HomeMy WebLinkAboutRes1986-103
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Sponsored by: Garzini
CITY OF SEWARD, ALASKA
RESOLUTION NO. 86-103
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, AUTHORIZING THE ISSUANCE OF A
LONG-TERM LEASE TO BRAD SNOWDEN FOR LOT 5, BLOCK 1,
MARINA SUBDIVISION
WHEREAS, the City of Seward has requested proposals for
the lease and development of Lot 5, Block 1, Marina Subdivi-
sion; and
WHEREAS, the City Council has accepted the proposal
submitted by Brad Snowden as being compatible with the needs
of the community and in conformance with the Land Use Plan
and the Seward Urban District Zoning Code; and
WHEREAS, a public hearing has been held in accordance
with the Seward City Code; and
WHEREAS, the City Council finds it in the public
interest to proceed with the lease of said city property to
Brad Snowden for the development of an eight unit shopping
mall;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA, that:
Section 1. The City Manager
execute the attached long-term
incorporated by reference, with
Block 1, Marina Subdivision.
is hereby authorized to
lease, which is herein
Brad Snowden for Lot 5,
Section 2. This resolution shall take effect 30 days
following its adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, this 8th day of December , 19 86 .
THE CITY OF SEWARD, ALASKA
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 86-103
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
DUNHAM, GIESELER, HILTON, MEEHAN & NOLL
NONE
BOOHER & SIMUTIS
NONE
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN, Attorneys
for the City of Seward, AK
(City Seal)
7~ (//~
Fred B. Arvidson
City Attorney
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LEASE AGREEMENT
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This Lease Agreement made and entered into this da: of
'2.1/\1' I". t.,. '\ , 19F;;, between the CITY OF SEWARD, a I )me
rule municipal corporation located in the Kenai Peninsula Borough, StatE of
Alaska, LE SSOR, hereinafter referred to as "City", and BRAD SNowr :N,
hereinafter referred to as "Lessee."
WIT N E SSE T H:
WHEREAS, City and Lessee are mutually interested i 1 the deve Jp-
ment of marine related facilities in the Marina Subdivision )f the eit: of
Seward, Alaska; and
WHEREAS, Lessee has demonstrated to City an intenti)n to cont lue
the development of marine related businesses to serve the pee ~le of Sew, 'd;
and
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WHEREAS, City has determined that Lessee's intenticls and genl 'al
development plans coincide with the public interest of the city and \ ill
provide increased tax revenues and rental income to City;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE REtTS, COVENAt rs,
AND CONDITIONS HEREIN CONTAINED, CITY AND LESSEE AGREE AS FOLLOWS:
ARTICLE I. DEMISE. City leases to Lessee, and Lessee lei 3es
from City that certain real property herein called "Leased Land," situ. ':ed
in Seward, Al aska, consisting of approximately 8,500 square =eet, as sl )wn
on Exhibit "A" attached hereto and as more particul arly described as
follows:
Lot 5, Block 1, Marina Subdivision, within
the City of Seward, Alaska (more precisely
shown on Exhibit "A" attached hereto)
ARTICLE II. CITY'S WARRANTY OF QUIET ENJOYMENT. Lessee, I Jon
paying the rent and other charges herein provided for and observing lnd
keeping the covenants, conditions and terms of this Lease or Lessee's r art
to be kept or performed, shall peacefully and quietly enjoy possess1or of
the Leased Land during the term of this Lease without hindrarce by, fror or
through City, subject, however, to any encumbrances created or caused by
Lessee.
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CITY OF SEWARD, ALASKA
LEASE AGREEMEN~BRAD SNOWDEN
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ARTICLE III. LEASED LAND ACCEPTED "AS IS". Lessee acknowledges
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 expressly herein
provided. Lessee, at his sole cost and expense, shall have the right to
raze, tear down or remove any buildings, structures or improvements
presently situated on the Leased Land. All funds and proceeds, if any,
II obtained by Lessee from the disposition of such buildings, structures or
improvements, may be retained by Lessee. Lessee is aware of the easements
II as shown on the attached Exhibit "A" and agrees to lease the property
I subject thereto.
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ARTICLE IV.
USE OF LEASED LAND.
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1. Lessee may use the Leased Land for the construction and
ope rat ion of a marine rel ated bus 1 ness. Lessee understands that
construction and operation of such a facility is a major consideration 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 City,
and City may withhold its consent if Lessee has not constructed and
commenced operation of a marine related business by June 1, 1987. Moreover,
City may withhold its consent as to any proposed business or activity which,
in City's sole discretion, is not desirable or compatible with the city's
Small Boat Harbor area.
ARTICLE V.
LEASE TERM.
1. Commencement and Expiration.
thirty (30) years, commencing the 1'-"~- day
i h '~q
and end ng t e L,. day of -) .i\A, .' U'" I~
t10n of plans, approved by City, has commenced
The term of this Lease shall be
of - -.J i~ ~ \ i,~ i\ , 1987,
, 2017, p'rov1ded construc-
prior to June 1, 1987.
