HomeMy WebLinkAboutRes1987-039
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Sponsored by: Garzini
CITY OF SEWARD, ALASKA
RESOLUTION NO. 87-039
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, AUTHORIZING A LONG-TERM
LEASE OF BOARDWALK SITE #6 (BLOCK 6, OCEANVIEW
SUBDIVISION) TO THE RESURRECTION BAY LIONS' CLUB
WHEREAS, the Resurrection Bay Lions'
years operated the Herring Shack, a
business, for the purpose of raising
charitable uses; and
Club has for many
bait and tackle
funds for local
WHEREAS, from time to time, the club has operated from
two different buildings in two different locations with the
understanding that when the boardwalk development progressed
that the building would be moved to a permanent site on the
boardwalk; and
WHEREAS, the City has moved the Lions' Club building to
Boardwalk Site #6 in order to make room for public restroom
facilities on lands previously leased to the National Park
Service.
WHEREAS, provided the Lions' Club continues to own and
operate the building as a business with funds going to civic
charitable purposes, it is in the public interest to formal-
ize a lease at less than fair market value for Boardwalk
Site #6.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA, that:
Section 1. It is in the public interest to formalize a
negotiated, less than fair market lease with the Resur-
rection Bay Lions' Club for the operation of a bait and
tackle shop for the purpose of generating revenues for local
charitable and civic projects.
Section 2. The City Manager is authorized to execute
the attached lease, incorporated herewith by reference as a
part of this resolution, for Boardwalk Site # 6 (Block 6,
Oceanview Subdivision) to Resurrection Bay Lions' Club.
Section 3. This resolution takes effect thirty (30)
days after adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, this 8th day of June , 1987.
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 87-039
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
THE CITY OF SEWARD, ALASKA
BOOHER, DUNHAM, GIESELER, HILTON, MEEHAN, NOLL & SIMUTIS
NONE
NONE
NONE
(City Seal)
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN, Attorneys
for the City of Seward, AK
?~N~
Fred B. Arvidson
City Attorney
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LEASE AGREEMENT
This 1\greenent made and entered into this
day
of
, 1987, by and between the CITY OF SEWARD,
a hone rule rmmicipal corporation located in the Kenai Peninsula Bor-
ough, State of Alaska, hereinafter referred to as "City" and
RESURREX:TIeN BAY LIeNS' CLUB, hereinafter referred to as "Lessee".
WIT N E SSE T H:
WHEREAS, City and Lessee are rrutually interested in the
developrent of harbor related facilities in the Small Boat Harbor area
within the City of Seward, Alaska; and
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WHEREAS, Lessee has dem:>nstrated to City for a number of years
its carrnitrrent to its ccmrercial waterfront visitor-related business;
and
WHEREAS, City, as expressed rrore fully in City Council Resolu-
tion No.
, has detennined that Lessee's intentions and general
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i developrent plans coincide with the public interest of the City and will
provide increased tax revenues and rental incare to the City; and
WHEREAS, City and Lessee have reached agreenent on the land
City is to lease to Lessee, the general tenns and conditions of such a
lease;
FOR AND m OONSIDERATION OF THE RENTS, CXJVENANTS, AND CON-
DITIONS HEREm CONTAINED, CITY AND LESSEE AGREE AS FOLIruS:
ARI'ICLE 1. DEMISE. City leases to Lessee, and Lessee leases
fran the City that certain real property herein called "Leased Land",
situated in Seward, Alaska, consisting of approximately 900 square feet,
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as shown on Exhibit "A" attached hereto and as IIDre particularly de-
scribed as follows:
Camercial Lease Site No. 6 imnediately
adj acent to the Seward Srrall Boat Harbor
Boardwalk between "B" and "D" Ranps. The
Site is within Block 6, Oceanview
Subdivision.
