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HomeMy WebLinkAboutRes1986-061 . . . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 86-57 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APProVING THE RECEIPT OF A MUNICIPAL ASSISTANCE GRANT FRCM THE STATE OF ALASKA FOR THE COST ASSOCIATED WITH DIESEL PCWER GENERATION ASSISTANCE WHEREAS, Chapter 130, SLA 1986, Section 141, has appropriated a $100,000 grant for the purpose of cost associated with diesel pcMer generation assistance; and WHEREAS, AS 37.05.315 requires that the City accept this grant by ordinance or resolution of Council; NCW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The grant of $100,000 for the purpose of cost associated with diesel power generation assistance is hereby accepted. Section 2. This resolution shall take effect irnrrediately upon its adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 23 day of June , 1986 THE CITY OF SEWARD, ALASKA ~ - . C ~ -'____ ~~ HARRY GIESELER, ~OR AYES: NOES: ABSENT : ABSTAIN: BOOHER, GIESELER, GILLESPIE, HILTON, MEEHAN & SIMUTIS NONE SCHOLL NONE -1- . . . . CITY OF SEWARD, AIASKA RESOLUTION NO. 86-57 ATI'EST: (City Seal) . APPROVED AS ill FORM: HUGHES, THORSNESS, GANTZ, PCWELL AND BRUNDIN, Attorneys for the City of Seward, Alaska 7~()/~ Fred B. Arvidson, City Attorney -2- . . . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 86-61 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING AN AMENDMENT ill LEASE NO. RE-045 WITH THE U.S.D.I. NATIONAL PARK SERVICE WHEREAS, on June 24, 1985, the city did lease to the National Park Service a parcel of land within the Seward Small Boat Harbor waterfront area for a new headquarters/visitors center; and WHEREAS, the Park Service had agreed as a part of its lease to fund and construct a public restroan facility to be maintained by the city as a replacerrent for the substandard facility existing in the harbor area; and WHEREAS, the Park Service has obtained the funding and de- signed the building but cannot proceed with a bid for construction until the Park Service has management authority over the selected site; and WHEREAS, in addition to the restroan facility, it is the intent of the Park Service to landscape and provide decks, boardwalks, interpretive displays and other public anenities in and around the visitors center; and WHEREAS, in order to accorrrrodate these public uses, it is necessary to expand the Park Service lease site from :!:6,396 square feet to a total of :!:15,550 square feet; and WHEREAS, it is in the public interest to waive lease fees for the additional :!:9,154 square feet of lease site needed for the public restroams and other anenities; NCW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to execute Amendnent No. 1 to the Park Service Lease No. RE-045, attached and incorporated herein by reference. Section 2. It is in the public interest to waive the lease fee for the :!:9, 154 square feet of the lease site considered to be for public anenities including, but not limited to, restrooms, interpretive displays, landscaping, decks, flagpoles, etc. Section 3. This resolution shall take effect thirty (30) days following approval and posting as required by law. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 23 day of June , 19 86 . -1- . . . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 86-61 AYES: NOES: ABSENT: ABSTAIN : ATTEST: THE CITY OF SEWARD, ALASKA ~/'" ..-fU.,..i. ESELER, MAYOR BOOHER, GIESELER, GILLESPIE, HILTON, MEEHAN & SIMUTIS NONE SCHOLL NONE APPROVED AS ill FORM: HUGHES, THORSNESS, GANTZ, PCMELL AND BRUNDIN, Attorneys for the City of Seward, Alaska (City Seal) Fre~(!(~y Attorney -2- , \ . . . . . LEASE AGREEMENT day of This Agreement ----- :J U 1\1 ~ /" u' N ;!., { ~ made and entered into this , 1985, by and between the CITY OF SEWARD, a home rule municipal corporation located in the Kenai Peninsula Borough, State of Alaska, hereinafter referred to as "Ci ty" and the Uni ted States of America, acting by and through the U.S.D.I., NATIONAL PARK SERVICE, KENAI FJORDS NATIONAL PARK, hereinafter referred to as "Lessee." WIT N E SSE T H: WHEREAS, City and Lessee are mutually interested in the development of harbor related facilities in the Small Boat Harbor area within the City of Seward, Alaska; and WHEREAS, Lessee has demonstrated to City an intention to expand and develop a visitor's center and National Park Headquarters to serve visitors to Seward; and WHEREAS, the City has received a proposal from Lessee for development of City owned land; and WHEREAS, City and Lessee have reached agreement on the land City is to lease to Lessee, the general terms and conditions of such a lease; FOR AND IN CONSIDERATION OF THE RENTS, COVENANTS, AND CONDITIONS HEREIN CONTAINED, CITY AND LESSEE AGREE AS FOLLOWS: ARTICLE I. DEMISE. City leases to Lessee, and Lessee leases from the City that certain real property herein called -1- . . . . . "Leased Land, " situated in Seward Alaska, consisting of approximately 6,396 square feet, as shown on Exhibit "A" attached hereto and as more particularly described as follows: BEGINNING at the intersection of Fourth Avenue and "0" Street and using the centerline of Fourth Avenue from "0" Street to Van Buren Street being North