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HomeMy WebLinkAboutRes1994-209 . . . Sponsored by: Jones CITY OF SEWARD, ALASKA RESOLUTION NO. 94-209 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A LONG TERM LEASE OF A PORTION OF LOT 3, BLOCK 8, SMIC FOURTH OF JULY CREEK SUBDIVISION, TO MCCAW CELLULAR COMMUNICATIONS, INC., DBA CELLULAR ONE WHEREAS, McCaw Cellular Communications, Inc., dba Cellular One, has requested a lease of approximately 1,000 square feet of land in the Seward Marine Industrial Center along Sorrel Road for development and operation of a cellular communications site, hereinafter called the "Leased Land"; and WHEREAS, the City Council has determined that a long term lease to McCaw Cellular Communications, Inc., dba Cellular One, for the purposes described herein is in the public interest; and WHEREAS, it is the intent of this lease to transfer from the City to McCaw Cellular Communications, Inc., dba Cellular One, the entire burden of compliance with present and/or future environmental regulations or controls with respect to its operations on the Leased Land during the lease term; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The long term lease of approximately 1,000 square feet of City property at 3213 Sorrel Road, within Block 8, Fourth of July Creek Subdivision, Seward Marine Industrial Center, (preliminary plat) to McCaw Cellular Communications, Inc., dba Cellular One, for development of a cellular communications site, is hereby APPROVED. A copy of the lease agreement is attached and incorporated herein by reference. Section 2. The above referenced lease is subject to suspension during the first thirty (30) days after passage and posting of this resolution if a sufficient referendary petition is filed in accordance with 94.8 of the City Charter. Section 3. The City Council finds that the expenses of an appraisal of the Leased Land would not be in the public interest and that the execution of the attached Lease Agreement is in the public interest. Section 4. The City Manager is hereby authorized and instructed to execute the Lease Agreement on behalf of the City on the date it becomes effective. CITY OF SEWARD, ALASKA RF;SOLUTION NO. 94-209 Section 5. This resolution shall take effect thirty (30) days after passage and posting as required by law. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 12th day of December, 1994. THE CITY OF SEWARD, ALASKA ~~ LtCf-. ('~./ Dave W. Crane, Mayor AYES: NOES: ABSENT: ABSTAIN: Anderson, Crane, Darling, Deeter, King, O'Brien, Sieminski None None None ATTEST: APPROVED AS TO FORM: Wohlforth, Argetsinger, Johnson & Brecht, Attorneys for the city of Seward, Alaska ~~~ City Attorney (City Seal) . . . LEASE AGREEMENT BETWEEN CITY OF SEWARD AND MCCAW CELLULAR COMMUNICATIONS, INC., DBA CELLULAR ONE Lease Agreement: City - Cellular One October 21, 1994 TABLE OF CONTENTS ARTICLE 1. -- LEASED LAND . . . . . . . . . . . . . . . 1 .1 Description of Leased Land . . . . . . . . . . 1.2 Covenant of Quiet Enjoyment; Warranty of Title. 1.3 Survey of Leased Land. 1.4 Zoning and Permits . . . . . . . . . . 1 .5 Platting. . . . . . . . . . . . . . . . 1.6 Right to Provide Substitute Leased Land. .1 .1 . 1 .1 .2 .2 .2 ARTICLE 2. u LEASE TERM. . . . . . 2.1 Initial Term . . . . . . . . 2.2 Interim Right to Possession 2.3 Lease Subject to Referendum 2.4 Options to Extend. .2 .2 .3 .3 .3 ARTICLE 3. u RENT . . . . . 3.1 Initial Rental Rate . 3.2 Rental Adjustments 3.3 Procedure for Rental Adjustment. 3.4 Late Payment Charge . . .3 .3 .4 .4 .4 ARTICLE 4. u USE OF LEASED LAND 4.1 Use of Leased Land . . . 4.2 No Preferential Rights to Use Public Facilities 4.3 Adequacy of Public Facilities. . . . . . 4.4 Tariffs and Other Service Fees. . . . . 4.5 Time for Payment of Utilities and Taxes. 4.6 Other Uses. . . 4.7 Use of the Docks . . . . . . . . . . . .4 .4 .5 .5 .5 .5 .5 .5 ARTICLE 5. -- UTILITIES AND RIGHTS OF ACCESS. 5.1 Utilities......... 5.2 Third Party Improvements 5.3 Easements . . . . . . . .5 .5 .6 .6 ARTICLE 6. -- CONSTRUCTION BY LESSEE 6.1 Improvements on Leased Land. 6.2 City Review of Construction. . .7 .7 .7 ARTICLE 7. -- RETURN OF Leased LAND/SITE eONDITIONS. 7.1 Return of Leased Land in Original Condition. 7.2 Return of Leased Land in Different Condition .8 .8 .8 ARTICLE 8. -- FORCE MAJEURE. . . . .8 ARTICLE 9. -- CITY ACTS OF DEFAULT .8 Lease Agreement: City. Cellular One October 21, 1994 . . . ARTICLE 10. -- REMEDIES FOR CITY'S ACTS OF DEFAULT. .9 ARTICLE 11. -- LESSEE'S ACTS OF DEFAULT . . . . .9 ARTICLE 12. -- REMEDIES FOR DEFAULT BY LESSEE. 10 ARTICLE 13. -- TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 13.1 Real Property Improvements 13.2 Personal Property . . . . . . . 11 11 12 ARTICLE 14. -- SUBLEASE OR ASSIGNMENT 14.1 Assignment of LEASE or Subleasing. 14.2 Assignment of LEASE for Security 14.3 Assignment to Affiliate. . . . . 12 12 12 13 ARTICLE 15. -- LESSEE'S DUTY TO DEFEND/ . 13 ARTICLE 16. -- CITY'S DUTY TO DEFEND/INDEMNIFY . 13 ARTICLE 17. -- INSURANCE. . . 13 ARTICLE 18. -- CONDEMNATION 14 ARTICLE 19. -- ARBITRATION. . 14 ARTICLE 20. -- MAINTENANCE AND REPAIRS. 20.1 Normal Maintenance. 20.2 Safety Issues . 20.3 Cost of Repairs . . . 15 15 16 16 ARTICLE 21. -- ENVIRONMENTAL CONCERNS. 21 .1 Hazardous Materials . 21 .2 Permits and Reporting . . . 16 16 18 ARTICLE 22. -- ESTOPPEL CERTIFICATES 19 ARTICLE 23. -- CONDITIONS AND COVENANTS. 19 ARTICLE 24. -- NO WAIVER OF BREACH. 19 ARTICLE 25. -- TIME OF THE ESSENCE . . 19 ARTICLE 26. -- COMPUTATION OF TIME . 19 ARTICLE 27. -- SUCCESSORS IN INTEREST .20 Lease Agreement: City. Cellular One iii October 21. 