HomeMy WebLinkAboutRes1979-002
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 79-2
A RESOLUTION PROVIDING FOR THE LEASE OF PROPERTY
IN TEE SEWARD NORTH HARBOR SUBDIVISION TO JN1ES PRUITT
WHEREAS, the City Council of the City of Seward
has earlier authorized the leasing of the land described
below to Mr. James Pruitt for the construction and operation
of a car-wash business; and
WHEREAS, the City Council hereby finds that the
lease on the subject property is too restrictive for commercial
purposes; and
WHEREAS, the terms of leases covering lots 5, 6 and
7 of Block 1 of the Marina Subdivision are adequate both in
terms of protection for the City and for commercial operation;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF SEWARD, ALASKA, THAT
Section 1. The lease to James T. Pruitt of the
property described below is hereby amended to be consistent
with the terms of the lease attached hereto and incorporated
herein by reference. The property to be leased hereby is
more particularly described as follows:
A portion of Tract A, North Harbor Subdivision,
Seward, Alaska, more particularly described as
follows:
Commencing at the Southwesterly corner of
Tract A, thence South 89057'52" east 133.17
feet, to the true point of beginning, thence
north 89057'52" west 40 feet, thence north 00
2'3" east 50 feet, thence south 89057'52" east
40 feet, thence south 002'3" west 50 feet to the
true point of beginning, containing 2,000
square feet more or less, all of which is
located in the Seward Recording District,
Third Judicial District, State of Alaska.
Section 2. The City Manager is hereby authorized
to execute a new lease revised pursuant to Section 1 hereof.
PASSED AND APPROVED BY THE CITY COUNSIL OF THE
CITY OF SEWARD, ALASKA, this 8th day of January
1979.
CITY OF SEWARD
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L. Hugli i'
,.;/71'
1"'- '-I
'Raymdnd
Mayor
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RESOLUTION NO. 79-2
PAGE TWO
AYES:
CAMPBELL, HUGLI, POTTS, SORIANO AND SWARTZ
NOES:
NONE
ABSENT:
GILLESPIE AND LEER
ATTEST:
APPROVED AS TO FOR1v!:
HUGHES, THORSNESS, GANTZ, POWELL
& B~FNDIN
Attorneys for the City of Seward,
AK
(City Seel)
Ratf;;-t(tf~
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To City:
City Manager
City of Seward
P. O. Box 337
Seward, Alaska 99664
To Lessee:'
James T. Pruitt
P. O. Box
Seward, Alaska 99664
or to such other respective addresses as either party hereto
may hereafter designate in writing. Notices sent by mail
shall be deemed to have been given when properly mailed and
the postmark affixed by the United States Post Office
shall be conclusive evidence of the date of mailing.
15. CITY'.s REMEDIES.
No remedy herein conferred upon or reserved to the City
,is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition
:to every other remedy given in this lease or available under law.
16. ASSIGNMENT OR .sUBLEASE.
The Lessee shall not assign this lease nor sublet any
interest in the premise or any part thereof herebefore des-
cribed, nor permit the occupancy of any part thereof by any other
persons, without the prior written consent of the City, and the
Lessee agrees that any violation of this covenant will, at the
:option of the City work on immediate forfeiture of the lease.
17. EXTENT OF RIGH'l'S, RESERVA'l'IONS AND COVENANTS.
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The granting-of this lease does not in and of itself
carry with it any rights, reservations, or covenants regarding
the USe of dock facilities which are in existence or will, during
the term of this lease, be constructed or put into use.
18. SUCCESSION OF INTEREST.
This lease shall inure to the benefit of and be binding
upon the parties hereto and their respective succ~ssors and
'assigns as fully and to the same extent as though specifically
mentioned in each instance, ann that all covenants, stipulations
and agreements in this lease shall extend to and be binding
upon any assignee or sublessee.
IN WITNESS WHEREOF, the parties hereto have executed
'this document by their duly authorized officials on the day
hereinabove first mentioned.
CITY OF SEt'JARD
By
C. E. Johnson, City Manager
HUGHES THORSNESS .
