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HomeMy WebLinkAboutRES2026-074 PH He Will Provide Inc LeaseSponsored by: Sorensen Public Hearing: September 14, 2026 CITY OF SEWARD, ALASKA RESOLUTION 2026-074 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW LEASE AGREEMENT WITH HE WILL PROVIDE INC. FOR THE LOWER LEVEL OF THE SENIOR CENTER FACILITY WHEREAS, He Will Provide Inc. (HWPI) has been providing food pantry services to the community since 2007; and WHEREAS, HWPI has operated from a space in the lower level of the City Hall Annex since 2013; and WHEREAS, in 2025 they distributed over 30,000 pounds of food to an average of 60 clients per week; and WHEREAS, HWPI requested a new lease to help provide location security going forward; and WHEREAS, the lower level of the Senior Center building is available and is a better place to provide their services. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA: Section 1. The City Manager is authorized enter into a new lease agreement in substantially similar form to the included document with He Will Provide Inc. for the space in the lower level of the Senior Center Building. Section 2. This resolution shall take effect 30 days after approval. APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA THIS 14th DAY OF SEPTEMBER 2026. Sue McClure, Mayor CITY OF SEWARD, ALASKA RESOLUTION 2026-074 Page 2 of 2 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Warner, Barnwell, Osenga, Draper, Calhoon, McClure None Crites None Kris Peck City Clerk OF S.41'•. . `�rG t i Q 1 •o• •at Y • k SF AL City Council Agenda Statement Meeting Date: September 14, 2026 To: City Council Through: Kat Sorensen, City Manager From: Jason Bickling, Deputy City Manager Subject: Resolution 2026-074: Authorizing the City Manager to Enter into a New Lease Agreement with He Will Provide Inc. for the Lower Level of the Senior Center Facility Background and justification: He Will Provide Inc. (HWPI) Food Pantry provides valuable services to the Seward Community. Information from HWPI: He Will Provide, Inc. began in Seward, Alaska in 2007 at the request of the Seward Ministerial Association. There are no paid staff, rather we are fortunate to have many dedicated volunteers who do everything from stocking shelves to cleaning the floor and defrosting the freezers. Volunteers are from all over the community. HWP has no partnership/ or formal relationship from any religious organization in town. He Will Provide Food Pantry is open Thursdays from 3 to 6. It is open to all people who come in the door. Data from 2025 378 clients 10 report to be homeless or camping Average of 60 clients per week throughout the year 283 clients were 1 to 10 time users 48 clients were 11 to 20 time users 32 clients were 21 to 30 users 10 clients were 31 to 40 users 5 clients were 42 to 54 users The highest distribution day saw over 90 shoppers; this was around Thanksgiving and Christmas time. He Will Provide distributed 30,161 pounds of weighed food. The City of Seward negotiated and entered into a lease agreement with HWPI (Res. 2013-047) to use a portion of the lower level of the City Hall Annex. They have exercised multiple extensions/amendments. In January 2019, City Council passed Resolution 2019-005 to waive lease payment requirements, lowering the rent from $625 per month to $300 per month. The current lease agreement expires on November 1, 2027. City Council Agenda Statement They have requested a renewed/new lease in advance to help ensure stability of knowing where they will operate. The proposed agreement would be a 5-year lease agreement with the option of two 5-year extensions. We have also updated the lease to our current standard format and language. Recently, the lower level of the Senior Center Facility became available and that would be a much better location for HWPI. To give time for Parks & Recreation to vacate the facility and to do some maintenance, the effective lease date will be January 1, 2027. Fiscal Impact: Funding Source: x Fiscal Impact 1 Yes — Amount: $3,600 Budgeted: No x Yes No N/A General Fund: 01000-0000-4380 Rent and Leases Revenue Enterprise Fund: Grant: Other: Finance Director Signature: cue Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: 2.2.7 Community Partnerships; 3.7.1.8 Strategic Plan: Other: x Yes Attorney Signature: /s/ Rob Palmer Not applicable Comments: Administration Recommendation x Approve Other: LEASE AGREEMENT between CITY OF SEWARD, ALASKA and HE WILL PROVIDE, INC. Effective Date: January 1, 2027 TABLE OF CONTENTS ARTICLE 1 - LEASED LAND 1 1.1 Description of Leased Land 1 1.2 Covenant of Quiet Enjoyment; Warranty of Title 2 1.3 Property Accepted 2 1.4 Permits 2 1.5 Platting Error! Bookmark not defined. 1.6 Development of Leased Land.. 3 ARTICLE 2 - LEASE TERM 3 2.1 Lease Term 3 ARTICLE 3 - RENTAL RATE 3 3.1 Initial Rental Rate 3 3.2 Rental Adjustments 4 3.3 Procedure for Rental Adjustment 4 3.4 Effect of Late Appraisal by CITY Error! Bookmark not defined. 