Loading...
HomeMy WebLinkAboutRES 83-441 R E S O L U T I O N BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby , authorized to execute a lease agreement, in the form attached hereto as Exhibit "A" , between the City of Beaumont and the Beaumont Riverboat Corporation (BRC) for the conduct of an excursion riverboat business. PASSED BY THE CITY COUNCIL of the City of Beaumont this the t� day ofG2c�. - Mayor - THE STATE OF TEXAS § COUNTY OF JEFFERSON § This lease agreement is entered into by and between the City of Beaumont , acting by and through its duly authorized City Manager (City) and the Beaumont Riverboat Company, act- ing by and through J. Hoke Peacock II , its President , duly authorized (BRC) , and City and BRC hereby agree as follows : W I T H E S `S E T H: 1. Property City does hereby lease unto BRC the premises outlined in . red on Exhibit A, attached hereto and made a part hereof for all purposes , upon the following terms and conditions : 2 . Term This lease agreement shall be for a term of five (5) years commencing the 15th day of November, 1983 , and ending the 14th day of November , 1988 . BRC shall have an option to renew the lease for one additional term of five (5) years upon the same terms and conditions herein contained. To exercise its option , BRC shall give City notice in writing at least sixty (60) days prior to the expiration of the initial term hereof. 3 . Rental BRC shall pay rentals to City at the rate of $12 , 000 for each year of the term of this lease and any extension hereof, subject to adjustment as provided in Section 20 below. Rent shall be due and payable in advance in monthly installments of $1, 000 each on or before the 15th day of November, 1983 , and the 15th day of each month thereafter during the term hereof. If this lease is executed after November 15 , 1983 the first monthly rental payment shall be paid immediately upon delivery to BRC of a counterpart hereof executed by City and the next monthly payment will be due on December 15 , 1983 as schedulcd. 4 . Purpose 0 BRC will use the premises to dock its riverboat and to conduct its excursion riverboat business , including operation of a concession and souvenir stand. BRC will not make any other use of the leased premises without the written consent of the City Manager of City. The riverboat will be docked at the location shown on Exhibit "A".� BRC will have the right to install a portable building in the area designated as "Storage Space" on Exhibit A hereto. BRC will use such portable building solely to house an ice machine or ice storage freezer and as a place to store spare parts and supplies used in the operation of the riverboat. BRC will replace such portable building with a permanent building on or before September 1 , 1984 . The design , construction and maintenance of such permanent building will be subject to the approval of the City Manager of City and will be aesthetically in keeping with the other structures in Riverfront Park; such approval will not be unreasonably withheld. BRC will have the right to run electric power lines and portable water lines to the portable building and the permanent building . At the end of the term of this lease such permanent building will become the property of City. 5. Improvements BRC , at its sole expense , will make all improvements to the dock which are necessary for the safe mooring of the riverboat . The required improvements will be determined by ' BRC ' s naval architect and *'the engineer or architect who designed and supervised the installation of the dock. BRC will pay all fees for such services . City will not be obligated to maintain any particular depth of water at the dock and any dredging or other work necessary to BRC' s use of the dock to land its riverboat will be BRC ' s sole T'H/s 6V(#11317- 141 C',�,�v7'.gc7` .Aocv-OWC1z1rs e2NL,kl 4C-7 1�Ep7' �'i`f I/�I T I S To o Kl`k' -2- J3 responsibility and expense . However , City will not intentionally do anything which will decrease the water depth at the dock or place any underwater obstructions or structures in the river that would impair BRC' s use of the dock to land and berth its riverboat. BRC may provide a canvas covering for the pavillion area shown on Exhibit A. Any covering of the pavillion area other than canvas will be subject to the approval of the City Manager of City. BRC shall provide electrical service as necessary to the riverboat and concession area. Electrical service to the riverboat and concession areas will be metered separately from City electrical service , and BRC shall pay all utility charges associated with use of the leased premises . 6 . Right of First Refusal and Permission to Dock Other Boats City agrees that it will not permit another excursion boat operation to use any part of the Riverfront Park wharf without first offering BRC the same wharf space or lease on the same terms City proposes to offer to such other opera- tor. City also agrees that if BRC requests permission to dock a second or third riverboat at the wharf at Riverfront Park, City will not unreasonably withhold permission for such docking, subject to amendment of this lease or a new lease for such additional riverboat . 