1994 ARTICLE 28. -- ENTIRE AGREEMENT ARTICLE 29. -- GOVERNING LAW. . ARTICLE 30. -- PARTIAL INVALIDITY ARTICLE 31. -- RELATIONSHIP OF PARTIES . ARTICLE 32. -- INTERPRETATION. . . ARTICLE 33. -- NUMBER AND GENDER ARTICLE 34. -- MANDATORY AND PERMISSIVE. ARTICLE 35. -- CAPTIONS . . ARTICLE 36. n AMENDMENT. ARTICLE 37. -- NOTICES . . . ARTICLE 38. -- FIRE PROTECTION. Lease Agreement : City - Cellular One iv .20 .20 .20 . 20 . 20 .20 . 21 .21 . 21 . 21 . 21 October 21, 1994 . . . LEASE AGREEMENT 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, P.O. Box 167, Seward, Alaska 99664, and MCCAW CELLULAR COMMUNICATIONS, INC., DBA CEllULAR ONE (the "LESSEE"), 4711 Business Park Blvd., Suite 10, Anchorage, Alaska 99503. WHEREAS, lESSEE wishes to lEASE an area of land approximately 960 square feet in size located within proposed lot 3, Block 8, of the Seward Marine Industrial Center as identified on the preliminary Fourth of July Creek Subdivision plat, for the purpose of developing a cellular communications site, hereinafter called the "leased land"; and, WHEREAS, the City Council of CITY has determined that a long term lEASE of the leased land to LESSEE for the purposes described herein would be in the public interest; and WHEREAS, it is the intent of this lEASE to transfer from CITY to lESSEE the entire burden of compliance with present or future environmental regulations or controls with respect to lESSEE's operations on the leased land during the lEASE term. 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 granted by CITY under this agreement (hereinafter referred to as "leased land") is located within ATS 1222 in the Seward Recording District, Third Judicial District, Alaska, and is more particularly described as follows: The area of the Leased land is 960 square feet, more or less. The leased land and its associated non-exclusive access easement are depicted in red and green respectively on attached Exhibit "A", which is incorporated herein by reference, The depiction of the leased land in Exhibit "A" is subject to modification as provided in Section 1.3. The parties intend that Exhibit" A" serve as an interim description of the leased land to identify the leased land sufficiently for purposes of public hearing and approval of this lEASE by the City Council of CITY, and for purposes of the revocable license granted to lESSEE in Section 2.2. 1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject only to restrictions of management authority or provisions of this lEASE, CITY hereby covenants that lESSEE shall have the quiet enjoyment and possession of the leased land for any use authorized hereunder for the full term of this lEASE. CITY owns the leased land in fee, and subject to the conditions described in Section 2.2, is fully empowered to enter into this lEASE, CITY is unaware of any prior conflicting use of the property which would adversely affect LESSEE's intended use of the subject parcel. 1.3 Survey of Leased Land. Within 90 days from the date of this LEASE, lESSEE, at Lease Agreement: City. Cellular One October 21. 1994 its sole cost, will cause the Leased Land to be surveyed by a land surveyor registered in the State of Alaska. A description of the Leased Land based upon this survey shall be attached to this LEASE as Exhibit B and shall be incorporated herein by reference. The description of the Leased Land in Exhibit B shall supersede the description in Exhibit A, and shall be considered the correct description of the Leased Land for all purposes under this LEASE. ,.4 Zoning and Permits. elTY represents that the current zoning classification of the Leased land is Industrial. Lessee, at its sole cost, shall obtain all permits necessary to the construction and operation of its facilities on the Leased Land. CITY agrees from time to time upon request of LESSEE to execute such documents, petitions, applications and authorizations as may be necessary to obtain from the agency or public body responsible therefor any conditional use permits, zoning and re-zoning, tentative and final tract approval and precise plan approval that is required for the lawful construction and operation of the facilities of LESSEE permitted on the Leased Land by the terms of this LEASE. Nothing in this Section imposes any duty or responsibility on the City to assist LESSEE in Obtaining any other permits or approvals, including without limitation those required by the U.S. Army Corps of Engineers (wetland fill permits) or the Environmental Protection Agency (Clean Air Act permits). '.5 Platting. CITY intends to re-plat lands in which the LEASE area is located on a periodic basis in order to ensure the orderly development of the property and as Leases are entered into with various tenants. CITY agrees to include the Leased Land in the next re-plat of the in accordance with the description prepared by Lessee under Section 1.3. If LESSEE requests a re-plat of the Leased Land prior to that time, CITY shall assist LESSEE in the preparation and filing of the re-plat, and LESSEE shall reimburse CITY for the CITY's direct costs in assisting in the preparation and filing of the re-plat. LESSEE agrees to sign the plat and any other documents necessary to complete the platting or re-platting of any area including all or a portion of the Leased Land. 1.6 Right to Provide Substitute Leased Land. The upland lease and improvement development of the Seward Marine Industrial Center is in its formative stage, and both the City and Lessee see the possibility that Lessee's use of the Leased Land may not be the long term highest and best use of the Leased Land. City reserves the right to a one-time relocation of Lessee from its present leasehold as described in Exhibit A of this lease to a mutually acceptable location. CITY shall pay for Lessee's actual, documented and certified total costs of physically relocating to the new work location only, without payment for any