HomeMy WebLinkAboutRes1994-048
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Sponsored by: Jones
CITY OF SEWARD, ALASKA
RESOLUTION NO. 94-048S
A RESOLUTION OF TIm CITY COUNcaOF TIm CITY
OF SEWARD, ALASKA, AUTIlORIZING LEASE AMENDMENT NO.2
WITH JAMES T. PRUITT, DBA SEWARD SHIP'S CHANDLERY, EXTENDING
TIlE LEASE TERM, AND AUTIlORIZING AN ASSIGNMENT OF LEASE
FROM JAMES T. PRUITT, DBA SEWARD SHIP'S CHANDLERY, TO
SEWARD SHIP'S DRYDOCK, INC.
WHEREAS, on September 22, 1988, the city entered into a lease agreement with James
T. Pruitt, dba Seward Ship's Chandlery, for the lease of certain real property located within the
Seward Marine Industrial Center for development of a ship repair yard; and
WHEREAS, the City Council adopted Resolution No. 93-159 and No. 94-037,
authorizing an amendment of said lease to expand the lease site to accommodate the construction
of a ship repair building; and
WHEREAS, the Lessee has requested the term of said lease be extended approximately
16 years to June 1, 2024, in order to satisfy banking and AIDEA requirements that the lease
term exceed the fmancing term by ten years; and
WHEREAS, the Lessee has concurrently requested that said lease be assigned from
James T. Pruitt, dba Seward Ship's Chandlery, to Seward Ship's Drydock, Inc.;
NOW, TIlEREFORE, BE IT RESOLVED BY TIlE CITY COUNCa OF TIlE
CITY OF SEWARD, ALASKA, that:
Section 1. The City Manager is hereby authorized to execute the Second Amendment
to Agreement, attached and incorporated herein by reference, amending the lease term of city
lease No. RE 88-073 with James T. Pruitt, dba Seward Ship's Chandlery.
Section 2. The City Manager is further authorized to execute the Assignment of Lease,
attached and incorporated herein by reference, transferring city lease No. RE 88-073 from James
T. Pruitt, dba Seward Ship's Chandlery, to Seward Ship's Drydock, Inc.
Section 3. The city of Seward accepts the Guaranty Agreement, attached and
incorporated herein by reference, by which James T. Pruitt unconditionally guarantees and
promises to and for the benefit of the city that Seward Ship's Drydock, Inc., will perform the
provisions of the assigned Lease Agreement.
Section 4. Sections 2 and 3 of this Resolution shall take effect upon passage and
approval. Section 1 of this Resolution shall take effect on the later of (i) thirty days after
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ASSIGNMENT OF LEASE
THIS AGREEMENT made and entered into between James T. Pruitt, d/b/a Seward
Ship's Chandlery, whose address is P.O. Box 944, Seward, Alaska 99664 (the "Assignor")
and Seward Ship's Drydock, Inc., whose address is P.O. Box 944, Seward, Alaska 99664
(the "Assignee").
WHEREAS, Assignor entered into a Lease Agreement with the City of Seward (the
"City") effective as of September 22, 1988, as amended (the "Lease"), a memorandum of
which was recorded at Book 53, Page 255, Seward Recording District, Third Judicial
District, State of Alaska, under which Assignor leased from the City certain real property
located in the City of Seward as described in Exhibit "A" hereto (the "Leased Premises");
and
WHEREAS, certain rights and obligations of City and Lessee under the Lease were
determined by an Arbitrators' Decision and Order dated January 4,1993 (the "Arbitrators'
Decision"); and
WHEREAS, Assignor desires to transfer and assign the Lease and improvements
associated therewith to the Assignee.
NOW, THEREFORE, in consideration of Ten Dollars and other good and valuable
consideration, receipt of which is hereby acknowledged, the Assignor assigns, sets over
and conveys to the Assignee all and the entirety of his interest as lessee in the Lease and
improvements now thereon, for the unexpired term of the Lease, subject to the payment
of rents and performances of the covenants, conditions, and stipulations therein, and the
Assignor and Assignee further agree as follows:
1. The Assignee hereby assumes all of Assignor's responsibilities and
obligations under the Lease and covenants that during the continuance of the Lease term
to pay the rents reserved and to perform the covenants, conditions, and stipulations in
the Lease to be performed by the Assignor and to indemnify the Assignor against all
actions, claims, and demands whatsoever in respect to the said rents, covenants,
conditions, and stipulations, or anything relating thereto.
