HomeMy WebLinkAboutRES2024-039 PH Assingment Gateway Texaco LeaseI
Sponsored by: Sieminski
Public Hearing Date: July 8, 2024I
CITY OF SEWARD, ALASKA
RESOLUTION 2024-039
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, APPROVING A LEASE ASSIGNMENT OF LEASE 2000-02
FROM THE ESTATE OF JAMES T. PRUITT, SUCCESSOR IN INTEREST
TO JAMES T. PRUITT (LESSEE) TO HARBOR GATEWAY, INC. AN
ALASKA DOMESTIC CORPORATION
WHEREAS, the City is owner of real property described as Lot 1, Block 10, Seward
Small Boat Harbor Subdivision, City of Seward, Alaska and recorded as Plat No. 2000-19 in the
Seward Recording District, Third Judicial District, State of Alaska; and
WHEREAS, this parcel was leased to James T. Pruitt in 2000 for a term of thirty years
which expires on August 23, 2030, pursuant to the terms of that certain Restated Lease Agreement
effective December 14, 2000 (“the Lease”); and
WHEREAS, Article 2.5 of the Lease provided the Lessee an option to extend the term of
the Lease for two (2) additional five (5) year terms subject to City Council approval; and
I WHEREAS, James T. Pruitt passed away on October 29, 2022; and
WHEREAS, Tracie Allene Williams as Personal Representative of the Lessee would like
to fully assign the Lease to Harbor Gateway, Inc. (“Assignee”), an Alaska domestic corporation
(“the Assignment”); and
WHEREAS, Article 14 of the Lease provides that the Lessee shall have the right to assign
the Lease upon the prior written consent of the City of Seward; and
WHEREAS, the current policy of the City is to not extend or modify any leases unless
they include an interim rental adjustment that allows the City to adjust rates annually; and
WHEREAS, the Parties could not come to an agreement upon an amendment to the Lease
effectuating the City’s policy on interim rental adjustments; and
WHEREAS, the benefits of granting the Assignment outweigh allowing the Lease to
continue under the current Lessee (Estate of James T. Pruitt); and
WHEREAS, the City Council at the time Assignee requests to utilize the option to extend
may decide against an extension pursuant to Article 2.5(d) of the Lease; and
WHEREAS, granting the Assignment is in the public interest and consistent with the
City’s Comprehensive Plan and the Strategic Plan.I
CITY OF SEWARD, ALASKA
RESOLUTION 2024-039
Page 2 of 2 I
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA that:
Section 1. The City Manager is authorized to consent to the Assignment in substantially
the form attached hereto which is found to be in the public’s interest.
Section 2. This resolution shall take effect 30 days from the date and posting of adoption.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 8th
day of July 2024.
THE CITY OF SEWARD, ALASKA
Sue McClure, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
Barnwell, Wells, Finch, Osenga, Calhoon, Crites, McClure
None
None
None
I
ATTEST:
Kris Peck
City Clerk
(City Seal)
%
I S^L )
I
City Council Agenda Statement
Meeting Date: July 8, 2024
To: City Council
Through: Kat Sorensen, City Manager
From: Tony Sieminski, Harbormaster
Subject: Resolution 2024-039: Approving a Lease Assignment of Lease 2000-02 from
the Estate of James T. Pruitt, Successor in Interest to James T. Pruit (Lessee)
to Harbor Gateway, Inc. an Alaska Domestic Corporation
Background and justification:
Jim Pruitt (Lessee) has leased and operated Gateway Texaco since May 1, 1984, and has made
many improvements to the property. The latest council approved Amendment was effective
December 14, 2000, referred to as 2000-02. On October 29, 2022, Jim Pruitt passed away. The
City was contacted on July 11, 2023, by Tracie Allene Williams (Executor) and asked to consent
to remove Jim Pruitt from the lease and add Gateway Harbor, Inc. as the sole lessee.
The current lease L2000-02 will expire on August 23, 2030. Originally, there were discussions
with the management of Gateway Harbor, Inc. (Tracie Allene Williams and Craig Thomas Pruitt)
on a lease amendment and extension. The amendment would have provided for interim rental
adjustments to adjust rental rates annually and would have added a twenty-three (23) year lease
extension which would make the lease term end date September 30, 2053. The interim rental
adjustment is a standard provision contained in most new and renegotiated leases with the City.
Ultimately, the parties were not able to come to an agreement on the amendment. While the current
City policy is to have more frequent rental adjustments, having one definitive lessee, rather than
the Estate of Jim Pruitt, deceased, presents less contractual risk to the City. Options to extend the
term under the Lease require Council approval. Due to the relatively short remaining term (six
years) and the need for a more definitive lessee, management determined to recommend approval
of the Assignment to the Council. In 2030, at the time of the renewal, if the City’s preference for
leases with interim rental adjustments remains, the Council can elect not to exercise the contract
option and terminate the lease.
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: 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.
Other:
Certification of Funds
Total amount of funds listed in this legislation: $ 0
This legislation ():
Creates revenue in the amount of: $
Creates expenditure in amount of: $
Creates a savings in the amount of: $
Has no fiscal impact
Funds are ():
Budgeted Line item(s):
Not budgeted
Not applicable
Fund Balance Information
Affected Fund ():
General SMIC Electric Wastewater
Boat Harbor Parking Water Healthcare
Motor Pool Other
Note: amounts are unaudited
Available Fund Balance $
Finance Director Signature:
Attorney Review
Yes Attorney Signature: /s/ Kody P. George
Not applicable Comments:
Administration Recommendation
Adopt Resolution
Other:
CONSENT TO ASSIGNMENT OF LEASE
Lease 2000-02
RECITALS
A. The City and the Estate of James Thomas Pruit as successor in interest to
James Pruitt are parties to that certain Lease Agreement RE-84-043 dated as of May 1,
1984 and Amended effective December 14, 2000 by that certain Restated Lease
Agreement, as evidenced by that certain Memorandum of Lease recorded April 4, 2004 as
Serial No. 2004-001074-0 ("the Lease").
B. The legal description of the leased property is:
Lot 1, Block 10, Seward Small Boat Harbor Subdivision, City of
Seward, Alaska, Plat No. 2000-19, Seward Recording District,
Third Judicial District, State of Alaska
C. The Estate of James Thomas Pruitt, through Personal Representative Tracie
Allene Williams (Exhibit A Certificate of Death dated October 29, 2022 and Letters of
Administration dated November 15, 2022) has asked the City to consent to the assignment
of all of the Estate's right, title, and interest in the Lease to Harbor Gateway, Inc. and has
signed a proposed Assignment of Leasehold Interest dated March 22, 2024 (Exhibit B
Assignment of Leasehold Interest) for the City's approval and consent.
CONSENT TO ASSIGNMENT
Upon the effectiveness of Resolution 2024- approved by the City Council
(Exhibit C), the City of Seward and pursuant to Article 14 of the Lease, the City hereby
consents to the assignment of the Estate of James Thomas Pruitt's right, title, and interest
in and to the Lease to Harbor Gateway, Inc. and its assumption of all of the obligations of
the Estate of James Thomas Pruitt dated March 22, 2024 (the assignment and assumption
of the Agreement is collectively referred to herein as the "Assignment"). Following the
Assignment, the Lease shall continue in full force and effect with Harbor Gateway, Inc.
substituted for the Estate of James Pruitt successor in interest to James Pruitt, as applicable.
The undersigned has executed this Consent to Assignment as of the date set forth on
the signature page below.
Page 1 of 2
[SIGNATURE PAGE]
CITY OF SEWARD
Date: By:
Kathleen Sorenson, City Manager
ATTEST:
Kris Peck, City Clerk
STATE OF ALASKA )
)ss
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of 2024, before me, the
undersigned, a Notary Public in and for the State of Alaska, personally appeared Kathleen
Sorenson, known to me and to me known to be the City Manager of 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:
Page 2 of 2
Chelsea Ray Rieldcola
Alaska Bar Assoc. Member 91406061
FOLEY&PEARS ON, P.C.
