HomeMy WebLinkAboutRes1988-112
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Sponsored by: Royle
CITY OF SEWARD, ALASKA
RESOLUTION NO. 88-112
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, AUTHORIZING THE TERMINATION OF CITY
LEASE NO. RE-013 AND THE LONG-TERM LEASE OF THE
SUBJECT PROPERTY TO KENAI FJORDS TOURS, INC.
WHEREAS, the Northeast
Oceanview Subdivision, has
Johnson since 1967; and
:1:20,589 sq.
been under
ft. of Block 8,
lease to Harold
WHEREAS, the original lease, which included dock space
in the Small Boat Harbor, is unacceptable to the state of
Alaska with regard to management of the Small Boat Harbor;
and
WHEREAS, the city and Mr. Johnson have previously
agreed that the city would not recommend assignment of the
present lease should the property be sold, but, in turn,
would recommend termination of the existing lease, issuance
of a new lease to whomever purchased the improvements, and
would convert the dock lease space to a standard moorage
agreement through the Harbormaster's office; and
WHEREAS, this scenario has been accepted by Mr. Johnson
and the prospective purchaser, Kenai Fjords Tours, Inc., an
Alaskan corporation; and
WHEREAS, the parcel has recently been appraised and a
new five-year rate of $0.48 per square foot has been accept-
ed by Kenai Fjords Tours, Inc.;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA, that:
Section 1. The City Manager is hereby authorized to
terminate, on a mutual basis, the present lease No. RE-013
with Harold Johnson.
Section 2. The City Manager is instructed to authorize
the Harbormaster to enter into a standard moorage agreement
with Harold Johnson for the dock space included in terminat-
ed lease No. RE-013.
Section 3. The City Manager is authorized to execute a
long-term lease agreement, a copy of which is attached and
incorporated herein by reference, with Kenai Fjords Tours,
Inc., an Alaskan corporation, for a portion of Block 8,
Oceanview Subdivision.
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 88-112
Section 4. The City Council finds that an appraisal of
the subject property would not be in the public interest.
Section 5. This resolution shall take effect thirty
(30) days following passage and posting as required by law.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, this ~ day of October , 19~
THE CITY OF SEWARD, ALASKA
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HARRY . GIESELER, MAYOR
AYES:
NOES:
ABSENT:
ABSTAIN:
DUNHAM, GIESELER, HILTON, MEEHAN, NOLL, O'BRIEN & SIMUTIS
NONE
NONE
NONE
ATTEST:
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN, Attorneys
for the City of Seward, AK
~~ /1J! dv7-/lt~
Fre B. Arvidson
City Attorney
(City Seal)
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GROUI'V LEASE
BETWEEN
ern CF SEWARD, ALASKA
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AND
KENAI FJORDS TOURS, INC.
CONTRACT NO. RE-072
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INJEX
ARTICLE I. DEMISE (legal description)
ARTICLE II. CITY'S WARRANTY OF QUIET 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
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1.
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3.
4.
Due
Determination of Rental
Additional Rent and City's Right to Cure Lessee's Defaults
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
I. 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
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ARTICLE
IX. LIENS
1. Prohibition of Liens on Fee or Leasehold Interest.
2. Removal of Liens by Lessee
3. Notice of Non-responsiblity
ARTICLE X. INDEMNITY
ARTICLE XI. INSURANCE AND RESTORATION
1. Liability Insurance
a. Limits
b. Determination of Adequacy
c. Cancellation Notice
d. Waive Rights of Subrogation
e. Forms
f. Change of Minimum Requirements
2. Fire and Extended Coverage Insurance
3. Blanket Insurance
4. Additional Named Insured; Rights of Mortgagees (Lenders)
5. Restoration of Buildings and Improvements
ARTICLE XII. CARE OF LEASED LAND, ACCESS OF THE CITY
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I.
2.
3.
Care of Leased Land
other Access Rights of the City
Avoidance of Prescriptive Rights
ARTICLE XIII. COMPLIANCE WITH LAWS
1. Compliance with Laws
2. Contest
ARTICLE XIV. EMINENT DOMAIN
1. Interest of Parties in Condemnation
2. Partial Taking - Continuation of Lease
ARTICLE XV. ARBITRATION
ARTICLE XVI. DEFAULT AND REMEDIES
1.
Default and Termination
a. Rents
b. Covenants
c. Bank ru ptcy
d. Creditor Assignment
e. Insolvency
f. Abandonment
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2.
3.
Reletting
Damages
a. Equivalent Amount
b. Net Proceeds
Accumulation of Remedies
Appointment of Receiver
4.
