HomeMy WebLinkAboutRes1986-033
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 86-33
A RESOIDTlrn OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, AUTHORIZING THE LEASE OF A CCM-1ERCIAL
WATERFRONT BOARrnALK SITE IN 'IRE SEWARD SMALL BOAT
HARBOR 'ID KENAI FJORDS TOURS, INC.
WHEREAS, the Seward City Council has previously approved a
Small Boat Harbor Uplands Managerrent Plan which included the developrrent
of a boardwalk with comrercial vendor locations ~ and
WHEREAS, the National Park Service is nearing conpletion of a
new visitor center to anchor the boardwalk developrent and the Harbor-
master has conpleted the first phase of the boardwalk~ and
WHEREAS, the City Council has shown support for this project~
and
WHEREAS, the City perviously advertised requesting proposals
for lease of ccmrercial sites on the boardwalk and received only two
proposals, and subsequently offered the remaining two sites on a first
cane, first serve, bases subject to the business being conpatible with
the visitor orientation of the boardwalk~ and
WHEREAS, the proposal submitted by Kenai Fjords Tours, Inc.,
to operate a charter and tour business is =npatible with the City's
overall goals to encourage visitors to utilize the Small Boat Harbor
area~
NCW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The public interest would best be served by
offering a sole source lease of oornrercial waterfront boardwalk site to
Kenai Fjords Tours, Inc.
Section 2. The City Manager if hereby authorized to execute
the attached lease, which is incorporated herein by reference as a part
of this resolution, with Kenai Fjords Tours, Inc., for carrrrercial lease
space site Number 4 located along the Small Boat Harbor Boardwalk.
Section 3. This resolution shall take effect imrrediately upon
its adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, this 14 day of April , 19 86
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CITY OF SEWARD, AlASKA
RESOLUTICN NO. 86-33
AYES:
NOES:
ABSENT :
ABSTAIN :
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THE CITY OF SEWARD, AlASKA
~ t: ~A-4,4
HARRY . IESELER, MAYOR
BOOHER, GIESELER, GILLESPIE, HILTON, MEEHAN, SCHOLL, & SIMUTIS
NONE
NONE
NONE
A'ITEST:
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANI'Z, rovELL
AND BRUNDIN, Attorneys for the
City of Seward, Alaska
7~ 111~
Fred B. Arvidson, City Attorney
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LEASE AGREll1ENT
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This Agreerrent made and entered into this
day
of
, 1986, by and between the -CITY OF SEWARD,
a horre rule municipal corporation located in the Kenai Peninsula Bor-
ough, State of Alaska, hereinafter referred to as "City" and Kenai
Fiords Tours, Inc.,
hereinafter referred to as "Lessee".
WIT N E SSE T H:
WHERFAS, City and Lessee are ITU.ltually interested 111 the
developrrent of harbor related facilities in the Small Boat Harbor area
within the City of Seward, Alaska~ and
WHERFAS, Lessee has derronstrated to City an intention to
expand and develop a canrercial waterfront visitor-related business~ and
WHERFAS, the City has received a proposal from Lessee for
development of City awned land~ and
WHERFAS, City, as expressed more fully in City Council Resolu-
tion No.
, has determined that Lessee's intentions and general
development plans coincide with the public interest of the City and will
provide increased tax revenues and rental incorre to the City; and
WHERFAS, City and Lessee have reached agreerrent on the land
City is to lease to Lessee, the general terms and conditions of such a
lease~
FOR AND IN CONSIDERATION OF 'mE RENTS, COVENANTS, AND CON-
'DITIONS HEREIN CONTAINED, CITY AND LESSEE AGREE AS FOLI..CWS:
ARI'ICLE 1. DEMISE. City leases to Lessee, and Lessee leases
from the City that certain real property herein called "Leased Land",
situated in Seward, Alaska, oonsisting of approximately 900 square feet,
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as shawn on Exhibit" A" attached hereto and as more particularly de-
scribed as follows:
Cormercial Lease Site No. 4 imrrediately
adjacent to the Seward Small Boat Harbor
Boardwalk between "B" and "D" Ramps, the
Site to include use of a wood frarre
building. The Site is wi thin Block 6,
Oceanview Subdivision.
ARI'ICLE TI. CITY'S WARRANTY OF QUIEI' ENJOYMENT. Lessee, upon
paying the rent and other charges herein provided for and observing and
keeping the covenants, oondi tions and terms of this Lease on Lessee's
part to be kept or perforrred, shall peacefully and quietly enjoy pos-
session of the Leased Land during the tem of this Lease without hin-
drance by, fran or through City, subject, however, to any encumbrances
created or caused by Lessee.
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ARI'ICLE III. LEASED LAND ACCJ:<.;Pl'lill "AS IS". Lessee acknowl-
edges that he has inspected the Leased Land and accepts the same "as is"
and without reliance on any representations or warranties of City, or
agents of City, as to the physical condition thereof, except as express-
ly herein provided.
ARI'ICLE IV. USE OF LEASED LAND.
1. Lessee may use the Leased Land for the construction and
operation of charter and sightseeing business
Lessee understands that construction and operation of such a facility is
a rnajor oonsideration for City's agreement to lease the Leased Land.