4300 B Street, Suite 400
Anchorage, AK 99503
(907) 522-2272
chelsea@foleypearson.com
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
In the Matter of the Estate
of
0
!a James Thomas Pruitt,
ca
C4
t3 Deceased.
• Case No. 3 AN-� 6�7 0/-,2-PR
0
LETTERS OF ADMINISTRATION
The Statement of Informal Appointment of Personal Representative having been
signed by the Probate Master, Tracie A. Williams is appointed Personal Representative of
2
the estate.
Mf 'N®r
MW
ow fi
Date Probate 9*"ster
of
NdF
4 *4[PF
>W .
A
Estate of James Thomas Pruitt
3 AN�- a I q�-P R
Letters of Administration
Page I of 3
ACCEPTANCE
1, Tracie A. Williams, accept the duties and promise to perfonn the duties as required
by law of the office of Personal Representative of the Estate of James Thomas Pruitt. I
acknowled my duty as Personal Representative to:
ge
(a) take possession and control of deceden-Vs property as required by AS
13.16.380, determine the liabilities of the estate, and complew an inventory as required by
AS 13.16.3 65;
(b) provide notice to heirs and devisees as required by AS 13.16,360, except as
provided by AS 13.16.690;
(c) provide notice to creditors as required by law, publish notice when required,
and review and either accept or reject claims as required by AS 13.16.455-.515;
(d) advise the court in Writing of my address and telephone number as required
tn by Probate Rule 8;
0 0'
U (e) pay homestead, exempt property and family allowances as required by AS
< Cq 13.12.401-,405 costs of admini*stration and other claims as required by AS 13.16A70, and
distribute the assets of the estate; and
0
(f) close the estate as soon as appropn*ate as required by AS 13-16.620-.670.
I will file any required bond.
Date Traci . Williams,5 Personal Representative
Address: I . Box 121
Seward,A- K 99664
Phone: (907) 362-2209
Estate of Jamcs Thomas Pruitt
3AN-22 f2"-)q�PR
Letters of Administration
Page 2 of 3
VERIFICATION
STATE OF AL ASK A
) SS.
ITHR-D JUDICIAL DISTRICT
Trade A. Williams, being first duly swom upon oath, deposes and states as follows:
I have reviewcd the LETTERS OF ADMINISTRATION and believe the same to be
true.
Trade A. Williams
SUBSCRIBED AND SWORN to before me this day of
0 k r
al
0 z Ir"11
U 1 2022, at Anchorage, Alaska.
S1 All L'vs I,%"A
Nd��RY PU
Crystal u Morris
4.2023
0
Notary PAlic in and for Ala��a
My Commission Expires:
lip
Estate of James Th onias Pruitt
3AN-2t��`- �,Z-� c 01-
/
Letters of Administration
Page 3 of 3
ASSIGNMENT OF LEASEHOLD INTEREST
THIS ASSIGNMENT, entered into between THE ESTATE OF JAMES
THOMAS PRUITT, AKA JAMES T. PRUITT, c/o TRACIE A. WILLIAMS,
Personal Representative, P.O. Box 944, Seward, Alaska, 99664,
assigns its right, title, and interest in the Lease Agreement
(hereinafter referred to as the "Lease" ) entered into on December
14, 2000 (the "Effective Date" ) , amended April 22, 2004
("Amendment" ) . with the City of Seward, hereinafter referred to as
the "City" , to HARBOR GATEWAY, INC. , an Alaska corporation, whose
address is P.O. Box 944, Seward, Alaska, 99664, and agree as
follows :
RECITALS
A. TRACIE A. WILLIAMS was appointed Personal Representative
of the THE ESTATE OF JAMES THOMAS PRUITT, on November 15, 2022, and
is the duly appointed qualified and acting Personal Representative
of the above-named estate, having been appointed Personal
Representative in informal proceedings in the Anchorage Superior
Court, filed under Case No . 3AN-22-02792PR. The THE ESTATE OF JAMES
THOMAS PRUITT is the current Lessee, referenced in the Lease,
involving the following described real property:
LOT ONE (1) . BLOCK TEN (10) . SEWARD SMALL HARBOR
SUBDIVISION, according to Plat 2000-19, filed in
the Seward Recording District, Third Judicial
District, State of Alaska.
B. A complete, accurate, and unaltered copy of the Lease
referenced in Recital A, along with the recorded Amendment are
attached to this document and incorporated herein as though fully
set forth.
C. Pursuant to Paragraph 14 . 3 of the Lease, Assignment to
Affiliate, the THE ESTATE OF JAMES THOMAS PRUITT has agreed to
assign to HARBOR GATEWAY, INC. , all right, title and interest as
Lessee in the Lease . HARBOR GATEWAY, INC. has agreed to assume the
duties and responsibilities of said Lease .
D. The parties formalize their agreement as follows :
Page 1 of 3
AGREEMENT
1. THE ESTATE OF JAMES THOMAS PRUITT agrees to and does
assign to EA OR GATEW&Y, INC. , all right, title, and interest of
THE ESTATE OF JAMES THGMAS PRUITT, as Lessee of the Lease, pursuant
and subject to Paragraph 1 .3 of the Lease.
2-4w EARBGR GATEWAY, INC. agrees to and does assume all duties
and responsibilities f Lessee of the Lease. HARBOR GATEWAY, INC. ,
as Lessee, agrees to protect, indemnify and defend the THE ESTATE
or i- S TRUMA.S RUITT, from the performance of the duties and
obligations of the Lease.
3. This agreement shall be winding upon and inure to the
benefit of heirs, personal representatives, successors and assigns
f the respective parties,. The principles of good faith shall
govern the terms of this agreement in all respects, and the parties
shall fully cooperate to do all things ,necessary and appropriate t
accomplish the purposes, terms and objectives of this agreement.
Not by way of limiting the generality of the foregoing in any way,
the parties shall execute all documents, and perform all things
appropriate to effectuate the purposes, forms and objects of this
agreement.
IN WITNESS , the said ssig r has hereunto set its
hand and seal this g-1 day of2024,3Z
SIGNATURE OF ASSIGNOR:
EST ESTA E AME TIG� PRUITT
A
TR 1
IE A. WILLIAI rs nal Representative.
IN WITNESS , the sa ssign has hru set its
hand and seal this i day f , 2202
SIGNATURE OF ASSIGNEE
�1
TRIE WILLIAMS,, President
Page 2 of
STATE OF ALA
:SS
THIRD JUDICIAL DISTRICT)
THIS IS TO C3CRTIFY that on this day of Wrc/tI4...
2024, before me the undersigned Notary Public in and for the State of Alaska,
personally appeared TRACIE WILLIAMS known to me to be the person named in the
foregoing instrument, in her capacity as Personal Representative of THE ESTATE
OF JAMES THOMAS PR ITT and President of HARBOR GATEWAY, INC. and acknowledged tc
me that she executed the same freely and voluntarily for the uses and purposes
therein contained.
IN WITNRSS HER OF, I have hereunto set my hand and seal the day and
year first here inabove written.
