HomeMy WebLinkAboutRes1992-050
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Sponsored by: Schaefermeyer
CITY OF SEWARD, ALASKA
RESOLUTION NO. 92-050
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, APPROVING A LEASE OF STORAGE
AND ROOF SPACE AT THE SENIOR/COMMUNITY CENTER
TO SOUTH CENTRAL RADIO, INC., FOR INSTALLATION
AND OPERATION OF A MOBILE TELEPHONE ANTENNA
AND TRANSCEIVER UNIT
WHEREAS, South Central Radio, Inc., has requested that it be allowed to lease
space within the Senior/Community Center building to install a commercial mobile
telephone antenna and transceiver unit; and
WHEREAS, space is available for such installation; and
WHEREAS, such service would be of benefit to the local Senior Center and to the
residents of the community; and
WHEREAS, the public interest would be best served by waiving appraisal of the
proposed lease site;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The City Manager is authorized to execute the attached leased
agreement, attached and incorporated herein by reference, with South Central Radio, Inc.,
for use of space within the Seward Senior/Community Center building for the installation
and operation of a mobile telephone antenna and transceiver unit.
Section 2. 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
27th day of April, 1992.
THE CITY OF SEWARD, ALASKA
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Donald W. Cripps, Mayor
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 92-050
AYES:
NOES:
ABSENT:
ABSTAIN:
A TrEST:
Bencardino, Crane, Cripps, Krasnansky, Swartz, White
None
Dunham
None
APPROVED AS TO FORM:
Perkins Coie, Attorneys for the city of
Seward, Alaska
(City Seal)
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Fred B. Arvidson
City Attorney
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LEASE AGREBXBNT
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I THIS AGREEMENT made and entered lnto effectlve as of the ,.;) day of
t"\. ~t. ' 1992, by and between the CITY OF SBWARD, ALASKA, a
municip I corporation located in the Kenai Peninsula Borough, State of
Alaska, hereinafter referred to as "CITY" and SOUTH CENTRAL RADIO, INC.,
an Alaska corporation, 7437 Old Seward Highway, Anchorage, Alaska 99518
hereinafter referred to as "LESSEE".
WHEREAS, LESSEE has indicated its desire to lease within the
Senior/Community Center/Museum Building, a limited area of building
space for the installation and operation of a mobile telephone
transceiver unit and an roof mounted antenna, hereinafter called the
"leased space"; and
WHEREAS, the city Council of the city of Seward has determined that
a lease of the leased space would be in the public interest; and
NOW THEREFORE, for and in consideration of the mutual promises and
covenants hereinafter contained, the parties hereto agree as follows:
1. -- LEASED SPACE
1.1. DESCRIPTION OF LEASED SPACE. The leased space granted by CITY
under this lease (hereinafter referred to as "leased space") is located
in Seward, Alaska. The leased space is more particularly described as
follows:
Approximately ten (10) square feet within the furnace room for
the location of the mobile telephone transceiver unit and
approximately two (2) square feet on the roof mounted heater
blower unit for a ~ 10 foot tall antenna. Total leased area is
12 square feet more or less.
1.2--Warrantv of Title: Covenant of Ouiet En;ovment. Subject only
to restrictions of title or provisions of this lease, CITY hereby
covenants that LESSEE shall have the quiet enjoyment and possession of
the leased space for any use authorized hereunder for the full term of
this lease. CITY owns the land and building, in which the lease space
is located, free and clear of all encumbrances and is fully empowered to
enter into this lease. CITY is unaware of any prior conflicting use of
the property which would adversely affect LESSEE's intended use of the
1.3--Zonina. Land Use. CITY represents that the current zoning
classification of the lease site is Central Business District. This
Section shall impose no duty or responsibility on CITY to assist LESSEE
in obtaining any other permits or approvals for operation or
construction; however, CITY shall cooperate in good faith with LESSEE in
LESSEE's efforts to promptly obtain any required permits for
construction or operation of LESSEE's facilities on the leased space.
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2. -- LEASE TERM:
2.1--Initial Term. This lease shall commence thirty (30) days
after passage and posting of Resolution 92-050 authorizing this lease
agreement, and shall continue for twelve (12) months. Lessee has
reviewed the provisions of the Seward Code and specifically Chapter 7.05
and understands and agrees to the conditions under which this lease is
issued.