7 . Concessions BRC hereby agrees to operate the concession stand at such times as it wishes and at any time requested by the City Manager of City or his designee and to pay City a percentage of all sales and receipts from the concession stand as follows : 1 . Food and beverage - 10% of gross sales 2. Novelties & souvenirs - 107 of net receipts BRC agrees that City may prohibit sales of food and beverages from the concession stand when such sales would be -3- a �3 �i inappropriate because of the nature of a gathering or activity in the park. Inappropriateness will be determined in the good faith judgment of the City Manager of City. In no event will sales be prohibited in order to increase sales of food or beverages by other vendors in the park , either permanently or on a special event basis. No prohibition of sales will apply to sales of tickets for passage on BRC ' s k riverboat or to sales to BRC ' s customers while on the riverboat. The term "net receipts" as used herein shall mean gross receipts for novelties and souvenirs sold from the concession stand less the cost of novelties and souvenirs sold. In no event will the terms "gross sales" or "net receipts" as used herein include any sales or receipts on the riverboat ; only sales and receipts from the concession stand are covered hereby. BRC will not owe City any per- centage of sales of tickets for passage on its riverboat , even if such tickets are sold from the concession stand or elsewhere in Riverfront Park. BRC shall pay to City all amounts due hereunder on a monthly basis . Payment shall be made on or before the 10th day of each month for sales made the previous month. Each payment shall be accompanied by a sworn report of sales and cost of products in sufficient detail to provide documentation concerning gross sales and net receipts made during the month. 8. Parking City shall provide to BRC twelve (12) designated parking spaces as shown on Exhibit B" attached hereto and made a part hereof. 9 . Fueling Service and Sewage BRC will not fuel , service or maintain the riverboat , or remove sewage from the riverboat while it is docked at Riverfront Park unless the method of fueling, servicing , -4- �zi maintaining or removing sewage is approved in advance by the City Manager of City. However, maintenance activities conducted entirely on board the riverboat and not requiring the use of heavy equipment on the dock are not prohibited and no approval for such maintenance activities need be obtained. 10. Food Food preparation on the riverboat or on any of the leased premises will be carried out in accordance with all state, federal or local health regulations to the extent that any such regulations are applicable to the riverboat or leased premises , as the case may be. 11. Maintenance BRC agrees to maintain the leased premises in the same condition in which they are found on the commencement of the initial term of this lease , ordinary wear and tear and causes beyond BRC' s control excepted. 12 . Assignment BRC shall not sublease or assign this lease without the written consent of the City Manager of City. 13. Default Should BRC default in making any payment due hereunder and if such default is not corrected within 10 days after receipt of a notice of such default from City , City may terminate this lease within 30 days after the expiration of such 10 day grace period. Should BRC default in the per- formance of any of its other obligations hereunder, it will commence correcting such default within 10 days after receiving written notice from the City Manager of City specifying such default and referring to the paragraph hereof that is being violated or that creates the obligation that is not being performed. BRC shall prosecute the correction of the default with due diligence and complete it -5- j within a reasonable time; if BRC fails to do so City may terminate this lease effective immediately. 14 . Insurance BRC shall at its own cost maintain the following insurance with the following limits : TYPE LIMIT General Public Liability $10 ,000 , 000 Property Damage 10 , 000 , 000 Products Liability 1 , 000 ,000 Contractual Liability 1, 000 , 000 The policy or policies issued hereunder shall name City as an additional insured and shall contain a provision that the policy shall not be canceled, expire or otherwise be terminated until after thirty (30) days written notice to that effect is given to City. BRC shall furnish City with proof of insurance. 15 . ' Indemnity BRC agrees to indemnify and hold harmless City from any and all claims , damages or causes of action which might arise from any activities of BRC in the facilities leased herein, or from any operations of BRC, and BRC specifically agrees to indemnify City against all claims , damages or causes of action which might arise as a result of joint acts , omissions or negligence of City and BRC , or their employees or agents . City will not be indemnified or held harmless from any claim, damage or cause of action arising solely from the acts , omissions or negligence of City or its agents or employees . 16. Notices All notices required to be given hereunder by City to BRC shall be in writing, by mail or telegram, postage prepaid and addressed to BRC as follows : -6- Beaumont Riverboat Company P. 0. Box 1227 Beaumont , Texas 77704 With a copy to: LaCrosse Queen, Inc. P. 0. Box 1805 LaCrosse , Wisconsin 54602-1805 Attention: President All notices required to be given by BRC to City shall be similarly given, addressed to City as follows : City Manager City of Beaumont P. 0. Box 3827 Beaumont , Texas 77704 provided that either party may, by notice in writing to the other, designate any additional or alternative address to which such notices shall be given. 17 . Park Conditions City agrees that it will maintain Riverfront Park and its parking lot in a clean condition and in good order and repair, including keeping the restrooms clean and in good operating condition. 18 . Compliance with All Laws BRC shall comply with all laws applicable to its activities and will permit no nuisance to exist upon the leased premises or to occur in its operation of the riverboat . 