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Home My WebLink AboutRES2023-096 Breeze Inn LLC Lease PH• Sponsored by: Regis Public Hearing: August 28, 2023 CITY OF SEWARD, ALASKA RESOLUTION 2023-096 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONSENT ASSIGNMENT TO BREEZE INN, LLC, TO THE LEASE AGREEMENT L04-096 WITH JURIS MINDENBERGS, FOR LOT 3B, BLOCK 1, MARINA SUBDIVISION, CITY OF SEWARD, KENAI PENINSULA BOROUGH PLAT 2005-8, SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA. TO AMEND ARTICLE 3 AND EXTEND THE TERM OF THE LEASE FOR 18 YEARS AND TO ADD TWO FIVE YEAR OPTIONS TO EXTEND WHEREAS, Juris Mindenbergs ("Lessee") has requested an assignment of lease to Breeze Inn, LLC of the existing lease agreement with the City of Seward for 74,180 square feet, more or less of Lot 3B, Block 1, Marina Subdivision, City of Seward, Kenai Peninsula Borough, Plat No. 2005-8 recorded in the Seward Recording District, Third Judicial District, State of Alaska; and WHEREAS, Article 14 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 hotel, restaurant and retail shop and is consistent with current zoning and land use regulations; and WHEREAS, the current lease has been in effect since October 1, 2005; and WHEREAS, the current lease will expire September 30, 2035; and WHEREAS, Breeze Inn LLC, is requesting to extend the lease term by eighteen years and to add two five year options to extend; and WHEREAS, the city is amending Article 3 by adding 3.8, Interim Rental Adjustments. 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 Breeze Inn, LLC, in substantially the form 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 Breeze Inn LLC, in the form presented at this meeting is found to be in the public interest. CITY OF SEWARD, ALASKA RESOLUTION 2023-096 Section 3. The City Manager is hereby authorized to amend and extend the lease with Breeze Inn, LLC, in substantially the form as presented at this meeting is found to be in the public's interest. 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 on the lease site to Breeze Inn, LLC. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of August 2023. AYES: NOES: ABSENT: ABSTAIN: ATTEST: Wells, Finch, Barnwell, McClure None DeMoss, Calhoon, Osenga None Kris Peck City Clerk (City Seal) (.1 SEAL •= C> •‹;R R4;'s.4 % •F• : 0• . •,, ..`i..%• "1 �EOFALP�.�. THE CITY OF SEWARD, ALASKA Sue McClure, Mayor 1 1 1 City Council Agenda Statement Meeting Date: August 28, 2023 To: City Council Through: Norm Regis, Acting City Manager From: Norm Regis, Harbormaster Subject: Resolution 2023-096: Authorizing The City Manager To Enter Into A Consent Assignment To Breeze Inn, LLC, To The Lease Agreement L04-096 With Juris Mindenbergs, For Lot 3B, Block 1, Marina Subdivision, City Of Seward, Kenai Peninsula Borough Plat 2005-8, Seward Recording District, Third Judicial District, State Of Alaska. To Amend Article 3 And Extending The Term Of The Lease For 18 Years And Add Two Five Year Options To Extend Background and justification: Juris Mindenbergs currently has Lease L04-96 containing 74,180 square feet more or less of Lot 3B Block 1 Marina Subdivision, City of Seward, Alaska and recorded as Plat No.2005-8 in Seward Recording District, Third Judicial District, State of Alaska. Juris Mindenbergs has requested approval to assign the lease to Breeze Inn, LLC, which will continue to use the leased land for a Hotel, Restaurant. Article 14 of the lease allows lease assignments upon findings by Council that use is found to be in the public interest. The current lease L04-96 will expire on September 30 2035. Breeze Inn, LLC. would like to request an eighteen year lease extension to the original lease which would make the lease term ending date September 30, 2053. Breeze Inn, LLC. Is also requesting two five-year options to extend on approval of the then council. The City is also amending Article 3 adding 3.8, which was not in the original lease. 3.8 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, 2023 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 CITY's sole discretion, to accomplished as nearly the same result as if the CPI had not been revised or ceased to be published. This is consistent with the methodology used in all new lease actions approved by the Council. ilmi Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: Attract new business and industry to the greater Seward area. Strategic Plan: Other: 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: $ 62,000.00 This legislation (✓): Creates revenue in the amount of: Creates expenditure in amount of: Creates a savings in the amount of: Has no fiscal impact X Funds are (✓): Budgeted Line item(s): Not budgeted Not applicable X $ $62,000.00 $ $ Affected Fund (✓): General Boat Harbor Motor Pool X Available Fund Balance SMIC Parking Other Electric Water $ Wastewater Healthcare Note: amounts are unaudited Finance Director Signature: az X Yes Attorney Signature: Not applicable Comments: Attorney Review MI DS,„,c)-- ca.._CA, Administration Recommendation X Adopt Resolution Other: ASSIGNMENT OF LEASE RE- L09-095 THIS ASSIGNMENT OF LEASE ("Assignment") made and entered into between Juris Mindenbergs, Lessee, 4128 148th Avenue NE, Redmond, Washington 99052, hereinafter called "ASSIGNOR", and Breeze Inn, LLC, P.O. Box 1466 Seward, Alaska 99664, hereinafter called "ASSIGNEE" with the consent of the City of Seward, hereinafter called "LESSOR". WHEREAS, ASSIGNOR and LESSOR, a home rule municipal corporation, organized and existing under the laws of the State of Alaska, are parties to a Lease dated October 1st, 2005, as amended by the First Amendment to Lease Agreement dated September 7, 2006 (collectively as amended, the "Lease"). Subject to the covenants, conditions and stipulations in the Lease, ASSIGNOR leases from LESSOR the following improved real property: Lot 3, Block 1, Marina Subdivision, City of Seward, Alaska and recorded as Plat No.2005-8 in Seward Recording District, Third Judicial District, State of Alaska, consisting of approximately 72,125 square feet, more or less ("Premises"). WHEREAS, ASSIGNOR and ASSIGNEE are parties to a Purchase and Sale Agreement dated June 26, 2023 ("Purchase Agreement"), which includes the sale of the improvements on the Premises and assignment of the Lease. WHEREAS, this Assignment is conditioned upon the occurrence of the following two events and shall only become effective ("Effective Date") on the date which is the later of: 1) thirty (30) days from the date and posting of adoption of a passed and approved resolution by the City Council of Lessor authorizing the City Manager to