5.
ARTICLE XVII. GENERAL PROVISIONS
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I. Estoppel Certificates
2. Conditions and Covenants
3. No Waiver of Breach
4. Time of the Essence
5. Computation of Time
6. 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
16. Records
17. Minerals
18. Good Faith
19. Election to Terminate by Lessee
a. Notice
b. Payments
c. Releasing City's Fee from Encumbrances
ARTICLE XVIII. RECORDING, EXECUTION, COUNTERPARTS
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2.
3.
Record i ng
Counterparts
Execution
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N This Lease Agreement made and entered into this .. ...~< . day of ..
," . QII.E"~ eEa...... .' 19.B8", between the CITY OF SEWARD, a home rule
municipal corporation located in the Kenai Peninsula Borough, State of
Alaska, LESSOR, hereinafter referred to as "City", and KENAI FJORDS TOURS,
INC., an Alaska Corporation, P. O. Box 1889, Seward, AK 99664, hereinafter
referred to as "Lessee."
WIT N E SSE T H:
WHEREAS, the City and Lessee are mutually interested in the
development of the Small Boat Harbor area within the city of Seward, Alaska;
and
WHEREAS, Lessee has demonstrated to City an intention to develop a
harbor related commercial business to serve the people of Seward and
visitors to the Seward Small Boat Harbor area; and
WHEREAS, the City has determined that Lessee's intentions and
general development plans coincide with the public interest of the city and
will provide increased tax revenue and rental income to the City;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE RENTS, COVENANTS,
AND CONDITIONS HEREIN CONTAINED, CITY AND LESSEE AGREE AS FOLLOWS:
M:UCL.~. 1.. ".." .O~Mr.s~. City 1 eases to Lessee, and Lessee 1 eases
from City that certain real property herein called "Leased Land," situated
in Seward, Alaska, consisting of approximately 20,589 square feet, as shown
on Exhibit "A" attached hereto and as more particularly described as
follows:
A portion of Block 8, Oceanview Subdivision, Plat No. 74,
Seward Recording District, Third Judicial District, and
more fully described as follows:
Beginning at a brass cap monument, established by Marina
Subdivision Survey, as recorded in Seward Recording
District, March 17,1967, under Plat No. 51, being
situated at the interseciton of the centerlines of Fourth
Avenue and the South Harbor Street, and run thence S 890
59' 45" W, along the centerline of the South Harbor Street,
228.75 feet; thence S 030 21' 00" W, 33.06 feet to the
TRUE POINT OF BEGINNING; thence continuing S 030 21' 00"
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ITY OF SEWARD, AU .<A
ROUND LEASE - OLDOW/SCOBY
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W, 110.18 feet; thence N 890 59'45" E, 177.67 feet; thence
N 200 29' 45" E, 36.30 feet; thence along a curve to the
left through a central angle of 070 26' 20", a radius of
217.00 feet for a distance of 28.17 feet; thence along a
cu rved to the 1 eft through a central angl e of 1030 03'
40", a radius of 40.00 feet for a distance of 71.95 feet;
thence S 890 59' 45" W, 153.10 feet to the TRUE POINT OF
BEGINNING, containing 0.473 acres, more or less (20,589
sq. ft.> SEE ATTACHED EXHIBIT A.
~Bnc;p;:.J);,"" ...QUX-'.$"WI\8MJ:l"(y ..OF. Q,U.IU. J;:NJ.OYMI;:~J:. Lessee, upon
paying the rent and other charges herein provided for and observing and
keeping the covenants, conditions 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 this Lease without hindrance by, from or
through City, subject, however, to any encumbrances created or caused by
Lessee.
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N~nQLI;:, .IU. ...J,.J;I\SJ;Q" LAND. ;'GCE.PTI;D"ALlS!'. Lessee acknowl edges
that he has inspected the Leased Land and accepts the same "as is" and
without reliance on any representations or warranties of City, or agents of
City, as to the physical condition thereof, except as expressly herein
provided. Lessee, at his sole cost and expense, shall have the right to
raze, tear down or remove any buildings, structures or improvements
presently situated on the Leased Land. All funds and proceeds, if any,
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.
~HUCLE;.J.V,. ...I,),SI;: Pf. U::e,SW lANO.
1. Lessee may use the Leased Land for uses cons i stent with
applicable land use regulations. City may withhold its consent as to any
proposed business or activity which, in the City's discretion, is not
desirable or compatible with said applicable land use regulations.
