4438 l
V ) • 4
•
RESOLUTION NO. 4,438
A RESOLUTION APPROVING A LEASE AGREEMENT TO BE
ENTERED INTO BETWEEN THE CITY OF LITTLE ROCK
AND EASTERN ASSOCIATED TERMINALS COMPANY PER-
TAINING TO THE CONSTRUCTION AND OPERATION OF A
PORT FACILITY; AND FOR OTHER PURPOSES .
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
LITTLE ROCK, ARKANSAS :
SECTION 1. The Mayor and the City Clerk are hereby
authorized to execute and deliver a Lease Agreement with
Eastern Associated Terminals Company on behalf of the City
of Little Rock , Arkansas , for the lease by the City of cer-
tain property described in said Lease Agreement; said Lease
Agreement to be in form and substance as follows :
f r i r r
r1 •r
LEASE AGREEMENT
This LEASE AGREEMENT, made and entered into this
day of September, 1970 , by and between the CITY OF LITTLE
ROCK, a City of the First Class organized and existing under the
laws of the State of Arkansas (herein referred to as "Lessor")
and EASTERN ASSOCIATED TERMINALS COMPANY, a corporation organized
and existing under the laws of the State of Delaware, but
authorized to do business in the State of Arkansas (hereinafter
referred to as "Lessee") , and approved and accepted by the
PORT AUTHORITY OF THE CITY OF LITTLE ROCK (hereinafter referred
to as the "Port Authority") ,
W I T N E S S E T H:
Lessor hereby lets and demises to Lessee the following
described lands in the County of Pulaski , State of Arkansas ,
to-wit:
Commencing at the Northwest corner of the North-
west Quarter (NW 1/4) , Section 15 , Township 1 North,
Range 11 West, run thence East 1858 .35 feet to a
point; thence South 592 .72 feet to a point on the
boundary of the property leased by the Little Rock
Port Authority to the operator of the Little Rock
Port; thence along the boundary of said leased
property South 31° 44 ' 56" West, 676 .60 feet to a
point; thence South 66° 15 ' 45" East, 758 .68 feet
to a point; thence North 23° 44 ' 15" East, 250 .00
feet to a point; thence South 66° 15 ' 45" East,
150 .00 feet to a point of beginning; run thence
from the point of beginning North 23° 44 ' 15"
East, 170 .00 feet to a point; thence South 66° 15 ' 45"
East, 306. 00 feet to a point; thence North 23° 44 ' 15"
East, to the ordinary high water line of the
Arkansas River; thence Southeasterly along said
ordinary high water line approximately 1250 .00 feet
to a point; thence South 38° 20 ' 50" West, 520 .00
feet to a point; thence North 66° 15 ' 45" West,
1470.00 feet to a point, said point being on the
South right-of-way line of Lindsey Road; thence
North 23° 44 ' 15" East, 80 feet to the point of
beginning, containing 14 . 2 acres , more or less ,
together with the exclusive use of all riparian
rights connected with and appurtenant thereto,
subject however to any easements of record;
for a term of ten (10) years commencing and ending on dates as
hereinafter set out, subject to the following terms and condi-
tions :
ARTICLE I
USE OF DEMISED PREMISES
Section 101 . Lessee shall have the right to use the
demised premises as a site for a port facility for the purpose
of transferring cargo , commodities , and other bulk materials ,
including bauxite ore , from river barges on the Arkansas River
into railroad cars and trucks and from railroad cars and trucks
into river barges and for such other lawful purposes as Lessor
shall permit. Lessor will furnish to Lessee all required occu-
pancy and building permits and authorizations as may be required
by the City of Little Rock, if any, authorizing construction,
the occupancy and such use of the demised premises by Lessee.
Section 102 . Lessee may, in its use of the demised
premises and as incidental thereto, moor barges , tenders , tow-
boats and related transportation and transshipment facilities
and equipment in the Arkansas River alongside the demised
Page 2
premises and, with the consent of Lessor, alongside adjacent
lands of the Lessor so long as such additional use does not
interfere with other tenants or with the Lessor. Lessee will
not permit railroad cars to be positioned on the Lead Track
(hereinafter defined) in such manner as to prevent reasonable
access to and from the open storage areas of the Little Rock
Port Terminal, except for such limited periods of time as shall
be required to shift the cars into or out of the demised premises.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS BY
LESSEE
Section 201. Lessee shall , according to plans and
specifications , and any necessary modifications thereof, pre-
pared by Lessee at its expense and approved by Lessor, which
approval shall not be unreasonably withheld, construct, or cause
•
to be constructed, on the demised premises such improvements
and install, or cause to be installed, therein and on the de-
mised premises such machinery and equipment and other facilities
as Lessee may deem reasonable and necessary to transfer bauxite
ore from river barges into railroad cars and/or trucks at a
rated capacity of approximately 500 tons per hour, and construct,
or cause to be constructed, the railroad facilities required by
Lessee on the demised premises and a railroad track ("Lead Track")
connecting such railroad facilities and the existing tracks of
the Port Authority Railroad. Upon the execution of this Lease,
Lessee shall promptly commence the preparation of such plans
and specifications , and , upon their approval , commence the con-
struction of improvements and the installation of machinery and
equipment and proceed therewith without delay except for causes
not reasonably within its control. From time to time thereafter
Lessee shall have the right, subject to prior approval of Lessor,
which approval shall not be unreasonably withheld, to construct,
Page 3
or cause to be constructed , on the demised premises such improve-
ments and to install , or cause to be installed, therein and on
the demised premises such machinery and equipment and other facil-
ities as Lessee may deem reasonable and necessary to utilize the
premises for one or more of the aforesaid uses.
