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HomeMy WebLinkAboutRes1967-612 MODIFIED RESOLUTION NO. 612 WHEREAS, Donald M. and Margaret E. cook have made application to lea.e Lot 3 in Block 1 in the Marina Subdivision in The City of Seward Muni- cipal Boat Harbor commercial district to conduct a cafe busine.s, and WHEREAS, Donald M. and Margaret E. cook declare that they are prepared to commence construction of the building immediat.ly, which would bene- fit the area by providing a cafe throughoUt. the ....on .. i. needed,and WHEREAS, the attached form of lease offered by the city to Donald M. and Margaret E. cook for such lease contains all of the provisioos for the protection of The City in developing salutary, active u.e of th. land that similar leases contain and which have been po.ted and pub- lished without adverse comment regarding the provisions of such leases being filed with the City, except to request the provisiorts of the next paragraph: and WHEREAS, the attached form of lease includes the additional provision for revision of the lease rental each five years based upon land value. and shall include an addendum setting forth the manner of determining said values, all as authorized by the council on April 24, 1967: NON, THEREFORE, BE IT RESOLVED that the form of lease attached hereto, including the above described addendum, and made a part hereof, be and is hereby approved and the City Manager and City Clerk-Treasurer be and are hereby authorized and instructed to sign and deliver said lease for Lot. 3 in Block I of the Marina Subdivision in The City of Seward to be used to conduct a cafe business for a term of thirty years: and , BE IT FURTHER RESOLVED that the requirements of Ordinance No. 315 per- taining to a public hearing be and are hereby waived for the aforestated reasons. This Resolution shall be published by posting a copy thereof on the , bulletin board at city Hall and publishing a brief statement of the pur- poses of said Resolution in a newspaper of general circulation in The Cit.y of Seward within a reasonable time: and shall become effective 30 days thereafter. Passed and approved by the City council of The City of Seward this (~~ day cf May, 1967. IJe~'I{< L{ T /( c/t{] Beatrice E. Watts City Clerk-Treasurer } !!...' L L R. 2 / I ' L J .f, ~ ,'~ v~ L __ / f W. Kirkpatrick Mayor Attest. r I I CDIIBRCIAL SIft LBASB fR UPLANDS 'l"HIS AGJlBBMBN'l' made and entered int:o this ~5th clay of - April , 1967, between '!'he City of Seward, Alaaka act:iA9 through it.s City Manager and City Clerk as authorized by RESOLU'l'lON 11). 612 enacted by the CClI1IDOn Council of '!'he City of Seward, Alaska on the / day of MAy , 1967, hec'einafter called the LBSSOR, and .1 -'4" a.ok ... JIU9ant: .. .... , of ...... AI._ , hereinafter called the LESSBB. '1'0 ALL WHO MAY BE COllCERNBD BBREWI'l'B, WIT RES S E or H I 'lbe LESSOR hereby leases to the LESSEE, and the LESSEE hir.. frOll the LESSOR, for the specif ic purpose of conductiftq a .... air r..uurut: business and for DO other purpoae those certain pr..ises situated in '!'he City of Seward, Do~ of Kenai Peninsula, State of Alaska, .ore part.icularly described as follows, to-wi t. J,ot: :I in aloc:k 1 of the llariDa lubcU ri.sion of the eU~y .f ~ aaaoriiDg t:o 'the official plat: ~ Oft file With the ...uty Mll9istrate aa4 ex-officio Jleooder at: ..JU'4. Aluka, I4IWard a.cor4J.ag h"ec~, .1..... '!'he LESSEE t.o have and to hold the same premises fOJ: a tel'll of IJIh of Y'tv (3.. years, beginninq on the ~ day of April , 1967, and terminating as of midnight on the ~ day of April , 19~. said lease agreement to be re-negotiated in regards to valuation and annual rental at the expiration of each five '(5) year ,period during the 'lbUv (Jet year period. Annual rental to be paid in advance yearly to said LESSOR or to such other appointee as the LESSOR may frora tiae t:o time in writ.ing designat.e, or to the legal represent.ative of the LESSOR, at such place as may be designated, on or before the 25th day of April , 1967, and each y_r thereafter. -1- / r=c~ ,- . -<~,... ~ The annual rental for the first year to be paid in advance upon signing this lease and receipt of which is hereby acknowledged. Annual rental of 'two llUDdred Blghf:y-U". aDd Iro/lOO ('.5.00) Dollars to be paid for each of the following yearsJ on the ~h day of April , 1967 and