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EXHIBIT 10.9
AGREEMENT AND LEASE
TRAILER BRIDGE COMPANY, INC.
THIS AGREEMENT made and entered into as of this 1st day of August,
1991, by and between the JACKSONVILLE PORT AUTHORITY, a body politic and
corporate created and existing under Chapter 63-1447, Laws of Florida, as
amended, hereinafter referred to as "AUTHORITY", and TRAILER BRIDGE COMPANY,
INC., a company incorporated under the Laws of Delaware, hereinafter referred
to as "LESSEE",
W I T N E S S E T H:
WHEREAS, AUTHORITY is the owner and operator of vessel berthing, cargo
handling and storage facilities at Xxxxxx Island Terminal ("Terminal") located
in Jacksonville, Florida; and
WHEREAS, AUTHORITY and LESSEE desire to enter into an Agreement for
the lease and use by LESSEE of certain facilities, as more fully hereinafter
set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, AUTHORITY and LESSEE do hereby mutually undertake,
promise and agree, each for itself and its successors and assigns, as follows:
SECTION 1. DESCRIPTION OF LEASED PREMISES
AUTHORITY does hereby agree to lease to LESSEE, during the term and
for the uses set forth in Sections 2 and 3 respectively hereof, and upon and
subject to the terms and conditions hereinafter specified, the facilities
located on the Terminal, hereinafter referred to as "Leased Premises", as
indicated by plat on Exhibit A hereof.
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SECTION 2. TERM OF AGREEMENT
A. This Agreement shall become effective on the date set forth on
Exhibit B ("Commencement Date"), subject to approval by the Federal Maritime
Commission ("FMC"). However, if there is (i) any ruling from the FMC
disclaiming jurisdiction over this Agreement, or (ii) any ruling by an
appropriate authority that the FMC has no jurisdiction over this Agreement,
then the Commencement Date shall be the date of such ruling. Upon the
Commencement Date, the term ("Term") of this Agreement shall be for the period
set forth on Exhibit B, subject to termination contained herein.
B. Upon mutual agreement, LESSEE may extend this Agreement for
two (2) additional terms of five (5) years each. Notice of LESSEE's desire to
exercise this option must be given to AUTHORITY in writing at least sixty (60)
days prior to the end of the then current term.
C. In the event LESSEE continues its operations on the Leased
Premises after expiration of this Agreement without any written extension
thereof, such continuation shall not be deemed to operate as a renewal or
extension of this Agreement, but such operations shall be governed by the then
applicable terms of this Agreement. Such operations may be terminated by
AUTHORITY upon sixty (60) days written notice.
SECTION 3. USE OF LEASED PREMISES
A. LESSEE shall have the right to use the Leased Premises for a
Roll/On Roll/Off, or Lift/On Lift/Off, container/trailer handling facility and
related services. LESSEE shall be prohibited from using any portion of the
Leased Premises for any other purpose without prior written approval from the
AUTHORITY, as set forth in Section 19.A. hereof.
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SECTION 4. BARGES
A. For the duration of the operation contemplated herein,
AUTHORITY may allocate AUTHORITY-owned lash barge Number 416 for LESSEE 5 use
in the project. All maintenance and repair of the barge shall be the
responsibility of the LESSEE. Upon termination of this Agreement, by expiration
of Term or otherwise, said barge shall be returned to the AUTHORITY in good
condition and repair, reasonable wear and tear excepted.
B. LESSEE may provide its own Floating Discharge Ramp ("Ramp")
for the operation. LESSEE shall move the Ramp, at its sole expense, upon the
AUTHORITY's request to a location indicated by AUTHORITY, in order to allow
clearance for other operations. All maintenance and repair of the Ramp shall be
the responsibility of the LESSEE.
SECTION 5. FEES AND CHARGES
A. Rental Rates: In consideration of all rights and privileges
herein granted, LESSEE shall pay to AUTHORITY the monthly rate, plus applicable
state sales tax, indicated on Exhibit B.
1. Payments: All monthly payments for the Leased
Premises shall be due on the first day of each month. Should this Agreement
commence on any day other than the first of the month, or terminate on any day
other than the last day of the month, the amount will be prorated in proportion
with the rights and privileges enjoyed during that month.