19. Prices of Food and Beverage Sold from Concession Stand BRC shall submit to the City Manager of City a detailed price schedule of all food and beverage items it proposes to sell from the concession stand, showing size, weight and sales price of each item. All such prices must be approved by the City Manager of City before being put into effect by BRC. Such approval will not be withheld if such prices are no higher than those charged for the same quality food and beverage items at other similar facilities in Texas and adjoining states . All prices charged for food and beverage -7- items sold in the concession stand will be prominently posted. Any deviation in price must be approved by the City Manager of City. When BRC submits a price schedule to the City Manager of City pursuant hereto , the prices shown thereon will be deemed approved by the City Manager of City unless the City Manager of City notifies BRC that he disapproves of one or more of such prices within 10 days after his actual receipt of such schedule. 20. Adjustments to Rentals The rentals and percentages to be paid by BRC hereunder are intended to cover City' s incremental expenses incurred because of BRC ' s use of the wharf and Riverfront Park, including the additional costs of building maintenance , landscape maintenance, trash removal , litter pick up , operating the sewage lift station, repairing damage by vandals , electrical power to the concession stand and restrooms , and potable water service to the extent that such costs would not have been incurred if BRC had not been using the premises as permitted hereby. Such additional expenses are hereinafter referred to as "City' s Incremental Expenses" . City' s Incremental Expenses will not include the cost of the level of building maintenance , landscape maintenance , trash removal , litter pick up , exterior lighting and sewage lift station operation provided to Riverfront Park by City during the 6-month period prior to commencement of the term hereof. City' s Incremental Expenses will be determined by the City Manager of City in good faith. The City' s Incremental Expenses will be determined every three months during the term hereof commencing with the 3 months ended February 29 , 1984 . Such determination will be made on or before the end of the month -8- following the last month in each three month period. The rentals paid by BRC 'under Section 3 above and the percentages paid by BRC under Section 7 above will be determined for the same three month periods (the Nov. 15 , 1983 payment of rent will be considered to have been made during the 3 months ending Feb . 29 , 1984 regardless of when made) . A comparison of the City' s Incremental Expenses and the rentals and percentages paid by BRC during each 3 month period will be made. If the rentals and percentages paid by BRC during any such 3 month period exceed the City' s Incremental Expenses for that period, BRC may take credit for the amount of the overage on the next ensuing monthly rentals due hereunder. If the City' s Incremental Expenses during any such 3 month period exceed the rentals and percentages paid by BRC during that period, BRC will pay City the amount of such excess within 30 days after receipt of an invoice from City fo'r such excess . Such invoice will reflect the computations and comparisons used in arriving at the amount of such invoice. If the City' s Incremental Expenses are less than the percentages for any 3 month period, BRC will not be entitled to credit for such difference. If the City' s Incremental Expenses are in excess of the percentages for any 3 month period then BRC will get full credit for such percentages . Examples of calculations ' of these credits are attached as Schedule 1 . If the City' s Incremental Expenses exceed the rentals and percentages paid by BRC during any two consectuive 3 month periods , BRC will have the right to terminate this lease effective on a date certain not less than 90 days after delivery of written notice of such termination to City. City and BRC will adjust the quarterly credits or payments for each 12 month period ending November 30 , so that -9- payments and credits will be no greater than they would have been if the comparisons had been done on an annual basis ; there will be no carry-forward to future years and no carry-back to earlier years . 21 . Choice of Law This agreement shall be deemed to be made and shall be construed in accordance with the laws of the State of Texas and shall be performable in Beaumont , Jefferson County, Texas . IN WITNESS WHEREOF the parties hereto have executed this agreement on the day of November, 1983 . CITY OF BEAUMONT BEAUMONT RIVERBOAT COMPANY By: By: Karl No len erger, J. Hoke Peacock II, City Manager President Lessor Lessee Attest : Attest : City Clerk Gary Neale Reger , Secretary -10- s, SCHEDULE 1 Quarterly Examples: Example 1 $ 3, 000 Rent 250 Percentages 3 ,250 Total Payments 200 City' s Incremental Expenses $ 503 Difference, but refund to BRC is $3 ,000 , so total cost is x$250 (the amount of percentages) Example 2 $ 3 , 000 Rent 250 Percentages $ 3 ,250 400 City' s Incremental Expenses $ 2, 850 Refund to BRC, Total cost is $400 (the Amount of the City' s Incremental expenses) Example 3 $ 3 ,000 Rent 250 Percentages $ 3 ,250 250 City' s Incremental Expenses $ 3 ,000 amount of the�City' s Incremental OExpenses C 1 On s I EXHIBIT LEASED *'PREMISES'� Lease from City of Beaumont to The LaCrosse Queen , eau.$?,.*I � 1,j'ti`iI�• —� � i tYe��7.3 i}1� :{�� -- �;: �:..�. :;L:.t,y<.�;±!':i3.F7f��71St):I11 t alit ��ts{fi�s�il► c�, +�fAlt �IE � H M f � . .,Ifl� � ► € iiaasr ; : f; ,:a�i�lll�ill.i.I Nd` il.li.g ...r.« y � lf� i� 3z ��'�'E i3I' `✓�'�_`r 4C 14 Al ... O.,.-.r I♦ `.'..\ ` ,.., f - �1 _yam.-, _ _ 3 9 _ - EMPLOYEE PARKING DOCK FACILITIES 30'X100' - 12 SPACES '-�J` CONCESSION BUILDING 'X1