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HomeMy WebLinkAboutRES2025-058 New Lease Bay Barge Cof i Sponsored by: Sorensen Public Hearing: June 9, 2025 CITY OF SEWARD, ALASKA RESOLUTION 2025-058 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW LEASE WITH MIKE AND NORMA MCCORMICK FOR LOT 4, BLOCK 2, MARINA SUBDIVISION, CITY OF SEWARD, ALASKA, RECORDED AS PLAT NO 89-10, IN THE SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA WHEREAS, the City is owner of real property described as Lot 4, Block 2 Marina Subdivision; and WHEREAS, this land has been leased to Mike and Norma McCormick since 1997; and WHEREAS, Mike and Norma McCormick, DBA Bay Barge Company, have been serving fisherman, locals, and tourists for 28 years; and WHEREAS, it is in the public interest to promote retail activity of this type within the City for the benefit of the community; and WHEREAS, having exercised their last lease extension, the McCormick's current lease will expire on June 30, 2025; and WHEREAS, the McCormicks would like to enter into a new lease prior to the expiration of the current lease; and WHEREAS, the new lease would be for a term of 20 years with two 5-year extensions. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The Council has determined that the essential terms and conditions of the proposed lease with Michael and Norma McCormick for the real property described as Lot 4, Block 2, Marina Subdivision, as shown on plat 89-10, Seward Recording District, Third Judicial District, State of Alaska are in the public's interest. Section 2. The City Manager is authorized to execute a new lease with Michael and Norma McCormick in substantially the form as presented at this meeting. Section 3. This resolution shall take effect 30 days from the date and posting of adoption. 507486\1002\00610552 CITY OF SEWARD, ALASKA RESOLUTION 2025-058 PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 9th day of June 2025. THE CITY OF SEWARD, ALASKA m—Ailkcalt re - Sue McClure, Mayor AYES: Warner, Barnwell, Wells, Crites, Finch, Osenga, McClure NOES: None ABSENT: None ABSTAIN: None ATTEST: Kris Peck City Clerk (City Seal) 507486\1002\00610552 City Council Agenda Statement Meeting Date: June 9, 2025 To: City Council Through: Kat Sorensen, City Manager From: Tony Sieminski, Harbormaster Subject: Resolution 2025-058: Authorizing the City Manager to Enter into a New Lease with Mike and Norma McCormick for Lot 4, Block 2, Marina Subdivision, City of Seward, Alaska, Recorded as Plat No 89-10, in the Seward Recording District, Third Judicial District, State of Alaska Background and justification: Michael and Norma McCormick have held a lease with the City of Seward at their current location since 1997. The McCormicks have been serving visitors and locals for almost three decades and wish to continue providing that valuable service in the Northeast Harbor area. In July 2020 they exercised their last five-year lease extension which is scheduled to terminate on June 30, 2025. In January, a formal request was made to enter another long-term lease with the City of Seward. AO VOICE cohit Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: To create a thriving port through harbor improvements, infrastructure expansion, and implementation of management plans Develop a marketing plan that attracts diverse resources, and quality of life that make Seward a great place to live and establish a business Strategic Plan: Other: Total amount of funds listed in this legislation: $ 0 This legislation (✓): Creates revenue in the amount of: Creates expenditure in amount of: Creates a savings in the amount of: Has no fiscal impact Funds are (✓): Budgeted Line item(s): Not budgeted Not applicable X $ $5,040.00 Affected Fund (✓): General Boat Harbor Motor Pool Available Fund Balance SMIC Parking Other Electric Water Wastewater Healthcare Note: amounts are unaudited Finance Director Signature: sou • Yes Attorney Signature: s/ Kody George Not applicable Comments: Administration Recommendation Adopt Resolution Other: LEASE AGREEMENT between CITY OF SEWARD, ALASKA and Michael W. McCormick and Norma I, McCormick Effective Date: [ 1 12.3 Assignment to A,liare ARTICLE 13 = LESSEE'S DUTY TO DEFENDIINDEMNIFY ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY ARTICLE 1 - INSURANCE 15.1 Minimum Insurance Requirements 15,2 Subrogation Rights Waived ARTICLE 16 - CONDEMNATION ARTICLE 17 - ARBITRATION I.7.1 Arbitraeior, 14 14 14 14 14 15 16 16 16 ARTICLE 18 - MAINTENANCE AND REPAIRS 18.1 Normal Maintenance 18.2 Safety Issues 18.3 Coss of Repairs 17 17 17 18 18 18 20 21 21 21 21 22 22 22 22 22 22 2 23 23 23 24 ARTICLE 1 - ENVIRONMENTAL CONCERNS 19,1 Hazardous Materials 19.2 Permits and Reporting ARTICLE 20 - ESTOPPEL CERTIFICATES ARTICLE 21- CONDITIONS AND COVENANTS ARTICLE 22 - NO WATER OF BREACH ARTICLE 23 - TIME OF THE ESSENCE ARTICLE 24 = COMPUTATION OF TIME ARTICLE 25 - SUCCESSORS IN INTEREST ARTICLE 26 - ENTIRE AGREEMENT ARTICLE 27 - GOVERNING LAW ARTICLE 28 - PARTIAL INVALIDITY ARTICLE 29 - RELATIONSHIP OF PARTIES ARTICLE 34 - INTERPRETATION ARTICLE 31 - CAPTIONS ARTICLE 3 - AMENDMENT ARTICLE 33 - NOTICES ARTICLE 34 - FIRE PROTECTION FOR LEASED LAND IN SIC EXHIBIT A ii 1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as of the date hereof, any reasonable restrictions imposed on the Leased Land as part of recording of a plat by CITY, and the provisions of this LEASE, CITY hereby covenants and warrants that LESSEE shall have the quiet enjoyment and possession of the Leased Land for the 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 any expressed or implied representations or warranties of CITY (other than the representations in Section 1.2 hereof), or agents of CITY, as to the actual physical condition or characteristics thereof and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A hereto. 