amounts of lost profits, incidental or consequential damages or any other costs or expenses as the result of City's exercise of its rights under this provision. City shall provide written notice to Lessee no less than ninety (90) days in advance of its intent to move Lessee's facilities. Lessee must object within ten (10) working days of receipt of notice if it finds the new location to critically impact its future economic activities. If Lessee objects, the City Council of the City of Seward shall make the final determination as to the necessity for the relocation, taking into account the impact on Lessee's operation and the public interest. ARTICLE 2. .. LEASE TERM 2.1 Initial Term. The LEASE term shall be in accordance with CITY authorization Resolution No. (the RESOLUTION), attached and incorporated herewith by reference Lease Agreement: City. Cellular One 2 October 21, 1994 . . . as Exhibit C. The initial term of the LEASE shall commence with the effective date of the RESOLUTION, and end June 30, 2000. 2.2 Interim Right to Possession. LESSEE is hereby granted a revocable license to enter upon the Leased Land prior to the expiration of 30 days from the date of passage and posting of the RESOLUTION, subject to the terms of this Section. The granting of a revocable license to LESSEE under this Section is for the convenience of LESSEE only and does not grant any interest in the Leased Land. The revocable license granted under this Section permits LESSEE to enter upon the Leased Land solely for the purpose of surveying, soils testing and similar preliminary work. During the term of this revocable license, LESSEE shall not engage in any storage of materials, clearing, grading, excavation or construction of improvements on the Leased Land. CITY may revoke the license granted by this Section at any time, including without limitation upon the filing with the Clerk of CITY of a petition for referendum on the RESOLUTION. 2.3 Lease Subject to Referendum. LESSEE understands and assumes the risk that under the Charter and Code of CITY this LEASE may be voided by referendum. The revocable license granted in Section 2.2 shall not affect or reduce the right of the voters of the City of Seward to reject this LEASE by referendum. LESSEE agrees that if the RESOLUTION is the subject of a referendum petition filed with the Clerk of City during the term of the revocable license granted by Section 2.2, LESSEE shall have no rights under this LEASE unless and until the RESOLUTION is approved by the voters of the City of Seward, and LESSEE shall not be entitled to any damages or any other relief against CITY in the event the RESOLUTION is not so approved. 2.4 Options to Extend. LESSEE shall have the right to extend the initial term of this LEASE for three additional five-year periods, provided th3t: a) LESSEE exercises any applicable 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; c) LESSEE shall exercise its options to renew by sending written notice thereof in accordance with the provisions of Article 37 of this LEASE; and d) The City Council of CITY, at the time each option is exercised, approves the extension by resolution. ARTICLE 3. u RENT 3.1 Initial Rental Rate. Commencing on the effective date of this LEASE through June 30,1995, the annual rental rate for the Leased Land shall be set at TWENTY CENTS ($.20) per square foot. The rent through March 31, 1995 shall be payable no later than the time LESSEE executes this LEASE. Thereafter, rent shall be payable quarterly in advance on or before the 20th day of the month following the beginning of each calendar quarter: January 20, April 20, July 20 and October 20. lease Agreement: City. Cellular One 3 October 21, 1994 3.2 Rental Adjustments. As soon as practical after execution of this lEASE and before June 30, 1995, CITY shall, at its own expense, retain an independent MAl certified appraiser who will determine the fair market value of the leased land. On July 1, 1995, and the date every five years thereafter (each a "Rental Adjustment Date"), the total annual rental to be paid under the terms of this lEASE shall be adjusted to the fair market value at the highest and best use of the leased land, exclusive of improvements placed thereon by lESSEE but inclusive of all improvements made by CITY (including those made before or subsequent to this LEASEI. 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. 3.3 Procedure for Rental Adjustment. Before each Rental Adjustment Date, CITY shall at its own expense, retain an independent MAl certified appraiser who shall determine the adjusted annual rental rate at the fair market value of the Leased land in accordance with Section 3.2. The appraiser's report shall be delivered to lESSEE not less than 90 days before the Rental Adjustment Date. If LESSEE objects to the appraiser's determination of the adjusted rental rate, it 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 a second independent MAl certified appraiser at its expense to make a second appraisal of the fair market rental value in accordance with Section 3.2. If the second appraisal determines a fair market rental rate value which varies from that determined by the first appraisal by no more than ten percent (10%), then the adjusted rental rate shall be the average of the rental rates determined by the appraisals. If the second appraisal determines a fair market rental rate which varies from the first appraisal by more than ten percent (10%) then, unless CITY and lESSEE agree on a rate themselves, the fair market rental rate of the leased land shall be determined in accordance with the arbitration provisions contained in ARTICLE 19 of this LEASE. 