HomeMy WebLinkAboutRes1987-105
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Sponsored by: Garzini
CITY OF SEWARD, ALASKA
RESOLUTION NO. 87-105
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, AUTHORIZING THE LONG TERM LEASE OF
THE SOUTH ONE-HALF OF LOT 5, BLOCK 1, MARINA
SUBDIVISION, TO DOT BARDARSON
WHEREAS, the city received no direct proposals for the
development of Lot 5, Block 1, Marina Subdivision, in
response to a Request for Proposals to lease and develop
this lot; and
WHEREAS, the proposer on another parcel has agreed to
lease a portion of this lot jointly with another business;
and
WHEREAS, the proposal to split the lot into two parcels
meets the city's objective of having the lot developed in
such a manner as to enhance the business environment of the
marina area;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA, that:
Section 1. It is found to be in the public interest to
split Lot 5, Block 1, Marina Subdivision, into two parcels
for lease development rather than to continue seeking
proposals for its development as a single parcel.
Section 2. The city manager is authorized to execute a
long term lease agreement, attached and incorporated herein
by reference, with Dot Bardarson for the South one-half of
Lot 5, Block 1, Marina Subdivision.
Section 3. In accordance with Section 2-89 of the City
Code, the public interest will best be served by the negoti-
ated disposition of the subject property as set forth in the
attached lease document.
Section 4. This resolution shall take effect thirty
(30) days following its adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, this ~ day of November , 19~.
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 87-l05
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
THE CITY OF SEWARD, ALASKA
DUNHAM, HILTON, NOLL, O'BRIEN, SIMUTIS, GIESELER
NONE
MEEHAN
NONE
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN, Attorneys
for the City of Seward, AK
(City Seal)
7~ f2:(~
Fred B. Arvidson
City Attorney
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GROUNl LEASE
BETWEEN
eIn OF SEWARD, AlASKA
AND
DOT BARD ARSON
CONTRACT NO. RE-064
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&?50 S1-1{)~
I fI)E)(
ARTICLE I. DEMISE (legal description)
ARTICLE II. CITY'S WARRANTY OF auIET ENJOYMENT
ARTICLE III. LEASED LAND ACCEPTED "AS IS"
