HomeMy WebLinkAboutRes2022-001 Vertical Air Lease PHSponsored by: Bower
Public Hearing: January 10, 2022
CITY OF SEWARD, ALASKA
RESOLUTION 2022-001
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A
CONSENT ASSIGNMENT TO VERTICAL AIR LLC, TO THE LEASE
AGREEMENT L06-008 WITH JURIS MINDENBERGS, FOR LOT 5B,
BLOCK 1, SEWARD SMALL BOAT HARBOR SUBDIVISION, CITY OF
SEWARD, KENAI PENINSULA BOROUGH PLAT 2000-19, SEWARD
RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF
ALASKA TO EXTEND THE TERM OF THE LEASE FOR 16 YEARS AND
TO ADD TWO FIVE-YEAR OPTIONS TO EXTEND
WHEREAS, Juris Mindenbergs ("Lessee") has requested an assignment of lease to
Vertical Air, LLC of the existing lease agreement with the City of Seward for 4,250 square feet,
more or less of Lot 5B, Block 1, City of Seward, Seward Small Boat Harbor Subdivision, Kenai
Peninsula Borough, Plat No. 2000-19 recorded in the Seward Recording District, Third Judicial
District, State of Alaska; and
WHEREAS, Article 12 of the Lease provides that the Lessee shall have the right to assign
the lease upon findings by the Council that use is found to be in the public interest; and
WHEREAS, the lease site will continue to be utilized as a retail shop and is consistent
with current zoning and land use regulations; and
WHEREAS, the current lease has been in effect since February 24, 2006; and
WHEREAS, the current lease will expire February 24, 2036; and
WHEREAS, Vertical Air LLC is requesting to extend the lease term by sixteen years and
to add two five-year options to extend.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA that:
Section 1. The City Manager is hereby authorized to enter into Consent to Lease
Assignment to Vertical Air, LLC, in substantially the foinl as attached hereto.
Section 2. The recitals set forth above are incorporated herein by reference and adopted as
findings of the City Council. For the reasons stated, an assignment to Vertical Air LLC, in the
form presented at this meeting is found to be in the public interest.
Section 3. The City Manager is hereby authorized to amend and extend the lease with
CITY OF SEWARD, ALASKA
RESOLUTION 2022-001
Vertical Air LLC, in substantially the form as presented at this meeting.
Section 4. This resolution shall take effect 30 days from the date and posting of adoption,
or on the date of closing of the sale of the improvements on the lease site to Vertical Air LLC,
whichever is later.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 10th
day of January, 2022.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
IT /f F S WARD, ALASKA
risty Terry, ayor
Brenda J. Ball( i, MMC
City Clerk
(City Seal) ".4.4.'�`��
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City Council Agenda Statement
Meeting Date: January 10, 2022
To: City Council
Through: Janette Bower, City Manager
From: Norm Regis, Harbormaster
Agenda Item: Resolution 2022-001: Authorizing the City Manager to Enter into a Consent
Assignment to Vertical Air LLC, to the Lease Agreement L06-008 with Juris
Mindenbergs, for Lot 5B, Block 1, Seward Small Boat Harbor Subdivision, City
of Seward, Kenai Peninsula Borough Plat 2000-19, Seward Recording District,
Third Judicial District, State of Alaska to Extend the Term of the Lease for 16
Years and Add Two Five-year Options to Extend
Background and justification:
Juris Mindenbergs currently has Lease L06-008 for 4,250 square feet more or less of Lot 5B Block 1
Seward Small Boat Harbor Subdivision, City of Seward, Alaska and recorded as Plat No.2000-19 in
Seward Recording District, Third Judicial District, State of Alaska.
Juris Mindenbergs has requested approval to assign the lease to Vertical Air, LLC, which will
continue to use the leased land for a retail shop. Article 12 of the lease allows lease assignments
upon findings by Council that use is found to be in the public interest.
Vertical Air has been subleasing from Mr. Mindenbergs since October 2019.
The current lease L06-008 will expire on February 24, 2036. Vertical Air LLC requests a sixteen -year
extension of the lease, which would make the lease term ending date February 24, 2052.
Vertical Air LLC is also requesting two five-year options to extend. This (exercising the extension
options as one and adding two further five-year options) is consistent with the methodology used in
previous lease actions approved by the Council.
Comprehensive and Strategic Plan Consistency Information
This legislation is consistent with (citation listed):
Comprehensive Plan: (page I-12, 3.1.1) Attract new business and industry to the greater Seward
area
Strategic Plan:
Other:
(page 5) Attract New Industry: Develop an aggressive marketing campaign
which highlights the diverse resources, and quality of life that make Seward a
great place to live and establish a business or industry.
Certification of Funds
Total amount of funds listed in this legislation: $ 6,755.80 annually
Th s legislation (✓):
Creates revenue in the amount of:
Creates expenditure in amount of:
Creates a savings in the amount of:
Has no fiscal impact
v
$ 6,755.80
Funds are (✓):
Budgeted Line item(s): 11000-2000-5000 Lands Rents & Leases
Not budgeted
Additional fiscal notes:
The lease rate including CPI adjustments from 2021 is $6,755.80 annually per the 2020 appraisal and
adjusted for inflation. This parcel will also be reappraised in 2025.
Attorney Review
Yes
Not applicable
Finance Director Signature:
Administration Recommendation
Adopt Resolution
Other:
p44314.4
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Small Boat Harbor
Lot 5B Block 1
Due to different data sources property lines and aerial
imagery do not overlay correctly. Map is to be used for
orientation and reference purposes only.
1317 Fourth Ave
Drawn By: Selena Soto
0 20 40
80 Feet
Mapping Assistance by Alaska Map Company, LLC
LEASE AGREEMENT
between
CITY OF SEWARD, ALASKA
and
JURIS MINDENBERGS
Effective Date: [-1r1c,(-(,iiy 3-`6 Q i
TABLE OF CONTENTS
ARTICLE 1- LEASED LAND 1
1.1 Description of Leased Land 1
1.2 Covenant of Quiet Enjoyment; Warranty of Title 1
1.3 Survey of Leased Land 2
1.4 Property Accepted 2
1.5 Permits 2
1.6 Platting 3
ARTICLE 2 - LEASE TERM 3
2.1 Lease Tenn 3
2.2 Lease Subject to Referendum 3
2.3 Options to Extend 3
ARTICLE 3 - RENTAL RATE 4
3.1 initial Rental Rate 4
3.2 Rental Adjustments 4
3.3 Procedure for Rental Adjustment 4
3.4 Effect of Late Appraisal by CITY 5
3.5 Appraisal by LESSEE 5
3.6 Effective Date of Adjusted Rental Rate 5
3.7 Interim Rental Adjustments 6
3.8 Late Payment Charge 6
ARTICLE 4 - USE OF LEASED LAND 6
4.1 Use of Leased Land 6
4.2 Obligations of LESSEE 6
4.3 No Preferential Rights to Use Public Facilities 7
4.4 Adequacy of Public Facilities 7
4.5 Tariffs and Other Service Fees 7
4.6 Time, for Payment of Utilities and Taxes 7
4.7 Other Uses 7
ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 8
5.1 Utilities 8
5.2 Third -Party Improvements 8
5.3 Easements 9
ARTICLE 6 - CONSTRUCTION BY LESSEE 9
6.1 Improvements on Leased Land 9
6.2 City Review of Construction. 10
ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS 11
7.1 Return of Leased Land in Original Condition 11
7.2 Return of Leased Land in Different Condition 11
ARTICLE 8 - FORCE MAJEURE 11
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ARTICLE 9 - LESSEE'S ACTS OF DEFAULT 11
ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE 12
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 14
11.1 Real Property Improvements 14
11.2 Personal Property 14
ARTICLE 12 - ASSIGNMENT OR SUBLEASE 14
12.1 Assignment of Lease or Subleasing 15
12.2 Assignment of Lease for Security 15
12.3 Assignment to Affiliate 15
ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY 16
ARTICLE 15 - INSURANCE 16
15.1 Minimum. Insurance Requirements 16
15.2 Subrogation Rights Waived 17
ARTICLE 16 - CONDEMNATION 17
ARTICLE 17 - ARBITRATION 19
17.1 Arbitration 19
ARTICLE 18 - MAINTENANCE AND REPAIRS 20
18.1 Normal Maintenance 20
18.2 Safety Issues 20
18.3 Cost of Repairs 21
ARTICLE 19 - ENVIRONMENTAL CONCERNS 21
19.1 Hazardous Materials 21
19.2 Permits and Reporting 23
ARTICLE 20 - ESTOPPEL CERTIFICATES 24
ARTICLE 21- CONDITIONS AND COVENANTS 24
ARTICLE 22 - NO WAIVER OF BREACH 24
ARTICLE 23 - TIME OF THE ESSENCE 25
ARTICLE 24 - COMPUTATION OF TIME 25
ARTICLE 25 - SUCCESSORS IN INTEREST 25
ARTICLE 26 - ENTIRE AGREEMENT 25
ARTICLE 27 - GOVERNING LAW 25
ARTICLE 28 - PARTIAL INVALIDITY 25
ARTICLE 29 - RELATIONSHIP OF PARTIES 25
ARTICLE 30 - INTERPRETATION 26
ARTICLE 31- CAPTIONS 26
ARTICLE 32 - AMENDMENT 26
ARTICLE 33 - NOTICES 26
ARTICLE 34 - FIRE PROTECTION 27
LEASE AGREEMENT BETWEEN THE CITY OF SEWARll AND JURIS MINDENBE PGS
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-PAGE ii -
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "LEASE") is made by and between the CITY OF
SEWARD (the "CITY"), a municipal corporation located in the Kenai Peninsula Borough, State of
Alaska, whose mailing address is P.O. Box 167, Seward, Alaska 99664 and Juris Mindenbergs (the
"LESSEE"), whose mailing address is 4128 148t}' Avenue NE, Redmond, Washington 98052.