Lessee agrees that he will not operate any other business on the Leased
Land without the consent of the City. ~reover, City rnay withhold its
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consent as to any proposed business or activity which, in City's sole
discretion, is not desirable or oonpatible with the City's Small Boat
Harbor area.
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2. No assignment or sublease shall be permitted unless
approved in writing by the City. lmy sublease shall be expressly
subj ect and subordinate to this lease and the rights of the City here-
under. The City may elect to not approve any proposed assigmnent or
sublease which rnay result in a business or activity which, in the City's
sole discretion, is not desirable or compatible with the City's Small
Boat Harbor area.
ARI'ICLE V. LEASE TERM.
1. Conrrencement and Expiration. The tem of this Lease shall
be ten (10) years, comrencing on
and ending
2. Options and Extensions. There is a renewal option for
Lessee to extend this lease for an additional three (3) year period, but
by inaction of the parties, the lease shall be deerred to oontinue from
month to month. This lease will not terminate until notice in writing
is given by either party to the other, not later than three months prior
to the expiration of the lease term.
3. Holdover. If Lessee shall hold over after the expiration
of the Lease Tem, such tenancy shall be fran month to month on all th~
terms, oovenants and conditions of this Lease.
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4. Surrender of Possession.
(a) Subject to the provisions of Article XI below with
respect to restoration of buildings and irrprovements, upon expi-
ration of the Lease '!'em, whether by lapse of time or otherwise,
Lessee shall pronptly and peacefully surrender the Leased Land.
(b) Upon the expiration of the Lease Tem or any sooner
temination of this Lease, Lessee agrees to execute, acknowledge
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and deliver to City a proper instrurrent in writing, releasing and
quit-claiming to the City all right, title and interest of Lessee
in and to the Leased Land and all irrprovements thereto not rerroved
by Lessee as provided herein.
ARI'ICLE VI. RENT. The rental for the Leased Land shall be
detemined and paid as follow?:
1. Any and all annual rental due under this Lease shall be
paid in advance upon oomrrencerrent of this Lease in yearly installments
on or before oomrencement of this Lease and on or before July 1 of each
succeeding year, except as otherwise provided.
2. The rental shall be detemined as follows:
(a) The lease rate shall be $1500 per annum.
(b) Should the City and Lessee mutually agree to extend
the lease, not less than ninety (90) days prior to the expiration
of the lease the City, at its awn expense, rnay enploy an indePen-
dent appraiser to detemine the fair market rental value of the
Leased Land at the highest and best use of the Leased Land and
without consideration of Lessee's intended use of the land unless
that use is ooincidentally the highest and best use of the Land.
3. Additional Rent and Ci ty' s Right to Cure Lessee's De-
faults. All oosts and expenses which Lessee assurres or agrees to pay
pursuant to this Lease or to any mortgage or other encurrt>rance upon the
Leased Land or Lessee's leasehold interest shall at City's election be
treated as additional rent and, in the event of nonpayrrent, City shall
have all rights and rerredies herein provided for in the case of nonpay-
l1'ent of rent or of a breach of oondition. If Lessee shall default in
making any payrrent required to be rnade by Lessee, or shall default in
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I! perfonning any tem, covenant or condition of this Lease or of any such
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i ~ rrortgage or other encumbrance on the part of Lessee to be perforrred
which shall involve the expenditure of money by Lessee, City at City's
option rnay, but shall not be obligated to, make such payrrent or, on
behalf of Lessee, expend such sum as may be necessary to perform and
fulfill such tem, covenant or condition, and any and all sums so
expended by the City with interest thereon at the maxirrn.:rrn rate under the
laws of the State of Alaska fran the date of such expenditure until
repaid, shall be (and shall be deerred to be) additional rent and shall
be repaid by Lessee to the City, on demand, but no such payrrent or
expenditure by the City shall be deerred a waiver of Lessee's default nor
shall it affect any other rerredy of the City by reason of such default.
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4. Late payrrent Penalty.
Rental payrrent due but not
received by the due date shall be subject to a ten percent (10%) delin-
quency fee plus one and one-half percent (1J.,%) sinple interest per month
until paid or the maxirm.un pemi tted rate under Alaska law, whichever is
higher.
ARI'ICLE VII. TAXES AND ASSESSMENTS.
1. Lessee to Pay Taxes.
Lessee agrees to pay prior to
delinquency and directly to the taxing authorities in which the Leased
Land is located all real property taxes (plus all personal property
taxes on personalty situate on the Leased Land and placed thereon by
Lessee or under Lessee's authority), sales taxes, or other business or
use taxes levied or assessed upon or against the Leased Land or any
inproverrents thereon or Lessee's business during the Lease Tenn. Lessee
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agrees to indemnify and hold City harmless from liability for any other
tax, charge, or assesSIrent of any kind or nature. Lessee shall, within
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sixty (60) days after any such tax assesSIrent or other charge consti-
tuting a lien on the Leased Land shall become due and payable, produce
and exhibit to City satisfactory evidence of payrrent.
2. Lessee to Pay AssesSIrents. Lessee, during the lease
tem, agrees to pay directly to the public authorities charged with
collection thereof any and all assessments levied on the Leased Land for
a part of or all of the cost of any public work or inproverrent assessed
according to benefit found by the levying authority to accrue therefrom
to the Leased Land, including any charges for anti-pollution, environ-
mental, ecological or any other public purposes. If an option is given
to pay such assesSIrent (s) in installments, Lessee may elect to pay the
same in installrrents, and in such case Lessee shall be liable only for
such installrrents as shall accrue during the Lease Tem.
