FY2008-28 & 28A Accepting The Assignment Of The City Of Kodiak’s Interest In Lot 2 U.S. Survey 2538
KODIAK ISLAND BOROUGH
AGENDA STATEMENT
FEBRUARY 21, 2008 REGULAR MEETING
ITEM NO:13.L
TITLE:
Contract No. FY2008-28 Authorizing the Manager to Enter Into a Long Term Lease With The
State of Alaska Department of Military Affairs for Pool Purposes.
SUMMARY:
Resolution No. FY2008-05 authorized the manager to sign documents allowing the Kodiak
Island Borough to assume the City of Kodiak position as lessee in a 1965 lease with the Alaska
Department of Military Affairs on State Land (a.k.a. Armory) identified for pool purposes.
This new lease involves the same parcel of property that the Borough "assumed" from the City
of Kodiak and will, among other things, extend the term of the old lease from December 2020 to
2062. This new term secures a lona term lease on the site that the new pool will be
constructed and protect the Borouah's financial investment in the facilitv.
The other terms and conditions of the new lease are favorable to the Borough. As an example,
no rent fee will be charged. There are a number of conditions of approval in the new lease that
the National Guard wanted to maintain from the original 1965 lease. Most important to the
National Guard is the ability to utilize the facilities on occasion.
FISCAL NOTES:
Account No.: N\A
Amount Budgeted: N/A
Expenditure Required: N/A
APPROVAL FOR AGENDA: ~~_
------
RECOMMENDED MOTION: Move to approve Contract No. FY2008-28 authorizing the
Manager to enter into a long-term lease with the State of Alaska Department of Military Affairs
for pool purposes.
Introduced by:
Requested by:
Drafted by:
Manager Gifford
Assembly
Community
Development
08/16/2007
08/16/2007
Introduced:
Adopted:
KODIAK ISLAND BOROUGH
RESOLUTION NO. FY2008-05
A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY
ACCEPTING THE ASSIGNMENT OF THE CITY OF KODIAK'S INTEREST IN LOT 2 U.S.
SURVEY 2538 TO THE KODIAK ISLAND BOROUGH FOR POOL PURPOSES
WHEREAS, the City of Kodiak entered into a lease with the State Department of Military
Affairs in 1965 on the property commonly known as the backside of the "armory parcel" legally
described as Lot 2, U.S. Survey 2538 for pool and youth services; and
WHEREAS, the term of the lease was for a period of 55 years and expires in 2020 unless
extended; and
WHEREAS, the construction of a pool and youth center is now a priority of the Kodiak Island
Borough and its citizens with the passage of bonds totaling $14,210,000; and
WHEREAS, the Kodiak Island Borough is in need of "site control" to move forward with this
project; and
WHEREAS, with the passage of City of Kodiak Ordinance No. 1196, the City Council authorized
the City Manager to sign an Assignment and Assumption of Lease to the Kodiak Island Borough;
and
WHEREAS, KIBC 18.10.020 requires the Assembly by resolution to set the terms, conditions
and manner of acquisition of real property or interest therein;
NOW, THEREFORE BE IT RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND
BOROUGH that the Borough accepts the transfer and assumption of a lease of land described
as a portion of Lot 2, U.S. Survey 2538 and more particularly described in the 1965 lease
between the City of Kodiak and the Alaska Department of Military Affairs for pool purposes and
accepts the terms and conditions of said lease; and
BE FURTHER RESOLVED THAT THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
authorizes the manager to sign all documents to complete this transaction.
ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
THIS SIXTEENTH DAY OF AUGUST, 2007
KODIAK ISLAND BOROUGH
ATTEST:
. !
Kodiak Island Borough, Alaska
Resolution No. FY2008-05
Page 1 of 1
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1'H.1S IN1.mN1'lJjl.E of loa..-, made th1e ~_ dC)l of _..--1>-
ues, ktw..n tl,. State 01 ALuRa t1t Us ~t.e, llUM'HNr OF l-a:LIT.AAY
A1rJlIP.S, psrty of the' fint part, here1naftet called 1"UIIIOI:', aud the
CITY OF XDn:tAJC., . 1lII.Jnic1.pal cot'pocad.aa. ~ty of t.be teCcmd put, ha'oJ.ll-
Ilfur called Lallllfl4.
W I.nIUII'n1:
That ~. Le..~>> ~Ject to a.ond.1t1CJa.11 ot Au tlgr...nt No. Dl\..~.s"'l.4..
betlmeu ~ suu tlf 4wka end the Ud,ted Stuee GCMIl'ftr.IIllDt d&tEld ~9
lktobvr 1"7, cloes hereby l....se UDtD the Mid Luan . l:n't&1u parc.a1 of
lw which 111 4 p<lt't1on of U. S. ~ No. U38 lOU.tld. U tllB Ci.~ of
KDdiek, l..1uka, Ttt1rd Din.loa, Sh1:e of A1&aka _ 1le:iDl~e pett1cul....-1y
da$eT1bed .. follow.:
CDrlIlIBDC::L!18 at the N.W. CQfDft of ttla tQart'~ciOD of
SUth ^""QU,O aa4 "J" St.r..t~ tbene8 S. 5)' 1.71 W. (I
lit.tee. of J'l:Il.Ir ~ Sixty ,~. (460'>5 Ch~
N. J4. 43' hi. . d.1IU1uCe of i'QIA' ~ iUty f"~,
(460') to che tnae ~iat of 'b6&iunt.'IlSi ~. 11. )4-
4J' Ii. A dhtGDctl of 111teCl Hu.rldl'et ii.fty 'Nt, (J~g');
tl\flnce N. 55- 17' B. . dhUl\t:.& of '1'wo ~ed teet,.
(200'); tha~e S. J4- 431 E. . cU.stc=- oi Tlu:n
~8Cl FUty r"0IIt.. (350'), theDc. s. S5. 11' II. to
the: r.dnl: of bet1-W1\8 .. .U"UDce ~i 'i.'lro lilmIb:'ed F"~.
(iOO ).
'o.\1.a 10 a rliOt4D8vlat tt'aor; ol 1.aaaI oOOta11UAi 1.51
4I:~" ~ IX lc8e.
TO MVB A~ to lD.D th. w..td docU4Id PI'Ofa1n. t~ a Ul:"m of fUty-
f1va (55) '1~1 cOldl!lC1og 0t1 tbtl .3~t.
d.,- of ~J..;......_ .__---'
19&- a:d 1Wd1ng at ~ o'clock =ld!l:i.aht on the _.i2iJl..._. c.\.8J' of
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1!b.i.. ll'lGSCl U, bClW4Nt!Z', rubjeoet to ~ fQU~ tllnlMl ar.d c:0l:ld1tiona
l~hich the part1es ll.r.to de h&l'ebf &9IM to f1.ILly obIONe. k2ep md pvdo-m:
1.. 'n1e u:.ae~ ~.e$ r.1llll; tIN ~opc:~ ds.scrl.besi benin :1.1 tor tbJI
pw:poee of c:~trucUat\ of a tIU1J1t:LpaUy 0IM8l1 &r1d opunted ew1m-
c.!.n:i; poel, wJ c~tt ~'Quth oent.t'. lI.'ttd t~ no Qr;OOr '{1Urp;lic &1.1I1
the~~.t:y eo lellllM !lhall be limit.ed to tllat uae.
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3. ':bM lA.... 1Ip"881 lbat t.U l.t.1OlI: .ball be heW ~. _
frM frCllll 11..ab1Ut)' of ., Do8IUt'e 1>> l:lftIIleCticlIII with the LN.....
opued.Ol\ of M:Ld ~ poql _ ,.web ~.. ar tt. COIUItz'Qc-
U.- ~~ .-.I that &be ......... eU11 tW,1loC.U cbI:ri.ras the Ufe
of th1, 1UM at, b1, apen.M a PuhUc LtaWl1t1 PcUq protect-
111& &rtf uz:po~ the Stat\) ,., INfM due to tblt f.IIolUq be.1~
lapteD \IPOIl !;aCt ClIIn1lId pl"op__~.