.::rzPO'...Ell6 BnUf-iOW
ATTO"'~:EVS Al LAW
",1)9 "U':" .HIJtD AVtllUt:
',CH('IRAG:'E. A~ 99501
(9071 274.7522
By
James T. Pruitt
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LEASE
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" THIS AGREEMENT, is I:Iade imc1 entered into on this-~
fday of Decembc.x, 1978, by and between the CITY OF SEWARD, a
;municipal corporation organized and existing under the laws of the
; St'ate of Alaska, hereinafter called the "City", and JAHES T.
,PRUITT, Seward, Alaska, hereinafter called the "Lessee".
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WITNESSETH:
!' In consideration of the mutual covenants herein contained"
Ithe parties hereby agree as follows:
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1. PROPERTY DESCRIPTION.
The City hereby leases to Lessee the following described
property thereon, in present condition:
A portion of Tract A. North Harbor Subdivision,
Seward, Alaska, more particularly described as follows:
Commencing at the Southwesterly corner of
Tract A, thence Sou~h 89057'52" east 133.17
feet, to the true point of beginning, thence
.north 89057'52" west 40 feet, thence north 00
2'3" east 50 feet, thence south 89057'52" east
40 feet, thence south 002'3" west 50 feet to the
true point of beginning, containing 2,000
square feet more or less, all of which is
located in the Seward Recording District,
Third Judicial District, State of Alaska.
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'with the first day of
ithe thirty-first day
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2.
TERM.
The term of
this lease is thirty (30) years,
December, 1978, and extending to
o~ October, 2008.
commencing
and includingl
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3.
RENT.
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; Lessee will PRY to the City a ground rental of ;}::) V
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;: r'::l.;\':::/fLtcL'C.,'L:.-j-, per year, for the first five (5) years of this
tlease. TM rent shall be paid annually in advance, and shall
lbe due not later than the first day of J2~uary for each year.
;Rent payment shall be made at the office of the City Clerk, City
tof Seward, or such other place as the City may designate in
'writing.
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~ (a) The City, notwithstanding any other provisions
lin this lease, may further adjust the annual rental at five year
!intervals during the lease term in order to obtain the fair rental
i~alue to the City of the leased premises.
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r (b) At any time not more often than each interval
Ibf five years or more, the City shall give notice to .the Lessee of
~he adjusted annual rental. The Lessee shall make its objection,
lif any, to the City in writing not less than thirty (30) days
HIIGKESTHORSNESS :'after receipt of this notice Rnd shall request an appraisal as
I"rzPowmaBRUNOIN ,to the fair rental value of the property. Failure to object timely
JATl'ORNEYS AT LAW
"....nll..D.v"'"' !to the adjusted rental shall constitute a \'laiver of the right to
~CtlORA~E. AK 9950t ::obj ec t .
f907) 274-7522 !:
; (c) If an appraisal is requested, it shall be rr.ade
;by a group of three appraisers. The City and the Lessee sholl
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RENT ADJUSTHENT.
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.each select an appraiser, and the two appraisers selected shall
select a third. The decision of these appraisers, or a
majority of them, as to the fair rental value, shall be binding
.on the parties, except that the annual rental during any interval
shall not be less than the amount specified in paragraph (3) above.
(d) The costs of such an appraisal shall be
:borne equally by the parties hereto, but in the event that the
.appraisal equals or exceeds the adjusted fair rental value as
determined by the City, the Lessee shall bear the full cost of
the appraisal.
(e) The Lessee shall pay to the City the adjusted
:annual rental as determined by the City until such time as the
.appraisal and amount of annual rentals to be adjusted is finally
determined between the parties. .
5. USE OF PREMISES.
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The Lessee shall:
(a) Construct a two stall car wash on the premises
:in accordance with the proposal earlier submitted to the City
Council.
(c) Commence construction of substantial improve-
'ments in accordance with the proposal by June 1, 1979, and
substantially complete the construction on or Jx~fore
November 1, 1979. If Lessee is unable to meet this deadline for
any reason, Lessee may apply to the City for necessary
extensions, and reasonable extensions for reasonable reasons
shall be granted in the discretion of the City. If a deadline
or extension is not met, then this lease shall be void and
the City shall retain all p<lymellts mad,' th<,'rc>\HJ(),'r.