3.4 late Payment Charge. Rental payments not received by the due date shall bear interest until paid at a rate of 1.5 % per month or the maximum rate permitted under Alaska law, whichever is less. ARTICLE 4. -- USE OF lEASED lAND 4.1 Use of leased land. CITY has limited land available for LEASE. Use of the Leased land by lESSEE has been determined by the City Council of CITY to be in the public interest. lESSEE may use the leased land only in accordance with applicable city zoning code provisions in addition to the following condition: lESSEE, at its sole cost and in a timely manner, will fence the leased land 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. 4.2 No Preferential Rights to Use Public Facilities. This lEASE does not grant to lESSEE any right to exclusive right to use of any public port or other public facilities Lease Agreement: City - Cellular One 4 October 21, 1994 . . . constructed or operated by CITY. LESSEE will be subject to any tariffs, procedures, rules and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended. 4.3 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, CITY makes no representations or warranties of any nature with respect to the commercial practicability or accuracy of any information provided by CITY. LESSEE has independently conducted its own review, investigation, and assessment. 4.4 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. 4.5 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, if any, before such obligations become delinquent; provided, that LESSEE may, in good faith and before such delinquency, contest any such charge or assessment. 4.6 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 to LESSEE should this LEASE be terminated for any reason. 4.7 Use of the Docks. Public docks are subjl:lct to port and harbor rules and regulations as adopted by City Council, 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 in LESSEE's planning and engineering of those improvements. All utilities will be located and sized in accordance to the CITY's Master Plan for the area Leased. CITY adopted the Uniform Building Code, 1991 edition, and all construction will be in compliance thereto. Utilities constructed by the LESSEE within the public right-of-ways or within public utility easements will normally be accepted and maintained by the City or utility companies may be used to serve other customers of Lessees 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. The City or 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 cost of over sizing shall be born by the CITY or utility company. such cost shall be limited to the supplier's cost of the additional fittings and equipment and direct labor Lease Agreement: City - Cellular One 5 October 21, 1994 and equipment cost to complete the installation. The cost of over sizing pipe or electrical conduit shall be limited to the difference between the supplier's price to provide the size required to serve his facility and the price of the oversized material required by the 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 facilitates on the Leased Land, it being the intent of the parties that the risk of obtaining required permits be solely a risk undertaken by LESSEE. 5.2 Third Party Improvements. At the request of LESSEE, CITY shall, from time to time, execute and deliver or join in execution and delivery of such documents as are appropriate, necessary or required to impose upon the Leased Land in accordance with the terms of this LEASE covenants, conditions and restrictions providing for the granting of uses of the Leased Land, or any part thereof, the establishment of party walls, the establishment of mutual and reciprocal parking rights or rights of ingress or egress, or other like matters (herein called "third-party improvements"', all of which are for the purpose of the orderly development of the Leased Land as a commercial unit subject, however, to the conditions that: a) All such matters shall be limited to the LEASE term and shall terminate upon termination of this LEASE for whatever reason. b) 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 therefor, and the cost and expense thereof shall be borne solely by LESSEE. cl At the expiration of the LEASE term (including any extended periodl 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 the Leased 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 efficient 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 shalf not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. lease Agreement: City. Cellular One 6 October 21, 1994 . . . 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 such 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 mechanics and materialmen's liens. c) lESSEE shall supply CITY with a copy of all building plans and specifications and a site plan or plans for the Leased Land. d) Any general contractor employed by LESSEE or its sub-lessees shall be appropriately bonded by use of performance and labor and material payment bonds in the customary form when cost of the work is over Fifty Thousand.Dollars ($50,000). Copies of all such bonds shall be furnished to CITY prior to commencement of construction. LESSEE shall provide CITY, if no performance and labor and material bonds are provided by LESSEE, any necessary assurance 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 A.S. 10.06.990(2), a performance bond shall be required when the cost of the work is over Fifty Thousand Dollars ($50,000). e) CITY may, as contemplated by Alaska Statutes, give notice of non-responsibility for any improvements constructed or effected by LESSEE on ~he Leased Land. f) LESSEE shall comply with all federal, state and local statutes and regulations with respect to such construction including any required finding by the City Council of Seward that such action is in the public interest. g) LESSEE may add/alter, or remodel improvements at LESSEE's discretion during the term of this LEASE. 