HomeMy WebLinkAboutRES2026-035 Cordova Telecom - Fiber Optic CableSponsored by: Sorensen
Public Hearing: April 13, 2026
CITY OF SEWARD, ALASKA
RESOLUTION 2026-035
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA,
AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW LEASE
AGREEMENT WITH CORDOVA TELECOM COOPERATIVE FOR INSTALLATION
OF A HIGH-SPEED SUBMARINE FIBER-OPTIC CABLE ACROSS CITY OWNED
TIDELAND ALONG THE WATERFRONT
WHEREAS, Cordova Telecom Cooperative has requested permission to cross the City tideland
and upland for the purpose of constructing, laying, and installing a subsea cable between Cordova
and Seward; and
WHEREAS, this subsea cable would pass through a concrete headwall and continue via PVC duct
work up the beach to a beach manhole; and
WHEREAS, a terrestrial cable will then connect the beach manhole to the existing GCI vault
where it will continue underground; and
WHEREAS, best management practices will be used during this project and utilize native
materials for any backfill needed; and
WHEREAS, this lease was structured on a similar non-exclusive permit area that was used for
GCI in 2003 by Resolution 2003-111 and Kodiak Kenai Cable Company in 2006 by Resolution
2006-82 and GCI has agreed to CTC use of permit area; and
WHEREAS, the City and GCI have been notified and have agreed to this work as outlined.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA:
Section 1. The City Council hereby authorizes the City Manager to enter into a new lease
agreement with Cordova Telecom Cooperative (CTC) for the non-exclusive use of permit area 1
and 3 as described within the lease.
Section 4. This resolution shall take effect 30 days after approval.
APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA THIS 13TH
OF APRIL 2026.
gtte'Yv c.c .► e
Sue McClure, Mayor
CITY OF SEWARD, ALASKA
RESOLUTION 2026-035
Page 2 of 2
AYES: Calhoon, Osenga, Warner, Draper, Barnwell, Crites, McClure
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
Kris Peck
City Clerk
City Council Agenda Statement
Meeting Date: April 13, 2026
To: City Council
Through: Kat Sorensen, City Manager
From: Tony Sieminski, Harbormaster
Subject: Resolution 2026-035: Authorizing the City Manager to Enter into a
New Lease Agreement with Cordova Telecom Cooperative for
Installation of a High -Speed Submarine Fiber -Optic Cable Across
City Owned Tideland Along the Waterfront
Background and justification:
Cordova Telecom Cooperative (CTC) has requested permission to cross City tideland and uplands
with the purpose of constructing, laying and installing a sub -sea fiber-optic cable with the intent
to bring broadband interne to Alaska between Cordova and Seward.
A single 1.85-inch sub -sea cable will be brought ashore via PVC duct work passing through a
buried concrete headwall located at the low water mark; from there proceed up the beach to their
proposed beach manhole on the shore where it would make connection. This trench from the low
water mark to their beach manhole will measure approximately 3 feet wide and 6 feet deep. The
proposed work will be performed using an excavator along with other vehicles while adhering to
best management practices, including restoring all disturbed areas. Any backfill needed will use
native materials. In addition to the project, a ditch will be excavated using hand tools to lay a
terrestrial cable between the new beach manhole and GCI' s vault to the north where the cable will
proceed underground (Attachment A).
This lease agreement was structured on a similar non-exclusive permit area that was used for GCI
in 2003, adopted by resolution 2003-111 and in 2006 with Kodiak Kenai Cable Company
(KKCC), adopted by resolution 2006-82. GCI has consented, as agreed to within their permit, for
the use of permit area 1 and permit area 3 (Attachment B). Any additional permits or rights -of -
way needed will be applied for at that time.
