HomeMy WebLinkAboutRes2018-004Sponsored by: Hunt
CITY OF SEWARD, ALASKA
RESOLUTION 2018-004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A
NEW LEASE WITH EXIT MARINE, LLC FOR LOT 4 BLOCK 4
FOURTH OF JULY CREEK SUBDIVISION, SEWARD MARINE
INDUSTRIAL CENTER, KENAI PENINSULA BOROUGH, PLAT NO.
2017-13 SEWARD RECORDING DISTRICT, THIRD JUDICIAL
DISTRICT, STATE OF ALASKA
WHEREAS, the City is the owner of real property described as Lot 4 Block 4 Fourth of
July Creek Subdivision; and
WHEREAS, Exit Marine, LLC submitted a proposal to lease Lot 4 Block 4 Fourth of
July Subdivision for a boat repair yard; and
WHEREAS, the Council adopted Resolution 2017-043 recommending that the Kenai
Peninsula Borough approve the replat of City owned land of Lot 4 Block 4 Fourth of July Creek
Subdivision, which is now complete; and
WHEREAS, Exit Marine is currently conducting a boat repair business at Lot 4 Block 4
with under a one year lease approved by Council in resolution 2017-042; and
WHEREAS, Exit Marine has an approved Storm Water Prevention Pollution Plan from
DEC as required; and
WHEREAS, the City Manager has negotiated a long term lease agreement with Exit
Marine under the provisions of Seward City Code 7.05.410; and
WHEREAS, the lease request is consistent with the Comprehensive Plan and the Seward
Marine Industrial Center Development Plan.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA that:
Section 1. The Council has determined that the essential terms and conditions and the
method disposition of the proposed lease with Exit Marine, LLC for the real property described
as Lot 4, Block 4, Fourth of July Subdivision, located in the City of Seward, is in the public's
best interest.
Section 2. The City manager is authorized to execute a new lease with Exit Marine, LLC
in substantially the form as presented at this meeting.
CITY OF SEWARD, ALASKA
RESOLUTION 2018-004
Section 3. This resolution shall take effect thirty (30) days after its adoption.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this
22"� day of January, 2018.
THE CITY OF SEWARD, ALASKA
QD�aid ires, May
AYES:
Casagranda, Keil, McClure, Slater, Towsley, Horn, Squires
NOES:
None
ABSENT:
None
ABSTAIN:
None
ATTEST:
&",J, I
B enda J. Ballou, C
City Clerk
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Agenda Statement
Meeting Date: January 22, 2018
To: City Council
Through: Jim Hunt, City Manager
From: Norm Regis, Harbormaster
Agenda Item: Exit Marine, LLC New Lease at Lot 4, Block 4, Seward Marine Industrial
Center
BACKGROUND ,& JUSTIFICATION:
Council approved in Resolution 2017-012, effective September 12, 2017, a one-year lease to Exit
Marine of Seward Marine Industrial Center Lot 4 Block 4 for purposes of conducting a marine
repair business while pursuing a replat of the parcel to accurately describe a site for a long term
lease. Now that the platting process is complete, Exit Marine is requesting a twenty-year lease
with two five year options to extend for Lot 4 Block 4 Seward Marine Industrial Center.
In anticipation of a long term lease, but knowing that it is not guaranteed, Exit Marine has done
extensive ground work and paid for electrical infrastructure to be installed at the site prior to the
ground freezing, and has complied with all Code and policy requirements.
Exit Marine:
a.) Has a DEC approved SWPPP plan on file (AKR06AF21) as required.
b.) Shall continue to comply with all Seward City Code requirements.
The City Council has previously determined that land at SMIC is available for lease.
INTENT:
To approve a long term lease between the City of Seward and Exit Marine, LLC on Lot 4 Block
4 Fourth of July Creek Subdivision within the industrial zoning District, Seward Marine
Industrial Center for boat repair operations.
CONSISTENCY CHECKLIST:
Yes
No
NIA
1
Comprehensive Plan (document source here): This lease meets the plan
X
goals to develop SMIC as a major industrial area of the community.
Strategic flan (document source here): Attract New Industry:
2
Develop an aggressive marketing campaign which highlights the diverse
X
resources, and quality of life that make Seward a great place to live and
establish a business or industry. (Page 5
3.
Other (list):
FISCAL NOTE:
The annual lease rate, based on 8% of appraised market value is $7,200.00 plus tax. The next
periodic reappraisal of the parcel will be in 2020.
Approved by Finance Department: s
ATTORNEY REVIEW: Yes X No
RECOMMENDATION:
Approve Resolution 2018- authorizing the City Manager to approve a new lease with Exit
Marine, LLC.
THE STXrE
Cii)V ERN()R BILL WALKER
1/2/2018
Conservation
DIVISION OF WATER
Wastewater DischGarge AL11horizGatioia Prograiii
555 C'('Jrd('JVC) S1
Anch(Drage, AlOskO 99501-2617
Mc-)1 rr: 907.269.6285
Fc ax: 907.334.2415
Company: Exit Marine LLC Facility:
ATTN: Laura E Schneider Exit Marine LLC
PO Box 3752 3408 Morris Ave
Seward AK 99664 Seward AK 99664
Permit Number: AKR06AF21
This email/letter acknowledges that you have submitted a complete Notice of Intent form to be
covered under the APDES General Permit for Stormwater Discharges for Multi -Sector General
Permit Activity (Multi -Sector General Permit). The Permittee is authorized to discharge storm water
under the terms and conditions of this permit seven (7) calendar days after acknowledgement of
receipt of the permittee's completed NOI is posted on ADEC's Storm Water Permit Search website:
(http://www.dec.state.ak.us/Applications/Water/WaterPermitSearch/Search.aspx). Coverage under
this permit begins seven -days from the "Date Issued" on the Water Permit Search website.
As stated above, this letter acknowledges receipt of a complete Notice of Intent. However, it is not
an ADEC determination of the validity of the information you provided. Your eligibility for
coverage under the Permit is based on the validity of the certification you provided. Your signature
on the Notice of Intent certifies that you have read, understood, and are implementing all of the
applicable requirements. An important aspect of this certification requires that you correctly
determine whether you are eligible for coverage under this permit.
As you know, the Multi -Sector General Permit requires you to have developed and begun
implementing a Stormwater Pollution Prevention Plan (SWPPP) and outlines important inspection
and record keeping requirements. You must also comply with any additional location -specific
requirements applicable to your state or tribal area. A copy of the Multi -Sector General Permit must
be kept with your SWPPP. An electronic copy of the Permit and additional guidance materials can
be viewed and downloaded at ham://www.dec.state.ak.us/waterZwn>2sj2c/stormwaterZindex.htm.
For tracking purposes, the following number has been assigned to your Notice of Intent Form:
AKR06AF21
If you have general questions regarding the stormwater program or your responsibilities under the
Multi -Sector General Permit, please call William Ashton (907) 269-6283
Thank you for using the ADEC eNOI system.
May 2015
For Agency Use
Permit#: AKR06AF21
b���wa�iuNmcNTgtr
Notice of For StormDischarges
Associated With Industrial Activity Under the
4 srl %//lllla �� Multi -Sector APDES Permit ui
�rsarF n�.a�
Submission of this completed Notice of Intent (NOI) constitutes notice that the operator identified in Section I of this form requests authorization to
discharge pollutants to waters of the United States from the faciIityor site identified in Section III under Alaska's APDES Multi-SectorGeneraI Permit
(MSGP) for industrial storm water. Submission of this NOI constitutes your notice to DEC that the facility identified in Section III of this form meets the
eligibility conditions of Part 1.1 of the MSGP. Please read and make sure you comply with all eligibility requirements, including the requirement to
prepare a storm water pollution prevention plan. Refer to the instructions at the end of this form to complete your NOI.
Section (.Operator Information
Organization: Contact Person:
Exit Marine LLC Laura E Schneider
Mailing
Street (PO Box):
Address:
PO Box 3752
City: State: Zip:
Seward AK 99664
Phone: Fax(optional): Email:
(907) 671-7022 laura.schneider@mac.com
Section II.
Billing Contact Information
Organization: Contact Person:
Exit Marine LLC Laura E Schneider
Mailing
Street (PO Box):
Address:
Pp Box 3752
City: State: Zip:
Seward AK 99664
Phone: Fax(optional): Email:
(907) 671-7022 laura.schneider@mac.com
Section III.
Facility Information
Facility Name: Exit Marine LLC
Have storm water discharges from yours ite been covered previously under an APDES or NPDES Permit? ❑ Yes ❑✓ No
a. If Yes, provide the Tracking Number.
b. If Yes, have you paid a Multi -Sector General Permit (MSGP) authorization fee for this calendar year?❑Yes ❑ No ❑ N/A
c. If No, was your facility in operation and discharging storm water prior to September 29, 2013? ❑Yes ✓❑ No ❑ N/A
d. If No to "c ", did your facility commence discharging after September 29, 2013 and before the ❑ Yes ✓❑ No ❑ N/A
effective date of this permit?
Street: Borough orsimilar government subdivision
3408 Morris Ave Kenai Peninsula
City: State: Zip:
Seward AK 99664
Location
Address:
Latitude: Longitude: Determined By:
60.0866-149.3474 0 GPS ❑ USGS Topographic Map ❑ Other
If you used a USGS Topographic map, what was the scale?