6.2 City Review of Construction. CITY shall have the right to review initial plans and any future changes or additions to Lessee's facilities on the Leased land, by reviewing the design thereof. 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 obtain the usual and customary performance guarantees from its contractors and CITY shall be named an additional insured. ARTICLE 7. n RETURN OF Leased LAND/SITE CONDITIONS Lease Agreement: City - Cellular One October 21, 1994 7 7.1 Return of leased land in Original Condition. Subject to the provisions of Article 13.1 herein, upon termination of this lEASE for any reason, LESSEE shall return the Leased land to CITY in the same condition as at the commencement of this LEASE, ordinary wear and tear excepted. The leased Land shall be free of all Hazardous Materials and contamination arising out of or resulting from lESSEE's operations. 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 condition different from its original condition provided CITY has granted written approval of LESSEE's plans for development of the Leased Land contours, including its plans for material extraction and final grade. 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 God, acts of the enemies of the United States of America, sabotage, war, 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. -- CITY ACTS OF DEFAULT Each of the following shall be a "CITY Act of Default" under this lEASE and the terms "acts of default" and "default" shall mean, when they are used in this LEASE, anyone or more of the following events: a) Failure by CITY to fulfill, observe or perform any covenants or agreements on its part to be observed or performed under this LEASE for a period of thirty (30) days after written notice specifying such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to CITY by LESSEE; 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 CITY within the applicable period and diligently pursued until the default is corrected. b) Violation by CITY of any applicable laws or regulations of the United States, the State of Alaska, the Kenai Peninsula Borough, or the City of Seward or any conditions of any permits issued by agencies of the City of Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States Government 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 to CITY; 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 CITY within the applicable period and diligently pursued until the violation is corrected. Furthermore, if CITY 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. Lease Agreement: City - Cellular One 8 October 21, 1994 . . . ARTICLE 10. -- REMEDIES FOR CITY'S ACTS OF DEFAULT Whenever an act of default by CITY shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired, LESSEE shall have the following rights and remedies in addition to any rights and remedies that may be given to LESSEE by statute, common law or otherwise: a) Withhold payment of any rent otherwise due CITY. b) Refuse to proceed with any of LESSEE's other performance obligations under this LEASE. c) Recover whether this LEASE be terminated or not from CITY reasonable attorney's fees and all other expenses incurred by LESSEE by reason of the default by CITY. dl Declare this LEASE terminated. e) No expiration or termination of this LEASE shall expire or terminate any liability or obligation to perform of CITY's which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. f) Each right and remedy of LESSEE provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE, now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by LESSEE of anyone or more of the rights and remedies provided for in this lEASE, now or hereafter existing at law or in equity or by statute or otherwise, shall not preclude the simultaneous or later exercise by LESSEE of any or all other rights or remedies provided for in this LEASE, now or thereafter existing at law or in equity or by statute or otherwise. g) 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. -- 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, anyone or more of the following events: a) 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. b) Failure by LESSEE to observe, fulfill or perform any covenants, conditions or agreements on its part to be observed or performed under this LEASE for a period of thirty (30) days after written notice specifying such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to LESSEE by CITY; provided, however, that if Lease Agreement: City - Cellular One October 21, 1994 9 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. c) 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. dl 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 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. ARTICLE 12. .. 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: a) 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 (A.S. 45.09.504) with respect to sale of property shall be a commercially reasonable disposal. b) 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 sub-part (a) 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. Lease Agreement: City - Cellular One 10 October 21. 