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LEASE BETWEEN UNITED STATES OF AMERICA
THE BOARD OF COMMISSIONERS STATE OF LOUISIANA
OF THE PORT OF NEW ORLEANS PARISH OF ORLEANS
AND RED FOX COMPANIES OF
NEW IBERIA, INC.
THIS LEASE AGREEMENT (hereafter Lease), made and entered into on the
dates written below and effective as provided hereafter, between the Board of
Commissioners of the Port of New Orleans (hereafter Board or Lessor), a
political subdivision of the State of Louisiana, represented here by J. Xxx
Xxxxxxx, its President and Chief Executive Officer, by virtue of a resolution
of said Board, a certified copy of which is annexed hereto as Exhibit "A", and
Red Fox Companies of New Iberia, Inc. (hereafter Lessee), a corporation
organized and existing under the laws of the State of Louisiana, represented
here by Xxxx X. Xxxxx, its Vice President, by virtue of a resolution of the
Board of Directors of said corporation, a certified copy of which is annexed
hereto as Exhibit "B",
W I T N E S S E S
THAT, IN CONSIDERATION of the covenants and agreements to be kept and
performed by the parties hereto and upon the terms and conditions herein set
forth, the parties hereto agree as follows:
1. DESCRIPTION OF LEASED PREMISES
Board, as Lessor, hereby leases to Lessee approximately 15.70 acres of
land including approximately 68,000 square feet of fabricating building space
and 2,600 square feet of office space and other improvements as more fully
described in Exhibit "C", attached hereto and hereby made a part hereof,
located at municipal addresses 5601 and 0000 Xxxxxx Xxxx, Xxx Xxxxxxx,
Xxxxxxxxx (hereafter Leased Premises), more fully shown on Board Drawing
#RE-1214, dated February 9, 1998, attached hereto and hereby made a part hereof
as Exhibit "D".
2. PEACEABLE POSSESSION
Lessor binds itself to cause Lessee to be maintained in peaceable
possession of the Leased Premises during the continuance of this Lease. Should
Lessee be disturbed by any person or persons claiming a right to the Leased
Premises, or should Lessee be sued by any person or persons claiming the whole
or any part of said Lease Premises or claiming a servitude on the same, Lessee
shall call Lessor in warranty, and Lessor hereby obligates itself to defend any
such action at its costs, provided that this section shall not apply to
disturbances by trespassers.
3. TERM
(A) This Lease shall be for a term of three (3) years, commencing
as of the 1st day of March, 1998, and ending at midnight on February 28, 2001
(the Primary Term). Should Lessee occupy the Leased Premises before said
commencement date, all terms and conditions of this Lease shall be applicable
and the rent prorated on a daily basis for such period unless stated otherwise
herein.
(B) Lessee shall have the option to extend the term of this Lease
for two additional five (5) year periods (the Extended Terms)
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on the same terms and conditions as set forth in this Lease, except the rental
shall be adjusted in accordance with Section 4 (B) ("Rent") below. If Lessee
desires to exercise its renewal option(s), Lessee must give irrevocable notice
in writing to Board at least six (6) months before the expiration of the then
current lease term. Such exercise shall, at Board's option, be void if an Event
of Default (as hereafter defined) has occurred and is continuing or if an event
has occurred that may, with the passage of time or the giving of notice or both,
become an Event of Default at the time of the giving of said notice or at any
time thereafter and before the pertinent Extended Term may begin.
4. RENT
(A) This Lease is made for and in consideration of an annual
rental of one hundred fifty-five thousand dollars and no cents ($155,000.00).
Rent shall be payable in equal monthly installments of twelve thousand nine
hundred sixteen dollars and sixty-seven cents ($12,916.67) in advance on the
first day of each month, at the offices of Board, 1350 Port of New Orleans
Place, X.X. Xxx 00000, Xxx Xxxxxxx, Xxxxxxxxx 00000. Rent not received by Board
on the due date shall be deemed delinquent and shall bear interest at the rate
of five hundredths percent (.05%) per day from the date due until paid,
reserving to Board the right to take such action as is provided for under
Section 18 ("Default") below.
(B) If Lessee exercises the option(s) to extend the Lease granted
to it in Section 3(B) ("Term") above, the rent shall be adjusted on the
effective date of the Extended Term and on the third anniversary date
thereafter according to the following calculation: By using information
available from the U.S. Department of Labor, Bureau of Labor Statistics, or
successor, the value of a fraction shall be determined by dividing the
numerator thereof by the denominator thereof, the denominator of which shall be
the Consumer Price Index figure for All Urban Consumers, U.S. City Average, All
Items (1993-95 = 100) (hereinafter the CPI-U) for the calendar month which
occurred six (6) months prior to; (1) the commencement of the primary term or
(2) the last adjustment date, as applicable, immediately preceding the current
adjustment date and the numerator of which shall be the CPI-U figure for the
calendar month which occurs six (6) months prior to the current adjustment
date. The annual rent then in effect shall be multiplied by the value of the
fraction as determined above, and the product thereof shall be the annual rent.
In no event shall the annual rent be less than is then currently being paid.
5. LIMITATION OF OPERATIONS ON LEASED PREMISES
A consideration for the Board's entering into this Lease is that the
operations conducted on the Leased Premises shall contribute to the domestic or
foreign waterborne commerce of the Port of New Orleans. Lessee shall use the
Leased Premises solely for the purpose of construction and fabrication of
marine equipment and work related thereto. Lessee shall not use the Leased
Premises for any other purpose without first obtaining the written approval of
the Board acting through its president and chief executive officer in his
discretion. In no event shall Lessee use the Leased Premises for any activities
which could result in an adverse environmental impact on the Leased Premises or
any adjacent property, whether owned by Board or not.