ARl'ICLE II. CITY'S WARRANTY OF QUIET ENJOYMENT. Lessee, upon
paying the rent and other charges herein provided for and observing and
keeping the covenants, conditions and tenns of this Lease on Lessee's
part to be kept or perfonred, shall peacefully and quietly enjoy pos-
session of the Leased Land during the term of this Lease without hin-
drance by, fran or through City, subject, however, to any enCtllTbrances
created. or caused by Lessee.
ARl'ICLE III. LEASED lAND ~l'W "AS IS". Lessee acknowl-
edges that he has inspected the Leased Land and accepts the sarre "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.
ARl'ICLE rv. USE OF LEASED lAND.
1. Lessee may use the Leased Land for the construction and
operation of a bait and tackle shop. Lessee understands that operation
of such a facility is a major consideration for City's agreerrent 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. MJreover,
City may withhold its consent as to any proposed business or activity
which, in City's sole discretion, is not desirable or corrpatible with
the City's Small Boat Harbor area.
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2. No assignm:mt or sublease shall be pennitted unless
approved in writing by the City. Nrj sublease shall be expressly
subject and subordinate to this lease and the rights of the City here-
under. The City nay elect to not approve any proposed assignm:mt or
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sublease which nay result in a business or activity which, in the City's
sole discretion, is not desirable or c:onpatible with the City's S!l'all
Boat Harbor area.
ARrICLE V. LEASE TERM.
1. Cormencerrent and Expiration. The term of this Lease shall
be ten (10) years, ccmrencing on
, and ending
2. ~tions and Extensions. There is a renewal option for
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i Lessee to extend this lease for an additional three (3) year period, but
by inaction of the parties, the lease shall be deerred to continue from
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.: rronth to rronth. This lease will not terminate until notice in writing
is given by either party to the other, not later than three rronths prior
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3. Holdover. If Lessee shall hold over after the expiration
of the Lease Term, such tenancy shall be from rronth to rronth on all the
terms, covenants and conditions of this Lease.
4. Surrender of Possession.
(a) Subject to the provisions of Article XI belcw with
respect to restoration of buildings and irrproverrents, upon expi-
ration of the Lease Term, whether by lapse of tine or otherwise,
Lessee shall pronptly and peacefully surrender the Leased Land.
(b) Upon the expiration of the Lease Term or any sooner
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termination of this Lease, Lessee agrees to execute, ackncwledge
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and deliver to City a proper instruIrent in writing, releasing and
quit-claiming to the City all right, title and interest of lessee
in and to the leased Land and all i.rrproverrents thereto not rerroved
by lessee as provided herein.
ARI'ICLE VI. RENT. The rental for the leased Land shall be
detennined and paid as follows:
1. Any and all annual rental due under this lease shall be
paid in advance upon COllIlEncenent of this lease in quarterly
installrrents with the first due on or before COllIlEncenent of this lease
and on or before successive quarters beginning January 1, March 1, July
1, and October 1, except as otherwise provided.
2. The rental shall be detennined as follows:
(a) The lease rate shall be
per annum.
(b) Should the City and lessee IIUltually agree to extend
the lease, not less than ninety (90) days prior to the expiration
of the lease the City, at its own expense, may errploy an indepen-
dent appraiser to detennine the fair rrarket rental value of the
leased Land at the highest and best use of the leased Land and
without consideration of lessee I s intended use of the land unless
that use is coincidentally the highest and best use of the Land.
3. Additional Rent and City I s Right to Cure lessee's De-
faults. All costs and expenses which lessee assumes or agrees to pay
pursuant to this lease or to any rrortgage or other enctmt>rance up:m 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-
ment of rent or of a breach of condition. If lessee shall default in
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rraking any payrrent required to be made by Lessee, or shall default in
perfonning any term, covenant or condition of this Lease or of any such
mortgage or other encunbrance on the part of Lessee to be perfo:rmed
which shall involve the expenditure of rroney by Lessee, City at City's
option may, 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 term, covenant or condition, and any and all sums so
expended by the City with interest thereon at the maxi.rmml rate under the
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I laws of the State of Alaska from the date of such expenditure until
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.: repaid, shall be (and shall be deerred to be) additional rent and shall
I 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 remedy 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.,%) siIrple interest per rronth
until paid or the maximum permitted 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
irrproverrents thereon or Lessee's business during the Lease Term. Lessee
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agrees to indemnify and hold City harmless frcm liability for any other
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tax, charge, or asseSSl'lEIlt of any kind or nature. lessee shall, within
sixty (60) days after any such tax asseSSl'lEIlt or other charge consti-
tuting a lien on the leased Land shall becare due and payable, produce
and exhibit to City satisfactory evidence of payrrent.
