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HomeMy WebLinkAboutRes2022-046 Resurrection Bay Seafoods Lease Sponsored by: Bower Public Hearing: April 11, 2022 CITY OF SEWARD,ALASKA RESOLUTION 2022-046 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW 20 YEAR LEASE WITH 2 FIVE-YEAR OPTIONS TO EXTEND WITH PACIFIC RESURRECTION BAY SEAFOODS FOR PARCEL 14823009 AND PARCEL 14823010 IN THE SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA, CONSISTING OF APPROXIMATELY PARCEL A 19,756 SQUARE FEET AND PARCEL B 33,572 SQUARE FEET,MORE OR LESS WHEREAS, Pacific Resurrection Bay Seafoods Inc. has been a large part of the Seward community for a long time; and WHEREAS, the City of Seward and Pacific Resurrection Bay Seafoods Inc., entered into Lease No 91-07 on September 6, 1991, which the lease has been transferred through an estoppel certificate; and WHEREAS,the current lease expired on September 30, 2021; and WHEREAS, Pacific Resurrection Bay Seafoods Inc. has submitted a request to renew the ground lease with the City of Seward; and WHEREAS,the City Manager and administration has negotiated a new 20-year lease with 2 five-year extensions with Pacific Resurrection Bay Seafoods Inc. which will, among other things, incorporate standard lease language for City leases which represent substantive changes to the lease language as compared to the lease initially approved in 1991. NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA,that: Section 1. The City Council hereby approves a new lease for Portion of ATS 174(Parcel A&B),between the City of Seward and Pacific Resurrection Bay Seafoods Inc., expiring March 29,2042 with two 5-year options to extend, in substantial form as attached hereto. Section 2. The City Manager is authorized to execute a new lease with Pacific Resurrection Bay Seafoods Inc. Section 3. This resolution shall take effect thirty(30)days upon adoption. CITY OF SEWARD, ALASKA RESOLUTION 2022-046 PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 11`h day of April, 2022. T E I AR ASKA isty Terry, ayor AYES: Casagranda, McClure, DeMoss, Osenga, Wells, Calhoon, Terry NOES: None ABSENT: None ABSTAIN: None ATTEST: Brenda J. Ball , MMC City Clerk (City Seott.� OF.S FLji,Q�. V�•.••09Po :0% • •'.G it` = • ( SEAL `•• • P • • .tiF OF A� •••., City Council Agenda Statement Meeting Date: April 11, 2022 To: City Council From: Janette Bower, City Manager Agenda Item: Resolution 2022-046: Authorizing the City Manager to Enter into a New 20 Year Lease with 2 Five-Year Options to Extend with Pacific Resurrection Bay Seafoods for Parcel 14823009 and Parcel 14823010 in the Seward Recording District, Third Judicial District, State of Alaska, Consisting of Approximately Parcel A 19,756 Square Feet and Parcel B 33,572 Square Feet, More or Less Background and justification: The Seward City Council approved the initial lease for Seward Marine Services,on October 23, 1991, for a thirty-year term with no options to extend. The initial lease was for Parcel A 19,756 square feet and Parcel B 33,572 square feet more or less; with an amendment by Estoppel Certificate dated March 6, 2006, as evidenced by an Assignment and Assumption of Lease recorded July 1, 1996. Lease(91-70) expired on September 30, 2021. Pacific Resurrection Bay Seafoods Inc. has requested a new thirty-year ground lease. The City Manager and administration has negotiated a new 20-year lease with two five-year extensions, the new lease also incorporates standard lease language which has been added to all City leases since the original Seward Marine Services lease was approved thirty years ago (i.e. lease appraisals; annual CPI rental adjustments, etc.). The current lease payment is $8,400; this would be reduced according to the amount of lease credits applied, it could also change with the 2022 yearly CPI or upon the new appraisal in 2025. Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: p 23/ 3.5.1.1 Encourage the growth and development of an efficient, functional boat harbor that meets Seward's commercial and recreational needs Strategic Plan: Page 6/ Attract New Industry - Develop an aggressive marketing campaign which highlights the diverse resources and quality of life that make Seward a great place to live and establish a business or industry Other: N/A Certification of Funds Total amount of funds listed in this legislation: $ 8,400 This legislation (✓): X Creates revenue in the amount of: $ 8,400 Creates expenditure in amount of: $ Creates a savings in the amount of: $ Has no fiscal impact 32 Funds are (✓): Budgeted Line item(s): x Not budgeted 11000- 2000-5000 Not applicable Unassigned Fund Balance and Available Unrestricted Cash Balance Information Fund (✓): General SMIC Electric Wastewater X Boat Harbor Parking F1 Water Healthcare Motor Pool Other Unassigned Fund Balance*: $ *unaudited numbers Available Unrestricted Cash Balance*: $ Finance Signature: )tf Attorney Review,/ Administration Recommendation X Yes X Adopt Resolution Not applicable Other: 33 ESTOPPEL CERTIFICATE This Estoppel Certificate is entered into this if' day of 11MCH,2006,by the City of Seward. RECITALS: A. The City of Seward("City"),as landlord,and Seward Marine Services, Inc.("Original Tenant"),as tenant,entered into that certain Lease Agreement("Original Lease")dated September 6, 1991 for certain premises more particularly described therein("Premises"). The Original Lease was evidenced by a Memorandum of Lease, dated October 25, 1991,and a subsequent Lease Memorandum Amendment,dated January 30, 1992. The Original Lease was amended by that certain Second Amendment to Lease,dated October 1, 1995. (Collectively,the foregoing shall be referred to as the"Lease".) B. Original Tenant assigned its interest in the Lease to Wards Cove Packing Company,an Alaska corporation,pursuant to that certain Assignment of Lease,dated November 1995. Wards Cove Packing Company subsequently assigned its interest to 2-3,LLC,an Alaska limited liability company,pursuant to that certain Assignment and Assumption of Lease Agreement,dated February 23,2003. (2-3,LLC has since changed its corporate name to Resurrection Bay Seafoods,LLC ("RBS")). C. As of the date hereof,RBS is the valid and legal tenant under the Lease. D. RBS and Pacific Resurrection Bay,Inc.,an Alaska corporation("Pacific"),have entered,or will enter,into a Purchase and Sale Agreement,whereby RBS will sell to Pacific the Resurrection Bay Seafoods plant. As part of the sale of the Resurrection Bay Seafoods plant,RBS intends to assign its interest in the Lease to Pacific. Consent by the City to this assignment is not required under the Lease,unless RBS desires to be released from liability under the Lease which RBS has not elected to do. E. Pacific requests this estoppel certificate as a condition of its purchase of the Resurrection Bay Seafoods plant. NOW THEREFORE,the City certifies as follows: 1. Lease. The Lease,a copy of which is attached hereto as Exhibit A.is a true,correct and complete agreement between City and RBS with respect to the Premises. The Lease has not been modified or amended,orally or in writing,except pursuant to amendments attached hereto as part of Exhibit A. No agreement or obligation of any kind with respect to the Premises exists between the City, as landlord,and RBS, as tenant,under the Lease except for the Lease attached hereto. 2. Expiration of Term. The term of the Lease expires on,unless terminated earlier as provided in the Lease(such as tenant default),September 30,2021. 3. Rent. Rent is based on the fair market rental value of the Premises,adjusted every five(5)years under the procedure set forth in Article 3.3. The last fair market rental adjustment appraisal dated April 12,2005 did not require a change in the current rate which became effective January 1,2006,and the next fair market rental adjustment will occur in July,2010. The current annual rent is$3,200.00. 4. Prepaid rent or securily deposit. RBS has not prepaid any rent or made a security deposit except as specifically set forth in the Lease. (00392403.DOC;2) l 36 5. No defaults. The Lease is in effect and there is no existing monetary default on the part of City or RBS and to the City's knowledge,there is no non-monetary default,claimed default or failure of any performance required by either City or RBS or any outstanding non-monetary obligations of City or RBS due under the Lease. CITY OF SEWARD By: (1 3 Clark Corbridge, City M ger ATTESTED BY: , r J ewis, CM ,Ci C rk Cit of Seward, •,, arRT V � /�1( • //7� c9 a, Tom/y...Aw `'bar YLn_ro!+}Mi (00392403.DOC,2) 7 37 12:21:07 p.m.03-23-2o72 1 1 19672243723 E��II'2 `24�2'i 11: 31D 190 224 "2-':3 RESURD-7IONSAY SEAFD PAGE O1i'3F CITY REVISIONS DATED 3/29/2022. AMENDED AND RESTATED LEASE AGREEMENT between CITY OF SEWARD, ALAS A aDd Pacific Resurrection Bay Seafoods. Effective Date: 38 12,2 LEI-p,M.03-23-2022 2 19072243723 03/''/2022 11: 39 19072243723 RESURECTIONEAV SEAFD PAGE 02/35 "TABLE OF CONTENTS ARTICLE 1-LEASED LAND-• 1.1 Description ofLeased Land........................ ...... ............. ............ . .............. ............ ..... � 1.2 Covenant of Qjz etEryoyrnent; Warranty of Title. 1 1.3 Proper-tyAccept d............. ............ .,.,,...._.-.... . .. ,2 ............................. _.... _......._-••---. 1.4 Permits ............................................. 1-5 Platting_ 1-6 r Pment Of Leased4and.......................................... ..• Amendmen t and Restatement of C..r.i.g...i.n.a.l Lease._....,__.,,.... .... 2 ARTICLE 2-LEASE TERM.. ,..... 3 .......... .......... . .............ARCLE 3-RENTAL RATE............... ...... . ................. . 3.1 IrlitialRentalRate... . .,,..... .......... .............. ............... ...,.,......... . .............3 12 Rental Adjustments_ ..... ..................... .........._ 1.............................. ,...., 3 33 ProcedureforRental Adjusfrnent... ....................................... ...•.. ..................,_.......... ,,.,........... 4 .................•.................,...................................4 3.5 Appraisal by LESSEE....... 3.4 Effect of Late Appraisal by C"ITY..................................... ..............I—....... ----------4 .................................... ........4 .......................................... 3.6 Effective Date of Adjusted Rental Rate................................ 3,7 interim Rental Adjustments............. S 3.8 Rent Payment Credits for'Production and R'mlaloyment..,. ,Error!BoolinmrR not defined. 3.9 Late Payment Charge..................................... ARTICLE 4-USE OF LEASED LAND___............ 4.1 Use of Leased Land.._........... ............. . ............. ................. 4.2 Obligations of4ESSEE....................................................... ....... 6 4.3 No Preferential Rights to Use PublicFacilities. ..................... ....... .... ......... ..... 6 4,4 Adeguao,of Public Facilities.......... ... . ......... .................. . .. 6 4.5 Tarz;fjs and Other Service Fees.......................... ............. . .............. .................. 4.6 Tune forPayment of U ilities crud Taxes................... ............ ....................,.......7 4•7 other Uses................... 4-8 Use of Public Docks and Port Faci2'sties........................•-•- . ..............