HomeMy WebLinkAboutRes1991-050
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Sponsored by: Schaefermever
CITY OF SEWARD, ALASKA
RESOLUTION NO. 91-050
OF
SITE
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
SEWARD, ALASKA, APPROVING THE SUBLEASE OF BOARDWALK
NO. 1 FROM BRAD SNOWDEN TO KENAI COASTAL TOURS, INC.
WHEREAS, Brad Snowden is the Lessee of Seward Small Boat
Harbor Boardwalk Lease site No.1: and
WHEREAS, Mr. Snowden desires to sublease his building located
on the lease site to Kenai Coastal Tours, Inc., for operation of a
sightseeing tour/ticket office and gift shop: and
WHEREAS, this proposed use is an allowed use within the Harbor
Commercial Zone: and
WHEREAS, Snowden's Lease Agreement with the city is for a term
to end on June 30, 1995, with a three year renewal option: and
WHEREAS, the sublease agreement between Snowden and Kenai
Coastal Tours, Inc., is for a five year period to expire on June
30, 1996: and
WHEREAS, the city is unable to approve a sublease beyond the
expiration date of the original lease agreement:
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
section 1. A sublease of Seward Small Boat Harbor Boardwalk
Lease site No.1 from Brad Snowden to Kenai Coastal Tours, Inc.,
for the period May 1, 1991, through June 30, 1995, is hereby
APPROVED.
Section 2. A copy of the sublease agreement is attached and
incorporated herein by reference.
Section 3. This resolution shall take effect immediately upon
its adoption.
PASSED AND APPROVED by the City Council of the city of Seward,
Alaska, this 28th day of May, 1991.
THE CITY OF SEWARD, ALASKA
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David L. Hilton, Mayor
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 91-050
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Burgess, Dunham, Krasnansky, Meehan, Sieminski, Simutis,
Hilton
None
None
None
APPROVED AS TO FORM:
Perkins Coie, Attorneys for the
city of Seward, Alaska
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(City Seal)
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Fred B. Arvidson
city Attorney
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This agreement entered into this L day of /19/ ,
1991, by and between BRAD SNOWDEN, herein referred to as
"Lessor", and KENAI COASTAL TOURS, INC., herein referred to as
nLessee."
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WHEREAS, the lessor owns a building and is the lessee of a
space on which the building is located with the City of Seward
dated May 14, 1986, for the space more particularly known as
Commercial Lease site No.1, immediately adjacent to the Seward
Small Boat Harbor boardwalk, between Band 0 ramps, all within
Block six (6), Oceanview Subdivision, Seward Recording
District, State of Alaska; and,
WHEREAS the lessor desires to lease the premises to lessee
and lessee desires to lease the premises from lessor.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein the parties hereto agree as follows:
1. D..i..4 Pr..i....
above-described premises.
Lessor shall lease to lessee the
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2. T.r.. The term of the lease shall for ~ (81 years
commencing May 1, 1991, through ',wil 38, 1336, ~~less sooner
terminated. J'UN. 3~, '99~ ~
3. R.nt.l p.y..nt.. The lessee shall pay to lessor a
monthly rent as noted in the yearly schedule of payments as
follows:
For the First and Second years, rental payments shall
be NINE HUNDRED DOLLARS ($900.00) per month from May through
September and FOUR HUNDRED DOLLARS ($400.00) October through
April.
For the Third and Fourth years of the agreement,
Lessee shall pay ONE THOUSAND DOLLARS ($1,000.00) per month
from May through september and FIVE HUNDRED DOLLARS ($500.00)
per month from October through April.
For the Fifth year of the agreement, Lessee shall pay
ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00) per month from May
through september and SEVEN HUNDRED DOLLARS ($700.00) per month
from October through April. All monthly payments are due and
payable on the lOth day of each month during the term of this
lease.
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In the event that the Master Lease rent is increased
in excess of loot, lessee shall pay that portion in excess of
lOOt of the original lease amount as additional rent for the
duration of the term of this lease.