Estimated area of industrial activity at your site exposed to storm water:? .9 (acres)
Is this a federal facility? Yes ❑ No p
MSGP NOI (May 2014) Page 1 of4
For Agency Use
Permit#: AKR06AF21
Section IV. Discharge Information
Does your faciIitydischargeintoa Muni cipa I Separate Storm Sewer System (MS4)?
❑ Yes 0 No
If yes, name of the MS4 Operator:
Receiving Water and Wetlands Information: (if additionalspace is neededfor this question, fill out Attachment 1.)
a. What is the name(s) of your receiving
water(s) that receive stormwater directly
and/or through a MS4?
If your receivingwater is impaired,then
identifythename ofthe impaired
segment,ifapplicable, in parenthesis
following the receiving water name.
b. Are any of your
discharges directly
into anysegment of
an "impaired"
water?
c. If you a nsweredyes to question b, then a nswer the following three questions:
i. What pollutant(s) arecausingthe
impairment?
ii. Are the
pollutant(s)causing
the impairment
presentin your
discharge?
iii. Has the TMDL
been completed for
thepollutant(s)
causingthe
impairment?
Yes
No
Yes
No
Yes
No
Fourth of July Creek
❑
p
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
❑
Federal Effluent Limitation Guidelines and Sector -Specific Requirements
a. Are you requesting permit coverage for anystorm water discharges subjectto effluent limitation
guidelines?
❑ Yes ❑
No
b. If ves. whi ch effl uent I imitation eui del ines a nnl v to vour storm water di scha ree?
40 CFR Part/Subpart
Eligible Discharges
Affected
Check if
MSGP Sector
applicable
Part411, Subpart C
Runoff from material storage piles at cement manufacturing
E
❑
facilities.
Runoff from phosphate fertilizer manufacturing facilities that
Part418,SubpartA
comes into contactwith anyraw materials, finished products, by-
C
❑
products, or waste products (SIC 2874).
Part423
Coal pile runoff at steam electric generating facilities.
O
❑
Part429, Subpart I
Discharges resulting from spray down or intentional wetting of
A
❑
logs at wet deck storage areas.
Part436, Subpart B, C, or D
Mine dewateri ng discharges at crushed stone mines,
❑
construction sand and gravel mines, or industrial sand mines.
Part443, Subpart A
Runoff from asphalt emulsion facilities.
D
❑
Part445, Subparts A & B
Runoff from hazardous waste and non -hazardous waste landfilIs.
K, L
❑
Part449,SubpartA
Runoff from Air Transportation
S
❑
If you a re a Sector S(Ai rTraIns portation) facility, do you anticipate usingmore than100,000gaIIonsof ❑Yes ElNo
glycol-baseddeicing/anti-icingchemicaIsand/or100tons ormore ofurea onanaverage annuaI basis?
Identify the 4-digit Standard Industrial Classification (SIC) that best represents the products produced
or services rendered for which your facility is primarily engaged, as defined in MSGP: 3731
Identify the applicable sector(s) and subsector(s)ofindustrial activity, includingco-located industrial a ctivity, for whi ch you are
requesting permit coverage:
Sector Subsector Sector Subsector Sector Subsector
R- R1
I s your s i te presentl y i na cti ve or unstaffed? ❑Yes 0 No
a. IfYes, is your site expected to be inactiveandunstaffedforthe entire permitterm? ❑ Yes ❑ No
b. If No to "a", then indicate the length of time thatyou expect your facility to be inactiveand unstaffed:
Section V. Storm Water Pollution Prevention Plan (SWPPP) Contact Information
SWPPP Contact Name: Email:
Laura E Schneider laura.schneider@mac.com
Phone: URL of SWPPP(ifapplicable):
(907) 671-7022
MSGP NOI (May 2014) Page 2 of4
For Agency Use
Permit#: AKR06AF21
Section Vill. Certification Information
I certify under pena Ity of I awthat thi s document and al I attachments were prepared under my direction or supervision in
accordancewith a system designed to assure that qualified personnel properly gathered and evaluated the information
submitted. Based on my inquiry of the person or persons who manage the system, or those persons direct I yresponsi blefor
gatheringthe information,the information submitted is,tothe bestof my knowledge andbelief,true, accurate,andcomplete. I
am aware that there are sign ifi cant pena I ties for submitting fa Ise information, including the pos s i bi Iity of fine and imprisonment
for knowing violations.
Laura E Schneider
Site Manager
Printed Name Title
Signature Page Signed by: Laura E Schneider
1 /2/2018
Signature Date
Exit Marine LLC laura.schneider@mac.com
Organization Email
Section IX. NOI Preparer (Complete if NOI was prepared by someone other than the certifier.)
Laura E Schneider
Printed Name
Exit Marine LLC
Organization
laura.schneider@mac.com
Email
Section X. Document Attachments
Documents attached with this application:
Site Manager
Title
(907) 671-7022
Phone
2018 Exit Marine SWPPP.pdf
Attachment A - General Location Map.pdf
Attachment B - Site Map.pdf
Attachment C - Additional SWPPP Documentation.pdf
MSGP NOI (May 2014) Page 3 of4
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Sponsored by: Planning and Zoning Commission
CITY OF SEWARD, ALASKA
RESOLUTION 2017-043
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, RECOMMENDING KENAI PENINSULA
BOROUGH APPROVAL OF THE CITY OWNED FOURTH OF DULY
CREEK SUBDIVISION, SEWARD MARINE INDUSTRIAL CENTER
(SMIC), EXIT MARINE REPLAT; CREATING A NEW LOT TO BE
KNOWN AS LOT 4, BLOCK 4, EXIT MARINE REPLAT, LOCATED
WITHIN THE INDUSTRIAL ZONING DISTRICT
WHEREAS, Lang and Associates has prepared and submitted a preliminary replat of
City owned Block 4, Fourth of July Creek Subdivision; and
WHEREAS, the replat is to be known as I..,ot 4, Block 4, Fourth of July Creek
Subdivision, Seward Marine Industrial Center (SMIC) Exit Marine Replat; and
WHEREAS, this platting action subdivides Lot 3, Block 4, Fourth of July Creek
Subdivision, SMIC, creating a two (2) new parcels; to be known as Lot 4 and the remainder as
Lot 3A, Block 4, involving approximately 11.850 acres; and
WHEREAS, the properties of this replat are located within the Industrial Zoning District
(1); the minimum lot size and lot width as required by City Code have been met; and
WHEREAS, Exit Marine has requested a long-term lease of the area to be known as 1lot
4, Block 4; and
WHEREAS, Block 4 is currently serviced by private roads, some municipal water,
sewer, electric and other utilities; therefore no subdivision installation agreement shall be
required; and
WHEREAS, the replat protects and provides easements for existing and planned
utilities and access throughout the replat area; and
WHEREAS, City staff have reviewed, commented and voiced no concerns with the
Fourth of July, SMIC Raibow Replat; and
WHEREAS, the Seward Planning and Zoning Commission held a public hearing on July
18, 2017 and approved P&Z Resolution 201.7-1.0, recommending Council and the Kenai
Peninsula Borough approve the Fourth of July Creek Subdivision, Seward Marine Industrial
Center, Exit Marine Replat to the Kenai Peninsula Borough; and
WHEREAS, all. conditions required by Seward City Code § 16.01.015, Conditions to plat
gppLoval, were met; the property owners and leaseholders within 300 feet of the requested replat
CITY OF SEWARD, ALASKA
RESOLUTION 2017-043
were notified of the proposed subdivision, and the property was posted with public notice
signage; and
WHEREAS, in accordance with Seward City Code Section 16.01.015 (B), no
preliminary plat of city -owned property may be submitted to the Kenai Peninsula Borough for
approval without prior consent of the City Council.
NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning
Commission that:
Section 1. The Seward City Council recommends the Kenai Peninsula Borough Planning
Commission approve the Fourth of July Creek Subdivision, Seward Marine Industrial Center,
Exit Marine Replat to the Kenai Peninsula Borough.
Section 2. This resolution shall take effect 30 days after passage and posting
as required by Seward City Code§ 7.05.145.
PASSED AND APPROVED by the Seward Planning and Zoning Commission this 140'
day of August 2017. 1
THE CITY OF SEWARD, ALASKA
can tr-
AYES:
Casagranda, Keil, Squires, McClure, Altermatt, Slater, Bardarson
NOES:
None
ABSENT:
'None
ABSTAIN:
None
ATTEST:
JI hanna Kinn4, MMc
_City Clerk
,%1b (OF
(City Seal) .. . .....
Poff,*%cr
ae SEAL oi
or
Council Agenda Statement
Meeting Date: August 14, 2017
To: City Council
c
Through Jim Hunt, City Manager
Ron Long, Assistant City Manager
From: Jackie C. Wilde, Planner
Agenda Item: Resolution 2017-043 recommending City Council and Kenai
Peninsula Borough approval of the Fourth of July Creek
Subdivision, Seward Marine Industrial Center, Exit Marine Replat
BACKGROUND & JUSTIFICATION:
Attached for the Council's review and recommendation to the Kenai Peninsula Borough is a
preliminary plat submitted by Lang and Associates on behalf of Exit Marine. In accordance with
Seward City Code (SCC) 16.01.015(B) "No preliminary plat of City -owned property may be
submitted to the Kenai Peninsula Borough Planning Commission for approval without the prior
consent of the City."