2. Options and Extensions. There are no renewal options
extending to Lessee under this Lease, but by inaction of the parties, the
Lease shall be deemed to continue from month to month. This Lease will not
terminate until notice in writing is given by either party to the other, not
later than six (6) months prior to the expiration of the Lease Term.
3. Surrender of Possession.
(a) Subject to the provisions of Article XI below with
respect to restoration of buildings and improvements, upon expiration of the
Lease Term, whether by lapse of time or otherwise, Lessee shall promptly and
peacefully surrender the Leased Land.
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CITY OF SEWARD,~ASKA
L~ASE AGREEMEN~BRAD SNOWDEN
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(b) Upon the exp 1 rat i on of the Leas,
t3rm1nation of this Lease, Lessee agrees to execute, at
t) City a proper instrument in writing, releasing and
i 11 right, title and interest of Lessee in and to th
i~provements thereto not removed by Lessee as provided
term or any sooner
nowledge and deliver
uit-cla1ming to City
Leased Land and all
lere i n.
ARTICLE VI. RENT. The rental for the eased Land shall be
catermined and paid as follows:
1. Any and all rental due under this Le
i jvance upon commencement of this Lease in quarterl
t 3fore commencement of this Lease and on or before Jal
1 and October 1 of each succeeding year.
2. The rental shall be determined as follow,
Beginning January 1, 1987, and for the SUCCE
the rental rate will be THIRTY-FOUR ($.34) CENTS per ~
~3t less than ninety (90) days prior to the exp1rat1or
)aar City, at its own expense, shall employ an 1nde
cppra1ser to determine the fair market rental value
€:<clus1ve of Lessee's improvements, at the highest
Laased Land and without consideration of Lessee's 1ntE
Lnless that use is coincidentally the highest and best
Within forty-five (45) days after receipt c
( ity shall provide Lessee a copy of the appraiser
raport. If Lessee does not object in writing to that
(10) days, the stated rental rate determined by such
tor the next succeeding five lease years. The rent,
i jjusted every five lease years, commencing with the
:anuary, 1990, and every fifth year thereafter.
If Lessee gives City written notice of objec
rantal rate within ten (10) days of receipt of the
lassee shall then engage a second independent MAI ce
~ is sole expense, to make an appraisal of the fair rr
the Leased Land at its highest and best use, e
;.nprovements. Lessee shall furnish City a copy of
report within ten (10) days of its receipt by Lessee.
If the second appraisal reflects a fair mar~
varies from the first appraisal by no more than twent
the new rental rate shall be the average of the first
conclusions. If the second appraisal reflects a fa
varies from the first appraisal by more than twenty
L'nless City and Lessee agree on a rate among themselve,
~hall be determined in accordance with the arb1trat1or
in Article XV.
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ie shall be paid in
installments on or
ary 1, April 1, July
ding five (5) years,
iuare foot per year.
of every fifth lease
andent MAI certified
of the Leased Land,
,nd best use of the
ded use of the land,
ise of the Land.
any such appraisal,
s written appraisal
appraisal within ten
.ppraisal shall apply
rate shall thus be
lease year beginning
ion to the appraised
ppra1sal conclusion,
tified appraiser, at
rket rental value of
;lusive of Lessee's
the second appraisal
t rental value which
(20%) percent, then
and second appraisal
r market val ue which
(20%) percent, then,
. the new rental rate
provisions contained
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CITY OF SEWARD,~ASKA
LEASE AGREEME~BRAD SNOWDEN
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Lessee's objection to the rental rate and engal
appraiser shall not postpone Lessee's obligation to pay tt
described in City's notice of rental rate based on the
Lessee shall pay City the amount of rental rate as f
appraisal until the question of rental adjustment is fir
which time an appropriate adjustment will be made, if neec
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3. Additional Rent and City's RiQht to Cure L
All costs and expenses which Lessee assumes or agrees t
this Lease or to any mortgage or other encumbrance upon
Lessee's leasehold interest shall, at City's electiol
additional rent and, in the event of non-payment, City she
and remedies herein provided for in the case of non-payme
breach of condition. If Lessee shall default in making ar
to be made by Lessee, or shall default in performing any
condition of this Lease or of any such mortgage or other
part of Lessee to be performed which shall involve the e~
by Lessee, City, at City's option, may, but shall not be
such payment or, on behalf of Lessee, expend such sum as rr
perform and fulfill such term, covenant or condition, an
so expended by City with interest thereon at the maximum r
of the State of Alaska from the date of such expenditure L
be (and shall be deemed to be) additional rent and shall c
to City, on demand, but no such payment or expenditure
deemed a waiver of Lessee's default, nor shall it affect e
City by reason of such default.