ARTICLE IV. USE OF LEASED LAND
1. Use
2. Assignment/Sublease
ARTICLE V. LEASE TERM
1. Commencement and Expiration
2. Options and Extensions
3. Holdover
4. Surrender of Possession
ARTICLE VI. RENT
1. Due
2. Determination of Rental
3. Additional Rent and City's Right to Cure Lessee's Defaults
4. Late Payment Penalty
ARTICLE VII. TAXES AND ASSESSMENTS
1. Lessee to Pay Taxes
2. Lessee to Pay Assessments
3. Pro-ration of Taxes and Assessments
4. Contest
5. Lessee to Pay Utility Charges
ARTICLE VIII. CONSTRUCTION BY LESSEE
1. Lessee's Right to Build - General Conditions
a. Cost of Construction
b. Kept Free of Liens
c. Contractor Bonding
d. Construction Diligence and Continuity
2. Lessee's Ownership of Trade Fixtures, Machinery and Equipment
3. Lessee's Right to Remove Improvements and Ownership Thereon
f i
~ RTICLE IX. LIENS
1. Prohibition of Liens on Fee or Leasehold Interest.
2. Removal of Lfens by Lessee
3. Notfce of Non-responsiblfty
ARTICLE X. INDEMNITY
ARTICLE XI. INSURANCE AND RESTORATION
1. Liability Insurance
a. Lfmits
b. Determination of Adequacy
c. Cancellatfon Notice
d. Wafve Rfghts of Subrogation
e. Forms
f. Change of Minfmum Requfrements
2. Fire and Extended Coverage Insurance
3. Blanket Insurance
4. Additional Named Insured; Rights of Mortgagees (Lenders)
5. Restoration of Bufldings and Improvements
ARTICLE XII. CARE OF LEASED LAND, ACCESS OF THE CITY
1. Care of Leased Land
~ 2. other Access Rights of the Cfty
3. Avoidance of Prescrfptive Rights
ARTICLE XIII. COMPLIANCE WITH LAWS
1. Complfance wfth Laws
2. Contest
ARTICLE XIV. EMINENT DOMAIN
1. Interest of Parties fn Condemnation
2. Partfal Takfng - Contfnuatfon of LAase
ARTICLE XV. ARBITRATION
ARTICLE XVI. DEFAULT AND REMEDIES
1. Default and Termination
a. Rents
b. Covenants
c. Bankruptcy
d. Credftor Assignment
e. Insolvency
f. Abandonment
~ 1ff
2. Reletting
3. Damages
a. Equivalent Amount
b. Net Proceeds
4. Accumulation of Remedies
5. Appointment of Receiver
ARTICLE XVII. GENERAL PROVISIONS
1. Estoppel Certificates
2. Conditions and Covenants
3. No Waiver of Breach
4. Time of the Essence
5. Computation of Time
5. Successors in Interest
7. Entire Agreement
8. Governing Law
9. Partial Invalidity
10. Relationship of Parties
11. Interpretation
a. Number and Gender
b. Mandatory and Permissive
c. Captions
12. Amendments
13. a. Delivery of Notices and Rent Method and Time
b. Payment of Rent Address
c. Notice to the City Address
d. Notices to Lessee
e. Change of Address
14. Broker's Commission
15. Attorneys' Fees
15. Records
17. Minerals
18. Good Faith
19. Election to Terminate by City
20. Election to Terminate by Lessee
a. Notice
b. Payments
c. Releasing City's Fee from Encumbrances
ARTICLE XVIII. RECORDING, EXECUTION, COUNTERPARTS
1. Recording
2. Counterparts
3. Execution
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARD ARSON
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LEASE AGREEMENT
This Lease Agreement made and entered into this day of
, 19 , between the CITY OF SEWARD, a home rule
~unicipal corporation located~he Kenai Peninsula Borough, State of
Alaska, LESSOR, hereinafter referred to as "City", and Dot Bardarson
herinafter referred to as "Lessee."
WIT N E SSE T H:
WHEREAS,
development of the
Alaska; and
the City and Lessee are mutually interested in the
Small Boat Harbor area within the City of Seward,
WHEREAS, Lessee has demonstrated to City an intention to
develop a retail gift shop to serve the people of Seward and visitors
to the Seward Small Boat Harbor area; and
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WHEREAS, the City has determined that Lessee's intentions
and general development plans conic ide with the public interest of the
City and will provided increased tax revenue and rental income to the City.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE RENTS, COVENANTS,
AND CONDITIONS HEREIN CONTAINED, CITY AN8 ~[SSEE AGREE AS FOLLOWS:
ARJICLE .1. DEMISE. City leases to Lessee, and Lessee leases
from Cfty that certain real property herein called "Leased Land," sftuated
in Seward, Alaska, consisting of approximately 4,250 square feet , as shown
on Exhfbit "A" attached hereto and as more particularly described as
follows:
The South ~ of Lot 5, Block 1, Marina Subdivision, City
of Seward, Alaska, and recorded as Plat No. 51, Serial No.
66-89 in the Seward Recording District, Third Judicial
District, State of Alaska and more particularly shown on
attached Exhibit "A".
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ARTICLE Il. CITY'S WARRANTY OF QUIET ENJOYMENT. Lessee, upon
paying the rent and other charges herefn provided for and observfng and
keeping the covenants, condftions and terms of this Lease on Lessee's part
to be kept or performed, shall peacefully and quietly enjoy possession of
the Leased Land during the term of thfs Lease without hindrance by, from or
through City, subject, however, to any encumbrances created or caused by
Lessee.
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARDARSON
~.RTJP!..~ .IH. LEASED LJ~NO ACCEPTED "AS IS". Lessee acknowledgt
that he has inspected the Leased Land and accepts the same "as is" ana
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
presentl y situated on the Leased Land. A 11 funds and proceeds. if any.
obtained by Lessee from the disposition of such buildings, structures or
improvements, may be retained by Lessee. Lessee is aware of the easements
as shown on the attached Exhibit "A" and agrees to lease the property
subject thereto.