Section 202. The parties hereto acknowledge that Lessee
may elect to finance the costs of such construction of improve-
ments and installation of machinery and equipment from the pro-
ceeds of industrial revenue bonds proposed to be issued under
the provisions of Act No. 9 of the First Extraordinary Session
of the General Assembly of the State of Arkansas for the year
1960 (hereinafter referred to as "Industrial Revenue Bonds")
and that, if Lessee shall so elect, the said improvements ,
machinery and equipment shall constitute the subject matter for
a separate lease from Lessor to Lessee at a rental and under
terms sufficient to pay in full the Industrial Revenue Bonds
issued for the said purpose.
Section 203 . Lessor and/or the Port Authority shall
have the right to construct or cause to be constructed , at its
or their expense and when and if desired or required by Lessor
or the Port Authority , a switch in the Lead Track to be con-
structed by Lessee connecting the railroad facilities on the
demised premises and existing tracks of the Port Authority
Railroad and to construct or cause to be constructed from such
switch a railroad spur to serve third parties; provided, how-
ever, that such railroad switch and spur shall be located by
Lessor and operated in such manner that the railroad service
so provided for third parties by means of such switch and spur
will not unreasonably interfere with the switching of railroad
cars from the demised premises across the Lead Track and will
Page 4
not unreasonably interfere with the railroad service required
to transport all of the bauxite ore and other cargo, commodit-
ies and materials transshipped and to be transshipped on the
demised premises. Lessee will maintain and repair the Lead
Track; provided, however, that upon request by Lessee, Lessor
will cause payments to be made to Lessee to offset a portion
of such maintenance and repair, which payments shall bear approx-
imately the same relationship to the total cost of such main-
tenance and repair as the use of the Lead Track to serve third
parties shall bear to the use of the Lead Track to serve the
demised premises .
Section 204 . Lessee agrees that the facilities to be
constructed under this ARTICLE II shall be constructed and oper-
ated in a manner to conform with all applicable laws and regula-
tions including, in particular, laws and regulations respecting
pollution abatement and control promulgated by all federal , state
and local authorities.
ARTICLE III
CONSTRUCTION OF RAILROAD FACILITIES
Section 301. Lessor will , with all funds necessary
therefor provided by Lessee , cause its railroad to be extended
across the railroad tracks of the Missouri Pacific Railroad
Company to connect with the existing railroad tracks of the
Chicago, Rock Island and Pacific Railroad Company. The plans
and specifications for such railroad extension and the costs
thereof shall be subject to the approval of Lessee , which
approval shall not be unreasonably withheld.
Section 302. Lessor shall cause to be furnished and
shall see that there is in full force and effect at all times
Page 5
during the construction of such extension of the railroad the
usual insurance coverage applicable to similar construction
projects, including, but not limited to, general accident and
public liability insurance , workmen 's compensation insurance,
or coverage, builder 's risk, and a performance and payment bond,
or the guaranty of each principal contractor in connection with
the said construction, all of which shall be subject to prior
written approval as to amounts and companies by the parties
hereto and shall be payable to the Lessor and Lessee as their
interests may appear; PROVIDED, HOWEVER, that the general
accident and public liability insurance need not name Lessor
as an insured.
Section 303 . The extension of the railroad , as pro-
vided in Section 301 hereof , will not constitute any part of
the demised premises or otherwise be subject to the terms of
this Lease Agreement, except as specifically provided.
Section 304 . The parties hereto acknowledge that the
costs of such extension of the railroad together with interest
thereon, whether financed from the proceeds of Industrial
Revenue Bonds or otherwise , shall be paid from the rentals
reserved hereunder as hereinafter provided.
ARTICLE IV
RAILROAD OPERATIONS
Section 401. Lessor may grant to Chicago , Rock Island
and Pacific Railroad Company and/or to Missouri Pacific Rail-
road Company, trackage rights to make possible the transportation
by the respective railroads to and from the demised premises of
all bauxite ore and other cargo , commodities and materials
Page 6
transshipped and to be transshipped on the demised premises ,
and for that purpose may enter into such agreements and execute
such instruments with each of the said railroad companies as
may be necessary, which agreements and instruments , however,
shall be submitted to Lessee for its prior approval, and which
approval shall not be unreasonably withheld.
