HomeMy WebLinkAboutRes1994-164
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Sponsored by: Tones
CITY OF SEWARD} ALASKA
RESOLUTION NO. 94-164
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, APPROVING A SHORT TERM LEASE OF
PROPERTY TO MACTEL CELLULAR SYSTEMS FOR A COMMUNICATION
TOWER SITE AT 707 NASH ROAD
WHEREAS, the city is in long term lease negotiations with MACtel for the use of
an unsurveyed parcel of land within USS 4828 adjacent to Nash Road for development
as a cellular communications site; and
WHEREAS, the City Manager has determined that a short term lease of this
property is in the public interest; and
WHEREAS, the subject property has not been identified for any other use by the
city during the proposed term of the lease; and
WHEREAS, it is in the public interest to waive appraisal of the subject property
for a lease of short duration; and
WHEREAS, in accordance with Seward City Code ~ 7.05.410, the city has prepared
a short term lease agreement which has been approved by the City Manager subject to
confirmation by the City Council;
NOW} THEREFORE} BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA} that:
Section 1. The short term lease of approximately 2800 square feet of city property
at 707 Nash Road to MACtel Cellular Systems for development of a cellular communica-
tions site is hereby approved. A copy of the lease 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 ~ 4.8 of the City Charter.
Section 3. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this
12th day of September, 1994.
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LEASE AGREEMENT
THIS AGREEMENT by and between the CITY OF SEWARD. ALASKA. a municipal corporation
located in the Kenai Peninsula Borough. State of Alaska. P.O. Box 167. Seward. Alaska 99664 hereinafter
referred to as "CITY" and MACTEL CELLULAR SYSTEM. 3900 Denali. Suite 100. Anchorage. Alaska
99503 hereinafter referred to as "LESSEE".
WHEREAS. LESSEE wishes to lease an area of land approximately 2.800 square feet in size near
the Seward Marine Industrial Center along Nash Road for purposes of developing a cellular
communications site. hereinafter called the "leased land"; and.
WHEREAS. LESSEE's current FCC license requires it to be in operation nit 9/13/94; and.
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WHEREAS. timing does not allow for lease negotiations. public hearings. city council action and
approval to take place before the required operation date; and,
WHEREAS. Section 7.05.410 of the Seward Code authorizes the City Manager to negotiate
short-term lease agreements subject to certain conditions; and.
WHEREAS. City desires to accommodate such temporary lease request; and.
WHEREAS. the City Manager of the City of Seward has determined that a lease of the leased land
would be in the public interest; and
WHEREAS. it is the intent of this lease to alleviate from CITY 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 arid in consideration of the mutual promises and covenants hereinafter
contained. the parties hereto agree as follows:
ARTIC. F 1 -- LEASFD . AND
1.1. DESCRIPTION OF . FASFD I ANn. The leased land granted by CITY under this lease
(hereinafter referred to as "leased land") is located in Seward. Alaska. The leased land is more particularly
described as follows:
Approximately 2.800 square feet outlined in red and a non exclusive
access easement outlined in green. as indicated on exhibit" A". attached.
All leased land is located within USS 4827. Seward. Recording District.
Third Judicial District. Alaska.
1.2. City Allthnri7Ad Tn . A""A ThA P"rr.AI' CnVAn"nt Of OlliAt EnjnymAnt. 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 has management authority over the leased land free and clear. and 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.
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1.3--700ing. Land Il~A. CITY represents that the current zoning classification of the leased land
is Resource Management. CITY agrees from time to time upon request of LESSEE to execute such
documents. petitions. applications and authorizations as may be appropriate or required to obtain from the
agency or public body responsible therefore any conditional use permits. zoning and re-zoning. tentative
and final tract approval and precise plan approval. This Section shall impose no duty or responsibility on
CITY to assist LESSEE in obtaining any other permits or approvals for operation or construction. such as
those required by the U.S. Army Corps of Engineers (wetland fill permits) or the Environmental Protection
Agency (Clean Air Act permits). etc. CITY shall cooperate in good faith with LESSEE in LESSEE's efforts
to promptly obtain any required permits for operation of LESSEE's facilities on the leased land.