ARTICLE u.
VSE OF LEASED LAND.
1. Lessee may use the Leased Land for the construction and
operation of a retail gift shop Lessee understands that construction
and operation of such afacfl ity is a major consideration for City's agree-
ment 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 retail gift shop by Juen 1 ,19 Be 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
2. No assignment or sublease shall be permitted. unless approved
in writing by the City. Any sublease shall be expressly subject and
subordinate to this lease and the rights of the City hereunder. The City
may elect to disapprove any proposed assignment or sublease which may
result in a business or activity which, in the City's sole discretion, is
undesirable and/or incompatible with the City's Small Boat Harbor area.
ARTIe!.E V.
LEASE TERM.
1. Commencement and Expiration.
thirty (30) years, commencing the _____ day
and ending the _____ day of
tion of plans. approved by City. has commenced
The term of this Lease shall be
of . 1987,
, 2017. provided construc-
prior to June 1. 1988.
2. Options ilnd 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.
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARDARSON
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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.
(b) Upon the expiration of the Lease term or any sooner
termination of this Lease, Lessee agrees to execute, acknowledge and deliver
to City a proper instrument in writing, releasing and quit-claiming to City
all right, title and interest of Lessee in and to the Leased Land and all
improvements thereto not removed by Lessee as provided herein.
ARTICLE. VI. RENT. The rental for the Leased Land shall be
determined and paid as follows:
1. Any and all rental due under this Lease shall be paid in
advance upon commencement of this Lease in quarterly installments on or
before commencement of this Lease and on or before January 1, April 1, July
1 and October 1 of each succeeding year.
2. The rental shall be determined as follows:
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Beginning the day of , 19____, and for the
succeeding five (5) years, the rental rate will be per square foot
per year Not less than ninety (90) days prior to the
expiration of every fifth lease year City, at its own expense, shall employ
an independent MAl certified appraiser to determine the fair market rental
value of the Leased Land, exclusive of Lessee's improvements, at the highest
and best use of the Leased Land and without consideration of Lessee's
intended use of the land, unless that use is coincidentally the highest and
best use of the Land.
Within forty-five (45) days after receipt of any such appraisal,
City shall provide Lessee a copy of the appraiser's written appraisal
report. If Lessee does not object in writing to that appraisal within ten
(10) days, the stated rental rate determined by such appraisal shall apply
for the next succeeding five lease years. The rental rate shall thus be
adjusted every five lease years.
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If Lessee gives City written notice of objection to the appraised
rental rate within ten (10) days of receipt of the appraisal conclusion,
Lessee shall then engage a second independent MAl certified appraiser, at
his sole expense, to make an appraisal of the fair market rental value of
the Leased Land at its highest and best use, exclusive of Lessee's
improvements. Lessee shall furnish City a copy of the second appraisal
report within ten (10) days of its receipt by Lessee.
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CITY OF SEWARC~ '.LASKA
GROUND lEASEBARDARSON
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If the second appraisal reflects a fair market rental value whi~
varies from the first appraisal by no more than twenty (201) percent, then
the new rental rate shall be the average of the first and second appraisal
conclusions. If the second appraisal reflects a fair market value which
varies from the first appraisal by more than twenty (201) percent, then,
unless City and Lessee agree on a rate among themselves. the new rental rate
shall be determined in accordance with the arbitration provisions contained
in Article XV.
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Lessee's objection to the rental rate and engagement of a second
appraiser shall not postpone Lessee's obligation to pay the annual rental as
described fn City's notice of rental rate based on the first appraisal.
Lessee shall pay City the amount of rental rate as fixed by the fi rst
appraisal until the question of rental adjustment is finally resolved. at
which time an appropriate adjustment will be made, if needed.