Assill1lment of Lease
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2. The Assignee shall be subject to all the terms and conditions of the Lease
and Arbitrators' Decision, and all terms and conditions of the Lease as interpreted by the
Arbitrators' Decision shall remain in full force and effect.
ASSIGNOR:
James T. Pruitt,
d/b/a Seward Ship's Chandlery
Dated:
By:
James T. Pruitt
ASSIGNEE:
Seward Ship's Drydock, Inc.
By:
Dated:
James T. Pruitt, President
ACKNOWLEDGMENT
STATE OF ALASKA
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THIRD JUDICIAL DISTRICT
THIS CERTIFIES that on April ---' 1994, before me, the undersigned Notary
Public in and for the State of Alaska, duly commissioned and sworn as such, personally
appeared James T. Pruitt, d/b/a Seward Ship's Chandlery, known to me and to me
known to be the individual named in and who executed the foregoing instrument, and
acknowledged to me that he signed the same freely and voluntarily for the uses and
purposes therein set forth.
SUBSCRIBED AND SWORN to or affirmed before me at Seward, Alaska.
Notary Public in and for Alaska
My Commission Expires:
Assill1lment of Lease
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STATE OF ALASKA
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THIRD JUDICIAL DISTRICT
THIS CERTIFIES that on April -' 1994, before me, the undersigned Notary
Public in and for the State of Alaska, duly commissioned and sworn as such, personally
appeared James T. Pruitt, known to me to be the person who executed the foregoing
instrument, and acknowledged to me that he signed the same freely and voluntarily on
behalf of Seward Ship's Drydock, Inc., as duly authorized by the Board of Directors, for
the uses and purposes therein stated.
SUBSCRIBED AND SWORN to or affirmed before me at Seward, Alaska.
Notary Public in and for Alaska
My Commission Expires:
CONSENT TO ASSIGNMENT
THE CITY OF SEWARD hereby consents to the foregoing Assignment by James
T. Pruitt, d/b/a Seward Ship's Chandlery to Seward Ship's Drydock, Inc., of his title,
rights, responsibilities, and liabilities as Lessee under the Lease subject to the execution
by James T. Pruitt of a personal guaranty for the performance of the terms of the Lease.
CITY:
CITY OF SEWARD, ALASKA
ATIEST:
TYLER JONES, CITY MANAGER
APPROVED AS TO FORM:
Wohlforth, Argetsinger, Johnson &
Brecht, Attorneys for the City of Seward
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Thomas F. Klinkner
City Attorney
Linda S. Murphy, CMCI ME
City Clerk
[SEAL]
Assiil7lment of Lease
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SECOND AMENDMENT TO LEASE AGREEMENT
This Amendment to the Lease Agreement (the "Amendment") is entered into
between the City of Seward, Alaska (the "City"), whose address is P.O. Box 167, Seward,
Alaska 99664, and James T. Pruitt d/b/a Seward Ship's Chandlery (the "Lessee"), whose
address is P.O. Box 944, Seward, Alaska 99664.
WHEREAS, City and Lessee entered into a Agreement effective as of September
22, 1988 (the "Lease"), a memorandum of which was recorded at Book 53, Page 255,
Seward Recording District, Third Judicial District, State of Alaska, under which Lessee
leased from City certain real property located in the City of Seward, as described in
Exhibit "A" hereto (the "Leased Premises");
WHEREAS, certain rights and obligations of City and Lessee under the Lease were
determined by an Arbitrators' Decision and Order dated January 4,1993 (the "Arbitrators'
Decision");
WHEREAS, City and Lessee entered into an Amendment to Lease Agreement
recorded on April 11, 1994, at Book 71, Page 955, Seward Recording District, Third
Judicial District, State of Alaska, as confirmed by Resolution 94-37 dated March 14, 1994,
whereby City leased to Lessee certain additional real property to be subject to the terms
of the Lease as interpreted by the Arbitrators' Decision; and
WHEREAS, Lessee has requested that the Lease be amended to extend the term
of the Lease until June 1, 2024, to meet lender financing requirements for the construction
of improvements on the Leased Premises.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants hereinafter contained, the parties hereto agree as follows:
Section 1.