3.5 Appraisal by LESSEE 5 3.6 Effective Date of Adjusted Rental Rate 5 3.7 Interim Rental Adjustments 5 3.8 Late Payment Charge 6 ARTICLE 4 - USE OF LEASED LAND 6 4.1 Use of Leased Land 6 4.2 Obligations of LESSEE 6 4.3 Use of the Dock 7 4.4 No Preferential Rights to Use Public Facilities 8 4.5 Adequacy of Public Facilities 8 4.6 Tariffs and Other Service Fees 8 4.7 Time for Payment of Utilities and Taxes 8 4.8 Other Uses 8 4.9 Use of Public Docks and Port Facilities .8 ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 9 5.1 Utilities 9 5.2 Third -Party Improvements 9 5.3 Easements 10 ARTICLE 6 - CONSTRUCTION BY LESSEE 10 6.1 Improvements on Leased Land 10 6.2 City Review of Construction 11 ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS 11 7.1 Return of Leased Land in Original Condition 11 7.2 Return of Leased Land in Different Condition 12 i ARTICLE 8 - FORCE MAJEURE 12 ARTICLE 9 - LESSEE'S ACTS OF DEFAULT 12 ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE 10 ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 11 11.1 Real Property Improvements 11 11.2 Personal Property 12 ARTICLE 12 - ASSIGNMENT OR SUBLEASE 12 12.1 Assignment of Lease or Subleasing 12 12.2 Assignment of Lease for Security 12 12.3 Assignment to Affiliate 13 ARTICLE 13 - LESSEE'S DUTY TO DEFEND/INDEMNIFY 13 ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY 13 ARTICLE 15 - INSURANCE 13 15.1 Minimum Insurance Requirements 13 15.2 Subrogation Rights Waived 14 ARTICLE 16 - CONDEMNATION 15 ARTICLE 17 - ARBITRATION 15 17.1 Arbitration 15 ARTICLE 18 - MAINTENANCE AND REPAIRS 20 18.1 Normal Maintenance 20 18.2 Safety Issues 20 18.3 Cost of Repairs 21 ARTICLE 19 - ENVIRONMENTAL CONCERNS 21 19.1 Hazardous Materials 18 19.2 Permits and Reporting 20 ARTICLE 20 - ESTOPPEL CERTIFICATES 24 ARTICLE 21 - CONDITIONS AND COVENANTS 21 ARTICLE 22 - NO WAIVER OF BREACH 21 ARTICLE 23 - TIME OF THE ESSENCE 22 ARTICLE 24 - COMPUTATION OF TIME 22 ARTICLE 25 - SUCCESSORS IN INTEREST 22 ARTICLE 26 - ENTIRE AGREEMENT 22 ARTICLE 27 - GOVERNING LAW 22 ARTICLE 28 - PARTIAL INVALIDITY 23 ARTICLE 29 - RELATIONSHIP OF PARTIES 23 ARTICLE 30 - INTERPRETATION 23 ARTICLE 31 - CAPTIONS 23 ARTICLE 32 - AMENDMENT 23 ARTICLE 33 - NOTICES 23 ii 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 HE WILL PROVIDE, INC. ("LESSEE" or "HWP") an Alaska nonprofit corporation (#109386), whose address is P.O. Box 3445, Seward, Alaska 99664. WHEREAS, the CITY has rented space to HWP for storage and distribution of food since 2013 (Res. 2013-047) and at less than fair market rent because of the value HWP provides the community (Res. 2019-005); and WHEREAS, the current lease terminates on November 1, 2027, and HWP is looking for continued rental certainty; and WHEREAS, HWP is a 501(c)(3) that, through volunteer services, provides food pantry services to 50-100 families weekly; and WHEREAS, HWP is in good standing with the City lease agreement by paying $300 per month; and WHEREAS, the City is willing to continue renting certain real property to be used by HWP for storage and distribution of food; and WHEREAS, the City Council has determined that the lease of the property described below to HWP for less than fair market value is in the public interest; and WHEREAS, this lease is authorized by Resolution 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: The Lower Level of the "Senior Center Building" at 336 Third Ave / 301 Jefferson St, Seward, Alaska ("Leased Land"). 1 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 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 and zoning that may be required for the lawful 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 Reserved.. 1.6 Development of Leased Land. The intent of this Lease is for LESSEE to continue operating a food pantry LESSEE understands that operation of its food pantry 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. 2 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- (the "Resolution"). The Lease Term shall commence on the January 1, 2027 and that date shall be the effective date of this Lease (the "Effective Date"). The Lease Term shall run for approximately 5 years from the Effective Date, ending at midnight on December 31St, 2032. 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. ARTICLE 3 - RENTAL RATE 3.1 Rental Rate. The rental rate is $300 per month. 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. The rent may be prepaid annually at the LESSEE's discretion. 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, 3 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 4.1 Use of Leased Land. CITY has limited land available for lease. LESSEE may only use the Leased Land for the food pantry 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. 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. 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 4 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 Payment 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 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 Signage. LESSEE, with the consent of the CITY, may construct, install and maintain, or affix any sign, banner, or like display identifying the Leased Land as a food bank to be placed upon the Leased Land in such a manner as to be visible from the outside. Any signage so displayed or affixed must be removed upon the expiration of the lease term. ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 5.1 Utilities. Utilities will be paid by the CITY. 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 5 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. 