6. MAINTENANCE
(A) Lessee shall be responsible for and shall at its own cost,
risk and expense perform and pay all costs of maintenance and repairs on the
Leased Premises and any facilities and equipment situated or to be situated
thereon, so that at the termination of this Lease, and at all times during this
Lease, the same will be in as good condition as at the commencement of the
Lease, normal wear and tear excepted. Lessee shall not be required by Board to
repair
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the roofs of the buildings unless the repairs are required because of damage
caused by Lessee or its employees, agents, representatives, invitees,
subcontractors or by its operations on the Leased Premises. All repairs shall
be equal in quality to the original in material and workmanship. During the
term of the Lease, Board shall have no responsibility whatsoever to perform
any maintenance or repair work on the Leased Premises, including the roofs of
the buildings.
(B) Should Lessee fail to begin maintenance or repairs as required
in Subsection (A) above within thirty (30) days after having been notified in
writing by Board to perform such obligations or to pursue continuously and
without interruption, the completion of such repairs, in addition to such
remedies as may be afforded to Board by law, Board is hereby authorized by
Lessee to perform or have the work performed at Lessee's cost, risk and expense
and Lessee shall, on demand, pay to Board the actual expenses, including
overhead, incurred by Board or paid to Board's contractor plus an additional
ten (10) percent as compensation to the Board for discharging one of Lessee's
obligations hereunder.
7. SUNKEN OBJECTS AND/OR OBSTRUCTIONS TO NAVIGATION
In the event any vessel or other floating craft or equipment,
including any logs or lumber assembled in rafts, or separated therefrom or any
sinkable object, in the care, custody and control of Lessee, or in the care,
custody and control of other persons, firms or corporations doing business with
Lessee at the Leased Premises shall sink or in any manner obstruct navigation
and/or dredging in the navigable waters or mooring areas of the Inner
Harbor-Navigation Canal or in the navigable waters or mooring areas owned by or
under the jurisdiction of Lessor, Lessee shall promptly remove same. In case
Lessee fails for any cause to so remove any such sunken vessel, craft or object
promptly upon demand, Lessor may remove same or cause same to be removed at the
cost, risk and expense of Lessee. In the event Lessor has to discharge Lessee's
obligations under this Section, Lessee agrees to pay to Lessor all Lessor's
actual costs and expenses plus an additional ten (10) percent as compensation
for discharging one of Lessee's obligations hereunder. Failure of Lessee to
reimburse Lessor for said cost and expense within thirty (30) days after
written demand therefor by Lessor shall be cause for immediate cancellation of
this Lease by Lessor, provided, however, that this right of cancellation shall
not constitute a waiver by Lessor of any remedies now or hereafter
given to Lessor by the laws of Louisiana, it being expressly understood that
Lessor reserves the right to avail itself of any and all such remedies. In the
event Lessor elects to file legal action to enforce the performance by Lessee of
the hereinabove obligations or to recover its said cost and expense in the
removal of any such sunken objects, Lessee herein agrees to pay to Lessor all
court costs, including reasonable attorneys fees so incurred by Lessor.
8. CONDITION OF LEASED PREMISES
(A) Lessee acknowledges that it has inspected the Leased Premises
and agrees to accept them in their present condition without any obligation on
Board to make any changes or improvements or to do construction of any kind,
whether in connection with access, utilities or otherwise. Before Lessee begins
operations on the Leased Premises, Board and Lessee shall conduct a joint
move-in survey, which shall be committed to writing and accepted by signatures
of representatives of both parties. Lessee shall make or cause to be made such
improvements as necessary or appropriate to place the Leased Premises in a safe
and usable condition for conducting its business, provided that no such work
shall be undertaken without Lessee's first having submitted the plans and
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specifications for the proposed work to and securing the written approval of
Board as provided in Section 12 ("Construction") below.
(B) As provided in La. R.S. 9:3221, Lessee, from the time of its
occupancy and until the Leased Premises are vacated by Lessee, shall assume
sole liability for the condition of the Leased Premises as well as of any
constructions, utilities and other improvements which may be built or placed on
the Leased Premises during the term of this Lease.
(C) Lessor and Lessee hereby acknowledge that the buildings on the
Leased Premises are not completely secure from rain or the elements. Board and
Lessee further acknowledge and agree that Board shall not be liable to Lessee
for any damages or losses that accrues to Lessee because of the condition of
any of the buildings on the Leased Premises.
9. LOSS, DAMAGE AND DESTRUCTION
(A) Except as provided herein, the occurrence of any loss, damage
or destruction of the Leased Premises, however caused, and whether covered
by insurance or not, shall not be grounds for cancellation or termination of
this Lease or for reduction or abatement of rent. Board shall be under no
obligation to repair, replace or restore any of the Leased Premises which may
be the subject of such loss, damage or destruction, and its failure to do so
shall not be grounds for cancellation of this Lease.
(B) Except as provided herein, Lessee agrees that it shall at its
own cost, risk and expense promptly and with due diligence repair, replace or
restore any or all of the Leased Premises which may become the subject of such
loss, damage or destruction, however caused. Lessee shall obtain the written
consent of Board to the plans for any repairs, replacement, or restorations,
and this consent shall not be unreasonably withheld. The proceeds derived from
Lessee's or any tortfeasor's insurance policies and amounts recovered from
third parties shall be applied toward such repair, replacement or restoration.
(C) Lessee shall have the option to terminate this Lease in the
event of any loss, damage or destruction of the Leased Premises which renders
them substantially unusable for the purposes of this Lease unless caused by
Lessee, in which case Lessee shall be liable for rent until the Leased
Premises can be repaired or for rent for one year after the date of the
casualty, whichever occurs earlier. If Lessee elects such option, Lessee shall
give Board prompt written notice of such election no later than forty-five (45)
days from the date of occurrence of such loss, damage, or destruction, and
failure to give such notice shall be deemed an election to continue this Lease.