WHEREAS, LESSEE has indicated his desire to lease Lot 5B, Block 1 Seward Small Boat
Harbor Subdivision, according to Plat 2000-19, Seward Recording District, Third Judicial District,
State of Alaska;
WHEREAS, the City Council of CITY has determined that lease of the Leased Land (as
defined below) to LESSEE for the purposes described herein would be in the public interest; and
WHEREAS, it is the intent of this LEASE to transfer from CITY to LESSEE the entire
burden of compliance with present or future environmental regulations or controls with respect to
LESSEE's operations on the Leased Land during the lease term.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1 - LEASED LAND
Li Description of Leased Land. The Leased Land is located in the City of Seward, Alaska. The
Leased Land is described as follows:
Lot 5B, Block 1 Seward Small Boat Harbor Subdivision, according to Plat 2000-19, Seward
Recording District. Third Judicial District, State of Alaska, containing 4250 square feet,
more or less (the "Leased Land").
The Leased Land is also depicted on the attached Exhibit A, which is incorporated herein by
reference.
1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as of the date
hereof, any reasonable restrictions imposed on the Leased Land as part of recording of a plat
by CITY, and the provisions of this LEASE, CITY hereby covenants and warrants that:
a) LESSEE shall have the quiet enjoyment and possession of the Leased Land for the
full terra of this LEASE;
LEASE AGREEMENT BETWEEN THE CITY of SEWARD AND JURIS MINDENBERGS
i1 BRUARY 2006
-PAGE I -
b) CITY is unaware of any prior conflicting use of the Leased Land that would
adversely affect LESSEE's intended use of the subject parcel.
1.3 Survey of Leased Land. If not completed prior to execution of this LEASE, within ninety
(90) days from the date of this LEASE, LESSEE, at its sole cost, will cause the Leased Land
to be surveyed and replatted by a land surveyor registered in the State of Alaska. A copy of
the drawing and description of the Leased Land based upon this survey shall be attached to
this LEASE as Exhibit B and shall be incorporated herein by reference. In such event, the
description of the Leased Land in Exhibit B shall supersede the description in Exhibit A, and
shall be considered the correct description of the Leased Land for all purposes under this
LEASE. LESSEE shall provide CITY a copy of any and all surveys within ten (10) days of
LESSEE's receipt of any and all surveys. CITY shall have the right to comment upon any
and all surveys, but the exercise of this right shall not imply any obligation to do so or any
obligation to do so in any particular way. If CITY objects to the surveyor's conclusions in the
survey, CITY may give written notice to LESSEE of CITY's objection within thirty (30) days
of receipt of the survey. CITY shall then engage a second land surveyor registered in the
State of Alaska at CITY's expense to make a second survey of the Leased Land. CITY shall
provide LESSEE a copy of the second survey within ten (10) days of CITY's receipt of the
second survey. Unless CITY and LESSEE agree which survey is acceptable, the acceptable
survey shall be determined in accordance with the arbitration provisions contained in Article
19 of this LEASE.
1.4 Property Accepted "As -is." LESSEE acknowledges that it has inspected the Leased Land and
accepts the same "as -is" and without reliance on any expressed or implied representations or
warranties of CITY (other than the representations in Section 1.2 hereof), or agents of CITY,
as to the actual physical condition or characteristics thereof and the legal description or
depiction of the Leased Land in Section 1.1 or Exhibit A hereto.
1.5 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction and
operation of its facilities on the Leased Land. CITY may from time to time, upon request of
LESSEE, execute such documents, petitions, applications and authorizations as may be
necessary, as the underlying fee owner, to file with an agency or public body responsible
therefore an application for conditional use permits, zoning and re -zoning, tentative and final
tract approval, or precise plan approval that may be required for the lawful construction and
operation of the facilities of LESSEE permitted on the Leased Land by the terms of this
LEASE. However, nothing in this Section shall be construed as requiring CITY to support or
approve any such application or permit requests. If the agency or public body responsible to
approve or grant such application or permit request is a City of Seward agency, department,
or board, LESSEE shall follow all City of Seward procedures, the same as any other
applicant making similar requests of the City of Seward, according to the Charter,
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD) AND II RIS MINDENBERGS
FRBRUARY 2006
-PAGE 2 -
ordinances, resolutions, or any regulation, rules or procedures of the City of Seward.
Nothing in this Section imposes any duty or responsibility on CITY to assist LESSEE in
obtaining any other permits or approvals, including without limitation those required by the
U.S. Army Corps of Engineers (e.g., wetland fill permits), the Environmental Protection
Agency (e.g., Clean. Air Act permits), the Alaska Department of Public Facilities and
Transportation (e.g., right-of-way permits), the Alaska Department of Fish and Game, and
the Alaska Department of Environmental Conservation.
1.6 Platting. In the event CITY elects to replat, CITY agrees to include the Leased Land in such
replat in accordance with the description prepared by LESSEE under Section 1.3 herein. If
LESSEE requests a replat of the Leased Land prior to that time, CITY shall assist LESSEE in
the preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's costs
in assisting with the preparation and filing of the replat. LESSEE agrees to sign the plat and
any other documents necessary to complete the platting or replatting of any area including all
or a portion of the Leased Land. LESSEE shall accept reasonable restrictions. easements, or
plat notes as may be required by CITY or other governmental authorities as a condition to
filing the plat of the Leased Land or the plat of CITY -owned real property adjacent to the
Leased Land.
ARTICLE 2 - LEASE TERM
2.1 Lease Term. The term of this LEASE (the "Lease Term") shall be in accordance with CITY's
authorization Resolution No. 2006-8 (the "Resolution"). The Lease Term shall commence
on the date this LEASE is signed by CITY and that date shall be the effective date of this
LEASE (the "Effective Date"). The Lease Term shall run for 30 years from the Effective
Date, ending at midnight on F.e6, 3ij ' 2036. Except for extensions as provided in Section
2.3 below, this LEASE is not subject to renewal.
2.2 Lease Subject to Referendum. LESSEE understands and assumes the risk that under the
Charter and Code of CITY this LEASE may be voided by referendum. LESSEE agrees that
if the Resolution approving this LEASE is the subject of a referendum petition filed with the
Clerk of CITY, LESSEE shall have no rights under this LEASE unless and until the
Resolution is approved by the voters of the City of Seward, and LESSEE shall not be entitled
to any damages or any other relief against CITY in the event the Resolution is not so
approved.
2.3 Options to E_ztend. LESSEE shall have the right to extend the term of this LEASE for two
(2) additional five (5) year periods (cumulative extensions not to exceed ten (10) years),
provided that:
a) LESSEE exercises any applicable option to extend at least one hundred and eighty
LEASE AGREEMENT BETWEEN THE CITY OF SEWARI) AND RIMS MIN D NBERGS
FEBRUARY 2006
-PAGE 3-
(180) days prior to the expiration of the then current lease term;
b) IFSSEE is not in default under any term or provision of this LEASE; and
c) LESSEE shall exercise its options to extend by sending written notice thereof in
accordance with the provisions of Article 33 of this LEASE.
ARTICLE 3 - RENTAL RATE
3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through June 30,
2006, the annual rental rate for the Leased Land shall be set at Five Thousand Six Hundred
Eighty dollars ($5,680.00). Rent shall be payable quarterly in advance upon the Effective
Date of this Lease (prorated for the balance of the current quarter) and thereafter on or before
the 20th day of the month beginning each calendar quarter: January 20, April 20, July 20 and
October 20. The amount of each quarterly payment shall be one -quarter of the annual rental
rate as initially established or later adjusted under this Article 3.