and the Basis of Bearings; Thence North 1,445 feet more or less; Thence East) '7{j feet more or less to the TRUE POINT OF BEGINNING; Thence East 78 feet more or less; Thence South 82 feet more or less; thence West 78 feet more or less; thence North 82 feet more or less to the TRUE POINT OF BEGINNING; containing 6,396 square feet more or less; All within Block 6 of Oceanview Subdivision in the protracted Section 3, Township 1 South, Range 1 West, Seward Mer id ian, Alaska. (More precisely shown on Exhibit "A" attached hereto.) ARTICLE II. CITY'S WARRANTY OF QUIET ENJOYMENT. Lessee, upon paying the rent and other charges herein prov ided for and observing and keeping the covenants, conditions and terms of this Lease on Lessee's part to be kept or performed, shall peacefully and quietly enjoy possession of the Leased Land during the term of this Lease without hindrance by, from or through City, subject, however, to any encumbrances created or caused by Lessee. ARTICLE III. LEASED LAND ACCEPTED "AS IS." Lessee acknowledges that he has inspected the Leased Land and accepts the same "as is" and without reliance on any representations or warranties of City, or agents of City, as to the physical condition thereof, except as expressly herein provided. Lessee -2- . . . . . is aware of the easements as shown on the attached Exhibit "B" and agrees to lease the property subject thereto. ARTICLE IV. USE OF LEASED LAND. 1. the Leased Land for the Lessee may use construction and operation of a National Park headquarters and visitor's center. Lessee understands that construction and operation of such a facility is a major consideration for City's agreement to lease the Leased Land. Lessee agrees that he will not operate any other business on the Leased Land without the consent of the City, and City may withhold its consent if Lessee does not construct and commence operation of a National Park headquarters and visitors center. 2. No assignment or sublease shall be permitted unless approved in writing by the Ci ty. Any sublease shall be expressly subject and subordinate to this lease and the rights of the City hereunder. ARTICLE V. LEASE TERM. 1. Commencement and Expiration. The term of thi s Lease shall be thirty (30) and ending 2"3, ]U;:/E' 2. Options and years, commencing on ,2'-1 JUNE 1')8S' 20 IS" B8S.~ Extensions. At the expiration of this lease, by inaction of the parties, the lease shall be deemed to continue from month to month. This lease will not terminate until notice in writing is given by either party to the other, not later than six months prior to the expiration of -3- . . . . . the lease term. If the City decides to continue leasing the si te covered by this lease, Lessee is granted first right of refusal to lease said land under any new conditions negotiated at that time. 3. Holdover. If Lessee shall hold over after the expiration of the Lease Term, such tenancy shall be from month to month on all the terms, covenants and conditions of this Lease. 4. Surrender of Possession. (a) Subject to the provisions of Article XI below with respect to restoration of buildings and improvements, upon expiration of the Lease Term, whether by lapse of time or otherwise, Lessee shall promptly and peacefully surrender the Leased Land. (b) Upon the expiration of the Lease Term or any sooner termination of thi s Lease, Lessee agrees to execute, acknowledge and deliver to City a proper instrument in wri ting, releasing and qui t-claiming to the City all right, title and interest of Lessee in and to the Leased Land and all improvements thereto not removed by Lessee as provided herein. ARTICLE VI. RENT. The rental for the Leased Land shall be determined and paid as follows: 1. Rent shall accrue from the date of complete execution of this lease. Yearly installments shall be paid in -4- . . . . . arrears no more than 12 months from the date of execution of schedule shall apply to each this lease. This installment succeeding year. 2. The rental rate shall be determined as follows: Initial Lease rate will be $ .34 per square foot per year for the first five (5) year period. Thereafter, not less than six (6) months prior to the expiration of every fifth lease year the Lessor and Lessee shall jointly employ an independent MAl certified appraiser to determine the fair market rental value of the Leased Land exclusive of Lessee's improvements at the highest and best use of the Leased Land and without consideration of Lessee's intended use of the land unless that use is coincidentally the highest and best use of the Land. Said appraisal shall be done in standard narrative report form in accordance with "Uniform Appraisal Standards for Federal Land Acquisition." Provided the appraisal meets the criteria set forth in said "Standards" and is reviewed and approved by a qualified Agency Review Appraiser, the approved rental rate determined by such appraisal shall apply for the next succeeding five lease years. The rental rate shall thus be adjusted every five lease years, commencing- with- th~ leas~ year -- 1990, and every fifth year thereafter. In the event the appraisal to adjust said rental rate does not meet the "Standards" or is otherwise deficient, and negotiations to secure compliance are not successful, a -5- . . . . . second appraisal will be obtained by the Lessee at Lessee's expense. The Ci ty and Lessee hereby agree to accept the resul ts of a reviewed and approved appraisal which meets the above referenced standards and estab1 ishes the rental rate for the succeeding five lease years. During any period of negotiation to establish the revised rental rate, the rate of the previous lease year shall prevail. When the revised rental rate is established it shall be made retroactive to the anniversary date of the effective five year increment of this lease. 