Such termination shall be effective (for purposes of the payment of rent) as of
the date of such loss, damage, or destruction, provided Lessee's operations on
the Leased Premises ceased at the time of the casualty, and Board shall have no
obligation to Lessee for any payment as a consequence of such termination. If
Lessee continued operations after the said casualty, then rent shall be due
until the day that operations ceased. Any rent paid in advance shall be
prorated as of such termination date. In the event said loss, damage, or
destruction was covered by Lessee's insurance, before Lessee may exercise its
option to cancel this Lease as set out in this Subsection, and except as
provided in Subsection (E) below, Lessee shall pay over to Board all such
insurance proceeds which Lessee has been paid or for which Lessee has or may
have a claim and any deductibles Lessee maintained under the terms of the
insurance policies.
(D) In the event of any loss, damage or destruction to the Leased
Premises caused by third parties, whether partial or not, it
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shall be the obligation of Lessee to take the necessary legal action
immediately to protect the rights of Lessee and Board against such third
parties for the recovery of damage.
(E) In the event of termination of this Lease pursuant to this
Section, Lessee shall be entitled to receive from the insurance proceeds
Lessee's insurable leasehold interest in those improvements on the Leased
Premises approved by Board and paid for and owned by Lessee. Board shall be
entitled to receive insurance proceeds for those improvements the title to
which vests in the Board by virtue of this Lease. In the event Lessee
receives any insurance proceeds for damage to improvements, Lessee shall be
obligated to remove from the Leased Premises the damaged improvements if not
repaired. Lessee's right to receive payment shall be conditioned upon prior
receipt by Board of its insurance settlement.
10. INSURANCE REQUIREMENTS
(A) Comprehensive General Liability Insurance - Lessee shall
procure and maintain at Lessee's sole cost and expense comprehensive general
liability insurance with limit of liability of not less than two million dollars
($2,000,000) for all injuries or deaths resulting to any one person or from any
one occurrence. The limit of liability for property damage shall be not less
than two million dollars ($2,000,000) for each occurrence and aggregate.
Coverage under such insurance shall also include damage hazards. This insurance
shall include the "broad form contractual endorsement." Where Lessee's
operations include the use of watercraft, the watercraft exclusion in the
comprehensive general liability policy shall be eliminated.
(B) Comprehensive Motor Vehicle Liability Insurance - Lessee shall
procure and maintain at Lessee's sole cost and expense comprehensive motor
vehicle liability insurance which shall include hired car and non-ownership
coverage with limit of liability of not less than one million dollars
($1,000,000) for all injuries or deaths resulting to any one person or from any
one occurrence. The limit of liability for property damage shall be not less
than one million dollars ($1,000,000) for each occurrence and aggregate.
(C) Workers' Compensation Insurance - Lessee shall procure and
maintain at Lessee's sole cost and expense workers' compensation insurance as
will protect Lessee from claims under the Louisiana Workers' Compensation Act
as well as under the Federal Longshoremen's and Harbor Workers' Compensation
Act, if applicable. The limit of liability under the employer's liability
section of the workers' compensation insurance policy shall be not less than
five hundred thousand dollars ($500,000). Whenever applicable, protection shall
also be provided for liability under the Xxxxx Act and under general maritime
law in an amount of not less than five hundred thousand dollars ($500,000).
(D) Property Insurance - Lessee shall procure and maintain, during
the entire term of this Lease, including any extended term if applicable, at
Lessee's sole cost, and expense, broad form property insurance in favor of the
Board in the amount of $100,000 for the approximate 68,000 square feet of
fabricating building space and 2,600 square feet of office building space. Such
insurance shall be written in the name of Lessee, but shall provide that any
loss payable under the policy shall be adjustable with and payable to the
Board.
(E) Except for the workers' compensation and property insurance
policies, Board shall be named as an additional insured on all insurance
policies carried by Lessee in compliance with this Lease. All insurance
policies required under Subsections (A),(B)
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and (C) above as well as any insurance carried by Lessee or those holding under
or through Lessee for the protection of its or their property on the Leased
Premises shall provide that the insurers waive their rights of subrogation
against Board and Lessee and their respective officers, servants, agents,
representatives, employees or invitees. Lessee further agrees to waive and
agrees to have its insurers waive any rights of subrogation (whether by loan
receipts, equitable assignment or otherwise) with respect to deductibles under
such policies, and with respect to damage to equipment, including the loss of
it, whether insured or not. All such policies shall also provide for thirty
(30) days' written notice of cancellation or material change to be sent to
Board's risk manager at X.X. Xxx 00000, Xxx Xxxxxxx, Xxxxxxxxx 00000. All such
policies shall be written by companies licensed in the State of Louisiana and
acceptable to Board (Best's rating A+ IV or better). All insurance required of
Lessee under this Section shall be primary to any similar insurance which may
be maintained by the Board. Lessee shall furnish to Board's risk manager, on
forms acceptable to Board, certificates evidencing that it has procured the
insurance required herein prior to Lessee's occupancy of the Leased Premises.
Nothing contained herein shall prevent Lessee or Board from placing and
maintaining, at its respective cost and expense, additional or other insurance
as may be desired. Board makes no representation or warranty that the insurance
set forth in this Section will be sufficient to protect Lessee's interests.
11. COSTS, RISKS AND EXPENSES
(A) Lessee shall pay all costs and assume all risks in doing work,
or carrying on operations, now or hereafter permitted or required under the
terms and conditions of this Lease, except as may be otherwise specifically
designated in this Lease or in written instructions given or agreements made by
proper authority under the terms and conditions of this Lease. Lessee shall pay
all costs, reasonable attorneys' fees and other expenses incurred by Board in
enforcing the covenants of this Lease, should Lessee be found in violation of
it.
(B) The application for and installation of any water, gas,
sewerage and drainage lines, electric power cables and telephone cables shall
be made by Lessee at no cost, risk or expense to Board. The metering of all
such utilities shall be in the name of Lessee, and all bills rendered for the
consumption of said utilities shall be in the name of and shall be payable by
Lessee. Board shall be under no obligation either for the cost of installation,
maintenance or removal or for the bills for consumption of any utilities at the
Leased Premises. Within thirty (30) days of the termination of this Lease,
Lessee shall remove any such installation at Board's request for any reason.