3.2 Rental Adjustments. The annual rental payment shall be adjusted on July 1, 2010, and on the
same date every five years thereafter (each a "Rental Adjustment Date"). The adjusted
annual rental payment to be paid under the terms of this Lease shall be the appraised fair
market rental value (the "Fair Market Rental Value") of the Leased Land at the highest and
best use of the Leased Land. The highest and best use of the Leased Land shall be
determined without regard to LESSEE's intended or actual use of the Leased Land unless that
use is coincidentally the highest and best use of the Leased Land. CITY shall complete such
appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety (90) days
before each Rental Adjustment Date.
3.3 PraceduretorRental Adjustment. To adjust the rent as of any successive Rental Adjustment
Date, CITY shall, at its own expense, retain an independent State of Alaska certified MAI
appraiser (Member, Appraisal Institute), who shall determine the "Fair Market Rental Value"
of the Leased Land in accordance with this Article 3, exclusive of improvements placed
thereon by LESSEE but inclusive of all improvements made by CITY (including those made
before or subsequent to this LEASE). The appraiser's report shall be delivered to LESSEE
not less than ninety (90) days before the Rental Adjustment Date. The appraiser's
determination of Fair Market. Rental Value of the Leased Land shall constitute a final binding
determination of the Fair Market Rental Value and the adjusted annual rental rate until the
next Rental Adjustment Date, unless LESSEE objects to C1TY's appraiser's determination of
the Fair Market Rental Value. In that case, LESSEE shall give written notice to CITY of its
objection within thirty (30) clays of receipt of the appraiser's report, and LESSEE shall then
engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute)
at LESSEE's expense to make an appraisal of the Fair Market Rental Value in accordance
LEASE AGREEMENT BETWEEN THE CITY OE SEWARD AND TURIS MINDENBERGS
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with this Article 3.
If LESSEE'S appraisal determines a Fair Market Rental Value that varies from that
determined by CI'I Y's appraisal by no more than twenty percent (20%), then the adjusted
rental rate shall be the average of the rental rates determined by the two appraisals. If
LESSEE'S appraisal determines a Fair Market Rental Value that varies from CITY's
appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a rate
themselves, the adjusted annual rental rate of the Leased Land shall be determined in
accordance with the arbitration provisions contained in Article 19 of this LEASE.
3.4 Effect of Late Appraisal by CITY. If, for any reason. CITY does not complete the appraisal
or deliver a copy of the appraisal report to LESSEE ninety (90) days before the Rental
Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy of the
appraisal report to LESSEE at any time thereafter. However, any such adjusted annual rental
rate shall not be effective until the quarterly payment due date immediately following the
date CITY delivers the appraisal report to LESSEE.
3.5 Appraisal by LESSEE. If for any particular Rental Adjustment Date, CITY fails to obtain an
appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the
LESSEE by the Rental Adjustment Date, LESSEE may engage an independent State of
Alaska certified M.AI appraiser (Member, Appraisal Institute) at LESSEE's expense to make
an appraisal under the terms of this Article 3 and submit a copy to CITY before the next
quarterly rental payment due date. However, LESSEE must notify CITY in writing within
thirty (30) days following the Rental Adjustment Date of LESSEE's election to obtain an
appraisal. If CITY objects to LESSEE'S appraiser's determination of the Fair Market Rental
Value, CITY shall give written notice to LESSEE of its objection within thirty (30) days of
receipt of the appraiser's report, and CITY shall then engage an independent State of Alaska
certified MAI appraiser (Member, Appraisal Institute) at CITY's expense to make an
appraisal of the Fair Market Rental Value as of the Rental Adjustment Date and in
accordance with this Article 3. If the CITY's appraisal determines a Fair Market. Rental
Value that varies from that determined by LESSEE'S appraisal by no more than twenty
percent (20%), then the adjusted rental rate shall be the average of the rental rates determined
by the two appraisals. If the CITY's appraisal determines a Fair Market Rental Value that
varies from LESSEE'S appraisal by more than twenty percent (20%), then, unless CITY and
LESSEE agree on a rate themselves, the adjusted annual rental rate of the Leased Land shall
be determined in accordance with the arbitration provisions contained in Article 19 of this
LEASE.
3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by this
Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the
appraisal report to LESSEE no later than ninety (90) days before the Rental Adjustment Date.
LEASE AGRLIMENT BETWEEN TH1: CrI"Y ( it SEWARD AND IURIS MINDENBERGS
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If the adjusted annual rental rate is based on CITY's late appraisal or late delivery of the
appraisal report to LESSEE, the adjusted rental rate shall be effective beginning with the
quarterly rental payment due date immediately following the date the CITY delivers the
appraisal report to LESSEE. Notwithstanding the above, the exercise by either CITY or
LESSEE of the objection procedure relating to rental adjustment described in this Article 3
shall not postpone LESSEE's obligation to pay rent at the rate established by CITY. LESSEE
shall pay the amount of rent as established or adjusted by CITY until the question of
objection to the rental rate is finally resolved. At such time the objection to the rental rate is
resolved, an appropriate credit or adjustment shall be made retroactive to the date the new
rental rate was established by CITY or in cases where CITY failed to obtain an appraisal or
deliver the appraisal report to the LESSEE, to the Rental Adjustment Date.
3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment
Date, excepting the Rental Adjustment Dates, the annual rental payment shall be increased
beginning July 1, 2006, and on July 1 of every year thereafter (each on "Interim Rental
Adjustment Date") in an amount that reflects the increase, if any, in the cost of living for the
previous year as stated in the Consumer Price Index, All Urban Consumers, Anchorage,
Alaska Area, All Items 1967=100 ("CPI"), as published by the United States Department of
Labor, Bureau of Labor Statistics for the most recent period published immediately prior to
the Interim Rental Adjustment Date. In no event shall the rent be less than the previous year.
If the CPI is revised or ceases to be published, the CITY shall instead use such revised or
other index as most nearly approximates the CPI for the relevant period, and make whatever
adjustment in its application as may be necessary, in the C1TY's sole discretion, to
accomplished as nearly the same result as if the CPI had not been revised or ceased to be
published.
3.8 Late Payment Charge. Rental payments not received by the clue date shall bear interest until
paid at a rate of 10.5% per annum, or the maximum rate permitted under Alaska law,
whichever is less, plus a flat monthly late fee of $2.50, or such amount as may be established
from time to time by CITY ordinance or resolution and relating to late fees for CITY leases
generally.
ARTICLE 4 - USE OF LEASED LAND
4.1 Use of Leased Land. CITY has limited land available for lease_ Use of the Leased Land by
LESSEE has been determined by the City Council of CITY to be in the public interest.
4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with
applicable. CITY zoning code provisions and provided the Following conditions are met:
a) The Leased Land is to be completely cleaned and restored to its original condition,
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that is, the condition existing prior to this LEASE or in better condition upon
termination of this LEASE.
b) LESSEE agrees to prohibit the use, keeping, storage. or disposal of Hazardous
Materials on the Leased Land except as permitted in Article 19 of this LEASE.
c) LESSEE shall not use the Leased Land in any manner or construct any facilities
thereon which would inhibit the use of adjacent or other lands.
d) LESSEE shall continue to operate a retail enterprise on the Leased Land. Any
changes to this site require CITY approval, through the City Manager, prior to
additional construction. LESSEE's failure to obtain CITY approval of any changes to
the site development plan or LESSEE's failure to install the improvements according
to the site development plan shall be a LESSEE Act of Default under this LEASE.
4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any
exclusive rights to use any public port facilities constructed or operated by CITY. LESSEE
will be subject to any tariffs, procedures, rules and regulations of CITY concerning the use of
such facilities as they may now exist or from time to time be amended, and LESSEE shall not
be entitled to any exclusive use.
4.4 Adequacy of Public Facilities. CITY makes no representations or warranties as to the fitness
of any particular part or the whole of C1TY's public facilities for the uses intended by
LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the facilities
are sufficient for the intended uses by LESSEE. CITY makes no representations or
warranties of any nature with respect to the commercial practicability or accuracy of any
information provided by CITY.
4.5 Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs,
regulations and scheduled fees from time to time even if those adjustments shall cost
LESSEE more for its operations or use of public facilities, and CITY is free to do so
provided only that it does not impose any greater burden or higher rate upon LESSEE than
upon any other similar user of the public facilities.
4.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related to
operations on the Leased Land and LESSEE's interest in this LEASE and improvements
thereon, if any, before such obligations become delinquent; provided that LESSEE may, in
good faith and before such delinquency, contest any such charge or assessment.
4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and
additional tenants for space including those who would be in competition with LESSEE or
LEASE AGREEMENT BETWEEN THE CITY OF SEWARI) AND JURIE MINDENBERGS
FEBRUARY 2006
-PAGE 7 -
who might be interested in leasing the Leased Land should this LEASE he terminated for any
reason.
ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS
5.1 Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of
public utilities to the Leased Land sufficient for LESSEE's intended operations. In so doing,
LESSEE shall comply with all CITY regulations and requirements, and the tariffs of the
affected utilities, with respect to the construction of those utilities. CITY agrees to cooperate
and assist the LESSEE, through consultation and review, in i ,ESSEE's planning and
engineering of those improvements. All utilities will be located and sized in accordance to
CITY's Master Plan for the area leased. All such construction shall be in compliance with all
applicable building, mechanical and fire codes. Utilities constructed by the LESSEE within
the public right-of-ways or within public utility easements will normally he accepted and
maintained by CITY or utility companies may be used to serve other customers of LESSEE'S
without payment of fees or reimbursement of construction cost to the LESSEE. However,
this does not preclude several lessees from agreeing to share the cost of constructing a utility
to serve their facilities. CITY or other utility company may determine that it would be to
their benefit to oversize the utility or install special fittings or equipment in order to serve
other existing or future users. The additional direct costs of such over sizing shall be borne
by CITY or other utility company. Such costs shall be limited to the supplier's cost of the
additional fittings, equipment, direct labor, and equipment costs to complete the installation.
The costs of over sizing pipe or electrical conduit shall be limited to the difference between
the supplier's price to provide the size required to serve its facility and the price of the
oversized material required by CITY or utility company.
LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent,
investment, or costs incurred by LESSEE with respect to any required permits for
construction or operation of LESSEE's facilities on the Leased Land, it being the intent of the
parties that the risk of obtaining required permits be solely a risk undertaken by LESSEE.
5.2 Third -Party Improvements_ At the request of LESSEE, CITY shall, from time to time,
execute and deliver, or join in execution and delivery of, such documents as are appropriate,
necessary, or required to impose upon the Leased Land in accordance with the terms of this
LEASE covenants, conditions and restrictions providing for the granting of uses of the
Leased Land, or any part thereof, the establishment of party walls, the establishment of
mutual and reciprocal parking rights or rights of ingress or egress, or other like matters
(herein called "third -party improvements"), all of which are for the purpose of the orderly
development of the Leased Land as a commercial unit subject, however, to the conditions
that:
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FEBRUARY 2006
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a) All such matters shall be limited to the Lease Term and shall terminate upon
termination of this LEASE for whatever reason.
b) Any such matters of a permanent nature extending beyond the Lease Term shall not
be granted without the prior written approval of CITY. In any of the foregoing
instances referred to in this Section, CITY shall be without expense therefore, and the
cost and expense thereof shall be borne solely by LESSEE.
c) At the expiration of the Lease Term (including any extended period) third -party
improvements on the Leased Land other than portable equipment shall become the
property of CITY without the payment of any compensation to LESSEE.
5.3 Easements. In order to provide for the orderly development of the Leased Land and adjacent
lands, it may be necessary, desirable or required that street, railroad, water, sewer, drainage,
gas, power line and other easements and dedications and similar rights be granted or
dedicated over or within portions of the Leased Land. As additional consideration for this
LEASE, CITY and LESSEE each shall, at the request of the other, join with each other in
executing and delivering such documents from time to time and throughout the Lease Term
as may be appropriate, necessary, or required by the several governmental agencies
(including the City of Seward), public utilities and other users or tenants of CITY land for the
purpose of granting such easements and dedications; provided, however, that such easements
and dedications and similar rights do not unreasonably interfere with LESSEE's operations.
The costs of locating or relocating any public easements or restrictions of record including
any relocation of public road, railroad, utility, or other easements shall be at the sole cost and
expense of the party requesting the relocation. CITY shall not refuse reasonable requests for
such relocations provided those relocations do not interfere with or inhibit the overall
development of CITY property or other public property. Any easements or rights of access
granted to LESSEE by CITY need not be exclusive to LESSEE.
ARTICLE 6 - CONSTRUCTION BY LESSEE
6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter,
remodel, reconstruct, rebuild, build and/or replace buildings and other improvements on the
Leased Land, subject to the following conditions:
a) I.FSSEE shall cause to be operated on the Leased Land a retail enterprise by June 1,
2006.
b) The cost of any construction, reconstruction, demolition, or of any changes,
alterations or improvements, shall be borne and paid for by LESSEE.
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c) The Leased Land shall at all times be kept free of mechanic's and material nen's liens.
d) LESSEE shall provide CITY with a copy of all building plans and specifications and
a site development plan or plans (based on a recent survey) for the Leased Land prior
to commencement of construction.
LESSEE is solely responsible for resurveying and locating improvements on the
Leased Land in such manner not to violate building setback requirements or encroach
into rights -of -ways or easements. On completion of any improvements. LESSEE
shall provide CITY a copy of an as -built survey depicting the improvements as
completed on the Leased Land.
f) Any general contractor employed by LESSEE or its sublessees shall be appropriately
bonded by use of performance and labor and material payment bonds in the
customary form when cost of the work is equal to or exceeds FIFTY THOUSAND
DOLLARS ($50,000). Copies of all such bonds shall be furnished to CITY prior to
commencement of construction. If the cost of the work is less than FIFTY
THOUSAND DOLLARS ($50,000.00), LESSEE shall provide CITY, if no
performance and labor and material bonds are provided by LESSEE, any necessary
assurances or guarantees that the contemplated work will be performed by the general
contractor or by LESSEE.
g)
CITY may, as contemplated by Alaska Statutes, give notice of non -responsibility for
any improvements constructed or effected by LESSEE on the Leased Land.
h) LESSEE shall comply with all federal, state and local statutes and regulations with
respect to such construction, including but not limited to all applicable building,
mechanical, and fire codes.
6.2 City Review of Construction. CITY shall have the right to review initial plans, including
those supplied to CITY under Section 6.1 hereof, and any future changes or additions to
LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the
commencement of construction. CITY shall have the right to comment upon that design and
to require LESSEE to make reasonable changes so as to avoid interference with public
operations, but the exercise of these rights shall not imply any obligation to do so nor any
obligation to do so nor any obligation to do so in a particular way. LESSEE shall construct
the facility in accordance with final design specifications approved by CITY. CITY's
representatives may monitor the work and shall have access to the site at all reasonable times.
LESSEE shall be solely responsible for completing all improvements according to LESSEE's
plans and specifications and shall bear all risk, responsibility, and liability for properly
surveying the Leased Land before construction and to place all improvements on the Leased
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Land without encroaching upon any land, easements, rights -of -way, or setback requirements.
LESSEE shall obtain the usual and customary performance guarantees from its contractors,
and CITY shall be named as an additional insured.
ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS
7.1 Return of Leased Land in Original Condition. Subject to the provisions of Article 11.1
herein, upon termination of this LEASE for any reason, LESSEE shall return the Leased
Land to CITY in the same condition as at the commencement this LEASE, subject to
normal, non -abusive use. The Leased Land shall be free of all Hazardous Materials and
contamination arising out of or resulting from or occurring during LESSEE's operations
or use of the Leased Land during this LEASE.
7.2 Return of Leased Land in Different Condition. Notwithstanding the provisions of Section
7.1 above, upon termination of this LEASE for any reason LESSEE may return the Leased
Land in a re -contoured or graded clean, safe, and stable condition different from its original
condition provided CITY grants written approval of LESSEE'S plans for development of the
Leased Land contours, including its plans for material extraction and final grade.
ARTICLE S - FORCE MAJEURE
In the event either LESSEE or CITY is delayed from performance of any of its obligations
under this LEASE due to acts of nature, acts of the enemies of the United States of America,
sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake/tsunami, civil
disturbance, or war, the time period wherein such performance is to occur shall be extended by that
amount of time necessary to compensate for the delay.
ARTICLE 9 - LESSEE'S ACTS OF DEFAULT
Each of the following shall be a "LESSEE Act of Default" under this LEASE and the teens
"'acts of default" and "default" shall mean, whenever they are used in this LEASE, any one or more of
the following events:
9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20) days
from the due date thereof, the rent required to be paid under this LEASE.
9.2 Failure by LESSEE to observe, fulfill or perform any covenants, conditions or agreements on
its part to be observed or performed under this LEASE for a period of thirty (30) days after
written notice specifying such failure, requesting that it be remedied, and stating that it is a
notice of default, has been given to LESSEE by CITY; provided, however, that if said default
is such that it cannot be corrected within the applicable period, it shall not constitute an act of
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default if corrective action is instituted by LESSEE within the applicable period and
diligently pursued until the default is corrected.
9.3 The making by LESSEE of an assignment for the benefit of creditors, the filing of a petition
in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt, the petition
or application by LESSEE to any tribunal for any receiver or any trustee for itself or for any
substantial part of its property; or the commencement of any proceeding relating to LESSEE
under any bankruptcy, insolvency, reorganization, arrangement or readjustment of debt law
or statute or similar law or statute of any jurisdiction, whether now or hereafter in effect
which shall remain undismissed for a period of six (6) months from the date of
commencement thereof.