ARTICLE 2 -- LEASE TERM
2. 1-TAmporary TAnn. Under the provisions of Section 7.05.410 of the Seward Code the
City Manager is authorized to negotiate short-term lease agreements not to exceed one hundred twenty
(120) days. subject to certain conditions. LESSEE has reviewed the provisions of the Seward Code and
understands and agrees to the conditions under which this lease is issued.
2.2- Iarm. This lease shall terminate ninety (90) days from the date of property use. that
is to say on November 22, 1994. LESSEE may cancel this lease upon thirty (30) days written notice to
the CITY. This lease agreement is not subject to renewal. This lease is further subject to approval by the
City Council of the City of Seward at its next regularly scheduled City Council meeting. This lease is
subject to suspension during the first thirty (30) days after passage of a resolution approving it if a
sufficient referendary petition is filed in accordance with Section 4.8 of the City Charter.
ARTICLE 3 -- RENT
3.1 RAnt,,1 RatA. Through the lease term the rental rate shall be one hundred twenty five dollars
($125) per month.
3.2--LatA PaymAnt PAnalty Rental payment due. but not received. by the due date shall accrue
interest at 1% per month or the maximum permitted rate under Alaska law. whichever is higher.
ARTICI F 4 -- llSF OF I FASFD I AND
The CITY has limited land available for lease and LESSEE's intended use of the leased land has
been determined by the City Council to be in the public interest.
4. 1 --Il~A 01 thA IAa~Ad land. LESSEE may use the land only for development of a cellular
communications site.
a) LESSEE agrees to prohibit the use. keeping. storage. or disposal of hazardous materials
on the site.
LESSEE will not allow the land to be used in any manner. or construct any facilities thereon which
would inhibit the use of adjacent or other lands.
4.2--No PrAIArAntial Right~ to II"A Pllhlir. Far.ilitiA". This lease agreement shall not be construed
to grant any exclusive rights of use to LESSEE of any public port facilities constructed or maintained by
the City of Seward. Insofar as use of those facilities is concerned. LESSEE will be subject to any required
tariffs. procedures. rules and regulations of the City of Seward as they may now exist or from time to time
be amended and LESSEE shall not be entitled to any exclusive use.
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4.3--AdAqllacy nf Pllhlic FacilitiAs. CITY makes no representations or warranties as to any
particular part or the whole of CITY's public facilities with respect to their fitness for the uses intended by
LESSEE. and LESSEE has inspected those facilities and has examined the plans and specifications of those
facilities under construction or planned for construction 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.
4.4- Tariffs and OthAr SArvicA FAAs. 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 pose any
greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities.
4.5--TimA tnr PaymAnt nf IItilitiAs, TaxAs. LESSEE will pay for utilities and taxes related to
operations on the leased land and LESSEE's interest in this lease agreement, if any, before such obligations
become delinquent; provided, that LESSEE may, in good faith and before such payment, contest any such
charge or assessment.
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ARTICI F 5 -- IITllITIES AND RIGHTS OF ACCFSS
5.1 IItilitiAs. 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 with respect to the construction of those utilities. CITY agrees
to co-operate and assist LESSEE in LESSEE's planning and engineering of those improvements and, further,
to assist in coordinating the actual connection of those utilities to the City system. CITY agrees to make
reasonable efforts to provide connection of utilities to the City system; however, the parties recognize that
circumstances may arise, including the availability and priority of utility service crews, which might not be
adequate to meet LESSEE's needs.
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 pennits for construction or operation of LESSEE's
facilities on the leased land, it being the intent of the parties that the risk of obtaining required permits be
solely a risk undertaken by LESSEE.
