HomeMy WebLinkAboutRes1993-046
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Sponsored by: lones
CITY OF SEWARD, ALASKA
RESOLUTION NO. 93-046
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, APPROVING A SHORT TERM
LEASE WITH SEWARD FOREST PRODUCTS
and
WHEREAS, the former Seward Sawmill has reopened as Seward For~st Products;
WHEREAS, Seward Forest Products wishes to enter into a short term lease of land
adjacent to the SMIC North Dock for log storage; and
WHEREAS, the City Manager has determined that a short term lease of this
property is in the public interest; and
WHEREAS, the subject property has not been identified for any other use by the
city during the proposed term of the lease; and
WHEREAS, it is in the public interest to waive appraisal of the subject property
for a lease of such short duration; and
WHEREAS, it is in the public interest to enter into this short term lease agreement
at a rate determined by the city administration based upon other lease rates in the area;
and
WHEREAS, in accordance with Seward City Code ~ 7.05.410, the city has prepared
a short term lease agreement which has been approved by the City Manag~r subject to
confirmation by the City Council;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The short term lease of approximately one acre of city property
adjacent to the SMIC North Dock to Seward Forest Products for temporary storage of
logs is hereby approved. A copy of the lease is attached and incorporated herein by
reference.
Section 2. The above referenced lease is subject to suspension during the first
thirty (30) days after passage and posting of this resolution if a sufficient referendary
petition is filed in accordance with ~ 4.8 of the City Charter.
Section 3. This resolution shall take effect immediately upon its adoption.
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LEASE AGREEMENT
THIS AGREEMENT effective as of the 1st day of March 199..1, by and between the CITY OF
SEWARD, ALASKA, a municipal corporation located in the Kenai Peninsula Borough, State of Alas~
hereinafter referred to as "CITY" and SEWARD FOREST PRODUCTS hereinafter referred to as
"LESSEE".
WHEREAS, LESSEE wishes to lease land at the Seward Marine Industrial Center for purposes
of temporary storage of logs; and
WHEREAS, City desires to accommodate such temporary lease request; and
WHEREAS, LESSEE intends to store the logs only through May 31, 1993; and
WHEREAS, LESSEE has indicated its desire to lease an area of approximately two (2) acres,
87,120 square feet in size, hereinafter called the "leased land"; and
WHEREAS, the City Manager of the City of Seward has determined that a lease of the leased
land would be in the public interest; and
WHEREAS, it is the intent of this lease to alleviate from CITY the entire burden of compliance
with present or future environmental regulations or controls with respect to LESSEE's operations on the
leased land during the lease term.
NOW THEREFORE, for and in consideration of the mutual promises and covenants hereinafter
contained, the parties hereto agree as follows:
ARTICLE 1. LEASED LAND
1.1. DESCRIPTION OF LEASED LAND. The leased land granted by CITY under this lease
(hereinafter referred to as "leased land") is located in Seward, Alaska. The leased land is more
particularly described as follows:
Approximately 87,120 square feet outlined in red as indicated on exhibit
"A", attached. All leased land is located within USS 4827, Seward,
Alaska.
1.2. City Authorized To Lease The Parcel; Covenant Of Quiet Eniovment. Subject only to
restrictions of management authority or provisions of this lease, CITY hereby covenants that LESSEE
shall have the quiet enjoyment and possession of the leased land for any use authorized hereunder for
the full term of this lease. CITY has management authority over the leased land free and clear, and is
fully empowered to enter into this lease. CITY is unaware of any prior conflicting use of the property
which would adversely affect LESSEE's intended use of the subject parcel.
1.3--Zonins. Land Use. CITY represents that the current zoning classification of the leased land
is Industrial. In the event that at any time LESSEE deems it necessary or appropriate to obtain use,
zoning or subdivision and precise plan approval for the leased land, or any part thereof, CITY agrees
from time to time upon request of LESSEE to execute such documents, petitions, applications and
authorizations as may be appropriate or required to obtain from the agency or public body responsible
therefore any conditional use permits, zoning and re-zoning, tentative and final tract approval and
precise plan approval. This Section shall impose no duty or responsibility on CITY to assist LESSEE in
obtaining any other permits or approvals for operation or construction, such as those required by the U.S.
Army (''''1's of Engineers (wetland fill permits) or the Environmental Protection Agency (Clean Air Act
permits), etc. CITY shall cooperate in good faith with LESSEE in LESSEE's efforts to promptly obtain
any required permits for operation of LESSEE's facilities on.the leased land.
ARTICLE 2. - LEASE TERM
2.1--Temporary Term. Under the provisions of Section 7.05.410 of the Seward Code the
City Manager is authorized to negotiate short-term lease agreements subject to certain conditions.
LESSEE has reviewed the provisions of the Seward Code and understands and agrees to the conditions
under which this lease is issued.