12. CONSTRUCTION
Lessee may make or cause to be made on the Leased Premises such
improvements as may be necessary or appropriate for conducting the business
authorized there, provided that no such work on the Leased Premises shall be
undertaken without Lessee's first having submitted to Board the plans and
specifications for such work signed and sealed by a registered professional
engineer, licensed in the State of Louisiana, and securing the prior written
approval of Board, which approval shall not be unreasonably withheld. Upon
completion of the improvements and acceptance thereof by Board, all of Lessee's
rights, title and interest in the improvements shall thereupon vest in
Board, free and clear of all mortgages, liens or encumbrances, and without the
necessity of the execution by Lessee of any deed translative of title in this
respect.
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13. INSPECTION
In order that Board may carry out the obligations imposed on it by
law, by this Lease or otherwise, and to ascertain whether or not Lessee's
covenants are being observed, Board shall have the right at all reasonable
times to enter on and to inspect the Leased Premises.
14. LEVEES
In order that the Board of Commissioners of the Orleans Levee District
(hereafter the Levee Board) may carry out its obligations to construct and
maintain levees (where such levees exist on the Leased Premises), Lessee agrees
that the Levee Board shall have the right at all times to enter on the Leased
Premises for the purpose of inspecting, improving, repairing, maintaining and
constructing levees in such manner as the Levee Board may deem necessary in
order to carry out the obligations imposed on it by law, and Lessee's use of
the Leased Premises shall conform thereto, subject, however, to the provisions
of Section 29 ("Condemnation"), below.
15. PARKING
Lessee shall provide and supervise at its expense such vehicular
parking areas within the Leased Premises as may be necessary for the conduct of
all operations on the Leased Premises.
16. WATCHMAN SERVICE
Lessee shall furnish all watchman service which it may desire at
Lessee's own cost, risk and expense. Board shall xxxx no obligation to provide
watchman service.
17. ACCESS
Lessee shall construct and maintain access from the adjacent roadway
to the Leased Premises at Lessee's own cost, risk and expense.
18. DEFAULT
(A) The following events shall constitute events of default
(hereafter Events of Default) under this Lease:
(i) If Lessee shall fail duly and punctually to pay the rent or to
make any other payment required when due to Board or fail to
maintain any insurance coverage or comply with any other provision
required under Section 10 ("Insurance Requirements") above, or fail to
maintain any security required under Section 31 ("Security
Requirement") below, and if such failure shall continue for a period
of fifteen (15) days after written notice of it has been given to
Lessee by Board; or
(ii) If Lessee shall be adjudged a bankrupt or insolvent by any court
of competent jurisdiction, or if a voluntary petition in bankruptcy or
a petition for reorganization or arrangement shall be filed by Lessee,
or if a receiver of the property of Lessee shall be appointed; or
(iii) If the interest of Lessee under this Lease shall transfer or
pass to or devolve on any other person, firm or corporation without
prior approval of Board except to a wholly owned subsidiary under the
conditions set out in Section 26 ("No Assignment or Subletting")
below; or
(iv) If Lessee becomes a corporation or other entity in
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dissolution or liquidation, whether voluntary or as the result of any
act or omission, or by operation of law or the order or decree of any
court having jurisdiction or for any other reason whatsoever; or
(v) If, by or pursuant to or under authority of any legislative act,
resolution or rule or any order or decree of any court or government
board, agency or office, a receiver, trustee or liquidator shall take
possession or control of all or substantially all of Lessee's
property; or
(vi) If Lessee shall abandon, desert or vacate the Leased Premises or
discontinue its operations at the Leased Premises for a period greater
than thirty (30) days; or
(vii) If Lessee breaches or defaults in respect to any other
covenants, conditions or agreements contained herein and fails for a
period of fifteen (15) days after receipt of written notice to remedy
such default, or, if remedying such default would reasonably require
longer than fifteen (15) days, fails to commence to remedy and to
proceed thereafter with all reasonable diligence to the remedying of
such default.
(B) At the occurrence of such Event of Default, the rent at the
rate then in effect for the remaining term of this Lease shall at once become
due and exigible without putting Lessee in default. At that time, Board in its
sole discretion may exercise any or all of the following options without
further notice to Lessee and without putting Lessee into default:
(i) to demand the rent for the whole term,
(ii) to proceed for past due installments
(iii) to cancel this Lease immediately.
(C) Lessee expressly waives any statutory right it may have under
La. C.C.P. Art. 4701 et seq. of notice to vacate the Leased Premises.
(D) In all cases, Lessee shall remain responsible for all damages
or losses suffered by Board as a consequence of Lessee's breach in the
performance of its obligations under this Lease. In addition to exercising the
rights or remedies hereinabove provided in this section, at the occurrence of
Event of Default designated in Subsection A(vi) above (i.e. abandonment or
discontinuance of operations), whether alone or in conjunction with other
Events of Default, Board may take possession of the Leased Premises without
terminating this Lease and at Board's option either operate the facility or
relet the Leased Premises at the best price obtainable by reasonable effort,
consistent with the public purposes of Board, and for any term Board deems
proper, Lessee to remain liable to Board for the deficiency, if any, between
Lessee's rent and other obligations hereunder and the price obtained by Board
on operation or reletting. Failure strictly and promptly to enforce these
conditions shall not operate as a waiver of Board's rights.
19. ABANDONMENT
Lessee agrees not to vacate or abandon the Leased Premises at any time
during the term of the Lease. Should Lessee vacate or abandon the Leased
Premises or be dispossessed by process of law or otherwise, such abandonment,
vacation or dispossession shall be a breach of this Lease, and, in addition to
any other rights which Board may have as set out in Section 18 ("Default")
above, Board has the option in its sole discretion, and Lessee hereby agrees
Board shall have the right to deem any personal property belonging
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to Lessee which remains on the Leased Premises to be abandoned and to remove
and dispose of such property as the Board deems appropriate. The cost of such
removal and disposal, including storage at another site if the Board deems that
appropriate, shall be charged to the account of the Lessee.