__ 7 ARTICLE S-UTILIT ES AND RIGHTS OF ACCESS..........................................................8 5A Utilities................................. 5.2 Mrd Party Improvements.................. . & 5.3 Easements -..._... ..... ........... ................. ............. .. ARTICLE 6-CONSTRUCTION O 9 TI �T BY Y.ESSEE............ .9 6.1 ZmproveMents on Leaed Land.................... ........... ............. . ............... ......... 6.2 City Review of Construction.................... .....,........... ,,..............., ........ ,,,,... 9 ARTICLE 7-RETURN OF LEASED LAND/SITE CONDITIONS.--,,"*............................ 11 10 ARTICLE 8-FORCE A AJLu_RE ARTICLE 9-LESSEE'S ACTS OF DEFAULT..................... ARTICLE ]A-REi14EUIES FOR DEFAULT,BY LESSEF..............-... ARTICLE XI -TITLE TO I1 PROVE NTS .............................. 12 INSTALLED BY LESSEE........................ 14 11.1 Read Pt opertylrraprovements...................................... 1 39 03/23/2022 11:39 19e72243723 RESURECTI8NBAY SEoFD PAGE 03/35 ]}.2 Jq,-7-snno/Property_........... ...... ,.-- ..........._.... ................................................. l5 ARTICLE 12- OR SKJBLIASE......... ............................'.,,`....... .--.--'' l� l2 /. A*SIg,mamtqy Leave oroo*n/ouzzng. ........... _ ................- ...... ......................... l� 12.2 AxsbpnnvsmtofIwos*hbr Security...... .~........ '......-...,.,~...,..,--._..-- ......... 15 13.3 &x '�u^��wn"mn^ Affiliate................................_- ........... ............... ............... ....—. l6 13'4 Assignmentar Encumbrance 6v City.......-'_ ...... ----........-_.........^............—.. 16 ARTICLE 13~LDMEE'S DUTY TO DEFENDfINDEMNIFY.......... ---- ........ .............. I6 ARTICLE 14^CITV`S DUTY To . ------- ..- .........................-- 17 AR1ffCLE85~INSURANCE...... .... ...___...........--^... ............... ............. ......................._ l7 15.1 Minimum Insurance Requirements ............ .-......... .................................-.... - l7 15'2 Subrogationflights Waived................... ..................................................... ........ 18 15.3 Rc»tonotinm ofBuildings and Improvewnts.....................,......—..---_ ......... lS ARTICLE16~ --.' ...... .................. ....................... .......................... lg ARTICLE 17 -ARBITRATION.......................... ...... ....''......... '--'---'-------.2O 17.1 Arbitration'......--_.—_-----..~.-...... -....... ................. -_ ..........20 ARTICLE 18~MAINTENANCE AND - ..........-_.-.................. --_--..2l 18.1 ..................... ............................................................Z] 1.8.2 SufwtyJsou*s............................ .... — ......-... ' ....................... --........................2I 18L3Cost ............................. ........... .........~.~........ ........... ................22 ARTICLE 19-ENVIRONMENTAL CONCERNS.... ------ ~_-...... ------'.............. ......2Z 19.1 Hazardous Materials—,-- -------------- ------------- ------ ............ ....... ....... ....... ......22 19�2 Permits and Reporting........................... ...____ ---._- --------_—..—.._ .......24 ARTICLE 20-ESTOPPEL CERTIFICATES.................... ........................._'_-__--- Z5 ARTICLE 21 -CONDITIONS AND COVENANTS .......................... ......................'............25 ARTICLE 22-INO WAIVER O8F BREACH-----------------------------------------.----- --- ... ......... ......25 ARTICLE 2J-TEMOFTHE ESSENCE. ....... ...... ...........................................................25 ARTICLE 24-COMPUTATION0F TIME......................... _ ...... .._ .........................ZJ ARTICLE 25-SUCCESSORS JN INTEREST ...._ .... ............ .................... —^......____ 28 ARTICLE 26-ENTIRE AGREEAWNT....... ....................--' ..... ... ...... ........ ............... .I6 ARTICLE%7-GOVERNING LAW........ ................. ... ...... .............,.- ............................26 ARTICLE 28-PARTIAL INVALIDITY....... ............................................... .........................26 ARTICLE 29-RELATIONSHIP OF PARTIES..............................^.......... ...................... ... 26 ARTICLE 30 -INxERPRuuAuuON- .............................................—....................................26 ARTICLE31~CAP]OONS-- ........._............................... ....................................................26 ARTICLE32 ~ANMNDmmZNu.-_- ...___............. .............................................................--2Y ARTICLE 93-NOTICES.......... — .......___.... .... .......... ........---. .... - ...... .-----..27 ARTICLE 34-FMF PROTECTION FOR LEASED LAND.................................. .............27 EXMRITA EXHIBIT B ' ii 72:21:0-p.-03-23-2022 1 a 1 1?072243-3 03i'23/2022 11: 3'9 19972243723 RESUREC,TIOHBAW SEAFI? PAGE 04/35 AWNDED AND RESTATED LEASE AGREEMENT TIUS AWNI)ED AND RESTATED LEASE AGREEIITEN7T(the "LEASE")is wade by and between the CITY CIF SEW.ARi1 (the "CITY"), a municipal corporation located in.the Kenai Peninsula Borough, State of Alaska, whose mailing address is P.0, Box 167, Seward, Alaska 99664 and Seward Pacific Resurrection Bay Seafoods Inc- (the "LESSEE"), an Alaska corporation whose mailing address is P.O. Box 1710 Seward, AK 99664. WHEREAS, LESSEE is currently occupying the Leased Land(as dchjied is Section 1.1 below) pursuant to various leases and most remitly punuant to that certain, Ground Lease (Contract No, 91-07), dated September 6, 1991, as amended by Estoppel Certificate dated March 6, 2006, as evidenced by a Assignment and Assurapt.ion of Lease.recorded July 1, 1996, in Boob 82 at Page 92, Seward Recording District,Third Judicial District, State of'Alaska(collectively,the "ORIGINAL LEASE'Y)and desires to continue to lease the Leased Land; and WHEREAS,the City Council of CITY has determined that a contin,,ted tease of the Leased Land (as defined below) to LESSEE for the purposes described herein 'would be in the public interest; and WHEREAS,pursuant to this LEASE.CITY and LESSEE desire to amend and restate the ORIGINAL LEASE in its entirety; and WHEREAS, neither CITY nor LESSEE intends that anything in. this LEASE shall be construed as a novation of the ORIGINAL LEASE,and this LEASE shall not affect a novation of the QRTGINAL LEASE; and "WHEREAS, it is the immnt of this LEASE to transt'er froth CITY to LESSEE the entire burden of compliance with environmental re lations or 00ntrols with respect to LESSEE's operations on the Leased Land. NOW THEREFORE, for and in consideration of the riiu.tual promises and cowaiaws hereinafter contained,the parties hereto agree as follows; ARTICLE I -LEASED LAND 1.1 Description of Leased Land, The Leased Land is located in the City of Seward, Alaska_ The.Leased Land is described as follows. Portion of ATS 174(Parcel .A. & B), Seward Recording OisUict, Third Judicial District, State of Alaska, consisting of approximately Parcel A 19,756sg ft and Parcel B 33,572sq £t,more or Icss(thc "Leased Land')(Tax Parcel ID 14823009 and Parcel B ID 14823010)- T4o Leased Land is also dgicted an the.attached Exhibit A, and B, which is inoorporated herein by reference. 1 41 12:21:0'p-m 03-23-2022 79C42243-23 - 03/23, 2622 11: 39 19072�y 4:3 '• ,: � F°E`.-�I_IF.'EC.TIOhdE-W, '=;EAFD PA-GE 95i 35 1.2 Covenant Qf Quiet Enjoyment; Warranty of Title. Suubject to the encumbrances as of the date hereof., any appurtenant easements or tights of way, and any reasonable restrictions imposed on the Leased Laud as part of recording of a plat by CITY, and the provisions of this LEASE, MY bcreby covenants and warrants that LESSEE shall have the quiet enjoyment and possession of the Leased Land for the full term of this LEASE. 1.3 Property Accepted "As-is." LESSEE acknowledges that it has inspected the,Leased Land and accepts the same "as-is" and without reliance on azv expressed or implied tepreseratations or• warranties of CITY (ether than the representations in Section l.2 hereot), 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. 1.4 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction and operation of its facilities on the, Leased .Laud, CITY may from time to time, upon request of LESSEE, execute such documents,petitions,applications, and authorizations as may be necessary, as the underlying fee owner, to file with an agency or public body responsible therefor an application for conditional use permits, zoning and re-zoning, tentative and final tract approval, or precise plan approval that may be required for the lawful constructiona and operation of the facilities of LESSEE peruutted on the Leased Land by the terms of this LEASE. However, nothing in this Section shall be construed as requiring CITY to support or approve any such application or permit requests. if the agency or public body responsible to approve or grant such application or peraxrit request is a Cite of SeNvard agency, department,or board..LESSEE shall follow all City of Seward procedures, the satire as any other applicant making similar requests of the City of Seward, according to the Charter, ordinances,resolutions,or any regulation,rules,or procedures of the City of Seward, NotWng in this Section imposes any duty or responsibility on CITY to assist LESSEE in obtaining any other p etits or approvals,including without limitation those required by the U.S. Army Corps of Engineers (e.g., wetland fill permits), the Environmental Protection Agency(e.g., Cleary Air Act permits),the Alaska Department of Public Facilities and Transportation(e.g,,right-of-way permits),the Alaska Depaltmexnt of Fish and Came,and the Alaska Department of Envirow ental Corlservatioo. 1.5 Platting. If LESSEE requests a replat of the Leased Land, CITY shall assist LESSEE in the preparation and fling ofthe replat,and LESSEE shall reimburse CITY for OTY's casts in assisting with the preparation and,filing of the replat. In the event CITY elects to replat. LESSEE agrees to sign the plat and any other documents necessary to complete the platting or replatting 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 tbe plat of tine Leased Laxxd or the plat of CITY-owned real property adjacent to the.Leased Lan& 1.6 .Development of 1,,eased Land. LESSEE shall continue to operate a fish processing facility, and other uses necessary.and incidental to the foregoing,through the term of this LEASE. LESSEE understands that construction and operations of its marine related business is a major consideration for the CITY's ageement to lease the Leased Land to 2 42 72:21:0'p_rn,03-23-2022 G t9072243723 0=,'23 2022 11: 39 1907224 3 72; RESUFECTIONBA" SEAWD PAGE �E LESSEE. LESSF-E shall not operate ally other unrelated business on dio Leased Land without the consent of the CXTY, a) CITY may withhold its consent as to any proposed business or activity Which,in CITY's sale discretion, is not desirable or wmpatible with the CITY's operation of the City of Seward. b) In accordance;with the provisions of Article 12,no assignment or sublease shall be permitted,unless approved in writing by C11Y. Any sublease sba.11 be expressly subject and subordinate to this Lease and the rights of the MY hereunder. n.e CITY may elect to not approve any proposed assigrunent or sublease that mfizht result in a business or activity that, in the CITY's sole.discretion,is undesirable and/or incompatible withthe CITY's Comprehensive Plan_ 1.7 Aniendrnent and Restatement ofOr°-roll Lease. To accommodate LESSEE'S existing fwancing, this LEASE arnends toad restates in its entirety the ORI:Cr.1NAL LEASE. This LEASE does not evidence a termination ofLESSEE's leasehold interest in,nor a rc-leasing of,the LEASED LAND. Such leasehold interest of the.LESSEE in and to the Leased Land pursuant to the ORIGINAL LEASE shall be continuing in all respects, as amended and restated by this LEASE. The parties do not intend for this LEASE to be a novation of the ORIGINAL LEASE, and this LEASE shall not affect a novation of the ORIGLNAL LEASE. ARTICLE 2 -LEASE TERM The term of this LEASE (thee "Lease Term") shall be in accordance with CITY's authorization in Resolution No. 2022-_ (thee "Resolution"). The Lease Terra shall commence on the date this LEASE is signed.by CITY and that date shall be the effective date of this LEASE (the "Effective Date"). The Lease Term shall tun for approximately 20 years from the Effective Date, ending at midnight on March 29, 2042. LESSEE shall leave the right to extend the#i.