2. lessee to Pay AssesSl'lEIlts. lessee, during the lease
tem, agrees to pay directly to the public authorities charged with
collection thereof any and all asseSSl'lEIlts 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 therefrcrn
to the leased Land, including any charges for anti-pollution, environ-
mental, ecological or any other public pw:p:>ses. If an option is given
to pay such asseSSl'lEIlt (s) in installllents, lessee may elect to pay the
sane in installrrents, and in such case lessee shall be liable only for
such installllents as shall accrue during the lease Tem.
3. Proration of Taxes and AssesSl'lEIlts. If lessee's abli-
gation to pay taxes or assessrrents canrences or ends during a tax year,
such obligation shall be appropriately prorated with City bearing the
renaining cost (or its pro rata share) thereof.
4. Contest. lessee shall have the right to contest or
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. i review any tax, assesSl'lEIlt, levy, fee, water or sewer charges or rents,
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or any other governrcental charges which lessee is obligated to pay.
Such proceedings shall, if instituted, be conducted prorrptly at lessee's
own expense and free frcrn all expense to City. Before instituting any
such proceedings, lessee shall pay under protest such tax, assesSl'lEIlt,
levy, fee, water or sewer rents or charges or any other governrcental
charges, or shall furnish to City a surety =tpany bond in a corrpany
acceptable to City, or other security reasonably satisfactory to City,
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sufficient to cover the arrount of the contested item or items with
interest for the period which such proceedings may be reasonably ex-
pected to take and costs securing the payrrent of such contested i tern or
items and all interest and costs in connection therewith when finally
determined. Notwithstanding the furnishing of any such bond or securi-
ty, Lessee shall pay all such items at least twenty (20) days before the
tine when the Leased Land or any part thereof might be forfeited. The
legal proceedings herein refe=ed to shall include appropriate cer-
tiorari proceedings and appeals frcm any orders and judgerrents therein,
but all such proceedings shall be begun as soon as reasonably possible
after the imposition or assessrrent 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 anount
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 governrrental authority with respect thereto, Lessee shall
be entitled to receive and retain the sane subject, h~ver, to appor-
tionrrent as provided in Paragraph 3 above during the first and last
years of the lease tem. City at City's option may, but shall not be
obligated to, contest or review by legal proceedings or in such other
manner as may be legal and at City's o.vn expense any tax, assessrrent,
levy, fee, water or sewer rents or charges, or any other governrrental
charge aforerrentioned, which shall not be contested or reviewed as
aforesaid, and unless Lessee shall prOllptly 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 governrrental 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 utili ties used upon the leased Land throughout the
lease tem, including any connection fees.
ARI'ICLE VIII. CONSTRUCTIOO BY LESSEE.
1. lessee I s Right to Build--General Conditions. lessee shall
have the right at any tirre and fran tirre to ti.rre during the lease tem
to construct, maintain, alter, rerrodel, reconstruct, rebuild and replace
building (s) and other :ircprovenent (s) on the leased Land, subject to
approval of the City in conformity with the Snall Boat Harbor Master
Plan and the follCMing conditions:
(a) The cost of any construction, reconstruction,
dem::>li tion, or of any change, alteration or ilrproverrents, shall be
borne and paid for by lessee.
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(b) The leased Land shall at all ti.rres be kept free of
rrechanic' s, materia1rren 's, and any other liens, as hereinafter rrore
specifically provided.