Section 402. Until such time as the said railroad
companies , or either of them, shall assume the operation, Lessor
will provide and operate, or cause to be operated, the locomo-
tive power required to move railroad cars of the respective
railroads , carrying all of the bauxite ore and other cargo,
commodities and materials transshipped and to be transshipped
on the demised premises , between the demised premises and the
tracks of the respective railroad companies .
Section 403 . The granting of such trackage rights to
the Chicago, Rock Island and Pacific Railroad Company for the
transportation of bauxite ore , as provided in Section 401 here-
of , and/or the provision and operation of locomotive power to
shift railroad cars of bauxite ore to the tracks of the Chicago,
Rock Island and Pacific Railroad Company, as provided in Section
402 hereof , shall be in consideration of the payment to Lessor
by Chicago, Rock Island and Pacific Railroad Company of at least
three cents (30) for each ton of bauxite ore transshipped across
the demised premises , such consideration being paid either by
division of a joint through rate or as an absorption of charges
by the said railroad or by another appropriate method.
Section 404 . Lessor will maintain its railroad tracks
and related railroad facilities (including, in its entirety,
the extension as provided in ARTICLE III hereof) in good operat-
Page 7
ing condition throughout the demised term and will maintain its
certificate of authority to operate the railroad.
ARTICLE V
EASEMENTS
Section 501. During the demised term and any extension
or renewal thereof, Lessee shall have an unlimited easement to
use in common with others all streets and roads located on the
lands and all railroad tracks and related railroad facilities
under the operation of the Port Authority and the use of public
streets and highways in the City of Little Rock, consistent
with City ordinances and regulations pertaining to commercial
vehicles , in connection with Lessee ' s use of the demised premises
and in the transportation of persons and the transportation of
commodities to and from the demised premises and for the purpose
of transshipment from the demised premises , which rights may
be exercised by Lessee or on its behalf through the railroad
companies , trucking companies , and other agencies .
ARTICLE VI
DEMISED TERM
Section 601. The term herein demised shall be for a
period of ten (10) years commencing with the completion of the
improvements to be constructed by Lessee under the provisions
of ARTICLE II of this Lease Agreement, and the completion of the
railroad extension as provided in ARTICLE III of this Lease
Agreement subject to the approval of Lessee , which approval by
Lessee shall not be unreasonably withheld, and it shall end ten
(10) years thereafter. When so determined , the said dates may
be evidenced by a written memorandum thereof endorsed on the
margin of this Lease Agreement and initialled by the parties
hereto.
Page 8
Section 602. Lessor shall deliver full possession of
the demised premises to the Lessee immediately upon completion
of the construction of the said improvements and the said exten-
sion to the railroad, and thereupon Lessee will enter into full
possession of and occupy the same under and pursuant to the
terms of this Lease Agreement.
ARTICLE VII
RENT
Section 701. Lessee shall pay as rent hereunder monthly
on the 10th day of the month commencing with the second month
of the demised term, the rent due for the preceding month at the
rate of three cents (30) per ton of bauxite ore (and at such
rates for commodities other than bauxite ore as the parties may
agree upon) transshipped during the preceding month through the
demised premises , which rental shall in no event be less than
Twenty-seven Thousand Dollars ($27 ,000 .00) annually.
Section 702. During such period or periods of time,
if any, that Lessor provides locomotive power to move railroad
cars to and from the demised premises and the tracks of Chicago,
Rock Island and Pacific Railroad and Missouri Pacific Railroad,
or either of them, Lessee shall pay to Lessor for such services
as additional rent monthly on the 10th day of the month commenc-
ing with the second month in which such services are performed,
the rent due for such services for the preceding month at the
rate of two cents (20) per ton of bauxite ore , or of commodities
other than bauxite ore, transshipped during the preceding month
through the demised premises.
Section 703 . Lessee shall supply to Lessor such evi-
dences as Lessor may reasonably require as to the quantity of
Page 9
bauxite ore and of commodities other than bauxite ore trans-
shipped through facilities of the demised premises.
Section 704 . Until Lessee shall have been fully reim-
bursed for all costs of extending the railroad as provided in
ARTICLE III of this Lease Agreement, including interest at the
rate payable (but not to exceed 8% per annum) on any Industrial
Revenue Bond Issue the proceeds of which are used to finance
such extension or at the rate payable on any other borrowing
(but not to exceed 8% per annum) the proceeds of which are used
to finance such extension and at the prime rate (but not to
exceed 8% per annum) for the amount, if any, which is not bor-
rowed but rather expended from Lessee ' s funds for such purpose,
Lessee shall retain all of said monthly rentals provided by
Section 701 hereof and apply them to the said costs of extend-
ing the railroad as aforesaid, rendering to the Lessor an
accounting for all rentals so applied, and when Lessee shall
have been fully reimbursed for all costs of extending the said
railroad, Lessee shall thereafter pay the said monthly rentals
to such person and at such address as Lessor may from time to
time in writing direct.
