Board of Com'Rs of Orleans v. M/V Belle of Orleans
| Decision Date | 25 May 2006 |
| Docket Number | No. Civ.A. 06-0017-C.,Civ.A. 06-0017-C. |
| Citation | 439 F.Supp.2d 1178 |
| Parties | BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, Plaintiff, v. M/V BELLE OF ORLEANS, in rem, and Belle of Orleans, L.L.C., in personam, Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Frank A. Milanese, Gerard G. Metzger, New Orleans, LA, Blane H. Crutchfield, Hand Arendall, L.L.C., Mobile, AL, for Plaintiff.
J. Kelly Duncan, Richard D. Bertram, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Glenn G. Goodier, New Orleans, LA, Ray M. Thompson, Mobile, AL, for Defendants.
This cause is before the Court on the memorandum of claimant Belle of Orleans, L.L.C. regarding post arrest hearing (Doc. 29), plaintiff's motion for order directing issuance of writ of foreign attachment (Doc. 31),1 the supplemental memorandum of the Belle of Orleans, L.L.C. (Doc. 33), plaintiff's memorandum regarding post-arrest hearing (Doc. 34), the reply memorandum of Belle of Orleans, L.L.C. (Doc. 35), the supplemental and reply memorandum of the plaintiff (Doc. 38), the complaint, as amended (Does. 1 & 30), the arguments of the parties on March 23, 2006, and the supplemental memoranda (with attachments) of the parties filed, at the request of the Court (Doc. 39), on April 21, 2006 (Does. 42 & 44); see also (Doc. 43) and April 26, 2006 (Does. 45-46). The parties have consented to the exercise of jurisdiction by the undersigned for all purposes, including disposition of the foregoing pleadings. (Doc. 49 ()); see also (Doc. 50 (order of reference)) Upon a consideration of the contents of all pleadings, and attachments, and the parties' arguments, this order is entered pursuant to 28 U.S.C. § 636(c).
1. A lease agreement was entered into by and between the plaintiff/lessor Board of Commissioners of the Orleans Levee District (hereinafter, "Board of Commissioners") and Star Casino, Inc. on February 18, 1993, regarding certain leased property that was to be developed and used exclusively for the operation of a riverboat gaming facility and attendant facilities. (Doc. 29, Exhibit B-1, LEASE AGREEMENT, at 11 IV.A. ("The leased premises is to be used solely and exclusively for the operation of a riverboat gaming facility, a passenger terminal, related services and attendant parking facilities."))
The Lessor agrees to lease to the Lessee and the Lessee agrees to rent from the Lessor, the following described property (the Leased Property):
The certain portions of land, wharf and water bottom in the South Shore Harbor Marina located in the Parish of Orleans, east of Lakefront Airport as more fully set out and outlined in red in Exhibit A and containing 10.71 acres more or less, is described as follows:
Parcel # 1: The proposed mooring berth for the riverboat casino and the right of exclusive use of the adjacent wharf area.
Parcel # 2, which encompasses the small parking area adjacent to the mooring berth.
Parcel # 3: The site of the proposed passenger terminal building on Exhibit A attached.
Parcel # 4: The approximately 6.2 acre undeveloped land area between South Shore Harbor Boulevard on the north and the south boundary of the South Shore Harbor development.
Parcel # 6D: So much of 6D as to complete approximately 1.75 acres out of Parcel 6D which is the land bounded by South Shore Harbor Boulevard on the north side of South Shore Harbor Boulevard.
. . . . .
The term of this lease shall be for ten (10) years with four (4) ten (10) year options to renew; the primary term will commence on the date that all permits, licenses or other authority from the State of Louisiana to conduct a riverboat gaming operation are obtained, but in no case later than six months after application for permit was made.
. . . . .
IV.
A. The leased premises is to be used solely and exclusively for the operation of a riverboat gaming facility, a passenger terminal, related services and attendant parking facilities.
B. The Lessee shall be required to pay for all improvements to the Leased Property required to accommodate its total operation including water, electrical, sewerage, drainage or other services. All lease sites will be metered separately.
. . . . .