NOTXA? PUBLIC, -,�a�te of�Alaska
oon My Commissicn Expir
l
1 XV A.
d" 4,
PUBLIC :
404,30
V'-
4 1�111t OF N\ �8
Page 3 of 3
RESTATED LEASE AGREEMENT
between
City �eward, Alaska
and
James T. Pruitt
Effective Date:December 14,2000
TABLE OF CONTENTS
ARTICLE 1 LEASED LAND Page 2
1.1 Description of Leased Land Page 2
1.2 Covenant of Quiet Enjoyment;Warranty of Title Page 2
1.3 Survey of Leased Land Page 2
1.4 Property Accepted"As-is" Page 2
1.5 Permits Page 3
1.6 Platting Page 3
ARTICLE 2 LEASE TERM Page 4
2.1 Lease Term Page 4
2.2 Interim Right to Possession Page 4
2.3 Lease Subject to Referendum Page 4
2.4 Termination Page 4
2.5 Options to Extend Page 4
1.'aTICLE 3-RENTAL RATE Page 5
3.1 Initial Rental Rate Page 5
3.2 Rental Adjustments Page 5
3.3 Procedure for Rental Adjustment Page 5
3.4 Effect of Late Appraisal by CITY Page 6
3.5 Appraisal by LESSEE Page 6
3.6 Effective Date of Adjusted Rental Rate Page 7
3.7 Late Payment Charge Page 7
ARTICLE 4-USE OF LEASED LAND Page 7
4.1 Use of Leased Land Page 7
4.2 Obligations of LESSEE Page 7
4.3 Adequacy of Public Facilities Page 8
4.4 Time for Payment of Utilities and Taxes Page 9
4.5 Other Uses Page 9
ARTICLE 5-UTILITIES AND RIGHTS OF ACCESS Page 9
5.1 Utilities Page 9
5.2 Easements Page 10
ARTICLE 6-CONSTRUCTION BY LESSEE Page 10
6.1 Improvements on Leased Land Page 10
6.2 City Review of Construction Page 11
ARTICLE 7-RETURN OF LEASED LAND/SITE CONDITIONS Page 12
7.1 Return of Leased Land in Original Condition Page 12
Page i
7.2 Return of Leased Land in Different Condition Page 12
ARTICLE 8-FORCE MAJEURE Page 12
ARTICLE 9-CITY ACTS OF DEFAULT Page 12
9.1 Page 12
9.2 Page 12
ARTICLE 10-REMEDIES FOR CITY'S ACTS OF DEFAULT Page 13
10.1 Page 13
10.2 Page 13
10.3 Page 13
10.4 Page 13
ARTICLE 11-LESSEE'S ACTS OF DEFAULT Page 14
11.1 Page 14
11.2 Page 14
11.3 Page 14
11.4 Page 14
11.5 Page 15
ARTICLE 12-REMEDIES FOR DEFAULT BY LESSEE Page 15
12.1 Page 15
12.2 Page 15
12.3 Page 15
12.4 Page 16
12.5 Page 16
12.6 Page 16
12.7 Page 16
ARTICLE 13-TITLE TO IMPROVEMENTS INSTALLED BY LESSEE Page 16
13.1 Real Property Improvements Page 16
13.2 Personal Property Page 16
ARTICLE 14-ASSIGNMENT OR SUBLEASE Page 17
14.1 Assignment of Lease or Subleasing Page 17
14.2 Assignment of Lease for Security Page 18
14.3 Assignment to Affiliate Page 18
ARTICLE 15-LESSEE'S DUTY TO DEFEND/INDEMNIFY Page 19
ARTICLE 16-CITY'S DUTY TO DEFEND/INDEMNIFY Page 19
Page ii
ARTICLE 17-INSURANCE Page 19
17.1 Minimum Insurance Requirements Page 19
17.2 Subrogation Rights Waived Page 20
ARTICLE 18-CONDEMNATION Page 21
ARTICLE 19-ARBITRATION
Page 21
19.1 Arbitration Page 21
ARTICLE 20-MAINTENANCE AND REPAIRS Page 22
20.1 Normal Maintenance Page 22
20.2 Safety Issues Page 23
20.3 Cost of Repairs Page 23
ARTICLE 21-ENVIRONMENTAL CONCERNS Page 24
21.1 Hazardous Materials Page 24
21.2 P erm-its and Rep orti ng Page 26
ARTICLE 22-ESTOPPEL CERTIFICATES Page 27
ARTICLE 23-CONDITIONS AND COVENANTS Page 27
ARTICLE 24-NO WAIVER OF BREACH Page 27
ARTICLE 25-TIME OF THE ESSENCE Page 27
ARTICLE 26-COMPUTATION OF TIME Page 27
ARTICLE 27-SUCCESSORS IN INTEREST Page 27
ARTICLE 28-ENTIRE AGREEMENT Page 28
ARTICLE 29-GOVERNING LAW Page 28
ARTICLE 30-PARTIAL INVALIDITY Page 28
ARTICLE 31-RELATIONSHIP OF PARTIES Page 28
ARTICLE 32-INTERPRETATION Page 28
ARTICLE 33-NUMBER AND GENDER Page 28
Page iii
ARTICLE 34-MANDATORY AND PERMISSIVE Page 28
ARTICLE 35-CAPTIONS Page 29
ARTICLE 36-AMENDMENT Page 29
ARTICLE 37-NOTICES Page 29
ARTICLE 38-FIRE PROTECTION Page 29
Page iv
e
RESTATED LEASE AGREEMENT
THIS RESTATED 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 PO Box 167,Seward,Alaska 99664 and JAMES T.
PRUITT(the"LESSEE"),dba Gateway Texaco Liquor and Food Mart,whose mailing address
is Post Office Box 944,Seward,Alaska,99664.
WHEREAS,LESSEE has indicated his desire to continue to lease a parcel of land
located at a portion of former Tract A,North Harbor Subdivision,Seward,Alaska;
WHEREAS,the prior lease,Lease Number RE-84-043,has been in effect since May 1,
1984;
WHEREAS,the City Council adopted Resolution 2000-076 approving a long term lease
with James T.Pruitt for an extended lease term to take advantage of improved financing
arrangements for improvements completed on the lease site,to update the lease agreement using
the current form?,terms and conditions applicable to new CITY leases,anti to establish a new
legal description of the lease site by completing and recording a plat of the lease site;
WHEREAS,the City Council adopted Resolution 2000-114 approving the addition to
the lease site of a strip of land ten(10)feet in width along the south boundary of the North
Harbor Parking Lot,formerly Tract A,Block 1,North Harbor Subdivision;and approving certain
amendments to the lease approved by Resolution 2000-076 and permitting the amended terms to
be included in a restatement of the LEASE;
WHEREAS,the City Council of CITY has determined that a lease of the Leased Land 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:
City of Seward/Restated Lease
J:IDOCS143374106\RestatedwVJ$pruitt lease4-01.wpd Page 1
RESTATEMENT OF LEASE
This Restated Lease Agreement,herein referred to as the"LEASE,"supersedes and
replaces that certain lease agreement between the parties dated August 24,2000 and that certain
lease amendment no. 1 dated October 30,2000. This LEASE includes a restatement of the lease
agreement approved by City Council Resolution 2000-076 together with the amended lease terms
approved by City Council Resolution 2000-114. The purpose of restating the LEASE is(1)to
terminate the prior lease known as Lease Number RE-84-043;(2)to provide an effective date for
this LEASE;(3)to incorporate the amended lease terms;and(4)to incorporate as the description
of the Leased Land,the lease site as platted on December 13,2000. This LEASE shall hereafter
be the lease agreement described in City Council Resolutions 2000-76 and 2000-114.
ARTICLE 1 LEASED LAND
1.1 Description of Leased Land. The Leased Land is located in the City of Seward,Alaska,
and described as follows(herein referred to as the"Lease Land"):
Lot One(1),Block Ten(10),SEWARD SMALL BOAT HARBOR
SUBDIVISION,according to Plat 2000-19,filed in the Seward Recording
District,Third Judicial District,State of Alaska.
1.2 Covenant of Quiet Enjoyment;Warranty of Title. Subject to the encumbrances as of the
date hereof,any reasonable restrictions imposed on the Leased Land as part of filing 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 term of this LEASE;
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. Following the effective date of the Resolution approving this
LEASE,CITY,at its sole cost,caused the Leased Land to be surveyed and platted by a
land surveyor registered in the State of Alaska. The plat including the Leased Land was
completed and recorded on December 13,2000 and is attached to this LEASE as Exhibit
A and shall be incorporated herein by reference.