This replat is located within the Seward Marine Industrial Center (SMIC). This platting action
subdivides Lot 3, Block 4, Fourth of July Creek Subdivision, SMIC, Raibow Replat creating two
(2) parcels to be known as Lot 3A and the new Lot 4, Block 4, involving approximately 11.850
acres. The properties of this replat are located within the Industrial Zoning District (I); the minimum
lot size and lot width as required by City Code have been met.
The new Lot 4 will be under a long-term lease to Exit Marine. When the platting action is
completed the lease agreement with Exit Marine will be brought before the Council for approval.
The Planning and Zoning Commission held a public hearing on On July 18, 2017 and approved
resolution 2017-10, recommending City Council and Kenai Peninsula Borough approve of the
Fourth of July Creek Subdivision, Seward Marine Industrial Center, Exit Marine Replat.
SUBDIVISION REVIEW:
Zoning:
The replat is within the Industrial Zoning District. Current development surrounding this replat
includes the Vigor Industrial, Communications North and the City boat storage yard parcels.
Utilities:
The replat area is currently serviced by private roads, some municipal water, sewer, electric and
other utilities are available; no subdivision installation agreement shall be required.
Existing Uses:
Block 4 currently contains the private Lot 1 A, owned by Pat Marrs, Communications North. Lot
2 is currently leased by Raibow Fiberglass & Boat Repair, LLC. The large Lot 3 includes the
SMIC Harbormaster Building and the City's boat storage yard.
CITY OF SEWARD
Agenda Statement — Resolution 2017-043
Page 2 of 2
Flood Zone:
The area is within a Flood Zone D, which are areas of undetermined flood hazards.
CONSISTENCY CHECKLIST:
Yes
No
N/A
Comprehensive Plan (2030, approved by Council May 30, 2017)
3.5 Port and Harbor Development (page 15)
1. Section 3.5.1.1 Encourage the growth and development of an efficient,
X
functional harbor that meets Seward's commercial and recreational
needs.
2.
Strategic Plan (1999)
X
Seward City Code:
16.01.015. Conditions to plat apprqyW.
3.
b) No preliminary plat of city -owned property may be submitted to the
X
Kenai Peninsula Borough planning commission for approval without
the prior consent of the city council.
Seward Marine Industrial Center Development Plan (April 2008):
4
Land Use (page 5)
X
1. Maintain accurate maps through the survey and plat amendment for
all current and future leases. (Development)
Staff Comments:
All staff and administration concerns have been addressed and all City department heads
recommend approval of this preliminary replat.
Fiscal Note:
Replat costswerepaid by Exit Marine in preparation of long term lease agreements.
Approved by Finance Department:
ATTORNEY REVIEW: Yes No X N/A
RECOMMENDATION:
Approve Resolution 2017-043 recommending Kenai Peninsula Borough approval of the Fourth
of July, Seward Marine Industrial Center, Exit Marine Replat, subject to the condition listed in
the resolution.
Sponsored by: Hunt
CITY OF SEWARD, ALASKA
RESOLUTION 201.7-042
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, APPROVING A LEASE AGREEMENT FOR UP TO ONE
YEAR WITH EXIT MARINE, LLC FOR LAND AT THE SEWARD
MARINE INDUSTRIAL CENTER
WHEREAS, Exit Marine, LLC is currently working in the City's boat storage yard
located at the Seward Marine Industrial Center (SMIC) and wishes to extend their business long
term.; and
WHEREAS, Exit Marine, LLC desires a long term lease and has initiated the plat
process for a parcel of land located at SMIC; and
WHEREAS, the plat process takes a minimum of several months, and the company
wishes to continue operating their business while the replat is taking place, and
WHEREAS, Exit Marine LLC would like to lease this parcel. for tip to one year or until
a long term lease can be negotiated and approved by the City Council upon final approval of the
plat; and
I WHEREAS, the lease request is consistent with the Comprehensive Plan and the Seward
Marine Industrial Center Plan.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA that:
Section 1. The Council approves the agreement to lease approximately 41,055 square
feet to Exit Marine, LLC. J'he term of the agreement shall not exceed one year and such short-
term lease shall not be considered a commitment by the City to approve any subsequent lease.
Section 2. 'Phis resolution shall take effect 30 days after adoption,
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of
August, 2017.
CITY OF SEWARD, ALASKA
RESOLUTION 2017-042
THE CITY OF SEWARD, ALASKA
dean Bardarson, Mayor
AYES: Casagranda, Keil, Squires, McClure, Alterrnatt, Slater, Bardarson
NOES: None
ABSENJ': N r one
ABSTAIN: None
EVIVACIN
(City Seal)
s %% 6666sta" *"
,*of v
AL
C
Agenda Statement
Meeting C. August 14, _20 17
To: City Council
Through: Jim Flunt. City Manage
From Norm Regis, I-larborniaster
Agenda Item One Year Lease, Exit Marine, LLC
Approxii-nately,942 acres of` Landat Say IC
'BIAM"'KS."ROUND & JUSTIFICATION:
Exit Marine, LJ,.(' is starting as new boat repair business in Seward. '['he business has the
necessary fimancing to develop the approximately 942 acre proposed lease site located in the
northeast portion of the City Storage yard at the Seward Marine Industrial Center, Exit Marine
desires long term lease of this site, but the replat necessary to create the lease parcel will take a
minimum of several months. In order to be operational this season Exit, Marine wishes to enter
into as month to nionth lease of up to one year in anticipation of as long term lease after the plat
process is finished, Attached Exhibit A shows the pat -eel.
Exit Marine would like to have the electric utilities in the ground prior to winter, and understands
that if the C ouncil does not approve t'lle future long -tern lease that any ffinds spent installing the
in-grround electrical service are not refundable.
The purpose of this lease is to allow Exit Marine use of the land for the time necessary to
complete the Platting process in anticipation of as long term lease which may or may not be
approved by the Seward City Council.
INTENT:
To approve a month to month agreement for up to one year to lease land to Exit Marine, I.LC at
smic.
CONSISTENCY CHECKLIST: Yes No N/A
- - --------
lU Comprehensive Plan (document source here) This lease meets tile plan X
goals, to develop SMICas a major industri,al areaot"thecommunity.
Strategic Plan (document soterce here): Attract New Industry:
Develop art aggressive marketing campaign which hiejIlights the diverse
resources, and quality of life that make Seward a great place to live and X
establish a business or industry, (Pae S)
3 tether I i s t)
FISCAt, NOTE:
The rent is $600,00 Per as plus tax. 'The lease rate is based on the 2015 appraisal of a nearby
I
parcel, with incConreases since that time based on the sumer Price Index.
Approved by Finance Department- xi-eatiz)
ATTORNEY' REVIEW: Yes X_.. -.,. No..
RECOMMENDATION:
Approve Resolution 2017- authorizing the City Manager to approve as one-year lease
with Exit Marine, I.L.C.
PERSONAL GUARANTEE
To induce the City of Seward, P.O. Box 167, Seward, AK 99664
enter into a Lease Agreement with Exit Marine, LLC, 281 S Conquest Circle, Wasilla,
Alaska 99623 effective September 14, 2017, the undersigned personally guarantees
payment of all obligations of Exit Marine as described in the Lease Agreement. The
Lease Agreement covers the following real property:
Lot 4, Block, 4, Fourth of July Creek Subdivision, Seward Marine
Industrial Center, Kenai Peninsula Borough, Plat No. 2017-13 recorded
in the Seward Recording District, Third Judicial District, State of
Alaska., containing approximately 39,577 square feet, more or less.
I agree to provide the City with written notification of any changes in my
address, and acknowledge that any notice required to be given by the City will be
effective if mailed to the address shown below or such changed address on file with the
City,
My guarantee is absolute and unconditional. Upon default of Exit Marine under
the Lease Agreement, I agree to immediately become liable: for Exit Marine's
obligations. The City need not seek performance, payment, and collection from Trust
before seeking payment from me. If more than one p erson guarantees payment, I agree to be jointly and severally liable with all other guarantors for payment.
Dated this day of & / —, 2017.
Signed in my individual capacity as guarantor:
0"--7,P
5>
Mike] Saunders
Exit Marine, LLC
281 S Conquest Circle
Wasilla, AK 99623
amll A" Mll
mll
Effective Date: 2018
ARTICLE I - LEASED LAND .......................................................................................... ....... _3
l.}
Description ofLeased Land ............................... ---- ~............................................
3,
1.2
Cowwmsn/ mfTitle .................. ............. ..................
3
1.3
Reserved ..................................... .--,.............................................. ..........................
3
1'4Property
...................................................... —'----'—~~'—'^—^'~—'4
1.5
Permits .......... ^..................................................................... _—.............................
4
1.6Platting
.......... ...... --- ................................................................ —_......................
4
1.7
Development mf'Leased Land
4
ARTICLE2~
LEASE TERM ........ ........... ............................................................ ........ ...........