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(b) Keep the entire premises and the improvements 1
thereon in a neat and orderly condition and in good repair at I
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all times, and permit the City Manager or his authorized re- I
presentative to enter upon and inspect the use and condition of I
said premises at all reasonable times during ordin~ry business hours~
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(d) Post a cash bond in the amount of ONE
THOUSAND DOLLARS AND NO CENTS, ($],000.00), to <)uarantev
that the project will proceed as proposed. If the d~adlines
set forth in section (c) ere not met, this bon~ will be forfeited
to the City in ~ddition to the forfeiture of this lease.
6. HIPROVEr1EN'l'S.
(a) Lessee agrees that it wi.ll, i'lt i.ts O\vn
expense, erect and maintain the n~cessary buildings ~nd other
structures required in the operation of its business. l'.ny Clnd
all improvements to the property shall require prior City approvaL
-!'...'::>HES THORSNESS
',r: PO'NELlA BRUtIDI:~
.....-:-ro;tNEy$ AT LAW
)? ""EST htlAO AV["'H
'.:r:,)~A5E.Ar. gnSOI
(907) 27.4.7522
(b) Any above<Jround installations or improve-
ments now existing or hereafter placcrl on the leased premises
Lessee .sha 11 be and remain the propprty of Less.:~.:>. ll~Jon the
tenninCl t ion of this leZlse for any C-l'l~;e the Less<'<, shall
h~v~ the right to remove any such surface jnstallRtions or
by
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improvements at any time prior to ninety (90) days after such
termination. After removal of any such installations or equipment~
the City may require that the Lessee return the premises to its 1
condition before such installation of improvements. If any I
such aboveground installations or improvements shall not he removed
on or before the expiration of said 90-day period, the City at its)
option may either retain the said installations and improvements,
or may remove, sell or def; troy the same at the expense of
the Lessee, and the Lessee hereby agrees to pay the reasonable
net expense so incurred by the City. All underground installa-
tions shall remain the property of the City upon termination J
of this lease for any cause. The Lessee, with the prior written
consent of the Ci ty, ma~' sell any and allot the installations
and improvem(;!nts belonging to or constructed by the Lessee,
il to. any assignee o.r sublessee to. \'/ho,lu this lease may be
1'\ assigned or sublet. No such sale and assignment or sublease
I shall be allowed fo.r the purpose of curing o.r obviating aay
I, \dllful breach of lease covenants by said Lessee, nor shall any
;1 such sale and assignment or sublea!;e operate to extend the term-
\; ination date of this lease or any extension thereof.
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7.
UTILITIES, TAXES, LICENSES, AND OTHER COSTS.
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In addition to the rent, the Lessee shall pay before
delinquency all charges levied against the property, including
utility bills and special assessments for public improvements;
J all licenses and excise fees, and occupation taxes covering the
'F business conducted on the premises; all taxes on proper tv of the
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, Lessee on the leased premises and any taxe!; on the leasehold
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;; interes't created by this lease agreement; imc1 suffer no lien or
~: o.ther encumbrance to attach to the property and remain thereon
:; \'/hich might adversely affee t the in terest of the ci ty. Lessee
. f;peeifici111y agrees to. pay a proper, pro rata ~.;h<lre of the casts
~ of platting and staking the Marina Subdivision, and installing
:, and e>:tendin<] water, sevIer and electrical lincs to service the
~ leased property.
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;; Developer shall pay all laborers, ];lcl tcrialmen, and all 1
l, other obligations \';hich arise in the course of construction ~
:: prompl:ly. It is ng::-ecc1 and understood that no liens may attach \
, to the rC'i.\l l)rOpert:y af a Tfmnicipa 1. corporation and thnt any liens I
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attach to the leuscholc1 interest only in <lCCOH1 \'lith AS 3.... 35.055 (\
~ Nothing cont~ined.in this paragrap~ or agrcemnnt, o.r arising out !I
~ of any relatlonshlp, betweon the C1Ly, the lC5S~C, and the, ,
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I: lessee I s employees, contractors, and subcon tracto.rs, shall 'I
!i oblig.:lte the city in (tny '.;/ay to p"y for any and all labor and
i mnterials which nre uti1iticd in the development of this pro?erty. :
~ It is further specifically understood and (tgreed that no. work !