2. Adjustments:
a. The rental rate indicated on Exhibit B shall
be adjusted on the first anniversary of the Commencement Date of this
Agreement, and every year thereafter, including any renewal periods. The rental
rate for each year shall be the rental rate for the previous year, plus the
product of the percent of increase in the Consumer Price Index, U.S. Urban Wage
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Earners and Clerical Workers, 1967=100, ("CPI"), for the previous year, times
the rental rate during the previous year.
b. Adjustment of rental rate on Exhibit B shall
apply without necessity of formal amendment of this Agreement, provided,
however, that any amendment hereto shall be filed with the FMC, in accordance
with Section 25 hereof.
3. Delinquent and Late Fees and Charges:
a. A late fee assessment of five percent (5%)
will be imposed on all payments not made within ten (10) days after the due
date thereof, and shall become additional rent due and payable, until said
payment is received by the AUTHORITY. Said late fee assessment shall be
calculated from the first day payment was due.
b. If any rental fees required by this Agreement
are not paid within thirty (30) days of the due date, AUTHORITY reserves the
right to terminate this Agreement with fifteen (15) days written notice to
LESSEE, in accordance with the provisions set forth in Section 21, Paragraph C,
hereof. Upon such date, LESSEE shall be deemed to have no further rights
hereunder and AUTHORITY may take possession of the Leased Premises by any means
available to it by law. In such event, AUTHORITY shall have the right to
recover all expenses incurred by reason of the breach, including, but not
limited to, reasonable attorney's fees and court costs.
B. Throughput:
1. Throughput Rates: LESSEE shall pay the AUTHORITY the
throughput rates stipulated on Exhibit B.
2. Reporting and Payment: LESSEE shall submit vessel
manifest no later than three (3) days after said vessel sails. Payment of
AUTHORITY's invoice therefor, and any
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delinquent or late fees for throughput, shall be assessed and handled in
accordance with AUTHORITY's published tariff or its reissue.
3. Adjustments:
a. On October 1 of each year, the AUTHORITY
shall determine and calculate the overall increase, if any, of the rates and
charges in its published tariff during the preceding twelve (12) month period.
Commencing October 1, 1992, and every year thereafter, the throughput rates on
Exhibit B shall increase annually in an equal and like percentage for the
ensuing year.
b. Adjustment of throughput rates on Exhibit B
shall apply without necessity of formal amendment of this Agreement, provided,
however, that any amendment hereto shall be filed with the FMC, in accordance
with Section 25 hereof.
C. Dockage:
1. Dockage Rates: LESSEE shall pay the AUTHORITY the
dockage rates stipulated on Exhibit B.
2. Adjustments:
a. On October 1 of each year, the AUTHORITY
shall determine and calculate the increase, if any, of the rates and charges
for dockage in its published tariff during the preceding twelve (12) month
period. Commencing October 1, 1992, and every year thereafter, the dockage
rates on Exhibit B shall increase annually in an equal and like percentage for
the ensuing year.
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b. Adjustment of dockage rates on Exhibit B
shall apply without necessity of formal amendment of this Agreement, provided,
however, that any amendment hereto shall be filed with the FMC, in accordance
with Section 25 hereof.
3. Delinquent and Late Fees and Charges: Delinquent and
Late fees for dockage shall be assessed in accordance with AUTHORITY's
published tariff or its reissue.
D. Other Fees and Charges: LESSEE shall pay any other fees and
charges due and payable to the AUTHORITY as stipulated on Exhibit B.
SECTION 6. PREFERENTIAL BERTHING
LESSEE may use Berth No. 7 on a preferential basis on one (1)
designated day per week. Said designation shall be made by LESSEE and furnished
to the AUTHORITY in writing. Said designation may be changed by LESSEE with
thirty (30) days prior written notice to the AUTHORITY, and shall be approved
as long as said change does not conflict with other berthing agreements.
SECTION 7. UTILITIES
LESSEE shall be responsible for promptly paying those persons
furnishing or providing utility connections and services to the Leased
Premises, which shall include, but not necessarily be limited to, electricity,
gas, sewage, water, janitorial, trash removal and telephone service.