20. WAIVER
(A) Board, acting through its president and chief executive
officer in his discretion, its managing director or its attorney, shall have
the right to extend the default periods detailed in Section 18 ("Default")
above if Board in its sole discretion determines that Lessee is making a good
faith effort to cure a default condition which Board has called to Lessee's
attention under the terms outlined in Section 18 ("Default") above, and such
extension shall not operate as a waiver of Board's rights under the default
provisions above unless Board specifically so states.
(B) Any expressly stated waiver of a breach or default of any of
the conditions of this Lease shall extend only to the particular breach or
default so expressly waived and shall in no way deprive Board of its remedies
arising out of any other breach or default hereunder, whether prior or
subsequent.
21. NO SET OFF
Lessee shall have no right to set off any claims Lessee may have
against Board against rent payments or other charges due to Board under this
Lease.
22. TERMINATION OF LEASE
(A) At the termination of this Lease by cancellation or expiration
or for any other reason whatsoever, Lessee shall immediately yield up
possession of the Leased Premises to Board. In case of failure or refusal of
Lessee to yield up the Leased Premises, Lessee shall pay as liquidated damages
for the whole time such possession is withheld double the proportionate amount
of the rent herein specified. This provision shall not constitute a waiver by
Board of any remedies now or hereafter afforded to Board by the laws of
Louisiana.
(B) At such termination, Lessee shall have the right and Lessee
may be required by Board, to remove any and all facilities, building or
structures placed by Lessee or Lessee's agents on the Leased Premises, and
Lessee shall restore the Leased Premises to as good condition as at the
commencement of this Lease, ordinary wear and tear excepted. In any event,
Lessee shall immediately remove all trash, stocks of materials, supplies, tools
etc. from the Leased Premises and from the adjacent areas of responsibility of
Lessee.
(C) If the facilities, buildings or structures which are required
by Board to be removed from the Leased Premises and all trash, stocks of
materials, supplies, tools, etc. shall not have been removed by Lessee prior to
the date of termination of the Lease, and the Leased Premises not restored as
aforesaid, Lessee hereby agrees Board shall have the option either to collect
double the proportionate amount of rent as liquidated damages until the said
facilities, buildings, structures, trash, stocks of materials, supplies, tools,
etc. have been removed and the Leased Premises restored by Lessee's cost, risk
and expense, the double rental to continue until ultimate removal thereof and
completion of restoration; or to retain such property of Lessee, or any part
thereof, which remains on the Leased Premises without payment or reimbursement
to Lessee unless other arrangements have been made in writing between Board and
Lessee with regard to the removal thereof.
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23. RIGHTS OF WAY
Board may at its option grant to Lessee or to appropriate public
utility companies if requested by Lessee rights of way to be so located as to
give said utility companies as convenient access to the Leased Premises as
practicable without unreasonable interference with the use by Board or Board's
other tenants of its or their property, provided that the location of such
utilities insofar as they cross or otherwise effect any of Board's property
within or outside of the Leased Premises, shall be approved in writing in
advance by Board. Such rights of way for utilities, granted by Board, shall be
only for the duration of the term of this Lease or any extensions thereof.
Lessee shall assume all risks, costs or other obligations imposed by the
utility companies as a condition of such installations made at Lessee's
request.
24. TAXES
If, by reason of this Lease or of the use of the Leased Premises by
Lessee as provided under this Lease, ad valorem or other taxes should accrue
against the land or any improvements on the Leased Premises, then Lessee shall
pay any and all such taxes prior to their becoming delinquent. Failure to do so
shall constitute a breach of this Lease.
25. LIENS
Lessee shall not permit any lien or privilege to remain of record when
filed by any person or company for claims arising in connection with any work or
undertaking by Lessee or Lessee's agents on the Leased Premises, and Lessee
shall promptly discharge or cause to be discharged any such lien. If in default
therein for (30) days after written notice thereof from Board, Lessee shall pay
to Board as additional rent any amount or amounts paid by Board in causing the
removal of such lien, including reasonable attorney's fees and expenses. Nothing
contained here, however, shall require Board to discharge such lien except in
its own discretion.
26. NO ASSIGNMENT OR SUBLETTING
(A) Lessee shall not assign this Lease in whole or in part, nor
sublet the Leased Premises or any portion of them, to anyone without in each
case the prior written consent of Board acting through its president and chief
executive officer in his discretion. Lessee shall not permit any transfer by
operation of law or by any other means of any of Lessee's interests in the
Leased Premises. A transfer by Lessee of substantially all of its assets, or the
merger of Lessee with another entity, or the transfer of a controlling interest
in the stock of Lessee is an assignment hereunder. Lessee, in case of assignment
or sublease with permission of Board, shall remain at all times primarily liable
for the prompt payment of all rent or other amounts due from Lessee under the
terms hereof and for the prompt performance of all covenants on Lessee's part
herein agreed to be performed. Board's consent to an assignment or sublease does
not modify the requirement for Board's consent to any subsequent assignment or
lease.
(B) In the event of any proposed assignment of the Lease to a
wholly owned subsidiary, Lessee shall give prior written notice to Board of the
assignment and proof to the Board's satisfaction that the assignee is in fact
such a wholly owned subsidiary.
(C) When Lessee contemplates a sublease in whole or in part of the
Leased Premises, Lessee obligates itself to secure from
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Board a property survey and description with prints of drawings of the area to
be subleased, which shall be annexed to the agreement of sublease as exhibits,
and Lessee shall pay to Board, in addition to the rent and other charges as
herein provided, the minimum sum ($500) for costs and expenses, the payment of
which amount shall be applicable to each and every sublease submitted to Board.
In the event Board's actual costs and expenses, including indirect costs and
overhead, for the preparation of such property survey and description shall
exceed the minimum sum, then Lessee shall pay to Board the sum equivalent to
actual costs and expenses.