1.4 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction and operation of its facilities on the Leased Land. 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 therefore 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 construction and operation of the facilities of LESSEE permitted 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 permit request is a City of Seward agency, department, or board, LESSEE shall follow all City of Seward procedures, the same 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. Nothing in this Section imposes any duty or responsibility on CITY to assist LESSEE in obtaining any other permits 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., Clean Air Act permits), the Alaska Department of Public Facilities and Transportation (e.g., right-of-way permits), the Alaska Department of Fish and Game, and the Alaska Department of Environmental Conservation. 1.5 Platting. If LESSEE requests a replat of the Leased Land, CITY shall assist LESSEE in the preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's costs in assisting with the preparation and filing of the replat. 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 the plat of the Leased Land or the plat of CITY -owned real property adjacent to the Leased Land. 1.6 Development of Leased Land. LESSEE shall continue to operate a bait and tackle shop. LESSEE understands that construction and operations of its marine -related business is a major consideration for the CITY's agreement to lease the Leased Land to LESSEE. LESSEE shall not operate any other unrelated business on the Leased Land without the consent of the CITY. r annual rental payment to be paid under the terms of this Lease shall be the appraised fair market rental value (the "Fair Market Rental Value") of the Leased Land at the highest and best use of the Leased Land. The highest and best use of the Leased Land shall be determined without regard to LESSEE's intended or actual use of the Leased Land unless that use is coincidentally the highest and best use of the Leased Land. CITY shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety (90) days before each Rental Adjustment Date. 3.3 Procedure for Rental Adjustment. To adjust the rent as of any successive Rental Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute), who shall determine the "Fair Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive of improvements placed thereon by LESSEE but inclusive of all improvements made by CITY (including those made 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 binding determination of the Fair Market Rental Value and the adjusted annual 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 MAI 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 Fair Market Rental Value that varies from CITY's appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this LEASE. 3.4 Effect of Late Appraisal by CITY. If, for any reason, CITY does not complete the appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy of the appraisal report to LESSEE at any time thereafter. However, any such adjusted annual rental rate shall not be effective until the quarterly payment due date immediately following the date CITY delivers the appraisal report to LESSEE. 3.5 Appraisal by LESSEE. If, for any particular Rental Adjustment Date, CITY fails to obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE's 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) days following the Rental Adjustment Date of LESSEE's election to obtain an 4 r r from time to time by CITY ordinance or resolution and relating to late fees for CITY leases generally. ARTICLE 4 - USE OF LEASED LAND 4.1 Use of Leased Land. CITY has limited land available for lease. Use of the Leased Land by LESSEE has been determined by the City Council of CITY to be in the public interest. LESSEE may use the Leased Land for a bait and tackle shop. 4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with applicable CITY zoning code provisions and provided the following conditions are met: a) The Leased Land is to be completely cleaned and restored to its original condition, that is, the condition existing prior to this LEASE or in better condition upon termination of this LEASE. b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous Materials on the Leased Land except as permitted in Article 19 of this LEASE. c) LESSEE shall not use the Leased Land in any manner or construct any facilities thereon which would inhibit the use of adjacent or other lands. d) LESSEE shall operate a bait and tackle store business on the Leased Land. e) Any changes to this site require prior CITY approval, through the City Manager. 