2.2--Interim Riaht to Possession. The parties understand and Lessee
is specifically taking the risk that under the Charter and Ordinance
provisions for the City of Seward this lease agreement may be voided by
a referendum vote of the people. LESSEE is herein granted the right to
possession of the leased premises prior to the passage of thirty (30)
days from the date of approval of this lease by the City Council for the
city of Seward. This interim right to possession shall not affect or
reduce the rights of the voters to reject this lease agreement in which
case LESSEE shall not be entitled to any damages, or any other recovery
against CITY. LESSEE shall have the right to enter the leased premises
immediately upon the execution of this lease. Permitting LESSEE to
occupy the lease space advance of the lapse of thirty (30) days is for
the convenience of LESSEE only and should not be construed as granting
any interest in the leased space should this lease be defeated in a
referendum election.
2.3--0ctions to extend. LESSEE shall have the right to extend the
initial term of this lease for four (4) additional one (1) year periods,
called the first through fourth option terms successively; provided,
that:
a) LESSEE exercises any applicable option to extend at least
ninety (90) days prior to the expiration of the current lease term;
b)
lease and has
permission of
LESSEE is not in default in any term or condition of this
not made an assignment of this lease without the written
CITY as set forth in 14 of this lease agreement; and
c) LESSEE shall exercise its options to extend by sending
written notice thereof in accordance with the provisions of 38 of this
lease.
3. -- RDT
3.1--Rental Rate. The rental amount shall include:
a. The free use of a LTR trunking telephone system by the Seward
Senior Citizens;
b. A $10 per month fee to the Senior Citizens Inc. to cover the
cost of electricity; and
c. An $50 monthly rental fee payable to the city of Seward which
will be applied toward the maintenance budget of the Seward
senior/community Center/Museum Building. The rent shall be payable
quarterly in advance on or before the twentieth day of the month
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following the beginning of each quarter - April 20th, July 20th, October
20th and January 20th. The anniversary date of this lease shall be
thirty (30) days fallowing the approval of this lease agreement by the
city council of the City of Seward.
4. -- USB OP LEASBD SPACB
CITY has limited space available for lease and LESSEE's intended
use of the leased space has been determined by the City council to be in
the public interest.
4.1--Use of the leased SDace. LESSEE may use the building space for
the installation and operation of a mobile telephone system antenna and
transceiver unit, provided the use does not interfere in any way with
the day to day operations of the Seward Senior Center or the museum
which are located within the building.
LESSEE will not use the building space in any manner or construct any
facilities thereon which would inhibit the use of adjacent or other
building space.
4.2--Adeauacv of Public Facilities. CITY makes no representations
or warranties as to any particular part or the whole of CITY's public
facilities with respect to their fitness for the uses intended by
LESSEE, and LESSEE has inspected those facilities and has examined the
plans and specifications of those facilities under construction or
planned for construction and has satisfied itself that the facilities
are sufficient for the intended uses by LESSEE. CITY makes no
representations or warranties of any nature with respect to the
commercial practicability or accuracy of any information provided by
CITY.
4.3--Tariffs and Other Service Fees. CITY shall have the right to
make amendments to its tariffs, regulations and scheduled fees from time
to time even if those adjustments shall cost LESSEE more for its
operations or use of public facilities and CITY is free to do so
provided only that it does not pose any greater burden or higher rate
upon LESSEE than upon any other similar user of the public facilities.
4.4--Time for Payment of utilities. Taxes. LESSEE will pay for
utilities and taxes related to operations on LESSEE's interest in this
lease agreement, if any, before such Obligations become delinquent;
provided, that LESSEE may, in good faith and before such payment,
contest any such charge or assessment.
5. -- UTZLITIBS AND RIGHTS OP ACCBSS
5.1--utilities. If necessary, LESSEE, at LESSEE's sole cost and
expense, shall provide for the extension of public utilities to the
leased space sufficient for LESSEE's intended operations. In so doing,
LESSEE shall comply with all city regulations and requirements with
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respect to the construction of those utilities. CITY agrees to
cooperate and assist LESSEE in LESSEE's planning and engineering of
those improvements and, further, to assist in coordinating the actual
connection of those utilities to the city system.
LESSEE shall not be entitled to any refund, rebate, or payments
from CITY for any rent, investment, or costs incurred by LESSEE with
respect to any required permits for construction or operation of
LESSEE's facilities within the leased space, it being the intent of the
parties that the risk of obtaining required permits be solely a risk
undertaken by LESSEE.