ARTIC'F B -- RFTIIRN OF PRFMISFS/SITF CONDITION
6.1--RAtllrn nt PrAmisAs in Original Cnnditinn. Upon termination of this lease for any reason,
LESSEE shall return the leased land to CITY in the good condition, useable as it was originally intended.
The leased land shall be free of all Hazardous Materials arising out of or resulting from LESSEE's
operations.
ARTICI I' 7 -- FORCF MA.JFIIRF
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, war, sabotage, blockade,
insurrection, riot, epidemic. fires, floods, explosions, earthquakes/tsunami or civil disturbance, the time
period wherein such performance is to occur shall be extended by that amount of time necessary to
compensate for the delay.
ARTICI I' R -- I FSSI'E'S ACTS OF OFFAl II T
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
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events:
al Failure by LESSEE to pay promptly when due. and in no event later than ten (101 days
from the due date thereof. the rentals required to be paid under this lease.
bl 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 five (51 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.
cl 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 (61
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 thirty (301 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.
ARTICI F 9 -- RFMEDIFS FOR OFFAIII T BY I FSSFF
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
in addition to any rights and remedies that may be given to CITY by statute. common law or otherwise:
al 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 45.09.5041 with respect to sale of
property shall be a commercially reasonable disposal.
bl 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 (al 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.
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cl Declare this lease terminated.
dl 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.
el 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%1 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 of an amount not to exceed the amount received by CITY under this section.
fllf 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.
gl 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.
hI 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.
il 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.
ARTICI F 10 -- TIT! F TO IMPROVEMFNT !N~TAl! FO RV I F~~FF
10.1 RA"I Pr<1pArty ImpmVAmAntll. 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 cost to CITY, and LESSEE shall promptly remove same.
10.2--PArllnn,,1 PmpArty. Any other provisions of this lease to the contrary notwithstanding,
LESSEE, upon tennination of this lease for any reason, must promptly remove trade fixtures and equipment
from the leased land and shall repair any damages to the leased land caused by such removal.
ARTIC. E 11 -- ~lIBl FA~F OR A~~IGNMENT
11.1--AlIlIignmAnt <1f . A""A <1r ~lIhIA,,"ing. The parties recognize that this lease has been
detennined to be in the public interest for the reasons set forth in the preamble of this agreement, and has
been issued for a short term period. LESSEE may not assign, sublease, or sub-tenant this lease or any
portion of the leased land
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11.2 All,.;gnmAnt tn Affili"tA. LESSEE may assign this lease to an affiliate of LESSEE as that term
is defined by AS 10.05.825111; provided. however. that LESSEE's full faith and credit shall remain obligated
under this lease agreement as though the transfer had not taken place.
ARTICI F 12 -- I FSSEE'S DUTY TO DFFFND IINDFMNIFY
LESSEE shall defend. indemnify and hold CITY harmless from and against any and all liability or
claims arising from acts or omissions of any person and of any nature whatsoever occurring on or relating
to LESSEE's operations at or use of the site. causing injury to. or death of persons. or loss of. or damage
to property, and from any expense, including attorneys fees, incident to the defense of and by CITY
therefrom except for claims arising out of the sole negligence of the CITY. its agents or employees. If any
action or proceeding is brought against LESSEE by reason of any such occurrences, LESSEE shall promptly
notify CITY in writing of such action or proceeding.