on the 25th day of April , 1968, 1969, 1970, and 1971. B;-ise rental r)f $.03 per square foot. '1. ('o:.c 0 Annual rental of Dollars to be paid for each of the following years: on the day of , 1972, and on the - day of , 1973, 1974, 1975, and 1976. .... r-.t:a1 of .. lIq\Ulr8 foot. Annual rental of Dollars to be paid for each of the following years: on the day of , 1977, and on the _ day of 1978, 1979, 1980, and 1981. Annual rental of Dollars to be paid for each of the following years on the day of , 1982, and on the day of 1983, 1984, 1985, and 1986. Annual rental of Dollars to be paid for each of the following years: on the day of , 1987, and on the day of , 1988, 1989, 1990, and 1991. Annual rental of Dollars to be paid for each of the following years: on the day of , 1992, and on the ____ day of , 1993, 1994, 1995, and 1996. -2- .... It is further agreed by the LESSOR or by the LESSEE or mutually agreed between the parties as follows: 1. 'lhe LESSEE hereby covenants as conditions necessary to the continuance of this lease the conditions set. forth belowt (a) That it will continue in and diligently pursue an operation as a cafe or restaurant and will not conduct an operation in lieu thereof for any other purpose without the prior written approval of the Common Council of The City of SEl\'tard, LESSOR: (b) That it will pay the rents, taxes, assessments, insurance premiums, and all other sums when required to be paid, without delinquency: (c) That it \rill submit a plot plan and elevations of any proposed structures for Council approval prior to any construction to facilitate the LESSOR'S control of the development of the area in accordance with the over- all development plan for the area: (d) That it will conform to The City of Seward Building Code, and to all other laws, rules and regulations of any duly constituted governmental entity having jurisdiction: (e) That it has examined and knows the conditions of the said premises, ~~d it has received said premises in good order and condition without any exceptions: (f) That it will furnish the LESSOR with Certificates of Insurance (with stipulation thereon that the LESSOR will be given fifteen (15) days notice in writing of intent to cancel) evidencing liability coverage in the amount deemed adequate by the Seward City Manager, but (1) Not less than $50,000.00 of bodily injury liability coverage per individual and $100,000.00 per accident, no less than $25,000.00 of property ~- r~-~- ~--_._-~-~...__.~._~._----""1-------~_._~--~- ,,- damage liability coverage for claims for damages for personal injury, including death, and for property damage which may arise from the operation of the business to be conducted on the leased premises, or by the acts of the LESSEE, their employees, agents, servants, customers, or other licensees or invitees; (2) Workman's compensation Insurance in accordance ,,,i th the la\17s of the State of Alaska or any applicable laws of the United state government. (~) That it will for itself, its principals, officers, employers, employees, associates, agents, representatives, successors, heirs or assigns, licensees or invitees, protect, defend, save harmless and indemnify the L~SSOR, its officials, employees, and authorized representatives, against any loss, cost, damage, expense, judgement or liability of any kind whatsoever, from or by reason of or on account of or as a result of the activity of t.he LESSEE or its associates under the work contemplated to be performed by the LESSEE hereunder, including the per- formance of any labor or the furnishing of any material, or any claims for injury to persons or property or death to third parties or to employees of the LESSEE, or for any damage to any property or claims of liens of work- men and materialmen of or for LESSEE, or for any other reason whatsoever, including acts of omission, resulting directly or indirectly from the performance of work by the LESSEE in operating a cafe or restaurant as contemplated by this document; (h) That it. will not assign this lease, nor let or under- let the whole or any part of the said premises without -f- r====== the prior written consent of the LESSOR: that. it will not occupy or use the said premises, nor permit the same to be occupied or used, for any other kind of business than a cafe or restaurant (i) That it will conform with all requirempnts