4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any exclusive rights to use any public port facilities constructed or operated by CITY. LESSEE will be subject to any tariffs, procedures, rules, and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended, and LESSEE shall not be entitled to any exclusive use. 4.4 Adequacy of Public Facilities. CITY makes no representations or warranties as to the fitness of any particular part or the whole of CITY's public facilities for the uses intended by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the facilities are sufficient for the intended uses by LESSEE. CITY makes no representations or warranties of any nature with respect to the commercial practicability or accuracy of any information provided by CITY. 4.5 Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs, regulations, and scheduled fees from time to time, even if those adjustments shall cost LESSEE more for its operations or use of public facilities, and CITY is free to do so provided only that it does not impose any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities. 6 r r mutual and reciprocal parking rights or rights of ingress or egress, or other like matters (herein called "third -party improvements"), all of which are for the purpose of the orderly development of the Leased Land as a commercial unit subject, however, to the conditions that: a) All such matters shall be limited to the Lease Term and shall terminate upon termination of this LEASE for whatever reason. b) Any such matters of a permanent nature extending beyond the Lease Term shall not be granted without the prior written approval of CITY. In any of the foregoing instances referred to in this Section, CITY shall be without expense therefore, and the cost and expense thereof shall be borne solely by LESSEE. c) At the expiration of the Lease Term (including any extended period) third -party improvements on the Leased Land other than portable equipment shall become the property of CITY without the payment of any compensation to LESSEE. 5.3 Easements. In order to provide for the orderly development of the Leased Land and adjacent lands, it may be necessary, desirable, or required that street, railroad, water, sewer, drainage, gas, power line, and other easements and dedications and similar rights be granted or dedicated over or within portions of the Leased Land. As additional consideration for this LEASE, CITY and LESSEE each shall, at the request of the other, join with each other in executing and delivering such documents from time to time and throughout the Lease Term as may be appropriate, necessary, or required by the several governmental agencies (including the City of Seward), public utilities, and other users or tenants of CITY land for the purpose of granting such easements and dedications; provided, however, that such easements and dedications and similar rights do not unreasonably interfere with LESSEE's operations. The costs of locating or relocating any public easements or restrictions of record including any relocation of public road, railroad, utility, or other easements shall be at the sole cost and expense of the party requesting the relocation. CITY shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or other public property. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. ARTICLE 6 - CONSTRUCTION BY LESSEE 6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter, remodel, reconstruct, rebuild, build, and/or replace buildings and other improvements on the Leased Land, subject to the following conditions: a) The cost of any construction, reconstruction, demolition, or of any changes, alterations, or improvements, shall be borne and paid for by LESSEE. b) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. 8 r r usual and customary performance guarantees from its contractors, and CITY shall be named as an additional insured. ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS 7.1 Return of Leased Land in Original Condition. Subject to the provisions of Article 11.1 herein, upon termination of this LEASE for any reason, LESSEE shall return the Leased Land to CITY in the same condition as at the commencement this LEASE, subject to normal, non -abusive use. The Leased Land shall be free of all Hazardous Materials and contamination arising out of or resulting from or occurring during LESSEE's operations or use of the Leased Land during this LEASE. ARTICLE 8 - FORCE MAJEURE In the event either LESSEE or CITY is delayed from performance of any of its obligations under this LEASE due to acts of nature, acts of the enemies of the United States of America, sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake/tsunami, civil disturbance, or war, the time period wherein such performance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 9 - LESSEE'S ACTS OF DEFAULT Each of the following shall be a "LESSEE Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, any one or more of the following events: 9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20) days from the due date thereof, the rent required to be paid under this LEASE. 