4. S.curity D.po.it. On execution of this lease, lessee
depot:iits with :"'SS()'=' tho ::UllI ::of t!INE Hr.~IDREO DnLnms (o;qoo,C\O),
receipt of which is hereby acknowledged by lessor, as security
for the faithful performance by lessee of the terms hereof, to
be r.turned to less.. without interest, on the full and
faithful performance by lessee of the provisions hereof. Said
deposit shall not b. used as a portion of the last month's
rent.
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5. X..t.r L.....
the terms of the Master
Snowden, as lesse., and
The terms of this lease are subject to
Lease dated May 14, 1986, between Brad
The City of Seward, as lessor. All of
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the terms, covenants and conditions or said Master Lease are
incorporated herein as though fully set forth. In the event
that any or the terms or this lease contradict the terms of the
Master Lease, the Master Lease shall prevail.
6. Bolding ov.r. Ir the lessee shall remain in posse,. .1
of said premises after the expiration of the term of tnls
lease, or beyond the termination or this lease for any other
reason, lessee shall pay, in advance, an amount of rent equal
to two (2) times the normal monthly rent. The normal monthly
rent shall be that amount payable for the same months as
indicated in the yearly schedule of payments in Paragraph )
above. If lessee is out within two weeks thereafter, or by the
15th of that month, an amount equal to one and one-half times
the rent shall be refunded to lessee by lessor. However, this
term is not to be construed as permitting a two week holdover
period following any termination under the terms of this lease
and specifically not under termination in the event of
complaints by The City of Seward about the business operations
of lessee.
7. Incr.... in T.., In.ur.nc. and utility a.t...
(a) Any increase in the insurance rate or utility
rates on said premises shall be the responsibility of the
lessee. Lessee shall be responsible for all personal property
taxes for the equipment or lessee's business.
(b) Lessor shall pay all taxes assessed for or during
the term hereof against and on any or all property and
improvements. Lessee shall be respon.ible to pay all the costs
involved in running and operating the busines..
(c) Lessee shall pay all Kenai Peninsula Borough
sales taxes and mu.t register its bu.iness with the Kenai
Peninsula Borough.
(d) Within ten (10) days after the commencement
of this agreement and during the lease term, lessee &
in.ur. the premi.e., at its sole cost and expense, against
claim. for per.onal injury or property damage under a policy of
general public liability insurance, with limits of at least
$300,000 for bodily injury and for property damage, or any
other amount e.tablished by the City of Seward pursuant to its
Master Lea.e and naming The City of Seward and lessor as
additional insured.. Lessor shall provide insurance coverage
for fire damage which shall not include any equipment and
fixture. of lessee.
8. Uti1iti.. .nd H.int.n.no.. Le.see is responsible for
all utilities. Minor maintenance and repair of the premises
and equipment shall be the responsibility of lessee. Lessor
shall be re.ponsible for major repairs to the structure, unless
caus.d by the negligence of le.....
9. ~.. of th. ~r~=i~c.. 4a's~~~ use of the pr9mises i~
limit.d to ~_ ~4/,.r +t::;t,,"-.L .
10. Cov.n.nt of Quiet .DjoyaeDt. So long a. the lessee
pay. the r.nts re..rv.d by this lea.. and p.rforms and observes
all the covenant. and provi.ion. h.r.of, the les... shall
qui.tly enjoy the lea..d property. Th. l..se.'s quiet
enjoym.nt of this lea..d property shall b. subject, however,
to: the term. of this lea.., to dispo.session by reason of
superior title, the Ma.ter Lea.., to all easements,
re.trictions of record, municipal ordinance. of The City of
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Seward, and statutes or regulations of the State of Alaska.
Should the lessee by dispossessed from the leased property by
reason of the terms of this lease, the Master Lease, or by
reason of such easements, restrictions, or ordinances, the
payment of rent shall cease from and after the date of such
dispossession, and all rent that lessee may have prepaid, or
any of the sum constituting a security deposit by lessee in the
hands of the lessor at the time of such dispossession, shall be
returned to the lessee forthwith, except to the extent of
lessee's default thereunder. The lessee shall not be entitled
to receive from the lessor any damages suffered by the lessee
as a result of such dispossession.