2. No assignment or sublease shall be permitted, unless approved
in writing by the City. However, such approval will not be unreasonably
withheld so long as said assignment or sublease is expressly subject and
subordinate to this Lease and the rights of the City hereunder, and the
proposed business or activity is compatible with applicable land use
regulations.
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~ITY OF SEWARD. A 1<.A
~ROUND LEASE - OLDOW/SCOBY
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1. Q ~ nc . . . x t"a i.o. The term of this Lease shall be
thirty (30) yearsVlommencing the _. day of p," flpV.E:0.f?fJ2. ...... 1988.
and ending the ~ day of M' NQJTl;:,!.H:?~~..,.... 2018.
2. Qp.:t.l~Ht!i An.(L..~t~M.tons,. There are no renewal options
extending to Lessee under this Lease. but by inaction of the parties. the
Lease shall be deemed to continue from month to month. This Lease will not
terminate until notice in writing is given by either party to the other. not
later than six (6) months prior to the expiration of the Lease Term.
3. Sur.r.~nd~r..Qf PQ.!i~e.!i.?i QI\.
(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.
~Hn.C!..E...V.l......... RI;NI. 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 I. 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 ::J::;;; day of ,t!.D.y..E:n'J9!?!? . ... 1988, and until June
30. 1995, the rental rate will be ,,,$...4..tl....,,. per square foot per year. There-
after, and not less than ninety (90) days prior to each fifth anniversary
date of June 30, 1995, 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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ITY OF SEWARD, AI KA
ROUND LEASE - OLUvw/SCOBY
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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.
If the second appraisal reflects a fair market rental value which
varies from the first appraisal by no more than twenty (20%) 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 (20%) 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.
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 in City's notice of rental rate based on the first appraisal.
Lessee shall pay City the amount of rental rate as fixed by the first
appraisal until the question of rental adjustment is finally resolved, at
which time an appropriate adjustment will be made, if needed.
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3 . 8<;t~ J. Upo.al.. R~Dt.. M.d.C.i ty '.:;".B 1 Q ~:Lto . CI,IX'l'l J.es$eEl'.s . De f9!-lltS .
All costs and expenses which 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 or
condition of this Lease or of any such mortgage or other encumbrance on the
part of Lessee to be performed which shall involve the expenditure of money
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.
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4. l,.qte"P'.gY.rnent..p~np'Uy.. Rental payment due, but not received, by
the due date shall accrue interest at the rate of twelve (12%) percent per
annum until paid or the maximum permitted rate under Alaska law, whichever
is higher.
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ITY OF SEWARD, AU (A
ROUND LEASE - OLDOW/SCOBY
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1. L~R?~.1:;l ...t.9....P,a.Y.".Jpx..~? 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 improvements
thereon or Lessee's business during the Lease Term. Lessee agrees to
indemnify and hold City harmless from 1 iabil ity 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 alien on the
Leased Land becomes due and payable, produce and exhibit to City satisfac-
tory evidence of payment.
2. &~Se~Sro~D~p.. Lessee and City agree that improvements to
subsurface utilities shall be deemed an improvement to the fee and shall not
be assessed against the leasehold. In the event the improvement to subsur-
face utilities increases the appraised fair market value of the leased Land,
Lessee agrees to bear any increase in rent caused by such improvements. in
accordance with Article VI of the Lease.
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Lessee. during the Lease Term. agrees to pay directly to the public
authorities charged with collection all the costs of all other public works
or improvements assessed according to the benefit found by the levying
authority to accrue therefrom to the Leased Land. 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 1 iable only for such
installments as shall accrue during the Lease Term.
At the expiration of each fifth (5th) year of this Lease. the
appraised fair market rental value of the Leased Land shall be reduced by
the amount of assessments actually paid by the Lessee during the Lease Term.
for purposes of determining the rental rate for each succeeding five (5)
year period of this Lease in accordance with Article VI of the Lease.
3. E'r:o.::r.iltJQn.ot T9Xe$..~J)~hss~p.smeo.t?,. If Lessee's obl igation 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. ~on~~~t. 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
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ITY OF SEWARD, At 1<.A
ROUND LEASE - OLuvd/SCOBY
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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 entitled 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
proceedings, or in such other manner as may be legal, and at City's own
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. ~"e:;;~,e!ii..tO..P.il.y_jJ:t;n:i.t.Y.khar.g~?. 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.
ARnCkE:"VJ:.ll~". ,QOJ:J~rRUCnON,JW o~f;SSE~.