1.4 Property Accepted"As-is". LESSEE acknowledges that it has inspected the Leased Land
and accepts the same"as-is"and without reliance on any expressed or implied
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWVJBpruitt lease4-01.wpd Page 2
representations or warranties of CITY(other than the representations in Section 1.2
hereof),or agents of CITY,as to the actual physical condition or characteristics thereof
and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A
hereto. LESSEE represents that he is in full compliance of all terms and conditions,
expressed and implied,under the prior lease,Lease Number RE 84-043.
1.5 Permits. LESSEE,at his sole cost,shall obtain all permits necessary to the construction
and operation of his 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 permitted on the Leased
Land by the terms of this LEASE. However,nothing in this Section shall be construed as
requiring CITY to support or approve any such application or permit requests. If the
agency or public body responsible to approve or grant such application or permit request
is a City of Seward agency,department,or board,LESSEE shall follow all City of
Seward procedures;the same as any other applicant making similar requests of the City of
Seward,according to the Charter,ordinances,resolutions,or any regulation,rules or
procedures of the City of Seward. Nothing in this Section imposes any duty or
responsibility on CITY to assist LESSEE in obtaining any other permits or approvals,
including without limitation those required by the U.S.Army Corps of Engineers(e.g.,
wetland fill permits),the Environmental Protection Agency(e.g.,Clean Air Act permits),
the Alaska Department of Public Facilities and Transportation(e.g.,right-of-way
permits),the Alaska Department of Fish and Game,and the Alaska Department of
Environmental Conservation.
1.6 Platting. In the event CITY elects to replat,CITY agrees to include the Leased Land in
such replat in accordance with the description in Section 1.1 hereof and Exhibit A hereto.
If LESSEE requests a replat of the Leased Land following execution of the LEASE,
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.
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWJBpruitt lease4-01.wpd Page 3
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.2000-076(the"Resolution"). The Lease Term shall
commence with the signing of the Lease by both parties following the filing of a plat of
the Leased Land and that date shall be the effective date of this LEASE. The Plat
including the Leased Land was recorded December 13,2000,and for all purposes under
this LEASE, 12:01 a.m.,December 14,2000,shall be deemed the effective date(the
"Effective Date")of this LEASE. The Lease Term shall run for approximately thirty(30)
years from the effective date of the Resolution,ending at midnight on August 23,2030.
2.2 Interim Right to Possession. LESSEE may remain on the Leased Land under the terms of
the prior Lease,Lease Number RE 84-048,pending platting of the Leased Land and
execution of this LEASE.
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 LEASE is the subject of a referendum petition filed with the Clerk of
CITY during the applicable thirty(30)day term,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. Should this LEASE be voided by referendum,
the prior Lease,Lease Number RE-84-043,shall remain in effect without change for the
term specified therein.
2.4 Termination.Lease Number RE-84-043 shall terminate upon the Effective Date of this
LEASE. Notwithstanding the foregoing,the indemnification provision(Article X of
Lease No.RE 84-043)of the prior lease shall survive termination of the prior lease
together with any other provisions of the prior lease which are expressly stated therein to
survive termination. The execution of this LEASE shall not release or limit LESSEE's
responsibility or liability for any environmental pollution liability as a lessee of the
Leased Land under the prior lease. This LEASE shall terminate approximately thirty(30)
years from the effective date of the Resolution,that is to say at midnight on August 23,
2030.Except for extensions as provided in Section 2.5 below,this LEASE is not subject
to renewal.
2.5 Options to Extend. LESSEE shall have the right to extend the term of this LEASE for
two(2)additional five(5)year periods(cumulative extensions not to exceed ten(10)
years),provided that:
City of Seward/Restated Lease
J:\DOCS1433741061RestatedwVJBpruitt lease4-01.wpd Page 4
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 37 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.
ARTICLE 3-RENTAL RATE
3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE and through June
30,2005,the annual rental rate for the Leased Land shall be set at$19,741. (CITY and
LESSEE agree to use 18,078 square feet for purposes of computing the initial annual
rental rate,even if the actual area of the Leased Land is 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 18,078 square feet.)
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 1,2005,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 MAI-certified
appraiser,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
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWJBpruitt lease4-01.wpd Page 5
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 MAI-certified appraiser 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
LESSEES appraisal determines a Fair Market Rental Value that varies from CITY'S
appraisal by more than twenty percent(20%),then,unless CITY and LESSEE agree on a
rate themselves,the adjusted annual rental rate of the Leased Land shall be determined in
accordance with the arbitration provisions contained in Article 19 of this LEASE.
3.4 Effect of Late Appraisal by CITY. If,for any reason,CITY does not complete the
appraisal or deliver a copy of the appraisal report to LESSEE ninety(90)days before the
Rental Adjustment Date,CITY may proceed to complete the appraisal or deliver a copy
of the appraisal report to LESSEE at any time thereafter. However,any such adjusted
annual rental rate shall not be effective until the quarterly payment due date immediately
following the date CITY delivers the appraisal report to LESSEE.
3.5 Appraisal by LESSEE. If for any particular Rental Adjustment Date,CITY fails to obtain
an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the
LESSEE by the Rental Adjustment Date,LESSEE may engage an independent MAI-
certified appraiser at LESSEE's expense to make an appraisal under the terms of this
Article 3 and submit a copy to CITY before the next quarterly rental payment due date.
However,LESSEE must notify CITY in writing within thirty(30)days following the
Rental Adjustment Date of LESSEE's election to obtain an appraisal. If CITY objects to
LESSEES 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 MAI-certified appraiser 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 LES SEE'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 LESSEES 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.
City of Seward/Restated Lease Page 6
J:\DOCS1433741061RestatedWVJBpruitt lease4-01.wpd g
3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by
this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the
appraisal report to LESSEE no-later than ninety(90)days before the Rental Adjustment
Date. If the adjusted annual rental rate is based on CITY'S late appraisal or late delivery
of the appraisal report to LESSEE,the adjusted rental rate shall be effective beginning
with the quarterly rental payment due date immediately following the date the CITY
delivers the appraisal report to LESSEE. Notwithstanding the above,the exercise by
either CITY or LESSEE of the objection procedure relating to rental adjustment described
in this Article 3 shall not postpone LESSEE's obligation to pay rent at the rate established
by CITY. LESSEE shall pay the amount of rent as established or adjusted by CITY until
the question of objection to the rental rate is finally resolved. At such time the objection
to the rental rate is resolved,an appropriate credit or adjustment shall be made retroactive
to the date the new rental rate was established by CITY or in cases where CITY failed to
obtain an appraisal or deliver the appraisal report to the LESSEE,to the Rental
Adjustment Date.
3.7 Late Payment Charge. Rental payments not received by the due date shall bear interest
until paid at a_rate of 10.5%per antrum;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 Lease Number RE 84-043 and any prior
leases of any portion of the Leased Land 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) Prior to the Effective Date of this LEASE,LESSEE shall provide City an as-built
survey depicting all existing improvements to the Leased Land.
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedYNfBpruitt lease4-01.wpd Page 7
e) LESSEE shall either(1)remove,at LESSEE'S own expense,the encroaching
free-standing Texaco sign,curbing and other items that encroach on the State of
Alaska right-of-way;(2)provide CITY with a copy of a permit from the State of
Alaska allowing the encroaching Texaco sign and other items to remain in the
State of Alaska right-of-way;or(3)defend,indemnify and hold harmless CITY in
the manner provided by Article 15 hereof,for any and all costs,damages,or
liability suffered by CITY because of such encroachments. Any encroachments
existing as of the date of this LEASE shall not be expanded.
f) LESSEE shall,at his own expense,be responsible for any utility improvements,
changes,relocation,or design changes associated with development of the Leased
Land. LESSEE shall also be responsible for relocating the existing electric box
from the ten(10)foot strip of land added to the Leased Land by City Council
Resolution 2000-114 and shall provide all necessary easements in connection with
placement of the electric box at another location on the Leased Land.
g) LESSEE shall,within one hundred eighty(180)days of the Effective Date of this
LEASE,at his own expense,build,install,erect,cause to be built or otherwise
install a raised sidewalk,constructed to City standards,along the south boundary
of the North Harbor Parking Lot. This sidewalk shall be constructed in such a
manner that the southern raised edge of the sidewalk is aligned along the surveyed
and platted boundary line of the expanded lease site to clearly separate the Leased
Land from the North Harbor Parking Lot. The sidewalk itself shall be located on
the CITY's North Harbor Parking Lot adjacent to the Leased Land. The sidewalk
shall be the property of the CITY and once completed,maintained by the City.