(D) Lessee shall not make any of the rights granted to Lessee under
this Lease the subject of sale or transfer for profit. Accordingly, if at any
time during the term of this Lease or any renewal, Lessee seeks to assign same
or to sublease the Leased Premises (other than the assignment to a wholly owned
subsidiary of Lessee) either in whole or in part, then Board, as a condition for
granting or withholding its consent thereto, may require that the rent payable
under the Lease by Lessee to Board be adjusted and restated so that the rent
payable to Board for the Leased Premises or that portion of the Leased Premises
which is to be affected shall be at the renewal rate then established by Board
for properties of the same type that are located in the same area. When any
assignment is proposed by Lessee for approval by Board, the purchase price
and/or the rent proposed to be paid for the improvements owned by Lessee shall
be stated separately in such proposed agreement from the purchase price or the
rent proposed to be paid for the leasehold rights affecting the land and
improvements owned by Board. Board shall have the right to demand that no profit
be made by Lessee from the latter only.
27. LAW, RULES, AND REGULATIONS
(A) Lessee shall not at any time during the term of this Lease use
or allow the use of the Leased Premises for any purposes in violation of the
laws, regulations or ordinances of the United States of America, the State of
Louisiana, the City of New Orleans, or of Board, whether such laws, regulations
or ordinances now exist or shall be enacted or issued during the term of this
Lease.
(B) Lessee shall observe all laws and ordinances applicable to the
installation, maintenance and removal of any improvements, machinery or other
equipment on the Leased Premises (including access for utility connections) and
to take appropriate safeguards to prevent loss, damage or injury to the Leased
Premises or to any adjacent properties as a result of such installation,
maintenance or removal of such improvements, machinery or equipment.
(C) Lessee shall keep the Leased Premises in a safe, clean and
wholesome condition and in full compliance with local ordinances and all other
laws and governmental regulations affecting the Leased Premises and shall remove
promptly at Lessee's cost any rubbish or waste material of any character
whatsoever which may accumulate thereon. Any oil, sludge, residue, or other
materials to be disposed of in connection with Lessee's operations shall not be
discharged into the Mississippi River, connecting waterways or drains, nor shall
any material, debris, or objects of any kind be thrown or otherwise allowed to
be discharged into those waterways.
(D) Lessee shall report to Board in writing every occasion when
hazardous materials are to be stored or used on or passed through the Leased
Premises. Whenever possible, Lessee shall make this report before such occasion
and in any event as soon as Lessee becomes aware of any such occasion. Lessee
shall furnish to the Board copies of all compliance orders, administrative
orders, and
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12
any official actions from municipal, state or federal environmental agencies.
This includes spill reports, discharge (clean air and clean water) permits, and
all correspondence concerning environmental issues on the Leased Premises.
(E) Board shall at all times be free to make and enforce any
reasonable and uniform rules, regulations or ordinances which it deems
necessary or appropriate with regard to the property under its administration,
of which the Leased Premises form a part, provided that such rules, regulations
or ordinances shall not be arbitrary or discriminatory against lessee.
(F) Lessee shall demand adherence to all of the above-mentioned
laws, ordinances, rules and regulations both with reference to employees of
Lessee and with reference to all other persons entering the Lease Premises who
derive their right to be there from Lessee.
28. INDEMNITY
(A) Lessee shall protect, defend, indemnify, and forever hold
harmless the Board from any and all losses, costs, claims, charges, expenses,
penalties, fines, damages, demands, suits, attorney's fees, interest, and
actions of any kind and nature, including strict liability and environmental
liability, arising out of, in connection with or by reason of Lessee's
operations and the operations of those holding under or through Lessee on the
Leased Premises, causing injury, including death, to any person or persons or
damage to property directly or indirectly caused by, resulting from or growing
out of the performance of Lessee's operations or obligations under this Lease,
whether caused by Lessee's officers, directors, employees, servants, agents,
representatives, invitees, or subcontractors, including such as may be imposed
for the violation of any law, ordinance or regulation (federal, state or local),
and including all liability under employer's liability or worker's compensation
acts (federal or state).
(B) When, in the course of fulfilling its obligations under this
Section, Lessee must engage attorneys to defend Board, Lessee shall obtain the
prior written consent of Board to the attorneys to be engaged, and such consent
shall not be unreasonably withheld.
(C) Lessee shall be responsible for all attorney's fees and costs
which Board may incur if Board must xxx to enforce the provisions of this
section.
(D) Nothing in this section shall be construed as indemnifying
this Board against its own negligence or that of its of officers, employees,
agents, servants, representatives or invitees.
29. CONDEMNATION
(A) If the whole of the Leased Premises shall be lawfully taken by
condemnation or in any other manner for any public use or purpose, this Lease
shall terminate as of the date of vesting of title on such taking (which is the
date hereafter referred to as the date of the taking), and the rent shall be
apportioned as of such date.
(B) If any part of the Leased Premises shall be so taken, this
Lease shall be and remain unaffected by such taking except that Lessee may elect
to terminate this Lease in the event of such partial taking if the remaining
area of the Leased Premises is not reasonably sufficient for Lessee to continue
the operation of its business. In such case, Lessee shall give prompt written
notice to Board of such election, and this Lease shall terminate on the date of
service of Lessee's notice, and the rent shall be apportioned as
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13
of such date. After such partial taking, if this Lease continues in force as to
any remaining part of the Leased Premises, the rent shall be apportioned.
(C) If the temporary use or occupancy of the entire Leased
Premises shall be lawfully taken for a period in excess of thirty (30) days by
condemnation or in any other manner for any public use or purpose, this Lease
shall terminate as of the date of such taking, and the rent shall be
apportioned as of such date unless Lessee shall elect to continue the Lease,
subject to abatement of the rent during the period of such temporary use or
occupancy.