6 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 City approval and 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 less 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. 7 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 shall 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 reason, 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. 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. 8 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 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 9 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; 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; 10 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 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 11 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 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 12 b) If the default for which notice is given is a breach of Section 9.3, CITY shall not exercise any of the remedies afforded to it under Article 10 above so long as LESSEE or 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 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 ONE MILLION DOLLARS ($1,000,000) for all injuries and/or deaths resulting to any one person and ONE MILLION DOLLARS 13 ($1,000,000) 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 ONE MILLION DOLLARS ($1,000,000) 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. 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 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 14 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 LES SEE'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 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. 17.1 Arbitration. ARTICLE 17 - ARBITRATION 15 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. seq.), as it now exists or may hereafter be amended from time to time, and judgment on the award may be entered in any Superior Court in the State of Alaska. Either party may submit to the 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 attorney's fees and costs. b) Arbitration procedures shall be applicable only to contract, negligence, and similar claims arising from or related to this Lease, and shall not be used to resolve or determine any claim based upon fraud, intentional misrepresentation, nor any claim based on conduct that is a felony crime in the State of Alaska. c) 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 long-term commercial real property transactions. Each party shall be provided with a copy of the list and shall be afforded a maximum of ten (10) working days to become familiar with the qualifications of the prospective arbitrators. The arbitrator shall be selected by each party, commencing with the party demanding the arbitration, striking one name from the list until only a single name remains. d) Arbitration hearings shall be conducted in Anchorage, Alaska, or such other location as the parties may agree. Each party 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. 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 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 17 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 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, 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. 18 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, 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 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 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 less than ten (10) days' prior written request by the other party, execute, acknowledge, and deliver to such party, or to its designee, a statement in writing certifying that this Lease is unamended and in full force and effect (or, if there has been any amendment thereof, that the same is in full force and effect as amended and stating the amendment or amendments), that there are no defaults existing (or, if there is any claimed default, stating the nature and extent thereof), and stating the dates to which the rent and other charges have been paid in advance. 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, 21 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 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 22 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 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 23 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: He Will Provide Inc. P.O. Box 3445 Seward, AK 99664 Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. ARTICLE 34 - Reserved IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. 24 CITY: LESSEE: CITY OF SEWARD HE WILL PROVIDE, INC. By: By: Kathleen Sorensen, City Manager Date: ATTEST: Kris Peck City Clerk STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) Name: Title: Date: THIS IS TO CERTIFY that on this day of , 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. Notary Public in and for Alaska My Commission Expires: 25 STATE OF ) ) ss. COUNTY OF ) THIS IS TO CERTIFY that on this day of , 2026, before me, the undersigned, a Notary Public in and for the State of , personally appeared by known to me and to me known to be the of He Will Provide, Inc., 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. Notary Public in and for My Commission Expires: 26