Ie -- CORSTRUCTIOB BY LBSSBB
6.l--LESSEE shall have
remodel, reconstruct, rebuild
to the fallowing conditions:
the right to erect, maintain, alter,
improvements on the leased space, subject
a) The cost of any such construction, reconstruction,
demolition, or of any changes, alterations or improvements, shall be
borne and paid for by LESSEE.
b) The leased space shall at all times be kept free of
mechanics and materialmen's liens.
. c) LESSEE shall supply CITY with a copy of all building plans
and specifications for the leased space.
d) Any general contractor employed by LESSEE or its
sublessees shall be appropriately bonded by use of performance
and labor and material payment bonds in the customary form when cost of
the work is over Fifty Thousand Dollars ($50,000). Copies of all such
bonds shall be furnished to CITY prior to commencement of construction.
LESSEE shall provide CITY, if no performance and labor and material
bonds are provided by LESSEE, any necessary assurance or guarantees that
the contemplated work will be performed by the general contractor or by
LESSEE. In the event that LESSEE elects to construct the facility with
its own personnel and equipment, or the personnel and equipment of any
corporation or person that is an "affiliate" of LESSEE as such term is
defined in A.S. 10.05.825(1), a performance bond shall be required when
the cost of the work is over Fifty Thousand Dollars ($50,000).
e) CITY may, as contemplated by Alaska Statutes, give notice
of non-responsibility for any improvements constructed or effected by
LESSEE on the leased space.
f) LESSEE shall comply with all federal, state and local
statutes and regulations with respect to such construction including any
required finding by the City Council of Seward that such action is in
the public interest.
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g) LESSEE may add/alter, or remodel equipment at LESSEE's
discretion during the term of this lease.
6.2--citv Review of Plans/Specifications. CITY shall have the
right to review initial plans and any future changes or additions to
LESSEE's facility by reviewing the design thereof, and CITY shall have
the right to comment upon that design and to require LESSEE to make
reasonable changes to conform to safety considerations and so as to
avoid interference with public operations but the exercise of these
rights shall not imply any obligation to do so nor any obligation to do
so in a particular way; LESSEE shall construct the facility in
accordance with final design specifications approved by CITY. CITY's
representatives may monitor the work and shall have access to the site
at all reasonable times. LESSEE shall obtain the usual and customary
performance guarantees from its contractors and LESSOR shall be named an
additional insured.
7. -- RBTURN OF PREMISBS/SITB CONDITION
7 .l--Return of Premises in oriainal Condition. Upon termination of
this lease for any reason, LESSEE shall return the leased space to CITY
in good useable condition as it was originally intended. The leased
space shall be free of all Hazardous Material at the leased space
arising out of or resul ting from LESSEE's operations of the leased
space.
8 -- FORCE KAJBURE
In the event either LESSEE or CITY is delayed from performance of
any of its obligations under this lease, due to acts of God, acts of the
enemies of the united States of America, war, sabotage, blockade,
insurrection, riot, epidemic, fires, floods, explosions,
earthquakes/tsunami or civil disturbance, the time period wherein such
performance is to occur shall be extended by that amount of time
necessary to compensate for the delay.
9. -- CITY ACT OF DEPAULT
Each of the fallowing shall be a "CITY Act of Default" under this
lease and the terms "acts of default" and "default" shall mean, when
they are used in this lease, anyone or more of the following events:
a) Failure by CITY to fulfill, observe or perform any
covenants or agreements on its part to be observed or performed under
this lease for a period of thirty (30) days after written notice
specifying such failure, requesting that it be remedied, and stating
that it is a notice of default, has been given to CITY by LESSEE;
provided, however, that if said default is such that it cannot be
corrected within the applicable period, it shall not constitute an act
of default if corrective action is instituted by CITY within the
applicable period and diligently pursued until the default is corrected.
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b) Violation by CITY of any applicable laws or regulations of
the united states, the state of Alaska, the Kenai Peninsula Borough, or
the city of Seward or any conditions of any permits issued by agencies
of the City of Seward, the Kenai Peninsula Borough, the State of Alaska
or of the United States Government pursuant to the regulations of such
agencies for a period of sixty (60) days after written notice specifying
such violation has been given by the agency to CITY; provided, however,
if such violation be such that it cannot be corrected within the
applicable period, it shall not constitute an act of default if
corrective action is instituted by CITY within the applicable period and
diligently pursued until the violation is corrected. Furthermore, if
CITY shall contest such alleged violation through appropriate judicial
or administrative channels, the time period specified herein shall not
commence until such proceedings are finally determined, provided such
proceedings are diligently pursued.