Comprehensive and Strategic Plan Consistency Information
This legislation is consistent with (citation listed):
Comprehensive Plan:
Strategic Plan:
Other:
Total amount of funds listed in this legislation: $ $5,300.00
This legislation (✓):
X
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): 11000-2000-5000
X
Not budgeted
Not applicable
$ $5,300.00
Affected Fund (✓):
General
Boat Harbor
Motor Pool
X
SMIC
Parking
Other
Electric
Water
Wastewater
Healthcare
Note: amounts are unaudited
Available Fund Balance/Net Position as of 12/31/25 $ 5,553,067.47
Finance Director Signature:
X
Yes
Attorney Signature:
Not applicable Comments:
Administration Recommendation
X
Adopt Resolution
Other:
LEASE AGREEMENT
between
CITY OF SEWARD, ALASKA
and
CORDOVA TELECOM COOPERATIVE, INCORPORATED
Effective Date: f MQU i 0 1, 2026
TABLE OF CONTENTS
ARTICLE 1- LEASED LAND
1.1 Description of Leased Land
1.2 Covenant of Quiet Enjoyment;
1.3 Property Accepted
1.4 Permits
1.5 Platting
1.6 Development of Leased Land
ARTICLE 2 - LEASE TERM
2.1 Lease Term
ARTICLE 3 - RENTAL RATE
3.1 Initial Rental Rate
3.2 Rental Adjustments
3:3 Procedure for Rental Adjustment
3.4 Effect of Late Appraisal by CITY
3.5 Appraisal by LESSEE
3.6 Effective Date of Adjusted Rental Rate
3.7 Interim Rental Adjustments
3.8 Late Payment Charge
ARTICLE 4 - USE OF LEASED LAND
4.1 Use of Leased Land
4.2 Obligations of LESSEE
4.3 Use of the Dock
4.4 No Preferential Rights to Use Public Facilities
4.5 Adequacy of Public Facilities
4.6 Tariffs and Other Service Fees
4.7 Time for Payment of Utilities and Taxes
4.8 Other Uses
4.9 Use of Public Docks and Port Facilities
ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS
5.1 Utilities
5.2 Third -Party Improvements
5.3 Easements
ARTICLE 6 - CONSTRUCTION BY LESSEE
6.1 Improvements on Leased Land
6.2 City Review of Construction
ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS
7.1 Return of Leased Land in Original Condition
7.2 Return of Leased Land in Different Condition
Warranty of Title
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1
1
2
2
3
3
3
3
3
5
5
4
4
6
5
5
5
6
6
6
6
7
8
8
8
8
8
8
9
9
9
10
10
10
11
11
11
12
ARTICLE 8 -
ARTIC'I.F:9 -
ARTICI.E 10
ARTICLE 11
11.1
11.2
ARTICLE 12
12.1
12.2
12.3
ARTICLE 13
ARTICI.E 14
ARTICLE 15
15.1 Minimum insurance Requirements.
15.2 Subrogation Rights Waited
ARTICLE 16
ARTICLE 17
17.1
ARTICLE 18
18.1
18.2
18.3
ARTICLF: 19
19.1
19.E
ARTICLE 20
ARTICLE 21
ARTICLE 22
ARTICLE 23
ARTICLE 24
ARTICLE 25
A RTICLE 26
ARTICLE; 27
ARTICLE 28
ARTICLE: 29
ARTICLE 30
ARTICLE 31
ARTICLE: 32
ARTICLF. 33
FORCE MAJI'11RE 12
LESSEE'S ACTS OF DEFAULT ..12
- REMEDIFS FOR DEFAULT BY LESSEE 15
• TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 17
Real Property Improvements 17
Personal Property... 17
- ASSIGNMENT OR SUBLEASE 17
Assignment of Lease or Subleasing .. 17
Assignment of Lease for Security !7
Assignment to Affiliate 18
- LESSEE'S DUTY '10 DEFEND/INDEMNIFY 18
- CITY'S DUTY TO DEFEND/INDEMNIFY 18
- INSIJRAN('M: 19
19
20
• CONDEMNATION 20
• ARBITRATION 21
Arbitration .21
- MAINTENANCE AND REPAIRS 20
Normal Maintenance 20
Safety Issues 20
Cost of Repairs 21
- ENVIRONMENTAL CONCERNS. / 1
Hazardous Materials 23
Permits and Reporting .26
- ESTOPPEL CERTIFICATES 24
- CONDITIONS AND COVENANTS ,. 27
- NO WAIVER OF BREACH 27
- TIME OF TIIE ESSENCE: 27
- COMPUTATION OF TIME 27
• SUCCESSORS IN INTEREST 27
- ENTIRE AGREEMENT -.28
- GOVERNING LAW 28
- PAR'1'IAI. INVALIDITY 28
- RELATIONSHIP OF PARTIES 28
- INTERPRETATION ... 28
- CAPTIONS 28
- AMENDMENT 29
- NOTICES
ii
19
THIS LEASE AGREEMENT (the "Lease") is made by and between the CITY OF
SEWARD (the "CITY"), a municipal corporation located in the Kenai Peninsula Borough, State
of Alaska, whose mailing address is P.O. Box 167, Seward, Alaska 99664 and CORDOVA
TELECOM COOPERATIVE, INCORPORATED, ("LESSEE" or "CTC") an Alaska COOP
Electric and Telephone company, whose address is P.O. Box 459, Cordova, Alaska 99503. 2702
Denali Street, Suite 100, Anchorage, Alaska 99503.
WHEREAS, the CITY currently owns or controls real property, which would give
LESSEE permission to cross City land for the purpose of constructing, laying, operating,
maintaining, replacing and removing fiber optic cables and incidental improvements; and
WHEREAS, the permission granted by the City applies to City land described in the
attached Lease Agreement without substantially limiting the CITY's current and future use of the
property; and
WHEREAS, the Lease area covers substantially the same non-exclusive area as for GCI
Communication Cop ("GCI") 2003 Permit and GCI has consented to KKCC's 2006 permit and
now Cordova Telecom Cooperative's ("CTC") similar location; and
WHEREAS, the CITY would benefit from the periodic quarterly payments from LESSEE;
and
WHEREAS, the City and CTC agree to the terms and conditions as outlined in the
attached Lease Agreement.