of police, fire safety, or other laws, rules or regulations of any government agency having jurisdiction over the premises or operation of the business of the LESSEE: and that it will not permit any unlawful or prohibited activity on said premises: (j) That it will pay all municipal, borough, state, and federal taxes which may be assessed by any appropriate taxing authority against inventory, stock, equipment, fixtures, improvements, income, or otherwise, whether within or on said leased premises, as the same shall become due: and shall likewise make timely payments of any legal assessments against the property: (k) That it will pay the cost of heat, water, gas, electricity, garbage and refuse collection, Se\rclge, or any other utility serving said leased premises, for which a utility is assessed: ('1) That it \-lill at all times lteep the premises neat and clean, and in a sanitary condition: (m) That it \'!ill allow the LESSOR or the agent of the LESSOR free access to said premises at all reasonable times for the purpose of inspection: (n) That it will proceed with due diligence to construct a permanent building for cafe or restaurant business on said premises within ten (10) months of the date first \~itten or this lease shall be null and voidJ -~- r~ ,.--- -- (0) That it will pubmit to the City Manager preliminary plans for a permanent cafe or restaurant by May 1. 1967 with Section 1 (n). 2. The LESSEE covenants that upon completion of the permanent as evidence of complianee facilities it will cause any temporary buildings and other temporary improvements to be entirely removed from the premises at its ~Jn cost. In the event of the refusal or inability of the LESSEE to remove the said buildings, and other improve-. ments from the premises, when and as above indicated, the LESSOR may cause the same to be removed at the expense of the LESSEE, and the LESSEE confesses judgement for any cost that is associated therc\"ith, including a reasonable attorney's fee: 3. That the LESSEE covenants that in the event it shall violate, refuse, or omit to perform any of the covenants or conditions herein contained, or in case the said leased premises shall be vacant, abandoned, or deserted by the LESSEE, the LESSOR or any other person or persons by its order, may re-enter the same, either by force or otherwise, without being liable to any prosection therefore: and, in such event, the LESSEE further covenants that ~he LESSOR may elect either to terminate the term of this lease or renewal thereof, or may relet the said premises at any time as the agent of the LESSEE or otherwise, for ,,,hatever rent it shall obtain, applying such rent first to the payment of such expenses as the LESSOR may be put to in re-entering and re-letting, and then to the payment of the rent due hereunder and the fulfillment of the LESSEE'S covenants, thereafter paying over to the LESSEE the balance, if any: and, further in such event, the LESSEE covenants that in -6- r in the event of a deficiency, the LESSEE shall remain liable therefore: except that violation of Section 1 (n) shall cause this lease to be null and void: 4. That the LESSEE covenants that in the event this Agreement is terminated by LESSOR under the covenants of Section 3 and Section 7 of this Agreement, that any permanent improvements and appurtenances, and all and singular the tenements, here- ditaments and appurtenances thereunto belonging or in ~nywise appertaining, shall become the property of the LESSOR to peaceably and quietly have, hold, and enjoy: s. LIENS AND CLAIMS: LESSEE agrees to save LESSORS harmless from any claims, causes of action, or mechanics' or material- men's liens arising out of the use and occupancy of t.he demised premises by LESSEE, and LESSEE specifically agrees to suffer no lien to be placed on the premises by virtue thereof, or by reason or any alterations or repairs ordered or contracted for by LESSEE, during the term thereof: 6. In consideration of the premises, the LESSOR hereby covenants and agrees with the LESSEE as follows: (a) That at the time of the ex)cution of this document, it is the sole owner in fee simple of the premises hereby demised, and has the full right to lease the same for the term aforesaid and under the condition contained herein (it is expressly understood between the parties that the above covenant of the LESSOR constitutes a warranty by it, and in the event it does not have the title and rights aforesaid, in that event only this lease shall become voidable at the option of the LESSEE, and no rent under such option would be due for the remainder of the term aforesaid): -7- r , . . -...