3.
Proration of Taxes and Assessments. If Lessee's obli-
gation to pay taxes or assessments COIlIl'eIlces or ends during a tax year,
such obligation shall be appropriately prorated with City bearing the
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remaining oost (or its pro rata share) thereof.
4. Contest. Lessee shall have the right to contest or
review any tax, assessment, levy, fee, water 0:;: sewer charges or rents,
or any other governrrental charges which Lessee is obligated to pay.
Such proceedings shall, if instituted, be conducted pronptly at Lessee's
0Nl1. expense and free from all expense to City. Before instituting any
such proceedings, Lessee shall pay under protest such tax, assesSIrent,
levy, fee, water or sewer rents or charges or any other governmental
charges, or shall furnish to City a surety oonpany bond in a oonpany
acceptable to City, or other security reasonably satisfactory to City,
sufficient to cover the anDunt of the contested item or items with
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interest for the period which such proceedings Im.y be reasonably ex-
I pected to take and costs securing the payrrent of such contested item or
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items and all interest and oosts in connection therewith when finally
determined. Notwithstanding the furnishing of any such bond or securi-
after the inposition or assessment of any contested items and shall be
prosecuted to final adjudication with reasonable dispatch. In the event
of any reduction, cancellation or discharge, Lessee shall pay the anDunt
that shall be finally levied or assessed against the Leased land or
adjudicated to be due and payable- and, if there shall be any refund
payable by the governmental authority with respect thereto, Lessee shall
be entitled to receive and retain the sarre subject, however, to appor-
tionIrent as provided in Paragraph 3 above during the first and last
years of the lease term. Ci ty at City's option rnay, but shall not be
obligated to, contest or review by legal proceedings or in such other
manner as rnay be legal and at City I s 0Nl1. expense any tax, assesSIrent,
levy, fee, water or sewer rents or charges, or any other governmental
charge aforementioned, which shall not be oontested or reviewed as
aforesaid, and unless Lessee shall pronptl Y join in such contest or
review and pay all costs therein, the City shall be entitled to receive
and retain any refund payable by the governmental authority with respect
thereof.
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5. Lessee to Pay Utility Charges. Lessee shall payor cause
to be paid all charges for water, heat, gas, electricity, sewers, and
any and all other utilities used upon' the Leased Land throughout the
lease tem, including any connection fees.
ARI'ICLE VIII. CONSTRUCTION BY LESSEE.
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1. Lessee I s Right to Build--General Conditions. Lessee shall
have the right at any time and from 1:i.rrIE! to tirre during the lease tem
to construct, maintain, alter, remodel, reconstruct, rebuild and replace
building (s) and other irrprovement (s) on the Leased Land, subject to
approval of the City in oonfomi ty with the ~ll Boat Harbor Master
Plan and the following oonditions:
(a) The oost of, any oonstruction, reconstruction,
demolition, or of any change, alteration or irrprovements, shall be
borne and paid for by Lessee.
(b) The Leased Land shall at all tirres be kept free of
mechanic's, materialrren' s, and any other liens, as hereinafter more
specifically provided.
(c) Any building contractors enployed by Lessee or its
sublessees shall be appropriately bonded for one hundred percent
(100%) of the contract anDunt (s) by use of performance and labor
and rnaterial payrrent bonds in the custanary form when cost of the
work is over $10,000.00. Copies of all such bonds shall be fur-
nished to the City prior to CcmIEn.cerrent of oonstruction.
(d) Lessee, upon cornrencement of pemissible building or
oonstruction activities on the Leased Land, shall continue such
activities through to oorrpletion with diligence and oontinuity.
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(e) Cornrencement of construction shall rrean having
materials and labor on site. Comrencement of construction shall take
place within 90 days of the signing of this Lease and construction shall
be conpleted within 90 days of cornrencerrent of construction.
2. Lessee's ONnership of Trade Fixtures, Machinery and
Equiprrent. It is expressly understood and agreed that any and all trade
fixtures, rnachinery and equiprrent of whatsoever nature at any time
oonstructed, placed or maintained upon any part of the Leased Land by
Lessee shall be and remain the property of Lessee or its tenants as
their interests rnay appear and may be rerroved or replaced at any time
during the lease tem, provided Lessee or its tenants repair any and all
damage to the Leased Land resulting from such rerroval or replacement.
3. Lessee's Right to Rerrove Inprovements and ONnership
Thereof. Lessee shall have the right to rerrove any buildings or im-
provements constructed or placed upon the Leased Land by Lessee prior to
the expiration of the Lease. Any buildings or irrproverrents not rerroved
prior to the expiration of the Lease shall becorre the property of' the
City without the payrrent of any canpensation to Lessee.
ARI'ICLE IX. LIENS.
1. Prohibition of Liens on Fee or Leasehold Interest. Lessee
shall not suffer or pemit any liens to be filed against the fee of the
Leased Land nor against Lessee's leasehold interest in the Leased Land
nor against any buildings or irrprovements on the Leased Land by reason
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of any work, labor, services or rnaterials supplied or claimed to have
been supplied to Lessee or anyone holding the Leased Land or any part
thereof through or under Lessee.