WHEREAS, this lease is authorized by Resolution aoa(9 -O .5
NOW THEREFORE, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1- 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:
That portion of Tract D and Tract A of Plat 2012-04, Seward Recording District, Third Judicial
District, State of Alaska, located in Township 1 South, Range l West, Section 10, Seward
Meridian and more particularly described as follows:
1
CTC (& GCI) Area 1 (in Parcel #14734001):
An area twenty feet wide, ten feet each side of the following described line:
Commencing RM 7 of ATS 174 traverse South 37'32'43" East a
distance of 293.03 feet to a point; Thence North 78'38'57" East, a
distance of 115.26 feet to line of Mean High Water and the TRUE
POINT OF BEGINNING; Thence continuing North 78'38'57"
East, a distance of 445.15 feet to the line of ATS 174 Director's
Line.
Said Area 1 contains 8,903 square feet of 0.20 acres, more or less.
CTC (& GCI) Area 3 (in Parcel #14734004):
An area twenty feet wide, ten feet each side of the following described line:
Commencing RM 7 of ATS 174 traverse South 37'32'43" East a
distance of 293.03 feet to a point; Thence North 78°38'57" East, a
distance of 82.96 feet to the TRUE POINT OF BEGINNING;
Thence continuing North 78°38'57" East, a distance of 32.27 feet to
the line of Mean High Water.
Said Area 3 contains 645 square feet or 0.015 acres, more or less.
CTC Area 4 (in Parcel #14734004)
An area twenty feet wide, ten feet on each side of the line fixed by an as -built,
amended to this lease after approval, and anticipated to be approximately 500 feet
long.
Said Area 4 contains approximately 10,000 square feet or 0.23 acres.
Temporary Construction Area
An area 100 feet around the Cable and associated infrastructure (i.e., beach
manhole and vault) as depicted in the drawing labeled Seward Staking Sheet Rev.
2 (12/31/2025) by SGV International.
Said Temporary Construction Area contains approximately 146,000 square feet or
3.35 acres.
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.
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
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
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.
3
1.6 Development of Leased Land. The intent of this Lease is for LESSEE to install, operate,
maintain, and remove one or more telecommunication cables and any reasonable and
incidental improvements thereto ("Cable"), together with the right of ingress to and egress
across adjacent property, including tidelands, owned or controlled by the City. LESSEE
understands that operation of its telecommunication 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.
a) CITY may withhold its consent as to any proposed business or activity which, in
CITY's sole discretion, is not desirable or compatible with the CITY's operation of the
Leased Land or surrounding property.
b) In accordance with the provisions of Article 12, no assignment or sublease shall be
permitted, unless approved in writing by CITY. Any sublease shall be expressly subject
and subordinate to this Lease and the rights of the CITY hereunder. The CITY may
elect to not approve any proposed assignment or sublease that might result in a business
or activity that, in the CITY's sole discretion, is undesirable and/or incompatible with
the CITY's management of its property.
ARTICLE 2 - LEASE TERM
2.1 Lease Term. The term of this Lease (the "Lease Term") shall be in accordance with CITY's
authorization in Resolution No. 2026- 035 (the "Resolution"). The Lease Term 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 run for approximately 20
years from the Effective Date, ending at midnight on December 31, 2046. LESSEE shall
have the right to extend the term of this Lease for two 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 under any term or provision of this Lease; and
c) LESSEE shall exercise its options to extend by sending written notice in accordance
with the provisions of Article 33 of this Lease.
2.2 Temporary Construction Area. Due to the heavy congestion between May and September
with local residents and visitors, LESSEE should schedule construction in the bordering
4
months or the off-season when possible. If LESSEE needs to perform construction between
May and September, LESSEE must submit a proposed schedule identifying major
construction elements and a mitigation plan that maximizes public use of the area except
as necessary. The temporary construction area authorization expires no later than two
calendar years after the lease is executed.
ARTICLE 3 - RENTAL RATE
3.1 Initial Rental Rate. Commencing on the Effective Date of this Lease through June 30, 2030,
the base rental rate is $5,300.00 per year. Rent shall be payable quarterly in advance upon
the Effective Date of this Lease (prorated for the balance of the current quarter) and
thereafter on or before the 20th day of the month beginning each calendar quarter: January
20, April 20, July 20, and October 20. The amount of each quarterly payment shall be one -
quarter of the annual rental rate as initially established or later adjusted under this Article
3.
3.2 Rental Adjustments.
(a) Annual CPI Adjustment. Between the 5-year appraisal rental adjustments, the annual
rental rate will be adjusted by the Consumer Price Index.
(b) 5 year Appraisal Adjustment. The 5-year rental payment shall be adjusted on July
I, 2030, and on the same date every five years thereafter (each a "Rental
Adjustment Date"). The adjusted 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 5-year 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 applicable 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
5
adjusted 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 Datc, 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 appraisal. If CITY objects to LESSEE's appraiser's determination of the Fair
Market Rental Value, CITY shall give written notice to LESSEE of its objection within
thirty (30) days of receipt of the appraiser's report, and CITY shall then engage an
independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at
CITY's expense to make an appraisal of the Fair Market Rental Value as of the Rental
Adjustment Date and in accordance with this Article 3. If the CITY's appraisal determines
a Fair Market Rental Value that varies from that determined by LESSEE's appraisal by no
more than twenty percent (20%), then the adjusted rental rate shall be the average of the
rental rates determined by the two appraisals. If the CITY's appraisal determines a Fair
Market Rental Value that varies from LESSEE's appraisal by more than twenty percent
(20%), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual
(,
rental rate of the Leased Land shall be determined in accordance with the arbitration
provisions contained in Article 19 of this Lease.
