HomeMy WebLinkAboutRes2018-055 Sponsored by: Hunt
CITY OF SEWARD,ALASKA
RESOLUTION 2018-055
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA,APPROVING AN AMENDED AND RESTATED 20 YEAR LEASE
WITH TWO FIVE-YEAR EXTENSIONS WITH ICICLE SEAFOODS FOR
LOTS 2A, 3A BLOCK 2 MARINA SUBDIVISION REPLAT NO. 96-28,
SEWARD,ALASKA
WHEREAS, Icicle Seafoods have been a large part of the Seward community for a long
time; and
WHEREAS, the City of Seward and Icicle Seafoods, entered into Lease No. RE-071 on
August 17, 1988, and since then the lease has been amended two times; and
WHEREAS,the current lease expires on August 17, 2018; and
WHEREAS,Icicle Seafoods has submitted a request to amend and restate their ground lease
with the City of Seward; and
WHEREAS, the city manager is authorized by Seward City Code §7.05.120 to negotiate
leases subject to council approval; and
WHEREAS,the City Manager and administration have negotiated a new 20-year Amended
and Restated lease with 2 five-year extensions with Icicle Seafoods which will,among other things,
incorporate standard lease language for City leases,which represent substantive changes to the lease
language as compared to the lease initially approved in 1988.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD,ALASKA that:
Section 1. The City Council hereby approves a new lease for Lot 2A, 3A Block 2 Marina
Subdivision, Seward, Alaska, Replat No. 96-28 between the City of Seward and Icicle Seafoods,
expiring July 25, 2038, with 2 five-year options to extend, in substantial form as attached hereto.
Section 2. The City Manager is authorized to execute an amended and restated lease with
Icicle Seafoods.
Section 3.This resolution shall take effect thirty(30)days following approval and posting.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska,this 25th
day of June, 2018.
CITY OF SEWARD,ALASKA
RESOLUTION 2018-055
THE CITY OF SEWARD, ALASKA
David Squires, yor
AYES: Horn, Casagranda, Towsley, McClure,Keil, Squires
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
4A. . A /L. ,
:renda J. Ballou TMMC
City Clerk
(City Seal) .••;�OF SEIti'i•,
• I SEAL •
ti .
OF AP.'`„
.......an....
Council Agenda Statement
Meeting Date: June 25, 2018 : 1`
To: Seward City Council
Through: Jim Hunt, City Manager
From: Norm Regis, Harbormaster
Ap-enda Item: Approving-an-Amended and Restated 20-. Lease y with_Icicle Seafoods—
BACKGROUND & JUSTIFICATION:
The Seward City Council approved the initial lease for Icicle Seafoods Inc, on August 17, 1988 for a thirty year
term with no options to extend. The initial lease was for 2.3 acres more or less; with Lease Amendment No. 1
dated July 11, 1988 combining all Icicle's leases into one for a total of 4.93 acres (214,804 sf) at a lease rate of
$.36 per square foot. In Lease Amendment No 2 the legal description was changed with a new replat and a
provision for Rent Payment Credits for Production and Employment was added. New appraisals have been done
every five years since. The latest appraisal was completed in 2015 with the new appraisal rate of$124,000.
The current lease (RE-071) will reach the end of its original term in August 2018. Icicle Seafoods has requested
a new thirty year ground lease per 17.13 (a, c). Icicle Seafoods has requested that the same rent credits f'or
production and employment be applied to the new lease. In the new lease the City agrees to the same production
credit, but has changed the employment credit to apply only to Alaska residents. Icicle agrees to this change.
Seward City Code §7.05.120 directs the City Manager to negotiate leases subject to council approval, and the
City Manager and administration have negotiated a new 20 year lease with two five year extension options. The
new lease incorporates standard lease language which has been added to all City leases since the original Icicle
lease was approved thirty years ago (i.e. lease appraisals; annual CPI rental adjustments, etc.).
INTENT:
City Council approve an Amended and Restated twenty-year lease with Icicle Seafoods with 2 additional 5-year
options to extend for Lot 2A, 3A Block 2 Marina Subdivision, Seward, Alaska Re lat No. 96.28..
CONSISTENCY CHECKLIST: Yes No N/A
Comprehensive Plan: p 23/ 3.5.1.1 Encourage the growth and
I. development of an efficient, functional boat harbor that meets Seward's X
commercial and recreational needs
Strategic Plan: Page 6/Attract New Industry- Develop an aggressive
2 marketing campaign which highlights the X
diverse resources and quality of life that make Seward a great place
to live and establish a business or industry
3. Other: X
FISCAL NOTE: The current lease payment is $124,000, which could be reduced by no more than fifty percent
according to the amount of lease credits applied; the lease rate could also change wit the 2019 yearly CPI or
upon the new appraisal in 2020. Approved by Finance Department:
a
ATTORNEY REVIEW: Yes X No
RECOMMENDATION:
Approve City Council Resolution 2018- 055 authorizing a new 20 year lease with Icicle Seafoods in the
Seward Boat Harbor.
19
A
SEWARD FISHERIES \
G'
division of
ICICLE SEAFOODS, INC.
P.O.BOX 8
SEWARD, ALASKA 99664
(907)224-3381ICICLE,.
Fax(907)224-324-3285
February 21, 2017
Mr. Jim Hunt, City Manager
City of Seward
P.O. Box 167
Seward, AK 99664
RE: Ground Lease between City of Seward and Icicle Seafoods, Inc.
Contract No. RE-071
Dear Mr. Hunt:
I am writing in regard to the Ground Lease between the City of Seward and Icicle Seafoods, Inc.
dated as of July 11, 1988, as amended by that Lease Amendment No. 1 dated as of,tune 8, 1989,
and that Lease Amendment No. 2 effective dated ,January 1, 1999.
Although the lease is not scheduled to expire until August 2018, Icicle would like to begin the
process of getting a new lease in place. As you know, Lease Amendment No. 2 entitles us to
receive certain rent payment credits for production and employment and we are very interested in
maintaining those credits in the new lease.
We believe Icicle provides substantial benefit to the local economy and the Seward community
in general, and we very much appreciate the excellent working relationship that we have had
with the City for so many years. We respectively request that the City provide a draft lease to
get the renewal process started. Thank you for your consideration.
Sincerely,
ICICLE SEAFOODS, IN-�C.
Charles McEldowney
Seward Plant Manager
HOME OFFICE
4019 21 ST Avenue West • Seattle, WA 98199
P.O. Box 79003 • Seattle,WA 98119 •lel: 206-282-0988 • Fax: 206-282-7222
AMENDED AND RESTATED
LEASE AGREEMENT
between
CITY OF SEWARD, ALASKA
and
Icicle Seafoods Inc.
Effective Date: [ ]
4817-1371-2460v.14 0022769-000022
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TABLE OF CONTENTS
ARTICLE 1 -LEASED LAND.................................................................................................... 1
1.1 Description of Leased Land.................................................................................... 1
1.2 Covenant of Quiet Enjoyment; Warranty of Title................................................... 2
1.3 Property Accepted................................................................................................... 2
1.4 Permits....................................................................................................................2
1.5 Platting....................................................................................................................2
1.6 Development of Leased Land.................................................................................. 3
1.7 Amendment and Restatement of Original Lease..................................................... 3
ARTICLE 2 -LEASE TERM...................................................................................................... 3
ARTICLE 3 -RENTAL RATE ................................................................................................... 3
3.1 Initial Rental Rate................................................................................................... 4
3.2 Rental Adjustments..................................................................................................4
3.3 Procedure for Rental Adjustment............................................................................4
3.4 Effect of Late Appraisal by CITY............................................................................4
3.5 Appraisal by LESSEE............................................................................................. 5
3.6 Effective Date of Adjusted Rental Rate................................................................... 5
3.7 Interim Rental Adjustments..................................................................................... 5
3.8 Rent Payment Credits for Production and Employment......................................... 6
3.9 Late Payment Charge ............................................................................................. 7
ARTICLE 4 -USE OF LEASED LAND .................................................................................... 7
4.1 Use of Leased Land................................................................................................. 7
4.2 Obligations ofLESSEE........................................................................................... 7
4.3 No Preferential Rights to Use Public Facilities ..................................................... 8
4.4 Adequacy of Public Facilities................................................................................. 8
4.5 Tariffs and Other Service Fees ............................................................................... 8
4.6 Time for Payment of Utilities and Taxes................................................................. 8
4.7 Other Uses .............................................................................................................. 8
4.8 Use of Public Docks and Port Facilities................................................................. 8
ARTICLE 5 -UTILITIES AND RIGHTS OF ACCESS.......................................................... 8
5.1 Utilities.................................................................................................................... 8
5.2 Third-Party Improvements...................................................................................... 9
5.3 Easements ............................................................................................................... 9
ARTICLE 6 - CONSTRUCTION BY LESSEE....................................................................... 10
6.1 Improvements on Leased Land............................................................................. 10
6.2 City Review of Construction ................................................................................. 11
ARTICLE 7 -RETURN OF LEASED LAND/SITE CONDITIONS.................................... 11
ARTICLE 8 -FORCE MAJEURE ........................................................................................... 11
ARTICLE 9 -LESSEE'S ACTS OF DEFAULT..................................................................... 11
ARTICLE 10 -REMEDIES FOR DEFAULT BY LESSEE .................................................. 13
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE........................ 15
11.1 Real Property Improvements ................................................................................ 15
11.2 Personal Property................................................................................................. 15
4817-1371-2460v.14 0022769-000022 1
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ARTICLE 12 -ASSIGNMENT OR SUBLEASE .................................................................... 15
12.1 Assignment of Lease or Subleasing....................................................................... 15
12.2 Assignment of Lease for Security.......................................................................... 15
12.3 Assignment to Affiliate.......................................................................................... 16
12.4 Assignment or Encumbrance by City.................................................................... 17
ARTICLE 13 -LESSEE'S DUTY TO DEFEND/INDEMNIFY ............................................ 17
ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY ................................................. 17
ARTICLE 15 -INSURANCE .................................................................................................... 17
15.1 Minimum Insurance Requirements....................................................................... 17
15.2 Subrogation Rights Waived................................................................................... 19
15.3 Restoration of Buildings and Improvements......................................................... 19
ARTICLE 16 - CONDEMNATION.......................................................................................... 20
ARTICLE 17 -ARBITRATION ............................................................................................... 20
17.1 Arbitration............................................................................................................. 20
ARTICLE 18 -MAINTENANCE AND REPAIRS................................................................. 21
18.1 Normal Maintenance ............................................................................................ 21
18.2 Safety Issues..........................................................................................................22
18.3 Cost of Repairs......................................................................................................22
ARTICLE 19 -ENVIRONMENTAL CONCERNS................................................................ 22
19.1 Hazardous Materials ............................................................................................ 23
19.2 Permits and Reporting.......................................................................................... 25
ARTICLE 20 -ESTOPPEL CERTIFICATES........................................................................ 25
ARTICLE 21 - CONDITIONS AND COVENANTS .............................................................. 26
ARTICLE 22 -NO WAIVER OF BREACH ........................................................................... 26
ARTICLE 23 - TIME OF THE ESSENCE.............................................................................. 26
ARTICLE 24 - COMPUTATION OF TIME........................................................................... 26
ARTICLE 25 - SUCCESSORS IN INTEREST.......................................................................26
ARTICLE 26 -ENTIRE AGREEMENT ................................................................................. 26
ARTICLE 27 - GOVERNING LAW........................................................................................ 26
ARTICLE 28 -PARTIAL INVALIDITY................................................................................. 27
ARTICLE 29 -RELATIONSHIP OF PARTIES .................................................................... 27
ARTICLE 30 -INTERPRETATION ....................................................................................... 27
ARTICLE 31 - CAPTIONS ....................................................................................................... 27
ARTICLE 32 -AMENDMENT................................................................................................. 27
ARTICLE 33 -NOTICES..........................................................................................................27
ARTICLE 34 -FIRE PROTECTION FOR LEASED LAND................................................ 28
EXHIBIT A
4817-1371-2460v.14 0022769-000022 11
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AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "LEASE") is
made by and between the CITY OF SEWARD (the "CITY"), a municipal corporation located
in the Kenai Peninsula Borough, State of Alaska, whose mailing address is P.O. Box 167,
Seward, Alaska 99664 and Icicle Seafoods Inc. (the "LESSEE"), an Alaska corporation whose
mailing address is P.O. Box 79003, Seattle, Washington 98119.