4. Late Payment Penalty. Rental payment due, bu
the due date shall accrue interest at the rate of twelve
annum until paid or the maximum permitted rate under Ala
is higher.
ARTICLE VII. TAXES AND ASSESSMENTS.
1. Lessee to Pay Taxes. Lessee agrees t
delinquency and directly to the taxing authorities in whi
is located all real property taxes (plus all personal
personal property situate on the Leased Land and placed tt
under Lessee's authority), sales taxes, or other business
levied or assessed upon or against the Leased Land or
thereon or Lessee's business during the Lease Term.
indemnify and hold City harmless from liability for any
or assessment of any kind or nature. Lessee shall, with
after any such tax assessment or other charge constitut
Leased Land becomes due and payable, produce and exhibit
tory evidence of payment.
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Jment 0
annual
'i rst a
(ed by
ill Y re
d.
3see's
pay p
he Leas
be i
1 have
t of re
paymer
term, c
ncumbrc
end1tur
bligatE
y be ne
any an
te unde
t 11 re r
repaic
by C1t:
yother
a Sf on
rent. a
)rai~ 1.
:he rs
) 1 vec a
3faul s.
"suar
j Lar
eate
11 r
t or
reql re
venar 0
th
t
o
a
)ht
f
ce 01
of 1
to,
assaI
all
the
fd, ~
by L(
sha1
Ine
lak
t
:urn
aw
lal
,se
b
reme( , 0
not re eive( b
(12%) P rceni pe
ka law, whicl !Ve
pay
h the l
ropert~
reon by
ruse t
any in
Lessee
ther ta
n sixty
ng a l'
to City
)r1or t
ased . an
taxe 0
Lessf J 0
xes
rove! mt
gree t
, Chi 'ge
(60) Jay
'" or th
sati~ 'ac
CITY OF SEWARD,~ASKA
LEASE AGREEMEN~BRAD SNOWDEN
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2. Lessee to Pay Assessments. Lessee, during the Leas
agrees to pay directly to the publ ic authorities charged with co
thereof any and all assessments levied on the Leas}d Land for a par
all of the cost of any public work or improvemer t assessed accor
benefit found by the levying authority to accrue therefrom to theo
Land, including any charges for anti-pollution, env:ronmental, ecolo!
any other public purposes. If an option is given to pay such asses~
in installments, Lessee may elect to pay the same in installments,
such case Lessee shall be liable only for such installments as shal
during the Lease Term.
3. Pro-ration of Taxes and Assessments.f Lessee's obl1g,
pay taxes or assessments commences or ends du 'ing a tax yea
obligation shall be appropriately pro-rated, with C ty bearing the r'
cost (or its pro-rata share) thereof.
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4. Contest. Lessee shall have the right to contest or re'
tax, assessment, levy, fee, water or sewer charge~. or rents, or ar
governmental charges which Lessee is obligated tc pay. Such pro!
shall, if instituted, be conducted promptly at Less<e's own expense,
from all expense to City. Before instituting any such proceedings:
shall pay under protest such tax, assessment, le IY, fee, water c
rents or charges or any other governmental charges, or shall furnish
a surety company bond in a company acceptable to City, or other
reasonably satisfactory to City, sufficient to cover the amount
contested item or items, with interest for the peri cd which such pro<
may be reasonably expected to take, and costs securing the payment
contested item or items and all interest and costs in connection t.
when finally determined. Notwithstanding the furnishing of any such
security, Lessee shall pay all such items at least twenty (20) day~
the time when the Leased Land or any part thereof ~ight be forfe1tf
legal proceedings herein referred to shall includ3 appropriate ce
proceedings and appeals from any orders and judgements therein, but
proceedings shall be begun as soon as reasonooly possible af
imposition or assessment of any contested items a~d shall be prose!
final adjudication with reasonable dispatch. In th(, event of any re
cancellation or discharge, Lessee shall pay the amo"nt that shall be
levied or assessed against the Leased Land or acjudicated to be
payable and, if there shall be any refund payaole by the gove
authority with respect thereto, Lessee shall be entitled to receo
retain the same, subject, however, to apportionment as provided in P
3 above during the first and last years of the Lea::e Term. City, a
option, may, but shall not be obligated to, con';est or review t
proceedings, or in such other manner as may be 1 ega 1, and at C1i
expense any tax, assessment, levy, fee, water or sewer rents or cha
any other governmental charge aforementioned, whiCh shall not be c,
or reviewed as aforesaid, and, unless Lessee shall promptly join
contest or review and pay all costs therein, City shall be enti
receive and retain any refund payable by the governmental author~
respect thereof.
