HomeMy WebLinkAboutRes1980-044
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CITY OF STIJARD, ALASKA
RESOLUTION No. 80-44
A RESOLUTION PROVIDING FOR THE DISPOSAL OF TRACTS 3 AND
4 OF THE SEWARD WATERFRONT TRACTS AND AUTHORIZING THE
CITY MANAGER TO NEGOTIATE THE LEASE THEREON
WHEREAS, the City of Seward is the owner of that certain
real property located within the City of Seward known as Tracts 3
and 4 of the Seward Waterfront Tracts, Seward Recording District,
Third Judicial District, State of Alaska;
WHEREAS, the City Council hereby finds that this
property has not previously been dedicated to any public purpose;
and
WHEREAS, this property has earlier been leased to
Northern Stevedoring and Handling Corporation under a lease
agreement, a copy of which is attached hereto as Exhibit 1 and
incorporated herein by reference; and
WHEREAS, the earlier lease covering the property was
found to be inadequate in several respects including its rental
adjustment clause; and
WHEREAS, the Lessee, Northern Stevedoring and Handling
Corporation, has indicated a willingness to accept the terms of
the lease agreement attached here as Exhibit 2 and incorporated
herein by reference; and
WHEREAS, the City Council hereby finds that it is not
in the public interest to dispose of this land by lease by public
offering or sale; and
WHEREAS, the City Council hereby further finds that it
is in the public interest for the City to continue the leasehold
of Northern Stevedoring and Handling Corporation according to the
terms set forth in the revised lease described as Exhibit 2
herein:
NOW, THEREFORE, BY IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD that:
Section 1. The City Manager is hereby authorized and
directed to renegotiate the lease of tracts 3 and 4, Seward
Waterfront Tracts to Northern Stevedoring and Handling
Corporation consistent with the terms set forth in Exhibit 2
attached hereto.
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Section 2. The City Manager is hereby authorized and
directed to execute a lease consistent with the terms described
above and to perform such other actions as are necessary to carry
out the purpose of this resolution.
PASSED AND APPROVED
SEWARD, ALASKA, this 14th
CITY COUNCIL OF THE CITY OF
J 1980.
AYES:
NOES:
ABSENT:
CAMPBELL, GILLESPIE, HUGLI, LEER, SORIANO AND SWARTZ
NONE
CRIPPS
ATTEST:
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APPROVED AS TO FORM:
'~7,,~/44~~~/
Ranald H. Jarrell
City Attorney
(City Seal)
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LEASE
THIS AGREEMENT, made the~dJ day of L/) {/:U/i-{-
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1980, by and between the CITY OF SEWARD, a municipal
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corporation, organized and existing under the laws of the State
of Alaska, hereinafter referred to as the "City", and NORTHERN
STEVEDORING AND HANDLING CORPORATION, hereinafter referred to
as "Lessee",
WIT N E SSE T H:
----------
That in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. PROPERTY DESCRIPTION. The City hereby leases to
Lessee the following-described real property and improvements
placed thereon prior to January 1, 1970, located in the City of
Seward, Third Judicial District, State of Alaska:
All of Tracts 3 and 4, City of Seward Waterfront
Tracts, as shown on the survey of same prepared by
Hewett V. Lounsbury and Associates, dated September 1,
1969, and presently filed with the City of Seward City
Clerk.
2. TERM. The term of this lease is twenty (20)
years, commencing with the first day of January, 1980, and
extending to and including the last day of December, 1999.
3. RENT. Lessee will pay to the City a rent of
TWENTY-FOUR THOUSAND DOLLARS ($24,000.00) per year. The rent
shall be paid annually in advance, and shall be due not later
than the 1st day of February for that year. Rent payments
shall be made at the office of the City Clerk, City of Seward,
or such other place as the City in writing may designate.
4. RENTAL ADJUSTMENT
(a) The annual rental set forth in the preceding
numbered paragraph shall be adjusted and become effective on
each fifth anniversary date of this agreement. The adjusted
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annual rental shall be the annual rental amount for each of the
five years following the effective date of that particular
rental adjustment.
(b) Not less than ninety (90) days before the
anniversary date of the agreement at which time a rental
adjustment is to be made City shall employ at its own expense
an independent MIA certified appraiser to determine the fair
rental value of the premises; such determination shall not take
into account the capital improvements to the premises
constructed by Lessee after January 1, 1970, but shall take
into account only the premises exclusive of such improvements.