-ru7 of this LEASE for 2 additional 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 render any term or provision of this LEASE, c) LESSEE shall exercise its options to extend by sending'written notice m accordance with the provisions of Article 33 of this LEASE. ARTICLE 3 -RENTAL RATE 3.1 Initial Rental Rate. Commencing ore the Effective Date of this LEASE through June 30, 2022, the annual rental rate for the Leased Laced shall be set at $9,400- Rent shall be payable quarterly in advance upon the Effective Date of this Lease(prorated for t1w 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 3 43 iz:zi:n-p.n,,aa-�,-zozz I � eo-zzaza 11 : 39 1907224172: RE URECTIONBAV SEAFD PAGE 07f 35 quarterly payment shall be one-quarter of the annual rental rate as initially established or later adjusted under this Article 3. 3.2 Rental Adjustments. 'Tlae annual rental payment shall be adjusted on July 1, 2022, and on. the same date cvery five years thereafter(each a"Rental Adjustment Date"). The adjusted annual rental payment to be paid under the terms of this lease shall be the appraised fair market rental value(tile"Fah-ah-Market Rental Value")of the Leased land at the highest and best rise 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 Land unless that use is coi.ncideutally the highest and lieu use of die Leased Land. C1 Y shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety (90)days before each Rental Adjustrlient Bate. 3.3 Procedure for Rental Adjustment_ To adjust the rent as of acy successive Mental Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute), who skull determine the "Fair Market Mental Value" of the Leased Land in accordance with this Article 3, exclusive of improvements placed thereon by LESSEE. at any time but inclusive of all improvements made by CITY(including those made by CITY before or subsequent to this LEASE), The appraiser's report shall be delivered to LESSEE not less than ninety (90) days before the Rental Adjustment Date. The appraiser's determination of Fair Market Rental Value of the Leased Land shall constitute a final minding dctermination of the Fair Market Rental Value a rd the adj usted axuxual rental rate until the next Rental Adjustment Date,unless LESSEE objects to CITY's appraiser's determination of the Fair Market Rental Value. in that case. LESSEE shall give written notice to CITY"of its objection within thirty(30) days of receipt of the appraiser's report, and LESSEE shall then engage an independent State of Alaska certified MAT appraiser (Member, Appraisal Institute) at LESSEE's expense to 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 hair MaxkiC t 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 19 of this LEASE. 3.4 lJffeet ajLte.4ppraisaf by CIS 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 Way proceed to complete the appraiml or deliver a copy of the appraisal report to LESSEE at any time thereafter. flawever, 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- Appraisal by LES.S27W. If,for any particular Rental Adjus"ent Date, CITY fails to obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the 4 44 12:71:07 P.M.03-$3-2022 14C12243723 0319-3r'2022 11: 23 13072241 2:3 RFSUPECTIFINBAIf '=;EAFD PAGE 08/35 LESSEE by the Rental Adjustuimt late, LESSEE may engage an indepciadent Mate of Alaska certified MAI appraiser (Meruber, Appraisal Institute) at LESSEE's expense to make an appraisal under the terms of this Article 3 and submit a copy to CITY before the next quarterly rental payment due date_ However, LESSEE must notify CITY in writing within thirty (30) clays following the Rental Adjustment Tate of LESSEE's election to obtain an. appraisal.. If CITY objects to LE SEE`s appraiser's detemlination of the Fair Market:Mental Value, CITY shall give written notice to LESSEE of its objection within thirty (30) days of receipt of tlxc appraiser's report, and CITY shall then engage an independent State of Alaska certified MAT appraiser (Member, Appraisal Institute) at C1TY's expense to wake en appraisal of tht, Fait Market Rental Value as of the Rental Adjustment Tate and in accordance with this Article 3, If the CITY's appraisal determines a)Pair Market Rental Value that varies from tllat determined by LESSEE's appraisal by no more than.twenty percent (20%), then the adjusted rental rate shall be the average of the rectal rates determined by the bwo appraisals. If the CITY's appraisal determines a Fair Market Rental Value that varies from LESSEE's appraisal by more thall twenty percent (20%), then, runless CITY and :LESSEE agree ort a rate. thmselves, the adjusted annual rental rate of the Leased Land shall be determined in accordance -with the arbitration provisions contained in Article 19 of this LEASE. M .Effective Date gf,4djusted Rental Rate, The adjusted annual rental rate established by this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the appraisal report to LESSEE no later than:rii.nety (90) days before the Rental Adjustment Date. If the adjusted annual rental rate is based on CITY's Tate appraisal or late delivery of tb;e appraisal repoil to LESSEE, the adjusted rental rate shall be effective beginning with the quarterly rental payment due date immediately following the date the CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the cxercise by eitber CITE'` or LESSEE of the objection procedure relating to rental adjustment described in this Article 3 shall not postpone LESSEE's obligation to pay rent at the irate established by CITY. 1rESSEF shall pay the amount ofrent as established or adjusted by CITY uuQ the cluestioxr of abjection io the rental rate is finally resolved. At such time the objection to the rental rate is resolved, an appropriate credit or adjustment shall be made retroactive to the date the n(,w rental rate was established by CITY or in cases where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSEE,to the Rental Adjustment Date. 3.7 Inmrirn Rental Adjustments. For each year in the period between each Rental AqjugtIneT1t Date,excepting the Rental Adjustment Dates,the azmttal rental.paylrient shall be increased beginning July 1, 2022 and on July I of every year thereafter (aacb aw `Interim Rental Adjustment Date") tit an amount that reflects the increase, if any, in the cost of living for the previous year as ststed in the Consumer Price Index,All Urban,Consumers,Anchorage, Alaska Area, All .Items 1967=100 („CFI"), as published by the ilnIed States Departmelt of Labor,Bureau ofLabor Statistics for the most recent period published immediately prior to the Interim Rental Adjustment Date. In no event shall the rent be;less than the previous year. If the CPI is revised or ceases to be published,the CITY shall instead use such revised or other index as most nearly approximates the CPI for the relevant period, and make whatever adjustment in its application as may be necessary, in the CITY's sole discretion, 5 45 12:21.07 p.m.03-23-2022 1 9 I IK 2243723 03/23/2U22 11: 39 IgU72243^23 PESURECTIOhaBA",' SEHFL, PAGE 09/35 to accomplished as nearly the saute result as if the CpI had not been revised or ceased to be published. 3.8 Late Paymenr Charge_ Rental payments an.ot received by the due date shall hear interest until paid at a rate of 10.5%per annum, or the xx,,sxiitnurn rate permitted undex,Alaska law, whichever is Iess, plus a flat monthly late fee of $2.50, or such amount as may be established frorU-r tijaxe to time by CITE"ordinance or resolution and relati. to Iat:e fees for CITY leases gemerally. ARTICLE 4-USE OF LEASED LAND 4.1 Use of Leased Land. CITY lias Limited land available for lease. Use of the Leased Land by LESSEE has bem determined by the City Council of CITY to be in the public interest. LESSEE may use the Leased Land for fish processing,and other marine orjentr d business, 4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance %rith applicable CITY zoning code provisions and provided the following conditions are met: a) The Leased Land is to be completely cleaned Md restored to its original condition, that is, the co-adition 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 Arbele 19 of this LEASE. c) LESSEE shall not use the Leased Lmd in any manner or comtmct any facilities thereon which would n fbit the use of adjacent or other lauds, d) LESSEE shall operate a fish processing, cold stozage, zmd other nlaTaue oriented Business oua the Leased Land_ e) Any changes to this site require prior CITY approval, through the City Manager. 4.3 O Preferential Rights to US8 Public Facilities. This LEASE does not grant to LESSEE any exclusive righta to use any public port facilities constructed or operated by MY, 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 sball not be entitled to guy exclusive use. 4.4 Adequacy Of Public Facilities_ CITY makes no representations or watl'anties as to the fitness of any particular part or tlxe whole of CITY's public facilitics for the uses intended by LESSEE, and. LESSEE has imx petted those facilities and has satisfied itself that the facilities are sufficient for the intended uses by LESSEE. CITY makes no representations or warranties nfany nature with respect to the corumercial practicability or accuracy of any itforniation provided by CITY. 6 46 1,:21:o-P.m,03-.a-zaz. to 1907224=,21 01"23/202 2 11: 39 19072240723 W'SURECTIONBAY ';EAF D PAaE 10;'35 4.5 Tariffs and Other Sen4ee Fees, CITY shall have the right to x,,aake awe,;admtemts to .its tariffs, regulation, and,scheduled:Fees froin time to time, even if those acljustmertts shall cost LESSEE wore for its operations Ot use of public facilati.es, and CITY is free to do SCE provided only that it does trot impose any greater burden or higher rate upon LESSEE than upon any other siiuilar user of the I abli.c facilities. 4.6 Time for Payment of Urilities and Taxes. LESSEE will pay for utilities and taxes related to operations on the Leased.Land and LE SSEE's interest in this LEASE and inlprovenaents thereon,if any,before such.obligations become delinquent;provided that LESSEE may in good faith and before such delinqueticy, contest arty such charge or assessznerzfi. 