ARTICLE VIII
INSURANCE
Section 801. Lessee shall , at Lessee' s sole cost and
expense, throughout the term of this Lease Agreement, maintain:
(a) General public liability insurance against
claims for bodily injury or death occuring upon,
in or about the demised premises , and on, in or
about the adjoining streets , passageways , and water-
ways , such insurance to afford protection to the
limit of not less than $200 ,000 .00 in respect of
Page 10
bodily injury or death to any one person, and to
the limit of not less than $500 ,000 .00 in respect
of any one accident; and
(b) Property damage insurance against claims
for damage or injury to property occuring upon, in
or about the demised premises , and on, in or about
the adjoining streets , passageways , and waterways ,
such insurance to afford protection to the limit
of not less than $100 ,000 . 00 in respect of damage
to the property of any one owner.
All policies of insurance provided for in this ARTICLE
shall provide that such policies shall not be cancelled with-
out at least ten (10) days ' prior written notice to each assured
named therein, PROVIDED, HOWEVER, the general public liability
insurance provided for in this Section need not name Lessor as
an insured so long as Lessor is not legally liable for any such
injury, damage , or death covered by such policies. In the event
such notice of termination is given, Lessee shall , prior to the
expiration of such ten (10) day period, procure insurance to
replace that so terminated.
Section 802. Not less than ten (10) days prior to the
expiration dates of the expiring policies , renewal policies or
certificates thereof , issued by the respective insurers, each
bearing notations evidencing the payment of premiums or accompanied
by other evidence satisfactory to Lessor of such payment, shall
be delivered by Lessee to Lessor. The Lessee may procure and keep
in force , in place of separate policies , blanket policies of
insurance having the same coverage and provisions as are herein
required with respect to separate policies. If Lessee shall at
any time fail to take out, pay for, maintain or deliver any of
Page 11
the insurance policies provided for in this Section, and Lessee
does not correct or remedy such failure within ten (10) days
after written notice from the Lessor specifically setting forth
the alleged failure of Lessee and notifying Lessee to correct
or remedy the same , the Lessor may thereafter (but shall not be
obligated to so do) , without waiving or releasing Lessee from
any obligations of Lessee in this Lease Agreement contained,
take out, pay for, maintain or deliver any of the insurance
policies provided for in this Section. All sums so paid by
Lessor, and all necessary incidental costs and expenses in con-
nection therewith shall be deemed additional rent hereunder and
shall be payable to Lessor on demand, and Lessee covenants to
pay such sum or sums , and Lessor shall have (in addition to any
other right or remedy of Lessor) the same rights and remedies
in the event of the non-payment thereof by Lessee as in the
case of default by Lessee in the payment of the rent.
ARTICLE IX
MAINTENANCE OF DEMISED PREMISES
Section 901. Lessee shall , throughout the term of this
Lease Agreement and any renewal or extension thereof, at Lessee' s
sole cost and expense , maintain, and at the end of the demised
term, or any renewal or extension thereof, yield up the demised
premises in good and tenantable repair, order and condition,
reasonable wear and tear excepted.
ARTICLE X
COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
Section 1001. Subject to the provisions of this ARTICLE,
Lessee may use the demised premises for any lawful purpose.
Lessee will , throughout the term of this Lease Agreement, at its
Page 12
sole cost and expense, promptly comply with all statutes , laws,
ordinances , orders, judgments , decrees , regulations , directions
and requirement of all federal, state , county, municipal and
other governments or governmental authorities , which now or at
any time hereafter may be applicable to the demised premises
or any part thereof or of adjoining public ways and waterways.
Lessee shall likewise observe and comply with the requirements
of all policies of public liability and all other policies of
insurance at any time in force with respect to the demised prem-
ises. Lessee agrees to comply with all ordinances of the City
of Little Rock whether or not the demised premises become a
part of the City of Little Rock.
Section 1002 . Lessee shall have the right to contest
by appropriate legal proceedings , in the name of the Lessee or
Lessor or both, but without cost or expense to Lessor, the
validity of any statute , law, ordinance , order, judgment, decree,
regulation, direction or requirement of the nature herein re-
ferred to, and if by the terms thereof compliance therewith
may legally be held in abeyance without the incurrence of
any lien against the fee of the demised premises , or Lessee ' s
leasehold interest therein, for failure so to comply therewith,
Lessee may postpone compliance therewith until the final deter-
mination of any proceedings , provided that all such proceedings
shall be prosecuted with all due diligence and dispatch, and
if any lien against the fee of the demised premises is incurred
by reason of non-compliance, Lessee may nevertheless make the
contest aforesaid and delay compliance as aforesaid, provided
that Lessee furnishes to Lessor security reasonably satisfactory
to Lessor against any loss by reason of such lien and prosecutes
the contest aforesaid with due diligence and dispatch, and
satisfies the same before any foreclosure thereof.