Lease Article 3.5 is amended to read as follows:
3.5 - Primary Term. The Primary Term of this Lease shall commence on
September 1, 1991, and continue through June 1, 2024.
Section 2. The Rental Adjustment cycle provided for in Lease Article 5.2 shall
continue as scheduled and apply to the period of the extended Lease term as established
by this Amendment.
Section 3. The Agreement by the City to the extension of the Lease term does
not affect (i) Lessee's obligations under Section 3.2 of the Lease, or City's remedies in the
event Lessee fails to perform those obligations, as interpreted by the Arbitrators' Decision,
and (ii) does not obligate the City to make additional amendments to accommodate the
financing of construction of improvements other than as may be provided for in the
Lease.
Second Amendment to Lease All1'eement
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Section 4. Except as expressly provided herein or the prior amendment referred
to above, the extended Lease term shall be subject to all the terms and conditions of the
Lease and the Arbitrators' Decision. Except as expressly provided herein, all terms and
conditions of the Lease as interpreted by the Arbitrators' Decision remain in full force and
effect.
Section 5. The Lease as interpreted by the Arbitrators' Decision and amended
by this Amendment and the prior amendment contains the entire agreement of the
parties with respect to the matters covered by the Lease as so interpreted and amended,
and no other agreement, statement or promise made by any party which is not contained
in the Lease as so interpreted and amended shall be binding or valid.
Section 6. This Amendment shall be effective on the effective date of Section
1 of Resolution No. 94-048S of the City approving this Amendment.
CITY:
LESSEE:
CITY OF SEWARD, ALASKA
JAMES T. PRUTIT
dba SEWARD SHIPS CHANDLERY
TYLER JONES, CITY MANAGER
JAMES T. PRUTIT
Dated:
Dated:
ATTEST:
APPROVED AS TO FORM:
Wohlforth, Argetsinger, Johnson &
Brecht, Attorneys for the City of Seward,
Alaska
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Linda S. Murphy, CMC/AAE
City Clerk
Thomas F. Klinkner
City Attorney
[City Seal]
Second Amendment to Lease Ayreement
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GUARANTY AGREEMENT
James T. Pruitt, individually ("Guarantor"), whose address is P.O. Box 944, Seward,
Alaska 99664, has determined that this Guaranty Agreement (the "Guaranty") will benefit
the Guarantor because the Guarantor desires that the City of Seward, Alaska (the "City"),
whose address is P.O. Box 167, Seward, Alaska 99664, consent to the Guarantor's
assignment of his lease with the City and in order to provide an inducement to take such
action, the Guarantor is willing to enter into this Guaranty and hereby unconditionally
guarantees and promises to and for the benefit of City that the assignee of the Lease shall
perform the provisions of the Lease that the lessee is to perform.
The Lease referenced by this Guaranty is that certain lease, as amended, entered
into by James T. Pruitt d/b/a Seward Ship's Chandlery, effective as of September 22,1988
(the "Lease"), a memorandum of which was recorded at Book 53, Page 255, Seward
Recording District, Third Judicial District, State of Alaska, under which the Guarantor
leased from City certain real property located in the City of Seward. The Guarantor
desires to assign said lease to Seward Ship's Drydock, Inc. ("Lessee").
The provisions of the Lease may be changed by agreement between City and
Lessee at any time, or by course of conduct, without the consent of or without notice to
Guarantor. This Guaranty shall guarantee the performance of the Lease as changed.
Assignment of the Lease shall not affect this Guaranty.