1994 . . . cl Declare this LEASE terminated. d) Collect any and all rents due or to become due from sub-tenants or other occupants of the Leased Land. e) Recover, whether this LEASE be terminated or not, reasonable attorney's fees from LESSEE and all other expenses incurred by CITY by reason of the breach or default by LESSEE. fl Recover an amount to be due immediately on breach equal to the rent reserved under this LEASE discounted to the date of such breach at the rate of eight percent (8%) per year. If the Leased Land or any part thereof be re-Iet by CITY for the unexpired term of this LEASE, CITY shall reimburse to LESSEE upon receipt an amount not to exceed the amount received by CITY under this paragraph. g) 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. h) 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. i) 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 anyone 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. jl 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 13. -- TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 13.1 Real Property Improvements. Within 60 days after termination of this lease for any reason, LESSEE shall remove, without cost to CITY, all improvements constructed by LESSEE, such as buildings, warehouses, conveyor systems, ditches, sewer lines, water lines, dikes or berms and similar improvements on the leased land or on easements to or from same. In the event such improvements are not timely removed by LESSEE, they shall become the property of CITY; provided, however, that with 120 days after termination of this lease for any reason, CITY may demand that LESSEE remove any improvements designated by CITY without Lease Agreement: City - Cellular One October 2'. 1994 '1 cost to CITY, and LESSEE shall promptly remove same. 13.2 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 (90l 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 14. -- SUBLEASE OR ASSIGNMENT 14.1 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 RESOLUTION. LESSEE may only assign, sublease or :;ub-tenant this LEASE or any part of the Leased Land with CITY's prior written consent which shall be granted if the use of the Leased Land by the proposed assignee, sublessee or subtenant is: a) compatible with the use of adjacent lands; b) a permitted use under the then existing zoning regulations and comprehensive land use plan; and cl found to be in the public interest by the City Council of CITY to such assignment or subletting. 14.2 Assignment of LEASE for Security. Notwithstanding Section 14.1 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. 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 12 above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; orovided, 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 11 (c), CITY shall not exercise any of the remedies afforded to it under Article 1 2 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. Lease Agreement: City - Cellular One 12 October 21, 1994 . . . 14.3 Assignment to Affiliate. LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 1 0.05.825( 11; provided, however, that LESSEE's full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ARTICLE 15. -- LESSEE'S DUTY TO DEFEND/INDEMNIFY LESSEE shall defend, indemnify and hold CITY harmless from any and all liability or claims for damages, including personal injuries, death and property damage arising out of or resulting from LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sub-lessees, agents or contractors or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its agents, employees, 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 16. -- CITY'S DUTY TO DEFEND/INDEMNIFY CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or claims for damages, including personal injuries, death and property damage arising from the sole negligence or willful acts or omissions of CITY, its agents, employees, or contractors or from conditions existing or activities occurring on the Leased Land prior to the effective date of this LEASE. ARTICLE 17. -- INSURANCE Prior to commencement of the LEASE term, LESSEE shall procure and maintain, at LESSEE's sole cost and expense, commercial general liability insurance, with limits of liability of One Million Dollars ($1,000.0001 for all injuries and/or deaths resulting to any one person and One Million Dollars ($1,000,0001 limit from anyone occurrence. Coverage under such insurance shall also include explosion, collapse and underground property damage hazards. Such insurance shall include contractual liability. The minimum amounts and types of insurance provided by LESSEE shall be subject to revision 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 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 may notify LESSEE of any requested 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 37 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 betterl. LESSEE shall furnish CITY certificates evidencing that it has procured the insurance required herein prior to the occupancy of the Leased Land or operation by LESSEE. Nothing herein contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or Lease Agreement: City. Cellular One 13 October 21, 1994 LESSEE's own individual cost and expense, additional or other insurance as may be desired. All of the insurance policies required above as well as any other insurance carried by LESSEE or CITY shall provide that the insurers waive their rights of subrogation against CITY and LESSEE and their respective officers, servants, agents or employees. LESSEE further agrees to waive and agrees to have its insurers waive any rights of subrogation (whether by loan receipts, equitable assignment or otherwise), with respect to deductibles under such policies and with respect to damage to equipment including the loss of use thereof, whether insured or not. LESSEE shall also name CITY as an additional insured on the general liability insurance policy maintained by LESSEE as required above, excluding coverage for claims resulting from CITY's sole negligence. ARTICLE 18. -. CONDEMNATION If all or any part of the Leased Land is condemned for a public use by any government agency or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority; provided, that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. If