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HomeMy WebLinkAboutRes1990-088 . . . Sponsored by: Schaefermever CITY OF SEWARD, ALASKA RESOLUTION NO. 90-088 OF A RESOLUTION OF THE CITY COUNCIL OF THE CITY SEWARD, ALASKA, APPROVING A TEMPORARY LEASE AGREEMENT OF CITY PROPERTY WITH EXXON COMPANY USA FOR THE CONTINUED OPERATION OF A WILDLIFE RESCUE CENTER WHEREAS, on April 26, 1989, the city entered into a short-term lease agreement with VECO, Inc., for the operation of a wildlife rescue center for mitigation of negative impacts of the March 24, 1989, EXXON VALDEZ oil spill in Prince William Sound; and WHEREAS, on August 17, 1989, the city and VECO entered into a longer-term lease for the continuation of a wildlife rescue center; and WHEREAS, Exxon Company USA guaranteed the obligations of IND under both leases and has, by assignment of lease dated April 6, 1990, assumed all of VECO's rights and liabilities under the lease agreement dated August 17, 1989; and WHEREAS, on May 14, 1990, by Resolution No. 90-047, the City Council of the city of Seward approved a short-term lease agreement covering the same property for the operation of a wildlife rescue center during clean-up operations in 1989; and WHEREAS, Exxon desires to continue wildlife rescue center operations through the remainder of the summer of 1990 and anticipates closing and demobilizing the facility; and WHEREAS, pursuant to the provisions of SCC short-term lease agreement approved by the Resolution No. 90-047 will shortly expire; and Sec. 7.05.410, the City Council ln WHEREAS, continued operation of the wildlife rescue center is in the public interest; and WHEREAS, it is in the public interest to waive requirements of an appraisal of the property subject to this lease approved hereby; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is authorized to execute a Lease Agreement of Tract 2, Waterfront Tracts, excepting the Seward Teen Center and that area outside the east fence, for a total lease area of +/- 35,238 square feet, between the city of Seward and Exxon -1- . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 90-088 Company USA, a copy of which is attached and incorporated herein by reference. Section 2. This lease is subject to suspension during the first thirty (30) days after passage of this resolution if a sufficient referendary petition is filed in accordance with Section 4.8 of the City Charter. Section 3. This resolution shall take effect thirty (30) days following passage and posting. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 13th day of August, 1990. THE CITY OF SEWARD, ALASKA ~~ ~am C. Noll, Mayor AYES: NOES: ABSENT: ABSTAIN: NOLL, BURGESS, DUNHAM, HILTON, MEEHAN, SIEMINSKI, SIMUTIS NONE NONE NONE ATTEST: APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska rz.-dN~ Fred B. Arvidson City Attorney (City Seal) -2- . . . CITY OF SEWARD, ALASKA LEASE FOR THE OPERATION OF A WILDLIFE RESCUE CENTER THIS AGREEMENT is between EXXON COMPANY, U,S,A., a division of EXXON CORPORATION, ("LESSEE") and the City of Seward, Alaska ("CITY") and is effective thirty days after passage and posting of Resolution 90-~ approving this Agreement. WHEREAS, because of the March 24, 1989, oil spill from the EXXON VALDEZ in Prince William Sound an acute need existed for a wildlife rescue center; and WHEREAS, on April 26, 1989, CITY entered into a short- term lease with VECO, Inc" for the operation of a wildlife rescue center; and WHEREAS, on August 17, 1989, CITY and VECO, Inc., entered into a longer-term lease for the continuation of a wildlife rescue center; and WHEREAS, LESSEE guaranteed the obligations of VECO, Inc., under both leases and has, by assignment of Lease dated April 6, 1990, assumed all of VECO's rights and liabilities under the lease agreement dated August 17, 1989; and WHEREAS, CITY and LESSEE entered into a short-term lease effective April 10, 1990; and WHEREAS, LESSEE desires to extend its occupancy of the wildlife rescue center in anticipation of demobilizing it this fall; and WHEREAS, CITY desires to assist LESSEE in the provision of ~~re to wildlife from the Prince William Sound area that might Exxon Lease 080790 Page 1 have been affected by the oil spill from the EXXON VALDEZ; and WHEREAS, by Resolutions 89-038, 89-089 and 90-~ the City Council has found prior leases and this lease for the operation of a wildlife rescue center to be in the public interest; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: ARTICLE l.