This lease shall terminate ninety (90) days from the date of property use, that is to say
on May 31, 1993, LESSEE may cancel this lease upon thirty (30) days written notice to the CITY. This
lease agreement is not subject to renewal. This lease is further subject to approval by the City Council
of the City of Seward at its next regularly scheduled City Council meeting. This lease is subject to
suspension during the first thirty (30) days after passage of a resolution approving it if a sufficient
referendary petition is filed in accordance with Section 4.8 of the City Charter.
ARTICLE 3. - RENT
3.1.-Rental Rate. Through the lease term the rental rate shall be five hundred dollars ($500) per
month.
3.2--Late Payment Penalty. Rental payment due, but not received, by the due date shall accrue
interest at 1% per month or the maximum permitted rate under Alaska law, whichever is higher.
ARTICLE 4. - USE OF LEASED LAND
The CITY has limited land available for lease and LESSEE's intended use of the leased land has
been determined by the City Council to be in the public interest.
4.1.-Use of the leased land. LESSEE may use the land only for the outside storage of logs,
provided the following conditions are met:
a) Site is to be completely cleaned and restored to its present condition or better upon
termination of this lease.
b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of hazardous materials
on the site.
elI'\' O~ SEWARD, ALASKA
RE: YOUNG &r: MORGAN LEASE
Page 2
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LESSEE will not allow the land to be used in any manner, or construct any facilities thereon
which would inhibit the use of adjacent or other lands.
4.2-No Preferential Ri2hts to Use Public Facilities. This lease agreement shall not be construed
to grant any exclusive rights of use to LESSEE of any public port facilities constructed or maintained by
the City of Seward. Insofar as use of those facilities is concerned, LESSEE will be subject to any
required tariffs, procedures, rules and regulations of the City of Seward as they may now exist or from
time to time be amended and LESSEE shall not be entitled to any exclusive use.
4.3-AdeQuacy of Public Facilities. CITY makes no representations or warranties as to any
particular part or the whole of CITY's public facilities with respect to their fitness for the uses intended
by LESSEE, and LESSEE has inspected those facilities and has examined the plans and specifications of
those facilities under construction or planned for construction and has satisfied itself that the facilities
are sufficient for the intended uses by LESSEE. CITY mak~s no representations or warranties of any
nature with respect to the commercial practicability or accuracy of any information provided by CITY.
4.4--Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs,
regulations and scheduled fees from time to time even if those adjustments shall cost LESSEE more for
its operations or use of public facilities, and CITY is free to do so provided only that it does not pose
any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities.
4.5-- Time for Pavment of Utilities, Taxes. LESSEE will pay for utilities and taxes related to
operations on the leased land and LESSEE's interest in this lease agreement, if any, before such
obligations become delinquent; provided, that LESSEE may, in good faith and before such payment,
contest any such charge or assessment.
ARTICLE 5. - UTIUTIES AND RlGIITS OF ACCESS
S.l--Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of
public utilities to the leased land sufficient for LESSEE's intended operations. In so doing, LESSEE shall
comply with all City regulations and requirements with respect to the construction of those utilities.
CITY agrees to co-operate and assist LESSEE in LESSEE's planning and engineering of those
improvements and, further, to assist in coordinating the actual connection of those utilities to the City
system. CITY agrees to make reasonable efforts to provide connection of utilities to the City system;
however, the parties recognize that circumstances may arise, including the availability and priority of
utility service crews, which might not be adequate to meet LESSEE's needs.
LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent,
investment, or costs incurred by LESSEE with respect to any required 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.
ARTICLE 6. - RElURN OF PREMISES/SITE CONDmON
6.l--Return of Premises in Original Condition. Upon termination of this lease for any reason,
LESSEE shall return the leased land to CITY in the good condition, useable as it was originally intended.
The leased land shall be free of all Hazardous Materials arising out of or resulting from LESSEE's
operations.
CITY OF SEWARD, ALASKA
RE: YOUNG &: MORGAN lEASE
Page 3
ARTICLE 7. - FORCE MAJEURE
In the event either LESSEE or CITY is delayed from performance of any of its obligations under
this lease, due to acts of God, acts of the enemies of the United States of America, war, sabotage,
blockade, insurrection, riot, epidemic, fires, floods, explosions, earthquakes/tsunami or civil disturbance,
the time period wherein such performance is to occur shall be extended by that amount of time necessary
to compensate for the delay.
ARTICLE 8..- LESSEE'S ACI'S OF DEFAULT
Each of the following shall be a "LESSEE Act of Default" under this lease and the terms "Acts
of Default" and "Default" shall mean, whenever they are used in this lease, anyone or more of the
following events:
a) Failure by LESSEE to pay promptly when due, and in no event later than ten (10) days
from the due date thereof, the rentals required to be paid under this lease.
b) Failure by LESSEE to observe, fulfill or perform any covenants, conditions or
agreements on its part to be observed or performed under this lease for a period of five (5) 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.
c) The making by LESSEE of an assignment for the benefit of creditors, the filing of a
petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt, the petition or
application by LESSEE to any tribunal for any receiver or any trustee for itself or for any substantial part
of its property; or the commencement of any proceeding relating to LESSEE under any bankruptcy,
insolvency, reorganization, arrangement or readjustment of debt law or statute or similar law or statute
of any jurisdiction, whether now or hereafter in effect which shall remain undismissed for a period of
six (6) months from the date of commencement thereof.