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Term,
ection
of or
i ng to
Leased
:cal or
1ent(s)
and in
accrue
:ion to
such
la1n1ng
'ew any
other
,ed i ngs
ld free
Lessee
sewe r
:0 City
lCU rity
of the
3ed i ngs
Jf such
3rew 1th
Jond or
before
The
:1orari
11 such
3r the
Jted to
lct1on,
finally
ue and
lmenta 1
ve and
"agraph
City's
1 ega 1
"s own
Jes, or
ltested
n such
1 ed to
.y with
CITY OF SEWARD,~ASKA
LEASE AGREEME~BRAD SNOWDEN
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5. Lessee to Pay Utllity CharQes. Lessee shall pay c cause to
be paid all charges for water, heat, gas, electricity, sewers, end any and
all other utilities used upon the Leased Land throughout the L 3ase Term,
including any connection fees.
ARTICLE VIII. CONSTRUCTION BY LESSEE.
1. Lessee's Right to Build--General Conditions. Le~see shall
have the right at any time and from time to time during the Leese Term to
erect, maintain, alter, remodel, reconstruct, rebuild ani replace
bullding(s) and other improvement(s) on the Leased Land, subj'ct to the
following conditions:
(a) The cost of any construction, recor struction,
demolition. or of any change, alteration or improvements, shall b,. borne and
paid for by Lessee.
(b) The Leased Land shall, at all times, be kec,t free of
materialmen's and any other liens, as here1ne.fter more
provided.
mechanic's,
specifically
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(c) Any building contractors employed by Less,3e or its
sub-lessees shall be appropriately bonded for one hundred (100%) percent of
the contract amount(s) by use of performance and labor and mater;al payment
bonds in the customary form when cost of the work is over $l'J,OOO.OO.
Copies of all such bonds shall be furnished to City prior to comm(,ncement of
construction.
(d) Lessee, upon commencement of permissible bullding or
construction activities on the Leased Land, shall continue such activities
through to completion with diligence and continuity.
2. Lessee's Ownership of Trade Fixtures, Machinery and [qu1pment.
It is expressly understood and agreed that any and all trade fixtures,
machinery and equipment of whatsoever nature at any time construc"':.ed, 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 may appear and may
be removed or replaced at any time during the lease term, providec Lessee or
its tenants repair any and all damage to the Leased Land resultin0 from such
removal or replacement.
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3. Lessee's RiQht to Remove Improvements and Ownershir: Thereof.
Lessee shall have the right to remove any bu1dlings or 1n',provements
constructed or placed upon the Leased Land by Lessee, prior to the
expiration of the Lease. Any buildings or improvements not removed prior to
expiration of the Lease shall become the property of City without the
payment of any compensation to jLessee.
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CITY OF SEWARD,~ASKA
LEASE AGREEMENT"'SRAD SNOWDEN
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ARTICLE IX.
LIENS.
1. Prohibition of Liens on Fee or Leaseh( ld Intere!. Lessee
shall not suffer or permit any 1 iens to be filed ag:1nst the "ee of the
Leased Land, nor against Lessee's leasehold interest in the Lease, Land, nor
against any buildings or improvements on the Leased Land by recson of any
work, labor, services or materials supplied or claimed to have be, n supplied
to Lessee or anyone holding the Leased Land or any part thereof through or
under Lessee.
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Z. Removal of Liens by Lessee. If any 1 i3n shall t 3 recorded
against the Leased Land, or any improvements thereof, Lassee shal cause the
same to be removed, or, in the alternative, if Lessee in good fa th desires
to contest the same, Lessee shall be privileged to do so, but i such case
Lessee hereby agrees to provide a surety bond, from a 5urety 1ic 'nsed to do
business in Al aska, in a penal sum equal to one a~ j one-hal f times the
amount of the claim of lien, which bond shall guarant~e the pay ent of the
sum which the lien claimant has claimed, together w1tl the lien claimant's
reasonable cost of suit in the action. Lessee further agrees to indemnify,
defend, and save City harmless from all liability ft r damages occasioned
thereby and shall, in the event of a judgement of i oreclosurE upon said
lien, cause the same to be discharged and removed prier to the e :ecution of
such judgement.
3. Notice of Non-responsibility. City may, as contf 1lplated by
Alaska Statutes 34.35.065 (as now enacted or hereinafter amfnded) give
notice of. non-responsibility for any improvements ccnstructed )r made by
Lessee on the Leased Land.
ARTICLE X. . INDEMNITY. Except for claim" arising' ut of acts
caused by the negligence of City or its representati les, Lesse. agrees to
protect, indemnify, defend and save harmless City fro,! and agai:st any and
all liability arising from acts or omissions of any nature whtsoever of
Lessee's officers, servants, employees, contractors, tenants, agents or
1nvitees causing injury to or death of persons, or loss of 0' damage to
property during the Lease Term, and from any expense 'ncident te defense of
and by City therefrom. If any action or proceeding is brought aflinst City
by reason of any such occurrences, City shall notify Lessee in writing of
such action or proceeding, whereupon Lessee, at LesseE's expense. may elect
to resist or defend such action or proceeding by couns(l approvec in writing
by City, such approval not to be withheld unreasonably.