3. Additional Rent and City's Right to Cure Lessee's Defaults. All costs and expenses which Lessee assumes or agrees to pay pursuant to this Lease or to any mortgage or other encumbrance upon the Leased Land or Lessee's leasehold interest shall at City's election be treated as additional rent and, in the event of nonpayment, City shall have all rights and remedies herein provided for in the case of nonpayment of rent or of a breach of condition. If Lessee shall default in making any payment required to be made by Lessee, or shall default in performing any term, covenant or condition of this Lease or of any such mortgage or other encumbrance on the part of Lessee to be performed which shall involve the expenditure of money by Lessee, City at City's option may, but shall not be obligated to,. make such payment or, on behalf of Lessee, expend such sum -6- . . . . . as may be necessary to perform and fulfill such term, covenant or condition, and any and all sums so expended by the City with interest thereon at the maximum rate established by the Department of the Treasury from the date of such expenditure until repaid, shall be (and shall be deemed to be) additional rent and shall be repaid by Lessee to the City, on demand, but no such payment or expenditure by the City shall be deemed a waiver of Lessee's default nor shall it affect any other remedy of the City by reason of such default. 4. Late Payment Penalty. Rental payment due but not received by the due date shall accrue interest at the rate established by the Department of the Treasury until such payment is made. ARTICLE VII. ASSESSMENTS. 1. Lessee to Pay Assessments. Lessee, dur ing the lease term, agrees to pay directly to the public authori ties charged wi th collection thereof any and all assessments levied on the Leased Land for a part of or all of the cost of any publ ic work or improvement assessed according to benefi t found by the levying authority to accrue therefrom to the Leased Land, including any charges for anti-pollution, environmental, ecological or any other public purposes. If an option is given to pay such assessment (s) in installments, Lessee may elect to pay the same in installments, and in such case Lessee shall be -7- . . . . . liable only for such installments as shall accrue during the Lease Term. 2. Contest. Lessee shall have the right to contest or review any assessment, levy, fee, water or sewer charges or rents, or any other governmental charges which Lessee is obI igated to pay. Such proceedings shall, if insti tuted, be conducted promptly at Lessee's own expense and free from all expense to City. The legal proceedings herein referred to shall include appropriate certiorari proceedings and appeals from any orders and judgments therein, but all such proceedings shall be begun as soon as reasonably possible after the imposi tion or assessment of any contested items and shall be prosecuted to final adjudication with reasonable dispatch. In the event of any reduction, cancellation or discharge, Lessee shall pay the amount that shall be finally levied or assessed against the Leased Land or adjudicated to be due and payable and, if there shall be any refund payable by the governmental authority with respect thereto, Lessee shall be e:ltitled to receive and retain the same subject, however, to apportionment as provided in Paragraph 3 above during the first and last years of the lease term. City at City's option may, but shall not be obligated to, contest or review by legal proceedings or in such other manner as may be legal and at City's own expense any tax, assessment, levy, fee, water or sewer rents or charges, or any other governmental charge aforementioned, which shall not be contested -8- . . . . Part 28, furnished 102. the Copies City Sec. to . of all prior such bonds shall to commencement construction. (d) Lessee, upon commencement of permissible building or construction activities on the Leased Land, shall continue such activities through to completion with diligence and continuity, subject to availability of funds. 2. Lessee's Ownership of Trade Fixtures, Machinery and Equipment. It is expressly understood and agreed that any and all trade fixtures, machinery and equipment of whatsoever nature at any time constructed, placed or maintained upon any part of the Leased Land by Lessee shall be and remain the property of Lessee or its tenants as their interests may appear and may be removed or replaced at any time dur ing the lease term, prov ided Lessee or its tenan ts repa i r any and all damage to the Leased Land resulting from such removal or replacement. 