Page 13
Section 1003. Lessor will not adopt any laws , ordinances ,
rules or regulations which will interfere with the normal use
of the demised premises for industrial purposes or participate
in any action taken by others which will so interfere, except
where necessary to avoid or eliminate demonstrated injury to the
health of the public, generally.
ARTICLE XI
INDEMNIFICATION OF LESSOR
Section 1101. Commencing with the demised term, Lessee
shall indemnify and save Lessor harmless against and from any
and all claims by or on behalf of any person or persons , firm
or firms , corporation or corporations , other than Lessor, aris-
ing from the conduct or management of or from any work or thing
whatsoever done in and on the demised premises and will further
indemnify and save Lessor harmless against and from any and all
claims arising during the term of this Lease Agreement from any
condition of the demised premises , or arising from any breach
or default on the part of Lessee in the performance of any
covenant or agreement on the part of Lessee to be performed,
pursuant to the terms of this Lease Agreement, or arising from
any act or negligence of Lessee , or any of its agents , con-
tractors , servants , employees , or licensees , or arising from
any accident, injury or damage whatsoever caused to any person,
firm or corporation occuring during the term of this Lease
Agreement, in or about the demised premises , and from and against
all costs , expenses and liabilities incurred in or in connection
with any such claim or action or proceeding brought thereon;
and in case any action or proceeding be brought against Lessor
by reason of any such claim, Lessee , upon notice from Lessor,
covenants to resist or defend such action or proceedings.
Page 14
ARTICLE XII
DEFAULT PROVISIONS
Section 1201. This Lease Agreement is made on condition
also that if any one or more of the following events (herein
referred to as an "event of default") shall happen :
(a) Lessee shall default in the due and punctual
payment of any rent payable hereunder, and such
default shall continue for five (5) days after
receipt of written notice from Lessor of such non-
payment; or
(b) Lessee shall neglect or fail to perform or
observe any of the covenants herein contained on
Lessee's part to be performed or observed (other
than those referred to in Sub-section (a) of this
Section 1201) and Lessee shall fail to remedy the
same within ninety (90) days after Lessor shall
have given to Lessee written notice specifying
such neglect or failure (or within such additional
period, if any, as may be reasonably required
to cure such default if it is of such nature
that it cannot be cured within said ninety (90)
day period because of governmental restrictions
or any other cause beyond the control of the
Lessee) ; or
(c) This Lease Agreement or the demised premises
or any part thereof shall be taken upon execution
or by other process of law directed against the
Lessee, or shall be taken upon or subject to
any attachment at the instance of any creditor
Page 15
of or claimant against the Lessee, and such attach-
ment shall not be discharged or disposed of within
ninety (90) days after the levy thereof; or
(d) Lessee shall be involved in financial diffi-
culties as evidenced below and shall not cure the
same within ninety (90) days after notice from
Lessor :
(i) by its admitting in writing its inability
to pay its debts generally as they become due,
or
(ii) by its filing a petition in bankruptcy
or for reorganization or for the adoption of
an arrangement under the Bankruptcy Act (as
now existing or in the future amended) , or an
answer or other pleading admitting the material
allegations of such a petition or seeking, con-
senting to or acquiescing in the relief pro-
vided for under such Act, or
(iii) by its making an assignment of all or a
substantial part of its property for the benefit
of its creditors , or
(iv) by its seeking or consenting to or acqui-
escing in the appointment of a receiver or
trustee for all or a substantial part of its
property or of the demised premises or of its
interest in this Lease Agreement, or
(v) by the entry of a court order without
its consent which order shall not be vacated,
set aside or stayed within ninety (90) days
from the date of entry (1) appointing a re-
ceiver or trustee for all of a substantial
part of its property or (2) approving a peti-
tion filed against it for the effecting of an
1
Page 16
arrangement in bankruptcy or for a reorganiza-
tion pursuant to said Bankruptcy Act or for
any other judicial modification or alteration
of the rights of creditors; then:
4
In any such event, Lessor shall have the right at its
election, then or at any time thereafter while such event of
default shall continue, either
(1) To give Lessee written notice of intention to
terminate this Lease Agreement on the date of such
notice or on any later date specified therein, and
on the date specified in such notice Lessee 's right
to possession of the demised premises shall cease
and this Lease Agreement shall thereupon be ter-
minated, or
(2) Without demand or notice , to re-enter and
take possession of the demised premises or any part
thereof and repossess the same as of Lessor ' s former
estate and expel Lessee and those claiming through
or under Lessee and remove the effects of both or
either (forcibly if necessary) without being deemed
guilty of any manner of trespass and without preju-
dice to any remedies for arrears of rent or preceding
breach of covenant. Should Lessor elect to re-enter
as provided in this paragraph (2) or should Lessor
take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Lessor
may (a) terminate this Lease Agreement or (b) from
time to time, without terminating this Lease Agree-
ment relet the premises or any part thereof for
such term or terms and at such rental or rentals
and upon such other terms and conditions as Lessor
Page 17
may deem advisable , with the right to make altera-
tions and repairs to the demised premises . No
such re-entry or taking of possession of the demised
premises by Lessor shall be construed as an election
on Lessor's part to terminate this Lease Agreement
unless a written notice of such intention be given
to Lessee or unless the termination thereof be
decreed by a court of competent jurisdiction.