ARTICLE IX.
INSURANCE AND RESTORATION.
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1. Liability Insurance. Lessee, during t~e Lease ~erm, shall
provide a certificate of insurance showing City as co-insured i1 an amount
of not less than $300,000 comprehensive general liability c..verage for
premises operations, broad form property damage and personal i:,jury. The
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CITY OF SEWARD, ALASKA
LEASE.AGREEMENT-"BRAD SNOWDEN
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minimum requirements in this section may be increased from time to time by
City in accordance with customs and usage for comparable property in the
Seward metropolitan area.
2. Fire and Extended CoveraQe Insurance. Lessee, during the Lease
Term, shall keep all buildings and improvements insured, at his expense,
against loss or damage by fire and such other risks as may be included in
the customary form of broad form 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 mortgagees) encumbering the buildings or improvements or
City's fees.
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3. 81 anket Insu rance. Lessee may prov ide any 1 nsu rance requ ired
by this Lease in the form of a blanket policy, provided Lessee furnishes
evidence satisfactory to City, indicating the coverage thereunder is at
least equal to the coverage obtainable under a separate policy covering the
Leased Land only.
4. Additional Named Insured: RiQhts of MortgaQees (Lenders):
Waiver of Subrogation. All insurance policies required to be maintained by
Lessee shall name Lessee and City as the insureds, as their respective
interests may appear. All policies shall contain an agreement by the
insurers that such policies shall not be cancelled without at least thirty
days' prior written notice to City, and certificates or copies of all such
insurance policies shall be furnished to City promptly after the issuance
thereof.
5. Restoration of Buildings and Improvements. In the event of
damage to or destruction of any of the buildings or improvements situated on
the Leased Land, then from the insurance proceeds payable to Lessee, Lessee
shall, within ninety (90) days after payment of the insurance proceeds,
commence restoration of the buildings and improvements 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 damaged property, and shall be made
available to Lessee' for its use in restoration or repair, as the case may
be, of any damage or destruction to the buildings and improvements on the
Leased Land. The proceeds of insurance shall be paid out by such trustee or
mortgagee from time to time on certification, by the person having
supervision of the work, that the amount certified is being applied to the
payment of the reasonable cost of such work.
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CITY OF SEWARD,~ASKA
LEASE AGREEME~BRAD SNOWDEN
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ARTICLE XII. CARE OF LEASED LAND, ACCESS OF CITY.
1. Care of Leased Land. Lessee, at his own cost and expensf,
shall keep the entire Leased Land and all bulld1ngs and improvements whic 1
at any time may be situated thereon in good, clean and tidy condition ar j
repair during the Lease Term.
2. Other Access RiQhts of City. City and its agents or represer-
tatives shall have the right to enter into and upon the Leased Land durir J
reasonable hours for the purpose of inspecting the Leased Land and all
buildings and improvements thereon.
3. Avoidance of Prescriptive Rights. Lessee shall take sue 1
action as may be necessary to preserve City's title and ownership of ti 3
Leased Land free and clear of any public or private rights-of-way, easemen- ;
or other interests acquired by prescriptive use or otherwise than ,;
permitted under this Lease, including, but not limited to, the posting ( =
thoroughfares, walkways and parking areas so as to preserve the right ( =
private ownership therein and prevent any adverse rights thereto accruir J
through prescriptive use or otherwise than as permitted hereunder.
ARTICLE XIII. COMPLIANCE WITH LAWS.
1. Compliance with Laws. Lessee shall comply with all appl1cab- 3
laws, ordinances and regulations of duly constituted public authorities nc ;
or hereafter in any manner affecting the Leased Land or any buiding~,
structures or improvements situated thereon, whether or not any such law~,
ordinances or regulations which may be hereafter enacted involve a change c f
policy on the part of the governmental body enacting the same. LessE 3
further agrees it will not permit any unlawful occupation, business or trac 3
to be conducted on said premises or any use to be made thereof contrary " )
any law, ordinance or regulation as aforesaid with respect thereto.
2. Contest. Lessee may, by appropriate proceedings conducted ,t
Lessee's own expense, contest in good faith the validity or enforcement c F
any law, ordinance or regulation, provided Lessee dlligently pursues suc 1
contest to a final determination by a court, department or government, 1
authority or body having jurisdiction thereof; provided that, if City m, '/
become liable in any manner for damages, penalties, fines or costs by reasc 1
of Lessee's failure to comply with any such law, ordinance or regulat1c 1
during Lessee's contest thereof, then, as a condition precedent to tl3
commencement and continuation of such proceedings, Lessee shall furnish Ci"!
such bond with corporate surety as City shall reasonably request to sa\ '3
harmless and indemnify City against liability for any such damage~,
penalties, fines or costs. At the option of City, it may, at its expensE,
contest the validity or enforcement of any such law, ordinance (r
regulation.