WHEREAS, LESSEE is currently occupying the Leased Land (as defined in Section 1.1
below) pursuant to various leases and most recently pursuant to that certain Ground Lease
(Contract No. RE-071), dated July 11, 1988, as amended by Lease Amendment No. 1 dated June
8, 1989, and by Lease Amendment No. 2 (RE-071) effective as of January 1, 1999, as evidenced
by a Memorandum of Lease and Lease Termination recorded August 23, 1988, in Book 51 at
Page 954, and Memorandum of Lease Amendment recorded July 19, 1989 in Book 55 at Page
210 and by Lease Amendment No. 2 recorded April 4, 2000 in Book 100 at Page 127, all in the
Seward Recording District, Third Judicial District, State of Alaska (collectively, the
"ORIGINAL LEASE") and desires to continue to lease the Leased Land; and
WHEREAS, the City Council of CITY has determined that a continued lease of the
Leased Land (as defined below) to LESSEE for the purposes described herein would be in the
public interest; and
WHEREAS, pursuant to this LEASE, CITY and LESSEE desire to amend and restate
the ORIGINAL LEASE in its entirety; and
WHEREAS, neither CITY nor LESSEE intends that anything in this LEASE shall be
construed as a novation of the ORIGINAL LEASE, and this LEASE shall not affect a novation
of the ORIGINAL LEASE; and
WHEREAS, it is the intent of this LEASE to transfer from CITY to LESSEE the entire
burden of compliance with environmental regulations or controls with respect to LESSEE's
operations on the Leased Land.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE 1 -LEASED LAND
1.1 Description ofLeased Land. The Leased Land is located in the City of Seward, Alaska.
The Leased Land is described as follows:
Lots 2A and 3A, Block 2, MARINA SUBDIVISION, BLOCK TWO REPLAT, as shown
on Plat 96-28, Seward Recording District, Third Judicial District, State of Alaska,
consisting of approximately 4.93 acres or 214,804 square feet, more or less (the "Leased
Land") (Tax Parcel ID 145-240-15-LHO1).
4817-1371-2460v.14 0022769-000022 1
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The Leased Land is also depicted on the attached Exhibit A, which is incorporated herein
by reference.
1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as of the
date hereof, any appurtenant easements or rights of way, and any reasonable restrictions
imposed on the Leased Land as part of recording of a plat by CITY, and the provisions of
this LEASE, CITY hereby covenants and warrants that LESSEE shall have the quiet
enjoyment and possession of the Leased Land for the full term of this LEASE.
1.3 Property Accepted "As-is." LESSEE acknowledges that it has inspected the Leased Land
and accepts the same "as-is" and without reliance on any expressed or implied
representations or warranties of CITY (other than the representations in Section 1.2
hereof), or agents of CITY, as to the actual physical condition or characteristics thereof
and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A
hereto.
1.4 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction
and operation of its facilities on the Leased Land. CITY may from time to time, upon
request of LESSEE, execute such documents, petitions, applications, and authorizations
as may be necessary, as the underlying fee owner, to file with an agency or public body
responsible therefor an application for conditional use permits, zoning and re-zoning,
tentative and final tract approval, or precise plan approval that may be required for the
lawful construction and operation of the facilities of LESSEE permitted on the Leased
Land by the terms of this LEASE. However, nothing in this Section shall be construed as
requiring CITY to support or approve any such application or permit requests. If the
agency or public body responsible to approve or grant such application or permit request
is a City of Seward agency, department, or board, LESSEE shall follow all City of
Seward procedures, the same as any other applicant making similar requests of the City
of Seward, according to the Charter, ordinances, resolutions, or any regulation, rules, or
procedures of the City of Seward. Nothing in this Section imposes any duty or
responsibility on CITY to assist LESSEE in obtaining any other permits or approvals,
including without limitation those required by the U.S. Army Corps of Engineers (e.g.,
wetland fill permits), the Environmental Protection Agency (e.g., Clean Air Act permits),
the Alaska Department of Public Facilities and Transportation (e.g., right-of-way
permits), the Alaska Department of Fish and Game, and the Alaska Department of
Environmental Conservation.
1.5 Platting. If LESSEE requests a replat of the Leased Land, CITY shall assist LESSEE in
the preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's
costs in assisting with the preparation and filing of the replat. In the event CITY elects to
replat, LESSEE agrees to sign the plat and any other documents necessary to complete
the platting or replatting of any area including all or a portion of the Leased Land.
LESSEE shall accept reasonable restrictions, easements, or plat notes as may be required
by CITY or other governmental authorities as a condition to filing the plat of the Leased
Land or the plat of CITY-owned real property adjacent to the Leased Land.
4817-1371-2460v.14 0022769-000022 2
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1.6 Development ofLeased Land. LESSEE shall continue to operate a fish processing
facility, a cold storage facility, a meal plant facility, and other uses necessary and
incidental to the foregoing, through the term of this LEASE. LESSEE understands that
construction and operations of its marine-related business is a major consideration for the
CITY's agreement to lease the Leased Land to LESSEE. LESSEE shall not operate any
other unrelated business on the Leased Land without the consent of the CITY.
a) CITY may withhold its consent as to any proposed business or activity which, in
CITY's sole discretion, is not desirable or compatible with the CITY's operation of
the Seward Boat Harbor.
b) In accordance with the provisions of Article 12, no assignment or sublease shall be
permitted, unless approved in writing by CITY. Any sublease shall be expressly
subject and subordinate to this Lease and the rights of the CITY hereunder. The CITY
may elect to not approve any proposed assignment or sublease that might result in a
business or activity that, in the CITY's sole discretion, is undesirable and/or
incompatible with the CITY's Comprehensive Plan.
1.7 Amendment and Restatement of Original Lease. To accommodate LESSEE'S existing
financing, this LEASE amends and restates in its entirety the ORIGINAL LEASE. This
LEASE does not evidence a termination of LESSEE's leasehold interest in, nor a re-
leasing of, the LEASED LAND. Such leasehold interest of the LESSEE in and to the
Leased Land pursuant to the ORIGINAL LEASE shall be continuing in all respects, as
amended and restated by this LEASE. The parties do not intend for this LEASE to be a
novation of the ORIGINAL LEASE, and this LEASE shall not affect a novation of the
ORIGINAL LEASE.
ARTICLE 2 -LEASE TERM
The term of this LEASE (the "Lease Term") shall be in accordance with CITY's
authorization in Resolution No. 2018- (the "Resolution"). The Lease Term shall commence
on the date this LEASE is signed by CITY and that date shall be the effective date of this
LEASE (the "Effective Date"). The Lease Term shall run for approximately 20 years from the
Effective Date, ending at midnight on December 31, 2037. LESSEE shall have the right to
extend the term of this LEASE for 2 additional 5-year periods,provided that:
a) LESSEE exercises its option to extend at least one hundred and eighty (180) days
prior to the expiration of the then current lease term;
b) LESSEE is not in default under any term or provision of this LEASE;
c) LESSEE shall exercise its options to extend by sending written notice in
accordance with the provisions of Article 33 of this LEASE; and
d) The City Council, at the time this option is exercised, approves the extension by
resolution or ordinance.
ARTICLE 3 -RENTAL RATE
4817-1371-2460v.14 0022769-000022 3
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3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE the annual rental
rate for the Leased Land shall be set at $124,000. Rent shall be payable quarterly in
advance upon the Effective Date of this Lease (prorated for the balance of the current
quarter) and thereafter on or before the 20th day of the month beginning each calendar
quarter: January 20, April 20, July 20 and October 20. The amount of each quarterly
payment shall be one-quarter of the annual rental rate as initially established or later
adjusted under this Article 3.
3.2 Rental Adjustments. The annual rental payment shall be adjusted on July 1, 2020, and on
the same date every five years thereafter (each a "Rental Adjustment Date"). The
adjusted annual rental payment to be paid under the terms of this Lease shall be the
appraised fair market rental value (the "Fair Market Rental Value") of the Leased Land at
the highest and best use of the Leased Land. The highest and best use of the Leased Land
shall be determined without regard to LESSEE's intended or actual use of the Leased
Land unless that use is coincidentally the highest and best use of the Leased Land. CITY
shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not
less than ninety (90) days before each Rental Adjustment Date.
3.3 Procedure for Rental Adjustment. To adjust the rent as of any successive Rental
Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska
certified MAI appraiser (Member, Appraisal Institute), who shall determine the "Fair
Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive of
improvements placed thereon by LESSEE at any time but inclusive of all improvements
made by CITY (including those made by CITY before or subsequent to this LEASE).
The appraiser's report shall be delivered to LESSEE not less than ninety (90) days before
the Rental Adjustment Date. The appraiser's determination of Fair Market Rental Value
of the Leased Land shall constitute a final binding determination of the Fair Market
Rental Value and the adjusted annual rental rate until the next Rental Adjustment Date,
unless LESSEE objects to CITY's appraiser's determination of the Fair Market Rental
Value. In that case, LESSEE shall give written notice to CITY of its objection within
thirty (30) days of receipt of the appraiser's report, and LESSEE shall then engage an
independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at
LESSEE's expense to make an appraisal of the Fair Market Rental Value in accordance
with this Article 3.
If LESSEE's appraisal determines a Fair Market Rental Value that varies from that
determined by CITY's appraisal by no more than twenty percent (20%), then the adjusted
rental rate shall be the average of the rental rates determined by the two appraisals. If
LESSEE's appraisal determines a Fair Market Rental Value that varies from CITY's
appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a
rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in
accordance with the arbitration provisions contained in Article 19 of this LEASE.
3.4 Effect of Late Appraisal by CITY. If, for any reason, CITY does not complete the
appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the
Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy
4817-1371-2460v.14 0022769-000022 4
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of the appraisal report to LESSEE at any time thereafter. However, any such adjusted
annual rental rate shall not be effective until the quarterly payment due date immediately
following the date CITY delivers the appraisal report to LESSEE.
3.5 Appraisal by LESSEE. If, for any particular Rental Adjustment Date, CITY fails to
obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report
to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent
State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE's
expense to make an appraisal under the terms of this Article 3 and submit a copy to CITY
before the next quarterly rental payment due date. However, LESSEE must notify CITY
in writing within thirty (30) days following the Rental Adjustment Date of LESSEE's
election to obtain an appraisal. If CITY objects to LESSEE's appraiser's determination of
the Fair Market Rental Value, CITY shall give written notice to LESSEE of its objection
within thirty (30) days of receipt of the appraiser's report, and CITY shall then engage an
independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at
CITY's expense to make an appraisal of the Fair Market Rental Value as of the Rental
Adjustment Date and in accordance with this Article 3. If the CITY's appraisal
determines a Fair Market Rental Value that varies from that determined by LESSEE's
appraisal by no more than twenty percent (20%), then the adjusted rental rate shall be the
average of the rental rates determined by the two appraisals. If the CITY's appraisal
determines a Fair Market Rental Value that varies from LESSEE's appraisal by more than
twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the
adjusted annual rental rate of the Leased Land shall be determined in accordance with the
arbitration provisions contained in Article 19 of this LEASE.