11. AlteratioD aDd I.prov..eDt.. Lessee may not alter or
improve the premises except with the express written consent of
the lessor upon presentation and review of plans pertaining to
such alterations or improvements. In the case of this lease,
it is acknowledged by both lessor and lessee that the premises
are leased "as is" at the time of commencement. Any and all
improvements made prior to commencement are not to be
considered to have any effect on this agreement; commencement
of this lease constitutes acceptance of the premises condition
by both lessor and lesse.. Lessee further agrees that it will
not at any time allow or permit any lien or other encumbrance
to be placed against the premises. Lessee shall also comply in
every regard with all conditions and obligations of lessor
under the Master Lease.
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12. Kaint.nanc. and ..pair. by L...... Except as herein
otherwise provided, lessee shall keep the interior of the
premises in tenantable repair, at its own cost and expense, and
at the end or other expiration of the term hereof shall deliver
up the premises, fixtures and equipment in substantially as
good a condition as they were at the beginning of the term
hereof, damage by reasonable wear and tear. and damage by fire
and the elements excepted. Lesse. shall replace any glass
windows, doors, or partition. broken or damaged upon the
premises in a clean and orderly manner. Except for the vinyl
awnings and support metal framework which are the property of
lessee, all alterations, additions or improvements made to the
premises, including decorations, paneling and similar items,
unless the lessor shall otherwise elect in writing, shall
become the property of the lessor and be surrendered as part of
the leased premise. at the end of the term hereof.
Lessee shall pay contractor's cost of additional electrical
outlet. and partition wall..
13. L..... Co.plianc. with all Laws. The lessee at its
sole expense shall comply with all law., order. and regulations
of federal, stat. and municipal authorities, and with any
direction of any public offic.r, pursuant to law, which shall
impo.. any duty upon les.or or the less.. with respect to the
': leased property. Th. les..., at it. sole expense, shall obtain
all license. or permit. which may b. required for the conduct
of itn business wit~ir. ~h. term. of this lease, or for making
of r.pairs, alteration., improvem.nts or additions; and the
le..or, where nec.ssary, will join with the lessee in applying
for all such p.rmit. or lic.n....
14. Surr.nd.r cf prop.rty In Good condition. At the
.xpiration of the leas. t.rm, the 1..... .hall surrender the
l.a..d prop.rty in a. good condition a. it was at the beginning
of the t.rm, reasonable us. and wear and damage by the elements
excepted.
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15. L...or'. Riqh~. in D.fault.
(a) The lessor may give the lessee written ten DO)
days notice of termination of this lease in any of .
following circumstances:
i. Failure to comply with any covenants, duties
or obligations under the Master Lease with The City of Seward.
ii. If lessee abandons the premises or the
premises remain unoccupied for a period of three (3) days,
excluding lessee's normal shut down of operations after each
summer season.
iii. If the lessee shall be in default in the
performance of any covenant of this lease and if such default
is not cured within ten (10) days after written notice thereof
given by the lessor; or, if such default shall be of such
nature that it cannot be cured completely within such ten day
period, if the lessee shall not have promptly commenced within
such ten day period or shall not thereafter proceed with
reasonable diligence and in good faith to remedy such default.
iv. If the lessee shall be adjudicated a
bankrupt, make a general assignment for the benefit of
creditors, or take the benefit of any insolvency act, or if a
permanent receiver or trustee in bankruptcy shall be appointed
for the lessee's property and such appointment is not vacated
within 90 days. For these purposes "lessee" shall mean the
lessee then in possession of the leased property.
v. If this lease shall be assigned or the leased
property sublet other than in accordance with the terms of this
lease and such default is not cured within 10 days after
notice.
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(b) If the lessor shall give a ten day notic
termination provided in subparagraph (a), then at
expiration of such period this lease shall terminat ~
completely as if that were the date herein definitely fixed for
the expiration of the term of this lease, and the lessee shall
then surrender the leased property to the lessor. If this
lease shall be so terminated, it shall be lawful for the
lessor, at its option, without formal demand or notice of any
kind, to reenter the leased property by unlawful detainer
action or by any other lawful means and to remove the lessee
therefrom without being liable for any damages therefor. Upon
the termination of this lease, as herein provided, the lessor
shall have the right, at its election, to terminate any
sublease then in effect, without the consent of the sublessee
concerned.