d) Violation by LESSEE of any laws or regulations of the United States, or of the State
of Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai
Peninsula Borough, the State of Alaska or of the United States Government pursuant to the regulations
of such agencies, for a period of thirty (30) days after written notice specifying such violation has been
given by the agency charged with the enforcement of such laws, regulations or permits to LESSEE;
provided, however, if such violation be such that it cannot be corrected within the applicable period, it
shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable
period and diligently pursued until the violation is corrected. Furthermore, if LESSEE shall contest such
alleged violation through appropriate judicial or administrative channels, the time period specified
herein shall not commence until such proceedings are finally determined provided such proceedings are
diligently pursued; provided, however, that any such extension of time shall not be effective if the effect
of the interim administrative or judicial action is to cause a stoppage, interruption or threat to the
activities of any person or entity other than those of LESSEE.
ern OF SEWARD, ALASKA
I~E::: YOUNG ~ MORGAN LEASE
Page 4
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ARTICLE 9. - 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
in addition to any rights and remedies that may be given to CITY by statute, common law or otherwise:
a) CITY may distrain for rent due any of LESSEE's personal property which comes into
CITY's possession. This remedy shall include the right of CITY to dispose of personal property
distrained in any commercially reasonable manner. It shall be conclusively presumed that compliance
with the procedures set forth in the Alaska Uniform Commercial Code (AS 45.09.504) with respect to sale
of property shall be a commercially reasonable disposal.
b) CITY may re-enter the leased land and take possession thereof and, except for any
personal property of LESSEE which CITY has waived its ript to distrain under sub-part (a) above,
remove all personal property of LESSEE from the leased land. Such personal property may be stored
in place or may be removed and stored in a public warehouse or elsewhere at the cost of LESSEE all
without service of notice or resort to legal process, all of which LESSEE expressly waives.
c) Declare this lease terminated.
d) Recover, whether this lease be terminated or not, reasonable attorney's fees from
LESSEE and all other expenses incurred by CITY by reason of the breach or default by LESSEE.
f) Recover an amount to be due immediately on breach equal to the rent reserved under
this.lease discounted to the date of such breach at the rate of eight percent (8%) per year. If the leased
land or any part thereof be re-let by CITY for the unexpired term of this lease, CITY shall reimburse to
LESSEE upon receipt of an amount not to exceed the amount received by CITY under this section.
g) If LESSEE does not immediately surrender possession of the leased land after
termination by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess
the leased land and expel LESSEE without being deemed guilty in any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenant.
h) No expiration or termination of this lease shall expire or terminate any liability or
obligation to perform of LESSEE's which arose prior to the termination or expiration except insofar as
otherwise agreed to in this lease.
i) Each right and remedy of CITY provided for in this lease shall be cumulative and shall
be in addition to every other right or remedy provided for in this lease or now or hereafter existing at
law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by CITY of 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.
j) 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.
ern OF SEWARD, AlASKA
RE: YOUNG ok MORGAN lEASE
Page 5
ARTICLE 10. - SPECIAL RIGIIT OF TIlE CITY OF SEWARD
CITY shall enjoy the "special right" to enter and move the logs to another portion of the Seward
Marine Industrial Center upon five (5) days written notice to lessee. If the City moves the logs under
the terms of this article it shall be entitled to receive compensation in the amount of actual costs incurred
in the move plus an additional twenty-five percent (25%) for administration and planning. LESSEE shall
endeavor to move the logs within the five (5) day notice period if possible.
ARTICLE IL - lITLE TO IMPROVEMENT INSTALLED BY LESSEE
n.1--Real Property Improvements. All improvements constructed by LESSEE on the leased land
or on easements to or from same, such as buildings, warehouses, conveyor systems ditches, sewer lines,
water lines, dikes or berms, and similar improvements, shall become the property of CITY upon the
termination of this lease for any reason; provided, however, that CITY may require LESSEE to remove
any improvements designated by CITY without cost to CITY.
n.2--Personal Property. Any other provisions of this lease to the contrary notwithstanding,
LESSEE, upon termination of this lease for any reason, must promptly remove trade fixtures and
equipment from the leased land and shall repair any damages to the leased land caused by such removal.
ARTICLE 1.2. - SUBLEASE OR ASSIGNMENT
12.1--Assi2nment of Lease or Subleasin~. The parties recognize that this lease has been
determined to be in the public interest by the City Council of the City of Seward for the reasons set forth
in Resolution 92- _' LESSEE may only assign, sublease, or sub-tenant this lease or any portion of the
leased land with CITY's written consent which shall be granted if the use by the proposed assignee,
sublessee, or sub-tenant is:
a) compatible with the use of adjacent lands, including the adjacent leased land; and
use plan; and
b) is a permitted use under the then existing zoning regulations and comprehensive land
c) is found to be in the public interest by the City Council of the City of Seward.
