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HomeMy WebLinkAboutRes1991-050 . . . Sponsored by: Schaefermever CITY OF SEWARD, ALASKA RESOLUTION NO. 91-050 OF SITE A RESOLUTION OF THE CITY COUNCIL OF THE CITY SEWARD, ALASKA, APPROVING THE SUBLEASE OF BOARDWALK NO. 1 FROM BRAD SNOWDEN TO KENAI COASTAL TOURS, INC. WHEREAS, Brad Snowden is the Lessee of Seward Small Boat Harbor Boardwalk Lease site No.1: and WHEREAS, Mr. Snowden desires to sublease his building located on the lease site to Kenai Coastal Tours, Inc., for operation of a sightseeing tour/ticket office and gift shop: and WHEREAS, this proposed use is an allowed use within the Harbor Commercial Zone: and WHEREAS, Snowden's Lease Agreement with the city is for a term to end on June 30, 1995, with a three year renewal option: and WHEREAS, the sublease agreement between Snowden and Kenai Coastal Tours, Inc., is for a five year period to expire on June 30, 1996: and WHEREAS, the city is unable to approve a sublease beyond the expiration date of the original lease agreement: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: section 1. A sublease of Seward Small Boat Harbor Boardwalk Lease site No.1 from Brad Snowden to Kenai Coastal Tours, Inc., for the period May 1, 1991, through June 30, 1995, is hereby APPROVED. Section 2. A copy of the sublease agreement is attached and incorporated herein by reference. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 28th day of May, 1991. THE CITY OF SEWARD, ALASKA a~~~:jJ / il~ David L. Hilton, Mayor -1- . CITY OF SEWARD, ALASKA RESOLUTION NO. 91-050 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Burgess, Dunham, Krasnansky, Meehan, Sieminski, Simutis, Hilton None None None APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska . . (City Seal) '7~!If ~ Fred B. Arvidson city Attorney -2- . CJ .. . . " '" "0 ~8S:~ ~"O'I. IlrIcQ.... I g~:;:!~ ..., '" Ilk:a: Ie .. o .~.=;- 33' ....0 :!~~je. o ~ . ~,. J1IlYjy This agreement entered into this L day of /19/ , 1991, by and between BRAD SNOWDEN, herein referred to as "Lessor", and KENAI COASTAL TOURS, INC., herein referred to as nLessee." ~ WHEREAS, the lessor owns a building and is the lessee of a space on which the building is located with the City of Seward dated May 14, 1986, for the space more particularly known as Commercial Lease site No.1, immediately adjacent to the Seward Small Boat Harbor boardwalk, between Band 0 ramps, all within Block six (6), Oceanview Subdivision, Seward Recording District, State of Alaska; and, WHEREAS the lessor desires to lease the premises to lessee and lessee desires to lease the premises from lessor. NOW, THEREFORE, in consideration of the mutual covenants contained herein the parties hereto agree as follows: 1. D..i..4 Pr..i.... above-described premises. Lessor shall lease to lessee the ~b1) F<>...~ ('1) "'I~ 2. T.r.. The term of the lease shall for ~ (81 years commencing May 1, 1991, through ',wil 38, 1336, ~~less sooner terminated. J'UN. 3~, '99~ ~ 3. R.nt.l p.y..nt.. The lessee shall pay to lessor a monthly rent as noted in the yearly schedule of payments as follows: For the First and Second years, rental payments shall be NINE HUNDRED DOLLARS ($900.00) per month from May through September and FOUR HUNDRED DOLLARS ($400.00) October through April. For the Third and Fourth years of the agreement, Lessee shall pay ONE THOUSAND DOLLARS ($1,000.00) per month from May through september and FIVE HUNDRED DOLLARS ($500.00) per month from October through April. For the Fifth year of the agreement, Lessee shall pay ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00) per month from May through september and SEVEN HUNDRED DOLLARS ($700.00) per month from October through April. All monthly payments are due and payable on the lOth day of each month during the term of this lease. i' In the event that the Master Lease rent is increased in excess of loot, lessee shall pay that portion in excess of lOOt of the original lease amount as additional rent for the duration of the term of this lease. 4. S.curity D.po.it. On execution of this lease, lessee depot:iits with :"'SS()'=' tho ::UllI ::of t!INE Hr.