3. Additional Rent and, City'S Right tQ ,Cure Lessee,'s Defaults.
All costs and expenses whfch Lessee assumes or agrees to pay pursuant to
this Lease or to any mortgage or other encumbrance upon the Leased Land or
Lessee's leasehold interest shall, at City's election, be treated as
additional rent and, in the event of non-payment, City shall have all rights
and remedies herein provided for in the case of non-payment of rent or of a
breach of condition. If Lessee shall default in making any payment required
to be made by Lessee, or shall default in performing any term, covenant o~
condition of this Lease or of any such mortgage or other encumbrance on t
part of Lessee to be performed which shall involve the expenditure of mon~.
by Lessee, City, at City's option, may, but shall not be obligated to, make
such payment 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 City with interest thereon at the maximum rate under the laws
of the State of Alaska from the date of such expenditure until repaid, shall
be (and shall be deemed to be) additional rent and shall be repaid by Lessee
to City, on demand, but no such payment or expenditure by City shall be
deemed a waiver of Lessee's default, nor shall it affect any other remedy of
City by reason of such default.
4. LatQ.Payment Penalty. Rental payment due, but not received. by
the due date shall accrue interest at the rate of twelve (121) percent per
annum until paid or the maximum permitted rate under Alaska law, whichever
is higher.
ARTICLE VII. TAXES AND ASSESSMENTS.
1. L.essee to Pay Tax~s. 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
personal property 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 improveme
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARDARSON
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thereon or lessee's business during the Lease Term. Lessee agrees to
indemnify and hold City harmless from liability for any other tax, charge.
or assessment of any kind or nature. Lessee shall. within sixty (60) days
after any such tax assessment or other charge constituting a lien on the
Leased land becomes due and payable, produce and exhibit to City satisfac-
tory evidence of payment.
2. Le.ss.e~ to Pay. Assessments. Lessee, during the Lease Term,
agrees to pay directly to the public authorities charged with collection
thereof any and all assessments levied on the Leased Land for a part of or
all of the cost of any publ ic work or improvement assessed according to
benefit found by the levying authority to accrue therefrom to the Leased
Land. including any charges for anti-pOllution, environmental. ecological or
any other public purposes. If an option is given to pay such assessment(s)
in installments, Lessee may elect to pay the same in installments. and in
such case lessee shall be liable only for such installments as shall accrue
during the Lease Term.
3. Pro-ration of Taxe~ and Assessments. If Lessee's obligation to
pay taxes or assessments commences or ends during a tax year, such
obligation shall be appropriately pro-rated. with City bearing the remaining
cost (or its pro-rata share) thereof.
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4. Contest. Lessee shall have the right to contest or review any
tax, assessment. levy, fee, water or sewer charges or rents, or any other
governmental charges which Lessee is obl igated to pay. Such proceedings
shall, if instituted. be conducted promptly at Lessee's own expense and free
from all expense to City. Before instituting any such proceedings, Lessee
shall pay under protest such tax, assessment, levy, fee, water or sewer
rents or charges or any other governmental charges, or shall furnish to City
a surety company bond in a company acceptable to City, or other security
reasonably satisfactory to City, sufficient to cover the amount of the
contested item or items, with interest for the period which such proceedings
may be reasonably expected to take, and costs securing the payment of such
contested item or items and all interest and costs in connection therewith
when finally determined. Notwithstanding the furnishing of any such bond or
security, Lessee shall pay all such items at least twenty (20) days before
the time when the Leased Land or any part thereof might be forfeited. The
legal proceedings herein referred to shall include appropriate certiorari
proceedings and appeals from any orders and judgements therein, but all such
proceedings shall be begun as soon as reasonably possible after the
imposition or assessment of any contested items and shall be prosecuted to
final adjudication with reasonable dispatch. In the event of any reduction,
cancellation or discharge, Lessee shall pay the amount that shall be finally
levied or assessed against the Leased Land or adjudicated to be due and
payable and. if there shall be any refund payable by the governmental
authority with respect thereto, Lessee shall be er.titled to receive and
retain the same, subject, however, to apportionment as provided in Paragraph
3 above during the first and last years of the Lease Term. City. at City's
option, may, but shall not be obligated to, contest or review by legal
.