4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and 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 Pudic.Docks and Port Facilities. public docks are subject to part and harbor rules and regulations as adopted by City Council, 4.9 Adequacy of Public Facilities. The City snakes no representations or warranties as to atzy particular part or the whole of CITY's public facilities Nv.ith respect to their fitness for the uses intended by LESSEE. In. particular, LESSEE has had are opportunity to review MY's Reconnaissance Studies for repair and upgrade of the Lowell Canyon. Diversion Tunnel project. CITY makes no representations or warranties of any kind with respect to the present adequacy of the Lowell Canyon.Diversion Tunnel iacilities including the spill- way and outfall located near the Leased Land,nor does C.TTY herby anN special obli.gatians to repair,replace or refurbish that facility in order to provide flood and disaster protection for LESSEE'S operations from and near the Leased Land_ LESSEE bas examined the platxs and specifications of those facilities and has satisfied itself that the capacities of the facilities are sufficient for the intended uses of Leased Land by LESSEE. 4.10 Risk of Adjacent Paeilities Including Lowell Canyon Diversion Tunnel, Access Road and Easements, Lessee will not use the land i_n any manner or construct any facilities thereon which would inhibit#tie us of adjacent or other lands including the existing Lowell Canyon Diversion Tunlxel, the existing Lowell point access road and easements (including the sewage line to the Seward sewage lagoon), If any operations or constmcdon by LESSEE might adversely affect the safety of nearby public lands and facilities or pose a risk to the public b.eal.th or Safety, CITY may engage an independent etxginer:n-ag consultant who shall furnish to CITY a comprehensive survey and report for the purpose of establishing whether the work-by a LESSEE poses an unreasonable risk to the public, and if that survey discloses an unreasonable risk thezx LESSEE shall pay the costs of the survey and the immediately take whatever remedial steps are reported as necessary to eliminate that risk or reduce it to an acceptable level,. If LESSEE disputes the CITY's selection of an engineer,the it shall promptly,atad within, 10 days of such selection provide CITY vxith the names of three independent engineering Consultants and MY way utilize any one of the three listed by the LESSEE, 7 47 12:21:07 p.m.03-23-2022 19 18072243723 03/23/2022 11: 39 19072243723 RFSURECTICNBAV SEAFD PACE 11135 or in the alternative, CITY may submit the names of two additional engineers. The parries then shall,promptly meet and mutually agree on an acceptable engine-er.If they are unable to agree within Titre days of the date LESSEE has submitted its list, then both parties shall prorptly and confidentially rank their choice of eng%ueexs in the same mariner as that utilized by the American Arbitration Association to select a single arbitrator, The engineer with the louvers composite score ((i.e., most preferred or least objectionable) shall be the engineer. ARTICLE 5-UTILITIES AND RIGHTS OF ACCESS 5.1 Utilities. LESSEE, at LESSEE's sole cast and expense, shall provide for the extension of public utilities to tlac Leased Land required for LESSEE's intended operations. In so doing, LESSEE shall comply with all C=regulations and requirements, and the tariffs of the affected utilities, with respect to the construction of those utilities. CITE" agrees to cooperate and assist the LESSEE.,through consultation and review,in LESSEE's planning and engineering of those improvements. All utilities will be located and sized in accorda oe to CITY's Master Plan for the area leased. All such construction shall be in compliance with all applicable building, mechanical and fire codes. Utilities constructed by the LESSEE within. the public rights-of-way or within public utility easements will normally be accepted and maintained by CITY or utility companies and may be used to serve other customers of CITY's without payment of fees orreitnbursement of construction. cost io the LESSEE, However, this does not preclude several lessees from agreeing to share the cost of constructing a utility to serve their facilities. CITE' or other utility company may deterrxrine that it would be to their benefit to oversize the utility or install special fittings.or equipment in order to serve other existing or future users. The additional direct costs of such oversi&g shall be borne by CITY or other utility company. Such costs shall be limited to the supplier's cost of the additional fittings, equipment,direct labor,and equipment costs to complete the installation. The costs of oversizing pipe or electrical conduit shall be limited to the difference between the supplier's price to provide the size required to serve LESSEE's facility and the price of the oversized material required by CITY or utility company. LESSEE shalt not be entitled to axsy 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.Parity.Improvements. At the bequest 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 awordance with the terms of this LEASE covenants,conditions, and restrictions providing for the granting of uses of the Leased Land, or any part theteof, the establishment of party walls, the establishment of mutual and reciprocal parking rights or fiAts of ingress or egress,or other like matters(herein called"third-party iraprroverherrts"),all of which are for the purpose of 48 12:21-0'p.m.63-23-2022 12 M72243723 '. 03�`23/2022 11: 39 1907224--1723 FESLIF'^ECTIQIJE"Y SEAFL? PAGE 12. 5 the orderly development of the Leased Land as a commercial unit subject, however, to the conditions tl t. a) All such matters shall. be limited to the Lease Teraa� and shall terminate upon of this LEASE for vc hatever reason. b) Any such matters of a.permanent natme,extending beyond the Lease Term shall not be granted without the, prior written approval of CrTY. In any of the foregoi_ug instances referred to iu this section, CITY shall be without expense therefor, and the cost and expense thereof shall be bonze solely by LESSEE. c) At the expiration of the Lease Term (including any extended period) tb rd-party irnprovem,entg on the Leased Land other than trade fixtures and equipment shall become the property of CITY without the payment of any carrtpeasation to LESSEE. 5.3 Eascinents. In order to provide for the orderly development of the, Leased Land and adjacent lands,it may be necessary,desirable,or required that str(,,et,railroad,water,sewer, drainage, gas, power line, and other easements and dedications and sin-alar rights be granted or dedicated over or within partiors3 of the Leased Land. As additional consideration for this LEASE, CITY atr.d LESSEE each shall, at the request of the other, join with each other iti 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 o$er users or tenants of CITY land for the purpose ofgran.ti ag such easerents and de>dicatioas;provided, however, that such easements and dedications and similar rights do .not unreasonably interfere with LESSE,E's operations. The costs of locatiug or relmati.ug any 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 requestiag the relocation. My shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or otlrcr public property. Any casernetrts or rights of access granted to LESSEL by CITY need not be exclusive to LESSEE_ 5.4 Delav in Pe)J�r-mance_ 1'u the event either LESSEE or CITY is delayed froni pe1f4rmance of any of its obligatious under this Lease,dae to acts of Cod, enemics of the United States of America, war, blockage, insurrectXor4 epidemic, fires, floods, explosions, earthquakesftsunami, the tune period wherein such gerformauce is to occur shall be extended by that amount of time uecessary to compensate for the delay. ARTICLE 6-CONSTRUCTION BY LESSEE 6.1 ImProve"Wnts on Leased Land. LESSEE shall. have the right to erect, maintain, alter, remodel, reconstruct, rebuild, build, and/or replace buildings and other improvements o.0 the Leased Land, subject to the Fallowing corzdition.s: 9 49 12:27:G?p.m.P3-23-2G2Z 7's 19G?2Ya3'2's F021/23/2022 11: 39 13072243723 FESURECTICIHB ' `GE 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 mid tnaterialnrcn's liens. c) 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 cornrnencement of construction. d) LESSEE is solely responsible for resurveying and locating improvements on the Leased .Land in Wch 13- atner not to violate building setback requirements or encroach into rights-of-ways or easements. On completion of any inrprove=nts, LESSEE shall provide CITY a copy of an as-built survey depicting the improvements as completed on the Leased Land. c) Any general contractor employed by LESSEE shalt be appropriately bonded by use ofperfarrnancc and labor and material payment bonds in the customary form when cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000). Copies of all such bonds shall be furnished to CITY prior to comrnencemeut of construction. If the cost of the work is less than.F1M THOUSAND-DOLLARS ($50,000),LESSEE shall provide CITY, if no performance and labor and material bonds are provided by LESSEE, any necessary- asstuances or guarantees that the contemplated work will be performed by the geaeral contractor or by LESSEN_ In the event that LESSEE elects to construct the facility %rith its own personnel and equipxraexrt, or the persorr►rel and equipiaent of any corporation or persozr that is an "affiliate'}of LESSEE as such,term is defined in AS 10.06.990(2)or Alaska limited liability company its wkdc.h LESSEE maintaixrs a:substantial membership interest,a performance bond shall be required when the cost of the work is equal to or exceeds FIFTY 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 wvith respect to such constmetion, including, but not limited to, all applicable building, mechauical,and fire codes. 6.2 City.Review of ConstruCfion. CITE shall have the right to review initial plans, including those supplied to CITY under Section 6,1 hereof, and any future changes or additiwis to LESSEE's facilities on the Leased Land, by reviewing the design themof prior to the commencement of construction. CITY shall have the right to comment upon that design and to require LESSEE to make reasonable charxges so as to avoid interference with public operations,but the exercise of tbese rights shall nor haply any obligation zo do so nor any obligation to do so im a particular way. LESSEE shall construct the facility in accordance with final design specifications approved by CITY. CI'TY''s representatives may monitor l0 50 12:21:07 p.m.03-23-2022 14 190-2243723 E13i'23,,'21022 11: 39 19072243723 RESURECTIONBAY SEAFU PAGE 14;'=' the work and shall have access to the site at all reasonable times. LESSEE shall be solely responsible for completing all improvements according to LESEE's plains mind 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 frorn its contractors, axrd CITY shall be uawcd as an additional insured, ARTICLE 7-RIETURN OF LEASED 1LAINDISITF CONDMIONS 7.1 Return of Leased L,uzd in Original Condition. Subject to the provisions of Article 1.1,1 herein,upon teruYination 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 cmA mftlation arising out of or resulting from or occurring during LESSEE`s operations or use of the Leased Land during dais LEASE. ARTICLE S-VORCE MAd'EL'RE In the event either LESSEE or CTTY is delayed faun performance of any of its obligations under this LEASE due to .acts of nature, acts of the enemies of the United States of.Annexiea. sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthgtako-4sunaini, civil disturbaDce, or war, the tiroe Peliod wherein such perlJ6i aance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 9 m LESSEE'S ACTS OF PEF.AULT .Each of the fallowing shalt be a "LESSEE Act of Default"under this LEASE and the terms "acts of default"and"default"shall mean,whenever they are used hi this LEASE,any one or more of the, following events: 9.1 Failure by LES SEE to pay promptly when due, and in no event later than twenty(20)days from the due date thereof,the rerat required to be paid under this LEASE, 9.2 Failure by LESSEE to comply with Section! 