12.2-Assi2nment to Affiliate. LESSEE may assign this lease to an affiliate of LESSEE as that
term is defined by AS 10.05.825(1); provided, however, that LESSEE's full faith and credit shall remain
obligated under this lease agreement as though the transfer had not taken place.
ARTICLE 13. - LESSEE'S DUlY TO DEFEND /INDEMNIFY
LESSEE shall defend, indemnify and hold CITY harmless from and against any and all liability
or claims arising from acts or omissions of any person and of any nature whatsoever occurring on or
relating to LESSEE's operations at or use of the site, causing injury to, or death of persons, or loss of, or
damage to property, and from any expense, including attorneys fees, incident to the defense of and by
CITY therefrom except for claims arising out of the sole negligence of the CITY, its agents or employees.
If any action or proceeding is brought against LESSEE by reason of any such occurrences, LESSEE shall
promptly notify CITY in writing of such action or proceeding.
CIIT OF SEWARD, ALASKA
RE: YOUNG &: MORGAN LEASE
Page 6
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ARTICLE 14.. INSURANCE
Prior to commencement of occupation of the leased land, LESSEE shall procure and maintain,
at LESSEE's sole cost and expense, commercial general liability insurance, with limits of liability of FIVE
HUNDRED rnOUSAND DOLLARS ($500,000) for all injuries and/or deaths resulting to anyone person
and ONE MILLION DOLLARS ($1,000,000) limit from anyone occurrence. The limit of liability for
property damage shall be FIVE HUNDRED rnOUSAND DOLLARS ($500,000) for each occurrence and
aggregate. Coverage under such insurance shall also include explosion, collapse and underground
property damage hazards. Such insurance shall include a blanket contractual liability endorsemenL For
non-owned watercraft of LESSEE or its customers any "watercraft exclusion" in the commercial liability
insurance policy shall be eliminated. Protection and indemnity insurance shall be provided with the
same limits as the commercial liability insurance for the use of LESSEE-owned watercrafL LESSEE shall
also provide fire and extended coverage insurance for any buildings, equipment, machinery, vessels of
customers or any other property stored or being worked on by LESSEE upon the leased land at
replacement value rather than original cosL LESSEE shall provide Workmen's Compensation Insurance
and insurance under the Harbor Workers and Longshoremen's Compensation Act, and warehouse and
motor vehicle insurance and any other insurance required under any permit or tariff of the City of
Seward, Alaska. The minimum amounts and types of insurance provided by LESSEE shall be subject
to revision in accordance with standard insurance practices, in order to provide continuously throughout
the term of this agreement and any extensions hereof, a level of protection consonant with good business
practice and accepted standards in the industry. Such factors as increases in the cost of living,
inflationary pressures, and other considerations, shall be utilized in assessing whether the minimum
insurance requirements should be increased. CITY may notify LESSEE of any requested increase in
insurance coverages.
All insurance policies shall provide for thirty (30) days notice of cancellation and/or material
change to be sent to CITY at the address designated in ARTICLE 38 of this lease. All such policies shall
be written by insurance companies legally authorized or licensed to do business in the State of Alaska,
and acceptable to CITY (Best's Rating B+ or better). LESSEE shall furnish CITY, on forms supplied by
CITY, certificates evidencing that it has procured the insurance required herein prior to the occupancy
of the leased land or operation by LESSEE. Nothing herein contained shall prevent LESSEE or CITY
from placing and maintaining at CITY's or LESSEE's own individual cost and expense, additional or
other insurance as may be desired.
All of the insurance policies required above as well as any other insurance carried by LESSEE
or CITY shall provide that the insurers waive their rights of subrogation against CITY and LESSEE and
their respective officers, servants, agents or employees. LESSEE further agrees to waive and agrees to
have its insurers waive any rights of subrogation (whether by loan receipts, equitable assignment or
otherwise), with respect to deductibles under such policies and with respect to damage to equipment
including the loss of use thereof, whether insured or not. LESSEE shall also name CITY as an additional
insured on the general liability insurance policy maintained by LESSEE as required above, excluding
coverage for claims resulting from CITY's sole negligence. LESSEE shall provide CITY promptly and
without request, copies of all insurance binders and policies upon receipt thereof by LESSEE.
crTY OF SEWARD, ALASKA
11.E: YOUNG ok MORGAN lEASE
Page 1
ARTICLE 15. - CONDEMNATION
If all or any part of the leased land is condemned for a public use by any government agency
or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning or
taking authority for the amount of any damage incurred by or done to them respectively as a result of
the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the
condemning authority; provided, that in the event of a single award to CITY which includes specific
damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such
specific damages so found, if any.