1. Le~sJ;l~'.!?..B,j,gh:L,tP"l;ll,!ild::-7.G~n.er~L,G9J)dj.tJo,l)?.. 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:
demolition,
paid for by
(a) The cost of any construction, reconstruction,
or of any change, alteration or improvements, shall be borne and
Lessee.
mechanic's,
specificall y
(b) The Leased Land shall, at all times, be kept free of
materialmen's and any other 1 iens, as hereinafter more
provided.
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ITY OF SEWARD, A~ KA
ROUND LEASE - OLDuw/SCOBY
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(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 $10,000.00.
Copies of all such bonds shall be furnished to City prior to commencement of
construction.
(d) Lessee, upon commencement of permissible building or
construction activities on the Leased Land, shall continue such activities
through to completion with diligence and continuity.
2. I..~~.~~~,~~. .Q'r!n~~.bJp. .,Q:C,lr.qAe Jjx:l;lJr~sl.."M9.c;hln~r.Y.. il,osLJ;.Q!l jp(I]en:t.
It is expressly understood and agreed that any and all trade fixtures,
machinery and equipment of whatsoever nature at any time constructed, placed
or maintained upon any part of the Leased Land by Lessee shall be and remain
the property of Lessee or its tenants as their interests may appear and may
be removed or replaced at any time during the lease term, provided Lessee or
its tenants repair any and all damage to the Leased Land resulting from such
removal or replacement.
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3. !..~?.Re.!il} ?'"Rj.cJht.. to.. .l3eIll9Ve.J:'IJl.Rr..~;W!'llJlent.!?.. .qn9. .O.\:fneX's'iJ.1 P. thereof.
Lessee shall have the right to remove any buildings or improvements
constructed or placed upon the Leased Land by Lessee, prior to the
expiration of the Lease. Any buildings or improvements not removed prior to
expiration of the Lease shall become the property of City without the
payment of any compensation to Lessee.
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1. fX9bJl?J:t;j.Q!J. "QL..UeJ)~".Qn..F.ee, Qr:.J.eilse.lJ91d.lnt.er:lil.l?:t. Lessee
shall not suffer or permit any 1 iens to be filed against the fee of the
Leased Land, nor against Lessee's leasehold interest in the Leased Land, nor
against any buildings or improvements on the Leased Land by reason of any
work, labor, services or materials supplied or claimed to have been supplied
to Lessee or anyone holding the Leased Land or any part thereof through or
under Lessee.
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2. ReJuQvqLQf..l1.en$,.J,lY ..L.es~~~. If any 1 ien 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 iabil ity 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.
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ITY OF SEWARD, AI ~A
ROUND LEASE - OLDuW/SCOBY
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3. NQ:t;jl;~...Q.'L..NQn':"t:'~$'pQO!?J.QjHty. City may, as contemplated by
Alaska Statutes 34.35.065 (as now enacted or hereinafter amended) give
notice of non-responsibl1 ity for any improvements constructed or made by
Lessee on the Leased Land.
t\Rn.C.h~"~''''hm.mD..~f::1tUD'.. Except for claims arising out of acts
caused by the negl igence of City or its representatives, Lessee agrees to
protect, indemnify, defend and save harmless City from and against any and
all 1 iabil ity arising from acts or omissions of any nature whatsoever of
Lessee's officers, servants, employees, contractors, tenants, agents or
invitees causing injury to or death of persons, or loss of or damage to
property during the Lease Term, and from any expense incident to defense of
and by City therefrom. If any action or proceeding is brought against City
by reason of any such occurrences, City shall notify Lessee in writing of
such action or proceeding, whereupon Lessee, at Lessee's expense, may elect
to resist or defend such action or proceeding by counsel approved in writing
by City, such approval not to be withheld unreasonably.
AR.:U~J...J;..X.I. ... . m.$\.lR~NC.l;:MQ. B~$.1QRJ\.n.QN.
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1. LJ~Qi.J.t:l;Y..Jn?\lr:jl,nS::\3,. 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)
2)
General Liability
. . . . . . . . . . . . . . . . .
$ 300,000
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 underlying 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 pol icies shall provide for thirty (30)
days' notice of cancellation and/or material change to
be sent to the City. All insurance policies shall
contain the following or equivalent clauses:
.
-8-
ITY OF SEWARD, AI KA
ROUND LEASE - OLDOW/SCOBY
.
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.
1)
D. All of the required insurance pol icies shall provide
that the insurers waive their rights to subrogation
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 liability endorsement, and Workers'
Compensation/Employer's Liability Endorsement shall be
in substantially the form available from the City.
.
F.