3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by
this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of
the appraisal report to LESSEE no later than ninety (90) days before the Rental
Adjustment Date. If the adjusted annual rental rate is based on CITY's late appraisal or
late delivery of the appraisal report to LESSEE, the adjusted rental rate shall be effective
beginning with the quarterly rental payment due date immediately following the date the
CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the exercise
by either CITY or LESSEE of the objection procedure relating to rental adjustment
described in this Article 3 shall not postpone LESSEE's obligation to pay rent at the rate
established by CITY. LESSEE shall pay the amount of rent as established or adjusted by
CITY until the question of objection to the rental rate is finally resolved. At such time
the objection to the rental rate is resolved, an appropriate credit or adjustment shall be
made retroactive to the date the new rental rate was established by CITY or in cases
where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSEE,
to the Rental Adjustment Date.
3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment
Date, excepting the Rental Adjustment Dates, the annual rental payment shall be
increased beginning July 1, 2019 and on July 1 of every year thereafter (each an "Interim
Rental Adjustment Date") in an amount that reflects the increase, if any, in the cost of
living for the previous year as stated in the Consumer Price Index, All Urban Consumers,
4817-1371-2460v.14 0022769-000022 5
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Anchorage, Alaska Area, All Items 1967=100 ("CPI"), as published by the United States
Department of Labor, Bureau of Labor Statistics for the most recent period published
immediately prior to the Interim Rental Adjustment Date. In no event shall the rent be
less than the previous year. If the CPI is revised or ceases to be published, the CITY
shall instead use such revised or other index as most nearly approximates the CPI for the
relevant period and make whatever adjustment in its application as may be necessary, in
the CITY's sole discretion, to accomplished as nearly the same result as if the CPI had not
been revised or ceased to be published.
3.8 Rent Payment Credits for Production and Employment. Provided that Lessee is not in
default of any Lease provisions and is current in all other payments to City, Lessee shall
be allowed as a credit against regular annual rent payable under Sections 3.1, 3.2 and 3.7
hereof (Regular Rental Rate), certain rent payments credits for production and
employment at the Leased Land. The Lessee shall be entitled to receive credits as
follows:
(a) Production Credit. Lessee may deduct from Regular Rent payment due
during a calendar year, a rent payment credit for processing fisheries resources
at the Leased Land during the immediately preceding calendar year. The rent
payment credit shall equal $.50 per ton of all fisheries resources delivered to
the Leased Land by land or water or from within or outside of the City of
Seward, Alaska.
(b) Employment Credit. Lessee may deduct from the regular rent payment due
during a calendar year, a rent payment credit for employment at the Leased
Land during the immediately preceding calendar year. The rent payment
credit shall equal $.25 per hour for each Alaska resident employee hour
worked at the Leased Land which exceeds a base annual employment level of
25,000 employee hours. Only hours actually worked by Lessee's non-salaried,
Alaska resident hourly paid employees shall be considered. All employee time
must be for Alaska resident employees of Lessee who are actively engaged in
work on behalf of Lessee at the Leased Land. City shall have the right to
verify Lessee's compliance with provisions of this Article by being provided
quarterly certified payroll records showing the hours worked by Lessee's
Alaska resident employees at the Leased Land.
(c) Alaska Resident Determination. Alaska resident status shall be determined by
Alaska driver's license, Alaska resident fishing license, Alaska PFD recipient
or an employee's Alaska resident address listed on previous years Federal Tax
form.
(d) Provisions Governing Use of All Rent Payment Credits. Rent payment credits
shall be applied only against the Regular Rent due for each calendar year as
otherwise computed under the terms of Lease sections 3.1 and 3.2 hereof, as
such rental rate may be adjusted from time to time. Rent payment credits shall
not be applied to any additional rent described in section 3.9 hereof, taxes
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assessments, utilities, other lease obligations paid by City on Lessee's behalf,
late Regular Rental payments not timely made in the calendar year in which
they were due, or late payment penalties. Final determination of the
availability and amount of rent payment credits shall be in the sole reasonable
discretion of City.
Rent payment credits may be used in any combination; provided however, in
no event shall the total of credits used in any one calendar year exceed 50% of
the annual Regular Rent payments due for a calendar year or $75,000,
whichever is less. Rent payment credits shall not be carried forward from year
to year.
Rent payment credits shall not be earned during the final calendar year of the
lease term whether the lease has expired by its terms or is terminated by either
party to the lease.
3.9 Late Payment Charge. Rental payments not received by the due date shall bear interest
until paid at a rate of 10.5% per annum, or the maximum rate permitted under Alaska
law, whichever is less, plus a flat monthly late fee of $2.50, or such amount as may be
established from time to time by CITY ordinance or resolution and relating to late fees
for CITY leases generally.
ARTICLE 4 -USE OF LEASED LAND
4.1 Use ofLeased Land. CITY has limited land available for lease. Use of the Leased Land
by LESSEE has been determined by the City Council of CITY to be in the public interest.
LESSEE may use the Leased Land for fish processing, cold storage, meal plant and other
marine oriented business.
4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with
applicable CITY zoning code provisions and provided the following conditions are met:
a) The Leased Land is to be completely cleaned and restored to its original
condition, that is, the condition existing prior to this LEASE or in better condition
upon termination of this LEASE.
b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous
Materials on the Leased Land except as permitted in Article 19 of this LEASE.
c) LESSEE shall not use the Leased Land in any manner or construct any facilities
thereon which would inhibit the use of adjacent or other lands.
d) LESSEE shall operate a fish processing, cold storage, meal plant and other marine
oriented business on the Leased Land.
e) Any changes to this site require prior CITY approval, through the City Manager.
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4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE
any exclusive rights to use any public port facilities constructed or operated by CITY.
LESSEE will be subject to any tariffs, procedures, rules, and regulations of CITY
concerning the use of such facilities as they may now exist or from time to time be
amended, and LESSEE shall not be entitled to any exclusive use.
4.4 Adequacy of Public Facilities. CITY makes no representations or warranties as to the
fitness of any particular part or the whole of CITY's public facilities for the uses intended
by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the
facilities are sufficient for the intended uses by LESSEE. CITY makes no representations
or warranties of any nature with respect to the commercial practicability or accuracy of
any information provided by CITY.
4.5 Tams and Other Service Fees. CITY shall have the right to make amendments to its
tariffs, regulations, and scheduled fees from time to time, even if those adjustments shall
cost LESSEE more for its operations or use of public facilities, and CITY is free to do so
provided only that it does not impose any greater burden or higher rate upon LESSEE
than upon any other similar user of the public facilities.
4.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related
to operations on the Leased Land and LESSEE's interest in this LEASE and
improvements thereon, if any, before such obligations become delinquent; provided that
LESSEE may, in good faith and before such delinquency, contest any such charge or
assessment.
4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and
additional tenants for space, including those who would be in competition with LESSEE
or who might be interested in leasing the Leased Land should this LEASE be terminated
for any reason.
4.8 Use of Public Docks and Port Facilities. Public docks are subject to port and harbor
rules and regulations as adopted by City Council.
ARTICLE 5 -UTILITIES AND RIGHTS OF ACCESS
5.1 Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of
public utilities to the Leased Land required for LESSEE's intended operations. In so
doing, LESSEE shall comply with all CITY regulations and requirements, and the tariffs
of the affected utilities, with respect to the construction of those utilities. CITY agrees to
cooperate and assist the LESSEE, through consultation and review, in LESSEE's
planning and engineering of those improvements. All utilities will be located and sized
in accordance to CITY's Master Plan for the area leased. All such construction shall be in
compliance with all applicable building, mechanical and fire codes. Utilities constructed
by the LESSEE within the public right-of-way or within public utility easements will
normally be accepted and maintained by CITY or utility companies and may be used to
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serve other customers of CITY's without payment of fees or reimbursement of
construction cost to the LESSEE. However, this does not preclude several lessees from
agreeing to share the cost of constructing a utility to serve their facilities. CITY or other
utility company may determine that it would be to their benefit to oversize the utility or
install special fittings or equipment in order to serve other existing or future users. The
additional direct costs of such oversizing shall be borne by CITY or other utility
company. Such costs shall be limited to the supplier's cost of the additional fittings,
equipment, direct labor, and equipment costs to complete the installation. The costs of
oversizing pipe or electrical conduit shall be limited to the difference between the
supplier's price to provide the size required to serve LESSEE's facility and the price of
the oversized material required by CITY or utility company.
LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent,
investment, or costs incurred by LESSEE with respect to any required permits for
construction or operation of LESSEE's 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.
5.2 Third-Party Improvements. At the request of LESSEE, CITY shall, from time to time,
execute and deliver, or join in execution and delivery of, such documents as are
appropriate, necessary, or required to impose upon the Leased Land in accordance with
the terms of this LEASE covenants, conditions, and restrictions providing for the granting
of uses of the Leased Land, or any part thereof, the establishment of party walls, the
establishment of mutual and reciprocal parking rights or rights of ingress or egress, or
other like matters (herein called "third-party improvements"), all of which are for the
purpose of the orderly development of the Leased Land as a commercial unit subject,
however, to the conditions that:
a) All such matters shall be limited to the Lease Term and shall terminate upon
termination of this LEASE for whatever reason.
b) Any such matters of a permanent nature extending beyond the Lease Term shall
not be granted without the prior written approval of CITY. In any of the
foregoing instances referred to in this Section, CITY shall be without expense
therefor, and the cost and expense thereof shall be borne solely by LESSEE.
c) At the expiration of the Lease Term (including any extended period) third-party
improvements on the Leased Land other than trade fixtures and equipment shall
become the property of CITY without the payment of any compensation to
LESSEE.
5.3 Easements. In order to provide for the orderly development of the Leased Land and
adjacent lands, it may be necessary, desirable, or required that street, railroad, water,
sewer, drainage, gas, power line, and other easements and dedications and similar rights
be granted or dedicated over or within portions of the Leased Land. As additional
consideration for this LEASE, CITY and LESSEE each shall, at the request of the other,
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join with each other in executing and delivering such documents from time to time and
throughout the Lease Term as may be appropriate, necessary, or required by the several
governmental agencies (including the City of Seward), public utilities, and other users or
tenants of CITY land for the purpose of granting such easements and dedications;
provided, however, that such easements and dedications and similar rights do not
unreasonably interfere with LESSEE's operations. The costs of locating or relocating any
public easements or restrictions of record including any relocation of public road,
railroad, utility, or other easements shall be at the sole cost and expense of the party
requesting the relocation. CITY shall not refuse reasonable requests for such relocations
provided those relocations do not interfere with or inhibit the overall development of
CITY property or other public property. Any easements or rights of access granted to
LESSEE by CITY need not be exclusive to LESSEE.