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(c) Because of the particular concern of lessor with
regard to the maintenance of a quality image with the
community, it is specifically agreed and understood that in the
event leszor !thall receive complaints regarding the bu!'ines..
operation of lessee from Th. City of Seward, lessor shall have
the right to terminate thi. leas. in its entirety and remove
les.e. on ten (10) days written notic.. During the ten (10)
day. preceding termination, le.... shall have the opportunity
to .atisfy the complaints to the ext.nt that all parties agree
the problem has been eliminated. If the complaint or problem
i. not r..olved in the ten day period, then Le..or's decision
to terminate this lease shall be final.
(d) The lessee shall remain liable for all its
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obligation. under this lea.. despite the lessor's reentry, and
the le.sor may re-rent or use the leased property, if the
les.or so elects. Th. l.ss.. waiv.. any legal requirements of
notic. of intention to reent.r.
(e) Nothing in this article shall be deemed to
require the lessor to give the l..se. any notic., other than
.uch notic. as may b. required by statut., prior to the
commenc.m.nt of an unlawful detainer action for nonpayment of
any basic rent or additional rent, it b.ing intended that the
t.n day notice is only for the purpose of creating a
conditional limitation hereunder pursuant of which this lease
shall terminat..
(f) If the lease shall terminate as provided in this
article the lessor shall have the right, at its election at any
time, to recov.r from the lessee the amount by which the rent
reserved herein for the balanc. of the term shall exceed the
reasonable rental value of the leas.d prop.rty for the same
period.
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(g) If the 1..... .hall b. in d.fault hereunder, the
le..or may cur. such default on behalf of les.or, in which
event the 1..... .hall r.imburs. the les.or for all actual
cost. to effect .uch cur., including int.r..t at the rate of
ten p.rc.nt (10') p.r annum and reasonable attorn.y's fees. In
ord.r to collect such r.imbursem.nt, the lessor shall have all
the remedies available und.r this lease for a default in the
payment of rent.
(h) Tim. i. of the es.enc. of this leas. with respect
to the p.rformanc. by l.s... of it. obligation. hereund.r.
16. Riqb~ of ..~rr. Th. l...or and it. repre..ntativ.s
may ent.r th. leased prop.rty, at any reasonable tim., for the
purpo.. of prot.cting the prop.rty from loss or damage,
insp.cting the lea.ed property, p.rforming any work which the
l...or el.ct. to und.rtak., mad. n.c..sary by reason of the
le....'. d.fault under the terms of this leas. or any other
lawful purpo...
17. L.....'. Riqb~. i. Bv..~ of D.fault. If the lessor
d.fault. in the ob..rvanc. or p.rformanc. of any term or
cov.nant r.quir.d to b. p.rform.d by it und.r this l.a.., the
le...., aft.r not 1... than thirty (30) day. written notic. to
the l.s.or, shall have .uch rem.di.. a. are available to lessee
at law.
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18. D..truo~io. of .rop.r~y. In the .v.nt that the
pr..i... .hall b. d..troy.d or so damag.d by fir. or other
casualty a. to b.co.. unfit for occupancy by l.ssee, the
parti.. her.to, at th.ir option, may t.rminat. this lease, and
1..... .hall not be required to pay furth.r r.nt. In the event
of da.ag. to the pr..is.., les.or .hall, at hi. sol. option,
r..tor. the pr.mi... for occupancy by l.s...; all rent. b.ing
abated during the p.rj~ of T.e~to~~tion. No~hinq in this lease
.hall be .0 con.trued a. to be a r.l.a.. from the liability in
the .v.nt that the 10.. or damaq. of the pr..i... shall b.
cau..d by willful or negliq.nt act. of 1......
19. Busi.... 8i9BS. All bu. in... .iqn., .iz., d..ign and
location .hall b. con.i.t.nt with the law. of Th. City of
S.ward.
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ZOo Co.4eaAa~io.. If the leas.d prop.rty, or any part
th.r.of, i. tak.n by emin.nt domain, this l.as. .hall expire on
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the date when the leased property shall b. so
rent shall be apportioned as off that date.
award shall belonq to the lessee, except that
for loss of lessee's business.
taken, and the
No part of any
amount awarded
21. subl.ttiDg.
premises.