(c) Not less than sixty (60) days before the
effective date of a rental adjustment City shall notify Lessee
of the amount of the rental adjustment and shall furnish Lessee
a copy of the appraiser's written appraisal report. Failure of
City to meet the deadline for engaging the appraiser and
notifying Lessee of-the rental adjustment shall not prevent the
rental adjustment from becoming effective on the prescribed
anniversary date.
(d) If Lessee does not object to the rental
adjustment, that rental adjustment shall apply. If Lessee
objects to the amount of the rental adjustment, it must give
City written notice of objection on or before the effective
date of the adjustment. Lessee shall then engage a second
independent MIA certified appraiser at its own expense to make
a second appraisal of the fair rental value of the premises.
However, City shall have the right in its absolute discretion
to disapprove of Lessee's selection of the second appraiser;
Lessee shall not engage a second appraiser to which City has
made written objection within ten (10) days after receipt of
Lessee's notice of intent to engage such second appraiser.
(e) Lessee's objection to the rental adjustment
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and engagement of a second appraiser shall not postpone
Lessee's obligation to pay the annual rental as described in
City's notice of rental adjustment based on the first
appraisal. City shall deposit into a separate trust account
the amount of rental increase as fixed by the first appraisal
until the question of rental adjustment is finally resolved.
(f) If the second appraisal reflects a fair
rental value which varies from the first appraisal by no more
than ten percent (10%), then the rental adjustment as set forth
in City's notice of rental adjustment shall be the adjusted
rental for the 5-year period. However, if the second appraisal
reflects a fair rental value which varies from the first
appraisal by more than ten percent (10%), then the rental
adjustment for the 5-year period shall be the numerical average
of the two appraisals, which shall be determined by adding the
two annual rental amounts from the two appraisals and dividing
the sum thereof by the number two.
5. IMPROV~IENTS.
(a) Any improvements to the property shall be
removed by the Lessee, at Lessee's expense, at the time of the
termination of this lease. However, upon request by Lessee,
the City may allow such improvements to remain on the property
at the termination of the lease, in which case all title and
interest in such improvements shall pass to the City without
obligating the City to compensate Lessee in any way for them.
Any and all improvements to the property may be made without
prior Council approval.
(b) Prior to the issuance of a building permit
for any improvements, Lessee shall furnish the City with a copy
of a Contract Bond covering one hundred percent (100%)
performance and one hundred percent (100%) payment of labor and
materials, in which the City is named as co-insured, in such
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form as is acceptable to the City, which will save the City
free and harmless from and indemnify it against all claims for
performance and/or labor or materials furnished in connection
with the construction of improvements on the leased premises,
and the cost of defending against such claims, including
reasonable attorney's fees.
6. UTILITIES, TAXES AND LICENSES. In addition to the
rent, the Lessee shall pay before delinquency all charges
levied against the property, including utility bills and
special assessments for public improvements; all license and
excise fees, and occupation taxes covering the business
conducted on the premises; all taxes on property of the Lessee
on the leased premises and any taxes on the leasehold interest
created by this lease agreement; and suffer no lien or other
encumbrance to attach to the property and remain thereon which
might adversely affect the interest of the City.
7. LIENS. Lessee will not permit any mechanip 's,
laborer's or materialmen's liens to stand against the leased
premises or improvements for any labor or material furnished to
Lessee or to Lessee's agents, contractors, or sublessees, in
connection with work performed or claimed to have been
performed on said premises or improvements by or at the
direction or sufference of Lessee, provided, however, Lessee
shall have the right to contest the validity or amount of any
such lien or claimed lien. In the event of such contest,
Lessee shall give to the City reasonable security as may be
demanded .by the City to insure payment thereof and prevent any
sale, foreclosure or forfeiture of the premises or improvements
by reason of such non-payment. Such security need not exceed
one and one-half times the amount of such lien or claimed
lien. Such security may be accomplished by filing a lien
release bond. On final determination of such lien or such
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claim for lien, Lessee will immediately pay any judgment
rendered with all property costs and charges and shall have
such lien released or judgment satisfied at Lessee's own
expense.