ARTICLE 6 - CONSTRUCTION BY LESSEE
6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter,
remodel, reconstruct, rebuild, build, and/or replace buildings and other improvements on
the Leased Land, subject to the following conditions:
a) The cost of any construction, reconstruction, demolition, or of any changes,
alterations, or improvements, shall be borne and paid for by LESSEE.
b) The Leased Land shall at all times be kept free of mechanic's and materialmen's
liens.
c) LESSEE shall provide CITY with a copy of all building plans and specifications
and a site development plan or plans (based on a recent survey) for the Leased
Land prior to commencement of construction.
d) LESSEE is solely responsible for resurveying and locating improvements on the
Leased Land in such manner not to violate building setback requirements or
encroach into rights-of-ways or easements. On completion of any improvements,
LESSEE shall provide CITY a copy of an as-built survey depicting the
improvements as completed on the Leased Land.
e) Any general contractor employed by LESSEE shall be appropriately bonded by
use of performance and labor and material payment bonds in the customary form
when cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS
($50,000). Copies of all such bonds shall be furnished to CITY prior to
commencement of construction. If the cost of the work is less than FIFTY
THOUSAND DOLLARS ($50,000), LESSEE shall provide CITY, if no
performance and labor and material bonds are provided by LESSEE, any
necessary assurances or guarantees that the contemplated work will be performed
by the general contractor or by LESSEE. hi the event that LESSEE elects to
construct the facility with its own personnel and equipment, or the personnel and
equipment of any corporation or person that is an "affiliate" of LESSEE as such
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term is defined in AS 10.06.990(2) or Alaska limited liability company in which
LESSEE maintains a substantial membership interest, a performance bond shall
be required when the cost of the work is equal to or exceeds FIFTY THOUSAND
DOLLARS ($50,000).
f) CITY may, as contemplated by Alaska Statutes, give notice of non-responsibility
for any improvements constructed or effected by LESSEE on the Leased Land.
g) LESSEE shall comply with all federal, state, and local statutes and regulations
with respect to such construction, including, but not limited to, all applicable
building, mechanical, and fire codes.
6.2 City Review of Construction. CITY shall have the right to review initial plans, including
those supplied to CITY under Section 6.1 hereof, and any future changes or additions to
LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the
commencement of construction. CITY shall have the right to comment upon that design
and to require LESSEE to make reasonable changes so as to avoid interference with
public operations, but the exercise of these rights shall not imply any obligation to do so
nor any obligation to do so in a particular way. LESSEE shall construct the facility in
accordance with final design specifications approved by CITY. CITY's representatives
may monitor the work and shall have access to the site at all reasonable times. LESSEE
shall be solely responsible for completing all improvements according to LESSEE's plans
and specifications and shall bear all risk, responsibility, and liability for properly
surveying the Leased Land before construction and to place all improvements on the
Leased Land without encroaching upon any land, easements, rights-of-way, or setback
requirements. LESSEE shall obtain the usual and customary performance guarantees
from its contractors, and CITY shall be named as an additional insured.
ARTICLE 7 -RETURN OF LEASED LAND/SITE CONDITIONS
Subject to the provisions of Article 11.1 herein, upon termination of this LEASE for any
reason, LESSEE shall return the Leased Land to CITY in the same condition as at the
commencement this LEASE, subject to normal, non-abusive use. The Leased Land shall be free
of all Hazardous Materials and contamination arising out of or resulting from or occurring during
LESSEE's operations or use of the Leased Land during this LEASE.
ARTICLE 8 -FORCE MAJEURE
In the event either LESSEE or CITY is delayed from performance of any of its
obligations under this LEASE due to acts of nature, acts of the enemies of the United States of
America, sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion,
earthquake/tsunami, civil disturbance, or war, the time period wherein such performance is to
occur shall be extended by that amount of time necessary to compensate for the delay.
ARTICLE 9 -LESSEE'S ACTS OF DEFAULT
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Each of the following shall be a "LESSEE Act of Default" under this LEASE and the
terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, any one
or more of the following events:
9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20)
days from the due date thereof, the rent required to be paid under this LEASE.
9.2 Failure by LESSEE to comply with Section 4.1 of this LEASE for a period of thirty (30)
days after written notice specifying such failure, requesting that it be remedied, and
stating that it is a notice of default, has been given to LESSEE by CITY; provided,
however, that if said default is such that it cannot be corrected within the applicable
period, it shall not constitute an act of default if corrective action is instituted by LESSEE
within the applicable period and diligently pursued until the default is corrected.
9.3 Failure by LESSEE to observe, fulfill or perform any covenants, conditions, or
agreements on its part to be observed or performed under this LEASE, other than
payment of rent or compliance with Section 4.1, for a period of thirty (30) days after
written notice specifying such failure, requesting that it be remedied, and stating that it is
a notice of default, has been given to LESSEE by CITY; provided, however, that if said
default is such that it cannot be corrected within the applicable period, it shall not
constitute an act of default if corrective action is instituted by LESSEE within the
applicable period and diligently pursued until the default is corrected.
9.4 The making by LESSEE of an assignment for the benefit of creditors, the filing of a
petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt,
the petition or application by LESSEE to any tribunal for any receiver or any trustee for
itself or for any substantial part of its property; or the commencement of any proceeding
relating to LESSEE under any bankruptcy, insolvency, reorganization, arrangement, or
readjustment of debt law or statute or similar law or statute of any jurisdiction, whether
now or hereafter in effect which shall remain undismissed for a period of six (6) months
from the date of commencement thereof.
9.5 Violation by LESSEE of any laws or regulations of the United States, or of the State of
Alaska, or any conditions of any permits issued by agencies of the City of Seward, the
Kenai Peninsula Borough, the State of Alaska, or of the United States Government
applicable to LESSEE's use of the Leased Land, pursuant to the regulations of such
agencies, for a period of sixty (60) days after written notice specifying such violation has
been given by the agency charged with the enforcement of such laws, regulations, or
permits to LESSEE; provided, however, if such violation be such that it cannot be
corrected within the applicable period, it shall not constitute an act of default if corrective
action is instituted by LESSEE within the applicable period and diligently pursued until
the violation is corrected. Furthermore, if LESSEE shall contest such alleged violation
through appropriate judicial or administrative channels, the time period specified herein
shall not 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
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cause a stoppage, interruption, or threat to the activities of any person or entity other than
those of LESSEE.
9.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the
public rights of way clear for a period of thirty (30) days after written notice specifying
such failure, requesting that it be remedied, and stating that it is a notice of default, has
been given to LESSEE by CITY; provided, however, that if said default is such that it
cannot be corrected within the applicable period, it shall not constitute an act of default if
corrective action is instituted by LESSEE within the applicable period and diligently
pursued until the default is corrected.
ARTICLE 10 -REMEDIES FOR DEFAULT BY LESSEE
Whenever an act of default by LESSEE shall have occurred, and any applicable period
for giving notice and any opportunity to cure shall have expired, CITY shall have the
following rights and remedies all in addition to any rights and remedies that may be given to
CITY by statute, common law, or otherwise:
10.1 CITY may distrain for rent due any of LESSEE's personal property which comes into
CITY's possession. This remedy shall include the right of CITY to dispose of personal
property distrained in any commercially reasonable manner. It shall be conclusively
presumed that compliance with the procedures set forth in the Alaska Uniform
Commercial Code (AS 45.29.601-.628) with respect to sale of property shall be a
commercially reasonable disposal. Notwithstanding the foregoing, CITY agrees that its
rights set forth in this Section 10.1 shall be junior to the rights granted to any Lender (as
defined in Section 12.2) under a Security Instrument (as defined in Section 12.2), and
CITY's consent is not required for a Lender to enter upon the LEASED LAND and
assemble, have appraised, display, sever, remove, maintain, prepare for sale or lease,
advertise, inspect, repair, lease, transfer and/or sell (at public auction or private sale), take
possession of, or otherwise enforce such Lender's security interest in LESSEE's personal
property or other assets located on the Leased Land in which such Lender holds a
security interest.
10.2 CITY may re-enter the Leased Land and take possession thereof and, except for any
personal property of LESSEE which CITY has waived its right to distrain under Section
10.1 above, remove all personal property of LESSEE from the Leased Land. Such
personal property may be stored in place or may be removed and stored in a public
warehouse or elsewhere at the cost of LESSEE all without service of notice or resort to
legal process, all of which LESSEE expressly waives.
10.3 In addition to the above, CITY may:
a) Declare this LEASE terminated;
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b) Collect any and all rents due or to become due from subtenants or other occupants
of the Leased Land;
c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable
attorney's fees and all other expenses incurred by CITY by reason of the breach or
default by LESSEE;
d) Recover an amount to be due immediately on breach equal to the unpaid rent for
the entire remaining term of this LEASE.
e) Recover all damages incurred by CITY by reason of LESSEE's default or breach,
including, but not limited to, the cost of recovering possession of the Leased
Land, expenses of reletting, including costs of necessary renovation and alteration
of the premises, reasonable attorney's fees, and any real estate commissions
actually paid.
f) Remove or require the removal of any improvements constructed without CITY
approval (when such approval is required under this LEASE) or constructed
contrary to site development plans approved by CITY and recover all costs and
expense incurred by CITY to remove violating improvements.
10.4 If LESSEE does not immediately surrender possession of the Leased Land after
termination by CITY and upon demand by CITY, CITY may forthwith enter into and
upon and repossess the Leased Land and expel LESSEE without being deemed guilty in
any manner of trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or breach of covenant.
10.5 No expiration or termination of this LEASE shall expire or terminate any liability or
obligation to perform of LESSEE's which arose prior to the termination or expiration
except insofar as otherwise agreed to in this LEASE.
10.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall
be in addition to every other right or remedy provided for in this LEASE or now or
hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by CITY of any one or more of the rights and remedies
provided for in this LEASE or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all
other rights or remedies provided for in this LEASE or now or thereafter existing at law,
or in equity or by statute or otherwise.
10.7 No delay or omission to exercise any right or power accruing following an act of default
shall impair any such right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be deemed
expedient.
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10.8 Notwithstanding any other provision of this Article X, if this LEASE is rejected in a
bankruptcy or insolvency proceeding or terminated due to LESSEE's breach of Section
9.4 above, upon Lender's written request made not more than forty (40) days after this
LEASE is rejected, CITY will enter into a new lease of the Premises with the nominee of
such Lender for the remainder of the term of this LEASE, at the same rent and under the
same terms and conditions set forth in this LEASE. All sums due and owing to CITY
under this LEASE shall be paid at the time of execution of the new lease.
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE
11.1 Real Property Improvements. All improvements constructed by LESSEE or its
predecessors on the Leased Land or on easements to or from the same, such as buildings,
warehouses, conveyor systems, ditches, sewer lines, water lines, dikes or berms and
similar improvements, are the property of LESSEE and shall be removed by LESSEE at
the termination of this LEASE for any reason. All such improvements that are not
removed by LESSEE prior to the termination of this LEASE shall become the property of
CITY upon termination of this LEASE for any reason; provided, however, that CITY
may require LESSEE to remove any improvements designated by CITY and without cost
to CITY by giving notice to LESSEE of such requirement not more than 10 days after
termination of this LEASE and sooner if possible. LESSEE shall have a period not to
exceed three hundred sixty-five (365) days after LEASE termination or LESSEE's
receipt of such notice (whichever is later) in which to remove such improvements, and
LESSEE shall pay rent during such time, and shall continue to pay public utility bills
until it has completed the removal obligations described in this Section 11.1.
11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding,
LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly
remove, in no event later than ninety (90) days from the termination of the LEASE, trade
fixtures and equipment from the Leased Land provided that LESSEE shall repair any
damages to the Leased Land caused by such removal.
ARTICLE 12 -ASSIGNMENT OR SUBLEASE
12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been
determined to be in the public interest by the City Council of CITY for the reasons set
forth in the approving Resolution. The rights and duties created by the LEASE are
personal to LESSEE and CITY has granted the LEASE in reliance upon the business
character and financial capability of LESSEE. Therefore, LESSEE shall not assign or
sublease this LEASE without CITY's prior written consent, in CITY's sole discretion.