5
2.1
Lease Term ........................................ ................................................................. ...
5
ARTICLE3-RENTAL
RATE ..................... .—........ ............................... ......................... ......
5
3.1
Initial Rental Rate ...................................................................................................
5
3.2
Rental Adjustments --.'--'----'--'--'''—~-----'----^---'-----5
3.3
Prmccoure/brRental A ......................... ^..................................................
6
3.4
E/Pct qf Late Appraisal hnCITY ........................................... —...........................
6,
3.5
Appraisal bmLESSEE .... ............................................................... .........................
h
3.6
Effective Date ofAdjusted Rental Rate ............. ........................... .......... ..............
7
3.7
Interim Rental Adjustments ............................. ......................................................
7
3.8
Late ----.—''_----------^~~---'-------''8
ARTICLE 4-USE
OF LEASED LAND ... -............. ...............................................................
8
4.1
Use ofLease,d Land .................................... -_......................................................
8
4.2
.................................... .....................................................
8,
4.3
No Preferential Rights $mUse Public Facilities ......................................................
8
4^4
Adequacy ofPublic Facilities ................................................................ ................
8
4.5
and Other Service Fees ...................................................... ..........................
g
4.6
TXmmf6r Payment of Utilities and Taxes ....................................... ........ _.............. 9
4`7
Other Uses ..---_—_.—___---_—_---.—._—_—_—._--..-_.._--9
ARTICLE 5-
UTILITIES AND RIGHTS ONFACCESS ................... ....................................
9
5.8
Utilities ....................................... -'--........... ...................................................... 9
52
................ _... ,....................... .................................
l0
5.3
Easements ............................... ... .......................................................................
]Q
ARTICLE 6-
CONSTRUCTION BYLESSEE .... ..................................................................
11
6.1
Improvements on Leased Land ..............................................................................
11
6.2
City Review .--~------_---_—................
ARTICLE 7-RETURN
OF LEASED -_..----_---.....
12
7]
Return qfLeased Land in Original C omaition.......................................................
}2
ARTICLE 8-FORCE
MA]EURE..... .................. ................................................. .—_........
l2
ARTICLE 9-LESSEE'S
ACTS OF DEFAULT .....................................................................
l3
ARTICLE 10-
REMEDIES FOR DEFAULT BY LESSEE L_—_.—._-------..........
l4
ARTICLE 11-
TITLE TO IMPROVEMENTS INSTALLED BYLESSEE ............ ........ ...l5
11.}
Real ....................... .................................. ......................
l5
11
11.2 Personal Property —...----.----.—_---------._—.---._—_—..I0
ARTICLE 1.2- ASSIGNMENT OR SUBLEASE....................... .—....... ........ ^................. .....
l6
12L1or... ......... —................ ........ ..........................
]6
12-2 Assignment of Lease for Security ...................................................................,.....16
12.3 Assignment to Affiliate —_----.—_---_—_---_._.-__.^-.._...^.—l7
ARTICLE 13 - LESSEE'S DUTY TO DEFENDANDEMNIFY ........... ................................
l7
ARTICLE 14 ~ CITY'S DUTY TO ..................................................
17
ARTICLE 15- INSURANCE ...--.--_.----.—_-----._------_---_---_l7
15.1 Minimum /nxzozcxce Requirements .................................................. ....................
l7
15-2 Subrogation Rights Waived ...................................... ............................................
ls
ARTICLE 16- CONDEMNATION ................................. .......................................... ....... ...
Iq
ARTICLE 17- ARBITRATION ......... ................ ........ —_.—_----............ ........ .............
l4
17.8 Arbitration ................................. ..................... _................ -... ...................... .-10
ARTICLE 18- MAINTENANCE AND REPAIRS ... ....................... .....................................
70
18.1 Norma/ Maintenance ---.._----.—_--.--._._..—_--.--.,....—...20
18.2 Saftm/{ssuez...........................................................................................................
2|
18.3, Cost .------_-----_—.—.—~---...--.—_--._----2I
ARTICLE 19- ENVIRONMENTAL CONCERNS --..—.-.----_—_--_..--........
19.1 Hazardous Materials ....................... ....................... ... --- ....... ~...... ............ .... -22
19.2 Permits and Reporting.. .................... ...................... ..................... ................... ...
24
ARTICLE 20- ESTOPPEL CERTIFICATES..... .... ..............................................................
25
ARTICLE 21- CONDITIONS AND COVENANTS ...............................................................25
ARTICLE 22-NO WAIVER OF BREACH .................. .........................................................
25
ARTICLE 23 - TIME OF THE ESSENCE ........... ..................................................................
25
ARTICLE 24- COMPUTATION OFTIME ........... ...............................................................
25
ARTICLE 25- SUCCESSORS IN INTEREST .......................................................................
Z5
ARTICLE 26-ENTIRE —._-----.---------------._.----25
ARTICLE 27- GOVERNING LAW ............................................ —_..... .-.............. .-~... .26
ARTICLE 20-PARTIAL INVALIDITY .......... -...................... ................ ......... ... -............
76
ARTICLE 29 - RELATIONSHIP OF PARTIES .... ........... .................. .................................
26
ARTICLE 30- INTERPRETATION.. ....... ......... ......... .................. ...... ,...................... .......
26
ARTICLE31~CAPTIONS ..... ............ ........ ..........................................................................
26
ARTICLE 32- AMENDMENT .......................................................... .......................... ..........
26
ARTICLE 33-NOTICES _......-........ .......................... .... ................................................ _27
Exhibit B - Environmental Compliance Plan
Exhibit C - Leased Parcel
N
V I �, �k-:
K �&�, ��A 2t,1101041111A "I
THIS LEASE AGREEMENT (the "LEASE") is made by and between the CITY OF
SEWARD (the "CITY"), a municipal corporation located in the Kenai Peninsula Borough, State
of Alaska, who's mailing address is P.O. Box 167, Seward, Alaska 99664 and Exit Marine, LLC
(the "LESSEE"), an Alaska corporation whose mailing address is 281 S Conquest Circle,
Wasilla, Alaska 99623.
VVHEREAS, LESSEE has indicated its desire to lease the property known as Lot 4,
Block 4, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula
Borough, Plat No. 2017-13 recorded in the Seward Recording District, Third Judicial District,
State of Alaska, consisting of approximately 39,577 square feet, moreor less; and
WHEREAS, it is the intent of this LEASE to transfer from. CITY to LESSEE the entire
burden of compliance with environmental regulations or controls with respect to LESSEE's
operations on the Leased Land.
11OW TNEMF*RE, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
1.1 Description of'Leased Land. The Leased Land is located in the City of Seward., Alaska.
The Leased Land isdescribed as follows:
Lot 4, Block 4, Fourth of July Creek Subdivision, Seward Marine Industrial Center,
Kenai Peninsula Borough, Plat No. 20 17-13 recorded in the Seward Recording District,
Third Judicial District, State of Alaska, consisting of approximately 39,577 square feet,
rvore or less.
1.2 Covenant of Quiet Enjoyment, Warranty of Title. Subject to the encumbrances as of the
date hereofany reasonable restrictions imposed on the Leased Land as part of recording
of a plat by CITY, and the provisions of this LEASE, CITY hereby covenants and
warrants that LESSEE shall have the quiet enjoyment and possession of the Leased Land
for the fall tern-i of this LEASE.
13 Reserved.
0
1.4 Property Accepted "As -is. " LESSEE acknowledges that it has inspected the Leased Land
and accepts the same "as -is" and without reliance on any expressed or implied
representations or warranties of CITY (other than the representations in Section 1.2
hereof), or agents of CITY., as to the actual physical condition or characteristics thereof
and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A
hereto.
1.6 Platting. In the event CITY elects to replat, CITY agrees to include the Leased
Land in such replat in accordance with the description in Section 1.3. If LESSEE
requests a replat of the Leased Land prior to that time, CITY shall assist LESSEE in the
preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's costs
in assisting with the preparation and filing of the replat. LESSEE agrees to sign the plat
and any other documents necessary to complete the platting orreplatting of any area
including all or a portion of the: Leased Land. LESSEE shall accept reasonable
restrictions, easements, or plat notes as may be required by CITY or other governmental
authorities as a condition to, filing the plat of the Leased Land or the plat of CITY -owned
real property adjacent to the Leased Land.
L7 Development of"Leased Land. LESSEE shall continue operate a vessel storage
and maintenance facility through the term of the lease. LESSEE understands that
construction and operations of its marine -related business is a mqjor consideration for th++
Ir7
CITY's agreement to the lease the Leased Land to LESSEE. LESSEE shall not operate
any other unrelated business on the Leased Land without the consent of the CITY.
a) CITY may withhold its consent as to any proposed business or activity which, in
CITY's sole discretion, is not desirable or compatible with the CITY's operation of
the Seward Marine Industri,?,l Center.
b) In accordance with the provisions of Article 12, no assignment or sublease shall be
permitted, unless approved in writing by CITY. Any sublease shall be expressly
subject and subordinate to this Lease and the rights of the CITY hereunder. The CITY
may elect to not approve any proposed assignment or sublease that might result in a
business or activity thatin the CITY's sole discretion, is undesirable and/or
incompatible with the CITY's Seward Marine Industrial Center.