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2. Removal of Liens by Lessee. If any lien shall be re-
corded against the Leased Land, or any irrprovements thereof, Lessee
shall cause the same to be rerroved, or, in the alternative, if Lessee in
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good faith desires to contest the sarre, Lessee shall be privileged to do
so, but in such case Lessee hereby agrees to provide a surety bond from
a surety licensed to do business in Alaska in a penal sum equal to one
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and one-half times the arrDunt of the claim of lien, which bond shall
guarantee the payrrent of the sum which the lien claimant has claimed,
together with the lien claimant's reasonable cost of suit in the action.
Lessee further agrees to indemnify, defend, and save the City hamless
frcm all liability for damages occasioned thereby and shall, in the
event of a judgerrent of foreclosure upon said lien, cause the same to be
discharged and rerroved prior to the execution of such judgerrent.
3.
Notice of Non-Responsibility. The City may, as contem...,
plated by Alaska Statutes 34.35.065 (as now enacted or hereinafter
arrended) give notice of non-responsibility for any irrprovements con-
structed or rnade by Lessee on the Leased Land.
ARI'ICLE X. INDEMNITY. Except for claims arising out of acts
i caused by the I18<Jligence of the City or its representatives, Lessee
agrees to protect, indemnify, defend and save hamless the City from and
against any and all liability arising from acts or omissions of any
nature whatsoever of Lessee's officers, servants, enployees, contrac-
tors, tenants, agents or invitees causing injury to or death of persons
or loss of or damage to property during the Lease Tem, and fran any
expense incident to defense of and by the City therefrom. If any action
or proceeding is brought against the City by reason of any such occur-
rences, the City shall notify Lessee in writing of such action or
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proceeding, whereupon Lessee at Lessee's expense rnay elect to resist or
defend such action or proceeding by counsel approved in writing by the
City, such approval not to be withheld unreasonably.
ARI'ICLE XI. INSURANCE AND RESTORATION.
1. Liability Insurance. Lessee, during the Lease Tem, shall
provide a certificate of insurance showing the City as co-insured in an
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amount of not less than $300,000 oonprehensive general liability cover-
age for premises operations, broad fom property damage and personal
injury. The minirm.un requirerrents in this section rnay be increased from
time to time by the City in accordance with customs and usage for
canparable property in the Seward rretropoli tan area.
2. Fire and Extended Coverage Insurance. Lessee, during the
Lease Tem, shall keep all buildings and inproverrents insured at its
expense against loss or damage by fire and such other risks as rnay be
included in the custOlt'ary fom of broad fom extended coverage (which
may exclude earthquakes), in an amount, over and above any deductibles
in the governing policies, of not less than the unpaid balance(s) due
under any existing deed (s) of trust or mortgage (s) encunbering the
buildings or irrprovements or the City's fees.
3.
Lessee may provide any insurance
Blanket Insurance.
required by this Lease in the fom of a blanket policy, provided Lessee
furnishes evidence satisfactory to the City indicating the coverage
thereunder is at least equal to the ooverage obtainable under a sepa,rate
policy covering the Leased Land only.
4. Additional Named Insured~ Rights of t.brtgagees (Lenders)~
Waiver of Subrogation. All insurance policies required to be rnaintained
by Lessee shall narre Lessee and the City as the insureds, as their
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.! respective interests may appear. All policies shall contain an agree-
ment by the insurers that such policies shall not be cancelled without
at least thirty days' prior written notice to the City, and certificates
or copies of all such insurance policies shall be furnished to the City
prorrptl y after the issuance thereof.
5. Restoration of Buildings and Inproverrents. In the event
of damage to or destruction of any of the buildings or irrprovements
situated on the Leased Land, then from the insurance proceeds payable to
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Lessee, Lessee shall within ninety (90) days after payrrent of the
insurance proceeds cornrence restoration of the buildings and irrprove-
rrents to their condition prior to such damage, provided, however,
Lessee's obligation to restore will be limited to the insurance proceeds
available to Lessee. All such insurance proceeds shall be deposited and
held in trust with such bank having offices in Seward and/or Anchorage,
Alaska, as Lessee may designate, or with Lessee's mortgagee of the
danaged property, and shall be rnade available to Lessee for its use in
restoration or repair, as the case may be, of any damage or destruction
to the buildings and irrprovements on the Leased Land. The proceeds of
insurance shall be paid out by such trustee or mortgagee frcm time to
time on certification of the person having supervision of the, work that
the anDunt certified is being applied to the payrrent of the reasonable
cost of such work.
ARI'ICLE XII. CARE OF LEASED LAND, ACCESS OF THE CITY.
1. Care of Leased Land. Lessee at its 0Nl1. cost and expense
shall keep the entire Leased Land and all buildings and irrproverrents
which at any time may be situated thereon in good, clean 'and tidy
condition and repair during the Lease Tem.
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2. ~r Access Rights of the City. The City and its agents
or representatives shall have the right to enter into and upon the
Leased Land during reasonable hours for the purpose of inspecting the
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Leased Land and all buildings and irrproverrents thereon.