12.2 Assignment of Lease for Security. Notwithstanding Section 12.1 above, LESSEE may
assign, encumber, or mortgage its interest in this LEASE or improvements on the Leased
Land, by deed of trust or other security instrument (the "Security Instrument"), to (i) the
State of Alaska to secure the LESSEE's tax obligations, and (ii) one or more entities
engaged in the business of loaning money for LESSEE's development of or operations on
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the Leased Land (each beneficiary named in such Security Instrument referred to
hereinafter as the "Lender"). CITY's consent is not required for any Security Instrument
as described herein, or any loan documents related to the same (or any amendment,
modification, restatement, supplement, renewal or substitution thereof), but upon a
Lender's request, CITY shall execute a consent to the Security Instrument or include
consent language in an estoppel certificate provided to CITY pursuant to Article XX of
this LEASE. If requested by a Lender, CITY shall furnish such 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 receipt of such written notice
specifying such breach. Notwithstanding the provisions of Article 10 above, no
"LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice
is furnished to Lender; provided,
a) If Lender, with respect to any default or breach other than a failure to make any
required payment of rent or other money, shall undertake within thirty (30) days
after notice to cure the default or breach and shall diligently and in good faith
proceed to do so, CITY may not terminate this LEASE or relet the Leased Land
unless Lender fails to cure the default or breach within a reasonable period of time
thereafter; and
b) If the default for which notice is given is a breach of Section 9.3, CITY shall not
exercise any of the remedies afforded to it under Article 10 above so long as
LESSEE or Lender remains in possession of the Leased Land and satisfies
LESSEE's obligations under the terms of this LEASE.
This LEASE shall not be terminated upon foreclosure or other assertion by Lender of its
security interest as long as all obligations of LESSEE under the terms of this LEASE
continue to be performed. Any assignee, purchaser at a foreclosure sale, or transferee
shall agree to assume this LEASE and be bound by each and every term of this LEASE.
No amendment, modification or termination of this LEASE prior to its expiration date
shall be effective at any time that the Security Instrument remains effective, unless
Lender shall have given its prior written consent thereto, which consent shall not
unreasonably be withheld. Notwithstanding the forgoing, in the event the Lender does
not notify the City of its election to withhold consent to any amendment, modification or
termination of this Lease within thirty (30) days after receipt of a request for such
approval, the Lender will be deemed to have approved such amendment, modification or
termination as the case may be. If at any time the leasehold interest under this LEASE
and the fee estate in the Leased Land are commonly held, such estates shall remain
separate and distinct estates and shall not merge without the consent of Lender.
12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this
LEASE to an affiliate of LESSEE or of its parent company (as the term "affiliate" is
defined by AS 10.06.990(2)) or to an Alaska limited liability company in which LESSEE
or its parent company maintains a substantial membership interest; provided, however,
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that LESSEE's full faith and credit shall remain obligated under this LEASE as though
the assignment had not taken place.
12.4 Assignment or Encumbrance by CITY. CITY agrees that, so long as any Security
Instrument remains outstanding, the CITY shall not encumber its interest in the Leased
Land or under the LEASE in any respect without the prior written consent of the
LESSEE's Lender. If any deed of trust or similar instrument encumbers the CITY's
interest in the Leased Land (a "CITY Deed of Trust") and is senior in priority to this
LEASE, the CITY agrees to obtain: (i) a non-disturbance agreement in form reasonably
satisfactory to Lender pursuant to which the beneficiary named in such CITY Deed of
Trust agrees not to disturb the possession of LESSEE or Lender and their successors and
assigns so long as LESSEE and Lender and their successors and assigns comply with this
LEASE.
ARTICLE 13 -LESSEE'S DUTY TO DEFEND/INDEMNIFY
LESSEE shall defend, indemnify, and hold harmless CITY, its officials, employees,
agents, and contractors from any and all liability or claims for damages, including personal
injuries, environmental damage, death and property damage arising out of or resulting from
LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees,
assignees, agents, contractors, or the public, except for damages arising from the sole negligence
or willful acts or omissions of CITY, its officials, employees, agents, or contractors. If any
action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE
shall notify CITY promptly in writing of such action or proceeding.
ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY
CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or
claims for damages, including personal injuries, death, and property damage arising from the
sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or
contractors.
ARTICLE 15 -INSURANCE
15.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or
LESSEE'S occupancy of the Leased Land, LESSEE shall procure and maintain, at
LESSEE's sole cost and expense, the following insurance:
a) Commercial General Liability Insurance Policy insuring the Leased Premises and
LESSEE's use thereof, with a minimum limit of Two Million Dollars
($2,000,000) on account of bodily injuries or death or property damage for each
occurrence and a minimum limit Two Million Dollars ($2,000,000) annual
general aggregate (such limits may be satisfied through a combination of primary
and umbrella/excess liability insurance). The foregoing policy(ies) shall name
CITY and, upon request, LESSEE's lender, as additional insureds under
LESSEE's insurance policy(ies);
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b) Special Form Cause of Loss (excluding earthquake and flood)Property Insurance
Policy, including extended coverage endorsements insuring all of Lessee's
improvements (including LESSEE's stock-in-trade, trade fixtures, furniture,
furnishings, special equipment, floor and wall coverings, and all other items of
personal property of LESSEE located on or within LESSEE'S improvements with
such coverage to be in an amount equal to one hundred percent(100%) of the
replacement cost thereof. The foregoing policy shall name CITY and LESSEE's
lender, if any, as loss payee under LESSEE's insurance policy with regard to the
permanent leasehold improvements on the Leased Land.
c) Workers' compensation and United States Longshore and Harbor worker's
insurance covering Tenant's employees at the Leased Premises as required by
Alaska law;
d) Commercial automobile liability insurance for hired, owned/registered under
LESSEE's name and non-owned vehicles, including contractual liability with a
single limit of liability not less than One Million and 00/100 Dollars
($1,000,000.00) per accident for bodily injury and property damage combined or
such other amounts as CITY may reasonably request. The foregoing policy shall
name CITY and, upon request, LESSEE's lender, as additional insureds under
Tenant's insurance policy.
The minimum amounts and types of insurance provided by LESSEE shall be subject to
revision at the sole discretion of CITY in accordance with standard insurance practices, in
order to provide continuously throughout the term of this LEASE and any extensions
hereof, a level of protection consonant with good business practice and accepted
standards in the industry. Such factors as changes in the type of or extent of use of the
Lease Land, increases in the cost of living, inflationary pressures, and other
considerations, shall be utilized in assessing whether the minimum insurance
requirements should be increased. CITY shall notify LESSEE of any required increase in
insurance coverage. Provisions of insurance policies required under this Section 15.1 will
not be materially altered by LESSEE during the term of this LEASE, and LESSEE will
provide CITY with proof of insurance upon request.
All such policies shall be written by insurance companies legally authorized or licensed
to do business in the State of Alaska and acceptable to CITY (Best's Rating B+ or better).
CITY shall be listed as an additional insured under all insurance policies. LESSEE shall
furnish CITY, on forms approved by CITY, certificates evidencing that it has procured
the insurance required herein prior to the occupancy of the Leased Land or operation by
LESSEE. Insurance policy deductibles shall be consonant with good business practice
and accepted standards in the LESSEE's industry. Nothing herein contained shall
prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEE's own
individual cost and expense, additional or other insurance as may be desired. The
minimum insurance requirements under this LEASE shall not act to limit LESSEE's
liability for any occurrence and shall not limit LESSEE's duty to defend and indemnify
CITY for claims related to this LEASE or the Leased Land.
4817-1371-2460v.14 0022769-000022 18
41
15.2 Subrogation Rights Waived. To the extent permitted by law, LESSEE hereby releases
CITY, its elected and appointed officials, employees and volunteers, and others working
on behalf of CITY from any and all liability or responsibility to LESSEE or anyone
claiming through or under LESSEE by way of subrogation or otherwise, for any loss of
any kind (including damage to property caused by fire or any other casualty), even if such
loss shall have been caused by the fault or negligence of the CITY, its elected or
appointed officials, employees or volunteers, or others working on behalf of the CITY.
This provision shall be applicable and in full force and effect only with respect to loss or
damage occurring during the time of LESSEE's occupancy or use (including LESSEE's
occupancy or use prior to the Effective Date of this LEASE), and LESSEE agrees its
policies of insurance will not contain any clause, provision or endorsement that limits
LESSEE's right to recover under such policy if an additional insured has obtained a
waiver of subrogation.
15.3 Restoration of Buildings and Improvements. hi the event of damage to, or destruction of,
any of the buildings or improvements situated on the Leased Land, and to the extent that
LESSEE is entitled to any insurance proceeds resulting therefrom, such proceeds shall be
paid to LESSEE's Lender, to be used to restore the LESSEE's improvements in
accordance with the Security Instrument. In the event LESSEE does not have a Lender,
then the insurance proceeds shall be payable to Lessee, and Lessee shall either:
a) Within ninety (90) days after payment of the insurance proceeds, commence
restoration of the buildings and improvements to their condition prior to such
damage, provided, however, that Lessee's obligation to restore will be limited to
the insurance proceeds available to Lessee; or
b) Apply such insurance proceeds first to the cost of removal of the damaged or
destroyed buildings, including any debris or other nuisance occasioned by the
damage or destruction, and restore the Leased Land to a grade and condition
similar to its grade and condition prior to the construction of the buildings or
improvements thereon. Insurance proceeds remaining after the removal of
damaged or destroyed buildings and other improvements, and restoration of the
Leased Land to grade and condition satisfactory to the City may be applied to any
indebtedness owed by Lessee to any lender named as beneficiary under any Deed
of Trust recorded against the Lessee's interest, in order of priority of recordation.
c) Regardless of whether Lessee elects to proceed under a) or b), above, all
insurance proceeds shall be deposited and held in trust with a bank having offices
in Seward and/or Anchorage, Alaska, as Lessee may designate, or with Lessee's
mortgagee named in a Deed of Trust granting such mortgagee a beneficial interest
in the damaged property, and shall be made available to Lessee for its use in
either restoring or repairing any damaged or destroyed buildings or improvements
on the Leased Land, or removing the damaged or destroyed buildings or
improvements and restoring the Leased Land to a grade and condition of
reasonable satisfaction to the City. The proceeds of insurance shall be paid out by
such bank or mortgagee from time to time, on certifications, by the person having
supervision of the work, that the amount certified is being applied to the payment
4817-1371-2460v.14 0022769-000022 19
42
of the reasonable costs of such work. Should the Lessee elect not to restore and
repair damaged buildings and improvements on the Leased Land, all insurance
proceeds remaining after removal of damaged and destroyed buildings and
improvements, and restoration of the Leased Land, may be applied to any
indebtedness by Lessee to any lender named as beneficiary under any Deed of
Trust recorded against the Lessee's interest, in order of priority of recordation,
after receipt of written satisfaction from the City of the restoration of the Leased
Land.
hi the event Lessee elects not to restore and repair when substantial damage or
destruction has occurred to the buildings and improvements, this Lease shall terminate,
and all Lessee's obligations hereunder shall expire, upon the date that the City certified in
writing its satisfaction with the restoration of the Leased Land.
ARTICLE 16 - CONDEMNATION
If all or any part of the Leased Land is condemned for a public use by any government
agency or other duly authorized entity, CITY and LESSEE shall each make a claim against the
condemning or taking authority for the amount of any damage incurred by or done to them
respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to
any award made to the other by the condemning authority; provided, that in the event of a single
award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY
shall transmit to LESSEE the amount of such specific damages so found, if any or to LESSEE's
Lender if required by a Security Instrument.
If part but not all of the Leased Land is condemned for public use, LESSEE shall make a
good faith determination as to whether or not the taking of the part of the Leased Land
designated for condemnation will prevent it from continuing to operate on the Leased Land. If
LESSEE determines in good faith that the condemning of such part of the Leased Land will
prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing
to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days
from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall
specify in its notice, and such termination shall be treated in the same manner as a termination at
the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such
termination, remove all encumbrances, debts, and liens to which the Leased Land is subject. If at
the time of such partial taking for public use, LESSEE determines that such partial taking will
not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable
and partial abatement of the rent beginning to be effective on the actual date when LESSEE is
effectively prevented from utilizing the condemned land.