enter into a Consent to Assignment to ASSIGNEE, or 2) closing under the Purchase Agreement ("Closing Date"). Failure of either condition precedent shall result in this Assignment being null and void. WITNESSETH, that for valuable consideration paid by the ASSIGNEE to the ASSIGNOR, receipt whereof is hereby acknowledged, the ASSIGNOR assigns to the ASSIGNEE all of its right, title and interest in and to the Lease to ASSIGNEE as of the Closing Date. After the Closing Date ASSIGNOR shall have no further obligations under or liabilities arising from the Lease, except; 1) those arising from or related to circumstances prior to the Closing Date; and 2) those based on ASSIGNOR's duty to defend and indemnify the Landlord pursuant to Article 15 of the Lease. ASSIGNEE accepts the assignment and delegation and assumes and covenants during the continuance of said Lease term to pay the rents reserved and to perform the covenants, conditions, and stipulations in said lease, as amended, to be performed by the ASSIGNOR, including without limitation, Article 21— Environmental Concerns and to keep indemnified the ASSIGNOR against all actions, claims, and demands whatsoever in respect to the said rents, covenants, conditions, and stipulations, or anything relating thereto. ASSIGNOR agrees to indemnify, hold harmless and defend ASSIGNEE from and against 4876-6230-7642, v. 2 any obligations, liabilities, costs and claims (including reasonable attorney's fees) arising as a result of or with respect to the Lease that are attributable to the period of time prior to the Closing Date. ASSIGNEE agrees to indemnify, hold harmless and defend ASSIGNOR from and against any obligations, liabilities, costs and claims (including reasonable attorney's fees) arising as a result of or with respect to the Lease that are attributable to the period of time from and after the Closing Date. ASSIGNEE agrees to indemnify LESSOR in accordance with Article 14.1 (d) of the Lease_ This Assignment shall be binding on and inure to the benefit of the ASSIGNOR and ASSIGNEE, their heirs, executors, administrators, successors in interest and assigns. This Assignment shall be governed by and construed in accordance with the laws of the State of Alaska. This Assignment may be executed in multiple counterparts, which together shall constitute one and the same agreement. 4876-6230-7642, v. 2 IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the dates indicated. ASSIGNOR: v Juris Mindenbergs Date ASSIGNEE: Breeze Inn, LLC By: Authorized Members Nicole Lawrence Date 5/1 / z3 Col e Lawrenc Date e/ / c0a3 Pamela Eiting Date U[ 1 fiC Z S ra alf 260?! du /AaOLF F64'1 ,03 STATE OF WASHINGTON THIS IS TO CERTIFY that on this 2bay of , 2023, personally appeared before me the undersigned, a Notary Public in and for the State o Washington, to me known to Juris Mindenbergs who 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 corporation and on oath stated that they are authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public State of Washington CHRISTINE TOBIN My Comm. Expires 07/01/2027 Commission # 208803 OilfaaWt- Notary Public in and for Washington My Commission Expires: 27/0 1 /2021 STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this / day of u(ksr`, 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Colby Lawrence, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. NOTARY PUBLIC '�r�rAlli1111111 Notary Public in and for Alaska My Commission Expires: tib fz q STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this I day of 14t,tGa5f, 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Nicole Lawrence, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. �1111111Allllfl/g1 I L//7-----7— `:31' HUBNotary Public in and for =. G i n �i., Alaska ,�� `; My Commission Expires: i/ f 0 i� YC. c 1- L p/l1f11111111W STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this / day of //0665 ; 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Pamela Eiting, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this J day of it&Or , 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Duke Marolf, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. 1 1/ Notary Public in and for Alaska My Commission Expires: LEASE EXTENSION AMENDMENT (RE-04-096) 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 Breeze Inn LLC, P.O. Box 1466 Seward, Alaska 99664, hereby agree that the lease agreement 04-096, dated October 1, 2005, as amended by the First Amendment to Lease Agreement dated September 7, 2006 (collectively as amended, the "Lease"), for Lot 3B, Block 1, Marina Subdivision, City of Seward, Alaska and recorded as Plat No. 2005- 8 in the Seward Recording District, Third Judicial District, State of Alaska is hereby amended as follows: 1. Article 2 is hereby amended to read as follows: ARTICLE 2. LEASE TERM and OPTIONS TO EXTEND 2.1 Lease Term. The term of this Lease (the Lease Term) shall be in accordance with the CITY'S authorizing Resolution No. 2004-96 and the Resolution approving this amendment ("the collectively "the Resolution"). The Lease Term shall commence October 1, 2005 ("the Effective Date") and shall be extended for and additional eighteen (18) years ending at midnight on September 30, 2053. 2.2 Options to Extend LESSEE shall have the right to extend the term 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) LES SEE shall exercise its options to extend by sending written notice in accordance with the provisions of Article 35 of this LEASE. d) The City Council of City, at the time each option to extend is exercised, approves the extension by resolution or ordinance. 2. Article 3.8 is hereby amended to read as follows: ARTICLE 3 RENTAL RATE and INTERIM RENTAL ADJUSTMENTS 3.8 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, 2024 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 Page 1 of 5 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 CITY's sole discretion, to accomplish as nearly the same result as if the CPI had not been revised or ceased to be published. 3. Article 4.1 is hereby amended to read as follows: ARTICLE 4.1 USE OF LEASED LAND LESSEE shall continue to operate a hotel, and restaurant throughout the term of the lease, and failure to do so constitutes a condition of default. 4. Article 6.1(a) is amended by deleting this Article. 5. Article 11.2 is amended by deleting this Article. 