LESSEE shall cooperate with the CITY concerning the standards for constructing
the sidewalk and construction scheduling,with each subject to CITY approval.
All costs related to construction of the sidewalk shall be the sole responsibility of
and paid for by LESSEE.
h) A portion of the Leased Land,more specifically described as a strip of land ten
(10)feet in width along the south boundary of the North Harbor Parking Lot(Lot
Two(2),Block Ten(10),Seward Small Boat Harbor Subdivision,according to
Plat 2000-19),shall be designated a loading zone and used solely as a vehicle
delivery and loading zone. Employees and customers of LESSEE shall not be
allowed to park in this designated loading zone. This area shall be posted as a
loading zone for delivery vehicle use only.
4.3 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 are sufficient for the intended uses by LESSEE. CITY makes no representations
City of Seward/Restated Lease Page 8
J:\DOCS\43374I06\Restatedw aVJBpruitt lease4-01.wpd g
or warranties of any nature with respect to the commercial practicability or accuracy of
any information provided by CITY.
4.4 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.
4.5 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 LESSEE's intended operations, In so
doing,LESSEE shall comply with all CITY regulations and requirements,and the tariffs
of the affected utilities,with respect to the construction of those utilities. CITY agrees to
cooperate and assist the LESSEE,through consultation and review,in 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. CITY adopted the Uniform
Building Code, 1997 edition,and all construction shall be in compliance thereto. 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 LESSEE'S
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.
LESSEE shall not be entitled to any refund,rebate,or payments from CITY for any rent,
investment,or costs incurred by LESSEE with respect to any required permits for
construction or operation of LESSEE's facilities on the Leased Land,it being the intent of
the parties that the risk of obtaining required permits be solely a risk undertaken by
LESSEE.
City of Seward/Restated Lease
J_\DOCS\43374106\RestatedwVJBpruitt lease4-01.wpd Page 9
5.2 Easements. In order to provide for the orderly development of the Leased Land and
adjacent lands,it maybe necessary,desirable or required that street,railroad,water,
sewer,drainage,gas,power line and other easements and dedications and similar rights
be granted or dedicated over or within portions of the Leased Land. As additional
consideration for this LEASE,CITY and LESSEE each shall,at the request of the other,
join with each other in executing and delivering such documents from time to time and
throughout the Lease Term as may be appropriate,necessary,or required by the several
governmental agencies(including the City of Seward),public utilities and other users or
tenants of CITY land for the purpose of granting such easements and dedications;
provided,however,that such easements and dedications and similar rights do not
unreasonably interfere with LESSEE's operations.The costs of locating or relocating any
public easements or restrictions of record including any relocation of public road,
railroad,utility,or other easements shall be at the sole cost and expense of the party
requesting the relocation. CITY shall not refuse reasonable requests for such relocations
provided those relocations do not interfere with or inhibit the overall development of
CITY property or other public property. Any easements or rights of access granted to
LESSEE by CITY need not be exclusive to LESSEE.
ARTICLE 6-CONSTRUCTION BY LESSEE
6.1 Improvements on Leased Land. LESSEE shall have the right to erect,maintain,alter,
remodel,reconstruct,rebuild,build and/or replace buildings and other improvements on
the Leased Land,subject to the following conditions:
a) Improvements shall require prior approval of CITY.
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 materi.almen'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
encroaching 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.
City of Seward/Restated Lease
J:\DOCS%43374106\RestatedWVJBpruitt lease4-01.wpd Page 10
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. In the event that LESSEE elects to
construct the facility with its own personnel and equipment,or the personnel and
equipment of any corporation or person that is an"affiliate"of LESSEE as such
term is defined in AS 10.06.990(2)1,a performance bond shall be required when
the cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS
($50,000).
g) CITY may,as contemplated by Alaska Statutes,give notice of non-responsibility
for any improvements constructed or effected by LESSEE on the Leased Land.
h) LESSEE shall comply with all federal,state and local statutes and regulations
with respect to such construction including any required finding by the City
Council of Seward that such action is in the public interest.
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 LES SEE's facilities on the Leased Land,by reviewing the design thereof
prior to the commencement of construction. CITY shall have the right to comment upon
that design and to require LESSEE to make reasonable changes so as to avoid
interference with public operations,but the exercise of these rights shall not imply any
obligation to do so nor any obligation to do so nor any obligation to do so in a particular
way. LESSEE shall construct the facility in accordance with final design specifications
approved by CITY. CITY's representatives may monitor the work and shall have access
to the site at all reasonable times. LESSEE shall be solely responsible for completing all
improvements according to LESSEE's plans and specifications and shall bear all risk,
responsibility,and liability for properly surveying the Leased Land before construction
and to place all improvements on the Leased 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.
1Affiliate 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.
City of Seward/Restated Lease
J:\DOCS1433741061RestatedwVJBpruitt lease4-01.wpd Page 11
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 the prior lease,Lease
Number 84-043,and any other prior lease held by the LESSEE or his predecessors in
interest,relating to any portion of the Leased Land,subject to normal,non-abusive use.
The Leased Land shall be free of all Hazardous Materials and contamination arising out
of or resulting from or occurring during LESSEE's operations or use of the Leased Land
during this LEASE or any prior lease including any portion of the Leased Land.
7.2 Return of Leased Land in Different Condition. Notwithstanding the provisions of Section
7.1 above,upon termination of this LEASE for any reason LESSEE may return the
Leased Land in a re-contoured or graded clean, safe,and stable condition different from
its original condition provided CITY grants written approval of LESSEE's plans for
development of the Leased Land contours,including its plans for material extraction and
final grade.
ARTICLE 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.
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
City of Seward/Restated Lease Page 12
J:\DOCS143374106\RestatedWVJBpruitt lease4-01.wpd g.
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
LESSEE 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
c) Declare this LEASE terminated.
10.2 No expiration or termination of this LEASE shall expire or terminate any liability or
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
City of Seward/Restated Lease
J_\DOCS\43374106\RestatedwVJBpr¢itt lease4-01.wpd Page 13
such right and power may be exercised from time to time and as often as may be deemed
expedient.
ARTICLE 11-LESSEE'S ACTS 4F 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 observe,fulfill or perform any covenants,conditions or agreements
on its part to be observed or performed under this LEASE for a period of thirty(30)days
after written notice specifying such failure,requesting that it be remedied,and stating that
it is a notice of default,has been given to LESSEE by CITY;provided,however,that if
said default is such that it cannot be corrected within the applicable period,it shall not
constitute an act of default if corrective action is instituted by LESSEE within the
applicable period and diligently pursued until the default is corrected.
11.3 The making by LESSEE of an assignment for the benefit of creditors,the filing of a
petition in bankruptcy by LESSEE,the adjudication of LESSEE as insolvent or bankrupt,
the petition or application by LESSEE to any tribunal for any receiver or any trustee for
itself or for any substantial part of its property;or the commencement of any proceeding
relating to LESSEE under any bankruptcy,insolvency,reorganization,arrangement or
readjustment of debt law or statute or similar law or statute of any jurisdiction,whether
now or hereafter in effect which shall remain undismissed for a period of six(6)months
from the date of commencement thereof.