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3. Avoidance of Prescriptive Rights. Lessee shall take such
action as may be necessary to preserve the City's title and ONl1.ership of
the Leased Land free and clear of any public or private rights of way,
easerrents or other interests aa::ruired by prescriptive use or otherwise
than as pemitted under this Lease, including but not limited to the
: posting of thoroughfares, walkways and Parking areas so as to preserve
the right of private ONl1.ership therein and prevent any adverse rights
thereto accruing through prescriptive use or otherwise than as pemitted
hereunder.
ARI'ICLE XIII. COMPLIANCE WITH rAWS.
1.
Conpliance with Laws.
Lessee shall conply with all
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applicable laws, ordinances and regulations of duly oonstituted public
authorities now or'hereafter in any manner affecting the Leased Land or
any buildings, structures or irrprovements situated thereon, ",Jhether or
not any such laws, ordinances or regulations which rnay be hereafter
enacted involve a change of policy on the part of the governmental body
enacting the same. Lessee further agrees it will not pemit any unlaw-
ful occupation, business or trade to be conducted on said premises or
any use to be made thereof oontrary to any law, ordinance or regulation
as aforesaid with respect thereto.
2. Contest. Lessee may by appropriate proceedings conducted
at Lessee's 0Nl1. expense, contest in good faith the validity or enforce-
ment of any law, ordinance or regulation, provided Lessee diligently
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prrsues such oontest to a final detemination by a court, departrrent or
governmental authority or body having jurisdiction thereof; provided
that if the City rnay becorre liable in any manner for damages, penalties,
fines or oosts by reason of Lessee's failure to conply with any, such
law, ordinance or regulation during Lessee's' oontest thereof, then, as a
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condition precedent to the cornrencerrent and continuation of such pro-
ceedings, Lessee shall furnish the City such bond with oorporate surety
as the City shall reasonably request to save hamless and indemnify the
City against liability for any such damages, penalties, fines or costs.
At the option of the City, it may at its expense contest the validity or
enforcement of any such law, ordinance or regulation.
ARI'ICLE XIV. EMINENI' JJCMAIN.
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1. Interest of Parties in Condemnation. In the event the
Leased Land or any part thereof shall be taken for public purposes by
condemnation as a result of any action or proceeding in eminent domain,
or shall be transferred in lieu of condemnation to any authority enti-
tIed to exercise the POWer of eminent domain, the interests of the City
and Lessee in the award of oonsideration for such transfer and the
effect of the taking or transfer upon this Lease shall be as provided by
law.
In the event the extent of the taking makes irrpracticable the
continued operation of the self service car wash, gas station and retail
merchandise facility, upon written notification by Lessee this Lease and
all of the'right, title and interest thereunder of Lessee shall cease on
the date title to such Land so taken or transferred vests in the con-
derming authority.
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2. Partial Taking-COntinuation of Lease. In the event the
taking or transfer of a part of the Leased Land leaves the remainder of
the Leased Land in such location and in such form, shape or size, or so
accessible as to be effectively and practicably usable in the opinion of
the Lessee and the City for the purpose of operation thereon of Lessee IS
business, this Lease shall terminate and end as to the portion of the
Leased Land so taken or transferred as of the date title to such portion
vests in the conderm1ing authority and the conderming authority enters
into possession but shall continue in full force and effect as to the
portion of the Leased Land not so taken or transferred.
ARI'ICLE)N. ARBITRATION. Any controversy or claim arising
out of or relating to this Lease, or the breach thereof, shall be
settled by arbitration in accordance with the Uniform Arbitration Act of
Alaska, and judgerrent upon the award may be entered in any court having
jurisdiction thereof. Any arbitration proceedings hereunder shall be
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or with the consent of both parties in Anchorage, Alaska.
ARI'ICLE )NI. DEFAULT AND REMEDIES.
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1. Default and Tennination.
(a) If the rent or any other charge shall be in arrears
for a period of thirty (30) days, or
(b) If Lessee fails to take reasonable steps to keep and
perform any of the covenants or conditions of this Lease wi thin
thirty (30) days after written notice of default, or
(c) If Lessee files a voluntary petition in bankruptcy
or for reorganization under the bankruptcy laws or is adjudged a
bankrupt by a court of corrp:tent jurisdiction, or
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(d) If Lessee makes an assigrurent for the benefit of its
creditors, or
(e) If a receiver is appointed by a court of competent
jurisdiction for Lessee I s business and it be established in the
receivership proceedings that Lessee is insolvent, or
(f) If the leasehold interest hereunder is abandoned by
Lessee, then
City may at City's option at once without further notice to Lessee or
any other person, terminate this Lease. Upon termination of this Lease
as aforesaid, or at the expiration of this Lease and up:m the termina-
tion of said Lease by its tenns, Lessee shall at once surrender pos-
session of the Leased Land to the City and rerrove all Lessee 1 s effects
therefran and may rerrove all Lessee's buildings and other irnproverrents,
and Lessee shall have no further rights hereunder or with respect to the
Leased Land. If such possession be not imrediately surrendered, the
City nay forthwith enter into and upon and repossess the Leased Land and
expel Lessee or those claiming under Lessee without being deemed guilty
in any nanner of trespass and without prejudice to any rerredies which
might otherwise be used for arrears of rent or preceding breach of
covenant, and in such event Lessee expressly waives the service of
notice of any intention so to terminate this Lease or to retake the
Leased Land and waives service of any demand for payrrent of rent or for
possession and for any and every other notice or demand prescribed by
any law and hereby waives any claim for danages by reason of such
repossession.