~IDREO DnLnms (o;qoo,C\O), receipt of which is hereby acknowledged by lessor, as security for the faithful performance by lessee of the terms hereof, to be r.turned to less.. without interest, on the full and faithful performance by lessee of the provisions hereof. Said deposit shall not b. used as a portion of the last month's rent. i 5. X..t.r L..... the terms of the Master Snowden, as lesse., and The terms of this lease are subject to Lease dated May 14, 1986, between Brad The City of Seward, as lessor. All of " 1 " the terms, covenants and conditions or said Master Lease are incorporated herein as though fully set forth. In the event that any or the terms or this lease contradict the terms of the Master Lease, the Master Lease shall prevail. 6. Bolding ov.r. Ir the lessee shall remain in posse,. .1 of said premises after the expiration of the term of tnls lease, or beyond the termination or this lease for any other reason, lessee shall pay, in advance, an amount of rent equal to two (2) times the normal monthly rent. The normal monthly rent shall be that amount payable for the same months as indicated in the yearly schedule of payments in Paragraph ) above. If lessee is out within two weeks thereafter, or by the 15th of that month, an amount equal to one and one-half times the rent shall be refunded to lessee by lessor. However, this term is not to be construed as permitting a two week holdover period following any termination under the terms of this lease and specifically not under termination in the event of complaints by The City of Seward about the business operations of lessee. 7. Incr.... in T.., In.ur.nc. and utility a.t... (a) Any increase in the insurance rate or utility rates on said premises shall be the responsibility of the lessee. Lessee shall be responsible for all personal property taxes for the equipment or lessee's business. (b) Lessor shall pay all taxes assessed for or during the term hereof against and on any or all property and improvements. Lessee shall be respon.ible to pay all the costs involved in running and operating the busines.. (c) Lessee shall pay all Kenai Peninsula Borough sales taxes and mu.t register its bu.iness with the Kenai Peninsula Borough. (d) Within ten (10) days after the commencement of this agreement and during the lease term, lessee & in.ur. the premi.e., at its sole cost and expense, against claim. for per.onal injury or property damage under a policy of general public liability insurance, with limits of at least $300,000 for bodily injury and for property damage, or any other amount e.tablished by the City of Seward pursuant to its Master Lea.e and naming The City of Seward and lessor as additional insured.. Lessor shall provide insurance coverage for fire damage which shall not include any equipment and fixture. of lessee. 8. Uti1iti.. .nd H.int.n.no.. Le.see is responsible for all utilities. Minor maintenance and repair of the premises and equipment shall be the responsibility of lessee. Lessor shall be re.ponsible for major repairs to the structure, unless caus.d by the negligence of le..... 9. ~.. of th. ~r~=i~c.. 4a's~~~ use of the pr9mises i~ limit.d to ~_ ~4/,.r +t::;t,,"-.L . 10. Cov.n.nt of Quiet .DjoyaeDt. So long a. the lessee pay. the r.nts re..rv.d by this lea.. and p.rforms and observes all the covenant. and provi.ion. h.r.of, the les... shall qui.tly enjoy the lea..d property. Th. l..se.'s quiet enjoym.nt of this lea..d property shall b. subject, however, to: the term. of this lea.., to dispo.session by reason of superior title, the Ma.ter Lea.., to all easements, re.trictions of record, municipal ordinance. of The City of 2 . Seward, and statutes or regulations of the State of Alaska. Should the lessee by dispossessed from the leased property by reason of the terms of this lease, the Master Lease, or by reason of such easements, restrictions, or ordinances, the payment of rent shall cease from and after the date of such dispossession, and all rent that lessee may have prepaid, or any of the sum constituting a security deposit by lessee in the hands of the lessor at the time of such dispossession, shall be returned to the lessee forthwith, except to the extent of lessee's default thereunder. The lessee shall not be entitled to receive from the lessor any damages suffered by the lessee as a result of such dispossession. 