9.2 Failure by LESSEE to comply with Section 4.1 of this LEASE. 9.3 Failure by LESSEE to observe, fulfill or perform any covenants, conditions, or agreements on its part to be observed or performed under this LEASE, other than payment of rent or compliance with Section 4.1, for a period of thirty (30) days after written notice specifying such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to LESSEE by CITY; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the default is corrected. 9.4 The making by LESSEE of an assignment for the benefit of creditors, the filing of a petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt, the petition or application by LESSEE to any tribunal for any receiver or any trustee for itself or for any substantial part of its property; or the commencement of any proceeding relating to LESSEE under any bankruptcy, insolvency, reorganization, arrangement, or readjustment of debt law or statute or similar law or statute of any jurisdiction, whether now or hereafter in effect 10 r r b) Collect any and all rents due or to become due from subtenants or other occupants of the Leased Land; c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover an amount to be clue immediately on breach equal to the unpaid rent for the entire remaining term of this LEASE. e) Recover all damages incurred by CITY by reason of LESSEE's default or breach, including, but not limited to, the cost of recovering possession of the Leased Land, expenses of reletting, including costs of necessary renovation and alteration of the premises, reasonable attorney's fees, and any real estate commissions actually paid. f) Remove or require the removal of any improvements constructed without CITY approval or constructed contrary to site development plans approved by CITY and recover all costs and expense incurred by CITY to remove violating improvements. 10.4 If LESSEE does not immediately surrender possession of the Leased Land after termination by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess the Leased Land and expel LESSEE without being deemed guilty in any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenant. 10.5 No expiration or termination of this LEASE shall expire or terminate any liability or obligation to perform of LESSEE's which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. 10.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by CITY of any one or more of the rights and remedies provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all other rights or remedies provided for in this LEASE or now or thereafter existing at law, or in equity or by statute or otherwise. 10.7 No delay or omission to exercise any right or power accruing following an act of default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 12 r r obligations under the terms of this LEASE. Upon foreclosure or other assertion of its security interest, Lender may further assign, transfer, or dispose of its interests, provided that any subsequent assignee, purchaser, or transferee shall remain bound by each and every term of this LEASE. 12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska limited liability company in which LESSEE maintains a substantial membership interest; provided, however, that LESSEE's full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ARTICLE 13 - LESSEE'S DUTY TO DEFEND/INDEMNIFY LESSEE shall defend, indemnify, and hold harmless CITY, its officials, employees, agents, and contractors from any and all liability or claims for damages, including personal injuries, environmental damage, death and property damage arising out of or resulting from LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees, assignees, agents, contractors, or the public, 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. ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or claims for damages, including personal injuries, death, and property damage arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. ARTICLE 15 - INSURANCE 15.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or LESSEE'S occupancy of the Leased Land, LESSEE shall procure and maintain, at LESSEE's sole cost and expense, comprehensive commercial general liability insurance with limits of liability of not less than TWO MILLION DOLLARS ($2,000,000) for all injuries and/or deaths resulting to any one person and TWO MILLION DOLLARS ($2,000,000) limit from any one occurrence. The comprehensive commercial general liability insurance shall include coverage for personal injury, bodily injury, and property damage or destruction. Coverage under such policies of insurance shall include collapse and underground property damage hazards. Contractual liability insurance coverage in the amount of not less than TWO MILLION DOLLARS ($2,000,000) is also required. LESSEE shall obtain owned and non -owned automobile liability insurance with limits of liability of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence combined single limit for bodily injury and property damage. 