3. Lessee's Right to Remove Improvements and Ownership Thereof. Lessee shall have the right to remove any buildings or improvements constructed or placed upon the Leased Land by Lessee, prior to the expiration of the Lease. Any buildings or improvements not removed prior to expiration of the Lease shall become the property of City without the payment of any compensation to Lessee. ARTICLE XI. LIENS. 1. Prohibition of Liens on Fee or Leasehold permi t any liens to be Interest. Lessee shall not suffer or -10- be of . . . . . or reviewed as aforesaid, and unless Lessee shall promptly join in such contest or review and pay all costs therein, the Ci ty shall be entitled to receive and retain any refund payable by the governmental authority with respect thereof. 3. Lessee to Pay Utility Charges. Lessee shall pay to be paid all charges for water, heat, gas sewers, and any and all other uti li ties used upon Land throughout the lease term, including any or cause electricity, the Leased connection fees. ARTICLE VIII. CONSTRUCTION BY LESSEE. 1. Lessee's Right to Build--General Condi tions. Lessee shall have the right at any time and from time to time during the lease term to erect, maintain, alter, remodel, reconstruct, rebuild and other following improvement (s) conditions: on the and replace Leased Land, building (s) subject to the (a) The cost of any construction, reconstruction, demolit~on, or of any change, alteration or improvements, shall be borne and paid for by Lessee. (b) The Leased Land shall at all times be kept free of mechanic's materialmen's, and any other liens, as hereinafter more specifically provided. (c) Any building contractors employed by Lessee or its sub1essees shall be appropriately bonded, as a minimum in accordance with Federal Acquisition Regulations, -9- . . . . . filed against the fee estate of the Leased Land nor against Lessee I s leasehold interest in the Leased Land nor against any buildings or improvements on the Leased Land by reason of any work, labor, services or materials supplied or claimed to have been supplied to Lessee or anyone holding the Leased Land or any part thereof through or under Lessee. 2. Removal of Liens by Lessee. If any lien shall be recorded against the Leased Land, or any improvements thereof, Lessee shall cause the same to be removed, or, in the alternative, if Lessee in good faith desires to contest the same, Lessee shall be privileged to do so. Lessee agrees to indemnify, defend, and save the City harmless from all liability for damages occasioned thereby and shall, in the event of a judgment of foreclosure upon said lien, cause the same to be discharged and removed prior to the execution of such judgment. 3. Notice of Non-Responsibility. The City may, as contemplated by Alaska Statutes 34.35.065 (as now enacted or hereinafter amended) give notice of non-responsibility for any improvements constructed or made by Lessee on the Leased Land. ARTICLE X. INDEMNITY. Except for claims arising out of acts caused by the negligence of the Ci ty or its representatives, Lessee agrees to protect, indemnify, defend and save harmless the City from and against any and all liability arising from acts or omissions of any nature whatsoever of Lessee's officers, servants, employees, contractors, tenants, -11- . . . . . agents or invitees causing injury to or death of persons or loss of or damage to property during the Lease Term, and from any expense incident to defense of and by the City therefrom. If any action or proceeding is brought against the City by reason of any such occurrences, the City shall notify Lessee in writing of such action or proceedings, whereupon Lessee at Lessee's expense may elect to resist or defend such action or proceedings by counsel approved in writing by the City, such approval not to be withheld unreasonably. ARTICLE XI. CARE OF LEASED LAND, ACCESS OF THE CITY. 1. Care of Leased Land. Lessee at its own cost and expense shall keep the entire Leased Land and all buildings and improvements which at any time may be situated thereon in good, clean and tidy condition and repair during the Lease Term. 2. Other Access Rights of the City. The City and its agents or representatives shall have the right to enter into and upon the Leased Land during reasonable hours for the purpose of inspecting the Leased Land and all buildings and improvements thereon. 3. Avoidance of Prescriptive 'Rights. Lessee shall take __such act;J9n as maL-J2~ neces_sary ~_ p~eserve the Ci ty' s ti tle and ownership of the Leased Land free and clear of any public or private rights of way, easements or other interests acquired by prescriptive use or otherwise than as permitted under this Lease, including but not limited to the posting of -12- . . . . . thoroughfares, walkways and parking areas so as to preserve the right of private ownership therein and prevent any adverse rights thereto accruing through prescriptive use or otherwise than as permitted hereunder. ARTICLE XII. COMPLIANCE WITH LAWS 1. Compliance wi th Laws. Lessee shall comply wi th all applicable laws, ord inances and regulations of duly constituted public authorities now or hereafter in any manner affecting the Leased Land or any buildings, structures or improvements situated thereon, whether or not any such laws, ordinances or regulations which may be hereafter enacted involve a change of policy on the part of the governmental body enacting the same. Lessee further agrees it will not permit any unlawful occupation, business or trade to be conducted on said premises or any use to be made thereof contrary to any law, ordinance or regulation as aforesaid with respect thereto. 