11. AlteratioD aDd I.prov..eDt.. Lessee may not alter or improve the premises except with the express written consent of the lessor upon presentation and review of plans pertaining to such alterations or improvements. In the case of this lease, it is acknowledged by both lessor and lessee that the premises are leased "as is" at the time of commencement. Any and all improvements made prior to commencement are not to be considered to have any effect on this agreement; commencement of this lease constitutes acceptance of the premises condition by both lessor and lesse.. Lessee further agrees that it will not at any time allow or permit any lien or other encumbrance to be placed against the premises. Lessee shall also comply in every regard with all conditions and obligations of lessor under the Master Lease. . 12. Kaint.nanc. and ..pair. by L...... Except as herein otherwise provided, lessee shall keep the interior of the premises in tenantable repair, at its own cost and expense, and at the end or other expiration of the term hereof shall deliver up the premises, fixtures and equipment in substantially as good a condition as they were at the beginning of the term hereof, damage by reasonable wear and tear. and damage by fire and the elements excepted. Lesse. shall replace any glass windows, doors, or partition. broken or damaged upon the premises in a clean and orderly manner. Except for the vinyl awnings and support metal framework which are the property of lessee, all alterations, additions or improvements made to the premises, including decorations, paneling and similar items, unless the lessor shall otherwise elect in writing, shall become the property of the lessor and be surrendered as part of the leased premise. at the end of the term hereof. Lessee shall pay contractor's cost of additional electrical outlet. and partition wall.. 13. L..... Co.plianc. with all Laws. The lessee at its sole expense shall comply with all law., order. and regulations of federal, stat. and municipal authorities, and with any direction of any public offic.r, pursuant to law, which shall impo.. any duty upon les.or or the less.. with respect to the ': leased property. Th. les..., at it. sole expense, shall obtain all license. or permit. which may b. required for the conduct of itn business wit~ir. ~h. term. of this lease, or for making of r.pairs, alteration., improvem.nts or additions; and the le..or, where nec.ssary, will join with the lessee in applying for all such p.rmit. or lic.n.... 14. Surr.nd.r cf prop.rty In Good condition. At the .xpiration of the leas. t.rm, the 1..... .hall surrender the l.a..d prop.rty in a. good condition a. it was at the beginning of the t.rm, reasonable us. and wear and damage by the elements excepted. 3 . 15. L...or'. Riqh~. in D.fault. (a) The lessor may give the lessee written ten DO) days notice of termination of this lease in any of . following circumstances: i. Failure to comply with any covenants, duties or obligations under the Master Lease with The City of Seward. ii. If lessee abandons the premises or the premises remain unoccupied for a period of three (3) days, excluding lessee's normal shut down of operations after each summer season. iii. If the lessee shall be in default in the performance of any covenant of this lease and if such default is not cured within ten (10) days after written notice thereof given by the lessor; or, if such default shall be of such nature that it cannot be cured completely within such ten day period, if the lessee shall not have promptly commenced within such ten day period or shall not thereafter proceed with reasonable diligence and in good faith to remedy such default. iv. If the lessee shall be adjudicated a bankrupt, make a general assignment for the benefit of creditors, or take the benefit of any insolvency act, or if a permanent receiver or trustee in bankruptcy shall be appointed for the lessee's property and such appointment is not vacated within 90 days. For these purposes "lessee" shall mean the lessee then in possession of the leased property. v. If this lease shall be assigned or the leased property sublet other than in accordance with the terms of this lease and such default is not cured within 10 days after notice. I , jl :I 'I :i (b) If the lessor shall give a ten day notic termination provided in subparagraph (a), then at expiration of such period this lease shall terminat ~ completely as if that were the date herein definitely fixed for the expiration of the term of this lease, and the lessee shall then surrender the leased property to the