4. 'rbe Le... ap... that U: wUl IUblld.t tc tile Leuor 811 plad
and .pedf1c.at1ou fw the Pf'OpOHd '<<lOaItruc:t:J,aD. of adel pool
_ '1CNtb c:<<mt<< .. eM ... Mall be ap~"'" b1 the x..uor
befo':. U. ... abell be ........ ... tile Le.... tunblrl." .-eee
t.hat tba ~ JaeLl1~ k11<la&. )"0UCh ceder -' ~~
t:I"Q .luaU 'b8 lOlUted .t 1.." ....t;rtlw '..t (75') haca
the ~ Dulld.1I11.
s. 1'be w.-... .... tbat it '11I'111 c:oaa~t at Lta CIlI'n upeDH .
'T:oad for uae 10 1qr... ... """14' to N1d pool lIBel )'GIdh c.aa.t&l'
IlQd. tuch ~ aball Got. bt an ~ pnpwq klqLlls to th.
itat. of Aluk4 exeepc CIll that propsrt)' lacluded 1n thb Leu..
&. Tbe La... aanu that h rill ut ....ip _ ..f.&bt. acq\l1rtd
b7 W. x.ue. w1tl:lour; ftnt o\'Jt.atldns tM vrtttea P*J:IIIlad.on
of tbI t.e.aIr.
7. In cCld1c!..U. of tbe F-'" the Leiter bereb7 II'UU to tbe
. ~ the e:llC 1ua1 vc dlht aat:i opC1Ol1 to UCItt Ol' at_ thi. II
1..... for . 1UnheT tem .f ,.... 1:0 '- ...... 1:11 ~ha peitUA.
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STATE OF ALASKA
DEPARTMENT OF MILITARY AND VETERANS AFFAIRS
ALASKA ARMY NATIONAL GUARD (AKARNG)
P.O. Box 5800
Fort Richardson, Alaska 99505-5802
ADL No. 30488
LEASE AGREEMENT
Effective this 1 sl day of March, 2008, this lease agreement is entered into by the State of Alaska, Department
of Military and Veteran Affairs hereafter referred to as "Lessor," and the Kodiak Island Borough, hereafter
referred to as "Lessee," whether one or more, whose sole addresses for purposes of notification under this
lease agreement are listed in section 23.
The Lessor and the Lessee agree that this lease, including all attachments and documents that are
incorporated in this lease by reference, contains the entire agreement between the parties. and each of the
covenants and conditions in this lease including any attachments will be binding upon the parties and upon
their respective successors and assigns. The Lessor and the Lessee further agree that this lease is
conditioned upon satisfactory performance by the Lessor and the Lessee of all covenants and conditions
contained in this lease.
This lease is subject to all applicable state, federal, and municipal statutes, regulations, and ordinances in
effect on the effective date of this lease, and insofar as is constitutionally permissible, to all statutes,
regulations, and ordinances placed in effect after the effective date of this lease, This lease does not limit the
power of the State of Alaska, its political subdivisions, or the United States of America to enact and enforce
legislation or to adopt and enforce regulations or ordinances affecting, directly or indirectly, the activities of
the Lessee or its agents in connection with this lease or the value of the interest held under this lease This
lease replaces and supplants the December 21, 1965 lease between the State of Alaska and the City of
Kodiak which was assigned to and assumed by the Kodiak Island Borough by the document recorded as
item 2007- 002020-0 recorded with the Kodiak District Recorder.
The Lessor, subject to conditions of an agreement No, DA-95-514-NG-48 between the state of Alaska and
the United States Government dated 29 October 1957, does hereby lease unto the said Lessee a certain
parcel of land which is a portion of Lot 2 of U,S, Survey No. 2538A according to Plat 99-17 located in the City
of Kodiak, Alaska, Third Judicial District, State of Alaska and being more particularly described as follows:
Commencing at the N.W. corner of the intersection of Sixth Avenue and "J" Street;
1. thence S. 550 17' W, a distance of Four Hundred Sixty Feet, (460');
2. thence N. 34043' W, a distance of Four Hundred Sixty Feet, (460') to the true point of
beginning;
3. thence N 34043' W, a distance of Three Hundred Fifty Feet (350');
4. thence N. 550 17' E, a distance of Two Hundred Feet, (200');
1
5. thence S. 34043' E, a distance of Three Hundred Fifty Feed, (350');
6. thence S. 55017' W, to the point of beginning a distance of Two Hundred Feet (200').
This is a rectangular tract of land containing 1.61 acres more of less.
1. Grant. This land lease is effective the 151 day of March, 2008 and is for a 55 year term and will
end at 12 o'clock midnight on the 30th day of April 2062, unless sooner terminated, subject to:
compensation as specified in section 2; the attached development plan approved by the Lessor on
March 1, 2008; and attached stipulations, if any, that are incorporated in and made a part of this
lease, for the following, hereafter referred to as the "leasehold":
a. The Lessee agrees that the property described herein is for the purpose of construction
of a municipally owned and operated swimming pool, and youth center, and for no other
purpose and the property so leased shall be limited to that use.
b. The Lessee agrees that the Lessor shall be held harmless and free from liability of any
nature in connection with the Lessee's operation of said swimming pool and youth
center or the construction on thereof and that the Lessee shall maintain during the life of
this lease at his expense a Public Liability Policy protecting any exposure the State may
suffer due to the facility being located upon State owned property.
c, The Lessee agrees that it will submit to the Lessor all plans and specifications for the
proposed construction of said pool and youth center and the same shall be approved by
the Lessor before the same shall be used and the Lessee further agrees that he
Swimming Facility Building, youth center and parking areas shall be located at least
seventy-five feet (75') from the Armory Building.
d. The Lessee agrees that it will construct at its owned expense a road for use in ingress
and egress to said pool and youth center and such roadway shall not be on the property
belonging to the State of Alaska except on that property included in this Lease.
e. The Lessee agrees that it will not assign any rights acquired by this Lease, without first
obtaining the written permission of the Lessor.
f, In consideration of the premises the Lessor hereby grants to the Lessee the exclusive
right and option to renew or extend this lease for a further term of years to be agreed by
the parties hereto; it being agreed and understood that the option to renew this lease
shall be exercised under the following terms and conditions: The Lessee shall give
notice to the Lessor of its desire to renew this Lease at least six months prior to the
expiration date; it being understood that if the Lessee shall fail to give such notice in
writing then the Lessee shall forfeit its right to exert the option to renew this Lease, at
the option of the Lessor; it also being agreed and understood that in the event the option
rights shall be exercised, the covenants and conditions contained herein shall be
binding on the parties hereto, unless any shall be changed by mutual agreement of the
parties hereto.
g, Lessee further agrees that the Alaska National Guard shall have use of the civic youth
center and swimming pool facility for training purposes during such times as agreed
upon by the Alaska National Guard and the Kodiak Island Borough, At least four hours
each month shall be allotted for exclusive use by the Alaska National Guard for training
purposes,
h. It is mutually agreed between the parties hereto that the lease may be modified or
2
changed by mutual consent
i. The Kodiak Island Borough will allow the AKARNG to use the pool and youth center
parking lot during training activities,
j, The Kodiak Island Borough will construct a stairway and walkway from the pool parking
lot down to the Armory Building level.
Excepting and reserving any general reservations to the Lessor that are required by law and that
may be stated elsewhere in this lease, and the following, which the state reserves for itself and
others:
2. Compensation, The parties agree that their mutual rights and obligations created by this lease
provide fair and adequate consideration for this document. Lessee is not required to pay further rent.