:~ done c1Ul:inc:.r the co\.u:se of this devclopr.lcnt sh~\ll be deemed to be ;
~ a benefit to the city in the sense required to create an implied I
contract. I
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LIENS
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!i Lessee \'/ill not permit any r,\cchani.cs', laborers',
!' nl.:\terialmcn':;, or tax liel\:~ to stand 'I<JClinst tll',; leasehold
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" or ilaprovcmen ls. Lcssee ,,11,111 hav~ Lhe ri'.1l1 t, hmvever, to
conteGt the vali(1iLy ar a.\\()unt of: ,tny such li('11 or cla:imcc1 lien. I
~; In the event o[ :;l1cl1 conL0-:;L, Le:>:;c,; ;.hnll q,ivC' the City rea:.onablc:
0' :;cGurity i\:; may 1>e (l(~IIHn(lcd by tlw City La in:all:c payraenL thereof
~ and prevent any salc, foreclosure or forfeiture of the leasehold
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or imprOV(Hll0.nts by reason of such non-payment.' Such security need
not e:.:ccec1 one i\nd one-hellf times the amount of: such lien or
claimed lien. Such sccuri ty l!\<\Y be accomplished by filing a
lien release bond. On finaldcten:\ination of such lien or such
claim for lien, Lessee \'1ill imr:tcdiately pay any judgment rendered:
with all proper costs and charges and shall have such lien release
or judgment satisfied at Lessee's own expense.
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9.
ASSU1-1P'rIO~ OF LIABILITY AND INDEmIITY.
I.cssee agrees that it will indcz:mify and save the Cit:;y
harmless from any and all liabili ty, damage, c:.;pense, 1a\'lsui ts,
claims or judments arising from injury to person or property
on the leused premises \'lhich arise out of the act, failure to act,
or negligence of any person other than the City'or its 1a\-1fully
acting agent. Lessee agrecs to assume the defense, and pay the
costs thereof and any judgment ....lhich may be enter~c1, of any
action which may be brought against the City because of Lessee's
opera I:ion. .
10.
INSUMNCE.
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Lessee agrees to raaintilin proper l.iilbili ty insurance
in regurd to the leased property and its operations thereon with
,; u reputable insurance company or companies sutisfactory to the
Ii City, in the minimum limits of ONE HUNDRED 'l'!lOlJSANO DOLLARS
:; ($100,000.00) (per person) and 'I'BREI:: HUNDRED THOUSAND DOLLARS
;: ($300,000.00) (per accident or occurrence) for bodily injury,
I; death, and in the minimum limit of ONE HUNDRED 'I'HOUSAND DOLLARS
:i ($100,000.00) for property c1ilmugc, ilnd thercuftcr in such
.' incr.cewed amounts as the parties may from ti.me to timo mutually
, agrec upon, to indcumify the City and Lessee against any such
I liv.hility or expcn:>o. The City 5hi11l be numcc1 as one of the
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'\ insureds, and ::;\\,,11 be furnished H.i.th il copy or such policy or
:: policies of insurilJ1ce or appropriate prooL of such in~;urance elliU
It covorage.
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11.
'l'ERHINJ\'l'ION - RIGU'l' OF NOH'1'GJ\(;l-:E.
" If I,essce at any time during the term of this lease
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i~ (uncI r.c~Ftr<11ess of the pendcncy of uny ban}~nljJtcy, reorganization,
;! receivership, in!>olvcncy or other proceedin~ls, in le\\'I, in equity,
11 or bcfo):e any administrative td.buni.ll, which have or might
Il have the effect of preventing I.es~:ce from cO;'lplying wi th the terms
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,I of this lease) ~ll<lll (a) fail to mi\kc payment of any installment
i; or rent or of any other sum hercin specified Lo be paid by Lessee,
i: or (b) fail to ob~~crve or perform any of Lesf~ce' s other covenants,
I acr!:ccment:!> or obligations hcreunc.1c'I:, and if any such (~efault shall
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i~ not be cured as to (a) \'Jithin si;.~ty. (GO) dilYS after StIch failure
j: to nlukc payment, or \'1ithin fifteen (15) duys Cl.ft-.er notice thereof,
\: "lhichever is less, or as to (b) within sixty (GO) dilYS after Ow
~ City Ghall have given to I~ssec written notice specifying such
I: dcfilult or dcfaulb;, Lessee shilll !lot hd".c c(>iamcnced to cure
such c1efauJ.t and proceed diligently to Cllre the :>aInC, or if
J,C:,SCl~, finillly and \,:ithout furthcl: possibility of appeal or
:Levie\-!:
it.