Section 1202. No termination or repossession referred
to in this ARTICLE XII shall relieve lessee of its liability
for rental payments and its other obligations under this Lease
Agreement all of which shall survive such termination or repos-
session. In the event of any such termination, Lessee shall pay
the rent hereinbefore provided up to the time of such termination,
and thereafter Lessee , until the end of what would have been the
term of this Lease Agreement in the absence of such termination,
and whether or not the demised premises shall have been relet,
shall be liable to Lessor for, and shall pay to Lessor , as
liquidated current damages ,
(a) The rent hereinbefore provided which would
otherwise be payable hereunder if such termination
had not occurred, less
(b) The net proceeds , if any, of any reletting
of the demised premises , after deducting all Lessor 's
expenses in connection with such reletting, including,
without limitation, all repossession costs , brokerage
commissions , legal expenses , attorney ' s fees , expenses
of employees , alteration costs , and expenses of pre-
paration for such reletting. Lessee shall pay such
liquidated current damages to Lessor on the days on
which the rent would have been payable hereunder
Page 18
if this Lease Agreement had not been terminated, and
Lessor shall be entitled to receive the same from
Lessee on each such day. At any time after such
termination, whether or not Lessor shall have col-
lected any such current damages , Lessor shall be
entitled to recover from Lessee , and Lessee shall
pay to Lessor, on demand, as liquidated final dam-
ages and in lieu of all such current damages beyond
the date of such demand, an amount equal to the ex-
cess , if any, of
(x) the rent hereinabove provided which would
be payable hereunder from the date of such
demand (or, if it be earlier, the date to which
Lessee shall have satisfied its obligations
under this Section 1202 to pay current damages)
for what would be the then unexpired term of
this Lease Agreement if the same remained in
effect, over
(y) The then fair net rental value of the
demised premises for the same period.
If any statute or rule of law governing the proceedings
in which such liquidated final damages are to be proved shall
validly limit the amount thereof to an amount less than the
amount agreed upon hereinabove , Lessor shall be entitled to the
maximum amount allowable under such statute or rule of law.
Section 1203 . In the event of any termination of this
Lease Agreement by Lessor, Lessee shall have the right, from
time to time , to provide Lessor with a satisfactory tenant for
the demised premises for a substantial portion of the unexpired
Page 19
term of this Lease Agreement as it existed immediately prior to
such termination, and
(a) if Lessor does not accept such tenant, or
(b) if Lessor does accept such tenant
then in either event the liquidated damages payable by Lessee
hereunder shall be reduced by the amount such tenant paid, or
would have been obligated to pay if the tenant had been accepted
by Lessor, less Lessor 's expenses in connection with such re-
letting as defined in Sub-paragraph (b) of Section 1202 hereof.
Section 1204 . In the event of any termination of the
term of this Lease Agreement, Lessee , so far as permitted by law,
hereby expressly waives (a) any right of redemption or re-entry
or repossession or to restore the operation of this Lease Agree-
ment, (b) any right to a trial by jury in the event of summary
proceedings , and (c) the benefits of any laws now or hereafter
in force exempting property from liability for rent or for debt.
ARTICLE XIII
ASSIGNMENT
Section 1301. Lessee may assign this Lease Agreement or
sublet the premises or part thereof provided that no such assign-
ment or subletting and no dealings or transactions between the
Lessor and any sublessee or assignee shall relieve the Lessee of
any of its obligations under the Lease Agreement, and Lessee shall
remain as fully bound as though no assignment or subletting had
been made, and performance by any assigneee or sublessee shall be
considered as performance pro tanto by Lessee; PROVIDED, HOWEVER,
that if Lessee shall assign and transfer this Lease and its en-
tire interest in the demised premises to another corporation and
Page 20
such other corporation shall expressly assume and agree to per-
form all of Lessee ' s obligations under this Lease Agreement,
then upon prior written consent of the Lessor, which shall not
be unreasonably withheld, Lessee shall be relieved of all there-
after accruing obligations under this Lease Agreement.
ARTICLE XIV
REMOVAL OF IMPROVEMENTS
Section 1401 . Lessee shall have the right at the expira-
tion of the demised term, or at the expiration of any renewal
or extension thereof , if Lessee shall have complied substantially
in all respects with the terms hereof , to remove at Lessee' s
expense all improvements which Lessee may have constructed and
all machinery and equipment which Lessee may have installed on
the demised premises , provided that Lessee does so without sub-
stantial damage to the demised premises .