3.6 Effective Date of Adjusted 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 ninety (90) days before the Rental Adjustment
Date. If the adjusted annual rental rate is based on CITY's late appraisal or late delivery of
the appraisal report 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 exercise by either CITY
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 rate established by CITY.
LESSEE shall pay the amount of rent as established or adjusted by CITY until the question
of objection to 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 new 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 Interim Rental Adjustments. For each year in the period between each Rental Adjustment
Date, excepting the Rental Adjustment Dates, the annual rental payment shall be increased
beginning July 1, 2027 and on July 1 of every year thereafter (each on "Interim Rental
Adjustment Date") in an amount that reflects the increase, if any, in the cost of living for
the previous year as stated in the Consumer Price Index, All Urban Consumers, Anchorage,
Alaska Area, All Items (967=100 ("CPI"), as published by the United States Department
of Labor, Bureau of Labor 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 reasonably necessary, in the CITY's sole
discretion, to accomplish as nearly the same result as if the CPI had not been revised or
ceased to be published.
3.8 Late Payment Charge. Rental payments not received by the due date shall bear interest
until paid at a rate of 10.5% per annum, or the maximum rate permitted under Alaska law,
whichever is less, plus a flat monthly late fee of $2.50, or such amount as may be
established from time to time by CITY ordinance or resolution and relating to late fees for
CITY leases generally.
ARTICLE 4 - USE OF LEASED LAND
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4.1 Use of Leased Land. CITY has limited land available for lease. LESSEE may only use the
Leased Land for telecommunication purposes and uses necessary and incidental thereto,
and such use has been determined by the City Council of CITY to be in the public interest.
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) 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 facilities. 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.
4.6 Time for Payinent of Utilities and Taxes. LESSEE will pay for utilities and taxes related to
operations on the Leased Land and LESSEE's interest in this Lease and improvements
ti
thereon, if any, before such obligations become delinquent; provided that LESSEE may, in
good faith and before such delinquency, contest any such charge or assessment.
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 Special conditions.
a) Construction plans. Prior to commencing any work on or in the Leased Land,
LESSEE must submit to the CITY —for prior approval, which may not be
unreasonably withheld —a detailed construction plan for installation for the Cable
and plan or restoration of any property effected, in and out of the Leased Land,
following construction and installation of the Cable. Such plans must include, but
are not limited to, locates for GCI infrastructure, cable marking (signage), erosion
control, and habitat and shoreline protection measures. Depth of the Cable,
encasement and fill must meet or exceed industry standards.
b) As -built survey. Within one hundred eighty (180) days from the date of construction
LESSEE, at its sole cost, will deliver to the City an as-bult survey of the Leased
Land in recordable form, prepared by a registered land surveyor.
c) Locates. Above mean low water, LESSEE will provide Cable locates (i) on an on -
call basis for emergency situations, and (ii) within 48 hours as specified in state
utility law for all other locates requested by the City. Below mean low water,
LESSEE will provide a locate within 15 days after notice to LESSEE or at a
mutually agreeable time.
d) Coordination of Activities with GCI
GCI utility easement. In the Leased Land and in Area 2, another
telecommunication company, GCI, has a utility easement for cable and
associated infrastructure. LESSEE agrees to coordinate all excavation
work and placement of any Cable related infrastructure with GCI so as not
to interfere with GCI. If there is a conflict between GCI and LESSEE,
LESSEE's rights are subordinate to GCI's unless federal or state law
expressly dictates otherwise.
ii. General notice. Except in emergencies, LESSEE must provide the CITY
at least five (5) days prior written notice to the CITY and GCI of its intent
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to enter upon CITY property to commence any construction, removal, or
excavation related to the Cable.
iii. Emergency. In the event of an emergency (including, without limitation,
periods during which the Cable is out of service) LESSEE may
immediately act to enter upon the CITY property and the Leased Land to
take all necessary and reasonable steps to address the emergency.
ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS
5.1 Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of
public utilities to the Leased Land sufficient for LESSEE's intended operations. In so doing,
LESSEE shall comply with all CITY regulations and requirements, and the tariffs of the
affected utilities, with respect to the construction of those utilities. CITY 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 sizcd in accordance
with 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 right-of-ways or within public utility easements will normally
be accepted and maintained by CITY or utility companies may be used to serve other
customers of LESSEE's without payment of fees or reimbursement of construction cost to
the LESSEE. However, this does not preclude several lessees from agreeing to share the
cost of constructing a utility to serve their facilities. CITY or other utility company may
determine 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 oversizing 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 its facility and the price of the oversized material required by CITY or
utility company.
LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent,
investment, or costs incurred by LESSEE with respect to any required permits for
construction or operation of LESSEE's facilities on the Leased Land, it being the intent of
the parties that the risk of obtaining required permits be solely a risk undertaken by
LESSEE.