3. Denial of Warrantv, The Lessor makes no warranty, express or implied, nor assumes any liability
whatsoever, regarding the social, economic, or environmental aspects of the leasehold, including,
without limitation, the soil conditions, water drainage, access, natural or artificial hazards that may
exist, or the profitability or fitness of the leasehold for any use. The Lessee represents that the
Lessee has inspected the leasehold and determined that the leasehold is suitable for the use
intended, or has voluntarily declined to do so, and accepts the leasehold "as is" and "where is."
4. Use of Leasehold. Prior to execution of this lease and to commencing use or development of the
leasehold, the Lessee shall submit a development plan for the leasehold to the Lessor and obtain the
Lessor's approval of the plan, Any use or development of the leasehold must be consistent with the
development plan approved by the Lessor. Any proposed revisions to the development plan must be
submitted to the Lessor for approval before any change in use or development occurs. The Lessee
shall use and occupy the leasehold in compliance with the approved development plan and all
applicable laws, regulations, ordinances, and orders that a public authority has put into effect or may
put into effect, including those of a building or zoning authority and those relating to pollution and
sanitation control. The Lessee may not permit any unlawful occupation. business, or trade to be
conducted on the leasehold. The Lessee shall properly locate all activities and improvements on the
leasehold, and may not commit waste of the parcel. The Lessee shall maintain and repair the
leasehold including improvements in a reasonably neat and clean condition, and shall take all
necessary precautions to prevent or suppress grass, brush, or forest fires, and to prevent erosion,
unreasonable deterioration, or destruction of the land or improvements. The Lessee agrees not to
place any aboveground or underground fuel or chemical tanks on the leasehold without the prior
written approval of the Lessor.
5. Encumbrance of Leasehold. The Lessee may not encumber or cloud the Lessor's title to the
leasehold, or any portion of the leasehold, nor enter into any lease, easement, or other obligation of
the Lessor's title without the prior written approval of the Lessor.
6. Assiqnment of Interest. The Lessee may not assign or sublet any interest held under this lease,
including a security interest, without the prior written approval of the Lessor. The Lessor may
approve such assignment or subletting if the Lessor finds it to be in the best interest of the Lessor.
No such assignment or subletting will be effective until approved by the Lessor in writing, and the
assignee agrees to be subject to and governed by the provisions of this lease, any subsequent
amendments to this lease, any additional stipulations, or reappraisal as deemed appropriate by the
Lessor, and all applicable laws, regulations, and ordinances in the same manner as the original
Lessee. No assignment or subletting of the leasehold, or any portion thereof, by the Lessee will
annul the Lessee's obligation to pay the compensation required for the full term of this lease. Except
as provided in this lease, no subdivision of the leasehold interest may occur without the prior written
approval of the Lessor.
7. Payment of Taxes and Assessments, The Lessee shall pay prior to delinquency all taxes and
3
assessments accruing against the leasehold,
8. Condemnation of Leasehold or Improvements, If the whole or any part of the leasehold is taken
by any authorized body or person vested with the power of eminent domain, by negotiation, court
action, or otherwise, the following provisions control:
(1) Taking of the entire leasehold. If all of the leasehold is taken by condemnation, this lease and all
rights of the Lessee will immediately terminate, The Lessor is entitled to all the condemnation
proceeds, except that the Lessee will be paid the portion of the proceeds attributable to the fair
market value, as determined in the condemnation proceedings, of any buildings or improvements
taken that were placed on the condemned leasehold by the Lessee in accordance with the approved
development plan.
(2) Taking of substantial part of the leasehold. If the taking is of a substantial part of the leasehold,
the following rules apply:
(A) If the taking by condemnation reduces the ground area of the leasehold by at least 30
percent or materially affects the use being made by the Lessee of the leasehold, the Lessee
has the right to elect to terminate the lease by written notice to the Lessor not later than 180
days after the date of taking.
(8) If the Lessee elects to terminate, the provisions in subsection (1) of this section govern
the condemned portion of the leasehold and the covenants and conditions of the lease
govern disposal of the remainder of any buildings or improvements made by the Lessee in
accordance with the approved development plan,
(C) If the Lessee does not elect to terminate, the lease continues and the Lessor is entitled
to the full condemnation proceeds except the portion attributable to the fair market value, as
determined in the condemnation proceedings, of any buildings or improvements taken that
were placed on the condemned portion of the leasehold by the Lessee in accordance with
the approved development plan.
(3) Taking of insubstantial part of the leasehold. If the taking by condemnation reduces the ground
area of the leasehold by less than 30 percent and the Lessor determines that the taking is of such an
insubstantial portion that the Lessee's use of the leasehold is not materially affected, the Lessee may
not elect to terminate the lease
9. Valid Existinq Riqhts. This lease is subject to all valid existing rights, including easements,
rights-of-way, reservations, or other interests in land in existence on the date of execution of this
lease.
10, Inspection, The Lessor will have reasonable access to the leasehold for purposes of inspection.
11. Mineral Reservations. No mineral reservations are granted by the issuance of this lease.
12. Surface Resources. Unless otherwise provided by this lease or other written authorization, the
Lessee may not sell or remove from the leasehold any timber, stone, gravel, peatmoss, topsoil, or
any other material valuable for building or commercial purposes. Material required for the
development of the leasehold may be used only in compliance with the approved development plan,
13. Appropriation or Disturbance of Waters. During the term of this lease, the Lessee, with approval
of Lessor, may apply for an appropriation of ground or surface water on the leasehold in accordance
with AS 46.15 and 11 MC 93.060.
14. Acquisition of Riqhts or Interests. Any right or interest acquired during the term of this lease and
accruing to the benefit of the leasehold will remain appurtenant to the leasehold, and may not be
4
severed or transferred from the leasehold without the prior written approval of the Lessor. In the
event of termination or forfeiture of this lease, any such right or interest will vest in the Lessor.
15. Land Alterations Due to Natural or Artificial Causes, The interest described in this lease
constitutes the entire leasehold. If, through natural or artificial causes, accretion or reliction of land
occurs contiguous to the leasehold, the Lessee has no right to occupy or use the accreted land
unless a separate lease is entered with the Lessor with respect to such lands. The rules of law
usually applicable to accretion or reliction of land do not apply to this lease, nor to the interest
described in this lease,
16. Waiver or Forbearance. The receipt of compensation by the Lessor, with or without knowledge
of any default on the part of the Lessee, is not a waiver of any provision of this lease, No failure on
the part of the Lessor to enforce a covenant or condition of this lease, nor the waiver of any right
under this lease by the Lessor, unless in writing, will discharge or invalidate the application of such
covenant or condition. No forbearance or written waiver affects the right of the Lessor to enforce any
covenant or condition in the event of any subsequent default. The receipt of compensation by the
Lessor after termination or any notice of termination will not reinstate, continue, or extend this lease,
or destroy, or in any manner impair the validity of any notice of termination that may have been given
prior to receipt of the compensation, unless specifically stated by the Lessor in writing,
17. Default and Remedies. (a) Time is of the essence in this lease. If the Lessee defaults on the
performance of any of the covenants or conditions of this lease, and the default is not remedied
within 60 days after the Lessor issues written notice of such default to the Lessee and to the holder
of a security interest in the leasehold approved by the Lessor, or within any additional period the
Lessor allows for good cause, the Lessee will be subject to legal or any other administrative action
deemed appropriate by the Lessor, including termination of this lease. The Lessor may, in the notice
of the default or in a separate written notice, state that if the default is not remedied, this lease shall
terminate on a date certain, which shall be at least 60 days after issuance of the notice of default.