--LEASED LAND, l,l--Description of Leased Land, The leased land granted by CITY under this lease (hereinafter referred to as "leased land") is located in Seward, Alaska, and is depicted on the attached Exhibit A, which has been prepared from a staking of the property and which is incorporated into this lease by reference, The leased land is more particularly described as follows: Tract 2, City of Seward Waterfront tracts (unrecorded plat) excepting therefrom the Seward Teen Center exception (+/- 3784 square feet) and that area outside the east fence (+/- 4099 square feet). Total lease area is +/- 35,238 square feet. l,2--Title to Leased Land, The parties recognize that CITY has not verified its ownership of the leased land nor conducted a title search of the leased land, The parties recognize that the leased land is currently unplatted and this lease may therefore be in violation of the Kenai Peninsula Borough Code with respect to platting requirements, If requested by the Borough, CITY and LESSEE shall jointly prepare and file a rep1at of the leased land or alternatively LESSEE may terminate this lease agreement. In the event LESSEE elects to continue this Exxon Lease Page 2 080790 . . . lease, all expenses for such a replat, including staff time of CITY, shall be borne by LESSEE, CITY, in good faith, believes that it has title to the property but does not warrant quiet enjoyment to LESSEE, Upon request of LESSEE and at LESSEE's sole expense, CITY will obtain a title search to the leased land and if that search discloses that CITY does not have title to the property, or would be prevented from granting the right of possession to LESSEE hereunder, then LESSEE may, at LESSEE's option, terminate this lease agreement, 1.3--Zoninq, Land Use. CITY represents that the current zoning classification of the leased land is General Commercial. In the event that at any time LESSEE deems it necessary or appropriate to obtain use, zoning or subdivision and precise plan approval for the leased land, or any part thereof, 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 therefor 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 the City to assist LESSEE in obtaining any other permits or approvals for operation or construction, such as those required by the U,S, Coast Guard or the Environmental Protection Agency (Clean Air Act permits), or the Alaska Department of Environ- mental Conservation, etc, CITY shall cooperate with LESSEE in LESSEE's efforts to promptly obtain any required permits for construction or operation of LESSEE's facilities, Exxon Lease 080790 Page 3 ARTICLE 2,--UTILITIES AND RIGHTS OF ACCESS, 2,l--Utilities. The leased land is currently served with the following public utilities: a) Electrical, CITY has provided electrical service to the location marked in RED on the attached Exhibit A. All costs associated with electrical service beyond that point to LESSEE's facilities and improvements are at the sole cost and expense of LESSEE, b) Water, CITY has provided potable water to the approximate location marked in BLUE on the attached Exhibit A with a minimum service on a two inch line at 60 P,S,I, CITY agrees to make reasonable efforts to provide temporary water service, c) Sewer, CITY has provided sanitary sewer interconnection to the location marked in GREEN on the attached Exhibit A, which has been agreed by the parties as an acceptable service location. The term "sewer" means sanitary sewer suffi- cient for use by employees and invitees of LESSEE and employees and invitees of tended vessels. It does not include, nor is CITY responsible for providing, special treatment or handling facili- ties for industrial waste, waste oil products, oil or contaminated water of any type associated with LESSEE's operations from the leased land including all waste petroleum and chemicals, 2,2--Temporary Utility Service, Where feasible and where approved by any regulatory agencies having jurisdiction, CITY agrees to make reasonable efforts to provide temporary Exxon Lease 080790 Page 4 . . . utility services to the leased premises, CITY cannot warrant that it will be able to provide LESSEE with utility services sufficient for LESSEE's intended operation. LESSEE shall bear the entire costs of any such provision and installation of temporary services by CITY including, without limitation, actual costs incurred, engineering and staff costs, utility (including overtime) and materials. The risk of loss by reason of any delay in providing services will be borne solely by LESSEE including any loss or damage by reason of LESSEE being unable to commence or continue operations from the leased land, ARTICLE 3. --ENVIRONMENTAL CONCERNS 3,1--Hazardous Materials, a) Condition of Site, LESSEE has had full opportunity to examine the site for the presence of any Hazardous Material and has accepted the site in accordance with the previous lease agreement in an "as is" condition and has reviewed a base line assessment prepared by Environmental Services Limited dated July 31, 1989 (the "Base Line Assessment"), b) Release of CITY. Any other provision of this lease agreement to