l~: cHljuc1icalcd a bankrupt 01: insolvent
or
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b. h<ls <I n~cciver appointed for illl or
substantially illl of its business
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or asset~ on the ground of Lessec's
in::;olvcncy, or
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c. has a trustee appointcd for it
after a petition has been filed for
I.c~see's reorganization under the
Bankruptcy 1\ct of the United States
knm-In as the Chandler 1\ct or any
future law of the United States having
the sane general purpose,
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:1 or if Lessee shall make an assignmcent for the benefit of its
. creditors, then in any such event the City shall have the right
:i at its elect, then or at any time thereafter, and \"hile such
'I default or defaults shall continue, to give Lessee notice of the
l\ City's intention to terminate this lease and all Lessee's rights
I~ hereunder, on a date specified in such notice, \-lhich date shall
J not be less than ten (10) days after the date oE giving of such '
" notice, and on the date specified in such notice, the term of this I
i letting and all rights granted lessee hereunder shall come to an I
:1 end as fully as if such date \.rere the year of the \.,hole term herc-\
~ inabovespecified, and Lessee hero covenants p~aceably and quietly.
, to yield up and surrcnder to the city said leased premises and !
all structures, buildings, improvements and equipment located !
thereon, and to e:.;ecute and deliver to the City such instrunent :
. or instrumo:mts as f;hall be required by it as \-1ill properly evido:=nc~
~ termination of Lessec's rights hereunder or its interest therein. ~
In the event of termination oE this lease as provided in this '
ii p<lragraph, the City shall have the ri<:!ht to repossess the leased
premises and 5uch structures, buildings, improvements and cquip- I
. ment either \.,j.thout }~roce;;:; of lal'" or thr.ough any for.n of suit or
proceedings, as \'7011 itS t1v:~ right lo sue for and recover all rents:
'\ and 0 ther :.;ums accrued up to the U me of such tel:mination, incltding
-. damage:; urising out of any bcc,\ch on the pi\rt of the 1,e!;;,ce. Th,~ 'I'
city shall also h.:1.vc~ the righl: HilhouL rcsUlailHJ possession of the
premises or tcrminilting this l~ilse, to sue [or and recover all ranis
'- iwd other SUNS, including UiHl\<ts)CS, at any tim'~ and from time to i
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.1 time accruing hereunder. .
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'. For the p'.1rposc of intedl~l or pCri1F~n(!nt financing or I
the c6nstruction of inprovemcnts upon the leased premises and I
for no ol:1l'Jr purpose, Lessee !;It.\ll helve the right to encunber b:::
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,; mortgage, deed of tnwt or other appropriate instrument Lessee's
~ interest in tho leused premises and to this lease, provided
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" such encumbrance pertains only to !;uch leasehold interest and
;: docs not pcrtaill to or create any interest in the City's interest
~ in or title to the leased premises.