part but not all of the Leased Land is condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts and liens to which the Leased Land is subject. If at the time of such partial taking for public use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevented from utiliZing the condemned land. ARTICLE 19. -- ARBITRATION Any dispute between CITY and LESSEE with respect to any provision of this LEASE or the rights and obligations of the parties hereunder shall be decided by arbitration, in accordance with the provisions of this Section. a) Consent Panel. The party desiring arbitration of a dispute shall give written notice to that effect to the other party specifying in such notice the name and address of a person Lease Agreement: City - Cellular One 14 October 21, 1994 . . . to serve as an arbitrator. Within fifteen (151 days after receipt of such notice the other party shall give written notice to the first party specifying the name and address of another person designated to serve as an arbitrator. If neither party has objected to the other's designation within fifteen (15) days of the notice by the second party of its designation of an arbitrator. then the two chosen arbitrators (called the "consent panel") shall select a third person agreeable to both to become the third member of the consent panel. The consent panel may utilize informal techniques and hold informal hearings without reference or adherence to the rules or procedures of the American Arbitration Association. Promptly and within thirty (30) days of concluding any proceeding the consent panel shall render its written decision. It is the intent of this subparagraph to provide for a speedy and inexpensive resolution of disputes provided the parties agree to such a procedure. b) Formal Arbitration. If either party objects, within fifteen (15) days of the second party's designation of an arbitrator to the other's choice of an arbitrator pursuant to paragraph (a) above, or the party desiring arbitration initially decides not to use the consent panel procedure, then the matter shall be promptly referred to the American Arbitration Association in accordance with the then existing rules of the American Arbitration Association. cl Arbitration Awards. Any award by either a consent panel or as a result or proceedings before a panel pursuant to the rules of the American Arbitration Association shall be enforceable in accordance with Alaska Statutes. Any award shall include an award of costs, interest and attorney fees to the prevailing party. ARTICLE 20. -- MAINTENANCE AND REPAIRS 20.1 Normal Maintenance. During the entire term of this LEASE and every renewal or extension hereof, 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. ordinary wear and tear excepted. 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. elTY and its authorized representatives may periodically inspect the Leased Land and facilities constructed thereon in order to ascertain the condition of the public portion of the Leased Land but the exercise of this right shall not imply any obligation to do so nor any obligation to do so in any particular way. Lease Agreement: City - Cellular One 15 October 21, 1994 20.2 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. 20.3 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 the Leased Land or on adjacent land, it may submit the matter to arbitration; provided, however, that pending the decision of the arbitrators 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 21. -- ENVIRONMENTAL CONCERNS 21.1 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. b) Release of CITY. Any other provision of this LEASE to the contrary notwith- standing, 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 the Prior LEASE or this LEASE, and resulting from the use, keeping, storage or disposal of Hazardous Material on the site by Former Lessee or LESSEE, or arising out of or Lease Agreement: City - Cellular One 16 October 21, 1994 . . . resulting from Former Lessee's or LESSEE's operations at the site except for those arising out of the CITY's sole negligence or intentional misconduct. This Release includes, without limitation, any and all costs incurred due to any investigation of the site 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, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: i) the presence, disposal, release or threatened release of any such Hazardous Material which is on, from or affecting the Leased Land, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material; iii) any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material; and/or iv) any violation of any laws applicable thereto; provided, however, that this Lease Agreement: City - Cellular One 17 October 21, 1994 Section 21.1 (d) shall apply only if the acts giving rise to the claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (a) occur in whole or in part during or after the term of this LEASE; and (b) arise in whole or in part from the use of, operations on, or activities on the Leased Land by LESSEE or their employers, employees, agents, invitees, contractors, subcontractors or authorized representatives. 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) Facility ooerator. 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 "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, 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. 