Lease Term. The term of this LEASE (the "Lease Term"') shall, be in accordance with
CITY's authorization in Resolution No. 2018- (the "Resolution"). The Lease Term
shall run for approximately 20 years from the Effective Date, ending at midnight on
March 14, 2037. LESSEE shall have the right to extend the term of this LEASE for two
additional five (5) year periods, provided that:
a) LESSEE exercises its option to extend at least one hundred and eighty (180) days
prior to the expiration of the then current lease: term;
b) LESSEE is not in default under any term or provision of this LEASE; and
c) LESSEE shall exercise its options to extend by sending written notice in
accordance with the provisions of Article 33 of this LEASE.
3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through June 30;,
2018, the annual rental rate for the Leased Land shall be set at $7,200.00, Rent shall be
payable quarterly in advance upon the Effective Date of this Lease (prorated for the
balance of the: current quarter) and thereafter on or before the 20th day of the month
beginning each calendar quarter: January 20, April 20, July 20 and October 20. The
amount of each quarterly Payment shall be one -quarter of the annual rental rate as
initially established or later adjusted under this Article 3.
3.2 Aental Adjustments. The annual rental payment shall be adjusted on July 1, 2020, and on
the same date every five years thereafter (each a "Rental AdJ1ustment Date"), The
k,
a 1 usted annual rental payment to be paid under the terms of this Lease shall be the
appraised fair market rental value (the "Fair Market Rental Value") of the Leased Land at
the highest and best use of the Leased Land. The highest and best use of the Leased Land
shall be determined without regard to LESSEE's intended or actual use of the Leased
anunless that use is coincidentally the highest and best use of the Leased Land. CITY
shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not
less than ninety (90) days before each Rental Adjustment Date.
3.3 Procedure for Rental Adjustment. To adjust the rent as of any successive Rent
Adjustment Date, CITY shall, at its own expense, retain an independent State of Alas
certified NIAI appraiser (Member, Appraisal Institute), who shall determine the "Fa
Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive
improvements placed thereon by LESSEE but inclusive of all improvements made b
CITY (including those made before or subsequent to this LEASE). The appraiser's repo
shall be delivered to LESSEE not less than ninety (90) days before the Rental Adjustme
Date. The appraiser's determination of Fair Market Rental Value of the Leased Lan
shall constitute a final binding determination of the Fair Market Rental Value and t
adjusted annual rental rate until the next Rental Adjustment Date, unless LESSEE objec
to CITY's appraiser's determination of the Fair Market Rental Value, In that cas
LESSEE shall give written notice to CITY of its objection within thirty (30) days
receipt of the appraiser's report, and LESSEE shall then engage an independent State
Alaska certified MAT appraiser (Member, Appraisal Institute) at LESSEE's expense t
make an appraisal of the Fair Market Rental Value in accordance with this Article 3.
If LESSEE's appraisal determines a Fair Market Rental Value that varies from that
determined by CITY's appraisal by no more than twenty percent (20%), then the adjusted
rental rate shall be the: average of the rental rates determined by the two appraisals. If
LESSEE's appraisal determines a Fair Market Rental Value that varies from CITY's
appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a
rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in
accordance with the arbitration provisions contained in Article 1. 9 of this LEASE.
,feet of'Late Appraisal by CITY, If, for any reason, CITY does not complete the
appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the
Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy
of the appraisal report to LESSEE at any time thereafter. However, any such adjusted.
annual rental rate shall not be effective until the quarterly payment due date immediately
following the date CITY delivers the appraisal report to LESSEE.
3.5 Appraisal by I.E,�SEE. If, for any particular Rental Adjustment Date, CITY fails to
obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report
to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent
State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE's
I'M
WIL11111 Wifty k3l) V-1 Me appiralsers report, anct =I—=sa 7rien engagic an
independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at
CITY's expense to make an appraisal of the Fair Market Rental Value as of the Rental
Adjustment Date and in accordance with this Article 3. If the CITY's appraisal
determines a Fair Market Rental Value that varies from that determined by LESSEE's
appraisal by no more than twenty percent (20%), then the adjusted rental rate shall be the
average of the rental rates determined by the two appraisals. if the CITY's appraisal
determines a Fair Market Rental Value that varies from LESSEE's appraisal by more than
twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the
adiusted annual rental rate of the Leased Land shall be determined in wzcordancq w-.WWkv-
arbitration provisions contained in Article 19 of this LEASE.
3.6 Efftefive Date of'Adjusted Rental Rate. The adjusted annual rental rate established b
this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy
the appraisal report to LESSEE no later than ninety (90) days before the Rent
Adjustment Date, If the adjusted annual rental rate is based on CITY's late appraisal..
late delivery of'the: appraisal repoit to LESSEE, the adjusted rental rate shall be effecti
beginning with the quarterly rental payment due date immediately following the date t
CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the exerei
by either CITY or LESSEE of the objection procedure relating to rental adjustme
described in this Article: 3 shall not postpone LESSEE's obligation to pay rent at the r
established by CITY. LESSEE shall pay the arnount of rent as established or adjusted b
CITY until the question of objection to the rental rate is finally resolved. At such ti
the objection to the rental rate is resolved, an appropriate credit or adjustment shall
made: retroactive to the date the new rental rate was established by CITY or in cas
where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSE
to the Rental Adjustment Date.
3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustme
Date, excepting the Rental Adjustment Dates, the annual rental payment shall
increased beginning July 1, 2018 and on July 1 of every year thereafter (each on "Interi
Rental Adjustment Date") in an amount that reflects ihe increase, if any, in the cost
living for the previous, year as stated in the Consumer Price Index, All Urban Consumer
Anchorage, Alaska Area, All Items 1967=100 ("CPI"), as published by the United Sta t
Department of Labor, Bureau of Labor Statistics for the most recent period publishe
immediately prior to the Interim Rental Adjustment Date. In no event shall the rent
less than the previous year. If the CPI is revised or ceases to be published, the CIT
shall instead use such revised or other index as most nearly approximates the CPI for t -
7
relevant period, and make whatever adjustment in its application as may be necessary, in
the CITY's sole discretion, to accomplished as nearly the same result as if the CPI had not
been revised or ceased to be: published.
(.8 Laic, Payment Charge. Rental payments not received by the due date shall bear interest
until paid at a rate of 1.0.5% per annum, or the maximum rate permitted under Alaska
law, whichever is less, plus a flat monthly late fee of $2.50, or such amount as may be
established from time to time by CITY ordinance or resolution and relating to late fees
fA r CITY leases generally.
4.1 Use of Leased Land. CITY has limited. land available for lease. Use of the Leased Land
by LESSEE has been determined by the City Council of CITY to, be in the public interest.
LESSEE may use the Leased Land for boat storage and boat repair work.
4.2 Obligations ofLESSEE. LESSEE may use the Leased Land only in accordance with
applicable CITY zoning code provisions and provided the following conditions are met:
z) The Leased Land is to be completely cleaned and restored to its original
condition, that is, the condition existing prior to this LEASE or in better condition
upon termination of this LEASE.
b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous
Materials on the Leased Land except as permitted in Article 19 of this LEASE.
C) LESSEE shall not use the Leased Land in any manner or construct any facilities
thereon which would bit the use of adjacent or other lands.
4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE
any exclusive rights to use any public port facilities constructed or operated by CITY.
LESSEE will be subject to any tariffs, procedures, rules , and regulations of CITY
concerning the use of such facilities as they may now exist or from time to time be
amended, and LESSEE shall not be entitled to any exclusive use.
4.4 Adequacy of"Public Facilities. CITY makes no representations or warranties as to the
fitness of any particular part or the whole of CITY's public facties for the uses intended
by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the
facilities are sufficient for the intended uses by LESSEE. CITY makes no representations
M
1111VA 1019PA 01102016
4.5 Tarifif� and Other Service F ees. Crf Y 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
pro ided only that it does not impose any greater burden or higher rate upon LESSEE vi
than upon any other similar user of the public facilities.
4.6i Timefor Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes relat
to operations on the Leased Land and LESSEE's interest in this LEASE
improvements thereon, if any, before such obligations become delinquent; provided,
LESSEE may, in good faith and before such delinquency, contest any such charge
assessment. I
4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other an4
additional tenants for space, including those who would be in competition with LESSEE
or who might be interested in leasing the Leased Land should this LEASE be terminated
for any reason.
4.8 Use of Public Docks and Port Facilities. Public docks are subject to port and harbor
rules and regulations as adopted by City Council..
M
oversizing pipe or electrical conduit shall be limited to the difference between the
supplier's price to provide the size required to serve its facility and the price of the
oversized material required by CITY or utility company.
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 on the Leased Land, it being the intent of
the parties that the risk of obtaining required permits be solely a risk undertaken by
LESSEE.