2. Contest. Lessee may by appropriate proceedings conducted at Lessee's own expense, contest in good fa i th the validity or enforcement of any law, ordinance or regulation, provided Lessee diligently pursues such contest to a final determination by a court, department or governmental authority or body having jurisdiction thereof; provided that if the City may become liable in any manner for damages, penalties, fines or costs by reason of Lessee's failure to comply with any such law, ordinance or regulation during Lessee's contest thereof, then, -13- . . . . . as a condition precedent to the commencement and continuation of such proceedings, Lessee shall save harmless and indemnify the City against liability for any such damages, penalities, fines or costs. At the option of the City, it may at its expense contest the validity or enforcement of any such law, ordinance or regulation. ARTICLE XIII. EMINENT DOMAIN. 1. Interest of Parties in Condemnation. In the event the Leased Land or any part thereof shall be taken for publ ic purposes by condemnation as a result of any action of proceeding in eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, the interests of the Ci ty and Lessee in the award of consideration for such transfer and the effect of the taking or transfer upon this Lease shall be as provided by law. In the event the extent of the taking makes impracticable the continued operation of the National Park headquarters and visitor's center, upon written notification by Lessee this Lease and all of the right, title and interest thereunder of Lessee shall cease on the date title to such Land so taken or transferred vests in the condemning authority. 2. Partial Taking--Continuation of Lease. In the event the taking or transfer of a part of the Leased Land leaves the remainder of the Leased Land in such location and in such form, shape or size, or so accessible as to be effectively and -14- . . . . ~ practicably usable in the opinion of the Lessee and the City for the purpose of operation thereon of Lessee's business, this Lease shall terminate and end as to the portion of the Leased Land so taken or transferred as of the date title to such portion vests in the condemning authori ty and the condemning authority enters into possession but shall continue in full force and effect as to the portion of the Leased Land not so taken or transferred. ARTICLE XIV. DEFAULT AND REMEDIES. 1. Default and Termination (a) If the rent or any other charge shall be in arrears for a period of thirty (30) days, or (b) If Lessee fails to take reasonable steps to keep and perform any of the covenants or conditions of this Lease within thirty (30) days after written notice of default, or (c) If the leasehold interest hereunder is abandoned by Lessee, then Ci ty may at City's option at once without further notice to Lessee or any other person, terminate this Lease. Upon termination of this Lease as aforesaid, or at the expiration of this Lease and upon the termination of said Lease by its terms, Lessee shall at once surrender possession of the Leased Land to the City and remove all Lessee's effects therefrom and may remove all Lessee's buildings and other improvements, and Lessee -15- . . . . . shall have no further rights hereunder or with respect to the Leased Land. If such possession be not immediately surrendered, the Ci ty may forthwi th enter into and upon and repossess the Leased Land and expel Lessee or those claiming under Lessee without being deemed guilty in any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and in such event Lessee expressly waives the service of notice of any intention so to terminate this Lease or to retake the Leased Land and waives service of any demand for payment of rent or for possession and for any and every other notice or demand prescribed by any law and hereby waives any claim for damages by reason of such repossession. 2. Damages. No such expiration or termination of this Lease shall relieve Lessee of its liability and obligations under this Lease, and such liability and obligations shall survive any such expiration or termination. In the event of any expiration or termination, whether or not the Leased Land, or any part thereof, shall have been relet, Lessee shall pay to the City the net rent and all other charges required to be paid by Lessee up to the time of such expiration or termination of this Lease, and thereafter Lessee, unti 1 the end of wha t would have been the term of this Lease in the absence of such expiration or termination, shall be liable to the City for, and shall pay to -16- . . . the Ci ty, as and for liquidated and agreed current damages for Lessee's default. (a) The equivalent of the amount of the rent and charges which would be payable under thi s Lease by Lessee if this Lease were still in effect, less (b) The net proceeds received by the City from leasing or reletting the Leased Land