4.1 of this LEASE for a period of thirty(30) days after written notice specifying such failure,requesting that it be remedied, and stating that it is a notice, of default,has been given to LESSEE by CITY; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if coirective action is instituted by LESSEE within the applicable-period and diligently pursued until the default is corrected. 9.3 Failure by LESSEE to observe,fulfill or perform any covenants,conditions,or agreeanents on its part to be observed or performed under this LEASE, otheir than payment of rent or compliance with Section 4.1,for a period of thirty(30)days after writtrau notice spe;cifiing such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to LESSEE by CITY, provided, however, that if said default is such that It 11 51 12i21:67 p.m.03-23-2022 15 19072243723 03/`3'/2022 11: 39 19F1 2243 2.1 RE'=;I_IRE(1TII]hJBF;''r' E;EtiFD PAGE 15':?5 cannot be corrected within tbe, applicable period, it shall not constitute an act of default if corrective action is instituted by LESSl=E within the applieable period and diligently pursued until the default is corrected. 9.4 The making by LESSEE ofaa assipment for the benefit of creditors,the filing of a petitic)aa in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or haukrupt, the petition or application by LESSEE to any tribunal for any receiver or any trustee for itself or for any substa.utial part of its property, or the cozy mCaacer ent of any proceeding relating to LESSEE under any bankruptcy, insolvency, reorganization, arratlgcment, or readjustruent 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 cor nmencenment thereof 9.5 Violation by LESSEE of any lames or regulations of the United States, or of the State of Alaska, or arty 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 fegVjlatioaas of such agencies, for a period of sixty(60) days after written notice specifying such violations has been given by &.e agency charged with the enforcement of such la-mrs, regulations, or permits to LESSEE;provided,however,if such violation be such that it cannot be corrected within the applicable period., it shah not constitute an act of default if corrective action is instituted by LESSEE widea the applicable period and diligently pursued until the violation is corrected. Furthermore,if LESSEE shall contest such,alleged violation through, appropriate judicial or administrative channels, th.e time period specified herein shall not commence until such proceedings are finally determined pTovidcd such proceedings are diligently pursued; provided, however, that any such extensioa of time shall not be effective if the effect of the interim administrative or judicial action is to cause a stoppage, interruption, or threat to the activities of any person or entity other than those of LESSEE. 9.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public rights of way clear for a period of thirty (30) days after written notice specifying such failure, requesting that it bee remedied, and stating that it is a notice of default, has beeza given to LESSEE by CITY;provided,holxr*ver,that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituter) by LESSEE withiia the applicable period and diligently pursued lentil the default is corrected. ARTICLE 10- DIES FOR DEFAULT BY LESSEE Whenever an act of default by LESSEE shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired.,CITY shau have the following rights and.remedies all in addition to any rights aud remedies that may be given to CM`by statute, common law, or otherwise: 12 52 12:21:[17 p.n) 03--23-2022 1 1G 1 907 2 243 7 2 3 03./2-312022 11: 39 190 2214�3723 RFc:;URECTI1DN3A'•r SEnFD PAGE 16135 10.1 CITY may distrain for rent due any of LFSSEE's personal property which cranes into CITY's possession. This remedy shall include the right of CITY to dispose of personal property distrained in any co=ercially reasonable manner. It shall be conclusively presumed that compliance withthe procedures set forth in th:e Alaska Uniform Commercial Code (AS 45.20.601-.628) with respect to sale of property shall be a commercially reasmiable disposal.Notwithstanding the foregoing,CITY agrees that its rights set forth in this Section 10.1 shall bo junior to the rights granted to any Lender(as defined in Section 12.2)udder a Security Inca-mment(as defined in Section 12.2), and CITY's consent is not required for a Lender to enter upon the LEASED LAND and assemble, have appraised, display, sever, remove,maintaiu,prepare for sale or lease, advertise, inspect,repaiz-,lease, transfer and/or sell (at public auction or pzivate sale), take, possession of, or Otherwise enforce such Lender's security interest in LESSEE'S personal property or other assets located on the Leased Land in which such,Lender holds a sectn-ity interest. 10.2 CITY irsay 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 under Section 10.1 alcove,xemove all personal property of LESSEE froin the Leased Lad. 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. 10.3 Ja addition to the above., CITY may: 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 terwibated or not, reasonable attorney's fees and all other expenses inc>rrred by CTI'Y by reason of the breach or default by LESSEE; d) Recover an arnount to be due immediately on breach equal to the unpaid rent for the entire Temaining tem of this LEASE. e) Recover all damages incurred by CITY by reason of LESSEE`s default or breach, in.oJuding,but not limited to,the cost of recovering possession of the Leased Land, expenses of reletting, including costs of necessary reuovation and alteration of the premises,reasonable attorney's fees,and any real estate commissions actually paid. f) Remove or require the removal of any improvenicnts constructod without CITY approval (when such approval is required under this LEASE,) or constructed contrary to site development plans approved by CITY and recover all. costs and expense incurred by CITY to remove violating irnproverneuts. 13 53 12:21 01Pp m.03-23-2622 77 99072243723 03 23/2022 11: 3,9 190 7'22437'2:3 RESURECTIC111BA'',' SEAFD PAGE 1 71 3-5 10.4 If LESSEE does not immediately surrender possession of the Teased Land after tet nitration.by CITY and upon demand by CITY, My may forthwith enter into and upon and repossess the Leased Land. and expel LESSEE without being deor ed guilty in any mani)er of trespass and without prejudice to any remedies which might other vise be used for arrears of rout or breach of covenant. I M No expiration or termination. of this LEASE shall expire or terminate any liability or abligatian 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 he in addition to every Other right or ri rmedy 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 provided for in this LEASE or now or hereafter existing at law or in equity or by statute or o lzerwise shall not preclude the simultaneotis or.later exercise by CITY of any or all outer rights or remedies provided for iri this TEASE or now or thereafter existing at law, or in equity or by statute or otlierwSe. 10_7 No delay or omission to exercise ally right or power accruing followin au act of default shall itnPair any such right or Power or shall be coaistrued to be a waiver thereof, but any such right and power.may be exercised from time to time and as often as may bie deemed expedient, 10.8 Notwithstanding any other provision, of this Article �N, if this LEASE is rejected in a bankruptcy or .usolvency proceeding or terminated due to LESSEE's breacb of Section.9.4 above,upon Lender's written request made not more than forty�40)days after this LEASE is rejected, CITY will enter into a new lease of the Premises with the nomuuce of such Lender for the remainder of the term of this LEASE, at the same rent and under the s=c terms and conditions set Forth in tbis LEASE. All sums due and owing to CITY under this LEASE shall be paid at the time of execution of the new lease. ARTICLE 11 -TITLE TO IENIPROVE1 INTS INSTALLED BY LESSEE 11.1 &2 al Property hriprvvements. All improvements 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 berms and similaar improvements, arc the property of LESSEE and shall be removed by LESSEE at the terxrjination of this LEASE. for arty reason. A.II such improvements that are not removed by LESSEE. prior to the terniinatioa of this LEASE shall become the ,property of CITY upon ternination of this LEASE for any reason;provided,however,that CITY may require LESSEE to remove any improvements desi)giate_d by CITY and without cost to CITY by giving notice to LESSEE of such requirement not more than 10 days afte-r terminating of this LEASE and sooner if possible. LESSEE shall .have a period not to exceed three hundred sixty-five(36S)days after LEASE termination or t-.F,SSEE'5 receipt of such notice 14 54 12:21:o7 p.m.0 -23-2022 1 18 190-2243 23 03/23/2622 11: 339 19072249 23 RESURECTIONBAY SEAFD F" 18/35 (whichever is later) in which to remove such improve-meats, and LESSEE shall pay rent (luring such time, and shall consume to pay public utility hills -until it has completed the removal obligations described in this Section 11,1. 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 riot, promptly remove, in no everts later than ninety(90)days from the tennivatian 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 SU73LE,AS"E 12.1 Assignment of Lease or Subleasing. The parties rmognize that this LEASE has been determined to be in the public interest by the City Council of CITY for the reasons set forth W the approvxtag Resolution. The rights and ditties created by the LEASE are personal to LESSEE. and CITY has granted the LEASE in reliance upon the business character and financial capability of LESSEE. Therefore, LESSEE shall not assign or sublease this LEASE without CITY's prior written consent, W CITY's sole discretion. 