ARTICI F 1::1 -- INSlJRANCF
Prior to commencement of occupation of the leased land. LESSEE shall procure and maintain. at
LESSEE's sole cost and expense. commercial general liability insurance. with limits of liability of ONE
MILLION 1$1.000,0001 for all injuries and/or deaths resulting to anyone person and ONE MILLION
DOLLARS 1$1.000,000) limit from anyone occurrence. The limit of liability for property damage shall be
ONE MILLION DOLLARS 1$1.000.0001 for each occurrence and aggregate. Coverage under such insurance
shall also include explosion. collapse and underground property damage hazards. Such insurance shall
include a blanket contractual liability endorsement. LESSEE shall also provide fire and extended coverage
insurance for any buildings, equipment. machinery. or any other property stored or being worked on by
LESSEE upon the leased land at replacement value rather than original cost. LESSEE shall provide
Workmen's Compensation Insurance, motor vehicle insurance and any other insurance required under any
permit or tariff of the City of Seward, Alaska. 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 agreement 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 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
IBest's Rating B+ or betterl. LESSEE shall furnish CITY. on forms supplied by 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 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 Iwhether 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. LESSEE shall provide CITY promptly and without request. copies
of all insurance binders and policies upon receipt thereof by LESSEE.
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ARTICLE 14 -- 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
detennination as to whether or not the taking of the part of the leased land designated for condemnation
will prevent if 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 1151 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
tennination, 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.
ARTICI F 15 __ ARRITRATION
15.1-- WrittAn Nnti"A. 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 paragraph. 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
to serve as an arbitrator on its behalf. Within fifteen 1151 days after receipt of such notice the other party
shall give written notice to the first party specifying the name and address of a person designated to serve
as an arbitrator on its behalf.
15.2-Cnn"Ant PanAI. Within five 151 days of the second party's designation of his representative
arbitrator, the two chosen arbitrators shall select a third person agreeable to both to become the third
member of the consent panel. The resulting panel of three Icalled the "consent panel"1 shall promptly
resolve the dispute submitted. The panel may utilize informal techniques and hold informal hearings or
meetings without reference or adherence to the rules or procedures of the American Arbitration
Association. If the panel desires to do so, it may conduct such formal proceedings as it deems appropriate.
Promptly, and IN NO EVENT later than forty-five (45) days after the selection of the third member, the
panel shall issue a written determination of all matters in dispute unless each party consents to a
reasonable extension of time determined by the consent panel to be required for a fair adjudication of the
issues. It is the intent of this section to provide for a speedy and inexpensive resolution of disputes
submitted to the panel. Any award shall be enforceable in accordance with Alaska statutes.
15.3 Arhitratinn Award". Any award shall include an award of costs, interest and attorney fees.
ARTICI E 16 -- MAINTFNANCF AND RFPAIR~
16.1--Nnrmal MaintAnan"A. During the entire remaining term of this lease and every renewal or
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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. LESSEE shall prevent the discharge of any pollutants to any
public sewer system beyond those for which the system was designed. LESSEE shall maintain in first class
condition at all times all fire. pollution and other protective equipment.
CITY may periodically inspect the leased land and facilities constructed thereon in order to
ascertain the condition of the public portion of the premises but the exercise of this right shall not imply
any obligation to do so nor any obligation to do so in any particular way.
16.2 ~afAty 1"-""AlI. 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.
16.3--CnlIt nf RApai.lI. 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
facilities. 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 Iwhich shall include
costs. interest and attorneys' fees) should ultimately find that the repairs were not necessary then LESSEE
may either lat the sole decision of the City) 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 to 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.
ARTICI F 17 -- I'NVIRONMENTAL CONCFRN~
17.1 --Ha7a.dn,," MatA.ialll.
a) Cnnditinn nf ~itA, LESSEE has had full opportunity to examine the site for the presence
of any Hazardous Material and accepts the site in "as is" condition; however. prior to the
effective date of this lease. LESSEE may complete a base line assessment of the lease site to be attached
hereto as Exhibit B.
bl RAIAallA nf CITY. Any other provision of this lease agreement to the contrary
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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 or after the term of this lease
agreement. and resulting from the use. keeping. storage or disposal of Hazardous Material on the site by
LESSEE, or arising out of or resulting from 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) USA nf H"7>udnlls M"tAri"ls nn thA SitA.
it LESSEE shall not cause or permit any Hazardous Material to be brought upon,
kept or used in or about the leased property except for such Hazardous Material as is necessary to conduct
LESSEE's authorized use of the leased land.
iiI Any Hazardous Material permitted on the leased land as provided in this
paragraph, and all containers therefore, 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.
iiil 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 detennined by the City, or any governmental authority) does or may. pollute
or contaminate the same. or may adversely affect the:
or elsewhere; or
(a) health. welfare or safety of persons, whether located on the leased land
personal property.