and improvements thereon after deducting all of Ci ty' s expenses in connection with such leasing and reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and expenses of preparation for such reletting. Lessee shall pay such current damages (herein called "deficiency") to the City monthly, and the City shall be entitled to recover from Lessee each monthly deficiency as the same shall arise. At any time after any such expiration or termination, whether or not the City shall have collected any monthly deficiencies as aforesaid, the City shall be entitled to recover from Lessee, and Lessee shall pay to the City, on demand, as and for liquidated and agreed final damages for Lessee's default, an amount equal to the difference between all rent reserved hereunder for the unexpired portion of the Lease Term and the then fair and reasonable net rental value to the City of the Leased Land for the same period. In the computation . . -17- . . . . . of such damages, the difference between an installment of rent becoming due hereunder after the date of termination and the fair and reasonable rental value to the Ci ty of the Leased Land for the period for which such installment was payable shall be discounted to the date of termination at the rate of six percent (6%) per annum. If the Leased Land, or any part thereof, be leased or relet by the Ci ty for the unexpired portion of the Lease Term, or any part thereof, before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such leasing or reletting shall be prima facie evidence of the fair and reasonable rental value for the part or the whole of the premises so leased or relet dur ing the term of the leasing or reletting. Nothing herein contained shall limit or prejudice the right of the City to prove and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which such damages are to be proved, wheth~r or not such amount be greater, equal to, or less than, the amount of the difference referred to above. 3. Accumulation of Remedies. Each right and remedy of the Ci ty provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the -18- . . . . . exercise by the City of anyone or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the City of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise. 4. Appointment of Receiver. Upon the commencement of any suit or action by the City against Lessee pursuant to any remedy available to the City upon Lessee's default hereunder or at any time thereafter and during the pendency of such suit or action, any court of competent jurisdiction upon the application of the Ci ty may at once and wi thout notice to Lessee, its successors or assigns, or any person or persons or tenant or tenants or m.ortgagee or person claiming any security interest through Lessee, appoint a receiver to collect the rents and profits arising out of the Leased Land, the buildings and improvements thereon and the subleases pertaining thereto and apply such rents and profits to the payment and satisfaction of lessee's obI iga tions under this Lease, including wi thout limitation the payment of the rent due the City hereunder, first deducting all proper charges and expenses attending the execution of such trusts, and to have any balance remaining held by such receiver for disposition in accordance with any judgment -19- . . . . . or decree entered herein or as may be from time to time directed by said court. ARTICLE XV. GENERAL PROVISIONS. 1. Estoppel Certificates. Either party shall at any time and from time to time, upon not less than thirty days' prior written request by the other party, execute, acknowledge, and deliver to such party, or to its designee, a statement in writing certifying that this Lease is unamended and in full force and effect (or, if there has been any amendment thereof, that the same is in full force and effect as amended and stating the amendment or amendments), that there are no defaults existing (or, if there is any claimed default, stating the nature and extent thereof); and stating the dates to which the rent and other charges have been paid in advance. It is expressly understood and agreed that any such statement delivered pursuant to this section may be relied upon by any prospective assignee or tenant of the Leasehold Estate, or estates, or Lessee or any prospective purchaser of ~he estate of the City, or any lender or prospective assignee of any lender on the security of the Leased Land or the fee estate, or any part thereof, and any third person. 2. Conditions and Covenants. All the provisions of this Lease shall be deemed as running with the Land, and shall be construed to be "conditions" as well as "covenants," as -20- . . . . . though the words specifically expressing or imparting covenants and conditions were used to each separate provision. 3. No Waiver of Breach. No failure by either the City or Lessee to insist upon the strict performance by the other of any covenant, agreement, term or condition of this Lease or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this Lease, but each and every covenant, condition, agreement and term of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach. 4. Time of Essence. Time is of the essence of this Lease and of each provision. 