1?.2 Assignment of Lease for Secur'io, Notwithstanding Section 12.1 above, LESSEE may assign, encutnber, ox mortgage its interest in this LEASE or improvements on the Leased Land, by deed of t ust or other security instrument(the "Security fastrcument"), to (i) time State of Alaska to secure the LESSEE's tax obligations, and (ii) one or more entities etagaged in the business of loaning money for LLSSEE's development of or operations on the Leased Land (each berse iciary natned in such Security Instrument referred to hereinafter as the"Lender"). CITY's consent is not required for any Security Instrument as described herein, or any loan documents related to the sarr,e (or any amendment, modification, restatement, supplement, renewal or substitution thereof), but upon. a Lender's request, CITY shalt execute a consent to the Security Instrrr ex tit or include consent language in an estoppel cer0cate provided to CITY pwsuaut to Article XX of this LEASE. If requested by a Lender., CITY shall furnish such.Lender, at tlae address provided to MY by Lender in writing, with notice of any default or hreach 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 receipt of such wr itt=notice specifying such breach, Notwithstanding the provisions of Article 10 above, no "LESSHM 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 any default or breach other than a failure to make any required payment of rent or other money, shall undertake within thirty (30) days after notice to rare the default or breach and shall diligently and in good faith proceed to do so, CITY may not terminate this LEASE or relet the Leased Land unless Leudex fails to cure the default or breach within a.reasonable period of time thereafter; and 15 55 12'27;07 p.m.03-23-2622 19 190-2243-23 0v,:5?2 �_, 02 2 11 1y072L4? 2 RESUREC:TIONBAV SEAFIi PAGE 19.'='5 b) If the default for 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 as LESSEE or Lander remains in possession of the Leased Land and satisfies LESSEE's obligations under the terms of this LEASE. This LEASE shall riot be terminated upon foreclosure or other assertion by Lender of its security interest as long as all obligations of LESSEE under the terms of this LEASE continue to be performed. Any assignee, purchaser at a foreclosure sale, or transferee shall agree to assume this LEASE and be bound by each and every term of this LEASE. No amendnneut,modification or terniittation of this LEASE prior to its expiration date shall be effective at any time that the Security instrument remains effective,unless,Under shall have given its prior written consent thereto, which consent shall not unreasonably be withheld, If at any time the leasehold interest under this LEASE and the fee estate in the Leased Land atc commonly held,such estates shall rennin separate and distinct estates and shall not merge without the consent of Lender. 123 4ss%gi1rrrt� at to affiliate. Notwithstanding Section 12.1 abov LESSEE may assign tlxis LEASE to an affiliate of LESSEE or of its parent company(as the term"affiliate"is defined by AS 10.06.990(2)) or to an Alaska limited liability company in which LESSEE or its parent company maintains, a substantial membership interest; provided, however, that LESSEE's full faith and ct'edit shall remain obligated under this LEASE as though the assigumEi:.t had not taken place. 12.4 Assignment or Encumbrance by CITY. CITY agrees that, so long as any Security Instrument remains outstaxidi_tag, the CITY shall not encumber its interest in the Leased Land or under the LEASE in any:respect without the prior written consent of the LESSEE's Lender. If any deed of trust or similar instrument encumbers the CITY's interest in the Leased Land(a "CITY Deed ofTmst") and is senior in priority to this LEASE, the CITE' agrees to obtain:(i)a noxa-distuxbaacc:agreement in form reasonably satisfactory to Lender pursuant to which the beueficiary named in such CITY Deed of Trust agrees aw to disturb the possession of LESSEE or Lender and their successors and assigns so long as LESSEE and Letader and their successors and assigns comply with this LEASE. ARTICIJE 13 M LESSEE'S DUTY TO DE ND/I1WEJ%U:YIFY LESSEE shall defend,indemrjify,and bold harmless CITY,its officials,employees,agents, and contractors from any and all liability or claims for damages, inchidin.g 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 sub lessees, assignees, agents, contractors, or the,pul)iic, except for damages arising from. the sole negligence 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. 1.6 56 12:21,67 p,m.03-23-2622 20 19072243723 0_„ 23/2022 11: 4 19e7224;723 r, _ RE�URE_TIOhJBA''r SEAFZ7 PACT 2n 35 ARTICLE 14-CITY'S DUTY TO DEFENDViDU V1<NJI Y CITY shalt defend, indemnify and hoid LESSEE banAess from any and all liability or claims for damages,including personal injuries,death,and property damage arising tom the sole negligence or willful acts or omissions of CTTY,its officials,employees, agents, or contractors. ARTICLE 15-1.N=SURANCE 15.1 Mininiurn Insurance Requircments, Prior to cornrueucememt of the Lease Tenn or LESSEE'S Occupancy of the Leased Land, LESSEE shall procure and rnaintain, at LESSEE's sole cost and expmsc,the following insurance: a) Commercial Genrral Liability hasuran.ce Policy insu-ring the Leased Premises and LESSEE's use thereof,with a rrtinirA7um limit of Two Million Dollars ($2,000,000) on account of bodily injuries or death or property damage for each occurrence and a minimum limit Two Mi.11io.0 Dollars ($2,000,000) annual general aggregate(such l rifts may he satisfied through a combination of primary and umbrella/excess liability insurance,). The foregoing policy(ies)shall name CITY and, upon request,LESSEE's lender, as additional insureds under LESSEE's insurance policy(ies); b) Special Form Cause of Lass (excluding earthquake,and flood)Property Insurance Policy,including extended coverage endorsements M uzing all of Lessee's improvements(including LESSEE's stool*.-in-trade,trade fixtures,furniture, fiinaishings, special equipment, floor and wall coverings, and all other items of personal property of LESSEE located on or within LESSEE'S improvements with such coverage to be in an amount equal to one hundred percent(1000K)of the replacement cast thereof The foregoing policy shall name CITY and LESSEE's tender. if any, as loss payee under LESSEE's insurance policy with regard to this permanent leasehold i:Tnprovennents on the Leased Land. c) Workers' compensation and United States Longshore and Harbor worker's insurance covering Tenant's employees at the Leased Premises as required by Alaska law; d) Commercial automobile Iiability insurance for hired, owned/registered under LESSEE's name and non-owntd vehicle-, including contractual liability with a single lil-nit of liability not less than One Million and 00/100 Dollars ( I,000,000M) per accident for bodily injury and properly damage combined or such other amounts as CITY may reasonably request. The foregoing policy shall name CITY arid, upon. requests LESSEE's lender, as additional insureds under Tezrarxt's insurance policy, The minimum amounts and types of insurance provided by LESSEE shall be, subject to revision at the sole discretion of CITY in aocosdance with standard insurance practices, in order to provide continuously throughout the torm of this LEASE and any extensions hereof,a level of pv tec t ioia consonant with good business practice and accepted standards 1'7 57 p.m.03-23-2022 21 � 190 24372.3 11: 39 19072243723 RFE-1_IRECTIDNBA`r' EAFD PAGE 21/35 in the industry. Such factors as chauges izt the type of or extent of use of the Lease Land, increases in the cost of living, inflationary pressures, and other considerations, shall be utilized in assessiag whether the mitimuyn insurance requirements should be increased. CITY shall notify LESSEE of any required increase in insurance coverage. Provisions of insurance policies required under this Section 15.1 will not be materially altered by LESSEE during the term of this LEASE, and LESSEE will provide CITY with proof of insurance upon request. All such policies shall be written by insurance companies legally authorized or laceased to do business in the State of Alaska and acceptable to CITY (Best's dng 8-;- or better)- CITY shall be listed as an additional insured under all iasuxauce policies- LESSEE shall fish CITY,on forms approved by CITY,certificates evidencisag that it has procured the insurance required herein prior to the occupancy of the Leased Laird or operation by LESSEE. Insurance policy deductibles shall be consonant with good business practice and accepted standards in the LESSEE's iladustry. Notb.iug herein contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEFs own individual cost and expense,additional or other insurance as may be desired. The miuilnuns insurance requironicixts under this LEASE skull not act to limit.LESSEE's liability foT any Occurrence and sball not limit LESSEE's duty to defend and"indemnify CITY for claims related to this LEASE or the Leased Land. 1521 Subrogalion .Rights Waived To the eKteat pemlitted by law, LESSEE hereby releases CITY, its elected and appointed officials, ezuployees and volunteers, and others working on behalf of CITY frorn any and all liability or responsibility to LESSEE or anyone claiming through or under LESSEE by way of subrogation or otherwise, for any loss of any kind(including damage to property caused by fire or any other casualty), even if such loss ahall have been caused by the fault or negligence of the CITY,its elected or appointed officials,employees or volunteers,or others working on behalf ofthe MA. This provision shall be applicable and ail f'it11 farce and effect only with.respect to loss or damage occurring during the time of LESSEE's occupancy or use (including LESSEE's occupancy or use prior to the Effective Date of this LEASE), and LESSEE agrees its policies of insurance will not contain any clause,provision or endotsement that limits LESSEE's right to recover under such policy if au additional insured has obtained a waiver of subrogation. 15.3 Restoration of Buildings and Improvements. In the event of damage to, or destruction of, any of the buildings or improveraeut5 situated on the Leased Land, and to the extent that LESSEE is entitled to any insurance proceeds resulting;therefrom, such proceeds shall be paid to LESSEE's Lender,to be used to restore the LESSEE's improvements.in accordance wide the Security Instrument. In the event LESSEE does not have a Lender, them the insurance proceeds shall be payable to Lessee, and Lessee shall either: a} 'Within tnitn,ety(90)days after payment of the insurance proceeds, commence restoration of the buildings and improvements to their condition prior to such damage,provided,however,that Lessee's obligation to restore will be limited to the insurance proceeds available to Lessee; or 18 58 12:2 L0?p.m.03-23-2022 22 1 1907 2 243-2 3 1-. 