SECTION 8. TAXES AND ASSESSMENTS
LESSEE shall, at its own expense, pay all taxes and assessments levied
against its interest in the Leased Premises as well as all taxes and
assessments levied against the personal property used by it in its operations
at the Leased Premises. None of the terms, covenants or conditions of this
Agreement shall be construed as a release or waiver on the part of AUTHORITY,
as a
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political subdivision of the State of Florida and the City of Jacksonville of
the right to assess, levy and collect any license, personal, intangible,
occupation or other tax which shall be lawfully imposed on the business or
property of LESSEE.
SECTION 9. INDEMNIFICATION AND INSURANCE
A. LESSEE agrees to indemnify and hold AUTHORITY, its agents and
employees harmless from and against all liabilities, judgments, costs, damages
and expenses which may accrue against, be charged to or recovered from
AUTHORITY by reason of or on account of damage to the property of, injury to,
or death of any person, arising from the LESSEE's use, occupancy and operation
of the Leased Premises and use of AUTHORITY's equipment, including leakage or
spillage of any substance used or handled by LESSEE in its operation, and
including acts of its agents, employees, contractors and subcontractors, except
when caused by the negligence of AUTHORITY, its agents, employees, contractors
or subcontractors; provided that AUTHORITY shall give LESSEE prompt and timely
notice of any claim made or suit instituted which, in any way, affects LESSEE
or its insurers, and LESSEE or its insurers shall have the right to compromise
and defend the same to the extent of their own interests. Provided prompt and
timely notice of any claim or suit is given LESSEE, any final judgment rendered
against AUTHORITY for any cause for which LESSEE is liable hereunder shall be
conclusive against LESSEE as to liability and amount.
B. LESSEE shall, at its own expense, keep in force insurance of
the types and in not less than the amounts stipulated on Exhibit C, issued by a
company or companies of sound and adequate financial responsibility, acceptable
to the AUTHORITY and licensed to do business in the State of Florida, insuring
LESSEE and AUTHORITY against all liabilities for death, injuries or
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damages arising out of or in connection with LESSEE's use, occupancy and
operation of the Leased Premises by LESSEE, containing fire and extended
coverage on all equipment and improvements in the amount of the full insurable
value of such equipment and improvements, and shall furnish to AUTHORITY
certificates evidencing such insurance, naming AUTHORITY as an additional
insured thereunder as stipulated on Exhibit C, subject to the limitations set
forth above in respect to AUTHORITY's negligence. Certificates evidencing the
existence thereof, all in such form as the Director of Corporate Services may
require, or binder, shall be delivered to said Director upon the execution of
this Agreement. Each policy or certificate shall contain a valid provision or
endorsement that, "This policy will not be canceled or materially changed or
altered without first giving thirty (30) days written notice in advance thereof
to the Director of Corporate Services, Jacksonville Port Authority, Xxxx Xxxxxx
Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000," sent by certified mail, return receipt
requested.
1. The insurance requirements on Exhibit C shall be subject to
periodic review by the AUTHORITY and adjustment to maintain current industry
standards. Adjustment of insurance requirements on Exhibit C shall apply
without necessity of formal amendment of this Agreement, in accordance with
Section 25 hereof.
SECTION 10. RELOCATION OF LESSEE
During the Term of this Agreement, and any renewal or extension
thereof, should relocation of LESSEE be necessary, AUTHORITY reserves the right
to designate, assign or relocate LESSEE to a comparable location on AUTHORITY's
facilities, so long as LESSEE's operation is not adversely affected by such
relocation. AUTHORITY shall pay for the reasonable costs for such relocation,
unless relocation is requested by LESSEE.
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SECTION 11. MAINTENANCE OF LEASED PREMISES
A. During the term of this Agreement, and any extensions thereof,
LESSEE shall, at its own expense, perform normal maintenance on the Leased
Premises and shall keep the Leased Premises and any improvements thereon in a
reasonably good and clean state of repair and preservation, making all
necessary and proper replacements thereof and repairs thereto.