10.-- REMEDIES POR CITY'S ACTS OP DEPAULT
Whenever an act of default by CITY shall have occurred, and any
applicable period for giving notice and any opportunity to cure shall
have expired, LESSEE shall have the following rights and remedies in
addition to any rights and remedies that may be given to LESSEE by
statute, common law or otherwise:
a) withhold payment of any rental otherwise due CITY.
b) Refuse to proceed with any of LESSEE's other performance
obligations under this lease.
c) Recover whether this lease be terminated or not from CITY
reasonable attorney's fees and all other expenses incurred by LESSEE by
reason of the default by CITY.
d) Declare this lease terminated.
e) No expiration or termination of this lease shall expire or
terminate any liability or obligation to perform of CITY's which arose
prior to the termination or expiration except insofar as otherwise
agreed to in this lease.
f) Each right and remedy of LESSEE provided for in this lease
shall be cumulative and shall be in addition to every other right or
remedy provided for in this lease, now or hereafter existing at law or
in equity or by statute or otherwise, and the exercise or beginning of
the exercise by LESSEE of anyone or more of the rights and remedies
provided for in this lease, now or hereafter existing at law or in
equity or by statute or otherwise, shall not preclude the simultaneous
or later exercise by LESSEE of any or all other rights or remedies
provided for in this lease, now or thereafter existing at law or in
equity or by statute or otherwise.
g) No delay or omission to exercise any right or power
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accruing following an act of default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be
deemed expedient.
11. -- LESSEE'S ACTS OP DEPAULT
Each of the following shall be a "LESSEE Act of Default" under this
lease and the terms "acts of default" and "default" shall mean, whenever
they are used in this lease, anyone or more of the following events:
a} Failure by LESSEE to pay promptly when due, and in no event
later than twenty (20) days from the due date thereof, the rentals
required to be paid under this lease.
b) Failure by LESSEE to observe, fulfill or perform any
covenants, condi tions or agreements on its part to be observed or
performed under this lease for a period of thirty (30) days after
written notice specifying such failure, requesting that it be remedied,
and stating that it is a notice of default, has been given to LESSEE by
CITY; provided, however, that if said default is such that it cannot be
corrected within the applicable period, it shall not constitute an act
of default if corrective action is instituted by LESSEE within the
applicable period and diligently pursued until the default is corrected.
c} The making by LESSEE of an assignment for the benefit of
creditors, the filing of a petition in bankruptcy by LESSEE, the
adjudication of LESSEE as insol vent or bankrupt, the petition or
application by LESSEE to any tribunal for any receiver or any trustee
for itself or for any substantial part of its property; or the
commencement of any proceeding relating to LESSEE under any bankruptcy,
insolvency, reorganization, arrangement or readjustment of debt law or
statute or similar law or statute of any jurisdiction, whether now or
hereafter in effect which shall remain undismissed for a period of six
(6) months from the date of commencement thereof.
d) Violation by LESSEE of any laws or regulations of the
united States, or of the State of Alaska, or any conditions of any
permits issued by agencies of the City of Seward, the Kenai Peninsula
Borough, the State of Alaska or of the united States Government pursuant
to the regulations of such agencies, for a period of thirty (30) days
after written notice specifying such violation has been given by the
agency charged with the enforcement of such laws, regulations or permits
to LESSEE; provided, however, if such violation be such that it cannot
be corrected within the applicable period, it shall not constitute an
act of default if corrective action is instituted by LESSEE within the
applicable period and diligently pursued until the violation is
corrected. Furthermore, if LESSEE shall contest such alleged violation
through appropriate judicial or administrative channels, the time period
specified herein shall not commence until such proceedings are finally
determined provided such proceedings are diligently pursued; provided,
however, that any such extension of time shall not be effective if the
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effect of the interim administrative or judicial action is to cause a
stoppage, interruption or threat to the activities of any person or
entity other than those of LESSEE.