If part, but not all of the leased land is condemned for public use, LESSEE shall make a good
faith determination as to whether or not the taking of the part of the leased land designated for
condemnation will prevent if from continuing to operate on the leased land. If LESSEE determioes 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 16. - ARBITRATION
Any dispute between CITY and LESSEE with respect to any provision of this lease or the rights
and obligations of the parties hereunder shall be decided by arbitration, in accordance with the
provisions of this paragraph. The party desiring arbitration of a dispute shall give written notice to that
effect to the other party specifying in such notice the name and address of a person to serve as an
arbitrator on its behalf. Within fifteen (15) days after receipt of such notice the other party shall give
written notice to the first party specifying the name and address of a person designated to serve as an
arbitrator on its behalf.
Within five (5) days of the second party's designation of his representative arbitrator, the two
chosen arbitrators shall select a third person agreeable to both to become the third member of the
consent panel. The resulting panel of three (called the "consent panel") shall promptly resolve the
dispute submitted. The panel may utilize informal techniques and hold informal hearings or meetings
without reference or adherence to the rules or procedures of the American Arbitration Association. If the
panel desires to do so, it may conduct such formal proceedings as it deems appropriate. Promptly, and
IN NO EVENT later than forty-five (45) days after the selection of the third member, the panel shall
issue a written determination of all matters in dispute unless each party consents to a reasonable
extension of time determined by the consent panel to be required for a fair adjudication of the issues.
It is the intent of this section to provide for a speedy and inexpensive resolution of disputes submitted
to the panel. Any award shall be enforceable in accordance with Alaska statutes.
16.1--Arbitration Awards. Any award shall include an award of costs, interest and attorney fees.
C[TY OF SEWARD, ALASKA
RE: YOUNG &: MORGAN LEASE
Page 8
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ARTICLE 17. MAINTENANCE AND REPAIRS
17.I-Normal Maintenance. During the entire remaining term of this lease and every renewal
or extension hereof, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the leased land,
including any improvements placed thereon by LESSEE, in as good condition as received or constructed
by LESSEE, ordinary wear and tear excepted. LESSEE shall prevent the discharge of any pollutants to
any public sewer system beyond those for which the system was designed. LESSEE shall maintain in
first class condition at all times all fire, pollution and other protective equipment.
CITY may periodically inspect the leased land and facilities constructed thereon in order to
ascertain the condition of the public portion of the premises but the exercise of this right shall not imply
any obligation to do so nor any obligation to do so in any particular way.
I7.2-Safetv Issues. CITY may notify LESSEE in writing of any deficiencies in the performance
of LESSEE's maintenance responsibilities as they relate to public health or safety and LESSEE shall
promptly within 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.
I7.3--Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being
necessary or advisable or reasonable to protect the public facilities on the leased land or on adjacent land
facilities, it may submit the matter to arbitration; provided, however, that pending the decision of the
arbitrators it shall fully comply with the maintenance requests. If an arbitration award (which shall
include costs, interest and attorneys' fees) should ultimately find that the repairs were not necessary then
LESSEE may either (at the sole decision of the City) deduct from future rental payments the cost of such
repairs or be reimbursed therefor. In deciding whether repairs requested by CITY or required by an
engineering report are necessary the arbitration panel is to give primary consideration to the safety and
welfare of the Seward port facilities and the citizens of Seward to the highest standards in the industry.
If any facility or service provided by CITY to the leased land shall become inadequate
due to changes in environmental control standards or should any facility require updating or
improvement by reason of a change in LESSEE's use of the leased land or operations therefrom, LESSEE
shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the
option of CITY.
ARTICLE 18. ENVIRONMENTAL CONCERNS
IS.I--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; however, prior to the
CITY OF SEWARD, ALASKA
H.E: YOUNG lk MORGAN LEASE
Page 9
effective date of this lease, LESSEE may complete a base line assessment of the lease site to be attached
hereto as Exhibit B.
b) Release of CITY. Any other provision of this lease agreement to the contrary
notwithstanding, LESSEE releases CITY from any and all claims, demands, penalties, fines, judgments,
liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court
costs, litigation expenses, and consultant and expert fees) arising during or after the term of this lease
agreement, and resulting from the use, keeping, storage or disposal of Hazardous Material on the site
by LESSEE, or arising out of or resulting from LESSEE's operations at the site except for those arising
out of the CITY'S sole negligence or intentional misconduct. This release includes, without
limitation, any and all costs incurred due to any investigation of the site or any cleanup, removal or
restoration mandated by a federal, state or local agency or political subdivision or by law or regulation.
c) Use of Hazardous Materials on the Site.
i) LESSEE shall not cause or permit any Hazardous Material to be brought upon,.
kept or used in or about the leased property except for 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 therefore, shall be used, kept, stored and disposed of in a manner that
complies with all Environmental Laws or other laws or regulations applicable to such Hazardous
Material.