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CITY OF SEWARD, ALASKA
GROUND lEASE - BARDARSON
proceedings. or in such other manner as may be legal. and at City'S ow
expense any tax. assessment. levy. fee, water or sewer rents or charges. or
any other governmental charge aforementioned, which shall not be contested
or reviewed as aforesaid. and, unless Lessee shall promptly join in such
contest or review and pay all costs therein. City shall be entitled to
receive and retain any refund payable by the governmental authority with
respect thereof.
5. !-esses to Pay Util ity Charges. Lessee shall payor cause to
be paid all charges for water, heat. gas, electricity. sewers. and any and
all other util ities used upon the Leased Land throughout the Lease Term.
including any connection fees.
ARTICLE VIII. CONSTRUCTION 6Y lESSEE.
1. Lessee's RiQht to Build--Gen~ral Conditions. Lessee shall
have the right at any time and from time to time during the Lease Term to
erect. maintain, alter, remodel, reconstruct, rebuild and replace
building(s) and other improvement(s) on the Leased Land, subject to the
following conditions:
(a) The cost of any
demolition, or of any change, alteration or
paid for by Lessee.
construction, reconstruction,
improvements, shall be borne and
mechanic's,
specifically
(b) The Leased Land shall, at all times, be kept free of
materialmen's and any other liens, as hereinafter more
provided.
(c) Any building contractors employed by Lessee 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 material payment
bonds in the customary form when cost of the work is over $10,000.00.
Copies of all such bonds shall be furnished to City prior to commencement of
construction.
(d) Lessee, upon commencement of permissible building 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 Equipment.
It is expressly understood and agreed that any and all trade fixtures,
machinery and equipment of whatsoever nature at any time constructed, 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, provided Lessee or
its tenants repair any and all damage to the Leased Land resulting from such
removal or replacement.
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CITY OF SEWARD, ALASKA
GROUND lEASE - BARDARSON
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3. L.es.s~e's Right. to Remov~ Improvements and. Ownerst!ip Thereof.
Lessee shall have the right to remove any buildings or improvements
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 Lessee.
ARTICLE IX.
LIENS.
1. Prohibition of Liens on Fee or Leasehold Interest. Lessee
shall not suffer or permit 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 improvements on the Leased Land by reason of any
work, labor, services or materials supplied or claimed to have been supplied
to Lessee or anyone holding the Leased Land or any part thereof through or
under Lessee.
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2. Removal of Liens by Lessee. If any lien shall be recorded
against the Leased Land, or any improvements thereof. Lessee shall cause the
same to be removed, 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, from a surety licensed to do
business in Alaska, in a penal sum equal to one and one-half times the
amount of the claim of lien, which bond shall guarantee the payment of the
sum which the lien claimant has claimed, together with the lien claimant's
reasonable cost of suit in the action. Lessee further agrees to indemnify.
defend, and save City harmless from all 1 iability for damages occasioned
thereby and shall, in the event of a judgement of foreclosure upon said
lien, cause the same to be discharged and removed prior to the execution of
such judgement.
3. Notice .of Non-responsibility. City may, as contemplated by
Alaska Statutes 34.35.065 (as now enacted or hereinafter amended) give
notice of non-responsibility for any improvements constructed or made by
Lessee on the Leased Land.
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ARTIClEX. INDEMNITY. Except for claims arising out of acts
caused by the negl igence of City or its representatives. Lessee agrees to
protect, indemnify, defend and save harmless City from and against any and
all liability arising from acts or omissions of any nature whatsoever of
Lessee's officers. servants, employees, contractors, tenants, agents or
invitees causing injury to or death of persons. or loss of or damage to
property during the Lease Term, and from any expense incident to defense of
and by City therefrom. If any action or proceeding is brought against 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 counsel approved in writing
by City, such approval not to be withheld unreasonably.
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARDARSON
^~IC~E XI. . IN$URA.NC~ .AND RESTORATION.
1. !...1Ab1Uty..InSI,l.rAl'lct:l. This Lease will not become effective
until such time as the City of Seward has received the following:
A. A pol icy or pol icies of insurance with the following
coverage limits:
1) General liability
.................
S 300.000
2)
Workmen's Compensation ................