2.
Reletting. At any tiIre or from time to time after any
such expiration or termination, the City may relet the Leased land, or
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any part thereof, and any unleased buildings and irnproverrents, for such
term or tenns (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on
such conditions (which nay include concessions or free rents) as the
City, in its discretion, may determine and may collect and receive the
rents therefor. The City shall in no way be responsible or liable for
any failure to relet the Leased land, or any part thereof, or for any
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failure to collect any rent due upon any such reletting.
3. Damages. No such expiration or termination of this Lease
shall relieve Lessee of its liability and obligations under this Lease,
and such liability and obligations shall survive any such expiration or
termination. In the event of any expiration or termination, whether or
not the Leased Land, or any part thereof, shall have been relet, Lessee
shall pay to the City the net rent and all other charges required to be
paid by Lessee up to the time of such expiration or termination of this
Lease, and thereafter Lessee, until the end of what would have been the
term of this Lease in the absence of such expiration or termination,
shall be liable to the City for, and shall pay to the City, as and for
liquidated and agreed current damages for Lessee's default,
(a) the equivalent of the aIrOunt of the rent and charges
which would be payable under this Lease by Lessee if this Lease
were still in effect, less
(b) The net proceeds received by the City from leasing
or reletting the Leased Land and irnproverrents thereon after de-
ducting all of City I S expenses in connection with such leasing and
reletting, including, without limitation, all repossession costs,
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brokerage corrmissions, legal expenses, reasonable attorneys' fees,
alteration costs, and expenses of preparation for such reletting.
Lessee shall pay such current damages (herein called "deficiency") to
the City IlOnthl y, and the City shall be entitled to recover fran Lessee
each IlOnthly deficiency as the sane shall arise. At any tiIre after any
such expiration or termination, whether or not the City shall have
collected any IlOnthly deficiencies as aforesaid, the City shall be
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entitled to recover frcrn Lessee, and Lessee shall pay to the City, on
demand, as and for liquidated and agreed final damages for Lessee's
default, an aIrOunt equal to the difference between all rent reserved
hereunder for the unexpired portion of the Lease Term and the then fair
and reasonable net rental value to the City of the Leased Land for the
sane period. In the computation of such damages, the difference between
an install1rent of rent becaning due hereunder after the date of termina-
tion and the fair and reasonable rental value to the City of the Leased
Land for the period for which such install1rent was payable shall be
disCOWlted to the date of termination at the rate of six percent (6%)
per annum. If the Leased Land, or any part thereof, be leased or relet
by the City for the unexpired portion of the Lease Term, or aay part
thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the aIrOunt of rent reserved upon such
leasing or reletting shall be prine. facie evidence of the fair and
reasonable rental value for the part or _ the whole of the premises so
leased or relet during the tenn of the leasing or reletting. Nothing
herein contained shall limit or prejudice the right of the City to prove
and obtain as liquidated damages by reason of such termination an aIrOunt
equal to the maximum allONed by any statute or rule of law in effect at
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the tiIre when, and governing the proceedings in which such damages are
to be proved, whether or not such aIrOunt be greater, equal to, or less
than, the aIrOunt of the difference referred to above.
4. Accumulation of Rerredies. Each right and rerredy of the
City provided for in this Lease shall be curmlative and shall be in
addition to every other right or rerredy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or other-
wise, and the exercise or beginning of the exercise by the City of any
one or rrore of the rights or rerredies provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by the City of any
or all other rights or rerredies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
5.
Appointment of Receiver. Upon the CCJITITEncerrent of any
suit or action by the City against Lessee pursuant to any rerredy avail-
able to the City upon Lessee's default hereunder or at any time there-
after and during the pendency of such suitor action, any court of
corrp:tent jurisdiction upon the application of the City may at once and
without notice to Lessee, its successors or assigns, or any person or
persons or tenant or tenants or rrortgagee or person claiming any securi-
ty interest through Lessee, appoint a receiver to collect the rents and
profits arising out of the Leased Land, the buildings and irnproverrents
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thereon and the subleases pertaining thereto and apply such rents and
profits to the payrrent and satisfaction of Lessee's obligations under
this Lease, including without limitation the payrrent of the rent due the
City hereunder, first deducting all proper charges and expenses attend-
ing the execution of such txusts, and to have any balance remaining held
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by such receiver for disposition in accordance with any juagerrent or
decree entered therein or as may be frcrn tirre to tirre directed by said
court.
.
ARI'ICLE)NIL GENERAL PROVISIONS.
1. Estoppel Certificates. Either party shall at any tirre and
fran tirre to tirre, upon not less than thirty days' prior written request
by the other party, execute, acknowledge, and deliver to such party, or
to its designee, a staterrent in writing certifying that this Lease is
unanended and in full force and effect (or, if there has been any
arrendrrent thereof, that the sane is in full force and effect as arrended
and stating the arrendrrent or arrendrrents), that there are no defaults
existing (or, if there is any clairred default, stating the nature and
extent thereof); and stating the dates to which the rent and other
charges have been paid in advance. It is - expressly understood and
agreed that any such staterrent delivered pursuant to this section nay be
relied upon by any prospective assignee or tenant of the Leasehold
Estate, or estates, or Lessee or any prospective purchaser of the estate
of the City, or any lender or prospective assignee of any lender on the
security of the Leased Land or the fee estate, or any part thereof, and
any third person.