(b) the condition. use or enjoyment of the leased land or any other area or
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) 'ndAmnif;..,,,tinn nf r.ITY. Any other provision of this lease agreement 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 our 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
CITY OF SEWARD, ALASKA
RE: M.ctel Cellular Svatem la..
Page 9
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prOVISion shall apply only if the acts giVing rise to the claims. demands. penalties. fines judgments.
liabilities. settlements. damages. costs, or expenses;
(al occur in whole or in part during or after the tenn of this lease agreement;
and
(bl arise in whole or in part from the use of. operations on. or activities on
the leased land by lESSEE or its 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 agreement.
el F"r.ility npArator. For all purposes. lESSEE shall be deemed the operator of any facility
at the leased land.
fl H"7"rtin.... m"tArial tiAfinAd. As used in this lease agreement 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 agreement the term Hazardous Material
includes. without limitation. petroleum. including crude oil or any fraction thereof, petroleum soaked
absorbent material and other petroleum wastes.
gl EnvirnnmAntallaw dAfinAti. As used in this lease agreement 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.
17.2--PArmitR and RApnrting.
al PArmit" rAqllirAti hy nthAr govArnmAnt,,1 "gAnr.iA". 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 agreement.
bl CnrrA!lpnndAnr.A with anti r"port" tn AnvirnnmAntal "9..nr.iA". 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.
ARTICI E 18 __ ESTOPPEL CFRTIFICA TES
Either party shall at any time and from time to time upon not less than ten (101 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
CITY OF SEWARD. AlASKA
RE: Mact~ Cellular Sy.tem L....
P-oe10
.
.
.
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' 19 -- CONDITIONS AND COVE'NANTS.
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.
ARTICI F 70 __ NO WAIVFR OF BRFACH
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. covenant or condition. No waiver of any
breach shall affect or alter this lease. but each and every term, C0venant and condition of this lease shall
continue in full force and effect with respect to any other then existing or subsequent breach.
ARTICI E 71 -- TIMF 01= FSSENCF
Time is of the essence of this lease and of each provision.
ARTICI E 72 __ 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.
ARTICI E ,~ -- SIJCCFSSORS IN INTFRFST
Each and all of the terms. covenants and conditions in this lease shall inure to the benefit of and
shall be binding upon the success9rs in interest of CITY and LESSEE.
ARTICI F 24 -- FNTIRE AGREEMFNT
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.
ARTIC. E 25 -_ GOVFRNING lAW
This lease shall be governed by, construed and enforced in accordance with the laws of the State
of Alaska.
ARTICI F 26 -- 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.
CITY OF SE'w\IARO. ALASKA
RE: Mactel C.llul., System L...
Page'1
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ARTICI F 27 -- RFI ATIONSHIP OF PARTIFS
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.
ARTICI E 28 -- 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
attorneys in drafting and reviewing this lease.
ARTICI F 29 -- 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.
ARTICI F 30 -- MANDATORY AND PFRMISSIVF
"Shall". "will" and "agrees" are mandatory; "may" is permissive.
ARTIC! F 31 -- CAPTIONS
Captions of the Sections and Subsections 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 -- AMFNDMFNT
This lease is not subject to amendment except in writing executed by both parties hereto.
ARTIC! F 33 -- DFIIVFRY OF NOTICFS _ MFTHOD OF TIMF
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 ARTICLE 35 and to such other
persons and addresses as either party may designate notice shall be deemed to have been given at the time
of mailing.
