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
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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
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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 ,
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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
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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 :
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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
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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
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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
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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
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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
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EXHIBIT
LEASED *'PREMISES'�
Lease from City of Beaumont to The LaCrosse Queen ,
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_ - EMPLOYEE PARKING DOCK FACILITIES 30'X100' -
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CONCESSION BUILDING 'X1