(D) If any part of the Leased Premises shall be so temporarily
taken, this Lease shall remain unaffected by such taking except that Lessee may
elect to terminate this Lease in such event if the remaining area of the Leased
Premises is not reasonably sufficient for Lessee to continue the operation of
its business. In such case, Lessee shall give prompt written notice to Board of
such election, and this Lease shall terminate on the date of service of Lessee's
notice. The rent shall be apportioned as of such date. After such temporary
partial taking, if this Lease continues in force as to any remaining part of the
Leased Premises, the rent shall be apportioned.
(E) In the event of termination of this Lease because of a lawful
taking either in whole or in part, Lessee shall be relieved of its obligations
as specified under Section 22 ("Termination of Lease") above except as pertains
to yielding up the Leased Premises and the right to elect to remove any and all
of Lessee's facilities, buildings and structures.
(F) Board shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this section without
deduction for any leasehold rights vested in Lessee by this Lease, and Lessee
shall receive no part of such award except that Lessee shall be entitled to
appear, claim, prove and receive in the proceedings relating to any taking
mentioned in this section an award made representing the value of the
alterations, installations and improvements made by or for Lessee, including
without limitation fixtures, machinery or equipment installed and owned by
Lessee on the Leased Premises as well as any damages to which Lessee may be
entitled by law.
30. NOTICE
(A) Wherever, in the provisions of this Lease, notice is required
to be given by either party, it shall not be construed to mean personal
service, but it shall mean notice in writing, addressed to the party to receive
such notice at the addresses designated below or as may be designated by the
parties from time to time by notice given pursuant to this section, sent by
registered or certified U.S. mail or a nationally recognized express delivery
company:
To Lessee: Red Fox Companies of New Iberia, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000 or
X.X. Xxxxxx 00000
Xxx Xxxxxx, XX 00000-0000
Attention: President
To Board: Board of Commissioners of
the Port of New Orleans
1350 Port of Xxx Xxxxxxx Xxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President and Chief Executive officer
Page 13 of 16
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(B) Every notice, demand, request or other communication sent in the
manner aforesaid shall be deemed to have been given, made or communicated, as
the case may be, on the third business day after the same has been deposited,
registered or certified, properly addressed as aforesaid, proper postage
prepaid, in the U.S. mail, except that any notice, demand, request, or other
communication, to Lessee or the Board may be personally delivered, and in such
event shall be deemed to have been given on the date the same shall have been
personally delivered to the party to whom such notice, demand, request or other
communication is addressed, or to an officer of such party, as provided by law.
31. SECURITY REQUIREMENT
(A) Lessee shall provide security to Board for Lessee's performance
of the obligations under this Lease in such a manner and amount as the Board
acting through its president and chief executive officer or his designee shall
deem sufficient except as provided below.
(B) Lessee shall have the right to satisfy its obligation under
Subsection (A) above by providing a performance bond which shall be in effect
for the entire term of this Lease and any extension or renewal of it and
furthermore shall remain in effect for thirty (30) days beyond the term of this
Lease or any renewal or extension, and all premiums for it shall be paid by
Lessee. Lessee agrees that in the event of cancellation or termination of the
bond, a new bond effecting the same guarantees to Board shall be furnished by
Lessee to Board prior to the effective date of such termination or cancellation.
The performance bond shall be in a form substantially similar to the following
form and acceptable to the Board in its discretion.
TO THESE PRESENTS NOW COMES AND INTERVENES:
____________, a surety corporation organized and existing under and
pursuant to the laws of the State of __________, having its principal office in
the City Of _________, State of ________, duly authorized to act pursuant to
Power of Attorney conferred on him, a duly certified copy of which is annexed
hereto and made part hereof, which corporation binds and obligates itself
jointly, severally and in solido with ___________, Lessee herein, to and in
favor of Board of Commissioners of the Port of New Orleans, a political
subdivision of the State of Louisiana, as Lessor herein, for the faithful
performance by Lessee of all obligations assumed by or imposed on Lessee by this
Lease, including payment of such rent as may be due by Lessee to Board,
provided, however, that the obligation of ____________ as surety hereunder shall
not be less than the amount of the yearly rental as it may escalate during the
term of this Lease; and provided that if Lessee shall perform and abide by all
of the obligations assumed by or imposed on Lessee by this Lease, including the
payment of rent, this obligation shall be null and void and of no effect.
Otherwise, it shall remain in full force and effect.
(C) (i) Alternatively, Lessee shall have the right to satisfy its
obligation under Subsection (A) above by providing an irrevocable letter of
credit in the form and manner set out below. The irrevocable letter of credit
must be issued by a bank in the New Orleans area, which shall be for an amount
not less than the yearly rental at the time of the effective date of this lease
or as it may escalate during the term of this Lease, available by draft of Board
at sight to be accompanied by the signed statement of Board, acting through its
president and chief executive officer, his designee or the managing director,
the director of finance and accounting or the general counsel, certifying that
Lessee has
Page 14 of 16
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failed to faithfully perform any obligation assumed by or imposed on Lessee by
this Lease, which letter of credit shall be delivered to Board at the time of
execution of this Lease. Lessee agrees that in the event of cancellation or
termination of said letter of credit, a new letter of credit, effecting the
same guarantees to Board shall be furnished by Lessee to Board before the
effective date of such cancellation or termination. Said letter of credit shall
be in effect for the entire term of this Lease and any extension or renewal of
this Lease and furthermore for a period of thirty (30) days beyond the term of
this Lease or any extension or renewal of it.
(ii) Lessee agrees that under no circumstances shall Board be
liable in damages to Lessee in the event that Board should issue a draft or
drafts against said letter of credit in an amount or amounts over and above
that which may ultimately be declared to be the actual liability of Lessee to
Board.
32. JOINT VENTURE DENIED
Nothing in this Lease shall be construed to create or constitute a
partnership, joint venture or agency relationship between Lessee and Board, the
existence or any such relationship being hereby expressly denied.
33. HEADINGS
The lease heading and all section headings are for quick reference and
convenience only and do not alter, amend, explain or otherwise affect the terms
and conditions appearing in this agreement.
34. LOUISIANA CONTRACT
This is a Louisiana contract and shall be governed, interpreted and
enforced in accordance with the laws of the State of Louisiana and of the
United States of America.