This Guaranty shall not be affected by City's failure or delay to enforce any of its
rights under the Lease or any predecessor lease between City and Lessee's predecessors
in interest. Guarantor consents to any and all forbearances and extensions of time which
may be granted by the City.
If Lessee defaults under the Lease, City can proceed immediately against
Guarantor or Lessee, or both, or City can enforce against Guarantor or Lessee, or both,
any rights that it has under the Lease, or pursuant to applicable laws. If the Lease
terminates and City has any rights it can enforce against Lessee after termination, City
can enforce those rights against Guarantor without giving previous notice to Lessee or
Guarantor, or without making any demand on either of them.
Guarantor waives the right to require City to (1) proceed against Lessee; (2)
proceed against or exhaust any security that City holds from Lessee; or (3) pursue any
other remedy in City's power. Guarantor waives any defense by reason of any disability
of Lessee, and waives any other defense based on the termination of Lessee's liability
from any cause. Until all Lessee's obligations to City have been discharged in full,
Guarantor has no right of subrogation against Lessee. Guarantor waives its right to
enforce any remedies that City now has, or later may have, against Lessee. Guarantor
waives any right to participate in any security now or later held by City. Guarantor
waives all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this Guaranty, and
waives all notices of the existence, creation, or incurring of new or additional obligations.
Guarant1/ AfTeement
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In the event of any proceeding by or against Lessee, a composition, extension or
reorganization under any provision of the Bankruptcy Code, or any other bankruptcy,
insolvency, receivership or similar proceeding, Guarantor expressly waives the extension
of the obligations of this Guaranty under any provision of such Code or any law or rule
applicable to such proceedings and hereby agrees that City may proceed immediately to
collect any amount due under the terms of this Guaranty and to otherwise enforce this
Guaranty. Any payment made or other performance made of the obligations of the Lease
hereby guaranteed, and which may thereafter be required to be refunded as a preference
under the Bankruptcy Code or any other federal or state law, shall not be considered as
payment or performance of the obligations of the Lease, nor shall it have the effect of
reducing the liability or obligations of Guarantor under the Guaranty.
If City disposes of its interest in the Lease, "City" as used in this Guaranty, shall
mean City's successors.
If City is required to enforce Guarantor's obligations by legal proceedings,
Guarantor shall pay to City all costs incurred, including, without limitation, reasonable
attorney's fees.
This Guaranty shall continue absolutely, unconditionally and irrevocably until all
obligations of Lessee under the Lease shall have been fully performed. Guarantor's
obligations under this Guaranty shall be binding on Guarantor's successors.
Dated this _ day of April, 1994.
JAMES T. PRUITI
STATE OF ALASKA
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THIRD JUDICIAL DISTRICT
THIS CERTIFIES that on April---/ 1994, before me, the undersigned Notary Public
in and for the State of Alaska, duly commissioned and sworn as such, personally
appeared James T. Pruitt, known to me and to me known to be the individual named in
and who executed the foregoing instrument, and acknowledged to me that he signed the
same freely and voluntarily for the uses and purposes therein set forth.
SUBSCRIBED AND SWORN to or affirmed before me at
, Alaska.
Notary Public in and for Alaska
My Commission Expires:
Guaranht Allreement
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STATE OF ALASKA
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THIRD JUDICIAL DISTRICT
THIS IS TO CERTIFY that on this _ day of , 1994, 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 in and who
executed the foregoing document, and he acknowledged to me that he signed the same
as his free and voluntary act 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:
Second Amendment to Lease A1lreement
Page 3
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 94-0485
passage and posting and (ii) the furnishing by the Lessee to the City of proof it has obtained a
commitment for fInancing of the building required under the lease, including AIDEA
participation.
PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 11th
day of April, 1994.
TIlE CITY OF SEWARD, ALASKA
^'-~ l0- ~
Dave W. Crane, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
Anderson, Bencardino, Crane, Darling, Krasnansky, O'Brien, Sieminski
None
None
None
ATTEST:
APPROVED AS TO FORM:
Wohlforth, Argetsinger, Johnson & Brecht,
Attorneys for the city of Seward, Alaska
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City Attorney
(City Seal)