The m i n i mum requ i rements in th i s sect i on 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.tr.~..An<l.J;;xtl?llde.d .CoYe.rqge..IIl~\l,r$ln.~~. Lessee, during the Lease
Term, shall keep all buildings and improvements insured, at his expense,
against loss or damage by fire and such other risks as may be included in
the customary form of broad form extended coverage (which may exclude
earthquakes), in an amount, over and above any deductibles in the governing
pol ides, of not less than the unpaid balance(s) due under any existing
deed(s) of trust or mortgagees) encumbering the buildings or improvements or
City's fees.
3. fUAM!'lt.l.,I)s'\l,rq~~. Lessee may provide any insurance required
by this Lease in the form of a blanket pol icy, provided Lessee furnishes
evidence satisfactory to City, indicating the coverage thereunder is at
least equal to the coverage obtainable under a separate policy covering the
Leased Land only.
.
4. M!:U.t.iPJ)q] ".N.q(lle.<L InS,lJr:ed; .RLqht!? 'oL.Mo.r.tQ<HJee~. (Lelld.ers);
W~Jv~r"QL)~Mbr.Qgl):tj,Qn. All insurance pol icies required to be maintained by
Lessee shall name Lessee and City as the insureds, as their respective
interests may appear. All pol ides shall contain an agreement by the
insurers that such policies shall not be cancelled without at least thirty
days' prior written notice to City, and certificates or copies of all such
insurance pol icies shall be furnished to City promptly after the issuance
thereof.
-9-
ITY OF SEWARD, Al KA
ROUND LEASE - OLDOW/SCOBY
(
.
5. Rl'l?.tRr.~:tf.on,..Qf..Jlv.U~.inQ,$".imQ ,IJTlPr.oy.~m~(lt~. 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 either:
(a) 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; or
(b) apply such insurance proceeds first to the cost of removal of
the damaged or destroyed buildings, including any debris or other nuisance
occasioned by the damage or destruction, and restore the Leased Land to a
grade and condition similar to its grade and condition prior to the construc-
tion of the buildings or improvements thereon. Insurance proceeds remaining
after the removal of damaged or destroyed buildings and other improvements,
and restoration of the Leased Land to grade and condition satisfactory to the
City may be applied to any indebtedness owed by Lessee to any lendor which
financed construction of the leasehold buildings or improvements.
.
In either event, 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 of any damaged or destroyed buildings or improvements on the
Leased Land, or removing the damaged or destroyed buildings or improvements
and restoring the Leased Land to a grade and condition of reasonable
satisfaction to the City. 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. Should the Lessee elect
not to restore and repair damaged buildings and improvements on the Leased
Land, all insurance proceeds remaining after removal of damaged and
destroyed buildings and improvements, and restoration of the Leased Land,
may be applied to any indebtedness by Lessee to the lender which financed
construction of the leasehold buildings or improvements, after receipt of
written satisfaction from the City of the restoration of the Leased Land.
In the event Lessee elects not to restore and repair the damaged
buildings and improvements, this Lease shall terminate and all Lessee's
obl igations hereunder shall expire upon the date the City certifies in
writing its satisfaction with the restoration of the Leased Land.
A8.UC,I"I;, XU.... CAR.E .9.F..l-EAS,E;0,I.ANP." A.~CE~S..p[.cn)'.
.
1. <&r:en9J.",I.~Ql?,!;ld.. I.MP. 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.
-10-
ITY OF SEWARD, At KA
ROUND LEASE - OLDOW/SCOBY
.
2. R"t!1lilX...&c;l<lil.$?...RJgb:!:.$,.Qf..ki,ty. City and its agents or represen-
tatives shall have the right to enter into and upon the Leased Land during
reasonab 1 e hou rs for the purpose of inspect ing the Leased Land and all
buildings and improvements thereon.
3. AY.Q.i.<;1,ql1~~.. .pL."P.r~?~r.1.Pj;tV~L.RiQttt? 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 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.
hRUQL,J;;. XU.!..,,, "CQ~Pl., Jf..NCJ;. ,~nl:l. ,f"A.1'/ $.
.
1. QQrrw:U.qnc,!:l.J.d:t;ld.!l.W~.. Lessee shall comply with all appl icable
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. Q9nt~R:t. Lessee may, by appropriate proceedings 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.
ARTlCLIO.. ~;r.y".,,,. ~MlNJ::N-T",Q.OMAIN.
.