THUS DONE AND SIGNED in multiple originals in the City of New Orleans,
State of Louisiana, in the presence of the subscribing witnesses.
BOARD OF COMMISSIONERS OF
WITNESSES: THE PORT OF NEW ORLEANS
------------------------------ BY: ---------------------------------------
J. Xxx Xxxxxxx
President and Chief Executive
Officer
------------------------------
DATE:
--------------------------------------
APPROVED:
------------------------------
Attorney for Board
RED FOX COMPANIES OF NEW
IBERIA, INC.
WITNESSES:
BY: /s/ XXXX X. XXXXX
---------------------------------------
Xxxx X. Xxxxx
Vice President
[ILLEGIBLE]
------------------------------
/s/ XXXXX X. XXXXXX
------------------------------
Page 15 of 16
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ACKNOWLEDGEMENT
STATIC OF LOUISIANA
PARISH OF ORLEANS
Before me, the undersigned authority,personally appeared Xxxx X. Xxxxx,
who after being duly sworn deposed that he is Vice President of Red Fox Inc.,
Companies of New Iberia, Inc., and that he signed the foregoing Lease between
Board and Red Fox Companies of New Iberia, Inc. on behalf of said Corporation,
as he was duly authorized to do this 16th day of March, 1998.
/s/ XXXX X. XXXXX
------------------------------------
Xxxx X. Xxxxx
[ILLEGIBLE]
------------------------------
NOTARY PUBLIC
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
Before me, the undersigned authority, personally appeared J. Xxx
Xxxxxxx, who after being duly sworn deposed that he is the President and Chief
Executive officer of the Board of Commissioners of the Port of New Orleans, and
that he signed the foregoing Lease between Board and Red Fox Companies of New
Iberia, Inc. on behalf of said Board as he was duly authorized to do this
___ day of __________, 1998.
-----------------------------
J. Xxx Xxxxxxx
-------------------------
NOTARY PUBLIC
Page 16 of 16
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CERTIFICATION
I, XXXXX X. XXXXXXX, XX., Secretary of the Board of Commissioners of
the Port of New Orleans, do hereby certify that the following is a true and
correct copy of a resolution adopted by the Board at a duly scheduled and
convened meeting of the Board held at its offices in the City of New Orleans on
the 19th day of February, 1998, at which a quorum was present and voted in
favor of said resolution:
IT IS HEREBY RESOLVED BY THE BOARD OF COMMISSIONERS OF THE
PORT OF NEW ORLEANS that J. Xxx Xxxxxxx, its President and Chief
Executive Officer, be, and he is, hereby authorized and empowered on
behalf of this Board to enter into an agreement with Red Fox Companies
of New Iberia, Inc. to lease approximately 15.70 acres of Board-owned
land on France Road for a term of three years with Lessee's option to
the renew the lease for two additional five-year periods, the annual
rent of $155,000.00 to be increased by a factor equal to the change in
the Consumer Price Index if renewed and every three years thereafter;
and
IT IS HEREBY RESOLVED BY THE BOARD OF COMMISSIONERS OF THE PORT OF NEW
ORLEANS that the said J. Xxx Xxxxxxx be, and he is, hereby authorized
and empowered on behalf of this Board to cancel the American Marine
Fabricators, Inc. lease by mutual consent; and
IT IS HEREBY FURTHER RESOLVED BY THIS BOARD that the said J. Xxx
Xxxxxxx be, and he is, hereby authorized, directed and empowered on
behalf of this Board to take such actions, to execute such documents,
and to enter into whatever agreements as he may deem necessary in his
discretion to carry out the intentions of this resolution.
THUS DONE AND SIGNED by me under the seal of the Board of
Commissioners of the Port of New Orleans, this 19th day of February,
1998.
/s/ XXXXX X. XXXXXXX, XX.
----------------------------------------
XXXXX X. XXXXXXX, XX.
SECRETARY
BOARD OF COMMISSIONERS OF THE
PORT OF NEW ORLEANS
18
EXHIBIT "C"
LEASE BETWEEN RED FOX OF NEW IBERIA, INC. AND
BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS
SITE IMPROVEMENTS
0000 XXXXXX XXXX
XXX XXXXXXX, XXXXXXXXX
1. BUILDINGS
A. Metal Fabrication Shop: (approximately 38,297 sq. ft.)
includes lean-to and mesh building, and is open on the south end;
steel frame with corrugated steel siding; roof formed with clear-span
trusses resting on side wall columns, concrete floor, ceiling height
to xxxxx 41'-0"; one 5-ton Bedford traveling crane, height to crane
rail 31'-0"; height to hook 28'-6" and one Anchor Crane & Hoist 15-ton
double box girder bridge crane. Craneway extends the length of the
building and completely across the barge slip.
B. Fabrication Shop Addition: (approximately 30,000 sq. ft. (300'
x 100')) Clear-span structure with main framing consisting of steel
three-hinged arches, corrugated steel siding and roof; ceiling height
to xxxxx 42'; concrete floor with grounding strips; two twenty-ton
Xxxxxx overhead cranes, Serial Nos. A 1813 and A 1814; craneway
extends the length of the building; building contains an 810 sq. ft.
(27' x 30') concrete block two-story office, and has electrical, air,
argon, gas and water facilities.
C. Office Building: Painted, corrugated metal siding on metal
frame and corrugated roof. Approximately 2,600 sq. ft. Central air
conditioning, and heat. 9 rooms - 4 private offices, 2 general
offices, kitchen, washroom, utility room, two bathrooms.
D. Additions to Office Building: Utility type building,
approximately 400 sq. ft. (16' x 25').
2. RAILROAD TRACKAGE
Approximately 2,000 linear feet of standard gauge railroad
track entering property from Xxxxxx Xxxx,
0. FENCING
Six-foot chain link fencing completely surrounds property
(less canal frontage). Two double gate entrances, at northwest and
southwest corners of property along France Road.