11)
5.2 Third -Party Improvements. At the request of LESSEE, CITY shall, from time to time,
execute and deliver, or join in execution and delivery of, such documents as are
appropriate, necessary, or required to impose upon the Leased Land in accordance with the
terms of this Lease covenants, conditions, and restrictions providing for the granting of
uses of the Leased Land, or any part thereof, the establishment of party walls, the
establishment of mutual and reciprocal parking rights or rights of ingress or egress, or other
like matters (herein called "third -party improvements"), all of which are for the purpose of
the orderly development of the Leased Land as a commercial unit subject, however, to the
conditions that:
a) All such matters shall be limited to the Lease Term and shall terminate upon
termination of this Lease for whatever reason.
b) 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.
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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.
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 commencement of construction.
d) LESSEE is solely responsible for resurveying and locating improvements on the
Leased Land in such manner not to violate building setback requirements or
encroach into rights -of -ways or easements. On completion of any improvements,
LESSEE shall provide CITY a copy of an as -built survey depicting the
improvements as completed on the Leased Land.
e) Any general contractor employed by LESSEE shall be appropriately bonded by use
of performance and labor and material payment bonds in the customary form when
cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000).
Copies of all such bonds shall be furnished to CITY prior to commencement of
construction. If the cost of the work is Tess than FIFTY THOUSAND DOLLARS
($50,000), LESSEE shall provide CITY, if no performance and labor and material
bonds are provided by LESSEE, any necessary assurances or guarantees that the
contemplated work will be performed by the general contractor or by LESSEE. In
the event that LESSEE elects to construct the facility with its own personnel and
equipment, or the personnel and equipment of any corporation or person that is an
"affiliate" of LESSEE as such term is defined in AS 10.06.990(2) or Alaska limited
liability company in which LESSEE maintains a substantial membership interest, a
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.
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g) LESSEE shall comply with all federal, state, and local statutes and regulations with
respect to such construction, including, but not limited to, all applicable building,
mechanical, and fire codes.
6.2 City Review of Construction. CITY shall have the right to review initial plans, including
those supplied to CITY under Section 6.1 hereof, and any future changes or additions to
LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the
commencement of construction. CITY shall have the right to comment upon that design
and to require LESSEE to make reasonable changes so as to avoid interference with public
operations, but the exercise of these rights shall not imply any obligation to do so nor any
obligation to do so in a particular way. LESSEE shall construct the facility in accordance
with final design specifications approved by CITY. CITY's representatives may monitor
the work and shall have access to the site at all reasonable times. LESSEE shall be solely
responsible for completing all improvements according to LESSEE'S plans and
specifications and shall bear all risk, responsibility, and liability for properly surveying the
Leased Land before construction and to place all improvements on the Leased Land
without encroaching upon any land, easements, rights -of -way, or setback requirements.
LESSEE shalt obtain the 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. Upon termination of this Lease for any
rcason, LESSEE shall return the Leased Land to CITY in the same condition as at the
commencement of this Lease, subject to normal, non -abusive use. However, upon request
by the LESSEE and written consent of the CITY, the LESSEE may leave the Cable in place
considering any subsequent Cable removal costs are fully paid by the LESSEE. 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.
7.2 Return of Leased Land in Different Condition. Notwithstanding the provisions of Section
7.1 above, upon termination of this Lease for any reason LESSEE may return the Leased
Land in a re -contoured or graded clean, safe and stable condition different from its original
condition provided CITY grants written approval of LESSEE's plans for development of
the Leased Land contours, including its plans for material extraction and final grade.
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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 which shall remain undismissed for a period of six (6) months
from the date of commencement thereof.
9.5 Violation by LESSEE of any laws or regulations of the United States, or of the State of
Alaska, or any conditions of any permits issued by agencies of the City of Seward, the
Kenai Peninsula Borough, the State of Alaska, or of the United States Government
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applicable to LESSEE's use of the Leased Land, pursuant to the regulations of such
agencies, for a period of sixty (60) days after written notice specifying such violation has
been given by the agency charged with the enforcement of such laws, regulations, or
permits to LESSEE; provided, however, if such violation be such that it cannot be corrected
within the applicable period, it shall not constitute an act of default if corrective action is
instituted by LESSEE within the applicable period and diligently pursued until the
violation is corrected. Furthermore, if LESSEE shall contest such alleged violation through
appropriate judicial or administrative channels, the time period specified herein shall not
commence until such proceedings are finally determined provided such proceedings are
diligently pursued; provided, however, that any such extension of time shall not be
effective if the 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.
ARTICLE 10 - REMEDIES 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 shall have the following rights
and remedies all in addition to any rights and remedies that may be given to CITY by statute,
common law, or otherwise:
10.1 CITY may distrain for rent due any of LESSEE's personal property which comes into
CITY's possession. This remedy shall include the right of CITY to dispose of personal
property distrained in any commercially reasonable manner. It shall be conclusively
presumed that compliance with the procedures set forth in the Alaska Uniform Commercial
Code (AS 45.29.601-.628) with respect to sale of property shall be a commercially
reasonable disposal.