ARTICLE 17 -ARBITRATION
17.1 Arbitration.
a) Disputes between the parties with respect to the performance of this LEASE that
cannot be resolved by the parties, may be submitted to an independent arbitrator
4817-1371-2460v.14 0022769-000022 20
43
for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act
(AS 09.43.010 et. seq.), as it now exists or may hereafter be amended from time
to time, and judgment on the award may be entered in any Superior Court in the
State of Alaska. Either party may submit to the other party a request for
arbitration and the party receiving a request shall have twenty (20) days to
consent, in writing, to the use of arbitration to resolve the dispute. Failure of
either party to consent will preclude the use of arbitration for that dispute. The
costs and expenses of arbitration shall be shared equally by the parties, and each
party shall bear its own attorney's fees and costs.
b) Arbitration procedures shall be applicable only to contract, negligence, and
similar claims arising from or related to this LEASE and shall not be used to
resolve or determine any claim based upon fraud, intentional misrepresentation,
nor any claim based on conduct that is a felony crime in the State of Alaska.
c) Arbitration of any dispute or claim shall be determined by a single arbitrator
selected from a list of not less than five (5) arbitrators obtained from the presiding
Superior Court Judge or other appropriate judicial officer in Anchorage, Alaska.
The arbitrator shall be a person who (a) has not less than five (5) years legal
experience in the State of Alaska prior to appointment; and (b) such legal
experience includes substantial experience with long-term commercial real
property transactions. Each party shall be provided with a copy of the list and
shall be afforded a maximum of ten (10) working days to become familiar with
the qualifications of the prospective arbitrators. The arbitrator shall be selected
by each party, commencing with the party demanding the arbitration, striking one
name from the list until only a single name remains.
d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other
location as the parties may agree. Each party shall produce at the request of the
other party, at least thirty (30) days in advance of such hearing, (i) the names,
addresses, phone numbers, and email addresses for all witnesses who may testify
at the hearing; and (ii) all documents to be submitted at the hearing and such other
documents as are relevant to the issues or likely to lead to relevant information.
e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law,
and the written decision shall be supported by substantial evidence in the record.
Failure to apply Alaska law, or entry of a decision that is not based on substantial
evidence in the record, shall be additional grounds for modifying or vacating an
arbitration decision.
ARTICLE 18 -MAINTENANCE AND REPAIRS
18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof,
if any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased
Land, including any improvements placed thereon by LESSEE, in as good condition as
received or constructed by LESSEE, subject to normal, non-abusive use. CITY, at
4817-1371-2460v.14 0022769-000022 21
44
CITY's sole option and expense, may, prior to the commencement of construction by
LESSEE, perform maintenance and preventative work on the Leased Land, exclusive of
improvements placed thereon by LESSEE, in order to prevent erosion, mitigate damage
to plants and animals, or prepare the Leased Land for eventual development by LESSEE
or others by grading, filling, or contouring the Leased Land. Any such work performed
by CITY shall be at CITY's sole expense and risk unless LESSEE agrees, in advance and
in writing, to share such expense and risk. LESSEE shall maintain in first class condition
at all times all fire, pollution, and other protective equipment, if any are placed on Leased
Land.
18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the
performance of LESSEE's maintenance responsibilities as they relate to public health or
safety and LESSEE shall promptly within thirty (30) days of receipt of such notice advise
CITY in writing of its proposed schedule for performance of any work necessary to cure
such deficiencies.
If such deficiencies relate to the safety of LESSEE's operation such that the surrounding
land and port facilities are exposed to risk, unnecessary potential hazards, or a risk to the
public interest (as distinguished from a business risk), or if CITY is not satisfied with the
proposed schedule of repairs either because of the delays therein or the scope of the
repairs, then CITY may engage an independent engineering consultant well-versed and
experienced who shall furnish to CITY a comprehensive survey and report for the
purpose of establishing both the need and urgency to perform such maintenance work.
As soon as practicable following receipt of said engineer's determinations and
recommendations, if the report requires repair then LESSEE shall pay the cost of the
report and perform such work in accordance therewith at LESSEE's cost, risk, and
expense.
18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as
being necessary or advisable or reasonable to protect the public facilities on adjacent
land, it may submit the matter to arbitration;provided, however, that pending the decision
of the arbitrator it shall fully comply with the maintenance requests. If an arbitration
award should ultimately find that the repairs were not necessary, then LESSEE may
either deduct from future rental payments the cost of such repairs or be reimbursed
therefor. In deciding whether repairs requested by CITY or required by an engineering
report are necessary, the arbitration panel is to give primary consideration to the safety
and welfare of the Seward port facilities and the citizens of Seward in light of the highest
standards in the industry.
If any facility or service provided by CITY to the Leased Land shall become inadequate
due to changes in environmental control standards or should any facility require updating
or improvement by reason of a change in LESSEE's use of the Leased Land or operations
therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or
reimburse CITY for such work at the option of CITY.
ARTICLE 19 -ENVIRONMENTAL CONCERNS
4817-1371-2460v.14 0022769-000022 22
45
19.1 Hazardous Materials.
a) Condition of Site. LESSEE has had full opportunity to examine the site for the
presence of any Hazardous Material and accepts the site in "as is" condition.
LESSEE may elect, at LESSEE's sole cost, to conduct a baseline soils test prior to
execution of this LEASE.
b) Release of CITY. Any other provision of this LEASE to the contrary
notwithstanding, LESSEE releases CITY from any and all claims, demands,
penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses
(including, without limitation, attorney's fees, court costs, litigation expenses, and
consultant and expert fees) arising prior to, during, and after the term of this
LEASE, and resulting from the use, keeping, storage, or disposal of Hazardous
Material on the Leased Land by LESSEE or its predecessors in interest, or arising
out of or resulting from LESSEE's operations at the Leased Land or the operations
of its predecessors in interest at the Leased Land except for those claims arising
out of CITY's sole negligence or intentional misconduct. This release includes,
without limitation, any and all costs incurred due to any investigation of the
Leased Land or any cleanup, removal, or restoration mandated by a federal, state,
or local agency or political subdivision or by law or regulation.
c) Use of Hazardous Materials on the Site.
i) LESSEE shall not cause or permit any Hazardous Material to be brought
upon, kept, or used in or about the Leased Land except for such Hazardous
Material as is necessary to conduct LESSEE's authorized use of the
Leased Land.
ii) Any Hazardous Material permitted on the Leased Land as provided in this
paragraph, and all containers therefor, shall be used, kept, stored, and
disposed of in a manner that complies with all Environmental Laws or
other laws or regulations applicable to such Hazardous Material.
iii) LESSEE shall not discharge, leak, or emit, or permit to be discharged,
leaked, or emitted, any material into the atmosphere, ground, ground
water, sewer system, or any body of water, if such material (as reasonably
determined by the City, or any governmental authority) does or may,
pollute or contaminate the same, or may adversely affect the (a) health,
welfare, or safety of persons, whether located on the Leased Land or
elsewhere; or (b) condition, use, or enjoyment of the Leased Land or any
other area or personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and
expenses related to the use, storage, and disposal of Hazardous Material
kept or brought on the Leased Land by LESSEE, its authorized
4817-1371-2460v.14 0022769-000022 23
46
representatives and invitees, and LESSEE shall give immediate notice to
CITY of any violation or potential violation of the provisions of this
subparagraph.
d) Indemnification of CITY. Any other provision of this LEASE to the contrary
notwithstanding, LESSEE shall defend, indemnify, and hold CITY harmless from
and against any claims, demands, penalties, fines, judgments, liabilities,
settlements, damages, costs, or expenses (including, without limitation, attorney,
consultant and expert fees, court costs, and litigation expenses) of whatever kind
or nature, known or unknown, contingent or otherwise, arising out of or in any
way related to:
i) The presence, disposal, release, or threatened release of any such
Hazardous Material which is on or from the Leased Land, soil, water,
ground water, vegetation, buildings, personal property, persons, animals,
or otherwise;
ii) Any personal injury (including wrongful death) or property damage (real
or personal) arising out of or related to such Hazardous Material or any
use of the Leased Land;
iii) Any lawsuit brought or threatened, settlement reached, or government
order relating to such Hazardous Material or any use of the Leased Land;
and/or
iv) Any violation of any laws applicable thereto; provided, however, that this
Section 19.1(d) shall apply only if the acts giving rise to the claims,
demands, penalties, fines, judgments, liabilities, settlements, damages,
costs, or expenses (1) occur prior to or during the term of this LEASE; and
(2) arise, in whole or in part, from the use of, operations on, or activities
on the Leased Land by LESSEE or LESSEE's predecessors in interest,
employees, agents, invitees, contractors, subcontractors, authorized
representatives, subtenants, or any other persons. The provisions of this
subparagraph shall be in addition to any other obligations and liabilities
LESSEE may have to CITY at law or equity and shall survive the
transactions contemplated herein and shall survive the termination of this
LEASE.
e) Operator. For all purposes, LESSEE shall be deemed the operator of any facility
on the Leased Land.
f) Hazardous Material Defined. As used in this LEASE, Hazardous Material is any
substance which is toxic, ignitable, reactive, or corrosive or which is regulated by
any Environmental Law. Hazardous Material includes any and all material or
substances which are defined as industrial waste, hazardous waste, extremely
hazardous waste, or a hazardous substance under any Environmental Law.
4817-1371-2460v.14 0022769-000022 24
47
Notwithstanding any statutory petroleum exclusion, for the purposes of this
LEASE, the term Hazardous Material includes, without limitation, petroleum,
including crude oil or any fraction thereof, petroleum soaked absorbent material,
and other petroleum wastes.
g) Environmental Law Defined. As used in this LEASE, Environmental Laws
include any and all local, state, and federal ordinances, statutes, and regulations,
as now in force or as may be amended from time to time, relating to the protection
of human health and the environment, as well as any judgments, orders,
injunctions, awards, decrees, covenants, conditions, or other restrictions or
standards relating to same. Environmental Laws include, by way of example and
not as a limitation of the generality of the foregoing, Alaska Statutes Title 46, the
Resource Conservation and Recovery Act of 1976, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Clean
Water Act, and the Superfund Amendments and Reauthorization Act of 1986.
19.2 Permits and Reporting.
a) Permits Required by Other Governmental Agencies. LESSEE shall obtain all
permits or approvals required by any applicable law or regulation. Copies of all
such permits shall be provided to CITY prior to LESSEE commencing work
under this LEASE. LESSEE shall promptly make all reports to any federal, state,
or local government or agency required by any permit or Environmental Law,
including reports of any spill or discharge of Hazardous Material. The CITY,
through the City Manager, may order LESSEE to immediately cease any
operations or activities on the Leased Land if the same is being carried out
without necessary permits, in violation of the terms of any permit or
Environmental Law, or contrary to this LEASE.
b) Correspondence with and Reports to Environmental Agencies. LESSEE shall
immediately (the same or the next business day) provide CITY with copies of all
correspondence and notice, including copies of all reports between LESSEE and
any state, federal, or local government or agency regulating Hazardous Material
which relates to LESSEE's operations on or use of the Leased Land.