(c) Any building contractors errployed by lessee or its
sublessees shall be appropriately bonded for one hundred percent
(100%) of the contract arrount (s) by use of perfoIll'aIlce and labor
and material payrrent bonds in the custanary fom when cost of the
work is over $10,000.00. Copies of all such bonds shall be fur-
nished to the City prior to ccmrencerrent of construction.
(d) lessee, upon ccmrencerrent of permissible building or
construction activities on the leased Land, shall continue such
activities through to c:onpletion with diligence and continuity.
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(el Comrencement of construction shall IlEan having
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materials and labor on site. Camencerent of construction shall take
place within 90 days of the signing of this Lease and construction shall
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:! be corrpleted within 90 days of camencerent of construction.
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2. Lessee's OWnership of Trade Fixtures, Machinery and
It is expressly understood and agreed that any and all trade
fixtures, machinery and equiprrent of whatsoever nature at any tirre
! i constructed, placed or maintained upon any part of the Leased Land by
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] 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, provided Lessee or its tenants repair any and all
damage to the Leased Land resulting frau such removal or replacerrent.
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3.
Lessee I s Right to Rerrove Irrproverrents and CMnership
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, i Thereof. Lessee shall have the right to rerrove any buildings or im-
proveIrents 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 conpensation to Lessee.
ARl'ICLE IX. LIENS.
1. Prohibition of Liens on Fee or Leasehold Interest. Lessee
shall not suffer or pennit 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
of any work, labor, services or materials supplied or cla:i1red to have
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been supplied to Lessee or anyone holding the Leased Land or any part
thereof through or under Lessee.
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2. Penoval of Liens by lessee. If any lien shall be re-
corded against the leased Land, or any inproverrents thereof, lessee
shall cause the sarre to be rerroved, or, in the alternative, if lessee in
good faith desires to contest the same, Lessee shall be privileged to do
so, but in such case Lessee hereby agrees to provide a surety bond fran
a surety licensed to do business in Alaska in a penal sum equal to one
and one-half tiIres the arrount of the claim of lien, which bond shall
guarantee the payrrent of the sum which the lien claimant has clailred,
together with the lien cla.im:mt' s reasonable cost of suit in the action.
Lessee further agrees to indeImify, defend, and save the City hannless
fran all liability for damages occasioned thereby and shall, in the
event of a judgerrent of foreclosure upon said lien, cause the sane to be
discharged and rem::>ved prior to the execution of such judgerrent.
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3. Notice of t-bn-Fesponsibility. The City may, as contem-
plated by Alaska Statutes 34.35.065 (as now enacted or hereinafter
anended) give notice of non-responsibility for any inproverrents con-
structed or made by Lessee on the Leased Land.
ARI'ICLE X. INDEMNITY. Except for claims arising out of acts
caused by the negligence of the City or its representatives, Lessee
agrees to protect, indermify, defend and save harmless the City from and
against any and all liability arising fran acts or emissions of any
nature whatsoever of Lessee I s officers, servants, employees, contrac-
tors, tenants, agents or invitees causing injury to or death of persons
or loss of or damage to property during the Lease Term, and fran any
expense incident to defense of and by the City therefran. 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 I s expense Il\3.y elect to resist or
defend such action or proceeding by counsel approved in writing by the
City, such approval not to be withheld unreasonably.
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'I provide a certificate of insurance showing the City as co-insured in an
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ARI'ICLE XI.
INSURANCE AND RESTORATION.
1.
Liability Insurance.
Lessee, during the Lease Term, shall
arrount of not less than $300,000 carprehensive general liability cover-
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age for premises operations, broad form property damage and personal
injury. The minimum requirezrents in this section Il\3.y be increased from
tine to tine by the City in accordance with customs and usage for
carparable property in the Seward rretropolitan area.