12. -- RBKEDIES POR DEPAULT BY LESSEE
Whenever an act of default by LESSEE shall have occurred, and any
applicable period for giving notice and any opportunity to cure shall
have expired, CITY shall have the following rights and remedies in
addition to any rights and remedies that may be given to CITY by
statute, common law or otherwise:
a) CITY may distrain for rent due any of LESSEE's personal
property which comes into CITY's possession. This remedy shall include
the right of CITY to dispose of personal property distrained in any
commercially reasonable manner. It shall be conclusively presumed that
compliance with the procedures set forth in the Alaska Uniform
commercial Code (AS 45.09.504) with respect to sale of property shall be
a commercially reasonable disposal.
b) CITY may re-enter the leased space and take possession
thereof and, except for any personal property of LESSEE which CITY has
waived its right to distrain under SUb-part (a) above, remove all
personal property of LESSEE from the leased space. Such personal
property may be stored in place or may be removed and stored in a public
warehouse or elsewhere at the cost of LESSEE all without service of
notice or resort to legal process, all of which LESSEE expressly waives.
c) Declare this lease terminated.
d) Collect any and all rents due or to become due from sub-
tenants or other occupants of the leased space.
e) Recover, whether
reasonable attorney's fees from
by CITY by reason of the breach
this lease be terminated
LESSEE and all other expenses
or default by LESSEE.
or not,
incurred
f) Recover an amount to be due immediately on breach equal to
the rent reserved under this lease discounted to the date of such breach
at the rate of eight percent (8%) per year. If the leased space or any
part thereof be re-Iet by CITY for the unexpired term of this lease,
CITY shall reimburse to LESSEE upon receipt an amount not to exceed the
amount received by CITY under this section.
g) If LESSEE does not immediately surrender possession of the
leased space after termination by CITY and upon demand by CITY, CITY may
forthwith enter into and upon and repossess the leased space and expel
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 breach of covenant.
h) No expiration or termination of this lease shall expire or
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terminate any liability or obligation to perform of LESSEE's which arose
prior to the termination or expiration except insofar as otherwise
agreed to in this lease.
i) 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 and 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 thereafter existing at law, or in equity or
by statute or otherwise.
j) No delay or omission to exercise any right or power
accruing following an act of default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be
deemed expedient.
13. -- TITLB TO IMPROVEXBNT I.STALLBD BY LBSSBB
13 .1--Personal Prooertv. Any other provisions of this lease to the
contrary notwithstanding, LESSEE, upon termination of this lease for any
reason, may but need not promptly remove, and in no event later than
sixty (60) days from the termination of the lease, trade fixtures and
equipment from the leased space provided that LESSEE shall repair any
damages to the leased space caused by such removal.
14. -- ASSIGBMBBT
14.1--AssiQnment of Lease. The parties recognize that this lease
has been determined to be in the public interest by the City council of
the city of Seward for the reasons set forth in Resolution 92-050.
LESSEE may only assign this lease space with CITY's written consent
which shall be granted if the use by the proposed assignee, is a) the
same as that proposed by lessee and b) found to be in the public
interest by the City council of the City of Seward.
15. -- LBSSBB'S DUTY TO DBPBKD IIBDBMBIPY
LESSEE shall defend, indemnify and hold CITY harmless from and
against any and all liability or claims arising from acts or omissions
of any person and of any nature whatsoever occurring on or relating to
LESSEE's operations at or use of the site, causing injury to, or death
of persons, or loss of, or damage to property, and from any expense,
inCluding attorneys fees, incident to the defense of and by CITY
therefrom except for claims arising out of the sole negligence of the
CITY, its agents or employees. If any action or proceeding is brought
against LESSEE by reason of any such occurrences, LESSEE shall promptly
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notify CITY in writing of such action or proceeding.
16. -- CITY'S DUTY TO DBJ'Blm/INDEMNIn
CITY agrees to defend, indemnify and hold LESSEE harmless from any
and all claims for damages, including personal injuries and property
damage arising out of or resulting from CITY's use of the leased space
or the use of the leased space by CITY's agents or contractors or from
conditions existing or activities occurring on the leased space prior to
this lease agreement.