6. Article 12.3 is amended by deleting this Article. In all other respects, the Lease is to remain unchanged and in full force between the undersigned parties. LESSOR: LESSEE: CITY OF SEWARD Norm Regis, Acting City Manager Date Breeze Inn, LLC By: Authorized Members Date: Colb awrence / Date: �/ zD -27 Nicole Lawrence Frederick Duke Marolf Tri/eZ Pamela Eiti 9 5Slr izeT:3 Date: Page 2 of 5 ATTEST: Kris Peck, City Clerk (City Seal) STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of , 2023, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared Norm Regis, known to me and to me known to be the Acting 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. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this / day of Au&wsr, 2023, personally appeared beforeme the undersigned, a Notary Public in and for the State of Alaska, to me known to be Authorized Member Colby Lawrence 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 of the Lirnited 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. A 4 . ............... 1/7// / Notary Vublic in and for Y = AlaskaMy Commission VC Expires: f/ s/ q 'i74.i.E' . ii•r'\-,;, Page 3 of 5 STATE OF ALASKA )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this I day of 4u61"5f 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Nicole Lawrence, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. Notar j/ Public in and for Alaska My Commission Expires: 9Asiz f STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this t day of A t&u5 , 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Frederick Duke Marolf, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. Al�..k i ItlHI /�y NOTARC .`%;./.8:7:.!,:.2t,:,4- 3'4`7/M1Ifl11111C '�` id) Notary Publi in and for Alaska My Commission Expires: Os/z v Page 4 of 5 STATE OF ALASKA )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this / day of 416te5r , 2023, personally appeared before me the undersigned, a Notary Public in and for the State of Alaska, to me known to Pamela Elting, on behalf of Breeze Inn, LLC, who 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 corporation and on oath stated that he is authorized to execute said instrument on behalf of the corporation. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires: , z y Page 5 of 5 A L A s K A After Recording Return to: City of Seward Attention: Harbormaster PO Box 167 Seward, AK 99664 20` 5-001447-0 Recording Dist: 314 - Seward 10/2/2006 12:00 PM Pages: 1 of 3 iu 111 11 1111 N u N uu FIRST AMENDMENT TO LEASE AGREEMENT RE 2004-96 11 11 1111 111111 THE LEASE AGREEMENT dated October 1, 2005 (the "LEASE") for the property described as: Lot 3B, Block 1, Marina Subdivision, Kenai Peninsula Borough, Plat 2005-8, Seward Recording District, Third Judicial District, State of Alaska, containing 72,125 square feet, more or less (the "Leased Land"). Lease Memorandum Recorded as 2006-001191-0. 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"), dba The Breeze Inn, whose mailing address is 4128 148th Avenue NE, Redmond, Washington 98052 is hereby amended as follows: Section 6.1(a) of the Lease is deleted and replaced with: a) LESSEE shall cause to be constructed and operated on the Leased Land a northward extension to the existing hotel, including a Iobby, entry way and parking. This construction is to be completed by June 1, 2007. Section 11.2 of the Lease is deleted and replaced with: Failure by LESSEE to construct in accordance with Articles 4 and 6 hereof, a northward extension of the hotel, a new lobby, entry way and parking on the Leased Land and place the facilities in service by June 1, 2007. Section 12.3 of the Lease is deleted and replaced with: In the event LESSEE fails to construct, in accordance with Article 4 and 6 hereof, a northward extension of the hotel, a new lobby, entry way, and parking on the Leased Land and place the facilities in service by June 1, 11 i i 2007, LESSEE shall, at LESSEE's sole expense, replat the Leased Land by December 31, 2007 to the original plat lines described in the prior leases and amendments referred to as the City of Seward's Lease Numbers RE-67-038 and RE-84-037. If reversion to the prior plat lines is necessitated, LESSEE shall restore, no later than September 1, 2007, improvements on the Leased Land to the same location and condition existing on the Effective Date. In the event of LESSEE's failure to comply with this Section, the City shall have all other rights and remedies described in this Article 12. Section 19.1 of the Lease is amended in part as follows: 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 09.43.310 et. seq.), 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. [The remainder of 19.1 is unchanged.] All other provisions of the Lease remain unchanged and in full force and effect. CITY: CITY OF SEWARD By: Clark Corbridge Its: City Manager -7-06 Date: ATTEST: _ ....' tf Jean Lewis, CM (City Seal) i C, City ig77l11rs tOFSEW LESSEE: Juris Mindenbergs i 111 2 of 3 2006-00144 f 7-0 STATE OF ALASKA THIRD JUDICIAL DISTRICT ) ) ) ss. This is to certify that on the day of5t Vf , 2006, before me, the undersigned Notary Public in and for the State ofAla ka, duly commissioned and sworn as such, personally appeared Clark Corbridge to me and to me known to be the individual named in and who executed the foregoing instrument on behalf of The City of Seward, and acknowledged to me that he signed the same freely and voluntarily for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year first written above. STATE OF ALASKA THIRD JUDICIAL DISTRICT TARY PUBLIC in and for Alaska y Commission Expires: 2-/4067 ) ) ) ss. This is to certify that on the 6'4' day of .F,,'� , 2006, before me, the undersigned Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared Juris Mindenbergs to me and to me known to be the individual named in and who executed the foregoing instrument and acknowledged to me that he signed the same freely and voluntarily for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year first written above. NOTARY PUBLIC in and for Alaska My Commission Expires: j0 (pP-L 10 i ioii ii:ii 111111 3 of 2006-001147-0 LI-1,AS I -I, AGREEMENT between CITY OF SEWARD, ALASKA and Juris Mindenbergs Effective Date: October 1, 2005 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 Term 3 2.2 Interim Right to Possession 3 2.3 Lease Subject to Referendum 3 2.4 Termination 4 2.5 Options to Extend 4 2.6 Prior Leases 4 ARTICLE 3 - RENTAL RATE 4 3.1 Initial Rental Rate 4 3.2 Rental Adjustments 5 3.3 Procedure for Rental Adjustment 5 3.4 Effect of Late Appraisal by CITY 5 3.5 Appraisal by LESSEE 6 3.6 Effective Date of Adjusted Rental Rate 6 3.7 Late Payment Charge 7 ARTICLE 4 - USE OF LEASED LAND 7 4.1 Use of Leased Land 7 4.2 Obligations of LESSEE 7 4.3 No Preferential Rights to Use Public Facilities 7 4.4 Adequacy of Public Facilities 7 4.5 Tariffs and