Upon the date specified in such notice, unless the default has been remedied, the lease shall expire
automatically without further notice or action by the Lessor and this lease and all rights of the Lessee
under the lease shall terminate, Upon termination of the lease the Lessor shall have an immediate
right to possession of the leasehold and any possession by the Lessee shall be unlawful. It is
specifically agreed that no judicial action shall be necessary to terminate this lease or to allow the
Lessor to retake possession in the event of default by the Lessee. No improvements may be
removed from the leasehold while the lease is in default except with the Lessor's prior written
approval. If this lease is terminated for default, all compensation paid by the Lessee is forfeited to
the Lessor. The Lessor is not liable for any expenditure made or undertaken by the Lessee under
this lease. Any costs or fees, including attorney's fees, reasonably incurred by the Lessor for the
enforcement of this lease, shall be added to the obligations due and payable by the Lessee.
(b) If the Lessee fails to remedy the default within the time allowed in subsection (a) of this section,
the holder of an approved security interest who has received notice under subsection (a) of this
section may remedy the default. The holder shall act within 60 days from the date of receipt of
notice under subsection (a) of this section, or within any additional period the Lessor allows for good
cause.
(c) The Lessor may, at the Lessor's option, following the Lessee's default and failure to remedy, or
after termination of this lease due to such default and failure to remedy, accelerate the unpaid
compensation for the remainder of the term of this lease. The Lessee's obligation to pay such
accelerated rent to the Lessor survives termination of this lease.
(d) If this lease is terminated, or all or any portion of the leasehold is abandoned by the Lessee, the
Lessor may immediately enter, or re-enter and take possession of the leasehold, and without liability
for any damage, remove all persons and property from the leasehold and may, if necessary, use
summary proceedings or an action at law. The words "enter" and "re-enter" as used are not
restricted to their technical legal meaning. Any entry, re-entry, possession, repossession, or
5
dispossession by the Lessor, whether taken with or without judicial action, does not absolve, relieve,
release, or discharge the Lessee, either in whole or part, of any liability under the lease.
(e) The Lessor, upon or at any time after giving written notice of any default, may enter or re-enter
the leasehold to remedy any default by the Lessee or exercise any right given under this lease, all
without the intervention of any court being required. The curing of such default shall not be deemed
for any purpose to be for the benefit of the Lessee.
(f) At any time after termination of this lease, the Lessor may re-Iet the leasehold, or any part thereof,
in the name of the Lessor for such term and on such conditions as the Lessor may determine, and
may collect and receive the compensation therefor. The Lessor shall not be responsible or liable for
failure to re-Iet the leasehold or for any failure to collect any compensation due upon such re-Ietting,
nor shall the Lessor be required to account for or pay to the Lessee any excess compensation
received as a result of such re-Ietting. The Lessee shall be liable for any deficiency, and for all costs,
expenses, and fees incurred by the Lessor arising out of the default, including the Lessor's efforts to
re-Iet the leasehold,
(g) No right or remedy conferred upon or reserved to the Lessor in this lease or by statute, or existing
in law or equity, is intended to be exclusive of any other right or remedy, and each and every right
shall be cumulative.
18. Disposition of Improvements and Chattels after Termination. Any chattels or improvements left
on the leasehold after termination, and at the Lessor's sole option, shall be removed from the
leasehold and the site restored to its original condition at the Lessee's sole expense. The Lessee
shall be liable to the Lessor for any costs, expenses, or damages arising out of the disposition of
improvements not approved by the Lessor, and may be required to pay rent on any improvements or
chattels left on the parcel.
19, Indemnity to Lessor. The Lessee shall indemnify, defend, and hold the Lessor harmless from
and against all claims, demands, judgments, damages, liabilities, penalties, and costs, including
attorney's fees, for loss or damage, including but not limited to property damage, personal injury,
wrongful death, and wage, employment, or worker's compensation claims, arising out of or in
connection with the use or occupancy of the leasehold by the Lessee or by any other person holding
under the Lessee, or at the Lessee's sufferance or invitation; and from any accident or fire on the
leasehold; and from any nuisance made or suffered on the leasehold; and from any failure by the
Lessee to keep the leasehold in a safe and lawful condition consistent with applicable laws,
regulations, ordinances, or orders; and from any assignment, sublease, or conveyance, attempted or
successful, by the Lessee of all or any portion of the leasehold or interest therein contrary to the
covenants and conditions of this lease, The Lessee holds all goods, materials, furniture, fixtures,
equipment, machinery, and other property whatsoever on the parcel at the sole risk of the Lessee,
and shall defend, indemnify and hold the Lessor harmless from any claim of loss or damage by any
cause whatsoever, including claims by third parties,
20. Insurance, If required by the Lessor, the Lessee shall obtain insurance in an amount
determined by the Lessor to be sufficient. The Lessor shall be named as an additional insured party
of any such insurance. The types and amount of insurance shall be specified in the attached
stipulations made a part of this lease agreement and may be adjusted periodically, The Lessee shall
maintain that insurance as long as required by the Lessor. Any insurance acquired by the Lessee for
the purpose of providing insurance coverage under this lease must be issued by an insurer
authorized to do business in the State of Alaska under the provisions of AS 21.09.010 and AS
21,27,010 for the type of policy being written.
21. Environmental Compliance. (a) The Lessee shall, at the Lessee's own expense, comply with all
existing and hereafter enacted environmental responsibility laws ("Environmental Laws"). The
Lessee shall, at the Lessee's own expense, make all submissions to, provide all information to, and
comply with all requirements of the appropriate governmental authority (the "Authority") under the
6
Environmental Laws.
(b) Should the Authority require that a remedial action plan be prepared and that a remedial action
be undertaken because of the presence of, or any disposal, release, spill, or discharge, or
threatened disposal, release, spill, or discharge of or contamination by hazardous materials at the
leasehold that occurs during the term of this lease or arises out of or in connection with the Lessee's
use or occupancy of the land described in section 1 of this lease, then the Lessee shall, at the
Lessee's own expense, prepare and submit the required plans and financial assurances and carry
out the approved plans. The Lessee's obligations under this section shall arise if there is any event
or occurrence at the leasehold during the term of this lease, or arising out of or in connection with the
Lessee's use or occupancy of the land described in section 1 of this lease, that requires compliance
with the Environmental Laws.
(c) At no expense to the Lessor, the Lessee shall promptly provide all information requested by the
Lessor for preparation of affidavits or other documents required by the Lessor to determine the
applicability of the Environmental Laws to the leasehold, and shall sign the affidavits promptly when
requested to do so by the Lessor,
(d) The Lessee shall indemnify, defend, and hold harmless the Lessor from all fines, penalties, suits,
judgments, procedures, claims, demands, liabilities, settlements, and actions of any kind arising out
of or in any way connected with the presence of or any disposal, release, spill, or discharge or any
threatened disposal, release, spill, or discharge of or contamination by hazardous materials at the
leasehold that occurs during the term of the lease or arises out of or in connection with the Lessee's
use or occupancy of the land described in this lease; and from all fines, penalties, suits, judgments,
procedures, claims, demands, liabilities, settlements, and actions of any kind arising out of the
Lessee's failure to provide all information, make all submissions, and take all steps required by the
Authority under the Environmental Laws or any other law concerning any spill, discharge, or
contamination that occurs during the term of this lease or arises out of or in connection with the
Lessee's use or occupancy of the land described in this lease,
(e) The Lessee agrees that it will not discharge or dispose of or suffer the discharge or disposal of
any petroleum products, gasoline, hazardous chemicals, or hazardous materials into the
atmosphere, ground, wastewater disposal system, sewer system, or any body of water.
(f) In any court action or administrative proceeding, in addition to all other applicable presumptions, it
shall be rebuttably presumed that any environmental contamination of the leasehold (i) has been
released on the leasehold; (ii) has resulted from acts or omissions of the Lessee or its agents; and
(iii) has occurred during the term of this lease. The Lessee has the burden of rebutting the
presumptions by clear and convincing evidence.
