unloading or transferring of freight from barge to car, from car to barge, from barge to warehouse , from warehouse to barge , from dray to warehouse or from ware- house to dray, from truck to storage, from storage to truck, from car to storage, from storage to car, from truck to car, from car to truck, and for the mooring, pumping of barges, all such services shall be at reasonable rates as established by Second Party . Second Party shall furnish all equipment necessary to adequately furnish these services , including a crane of adequate capacity . Second Party agrees to have a representative present in the Termi- nal area during all normal business hours . 6 . Rental Charges . All terminal charges shall accrue to Second Party . Second Party agrees to pay to -4- First Party $0 . 075 (or such other amount as may be agreed upon by the parties hereto pursuant to Paragraph 7 herein) per ton (net or gross as rated by the carrier) as a basic rental ("Basic Rental" ) on all freight handled through the Terminal. In addition, Second Party agrees to pay to First Party one-half of the revenues accruing to Second Party as terminal charges on all tonnage handled through the Terminal in excess of 150 ,000 tons during any anniversary year; provided, that however, First Party shall pay to Second Party within 30 days following the end of the anniversary year an amount equal to First Party 's proportional part of terminal expenses , but in no event any amount that exceeds its portion of the revenues accruing to First Party during such anniversary year as terminal charges . First Party 's proportional part of terminal expenses shall be calculated as follows : A fraction, of which the numerator shall be the total tonnage of freight handled through the Terminal in the anniversary year minus 150,000 tons , and of which the denominator shall be the total tonnage of freight handled through the Terminal in that anniversary year, shall be multiplied by one- half; the resulting fraction shall be multiplied by the aggregate terminal expenses for the anniversary year to determine First Party 's proportional part of such terminal expenses . As used in this Lease and Agreement , the following terms shall have the meanings set forth below: -5- (a) Terminal charges mean dockage, wharf- age, storage and terminal use . (b) Terminal expenses mean expenses for minor repairs for which Second Party is responsible hereunder, utilities ,expenses and costs of maintaining terminal security. (c) Anniversary year shall mean the period of 12 calendar months commencing on the first day of the calendar month following the cal- endar month during which the Effective Date of this Lease and Agreement or any anniver- sary date thereafter occurs . 7 . At least ninety (90) days prior to the end of each anniversary year, Second Party agrees to notify First Party of the Basic Rental as setforthin Paragraph 6 herein for the succeeding anniversary year. First Party shall notify Second Party in writing within fifteen (15) days following the receipt of notice of its decision to accept or reject the Basic Rental for the ensuing anni- versary year as proposed by Second Party . If accepted by First Party or, if rejected and the parties hereto mutually agree upon a Basic Rental for the ensuing anniversary year prior to the end of the then current anniversary year, such accepted rate or the rate as mutually agreed upon shall be the Basic Rental for the ensuing anniversary year. If the parties hereto are unable to agree upon a Basic Ren- tal prior to the end of the then current anniversary year, this Lease and Agreement shall be terminated and become of no force or effect as of the end of such then current anni- versary year. 8. All rentals provided for in Paragraphs 6 and 7 herein payable by Second Party to First Party shall be paid -6- on or before the 20th day of the calendar month following the y calendar month during which the operations providing the basis for the charge occurred. The First Party or its agents shall have access to the books and records, including the tonnage records, of the Second Party for the purpose of verifying the rental payments to be made hereunder. Second Party will provide the City of Little Rock with an annual audit certified by a Certified Public Accountant as of the anniversary date of this contract reflecting all the information necessary to determine the City' s rights under this contract, including such information as total tonnage handled and a break- down of all revenue received and all expenses incurred in the operation of the Port facility. 9. Operation of Terminal. The Second Party shall operate the Terminal in a good and workmanlike manner providing for the prompt and expeditious handling of freight as specified in Paragraph 5 herein and providing for adequate fleeting service with a safe place for the tying and mooring of vessels and barges and watchmen and custodial service for the guarding of said vessels and for guarding of all cargo stored upon the premises and will pump the vessels when necessary in the interest of safety. 