14 r [ effect that such release shall not adversely affect or impair such policies or prejudice the right of LESSEE to recover thereunder except as against CITY (including its elected and appointed officials, employees and volunteers, and others working on behalf of CITY) during the time of LESSEE's occupancy or use. ARTICLE 16 - CONDEMNATION If all or any part of the Leased Land is condemned for a public use by any government agency or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority; provided, that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. If part but not all of the Leased Land is condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts, and liens to which the Leased Land is subject. If at the time of such partial taking for public use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. ARTICLE 17 - 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 independent arbitrator for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS 09.43.300 et. semc .), 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 other party a request for arbitration and the party receiving a request shall have twenty (20) days to consent, in writing, to the use of arbitration to resolve the dispute. Failure of either 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, and each party shall bear its own attorney's fees and costs. 16 r r shall promptly within thirty (30) days of receipt of such notice advise CITY in writing of its proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE's operation such that the surrounding 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 repairs either because of the delays therein or the scope of the repairs, then CITY may engage an independent engineering consultant well -versed and experienced who shall furnish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recommendations, if the report requires repair then LESSEE shall pay the cost of the report and perform such work in accordance therewith at LESSEE's cost, risk, and expense. 18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being necessary or advisable or reasonable to protect the public facilities on adjacent land, it may submit the matter to arbitration; provided, however, that pending the decision of the arbitrator it shall fully comply with the maintenance requests. If an arbitration award should ultimately find that the repairs were not necessary then LESSEE may either deduct from future rental payments the cost of such repairs or be reimbursed therefore. In deciding whether repairs requested by CITY or required by an engineering report are necessary, the arbitration panel is to give primary consideration to the safety and welfare of the Seward port facilities and the citizens of Seward in light of the highest standards in the industry. If any facility or service provided by CITY to the Leased Land shall become inadequate due to changes in environmental control standards or should any facility require updating or improvement by reason of a change in LESSEE's use of the Leased Land or operations 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 - ENVIRONMENTAL CONCERNS 19.1 Hazardous 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 of CITY. Any other provision of this LEASE to the contrary notwithstanding, LESSEE releases CITY from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert fees) arising prior to, during, and after the term of this LEASE, and resulting from the use, keeping, storage, or disposal of Hazardous Material on the Leased Land by LESSEE or its predecessors in interest, or arising out of or resulting from LESSEE's 18 r r ii) Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Leased Land; iii) Any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Material or any use of the Leased Land; and/or iv) Any violation of any laws applicable thereto; provided, however, that this Section 19.1(d) shall apply only if the acts giving rise to the claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (1) occur prior to or during the term of this LEASE; and (2) arise, in whole or in part, from the use of, operations on, or activities on the Leased Land by LESSEE or LESSEE's predecessors in interest, employees, agents, invitees, contractors, subcontractors, authorized representatives, subtenants, or any other persons. The provisions of this subparagraph shall be in addition to any other obligations and liabilities LESSEE may have to CITY at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this LEASE. e) Operator. For all purposes, LESSEE shall be deemed the operator of any facility on the Leased Land. 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. Hazardous Material includes any and all material or substances which are defined as industrial waste, hazardous waste, extremely hazardous waste, or a hazardous substance under any Environmental Law. Notwithstanding any statutory petroleum exclusion, for the purposes of this LEASE, the term Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material, and other petroleum wastes. g) Environmental Law Defined. As used in this LEASE, Environmental Laws include any and all local, state, and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, Alaska Statutes Title 46, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. 19.2 Permits and Reporting. 