11.4 Violation by LESSEE of any laws or regulations of the United States,or of the State of
Alaska,or any conditions of any permits issued by agencies of the City of Seward,the
Kenai Peninsula Borough,the State of Alaska or of the United States Government
applicable to LESSEE's use of the Leased Land,pursuant to the regulations of such
agencies,for a period of sixty(60)days after written notice specifying such violation has
been given by the agency charged with the enforcement of such laws,regulations or
permits to LESSEE;provided,however,if such violation be such that it cannot be
corrected within the applicable period,it shall not constitute an act of default if corrective
action is instituted by LESSEE within the applicable period and diligently pursued until
the violation is corrected.Furthermore,if LESSEE shall contest such alleged violation
through appropriate judicial or administrative channels,the time period specified herein
shall not commence until such proceedings are finally determined provided such
proceedings are diligently pursued;provided,however,that any such extension of time
shall not be effective if the effect of the interim administrative or judicial action is to
City of Seward/Restated Lease Page 14
J:\DOCS143374106\RestatedWVJBpruitt lease4-01.wpd g
cause a stoppage,interruption or threat to the activities of any person or entity other than
those of LESSEE.
11.5 Failure by LESSEE to complete construction in accordance with Articles 4 and 6 hereof.
ARTICLE 12-REMEDIES FOR DEFAULT BY LESSEE
Whenever an act of default by LESSEE shall have occurred,and any applicable period for
giving notice and any opportunity to cure shall have expired,CITY shall have the following
rights and remedies all in addition to any rights and remedies that may be given to CITY by
statute,common law or otherwise:
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 45.09.504)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 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 an amount to be due immediately on breach equal to the unpaid rent for
the entire remaining term of this LEASE.
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
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedVWJBpruitt lease4-01.wpd Page 15
of the premises,reasonable attorneys 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.
12.4 If LESSEE does not immediately surrender possession of the Leased Land after
termination by CITY and upon demand by CITY,CITY may forthwith enter into and
upon and repossess the Leased Land and expel LESSEE without being deemed guilty in
any manner of trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or breach of covenant.
12.5 No expiration or termination of this LEASE shall expire or terminate any liability or
obligation to perform of LESSEE's which arose prior to the termination or expiration
except insofar as otherwise agreed to in this LEASE.
12.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall
be in addition to every other right or remedy provided for in this LEASE or now or
hereafter existing at law or in equity or by statute or otherwise,and the exercise or
beginning of the exercise by CITY of any one or more of the rights and remedies
provided for in this LEASE or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all
other rights or remedies provided for in this LEASE or now or thereafter existing at law,
or in equity or by statute or otherwise.
12.7 No delay or omission to exercise any right or power accruing following an act of default
shall impair any such right or power or shall be construed to be a waiver thereof,but any
such right and power may be exercised from time to time and as often as may be deemed
expedient.
ARTICLE 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
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWVJBpruitt lease4-01.wpd Page 16
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 only with CITY'S prior written consent,which
consent shall be granted if:
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 the Leased Land with a copy of
the sublease agreement to the CITY;
d) The portion of the Leased Land to be sublet is limited to the area within the
footprint of the building existing as of effective date of this LEASE. (No portion
of the Leased Land may be sublet,leased,rented,or used by any subtenant if not
contained within such building footprint,e.g.,no expresso stands or food carts.)
e) 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 sublessees 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;
f) LESSEE'S full faith and credit shall remain obligated under this LEASE as
though the sublease had not taken place;and
g) 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.
City of Seward/Restated Lease
J:\DOCS%433741061RestatedYNJBpruitt lease4-01.wpd Page 17
Prior to execution of this LEASE,LESSEE shall provide CITY with copies of any
existing sublease agreements relating to the prior lease,Lease Number RE 84-043.
CITY'S consent is hereby granted for the sublessees listed on Exhibit B attached hereto;
provided,however,that all such subleases are first subordinated to this LEASE in
writing. All later subleases shall also be subordinated to this LEASE in writing.
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,
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 of its security interest,Lender may further assign,transfer,or dispose of
its interests,provided that any subsequent assignee,purchaser or transferee shall
remain bound by each and every term of this LEASE.
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)2;provided,
however,that LESSEE's full faith and credit shall remain obligated under this LEASE as
though the assignment had not taken place.
2Affiliate means a person that directly or indirectly through one or more intermdeiaries controls,or is controlled by,or is under
common control with,a corporation subject to the Alaska Corporation Code.
City of Seward./Restated Lease
J:IDOCS1433741061RestatedWVJBpruitt lease4-01.wpd Page 18
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.
ARTICLE 17-INSURANCE
17.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or
LESSEES 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)f6r all
injuries and/or deaths resulting to any one person and ONE MILLION DOLLARS
($1,000,000)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 also include
collapse and underground property damage hazards. Contractual liability insurance
coverage in the amount of not less than ONE MILLION DOLLARS($1,000,000)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.
LESSEE shall also procure and maintain environmental pollution liability insurance in
the amount of not less than ONE MILLION DOLLARS($1,000,000)and in such
additional amount as may be required by state or federal statutes or regulations for the
operation of a facility containing under ground fuel storage tanks.
City of Seward/Restated Lease Page�9
JADOCS1433741061RestatedWVJBpruitt lease4-0l.wpd
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 term of this LEASE and any extensions
hereof,a level of protection consonant with good business practice and accepted
standards in the industry. Such factors as changes in the type of or extent of use of the
Lease Land,increases in the cost of living,inflationary pressures,and other
considerations,shall be utilized in assessing whether the minimum insurance require-
ments 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,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,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.
City of Seward/Restated Lease
J:\DOCS1433741061RestatedWVJBpruitt lease4-01.wpd Page 20
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 LESSEE'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 LESSEE
determines in good faith that the condemning of such part of the Leased Land will prevent it
from continuing to operate on the Leased Land,LESSEE may notify CITY in writing to this
effect,and this LEASE shall then be terminated for all purposes effective fifteen(15)days from
the date LESSEE sends such notice to CITY,or at such other later date as LESSEE shall specify
in its notice,and such termination shall_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.
ARTICLE 19-ARBITRATION
19.1 Arbitration.
a) Disputes between the parties with respect to the performance of this LEASE that
cannot be resolved by the parties,shall be submitted to an independent arbitrator
for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act
(AS 09.43.010 et.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,
City of Seward/Restated Lease
J:IDOCS1433741061RestatedW Bpruitt lease4-01.wpd Page 21
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 o f th e list and shall be afforded a maximum of ten(10)working days
to become familiar with the qualifications of the prospective arbitrators. The
arbitrator shall be selected by each party,commencing with the party demanding
the arbitration,striking one name from the list until only a single name remains.
d) Arbitration hearings shall be conducted in Anchorage,Alaska or such other
location 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 term of this LEASE and every extension hereof,
if any,LESSEE shall,at LESSEE's sole cost,risk and expense,maintain the Leased Land,
including any improvements placed thereon by LESSEE,in as good condition as received
or constructed by LESSEE,subject to normal,non-abusive use. CITY,at CITY's sole
option and expense,may,prior to the commencement of construction by LESSEE,
perform maintenance and preventative work on the Leased Land,exclusive of
improvements placed thereon by LESSEE,in order to prevent erosion,mitigate damage
City of Seward/Restated Lease
J:IDOCS143374106\RestatedVNJBpruitt lease4-01,wpd Page 22
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 LESSEE in writing of any deficiencies in the
performance of LESSEE's maintenance responsibilities as they relate to public health or
safety and LESSEE shall promptly within thirty(30)days of receipt of such notice advise
CITY in writing of its proposed schedule for performance of any work necessary to cure
such deficiencies.
If such deficiencies relate to the safety of LESSEE's operation such that the surrounding
land and port facilities are exposed to risk,unnecessary potential hazards,or a risk to the
public interest(as distinguished from a business risk),or if CITY is not satisfied with the
proposed schedule of repairs either because of the delays therein or the scope of the
repairs,then CITY may engage an independent engineering consultant well-versed anal
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.
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 of the
arbitrator it shall fully comply with the maintenance requests. If an arbitration award
should ultimately find that the repairs were not necessary then LESSEE may either deduct
from future rental payments the cost of such repairs or be reimbursed 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.