It is expressly agreed, however, that Lessee shall not
be required to pay, discharge, or remove any tax (including
penalties and interest), assessment, tax lien, forfeiture or
other imposition or charge upon or against such premises, or
any part thereof, or the improvements at any time situated
thereon, so long as Lessee shall in good faith contest the same
or the validity thereof by appropriate legal proceedings, and
shall give to Lessor prompt notice in writing of such contest
at least ten (10) days before any delinquency occurs, and said
legal proceedings shall operate to prevent the collection of
the tax, assessment, forfeiture, lien or imposition so
contested, and/or the sale of said premises, or any part
thereof, to satisfy the same, and that pending any such legal
proceedings Lessor shall not have the right to pay, remove or
discharge the tax, assessment, forfeiture, lien or imposition
thereby contested, provided Lessee shall, prior to the date
such tax or imposition is due and payable, have given such
reasonable security as may be demanded from time to time by
Lessor to insure such payments and prevent any sale or
forfeiture of the lease premises by reason of such non-payment,
not to exceed one and one-half times the amount of such tax,
assessment, forfeiture or lien, and all penalties and interest
thereon. In the event of any such contest, Lessee promises and
agrees, within five (5) days after the final determination
thereof adversely to Lessee, to fully pay and discharge the
amounts involved in or affected by such contest, together with
any penalties, fines, interest, costs and expenses that may
have accrued thereon or that may result from any such action by
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Lessee.
Any proceeding or proceedings for contesting the
validity or amount of taxes, assessments, or other public
charges, or to recover back any tax, assessment or other
imposition paid by Lessee, may be brought by Lessee in the name
of the City or in the name of Lessee, or both, as Lessee may
deem advisable; however, if any such proceeding be brought by
Lessee, Lessee shall indemnify and save harmless the City
against any and all loss, cost or expense of any kind that may
be imposed upon Lessor in connection therewith.
8. ASSUMPTION OF LIABILITY AND INDEMNITY. Lessee
agrees that it will indemnify and save the City harmless from
any and all liability, damage, expense, lawsuits, claims or
judgments arising from injury to person or property on the
leased premises, which arise out of the act, failure to act, or
negligence of any person other than the City or its lawfully
acting agent. Lessee agrees to assume the defense, and pay the
costs thereof and any judgment which may be entered, of any
action which may be brought" against the City because of
Lessee's operation.
9. INSURANCE.
Lessee agrees to
maintain proper
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liability insurance in
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regard to-both the
with a reputable insurance company or
companies satisfactory to the City, in the minimum limits of
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) (per person) and
THREE HUNDRED THOUSAND DOLLARS ($300,000.00) (per accident or
occurrence) for bodily injury and death, and in the minimum
limit of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for
property damage, and thereafter in such increased amounts as
the parties may from time to time mutually agree upon, to
indemnify the City and Lessee against any such liability or
expense. The City shall be named as one of the insured, and
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shall be furnished with a copy of such policy or policies of
insurance or appropriate certificate of such insurance and
coverage.
10. REMOVAL OF IMPROVEMENTS. The parties agree that
any above-ground installations or improvements now existing or
hereafter placed on the leased premises by Lessee shall be and
remain the property of Lessee, and that upon the termination of
this lease for any cause the Lessee shall have the right to
remove any such surface installations or improvements at any
time prior to ninety (90) days after such termination;
PROVIDED, HOWEVER, that after removal of any such
installations or equipment, the City may require that the
Lessee return the premises to its condition before such
installation or improvements;
PROVIDED, FURTHER, that if such above-ground
installations or improvements shall not be removed on or before
the expiration of. said 90-day period, the City, at its option,
may either retain the said installations and improvements, or
may remove, sell or destroy the same at the expense of the
Lessee, and the Lessee hereby agrees to pay the reasonable net
expense so incurred by the City. All underground installations
shall remain the property of the City upon termination of this
lease for any cause;
PROVIDED, HOWEVER, that the Lessee, with the prior
written consent of the City, may sell any and all of the
installations and improvements belonging or constructed by the
Lessee, to any assignee or sublessee to whom this lease may be
assigned or sublet in accordance with the provisions of
paragraph 3 above, and paragraph 17, following;
PROVIDED, FURTHER, that no such sale and assignment or
sublease shall be allowed for the purpose of curing or
obviating any willful breach of lease covenants by said Lessee,
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nor shall any such sale and assignment or sublease operate to
extend the termination date of this lease or any extension
thereof as hereinafter set forth.