Other Service Fees 8 4.6 Time for Payment of Utilities and Taxes 8 4.7 Other Uses 8 ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 8 5.1 Utilities 8 5.2 Third -Party Improvements 9 5.3 Easements 9 ARTICLE 6 - CONSTRUCTION BY LESSEE 10 6.1 Improvements on Leased Land 10 6.2 City Review of Construction 11 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 C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc ARTICLE 8 - ARTICLE 9 - ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 13.1 13.2 ARTICLE 14 14.1 14.2 14.3 ARTICLE 15 ARTICLE 16 ARTICLE 17 17.1 17.2 ARTICLE 18 ARTICLE 19 19.1 ARTICLE 20 20.1 20.2 20.3 ARTICLE 21 21.1 21.2 ARTICLE 22 ARTICLE 23 ARTICLE 24 ARTICLE 25 ARTICLE 26 ARTICLE 27 ARTICLE 28 ARTICLE 29 ARTICLE 30 ARTICLE 31 ARTICLE 32 ARTICLE 33 ARTICLE 34 ARTICLE 35 ARTICLE 36 FORCE MAJEURE 11 CITY ACTS OF DEFAULT 12 - REMEDIES FOR CITY'S ACTS OF DEFAULT 12 - LESSEE'S ACTS OF DEFAULT 13 - REMEDIES FOR DEFAULT BY LESSEE 14 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 16 Real Property Improvements 16 Personal Property 16 - ASSIGNMENT OR SUBLEASE 16 Assignment ofLease or Subleasing 16 Assignment of Lease for Security 17 Assignment to Affiliate 18 - LESSEE'S DUTY TO DEFEND/INDEMNIFY 18 - CITY'S DUTY TO DEFEND/INDEMNIFY 18 - INSURANCE 19 Minimum Insurance Requirements 19 Subrogation Rights Waived 19 - CONDEMNATION 20 - ARBITRATION 21 Arbitration 21 - MAINTENANCE AND REPAIRS 22 Normal Maintenance 22 Safety Issues 22 Cost of Repairs 23 - ENVIRONMENTAL CONCERNS 23 Hazardous Materials 23 Permits and Reporting 25 - ESTOPPEL CERTIFICATES 26 - CONDITIONS AND COVENANTS 26 - NO WAIVER OF BREACH 26 - TIME OF THE ESSENCE 27 - COMPUTATION OF TIME 27 - SUCCESSORS IN INTEREST 27 - ENTIRE AGREEMENT 27 - GOVERNING LAW 27 - PARTIAL INVALIDITY 27 - RELATIONSHIP OF PARTIES 27 - INTERPRETATION 28 - CAPTIONS 28 - AMENDMENT 28 - NOTICES 28 - FIRE PROTECTION 29 C:\Documents and Settings\ Scottl \Local SettingskTemporary Internet Files \OLK17A \ Breeze Inn Lease Agreement 2005 (11).doc 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"), dba The Breeze Inn, whose mailing address is 4128 148th Avenue NE, Redmond, Washington 98052. WHEREAS, LESSEE has indicated its desire to replat Lots 3A and 7, Block 1, Marina Subdivision, an area of approximately 1.66 acres in size, as more particularly described below; and WHEREAS, the City Council of CITY has determined that continued 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 1.1 Description of Leased Land. The Leased Land is located in the City of Seward, Alaska. The Leased Land is described as follows: Lot 3B, Block 1, Marina Subdivision, Kenai Peninsula Borough, Plat 2005-8, Seward Recording District, Third Judicial District, State of Alaska, containing 72,125 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 OuietEnjoyment; Warranty of Title. Subject to the encumbrances as ofthe 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 tei ui of this LEASE; -1- C:\Documents and Settings \Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc b) CITY owns the Leased Land in fee, and, subject to the conditions described in Sections 2.2 and 2.3 herein, is fully empowered to enter into this Lease; and c) 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 been in possession and control of the Leased Land since 1984 under prior leases, 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 CI Y, 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 therefor 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 peiHHutted 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, -2- C:\Documents and Settings \Scott1\Local Settings\Temporary Internet Files\OLK17A1Breeze Inn Lease Agreement 2005 (11).doc 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, 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 peiinits), 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. 2004-96 (the "Resolution"). The Lease Term shall commence October 1, 2005 (the "Effective Date"). The Lease Term shall run for 30 years, ending at midnight on September 30, 2035. 2.2 Interim Right to Possession. LESSEE is hereby granted a revocable license to enter upon the Leased Land prior to the expiration of thirty (30) days from the date of passage and posting of the Resolution, subject to the terms of this Section. The granting of a revocable license to LESSEE under this Section is for the convenience of LESSEE only and does not grant any interest in the Leased Land. During the term of this revocable license, LESSEE shall not engage in any storage of materials, clearing, grading, excavation or construction of improvements on the Leased Land. CITY may revoke the license granted by this Section at any time, including without limitation upon the filing with the Clerk of CITY a petition for referendum on the Resolution. 2.3 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. The revocable license granted in Section 2.2 shall not affect or reduce the right of the voters of the City of Seward to reject this LEASE by referendum. LESSEE agrees that if the Resolution approving this -3- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc LEASE is the subject of a referendum petition filed with the Clerk of CITY during the term of the revocable license granted by Section 2.2, 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. 2.4 Termination. This LEASE shall terminate at midnight on September 30, 2035. Except for extensions as provided in Section 2.5 below, this LEASE is not subject to renewal. 2.5 Options to Extend. LES SEE shall have the right to extend the term of this LEASE for three (3) additional five (5) year periods (cumulative extensions not to exceed fifteen (15) years), provided that: a) LESSEE exercises any applicable 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; c) LESSEE shall exercise its options to extend by sending written notice thereof in accordance with the provisions of Article 35 of this LEASE; and d) The City Council of CITY, at the time each option to extend is exercised, approves the extension by resolution or ordinance. 