the contrary notwithstanding, LESSEE releases CITY from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert fees) arising during or after the term of this lease agreement, and resulting from the use, keeping, storage or disposal of Hazardous Material Exxon Lease 080790 Page 5 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 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 property except for the temporary storage of petroleum soaked absorbent materials and other such Hazardous Material as is necessary to 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 regula- tions 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 else- where, or (b) the condition, use or enjoyment of the leased land or any other area or personal property. Exxon Lease 080790 Page 6 . . . 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 pro- vision 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, liabil- ities, 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 provision shall apply only if the acts giving rise to the claims, demands, penalties, fines Exxon Lease 080790 Page 7 judgments, liabilities, settlements, damages, costs, or expenses (a) occur in whole or in part during or after the term of this lease agreement, and (b) 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, subcon- tractors 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, LESSEE's obligations of indemnification under this or any other provision of this lease agreement with regard to Hazardous Material clean-up shall not extend to Hazardous Materials or other wastes identified in the Base Line Assessment as being present on the leased premises prior to occupancy by LESSEE or VECO, Inc, e) Facility operator, For all purposes, LESSEE shall be deemed the operator of any facility at the leased land, f) Hazardous material defined, 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 Exxon Lease 080790 Page 8 . . . 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 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, condi- tions, or other restrictions or standards relating to same, Environmental Laws include, by way of example and not as a 1imita- tion of the generality of the foregoing, the Resource Conservation and Recovery Act of 1976, Comprehensive Environmental Response, Compensation and Liability Act of 1980, Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. 3,2--permits and Reporting. a) Permits required by other qovernmenta1 aqencies. LESSEE shall obtain all necessary permits or other consents from all governmental agencies. Copies of all such permits shall be provided to City prior to LESSEE commencing work under this lease. Without limiting the generality of the fore- going, LESSEE shall obtain from the State of Alaska Department of Environmental Conservation written approval of its intended use of the leased land and of its methods of operation and clean up plans. Copies of such written approvals shall be given to CITY immediately upon receipt from the state. LESSEE shall promptly Exxon Lease 080790 Page 9 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. b) Correspondence with and reports to environ- mental aqencies, 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, c) Operatinq plan, LESSEE has furnished to CITY a written development and clean-up plan describing in detail the operations that have been conducted and may be conducted on the leased land and the plans of LESSEE to restore the leased land to its original condition, ARTICLE 4,--LEASE TERM 4,l--Temporarv Term, Under the provisions of S 7,05,410 of the Seward Code the city manager is authorized to enter into short term lease agreements subject to certain conditions, LESSEE has reviewed the provisions of the Seward Code and agrees to those restrictions, This lease shall terminate November 15, 1990; provided, that LESSEE may cancel this lease upon thirty days Exxon Lease 080790 Page 10 . . . written notice to CITY, This lease agreement is not subject to renewal. 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. 4,2--Additional Lease Aqreement(s). LESSEE shall be solely responsible for timely compliance with all of the requirements of the Seward Municipal Code with respect to the term of this lease agreement, including the provision of a request therefore to CITY in sufficient time to permit approval by the City Council prior to the expiration of this lease agree- ment. CITY shall have the right to negotiate with LESSEE for any additional terms and conditions as deemed appropriate by the C~ty Manager, including those viewed as necessary or useful in light of LESSEE's operations and compliance with this lease agreement. The City Council of the City of Seward shall have the absolute uncontrolled discretion to approve or disapprove of any subse- quent lease agreement