-..---.- .........~~..,.._-_.. ~ (b) That it will put the LESSEE in actual possession of the demised premises at the beginning of the term aforesaid, and on payment of the rent and performance of the covenants herein by the LESSEE, it shall be authorized to peaceably and quietly have, hold, and enjoy t~e demised premises for the term and subject to the conditions herein: (c) The LESSOR shall not unreasonably withhold its consent to an assignment or subletting or the leased premises by the LESSEE; (d) That it will permit LESSEE to con~truct a temp~rary building from which to conduct its cafe or restaurant business (exclusive of any cocktail lounge) until the permanent building is completed in aocordance with Section 1 (n), said temporary building shall conform to the building, electrical, plumbing, and fire safety codes of The City of Seward. 7. The covenants, .oonditions, stipulations and .agr~t:s contained herein are interdependent, and are binding upon the legal representatives, 9uccessors-in-interest or assigns of the parties. 8. It is understood and agreed by the parties hereto that neither party shall have the right to terminate this lease for the default of the others unless such default remains uncured for thirty (30) days after notice in \~iting to the oelar party, specifying the nature of the default: provided, however, that if because of oircumstances beyond the oontrol of the LESSOR it cannot cure a default on its part within such time, and such default does not interfere with the use, occupancy, and quiet enjoyment of the leased -8- I LEASE NEGOTIATION PROCEDURE The City of Seward shall notify the Lessee, not less than sixty (60) days before the expiration of each five (5) year term, of the square foot rental that shall be in effect for the following five (5) year period. If the Lessee does not agree with the amount of yearly rental, he shall notify The City of Seward by return mail and the City shall have the parcel of land appraised by a qualified appraiser. If the Lessee is not in accord wit;1 the appraiser's valuation, he may employ an appraiser and the 'Talue set by the City's appraiser and the Lessee's appraiser shall be the basis for negotiation of the rental per square foot of the parcel for the followin0 five (5) ~2ar period. r -.-... .-- "-.- . premises by the LESSEE, then the LESSOR shall have a reasonable additional time within which ~o cure such default: 9. It is understood tnd agreed by the parties hereto that the covenants, conditions, stipulations and terms of this document shall inure to the benefit of and be binding upon not only the principals, but their assigns, or successors- in-interest. 10. This instrument contains the entire agreement between the parties, and no statements or inducements shall be valid or binding if made by either party hereto, which are not contained in a duly executed rider to this document. Accordingly, this contract may not be enlarged, modified, or altered except in writing duly executed by the parties with like formality. IN vlITNESS t"JIIEREOF, the parties hereto have executed this documen~ by and through their duly authorized officials as of the day of , 1967. TIlE CITY OF SEUARD, LESSOR By, ~ :5;i)~ Kester L. Dotts Ci ty rlanager P,y: J1 L ' c'--7//"=- /'/ '.-'.( (,,' ( ([ c:?~-- nea~rice E. Watts City Clerk-Treasurer A.CI<NOt'JLEDGENENT STATE OF ALASKA ) ) ss. THl~ JUDICIAL DISTRICT ) On this ,'(j c, day of (Lj1.-~ ( , 196 7, before me, t.he undersigned, a Notary Publi~ in and for the said State, per- sonally appeared Kester L. Dotts and Beatrice E. Watts, respectively City ',tanager and City Clerk-Treasurer of The City of Seward, kno\1/Il to me to be the identical individuals who executed the foregoing -,- I' instrument and they ackno\"ledged to me that ';hey executed the same as their free and voluntary act and deed, with full authority so to (10 and ~-Ji th full kno\-lledge of its contents, for the uses and purposes therin l>:utioned. IN ~vIT1~SS ~mEREOF, I have hereunto set my hand and affixed my official seal the day and year written above. _ ~J:'I t?