ARTICLE XV
NOTICES
Section 1501. All notices , demands and requests which
may or are required to be given by either party to the other,
shall be in writing, and each shall be deemed to have been pro-
perly given when served personally on an executive officer of
the party to whom such notice is to be given , or when sent post-
. age prepaid by certified or registered mail by deposit thereof
in an duly constituted United States Post Office or branch thereof
located in one of the present States of the United States of
America in a sealed envelope addressed as follows :
Page 21
If intended for Lessee :
Eastern Associated Terminals Company
1400 Provident Tower
Cincinnati , Ohio 45202
If intended for Lessor :
City Manager
City Hall
Little Rock , Arkansas 72201
If intended for the Port Authority :
Executive Director
Little Rock Port Authority
P.O. Box 2300
Little Rock, Arkansas 72203
Any party may change the address and name of addressee
to which subsequent notices are to be sent by notice to the
other parties given as aforesaid.
ARTICLE XVI
CUMULATIVE REMEDIES - NO WAIVER
Section 1601. The specific remedies to which Lessor or
Lessee may resort under the terms of this Lease Agreement are
cumulative and are not intended to be exclusive of any other
remedies or means of redress to which each may be lawfully en-
titled in the case of any breach or threatened breach by either
of them of any provision of this Lease Agreement. The failure
of Lessor or Lessee to insist in any one or more cases upon the
strict performance of any of the covenants of this Lease Agree-
ment or to exercise any option herein contained, shall not be
Page 22
construed as a waiver or relinquishment for the future of such
covenant or option. A receipt by Lessor of rent with knowledge
of the breach of any covenant hereof shall not be deemed a waiver
of such breach, and no waiver, change, modification or discharge
by any party hereto of any provision in this Lease Agreement
shall be deemed to have been made or shall be effective unless
expressed in writing and signed by Lessor or Lessee. In addi-
tion to the other remedies in this Lease Agreement provided,
Lessor shall be entitled to the restraint, by injunction, of
the violation or attempted or threatened violation of any of
the covenants, conditions or provisions of this Lease Agreement
or to a decree compelling performance of any such covenants ,
conditions or provisons .
ARTICLE XVII
PRIORITY OF LEASE
Section 1701. Notwithstanding anything to the con-
, trary in this Lease Agreement (and any amendment or supple-
ment hereto) , the letting of the estate of Lessee hereunder
is and shall continue to be superior and prior to any and all
encumbrances , mortgages , deeds of trust and trust indentures ,
or any of them, now or hereafter a lien upon the demised
premises or any part thereof or interest herein.
ARTICLE XVIII
COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES
Section 1801 . The covenants and agreements herein con-
tained shall , subject to the provisions of ARTICLE XIII hereof,
bind and inure to the benefit of Lessor and Lessee, and their
respective successors and assigns , subject, however , to the
provisions of this Lease Agreement.
Page 23
ARTICLE XIX
QUIET ENJOYMENT AND POSSESSION
Section 1901. The Lessee , on paying the rentals and
performing the covenants and agreements herein on the Lessee 's
part to be performed, shall and may peaceably and quietly have,
hold and enjoy the said demised premises for the term of this
Lease Agreement and the Lessor will defend the Lessee ' s en-
joyment and possession of said demised premises against all
parties .
ARTICLE XX
GENERAL
Section 2001. If any term or provision of this Lease
Agreement or the application thereof to any person or circum-
stance shall, to any extent, be determined to be invalid or
unenforceable , the remainder of this Lease Agreement or the
application of such term or provisions to persons or circum-
stances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term
and provision of this Lease Agreement shall be valid and be
enforced to the fullest extent permitted by law.
Section 2002. The ARTICLE captions in this Lease
Agreement are for convenience and reference only and in no way
define, limit or describe the scope or intent of this Lease
Agreement or any part thereof, or in any way affect this Lease
Agreement and shall not be considered in any construction
thereof.
Page 24
I
Section 2003. This Lease Agreement shall be construed
and enforced in accordance with the laws of the State of
Arkansas . Wherever in this Lease Agreement it is provided that
either party shall or will make any payment or perform or
refrain from performing any act or obligation, each such pro-
vision shall , even though not so expressed, be construed as an
express covenant to make such payment or to perform, or not
to perform, as the case may be, such act or obligation.
ARTICLE XII
RECORDING
Section 2101. This Lease Agreement, or a Memorandum
Lease in lieu thereof , and each and every assignment and
modification hereof , shall be recorded in the office of the
Circuit Clerk and Ex-officio Recorder of Deeds and Mortgages
of Pulaski County, Arkansas . The Lease Agreement as originally
executed shall be so recorded prior to the recordation of any
mortgage or deed of trust or trust indenture with respect to
the demised premises .
ARTICLE XXII
LESSEE ' S OPTIONS
Section 2201. Provided this Lease Agreement is in full
force and effect and Lessee shall have complied substantially
in all respects with the terms hereof , Lessee shall have the
right, at Lessee 's option, to extend this Lease for a further
term of ten (10) years by giving notice thereof to Lessor in
writing not less than ninety (90) days prior to the expiration
of the demised term, which extended term shall be on the same
Page 25
.