22. A..igna.Dt of Rent.. The lessor shall have the riqht,
without sellinq its interest in the leased property or
assiqninq its interest in this lease, to assiqn from time to
time the whole of the net rent at any time payable hereunder to
persons, firms, corporations, trust, or other entities
desiqnated by the lessor in a written notice to the lessee, and
in any such case the lessee shall pay the net rent subject to
the terms of this lease, to the lessor's desiqnee at the
address mentioned in any such notice for the period covered by
such assiqnment.
The lessee may not sublet the 1.
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23. Liability for ..glig.De.. The lessor shall not be
liable for injury or damaqe to person or property occurrinq
within the leased property, unless caused by or resultinq from
the neqliqence of the lessor, any of lessor's aqents, servants
or employees in the operation or maintenance of the leased
property or the buildinq containinq the leased property.
Lessee aqrees to defend and hold lessor harmless from any and
all claims suffered in or about the premises by any person and
from expenses incurred by lessor in respect to any such claim,
except as occasioned by the neqlect of lessor.
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24. IDd.anifieatioD by L...... If the lessor pays a sum
of money for property damaqe or personal injury resultinq from
the lessee's use of the premises, then the sum so paid by the
lessor, toqether with all costs, damaqes, and reasonable
attorney's tees, shall b. considered additional rent, due in
the month succeedinq such payment and collectible at such time.
25. Li.D.. Lesse. will not permit any mechanics, lat
or materialmen.' liens to stand aqainst the leased premia :
improv.m.nt. tor any labor or materials furnished to lessee or
claimed to have been furnished to lessee, or to lessee's
aq.nt., contractors or sublessee., in connection with work of
any character performed or claimed to have been performed on
said pr..ise. or improvement. by or at the direction or
suff.ranc. of lessee; provided, however, lessee shall have the
riqht to contest the validity or amount of any such lien or
claim of lien. In the event of such conte.t, lessee shall qive
lessor reasonable security as may be determined by lessor to
insure payment thereof and prevent any sales, foreclosure, or
forf.itur. of the premise. or improvement. by reason of such
nonpayment. if judqment shall be rendered aqainst lessee, such
judqment shall be immediately .ati.fied by lessee and the lien
r.l.a.ed at le....'. expen...
26. .otiee.. Any notic. und.r this leas. must be in
writinq and must he 9~nt by certitied m~il ~~ cbe last addres~
of the party to who. the notic. is to b. qiven, as desiqnated
by such party in writinq. Th. le..or hereby de.iqnates its
addr... a. PO Box 670, Seward, Ala.ka. Th. le.s.e hereby
de.iqnate. it. addr... a. PO Box 104783, Anchoraqe, Alaska
99501.
27. .aya.nt of R.nt. Le.... shall pay the rent herein
reserved at the time and plac. h.r.in .pecified without notice
or d.mand.
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28. Le..or'. ae.edie.. Th. specified remedies to which
the lessor may resort under the terms of this lease are
cUmulativ. and are not intend.d to b. exclusive of any other
rem.die. or means of redre.. to which the lessor may be
lawfully entitled in ca.. of any breach or threatened breach by
the less.. of any provision or provision. of this lease.
29. .aiver. Th. waiver by lessor of any breach of any
term., covenants, or condition. hereof shall not b. deemed to
be a waiver of such term., covenants or condition., or of any
subsequent breach of the same or of any other terms, covenants
or condition..
The subsequent acceptance of rent by the lessor shall not
be deemed to be a waiver of any preceding breach by the lessee
of any term, covenant, or condition, other than the failure of
the le.se. to pay the particular rent so accepted, regardless
of the lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
30. aight of ~ir.t a.fu.al. Lessor hereby grants a right
of first refusal to the le.... for the property for the term of
this lea... Such right of first refusal .hall be available to
le..e. if less.. is in complianc. with all terms, covenants,
and condition. of this lea.. and the Mast.r Lease. In the
event that lessor rec.iv.. an off.r for the purchase of his
inter..t in said premi.es, th.n h. shall give lessee notice of
the offer and it. term.. Les... shall have ten (10) days in
which to match or better the off.r and terms of the offer to
purcha... In the ev.nt l.ss.. does match or better the offer
or term. of the offer to purcha.., then lessor shall sell to
less.. and the part i.. .hall clos. the transaction within sixty
(60) day..