D. Responsibility for the extension of current services for water, sewerage, drainage, electrical and other services to the leased sites shall be the responsibility of the Lessor. The responsibility for any increases in capacity of the utility services required by Lessee shall be the responsibility of Lessor up to $1 million subject to the approval of Lessor. Roadway improvements as described in the Design Memorandum for South Shore Harbor Boulevard, Phase I, shall be the responsibility of Lessor.
E. If requested by Lessor, the Lessee shall advance the costs required to complete the off-site infrastructure improvements described in IV D above, without interest; and Lessor will reimburse the Lessee the cost of all such off-site infrastructure improvements quarterly until fully amortized from the rental payments due under the lease.
. . . . .
XIX.
Should the Lessee at any time violate any of the conditions of this lease, including failure to pay rent, or discontinue the use of the premises for the purpose for which they are rented, or fail to pay other expenses assumed under this lease, punctually at maturity, as stipulated, and should violation continue for a period of fifteen (15) days after written notice has been given Lessee, then, at the option of the Lessor the rent for the whole unexpired term of this lease at once becomes due and exigible; and Lessor shall have the further option at once to demand the entire rent for the whole term, or to immediately cancel this lease, all without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting hereto and expressly waiving the legal notices to vacate the premises.
. . . . .
XXI.
Both parties, irrespective of any negligence whatsoever on the part of either party, mutually agree to hold one another completely free and harmless from any loss or damage to one another's business or property, if said loss or damage is, would be, or could be, totally or partially covered by any type of real or personal property insurance and/or time element coverage (business interruption, profits and commissions, leasehold or rent) payable to either party as an insured, and both parties further agree to waive any and all rights of subrogation or recovery against one another that would inure to the benefit of their respective property insurance carrier(s).
. . . . .
XXIV.
Lessee assumes full responsibility for all operation of the riverboat, including being aware of all weather conditions.
XXV.
Lessee recognizes that the premises are outside of flood protection and is exposed to high tides and hazardous weather which may prevail from time to time in Lake Pontchartrain. Lessor assumes no responsibility for damages or other consequences that may result from natural hazards and/or the lack of flood protection. Lessee agrees to evacuate the leased premises upon notice from Lessor of an emergency that threatens the life and safety of the public.
(Id. (emphasis supplied))
2. On August 27, 1993, the Board of Commissioners and Star Casino entered into the First Amendment to their earlier lease for the primary purposes of changing the name of the lessee to Showboat Star Partnership and adding additional property to the leased premises, specifically Parcel 5A. (Doc. 29, Exhibit B-5)
3. On February 15, 1995, Showboat Star Partnership assigned and transferred to Belle of Orleans, L.L.C., all of its right, title and interest under the lease agreement dated February 18, 1993, as amended on August 27, 1993, and as further amended contemporaneously with the assignment. (Doc. 29, Exhibit B-3 at 1; see also id. at 2 ()) The contemporaneously executed Second Amendment to Lease specifically acknowledges that the lessee is Belle of Orleans. L.L.C. (Doc. 29, Exhibit B-4, at 3) and otherwise reads, in relevant part, as follows:
WHEREAS, the parties herein now desire to further amend said lease in the following respects:
1.
By deleting Paragraph I of the Original Lease and substituting in its place the following:
I.
The Lessor agrees to lease to the Lessee and the Lessee agrees to rent from the Lessor Parcels 1, 2, 3, 4, and 6E located at South Shore Harbor and set forth on the plan entitled Key Map of Parcels 1, 2, 3, 4, 5A and 6E, South Shore Harbor, dated March 24, 1993 and revised February 8, 1995 and prepared by BFM Corporation, Registered Professional Land Surveyors, and attached hereto and made a part hereof as Exhibit "1". Said parcels 1, 2, 3, 4 and 6E are more fully described on Exhibits 3 through 7, respectively, which Exhibits are attached hereto and made a part hereof (the Leased Property).
. . . . .
5.
On page 6, paragraphs IV(D) and (E) are deleted. Lessee agrees and acknowledges that Lessor has previously satisfied all of its obligations for funding and completing improvements to the Leased Property and Lessor shall not be obligated for any additional costs whatsoever.
. . . . .
8.
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