-/~ / :J;(U~k,.L Notary Public, my commission expires 9 - / 21 C LESSEE: DY:,~('?i ~1d/)j /- {/';'<.t~.L / ny: I '7 I 7 ~. , '/1. , (CA ACKNONLEDGEIJENT STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) On this j t t, day of dl'lA'1 , 1967, before me, the undersigned, a Notary Publid?in and for the said Stffte, personally appeared 7}U1.cl t.r...~v'/ C1U'-L a.:- -I JP. /Y/ ~';IL rEl6p~..Lively- / ..L---'J.~~1.''-t'l-t...:L of ~'-Tl~ tl~/.l.<JkA , kno\m to me to be the identical individual_ who executed the foregoing instrument a~d 1-he~ acknowledged to me that Lhc...y executed the same as f)A.c~. free voluntary act and deed, with full knowledge of its contents, for the uses and pur- poses therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year written above. C:~~ LliTl. f9JLU~ Notar Publ1c, my comm1SS10n expires 9 - /;2 - 7 ~ .10- r ADDJDmUM NUMBER 1 TO COIIMBRClAL SITE LEASE 01' UPLANDS WHEREAS, it was agreed between Ibe City of Seward, as Lessor, and Donald M. Cook and Margaret E. Cook, as Lessees, on the 25th day of April, 1967 that when the Seward City Council had adopted standard pro- cedures for use in determining the annual lease rental for the five (5) year intervals of the below described Lease, that such provisions would be included in said Lease: and WHEREAS, the seward Cit.y Council has approved the attached Word- ing For Lease Agreement Addendum Pertaining To Manner of Determining Lease Rental and has ordered same to be included in all standard form Commercial site Leases of Uplands: NOW, THEREFORE, WIT N E SSE T H: The undersigned parties hereby agree that the Commercial sit.e Lease of Uplands for Lot 3 in Block 1 of the Marina SUbdivision of The City of Seward, Alaska, entered into on the 25th day of April, 1967, between The City of Seward, Alaska, as Lessor, and Donald M. Cook and Margaret E. Cook, as Lessee, be and is hereby amended as follows! The attached Pages lA and 18 titled Wording For Lease Agreement. Addendum Pertaining To Manner of Determining Lease Rental, which con- t.ain the procedure t.o be employed at five (5) year intervals through- out the term of the Lease in determining the amount of annual lease rental for succeeding five (5) year periods, and which set. forth the annual rental for the initial five (5) years of the Lease as well as the minimum net. annual lease rental at three cent.s ($.03) per square foot, shall be inserted into the aforementioned Lease instrument and shall be a part thereof the same ae if included t.herein at the time of si9ninq of .aid Lease on the 25th day of April, 1967. I. WZTNBSS WHEREOF, the parties hereto have executed this docu- - 1 - I ment by and t.hrough their duly authorized officials as of this day of , 1968 . '!'HE CITY OF SEWARD, LESSOR Byt Kester L. Dot.ts City Manager By. Beatrice E. Watts City Clerk-Treasurer LESSEEt Byt Byt ACKNOWLEDGMENT STATE OF ALASKA ) ) ss. TBlRD JUDICIAL DIS'l'RAICT ) On this day of _, 1968, before me, the under- signed, a Notary Public in and for the said state, personally appeared Kester L. Dotts and Beatrice E. Watts, respectively city Manager and City Clerk-Treasurer of The City of Seward, known to me to be the iden- tical individuals who executed the foregoing instrument and they ackknow- ledged to me that they execut.ed t.he same as their free and voluntary act and deed, with full authority so to do and with full knowledge of its contents, for the uses and purposes therein mentioned. IN WXTNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year written above. Notary Public for t.he state of Alaska. My commission expires 9/12/70. ACKNOMLBDGMD1'1' STATE 01' ALASKA ) ) ss. THIRD JUDICIAL DIS'J.'RICT ) On this day of , 1968, before me, the undersigned, a Notary Public in and for the said St.at.e, personally appeared Donald M. Cook and Margaret E. Cook, individuals, of Seward, Ala.ks, known to me to be the identt:al individuals who executed the fore- going inst.rument and they acknowledged to me that they executed the same as their free and voluntary act and deed, with full knowledge of its content., for the uses and purposes therein mentioned. IN WI'1'NBSS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year written above. Notary Public. My COOlI'IlisBion Expir....' The parties ag~ee that the annual cen s) .. I\TTACIlliD Te, AND MADE A Pl',RT OF ADDENDUh NUMBER I TO COMMERCIAL SITE LEASE OF UPLANDS. I , , i I WORDING FOR LEASE AGREEMEN I. \1 ADDENDUM PERTAINING TO MANNER OF DETERMINING ; LEASE RENTAL: initial five (5) years of the lease term shall be per square foot, and the parties further agree that at the expiration of the initial five (5) years of the term, the said annual rental shall be eight percent. (8') of the appraised I valuation of said land comprising the premise., said appraised I i valuation to be determined at the expiration of each five (5) \\ year period during the term of said lease and the rental to be II recoatputed in accordance with such valuation. i' . . I J .