2. Fire and Extended Coverage Insurance. Lessee, during the
Lease Tenn, shall keep all buildings and improverrents insured at its
expense against loss or damage by fire and such other risks as Il\3.y be
included in the custanary form of broad form extended coverage (which
may exclude earthquakes), in an arrount, over and al:xJve any deductibles
in the governing policies, of not less than the unpaid balance (s) due
under any existing deed (s) of trust or IlOrtgage (s) encurrbering the
buildings or improvements or the City I S fees.
3.
Blanket Insurance.
Lessee may provide any insurance
required by this Lease in the fonn of a blanket policy, provided Lessee
furnishes evidence satisfactory to the City indicating the coverage
thereunder is at least equal to the coverage obtainable under a separate
policy covering the Leased Land only.
4. Additional Narred Insured; Rights of M:>rtgagees (Lenders);
Waiver of Subrogation. All insurance policies required to be maintained
by Lessee shall narre Lessee and the City as the insureds, as their
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respective interests rray appear. All policies shall oontain an agree-
rent 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
prcrrptly after the issuance thereof.
5. Restoration of Buildings and Inproverrents. In the event
of damage to or destruction of any of the buildings or inproverrents
situated on the Leased Land, then frcm the insurance proceeds payable to
Lessee, Lessee shall within ninety (90) days after payrrent of the
insurance proceeds ccmrence restoration of the buildings and inprove-
rrents to their oondition prior to such damage, provided, however,
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Lessee I 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,
damaged property, and shall be rrade available to Lessee for its use in
restoration or repair, as the case rray be, of any damage or destruction
to the buildings and inproverrents on the Leased Land. The proceeds of
insurance shall be paid out by such trustee or rrortgagee frcm tirte to
tirte on certification of the person having supervision of the work that
the arrount 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 CMIl oost and expense
shall keep the entire Leased Land and all buildings and inproverrents
which at any tirte rray be situated thereon in good, clean and tidy
condition and repair during the Lease Term.
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2. Other 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
Leased land and all buildings and irrprovenents thereon.
3. Avoidance of Prescriptive Rights. Lessee shall take such
action as may be necessary to preserve the City's title and ownership of
the Leased Land free and clear of any public or private rights of way,
easerrents or other interests acx:ruired by prescriptive use or otherwise
than as permitted under this Lease, including but not limited to the
posting of thoroughfares, walkways and parking areas so as to preserve
the right of private ownership therein and prevent any adverse rights
thereto accruing through prescriptive use or otherwise than as permitted
hereunder.
ARI'ICLE XIII. COMPLIANCE WITH LAWS.
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1.
Corrpliance with Laws.
Lessee shall
canply with all
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applicable laws, ordinances and regulations of duly constituted public
authorities now or hereafter in any manner affecting the Leased Land or
any buildings, structures or irrprovements situated thereon, whether or
not any such laws, ordinances or regulations which may be hereafter
enacted involve a change of policy on the part of the governmental body
enacting the saIre. Lessee further agrees it will not permit any unlaw-
ful occupation, business or trade to be conducted on said premises or
any use to be made thereof contrary to any law, ordinance or regulation
as aforesaid with respect thereto.
2. Contest. Lessee may by appropriate proceedings conducted
at Lessee's own expense, contest in good faith the validity or enforce-
ment of any law, ordinance or regulation, provided Lessee diligently
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p.1rsues such contest to a final detenni.nation by a court, departrrent or
governrrental authority or body having jurisdiction thereof: provided
that if the City nay becare liable in any nanner for damages, penalties,
fines or costs by reason of lessee's failure to carply with any such
law, ordinance or regulation during lessee I s contest thereof, then, as a
condition precedent to the carrrencarent and continuation of such pro-
ceedings, lessee shall funrish the City such bond with corporate surety
as the City shall reasonably request to save hannless and indamify the
City against liability for any such damages, penalties, fines or costs.
At the option of the City, it nay at its expense contest the validity or
enforcerrent of any such law, ordinance or regulation.
ARI'ICLE XIV. lliINENI' IX:MAIN.