Hi) 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) the condition, use or enjoyment of the leased land or any other area
or personal property.
iv) LESSEE hereby agrees that it shall be fully liable for all costs and expenses
related to the use, storage and disposal of Hazardous Material kept or brought on the leased land by
LESSEE, its authorized representatives and invitees, and LESSEE shall give immediate notice to CITY
of any violation or potential violation of the provisions of this subparagraph.
d) Indemnification of CITY. Any other provision of this lease agreement to the contrary
notwithstanding, LESSEE shall defend, indemnify and hold CITY harmless from and against any claims,
demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (including,
without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever
kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to:
(i) the presence, disposal, release, or threatened release of any such Hazardous
Material which is on, from or affecting the leased land, soil, water, ground water, vegetation, buildings,
personal property, persons, animals, or otherwise;
C[TY OF SEWARD, ALASKA
RE: YOUNG &t MORGAN lEASE
Page 10
.
.
.
(ii) any personal injury (including wrongful death) or property damage (real or
personal) arising our of or related to such Hazardous Material;
(ill) any lawsuit brought or threatened, settlement reached or government order
relating to such Hazardous Material; and/or
(iv) any violation of any laws applicable thereto; provided, however, that this
provision shall apply only if the acts giving rise to the claims, demands, penalties, fines judgments,
liabilities, settlements, damages, costs, or expenses;
(a) occur in whole or in part during or after the term of this lease
agreement; and
(b) arise in whole or in part fro~ the use of, operations on, or activities on
the leased land by LESSEE or its employers, employees, agents, invitees, contractors, subcontractors or
authorized representatives. The provisions of this subparagraph shall be in addition to any other
obligations and liabilities LESSEE may have to City at law or equity and shall survive the transactions
contemplated herein and shall survive the termination of this lease agreement.
e) Facility operator. For all purposes, LESSEE shall be deemed the operator of any facility
at the leased land.
f) Hazardous material defined. As used in this lease agreement Hazardous Material is
any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental
Law. Hazardous Material includes any and all material or substances which are defined as "hazardous
waste," "extremely hazardous waste" or a "hazardous substance" under any Environmental Law.
Notwithstanding any statutory petroleum exclusion, for the purposes of this lease agreement the term
Hazardous Material includes, without limitation, petroleum, including erode oil or any fraction thereof,
petroleum soaked absorbent material and other petroleum wastes.
g) Environmental law defined. As used in this lease agreement Environmental Laws
include any and all local, state and federal ordinances, statutes, and regulations, as now in force or as
may be amended from time to time, relating to the protection of human health and the environment, as
well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions
or standards relating to same. Environmental Laws include, by way of example and not as a limitation
of the generality of the foregoing, the Resource Conservation and Recovery Act of 1976, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act,
and the Superfund Amendments and Reauthorization Act of 1986.
18.2-Permits and ReJ)ortin~.
a) Permits required bv other g.overnmental a2encies. LESSEE shall obtain all permits or
approvals required by any applicable law or regulation. Copies of all such permits shall be provided
to CITY prior to LESSEE commencing work under this lease. LESSEE shall promptly make all reports
to any federal, state or local government or agency required by any permit or Environmental Law,
including reports of any spill or discharge of Hazardous Material. The City Manager may order LESSEE
to immediately cease any operations or activities on the leased land if the same is being carried out
without necessary permits, in violation of the terms of any permit or Environmental Law, or contrary to
this lease agreement.
CllY OF SEWARD, ALASKA
RE: YOUNG ~ MORGAN lEASE
Page 11
b) Correspondence with and reports to environmental agencies. LESSEE shall
immediately provide CITY with copies of all correspondence and notice, including copies, of all reports
between LESSEE and any state, federal or local government or agency regulating Hazardous Material
which relates to LESSEE's operations on or use of the leased land.
ARTICLE 19. - ESTOPPEL CERTIFICATES
Either party shall at any time and from time to time upon not less than ten (10) days' prior written
request by the other party, execute, acknowledge, and deliver to such party, or to its designee, a
statement in writing certifying that this lease is unamended and in full force and effect (or, if there has
been any amendment thereof, that the same is in full force and effect as amended and stating the
amendment or amendments), that there are no defaults existing (or, if there is any claimed default,
stating the nature and extent thereof); and stating the dates to which the rent and other charges have
been paid in advance.
ARTICLE 20. - CONDmONS AND COVENANTS.
All the provisions of this lease shall be deemed as running with the land, and shall be construed
to be "conditions" as well as "covenants", as though the words specifically expressing or imparting
covenants and conditions were used in each separate provision.
ARTICLE 21. - NO WAIVER OF BREACH
No failure by either CITY or LESSEE to insist upon the strict performance by the other of any
term, covenant or condition of this lease or to exercise any right or remedy consequent upon a breach
thereof, shall constitute a waiver of any such breach or of such terms, covenant or condition. No waiver
of any breach shall affect or alter this lease, but each and every term, covenant and condition of this lease
shall continue in full force and effect with respect to any other then existing or subsequent breach.
ARTICLE 22. - TIME OF ESSENCE
Time is of the essence of this lease and of each provision.
ARTICLE 73. - 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, unles.s the last day is a Saturday, Sunday or a holiday, and then it
is also excluded.
ARTICLE 24.. - 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.
eln Of SEWARD, ALASKA
I{E: YOUNG & MORGAN lEASE
Page 12
.
.