•
terms and conditions herein stated; provided, however, that
the rates per ton payable throughout the extended term under
Sections 701 and 702 hereof shall be increased or decreased
at the commencement of such extended term in proportion to the
increase or decrease since the commencement of the initial term
demised hereunder in the average price of 99.5% purity unalloyed
aluminum ingots , as quoted over the preceding year in the
American Metal Market daily newspaper and provided, further, that
the rent so payable under Section 701 shall in no event be less
than Ten Thousand Dollars ($10 ,000 .00) per annum.
Section 2202 . Provided Lessee shall have exercised
the option provided by Section 2201 hereof and this Lease Agree-
ment is in full force and effect and Lessee shall have complied
substantially in all respects with the terms hereof, Lessee
shall have the further right, at Lessee ' s option, to extend
this Lease for a further term of ten (10) years by giving
notice thereof to Lessor in writing not less than ninety (90)
days prior to the expiration of the term as extended pursuant
to Section 2201, which second extended term shall be on the
same terms and conditions herein stated; provided, however,
that the rates per ton payable throughout the second extended
term under Sections 701 and 702 hereof shall be increased or
decreased at the commencement of such second extended term
in proportion to the increase or decrease since the commence-
ment of the first extended term in the average price of 99 . 5%
purity unalloyed aluminum ingots , as quoted over the preceding
year in the American Metal Market daily newspaper and provided,
further, that the rent so payable under Section 701 shall in
no event be less than Ten Thousand Dollars ($10 ,000 . 00) per
annum.
Page 26
. .
ARTICLE XXIII
HOLDING OVER
Section 2301. Should Lessee remain in possession of
the demised premises after the expiration of the demised term,
or any renewal thereof, then, unless a new agreement in writing
shall have been entered into between Lessor and Lessee , Lessee
shall be held to be a tenant from month to month only at the
same annual rate of rental equal to the last annual rental
rate payable hereunder and otherwise subject to all the terms
and conditions of this Lease Agreement, except as to duration
of tenancy.
IN WITNESS WHEREOF, the parties hereto have caused
this Lease Agreement to be signed by their duly authorized
officials and officers as of the day and year first herein-
above written.
CITY OF LITTLE ROCK, ARKANSAS
By:
M yor
(Lessor)
ATTEST:
City Clerk
(S E A L)
EASTERN ASSOCIATED TERMINALS COMPANY
By:
Title :
ATTEST:
Title:
(S E A L)
Page 27
LITTLE ROCK PORT AUTHORITY
By:
Title :
ATTEST:
Title :
(S E A L)
STATE OF ARKANSAS)
ss ACKNOWLEDGMENT
COUNTY OF PULASKI)
On this day, before me , the undersigned, a Notary
Public within and for said County and State , duly commissioned,
qualified and acting, appeared and
, to me well known, who stated
that they are the Mayor and City Clerk , respectively of the
CITY OF LITTLE ROCK, Arkansas , and that they are duly authorized
in that capacity to execute the foregoing instrument for and
in the name and behalf of the CITY OF LITTLE ROCK, Arkansas ,
and further stated and acknowledged that they have so signed,
executed and delivered said foregoing instrument for the con-
sideration, uses , and purposes therein mentioned and set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this day of , 1970 .
Notary Public
My Commission will expire :
(S E A L)
Page 28
r r I w
STATE OF )
ss. ACKNOWLEDGMENT
COUNTY OF )
On this day before me , a Notary Public, duly commis-
sioned and acting within and for said County and State, appeared
in person the within named and
, to me personally well known,
who stated that they were , respectively, the
and of EASTERN ASSOCIATED TERMINALS
COMPANY, a corporation, and were duly authorized in their re-
spective capacities 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 consideration, uses , and pur-
poses therein mentioned and set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this day of , 1970 .
Notary Public
My Commission will expire :
(S E A L)
STATE OF ARKANSAS )
ss ACKNOWLEDGMENT
COUNTY OF PULASKI )
On this day before me , a Notary Public , duly commis-
sioned and acting within and for said County and State , appeared
in person the within named and
, to me personally well known,
who stated that they were , respectively, the
and of the LITTLE ROCK PORT
AUTHORITY, and were duly authorized in their respective capa-
cities to execute the foregoing instrument for and in the name
and behalf of said Authority, and further stated and acknowledged
that they had so signed, executed and delivered said foregoing
instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this day of , 1970.
Notary Public
My Commission will expire :
(S E A L)
Page 29
w •' • s
I ..
s V . • w
SECTION 2. This Resolution shall be in full force and
effect from and after its adoption.
ADOPTED: September 8, 1970
ATTEST:
'44'121.d hi
6 44 APPROVED: Al(
fidlio
City Clerk ayor