1. Interest of Parties in Condemnation. In the event the
i I leased Land or any part thereof shall be taken for public purposes by
i I condemnation as a result of any action or proceeding in eminent dorrain,
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i i or shall be transferred in lieu of condeImation to any authority enti-
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and lessee in the award of consideration for such transfer and the
effect of the taking or transfer upon this lease shall be as provided by
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law.
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In the event the extent of the taking makes irrpracticable the
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continued operation of the self service car wash, gas station and retail
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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-
deIming 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 rerrainder 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'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 force and effect as to the
portion of the Leased Land not so taken or transferred.
ARl'ICLE~. ARBITRATICN. Any oontroversy 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
held before a panel of three arbitrators in the City of Seward, Alaska,
or with the consent of both parties in Anchorage, Alaska.
ARl'ICLE ~I. 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) If Lessee files a voluntaIy petition in bankruptcy
or for reorganization under the bankruptcy laws or is adjudged a
bankrupt by a court of oornpetent 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 c:orrpetent
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-
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tion of said Lease by its tenus, Lessee shall at once surrender pos-
session of the Leased Land to the City and rerrove all Lessee's effects
therefran and may rem:JVe all Lessee I s buildings and other iIrprovenents,
and Lessee shall have no further rights hereunder or with respect to the
Leased Land. If such possession be not imrediately surrendered, the
City may forthwith enter into and upon and repossess the Leased Land and
expel Lessee or those claiming under Lessee without being .deerned guilty
in any manner 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 damages by reason of such
repossession.
2. Reletting. At any tirre or from tiIre to tiIre 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 inprovenents, for such
tenn or terms (which nay be greater or less than the period which YlOUld
otherwise have constituted the balance of the tenn of this lease) and on
such conditions (which nay include concessions or free rents) as the
City, in its discretion, nay determine and nay collect and receive the
rents therefor. The City shall in no way be responsible or liable for
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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. 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
tennination. 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 tine of such expiration or termination of this
Lease, and thereafter Lessee, until the end of what would have been the
tenn 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,
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(a) the equivalent of the arrount of the rent and charges
which YlOUld be payable under this Lease by Lessee if this Lease
were still in effect, less
(b) The net proceeds received by the City fran leasing
or reletting the Leased Land and inprovenents thereon after de-
ducting all of City's expenses in connection with such leasing and
reletting, including, without lllni tation, all repossession costs,
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brokerage ccmnissions, 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 rronthly, and the City shall be entitled to recover fran Lessee
each rronthly deficiency as the sane shall arise. At any tine after any
such expiration or tennination, whether or not the City shall have
collected any rronthly deficiencies as aforesaid, the City shall be
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entitled to recover fran Lessee, and Lessee shall pay to the City, on
demand, as and for liquidated and agreed final damages for Lessee's
default, an arrount equal to the difference between all rent reserved
hereunder for the unexpired portion of the Lease Tenn and the then fair
and reasonable net rental value to the City of the Leased Land for the
sarre period. In the conputation of such damages, the difference between
an install1rent of rent becaning due hereunder after the date of tennina-
tion and the fair and reasonable rental value to the City of the Leased
Land for the period for which such installrrent was payable shall be
discounted to the date of tennination at the rate of six percent (6%)
per annum. If the Leased Land, or any part thereof, be leased or relet
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by the City for the unexpired portion of the Lease Tenn, or any part
thereof, before presentation of proof of such liquidated damages to any
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court, ccmnission or tribunal, the artDunt of rent reserved upon such
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leasing or reletting shall be prim3. facie evidence of the fair and
reasonable rental value for the part or the whole of the premises so
leased or relet during the tem of the leasing or reletting. Nothing
herein contained shall limit or prejudice the right of the City to prove
and obtain as liquidated dam3.ges by reason of such termination an artDunt
equal to the naxirm.1m allowed by any statute or rule of law in effect at
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the tine when, and governing the proceedings in which such damages are
to be proved, whether or not such arrount be greater, equal to, or less
than, the anount of the difference referred to above.