ART!CLE 34 -- NOTICFS
All notices. demands and requests from LESSEE to CITY shall be given to CITY at the following
address:
City Manager
City of Seward
P.O. Box 167
Seward. Alaska 99664
CITY OF SEWARD. ALASKA
RE: M.ctel CeUuI... Sy.tem L...
Pege 12
AUG-25-94 THU 15:36 ~ CITY OF SEWARD
FAX NO. 9072243248
p, 13
.
.
.
All notices, demands or requests from CITY to lESSEE shall be given to LESSEE at the
following address:
F. Scott Davis. General Manager
Mactel Cellular System
3900 Denali Suite 100
Anchorage. Alaska 99503
A~TI~I E 36 -- CHANGE.OE..ADDRESS
Each party shall have the right. from time to time. to designate a different address by notice gil/sl'l
in conformity with this Article.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date first hereinbefore
set forth.
. '" .;,
CITY:
CITY OF SEWARD
~o~
CITY MANAGER
ATTEST:
APPROVE AS TO FORM:
WOHLFORTH. ARGETSINGER. JOHNSON & BRECHT
ATTORNEYS FOR THE
CITY OF SEWARD ~
~r .
TOM KLINKNER
CITY ATTORNEY
LINDA MURPHY, CMC/AAE
CITY CLERK
(CITY SEAL)
STATE OF ALASKA )
18$.
THIRD JUDICIAL DISTRICT I
THIS IS TO CERTIFY that on this day of . _.. 19 . before me. the undersigned. a Notary
Public in and for the State of Alaska, personally appeared , known
to me and to me known to be the individual named in and who executed the foregoing document, and who
acknowledged to me that (t)hely) signed the same freely and voluntarily for the usss and
purposes therein contained.
WITNESS my hand IInd notarial seal the day and year first hereinabove written:
Notary Public in and for Alaska
My Commission bpirBS:
CITY OF StwASm. A1,.AS(,Ao
AE: Medel Cc:UuI.r $YI1~", ~c..c
Page 1!
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III
PROPOSED ACCESS EASEMENT \
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~ PROPOSED 40'x70'
PARCEL LEASE
It 150' MONOPOLE
- TO RESURRECTION BAY
NASH ROAD
El(H IB/T'
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l.EASt:
NEW
HORIZONS
DESCRIPTION
MACTa. 150' MONOPOLE
CB.LULAR SITE PLAN
HORIZONTAL CONTROL
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ENGI'€ER JSL
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CONsmUCTION
8/21/9-# /&00
D\lG N(1 SWO_C14O RE', 1
PATH C:\A\MACTEL \ SEWARD\COOO
DATE OF ORIG, B/20/94
.
MICROW'A.VE
'NTE....,
TO AlASCoH
ALCH(l.l S'x16'
[(;IU[PMENT BUILDING
CELLIJAVE
8CR-12 ANTENNAS
V'LMONT 150' MONOPOLE
S1ANt))'1
GENSEl
DESCRIPTION
MACTEL SEWARD
CELL SITE
1I"""'''.IHC. WEST ELEVATION
NEW
HORlZONS
PRELIMiNARY
CiJ/3/9-f 1we
SCIILE NA OWG NO. SWD.....fRO REV 1
ENGINLER JSL P'TH A\MACTEL
DRIlfTER VNG DATE IT lJRIG. 08/21/94
CITY OF SEWARD, ALASKA
RESOLUTION NO. 94-164
AYES:
NOES:
ABSENT:
ABSTAIN:
A TrEST:
(City Seal)
THE CITY OF SEWARD, ALASKA
Mw:e.. ~z9. ~.
Dave W. Crane, Mayor
Anderson, Bencardino, Crane, Darling, Krasnansky, O'Brien, Sieminski
None
None
None
APPROVED AS TO FORM:
Wohlforth, Argetsinger, Johnson &
Brecht, Attorneys for the city of Seward,
Alaska
~ f 4:L-
City Attorney