ARTICLE 20 -ESTOPPEL CERTIFICATES
Either party shall at any time and from time to time upon not less than ten (10) days'prior
written request by the other party, execute, acknowledge, and deliver to such party, or to its
designee, a statement in writing certifying that this LEASE is unamended and in full force and
effect (or, if there has been any amendment thereof, that the same is in full force and effect as
amended and stating the amendment or amendments), that there are no defaults existing (or, if
there is any claimed default, stating the nature and extent thereof), the remaining term of this
LEASE and any extensions hereto, stating the dates to which the rent and other charges have
been paid in advance, and such other information as may be reasonably requested by the
requesting party and, where the requesting party is the LESSEE, include such other provisions as
4817-1371-2460v.14 0022769-000022 25
48
a prospective assignee of the LESSEE's interest in this LEASE or a prospective leasehold
mortgagee would reasonably request.
ARTICLE 21 - CONDITIONS AND COVENANTS
All the provisions of this LEASE shall be construed to be "conditions" as well as
"covenants," as though the words specifically expressing or imparting covenants and conditions
were used in each separate provision.
ARTICLE 22 -NO WAIVER OF BREACH
No failure by either CITY or LESSEE to insist upon the strict performance by the other
of any term, covenant, or condition of this LEASE or to exercise any right or remedy consequent
upon a breach thereof shall constitute a waiver of any such breach or of such terms, covenants, or
conditions. No waiver of any breach shall affect or alter this LEASE, but each and every term,
covenant, and condition of this LEASE shall continue in full force and effect with respect to any
other than an existing or subsequent breach.
ARTICLE 23 - TIME OF THE ESSENCE
Time is of the essence of this LEASE and of each provision.
ARTICLE 24 - COMPUTATION OF TIME
The time in which any act provided by this LEASE is to be done by shall be computed by
excluding the first day and including the last, unless the last day is a Saturday, Sunday, or a
holiday, and then it is also excluded.
ARTICLE 25 - SUCCESSORS IN INTEREST
Each and all of the terms, covenants, and conditions in this LEASE shall inure to the
benefit of and shall be binding upon the successors in interest of CITY and LESSEE.
ARTICLE 26 -ENTIRE AGREEMENT
This LEASE contains the entire agreement of the parties with respect to the matters
covered by this LEASE, and no other agreement, statement, or promise made by any party which
is not contained in this LEASE shall be binding or valid.
ARTICLE 27 - GOVERNING LAW
This LEASE shall be governed by, construed, and enforced in accordance with the laws
of the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and
Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter
amended, including, without limitation, Chapter 7.05 of the Seward City Code.
4817-1371-2460v.14 0022769-000022 26
49
ARTICLE 28 -PARTIAL INVALIDITY
If any provision of this LEASE is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the provisions shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated.
ARTICLE 29 -RELATIONSHIP OF PARTIES
Nothing contained in this LEASE shall be deemed or construed by the parties or by any
third person to create the relationship of principal and agent or of partnership or of joint venture
or of any association between CITY and LESSEE; and neither the method of computation of
rent, nor any other provisions contained in this LEASE, nor any acts of the parties, shall be
deemed to create any relationship between CITY and LESSEE other than the relationship of
lessee and lessor.
ARTICLE 30 -INTERPRETATION
The language in all parts of this LEASE shall in all cases be simply construed according
to its fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had
the opportunity to seek assistance of counsel in drafting and reviewing this LEASE.
ARTICLE 31 - CAPTIONS
Captions of the articles, paragraphs, and subparagraphs of this LEASE are for
convenience and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions
of this LEASE.
ARTICLE 32 -AMENDMENT
This LEASE is not subject to amendment except in writing executed by both parties
hereto.
ARTICLE 33 -NOTICES
All notices, demands, or requests from one party to another shall be delivered in person
or be sent by mail, certified or registered, postage prepaid, to the addresses stated in this Article
and to such other persons and addresses as either party may designate. Notice by mail shall be
deemed to have been given at the time of mailing.
All notices, demands, and requests from LESSEE to CITY shall be given to CITY at the
following address:
City Manager
CITY OF SEWARD
PO Box 167
4817-1371-2460v.14 0022769-000022 27
50
Seward, Alaska 99664
All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the
following address:
Seward Fisheries
P.O. Box 8
Seward, Alaska 99664
Attn: Plant Manager
With a copy to:
Icicle Seafoods, Inc.
c/o Cooke Aquaculture, Inc.
40 Wellington Row
Saint John, New Brunswick E21, 3H3
Attn: Chief Legal Officer
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 -FIRE PROTECTION FOR LEASED LAND
LESSEE shall at its sole cost, risk and expense provide fire detection and protection to its
operations on the Leased Land and fire prevention to industry standards for risks to adjacent
facilities such that those risks are minimized. LESSEE shall continue to provide and maintain
industry accepted standards of fire protection such that the City of Seward's ISO rating is not
degraded by reason of LESSEE'S operation. The parties agree that with the rapid expansion of
technology in the field of fire prevention and control LESSEE's obligations hereunder may vary
during the term of this LEASE and CITY may submit LESSEE's compliance with its obligation
hereunder to arbitration not more frequently than once in a five-year period.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates
herein set forth.
CITY: LESSEE:
CITY OF SEWARD ICICLE SEAFOODS,INC
By: By:
Jim Hunt, City Manager John Woodruff, Chief Operating Officer
Date: Date:
4817-1371-2460v.14 0022769-000022 28
51
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9 o
LEASE AMENDMENT NO. 2
RE-071
THE CITY OF SEWARD, ALASKA, a home rule municipal corporation, organized
and existing under the laws of the State of Alaska, hereinafter referred to as "City", whose
mailing address is P.O. Box 167, Seward,Alaska 99664, and ICICLE SEAFOODS, INC.,
a Washington corporation authorized to do business in Alaska, hereinafter referred to as
"Lessee", whose mailing address is P.O. Box 79003, Seattle, Washington 98119, for and
in consideration of the mutual promises and covenants hereinafter contained, hereby agree
that the lease between them for the real property described on attached Exhibit A, hereby
incorporated by reference, and as identified in that certain lease dated July 11, 1988, as
amended (the "Lease"), is hereby amended as follows:
A. DELETE Section 1.1 within Article 1. LEASED LAND and substitute, in its stead, the
following:
1.1 Legal Description.
City leases to Lessee and Lessee leases from City that certain
land herein called "Leased Land," situated in Seward, Alaska,
consisting of approximately 4.93 acres (214,804 sf), as shown
on Exhibit "A" (substitute) attached hereto and more particu-
larly described as follows:
Lots 2A and 3A, Block 2, according to the Plat of
MARINA SUBDIVISION, BLOCK 2 REPLAT,
filed under Plat Number 96-28, in the Seward
Recording District,Third Judicial District, State of
Alaska.
B. DELETE Section 6.4 within Article 6. RENT and substitute, in its stead, the
following:
6.4. Rent Payment Credits for Production and Employment. Provided that Lessee
is not in default of any Lease provisions and is current in all other payments to City, Lessee
shall be allowed as a credit against regular annual rent payable under Sections 6.1 and 6.2
hereof("Regular Rent"), certain rent payment credits for production and employment at the
Leased Land. The Lessee shall be entitled to receive credits as follows:
(a) Production Credit. Lessee may deduct from the Regular Rent
payment due during a calendar year, a rent payment credit for
processing' fisheries resources2 at the Leased Land during the
' "processing"or"processed"means any activity which modifies the physical condition of a fisheries resource,including butchering,
freezing,salting,cooking,canning,dehydrating,or smoking;however,"processing"or"processed"does not include decapitating shrimp
and gutting,gilling,sliming,or icing a fisheries resource solely for the purpose of maintaining the quality of the fresh resource.
54
immediately preceding calendar year. The rent payment credit shall
equal $.50 per ton of all fisheries resources processed at the Leased
Land which exceed a base annual processing level of 5,000 tons, �-
regardless of whether the fisheries resource was delivered to the
Leased Land by land or water or from within or outside of the City of
Seward, Alaska.
(b) Employment Credit. Lessee may deduct from the Regular Rent
payment due during a calendar year, a rent payment credit for
employment at the Leased Land during the immediately preceding Y
calendar year. The rent payment credit shall equal $.25 per hour for L.
each employee hour worked at the Leased Land which exceeds a
base annual employment level of 25,000 employee hours. Only hours
actually worked by Lessee's non-salaried, hourly paid employees
shall be considered. All employee time must be for employees of
Lessee who are actively engaged in work on behalf of Lessee at the
Leased Land. City shall have the right to verify Lessee's compliance
with the provisions of this Article by being provided quarterly certified
payroll records showing the hours worked by Lessee's employees at
the Leased Land.
(c) Provisions Governing Use of All Rent Payment Credits.
Rent payment credits shall be applied only against the Regular Rent
due for each calendar year as otherwise computed under the terms
of Lease sections 6.1 and 6.2 hereof, as such rental rate may be
adjusted from time to time. Rent payment credits shall not be applied
to any additional rent described in Section 6.3 hereof, taxes,
assessments, utilities, other lease obligations paid by City on
Lessee's behalf, late Regular Rental payments not timely made in the
calendar year in which that they were due, or late payment penalties.
Final determination of the availability and amount of rent payment
credits shall be in the sole reasonable discretion of City.
Rent payment credits may be used in any combination; provided,
however, in no event shall the total of credits used in any one
calendar year exceed 50% of the annual Regular Rent payments due
for a calendar year or $75,000, whichever is less. Rent payment
credits shall not be carried forward from year to year.
2 "fisheries resources"means fin fish and shellfish,including but not limited to salmon,halibut,herring,flounder,crab,clam,cod,
shrimp, and pollock; fish byproducts, such as roe, entrails and carcasses, are separate fisheries resources if they are delivered
separately for processing.
JADOCS\433741MAMM00524.4 Page 2
55
Rent payment credits shall not be earned during the final calendar
year of the lease term whether the lease has expired by its terms or
is terminated by either party to the Lease.
C. ADD within Article 6. RENT the following:
6.5. Late Payment Penalty. Rental payment due, but not received, by the due date
shall accrue interest of the rate of ten and one half percent (10.5%) per annum until
paid or the maximum permitted rate under Alaska law, whichever is less.
D. DELETE Part A of Section 11.1 within Article 11. INSURANCE AND RESTORA-
TION and substitute, in its stead, the following:
A. Policy or policies of insurance with the following coverage limits:
1. General Liability ...............:.....................................................$2,000,000
2. Workers Compensation.......................... Alaska Statutory Requirements
E. DELETE Section 16.3 within Article 16. DEFAULT AND REMEDIES and substitute,
in its stead, the following:
16.3 Damages. No such expiration or termination of the Lease shall relieve Lessee
of its liability and obligations under the Lease, and such liability and obligations shall
survive any such expiration or termination. In the event of any expiration or termination,
whether or not the Leased Land, or any part thereof, shall have been relet, Lessee shall
pay to City the net rent and all other charges required to be paid by Lessee up to the time
of such expiration or termination of this Lease, and thereafter Lessee, until the end of what
would have been the term of this Lease in the absence of such expiration or termination,
shall be liable to City for, and shall pay to City, as and for liquidated and agreed current
damages for Lessee's default:
a. the equivalent of the amount of the rent and charges which would be payable
under this Lease by Lessee if this Lease were still in effect, less
b. the net proceeds received by City from leasing or reletting the Leased Land
and improvements thereon after deducting all of City's expenses in connection with such
leasing and reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorney fees, alteration costs, and expenses
of preparation for such reletting.