B. AUTHORITY and its duly authorized officers, employees, agents
or assigns shall have the right, at reasonable times, upon reasonable notice
and during normal working hours, and at any time in case of an emergency, to
enter upon any of the Leased Premises for the following purposes:
1. To inspect the Leased Premises at reasonable
intervals to determine whether the LESSEE has complied and is complying with
the terms and conditions of this Agreement with respect to the Leased Premises.
The right of inspection reserved to AUTHORITY hereunder shall impose no
obligation on AUTHORITY to make inspections to ascertain the condition of
repair or preservation of the said premises and improvements thereon and shall
impose no liability upon AUTHORITY for failure to make such inspections.
2. To perform maintenance and make repairs and
replacements in any case where LESSEE is so obligated and has failed to do so
after reasonable prior written notice, in which event LESSEE shall promptly
reimburse AUTHORITY for all reasonable costs thereof.
3. No such entry as set forth herein on behalf of the
AUTHORITY upon any of the Leased Premises shall cause or constitute a
termination of this Agreement or be deemed to constitute an interference with
the possession thereof by LESSEE.
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SECTION 12. ALTERATIONS AND IMPROVEMENTS
A. LESSEE shall make no improvements to the Leased Premises
without prior agreement and written consent of AUTHORITY, subject to the
provisions set forth in Section 26.
1. Should LESSEE desire to make alterations or
improvements to the Leased Premises, LESSEE shall present the request to the
AUTHORITY, along with plans and specifications for construction. LESSEE shall
not commence with any construction without AUTHORITY's written Notice to
Proceed, subject to the provisions set forth in Section 26.
2. After construction is completed, a set of as-built
drawings will be supplied to the AUTHORITY for its records.
SECTION 13. SURRENDER OF LEASED PREMISES
LESSEE covenants that, at the expiration of the Term of this Agreement
or any extension thereof, or at any earlier termination thereof, it will quit
and surrender the Leased Premises in good state and condition, reasonable wear
and tear excepted. All buildings, fixtures and other improvements to the
Leased Premises made by LESSEE shall remain on the Leased Premises and become
the exclusive property of the AUTHORITY. LESSEE shall, however, forthwith
remove all equipment, trade fixtures and personal property belonging to it, and
any damage caused by the removal of such equipment and/or property shall be
repaired by the LESSEE at its expense.
SECTION 14. ACCESS TO PREMISES
A. LESSEE, its officers, employees, and all other persons or
firms doing business with it shall have unimpeded and unobstructed right of
ingress to and egress from the Leased Premises by means designated and provided
by AUTHORITY.
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B. Access roads or railroads shall, without exception, be in
common with such persons (including at the option of AUTHORITY, the general
public) as AUTHORITY may authorize or permit, and shall be subject to and in
accordance with all applicable local laws and ordinances and such reasonable
rules and regulations as may be adopted by AUTHORITY for the regulation and
control of the users thereof.
C. AUTHORITY may, at any time, close, relocate, reconstruct,
change, alter or modify all such means of access, either temporarily or
permanently; provided, however, that at all times, a reasonably convenient and
adequate alternative means of access is made available to LESSEE.
SECTION 15. ASSIGNMENT AND SUBLETTING
LESSEE shall not assign or transfer any of the rights granted in this
Agreement, nor shall LESSEE subassign or otherwise transfer any interest in or
to the Leased Premises without the prior written consent of AUTHORITY, subject
to Section 26 hereof.
SECTION 16. FORCE MAJEURE
Neither AUTHORITY nor LESSEE shall be deemed to be in breach of this
Agreement by reason of failure to perform any of its obligations hereunder if,
while and to the extent that such failure is due to boycotts, shortages of
materials, labor disputes or troubles, shipwrecks or obstructions to
navigation, acts of God, acts of public enemy, acts of superior governmental
authority, floods, riots, rebellion, sabotage by third parties, or any other
similar circumstances for which they are not reasonably responsible and which
are not within their control.
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SECTION 17. GOVERNING LAW
This Agreement is to be read and construed in accordance with the laws
of the State of Florida.
SECTION 18. NO PERSONAL LIABILITY
No director, officer or employee of either party hereto shall be held
personally liable under the Agreement because of its execution or attempted
execution.
SECTION 19. LAWS, ORDINANCES, AND RULES AND REGULATIONS TO BE OBSERVED
A. LESSEE shall not use or permit the use of the Leased Premises
for any purpose or use other than those authorized by this Agreement, except as
may be mutually agreed upon in writing.