2. Condi lions and Covenants. All the provisions of this
Lease shall be deerred as running with the Land, and shall be construed
to be "conditions" as well as "covenants", as though the words specif-
icall y expressing or imparting covenants and conditions were used in
each separate provision.
3. No Waiver of Breach. No failure by either the City or
Lessee to insist upon the strict perfornance by the other of any
.
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covenant, agreerrent, tenn or condition of this Lease or to exercise any
right or rerredy consequent upon a breach thereof, shall constitute a
waiver of any such breach or of such covenant~ agreerrent, tenn or
condition. No' waiver of any breach shall affect or alter this Lease,
but each and every covenant, condition, agreerrent and term of this Lease
shall continue in full force and effect with respect to any other then
existing or subsequent breach.
4. Tlire of Essence. Tirre ~s of the essence of this Lease
and of each provision.
5. Conpltation of Tirre. The tirre in which any act provided
by this Lease is to be done is conputed by excluding the first day and
including the last, unless the last day is. a Saturday, Sunday or a
holiday, and then it is also excluded. The tenn "holiday" shall rrean
all holidays as defined by the statutes of Alaska.
6. Successors in Interest. Each and all of the covenants,
conditions and restrictions in this Lease shall inure to the benefit of
and shall be binding upon the successors in interest of City and the
authorized assignees, transferees, tenants, licensees and other succes-
sors-in-interest of Lessee.
7. Entire Agreerrent. This Lease contains the entire agree-
rrent of the parties with respect to the matters covered by this Lease,
and no other agreerrent, staterrent or pranise rrade by any party, or to
any employee, officer of agent of any party, which is not contained in
this Lease shall be binding or valid.
8. Governing Law. This Lease shall be governed by, con-
strued and enforced in accordance with the laws of the State of Alaska.
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9. Partial Invalidity. If any tenn, covenant, condition or
provision of this Lease is held by a court of corrp=tent jurisdiction to
be invalid, void or unenforceable, the remainder of the provisions shall
remaih in full force and effect and shall in no way be affected, im-
paired or invalidated.
10. Relationship of Parties. N::Jthing contained in this Lease
shall be deerred or construed by the parties or by any third person to
create the relationship of principal and agent or of partnership or of
joint venture or of any association between the City and Lessee; and
neither the rrethod of computation of rent nor any other provisions
contained in this Lease nor any acts of the parties, shall be deerred to
create any relationship between the City and Lessee other than the
relationship of lessor and lessee.
11. Interpretation. The language in all parts of this Lease
shall in all cases be sirnpl y construed according to its fair rreaning and
not strictly for or against the City or Lessee. Unless otherwise
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provided in this Lease, or unless the context otherwise requires, the
following rules of construction shall apply to this Lease:
(a) Number and Gender. In this Lease, the neuter gender
includes the masculine and the feminine, and the singular number
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includes the plural; the word "person" includes corporation,
partnership, finn or association wherever the context so requires.
(b) Mandatory and Permissive.
"Shall" , "will" and
"agrees" are mandatory; "may" is permissive.
(c) Captions. Captions of the Articles, Sections and
subsections of this Lease are for convenience and reference only,
and the words contained therein shall in no way be held to explain,
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rrodify, amplify or aid III the interpretation, construction or
rreaning of the provisions of this Lease.
12. Arrendrrent. This Lease is not subject to aIrendrrent except
in writing executed by all parties hereto.
l3(a) .
Delivery of Notices and Rent--Method and Tirre. All
notices, demands or requests from one party to another shall be de-
livered in person or be sent by nail, certified or registered, p::lstage
prepaid, to the addresses stated in this Section, and shall be deerred to
have been given at the tirre of delivery or naking.
l3(b) .
Payrrent of Rent. All rents and other sums payable
by Lessee to the City shall be by check, payable to the City, delivered
in person or mailed to the City at the following address:
City Clerk
City of Seward
PO Box 167
Seward, AK 99664
and shall be deerred to have been paid when received at such address.
l3(c) .
Notices to the Ci ty . All notices, demands and
requests from Lessee to the City shall be given to the City at:
City Clerk
City of Seward
PO Box 167
Sew'ard, AK 99664
and to such other persons at such additional addresses as the City may
specify, but not exceeding four in the aggregate.
13(d).
Notices to Lessee. All notices, demands or requests
from the City to Lessee shall be given to Lessee at:
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13 (e) . Change of Address. Each party shall have the right,
frcrn tirre to time, to designate a different address by notice given in
conformity with this Section.
14. Broker's Cornnission. Each of the parties represents and
warrants that there are no claims for brokers' carnnissions or finders'
fees in connection with the execution of this Lease.