11. TERMINATION - RIGHTS OF MORTGAGE. If Lessee at
any time during the term of this lease (and regardless of the
pendency of any bankruptcy, reorganization, receivership,
insolvency or other proceedings, in law, in equity, or before
any administrative tribunal, which have or might have the
effect of preventing Lessee from complying with the terms of
this lease) shall (a) fail to make payment of any installment
of rent or of any other sum herein specified to be paid by
Lessee, or (b) fail to observe or perform any of Lessee's other
covenants, agreements or obligations hereunder, and if any such
default shall not be cured as to (a) within sixty (60) days
after such failure to make payment, or within fifteen (15) days
after notice thereof, whichever is less, or as to (b) within
sixty (60) days after the City shall have given to Lessee
written notice specifying such default or defaults, Lessee
shall not have commenced to cure such default and proceed
diligently to cure the same, or if Lessee, finally and without
further possibility of appeal or review:
a. If adjudicated a bankrupt or insolvent, or
b. has a receiver appointed for all or
substantially all of its business or assets on
the ground of Lessee's insolvency, or
c. has a trustee appointed for it after a
petition has been filed for Lessee's
reorganization under the Bankruptcy Act of the
United States known as the Chandler Act or any
future law of the United States having the same
general purpose,
or if Lessee shall make an assignment for the benefit of its
creditors, then in any such event, the City shall have the
right to its election, then or at any time thereafter, while
such default or defaults shall continue, to give Lessee notice
of the City's intention to terminate this letting and all
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Lessee's rights hereunder, on a date specified in such notice,
which date shall not be less than ten (10) days after the date
of giving of such notice, and on the date specified in such
notice, the term of this letter and all rights granted Lessee
hereunder shall come to an end as fully as if such date were
the year of the whole term hereinabove specified, and Lessee
here covenants peaceably and quietly to yield up and surrender
to the City said leased premises and all structures, buildings,
improvements and equipment located thereon, and to execute and
deliver to Lessor such instrument or instruments as shall be
required by Lessor, as will properly evidence termination of
Lessee's rights hereunder or its interest therein. In the
event of termination of this letting as in this paragraph
provided, the City shall have the right to repossess the leased
premises and such structures, buildings, improvements and
equipment, either without process of law or through any form of
suit or proceedings~ as well as the right to sue for such
termination, including damages arising out of any breach on the
part of Lessee. The City shall also have the right without
resuming possession of the premises or terminating this lease,
to sue for and recover all rents and other sums, including
damages, at any time and from time to time accruing hereunder.
For the purpose of interim or permanent financing of
the construction of improvements upon the leased premises and
for no other purpose, Lessee shall have the right to encumber
by mortgage, deed of trust or other appropriate instrument,
Lessee's interest in the leased premises and in and to this
lease, provided such encumbrance pertains only to such
leasehold interest and does not pertain to or create any
interest in Lessor's interest in or title to the lease premises.
If Lessee shall mortgage this leasehold in accordance
with the foregoing provisions, Lessor agrees that so long as
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any such leasehold mortgage shall remain unsatisfied of record,
and written notice of such leasehold mortgage is given to
Lessor, the following provisions shall apply:
(a) Except as provided in (b) hereof, there
shall be no cancellation, surrender, acceptance of surrender,
or modification of this lease, nor a merger of the fee and
leaseholder estates, without the prior consent in writing of
the leaseholder mortgagee;
(b) The City shall, upon serving upon Lessee any
notices of default, or any other notice under the provisions of
or with respect to this Lease, simultaneously serve a copy of
such notice upon the, holder of such leaseholder mortgage and no
notice of such default shall be deemed to have been duly given
unless and until a copy thereof has been so served upon the
leasehold mortgagee. The leasehold mortgagee shall thereupon
have ten (10) days more time than is given to Lessee to remedy
or cause to be remedied the defaults complained of, and Lessor
shall accept such performance by or at the instigation of such
leasehold mortgagee as if the same had been done by Lessee;
(c) Anything herein contained notwithstanding,
while such leasehold mortgage remains unsatisfied of record, if
any event or events of default shall occur, which under any
provision of the lease shall ~ntitle the City to terminate this
lease, and if before the expiration of ten (10) days of the
date of service of said termination notice, such leasehold
mortgagee shall have paid to the City all rent and additional
rent and other payments herein provided for, and then in
default, and shall have complied or shall engage in the work of
complying with all of the other requirements of the lease, if
any, which are then in default, then in such event the City
shall not be entitled to terminate this lease and any notice of
termination theretofore given shall be void and of no effect.
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12. CONDEMNATION. In the event the lease premises or
any part thereof, shall be condemned and taken for a public or
a quasi-public use, then upon payment of any award of
compensation arising from such condemnation, there shall be
such division of the proceeds, such abatement in rent payable
during the term or any extension of the term hereof, and such
other adjustments as the parties may agree upon as being just
and equitable under all the circumstances regardless of any
technical rule of law. If Lessor and Lessee are unable to
agree within thirty (30) days after such an award has been paid
into court upon what division, annual abatement in rent, and
other adjustments are just and equitable, the dispute shall be
determined by arbitration.