proposed by LESSEE, LESSEE may not rely upon this lease agreement as granting LESSEE any rights to obtain an additional lease agreement in the future, 4,3--Referendary Petition, The parties understand, and LESSEE is specifically taking the risk that under the Charter and Ordinance provisions for the City of Seward, this lease agreement may be voided by a referendum vote of the people, and that the grant to LESSEE of the right to possession of the leased premises prior to the passage of thirty (30) days from the date Exxon Lease 080790 Page 11 of approval of this lease by the City Council for the City of Seward shall in no way affect or reduce the rights of the voters to reject this lease agreement, in which case neither CITY nor LESSEE shall be entitled to any damages, or any other recovery against the other and all rentals shall be abated, Permitting LESSEE to occupy the land in advance of the lapse of thirty (30) days is for the convenience of LESSEE only and should not be construed as granting any interest in the leased land should this lease be defeated in a referendum election. ARTICLE 5.--RENT, 5,l--Monthly Rent, The monthly rental fee shall be $ 7;z..J': ~..?and three month's rent in the amount of $2: 7 71: ~" , shall be paid on or before August .)/~ Failure of LESSEE to pay the appropriate rental fee will terminate this lease agreement, ARTICLE 6,--USE OF LEASED LAND, 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. 6.1--Use of the Leased Land, LESSEE may use the leased land only for a wildlife rescue, cleaning and recovery center and the storage of such facilities when not in use but for no other purposes. LESSEE will not use the land in any manner or construct any facilities thereon which would inhibit the use of adjacent or other lands, Exxon Lease 080790 Page 12 . . . 6.2--No Preferential Riqhts to Use Public Facilities. This lease agreement shall not be construed to grant any preferential rights of use to LESSEE of any public port facil- ities constructed or maintained by the City of Seward, Insofar as use of those facilities is concerned. LESSEE will be subject to any applicable 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 preferential use. Subject to the rights of others to utilize the public facilities as set forth in any applicable tariff or regulation, CITY agrees not to obstruct or allow others to obstruct LESSEE's access between the leased land and public facilities, 6,3--Adequacy of Public Facilities, The 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 satisfied itself that the facilities are sufficient for the intended uses by LESSEE, 6,4--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 pose any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities, Exxon Lease 080790 Page 13 6.5--0perations on Leased Land, If any operation or construction by LESSEE might adversely affect the safety of LESSEE's operation such that the adjacent or nearby lands and facilities are exposed to risk or hazards, or a risk to the public interest, or if CITY is not satisfied with the quality of construction (compliance with the Building Code) or the conduct of LESSEE's business (variation from approved plan), the City Engineer may determine whether the work by LESSEE poses an unreasonable risk to adjacent public port facilities or adjacent private facilities, and if he does determine such risk exists, then LESSEE shall pay the costs of his survey and immediately take whatever remedial steps are reported as necessary to eliminate the danger or hazard, ARTICLE 7.--CONSTRUCTION BY LESSEE, 7,l--Construction. 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, recon- struction, demolition, or of any changes, alterations or improve- ments. shall be borne and paid for by LESSEE, b) The leased land shall at all times be kept free of mechanic's and materialmen's liens, c) LESSEE shall supply CITY with a copy of all building plans and specifications and a site plan or plans for the leased land. Exxon Lease 080790 Page 14 . . . d) Any general contractor employed by LESSEE or its sub1essees shall be appropriately bonded by use of perfor- mance and labor and material payment bonds in the customary form when cost of the work is over $20,000. 