.
ARTICLE 25. - 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 26. - GOVERNING LAW
This lease shall be governed by, construed and enforced in accordance with the laws of the State
of Alaska.
ARTICLE 'Zl. - PARTIAL INV ALIDlTY
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 28. RELATIONSIDP 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 29. INTERPRETATION
The language in all parts of this lease shall in all cases be simply construed according to its fair
meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the assistance of
attorneys in drafting and reviewing this lease.
ARTICLE 30. NUMBER AND GENDER
In this lease, the neuter gender includes the masculine and the feminine, and the singular number
includes the plural; the word "person" includes corporation, partnership, firm or association wherever
the context so requires.
ARTICLE 31. - MANDATORY AND PERMISSIVE
"Shall", "will" and "agrees" are mandatory; "may" is permissive.
ClIT OF SEWARD, ALASKA
RE: YOUNG ok MORGAN LEASE
Page 13
..i>
;;!
ARTICLE 32. - CAFIlONS
Captions of the Sections and Subsections of this lease are for convenience and reference only, and
the words contained therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or' meaning of the provisions of this lease.
ARTICLE 33. - AMENDMENT
This lease ;, I'ot subject to amendment except in writing executed by both parties hereto.
ARTICLE 34.. - DELIVERY OF NOTICES - METIIOD OF TIME
All notices, demands or requests from one party to another shall be delivered in person or be sent
by mail, certified or registered, postage prepaid, to the addresses stated in ARTICLE 38 and to such other
persons and addresses as either party may designate notice shall be deemed to have been given at the
time of mailing.
ARTICLE 35. - NOTICES
All notices, demands and requests from LESSEE to CITY shall be given to CITY at the following
address:
City Manager
City of Seward
P.O. Box 167
Seward, Alaska 99664
All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the
following address:
Mr. James Morgan, CEO
Young and Morgan Co.
P.O. Box 2229
Seward, Alaska 99664
ARTICLE 36. - CHANGE OF ADDRESS
Each party shall have the right, from time to time, to designate a different address by notice given
in conformity with this Article.
CITY OF SEWARD, ALASKA
RE: YOUNG & MORGAN lEASE
j>age 14
.
.
.
AKllClE 37. - FIRE PROTECI1ON
lESSEE shall at its sole cost, risk and expense provide fire protection to its operations on the
leased land and fire prevention to industry standards for risks to adjacent port fadlities 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.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date first
hereinbefore set forth.
CITY:
CITY OF SEWARD
LESSEE:
'i61:JN6 hrm M6Re~ Cu.
~M.IO Po~8T ~t)"'CT.s
2i;~
INTERIM CITY MANAGER
ArrEST:
APPROVE AS TO FORM:
WOHLFORTH, ARGETSINGER, JOHNSON &; BRECHT
ATIORNEYS FOR THE
CITY OF SEWARD
~f~
TOM KLINKNER
CITY ATIORNEY
(CITY SEAL)
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this 6' day of ~ 191! before me, the undersigned, a Notary
Public in and for the State of Alaska, personally appeared ~""'AnI" D. tn.tUI,..1OJ , known
to me and to me known to be the individual named in and who executed the foregoing document, and
who acknowledged to me that (t)he(y) signed the same freely and voluntarily for the uses and
purposes therein contained.
WITNESS my hand and notarial seal the day and year first hereinabove written:
~ ,/.G&rJJ
Notary Public in and for Alaska
My Commission Expires: :$.1;), -9'1
CITY OF seWARD, ALASKA
RE: YOUNG. MORGAN LEASE
Page lS
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 93-046
PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this
12th day of April, 1993.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
THE CITY OF SEWARD, ALASKA
~ lt0.C~
Dave W. Crane, Mayor
Bencardino, Crane, Darling, Krasnansky, Sieminski, Swartz, White
None
None
None
APPROVED AS TO FORM:'
Wohlforth, Argetsinger, Johnson &
Brecht, Attorneys for the city of Seward,
Alaska
~~~
City Attorney
.
(City Seal)
,
.
.
.
I 7.05.315
P01SLIC lIROl'DT'!'
7.05.315 Location and notice at sale.
The public sale by auction shall take place at a location
within the city limits as selected by the city manager. Notice of
public sale by auction or sealed bid shall be published at least
once in a ne-.paper of general circulation in the city and such
other newspapers as the city manager deems advisable, and such
notice shall be posted in at least three publi~ places within the
city. Both posting and publication of the notice of sale shall be
done at least ten days prior to the date of sale. (Ord. 520, 1984;
Ord. 92-05)
7.05.320 Procedure for sale by sealed bid.
All real property interests ottered tor public sale by sealed
bid may be sold to any person submitting an otfer in writing to the
council. Such ofter shall be submitted in a sealed envelope marked
-Real Property Bid- and must be accompanied by & check or money
order made payable to the city in an amount equal to at least
twenty percent of the amount bid tor residential lots and ten
percent ot the amount bid tor other parcels. (Ord. 520, 1984; Ord.