2.6 Prior Leases. Leases RE-67-03 8 and RE-84-03 7, encompassing the Leased Land, are hereby terminated upon the Effective Date of this LEASE; provided, however, that all terms and covenants under such prior leases relating to the lessee's agreement to protect, indemnify, defend and save harmless CITY from all liabilities arising under each such prior lease shall survive termination. ARTICLE 3 - RENTAL RATE 3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through December 31, 2005, the annual rental rate for the Leased Land shall be sixty-four cents ($.64) per square foot. CITY and LESSEE agree to use 72,125 square feet for purposes of computing the initial annual rental rate, even if the actual area of the Leased Land is slightly more or less. If a survey later shows the area to be different from the agreed size, the new measurement will be used for computing subsequent rental payments. Past rental payments will not be refunded, in full or part, if a subsequent survey depicts an area measurement less than 72,125 square feet. -4- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc Effective January 1, 2006 through June 30, 2010, the annual rental rate for the Leased Land shall be set at $56,000. 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 Procedure for Rental 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 CITY'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) days 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 with this Article 3. If LESSEE'S appraisal determines a Fair Market Rental Value that varies from that determined by CITY'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 -5- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 MAI appraiser (Member, Appraisal Institute) at LES SEE's expense to make an appraisal under the teinis 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 LES SEE no later than ninety (90) days before the Rental Adjustment Date. 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 LES SEE'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. -6- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files \OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 3.7 Late Payment Charge. Rental payments not received by the due 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, 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 21 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 develop the Leased Land according to the site development plan provided to and approved by CITY, through the City Manager. The preliminary site development plan is attached to this LEASE as Exhibit C and incorporated herein by reference. Any changes to this site development plan 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 construct 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 CITY's public facilities for the uses intended by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the facilities -7- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 who might be interested in leasing the Leased Land should this LEASE be 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 LES SEE'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 LESSEE'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 be 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 oversizing 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 oversizing 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. -s- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 ofthe 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: 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 therefor, 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 -9- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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) LESSEE shall cause to be constructed and operated on the Leased Land a northward extension to the existing hotel, including a lobby, entry way and parking. This construction is to be completed by April 1, 2006. b) The cost of any such construction, reconstruction, demolition, or of any changes, alterations or improvements, shall be borne and paid for by LESSEE. c) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. d) In a manner consistent with Section 4.2, 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. e) 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. b) 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 -10- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 Sections 4.2 and 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 in a particular way. LESSEE shall construct the facility in accordance with final design specifications approved by CITY. CITY's representatives may inspect 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 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 13.1 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 of Lease RE-67-038 and Lease RE-84-037, 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 or prior to 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 ofthe Leased Land contours, including its plans for material extraction and final grade. ARTICLE 8 - 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 God, 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. -11- C:\Documents and Settings \Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc ARTICLE 9 - CITY ACTS OF DEFAULT Each of the following shall be a "CITY Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, when they are used in this LEASE, any one or more of the following events: 9.1 Failure by CITY to fulfill, observe or perform any covenants 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 CITY by LESSEE; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by CITY within the applicable period and diligently pursued until the default is corrected. 9.2 Violation by CITY of any applicable laws or regulations of the United States, the State of Alaska, the Kenai Peninsula Borough, or the City of Seward 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 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 to CITY; 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 CITY within the applicable period and diligently pursued until the violation is corrected. Furthermore, if CITY 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. ARTICLE 10 - REMEDIES FOR CITY'S ACTS OF DEFAULT 10.1 Whenever an act of default by CITY shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired, LESSEE shall have the following rights and remedies in addition to any rights and remedies that may be given to LES SEE by statute, common law or otherwise: a) Withhold payment of any rent otherwise due CITY to the extent of CITY' s default; b) Recover from CITY, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by LESSEE by reason of the default by CITY; and/or c) Declare this LEASE terminated. 10.2 No expiration or termination of this LEASE shall expire or terminate any liability or -12- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A1Breeze Inn Lease Agreement 2005 (11).doc obligation to perform of CITY's which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. 