23f 2022 11: 39 19072243723 RESVPECTIOHBAV SEAFD PAGE 22i'35 b) Apply such insurance proceeds first to the cost of removal of the damaged or destroyed buildings, h1cludjug any debris or other nuis"..ce occasioned by the damage or destruction,and restore the Teased Land to a grade and co.udit:ion similar to its grade nd condition prior to the construction of the buildings or improvements thereon_ hsurance proceeds remaining after the removal of damaged or destroyed buildings and cutter improvements, and restoration of the Leased Land to grade and condition satisfactory to the City may be applied to any indebtedness owed by Lessee to any lender naxued as beri.ef diary unclear ar,_y Deed of Trust recorded against the Lessee's interest,, in order of priority of recordation. c) Regardless of whether Lessee elects to proceed under a) or b), above, all insurance proceeds shall be deposited azad held in trust with a bank having offices in Seward and/or Anchorage,Alaska, as Lessee may designate, or with Lessee's mortgagee named in a Deed of Trust granting such mortgagee a beneficial interest in the damaged property, and shall be made available to Lessee for its use:in. either restoring or repairxixg any darnaged or destroyed buildings or improvements on the Leased Lard, or removing the damaged or destroyed buildings or improvements and restoring the Leased Land to a grade and condition of reasonable satisfaction to the City. The proceeds of insurance shall be paid out by such buik or ruartgagee from time to time,on certifications,by the person having supervision of the work, that the amount certified is behis applied to the payment of the reasonable casts of such work. Sbould the Lessee elect not to restore and repair damaged buildings and improvements on the Leased Land,all insurance proceeds remaining after removal of damaged and destroyed buildings and. improvements,and restoration of the Leased Land,may be applied to any indebtedness by Lessee to any leader named as benefi<,iary under any Deed of 'rust recorded against the Lessee's interest, in order of priori ty of recordation, after receipt of written satisfaction from the City of'the.restoration of the Leased Land. In the event Lessee elects riot to restore and repair when substantial damage yr destruction has oc=-red to the buildings and improvements,this Lease shall terminate,and all Lessee's obligations bereunder Shall expire, upon the date that the City certified in. %',Tjting its satisfaction with the restoration of the Leased Land. ARTICLE 16- CONDEMNATJON if all or any part of the Leased Land is condemned. for a public use by any govemment agency or other duty authorized entity, CITY and LESSEE shall each.make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority provided,that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY skull transmit to LESSEE the amount of such specifio damages so found, if any or to LESSEE's Lender if n gdred by a Security I:Dstrurnent_ 19 59 iz:zi:p p.m.aa-za-zazz1 2s I 1e072245,2; 03123/2U22 11: 39 190 2243 '23 RESUF'EC,TI0NBA'',' SEAFL:, PAGE 231'35 If part but not all of the Leased Land is condertined for public use, LESSEE shall mare a good faith deteunination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE detezxnines in good faith that the condemning of such part of the Leased Land will prevent it from, continuing to operate on the Leased Land,LES SEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fiftee�x (1.5) days frora the date LESSEE sends such notice to CITY", or at such, other later date as LESSEE shall :�fiecify in its notice, and such termination.shall be treated ixx the same marmor as a termination at the expiration, of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts, and liens to which the Leased Land is Subject. If at the time of such partial taking for public use, LESSEE determines that such partial takiug will not prevent it from continuing to operate,then LESSEE anal CITY shall negotiate an equitable anal partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevouted from utilizing the condemned.land. ARTICLE V-ARBITRATION 17.1 Arbitration. a) Disputes between the parties with respect to the performance of this LEASE that cannot be resolved by the parties,may be submitted to an i-ndependent arbitrator for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS 09,43.010 et. seq.), 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. Either party may submit to the,ether party a request for arbitration and the party receiving a request small have twenty(20) days to consent, in.writing,to the use of arbitration to resolve the dispute. Failure of eitla. r party to consent will preclude the use of arbitration for that dispute. The costs and expenses of arbitration shall be shared equally by the parties, au.d each party shall bear its own attorney's fees au,d costs, b) Arbitration procedures Shall he applicable orxly 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 osa conduct that is a felony crime in the State of Alaska. c) Arbitration of any dispute or claim shall be determined by a single arbitrator selected front a list of not less than five(5) arbitrators obtained from the presiding Superior Court Judge or other appropriate judioial officer in A-nch.oxage, Alaska. The arbitrator shall be a person who (a) has not less than. five (S) years legal experience: in the State of Alaska prior to appointm.mt; and (b) such legal experience includes substantial experience with long-term commercial real propca-ty transactions. Each party shall be:provided with a copy of the list and shall be afforded a maximum of ten (I0) working days to become familiar with the qualifications of the prospective arbitrators. The arbitrator shall be selected by each. 20 60 12:21:6'p.m.03-23-2022 24 I 740-2243-23 03/23;'2022 11: 39 19072'2437'i REr;I_EF.'E[=:TICJNEA''r' SEAFL} PAGE 24;'35 party, commencing with the party demanding the arbitration, striking one name tom the list until only a single name remains. d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other location as the parties may agree, Each party shad produce at the request of the other party, at least thirty(3.0)days in advance of such hearing, (i)the names, addresses,phone numbers, and email addresses for all witnesses who may testify at the hearitag,and (ii) 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 W the record, shall be additional grounds fur modifying or vacating an arbitration decision. ARTICLE 18-MALNTENANCE AND REPAIRS 18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof, if any,LESSEE shall, at LPSSEE's sole cost,risk and expense,maintain the Leased.Land, including any improvements placed thereon by LESSEE,in as good condition as received or coMtructed by LESSEE, subject to nor=l, noz,-abusive use. CITY, at CIT Y''s sole option and expense,may,prior to the coFnmen.ceznent 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 an.injals,or prepare the Leased Land for eventual development by LESSEE or others by grading, filling, or contouring the Teased Land. Any such world performed by C.ITY 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 equiprnmt,if any are placed oil Leased Land. M2 Safet -sues_ 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 Cii7y in writing of its proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE's operation such that tint sounding land and port facilities are exposed to risk, unnecessary potential. hazards, or a risk to the public interest (as distinguished from a business risk), or if CITY is not satisfied with the: proposed schedule of repair because of either becau ofthe delays therein or the scope of the repair,,, then CITY may engage an independent engineering consultant well-versed and experienced who shall punish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recoulmundations, if 21 61 12:21:07 p.m.R3-23-2022 2} 196 2243723 03..." ,'2022 11: -Iti 19071-2,F3 r'23 RESURECT10HBAY SEAFD FAGL 25/35 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 ofRepairs. Should LESSEE dispute the necessity of any maintenance work as being necessary or advisable or reaso)a ble 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 frilly comply with the maintmanee requests. If an arbitration award should ultiroately fad that the repairs were not necessary,then LESSEE may either deduct front future rental payments the cost of such repairs or be reimbursed therefor. In deciding whether rcpairq 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 citi,-�em of Seward in ligbt of the highest standards in the industry- If any facility or service provided by CITY to the Leased Land shalt become inadequate due to changes in environmental control standards or should au facility require updating or improvement by reason of a change in LESSEE's use of the Leased Land or operations therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the option of CITY. ARTICLE 19 -FN�MONPI+ENTAL CONCERNS 19-1 Hazar&ws Materials. a) 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 qf C17` ,A.uy 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, count costs, litigation expenses, and consultant and expert fees) arising prior to, duriu& 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 resulting 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 OfCITY'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,sts3te,or local agency or political subdivision or by law or regulation. c) Use of Hazardous,Vaterials on the Site?. i) LESSEE shall not cause or permit any Hazardous Material to be brought upon, kept, or used ire or about the Leased Laad except for such,Hazardous 22 62 1,21:0-p.m.03-23-2022 2G 14072243723 E=131`2: :{202 11: :39 1907224:=7 _' F,'ESI_IRECTIOhdES{ E, ErFD PAGE � !': Material as is necessary to conduct LESSEE's authorized use of the Leased Lind, ii) Any Hazardous Material permitted on the Leased Land as provided in this paragraph, and all containers therefor, shall be used, Dept, stored, and disposed of in a manner that complies with all Environmental L-aws or other lags or regulations applicable to such Razardnus Material. iii) LESSEE, shall not discharge, leak, or emit, or permit to be discharged, leaked;or emitted,any material into the atmosphere, gToiuzd,gromid 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,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, mid disposal of Hazardous Material kept or brought on the Leased Land by LESSEE, its authorized represenwives and invitees, and LESSEE shall give immediate notice;to CITY of any violation or poterntial violation of the provisions of this subparagraph. d) lndernnefxation of C171". Any other provision of this LEASE to the contrary notwithstamding, LESSEE shall defend, inde=if_y, and hold COY harml.oss frorn and against any claims, deinands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (including, without limitation, attorney, consultant anal expert tees,court costs,and litigation expenses)of whatever kind or ;natur(--, known or niibiown, contingent or otherwise, arising out of or in any way te,lated to. i) The presence,disposal,release,oz threatcnedrelease ofanysucla Hazardous Material which is on or Exom the Leased Land, soil, water, ground xvaWr, vegetation,buildings,personal property,persons,animals, or otherwise; Any personal injury(including;vrortgfuJ dead?) or property damage(real gar personal)arising otit of or related to such Hazardous Material or any use of the Leased Land; iii) Any lawsuit 4ought or threatened.,settlement reached,or government order relating to such Hazardous Material or any use of the Leased Land; and/or iv) My violation of any laws applicable thereto; provi&d, however, that this Section 19.1(d) shall apply only if the acts giving rise to the cl.airm, demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (1) occur prior to or daring the term of this LEASE: and 23 63 72:21.07 p.m.03-23-2022 190-2243"23 13;''23;'`2022 11: 39 19072'�43 72 3 F'ESIJRE.