4. Accumulation of Femadies. Each right and rerredy of the
City provided for in this Lease shall be cumulative and shall be in
addi tion 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 IIDre 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 sinultaneous or later exercise by the City of any
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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. Appointrrent of Receiver. Upon the camencerrent of any
suitor action by the City against Lessee pursuant to any rerredy avail-
able to the City upon Lessee's default hereunder or at any tirre there-
after and during the pendency of such suit or action, any court of
corrpetent 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 IIDrtgagee 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 inprovernents
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 trusts, and to have any balance rerraining held
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by such receiver for disposition in accordance with any judgerrent or
decree entered therein or as may be fran tirre to tirre directed by said
court.
ARI'ICLE XVII. GENERAL PROVISIOiIS.
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
unarrended and in full force and effect (or, if there has been any
arrendment thereof, that the sane is in full force and effect as arrended
and stating the anendment or arrendments) , that there are no defaults
existing (or, if there is any clairred. default, stating the nature and
extent thereof); and stating the clates 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 may 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. 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 specif-
ically expressing or irrparting 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 performance by the other of any
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covenant, agreerent, tenn or condition of this lease or to exercise any
right or rerredy consequent upon a breach thereof, shall constitute a
waiver of arrj such breach or of such covenant, agreerent, tem or
condition. No waiver of any breach shall affect or alter this lease,
but each and every covenant, condition, agreerent and tem of this lease
shall continue in full force and effect with respect to any other then
existing or subsequent breach.
4. TinE of Essence. TinE is of the essence of this lease
and of each provision.
5. Carputation of TinE. The tinE in which any act provided
by this lease is to be done is ccxrputed 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 tem "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 IIp)Il the successors in interest of City and the
authorized assignees, transferees, tenants, licensees and other succes-
sors-in-interest of lessee.
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7. Entire Agreerent. This lease contains the entire agree-
mant of the parties with respect to the matters covered by this lease,
and no other agreerrent, staterrent or pranise made by any party, or to
any enployee, 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 ccxrpetent 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, im-
paired or invalidated.
10. Relationship of Parties. Nothing contained in this Lease
shall be deeIred 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 corrputation of rent nor any other provisions
contained in this Lease nor any acts of the parties, shall be Cl.eeIred 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 silrpl y construed according to its fair rreaning and
not strictly for or against the City or Lessee.
Unless otherwise
provided in this Lease, or unless the context otherwise requires, the
,
: I follONing rules of construction shall apply to this Lease:
(a) Number and Gender. In this Lease, the neuter gender
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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; "Il'ay" 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, arrplify or aid in the interpretation, construction or
rreaning of the provisions of this Lease.
12. Atoondrrent. This lease is not subject to arrendrrent except
in writing executed by all parties hereto.
13 (a).
Delivery of Notices and Pent-~thod and Tine. All
notices, demands or requests fran one party to another shall be de-
livered in person or be sent by nail, certified or registered, postage
prepaid, to the addresses stated in this Section, and shall be deemed to
have been given at the time of delivery or making.
13 (b) .
Paynent of Pent. All rents and other stmIS payable
by lessee to the City shall be by check, payable to the City, delivered
in person or nailed to the City at the follCMing address:
City Clerk
Ci ty of Seward
PO Box 167
Seward, AI< 99664
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and shall be deemed to have been paid when received at such address.
13 (c) .
Notices to the City. 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
Seward, AI< 99664
and to such other persons at such additional addresses as the City nay
specify, but not exceeding four in the aggregate.
13(d).
Notices to Lessee. All notices, demands or requests
fran the City to Lessee shall be given to Lessee at:
RESURRECl'IOO BAY LIONS' CLUB
PO Box 1286
Seward, AI< 99664
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13 (e) . Change of Address. Each party shall have the right,
fran tine to tine, to designate a different address by notice given in
confonnity with this Section.