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In the event, how.v.r, that lessee fails to respond in
writing within ten day. from d.livery of the notic. of the
off.r by l.ssor, th.n l...or shall b. fr.. to go forward with
the sale to the off.ror at the sam. or b.tt.r price and terms
contained in the original off.r and lessee shall have no
furth.r int.rest in the opportunity to purchase lessor's
int.re.t in the property.
31. ADDual ..D...l. At the .nd of the second year of this
lea.. and .ach year th.r.aft.r, 1..... will have the right to
t.rminat. the lea.. for the following y.ar. This right shall
be ex.rci..d by .ending a notice in writing to l.ssor on or
before Oece.b.r 31 of the current y.ar indicating that lessee
will terminate the l.a.. for the following year. Lessee shall
continu. to b. liable for lea.. paym.nt. and all other
cov.nant. and condition. und.r the t.rm. of this lease until
the anniv.rsary date of this l.as. Which shall be May 1 of the
fo11owing y.ar.
In the .v.nt that writt.n notic. of l.s....s intent to
t.rminat. i. not r.c.iv.d on or b.for. clo.. of busine..
Oec.~r 3tst, thp." l.ssee .b~ll be liable for the full amount
of the r.nt for the y.ar following the n.xt anniv.rsary date of
the l.a...
In oth.r word., 1..... .ha11 have the right on or before
O.c..b.r 31.t, 1993, to notify l...or of it. intent to
t.rminat. the lea.e .ff.ctiv. on the n.xt anniv.r.ary date of
the lea.e. Les.ee would then be re.pon.ible for the leasehold
payment from January through April 30 of 1994. If the notice
of intent to terminate i. not r.c.ived by the clo.. of business
on O.c.mber 31, 1993, th.n the 1..... .hall be re.pon.ible for
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the lease payments through the next succeeding anniversary date
or April 30, 1995. Lessee shall be liable for the rent from
May 1, 1994 through April 30, 1995.
It is the intention of the parties that lessor shal.
loose the rents payable during the summer months of each. _
during the term of this lease as a result of lessee's failure
to provide notice of its intent to terminate. It is further
specifically agreed that notice of termination, when provided
by December 31st, shall give sufficient time to lessor to
locate a new tenant for the summer months of the following
year.
32. Intir. Agr....nt; MOdification; s.v.rability. This
lease contains the entire agreement between the parties and
shall not be modified in any manner except by an instrument in
writing executed by the parties. If any term or provision of
this lease or the application thereof to any person or
circumstance shall to any extent, be invalid or unenforceable,
the remainder of this lease, or the application of such terms
or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this lease
shall be valid and be enforced to the fullest extent permitted
by law.
33. D.claration of Gov.rninq La.. This lease shall be
governed by, construed, and enforced in accordance with the
laws of the State of Alaska.
34. Bindinq Iff.ct. Th. covenants, terms, conditions,
provision and undertakings sin this lease or in any renewals
thereof shall extend to and b. binding upon the heirs,
executors, administrators, successors and assigns of the
respective parties hereto, as if they were in every case named
and expressed, and shall be construed as covenants running with
the land and wherev.r reference is mad. to either of
partie. hereto, it shall be held to include and apply al,
the heir., executor., administrators, successors and assigr.
such party, as if in each and every cas. so expressed.
,I LES~R:/70 ~
~
LESSEE:
KENAI COASTAL TOURS, INC.
BY: t~.V(-
TIM R. ,res~dent
SUB LEASE CONSENT
APPROVED:
ATTEST:
THE CITY OF SEWARD
:1
i BY:
,
LINDA S. MURPHY. CMC I AAE
CITY CLERK
(City Seal)
TITLE:
'I
:; Approved as to Form:
PERKINS COlE. Attorneya
the City of Seward
for
7-~ M ~
8
Fred B. Arvidson
City Attorney