9.4 Violation by LESSEE of any laws or regulations of the United States, or of the State of
Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai
Peninsula Borough, the State of Alaska or of the United States Government applicable to
LESSEE'S use of the Leased Land, pursuant to the regulations of such agencies. for a period
of sixty (60) days after written notice specifying such violation has been given by the agency
charged with the enforcement of such laws, regulations or permits to LESSEE; provided,
however, if such violation be such that it cannot be corrected within the applicable period, it
shall not constitute an act of default if corrective action is instituted by LESSEE within the
applicable period and diligently pursued until the violation is corrected. Furthermore, if
LESSEE shall contest such alleged violation through appropriate judicial or administrative
channels, the time period specified herein shall not commence until such proceedings are
finally determined provided such proceedings are diligently pursued; provided, however, that
any such extension of time shall not be effective if the effect of the interim administrative or
judicial action is to cause a stoppage, interruption or threat to the activities of any person or
entity other than those of LESSEE.
9.5 Failure by LESSEE to operate a retail enterprise on the Leased Land and place the facilities
in service by June 1, 2006.
9.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public
rights of way clear.
ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE
Whenever an act of default by LESSEE shall have occurred, and any applicable period for
giving notice and any opportunity to cure shall have expired, CITY shall have the following rights
and remedies all in addition to any rights and remedies that may be given to CITY by statute,
common law or otherwise:
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10.1 CITY may distain for rent clue any of LESSEE's personal property which comes into CITY's
possession. This remedy shall include the right of CITY to dispose of personal property
distained in any commercially reasonable manner. It shall be conclusively presumed that
compliance with the procedures set forth in the Alaska Uniform Commercial Code (AS
45.29.601-.628) with respect to sale of property shall be a commercially reasonable disposal.
10.2 CITY may re-enter the Leased Land and take possession thereof and, except for any personal
property of LESSEE which CITY has waived its right to distain under Section 10.1 above,
remove all personal property of LESSEE from the Leased Land. Such personal property may
be stored in place or may be removed and stored in a public warehouse or elsewhere at the
cost of LESSEE all without service of notice or resort to legal process, all of which LESSEE
expressly waives.
10.3 In addition to the above, CITY may:
a) Declare this LEASE terminated;
b) Collect any and all rents due or to become due from subtenants or other occupants of
the Leased Land;
c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable
attorney's fees and all other expenses incurred by CITY by reason of the breach or
default by LESSEE;
d) Recover from LESSEE an amount to be due immediately on breach equal to the
unpaid rent for the entire remaining term of this LEASE provided that if the CITY
relets the Leased Land for the unexpired term of this LEASE, the CITY will refund
such excess amounts, if any, after deducting all of the CITY's expenses in or in
connection with reletting (including without Iimritation all repossession costs,
brokerage commissions, legal expenses, administrative expenses, costs of
advertising, and preparations for reletting) as such excess amounts are received by the
CITY, but in no event shall the refund exceed the amount recovered from LESSEE;
e) Recover all damages incurred by CITY by reason of LESSEE's default or breach
including, but not limited to, the cost of recovering possession of the Leased Land,
expenses of reletting including costs of necessary renovation and alteration of the
premises, reasonable attorney's fees and any real estate commissions actually paid.
f} Remove or require the removal of any improvements constructed without CITY
approval or constructed contrary to site development plans approved by CITY and
recover all costs and expense incurred by CITY to remove violating improvements.
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10.4 If LESSEE does not immediately surrender possession of the Leased Land after termination
by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess
the Leased. Land and expel 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
breach of covenant.
10.5 No expiration or termination of this LEASE shall expire or terminate any liability or
obligation to perform of LESSEE's which arose prior to the termination or expiration except.
insofar as otherwise agreed to in this LEASE.
10.6 Each right and remedy of CITY 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
exercise by CITY of any one or more of the rights and 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 CITY of any or all other rights or remedies provided for
in this LEASE or now or thereafter existing at law, or in equity or by statute or otherwise.
10.7 No delay or omission to exercise any right or power accruing following an act of default shall
impair any such right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be deemed
expedient,
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE
11.1 Real Property Improvements. All improvements constructed by LESSEE on the Leased
Land or on easements to or from the same, such as buildings, warehouses, conveyor systems,
ditches, sewer lines, water lines, dikes or berms and similar improvements, shall become the
property of CITY upon termination of this LEASE for any reason; provided, however, that
CITY may require LESSEE to remove any improvements designated by CITY and without
cost to CITY.
11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding,
LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly
remove, in no event later than ninety (90) days from the termination of the LEASE, trade
fixtures and equipment from the Leased Land provided that LESSEE shall repair any
damages to the Leased Land caused by such removal.
ARTICLE 12 - ASSIGNMENT OR SUBLEASE
1J.ASE AGREEMENT BETWEEN 'THE C11 Y OE SEWARD AND JURIS MTNT)ENBERGS
FEBRUARY 2006
-PAGE 14 -
12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been
determined to be in the public interest by the City Council of CITY for the reasons set forth
in the approving Resolution. The rights and duties created by the LEASE are personal to
LESSEE and CITY has granted the LEASE in reliance upon the individual character and
financial capability of LFSSEE. Therefore, LESSEE shall not assign or sublease this LEASE
without CITY's prior written consent, in CITY's sole discretion.
12.2 Assignment of Lease for Security. Notwithstanding Section 12.1 above, LESSEE may
assign, encumber or mortgage its interest in this LEASE or improvements on the Leased
Land, by deed of trust or other security instrument, to an institutional lender ("Lender") for
development of or operations on the Leased Land, provided that Lender shall be subject to all
obligations of LESSEE under the terms of this LEASE upon foreclosure. CITY shall furnish
Lender, at the address provided to CITY by Lender in writing, with notice of any default or
breach of LESSEE under this TEA SE. Lender shall have the right (without being required to
do so and without thereby assuming the obligations of LESSEE under this LEASE) to make
good such default or breach within thirty (30) days after written notice specifying such
breach. Notwithstanding the provisions of Article 10 above, no "LESSEE Act of Default"
shall exist until expiration of thirty (30) days after such notice is furnished to Lender;
provided,
a) If Lender, with respect to any default or breach other than a failure to make any
required payment of rent or other money, shall undertake within thirty (30) days after
notice to cure the default or breach and shall diligently and in good faith proceed to
do so, CITY may not terminate this LEASE or relet the Leased Land unless Lender
fails to cure the default or breach within a reasonable period of time thereafter; and
b) If the default for which notice is given is a breach of Section 9.3, CITY shall not
exercise any of the remedies afforded to it under Article 10 above so long as LESSEE
or Lender remains in possession of the Leased Land and satisfies LESSEE's
obligations under the terms of this LEASE. Upon foreclosure or other assertion of its
security interest, Lender may further assign, transfer, or dispose of its interests,
provided that any subsequent assignee, purchaser or transferee shall remain bound by
each and every term of this LEASE.
12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this
LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska
limited liability company in which LESSEE maintains a substantial membership interest';
provided, however, that LES SEE's full faith and credit shall remain obligated under this
Affiliate means a person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common
contra/ with, a corporation subject to the Alaska Corporation Code.
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FEBRUARY 2006
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LEASE as though the assignment had not taken place.
ARTICLE 13 - LESSEE'S DUTY TO DEFEND/INDEMNIFY
LESSEE shall defend, indemnify and hold harmless CITY, its officials, employees, agents,
and contractors from any and all liability or claims for damages, including personal injuries,
environmental damage, death and property damage arising out of or resulting from LESSEE'S use of
the Leased Land or the use of the Leased Land by LESSEE'S sublessees, assignees, agents,
contractors or the public, except for damages arising from the sole negligence or willful acts or
omissions of CITY, its officials, employees, agents, or contractors. If any action or proceeding is
brought against LESSEE by reason of any such occurrence, LESSEE shall notify CITY prornptly in
writing of such action or proceeding.
ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY
CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or claims
for damages, including personal injuries, death and property damage arising from the sole negligence
or willful acts or omissions of CITY, its officials, employees, agents, or contractors.
ARTICLE 15 - INSURANCE
15.1 Minima c Insurance Requirements. Prior to commencement of the Lease Term or LESSEE'S
occupancy of the Leased Land, LESSEE shall procure and maintain, at LES SEE's sole cost
and expense, comprehensive commercial general liability insurance with limits of liability of
not less than TWO MILLION DOLLARS ($2,000,000) for all injuries and/or deaths resulting
to any one person and TWO MILLION DOT ARS ($2,000,000) limit from any one
occurrence. The comprehensive commercial general liability insurance shall include
coverage for personal injury, bodily injury, and property damage or destruction. Coverage
under such policies of insurance shall include collapse and underground property damage
hazards. Contractual liability insurance coverage in the amount of not less than TWO
MILLION DOLLARS ($2,000,000) is also required.