~ I, Not less than sixty (60) days next preceding the Ii \:expiration of each five-year period, the City shall notify the Ii lessee of the valuation established by the City for the I' ;t ,I II ensuing five-year period. In the event the appraisal established ,Iby the City of Seward is not agreed to by the Lessee, said !i Lessee shall notify the City of Seward of its nonconcurrence L , ~ , , ~ ~, -4 " .I~ !:within ten (10) days of the date it receives notice of the ;1 :; ~ City's valuation and shall within the same period place on : deposit with the City of Seward a one-year rental amount ~1. ~ ; i "', :: based upon the City I S valuation, to be retained by the City :! unti 1 an appraised valuation calculated in acoordance herewi th i.has been satisfactorily established. In such event and under : such circumstances, the lessee having notified the city of its ; nonconcurrence with the city's valuation, may employ an LAW Ofl'fI'CU PoLLOCK a JOS"'H~ IUITI1.1I ... H .,....IIT ANCHORA.'. ALAakA i I appraiser who is a member of the Society of Real Estate i iAppraisers or the American Institute of Real Estate Appraisers i land request that the City secure the services of an appraiser 1 Iwith like qualifications (the expense of both appraisers to be I t 't ~', borne by the Lessee) to determine the valuation of said land com- prising the premises, and said valuation shall be completed on TWL,&rMONU 177..-11 t ..,.....t ... ". , . i. t ~ or before the expiration date of each five.-year period. In the vent that the appraisers selected by the City and the Lessee ;< . II ., .. ,. .. . Ie I I Ik if }~'.. I II Ii 'I J"',""'''' "'1~!~tfIII ,;i 1 I j, II respectively are unable to agree upon a valuation of the land I I I I: I ~ 1\ I II Ii I I d II 'I I. :.i -2- r comprising the demised premises, they shall certify such fact to the ci ty and the Lessee, and the ci ty and the lessee shall jointly designate a third appraiser having like qualifications, and a decision of the majority of the appraisers so appointed shall be final and binding upon the parties. Cost of the third appraiser shall likewise be borne by the lessee. When the appraisers or a majority of them have Ii established the appraised valuation of the land demised, the !1 if.'" Lessee shall pay the City upon the latter's request, and in no event later than thirty (30) days following such request, io: , , ~ the difference (if any) between the amount previously deposited based upon the City's appraisal and the amount required under the rental formula herein provided based f upon the appraisers' valuation, if the latter shall be Ii greater than the appraisal established by the city and with ; which the lessee did not concur. If, on the other hand, the appraised valuation of the land by the appraisers or a " ;1 majori ty of them shall be less than the City's appraisal. i I, then the Ci ty shall, upon the request of the lessee and in .: no event later than thirty days following such request refund :i ~ ~:, I to the lesee the difference between the amount previously I I deposi ted by the lessee and the amount required under the rental t 'I 'i formula herein provided based upon the appraisers I valuation. , :.' lif the latter shall be less than the appraisal established by the :1 .: ci ty, E..:r;:.ovide~~wever that in no event shall the annual rental ': at any time during the term of this lease, or any continuance or " ,I renewal hereof, be less than $ LAW O,.FIC.. I ~ POLLOCK &: JoevH.oN 285.00 net to the Lessor. SUITE 23 :52. H .T"&t:T ANCHO"AGW. ALASKA ( 1'Wo Hundred Eighty-five and No/lOa Dollars). ~ : " TaLEr-HONE. Z77~....t .a '....S31 ~17' 11 l1" ATTACHED 'ro I~ND MADE F. PART OF l\DDENDUM NUMBER 1 TO COMMERCIAL SITEL:::ASE OF UPLl\NDS. ,; t.,t,. r F- i- I: .-.' \, " ...,.. .. ., .