92-05)
7.05.325 Selection ot successtul bidder(s).
It there is more than one bid, at & public auction or by
sealed bid, tor a particular lot or group ot lots, the lot(s) shall
be sold to the highest bidder(s). The highest bidder(s) shall be
the one(s) whose bid(s) represents the highest total price tor the
property interest (s). In the event that two or more parties submit
high but identical bids, the council may accept the bid Urst
received, or reject all bids. (Ord. 520, 1984; Ord. 92-05)
7.05.330 Resolution acc~tina bids.
After a sale has been conducted by public auction or sealed
bid, the council, by resolution with or without public hearing, may
approve all public sales ot real property based on the bids
received, and shall approve any purchase agreement prior to its
execution by the city. The approval ot any public sale by the
council authorizes the city manager to take all steps and execute
all instruments to complete and close the sale. (Ord. 520, 1984;
Ord. 92-05)
Article 4. Short-Term Lease Neaotiation
7.05.410 City ma"aaer authorized to n~otiated short-term leases
Nothing in this chapter shall prevent the city manager from
negotiating short-te~ leases ot city property subject to council
approval at the next regularly scheduled city council meeting.
Such leases shall not be subject to the public hearing p~ocess.
City of Seward
Supplement No. 92-1
04/92
7 - Ei
o
e
y
PmSL%C PROPD.Tr
I 1.0S.410
shall not exceed one hundred twenty days in length, and shall
contain no provisions tor optional terms. The resolution approv.
such a lease may be signed and adopted immediately provided
lease torm contains a provision stating that the lease is su.bjecl:
to suspension during the tirst thirty days'after passage of the
resolution if a sufficient referendary petition is filed in
accordance with S 4.8 of the city charter. (Ord. 520, 1984; Ord.
, 1988; Ord. 92-05)
Article 5. Encroachments. easements and riahts-of-wav.
7.05.510 Encroachments. easements.and riahts-ot-wav.
A. Subject to applicable provisions ot the Kenai Peninsula
Borough Code, Title 20 Subdivisions, the city manager may, with
regard to city land, negotiate and execute rights-at-way and
easements not exceeding a term ot 20 years, and encroachments for
the life of the encroaching structure, subject to requiring the
private party to:
l. pay an appropriate tee;
2. secure insurance coverage to protect, defend, and
indemnify the city;
3. maintain the property in such a manner as to protect
the public safety and welfare;
4. restore the property at the expiration of tr...'l
agreement; and
5. provide other assurances as deemed appropriate by t._
city manager in order to protect the public interest.
B. The city manager may negotiate and execute the acquisition
of rights-of-way, encroachments and easements necessary for a
utility, public improvement or other public use except the city
council shall, by resolution, approve acquisitions involving cash
considerations or the exchange of real property valued in excess of
$ 10,000.
C. Any other rights-at-way, encroachments and easements shall
be granted or acquired only upon approval of the city council.
D. The city manager may, at the direction of the city council
convey, quitclaim, release, cancel, or otherwise relinquish any
real property easement, right-of-way, permit or license the city
may have or hold for the purpose of installing, constructing, or
maintenance of a public improvement or utility, whenever the
interest is no longer used or useful for that purpose. (Ord.
92-05)
supplement No. 92-1
04/92
City of Sewa' ~
7 - 7
e
I 4.8
The Charter
I 5.:
cedure may not be amended or repealed by the cOUDcil for a period of two years aft.
the date of the election at which it was adopted.
(b) Should two or more Code provisions, which are adopted at the same electic
have conflicting provisions, the one receiving the large8t affirmative vote shall pre
vail.
Sec. 4.8. Council action.
.
The filing with the mayor of a sufficient referendary petition within thirty days
ter the passage of the act of the council to which such petition refers shall automat-
ically suspend the operation thereof, 'pending repeal by the council or final determi-
nation by the electors.
.
Sec. 4.9. Zoninl(.
To provide for the health, safety, and welfare of citizens within the city, the cc
cil shall provide for comprehensive building and zoning regulations.
Sec. 4.10. Port and harbor jurisdiction.
The council shall regulate the use and development of all waters and submerged
lands which are subject to the jurisdiction of the city.
Sec. 4.11. Other municipal services.
The council shall provide for the furnishing of such muniCipal services as it dee
necessary for the protection of the health, safety, welfare and morals of the public.
and, when the interests of the city so require, may authorize plans or agreements f(
reimbursing the city in consideration of furnishing any of such services to tax-exem
persons or agencies, both private and governmental.
.
Chapter 5. Administrative Service.
Sec. 5.1. Council to provide for city administration.
The council shall provide in the Code for the organiZation of the administrative
offices and departments of the city and prescribe their duties and functions.
Sec. 5.2. Emerscency administration.
rn order to asaure continuity of city services and administration in periods of
emergency resulting from war or disaster. the council shall provide in the Code
for the prompt and temporary succession to the powers and duties of administrative
officers and departments when such officers and departments are unable to carry
on their respective powers and dutie8.
.
15
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