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWVJBpruitt 1ewe4-01.wpd Page 23
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 acknowledges he is the original occupant of the Leased Land under prior
leases and that he has used a portion of the Leased Land for retail motor fuel sales
and currently has underground fuel storage tanks on a portion of the Leased Land.
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,or 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 arising out of or resulting from LESSEE's operations
at the.Leased Land under this or any prier lease of any portion of the Leased Land
by LESSEE or LESSEE'S assignees or predecessors in interest,except for those
claims arising out of CITY's sole negligence or intentional misconduct. This
release includes,without limitation,any and all costs incurred due to any
investigation of the Leased Land or any cleanup,removal or restoration mandated
by a federal,state or local agency or political subdivision or by law or regulation.
c) Use of Hazardous Materials on the Site.
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
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWVJBpruitt lease4-01."d Page 24
elsewhere;or(b)condition,use or enjoyment of the Leased Land or any
other area or personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and
expenses related to the use,storage and disposal of Hazardous Material
kept or brought on the Leased Land by LESSEE,its authorized
representatives and invitees,and LESSEE shall give immediate notice to
CITY of any violation or potential violation of the provisions of this
subparagraph.
d) Indemnification of CITY. Any other provision of this LEASE to the contrary
notwithstanding,LESSEE shall defend,indemnify and hold CITY harmless from
and against any claims,demands,penalties,fines,judgments,liabilities,
settlements,damages,costs or expenses(including,without limitation,attorney,
consultant and expert fees,court costs and litigation expenses)of whatever kind
or nature,known or unknown,contingent or otherwise,arising out of or in any
way related to:
i) The presence,disposal,release or threatened release of any such
Hazardous Material which is on or from the Leased Land,soil,water,
ground water,vegetation,buildings,personal property,persons,animals or
otherwise;
ii) Any personal injury(including wrongful death)or property damage(real
or personal)arising out of or related to such Hazardous Material or any use
of the Leased Land;
iii) Any lawsuit brought or threatened,settlement reached or government
order 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 during the term of this LEASE; (2)arise in
whole or in part from the use of,operations on,or activities on the Leased
Land by LESSEE or LESSEE'S employees,agents,invitees,contractors,
subcontractors,authorized representatives,subtenants or any other
persons;or(3)occurred during the term of any prior lease of any portion
of the Leased Land previously leased by LESSEE,his assignees,affiliates,
or predecessors in interest. The provisions of this subparagraph shall be in
addition to any other obligations and liabilities LESSEE may have to
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedwWJBpruitt lease4-01.wpd Page 25
CITY at law or equity and shall survive the transactions contemplated
herein and shall survive the termination of this LEASE.
e) Facility 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,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. LESSEE shall obtain all
permits or approvals required by any applicable law or regulation. Copies of all
such permits 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
City of Seward/Restated Lease
J:\DOCS\43374106\RestatedWVJBpruitt lease4-01.wpd Page 26
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,if there has been any amendment thereof,that the same is in full force and effect as
amended and stating the amendment or amendments),that there are no defaults existing(or,if
there is any claimed default,stating the nature and extent thereof);and stating the dates to which
the rent and other charges have been paid in advance.
ARTICLE 23-CONDITIONS AND COVENANTS
All the provisions of this LEASE shall be deemed as running with the land,and shall be
construed to be"conditions"as well as"covenants,"as though the words specifically expressing
or imparti---ng 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.
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 teens,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.
City of Seward/Restated Lease
J:\DQCS143374106`RestatedWVJBpruitt lease4-01.wpd Page 27
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 of
the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code
of Ordinances of CITY in effect on the date of this LEASE,and as they may be hereafter
amended,including without limitation,Chapter 7.05 of the Seward City Code.
ARTICLE 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 PARTIES
Nothing contained in this LEASE shall be deemed or construed by the parties or by any
third person to create the relationship of principal and agent or of partnership or of joint venture
or of any association between CITY and LESSEE;and neither the method of computation of
rent,nor any other provisions contained in this LEASE nor any acts of the parties,shall be
deemed to create any relationship between CITY and LESSEE other than the relationship of
lessee and lessor.
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-NUMBER AND GENDER
In this LEASE,the neuter gender includes the masculine and the feminine,and the
singular number includes the plural;the word"person"includes corporation,partnership,firm or
association wherever the context so requires.
ARTICLE 34-MANDATORY AND PERMISSIVE
"Shall," "will"and"agrees"are mandatory; "may"is permissive.
City of Seward/Restated Lease
J:IDOCS143374106\RestatedVVVJBpruitt lease4-01.wpd Page 28
ARTICLE 35-CAPTIONS
Captions of the articles,paragraphs and subparagraphs of this LEASE are for
convenience and reference only,and the words contained therein shall in no way be held to
explain,modify,amplify or aid in the interpretation,construction or meaning of the provisions of
this LEASE.
ARTICLE 36-AMENDMENT
This LEASE is not subject to amendment except in writing executed by both parties
hereto.
ARTICLE 37-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:
James T.Pruitt d/b/a
Gateway Texaco Liquor and Food mart
P.O.Box 944
Seward,Alaska 99664
Each party shall have the right,from time to time,to designate a different address by
notice given in conformity with this Article.
ARTICLE 38-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
City of Seward/Restated Lease
7:1DOCS143374106\RestatedNWJBpruitt lease4-01.wpd Page 29
of fire prevention and control LESSEE's obligations hereunder may vary during the term of this
LEASE and CITY may submit LESSEE's compliance with its obligation hereunder to arbitration
not more frequently than once each five years.
IN WITNESS WHEREOF,the parties hereto have set their hands and seals the dates
herein set forth.
CITY: LESSEE:
CITY OF SEWARD
By: W.Scott Jank J es T.Pruitt
Its: City Manager
Date:Date. . ' .� ...
AT ST:
Patrick ,City Clerk
(City Seal)
ol'9111Wss,
ell
s
a
4 04'0.T�'�**'
AL
4 r tr� 4
V49
".�=?.. �F>¢� it"`5'�" -r}✓
City of Seward/Restated Lease
J:\DOCS1433741061RestatedwVJBpruitt lease4-01.wpd Page 30
ACKNOWLEDGMENTS
STATE OF ALASKA )
ss:
THIRD JUDICIAL DISTRICT )
THIS CERTIFIES that on this day of May,2001,before me,the undersigned
Notary Public in and for the State of Alaska,personally appeared W. Scott Janke,known to me
and to me known to be the City Manager for the City of Seward,Alaska,and acknowledged to
me that he knows the contents of the foregoing document and executed the foregoing document
on behalf of the City of Seward for the purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
o-vAR
°
/ram
�„ *� .� Ilrytary Publ c in and fnr Alaska
.., -•,
•, ��� �,,.` My Commission Expires: Z
i
f��l;,u�1ME� 1 I1Ig�
STATE OF ALAS KA )
ss:
THIRD JUDICIAL DISTRICT )
THIS CERTIFIES that on this day of May,2001,before me the undersigned,a
Notary Public in and for the State of Alaska,personally appeared James T.Pruitt,known to me
and to me known to be the individual named herein and acknowledged to me that he knows the
contents of the foregoing document and executed the foregoing document for the uses and
purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
j•i..
• a
• 44-
Ov.•
Notary Public in and for Alaska
My Commission Expires: Zb.3
City of Seward/Restated Lease
J:\DOCS1433741061RestatedwVJBpruitt lease4-01.wpd Page 31
2004-001074oO
Recording Dist:314-Seward
A 6/17/2004 1:01 PM Pages: 1 of 7
A
s
K
A
LEASE NO: RE-2000-02
LESSOR: CITY OF SEWARD
LESSEE: JAMES T.PRUITT
RESTATED LEASE AGREEMENT
This Restated Mernoran.dmin of Lease was orig beginning
inally recorded in Book 105,beginng at Page 797,
Seward Recording District,Third Judicial District,State of Alaska.
Lease Amendment No. L reduces lease size by eliminating a strip of land 10 feet in
width located along north boundary of Leased Land. Resolution 2004-28.
