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HomeMy WebLinkAboutRes1988-043 . . . Sponsored by: Schaefermeyer CITY OF SEWARD, ALASKA RESOLUTION NO. 88-043 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING AMENDMENTS TO A LEASE OF CITY-OWNED REAL PROPERTY BY AND BETWEEN THE CITY AND CHUGACH ALASKA CORPORATION WHEREAS, on January 11, 1988, the Seward City Council approved Resolution No. 88-007, authorizing a lease of city-owned property to Chugach Alaska Corporation; and WHEREAS, following public hearing on April 25, 1988, the City Council has determined that it is in the public interest to authorize certain amendments to the lease which would alter the terms of the lease with regard to lease assignment for financing purposes, right of lessee to terminate lease if unable to receive essential government permits, and various insurance requirements; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The city manager is hereby authorized to execute the "Chugach Alaska Corporation Addendum to Lease" which is attached and incorporated herein by reference. Section 2. This resolution shall take effect thirty (30) days after passage and posting as required by law. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 25 day of April , 19~ THE CITY OF SEWARD, ALASKA ~C~'~A.4 HARR . GIESELER, MAYOR AYES: NOES: ABSENT: ABSTAIN: DUNHAM, GIESELER, HILTON, NOLL, O'BRIEN & SIMUTIS NONE MEEHAN NONE -1- . CITY OF SEWARD, ALASKA RESOLUTION NO. 88-043 ATTEST: . . (City Seal) APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, AK 7~ 1If~ Fred B. Arvidson City Attorney -2- . . . CHUGACH ALASKA CORPORATION ADDENDUM TO LEASE The lease agreement between Chugach Alaska Corporation and the City of Seward approved by the City of Seward City Council on January 11, 1988, by Resolution 88-007 is hereby amended as follows: SECTION 1. The provisions of ARTICLE 2, Section 2.3 of the Lease Agreement are amended to read as follows: 2.3--Permits. CITY shall cooperate in good faith with LESSEE in LESSEE's efforts to promptly obtain any required permits for construction or operation of LESSEE's facilities. If, despite best efforts of LESSEE and CITY the LESSEE or the City has not received the following permits by June 1, 1989, LESSEE shall have the option, at its discretion, to terminate this lease agreement in accordance with section of this lease agreement: a) A Tidelands Lease or Right of Entry from the State of Alaska Department of Natural Resources, b) Any required Waste-water disposal or Air Quality Control Certification from the Deparment of Environmental Control of the State of Alaska, c) Any required permit from the United States Army Corps of Engineers pursuant to Section 404 of the Clean Water Act. Upon termination by LESSEE under this section LESSEE shall not be entitled to any refund, rebate, or payments from the CITY for any rent, investment, or costs incurred by LESSEE with respect to the development of the leased land, it being the intent of the parties that the risk of obtaining the required permits be solely a risk undertaken by LESSEE. At LESSEE's request CITY will apply for any necessary tidelands lease or ownership transfer from the appropriate governmental agencies. LESSEE will cooperate in that application process and both parties will assist the other in expediting the application and grant process. If CITY obtains a lease or title to the tidelands adjacent to the leased land then it will provide LESSEE--for no additional consideration other than that contained in this lease--rights of access across said tidelands adequate for LESSEE's operations. LESSEE agrees to pay whatever charges might be incurred by CITY either in the form of lease payments to the governmental agency having title to the tidelands, or any other permits or agency fees as they become due. Any such charges shall not be subject to credits against rent under ARTICLE 6. LESSEE may contest the amount or applicability of any of those charges but LESSEE will . . . not allow any lapse or default under any applicable leases or permits. In the event that CITY does not obtain a tidelands lease/title on terms and conditions acceptable to LESSEE, LESSEE may terminate this lease without further obligation to CITY. SECTION 2. ARTICLE 15 of the Lease Agreement is amended to read as follows: ARTICLE 15.--SUBLEASE OR ASSIGNMENT. 15.1--Assianment of Lease or Subleasina for Operations. The parties recognize that a material reason for the finding by the City Council of Seward in Resolution 88-007 that it is in the public interest to lease the lease land to LESSEE is LESSEE's status as a Native Regional Corporation under 43 U.S.C. ~1601 (et.seq.) and the interests of its Alaska Native shareholders, a substantial number of whom are residents of the City of Seward. Therefore, CITY shall have the right to refuse permission to any prospective assignee, sub-lessee or sub-tenant even though such entity intends to use the leased land for forest products manufacturing, and even though that corporation may be an Alaska Native Corporation, it being understood that one of CITY's reasons for entering into this lease is the compatibility of LESSEE's corporate objective with CITY's desire to promote the public interest. l5.2--Assianment of Lease for Security. Notwithstanding Section 15.1 above, LESSEE may assign, encumber or mortgage its interests in this lease or improvements on the leased land, by deed of trust or other security instrument, to an institutional lender ("Lender") for development of or operations on the leased land, provided that Lender shall be subject to all obligations of LESSEE under the terms of this lease agreement. CITY shal1 furnish Lender, at the address provided to CITY by Lender in writing, with notice of any default or breach of LESSEE under this lease. Lender shall have the right (without being required to do so and without thereby assuming the obligations of LESSEE under this lease) to make good such default or breach within thirty (30) days after written notice specifying such breach. Notwithstanding the provisions of Article 12 above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; provided, a) if Lender, with respect to any default or breach other than a failure to make any required payment of rent or other money, shall undertake within thirty days after notice to cure the default or breach and shal1 diligently and in good faith proceed to do so, CITY may not terminate this lease or relet the leased land unless Lender fails to cure the default or breach within a reasonable period of time thereafter; and b) if the default for which notice is given is a breach of Article l2(c), CITY shall not exercise any of the remedies afforded to it under Article 13 above so long as Addendum to Lease Agreement Chugach Alaska Corporation Page 2 . . . LESSEE or Lender remains in possession of the leased land and satisfied LESSEE's obligations under the terms of this lease. Upon foreclosure or other assertion of its security interest, Lender may further assign, transfer, or dispose of its interests, provided that any subsequent assignee, purchaser or transferee shall remain bound by each and every term of this lease agreement. l5.3--Assianment to Affiliate. LESSEE may assign this lease to an affiliate of LESSEE as that term is defined by A.S. 10.05.825(1); provided, however, that LESSEE's full faith and credit shall remain obligated under this lease agreement as though the transfer had not taken place. DATED this ____ day of April, 1988. CITY: LESSEE: CITY OF SEWARD CHUGACH ALASKA CORPORATION, INC. BY: Its: BY: Its: Attest: City Clerk 4421S Addendum to Lease Agreement Chugach Alaska Corporation Page 3