lessor. If this lease shall be so terminated, it shall be lawful for the lessor, at its option, without formal demand or notice of any kind, to reenter the leased property by unlawful detainer action or by any other lawful means and to remove the lessee therefrom without being liable for any damages therefor. Upon the termination of this lease, as herein provided, the lessor shall have the right, at its election, to terminate any sublease then in effect, without the consent of the sublessee concerned. ,i , ! II i (c) Because of the particular concern of lessor with regard to the maintenance of a quality image with the community, it is specifically agreed and understood that in the event leszor !thall receive complaints regarding the bu!'ines.. operation of lessee from Th. City of Seward, lessor shall have the right to terminate thi. leas. in its entirety and remove les.e. on ten (10) days written notic.. During the ten (10) day. preceding termination, le.... shall have the opportunity to .atisfy the complaints to the ext.nt that all parties agree the problem has been eliminated. If the complaint or problem i. not r..olved in the ten day period, then Le..or's decision to terminate this lease shall be final. (d) The lessee shall remain liable for all its 4 . . obligation. under this lea.. despite the lessor's reentry, and the le.sor may re-rent or use the leased property, if the les.or so elects. Th. l.ss.. waiv.. any legal requirements of notic. of intention to reent.r. (e) Nothing in this article shall be deemed to require the lessor to give the l..se. any notic., other than .uch notic. as may b. required by statut., prior to the commenc.m.nt of an unlawful detainer action for nonpayment of any basic rent or additional rent, it b.ing intended that the t.n day notice is only for the purpose of creating a conditional limitation hereunder pursuant of which this lease shall terminat.. (f) If the lease shall terminate as provided in this article the lessor shall have the right, at its election at any time, to recov.r from the lessee the amount by which the rent reserved herein for the balanc. of the term shall exceed the reasonable rental value of the leas.d prop.rty for the same period. , I (g) If the 1..... .hall b. in d.fault hereunder, the le..or may cur. such default on behalf of les.or, in which event the 1..... .hall r.imburs. the les.or for all actual cost. to effect .uch cur., including int.r..t at the rate of ten p.rc.nt (10') p.r annum and reasonable attorn.y's fees. In ord.r to collect such r.imbursem.nt, the lessor shall have all the remedies available und.r this lease for a default in the payment of rent. (h) Tim. i. of the es.enc. of this leas. with respect to the p.rformanc. by l.s... of it. obligation. hereund.r. 16. Riqb~ of ..~rr. Th. l...or and it. repre..ntativ.s may ent.r th. leased prop.rty, at any reasonable tim., for the purpo.. of prot.cting the prop.rty from loss or damage, insp.cting the lea.ed property, p.rforming any work which the l...or el.ct. to und.rtak., mad. n.c..sary by reason of the le....'. d.fault under the terms of this leas. or any other lawful purpo... 17. L.....'. Riqb~. i. Bv..~ of D.fault. If the lessor d.fault. in the ob..rvanc. or p.rformanc. of any term or cov.nant r.quir.d to b. p.rform.d by it und.r this l.a.., the le...., aft.r not 1... than thirty (30) day. written notic. to the l.s.or, shall have .uch rem.di.. a. are available to lessee at law. i I ! :j , I I " :1 !I I I I 18. D..truo~io. of .rop.r~y. In the .v.nt that the pr..i... .hall b. d..troy.d or so damag.d by fir. or other casualty a. to b.co.. unfit for occupancy by l.ssee, the parti.. her.to, at th.ir option, may t.rminat. this lease, and 1..... .hall not be required to pay furth.r r.nt. In the event of da.ag. to the pr..is.., les.or .hall, at hi. sol. option, r..tor. the pr.mi... for occupancy by l.s...; all rent. b.ing abated during the p.rj~ of T.e~to~~tion. No~hinq in this lease .hall be .0 con.trued a. to be a r.l.a.. from the liability in the .v.nt that the 10.. or damaq. of the pr..i... shall b. cau..d by willful or negliq.nt act. of 1...... 