10. Erection of Buildi :s on Leased Premises. The Second Party is hereby granted the right to construct and erect a building or buildings upon said leased premises at such location or locations as will not interfere with the operation of the Terminal subject to the approval of First Party. 11. Lessee and Independent Contractor. It is understood and agreed that in the maintenance and opera- tion of the leased premises and the dock, the First Party is interested only in the results obtained and the de- tailed manner and method of doing such work and maintaining 7 a - 7 r said premises shall be under the control of the Second Party . It is further understood and agreed that the Second Party is a Lessee and , with respect to all its activities , an independent contractor; and it shall be entirely responsible for its own acts and of the acts of its employees while engaged in this work and that the owner shall not be liable or responsible in any manner or to any extent for any violation of any City , State or Federal ordinance or law resulting from or arising out of, the per- formance of said work or activity or for any injury , ex- pense, loss or damage to the property or person of any individual, partnership , corporation or other business entity or governmental subdivision; and the Second Party hereby covenants and agrees to indemnify , protect and save the owner harmless from any such injury , expense, loss or damage so incurred, including any reasonable attorney ' s fees in connection therewith unless such in- jury , expense , loss or damage arises from the First Party ' s own negligence or carelessness . 12 . Insurance . Second Party agrees to carry , main- tain and continue in force at its sole expense, through- out the performance of this Lease and Agreement , insurance in duly qualified companies as follows : A. Workmen' s Compensation insurance in amounts required by the laws of the State of Arkansas covering all oper- ations in connection with the per- formance of this Lease and Agreement . B. Automobile liability insurance cover- ing all operations in connection with -8- the performance of this Lease and Agree- ment (including coverage on owned and non- owned automotive equipment ) with bodily injury limits of not less than $200 ,000 for injuries to, or death of, any one person, not less than $500 ,000 for in- juries to , or death of, more than any one person resulting from any one accident ; and property damage limit of not less than $25 , 000 . C . General liability insurance covering all operations in connection with the per- formance of this Lease and Agreement with bodily injury limits of not less than $200, 000 for injuries to , or death of, any one person and not less than $600 ,000 for injuries to , or death of, more than one person resulting from any one accident ; and property damage limit of not less than $25,000 . D. Second Party agrees to furnish a certifi- cate or certificates of insurance under all such policies which certificates shall provide that prior written notice of material change in, or cancellation of, the policies shall be sent to First Party addressed as provided in Paragraph 17 herein First Party agrees that insurance, if any, of the nature provided by the Arkansas Standard Fire Policy cover- ing the whole or any part of the Terminal shall be for the account of First Party. 13 . Taxes . All taxes assessed against the Termi- nal or the operations under this Lease and Agreement by gov- ernmental authority , whether Federal , State or Municipal, shall be for the account of Second Party , except any taxes , if any, imposed by any such authority upon the ownership of real property (other than those imposed upon any build- ings constructed by Second Party pursuant to Paragraph 10 herein, or upon the ownership of the leasehold interest . -9- hereunder) , which shall be for the account of First Party. 14 . Unilateral Termination by First Party. In the event that the Second Party during the term of this Lease and Agreement shall : A. File a voluntary petition in bankruptcy , or B. Make an assignment for the benefit of credi- tors , or C . Be adjudicated a bankrupt , or D. Be declared insolvent , or E. Abandon the premises , or F. Fail to perform any covenant or agree- ment herein contained First Party shall have the right to terminate and end this Lease and Agreement by serving upon the Second Party 30 days ' notice to that effect ; that upon the expiration of the said 30 days after service of the said notice, unless such defect is cured, the term of this Lease and Agreement between First and Second Parties shall thereupon cease, determine and end in the same manner and with the same effect as though it were at the expiration of the term hereof. At the termi- nation of this Lease and Agreement for whatever reason, the Second Party shall have a reasonable time to remove any of its equipment and any building or buildings which it may have erected pursuant to Paragraph 10 herein from the prem- ises of the Terminal; provided, however, that First Party shall have the option to purchase such building or buildings (not its equipment) at the fair market value thereof. 