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CITY OF SEWARD,~ASKA
LEASE AGREEMENT~BRAD SNOWDEN
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ARTICLE XIV.
EMINENT DOMAIN.
In the event the extent of the taking makes impracticable the
continued operation of the
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 condemning authority.
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2. Partial Tak1ng--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 City for the purpose of operation thereon of Lessee's 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
condemning authority and the condemning authority enters into possession,
but shall continue in full fon:e and effect as to the portion of the Leased
Land not so taken or transferred.
ARTICLE XV. 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
judgement upon the award may be entered in any court having jurisdiction
thereof. Any arbitration proceedings hereunder shall be held before a panel
of three arbitrators in the City of Seward, Alaska, or with the consent of
both parties in Anchorage, Alaska.
ARTICLE XVI. DEFAULT AND REMEDIES.
1. Default and Termination.
(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 within thirty (30)
days after written notice of default; or
.
(c)
for reorganization
court of competent
If Lessee files a voluntary
under the bankruptcy laws, or
jurisdiction; or
petition in bankruptcy, or
is adjudged a bankrupt by a
-10-
CITY OF SEWARD,~ASKA
LEASE AGREEMEN~BRAD SNOWDEN
.
.
(d) If Lessee makes an ass 1 gnment for the benef it of its
creditors; or
(e) If a receiver is appointed b~' a court of competent
jurisdiction for Lessee'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 upon the termina-
tion of said Lease by its terms, Lessee shall at once surrender possession
of the Leased Land to City and remove all Lessee' 5 effects therefrom, and
may remove all Lessee's buildings and other improvements, and Lessee shall
have no further rights hereunder or with respect to the Leased Land. If
such possession be not 1mmed1 atley surrendered, City may forthwith enter
into and upon and repossess the Leased Land and expel Lessee, or those
claiming under Lessee, without being deemed guilty in any manner of trespass
and without prejudice to any remedies which might otherwise be used for
arrears of rent or preceding breach of covenant, c.nd 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
payment of rent, or for possession, and for any and every other notice or
demand prescribed by any 1 aw, and hereby wa 1ves any cl aim for damages by
reason of such repossession.
2. RelettinQ. At any time, or from time to time, after any such
expiration or termination, City may relet the Leased Land, or any part
thereof, and any unleased buildings and improvements. for such term or terms
(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 may include concessions or free rents) as City may, in its
discretion, determine and may collect and receive the rents therefor. City
shall in no way be responsible or liable for any failure to relet the Leased
Land, or any part thereof, or for any failure to collect any rent due upon
any such reletting.
3. DamaQes. No such expiration or termination of this Lease
shall relieve Lessee of his 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 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
City for, and shall pay to City, as and for liquidated and agreed curreent
damages for Lessee's default,
.
-11-
CITY OF SEWARD,~ASKA
LEASE AGREEMENT~BRAD SNOWDEN
.
.
(a) the equivalent of the amount of the ant and charges
which would be payable under this Lease by Lessee if this _ease were still
in effect, less
(b) the net proceeds received by City rom leasing or
reletting the Leased Land and improvements thereon after educting all of
City's expenses in connection with such leasing and rele" :ing, including,
without limitation, all repossession costs, brokerage cc ,missions, legal
expenses, reasonable attorney fees, alteration costs, nd expenses of
preparation for such reletting.
.
Lessee shall pay such current damages (herein called "def-
monthly, and City shall be entitled to recover from Les
deficiency as the same shall arise. At any time after any s
termination, whether or not City shall have collec~
deficiencies as aforesaid, City shall be entitled to recc
and Lessee shall pay to City, on demand, as and for liqu.
final damages for Lessee's default, an amount equal tl
between all rent reserved hereunder for the unexpired por1
Term and the then-fa1r-an~-reasonable net. rental value to C
Land for the same period. In the computation of SL
difference between an installment of rent becoming due her
date of termination and the fair and reasonable rental val
Leased Land for the period for which such installment was
discounted to the date of termination at the rate of six
annum. If the Leased Land, or any part thereof, be leased
for the unexpired portion of the Lease Term, or any part th
presentation of proof of such liquidated damages to any cou
tribunal, the amount of rent reserved upon such leasing 0
be prima facie evidence of the fair and reasonable rental v
or the whole of the premises so leased -or relet during
leasing or relett1ng. Nothing herein contained shall limit
right of City to prove and obtain as liquidated damages t
termination an amount equal to the maximum allowed by any 5
law in effect at the time when, and governing the proceedi
damages are to be proved, whether or not such amount be g
or less than the amount of the difference referred to above
1ency") to City
ae each monthly
;h expiration or
d any monthl y
er from Lessee,
ated and agreed
the difference
on of the Lease
ty of the Leased
h damages, the
,under after the
3 to City of the
)ayable shall be
6%) percent per
or relet by City
reof, before
t, commission or
reletting shall
lue for the part
::he term of the
or prejudice the
reason of such
atute or rule of
gs in which such
3ater, equal to,
4. Accumulation of Remedies. Each right and remedy of City
provided for in this Lease shall be cumulative and shall t 1 in addition to
every other right or remedy provided for in this Lease, or now or hereafter
existing at law, or in equity or by statute or otherwise, 1nd the exercise
or beginning of the exercise by City of anyone or more ,f the rights or
remedies provided for in this Lease, or now or hereafter e 1st1ng at law or
in equity or by statute or otherwise, shall not preclude th simultaneous or
1 ater exercise by City of any or all other rights or reme, ies provided for
in this Lease or now or hereafter existing at law or in equ ty or by statute
or otherwise.