LESSEE shall obtain owned and non -owned automobile liability insurance with limits of
liability of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence combined
single limit for bodily injury and property damage.
LESSEE shall also maintain workers' compensation insurance as required under Alaska law.
The minimum amounts and types of insurance provided by LESSEE shall be subject to
revision at the sole discretion of CITY in accordance with standard insurance practices, in
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND JURIS MINDENBERGS
FEBRUARY 2006
-PAGE 16 -
order to provide continuously throughout the term of this LEASE and any extensions hereof,
a level of protection consonant with good business practice and accepted standards in the
industry. Such factors as changes in the type of or extent of use of the Lease Land, increases
in the cost of living, inflationary pressures, and other considerations, shall be utilized in
assessing whether the minimum insurance requirements should be increased. CITY shall
notify LESSEE of any required increase in insurance coverage.
All insurance policies shall provide for thirty (30) days' notice of cancellation and/or material
change to be sent to CITY at the address designated in ARTICLE 33 of this LEASE. All
such policies shall be written by insurance companies legally authorized or licensed to do
business in the State of Alaska, and acceptable to CITY (Best's Rating Bf or better). CITY
shall be listed as an additional insured under all insurance policies. LESSEE shall furnish
CITY, on forms approved by CITY, certificates evidencing that it has procured the insurance
required herein prior to the occupancy of the Leased Land or operation by LESSEE.
Insurance policy deductibles are subject to approval by CITY. Nothing herein contained
shall prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEE's own
individual cost and expense, additional or other insurance as may be desired. The minimum
insurance requirements under this LEASE shall not act to limit LESSEE's liability for any
occurrence and shall not limit LESSEE's duty to defend and indemnify CITY for claims
related to this LEASE or the Leased Land.
15.2 Subrogation Rights Waived. To the extent permitted by 1aw,1.FSSEE hereby releases CITY,
its elected and appointed officials, employees and volunteers and others working on behalf of
CITY from any and all liability or responsibility to LESSEE or anyone claiming through or
under LESSEE by way of subrogation or otherwise, for any loss of any kind (including
damage to property caused by fire or any other casualty), even if such loss shall have been
caused by the fault or negligence of the CITY, its elected or appointed officials, employees or
volunteers or others working on behalf of the CITY. This provision shall be applicable and
in full force and effect only with respect to loss or damage occurring during the time of
LESSEE's occupancy or use (including LESSEE'S occupancy or use prior to the Effective
Date of this LEASE), and LESSEE's policies of insurance shall contain a clause or
endorsement to the effect that such release shall not adversely affect or impair such policies
or prejudice the right of I ,ES SEE to recover thereunder except as against CITY (including its
elected and appointed officials, employees and volunteers and others working on behalf of
CITY) during the time of LESSEE's occupancy or use. LESSEE agrees that its policies of
insurance will include such a clause or endorsement.
ARTICLE 16 - CONDEMNATION
If all or any part of the Leased Land is condemned for a public use by any government agency
or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND JURIS MINDENBERGS
FEBRUARY 2006
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or taking authority for the amount of any damage incurred by or done to them respectively as a result
of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other
by the condemning authority; provided, that in the event of a single award to CITY which includes
specific damages for loss of LESSEE'S leasehold interest, C1TY shall transmit to LESSEE the
amount of such specific damages so found, if any.
If part but not all of the Leased Land is condemned for public use, LESSEE shall make a
good faith determination as to whether or not the taking of the part of the Leased Land designated for
condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines
in good faith that the condemning of such part of the Leased Land will prevent it from continuing to
operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE
shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such
notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such
termination shall he treated in the same manner as a termination at the expiration of the term of this
LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances,
debts and liens to which the Leased Land is subject. If at the time of such partial taking for public
use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then
LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be
effective on the actual date when LESSEE is effectively prevented from utilizing the condemned
land.
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ARTICLE 17 - ARBITRATION
17.1 Arbitration_
a) Disputes between the parties with respect to the performance of this LEASE that
cannot be resolved by the parties, shall be submitted to an independent arbitrator for a
settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS
09.43.010 et. sect.), as it now exists or may hereafter be amended from time to time,
and judgment on the award may be entered in any Superior Court in the State of
Alaska. Notwithstanding the foregoing, arbitration shall not be applicable to claims
or disputes involving a requested remedy having a value of more than Fifty Thousand
Dollars and No/100s ($50,000) (exclusive of interest and costs). All demands for
arbitration and all answering statements thereto that include any claim must contain a
statement that the total sum or value in controversy, as alleged by the party making
such demand or answering statement, is not more than Fifty Thousand Dollars and
No/100s ($50,000.) The arbitrator will not have jurisdiction, power, or authority to
consider or make findings (except to deny jurisdiction) concerning any claim,
counterclaim, dispute or other matter in question where the amount in controversy of
any such claim, counterclaim, dispute or matter is more than Fifty Thousand Dollars
and No/100s ($50,000). The costs and expenses of arbitration shall be shared equally
by the parties, and each party shall bear its own attorney's fees and costs.
b) Arbitration procedures shall be applicable only to contract, negligence, and similar
claims arising from or related to this LEASE, and shall not be used to resolve or
determine any claim based upon fraud, intentional misrepresentation, nor any claim
based on conduct that is a felony crime in the State of Alaska.
c) Written notice of requests for arbitration of disputes may be served by either party to
this LEASE upon the other party. Arbitration of any dispute or claim shall be
determined by a single arbitrator selected from a list of not less than five arbitrators
obtained from the presiding Superior Court Judge or other appropriate judicial officer
in Anchorage, Alaska. The arbitrator shall be a person who (a) has not less than five
(5) years legal experience in the State of Alaska prior to appointment; and (b) such
legal experience include substantial experience with long-term commercial real
property transactions. Each party shall be provided with a copy of the list and shall
be afforded a maximum of ten (10) working days to become familiar with the
qualifications of the prospective arbitrators. The arbitrator shall be selected by each
party, commencing with the party demanding the arbitration, striking one name from
the list until only a single name remains.
d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other location
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as the parties may agree. Each party shall produce at the request of the other party, at
least thirty (30) days in advance of such hearing, all documents to be submitted at the
hearing and such other documents as are relevant to the issues or likely to lead to
relevant information.
e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska Iaw,
and the written decision shall be supported by substantial evidence in the record.
Failure to apply Alaska law, or entry of a decision that is not based on substantial
evidence in the record, shall be additional grounds for modifying or vacating an
arbitration decision.
ARTICLE 18 - MAINTENANCE AND REPAIRS
18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof, if
any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased Land,
including any improvements placed thereon by LESSEE, in as good condition as received or
constructed by LESSEE, subject to normal, non -abusive use. CITY, at CITY's sole option
and expense, may, prior to the commencement of construction by LESSEE, perform
maintenance and preventative work on the Leased Land, exclusive of improvements placed
thereon by LESSEE, in order to prevent erosion, mitigate damage to plants and animals, or
prepare the Leased Land for eventual development by LESSEE or others by grading, filling.
or contouring the Leased Land. Any such work performed by CITY shall be at CITY's sole
expense and risk unless LESSEE agrees, in advance and in writing, to share such expense
and risk. LESSEE shall maintain in first class condition at all times all fire, pollution and
other protective equipment, if any are placed on Leased Land.
18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance of
LESSEE's maintenance responsibilities as they relate to public health or safety and LESSEE
shall promptly within thirty (30) days of receipt of such notice advise CITY in writing of its
proposed schedule for performance of any work necessary to cure such deficiencies.
If such deficiencies relate to the safety of LESSEE's operation such that the surrounding land
and port facilities are exposed to risk, unnecessary potential hazards, or a risk to the public
interest (as distinguished from a business risk), or if CITY is not satisfied with the proposed
schedule of repairs either because of the delays therein or the scope of the repairs, then CITY
may engage an independent engineering consultant well -versed and experienced who shall
furnish to CITY a comprehensive survey and report for the purpose of establishing both the
need and urgency to perform such maintenance work. As soon as practicable following
receipt of said engineer's determinations and recommendations, if the report requires repair
then LESSEE shall pay the cost of the report and perform st.ich work in accordance therewith
at LESSEE's cost, risk and expense.
LEASE AGREEMENT BETWEEN THE CrrY OF SEWARD AND .TURIS MINDENBERGS
FEBRUARY 2006
-PAGE 20 -
18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being
necessary or advisable or reasonable to protect the public facilities on adjacent land, it may
submit the matter to arbitration; provided, however, that pending the decision of the
arbitrator it shall fully comply with the maintenance requests. If an arbitration award should
ultimately find that the repairs were not necessary then LESSEE may either deduct from
future rental payments the cost of such repairs or be reimbursed therefore. In deciding
whether repairs requested by CITY or required by an engineering report are necessary, the
arbitration panel is to give primary consideration to the safety and welfare of the Seward port
facilities and the citizens of Seward in light of the highest standards in the industry.