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, e) CITY may, as contemplated by Alaska Statutes, give notice of non-responsibility for any improvements constructed or effected by LESSEE on the leased land, 7.2--CITY Review of Plans/Specifications, LESSE~ has designed a wildlife rescue center facility at LESSEE's expense. CITY shall have the right to review any changes or additions to that facility by reviewing the design thereof, and CITY shall have the right to comment upon that design and to require LESSEE to make reasonable changes to conform to safety considerations and so as to avoid interference with other port 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 as approved by CITY, CITY's engineer may monitor the work and shall have access to the site at all reasonable times subject to compliance with LESSEE's safety rules. LESSEE shall obtain the usual and customary performance guarantees Exxon Lease 080790 Page 15 from its contractors and LESSOR shall be named as an additional insured, ARTICLE 8,--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 five (5) days from the due date thereof, the rentals required to be paid under this lease or failure to promptly pay all sums due City including public fees or user charges for public facilities, electrical, sewer or other service charges related to the leased land, b) Failure by LESSEE to observe, fulfill or perform any material covenants, conditions or agreements on its part to be observed or performed under this lease for a period of forty eight (48) hours 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. 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 Exxon Lease 080790 Page 16 . . . 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, arrange- ment 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. d) Violation by LESSEE of any laws or regulations of the United States, or of the State of Alaska, or any condi- tions of any permits issued by agencies of the City of Seward, the State of Alaska or of the United States Government pursuant to the regulations of such agencies related to the LESSEE's operations on the leased land, for a period of forty eight (48) hours 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 applic- able period, it shall not constitute an act of default if correc- tive action is instituted by LESSEE within the applicable period and diligently pursued until the violation is corrected. If LESSEE shall contest such alleged violation through appropriate judicial or administrative channels, the time extension provided herein shall not be effective if the effect of the interim admini- strative or jUdicial action is to cause a stoppage, interruption or threat to the activities of any person or entity other than those of LESSEE, Exxon Lease 080790 Page 17 ARTICLE 9,--REMEDIES FOR LESSOR'S ACTS OF DEFAULT. 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 provided LESSEE has refused to pay any sum due under this lease after notice of default and opportunity to cure, 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 45,09.504) with respect to sale of property shall be a commercially reasonable disposal, b) CITY may re-enter the premises and take posses- sion 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, c) 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. Exxon Lease 080790 Page 18 . . . 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. f) 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. g) 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. h) 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 here- after 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. Exxon Lease 080790 Page 19 i) 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 10.--CONDITION OF PROPERTY ON TERMINATION. LESSEE shall remove all improvements including utilities unless the CITY requests and LESSEE agrees that one or more par- ticular improvements be left on the Leased Land. All improvements shall be removed by LESSEE within fifteen (15) days from the termination of this lease for any reason. Upon the termination of this lease agreement. LESSEE shall return the leased land to CITY in good condition. usable as it was originally intended. The leased land shall be free of all oil or other Hazardous Material at the leased land arising out of or resulting from LESSEE's operations at the leased land, Upon termination of this lease agreement. LESSEE shall pay for an environmental assessment to be performed by qualified engineers selected by the City, subject to LESSEE's approval of the scope of the assessment and the selection of the engineers which approvals shall not be unreasonably withheld, to establish that the leased land is free of all Hazardous Material and shall remove and properly dispose of any Hazardous Material found to be on the leased land. ARTICLE 11.--SUBLEASE OR ASSIGNMENT. The parties recognize that LESSEE's intended operations from the leased land are unique and not of a general commercial Exxon Lease 080790 Page 20 . . . nature. LESSEE shall not be permitted to transfer or assign, or sublet any or a portion of the leased land without the CITY's written prior consent, which consent may be withheld for any reason or no stated reason, ARTICLE 12.