19. Busi.... 8i9BS. All bu. in... .iqn., .iz., d..ign and location .hall b. con.i.t.nt with the law. of Th. City of S.ward. " il 'I II , ZOo Co.4eaAa~io.. If the leas.d prop.rty, or any part th.r.of, i. tak.n by emin.nt domain, this l.as. .hall expire on 5 . :1 , I I :1 the date when the leased property shall b. so rent shall be apportioned as off that date. award shall belonq to the lessee, except that for loss of lessee's business. taken, and the No part of any amount awarded 21. subl.ttiDg. premises. 22. A..igna.Dt of Rent.. The lessor shall have the riqht, without sellinq its interest in the leased property or assiqninq its interest in this lease, to assiqn from time to time the whole of the net rent at any time payable hereunder to persons, firms, corporations, trust, or other entities desiqnated by the lessor in a written notice to the lessee, and in any such case the lessee shall pay the net rent subject to the terms of this lease, to the lessor's desiqnee at the address mentioned in any such notice for the period covered by such assiqnment. The lessee may not sublet the 1. j 23. Liability for ..glig.De.. The lessor shall not be liable for injury or damaqe to person or property occurrinq within the leased property, unless caused by or resultinq from the neqliqence of the lessor, any of lessor's aqents, servants or employees in the operation or maintenance of the leased property or the buildinq containinq the leased property. Lessee aqrees to defend and hold lessor harmless from any and all claims suffered in or about the premises by any person and from expenses incurred by lessor in respect to any such claim, except as occasioned by the neqlect of lessor. " 24. IDd.anifieatioD by L...... If the lessor pays a sum of money for property damaqe or personal injury resultinq from the lessee's use of the premises, then the sum so paid by the lessor, toqether with all costs, damaqes, and reasonable attorney's tees, shall b. considered additional rent, due in the month succeedinq such payment and collectible at such time. 25. Li.D.. Lesse. will not permit any mechanics, lat or materialmen.' liens to stand aqainst the leased premia : improv.m.nt. tor any labor or materials furnished to lessee or claimed to have been furnished to lessee, or to lessee's aq.nt., contractors or sublessee., in connection with work of any character performed or claimed to have been performed on said pr..ise. or improvement. by or at the direction or suff.ranc. of lessee; provided, however, lessee shall have the riqht to contest the validity or amount of any such lien or claim of lien. In the event of such conte.t, lessee shall qive lessor reasonable security as may be determined by lessor to insure payment thereof and prevent any sales, foreclosure, or forf.itur. of the premise. or improvement. by reason of such nonpayment. if judqment shall be rendered aqainst lessee, such judqment shall be immediately .ati.fied by lessee and the lien r.l.a.ed at le....'. expen... 26. .otiee.. Any notic. und.r this leas. must be in writinq and must he 9~nt by certitied m~il ~~ cbe last addres~ of the party to who. the notic. is to b. qiven, as desiqnated by such party in writinq. Th. le..or hereby de.iqnates its addr... a. PO Box 670, Seward, Ala.ka. Th. le.s.e hereby de.iqnate. it. addr... a. PO Box 104783, Anchoraqe, Alaska 99501. 27. .aya.nt of R.nt. Le.... shall pay the rent herein reserved at the time and plac. h.r.in .pecified without notice or d.mand. 1 i I .1 'I 'I II II I i! .i I II ,I il :I :1 :1 'I .1 il ,I :I :1 q i i 1 I 6 . . . 28. Le..or'. ae.edie.. Th. specified remedies to which the lessor may resort under the terms of this lease are cUmulativ. and are not intend.d to b. exclusive of any other rem.die. or means of redre.. to which the lessor may be lawfully entitled in ca.. of any breach or threatened breach by the less.. of any provision or provision. of this lease. 29. .aiver. Th. waiver by lessor of any breach of any term., covenants, or condition. hereof shall not b. deemed to be a waiver of such term., covenants or condition., or of any subsequent breach of the same or of any other terms, covenants or condition.. The subsequent acceptance of rent by the lessor shall not be deemed to be a waiver of any preceding breach by the lessee of any term, covenant, or condition, other than the failure of the le.se. to pay the particular rent so accepted, regardless of the lessor's knowledge of such preceding breach at the time of acceptance of such rent. 30. aight of ~ir.t a.fu.al. Lessor hereby grants a right of first refusal to the le.... for the property for the