1. ;r,ntSlr~"l:it. ,9J..P.il.r:t;tl;l~ .in "C.Qn~ll)n.q.tj911. In the event the Leased
Land or any part thereof shall be taken for public purposes by condemnation
as a result of any action or proceeding in eminent domain, or shall be
transferred in lieu of condemnation to any authority entitled to exercise
-11-
!TY OF SEWARD, A KA
ROUND LEASE - OLDUW/SCOBY
.
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 a business compatible with applicable land use
regulations, 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. P.ilx1;jAJ...,IMj.lJ..q::~.GQn.t,t[lljatjQr.L.o.f...h9.s~. 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.
.
8RT.J.kl!;,.)~Y,....",.AREUJMn.QN. 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.
t18nCJ.f;.xn..,..Q~f'/~W...T, mQ.B.EJ1"!;OI.E~.
I. Q~fQlJ.lt AIlA.lf'lfro.to.a;tj,qn.
(a) If the rent or any other charge shall be in arrears for
a period of thirty (30) days; or
(b) If Lessee fa 11 s to take reasonab 1 e steps to keep and
perform any of the covenants or conditions of this Lease within thirty (30)
days after written notice of default; or
(c)
for reorganization
court of competent
If Lessee files a voluntary
under the bankruptcy laws, or
jurisdiction; or
petition in bankruptcy, or
is adjudged a bankrupt by a
creditors; or
(d) If Lessee makes an ass i gnment for the benef it of its
.
(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
-12-
ITY OF SEWARD, N ,KA
ROUND LEASE - OLDOW/SCOBY
.
(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 possess ion be not immed i atley surrendered, City may forthw ith 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. ~..,eJ.~ttjl)g. 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. D.~rp.RQ.EilS. 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 expi ration 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 1 iquidated and agreed current
damages for Lessee's default,
(a) the equivalent 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.
-13-
ITY OF SEWARD, A~ XA
ROUND LEASE - OLDvrl/SCOBY
.
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 liquidated 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. 8.\;'~.4(1)vJAt.i~{\",.9.f,..gl3.rnedle?. 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.
.
5. fuHl9.illt.m~nt.Qf.B$3.c.ety.er. Upon the commencement of any suit or
action by City against Lessee, pursuant to any remedy available to City upon
Lessee's default hereunder, or at any time hereafter and during the pendency
of such suit or action, any court of competent jurisdiction, upon the
application of City, may at once and without notice to Lessee, its successors
or assigns, or any person or persons, or tenant or tenants, or mortageee or
person claiming any security interest through Lessee, appoint a receiver to
collect the rents and profits arising out of the Leased Land, the buildings
and improvements thereon and the subleases pertaining thereto and apply such
rents and profits to the payment and satisfaction of Lessee's obl igations
under this Lease, including, without limitation, the payment of the rent due
City hereunder, first deducting all proper charges and expenses attending
-14-
ITY OF SEWARD, Ar KA
ROUND LEASE - OLDuW/SCOBY
.
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.
f.lHTIQhE...XVJJ..... .GENI;.R.Al.... P.RO,,"J.SJ9~:i.
1. E.l?j;QDP'e.L,C.l;)J:1;.ifj~Atliil?. Either party shall, at any time and
from time to time, upon not less than thirty (30) days' prior written
request by the other party, execute, acknowledge, and deliver to such party,
or to its designee, a statement in writing certifying that this Lease is
unamended and in full force and effect (or, if there has been any amendment
thereof, that the same is in full force and effect as amended and stating
the amendment or amendments), that there are no defaults existing (or, if
there is any claimed default, stating the nature and extent thereof), and
stating the dates to which the rent and other charges have been paid in
advance. It is expressly understood and agreed that any such statement
del ivered 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. CQ.OM::ti.9J!::i".(H1d..C,Qv.e.l)p~.1;s,. All the provlslons 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. N9dYiMvl'1f. Qf,I;lI;'l3.9(;P, 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.
4. I.i.llll:L.oLEs,~e.~~e.. Ti me is of the essence of th i s Lease and of
each provision.
5. CPlllP'l,l:l;at5.Q.o .0f.:Ume.. The time in which any act provided by
this Lease is to be done is computed by excluding the first day and
including the last, unless the last day is a Saturday, Sunday or a holiday,
and then it is also excluded. The term "holiday" shall mean all holidays as
defined by the statutes of Alaska.
.
-15-
ITY OF SEWARD, A~ ~A
ROUND LEASE - OLDvri/SCOBY
.
5. 's'4.I=.c,~:ii~Q.r:~."j .0... Jr:rt,~r~.~:t;. 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. ~ntir~.Anre~m~nt. 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. ~Q:",e.rn.t(l.Q,L,aw. This Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Alaska.