B. LESSEE shall not use or occupy the Leased Premises or permit
same to be used or occupied for any unlawful purpose or for any purpose that is
hazardous on account of fire, explosion, contamination or otherwise.
C. LESSEE shall comply with and shall cause its officers,
employees and any other persons over whom it has control to comply with any and
all municipal, state and federal laws, ordinances, and rules and regulations,
including but not limited to OSHA, USCG, EPA, DER, DNR, DOT and AUTHORITY's
published tariff, and will be held responsible for any violation of same. This
responsibility shall include, but not be limited to, any investigative, clean
up or restoration costs associated with any spill or leakage of any substance
used or handled by LESSEE in its operation.
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D. LESSEE shall be responsible for obtaining all permits and/or
licenses from any of the above entities or agencies as necessary for it to
perform the operation contemplated herein, and shall maintain said permits
and/or licenses current throughout the Term of this Agreement.
E. The AUTHORITY reserves the right to enter upon the Leased
Premises, at reasonable times and upon reasonable notice, to inspect the Leased
Premises in regards to LESSEE's compliance with applicable laws and
regulations, and the terms and conditions of this Agreement.
SECTION 20. SECURITY
AUTHORITY shall provide a twenty-four (24) hour per day, seven (7) day
per week, roving guard service. Any additional security required shall be the
responsibility of LESSEE.
SECTION 21. TERMINATION OF AGREEMENT
A. AUTHORITY, at its option, may declare this Agreement
terminated in its entirety and exercise all rights of re-entry upon the Leased
Premises upon the happening of any one or more of the following events:
1. If the fees, charges or other money payments which
LESSEE herein agrees to pay or is obligated to pay under any other agreement
with AUTHORITY, or any part thereof, shall be unpaid on the date the same shall
become due; or
2. If LESSEE shall file a voluntary petition in
bankruptcy, or make a general assignment for the benefit of creditors, or if
LESSEE is adjudicated bankrupt; or
3. If any act occurs which operates to deprive LESSEE
permanently of the rights, powers and privileges necessary for the proper
conduct and operation of its business; or
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4. If LESSEE abandons and ceases to use the Leased
Premises for a period of sixty (60) days at any one time, except when such
abandonment and cessation is due to fire, earthquake, strike, action of any
government, default of AUTHORITY, or other cause beyond LESSEE's control; or
5. If LESSEE shall use or permit the use of the Leased
Premises at any time for any purpose for which the use thereof at that time is
not authorized by this Agreement or by a subsequent written agreement between
the parties hereto, or shall use or permit the use thereof in violation of any
law, rules or regulations to which LESSEE has agreed in this Agreement to
conform; or
6. If LESSEE shall be in violation of any of the
provisions of the Agreement with respect to the Leased Premises.
B. LESSEE, in addition to any other remedies which it may have,
at its option, may declare this Agreement terminated in its entirety upon the
happening of any one or more of the following events:
1. If a court of competent jurisdiction issues an
injunction against AUTHORITY or any successor thereto preventing or restraining
the use of the Leased Premises in its entirety, or any part thereof, which may
be used by LESSEE for its operations, and if such injunction remains in force
for a period of ninety (90) days or more; or
2. If the Leased Premises become unusable in whole or
substantial part for the purposes herein contemplated, and the AUTHORITY does
not terminate the use thereof, pursuant to an option reserved to it in this
Agreement, and does not proceed as promptly as
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reasonably practicable with the repairs necessary to restore the Leased
Premises to its condition prior to the occurrence of the damage; or
3. If AUTHORITY fails to provide and maintain means for
unobstructed ingress and egress to and from the Leased Premises in accordance
with the provisions of this Agreement; or
4. If by violation of the terms and conditions contained
herein, AUTHORITY shall substantially interfere with the use by LESSEE of the
Leased Premises for the purposes for which the use thereof at this time is
authorized by this Agreement.