21.2 Permits and Reporting. a) Permits reauired by other Qovernmental agencies. LESSEE shall obtain all permits or approvals required by any applicable law or regulation. Copies of all such permits shall be provided to CITY prior to LESSEE commencing work under this LEASE. LESSEE shall promptly make all reports to any federal, state or local government or agency required by any permit or Environmental Law, including reports of any spill or discharge of Hazardous Material. The City 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) Corresoondence with and reports to environmental agencies. LESSEE shall immediately 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. Lease Agreement. City - Cellular One 18 October 21, 1994 . . . cl Operating plan. Promptly and before operations begin, LESSEE shall furnish to CITY a written development and clean-up plan describing in detail the operations to be conducted on the Leased Land and the plans of LESSEE to restore the Leased Land to its original condition. ARTICLE 22. -- 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 23. -- CONDITIONS AND COVENANTS All the prOVISions of this LEASE shall be deemed as running with the land, and 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 24. -- 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 25. -- TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 26. -- COMPUTATION OF TIME The time in which any act provided by this LEASE is to be done by shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday or a holiday, and then it is also excluded. Lease Agreement : City - Cellular One October 21. 1994 19 . . . ARTICLE 27. -- SUCCESSORS IN INTEREST Each and all of the terms, covenants and conditions in this LEASE shall inure to the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 28. -- 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 29. -- 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, including without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 30. -- 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 31. -- 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 32. -- 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 assistance of counsel in drafting and reviewing this LEASE. ARTICLE 33. -. NUMBER AND GENDER In this LEASE, the neuter gender includes the masculine and the feminine, and the singular number includes the plural; the word "person" includes corporation, partnership, firm or association wherever the context so requires. Lease Agreement: City. Cellular One 20 October 21, 1994 ARTICLE 34. -- MANDATORY AND PERMISSIVE "Shall," "will" and "agrees" are mandatory; "may" is permissive. ARTICLE 35. -- 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 36. -- AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 37. -- 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: ATTN: City Manager City of Seward P.O. Box 167 Seward, Alaska 99664 All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: Clarence Aiken, Director of Technical Services McCaw Cellular Communications, Inc., DBA Cellular One 4711 Business Park Blvd., Suite 10 Anchorage, Alaska 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 38. -- FIRE PROTECTION LESSEE shall at its sole cost, risk and expense provide fire protection to its operations on the Leased Land and fire prevention to industry standards for risks to adjacent facilities such that those risks are minimized. LESSEE shall continue to provide and maintain industry accepted standards of fire protection such that the City of Seward's ISO rating is not degraded by reason of LESSEE'S operation. The parties agree that with the rapid Lease Agreement: City. Cellular One 21 October 21, 1994 . . . expansion of technology in the field of fire prevention and control LESSEE's obligations hereunder may vary during the term of this LEASE and CITY may submit LESSEE's compliance with its obligation hereunder to arbitration not more frequently than once each five years. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: CITY OF SEWARD LESSEE: MCCAW CELLULAR COMMUNICATION, INC., DBA CELLULAR ONE By: Its: Date: TYLER JONES CITY MANGAER /1 /j' , ! ',.1/, By: CLARENCE AIKEN Its: DIRECTOR OF TECHNICAL SERVICES Date: (f. ',. - / " ATTEST: APPROVED AS TO FORM: WOHLFORTH, ARGETSINGER, JOHNSON & BRECHT, Attorneys for the City of Seward r: /"'~/7 By ~ r.~ Thomas F. Klinkner City Attorney Linda Murphy, CMC/AAE City Clerk (City Seal) STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT) THIS IS TO CERTIFY that on this .-:;::. ,r(day of 1\ ( L , 1994, before me, the a, N tary Public in and for the State of Alaska, personally appeared I . t L , known to me and to me known to be the individual named in a d who executed the foregoing document, and they acknowledged to me that they were authorized to execute the foregoing document by authority granted him in the Bylaws or by resolution of the Board of Directors of said corporation for the uses and purposes therein set forth. '~ar first he~above written. I . \- / u-- 'L-f. ........... Notary ublic in and for My Commission Expires: WITNESS my hand and notarial seal the ~y .----1'.; ',- > <..-- laska Mai 1 " I ,- -: i',' l'l Lease Agreement : City, Cellular One 22 October 21, 1994 l~~, \ ~ ~ '\ 1 ---~ " OCl,PNIN s:- C'-~.A S~ ------- ~ , ~ Ii '" _ _ J _ __ 'I { . ~ , ~ ~ WI Q- 5 0 ~ Block 7 .. '" ~ .Jl . Block '" , ~ Block ~ ~ - - Block 4 r------- -, 1 ~ 3 - - - -- Ili~ I~ Ii!. i ~ :'i ~ ~! ~ !I ~ ': I I I, Block 2 BLock 6 Block 5 II ,,' , " 1_ _1.J1__l'_ r--'-1 , , I LJ ~ , 'I , , : I :i; I ,', At,..::--- -'?O Ii ~ I. -- ~ I ~ I 1 i Block 10 \ 1--,-' / I, / '\ ,~};~. ' ':'?:~...,. ~ ::- :~~. ' .. " :I~t.'.:- ~- '1 , ,,"fi/ ,Ji) . J.~:' = '" ..... ":ax .... o o ::: o " ! Q i 8 ~ s ' Proposed Seward Marine Industrial Cen~~ Fourth of July Creek Subdivision ~ ~ ~ ~'t.r.; Exhibit A - Lease Site for McCaw Communications Inc. dba Cellular One Proposed Lease Site :tl,OO SF ~ w <J :> a w 0:: '-- ... ~ .. - z: :00:: ~ en .. .. .... ..... .. .. ;;; t:; = = 0 DO: ~ .. ~ ~ z: .... ;;; en .. ... :E = co ... >- .. >- a U ~ '" g '" ~ .. ;; u '" :z .. ..... .....