10.3 Each right and remedy of LESSEE provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE, now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by LESSEE of any one or more of the rights and remedies provided for in this LEASE, now or hereafter existing at law or in equity or by statute or otherwise, shall not preclude the simultaneous or later exercise by LESSEE of any or all other rights or remedies provided for in this LEASE, now or thereafter existing at law or in equity or by statute or otherwise. 10.4 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- LESSEE'S ACTS OF DEFAULT Each of the following shall be a "LESSEE Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, any one or more of the following events: 11.1 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. 11.2 Failure by LESSEE to construct in accordance with Articles 4 and 6 hereof, a northward extension of the hotel, a new lobby, entry way and parking on the Leased Land and place the facilities in service by April 1, 2006. 11.3 Failure by LESSEE to observe, fulfill or perform any other 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 default if corrective action is instituted by LES SEE within the applicable period and diligently pursued until the default is corrected. 11.4 The making by LESSEE of an assignment for the benefit of creditors, the filing ofapetition 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 -13- C:\Documents and Settings \Scottl\Local Settings\Temporary Internet Files \OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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. 11.5 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. ARTICLE 12 - REMEDII S 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: 12.1 CITY may distrain for rent due 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 distrained 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. 12.2 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 distrain under sub -paragraph 12.1 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. 12.3 In the event LESSEE fails to construct, in accordance with Article 4 and 6 hereof, a northward extension of the hotel, a new lobby, entry way, and parking on the Leased Land -14- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc and place the facilities in service by April 1, 2006, LESSEE shall, at LESSEE's sole expense, replat the Leased Land by December 31, 2006 to the original plat lines described in the prior leases and amendments referred to as the City of Seward's Lease Numbers RE-67-038 and RE-84-037. If reversion to the prior plat lines is necessitated, LESSEE shall restore, no later than September 1, 2006, improvements on the Leased Land to the same location and condition existing on the Effective Date. In the event of LESSEE's failure to comply with this Section, the City shall have all other rights and remedies described in this Article 12. 12.4 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 limitation 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. 12.5 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. -15- C:\Documents and Settings\Scott1 \Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 12.6 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. 12.7 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. 12.8 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 13 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 13.1 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. 13.2 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 14 - ASSIGNMENT OR SUBLEASE 14.1 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 LESSEE. Therefore, LESSEE shall not assign this LEASE without CITY's prior written consent, in CITY's sole discretion. LESSEE may sublease a portion of the Leased Land or buildings or improvements located thereon only with CITY's prior written consent, which consent shall be granted if: -16- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc a) The use of the Leased Land by the proposed sublessee is compatible with the use of adjacent lands; b) The proposed use is a permitted use under the then existing zoning regulations and comprehensive land use plan; c) LESSEE has made a written request to sublease a portion of the Leased Land or buildings or improvements located thereon and provided CITY with a copy of the sublease agreement. The sublease agreement shall state that it is subject to and subordinate to this LEASE and any amendments thereto; d) The sublessee shall agree to defend, indemnify and hold harmless the CITY, its officials, employees, and agents, from any and all liability or claims for damages, including personal injuries, death and property damage arising out of or resulting from sublessee's use of the Leased Land by themselves, their agents, contractors, guests or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors; e) LESSEE's full faith and credit shall remain obligated under this LEASE as though the sublease had not taken place; f) The sublessee assumes and agrees in writing to pay and perform all of the obligations of LESSEE hereunder including, without limitation, Article 21- Environmental Concerns; and g) The sublessee has credit -worthiness and operating experience suitable to manage any sublet facilities located on the Leased Land. 14.2 Assignment of Lease for Security. Notwithstanding Section 14.1 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 LEASE. 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 12 above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; provided, -17- C:\Documents and Settings\Scott11Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 11.3, CITY shall not exercise any of the remedies afforded to it under Article 12 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 ofits 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. 14.3 Assignment to Affiliate. Notwithstanding Section 14.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2)1 or to an Alaska limited liability company in which LESSEE maintains a controlling membership interest; provided, however, that LESSEE's full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ARTICLE 15 - 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 promptly in writing of such action or proceeding. ARTICLE 16 - 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. t Affiliate means a person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, a corporation subject to the Alaska Corporation Code. -18- C:\Documents and Settings \Scottl \Local SettingslTemporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc ARTICLE 17 - INSURANCE 17.