C. Notwithstanding anything to the contrary contained in this
Agreement, no termination declared by either party shall be effective unless
and until not less than thirty (30) days have elapsed after written notice to
the other party specifying the date upon which such termination shall take
effect and the cause for which it is being terminated, and if such termination
is by reason of a default under this Agreement for which termination is
authorized, specifying such default with reasonable certitude. No such
termination shall be effective if such cause or default shall have been cured
or obviated during such thirty (30) day period, or in the event such cause or
default, by its nature, cannot be cured within such thirty (30) day period,
such termination shall not be effective if correction of the cause or default
is commenced within said thirty (30) days and completed as promptly as
reasonably practicable. Provided, however, that if LESSEE has not paid rental
fees within the thirty (30) day period specified in Section 5, Paragraph
A.3.(b.) hereof, AUTHORITY must give LESSEE notice of its intent to terminate
this Agreement within fifteen (15) days thereafter; however, if payment is made
within said period of fifteen (15) days, said notice shall be of no force or
effect.
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SECTION 22. WAIVERS
No waiver by either party at any time of any of the terms, conditions,
covenants, or agreements herein shall be deemed or taken as a waiver at any
time thereafter of same or any other term, condition, covenant or agreement
herein contained, nor of the strict and prompt performance thereof. No delay,
failure or omission of AUTHORITY to re-enter the Leased Premises, and no
subsequent acceptance by AUTHORITY of fees then or thereafter accrued, and no
delay, failure or omission of either party to exercise any right, power,
privilege or option arising from any default, shall impair any such right,
power, privilege or option or be construed to be a relinquishment thereof, or a
waiver of such default or acquiescence therein; and no notice by either party
shall be required to restore or revive any option, right, power, remedy or
privilege after waiver by such party of default in one or more instances. No
option, right, power, remedy or privilege of either party shall be construed as
being exhausted or discharged by the exercise thereof in one or more instances.
Each and all of the rights, powers, options or remedies given to either party
by this Agreement shall be cumulative, and no one of them shall be exclusive of
the other or exclude any remedies provided by law, and the exercise of one
right, power, option or remedy shall not preclude the exercise of any other
right, power, option or remedy, except in those cases where it is expressly so
provided.
SECTION 23. ENTIRE AGREEMENT: MODIFICATIONS
A. This Agreement constitutes the entire present agreement
between AUTHORITY and LESSEE with respect to the Leased Premises.
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B. No change in, modification of or supplement to this Agreement
shall be valid or enforceable unless it is enacted in writing and signed by the
duly authorized representative of AUTHORITY and LESSEE.
SECTION 24. INVALID PROVISION
In the event any covenant, condition or provision herein contained is
held to be invalid by any court of competent jurisdiction,the invalidity of any
such covenant, condition or provision shall not materially prejudice either
party thereto in its respective rights and obligations contained in the valid
covenants conditions or provisions in this Agreement.
SECTION 25. EXHIBITS
A. All exhibits or schedules referred to herein, or which from
time to time may be referred to in any duly executed amendment hereto, are by
such reference incorporated herein and shall be deemed a part of this Agreement
as if fully set forth herein. Any exhibit or schedule incorporated herein may
be adjusted without the necessity of formal amendment of this Agreement. Upon
adjustment of any exhibit or schedule, a revised exhibit or schedule shall be
prepared by the AUTHORITY and executed by the parties hereto. Each successive
exhibit or schedule, as it supersedes the previous exhibit or schedule as to
its effective date, shall be deemed a part of this Agreement at all times.
B. Any revised exhibit or schedule, or any amendment to this
Agreement, shall not become effective until it is filed with the FMC, subject
to Section 2 hereof.
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SECTION 26. WITHHOLDING REQUIRED APPROVALS
Whenever approval, notice or consent by the AUTHORITY or LESSEE is
required by the terms of this Agreement, no such approval, notice or consent
shall be unreasonably requested, withheld or denied.
SECTION 27. NOTICES, CONSENTS AND APPROVALS
All notices, consents and approvals required or authorized by this
Agreement shall be validly and sufficiently served, given or made if mailed,
postage prepaid, to:
AUTHORITY: Jacksonville Port Authority
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
LESSEE: Trailer Bridge Company, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
or in such other place as either party shall in writing designate in the manner
provided herein. Such notices, consents and approvals shall be deemed to be
served as of the date of mailing.