=TICIhJBr;''r' Er FL? PAGE 7''=;5 (2)arise,in whole or ixl part, from the use of,operations on,or activities on the: Leased Land by LESSEE or LESSEE's predecessors in interest, employees, agents, invitees, contractoor8, subcontractors, authorized representatives, subtenants, or any other persons. Tl?e provisions of this subparagraph skull be in addition to any other obligations and liabilities LESSEE may have to CITY at law or equity and shall s-avive the transactions contemplated herein and shall survive the tennivation of this LEASE. e) Operator, For all purposes, LESSEE shall be deemed the operator of any facility orr the Leased Land. f) Hazardous Material.Defined. As used in this LEASE, Hazardous Material is any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Tazardous 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 l nvirouniental Law. Notwithstanding any statutory petroleum exclusion, for the purposes of this LEASE, the terra Hazardous Material inclu(ies, without limitation, petroleum, including crude oil or any fraction thercof, petroleum soaked absorbent material, and other petroleum wastes. g) EnvironnwntalLawDefined, As used in this LEASE,Environmental Laws include any anal all local, state,and federal ordinances, statutes, and regulations, as,aow in force or as may be amended from time to time,relating to the protection.of lia M an. 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 forcgoirig, Alaska Statutes Title 46, the Resource Coi)servation and Recovery Act of 1976,. the Compn hensive Ewvironmtntal Response, Compensation and Liability Act of 1980, the Clean Water Act, =d the Superfund Amendments and Reautborization Act of 1986. .19.2 Permits and Repor-dng. a) Pei7nits Required by Other Governmental Agencies.. LESSEE shall obtain all permits or approvals required by tiny 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_ 11w Cl'I Y, through the City Manager,may order LESSEE to immediately cease any operations or activities o:a the Leased.Land if the same is being carried out without necessary permits, in viola.tiou of the terms of any permit or Environmental Lary, or eozi axy to dais LEASE. 24 64 1±:21:07 p.m.03-23-2022 1gp72243723 03/223''2022 11: 39 1907224372:-Ij F.FSURECTIOHBA-V SEAFD PAGE 28/35 b) Correspondence with and fteports to Environmental Agencies. LESSEE shall immediately(the, same or the next business day) provide CITY with copies of all correspondence and notice, iocludin,g copies of all reports between LESSEE and any state, federal, or local government.or agency regulating Hazardous Material which relates to LE.SSEW� operations on or use of the Leased Land. ARTICLE 20-ESTOPPEL CERTIFIC.A.TES Either party shall at any time and fiom time to time upon not less than ten(10) days'prior written. request by the other party, execute, a(,kn.owledge, and deliver to such party, or to its designee, a statement in writing certifying that this LEASE its un-amended and in full force and effect (or, if there fans been airy amoodmeot thereof, that the same is in full force and effect as amended and stating the amendment or aunendments), that: there are no defaults existng (or, if there is any claimed defavit, stating the nature:rmd extent thereof), and that there are no defaults existing (or, if there is any claimed default, stating the nature and extent thereof), and that there are no offsets,claims or countcrclairns by or in.favor of CITY against LESSEE under this LEASE (oz describing all such offsets, clauns and counterclaims), the remaining term of this LEASE and any extensions heron, all encumbrances gaated by CITY, stating the dates to which the rent and other charges have been paid in advance, and include such other provisions as a prospective assignee of the LESSEE's interest in this LEASE or a prospective leasehold mortgagee would reasonably request.. ARTICLE 21-CONDITIONS AND COVENANTS All the provisions of this LEASE shall be construed to be "conditions" as well as "covenants," as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. ARTICLE 22 -NO WAIVER OF BREACH No failure by either CITY or LESSEE to insist upon the strict performance by the othei of any term, covenant, or condition of this LEASE or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such terms, covenants, or conditions_ No waiver of any breach shall affect ox alter this LEASE, but each and every term, covenant, and condition of this LEASE shell continue in full force amd effect with respect to any other than an existing or subsequent breach. ARTICLE 23 -TILVIE OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 24 -COMPUTATION OF TIME The time in which any act provided by this C FASE is to be,done by shall be cornputed 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. 25 65 12:21:07 p.m.03-23-2022 29 1 190.2243723 I &3/23/2022 11: 39 19072243723 RESURE_ITICINBA"," SEA%FD PAGE 29 35 ARTICLE 25-SUCCESSORS I INTEREST Each and all of the terms,covenants,and conditions in this LEASE shall inure to the bmeht of aril shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 26-ENTIRE AGREEMENT This LEASE contains the entire agreement of the parries 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. ARTICLE 27-GOVERNING LAW This LEASE shall be-governed by, construed, and enforced in accordance with the laws of the State of Alaska, The teens of this LEASE are subject in all respects to the Charter and Cod(,- of Ordinances of CITY in effect on the date of this LEASE.,and as they crtay be hereafter amended, including, without limitation, Chapter 7.05 of the Seward City Code_ ARTICLE 28-PARTIAL INVALIDITY If any provision of this LEASE is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired,or invalidated_ ARTICLE 29-RELATIONStUP OF PARTIES 'Nothing contained in this LEASE shall be deemed or const ued by the patties or by any third person to create the relationship of principal and agent or of partuership 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 CTTV and LESSEE other than the relationship of lessee and lessor. ARTICLE 30-INTERPRETATION The lan .a.ge in all parts of this LEASE shall in all cases be simply constmed according to its fair meaning and not for or against CITY or LESSEE afi both CITY and LESSEE have had the opportunity to seek assistance of counsel in drafting and reviewing this LEASE. ARTICLE 31 -CAPTIONS 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 interpretat[ou, con.stmctian, or meaning of the provisions of this LEASE. 26 66 1 2:21:(i7 p,.,.C.3-3-2022 3o 190722437,23 F,13/23/2022 11: 39 19072243723 RESURECTI011EN,` SEAFD PAI:--iE 30/3E ARTICLE 32-AMENDMENT This LEASE is Dot subject to amendment except in writing executed by both parties hereto. ARTICLE 33-NOTICES All notices, demands, or requests from oze party to aiaotj).er shau be delivered in person or be sent by mail, certified or.registered,postage prepaid-, to the addresses stated in this Article and to such other persons and addresses as either party may designate. Notice ley mail.ihalibe deemed to have been given at the time of mailing- A]I notices, demands, and requoqs from LESSEE to CITY sball.be given to CITY' at the Ulo. vving address: City Manager CITY OF SMATARD PO Box 167 Seward, Alaska 99664 All notices, dernancts or requests from CITY to LESSEE shall be given to LESSEE at the follo,;4ng addl-ess: Seward Pacific Resurrection Bay Seafoods.Inc PO BOX 1710 Se,ward,AK 99664 Each party shall have the right,from time to time,to designate a different address by notice, given in conformity with this Article. ARTICLE 34-FIRE PROTECTION FOR LEASED LAND 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 coatimie to provide and maintain industry accepted standards of fire protection sueb mat the City of Seward's ISO ratilig is not dvWaded by reason.of LESSEE'S operation. The parties agree that with the rapid expansion of technology it the field of fire prevention and control LESSEE's obligations ber��. nder.Tray vary during the term of this LEASE and CITY may submit LESSEE's compliance wit its obligation hereunder to arbitration not more frequently than once each five years. 27 67 --———------ 12:21:07 03-23-2tC2 � 31 190-2243723 0 S, 231 2 L-1 27 2 11 39 19072243723 RE'::UFECTjgiB"-,,'y' SEAFE, FACE 5 LTV WITNESS WHEREOF, the parties hereto have set their hands and seals the dates he-rein se forth. CITY: LESSEE: CITY OF SEWARD Seward Pacific Resurrection Bay Seafoods By. 13y- Jaiiette Bower, City Manager Da-vid%irid1p, neral•l age'r, Date: Date ATTEST: Brenda Ballou City Clerk STATE OF ALASKA ss- THIRD JUDICIAL DISTRICT The foregoing instrument was acknowledged b6ore me this day of 2022,by Janette Bower,City Manager of the City of Seward,Alaska,on behalf -cif the City, Notary Public in and for Alaska My co=.iission Expires-. I'd STATE Chi Id Al�H i WO-T AJ couN7,9 OP THIRD JUDICIAL DISTRICT 28 68 ------------ ---------------- 12:21:07p.m,03- -202 � 32 14077.243'23 '2-3' 2- t22 11: 39 19072249 2? RESUREC,TIONBA'',` =EAFri PAGE 2r'95 The foregoin wa aQkowledge before rue this dad of N040) ; 2022,by David Bindle General Manager,wbo executed the foregoing document on behalf of Jo cle Seafoods, Inc., a corporation; and of u-ined such act to be the tree and voluntary act of such emporation for the uses anal purposes mentioned in the insftment. ; 2tiC«t.aryk is in arnci for fN+�$HI`x/G�Q . , sly Commission Expires_ 0a` 4;e� /- o L/ PG 29 69 *IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII� GeographicC'f�i Parcel 14823009 and 14823010 , 1�� Month Binkley Street,Soldotna,Alaska 99669 Jtp� `bY i�P, • f „ s Pat A g qt,. .. Legend • Mileposts City Limits — Highways — Major Roads Roads — Town Medium Volume Town Low/Seasonal,Other ` Proposed Parcels S E V V A D ❑ Boundary 4 ❑ Footprint Image .4 "� ■ Red: Red ' _, _ ■ Green:Green V I: ■ Blue: Blue Boundary F . [� Footprint ~� Image .ad, t� I� _� ■ Red: Red ■ Green:Green Blue: Blue 41*° This map is a user generated static output from an Intemet mapping site and Is for reference only.Data layers that appear on this map may or may not be accurate,current,or otherwise reliable. It is not to be used for navigation. Notes Type any notes here. DATE PRINTED: 3/16/2022 70 �, IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII� GeographicExhibit A Parcel #14823009 r; c "~144 North F, Soldotna,Alaska 99669 7.4 r e Legend " "" 4 ; . . • Mileposts City Limits Highways Major Roads Roads — Town Medium Volume — Town Low/Seasonal;Other S " Proposed Parcels E W A ❑ Boundary [� Footprint Image Red: Red'„ . Green:Green S t . Blue: Blue r .. ❑ Boundary [J Footprint Image Red: Red a r Green:Green .. Blue: Blue R a �� "". •dry k This map is a user generated static output from an Internet maoo ng site and Is for reference only.Data layers that appear on this map may or may not be accurate,current,or otherwise reliable. It Is not to be used for navigation. Notes Type any notes here. DATE PRINTED: 3/16/2022 71 �, IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII� GeographicExhibit 6 Parcel #14823010 rr In North BwOr`y`ttrcet So,Idntna,Alaska 99669 dt ps 1 41, ........................................................ LJ Legend • Mileposts City Limits Highways — Major Roads Roads Town Medium Volume — Town Low/Seasonal;Other " r r" Proposed a, r _ Parcels ti a ❑ Boundary ❑ Footprint ImageM - t " aIL .T . Red: Red . Green:Green " " x . Blue: Blue ` ❑ Boundary ' ❑ Footprint , Image Red: Red Green:Green Blue: Blue c4Ya4, f v This map is a user generated static output from an Internet mapping site ana is far reference only.Data layers tnat appear on this map may or may not be accurate,current,or otherwise reliable. It is not to be used for navigation. Notes Type any notes here. DATE PRINTED: 3/16/2022 72