(g) This section of this lease does not in any way alter the Lessor's powers and rights or the Lessee's
duties and liabilities under Title 46 (or its successor) of the Alaska Statutes or other state, federal, or
municipal statutes, regulations, or ordinances. For example, notwithstanding the provisions of this
lease, the Lessor shall not be precluded from claiming under AS 46.03.822 that the Lessee is strictly
liable, jointly and severally, for damages and costs incurred by the Lessor for clean up of
contamination on the leasehold. The obligations and provisions of this section 26 shall survive the
termination of this lease.
(h) As used in this lease, the term "hazardous materials" means any hazardous or toxic substance,
material, or waste that is or becomes regulated by any municipal governmental authority, the State of
Alaska, or the United States government.
22. Surrender of Leasehold. Upon the expiration, termination, or cancellation of this lease, the
Lessee shall peacefully leave and deliver up all of the leasehold in good, sanitary, and marketable
condition, order, and repair.
7
23. Notices. (a) Any notice or demand by the Lessee will be made by hand delivery or by certified
mail, postage prepaid, addressed as follows (or to a new address that the Lessor designates in
writing), with delivery occurring upon receipt by the Lessor:
To the Lessor:
Department of Military and Veterans Affairs
Alaska Army National Guard (AKARNG)
P.O, Box 5800
Fort Richardson, Alaska 99505-5802
Attn: Commanding Officer
(b) Any notice or demand by the Lessor will be issued by mail, the notice or demand will be
addressed as follows (or to a new address that the Lessee or its successor in interest designates in
writing):
To the Lessee:
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
Attn: Borough Manager
The Lessor will issue a copy of any such notice or demand to each holder of a security interest in the
leasehold whose assignment has been approved by the Lessor under section 6 of this lease. Any
security interest not approved as provided in section 6 is insufficient to require notice by the Lessor.
(c) Any notice or demand regarding the lease must be in writing and will be complete if given as set
out above.
24. Modification, This lease may be modified or amended only by a document signed by both
parties. Any purported amendment or modification has no legal effect until placed in writing and
signed by both parties and approved by the Department of Natural Resources, Division of Mining,
Land and Water.
25. Choice of Law. The lessee confers personal jurisdiction on the courts of the State of Alaska for
any litigation under this lease,
26. Severabilitv of Clauses of Lease Aareement. If any clause or provision of this lease is, in a final
judicial proceeding, determined illegal, invalid, or unenforceable under present or future laws, then
the Lessor and the Lessee agree that the remainder of this lease will not be affected, and in lieu of
each clause or provision of this lease that is illegal, invalid, or unenforceable, there will be added as a
part of this lease a clause or provision as similar in terms to the illegal, invalid, or unenforceable
clause or provision as may be possible, legal, valid, and enforceable.
By signing this lease, the Lessor and the Lessee agree to be bound by its provisions.
LESSEE:
Rick L. Gifford, Manager, Kodiak Island Borough
8
STATE OF ALASKA )
) ss.
Judicial District )
THIS IS TO CERTIFY THAT ON THIS day of , before
me personally appeared , known to me to be the person named and who
signed the foregoing lease and acknowledged voluntarily signing the same,
Notary Public in and for the State of Alaska
My commission expires:
LESSOR:
BG Thomas H. Katkus, Commander
Alaska Army National Guard
STATE OF ALASKA )
) ss.
Judicial District )
THIS IS TO CERTIFY THAT ON THIS day of , before
me personally appeared , known to me to be the person named and who
signed the foregoing lease and acknowledged voluntarily signing the same.
Notary Public in and for the State of Alaska
My commission expires:
APPROVED:
Dick Mylius Director,
Division of Mining, Land and Water
STATE OF ALASKA )
) ss.
Judicial District )
THIS IS TO CERTIFY THAT ON THIS day of , before
me personally appeared , of the Division of Mining, Land and Water of the
Department of Natural Resources of the State of Alaska, who executed the foregoing lease on behalf of the
9
State of Alaska, and who is fully authorized by the State to do so.
Notary Public in and for the State of Alaska
My commission expires:
Recorder's Office: Return the recorded document to:
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK 99615
OKL - 261
10
RECEiVED
JUN 27 2008
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2008-000919-0
Recording Oist: 303 - Kodiak
5/21/2008 10:12 AM Pages: 1 of 10
Kodiak Island Borough
ASSESSING DEPT.
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cc~r~
STATE OF ALASKA
DEPARTMENT OF MIUT ARY AND VETERANS AFFAIRS
ALASKA ARMY NATIONAL GUARD (AKARNG)
P.O. Box 5800
Fort Richardson, Alaska 99505-5802
ADL No. 30488
LEASE AGREEMENT
Effective this 1st day of April, 2008, this lease agreement is entered into by the State of Alaska, Department of
Military and Veteran Affairs hereafter referred to as "Lessor," and the Kodiak Island Borough, hereafter
referred to as "Lessee," whether one or more, whose sole addresses for purposes of notification under this
lease agreement are listed in section 23.
The Lessor and the Lessee agree that this lease, including all attachments and documents that are
incorporated in this lease by reference, contains the entire agreement between the parties, and each of the
covenants and conditions in this lease including any attachments will be binding upon the parties and upon
their respective successors and assigns. The Lessor and the Lessee further agree that this lease is
conditioned upon satisfactory performance by the Lessor and the Lessee of all covenants and conditions
contained in this lease,
This lease is subject to all applicable state, federal, and municipal statutes, regulations, and ordinances in
effect on the effective date of this lease, and insofar as is constitutionally permissible, to all statutes,
regulations, and ordinances placed in effect after the effective date of this lease. This lease does not limit the
power of the State of Alaska, its political subdivisions, or the United States of America to enact and enforce
legislation or to adopt and enforce regulations or ordinances affecting, directly or indirectly, the activities of
the Lessee or its agents in connection with this lease or the value of the interest held under this lease This
lease replaces and supplants the December 21, 1965 lease between the State of Alaska and the City of
Kodiak which was assigned to and assumed by the Kodiak Island Borough by the document recorded as
item 2007- 002020-0 recorded with the Kodiak District Recorder.
The Lessor, subject to conditions of an agreement No. DA-95-514-NG-48 between the state of Alaska and
the United States Government dated 29 October 1957, does hereby lease unto the said Lessee a certain
parcel of land which is a portion of Lot 2 of U.S, Survey No. 2538A according to Plat 99-17 located in the City
of Kodiak, Alaska, Third Judicial District, State of Alaska and being more particularly described as follows:
Commencing at the N.W. corner of the intersection of Sixth Avenue and "J" Street;
1. thence S. 550 17' W, a distance of Four Hundred Sixty Feet, (460');
2. thence N. 34043' W, a distance of Four Hundred Sixty Feet, (460') to the true point of
beginning;
3. thence N 340 43' W, a distance of Three Hundred Fifty Feet (350');
4. thence N. 550 17' E, a distance of Two Hundred Feet, (200');
1
5. thence S. 34043' E, a distance of Three Hundred Fifty Feed, (350');
6. thence S. 550 17' W, to the point of beginning a distance of Two Hundred Feet (200').
This is a rectangular tract of land containing 1.61 acres more of less.