9. p.ar,:tt~J".Ln.v.QUs1tt.Y.. 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. R~l.i~.1;tQn~bJ.p,,,,Qf. .J~ar.:tie? 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. Inter:pJ:'~t.~tj.Qn.. The language in all parts of this Lease shall
in all cases be simply construed according to its fair meaning, and not
strictly for or against City or Lessee. Unless otherwise provided in this
Lease, or unless the context otherwise requires, the following rules of
construction shall apply to this Lease:
(a) N!.ImR~r...A(I.<;I...G.~f\d.~J:. In this Lease, the neuter gender
includes the mascul ine and the feminine, and the singular number includes
the plural; the word "person" includes corporation, partnership, firm or
association wherever the context so requires.
(b) MaI')AatQrY"and,,"P'l;lrmjs~jv~. "Shall," "will" and "agrees"
are mandatory; "may" is permissive.
.
(cl C,pP:tton~. 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. A~~ndment. This Lease is not subject to amendment, except in
writing executed by all parties hereto.
-16-
ITY OF SEWARD, Af KA
ROUND LEASE - OLDuw/SCOBY
.
13 (a). D.~.UY.eT:Y....Qf"..No.t.tc.~A'h~nQ.".B~.r}k:::M~1;h<;td ...anA.. If)l1~. 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) . P.JlYro~nt.".QL.R~n:t,. All rents and other sums payab 1 e 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, AK 99664
and shall be deemed to have been paid when received at such address.
(c). hlQt i.C;e.?,,1;p..QjJ:r:. 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). t{Q"!; if::~st.q. ~e.~$,e~. All not ices, demands or requests from
City to Lessee shall be given to Lessee at:
MR. DONALD J. OLDOW et al
P. O. Box 1889
Seward, AK 99664
(eL CbM.q~ oLM.<:!re,S? Each party shall have the right, from
time to time, to designate a different address by notice given in conformity
with this Section.
14. !:3.r.Pk~r.!~,.QO.mroj.,$?j.Qn. Each of the parties represents and
warrants that there are no claims for brokers' commissions or finders' fees
in connection with the execution of this Lease.
.
15. Att~rneY~' f~~?. If either party hereto institutes any suit,
action or arbitration proceeding to collect the rent reserved, or to enforce
any covenant or agreement hereof, or to obtain any of the remedies herein
provided, the prevailing party shall be entitled to such sum of money as the
court or the arbitration board may adjudge reasonable as costs and attorney
fees in such suit, action or arbitration proceeding, including any appeal
taken by either party in such suit, action or arbitration proceeding.
-17-
ITY OF SEWARD, AI 'KA
ROUND LEASE - OLuvrl/SCOBY
.
16. R~$;Qr.d~. Lessee shall, at all times, keep or cause to be
kept proper books of record and account in wh ich full, true and correct
entries will be made of all dealings or transactions of, or in relation to,
the Leased Land.
17. Mtn~J:~lp, 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. GQQ~LF:QJth. The terms of this Lease impose an obl igation of
good faith on City and Lessee in the performance and enforcement thereof.
.
19. ~J.~~tjp.n ,to. ..1~rmjn<rt,ELQ.LJ.~~?~!'1. 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:
(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).
ARl]C.\..);)(,VnI~.." R~GQRPm.G.,. .E?\ECUT.ION" .C9UNJ!;RPART~.
1. R~~o.r.qjng. 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. ~Q4nt~rD~rt? This Lease has been executed by the parties in
two counterparts, each of which shall be deemed to be an original.
-18-
.
.
.
ITY OF SEWARD, At KA
ROUND LEASE - OLDvri/SCOBY
3. Exl't<:,ljtj.Qn. This Lease has been executed by the parties on the
day and year first above written.
LESSOR:
CITY OF SEWARD, ALASKA
,<<~~, h"'._h
t.1AX ROYLE
City Manager
AlTEST:
-19-
LESSEE:
........ ", ..... ."-O-._~ _ ... '. ,.. .... .~
APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ, POWELL
AND BRUNDIN, Attorneys for the
City of Seward, Alaska
G; j 1'/
....(/1(,((//: ?t{W~ .. ...... .
Fred B. Arvidson, City Attorney
ITY OF SEWARD, A' 'KA
ROUND LEASE - OL~vn/SCOBY
.
STATE OF ALASKA )
) 55.