14. Broker's Camri.ssion. Each of the parties represents and
warrants that there are no claims for brokers' camd.ssions 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
rerredi.es herein provided, the prevailing party shall be entitled to such
sum of noney as the court or the arbitration board may adjudge reason-
able as costs and attorneys' fees in such suit, action or arbitration
i I proceeding, including any appeal taken by either party in such suit,
action or arbitration proceeding.
16. Records. Lessee shall at all tines 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 narre that may be within or under the Leased Land. The City
reserves the right to whipstock or directionally drill and mine fran
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 bottan
such whipstocked or directionall y 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 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 ~se an obligation
of good faith on the City and Lessee in the perfonnance and enforcenent
thereof.
19. Election to Terminate by City. Lessee, as partial
consideration for this Lease, expressly undertakes (1) to operate a bait
and tackle shcp; (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 allow no overnight occupancy;
(5) to operate said facility for a minimum of a 90-day period annually.
If Lessee fails to rreet any of these requirerrents in a tiIrely manner,
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 ea.rtl'quake occurs
during the tenn hereof, making the construction, financing, maintenance
or operation of an illproverrent(s), building(s) or other structure(s) on
the Leased Land illpractical or in;lermissible, then in such event,
provided the Lessee be in good standing hereunder, the Lessee may, in
its uncontrolled discretion, elect to terminate this Lease upon:
(a) Giving written notice to the City; and
(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 IlDnths imrediately preceding the notice under (a); and
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(c) Satisfying or otherwise releasing the City's fee
fran any enCUllbrance(s) 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 tenninate and the
fulfilling of conditions (b) and (c).
21.
other Conditions.
The City reserves the right to relo-
I, cate the builling at City expense sOOuld .urn a move be neces""'Y to
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accorrplish the overall Harbor Boardwalk Project.
ARI'ICLE XVIII. ROCORDING, EXECUTION, CXlUNI'ERPARI'S.
1.
Recording.
The parties may, concurrently with the
execution of this Lease, execute, acknowledge and record a rrercorandum of
lease. Following recording, the rrercorandum 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 deened to be an
original.
3. Execution. This Lease has been executed by the parties
on the day and year first above written.
. i LESSOR:
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LESSEE:
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THE CITY OF SEWARD, ALASKA
~: ~:
PDnald A. Garzini, City Manager
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ATI'EST:
APPROlED As TO FO~:
.
HUGHES, 'lHORSNE'SS, GANl'Z, PaVELL
& BRUNDIN, Attorneys for the
City of Seward, Alaska
Linda S. a.trphy, City Clerk
IdN~
Fred B. Arvidson, City Attorney
(City Seal)
STATE OF ALASKA
ss.
'lHIRD JUDICIAL DISTRIcr
THIS IS 'ill CERl'IFY that on this day of ,
19 , before Ire, the undersigned, a Notary Public in and for the State
of Alaska, duly oonmissioned and $\Orn as such, personally appeared
, City rllanager of the City of Seward,
known to Ire and to Ire known 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
oontained.
.
IN WI'rnESS WHEREX)F, I have hereunto set my hand and seal on
the day and year first hereinabove written.
NOl'ARy PUBLIC in and for Alaska
My Ccmni.ssion Expires:
STATE OF ALASKA
)
) SSe
)
THIRD JUDICIAL DISTRIcr
.
THIS IS 'ill CERl'IFY that on this day of ,
19_, before Ire, the undersigned, a Notary Public in and for the State
of Alaska, duly COlllllissioned and $\Om as such, p:!rsonally appeared
, known to Ire and to Ire known to be the
person who executed the foregoing instrurrent, and who acknowledged that
he signed the sarre freely and voluntarily for the uses and purposes
therein oontained.
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IN WITNESS WHERIDF, I have hereunto set my hand and seal on
the day and year first hereinabove written.
NOrARY PUBLIC in and for Alaska
My Ccmnission Expires:
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BOARDW ALK L~SE SITES
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