STATUTORY
B. A determination by the City of Seward's Insurance Broker
that the insurance offered by the Lessee is of such type
and has such provisions as will permit it to serve as
the underl ying coverage for any City Excess Pol icy and
an acknowledgement from that Broker that the City Excess
Policy or policies will be in effect during the term of
the Lease. NOTE TO LESSEE: This means that a Binder
for insurance is NOT sufficient to obtain this permit.
You wil need to coordinate your insurance coverages with
the City's broker.
C. All insurance policies shall provide for thirty (30
days' notice of cancellation and/or material change tv
be sent to the City. All insurance pol icies shall
contain the following or equivalent clauses:
1) The City, its officers, employees and agents are
added as additional insureds as respects operations
of the named insured performed under the terms of
this Lease with the City.
2) It is agreed that any insurance maintained by the
City shall apply in excess of. and not contribute
to. insurance provided by this policy.
D. All of the required insurance policies shall provide
that the insurers wa ive thei r ri ghts to subrogat ion
against the City and the Lessee and their respective
officers. servants, agents or employees. Lessee further
agrees to waive. and agrees to have its insurers waive,
any rights of subrogation with respect to deductibles
under such policies and with respect to damage to
equipment. including the loss of use thereof, whether
insured or not.
E. The general 11 ab 11 ity endorsement, and Workers'.-
Compensation/Employer's L iab111ty Endorsement shall bl
in substantially the form available from the City.
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CITY OF SEWARD, ALASKA
GROUND lEASE _ BARD ARSON
E.
The 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. f.1 r:e and, Extended. Cove,raQe Insurqr,lce. 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
pol icies, 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.
3. Sl anket I)'lSl,lranCe. Lessee may prov ide any insurance requ ired
by this lease in the form of a blanket pol icy, 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. fldcUtional Named Insured;. Rights of Mortgagees (Lenders);
Waiver of Subro~ation. All insurance policies required to be maintained by
Lessee shall name Lessee and City as the insureds, as thei r 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 BuildinQs 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, ALASKA
GROUND lEASE - BARD ARSON
eRnc,,~. XII.. C(\RE OF: L.EASEO lAND, ACCE SS OF CITY.
1. Car.e. oJ .l~il$~d Land. Lessee, at his own cost and expense,
shall keep the entire Leased land and all buildings and improvements which
at any time may be situated thereon in good. clean and tidy condition and
repair during the Lease Term.
2. Other. Access Rig.ht$ of City. City and its agents or represen-
tatives 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 improvements thereon.
3. Avoidance. of Prescriptive. Rigtlts. Lessee shall take such
action as may be necessary to preserve City's title and ownership of the
Leased Land free and clear of any public or private rights-of-way, easements
or other interests acquired by prescriptive use or otherwise than as
permitted under this Lease, including, but not 1 imited to. the posting of
thoroughfares. walkways and park ing 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.
ARTICLE XIII. CQMPlIANCE WITH LAWS.
1. COll1j)l1ance with Laws. Lessee shall comply with all applicabl.
laws, ordinances and regulations of duly constituted public authorities now
or hereafter in any manner affecting the leased land or any buidings.
structures or improvements situated thereon, whether or not any such laws,
ordinances or regulations which may be hereafter enacted involve a change of
pol icy on the part of the governmental body enacting the same. Lessee
further agrees it will not permit any unlawful 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. Co.n:test. Lessee may, by appropri ate proceed ings conducted at
Lessee's own expense, contest in good faith the validity or enforcement of
any law. ordinance or regulation, provided Lessee diligently pursues such
contest to a final determination by a court, department or governmental
authority or body having jurisdiction thereof; provided that, if City may
become liable in any manner for damages, penalties, fines or costs by reason
of Lessee's failure to comply with any such law, ordinance or regulation
during Lessee's contest thereof. then, as a condition precedent to the
commencement and continuation of such proceedings, Lessee shall furnish City
such bond with corporate surety as City shall reasonably request to save
harmless and indemnify City against liability for any such damages.
penalties, fines or costs. At the option of City, it may, at its expense,
contest the validity or enforcement of any such law, ordinance or
regulation.
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CITY OF SEWARD, ALASKA
GROUND lEASE - BARD ARSON
.