10.2 CITY may re-enter the Leased Land and take possession thereof and, except for any
personal property of LESSEE which CITY has waived its right to distrain under Section
10.1 above, remove all personal property of LESSEE from the Leased Land. Such personal
property may be stored in place or may be removed and stored in a public warehouse or
elsewhere at the cost of LESSEE all without service of notice or resort to legal process, all
of which LESSEE expressly waives.
10.3 In addition to the above, CITY may:
a) Declare this Lease terminated;
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b) Collect any and all rents due or to become due from subtenants or other occupants
of the Leased Land;
c) Recover from LESSEE, whether this Lease be terminated or not, reasonable
attorney's fees and all other expenses incurred by CITY by reason of the breach or
default by LESSEE;
d) Recover an amount to be due immediately on breach equal to the unpaid rent for
the entire remaining term of this Lease.
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
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such right and power may be exercised from time to time and as often as may be deemed
expedient.
ARTICLE 11- TITLE TO IMPROVEMENTS INSTALLED BY LESSEE
11.1 Real Property Improvements. All improvements constructed by LESSEE 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 similar improvements, shall
become the property of CITY upon termination of this LEASE for any reason; provided,
however, that CITY may require LESSEE to remove any improvements designated by
CITY and without cost to CITY.
11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding,
LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly
remove, in no event later than ninety (90) days from the termination of the LEASE, trade
fixtures and equipment from the Leased Land provided that LESSEE shall repair any
damages to the Leased Land caused by such removal.
ARTICLE 12 - ASSIGNMENT OR SUBLEASE
12.1 Assignment of Lease or Subleasing. The parties recognize that this Lease has been
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, LESSEE shall not assign or sublease this Lease
without CITY's prior written consent, in CITY's sole discretion.
12.2 Assignment of Lease for Security. Notwithstanding Section 12.1 above, LESSEE may
assign, encumber, or mortgage its interest in this LEASE or improvements on the Leased
Land, by deed of trust or other security instrument, to an institutional lender ("Lender") for
development of or operations on the Leased Land, provided that Lender shall be subject to
all obligations of LESSEE under the terms of this LEASE upon foreclosure. CITY shall
furnish Lender, at the address provided to CITY by Lender in writing, with notice of any
default or breach of LESSEE under this LEASE. Lender shall have the right (without being
required to do so and without thereby assuming the obligations of LESSEE under this
LEASE) to make good such default or breach within thirty (30) days after written notice
specifying such breach. Notwithstanding the provisions of Article 10 above, no "LESSEE
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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 cure 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 Lender fails to cure the default or breach within a reasonable period of time
thereafter; and
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 undcr Article 10 above so long as
LESSEE or Lender remains in possession of the Leased Land and satisfies
LESSEE's 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
CITY shall defend and hold LESSEE, its officials, employees, agents, and contractors
harmless from any and all liability or claims for damages, including personal injuries, death, and
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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 Tess than ONE MILLION DOLLARS ($1,000,000) per occurrence
combined single limit for bodily injury and property damage.
LESSEE shall also maintain workers' compensation insurance as required under Alaska
law. The minimum amounts and types of insurance provided by LESSEE shall be subject
to revision at the sole discretion of CITY in accordance with standard insurance practices,
in order to provide continuously throughout the term of this Lease and any extensions
hereof, a level of protection consonant with good business practice and accepted standards
in the industry. Such factors as changes in the type of or extent of use of the Lease Land,
increases in the cost of living, inflationary pressures, and other considerations, shall be
utilized in assessing whether the minimum insurance requirements should be increased.
CITY shall notify LESSEE of any required increase in insurance coverage.
All insurance policies shall provide for thirty (30) days' notice of cancellation and/or
material change to be sent to CITY at the address designated in ARTICLE 33 of this Lease.
All such policies shall be written by insurance companies legally authorized or licensed to
do business in the State of Alaska and acceptable to CITY (Best's Rating B+ or better).
CITY shall be listed as an additional insured under all insurance policies. LESSEE shall
furnish CITY, on forms approved by CITY, certificates evidencing that it has procured the
insurance required herein prior to the occupancy of the Leased Land or operation by
LESSEE. Insurance policy deductibles are subject to approval by CITY. Nothing herein
contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or
LESSEE's own individual cost and expense, additional or other insurance as may be
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desired. The minimum insurance requirements under this Lease shall not act to limit
LESSEE's liability for any occurrence and shall not limit LESSEE's duty to defend and
indemnify CITY for claims related to this Lease or the Leased Land.