1. Grant. This land lease is effective the 1 st day of April 2008 and is for a 55 year term and will end
at 12 o'clock midnight on the 1 st day of April 2062, unless sooner terminated, subject to:
compensation as specified in section 2; the attached development plan approved by the Lessor on
April 1, 2008; and attached stipulations, if any, that are incorporated in and made a part of this lease,
for the following, hereafter referred to as the "leasehold":
a. The Lessee agrees that the property described herein is for the purpose of construction
of a municipally owned and operated swimming pool, and youth center, and for no other
purpose and the property so leased shall be limited to that use.
b. The Lessee agrees that the Lessor shall be held harmless and free from liability of any
nature in connection with the Lessee's operation of said swimming pool and youth
center or the construction on thereof and that the Lessee shall maintain during the life of
this lease at his expense a Public Liability Policy protecting any exposure the State may
suffer due to the facility being located upon State owned property.
c. The Lessee agrees that it will submit to the Lessor all plans and specifications for the
proposed construction of said pool and youth center and the same shall be approved by
the Lessor before the same shall be used and the Lessee further agrees that he
Swimming Facility Building, youth center and parking areas shall be located at least
seventy-five feet (75') from the Armory Building,
d. The Lessee agrees that it will construct at its owned expense a road for use in ingress
and egress to said pool and youth center and such roadway shall not be on the property
belonging to the State of Alaska except on that property included in this Lease.
e. The Lessee agrees that it will not assign any rights acquired by this Lease, without first
obtaining the written permission of the Lessor.
f. In consideration of the premises the Lessor hereby grants to the Lessee the exclusive
right and option to renew or extend this lease for a further term of years to be agreed by
the parties hereto; it being agreed and understood that the option to renew this lease
shall be exercised under the following terms and conditions: The Lessee shall give
notice to the Lessor of its desire to renew this Lease at least six months prior to the
expiration date; it being understood that if the Lessee shall fail to give such notice in
writing then the Lessee shall forfeit its right to exert the option to renew this Lease, at
the option of the Lessor; it also being agreed and understood that in the event the option
rights shall be exercised, the covenants and conditions contained herein shall be
binding on the parties hereto, unless any shall be changed by mutual agreement of the
parties hereto.
g. Lessee further agrees that the Alaska National Guard shall have use of the civic youth
center and swimming pool facility for training purposes during such times as agreed
upon by the Alaska National Guard and the Kodiak Island Borough. At least four hours
each month shall be allotted for exclusive use by the Alaska National Guard for training
purposes.
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2008-000919..0
h. It is mutually agreed between the parties hereto that the lease may be modified or
changed by mutual consent
i. The Kodiak Island Borough. will allow the AKARNG to use the pool and youth center
parking lot during training activities,
j. The Kodiak Island Borough will construct a stairway and walkway from the pool parking
lot down to the Armory Building level.
Excepting and reserving any general reservations to the Lessor that are required by law and that
may be stated elsewhere in this lease, and the following, which the state reserves for itself and
others:
2, Compensation, The parties agree that their mutual rights and obligations created by this lease
provide fair and adequate consideration for this document. Lessee is not required to pay further rent.
3, Denial of Warrantv. The Lessor makes no warranty, express or implied, nor assumes any liability
whatsoever, regarding the social, economic, or environmental aspects of the leasehold, including,
without limitation, the soil conditions, water drainage, access, natural or artificial hazards that may
exist, or the profitability or fitness of the leasehold for any use. The Lessee represents that the
Lessee has inspected the leasehold and determined that the leasehold is suitable for the use
intended, or has voluntarily declined to do so, and accepts the leasehold "as is" and "where is,"
4. Use of Leasehold. Prior to execution of this lease and to commencing use or development of the
leasehold, the Lessee shall submit a development plan for the leasehold to the Lessor and obtain the
Lessor's approval of the plan. Any use or development of the leasehold must be consistent with the
development plan approved by the Lessor. Any proposed revisions to the development plan must be
submitted to the Lessor for approval before any change in use or development occurs. The Lessee
shall use and occupy the leasehold in compliance with the approved development plan and all
applicable laws, regulations, ordinances, and orders that a public authority has put into effect or may
put into effect, including those of a building or zoning authority and those relating to pollution and
sanitation control. The Lessee may not permit any unlawful occupation, business, or trade to be
conducted on the leasehold. The Lessee shall properly locate all activities and improvements on the
leasehold, and may not commit waste of the parcel. The Lessee shall maintain and repair the
leasehold including improvements in a reasonably neat and clean condition, and shall take all
necessary precautions to prevent or suppress grass, brush, or forest fires, and to prevent erosion,
unreasonable deterioration, or destruction of the land or improvements. The Lessee agrees not to
place any aboveground or underground fuel or chemical tanks on the leasehold without the prior
written approval of the Lessor.
5. Encumbrance of Leasehold. The Lessee may not encumber or cloud the Lessor's title to the
leasehold, or any portion of the leasehold, nor enter into any lease, easement, or other obligation of
the Lessor's title without the prior written approval of the Lessor.
6. Assiqnment of Interest. The Lessee may not assign or sublet any interest held under this lease,
including a security interest, without the prior written approval of the Lessor, The Lessor may
approve such assignment or subletting if the Lessor finds it to be in the best interest of the Lessor.
No such assignment or subletting will be effective until approved by the Lessor in writing, and the
assignee agrees to be subject to and governed by the provisions of this lease, any subsequent
amendments to this lease, any additional stipulations, or reappraisal as deemed appropriate by the
Lessor, and all applicable laws, regulations, and ordinances in the same manner as the original
Lessee. No assignment or subletting of the leasehold, or any portion thereof, by the Lessee will
annul the Lessee's obligation to pay the compensation required for the full term of this lease. Except
as provided in this lease, no subdivision of the leasehold interest may occur without the prior written
approval of the Lessor.
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7. Payment of Taxes and Assessments, The Lessee shall pay prior to delinquency all taxes and
assessments accruing against the leasehold,
8, Condemnation of Leasehold or Improvements. If the whole or any part of the leasehold is taken
by any authorized body or person vested with the power of eminent domain, by negotiation, court
action, or otherwise, the fol/owing provisions control:
(1) Taking of the entire leasehold. If all of the leasehold is taken by condemnation, this lease and all
rights of the Lessee will immediately terminate. The Lessor is entitled to all the condemnation
proceeds, except that the Lessee will be paid the portion of the proceeds attributable to the fair
market value, as determined in the condemnation proceedings, of any buildings or improvements
taken that were placed on the condemned leasehold by the Lessee in accordance with the approved
development plan.
(2) Taking of substantial part of the leasehold, If the taking is of a substantial part of the leasehold,
the following rules apply:
(A) If the taking by condemnation reduces the ground area of the leasehold by at least 30
percent or materially affects the use being made by the Lessee of the leasehold, the Lessee
has the right to elect to terminate the lease by written notice to the Lessor not later than 180
days after the date of taking.
(8) If the Lessee elects to terminate, the provisions in subsection (1) of this section govern
the condemned portion of the leasehold and the covenants and conditions of the lease
govern disposal of the remainder of any buildings or improvements made by the Lessee in
accordance with the approved development plan.
(C) If the Lessee does not elect to terminate, the lease continues and the Lessor is entitled
to the full condemnation proceeds except the portion attributable to the fair market value, as
determined in the condemnation proceedings, of any buildings or improvements taken that
were placed on the condemned portion of the leasehold by the Lessee in accordance with
the approved development plan,
(3) Taking of insubstantial part of the leasehold. If the taking by condemnation reduces the ground
area of the leasehold by less than 30 percent and the Lessor determines that the taking is of such an
insubstantial portion that the Lessee's use of the leasehold is not materially affected, the Lessee may
not elect to terminate the lease
9. Valid Existinq Riqhts. This lease is subject to all valid existing rights, including easements,
rights-of-way, reservations, or other interests in land in existence on the date of execution of this
lease.