13. SUBSIDENCE. That the City will not be
responsible for any washout, subsidence, avulsion, settling or
reliction to the leased premises, not for any injury caused
thereby to the property of the Lessee or any sublessee,or that
of any other person. The City is not obligated to replace,
refill or improve any part of the leased premises during
Lessee's occupancy, in the event of such washout, subsidence,
avulsion, settling or reliction.
14. NOTICES,. That all notices hereunder may be
delivered or mailed, if mailed, they shall be sent by certified
or registered mail to the following respective addresses:
To City:
City Manager
City of Seward
Post Office Box
Seward, Alaska
337
99664
To Lessee:
Northern Stevedoring & Handling Corporation
Post Office Box 497
Seward, Alaska, 99664
or to such other respective addresses as either party hereto
may hereafter from time to time designate in writing. Notices
sent by mail shall be deemed to have been given when properly
mailed, and the postmark affixed by the United States Post
-11-
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Office shall be conclusive evidence of the date of mailing.
15. CITY'S RIGHT OF ENTRY. The City reserves the
right to enter upon any portion of the property subject to this
lease, during reasonable hours, for any purpose.
16. CITY'S REMEDIES. No remedy herein conferred upon
or reserved to the City is intended to be exclusive of any
other remedy herein or by law provided, but each shall be
cumulative and shall be in addition to every other remedy given
in this lease or available under the law.
17. SUBLEASE AND ASSIGNMENT. The Lessee may sublet
or grant license for use of portions of the property for
marine-oriented purposes without approval of the City. The
lease may not be assigned without prior written approval of the
City Council, but such written approval shall not be
unreasonably withheld.
18. OPTIONS AND EXTENSIONS. There are no renewal
options extending tQ Lessee under this lease, but by inaction of
the parties, the lease shall be deemed to continue from year to
year. 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 the lease term or any yearly
extension thereof.
19. MODIFICATION OF EARLIER LEASE. This agreement
modifies the agreement dated June 11, 1970. The terms of the
June 11, 1970 agreement may be used as an aid in interpreting
this agreement and determining its purposes. To the extent
that this agreement or any part of it is invalid, the
corresponding agreement of June 11, 1970, or part thereof,
shall remain the agreement of the parties.
20. SUCCESSION OF INTEREST. This lease shall inure
to the benefit of and be binding upon the parties hereto and
their respective successors and assigns as fully and to the
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same extent as though specifically mentioned in such instance,
and that all covenants, stipulations and agreements in this'
lease shall extend to and be binding upon any assignee or
sublessee of the Lessee.
IN WITNESS WHEREOF, the parties hereto have executed
this document by their duly authorized officials on the day
hereinabove first mentioned.
NORTHERN STE6EDORING AND
HANDL~t 'O~PORAT\ON
By rtJ L~
y,c-.r Presi ent
By
~~_A?I rlQ~J..,^-{Jf
Ranald H. Jarrell, - City Attorney
STATE OF ALASKA )
) SSe
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ,...:} 1:iJ:. day
of \=\L(..L\\- , 1980, before me, the undersigned, a Notary
Public~in and for the State of Alaska duly commissioned and
sworn as such, personally appeared r~IO,(",MZ t:: \\t',h'1S;"r--
. and '-.\..:k\'Ir<L f-. .,".:'\0'.\<1'1
to me known to be the C1ty Manager and City Clerk, respec-
tively. of the City of Seward, Alaska, and they acknowledge
to me that the foregoing instrument was executed by them in
their official corporate municipal capacities, and that each
executed the same pursuant to the authorization of the common
Council of the City of Seward, Alaska, that the same was
executed as the free and voluntary act and deed of the
municipal corporation for the uses and purposes therein
mentioned, and each on oath stated themselves to be authorized
by said municipal corporation to execute the foregoing
instrument, and that the seal affixed hereto is the corporate
seal of said municipality.
, .
. / I
WITNESS my hand and notarial seal the day and year
first above written.
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_.w__"'_ __"_~__''''''''-- ....__,_.___ _.._~._.. .___._._ "_ _ ~..~__ .
'-
\..
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
';\1 Si-
THIS IS TO CERTIFY that on this C:::-' - day
of \-\-lL\Yl5,\ - , before me, the undersigned, a Notary Public in
and fot the State of Alaska duly commissioned and sworn as
such, personally appeared CeLl", :s.v\",,(',I~-{r',______ and
, to me known to be the/Pt.esident -and
\..-~l
of NORTHERN STEVEDORING AND HANDLING CORPORATION, and the~
acknowledged to me that fhe~ signed the same on behalf of said
corporation, authorized to do so, and that said instrument was
signed freely and voluntarily for the uses and purposes therein
stated.
WITNESS my hand and notarial seal the day and year
first above written.
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