15.2 Subrogation Rights Waived. LESSEE agrees that its policies of insurance will include a
waiver of subrogation clause or endorsement releasing CITY, its elected and appointed
officials, employees and volunteers, and others working on behalf of CITY from 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 shall have been caused by the fault
or negligence of the CITY, its elected or appointed officials, employees or volunteers, or
others working on behalf of the CITY. This provision shall be applicable and in full force
and effect 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's policies of insurance shall contain a clause or endorsement to the 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
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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. deg.), 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 or 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 attomey's
fees and costs.
b) Arbitration procedures shall be applicable only to contract, negligence, and similar
claims arising from or related to this Lease, and shall not be used to resolve or
determine any claim based upon fraud, intentional misrepresentation, nor any claim
based on conduct that is a felony crime in the State of Alaska.
c) Arbitration of any dispute or claim shall be determined by a single arbitrator
selected from a list of not less than five (5) arbitrators obtained from the presiding
Superior Court Judge or other appropriate judicial officer in Anchorage, Alaska.
The arbitrator shall be a person who (a) has not less than five (5) years legal
experience in the State of Alaska prior to appointment; and (b) such legal
experience includes substantial experience with Tong -term commercial real
property transactions. Each party shall be provided with a copy of the list and shall
be afforded a maximum of ten (10) working days to become familiar with the
qualifications of the prospective arbitrators. The arbitrator shall be selected by each
party, commencing with the party demanding the arbitration, striking one name
from the list until only a single name remains.
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d) Arbitration hearings shall be conducted in Anchorage, Alaska, or such other
location as the parties may agree. Each party shall produce at the request of the
other party, at least thirty (30) days in advance of such hearing, (i) the names,
addresses, phone numbers, and email addresses for all witnesses who may testify
at the hearing; 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 in the record, shall be additional grounds for modifying or vacating an
arbitration decision.
ARTICLE 18 - MAINTENANCE AND REPAIRS
18.1 Normal Maintenance. During the entire term of this Lease and every extension hereof, if
any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased Land,
including any improvements placed thereon by LESSEE, in as good condition as received
or constructed by LESSEE, subject to normal, non -abusive use. CITY, at CITY's sole
option and expense, may, prior to the commencement of construction by LESSEE, perform
maintenance and preventative work on the Leased Land, exclusive of improvements placed
thereon by LESSEE, in order to prevent erosion, mitigate damage to plants and animals, or
prepare the Leased Land for eventual development by LESSEE or others by grading,
filling, or contouring the Leased Land. Any such work performed by CITY shall be at
CITY's sole expense and risk unless LESSEE agrees, in advance and in writing, to share
such expense and risk. LESSEE shall maintain in first class condition at all times all fire,
pollution, and other protective equipment, if any are placed on Leased Land.
18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance
of LESSEE's maintenance responsibilities as they relate to public health or safety and
LESSEE shall promptly within thirty (30) days of receipt of such notice advise CITY in
writing of its proposed schedule for performance of any work necessary to cure such
deficiencies.
If such deficiencies relate to the safety of LESSEE's operation such that the surrounding
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
22
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 therefor. In deciding
whether repairs requested by CITY or required by an engineering report are necessary, the
arbitration panel is to give primary consideration to the safety and welfare of the Seward
port facilities and the citizens of Seward in light of the highest standards 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, attomey's fees, court costs, litigation expenses, and consultant and expert
fees) arising 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 arising out of or resulting from LESSEE's operations at the Leased
Land except for those claims arising out of CITY's sole negligence or intentional
misconduct. LESSEE is not responsible for any claims, demands, penalties, fines,
23
judgments, liabilities, settlements, damages, costs, or expenses (including, without
limitation, attorney's fees, court costs, litigation expenses, and consultant and expert
fees) arising before or after the term of this Lease, and resulting from the use,
keeping, storage, or disposal of Hazardous Material on the Leased Land by any
party other than LESSEE or any of its employees, agents, subtenants, invitees,
contractors, subcontractors, or authorized representatives. This release includes,
without limitation, any and all costs incurred due to any investigation of the Leased
Land or any cleanup, removal, or restoration mandated by a federal, state, or local
agency or political subdivision or by law or regulation.
c) Use of Hazardous Materials on the Site.
i) LESSEE shall not cause or permit any Hazardous Material to be brought
upon, kept, or used in or about the Leased Land except for such Hazardous
Material as is necessary to conduct LESSEE's authorized use of the Leased
Land.
ii) Any Hazardous Material permitted on the Leased Land as provided in this
paragraph, and all containers therefor, shall be used, kept, stored, and
disposed of in a manner that complies with all Environmental Laws or other
laws or regulations applicable to such Hazardous Material.
iii) LESSEE shall not discharge, leak, or emit, or permit to be discharged,
leaked, or emitted, any material into the atmosphere, ground, ground water,
sewer system, or any body of water, if such material (as reasonably
determined by the City, or any governmental authority) does or may, pollute
or contaminate the same, or may adversely affect the (a) health, welfare, or
safety of persons, whether located on the Leased Land or elsewhere; or (b)
condition, use, or enjoyment of the Leased Land or any other area or
personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and expenses
related to the use, storage, and disposal of Hazardous Material kept or
brought on the Leased Land by LESSEE, its authorized representatives and
invitees, and LESSEE shall give immediate notice to CITY of any violation
or potential violation of the provisions of this subparagraph.