15. Attorneys' Fees. If either party hereto institutes any
suit, action or arbitration proceeding to collect the rent reserved or
to enforce any covenant or agreerrent hereof or to obtain any of the
rerredies herein provided, the prevailing party shall be entitled to such
sum of rroney as the court or the arbitration board may adjudge reason-
able as costs and attorneys' fees in such suit, action or arbitration
proceeding, including any appeal taken by either party in such suit,
action or arbitration proceeding.
16. Records. Lessee shall at all tirres keep or cause to be
kept proper books of record and account in which full, true and correct
entries will be nade of all dealings or transactions of or in relation
to the Leased Land.
17. Mincxals. Nothing in this Lease shall authorize Lessee
to exercise any rights in regard to oil, oil rights, minerals, mineral
rights, natural gas, natural gas rights, and/or other hydrocarbons by
whatsoever narre that may be within or under the Leased Land. The City
reserves the right to whipstock or directionally drill and mine from
land other than the Leased Land oil or gas wells, tunnels and shafts
into, through or across the subsurface of the Leased Land, and to bottom
such whipstocked or directionally drilled wells, tunnels and shafts
under and beneath or beyond the exterior limits thereof, and to redrill,
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retunnel, equip, maintain, repair, deepen and operate any such \vells or
mines, without, however, the right to disturb the use of the surface or
to drill or mine through the upper 500 feet of the subsurface of the
Leased Land.
18. Good Faith. The tenns of this Lease impose an obligation
of good faith on the City and Lessee in the perfornance and enforcerrent
thereof.
19. Election to Terminate by City.
Lessee, as partial
consideration for this Lease, expressly undertakes (1) to build a conces-
sion shop not to exceed. 16 feet by 14 feet; (2) to cover the remainder
of the lease site with a boardwalk connecting with adjacent sites and
the City boardwalk; (3) to allow no outside storage on site;
(4) to
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allow no overnight occupancy;
(5) to operate said facility for a
minirnurn of a 90-day period annually. If Lessee fails to meet any of
these requirerrents in a tirrel y nanner, the City may, . by giving written
notice to Lessee, elect to terminate this Lease. All further rights,
duties and obligations hereunder shall cease upon receipt by Lessee of
such notice.
20. Election to Terminate by Lessee. If an earthquake occurs
during the tenn hereof, making the construction, financing, maintenance
or operation of an improverrent(s), building(s) or other structure(s) on
the Leased Land impractical or impermissible, then in such event,
provided the Lessee be in good standing hereunder, the Lessee nay, in
its uncontrolled discretion, elect to terminate this Lease upon:
(a) Giving written notice to the City; and
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(b) Making payrrent to the City of a sum equal to fifty
percent (50%) of the rents payable to the City for the twelve
calendar ll"Onths irrrred,iately preceding the notice under (a); and
(c) Satisfying or otherwise releasing the City's fee
from any encumbrancers) created as the result of Lessee's actions.
All further rights, duties and obligations hereunder shall cease upon
receipt by the City of such notice of election to terminate and the
fulfilling of conditions (b) and (c).
21. Other Conditions. The City reserves the right to relo-
cate the building at City expense should such a ITOVe be necessary to
accorrplish the overall Hcubor Boardwalk Project.
ARrICLE )NIII. RECORDING, EXECUTION, caJNTERPARI'S.
1.
Recording.
The parties nay , concurrently with the
execution of this Lease, execute, acknowledge and record a rrerrorandum of
lease. Following recording, the rrerrorandum lease shall be attached to
this Lease.
2. Counterparts.' This Lease has been executed by the
parties in two counterparts, each of which shall be deerred to be an
ori'Jinal.
3. Execution. This Lease has been executed by the parties
on the day and year first above written.
LESSOR:
LESSEE:
THE CITY OF SEWARD, AIASKA
By:
Ponald A. Garzini, City Manager
By:
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APPROVED AS TO FORM:
HUGHES, THORSNESS, GANI'Z, PCWELL
& BRUNDIN, Attorneys for the
City of Seward, Alaska
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Fred B. Arvidson, City Attorney
Linda S. Murphy , City Clerk
(City Seal)
STATE OF ALASKA
ss.
THIRD JUDICIAL DISTRIcr
TlUS IS TO CERrIFY that on this day of ,
19 , before me, the undersigned, a Notary Public in and for the State
of Alaska , duly oorrmissioned and sworn as such, personally appeared
, City Manager of the City of Seward,
kno.-m to rne and to rne kno.-m to be the person who executed the foregoing
instrurrent on behalf of the City of Seward, and who acknowledged that he
signed the SaIre freely and voluntarily for the uses and purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on
the day and year first hereinabove written.
NOrARY PUBLIC in and for Alaska
My Corrmission Expires:
STATE OF AIASKA
ss.
TlURD JUDICIAL DISTRIcr
THIS IS TO GERl'IFY that on this day of ,
19 , before rne, the undersigned, a Notary Public in and for the State
of Alaska, duly oorrmissioned and sworn as such, personally appeared
, kno.-m to rne and to rne known to be the
person who executed the foregoing instrurrent, and who acknowledged that
he signed the sane freely and voluntarily for the uses and purposes
therein contained.
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IN WITNESS WHEREOF, I have hereunto set my hand and seal on
the day and year first hereinabove written.
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NOI'ARY PUBLIC in and for Alaska
My Conmission Expires:
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ROARDW A\.K \.EASE SITES
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