10. Inspection. The Lessor will have reasonable access to the leasehold for purposes of inspection.
11. Mineral Reservations. No mineral reservations are granted by the issuance of this lease.
12. Surface Resources. Unless otherwise provided by this lease or other written authorization, the
Lessee may not sell or remove from the leasehold any timber, stone, gravel, peatmoss, topsoil, or
any other material valuable for building or commercial purposes, Material required for the
development of the leasehold may be used only in compliance with the approved development plan,
13, Appropriation or Disturbance of Waters. During the term of this lease, the Lessee, with approval
of Lessor, may apply for an appropriation of ground or surface water on the leasehold in accordance
with AS 46.15 and 11 MC 93,060.
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14, Acquisition of Riqhts or Interests. Any right or interest acquired during the term of this lease and
accruing to the benefit of the leasehold will remain appurtenant to the leasehold, and may not be
severed or transferred from the leasehold without the prior written approval of the Lessor, In the
event of termination or forfeiture of this lease, any such right or interest will vest in the Lessor.
15. Land Alterations Due to Natural or Artificial Causes. The interest described in this lease
constitutes the entire leasehold. If, through natural or artificial causes, accretion or reliction of land
occurs contiguous to the leasehold, the Lessee has no right to occupy or use the accreted land
unless a separate lease is entered with the Lessor with respect to such lands. The rules of law
usually applicable to accretion or reliction of land do not apply to this lease, nor to the interest
described in this lease.
16. Waiver or Forbearance. The receipt of compensation by the Lessor, with or without knowledge
of any default on the part of the Lessee, is not a waiver of any provision of this lease. No failure on
the part of the Lessor to enforce a covenant or condition of this lease, nor the waiver of any right
under this lease by the Lessor, unless in writing, will discharge or invalidate the application of such
covenant or condition. No forbearance or written waiver affects the right of the Lessor to enforce any
covenant or condition in the event of any subsequent default. The receipt of compensation by the
Lessor after termination or any notice of termination will not reinstate, continue, or extend this lease,
or destroy, or in any manner impair the validity of any notice of termination that may have been given
prior to receipt of the compensation, unless specifically stated by the Lessor in writing.
17. Default and Remedies. (a) Time is of the essence in this lease, If the Lessee defaults on the
performance of any of the covenants or conditions of this lease, and the default is not remedied
within 60 days after the Lessor issues written notice of such default to the Lessee and to the holder
of a security interest in the leasehold approved by the Lessor, or within any additional period the
Lessor allows for good cause, the Lessee will be subject to legal or any other administrative action
deemed appropriate by the Lessor, including termination of this lease. The Lessor may, in the notice
of the default or in a separate written notice, state that if the default is not remedied, this lease shall
terminate on a date certain, which shall be at least 60 days after issuance of the notice of default.
Upon the date specified in such notice, unless the default has been remedied, the lease shall expire
automatically without further notice or action by the Lessor and this lease and all rights of the Lessee
under the lease shall terminate. Upon termination of the lease the Lessor shall have an immediate
right to possession of the leasehold and any possession by the Lessee shall be unlawful. It is
specifically agreed that no judicial action shall be necessary to terminate this lease or to allow the
Lessor to retake possession in the event of default by the Lessee. No improvements may be
removed from the leasehold while the lease is in default except with the Lessor's prior written
approval. If this lease is terminated for default, all compensation paid by the Lessee is forfeited to
the Lessor. The Lessor is not liable for any expenditure made or undertaken by the Lessee under
this lease, Any costs or fees, including attorney's fees, reasonably incurred by the Lessor for the
enforcement of this lease, shall be added to the obligations due and payable by the Lessee.
(b) If the Lessee fails to remedy the default within the time allowed in subsection (a) of this section,
the holder of an approved security interest who has received notice under subsection (a) of this
section may remedy the default. The holder shall act within 60 days from the date of receipt of
notice under subsection (a) of this section, or within any additional period the Lessor allows for good
cause.
(c) The Lessor may, at the Lessor's option, following the Lessee's default and failure to remedy, or
after termination of this lease due to such default and failure to remedy, accelerate the unpaid
compensation for the remainder of the term of this lease, The Lessee's obligation to pay such
accelerated rent to the Lessor survives termination of this lease.
(d) If this lease is terminated, or all or any portion of the leasehold is abandoned by the Lessee, the
Lessor may immediately enter, or re-enter and take possession of the leasehold, and without liability
for any damage, remove all persons and property from the leasehold and may, if necessary, use
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summary proceedings or an action at law, The words "enter" and "re-enter" as used are not
restricted to their technical legal meaning, Any entry, re-entry, possession, repossession, or
dispossession by the Lessor, whether taken with or without judicial action, does not absolve, relieve,
release, or discharge the Lessee, either in whole or part, of any liability under the lease,
(e) The Lessor, upon or at any time after giving written notice of any default, may enter or re-enter
the leasehold to remedy any default by the Lessee or exercise any right given under this lease, all
without the intervention of any court being required. The curing of such default shall not be deemed
for any purpose to be for the benefit of the Lessee,
(f) At any time after termination of this lease, the Lessor may re-Iet the leasehold, or any part thereof,
in the name of the Lessor for such term and on such conditions as the Lessor may determine, and
may collect and receive the compensation therefor. The Lessor shall not be responsible or liable for
failure to re-Iet the leasehold or for any failure to collect any compensation due upon such re-Ietting,
nor shall the Lessor be required to account for or pay to the Lessee any excess compensation
received as a result of such re-Ietting, The Lessee shall be liable for any deficiency, and for all costs,
expenses, and fees incurred by the Lessor arising out of the default, including the Lessor's efforts to
re-Iet the leasehold.
(g) No right or remedy conferred upon or reserved to the Lessor in this lease or by statute, or existing
in law or equity, is intended to be exclusive of any other right or remedy, and each and every right
shall be cumulative.
18, Disposition of Improvements and Chattels after Termination. Any chattels or improvements left
on the leasehold after termination, and at the Lessor's sole option, shall be removed from the
leasehold and the site restored to its original condition at the Lessee's sole expense, The Lessee
shall be liable to the Lessor for any costs, expenses, or damages arising out of the disposition of
improvements not approved by the Lessor, and may be required to pay rent on any improvements or
chattels left on the parcel.
19. Indemnitv to Lessor. The Lessee shall indemnify, defend, and hold the Lessor harmless from
and against all claims, demands, judgments, damages, liabilities, penalties, and costs, including
attorney's fees, for loss or damage, including but not limited to property damage, personal injury,
wrongful death, and wage, employment, or worker's compensation claims, arising out of or in
connection with the use or occupancy of the leasehold by the Lessee or by any other person holding
under the Lessee, or at the Lessee's sufferance or invitation; and from any accident or fire on the
leasehold; and from any nuisance made or suffered on the leasehold; and from any failure by the
Lessee to keep the leasehold in a safe and lawful condition consistent with applicable laws,
regulations, ordinances, or orders; and from any assignment, sublease, or conveyance, attempted or
successful, by the Lessee of all or any portion of the leasehold or interest therein contrary to the
covenants and conditions of this lease. The Lessee holds all goods, materials, furniture, fixtures,
equipment, machinery, and other property whatsoever on the parcel at the sole risk of the Lessee,
and shall defend, indemnify and hold the Lessor harmless from any claim of loss or damage by any
cause whatsoever, including claims by third parties,
20, Insurance. If required by the Lessor, the Lessee shall obtain insurance in an amount
determined by the Lessor to be sufficient. The Lessor shall be named as an additional insured party
of any such insurance. The types and amount of insurance shall be specified in the attached
stipulations made a part of this lease agreement and may be adjusted periodically. The Lessee shall
maintain that insurance as long as required by the Lessor. Any insurance acquired by the Lessee for
the purpose of providing insurance coverage under this lease must be issued by an insurer
authorized to do business in the State of Alaska under the provisions of AS 21.09.010 and AS
21.27.010 for the type of policy being written,
21, Environmental Compliance. (a) The Lessee shall, at the Lessee's own expense, comply with all
existing and hereafter enacted environmental responsibility laws ("Environmental Laws"), The
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Lessee shall, at the Lessee's own expense, make all submissions to, provide all information to, and
comply with all requirements of the appropriate governmental authority (the "Authority") under the
Environmental Laws,
(b) Should the Authority require that a remedial action plan be prepared and that a remedial action
be undertaken because of the presence of, or any disposal, release, spill, or discharge, or
threatened disposal, release, spill, or discharge of or contamination by hazardous materials at the
leasehold that occurs during the term of this lease or arises out of or in connection with the Lessee's
use or occupancy of the land described in section 1 of this lease, then the Lessee shall, at the
Lessee's own expense, prepare and submit the required plans and financial assurances and carry
out the approved plans. The Lessee's obligations under this section shall arise if there is any event
or occurrence at the leasehold during the term of this lease, or arising out of or in connection with the
Lessee's use or occupancy of the land described in section 1 of this lease, that requires compliance
with the Environmental Laws.