.
-12-
CITY OF SEWARD,~ASKA
LEASE.AGREEMENT..,BRAD SNOWDEN
.
.
s. Appointment of Receiver. Upon the commencement of any suit or
action by City against Lessee, pursuant to any remedy available to City upon
Lessee's default hereunder, or at any time hereafter and during the pendency
of such suit or action, any court of competent jurisdiction, upon the
application of City, may at once and without notice to Lessee, its successors
or assigns, or any person or persons, or tenant or tenants, or mortageee or
person claiming any security interest through Lessee, appoint a receiver to
collect the rents and profits arising out of the Leased Land, the buildings
and improvements thereon and the subleases pertaining thereto and apply such
rents and profits to the payment and satisfaction of Lessee's obligations
under this Lease, including, without limitation, the payment of the rent due
City hereunder, first deducting all proper charges and expenses attending
the execution of such trusts, and to have any balance remaining held by such
receiver for disposition in accordance with any judgement or decree entered
therein, or as may be from time to time directed by said court.
ARTICLE XVII. GENERAL PROVISIONS.
.
1. Estoppel Certificates. Either party shall, at any time and
from time to time, upon not less than thirty (30) days' prior written
request by the other party, execute, acknowledge, and deliver to such party,
or to its designee, a statement in writing certifying that this Lease is
unamended and in full force and effect (or, if there has been any amendment
thereof, that the same is in full force and effect as amended and stating
the amendment or amendments), that there are no defaults existing (or, if
there is any claimed 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 statement
delivered pursuant to this section may be relied upon by any prospective
assigneee or tenant of the Leasehold Estate, or estates, or Lessee or any
prospective purchaser of the estate of City, or any lender or prospective
assigneee of any lender on the security of the Leased Land or the fee
estate, or any part thereof, and any third person.
2. Conditions and Covenants. All the provisions of this Lease
shall be deemed as running with the Land, and shall be construed to be
"conditions" as well as "covenants," as though the words specifically
expressing or imparting covenants and conditions were used in each separate
provision.
.
3. No Waiver of Breach. No failure by either City or Lessee to
insist upon the strict performance by the other of any covenant, agreement,
term or condition of this Lease or to exercise any right or remedy conse-
quent upon a breach thereof, shall constitute a waiver of any such breach or
of such covenant, agreement, term or condition. No waiver of any breach
shall affect or alter this Lease, but each and every covenant, condition,
agreement and term of this Lease shall continue in full force and effect
with respect to any other then-existing or subsequent breach.
-13-
CITY OF SEWARD,.ikASKA
LEASE AGREEMENT"'SRAD SNOWDEN
.
.
4. Time of Essence. Time is of the essence of this Lease and of
each provision.
s. Computation of Time. The time in which any act provided by
this Lease is to be done is computed 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 term "holiday" shall mean all holidays as
defined by the statutes of Alaska.
S. 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 successors-in-interest
of Lessee.
7. Entire AQreement. This Lease contains the entire agreement of
the parties with respect to the matters covered by this Lease, and no other
agreement, statement or promise made by any party, or to any employee,
officer, or agent of any party, which is not contained in this Lease shall be
binding or valid.
8. Govern1nQ Law. This Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Alaska.
.
9. Partial Invalidity. If any term, covenant, condition or
provision of this Lease is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
10. Relationship of Parties. Nothing contained in this Lease
shall be deemed 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 City and Lessee; and neither the
method of computation of rent nor any other provisions contained in this
Lease nor any acts of the parties, shall be deemed to create any relation-
ship between 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 simply construed according to its fair meaning, and not
strictly for or against City or Lessee. Unless otherwise 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 includes
the plural; the word "person" includes corporation, partnership, firm or
association wherever the context so requires.
-14-
CITY OF SF ARD, ~SKA
LEASE AGRE MENT~RAD SNOWDEN
.
.
(b) Mandatory and Permissive. "Shall," "will" and "agrees"
are mandat rYi "may" is permissive.
(c) Captions. Captions of the Articles, Sections and
subsection of this Lease are for convenience and reference only, and the
words cont 1ned therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of
this Lease
2. Amendment. This Lease is not subject to amendment, except in
writing ex cuted by all parties hereto.
notices, d
person or
addresses
the time 0
3(a). Delivery of Notices and Rent--Method and Time. All
mands or requests from one party to another shall be delivered in
e sent by mail, certified or registered, postage prepaid, to the
tated in this Section, and shall be deemed to have been given at
delivery or making.