SECTION 28. PLACE OF PAYMENTS
Payments required hereunder shall be made to the Jacksonville Port
Authority, Director of Corporate Services, Xxxx Xxxxxx Xxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000.
SECTION 29. HEADINGS
The headings of the sections of this Agreement are included only as a
matter of convenience and for reference and in no way define, limit or describe
the scope or intent of the provisions and shall not be construed to affect in
any manner the terms and provisions hereof or the interpretation or
construction thereof.
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SECTION 30. COUNTERPART
This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original so long as it bears the signature of both
parties.
SECTION 31. LIENS AND ENCUMBRANCES
LESSEE agrees to keep the Leased Premises free and clear of all liens
and encumbrances arising or growing out of the use and occupancy of the Leased
Premises by LESSEE, its agents, contractors and subcontractors.
SECTION 32. WARRANTIES AND REPRESENTATIONS
A. LESSEE warrants and represents that it has corporate power to
enter into this Agreement and to perform all acts herein required to be
performed by it and that its execution and delivery hereof have been duly
authorized by all necessary corporate action.
B. AUTHORITY warrants and represents that it has corporate power
to enter into this Agreement and to perform all acts required of it hereunder,
and that its execution and delivery hereof have been duly authorized by all
necessary corporate action.
SECTION 33. INTERRUPTION OF SERVICES OR FACILITIES
AUTHORITY does not warrant that any of the utilities, services or
facilities mentioned herein will be free from interruptions caused by repairs,
renewals, improvements, alterations, strikes, lockouts, accidents, inability of
AUTHORITY to obtain utilities or supplies or other cause or causes beyond the
reasonable control of AUTHORITY. Except as otherwise provided, no such
interruption of utilities, services or facilities shall be deemed an eviction
or disturbance of the use or possession of the Leased Premises or any part
thereof by LESSEE, or render AUTHORITY
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liable to LESSEE for damages or relieve LESSEE from performance of its
obligations under this Agreement.
SECTION 34. INSPECTION OF RECORDS
Each party hereto, at its expense and upon reasonable notice shall
have the right to inspect the books, records and other data of the other party
relating to the provisions and requirements hereof, provided such inspection is
made during regular business hours.
SECTION 35. EMINENT DOMAIN
If all or any part of the Leased Premises shall be taken or condemned
under power of eminent domain by a higher governmental authority, either before
or during the Term of this Agreement, then, and in that event, the Term of this
Agreement shall cease and terminate from the date when the possession of the
part so taken shall be required, and LESSEE shall have no claim or interest in
or to any award of damages for such taking.
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IN WITNESS WHEREOF, the parties have caused these presents to
be signed by their duly authorized officers and their official or corporate
seals to be affixed hereto and attested as of this 1st day of August, 1991.
Signed, sealed and delivered JACKSONVILLE PORT AUTHORITY
in the presence of:
/s/ Xxxxxxx Xxxxxxxxx By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------- -------------------------------
(Signature) (Signature)
Title Deputy Managing Director
-----------------------------
(Please print or type)
/s/ Xxxx X. Xxxxxx Attest /s/ Xxxxx Xxxxxx
-------------------------- ----------------------------
(Signature) (Signature)
Title Director of Corporate Services
-------------------------------------
(Please print or type)
Signed, sealed and delivered TRAILER BRIDGE COMPANY, INC.
in the presence of:
/s/ Xxxxxxx X. Xxxxxxx By:/s/ X. X. Xxxxxxxx
-------------------------- -------------------------------
(Signature) (Signature)
Title President
-----------------------------
(Please print or type)
/s/ Xxxxxxx X. Xxxxxxx Attest /s/ Xxxx X. XxXxxx
-------------------------- -----------------------------------
(Signature) (Signature)
Title /s/ Secretary
---------------------------
(Please print or type)
Approved as to legality and form:
/s/ Xxx Xxxxx
--------------------------
Assistant Counsel
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Trailer Bridge Company, Inc.
/ / Ten (10) acres
/ / First Right of Refusal Area
Dated: August 1, 1991
Initials
PEB XXX
--- ---
Lessee Authority
EXHIBIT A
MAP OF PROPERTY
23
EXHIBIT B
SCHEDULE OF FEES AND CHARGES
TRAILER BRIDGE COMPANY, INC.