--INDEMNIFICATION/HOLD HARMLESS, 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. ARTICLE 13 ,--INSURANCE, Prior to commencement of construction of any facilities on the leased land, LESSEE shall procure and maintain, at LESSEE's sole cost and expense, comprehensive general liability insurance, with limits of liability of FIVE HUNDRED THOUSAND DOLLARS ($500,000) for all injuries and/or deaths resulting to anyone person and ONE MILLION DOLLARS ($1,000,000) from anyone occurrence, The limit of liability for property damage shall be FIVE HUNDRED THOUSAND DOLLARS ($500,000) for each occurrence and aggregate. Coverage under such insurance shall also include Exxon Lease 080790 Page 21 explosion, collapse and underground property damage hazards. Such insurance shall include a broadform contractual endorsement. LESSEE shall provide Workmen's Compensation Insurance and any other insurance required under any permit or tariff of the City of Seward, Alaska. All insurance policies shall provide for ten (10) days' notice of cancellation and/or material change to be sent to CITY at the address designated in ARTICLE 32 of this lease. All such policies shall be written by insurance companies legally author- ized or licensed to do business in the State of Alaska. 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 LESSEE's own individual cost and expense, additional or other insurance as may be desired, LESSEE shall promptly, and without demand therefor, provide CITY with copies of all binders and pOlicies of insurance, LESSEE shall be entitled to, and does hereby elect, to self-insure the risks described in this Article 13. 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 con- demning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking, Exxon Lease 080790 Page 22 . . . 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 desig- nated 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 ClrY in writing to this effect, and this lease shall then be terminated for all purposes effective five (5) 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 due to LESSEE's use of or operations on the leased land, 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 begin- ning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. Exxon Lease 080790 Page 23 ARTICLE 15,--MAINTENANCE AND REPAIRS. 15,l--Normal Maintenance. After the commencement of construction and during the entire remaining term of this lease, 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 construc- ted 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 all fire, pollution and other protective equipment in accordance with the law. CITY may periodically inspect the leased land and facilities constructed thereon in order to ascertain the condition of the public portion of the premises subject to compliance with LESSEE's safety rules but the exercise of this right shall not imply any obligation to do so nor any obligation to do so in any particular way. 15,2--Safetv 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 forty eight (48) hours 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 Exxon Lease 080790 Page 24 . . . 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 reasonably satisfied with the proposed schedule of repairs, then LESSEE shall make such repairs and pay the cost of such work. ARTICLE 16.--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 (appropriate fire extinguishers and other fire safety devices), 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, ARTICLE 17, --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 18 ,--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, covenant or condition, No waiver of any breach shall affect or alter this lease, but each and every term, Exxon Lease 080790 Page 25 covenant and condition of this lease shall continue in full force and effect with respect to any other then existing or subsequent breach, ARTICLE 19,--TIME OF ESSENCE, Time is of the essence of this lease and of each provision, ARTICLE 20,--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, Where time limits are expressed in hours, the first hour to be counted shall be the hour after delivery of notice to the party affected, ARTICLE 21,--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 22, --ENTIRE AGREEMENT, This lease agreement is the third agreement relating to a wildlife rescue center on the Leased Land, The first was a short-term lease for the operation of a wildlife rescue center dated April 26, 1989. The second lease, which is the immediate predecessor to this agreement, was dated August 17, 1989, Both the first and second leases were between CITY and VECO, Inc., and were guaranteed by LESSEE. LESSEE has assumed all of VECO, Inc., rights and liabilities under the second lease by that certain Exxon Lease 080790 Page 26 . . . Assignment of Lease between LESSEE and VECO, Inc., dated April 6, 1990, Nothing in this Lease Agreement is intended to alter in any manner the rights and obligations of LESSEE or VECO, Inc" under contracts for services with regard to the clean-up of the M/V EXXON VALDEZ oil spill of March 24, 1989. This agreement con- tains the entire agreement of the parties with respect to the matters covered by this lease agreement and no other agreements, statements or promises made by any party which is not contained in this agreement shall be binding or valid, ARTICLE 23.