17. -- INSURARCB
prior to commencement of installation of any equipment or
facilities on the leased space, LESSEE shall procure and maintain, at
LESSEE's sole cost and expense, commercial general liability ins~rance,
with limits of liability of FIVE HUNDRED THOUSAND DOLLARS ($500,000) for
all injuries and/or deaths resulting to anyone person and FIVE HUNDRED
THOUSAND DOLLARS ($500,000) limit from anyone occurrence. The limit of
liability for property damage shall be FIVE HUNDRED THOUSAND DOLLARS
($500,000) for each occurrence and aggregate. Coverage under such
insurance shall also include explosion, collapse and underground
property damage hazards. Such insurance shall include a blanket
contractual liability endorsement. LESSEE shall also provide fire and
extended coverage insurance for any buildings, equipment, machinery,
vessels of customers or any other property stored or being worked on by
LESSEE upon the leased space at replacement value rather than original
cost. LESSEE shall provide Workmen · s Compensation Insurance and
insurance under the Harbor Workers and LongShoremen's compensation Act,
and warehouse and motor vehicle insurance and any other insurance
required under any permit or tariff of the City of Seward, Alaska. The
minimum amounts and types of insurance provided by LESSEE shall be
subject to revision in accordance with standard insurance practices, in
order to provide continuously throughout the term of this agreement and
any extensions hereof, a level of protection consonant with good
business practice and accepted standards in the industry. Such factors
as increases in the cost of living, inflationary pressures, and other
considerations, shall be utilized in assessing whether the minimum
insurance requirements should be increased. CITY may notify LESSEE of
any requested increase in insurance coverage.
All insurance policies shall provide for thirty (30) days' notice
of cancellation and/or material change to be sent to CITY at the address
designated in Article 37 of this lease. All such policies shall be
written by insurance companies legally authorized or licensed to do
business in the State of Alaska, and acceptable to CITY (Best's Rating
A or better). LESSEE shall furnish CITY, on forms supplied by CITY,
certificates evidencing that it has procured the insurance required
herein prior to the occupancy of the leased space or operation by
LESSEE. Nothing herein contained shall prevent LESSEE or CITY from
placing and maintaining at CITY's or LESSEE's own individual cost and
expense, additional or other insurance as may be desired.
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All of the insurance policies required above as well as any other
insurance carried by LESSEE or CITY shall provide that the insurers
waive their rights of subrogation against CITY and 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 (whether by loan receipts, equitable assignment or
otherwise), with respect to deductibles under such policies and with
respect to damage to equipment including the loss of use thereof,
whether insured or not. LESSEE shall also name CITY as an additional
insured on the general liability insurance policy maintained by LESSEE
as required above, excluding coverage for claims resulting from CITY's
sole negligence. LESSEE shall provide CITY promptly and without request
copies of all insurance binders and policies upon receipt thereof by
LESSEE.
18. -- CONDBMHATION
If all or any part of the leased land is condemned for a public use
by any government agency or other duly authorized entity, CITY and
LESSEE shall each make a claim against the condemning or taking
authority for the amount of any damage incurred by or done to them
respectively as a result of the taking. Neither LESSEE nor CITY shall
have any rights in or to any award made to the other by the condemning
authority; provided, that in the event of a single award to CITY which
includes specific damages for loss of LESSEE's leasehold interest, CITY
shall transmit to LESSEE the amount of such specific damages so found,
if any.
If part, but not all of the leased land is condemned for public
use, LESSEE shall make a good faith determination as to whether or not
the taking of the part of the leased land designated for condemnation
will prevent if from continuing to operate on the leased land. If
LESSEE determines in good faith that the condemning of such part of the
leased land will prevent it from continuing to operate on the leased
land, LESSEE may notify CITY in writing to this effect, and this lease
shall then be terminated for all purposes effective fifteen (15) days
from the date LESSEE sends such notice to CITY, or at such other later
date as LESSEE shall specify in its notice, and such termination shall
be treated in the same manner as a termination at the expiration of the
term of this lease. LESSEE shall, as a condition precedent to such
termination, remove all encumbrances, debts and liens to which the
leased land is subject. If at the time of such partial taking for
public use, LESSEE determines that such partial taking will not prevent
it from continuing to operate, then LESSEE and CITY shall negotiate an
equitable and partial abatement of the rent beginning to be effective on
the actual date when LESSEE is effectively prevented from utilizing the
condemned land.
19. -- ARBITRATION
Any dispute between CITY and LESSEE with respect to any provision
of this lease or the rights and obligations of the parties hereunder
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shall be decided by arbitration, in accordance with the provisions of
this paragraph.
a) Consent Panel. The party desiring arbitration of a dispute
shall give written notice to that effect to the other party specifying
in such notice the name and address of a person to serve as an
arbitrator on its behalf. within fifteen (15) days after receipt of
such notice the other party shall give written notice to the first party
specifying the name and address of a person designated to serve as an
arbitrator on its behalf.