5. Computation of Time. The time in which any act provided by this Lease is to be done is computed by excluding the first day and including the last, unless the last day is a Sa turday, Sunday or a hol iday, and then it is al so excluded. The term "holiday" shall mean all holidays as defined by the statutes of Alaska. 6. Successors in Interest. Each and all of the covenants, conditions and restrictions in this Lease shall inure to the benefi t of and shall be binding upon the successors in interest of City and the authorized assignees, transferees, tenants, licensees and other successor-in-interest of Lessee. -21- . . . . . 7. Entire Agreement. This Lease contains the entire agreement of the parties with respect to the matters covered by this Lease, and no other agreement, statement or promise made by any party, or to any employee, officer or agent of any party, which is not contained in this Lease shall be binding or valid. 8. Governing Law. This Lease shall be governed by, construed and enforced in accordance with the laws of the State of Alaska and Federal Statutes. 9. Partial Invalidity. If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 10. Relationship of Parties. Nothing contained in this Lease shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between the City and Lessee; and neither the method of computation of rent nor any other provisions contained in this Lease nor any acts of the parties, shall be deemed to create any relationship between the City and Lessee other than the relationship of lessor and lessee. 11. Interpretation. The language in all parts of this Lease shall in all cases be simply construed according to its fair meaning and not strictly for or against the City or -22- . . . . . Lessee. Unless otherwise provided in this Lease, or unless the context otherwise requires, the following rules of construction shall apply to this Lease: (a) Number and Gender. In this Lease, the neuter gender includes the masculine and the feminine, and the singular number includes the plural; the word "person" includes corporation, partnership, firm or association wherever the context so requires. (b) Mandatory and Permissive. "Shall," "will" and "agrees" are mandatory; "may" is permissive. (c) Captions. Captions of the Articles, Sections and subsections of this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease. 12. Amendment. This Lease is not subject to amendment except in writing executed by all parties hereto. 13(a}. Delivery of Notices and Rent--Method and Time. All notices, demands or requests from one party to another shall be delivered in person or be sent by mail, certified or registered, postage prepaid, to the addresses stated in this Section, and shall be deemed to have been given at the time of delivery or making. -23- . . . . . 13 (b) . Payment of ~ent. All rents and other sums payable by Lessee to the City shall be by check, payable to the City, delivered in person or mailed to the City at the following address: City Clerk City of Seward P.O. Box 167 Seward, AK 99664 and shall be deemed to have been paid when received at such address. 13(c). Notices to the City. All notices, demands and requests from Lessee to the City shall be given to the City at: City Clerk City of Seward P.o. Box 167 Seward, AK 99664 and to such other persons at such addi tiona1 addresses as the City may specify, but not exceeding four in the aggregate. 13 (d) . Notices to Lessee. All notices, demands or requests from the City to Lessee shall be given to Lessee at: UP-Dr National Park Service Kenai Fjords National Park P.O. Box 1727 Seward, AK 99664 l3(e). Change of Address. Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Section. 14. Broker's Commission. Each of the parties represents and warrants that there are no claims for brokers' -24- . . . . . commissions or finders' fees in connection with the execution of this Lease. 15. Attorneys' If either hereto Fees. party institutes any suit or action to collect the rent reserved or to enforce any covenant or agreement hereof or to obtain any of the remedies herein provided, the prevailing party shall be entitled to such sum of money as the court may adjudge reasonable as costs and attorneys' fees in such sui t, action or proceeding, including any appeal taken by either party in such suit, action or proceeding. 16. Minerals. Nothing in this Lease shall authorize Lessee to exercise any rights in regard to oil, oil rights, minerals, mineral rights, natural gas, natural gas rights, and/or other hydrocarbons by whatsoever name that may be within or under the Leased Land. The City reserves the right to whipstock or directionally drill and mine from land other than the Leased Land oil or gas wells, tunnels and shafts into, through or across the subsurface of the Leased Land, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunne1, equip, maintain, repair, deepen and operate any such wells or mines, wi thout, however, the right to disturb the use of the surface or to drill or mine through the upper 500 feet of the subsurface of the Leased Land. -25- . . . . . 17. Good Faith. The terms of this obligation of good faith on the City and performance and enforcement thereof. 