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or LESSEE' S occupancy of the Leased Land, LESSEE shall procure and maintain, at LESSEE'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 DOLLARS ($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 order to provide continuously throughout the tei in 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 37 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 B+ 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. 17.2 Subrogation Rights Waived. To the extent permitted by law, LESSEE hereby releases CITY, -19- C:\Documents and Settings \Scottl \Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 LESSEE 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 18 - 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 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 LES SEE's leasehold interest, CITY 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 LES SEE 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 be 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. -20- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files \OLK17A\Breeze Inn Lease Agreement 2005 (11).doc ARTICLE 19 - ARBITRATION 19.1 Arbitration. a) Disputes between the parties with respect to the perfoi mnance 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. seq.), 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 includes 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. -21 - C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other location 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 law, 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 20 - MAINTENANCE AND REPAIRS 20.1 Normal Maintenance. During the entire teal' 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. 20.2 Safety Issues. CITY may notify LES SEE 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 ofLESSEE'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 such work in accordance therewith at LESSEE's cost, risk and expense. -22- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 20.3 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 ofthe 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 therefor. 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 therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the option of CITY. ARTICLE 21- ENVIRONMENTAL CONCERNS 21.1 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. LESSEE acknowledges that he has been in possession and control of part or all of the Leased Land since May 23, 1984. 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. -23- C:\Documents and Settings\Scott1\Local Settings\Temporary Internet Files\OLK17AtBreeze Inn Lease Agreement 2005 (11).doc c) Use of Hazardous Materials on the Site. 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 therefor, 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: 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; 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; -24- C:\Documents and SettingslScottl\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc iii) Any lawsuit brought or threatened, settlement reached or government order 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 21.1(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. e) 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 any and all material or substances which are defined as "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. 21.2 Permits and Reporting. a) Permits Required by Other Governmental Agencies. LES SEE shall obtain all permits or approvals required by any applicable law or regulation. Copies of all such permits - 25 - C:1Documents and Settings \Scott1\Local Settings\Temporary Internet Files\OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 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 22 - ESTOPPEL CERTIFICATES Either party shall at any time and from time to time upon not less than ten (10) 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, ifthere 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 23 - 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 24 - 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. -26- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files \OLK17A\Breeze Inn Lease Agreement 2005 (11).doc ARTICLE 25 - TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 26 - 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 27 - SUCCESSORS IN INTEREST Each and all of the tell ts, 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 28 - ENTIRE AGREEMENT This LEASE contains the entire agreement of the parties with respect to the matters covered by this LEASE, and no other agreement, statement or promise made by any party which is not contained in this LEASE shall be binding or valid. ARTICLE 29 - GOVERNING LAW This LEASE shall be governed by, construed and enforced in accordance with the laws ofthe 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 30 - 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 31- RELATIONSHIP OF PARTI H;S 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 -27- C:\Documents and Settings \Scott1\Local SettingslTemporary Internet Files\OLK17A1Breeze Inn Lease Agreement 2005 (11).doc relationship between CITY and LESSEE other than the relationship of lessee and lessor. ARTICLE 32 - 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. ARTICLE 33 - CAPTIONS Captions of the articles, paragraphs and subparagraphs ofthis 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 34 - AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 35 - 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 148t Avenue NE Redmond, WA 98052 - 28 - C:\Documents and Settings \Scott1\Local Settings\Temporary Internet Files \OLK17A1Breeze Inn Lease Agreement 2005 (11).doc Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. ARTICLE 36 - 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 office 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. -29- C:\Documents and Settings\Scottl\Local Settings\Temporary Internet Files \OLK17A\Breeze Inn Lease Agreement 2005 (11).doc 71g -06 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: LESSEE: CITY OF SEWARD Juris Mindenbergs By: Clark Corbridge Its: City Manager Date: ATTEST: Lewis, �� C ty Cler (City Seal) STATE OF ALASKA THIRD JUDICIAL DISTRICT Date: ��xe�io-esiri:� OF e± 7 agp4 ' SEALea 411' OF AP` P. ss. This is to certify that on the /• day of i c , 2006, before me, the undersigned Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared Clark Corbridge to me and to me known to be the individual named in and who executed the foregoing instrument on behalf of The City of Seward, and acknowledged to me that he signed the same freely and voluntarily for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year first written above. .00111111144( `eP3k A. SP4 OI co' 0TAR 0• d� PUBLAG ,c ci� yt' i 't•. o1v‘r�:./,* t�,tr C:\Documents and Settings \Scott1\Local Settings\Temporary Internet Files\OLK17A1Breeze Inn Lease Agreement 2005 (11).doc tc--Z A/V4 NOTARY PUBLIC in and fof Alaska My Commission Expires: Z 3 •6-4' -30- STATE OF ALASKA ss. THIRD JUDICIAL DISTRICT This is to certify that on the / 7 '` day of , 2006, before me, the undersigned Notary Public in and for the State of Alaska, du commissioned and sworn as such, personally appeared Juris Mindenbergs to me and to me known to be the individual named in and who executed the foregoing instrument and acknowledged to me that he signed the same freely and voluntarily for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year first written above. 