If neither party has objected to the others designation within
fifteen (15) days of the notice by the second party of its
representative of an arbitrator, then the two chosen arbitrators (called
the "consent panel") shall select a third person agreeable to both to
become the third member of the consent panel. The consent panel may
utilize informal techniques and hold informal hearing without reference
or adherence to the rules or procedures of the American Arbitration
Association. Promptly and within thirty (30) days of concluding any
proceeding the consent panel shall render its written decision. It is
the intent of this subparagraph to provide for a speedy and inexpensive
resolution of disputes provided the parties agree to such a procedure.
b) Formal Arbitration. If either party objects, within
fifteen (15) days of the second party's designation of an arbitrator to
the others choice of an arbitrator pursuant to paragraph (a) above, or
the first party initially decides not to use the consent panel
procedure, then the matter shall be promptly referred to the American
Arbitration Association in accordance with the then existing rules of
the American Arbitration Association.
c) Arbitration Awards. Any award by either a consent panel or
as a result or proceedings before a panel pursuant to the rules of the
American Arbitration Association shall be enforceable in accordance with
Alaska statutes. Any award shall include an award of costs, interest
and attorney fees.
20. -- XAINTBRANCB ARD RBPAIRS
20.1--Normal Maintenance. During the entire remaining term of this
lease and every renewal or extension hereof, LESSEE shall, at LESSEE's
sole cost, risk and expense, maintain the leased space, including any
improvements placed thereon by LESSEE, in as good condition as received
or constructed by LESSEE, ordinary wear and tear excepted. CITY, at
CITY's sole option and expense, may, prior to the commencement of
construction by LESSEE, perform maintenance and preventative work on the
leased space, exclusive of improvements placed thereon by LESSEE, Any
such work performed by CITY shall be at CITY's sole expense and risk
unless LESSEE agrees, in advance and in writing, to share such expense
and risk. LESSEE shall prevent the discharge of any pollutants to any
public sewer system beyond those for which the system was designed.
LESSEE shall maintain in first class condition at all times all fire,
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pollution and other protective equipment.
CITY may periodically inspect the leased space and facilities
constructed thereon in order to ascertain the condition of the public
portion of the premises but the exercise of this right shall not imply
any obligation to do so nor any obligation to do so in any particular
way.
20.2--Safetv Issues. CITY may notify LESSEE in writing of any
deficiencies in the performance of LESSEE's maintenance responsibilities
as they relate to public health or safety and LESSEE shall promptly
within thirty (30) days of receipt of such notice advise CITY in writing
of its proposed schedule for performance of any work necessary to cure
such deficiencies.
If such deficiencies relate to the safety of LESSEE's
operation such that the surrounding area is exposed to risk, unnecessary
potential hazards, or a risk to the public interest (as distinguished
from a business risk), or if CITY is not satisfied with the proposed
schedule of repairs either because of the delays therein or the scope of
the repairs, then CITY may engage an independent engineering consultant
well-versed and experienced who shall furnish to CITY a comprehensive
survey and report for the purpose of establishing both the need and
urgency to perform such maintenance work. As soon as practicable
following receipt of said engineer's determinations and recommendations,
if the report requires repair then LESSEE shall pay the cost of the
report and perform such work in accordance therewith at LESSEE's cost,
risk and expense.
20.3--Cost of Re~airs. Should LESSEE dispute the necessity of any
maintenance work as being necessary or advisable or reasonable to
protect public facilities, it may submit the matter to arbitration;
provided, however, that pending the decision of the arbitrators it shall
fully comply with the maintenance requests. If an arbitration award
(which shall include costs, interest and attorneys' fees) should
ultimately find that the repairs were not necessary then LESSEE may
ei ther deduct from future rental payments the cost of such repairs or be
reimbursed therefor. In deciding whether repairs requested by CITY or
required by an engineering report are necessary the arbitration panel is
to give primary consideration to the safety and welfare of the Seward
port facilities and the citizens of Seward to the highest standards in
the industry.
If any facility or service provided by CITY to the leased
space shall become inadequate due to changes in environmental control
standards or should any facility require updating or improvement by
reason of a change in LESSEE's use of the leased space or operations
therefrom, LESSEE shall either construct such improvements at LESSEE's
own cost or reimburse CITY for such work at the option of CITY.