d) Indemnification of CITY. Any other provision of this Lease to the contrary
notwithstanding, LESSEE shall defend, indemnify, and hold CITY harmless from
and against any claims, demands, penalties, fines, judgments, liabilities,
2,1
settlements, damages, costs, or expenses (including, without limitation, attorney,
consultant and expert fees, court costs, and litigation expenses) of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in any way
related to the following conditions caused or permitted by LESSEE or any of its
employees, agents, subtenants, invitees, contractors, subcontractors, or authorized
representatives during the Lease Term:
i) The presence, disposal, release, or threatened release of any such Hazardous
Material which is on or from the Leased Land, soil, water, ground water,
vegetation, buildings, personal property, persons, animals, or otherwise;
ii) Any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to Hazardous Material or any use of the
Leased Land;
iii) Any lawsuit brought or threatened, settlement reached, or government order
relating to 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 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
25
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.
a) Permits Required by Other Governmental Agencies. LESSEE shall obtain all
permits or approvals required by any applicable law or regulation relating to
LESSEE's use of the Leased Land. Copies of all such permits shall be provided to
CITY prior to LESSEE commencing work under this Lease. LESSEE shall
promptly make all reports to any federal, state, or local government or agency
required by any permit or Environmental Law, including reports of any spill or
discharge of Hazardous Material. The CITY, through the City Manager, may order
LESSEE to immediately cease any operations or activities on the Leased Land if
the same is being carried out without necessary permits, in violation of the terms of
any permit or Environmental Law, or contrary to this Lease.
b) Correspondence With and Reports to Environmental Agencies. LESSEE shall
immediately (the same or the next business day) provide CITY with copies of all
correspondence and notice, including copies of all reports between LESSEE and
any state, federal, or local government or agency regulating Hazardous Material
which relates to LESSEE's operations on or use of the Leased Land.
ARTICLE 20 - ESTOPPEL CERTIFICATES
Either party shall at any time and from time to time upon not Tess than ten (10) days' prior
written request by the other party, execute, acknowledge, and deliver to such party, or to its
designee, a statement in writing certifying that this Lease is unamended and in full force and effect
(or, if there has been any amendment thereof, that the same is in full force and effect as amended
and stating the amendment or amendments), that there are no defaults existing (or, if there is any
26
claimed default, stating the nature and extent thereof), and stating the dates to which the rent and
other charges have been paid in advance.
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 other of
any term, covenant, or condition of this Lease or to exercise any right or remedy consequent upon
a breach thereof, shall constitute a waiver of any such breach or of such terms, covenants, or
conditions. No waiver of any breach shall affect or alter this Lease, but each and every term,
covenant, and condition of this Lease shall continue in full force and effect with respect to any
other then existing or subsequent breach.
ARTICLE 23 - TIME 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 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,
recognized by the State of Alaska, and then it is also excluded.
ARTICLE 25 - SUCCESSORS IN INTEREST
Each and all of the terms, covenants, and conditions in this Lease shall inure to the benefit
of and shall be binding upon the successors in interest of CITY and LESSEE.
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
27
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.
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
2K
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:
Cordova Telecom Coop
P.O. Box 459
Cordova, AK 99503
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 - Reserved
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates
herein set forth.
29
CITY:
CITY OF
By:
Date: S
Kath
ATTEST:
, City Manager
Kris Peck
City Clerk
LESSEE:
CORDOVA TELECOM COOPERATIVE,
INCORPORATED
By:
Name: 1.e- <`w.G. e-c-
Title: C
Date: 3 -
Its rrir11,, ,,p,
OF SEt e. •
t
:®r
SEAL I s=
0 _.—
'. (s ...4'E1,.\g:0'�Q'�:
STATE OF ALASKA ) .PJd, ,1 ��..........�PS `s,
1 OF A\-
} SS. oPpsvvvvvrrt o�
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this 15 day of 4p n'' , 2026, before me, the
undersigned, a Notary Public in and for the State of Alaska, personally appeared Kathleen
Sorensen, known to me and to me known to be the City Manager for the City of Seward, Alaska,
and authorized to execute documents on its behalf, and is the individual named in and who
executed the foregoing document on behalf of the corporation for the uses and purposes therein
set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
Notaryubfic in and for Ala ka
My Commission Expires: V(// /
30
KRISTIN WISE
Notary Public
State of Alaska
My Commission Expires July 1,20 ::•
STATE OF Y11cg)
IA .S #,,, w� p'- ) ss.
COUNTY OF C�erltilii&\CA Lvit,vc )
THIS IS TO CERTIFY that on this Z?1day oft{fib
undersig e a Notary Public in and for the State of _ i61��G�-
je s4,\,14-3(okn to me and to me known to be the (�,
, 2026, before me, the
, personally appeared by
of Cordova Telecom
Cooperative, Incorporated, who executed the foregoing document on behalf of said corporation,
and is authorized to execute documents on its behalf, and is the individual named in and who
executed the foregoing document on behalf of the corporation for the uses and purposes therein
set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
LISA KOKER
Ngtary Puttlic
State of AlAska
My Commission Expires Oct 17, 2029
�`lM;7i+•.,�;t'V�,ryY`YYc'�ynt�,,9q�
31
Notary Public in and for L t, t -AWkiCt
My Commission Expires: 1lA fl