term of this lea... Such right of first refusal .hall be available to le..e. if less.. is in complianc. with all terms, covenants, and condition. of this lea.. and the Mast.r Lease. In the event that lessor rec.iv.. an off.r for the purchase of his inter..t in said premi.es, th.n h. shall give lessee notice of the offer and it. term.. Les... shall have ten (10) days in which to match or better the off.r and terms of the offer to purcha... In the ev.nt l.ss.. does match or better the offer or term. of the offer to purcha.., then lessor shall sell to less.. and the part i.. .hall clos. the transaction within sixty (60) day.. :! In the event, how.v.r, that lessee fails to respond in writing within ten day. from d.livery of the notic. of the off.r by l.ssor, th.n l...or shall b. fr.. to go forward with the sale to the off.ror at the sam. or b.tt.r price and terms contained in the original off.r and lessee shall have no furth.r int.rest in the opportunity to purchase lessor's int.re.t in the property. 31. ADDual ..D...l. At the .nd of the second year of this lea.. and .ach year th.r.aft.r, 1..... will have the right to t.rminat. the lea.. for the following y.ar. This right shall be ex.rci..d by .ending a notice in writing to l.ssor on or before Oece.b.r 31 of the current y.ar indicating that lessee will terminate the l.a.. for the following year. Lessee shall continu. to b. liable for lea.. paym.nt. and all other cov.nant. and condition. und.r the t.rm. of this lease until the anniv.rsary date of this l.as. Which shall be May 1 of the fo11owing y.ar. In the .v.nt that writt.n notic. of l.s....s intent to t.rminat. i. not r.c.iv.d on or b.for. clo.. of busine.. Oec.~r 3tst, thp." l.ssee .b~ll be liable for the full amount of the r.nt for the y.ar following the n.xt anniv.rsary date of the l.a... In oth.r word., 1..... .ha11 have the right on or before O.c..b.r 31.t, 1993, to notify l...or of it. intent to t.rminat. the lea.e .ff.ctiv. on the n.xt anniv.r.ary date of the lea.e. Les.ee would then be re.pon.ible for the leasehold payment from January through April 30 of 1994. If the notice of intent to terminate i. not r.c.ived by the clo.. of business on O.c.mber 31, 1993, th.n the 1..... .hall be re.pon.ible for . I 7 the lease payments through the next succeeding anniversary date or April 30, 1995. Lessee shall be liable for the rent from May 1, 1994 through April 30, 1995. It is the intention of the parties that lessor shal. loose the rents payable during the summer months of each. _ during the term of this lease as a result of lessee's failure to provide notice of its intent to terminate. It is further specifically agreed that notice of termination, when provided by December 31st, shall give sufficient time to lessor to locate a new tenant for the summer months of the following year. 32. Intir. Agr....nt; MOdification; s.v.rability. This lease contains the entire agreement between the parties and shall not be modified in any manner except by an instrument in writing executed by the parties. If any term or provision of this lease or the application thereof to any person or circumstance shall to any extent, be invalid or unenforceable, the remainder of this lease, or the application of such terms or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this lease shall be valid and be enforced to the fullest extent permitted by law. 33. D.claration of Gov.rninq La.. This lease shall be governed by, construed, and enforced in accordance with the laws of the State of Alaska. 34. Bindinq Iff.ct. Th. covenants, terms, conditions, provision and undertakings sin this lease or in any renewals thereof shall extend to and b. binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto, as if they were in every case named and expressed, and shall be construed as covenants running with the land and wherev.r reference is mad. to either of partie. hereto, it shall be held to include and apply al, the heir., executor., administrators, successors and assigr. such party, as if in each and every cas. so expressed. ,I LES~R:/70 ~ ~ LESSEE: KENAI COASTAL TOURS, INC. BY: t~.V(- TIM R. ,res~dent SUB LEASE CONSENT APPROVED: ATTEST: THE CITY OF SEWARD :1 i BY: , LINDA S. MURPHY. CMC I AAE CITY CLERK (City Seal) TITLE: 'I :; Approved as to Form: PERKINS COlE. Attorneya the City of Seward for 7-~ M ~ 8 Fred B. Arvidson City Attorney