DATED: AUGUST 1, 1991
I. TERM: Five (5) years, commencing _________________, subject to
Section 2 hereof.
II. RENTAL RATES:
A. Leased Premises: ANNUAL RATE: MONTHLY RATE:
Ten (10) acres @
$13,000/ac/yr $13,000.00 $10,833.33
B. First Right of Refusal Area: Lessee shall have a first right of
refusal on approximately seven (7) contiguous acres located south of
the Leased Premises. Should this parcel become available, and Lessee
exercises this first right of refusal, this Exhibit B shall be revised
to reflect the inclusion of the contiguous parcel into the Leased
Premises, subject to Section 25 hereof, at the then current rental
rate of this Agreement.
III. THROUGHPUT: includes wharfage and terminal use
$28.00 per loaded container
IV. DOCKAGE:
A. Cargo Barge - $2.67 per lineal foot of the vessel, assessed and
handled in accordance with Authority's published tariff or its
reissue. Tariff charges shall also apply to idle dockage of cargo
barges.
B. Ramp Barge - $2.67 per lineal foot of the vessel, assessed during
stevedoring operations for a minimum of twenty-four (24) hours, and in
six (6) hour increments thereafter. There shall be no dockage charge
when the Ramp Barge is docked at the approved lay berth, provided
however, the stipulations of Section 4.B. are observed.
V. OTHER FEES AND CHARGES: Any other fees and charges due and payable to
the Authority by Lessee and not stipulated by this Agreement shall be
assessed
24
and handled in accordance with Authority's published tariff or its
reissue, unless otherwise agreed to in writing.
TRAILER BRIDGE COMPANY, INC. JACKSONVILLE PORT AUTHORITY
/s/ X. X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
FMC Approval Date of FMC Number
--------------------- --------------------------
EXHIBIT B
25
EXHIBIT C
SCHEDULE OF INSURANCE REQUIREMENTS
TRAILER BRIDGE COMPANY, INC.
DATED:_____________________________
1. WORKERS COMPENSATION
Part I State requirement
Part II
Each Accident $ 500,000
Disease-Policy Limit $ 500,000
Disease-Each Employee $ 500,000
2. COMMERCIAL GENERAL LIABILITY-Authority shall be named an additional
insured.
Combined Single Limit of Liability
General Aggregate $1,000,000
Each Occurrence $1,000,000
3. COMPREHENSIVE AUTOMOBILE LIABILITY-Coverage shall include owned,
non-owned and hired automobiles.
Combined Single Limit
of Liability $1,000,000
TRAILER BRIDGE COMPANY, INC. JACKSONVILLE PORT AUTHORITY
/s/ X. X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------- -----------------------
EXHIBIT C
26
ACKNOWLEDGEMENT OF SIGNATURES
STATE OF FLORIDA )
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 1st day of
August, 1991, by Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxx, the Deputy Managing
Director and the Director of Corporate Services, respectively, of the
JACKSONVILLE PORT AUTHORITY, a public body corporate and politic of the State
of Florida, on behalf of the AUTHORITY, and their business address is Xxxx
Xxxxxx Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Signature)
Notary Public
(NOTARIAL SEAL) State of Florida at Large
My Commission Expires: May 31, 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 19th day of
July, 1991, by X. X. Xxxxxxxx and Xxxx X. XxXxxx, the President and the
Secretary, respectively, of TRAILER BRIDGE COMPANY, INC., a Delaware
corporation, on behalf of the corporation, and their business is Transshipment
of goods.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Signature)
Notary Public
(NOTARIAL SEAL) State of New York at Large
No. 00-0000000
Qualified in Queens County
My Commission Expires: July 31, 1991
27
C E R T I F I C A T I O N
State of Florida
County of Xxxxx
I, the undersigned authority, hereby certify that the foregoing is a
true and correct copy of the instrument presented to me by the Jacksonville
Port Authority as the original of such instrument.
WITNESS my hand and official seal this 1st day of August, 1991.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
NOTARIAL SEAL Notary Public
State of Florida
My Commission expires: 5/31/93