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If Lessee shall mortgage this leasehold in accordance
\-lith the fore~oinCJ provisions, thc City agrees t.h~lt so long as
any such leasehold mortgage shall remain unsiltis[ied of record,
and \'-'r..itten notice of such leasehold 100ortgi\l]C is given to the City,
j' and follo\'1i.n0 provisions skIll upply: I
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(a) Except (If; l'ro\,idc(1 in (11) hereoE, t1h:~rc I
!'iliall be no (;<lncclLllion, !;urrvl1dcr, acC{~ptal1\..:e of sur-::-endcr, I
or lilodif.icaLion of thi..~; 1c,\;;(', nor il laerger of t.he fee <tnd leasehold
;1 morLcJiHJe:;; I
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(b) The City sh<:1.ll, upon Gervin\] upon Lessee any
notice or dcf;:lult, or any.'other notice under the provisions of
or \-lith rospect to this le;:lse, simultaneously serve a copy of such
notice upon the hold~r of such lca~;chold mort<jiJ<je unc1 no notice
of SUCll default shall be deemed to have been duly given unless and
until a copy thereof hilS been so served upon the lcusehold mortgag
I' 'rho leasehold mortgaCJee ~;h<lll thereupon have ten (10) days
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\: more time than is given to Lessee to remedy or cause to be
,I remedied the c1efi.lul ts compl,d.ned of, and the City shull accept
i: such performunce by or at the in5t.i~ro.tion of such leasehold
\; mortgagee a.s if the sc:une 11<\(1 been done by Lessee;
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(e) Anything herein contained notwithstanding,
while such leasehold mortgage reGmins unsatisfied of record, if
any event or events of deta.nlt shall occur, \';hich under any
provision of this lOuse shull entitle the City to terr.linate this
lease, and if before the cr:pirution of ten (10) days of the date 0
service of said termination notice, such leasehold morgagee shall
have paid to thc City all rent and additional rent and other
payments herein provided for, and then in default, and shall have
;; complied or shull enguge in the \'lork of COI~lply ing Hi th all of
[: the othnr requirements of this lca.se, if any, \'lh1ch arc thea in de
'i fa u1 t, then in such even t the Ci ty shall no l: bc en ti tIed to
i terminute this lease and any notice of termination theretofore giv
~ shall be void and of no effect.
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~; In the cvell t the leased Pl:emi sos, or <:1ny pcu:t thereof I
:, shall be conc1t:~Ii\flccl and taJ:cn for i.l public or a quasi-public use I
then upon p~lymcnt of any cl',';an1 01." cOl,lpenSitt.lon arising from such
cOllc1C'r~U1i\tion, tJ\Cr<~~ ,5h<\11 il.:..' such division of: the proceeds, such
~! ab,) tell\cnt in ren t. p,lyablc clllLi IlCJ the ['crln ell: :1l'l)' e;.:tcn~;ion of the
:; term h(~rcof, anc1 r;uc!J ot.h(~r ilc1just'.;'\(.'IlLs ,I:; the pilrt::i.cs r.1i1Y <\9re<:>
\.1pon as bcil1rJ ~iuGt and c'lui.Lclblc '.1ll(1el: all the circU1:"stancC'c';
, rC~liJ.}:ellc~;G of ilny tcchnicill :culc (1 r Ln.!. I f the, City i1.nd Lc~;~;'-'C'
arc unilblc to aCfl:ee \.;ithin [hi),!:)' (30) dilY:; idlel: finch <111 i'c',:.:\nl
" has been p<lic1 into court upon \';hie!1 c1,l\'i:;'ion, ilDl1lul abatcl:l.::nt.
in ):cnt, und ol.:l1c): a(1just[;\'_~n~~, an~ just and cCjuit<:1})lc, t.he e1isp~ile
shull be c1etcrmincc1 by bin,1i!l(.! arbi l.ra tion iln(1 arbi Lrid:.ors shilll
be selected in the [;amc nl<lnnet as iln .'lpprilisitJ. under pari\9Ii\;:>h Ij (c
12.
cormmiNATIO;;! .
.' 13, SUHSIDEilCL:.
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.: Thc! city \'1i11 not he ):c~;l'c.ln:;ib]c {OJ ilny \-:asho\.1t, sub-
;. t;idcnc:c, ,\vul:.;ion, settl1.n(, or. reliction to th,~' le'<lscc1 pre;;liscs,
,: for any injury c:ll.li;cd Lhard.}' to th,:- property of the Lessee
:1 or uny 51101c55<:'l', or that of any ot1)"r PC1-:;O;1. Tho:' City is not
:; ohlilJiltedto repl<lcc, refill or improve any P:1l.'t of the lCilsed
i; prcli1i~;cs during the Lessee. I S OCCUpc\IlCY, in the cvent of such "lashl
!: subsidence, ilv111~;ion, settling or reliction.
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14 . NOTICI~S.
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1\11 nol:icc~; hcrL~lIllll,-,r mill' bo <1elivcJ:L~d OJ: m;lilcd.
1,1.'111c(1, th'~,~y r;h:1l1 be "L'nl by eC'l'liLted 01: .l-('gifjLcl:ed mail
the follo':!:i.nq l:C'~;p,~cti.V(~ (\(1lh:c:;:"..~~;:
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