21. -- BSTOPPBL CERTIFICATBS
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Either party shall at any time and from time to time upon not less
than ten (10) 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.
22. -- COIIDITIONS AND COVB1lAllTS.
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.
23. -- NO WAIVER 01' BREACH
No failure by either CITY or LESSEE to insist upon the strict
performance by the other of any term, covenant or condition of this
lease or to exercise any right or remedy consequent upon a breach
thereof, shall constitute a waiver of any such breach or of such terms,
covenant or condition. No waiver of any breach shall affect or alter
this lease, but each and every term, covenant and condition of this
lease shall continue in full force and effect with respect to any other
then existing or subsequent breach.
24. -- TIKB 01' BSSBNCB
Time is of the essence of this lease and of each provision.
25. -- COMPUTATION 01' TIKB
The time in which any act provided by this lease is to be done by
shall be 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.
21. -- SOCCBSSORS IN INTBRBST
Each and all of the terms, covenants and conditions in this lease
shall inure to the benefit of and shall be binding upon the successors
in interest of CITY and LESSEE.
27. ENTIRB AGRBBKBNT
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 which is not contained in this
lease shall be binding or valid.
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28 . -- GQVBlUfING LAW
This lease shall be governed by, construed
accordance with the laws of the state of Alaska.
and
enforced
in
29. -- PARTIAL INVALIDITY
If any provision of this lease is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
30. -- RBLATIONSHIP OP PARTIBS
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 relationship between CITY and
LESSEE other than the relationship of lessee and lessor.
31. -- INTERPRETATION
The language in all parts of this lease shall in all cases be
simply construed according to its fair meaning and not for or against
CITY or LESSEE as both CITY and LESSEE have had the assistance of
attorneys in drafting and reviewing this lease.
32. -- lfUKBBR AIfD GBlfDBR
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.
33. -- lIAIIDATORY AIfD PBlUIISSIVB
"Shall", "will" and "agrees" are mandatory; "may" is permissive.
34 . CAPTIONS
Captions of the 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.
35 . -- AKBIfI)MBN'1'
This lease is not subject to amendment except in writing executed
by both parties hereto.
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Mr~-~~-~~ ~CU l~.~r
r nl\ !tV. ~lJ c.~..,jc...Q
It: C L t'tv t D
APR 2 4 1992
OJ-fleE uF THE
CITX CLERK
'.J J. I J VJ IJ....Y'lJill.v
36. -- DELrVERl OH NOTXCBS M KBTKOD OF TXME
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 38 and to such other persons and
addresses as either party may designate notice shall ba deemed to have
been given at the time of mailing.
37. -- HOTleES
All notices, demands and requests from LESSEE to CITY shall be
given to CITY at the following address:
city Manager
City of Seward
P.O. Box 167
Seward, Alaska 99664
All notices, demands or requests from CITY to LESSEE
shall be given to LESSEE at the following address:
South Central Radio Inc.
7437 Old Seward Highway
Anchoraqe, Alaska 99518
sa. -- CHANG. OF ADDRESS
Each party shall have the right, from time to time, to designate a
different address by notice given in conformity with this .
IN WITNBSS WHERBOF, the parties hereto have set their hands and
seals the date first hereinbefore set forth.
CITY:
CITY OF SEWARD
~;EIt
CITY MANAGER
LESSEE:
SOUTH CENTRAL RADIO IN
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APR-22-92 WED 14:58
CITY OF SEWARD
p, 03
FAX NO. 8072243248
ATTEST:
APPROVE AS TO FORM~
PERKINS COlE
Attorneys fer the
city of Seward
7. J N a..-- 1.
FRED B. ARVIDSON
(CITY SEAL)
.-
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THIRD JUDICIAL DIS'I'RIC'1') : if.
THIS IS TO CERTIFY that on this 22- day Oft40lrl Y:~ 19::1'; before
me, the undersigned, a Notary PUblic in and fo~~te Of Alaska,
personally appeared. ..jb~ ' (. RA Fl E::' , known to me and
to me known to be the ~nd~v1dual named 1n an who executed, the foreqoing
document, and who acknowledged to me that (t) (y) dqned the same
freely and voluntarily for the uses and purposes herein contained.
STATE OF ALASKA
WITNESS my hand
hereinabove written.
day and. year first
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