15 . Non-Assignability . The Second Party agrees that it will not assign this Lease and Agreement , or sublet any -10- of the premises , in whole or in part to any person, firm, corporation or other legal entity without first obtaining First Party ' s written permission to make such assignment , such consent not to be unreasonably withheld. If any such assignment is made without consent of First Party, this Lease and Agreement shall automatically terminate . 16 . Fire or Other Destruction. If, during the term of this Lease, the Terminal, including the improvements thereon, shall be destroyed or partially destroyed from whatever cause , so as to render the premises wholly unfit for operation, and if it shall be so badly damaged that it cannot be repaired within six months from the happening of such damage, then this Lease and Agreement shall termi- nate and become null and void from the date of such damage or destruction, and the Second Party shall immediately sur- render said premises and all interest therein to the First Party; and in such case, the First Party may re-enter and re-possess said premises discharged of this Lease and Agree- ment , and may remove all parties therefrom; if, however, said premises shall be repairable within six months from the happening of said damage , the First Party shall repair the same with all reasonable speed and this Lease and Agree- ment shall continue in force without interruption. 17 . Notice . For the purpose of giving notice in accordance with any paragraph herein, the post office address of First Party shall be Chairman, Little Rock Port Authority , 1423 East 6th Street , P . O. Box 231, Little Rock, -11- ( 4 Arkansas , 72203 and the post office address of Second Party shall be General Stevedores, Incorporated, P . O. Box 9128 , Houston, Texas 77011 , which addresses shall be considered as the proper mailing addresses of First Party and Second Party until changed by written notice as herein provided. Each notice called for herein shall be sent by United States Registered mail , postage prepaid, return receipt requested, and shall be effective three days (exclusive of Saturdays , Sundays and legal holidays under the laws of the State of Arkansas ) subsequent to the date on which notice is mailed in said manner addressed to the party hereto to be notified. First Party and Second Party , respectively, shall have the right to change their post office addresses , as herein designated, at any time and from time to time by giving the other party notice in writing of such change . 18 . Arbitration. Any controversy or claim arising out of, or relating to this Lease and Agreement or the breach thereof, shall be settled by arbitration in accord- ance with the Commercial Arbitration Rules , then obtaining, of the American Arbitration Association (or other recog- nized tribunal) , and judgment upon the award rendered may be entered in any court having jurisdiction thereof. 19 . . Rights of Others Under Law. Nothing herein express or implied is intended, or shall be construed, to confer upon or give to any person, firm or corporation, other than the respective parties hereto, any rights or -12- r c remedies under or by reason of this Lease and Agreement . 20 . Modification. This Lease and Agreement may be modified only by written agreement signed by both Parties hereto . 21. Descriptive HeadinEs . The descriptive head- ings of this Lease and Agreement are inserted for con- venience in reference only and do not constitute part of this Lease and Agreement . 22 . On Whom Binding. The conditions , terms, pro- visions , covenants and agreements contained herein shall inure to and be binding upon the Parties hereto and their respective permitted successors and assigns . 23. First Party shall have the right to use without charge a part of the office space located in the terminal building. IN WITNESS WHEREOF, Parties hereto have duly executed this Lease and Agreement as of the date first written above . LITTLE ROCK PORT AUTHORITY By By GENERAL STEVEDORES, INCORPORATED Vic- President By / / -✓ / //a LII61rti // Secretary -13- i THE STATE OF ARKANSAS COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared , of Little Rock Port Authority, known to me to be the person whose name is subscribed to the fore- going instrument , and acknowledged to me that he executed the same for the purposes and consideration therein ex- pressed, in the capacity therein stated and as the act and deed of said corporation. GIVEN under my hand and seal of office this day of , 1968 . Notary Public in and for Pulaski County , Arkansas . THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the c r�ne author y1 on this day personally appeared /f, �� -it.�... �6e.e�-c.2_ , Vice President of General Stevedores , Incorporated, known to me to be the person whose name is subscribed to the foregoing instrument , and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation. ,/if GIVEN and- 4 hand and seal of office this /1t day of 4,,,� /4 ; , , 1968 . , 77(-6t-- . Notary Public in and for Harris County, Texas . Reviewed by : COUNSEL TO LITTLE ROCK PORT AUTHORITY: MOSES, McCLELLAN, ARNOLD, OWEN & McDERMOTT BY COUNSEL TO GENERAL STEVEDORES, INCORPORATED VINSON, ELKINS, W'-EMS : :EARLS BY G e -14- -2- SECTION 2. This Resolution shall be in full force and effect from and after its adoption. ADOPTED: September 16, 1968 ATTEST• ` OVED: City Clerk Mayor