Lessee to
mailed to
3 (b) . Payment of Rent. All rents and other sums payab 1 e by
:ity shall be by check, payable to City, delivered in person or
ity at the following address:
.
CITY CLERK
CITY OF SEWARD
P. O. Box 167
Seward, AK 99664
and shall
e deemed to have been paid when received at such address.
3(c). Notices to City. All notices, demands and requests from
Lessee to1ty shall be given to City at:
CITY CLERK
CITY OF SEWARD
P. O. Box 167
Seward, AK 99664
and to sue 1 other persons at such additional addresses as City may specify,
but not ex eed1ng four in the aggregate.
l3(d). Notices to Lessee. All notices, demands or requests from
City to LE see shall be given to Lessee at:
BRAD SNOWDEN
P. O. Box 670
Seward, AK 99664
.
-15-
CITY OF SEWARD,~ASKA
LEASE AGREEMENT"'BRAD SNOWDEN
.
.
13 (e) . ChanQe of Address. Each party shall have the right, from
time to time, to designate a different address by notice given in conformity
with this Section.
14. Broker's Commission. Each of the parties represents and
warrants that there are no claims for brokers' commissions 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 agreement hereof, or to obtain any of the remedies herein
provided, the prevailing party shall be entitled to such sum of money as the
court or the arbitration board may adjudge reasonable as costs and attorney
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 times, keep or cause to be
kept proper books of record and account in which full, true and correct
entries will be made of all dealings or transactions of, or in relation to,
the Leased Land.
.
17. Minerals. 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
name that may be within or under the Leased Land. City reserves the right
to whipstock, or d1rectionally 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
d1rectionally drilled wells, tunnels and shafts under and beneath or beyond
the exterior limits thereof, and to redr111, retunnel, equip, maintain,
repair, deepen and operate any such wells 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 terms of this Lease impose an obligation of
good faith on City and Lessee in the performance and enforcement thereof.
19. Election to Terminate by City. Lessee, as partial
consideration for this Lease, expressly undertakes to complete construction
of such a facility not later than June 1, 1987. If Lessee fails to timely
meet any of these requirements, 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 term hereof, making the construction, financing, maintenance or
operation of an improvement(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, Lessee may, in his uncontrolled
discretion, elect to terminate this Lease upon:
-16-
CITY OF SEWARD,~ASKA
LEASE AGREEMEN~BRAD SNOWDEN
.
.
(a) giving written notice to City; and
(b) making payment to City of a sum equal to fifty (50%)
percent of the rents payable to City for the twelve calendar months
immediately preceding the notice under (a); and
(c) satisfying or otherwise releasing City's fee from any
encumbrance(s) created as the result of Lessee's actions.
All further rights, duties and obliga1tons hereunder shall cease upon
receipt by City of such notice of election to terminate and the fulfilling
conditions (b) and (c).
ARTICLE SVIII. R~CORDING, EXECUTION, COUNTERPARTS.
1. RecordinQ. The parties may, concurrently with the execution
of this Lease, execute, acknowl edge and record a memorandum of lease.
Following recording, the memorandum 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 deemed to be an original.
.
3. Execution. This Lease has been executed by the parties on the
day and year first above written.
LESSOR:.
CITY OF SEWARD, ALASKA
LESSEE:
RONALD A. GARZINI, City Manager
BRAD SNOWDEN
ATTEST:
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ, POWELL
AND BRUNDIN, Attorneys for the
City of Seward, Alaska
Linda S. Murphy, City Clerk
(City Seal)
7~fI1~
Fred B. Arvidson, City Attorney
.
-17-
CITY OF SEWARD, ~SKA
LEASE AGREEMENT~RAD SNOWDEN
.
.
STATE OF ALASKA
ss
THIRD JUDICIAL DISTRICT
THIS IS TO CERTIFY that, on the day of
1985, before me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn as such, personally appeared
, known to me and to me known to be the City Manager
of the City of Seward, Alaska, and acknowledged to me that the foregoing
instrument was executed as a free and voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
Notarial Seal the day and year hereinabove written.
Notary Public for State of Alaska
My Commission expires:
STATE OF ALASKA )
) ss
THIRD JUDICIAL DISTRICT )
.
THIS IS TO CERTIFY that on this day of ,
1985, before me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn as such, personally appeared
, known to me and to me known to be the person who
executed the foregoing instrument, and who acknowledged that he signed the
same 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.
Notary Public in and for Alaska
My Commission Expires
.
-18-
.
.
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EXHIBIT "A II
LEASE OF LoT >, BLOCK " "'1" SUBDIVISION
SEWARD
.
SMALL BOAr HARBOR