4, NOTARY PUBLIC in and for Alaska My Commission Expires: 3 / / O i -31 - C:\Documents and Settings \Scott1 \ Local Settings\Temporary Internet Files\OLK17A1Breeze Inn Lease Agreement 2005 (11).doc Breeze Inn Lot3B Block 1 Geographic Information Systems 114 North Binkley Street, Soldotna, Alaska 99669 This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. It is not to be used for navigation. DATE PRINTED: 1/14/2022 Legend Mileposts r_; City Limits Highways - Major Roads Roads — Town Medium Volume Town Low/Seasonal; Other Proposed Parcels Image III Red: Band_1 Green: Band_2 ■ Blue: Band_3 Notes Type any notes here. 29 2 T1N T1S 5 28 33 SEWARD BASE LINE SEWARD 9 THIS PLAT 25 VICINITY MAP 1 inch = 1 mile PLAT APPROVAL This plat was approved by the Kenai Peninsula Borough Planning Commission at the meeting of: Mai Z1 Z.0 toc+ Borough OfVcial LEGEND 4. Found Dept. of Highways Brass Cap S Found Rebar & Al. Cap LS 3753 ED Found Rebar & Al. Cap LS 5152 0 Found Rebar & Al. Cap LS 6101 • Found Rebar & P1. Cap LS 7328 al Set 5/8x24" Rebar and Plastic Cap Stamped LS 7569 (R1) (R2) (R.3) (R4) Record Record Record Record Data Do to Data Data Plot Plot Plot Plot 51 76--1 96-4 2000-9 I i 60' 60. 00"(N1 S 8 6 '3 6 4()" 60' fr (i) co (cN4 LOT JB fr) 74,1 80 SEWARD SMALL. BOA T HARBOR SUBD NORTH HARBOR ST N") N89*57'1 6 ''W 269.06' (N89°59 '45"E 59.96 R2) N89.57'1 "W 59.76 0' UTILITY ESMNTa co 0 0 0 (f) 5 0 0 6 .,1)A 58 1 N89*52'31''E 99.98' (S8.9.52'19nW 100.00 R4) 5.x50' Utiltiy Esmnt BLOCK 1 Sq Ft (500°00'7 5"E 7 80.00 (58959'45"W 100.00 91) 589'57'07"W ----- Utiltiy Es n 1 00.1 2 , 20' WALKWAY CS) 9 0 (0 • c)-- cy (N89°59'45”E 14.00 92) 1 A 0 10' UTILITY ESMNT 78.98' mr- N89°55'02nE (N89 '59 '46 "1.7 80.00 R2) 5'89'55'02"W 309.26' r) fr S89 '52 '38" W 13.94' SOUTH HARBOR ST. 1 SE WA RD SMA L.. L. BOAT HARBOR SUBD 33' SOO°00'36"W 180.06' 0 0 co co (0 o) co c3 FOURTH A A/00°00'36"E CURVE DATA CURVE DELTA RADIUS LENGTH CHORD C-1 01 *11 '04" 3819.72' 78.96' NO3*58'58nE 78.96' (07.11'10" 3819.72' 79.07' R2) C 2 00'28'02 3759.72' 30.66' NO3*37'27”E 30.66' (00'28'17" 3759. /2' 30.93' R2) C- 3 867 1 '1 6" 20.00' 30. 09' N4657'067- 27. 33' (86*0.3'45" 20.00' 30.04' R2) C- 4 9328'24" (9,572758" 20.00' 20.00' 32.63' S4320'46”E 29.13' 32.63' R2) WASTEWATER DISPOSAL Plans for wastewater disposal, that meet regulatory requirements are on file at the Department of Environmental Conservation. NOTES 1 The sole purpose of this Plat is to vacate interior Lot Lines. 2 This parcel is subject to the City of Seward's Land Use and Zoning regulations. 3 No permanent structure may be constructed or placed within an easement which would interfere with the ability of a utility to use the easement. SURVEYOR'S CERTIFICATE I hereby certify that; I am properly registered and licensed to practice land surveying in the State of Alaska, this plat represents a survey made by me or under my direct supervision, the monuments shown hereon actually exist as described, and all dimensions and other details are correct to the normal standards of practice of land surveyors in the State of Alaska. L. DATE le Time Requested By Address . 0. 4 c.../ ......................... ar c-) ...* ••••:-:-..-. • : *.- .1, 44. a 41, I 10:2). :: .... yv:.m:+9 NNit och .: :: 5A: si‘ ci :t iN' .E...' il if ar:111:. 0 V*.""47 * ' '.'" - - a-: a .. ,/P.,. 14I ;(ii, 1 . /P ••• .-* c, 0 • <''',0 ''. .. ..• • PA' ........ ".. \- 44 °Ftssio \\I l',- II itituktigli CERTIFICATE OF OWNERSHIP AND DEDICATION I hereby certify that we are the owners of the real property shown and described hereon and that we hereby adopt this plan of subdivision, and grant all easements by our free consent. Clark Corbridge, Interim City Manager City of Seward P.O. Box 167 Seward, AK 99664 NOTARY'S ACKNOWLEDGEMENT FOR C SUBSCRIBED AND SWORN TO BEFORE ME THIS Y (( ( DAY OF , 20 NOTARY FOR ALASKA( MY COMMISSION EXPIRES LESSEE CERTIFICATE I hereby certify that I am the lessee of the property as shown hereon, pnd that I hereby approve this subdivision. // ( Juris Mindenbergs Breeze Inn P.O. Box 2147 V Seward, AK 99664 NOTARY'S ACKNOWLEDGEMENT FOR ,`..-7) \\ c.)\ SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF \I V\ (\ NOTARY FOR ALASKA 20 ow/4v CDMMSSI0N EXPIRES Ric Me '441N'Eon4L%- le. 00,0 OW, 1.11.111, ftetm 5. MARINA SUBDIVISION MINDENBERGS REPLAT A RESUBDI VISION OF LOTS 7 AND 3A BLOCK 1, MARINA SUBDIVISION WITHIN THE SW 1/4, SECTION 3 T 1 S, R 1 W, SEWARD MERIDIAN, ALASKA CITY OF SEWARD SEWARD RECORDING DISTRICT CONTAINING 1.70 ACRES CLINE AND ASSOCIATES LAND SURVEYORS 416 4th AVENUE PO BOX 2703 SEWARD, AK 99664 (907) 224-7324 FAX (907) 224- 6088 DATE: 03/23/05 SCALE: 1”=60' DRAWN: WNC F.D. BK.: 0 07 DRAWING NO.: 03-52FP K.P.B. FILE #: 2004-135 5--etavice to 5 Al E INSULA BDROU 144 N. BINKLEY SOLDOTNA, ALASKA • 99669-7599 BUSINESS (907) 262-4441 FAX (907)262-1892 DALE BAGLEY MAYOR CERTIFICATE OF TAX DEPARTMENT I, Rhonda K. Krohn, Property Tax and Collections Supervisor for the Kenai Peninsula Borough, do hereby certify that all real property taxes levied by the Kenai Peninsula Borough through December 31, 20D4 have been paid for the area(s) described as: Subdivision: MARINA SUBDIVISION MINDENBERGS REPLAT Parcel # 14731009-8 TO1S R01W S03 SW0760001 MARINA SUB LOTS 1 & 7 & 8 BLK 1 Lot 7 Blo ck 1 Parcel # 14731017-1 TO1S R01W S03 SW0960024 MARINA SUB REPLAT OF LOTS 3 4 8 BLK 1 Lot 3A Block 1 Effective January 1, 2005 the 2005 estimated taxes of $32,575.94 were aid on the above property(s). However, if the estimated taxes are less han the actual taxes levied on July 1, 2005, the difference is a lien against the property(s) until paid. Witness my hand and seal this 24th day of May, 2005. hil 14. K. Kr hn Property Tax and Collections Supervisor