20 r r ARTICLE 24 - COMPUTATION OF TIME The time in which any act provided by this LEASE is to be done by shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or a holiday, and then it is also excluded. ARTICLE 25 - SUCCESSORS IN INTEREST 25.1 Each and all of the terms, covenants, and conditions in this LEASE shall inure to the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. 25.2 Notwithstanding Section 25.1, the parties recognize that this LEASE has been determined to be in the public interest by the City Council of CITY for the reasons set forth in the approving Resolution. The rights and duties created by the LEASE are personal to LESSEE and CITY has granted the LEASE in reliance upon the individual character and financial capability of LESSEE. Therefore, if LESSEE or an interested, partial owner of LESSEE, transfers a majority interest to a successor in interest i) LESSEE will notify CITY of such transfer and ii) if transfer occurs without the CITY's prior written consent, the CITY, in CITY's sole discretion, may elect to terminate this LEASE. ARTICLE 26 - ENTIRE AGREEMENT This LEASE contains the entire agreement of the parties with respect to the matters covered by this LEASE, and no other agreement, statement, or promise made by any party which is not contained in this LEASE shall be binding or valid. ARTICLE 27 - GOVERNING LAW This LEASE shall be governed by, construed, and enforced in accordance with the laws of the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter amended, including, without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 28 - PARTIAL 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 - RELATIONSHIP OF PARTIES Nothing contained in this LEASE shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between CITY and LESSEE; and neither the method of computation of rent, nor any other provisions contained in this LEASE, nor any acts of the parties, shall be deemed to create any relationship between CITY and LESSEE other than the relationship of lessee and lessor. 22 0 0 ARTICLE 30 - INTERPRETATION The language in all parts of this LEASE shall in all cases be simply construed according to its fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the 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 interpretation, construction, or meaning of the provisions of this LEASE. ARTICLE 32 - AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 33 - NOTICES All notices, demands, or requests from one party to another shall be delivered in person or be sent by mail, certified or registered, postage prepaid, to the addresses stated in this Article and to such other persons and addresses as either party may designate. Notice by mail shall be deemed to have been given at the time of mailing. All notices, demands, and requests from LESSEE to CITY shall be given to CITY at the following address: City Manager CITY OF SEWARD PO Box 167 Seward, Alaska 99664 All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: Michael W. McCormick and Norma I. McCormick 1.2200 W. Skyline Dr. Eagle River, Alaska 99577 Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. 23 ARTICLE 34 - FIRE PROTECTION FOR LEASED LAND IN SMIC LESSEE shall at its sole cost, risk and expense provide fire detection and protection to its operations on the Leased Land and fire prevention to industry standards for risks to adjacent facilities such that those risks are minimized. LESSEE shall continue to provide and maintain industry accepted standards of fire protection such that the City of Seward's ISO rating is not degraded by reason of LESSEE'S operation. The parties agree that with the rapid expansion of technology in the field of fire prevention and control LESSEE's obligations hereunder may vary during the term of this LEASE and CITY may submit LESSEE's compliance with its obligation hereunder to arbitration not more frequently than once each five years. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: CITY OF SEWARD , I K. th CM- - nsen, City Manager Date: 6-1 2. - ATTEST: Kris Peck City Clerk LESSEE: MICHAEL W. MCCORMICK AND NORMA I MCCORMICK Michael W. McCormick r� Norma I. McCormick Date: MAY 24 124 \\1\1111111t1111111//11114 Nictrzt •NOTARyL 4., PUBLIC i �'. ,' 9. ZOO.•' i 447 10/1110 24 0 0 STATE OF ALASKA THIRD JUDICIAL DISTRICT The foregoing instrument was acknowledged before me this 1(0 day of fv NE 2025, by Kathleen Sorensen, City Manager of the City of Seward, Alaska, on behalf of the City. KRISTIN WISE Notary Public State of Alaska My Commission Expires July 1, 2028 STATE OF ALASKA THIRD JUDICIAL DISTRICT Notary Public in and for Alaska My Commission Expires: July l 02g The foregoing instrument was acknowledged before me this D day of M , 2025, by Michael W. McCormick who executed the foregoing document for the uses and rposes therein set forth. Notary Pubic in and for Alaska My Commission Expires: OAR 2UZ." l STATE OF ALASKA THIRD JUDICIAL DISTRICT The foregoing instrument was acknowledged before me this (}1 day of 2025, by Norma I. McCormick who executed the foregoing document for the uses and purposes therein set forth. Notary Pub c ind'or Alaiska My Commission Expires: Q VI 12) Lag 25