Lessee shall pay such current damages (herein called "deficiency")to City monthly,
and City shall be entitled to recover from Lessee each monthly deficiency as the same
shall arise. At any time after any such expiration or termination, whether or not City shall
have collected any monthly deficiencies as aforesaid, City shall be entitled to recover from
JAD0CS\43374102\AMM00524.4 Page 3
56
Lessee, and Lessee shall pay to City, on demand, as and for liquidated and agreed final
damages for Lessee's default, an amount equal to the difference between all rent reserved
hereunder for the unexpired portion of the Lease Terms and the then-fair-and-reasonable
net rental value to City of the Leased Land for the period for which such installment was
payable shall be discounted to the date of termination at the rate of six (6%) percent per
annum. If the Leased Land, or any part thereof, be leased or relet by City for the unexpired
portion of the Lease Term, or any part thereof, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of rent reserved upon
such leasing or reletting shall be prima facie evidence of the fair and reasonable rental
value for the part of the whole of the premises so leased or relet during the term of the
leasing or reletting. Nothing herein contained shall limit or prejudice the right of City to
prove and obtain as liquidated damages by reason of such termination an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which such damages are to be proved, whether or not such
amount be greater, equal to, or less than the amount of the difference referred to above.
F. DELETE Section 17.2 within Article 17. GENERAL PROVISIONS and substitute,
in its stead, the following:
17.2. Conditions and Covenants. All the provisions of the 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.
G. In all other respects, the Lease is to remain unchanged and in full force between the
undersigned parties.
H. This Lease Amendment No. 2 shall be effective January 1, 1999.
JADOCS\43374100AMM00524.4 Page 4
57
IN WITNESS WHEREOF, the parties have executed this document this day of
, 2000.
CITY: LESSEE:
CITY OF SEWAR/D ICICLE SEAFOODS, INC.
kA /19
By: W. Scott Janke By: -b f
Its: City Manager Its: V 1 ce Mc;�,r t r p P, �r
ATTEST: SUBMITTED BY:
Patrick Reilly, City erk James Beckham, Harbormaster
s9 ��aa
JAD005\433741MAMM00524.4 Page 5
58
n
STATE OF ALASKA )
) SS.
THIRD JUDICIAL DISTRICT JUDICIAL DISTRICT )
THIS CERTIFIES that on this day of J°°' --� , 2000, before me, the
undersigned Notary Public in and for the State of Alaska, personally appeared W. Scott
Janke, known to me and to me known to be the City Manager for the City of Seward,
Alaska, and acknowledged to me that he knew the contents of the foregoing document and
executed the foregoing document on behalf of the City of Seward for the uses and
purposes therein set forth.
WITNESS my hand and notarial seal the day and year first herein above written.
r
OFF!,"' ✓% / j
Yv 7r No ary Public in and for Alaska
rfO A.-
m My Commission Expires: 7-Z 7
STATE OF•A-L A Wa-6h►1nlzr )
(dun �a y aj: 41 AJ6, ) SS.
T-I=I-RRD4UDICIAL DISTRICT JUDICIAL DISTRICT )
THIS CERTIFIES that on this may of "a , 2000, before me, a Notary
Public in and for Alaska, personally appeared t_.JQhn f . �'oMrL tf= , to me known
to be the person who executed the foregoing instrument on behalf of Icicle Seafoods, Inc.
:F e/he acknowledged to me that ire/he executed the same freely and voluntarily on
behalf of said corporation. S*e/he stated to me under oath that s4e/he is the
��, ��' zlu�.t�u► of the said corporation, has been authorized by the Board of Directors
of the said corporation to execute said instrument on its behalf, and has full power and
authority to execute the same.
IN WITNESS WHEREOF, I hereunto set my hand and seal.
�G1A B. '
ON 3 6
NOTAq y di Notary Public in and for Ala-ska- i t 1u51� r
My Commission Expires:
N0 PUBL�G ti O
7 ✓GNE 15,20o CA�
JAD0CS\43374102\AMM0052 OF WAS Page 6
59
}6xf OCT
EXHIBIT A
Legal Description
Lots 2A and 3A, Block 2, according to the Plat of MARINA SUBDIVISION,
BLOCK 2 REPLAT, filed under Plat Number 96-28, in the Seward Recording
District, Third Judicial District, State of Alaska.
000382 . NAPR -U Pass
33--tL
SEWARD REQUESTED BY
RECORDING DISTRICT
JAD0GS\43374102\AMM00524.4 Page 7
60
LANDLORD CONSENT
City of Seward
("Lessor")
A. Lessor and Icicle Seafoods,Inc. ("Lessee")are parties to the Leases described on Exhibit A
(the"Leases").
B. With Lessor's prior consent granted on September 15, 1994(recorded in book 74,Page 453
of the Seward Recording District), Lessee mortgaged and assigned for security purposes its leasehold
interest in the Leases to the UNITED STATES OF AMERICA, ACTING BY AND THROUGH THE
SECRETARY OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
NATIONAL MARINE FISHERIES SERVICE, whose address is 1315 East-West Highway, Silver Spring,
Maryland, 20910 ("Beneficiary") under the terms of the Leasehold Deed of Trust and Assignment of
Lessee's Interest in Leases dated as of October 17, 1994, recorded in Book 74, Page 441 of the Seward
Recording District(the"Deed of Trust").
C. Lessee now desires to amend the Deed of Trust to increase the amount of the obligation
secured by the Deed of Trust to reflect the additional loan Beneficiary is advancing to Lessee.
Agreement
1. Lessor consents to Lessee's amendment to the Deed of Trust.
2. Lessor certifies to Lessee and Beneficiary:
a. Lessor is the present landlord under each of the Leases.
b. To Lessor's knowledge, the Leases are presently in full force and effect; there exists no
default under the Leases, and no event which would constitute a default, with notice of
lapse of time or both,has occurred and is continuing.
C. There are no unrecorded amendments or modifications of the terms and provisions of the
Leases.
Lessor: CITY OF S W
By 41d
Item-,
ATTEST: /4a4/ IV "0. V
Its C;
ky S
4 is
� 4!
tL
67 7t 0 q J
� 7
t e
♦ i
jAc00382\m18140\01702 Landlord Consent-Seward
61
APPROVED AS TO FORM:
By
City Attorney
STATE OF ALASKA )
)ss.
THIRD JUDICIAL DISTRICT )
On this Z q day of `/y-4 1998, before me, a No Public in and for the State of
Alaska, duly co ssioned and sworn, personally appeared S C C/ �� r� � to me
known to be the"j A'/k"te'- of a s ,�'L which executed the within and
foregoing instrument, and acknowledged before me that the said instrument was his free and voluntary act
and deed,as partner,for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year in this certificate above written.
nv /
(S' afore)
OFFICIAL SEAL
,State ref,4108 4a
YVETTE G.WELSH (Print Name)
NOTARY PUBLIC
NOTARY PUBLIC in and for the State of Alaska.
My Commission Expires 7/ 147
2
j:\c003821m18140\01702 Landlord Consent-Seward
62
Exhibit A
Legal Descriptions and Leases
1. PARCEL I:
New Legal Description:
Lots Two A (2A) and Three A (3A), Block Two (2), according to the Plat of MARINA
SUBDIVISION,BLOCK 2 REPLAT,filed under Plat No. 96-28, in the Seward Recording District,
Third Judicial District, State of Alaska.
Old Legal Description:
Lots Two (2) and Three (3), Block Two (2), according to the Plat of MARINA SUBDIVISION,
filed under Plat No. 89-10, in the Seward Recording District, Third Judicial District, State of
Alaska.
Lease:
Lessor: City of Seward
Lessee: Icicle Seafoods,Inc. an Alaskan corporation
Dated: July 11, 1988
Memorandum of Lease thereto
Dated: August 23, 1988
Recorded: August 30, 1988
Book/Page: 51/954
As amended under Memorandum of Amendment
Dated: June 8, 1989
Recorded: July 19, 1989
Book/Page: 55/210
And all amendments thereto.
-END-
RETURN TO:
Chief Financial services Division
National Marine Fisheries Service
1335 East-West Highway
Silver Spring,Maryland 20910
3
j:\c00382\m18140\01702 Landlord Consent-Seward
63
LEASE AMENDMENT NO. 1
THE CITY OF SEWARD, ALASKA, a home rule municipal
corporation, organized and existing under the laws of the State of
Alaska, hereinafter referred to as "CITY, " and ICICLE SEAFOODS,
INC. , hereinafter referred to as "LESSEE, " hereby agree that the
Lease between them for a portion of Lot 10 and all of Lots 11-15,
Seward Industrial Park, dated July 11, 1988, is hereby amended as
follows:
DELETE the first recital paragraph and substitute in its stead the
following:
WHEREAS, Lessee is currently occupying the premises
described below as Lessee under four (4) different long
term lease agreements, three of which were entered into
on October 1, 1973 , and the fourth on February 4, 1979,
which leases the parties by this agreement wish to and
do hereby supersede and cancel as of the effective date
of this Lease; and
DELETE Section 1. 1 within Article 1. LEASED LAND on Page 1, and
substitute, in its stead, the following:
1. 1 Legal Description. City leases to Lessee, and
Lessee leases from the City that certain land
herein called "Leased Land, " situated in Seward,
Alaska,,, consisting of approximately 4.93 acres
(214 ,804 sf) , as shown on Exhibit "A" (substitute)
attached hereto and more particularly described as
follows:
Lots 2 and 3 , Block 2 , Marina Subdivision, as
recorded by Plat 89-10 on 4/19/89 in the Seward
Recording District, Third Judicial District, State
of Alaska.
DELETE the first paragraph of Section 6. 2 ARTICLE 6. RENT and
substitute, in its stead, the following:
For the period August 10, 1988, through December 31,
1994 , the rental rate shall be $. 36 per square foot per
annum. In January, 1995, and every fifth (5th) year
thereafter, the city, at its own expense, shall employ
an independent MAI-certified appraiser to determine the
fair market rental value of the Leased Land, exclusive
of Lessee's improvements, at the highest and best use of
the Leased Land, based upon applicable land use
regulations.
64
In all other respects, the lease is to remain unchanged and in
full force between the undersigned.
IN WITNESS WHEREOF, the parties to have executed this
document, and it is effective this day of ,
1989 .
LESSOR: LESSEE:
CITY OF SEWARD, ALASKA ICICLE SEAFOODS, INC.
'A� , By: 01 - ro
DARRY CHAEFERMEYE ROBERT F. BROPHY
CITY MANAGER ITS PRESIDENT
ATTEST: APPROVED AS TO FORM
PERKINS COIF, ATTORNEYS FOR
,r City of Seward, Alaska
`7
L DA S. NNRPHY, ` CM
FRED ARVIDSON, CITY ATTORNEY
C TY CLERK
(City Seal)
STATE OF ALASKA )
ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that, on the day of
1989, before me, the undersigned, a Notary Public in and/ for the
State of Alaska, duly commissioned and sworn as such, personally
appeared Darryl Schaefermeyer, City Manager of the City of Seward,
known to me and to me known to be the person who executed the
foregoing instrument on behalf of the City of Seward, and who
acknowledged that he signed the same freely and voluntarily for
the uses and purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my Notarial Seal the day and year hereinabove written.
NOTARY PUBLIC IN AND FOR ALASKA
My Comm. expires__ --
-2-
65
STATE OF WASHINGTON }
} ss.
COUNTY OF KING }
THIS IS TO CERTIFY that, on the day of � ,
1989, before me, the undersigned, a Notary Public in---`and for the
State of Washington, duly commissioned and sworn as such,
personally appeared Robert F. Brophy, President, of Icicle
Seafoods, Inc. , who is known to me and to me known to be the
person who executed the foregoing instrument on behalf of Icicle
Seafoods, Inc. , and who acknowledged that he signed the same
freely and voluntarily for the uses and purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my Notarial Seal the day and year hereinabove written.
r
NOTARY PUBLIC IN AND FOR TIJ9 STATE
OF WASHINGTON, residing at
My Appointment expires ( '!r " g cD
-3-
66