5.2 Third -Party Improvements. At the request of LESSEE, CITY shall, from time to time,
execute and deliver, or join in execution and delivery of, such documents as are
appropriate, necessary, or required to impose upon the Leased Land in accordance with
the terms of this LEASE covenants, conditions, and restrictions providing for the granting
of uses of the Leased Land, or any part thereof, the establishment of party walls, the
establishment of mutual and reciprocal parking rights or rights of ingress or egress, or
other like matters (herein called "third -party improvements"), all of which are for the
purpose of the orderly development of the Leased Land as a commercial unit subject,
however, to the conditions that:
a) All such matters shall be limited to the Lease Term and shall terminate upon
termination of this LEASE for whatever reason.
b)i Any such matters of a pen-nanent nature extending beyond the Lease Term shall
not be granted without the prior written approval of CITY, In any of the
foregoing instances referred to in this Section, CITY shall be without expense
therefor, and the cost and expense thereof shall be bome solely by LESSEE.
C) At the expiration of the Lease Term (including any extended period) third -party
improvements on the Leased Land other than portable equipment shall become
the property of CITY without the payment of any compensation to LESSEE.
51.3 Easements. In order to provide for the orderly development of the Leased Land an#!
adjacent lands, it may be necessary, desirable, or required that street, railroad, water,
sewer, drainage, gas, power line, and other easements and dedications and similar rights
be granted or dedicated over or within portions of the Leased Land. As additional
consideration for this LEASE, CITY and LESSEE each shall, at the request of the other,
join with each other in executing and delivering such. documents -from time to time and
throughout the Lease Term as may be appropriate, necessary, or required by the several
governmental agencies (including the City of Seward), public utilities, and other users or
tenants of CITY Imid for the purpose of granting such easements and dedications;
provided, however, that such easements and dedications and similar rights do not
unreasonably interfere with LESSEE's operations. The costs of locating or relocating any
ME
public easements or restrictions of record including any relocation of public road,
railroad, utility, or other easements shall be at the sole cost and expense of the party
requesting the relocation, CITY shall not refuse reasonable requests for such relocations
provided those relocations do not interfere with or inhibit the overall development of
CITY property or other public property, Any easements or rights of access granted to
LESSEE by CITY need not be exclusive to LESSEE.
6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alte-0
remodel, reconstruct, rebuild, build, and/or replace buildings and other improvements
the Leased Land, subject to the following conditions: I
a) The cost of any construction, reconstruction, demolition, or of any changes,
alterations, or improvements, shall be borne, and paid for by LESSEE.
b) The Leased Land shall at all times be kept free of mechanic's and materialmen's
liens.
LESSEE shall provide CITY with a copy of all building plans and specifications
and a site development plan or plans (based on a recent survey) for the Leased
Land prior to commencement of construction.
d) LESSEE is solely responsible for resurveying and locating improvements on the
Leased Land in such manner not to violate building setback requirements or
encroach into, 62lits-of-ways or easements. On completion of any improvements,
LESSEE shall provide CITY a copy of an as -built survey depicting the
improvements as, completed on the Leased Land.
e) Any general contractor employed by LESSEE shall be appropriately bonded by
use of performance and labor and material payment bonds in the customary form
when cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS
Copies of all such bonds shall be furnished to CITY prior to
commencement of construction. If the cost of the wor.k is less than FIFTY
THOUSAND DOLLARS ($50,000), LESSEE shall provide CITY, if no
performance and labor and material bonds are pro,vided by LESSEE, any
necessary assurances 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 orPerson that is an "affiliate" of LESSEE as such
term is defined in AS 10.06.990(2) or Alaska limited liability company in which
LESSEE maintains a substantial membership interest, a perfonnance bond shall
M
be required when the cost of the work is equal to or exceeds FIFT Y THOUSAND
DOLLARS ($50,000).
f) CITY may, as contemplated by Alaska Statutes, give notice of non -responsibility
for any improvements constructed or effected by LESSEE on the Leased Land.
g) LESSEE shall comply with all federal, state, and local statutes and regulations
with respect to such construction, including, but not limited to, all applicable
building, mechanical, and fire codes.
6.2 CityReview of Construction. CITY shall have the right to review initial plans, including
those supplied to CITY under Section 6.1 hereof, and any future changes or additions to
LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the
commencement of construction. CITY shall have the right to comment upon that design
and to require LESSEE to make reasonable changes 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 I-.acility 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 be solely responsible for completing all improvements according to LESSEE's plans,
and specifications and shall bear all risk, responsibility, and liability for properly
surveying the Leased Land before construction and to place all improvements on the
Leased Land without encroaching upon any land, easements, rights -of -way, or setback
requirements. LESSEE shall obtain the usual and customary performance guarantees
from its contractors, and CITY shall be named as an additional insured.
7.1 Return of'Leased Land in Original Condition. Subject to the provisions of Article
herein, upon. termination of this LEASE for any reason, LESSEE shall return the Leased
Land to CITY in the same condition as at the commencement this LEASE, subject to
normal, non -abusive use. The Leased Land shall be free of all Hazardous Materials and
contamination arising out of or resulting from or occurring during LESSEE's operations
or use of the Leased Land during this LEASE.
In the event either LESSEE or CITY is delayed from performance of any of 1
obligations under this LEASE due to acts of nature, acts of the enemies of the United States
America, sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosio
earthquake/tsunami, civil disturbance, or war, the time period wherein such performance ils
occur shall be extended by that amount of time necessary to compensate for the delay. I
a
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, any one
or more of the following events:
1% 1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20)
days from the due date thereof, the rent required to be paid under this LEASE.
9.3 Failure by LESSEE to observe, fulfill or perform any covenants, conditions,
agreements on its part to be observed or performed under this LEASE, other th
payment of rent or compliance with Section 4.1, for a period of thirty (30) days aft
written notice specifying such failure, requesting that it be remedied, and stating that it
a notice of default, has been given to LESSEE by ary; provided, however, that if s
default is such that it cannot be corrected within the applicable period, it shall n
constitute an act of default if corrective action is instituted by LESSEE within t
applicable period and diligently pursued until the default is corrected. I
9.4 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 insolvent 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 urider 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 un-dismissed for a period of six (6) months
from the date of commencement thereof.
9.5 Violation by LESSEE of any laws or regulations of the United States, of the State of
Alaska and 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 applicable to LESSEE's use of the Leased Land, 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 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
allegeI 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 effect of the interim administrative or
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judicial action is to cause a stoppage, interruption, or threat to the activities of any person
or entity other than those of LESSEE.
9,6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the
public rights of way clear.
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 all in addition to any rights and remedies that may be given to CITY by
statute, common law, or otherwise:
10.1 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 45.29.601-.628) with respect to sale of property shall be a
commercially reasonable disposal.
10.2 CITY may re-enter the Leased Land and take possession thereof and, except for any
personal property of LESSEE which CITY has waived its right to distrain Linder Section
10.1 above, remove all personal property of LESSEE from the Leased Land. 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.
a) Declare this LEASE terminated;
b) Collect any and all rents due or to become due from subtenants or other occupants
of the Leased Land;
C) Recover from LESSEE, whether this LEASE be terminated or not, reasonable
attorney's fees and all other expenses incurred by CITY by reason of the breach or
default by LESSEE;
d) Recover an amount to be due immediately on breach equal to the unpaid rent for
the entire remaining term of this LEASE.
C) Recover all damages incurred. by CITY by reason of LESSEE's default or breach,
including, but not limited to, the cost of recovering possession of the Leased
M
Lanct, expenses ot rej ing, me fig Cos : - ficteswdly-ref I If ' I
of the premises, reasonable attorney's fees, and any real estate commissions
actually paid.
f) Remove or require the removal of any improvements constructed without CITY
approval or constructed contrary to site development plans approved by CITY and
recover all costs and expense incurred by CITY to remove violating
improvements.
10.4 If LESSEE does not immediately surrender possession of the Leased Land after
termination by CITY and upon demand by CITY, CITY may forthwith enter into and
upon and repossess the Leased Land and expel LESSEE without being deemed guilty in
any manner of trespass and without prqJudice to any remedies which might otherwise be
used for arrears of rent or breach of covenant.
10.5 No expiration or terinination of this LEASE shall expire or 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.
10.6 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 any one or more of the rights and remedies
provided7for 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.
10.7 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.
11.1 Real Property Improvemeints. All improverfients constructed by LESSEE or its
predecessors on the Leased Land or on easements to or from. the same, such as buildings,
warehouses, conveyor systems, ditches, sewer lines, water lines, dikes or bernis and
similar improvements, shall become the property of CITY upon termination of this
LEASE for any reason; provided, however, that CITY may require LESSEE to remove
any improvements designated by CITY and without cost to CITY.
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11.2 Personal Property. 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, in no event later than ninety (90) days from the termination of the LEASE, trade
fixtures and equipment from the Leased Land provided that LESSEE shall repair any
damages to the Leased Land caused by such removal.
ARTICLE 12 - ASSIGNMENT OR SUBLEASE
12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been
detennined to be in the public interest by the City Council of CITY for the reasons set
forth in the approving Resolution. The rights and duties created by the LEASE are
personal to LESSEE and CITY has granted the LEASE in reliance Lipon the individual
character and financial capability of LESSEE. Therefore, LESSEE shall not assign or
sublease this LEASE without CITY's prior written consent, in CITY's sole discretion.
12.2 Assignment of'Lease for Security. Notwithstanding Section 12. 1. above, LESSEE may
assign, encumber, or mortgage its interest in this LEASE or in-.1provements on the Leased
Land, by deed of trust or other security instrument, to an institutional lender ("Lender")
for development of or operations on the Leased Land, provided that Lender shall be
subject to all obligations of LESSEE under the terms of this LEASE upon foreclosure.