If any facility or service provided by CITY to the Leased Land shall become inadequate due
to changes in environmental control standards or should any facility require updating or
improvement by reason of a change in LESSEE's use of the Leased Land or operations there
from, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse
CITY for such work at the option of CITY.
ARTICLE 1.9 - ENVIRONMENTAL CONCERNS
19.1 Hazardous Materials.
a) Condition of Site. LESSEE has had full opportunity to examine the site for the
presence of any Hazardous Material and accepts the site in "as is" condition.
LESSEE may elect, at LESSEE's sole cost, to conduct a baseline soils test prior to
execution of this LEASE.
b) Release of CITY. Any other provision of this LEASE to the contrary notwith-
standing, LESSEE releases CITY from any and all claims, demands, penalties, fines,
judgments, liabilities, settlements, damages, costs or expenses (including, without
limitation, attorney's fees, court costs, litigation expenses, and consultant and expert.
fees) arising prior to, during, and after the term of this LEASE, and resulting from the
use, keeping, storage or disposal of Hazardous Material on the Leased Land by
LESSEE or its predecessors in interest, or arising out of or resulting from LESSEE's
operations at the Leased Land or the operations of its predecessors in interest at the
Leased Land except for those claims arising out of CITY's sole negligence or
intentional misconduct. This release includes, without limitation, any and all costs
incurred due to any investigation of the Leased Land or any cleanup, removal or
restoration mandated by a federal, state or local agency or political subdivision or by
law or regulation.
c) Use of Hazardous Materials on the Site.
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND JURIS MINDENBERGS
FEBRUARY 2006
-PAGE 21 -
i) LESSEE shall not cause or permit any Hazardous Material to be brought
upon, kept or used in or about the Leased Land except for such Hazardous
Material as is necessary to conduct LESSEE's authorized use of the Leased
Land.
ii) Any Hazardous Material permitted on the Leased Land as provided in this
paragraph, and all containers therefore, shall be used, kept, stored and
disposed of in a manner that complies with all Environmental Laws or other
laws or regulations applicable to such Hazardous Material.
iii) LESSEE shall not discharge, leak or emit, or permit to be discharged, leaked
or emitted, any material into the atmosphere, ground, ground water, sewer
system or any body of water, if such material (as reasonably determined by
the City, or any governmental authority) does or may, pollute or contaminate
the same, or may adversely affect the (a) health, welfare or safety of persons,
whether located on the Leased Land or elsewhere; or (b) condition, use or
enjoyment of the Leased Land or any other area or personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and expenses
related to the use, storage and disposal of Hazardous Material kept or brought
on the Leased Land by LESSEE, its authorized representatives and invitees,
and LESSEE shall give immediate notice to CITY of any violation or
potential violation of the provisions of this subparagraph.
d) Indemnification of CITY. Any other provision of this LEASE to the contrary
notwithstanding, LESSEE shall defend, indemnify and hold CITY harmless from and
against any claims, demands, penalties, fines, judgments, liabilities, settlements,
damages, costs or expenses (including, without limitation, attorney, consultant and
expert fees, court costs and litigation expenses) of whatever kind or nature, known or
unknown., contingent or otherwise, arising out of or in any way related to:
i) The presence, disposal, release or threatened release of any such Hazardous
Material which is on or from the Leased Land, soil, water, ground water,
vegetation, buildings, personal property, persons, animals or otherwise;
ii) Any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Material or any use of
the Leased Land;
iii) Any lawsuit brought or threatened, settlement reached or government order
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND .TURIS M[NDENBERGS
FEBRUARY 2006
PAGE 22 -
relating to such Hazardous Material or any use of the Leased Land: and/or
iv) Any violation of any laws applicable thereto; provided, however, that this
Section 19.1(d) shall apply only if the acts giving rise to the claims, demands,
penalties, fines, judgments, liabilities, settlements, damages, costs or
expenses (1) occur prior to or during the term of this LEASE; and (2) arise in
whole or in part from the use of, operations on, or activities on the Leased
Land by LESSEE or LESSEE's predecessors in interest, employees, agents,
invitees, contractors, subcontractors, authorized representatives, subtenants or
any other persons. The provisions of this subparagraph shall be in addition to
any other obligations and liabilities LESSEE may have to CITY at law or
equity and shall survive the transactions contemplated herein and shall
survive the termination of this LEASE.
Operator. For all purposes, LESSEE shall be deemed the operator of any facility on
the Leased Land.
f) Hazardous Material Defined. As used in this LEASE, Hazardous Material is any
substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any
Environmental Law. Hazardous Material includes arty and all material or substances
which are defined as industrial waste hazardous waste, extremely hazardous waste or
a hazardous substance under any Environmental Law. Notwithstanding any statutory
petroleum exclusion, for the purposes of this LEASE, the term Hazardous Material
includes, without limitation, petroleum, including crude oil or any fraction thereof,
petroleum soaked absorbent material and other petroleum wastes.
g)
Environmental Law Defined. As used in this LEASE, Environmental Laws include
any and all local, state and federal ordinances, statutes, and regulations, as now in
force or as may be amended from time to time, relating to the protection of human
health and the environment, as well as any judgments, orders, injunctions, awards,
decrees, covenants, conditions, or other restrictions or standards relating to same.
Environmental Laws include, by way of example and not as a limitation of the
generality of the foregoing, Alaska Statutes Title 46, the Resource Conservation and
Recovery Act of 1976, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and
Reauthorization Act of 1986.
19.2 Permits and Reporting.
a) Permits Required by Other Governmental Agencies. LESSEE shall obtain all permits
or approvals required by any applicable law or regulation. Copies of all such permits
LEASE AGREEMENT BETWEEN THE CITY Oh: SEWARD AND JURIS M1NDENBERGS
FEBRUARY 2006
-PAGE 23 -
shall be provided to CITY prior to LESSEE commencing work under this LEASE.
LESSEE shall promptly make all reports to any federal, state or local government or
agency required by any permit or Environmental Law, including reports of any spill
or discharge of Hazardous Material. The CITY, through the City Manager, may
order LESSEE to immediately cease any operations or activities on the Leased Land
if the same is being carried out without necessary permits, in violation of the terms of
any permit or Environmental Law, or contrary to this LEASE.
b) Correspondence With and Reports to Environmental Agencies. LESSEE shall
immediately provide CITY with copies of all correspondence and notice, including
copies, of all reports between LESSEE and any state, federal or local government or
agency regulating Hazardous Material which relates to LESSEE's operations on or
use of the Leased Land.
ARTICLE 20 - ESTOPPEL CERTIFICATES
Either party shall at any time and from time to time upon not less than ten (l 0) 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.
ARTICLE 21- CONDITIONS AND COVENANTS
All the provisions of this LEASE shall be construed to be "conditions" as well as
"covenants," as though the words specifically expressing or imparting covenants and conditions were
used in each separate provision.
ARTICLE 22 - NO WAIVER OF BREACH
No failure by either CITY or LESSEE to insist upon the strict performance by the other of
any term, covenant 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 terms, covenants or conditions.
No waiver of any breach shall affect or alter this LEASE, but each and every term, covenant and
condition of this LEASE shall continue in full force and effect with respect to any other then existing
or subsequent breach.
LEASE AGREEMENT" BETWEEN THE CITY OF SI WARD AND JURIS MINDENBERGS
I;EBRIJARY 2006
-PAGE 24 -
ARTICLE 23 - TIME OF THE ESSENCE
Time is of the essence of this LEASE and of each provision_
ARTICLE 24 - COMPUTATION OF TIME
The time in which any act provided by this LEASE is to be done by shall be computed by
excluding the first day and including the last, unless the last day is a Saturday, Sunday or a holiday,
and then it is also excluded.
ARTICLE 25 - SUCCESSORS IN INTEREST
Each and all of the terms, covenants and conditions in this LEASE shall inure to the benefit
of and shall be binding upon the successors in interest of CITY and LESSEE.
ARTICLE 26 - ENTIRE AGREEMENT
This I EASE 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 which is not
contained in this LEASE shall be binding or valid.
ARTICLE 27 - GOVERNING LAW
This LEASE shall be governed by, construed and enforced in accordance with the laws of the
State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code of
Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter amended,
including without limitation, Chapter 7.05 of the Seward City Code.
ARTICLE 28 - PARTIAL INVALIDITY
If any 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.
ARTICLE 29 - 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 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 CITY and LESSEE other than the relationship of lessee and lessor_
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND IURIS MINDENBERGS
FEBRUARY 2006
-PAGE 25-
ARTICLE 30 - INTERPRETATION
The language in all parts of this LEASE shall in all cases be simply construed according to its
fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the
opportunity to seek assistance of counsel in drafting and reviewing this LEASE.