18. Election to Terminate by Ci ty. Lessee, as partial consideration for this Lease, expressly undertakes (1) to provide space (approximately 12 feet by 15 feet - 180 square feet), only during the Annual Silver Salmon Derby, to the Silver Salmon Food Booth (operated by local non-profit organizations) as a public service. Food booth operators are responsible for all food handling and health certi fications. Lessee is hereby released of all liability associated with use and operation of the food booth; (2) to design, install and maintain a sewage lift station capable of injecting sewage into the City's force main interceptor line and capable of handling the Park Service headquarters and visitor's center; (3) to, at such time as funds are available, design and construct a public restroom facility, with a sewage lift station capable of injecting sewage into the Ci ty' s forcp main sewer interceptor line, on property provided by the City, adjacent to the leased property described herein; the maintenance of said public restroom shall be the responsibility of the City; said design will be submitted for review and approval by the City; (4) to relocate, at Lessee's expense, any water, power and telephone utility lines which would be disturbed by the construction of the Lessee's development; (5) to provide at Lessee's expense, removal of the Lease impose an Lessee in the -26- . . . . . existing "Sl>Lu6" EJL~h) reed B60Lh/8~J::~':l~ By:l.:]:",=,," il'C1YJil'lg~ ~ concrete slab, unless otherwise disposed of by the City; (6) to provide design and overall development information, pertaining to the Park headquarters and visi tor's center for review by the City. If Lessee fails to meet any of these requirements in a timely manner, the City may, by giving written notice to Lessee, elect to terminate this Lease. All further rights, duties and obligations hereunder receipt by Lessee of such notice. 19. Election to Terminate by shall cease upon Lessee. If an earthquake during making the hereof, the term occurs construction, financing, operation an of maintenance or improvement(s), building(s) or other structure(s) on the Leased Land impractical or impermissible, then in such event, provided the Lessee be in good standing hereunder, the Lessee may, in its uncontrolled discretion, elect to terminate this Lease upon: (a) Giving written notice to the City; and (b) Making payment to the Ci ty for any accrued rents; and (c) Satisfying or otherwise releasing the City's fee from any encumbrance(s) created as the result of Lessee's actions. All further rights, duties and obligations hereunder shall cease upon receipt by the City of such notice of election to terminate and the fulfilling of conditions (b) and (c). -27- . . . . . ARTICLE XVI. RECORDING, EXECUTION, COUNTERPARTS. 1. Recording. the execution of thi s Lease, execute, acknowledge and record a with The parties may, concurrently memorandum of lease. Following recording, the memorandum lease shall be attached to this Lease. 2. Counterparts. the parties in two counterparts, each of which shall be deemed to be an original. 3. Execution. This Lease has been executed by This Lease has been executed by the parties on the day and year first above written. LESSOR: THE CITY OF SEWARD, ALASKA LESSEE: UNITED STATES OF AMERICA, USDI, NATIONAL PARK SERVICE By: ~~Jg~ Robert L. Peterson Acting Regional Director, Alaska -28- . . . . . ATTEST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, Alaska ,,~~;-. "U2 t1~~:J~Jxt '~'\A'I , k. i ~~ f~~'~,~~, -e1{y? ~~ ~ :: . "". ,,' ~'"- ", ~ - , c .~ ":.g (CitY::$ea:l) .' '. ,. : ~ . l. ..... ~ ow- .' '" . .. n.-" ,~:. . ".1'1 ...~Io'" - .R _ n V,v". 1 :;':,' . ~ ~,' " v ~ . <.: ., . to. ~ ,'\ , r ".' -J ^'" "~",4 rt::~ O~ .. \.r- ,'" -~~ r ~ ~ "~nm-rr:,1':' 7~ (jj~ Fred B. Arvidson, City Attorney STATE OF ALASKA S5. THIRD JUDICIAL DISTRICT ....-tt. THIS IS TO CERTIFY that on this Z-y \ day of :S-\')Wt= , 19~.-, before me, the undersigned, a Notary Public in and for the State of Al~ska, duly commissioned and sworn as such, personally appeared .!~lM () A ["Af'?Jfd ( , City Manager of the City of Seward, known to me and to me known to be the person who executed the foregoing instrument on behalf of the City of Seward, and who acknowledged that he signed the same freely and voluntarily for the uses and purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the day and year first hereinabove written. ~1 W.Pn)~ TARY PUBLtC in and for~a My Commission Expires: 2 81 STATE OF ALASKA ) ) ss. ) THIRD JUDICIAL DISTRICT ----.lLA/t..L...--" TH I S P1ff1ic in and CERTIFY that on this :(ncti- day of before me, the undersigned, a Notary State of Alaska, duly commissioned and IS TO , 19 gs- , for the -29- . . . . . sworn as such, personally appeared ~ d...a.a. _ " known to me and to me known to be the person who executed th,~ foregoing instrument, and who acknowledged that he signed the same freely and voluntarily for the uses and purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the day and year first hereinabove written. ;9, /ii~ / -30- qfJ~' 1.:.,,0" - P~8LIC. ,-:; c..CES S - ~ ".. -..I \) (- FA S r 78.!" ~ I z ~ I!~ ? ~ ~ ,. ~I -i ~ 'Z. III / f7i 'i) ! Ie 3~" SF CD I <Q \? m ~ J- I" .; N J- ,.. ':J , ~q. C) ~ \I) - WES7' 7S! 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