ARTICL~ XIV. EMINENT DOMAIN.
1. Int~r~st of Parties in CondemnatiQn. In the event the Leased
Land or any part thereof shall be taken for public purposes by condemnation
as a result of any action or proceeding in eminent domain. or shall be
transferred in 1 ieu of condemnation to any authority entitled to exercise
the power of eminent domain, the interests of City 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 law.
.
In the event the extent of the taking makes impracticable the
continued operation of the retail gift shop . 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.
2. Partial TakinQ--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 force and effect as to the portion of the Leased
Land not so taken or transferred.
ARHCLEXV. ARBITR.ATION. 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.
ARTICl!:: 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 petition in bankruptcy, or
under the bankruptcy laws, or is adjudged a bankrupt by a
jurisdiction' or
~-
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CITY OF SEWARD, ALASKA
GROUND LEASE - BARD ARSON
(d) If Lessee makes an assignment for the benefit of it.
creditors; or
(e) If a receiver is appointed by 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's 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 immediatley 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. 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
payment 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 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. P.9JT1aQ.es. 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,
-12-
CITY OF SEWARD, ALASKA
GROUND lEASE ~ BARDARSON
.
(a) the equ ival ent of the amount of the rent and charges
which would be payable under this Lease by Lessee if this Lease were still
in effect. less
(b) the net proceeds received by City from leasing or
reletting the Leased Land and improvements thereon after deducting all of
City's expenses in connection with such leasing and reletting, including,
without 1 imitation. all repossession costs, brokerage commissions. legal
expenses. reasonable attorney fees, alteration costs. and expenses of
preparation for such reletting.
.
lessee shall pay such current damages (herein called "defiCiency") to City
monthly. and City shall be entitled to recover from Lessee each monthly
deficiency as the same shall arise. At any time after any such expiration or
termination, whether or not City shall have collected any monthly
deficiencies as aforesaid, City shall be entitled to recover from Lessee,
and Lessee shall pay to City, on demand. as and for 1 iquidated and agreed
final damages for Lessee's default. an amount equal to the difference
between all rent reserved hereunder for the unexpired portion of the Lease
Term and the then-fair-and-reasonable net rental value to City of the leased
Land for the same period. In the computation of such damages, the
difference between an installment of rent becoming due hereunder after the
date of termination and the fair and reasonable rental value to City of the
leased land for the period for which such installment was payable shall be
discounted to the date of termination at the rate of six (6%) percent per
annum. If the Leased Land. or any part thereof, be leased or relet by City
for the unexpired portion of the Lease Term, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such leasing or reletting shall
be prima facie evidence of the fair and reasonable rental value for the part
or the whole of the premises so leased or relet during the term of the
leasing or reletting. Nothing herein contained shall limit or prejudice the
right of City to prove and obtain as liquidated damages by reason of such
termination an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which such
damages are to be proved, whether or not such amount be greater, equal to,
or less than the amount of the difference referred to above.
4. Accumulation. of Remedies. Each right and remedy of City
provided for in this Lease shall be cumulative and shall be 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, and the exercise
or beginning of the exercise by City of anyone or more of the rights or
remedies provided for in this Lease, or now or hereafter existing at law or
in equity or by statute or otherwise, shall not preclude the simultaneous or
later exercise by City of any or all other rights or remedies provided for
in this lease or now or hereafter existing at law or in equity or by statute
or otherwise.
.
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CITY OF SEWARD, ALASKA
GROUND lEASE - BARDARSON
5. ADPointment of R$c~iv~r. Upon the commencem$nt of any suit ~
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 obl igations
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. Es:totlPel.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, 1 f there has been any amendment_
thereof, that the same is in full force and effect as amended and statin
the amendment or amendments), that there are no defaults existing (or, i.
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 rel ied 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.
-14-
.
.
.
CITY OF SEWARD, ALASKA
GROUND LEASE _ BARD ARSON
4. Time of Essence. Time is of the essence of this Lease and of
each provision.
5. 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 "hol iday" shall mean all hol idays as
defined by the statutes of Alaska.