ARTICLE31 - CAPTIONS
Captions of the articles, paragraphs and subparagraphs 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.
ARTICLE 32 - AMENDMENT
This LEASE is not subject to amendment except in writing executed by both parties hereto.
ARTICLE 33 - NOTICES
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. Article and to
such other persons and addresses as either party may designate. Notice by mail shall be deemed to
have been given at the time of mailing.
All notices, demands and requests from LESSEE to CITY shall be given to CITY at the
following address:
City Manager
CITY OF SEWARD
PO Box 167
Seward, Alaska 99664
All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the
following address:
Juris Mindenbergs
4128 148i1' Avenue NE
Redmond, Washington 98052
Each party shall have the right, from time to time, to designate a different address by notice
given in conformity with this Article.
LEASE AGREEMENT BETWEEN THE CITY OF Sl W;1RD AND )l.'RIS INDDENB1 RGS
FIBRUARY 2006
ARTICLE 34 - FIRE PROTECTION
LESSEE shall at its sole cost, risk and expense provide fire protection to its operations on the
Leased Land and fire prevention to industry standards for risks to adjacent facilities such that those
risks are minimized. LESSEE shall continue to provide and maintain industry accepted standards of
fire protection such that the City of Seward's ISO rating is not degraded by reason of LESSEE'S
operation. The parties agree that with the rapid expansion of technology in the field of fire
prevention and control LESSEE's obligations hereunder may vary during the term of this LEASE and
CITY may submit LESSEE'S compliance with its obligation hereunder to arbitration not more
frequently than once each five years.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates
herein set forth.
CITY:
CITY OF SEWARD
OitA
By: Clark Corbridge
Its: City Manager
Date: z — / Q —19
AT"I'EST:
Je. Lewis,
Cif Clerk
LESSEE:
Juris Mindenber s
Date:
/
LEASE AGREEMENT BETWEEN THE CITY OF SEWARD AND JURIS MINI}ENBERGS
FEBRUARY 2006
-PAGE 27 -
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this /0 day of Q;inktqoo6, before me, the undersigned,
a Notary Public in and for the State of Alaska, personally appeard Clark Corbridge, known to me
and to me known to be the City Manager for the City of Seward, Alaska, and authorized to execute
documents on its behalf, and is the individual named in and who executed the foregoing document
on behalf of the City of Seward for the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
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STATE OF ALASKA
) ss.
THIRD JUDICIAL DISTRICT
THIS IS TO CERTIFY that on this
a Notary Public in and for the State of Alaska,
and to me known to be the individual named
uses and purposes therein set forth.
Cle.tat]ate_.,
otary Public in and for Alaska
My Commission Expires:. — 141 aC
day of ti' ' y , 2006, before me, the undersigned,
personally appeared Juris Mindenbergs, known to me
in and who executed the foregoing document for the
WITNESS my hand and notarial seal the day and year first hereinabove written.
'N'otatt Pr_ lic in and for Alaska
-aft$ iviy'�a mission Expires: % -,
LEASE AGREEMENT MENT BETWEEN THE CITY OF SFWARD AND JURIS MFNDENBERGS
FEBRUARY 2006
-PAGE 28 -
_c
LEASE EXTENSION AMENDMENT
(RE-06-008)
THE CITY OF SEWARD, ALASKA, a home rule municipal corporation, organized
and existing under the laws of the State of Alaska, hereinafter referred to as "CITY," whose
address is PO Box 167, Seward, Alaska 99664 and Vertical Air LLC., P.O. Box 2032 Seward,
Alaska 99664, hereby agree that the lease agreement 06-008, dated February 24,2006, as
amended, for Lot 5B, Block 1, Seward Small Boat Harbor Subdivision, City of Seward, Alaska
and recorded as Plat No. 2000-19 in the Seward Recording District, Third Judicial District, State
of Alaska is hereby amended as follows:
ARTICLE 2. LEASE TERM and OPTIONS TO EXTEND
The term of this lease shall be extended for sixteen (16) years and shall terminate on
February 24, 2052.
LESSEE shall have the right to extend the Willi of this LEASE for Two additional Five
year (5) year periods, provided that:
a) LESSEE exercises its option to extend at least one hundred and eighty (180) days
prior to the expiration of the then current lease term;
b) LESSEE is not in default under any term or provision of this LEASE; and
c) LESSEE shall exercise its options to extend by sending written notice in
accordance with the provisions of Article 37 of this LEASE.
ARTICLE 4.1 USE OF LEASED LAND
LESSEE shall continue to operate a retail shop throughout the term of the lease, and failure to do
so constitutes a condition of default.
In all other respects, the Lease is to remain unchanged and in full force between the undersigned
parties.
ARTICLE 5.4 LIMITED ACCESS EASEMENT
The City reserves a limited easement across the West fifteen (15) feet of the lease land, for
limited use of and by the City for emergency and utility access, and for access by other shop
owners or lessees of parcels on Block 1, Marina Subdivision and Seward Small Boat Harbor
Subdivision for the limited purposes of emergency use, deliveries and owners/employee parking.
LESSEE agrees to keep this easement clear of obstructions, but LESSEE assumes no
responsibility for snow removal.
Page 1 of 3
LESSOR:
CITY OF SEWARD
Jane
Date:
ower, City Manager
I IL4)7/071-1'
ATT ST:
renda Ballou, C k
(City Seal)
LESSEE:
Linda Chichester, Member
tt
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4•
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iY,r r
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
r.,
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re
THIS IS TO CERTIFY that on this 11 day of V CA n t t4 r , 2022, before
me, the undersigned, a Notary Public in and for the State of Alaska, peionally appeared Janette
Bower, known to me and to me known to be the City Manager for the City of Seward, Alaska,
and authorized to execute documents on its behalf, and is the individual named in and who
executed the foregoing document on behalf of the City of Seward for the uses and purposes
therein set forth.
WITNESS my hQWIN
�ng�seal the day and year first hereinabove written.
•
INoTAR
ail) now
be/7/0
NOTAR P L AND FO . AI,ASKA
My Commission Expires: /0 /5'
Page 2 of 3
STATE OF ALASKA
)ss
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this 7 day of (Ltri,Y-, 2021, personally appeared
before me the undersigned, a Notary Public in and for the State of Alaska, to me known to be
Member Cliff Krug theindividual that executed the foregoing instrument and acknowledged to me
the said instrument to be the free and voluntary act and deed, for the uses and purposes therein
mentioned of the Limited Liability Company and on oath stated that he is authorized to execute
said instrument on behalf of the Limited Liability Company .
WITNESS my hand and notarial seal the day and year first hereinabove written.
Notary Public and for
•
AlaskaMy Commission
Expires: /
STATE OF ALASKA
)ss
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this 77 9 day of G6••E,4, 2021, personally appeared
beforeme the undersigned, a Notary Public in and for the State of Alaska, to me known to be
Member, Linda Chichester the individual that executed the foregoing instrument and
acknowledged to me the said instrument to be the free and voluntary act and deed, for the uses
and purposes therein mentioned ofthe Limited Liability Company and on oath stated that he is
authorized to execute said instrument on behalf of the Limited Liability Company .
WITNESS my hand and notarial seal the day and year first hereinabove written.
11.1. H/I/j�!�
(NoTAxY•
ri ):, PUBLIC
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/(4`
Notary Pic in and for
AlaskaMy Commission
Expires: 9.
Page 3 of 3
CONSENT TO ASSIGNMENT
This CONSENT TO ASSIGNMENT is made and entered into by the City of Seward
("City").
RECITALS
A. The City and Juris Mindenbergs are parties to that certain Lease Agreement L06-
008; dated as of 2/24/2006, as evidenced in that certain Memorandum of Lease
recorded March 2, 2006 as Serial No.2006-000309-0; and
B. The legal description of the leased property is:
Lot 5B Block 1 Seward Small Boat Harbor Subdivision, City of Seward,
Alaska and recorded as Plat No.2000-19 in Seward Recording District,
Third Judicial District, State of Alaska. and
C. Juris Mindenbergs has asked that the City consent to the assignment of all of
right, title, and interest in and to the Agreement to Vertical Air LLC.
CONSENT
1. City hereby consents to the assignment of Juris Mindenbergs right, title
and interest in and to the Agreement to Vertical Air LLC's assumption of all of the
obligations of Juris Mindenbergs (the assignment and assumption of the Agreement is
collectively referred to herein as the "Assignment"). Following the Assignment, the
Agreement shall continue in full force and effect with Vertical Air LLC, substituted for
Juris Mindenbergs as applicable.
The undersigned has executed this Consent to Assignment as of the date set forth
below.
Date: 17-1 2p22--
By:6C, rYii�'=Y
Ja le Bower, City Manager
ATTEST:
Brenda Ballou, ? Clerk
City of Seward
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