CITY shall furnish Lender, at the address provided toCITY by Lender in writing, with
notice of any default or breach of LESSEE under this LEASE. Lender shall have the
right (without being required to do so and without thereby assuming the obligations of
LESSEE under this LEASE) to make good such default or breach within thirty (30) days
after written.notice specifying such breach. 'Notwithstanding the provisions of Article 10
above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after
such notice is furnished to Lender; provided,
a) If Lender, with respect to anydefault or breach other than a failure to make any
requireA payment of rent or other money, shall undertake within thirty (30) days
after notice to cure the default or breach and shall diligently and in good faith
proceed to do so, CITY may not terminate this LEASE or relets the Leased Land
unless Lender.fails to cure the default or breach within a reasonable period of time
thereafter; and
b) If the defaultfor which notice is given is a breach of Section 9.3, CITY shall not
exercise any of the remedies afforded to it under Article 10 above so long a's
LESSEE or Lender remains in possession of the Leased Land and satisfies
LESSEE's obligations under the tenns of this LEASE. Upon foreclosure or other
assertion of its security interest, Lender may further assign, transfer, or dispose of
its interests, provided that any subsequent assignee, purchaser, or transferee shall
remain bound by each and every term of this LEASE.
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12.3, Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this
LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska
limited liability company in which LESSEE maintains a substantial membership interest;
provided, however, that LESSEE's full faith and credit shall remain obligated under this
LEASE as though the assignment had not taken place.
LESSEE shall defend, indemnify, and hold harmless CITY, its officials, employees,
agents, and contractors from any and all liability or claims for damages, including personal
injuries, environmental damage, death and property damage arising out of or resulting from
LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees,
assignees--a�,N,ents. contractors or the ��orublic.. exceTyt for daynkcga-dmin -, from the sole negliaence
or willful acts or omissions of CITY, its �officials, employees, agents, or contractors. If any
action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE
shall notify CITY promptly in writing of such action or proceeding.
CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or
claims for damages, including personal injuries, death, and property damage arising from the
sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or
contractors.
15.1 Minimum Insurance Requirements. Prior to commencement of the Lease: Tenn or
LESSEFS occupancy of the Leased Land, LESSEE shall procure and maintain, at
LESSEE's sole cost and expense, comprehensive: commercial general liability insurance
with limits of liability of not less than TWO MILLION DOLLARS ($2,000,000) for all
injuries and/or deaths resulting to any one person and TWO MILLION DOLLARS
($2,000,000) limit from any one occurrence. The comprehensive commercial general
liability insurance shall include coverage for personal iqjury, bodily injury, and property
damage or destruction.. Coverage under such policies of insurance shall include collapse
and underground property damage hazards. Contractual liability insurance coverage in
the amount of not less than TWO MILLION DOLLARS ($2,000,000) is also required.
AN
IMUM, some] fail —
LESSEE shall also maintain workers' compensation insurance as required under Alaska
law.
The minimum amounts and types of insurance provided by LESSEE shall be subject to
revision at the sole discretion of CITY in accordance with standard insurance practices, in
order to provide continuously throughout the term of this LEASE and any extensions
hereof, a level of protection consonant with good business practice and accepted
standards in the industry. Such factors as changes in the type of or extent ofuse of the
Lease Land, 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 shall notify LESSEE of any required 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 33 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 B+
or better). CITY shall be listed as an additional insured under all insurance policies.
LESSEE shall fumish CITY, on forms approved by CITY, certificates evidencing that it
has procured the insurance required herein prior to the occupancy of the Leased Land or
operation by LESSEE. Insurance policy deductibles are subject to approval by CITY.
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. The minimum insurance requirements under this LEASE shall not act to
illtv fVT-71i "1146"' Iii 616 EE's dutv to defend
OF is DIM
15.2 Subrogation Rights Waived To the extent permitted by law, LESSEE hereby releas
CITY, its elected and appointed officials, employees and volunteers, and others worki
on behalf of CITY from. any and all liability or responsibility to LESSEE or anyo
claiming through or under LESSEE by way of subrogation or otherwise, for any loss
any kind (including damage to property caused by fire or any other casualty), even if su..
loss shall have been caused by the fault or negligence of the CITY, its elected
appointed officials, employees or volunteers, or others working on behalf of the ar
This provision shall be applicable and in full force and effect only with respect to loss
damage occurring during the time of LESSEE's occupancy or use (including LESSEE
occupancy or use: prior to the Effective Date of this LEASE), and LESSEE's policies
insurance shall contain a clause or endorsement to the effect that such release shall n
adversely affect or impair such policies or prejudice the right of LESSEE to recov
thereunder except as against CITY (including its elected and appointed o
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LESSEE's occupancy or use. LESSEE agrees that its policies of insurance will include
such a clause or endorsement.
'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
cA ndemning 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 makel
good faith determination as to whether or not the taking of the part of the Leased La
i.esignated for condemnation will prevent it from continuing to operate on the Leased Land .
LESSEE deten-nines in good faith that the condemning of such part of the Leased Land wil rimvent it from continuing to operate on the Leased Land, LESSEE may notify CITY ir
to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) daA
from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE sh
specify in its notice, and such termination shall be treated in the same manner as a termination
the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to su
termination, remove all encumbrances, debts, and liens to which the Leased Land is subject. If
the time of such partial taking for public use, LESSEE deterrnines that such partial taking wi
not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitab
and partial abatement of the rent beginning to be effective on the actual date when LESSEE
effectively prevented from utilizing the condemned land.
ITI Arbitration.
a) Disputes between the parties with respect to the performance of this LEASE that
cannot be resolved by the parties, shall be submitted to an independent arbitrator
for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act
(AS, 09.43.010 et. seg.), as it now exists or may hereafter be amended from time
to time, and judgment on the award may be entered in any Superior Court in the
State of Alaska. Notwithstanding the -foregoing, arbitration shall not be
applicable to claims or disputes involving a requested remedy having a value of
more than FIFTY THOUSAND DOLLARS ($50,000) (exclusive of interest and
costs). All demands for arbitration and all answering statements thereto that
include any claim must contain a statement that the total sum or value in
controversy, as alleged by the party making such demand or answering statement,
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is not more than FIFTY THOUSAND DOLLARS The arbitrator will
not have Jurisdiction, power, or authority to consider or make findings (except to
deny jurisdiction) concerning any claim, counterclaim, dispute, or other matter in
question where the amount in controversy of any such claim, counterclaim,
dispute or matter is more than FIFTY THOUSAND DOLLARS ($50,000). The
costs and expenses of arbitration shall be shared equally by the parties, and each
party shall bear its own attorney's fees and costs.
b) Arbitration procedures shall be applicable only to contract, negligence, and
similar claims arising from or related to this LEASE, and shall not be used to
resolve or determine any claim based upon fraud, intentional misrepresentation,
nor any claim based on conduct that is a felony crime in the State of Alaska.
C) Written notice of requests for arbitration of disputes may be served by either party
to this, LEASE upon the other party. Aibitration of any dispute or claim shall be
determined by a single arbitrator selected from a list of not less than five (5)
arbitrators obtained from the presiding Superior Court Judge or other appropriate
judicial officer in Anchorage, Alaska. The arbitrator shall be a person who (a) has
not less than five (5) years legal experience in the State of Alaska prior to
appointment; and (b) such legal experience includes substantial experience with
long-term commercial real property transactions. Each party shall be provided
with a copy of the list and shall be afforded a maximum of ten (10) working days
to become familiar with the qualifications of the prospective arbitrators. The
arbitrator shall be selected by each party, commencing with the party demanding
the arbitration, striking one name fro�m the list until only a single name remains.
d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other
location as the: parties mayagree. Each party shall produce at the request of the
other party, at least thirty (30) days in advance of such hearing, all documents to
be submitted at the hearing and such other documents as are relevant to the issues
or likely to lead to relevant information.
e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law,
and the written decision shall be supported by substantial evidence in the record.
Failure to apply Alaska law, or entry of a decision that is not based on substantial
evidence in the record, shall be additional grounds for modifying or vacating an
arbitration decision.
18.1 Normal Maintenance, During the entire terin of this LEASE and every extension hereof,
if any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased
Land, including aiiy improvements placed thereon by LESSEE, in as good condition as
on
received or constructed by LESSEE, subject to normal, non -abusive use. 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 •Land, exclusive of
improvements placed thereon by LESSEE, in order to prevent erosion, mitigate damage
to plants and animals, or prepare the Leased Land for eventual development by LESSEE
or others by grading, filling, or contouring the Leased Land. Any such work perfon-ned
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 maintain in first class condition
at all times all fire, pollution, and other protective equipment, if any are placed on Leased
Land,
18.2 Safeity 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
sucV �eficie*cies.
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 perforrn 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.
18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as
being necessary or, advisable or reasonable to protect the public facilities on adjacent
land, it may submit the matter to arbitration; provided, however, that pending the decision
of the arbitrator it shall fully comply with the maintenance requests. If an arbitration
award should ultimately find that the repairs were not necessary then LESSEE may either
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 in light of the highest standards ir
the industry.