5. 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. Governing 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
inval idated.
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:
(al 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.
-15-
CITY OF SEWARD, ALASKA
GROUND LEASE - BARDARSON
(b) Mandatory.and Permissive. "Shall," "will" and "agrees'
are mandatory; "may" is permissive.
(c) Captions. Captions of the Articles. Sections and
subsections of this Lease are for convenience and reference only. and the
words contained therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of
this Lease.
12. Amendment. This Lease is not subject to amendment, except in
writing executed by all parties hereto.
13(a). Delivery of Notices and Rent--Method and Time. All
notices. demands or requests from one party to another shall be delivered in
person or be sent by mail, 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.
(b). Payment of Rent. All rents and other sums payable by
Lessee to City shall be by check, payable to City, delivered in person or
mailed to City at the following address:
CITY CLERK
CITY OF SEWARD
P. O. Box 167
Seward, AI< 99664
and shall be deemed to have been paid when received at such address.
(c). Notices to City. All notices. demands and requests from
Lessee to City shall be given to City at:
CITY CLERK
CITY OF SEWARD
P. O. Box 167
Seward, AI< 99664
and to such other persons at such additional addresses as City may specify.
but not exceeding four in the aggregate.
(d). Notices to Lessee. All notices, demands or requests from
City to Lessee shall be given to Lessee at:
Dot Bardarson
P.O. Box 630
Seward, Alaska 99664
-16-
CITY OF SEWARD, ALASKA
GROUND lEASE - BARDARSON
.
(e). Q.hang!:l .QLAddress. Each party shall have the right, from
time to time, to designate a different address by notice given in conformity
with this Section.
14.
warrants that
in connection
8rok.er's,.ComtllissjQn. Each of the parties represents
there are no claims for brokers' commissions or finders'
with the execution of this Lease.
and
fees
15. ^ttorney~' .Fee? 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. Re~ords. 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. M.inerals. 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 directionally drill, and mine from land other than the
Leased Land oil or gas wells. tunnels and shafts into, through or across the
subsurface of the Leased Land, and to bottom such whipstocked or
directionally drilled wells, tunnels and shafts under and beneath or beyond
the exterior limits thereof, and to redrill, 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. EJection.to Termi.nate by City. Lessee, as partial considera-
tion for this Lease, expressly undertakes to complete construction of such a
facility not later than September 1, 1988. 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. I;lection 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:
71-
-17-
CITY OF SEWARD, ALASKA
GROUND lEASE - BARDARSON
(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 obligations hereunder shall cease upon
receipt by City of such notice of election to terminate and the fulfilling
conditions (b) and (c).
ARTIC.U l.<.VHI. .RE.COROlNG.. EXECUTION. COUNTERPARTS.
1. Recording. The parties may. concurrently with the execution
of this lease, execute, acknowledge and record a memorandum of lease.
Following recording, the memorandum lease shall be attached to this Lease.
2. c.Qu"terR~rts. This Lease has been executed by the parties in
two counterparts, each of which shall be deemed to be an original.
3. ~ecution. This Lease has been executed by the parties on the
day and year first above written.
LESSOR:
LESSEE:
CITY OF SEWARD, ALASKA
,. .'..
RONALD A. GARZINI, City Manager
ATTEST:
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ, POWELL
AND BRUNDIN, Attorneys for the
City of Seward, Alaska
Linda S. Murphy, City Clerk
7~.1lt~
Fred B. Arvidson, City Attorney
(City Seal)
-18-
CITY OF SEWARD. ALASKA
GROUND lEASE - BARD ARSON
.
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY That. on the -.....- day of"
19 , before me, the undersigned, a Notary Public in and for the state of
Alaska, duly commissioned and sworn as such. personally appeared ..
. .'. ... H' 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
19 , 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(s) who executed the foregoing instrument, and who
acknowledged that (t)he(y) 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 FOR STATE OF ALASKA
My Commission Expires:
.
-19-
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LEASE RE-064
DOT BARDARSON
SOUTH ~ LOT 5, BLOCK 1 MARINA SUBDIVSION
o 4,250 square feet
(:!:40' X 100')
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