This Cover Sheet Has Been Added To This Document By:
City of Seward,Harbor Department
To Provide Space For Recording Data.
This Cover Sheet Appears As The First Page Of The
Docun-nent In The Official Public Record.
Lease Amendment#1 To the Restated Lease Agreement Between the City of
Seward,Alaska and James T.Pruitt
This Lease Amendment is made by the City of Seward, a home rule municipal
corporation located in the Kenai Peninsula Borough, State of Alaska whose mailing
address is P.O. Box 167, Seward, Alaska 99664 (the "City"), James T. Pruitt d/b/a
Gateway Texaco Liquor and Food Mart whose mailing address is P.O.Box 944,Seward,
Alaska 99664(the"Lessee"), and Harbor Gateway, Inc., P.O. Box 944, Seward,Alaska
99664("Lessee's Assignee").
WHEREAS,the City and Lessee entered into a Restated Lease Agreement effective
December 14,2000(the"Lease"); and
WHEREAS,pursuant to the Lessee's Assignment of Lease With Consent by Lessor
dated May 243 2001,Lessee assigned the Lease to Lessee's Assignee,as an affiliate of
Lessee in accordance with Section 14.3 of the Lease,provided that Lessee's full faith and
credit remain obligated under the Lease;and
WHEREAS,the Lessee has requested that the property subject to the Lease be
reduced in size to eliminate a strip of land 10 feet in width located along the north boundary
of the Leased Land and immediately adjacent to the City's north harbor parking lot, Lot 2,
Block 1, North Harbor Subdivision,consisting of an area approximately 1,079 square feet
=md-e or less;and
WHEREAS, the City Council adopted Resolution 2004-A authorizing the City
Manager to enter into this.Lease Amendment.
NOW THEREFORE,the parties hereto agree that the Lease is hereby amended as
follows:
1. Section 1.1 is deleted in its entirety and replaced with the following:
Description of Leased Land. The leased Land is located in the City of Seward,
Alaska,and described as follows(herein referred to as the"Leased Land"):
Lot One (1), Block Ten(10), SEWARD SMALL BOAT HARBOR SUBDIVISION,
according to Plat 2000-19,filed in the Seward Recording District, Third Judicial
District, State of Alaska, EXCEPTING therefrom a strip of land 10 feet in width
located along the north boundary of the Leased Land and immediately adjacent to
the City's north harbor parking lot described as Lot 2, Block 10, North Harbor
Subdivision,such ten foot strip containing approximately 1,079 square feet more or
less.
1ADocs1433.741061Gateway Texaco LeaseAmendment.wpd Page 1
2 of 7
2004-001074.0
2. The Leased Land described as in the amended Section 1.1 shall be surveyed and
platted by Lessee in a manner approved by the City in the City's sole discretion.
Such survey shall occur within one month from the effective date of this Lease
Amendment. The platting shall be completed within 180 days from the effective
date of this Lease Amendment. Although the area of Leased Land is reduced
immediately, LESSEE is permitted access to the relinquished ten foot strip of land
solely for the purpose of completing the surrey required herein.
3. Upon completion of the survey and re-platting, Exhibit A to the Lease shall be
replaced with the revised re-plat of the Leased Land.
4. Section 4.2(f)is deleted.
5. Section 4.2(g)is deleted.
6. Section 4.2(h)is deleted.
7. Section 5.1 Utilities is deleted in its entirety and replaced with the following:
Utilities. LESSEE, at LESSEE'S sole cost and expense; shall provide for the
extension of public utilities to the Leased Land sufficient for LESSEE's intended
operations. In so doing, LESSEE shall comply with all CITY ordinances 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 the CITY's
Master flan for the area leased. All construction shall be in compliance with the
City's building code,fire code,and other applicable ordinances. Utilities constructed
by the LESSEE within the public right-of-ways or within public utility easements will
normally be accepted and maintained by the CITY or utility companies and may be
used to serve other customers 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 companies 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 the CITY or utility
company.
1:\Docs1433741061Gateway Texaco LeaseAmendment_wpd Page 2
3 of 7
2004-001074-0
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 LESSEESs facilities on the Leased Land,it being the
intent of the parties that the risk of obtaining required permits be solely a risk
undertaken by LESSEE.
8. Failure of LESSEE to comply with any requirements of this Lease Amendment shall
be a LESSEE Act of Default under the Lease if such default is not cured 30 days
following notice from the City.
9. This Lease Amendment shall be effective upon execution by both parties and is
conditioned upon the effectiveness of Resolution 2004-A of the City Council.
10. All other provisions of the Lease remain unchanged and in full force and effect.
DATED this day of Ajort 2004.
LESSOR: LESSEE:
CITY OF SEWARD
.
e
s
�
ZPH Shealy, ty Manager Jarhes T. Pruitt
ATTEST: LESSEE'S ASSIGNEE:
Jean wis, Ci CI -r rbor Gateway, Inc.
by James T. Pruitt, President
4t60 5
�2 CNN;.
�
m
A S
r�
`�
@R ` Z
sj ��ay Texaco LeaseAmendm ent.wpd Page 3
" F '.
4 of 7
2004-00074-0
Consent:
F ST NATIONAL BANK ALASKA
By:
Its BAA"i4
i_1Docs\43374106\Gateway Texaco LeaseAmendment_wpd Page 4
III()III III IIIitI��lIl'I III
S of 7
2004•001074a
STATE OF ALASKA )
)ss,
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ` day of c,� - , 2004,before me,the
undersigned, a Notary Public in and for the State of Alaska, personally appeared--P i
•Shea#y, known to me and to me known to be the City Manager for the City of Seward, 61
Alaska,and acknowledged to me that he knew the contents of the foregoing document and
executed the foregoing document on behalf of the City of Seward for the uses and
purposes therein set forth.
WITNESS my hand r ' al the day and year first hereinabove written.
co
woo I
o
r
1 "(JB00 a Notary Public in and for Alaska
oi 2r-7
°-sAt
oFN� °'�,�a My Commission Expires: -�/L-
0000rwso•+•
STATE OF ALASKA
ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of,_'Lulaf. 2004, before me the
undersigned,a Notary Public in and for the State of Alaska,personally appeared James
Pruitt,known to me and to me known to be the individual named herein and acknowledged
to me that he knew the contents of the foregoing document and executed the foregoing
document for the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
f-
-� Notary Public in and for Alas,
My Commission Expires: lol-I
NOTARY
PUBLIC
-OF P
1ADocs1433741461Gateway Texaco LeaseAmendment.wpd Page 5
6 of 7
2004-001074-0
STATE OF ALASKA )
)ss.
THIRD JUDICIAL DISTRICT }
THIS IS TO CERTIFY that on this day ofmnoJ , 2004,before me,the
undersigned,a Notary Public in and for the State of Alaska,personally appeared James
T. Pruitt, known to me and tome known to be the President of Harbor Gateway, Inc., and
acknowledged to me that he knew the contents of the foregoing document and executed
the foregoing document on behalf of Harbor Gateway, Inc. for the uses and purposes
therein set forth.
WITNESS my han notarial seal the day and year first hereinabove written.
NOTARY Notary Public in and forAlask
PUBLIC My Commission Expires: 0j-/O-0260,T
STATE OF ALAS yP
OF }ss.
THIRD JUDICIAL DISTRICT }
THIS IS TO CERTIFY that on this r7r—' day of Ovn , 2004,before me,the
undersigned, a Notary Public in and for the State of Alaska, personally appeared
j 5 known to me and to me known to be the
A/C f. MaXN6 at First National Bank Alaska, and acknowledged to me
that she/he knew the contents of the foregoing document and executed the foregoing
document on behalf of Harbor Gateway, Inc.for the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
. •: t ._
•
• I
Notary Public in ana��_AlasKa
My Commission Expires:
Return to.
City of Seward
Harbor Department
PO Box 167
Seward, AR 99664
1ADocs1433741061Gateway Texaco LeaseAmendment.wpd Page 6
7 of 7
2004-001074-0