If any facility or service provided by CITY to the Leased Land 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 Land or operations
"I
therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or
reimburse CITY for such work at the option of CITY.
t) Condition of Site. LESSEE has had full opportunity to examine the site for the
presence of any Hazardous Material and accepts the site in "as is" condition.
LESSEE may elect, at LESSEE's sole cost, to conduct a baseline soils test prior to
execution of this LEASE.
b) Release of CITY. Any other provision of this LEASE to the contrary
notwithstanding, LESSEE releases CITY from any and all claims, demands,
penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses
(including, without limitation, attorney's fees, court costs, litigation expenses, and
consultant and expert fees) arising prior to, during, and after the term of this
LEASE, and resulting from the use, keeping, storage, or disposal of Hazardous
Material on. the Leased Land by LESSEE or its predecessors in interest, or arising
out of or resultina from LESSEE's operations at the Leased Land or the operations
of its predecessors in. interest at the Leased Land except for those claims arising
out of CITY's sole negligence or intentional misconduct. This release includes,
without limitation, any and all costs incurred due to any investigation of the
Leased Land or any cleanup, removal, or restoration mandated by a federal, state,
or local agency or political subdivision or by law or regulation.
C) Use of Hazardous Materials on the Site.
i) LESSEE shall not cause or permit any Hazardous Material to be brought
upon, kept, or used in or about the Leased Land except for such Hazardous
Material as is necessary to conduct LESSEE's authorized use of the
LeQsed Land.
ii) Any Hazardous Material permitted on the Leased Land as provided in this
paragraph, and all containers therefor, shall be used, kept:, stored, and
disposed of in a manner that complies with all Environmental Laws or
other laws or regulations applicable to such Hazardous Material.
iii) LESSEE shall not discharge, leak,, or emit, or permit to be discharged,
leaked, or emitted, any material into the atmosphere, ground, ground
water, sewer system, or any body of water, if such material (as reasonably
determined by the City, or any governmental authority) does or may,
pollute or contaminate the same, or may adversely affect the (a) health,
IN
welfare, or safety of persons, whether located on the Leased Land or
elsewhere; or (b) condition, use, or enjoyment of the Leased Land or any
other area or personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and
expenses related to the use, storage, and disposal of Hazardous Material
kept or brought on the: Leased Land by LESSEE, its authorized
representatives and invitees, and LESSEE shall give immediate notice to
CITY of any violation or potential violation of the provisions of this
subparagraph.
d) Indemnification of'CITY. Any other provision of this LEASE to the contrary
notwithstanding, LESSEE shall defend, indemnify, and hold CITY harmless from,
and against any claims, demands, penalties, fines, judgments, liabilities,
settlements, damages, costs, or expenses (including, without limitation, attorney,
consultant and expert fees, court costs, and litigation expenses) of whatever kind
or nature, known or unknown, contingent or otherwise, arising out of or in any
way related to:
i) The presence, disposal, release, or threatened release of any such
Hazardous Material which is on or from the Leased Land, soil, water,
ground water, vegetation, buildings, personal property, persons, animals,
or otherwise;
ii) Any personal injury (including wrongful death) or property damage (real
or personal) arising out of or related to such Hazardous Material or any
use of the Leased Land;
iii) Any lawsuit brought or threatened, settlement reached, or government
order relating to such Hazardous Material or any use of the Leased Land;
and/or
iv) Any violation of any laws applicable thereto; provided, however, that this
Section 19.1(d) shall apply only if the acts giving rise to the claims,
demands, penalties, fines, judgments, liabilities, settlements, damages,
costs, or expenses (1) occur prior to or during the term of this LEASE; and
(2) arise, in whole or fafrom the use of, operations on, or activities
on the Leased Land by LESSEE or LESSEE's predecessors in interest,
employees, agents, invitces, contractors, subcontractors, authorized
representatives, subtenants,, or any other persons. The provisions of this
subparagraph shall be in addition to any other obligations and liabilities
LESSEE may have to CITY at law or equity and shall survive the
a
transactions contemplated herein and shall survive the termination of this
LEASE.
e) Operator. For all purposes, LESSEE shall be deemed the operator of any facility
on the Leased Land.
Hazardous Material Defined. As used in this LEASE, Hazardous Material is any
substance which. is toxic, ignitable, reactive, or corrosive of which is regulated by
any Environmental Law. Hazardous Material includes any and all material or
substances, which are defined as industrial waste, hazardous waste, extremely
hazardous waste, or a hazardous substance under any Environmental Law.
Notwithstanding any statutory petroleum exclusion, for the purposes of this
LEASE, the term Hazardous Material includes, without limitation, petroleum,
including crude oil or any fraction thereof, petroleum soaked absorbent material,
and other petroleum wastes.
g) Environmental Law Defined. As used in this LEASE, Environmental Laws
include any and all local, state, and federal ordinances, statutes, and regulations,
as now in force or as, may be amended from time to time, relating to the protection
of human health and the environment, as well as any judgments, orders,
injunctions, awards, decrees, covenants, conditions, or other restrictions Or
standards relating to same. Environmental Laws include, by way of example and
not as a limitation of the generality of the foregoing, Alaska Statutes Title 46, the
Resource Conservation and Recovery Act of 1976, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Clean
Water Act, and the Superfund Amendments and Reau&rization Act of 1986.
19.2 Permits and Reporting.
a) Permits Re,quired by Other Governmental Agencies. LESSEE shall obtain 611
permits or approvals required by any applicable law or regulation. Copies of all.
such permits shall be provided to CITY prior to LESSEE commencing work
under this LEASE. LESSEE shall promptly make all reports to any federal, state,
or local government or agency required by any permit or Environmental Law,
including reports of any spill or discharge of Hazardous Material. The CITY,
through the City Manager, may order LESSEE to immediately cease any
operations or activities on the Leased Land if the same is being carried out
without necessary permits, in violation of the terms of any permit or
Environmental Law, or contrary to this LEASE.
b) Correspondence With and Reports to Environmental Agencies. LESSEE shall
immediately (the same or the next business day) provide CITY with copies of all
correspondence and notice, including copies of all reports between LESSEE and
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any state, federal, or local government or agency regulating Hazardous Material
which relates to LESSEE's operations on or use of the Leased Land.
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.
All the provisions of this LEASE shall be construed to be "conditions" as well as
11coveriants," as though the words specifically expressing or imparting covenants and conditions
were used in each separate provision.
No failure by either CITY or LESSEE to insist upon the strict performance by the oth'"
or condition of this LEASE or to exercise anp right or remedo
upon a breach thereof, shall constitute a waiver of any such breach or of such terms, covenant'
or conditions. No waiver of anv breach shall affect or alter this LEASE, but each and eve
term, covenant, and condition Wthis LEASE shall continue in full force and effect with respe
to any other then existing or subsequent breach.
�Xft 113211
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.
I.P2-TICLE 25 - SUCCESSORS IN INTEREST
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.
ARTICLE 26 - ENTIRE AGREEMENT
W
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.
This LEASE shall be governed by, construed, and enforced in accordance with the laws
of the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and
Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter
amended, including, without limitation, Chapter 7.05 of the Seward City Code.
ARTICLE 28 - PARTIAL 1117AUTITT
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.
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.
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 opportunity to seek assistance of counsel in drafting and reviewing this LEASE.
Captions of the articles, paragraphs, and subparagraphs 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.
FEW RIVID-41irw, F1111111,11,1111,11
This LEASE is not subject to amendment except in writing executed by No parties
101
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 Article
and to suchother persons and addresses as either party may designate. Notice by mail shall be
deemed to have been given at the time of mailing.
All notices, demands, and requests ftom LESSEE to CITY shall be given to CITY at the
following address:
City Manager
CITY OF SEWARD
PO Box 167
Seward, Alaska 99664
All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the
following address:
Exit Marine, LLC
281 S. Conquest Circlq
Wasill,a, Alaska 99623
Each party shall have the right, from time to time, to designate a different address by
notice given in conformity with this Article.
LESSEE shall, at its sole cost, risk, and expense, provide fire detection and protection to
its operations on the Leased Land and fire prevention to industry standards for risks to adjacent
facilities such that those risks are minimized. LESSEE shall continue to provide and maintain
industry accepted standards of fire protection such that the City of Seward's ISO rating is, not
degraded by reason of LESSEE'S operation. The parties agree that with the rapid expansion of
technology in the field of fire prevention and control LESSEE's obligations hereunder may vary
during the term of this LEASE and CITY may submit LESSEE's compliance with its obligation
hereunder to arbitration not more frequently than once each five (5) years.
27
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates
herein set forth.
CITY: LESSEE:
CITY OF SEWARD EXIT MARINE, LIBC
Jim Hunt, City Manager
Date:
ATTESI':
w
I
STATE OF ALASKA
)ss.
THIRD JUDICIAL DISTRICT
STATE OF ALASKA
) ss.
THIRD JUDICIAL DISTRICT
The foregoing instrument was acknowledged before me this SrO day of
2018, by Mikel Saunders who executed the fore�join_g document on behalf of Exit Marine:, LLC'
MOMW
ILI
Notary Public I in and for Alaska
My Commission, Expires: 10Z-0 2—\
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