--GOVERNING LAW, This lease shall be governed by, construed and enforced in accordance with the laws of the State of Alaska. ARTICLE 24,--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 25,--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. Exxon Lease 080790 Page 27 ARTICLE 26.--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. ARTICLE 27.--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, ARTICLE 28.--MANDATORY AND PERMISSIVE, "Shall", "will" and "agrees" are mandatory; "may" is permissive, ARTICLE 29.--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 30, --AMENDMENT, This lease is not subject to amendment except in writing executed by both parties hereto, ARTICLE 31,--DELIVERY OF NOTICES - METHOD AND TIME. All notices, demands or requests from one party to another shall be delivered in person or be sent by mail, certi- fied or registered, postage prepaid, to the addresses stated in Exxon Lease 080790 Page 28 . . . ARTICLE 29 and shall be deemed to have been given at the time of delivery or mailing. Where time deadlines are expressed in terms of hours, notice shall be deemed to have been given at the time of delivery to the person(s) set forth in the following ARTICLE. ARTICLE 32 ,--NOTICES , All notices, demands and requests from LESSEE to CITY shall be given to CITY at the following address: City Manager City of Seward P.Q, Box 167 Seward, Alaska 99664 All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: Mark Friesenhahn Exxon Company, U,S,A. 3301 C Street - Third Floor p, 0, Box 240409 Anchorage, Alaska 99524-0409 Where time is to be computed on the basis of hours, notice may be given by personal delivery to the following persons: During regular hours of operation of City Hall: Darryl Schaefermeyer FAX: 224-3248 After regular hours of operation of City Hall, by personal service to any of the following: Darryl Schaefermeyer Chief of Police ~~3s'f'7 2"2-~- '] 3~a> FOR THE LESSEE: Manager of Operations FAX: FAX: Sr,q ~3 :17tlf Exxon Lease 080790 Page 29 ARTICLE 33 ,--CHANGE OF ADDRESS. Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. ARTICLE 34, --NO THIRD PARTY BENEFICIARIES, Nothing in this lease is intended to create nor shall establish any rights in third parties, IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date first hereinbefore set forth. CITY: CITY OF SEWARD BY~'. Dar Schaeferm yer, City Manager - " r.' ~._, '.', ,..: ~ if' ~,;-' 0" ~~ . '+ .', "':'-'...' .... '\-. LESSEE: EXXON COMPANY U.S.A" a division of Exxon Corporation , ~BY: ~H~ General Manager . .",,\ Exxon Lease 080790 Page 30 . . . APPROVED AS TO FORM: PERKINS COlE Attorneys for the City of Seward BY: 7..--4. t1:/~ Fred B. Arvidson STATE OF ALASKA ) ) ss, ) THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that on this~ day of August, 1989, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared (H+c I? Hi:,'! fI,<;UYV of !.:->< j( VI) , known to me and to me known to be the individual named in and who executed the foregoing document, and he acknowledged to me that he was 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, WITNESS my hand and notarial seal the day and year first hereinabove written, /) . 'LA LC C L- l_u./i.-( L{' *--_ ry Public in and fo~ Alaska Conunission Expires: Cf-/S--QO 2186/ajw , -,--_.",,-~-~,-,wA"'''''1 .':tnte of A,',~,l'a : I\C: ";1' 1~[ ':f Ie I .J/ i'~:CE L. PURULL J ~ My CC;TlInission expires: SepTember 151 1990 ~, .""....".."'^\'......""~"'"UV\\\lo..\..H'"V\..\..\"'\i\,....\.,,\. . Exxon Lease 080790 Page 31 . . . Under IMS responsibilities point 1. We are already using all the sea water we pump but could easily increase our system to send water next door to AMMC. A relatively small amount of money would be needed for this since mammals do not need the quality of water that fish do and water from as shallow as 10 m would do. We will need to do a little work to see how deep the silty water goes during the summer, but that is an easy task. Rewrite point 1 as follows: Will, with funds provided for AMMC, upgrade the sea water system to provide sea water to AMMC. Under point 2 eliminate the words "Upon request of the developer", change to read as follows: 2. Will help seek grant funds for the planning and construction of the AMMC from private foundations and other sources. AN ~-hj) LoIL."j. I..u 0 If.. A-~Kcc.. ~ ? ek V41 p~ -1-4> C ~ k9 ~., ".... . --