THIRD JUDICIAL DISTRICT )
o THIS IS TO CERTIFY That, on the t,~~ day of .,I.1iek#:7,)? .t?ciZ:"'d'
19j,y ,before me, the undersigned, a Notary Public in and for the state of
Ala,s,ka, dul:f)commi~ioned and sworn as such, personally appeared ............~.;
J.1.)A:.X,,,;t;;(;!)(c;:r'-"''''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.
.....,
.
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY That on this .z?t" , day of.4.t:;;7~:(f<'{s~ ,. 0'
19J7~1 before me, ~he undersigned, a Notary Public in and for the state of
AlaSl<a,~d~1})commis7iopep,and sworn as such, personally appeared , ......,. n''''
~,,*~2M~.....;f:c.-.. .,.f,."J,..J...dhf...<..u::::..", "",,,'d'd ......" 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.
,/
/ / _ V ~' I
I , '), 'i . /', ~/, ( )
, / \ / <.. -' 7~ r
. ....,/... 1:. (-, ...,-. ... - ""W""'-', .... ,-,
NOTARY PUBllC FOR STATE O[AL~$K~c
My Commission Expires: :;'/J;/4?,
.
-20-
ITY OF SEWARD, Ar KA
ROUND LEASE - OLDuri/SCOBY
.
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
4. f '
19 fS , b:~~~ I;e:Ot~;R~~~~r~~~~e~~ ;h~~t~;y~PU~~~c o~n -~~.:-~~~~~~".~;;.~~
ed Ja d sworn as such, personally appeared . _.. .,._, ._.
. _.~. . r: _ _ _ ...... ... , known to me and to me
known to be the"person(s) who executed the foregoing instrument, and who
acknowledged that (t)he(y) signed the same freely and voluntarily for the
uses and purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the
day and year first hereinabove written.
/~- . .
/ c....../ J
I .k ----..,/ A /. -
",I,... ::;:2!:;1/~._ .: .>('1.$,~!~c..:....
NOTARY PUBLIC FOR STATE OF A~SKA
My Commission EXPires:',4'Ls; 5:'7....,
.
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY That on this ..2.3, day of ,,".,$?r~y.II?~~..,,,
19 , before me, the undersigned, a Notary Public in and for the state of
~~.~.s~a.~.,~.~~A~~~.~~~CQ~\.~~o.~.~,.~s. ~,~~.~:. ~~~.s~na~,~y k~~~~a~~dm~'~~d' t~' ~e
known to be the person(s) who executed the foregoing instrument, and who
acknowledged that (t)he(y) signed the same freely and voluntarily for the
uses and purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the
day and year first hereinabove written.
.
-21-
I
LEGAL DE~~ TION FOR MARINE COMMERCIAL LE~.~ LOT LOCATED
NEAR THE SMALL BOAT HARBOR IN SEWARD, ALASKA
Beginning at a brass cap monument, established by Marina Subdivision Survey, as
recorded in Seward Recording District, March 17, 1967, under plat no. 51, being
situated at the intersection of the centerlines of Fourth Avenue and the South
F1arbo," Sb-.ee.1;and run thence S 89059' 45" W, along the centerline of the South
~arbo~ 5~ea1;228.75 feet; thence S 030 21' W, 33.06 feet to the true point of
beginning; tnence continuing S 030 21' W, 110.18 feet; thence N 890 59' 45" E,
177.67 feet; thence N 200 29' 45" E, 36.30 feet; thence along a curve to the
left through a central angle of 070 26' 20", a radius of 217.00 feet for a
distance of 28.17 feet; thence along a curve to the left through a central angle
of 1030 03' 40", a radius of 40.00 feet for a distance of 71.95 feet; thence
S 890 59' 45" W, 153~10 feet to the true point of beginning.
Containing 0.473 acres, more or less. - t2~.r.-l?7 fJ'$'./.
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..vOTE,' #0 F/eLL:J Sf/eYE}" ~~ aA/E.
I hereby certify that I have surveyed the following
described property: /HAR/A/G C!4_""..IO:'/A-L
LG4SE LOT' .LOC//7ED A/.cA.e 7NE
~"'ii BoAT -"1"/lR.8o-e. /A/ SE. #LA
Recording Precinct, Alaska, and that the
improvements situated thereon are within the property
lines and do not overlap or encroach on the property
lying adjacent thereto, that no improvements on prol;l-
erty lying adjacent thereto encroach on the premises m
9,uestion and that there are no roadways, transmission
lines or other visible easements on said property except
as indicated hereon.
Dated at Anchorage, Alaska
thio /~rl> day nf #P,,€/L
19~7
HEWITT V. LOUNSBURY &. ASSOCIATES
Registered State Land Surveyors