(c) At no expense to the Lessor, the Lessee shall promptly provide all information requested by the
Lessor for preparation of affidavits or other documents required by the Lessor to determine the
applicability of the Environmental Laws to the leasehold, and shall sign the affidavits promptly when
requested to do so by the Lessor.
(d) The Lessee shall indemnify, defend, and hold harmless the Lessor from all fines, penalties, suits,
judgments, procedures, claims, demands, liabilities, settlements, and actions of any kind arising out
of or in any way connected with the presence of or any disposal, release, spill, or discharge or any
threatened disposal, release, spill, or discharge of or contamination by hazardous materials at the
leasehold that occurs during the term of the lease or arises out of or in connection with the Lessee's
use or occupancy of the land described in this lease; and from all fines, penalties, suits, judgments,
procedures, claims, demands, liabilities, settlements, and actions of any kind arising out of the
Lessee's failure to provide all information, make all submissions, and take all steps required by the
Authority under the Environmental Laws or any other law concerning any spill, discharge, or
contamination that occurs during the term of this lease or arises out of or in connection with the
Lessee's use or occupancy of the land described in this lease,
(e) The Lessee agrees that it will not discharge or dispose of or suffer the discharge or disposal of
any petroleum products, gasoline, hazardous chemicals, or hazardous materials into the
atmosphere, ground, wastewater disposal system, sewer system, or any body of water.
(f) In any court action or administrative proceeding, in addition to all other applicable presumptions, it
shall be rebuttably presumed that any environmental contamination of the leasehold (i) has been
released on the leasehold; (ii) has resulted from acts or omissions of the Lessee or its agents; and
(iii) has occurred during the term of this lease, The Lessee has the burden of rebutting the
presumptions by clear and convincing evidence,
(g) This section of this lease does not in any way alter the Lessor's powers and rights or the Lessee's
duties and liabilities under Title 46 (or its successor) of the Alaska Statutes or other state, federal, or
municipal statutes, regulations, or ordinances, For example, notwithstanding the provisions of this
lease, the Lessor shall not be precluded from claiming under AS 46,03.822 that the Lessee is strictly
liable, jointly and severally, for damages and costs incurred by the Lessor for clean up of
contamination on the leasehold. The obligations and provisions of this section 26 shall survive the
termination of this lease.
(h) As used in this lease, the term "hazardous materials" means any hazardous or toxic substance,
material, or waste that is or becomes regulated by any municipal governmental authority, the State of
Alaska, or the United States government.
22. Surrender of Leasehold. Upon the expiration, termination, or cancellation of this lease, the
Lessee shall peacefully leave and deliver up all of the leasehold in good, sanitary, and marketable
7
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condition, order, and repair.
23. tJotic~. (a) Any notice or demand by the Lessee Will be made by hand delivery or by certified
mait, postage prepaid, addressed as follows (or to a new address that the Lessor deSIgnates m
Writing), With delivery OCCulTing uPon receipt by the LeSsor;
To the Lessor:
(b) Any notice or demand by the Lessor witt be iSSUed by mail, the notice or demand Witt be
addressed as follows (or to a new address that the LeSsee Or its succesSor in interest designates in
Writing):
Department of Military and Veterans Affairs
Alaska Army National GUard (AKARNG)
P.O. Box 5800
Fort Richardson, Alaska 99505-5802
Attn: Commanding Officer
To the Lessee:
(c) Any notice or demand regarding the lease must be in Writing and Will be complete if given as set
out above.
The Lessor Will iSsue a COpy of any Such notice Or demand to each hotder of a security interest in the
teasehotd whose assignment has been apProved by the LeSsor under section 6 of this lease. Any
security interest not approved as prOVided in section 6 is inSUffiCient to require notice by the LeSsor.
KOdiak Island Borough
710 Mill Bay Road
KOdiak, Alaska 99615
Attn: Borough Manager
24. MOdificatiQfJ.. This lease may be modified or amended only by a dOcument signed by both
parties. Any purported amendment or modification has no tegal effect untit placed in writing and
signed by both parties and approved by the Department of Natural Resources, Division of Mining,
Land and Water,
25. Qhoice of ~. The tessee confers Personat jurisdiction on the COurts of the State of Ataska for
any litigation under this lease.
By signing this lease, the LeSSor and the Lessee agree to be bound by its prOVisions.
26. Severabilit of Ctauses of Lease A reement. if any ctause or ProViSion of this lease is, in a final
)udiciat prOCeeding, determined ittegai, invalid, Or unenforceable under present or future laws, then
the LeSsor and the LeSsee agree that the remainder of this tease Witt not be affected, and in lieu of
each ciause Or prOVision of this lease that is ittegal, Invalid, or unenforceable, there Will be added as a
part of this lease a clause or ProViSion as similar In terms to the ittegat, invalid, or unenforceable
clause Or prOVision as may be Possibte, tegat, valid, and enforceabte.
8
1IIIIIIII018111P81 HID
8 of 'In
condition, order, and repair.
23, Notices. (a) Any notice or demand by the Lessee will be made by hand delivery or by certified
mail, postage prepaid, addressed as follows (or to a new address that the Lessor designates in
writing), with delivery occurring upon receipt by the Lessor:
To the Lessor:
Department of Military and Veterans Affairs
Alaska Army National Guard (AKARNG)
P.O, Box 5800
Fort Richardson, Alaska 99505-5802
Attn: Commanding Officer
i
.~
(b) Any notice or demand by the Lessor will be issued by mail, the notice or demand will be
addressed as follows (or to a new address that the Lessee or its successor ia interest designates in
~~: ~
To the Lessee:
Koctlak Island Borough
710~i11 Bay Road
Kod~k, Ala,skil 99615
Attn:~. oroliphfV1anager
!( .i
i; ,
The Lessor will issue ". COPlbf ~my such notice or demand to each holder of a security interest in the
,. aj..
leasehold whose assi . ment has been approved by the Lessor under section 6 of this lease. Any
security interest not ap ... oved as provided in section 6 is insufficient to require notice by the Lessor.
:ft.
(c) Any notice or demand regarding the lease must be in writing and will be complete if given as set
out above.
~...
24, Modification, This lease may be modified or amended only by a document signed by both
parties. Any purported amendment or modification has no legal effect until placed in writing and
signed by both parties and approved by the Department of Natural Resources, Division of Mining,
Land and Water,
25. Choice of Law. The lessee confers personal jurisdiction on the courts of the State of Alaska for
any litigation under this lease.
26. Severabilitv of Clauses of Lease Aqreement. If any clause or provision of this lease is, in a final
judicial proceeding, determined illegal, invalid, or unenforceable under present or future laws, then
the Lessor and the Lessee agree that the remainder of this lease will not be affected, and in lieu of
each clause or provision of this lease that is illegal, invalid, or unenforceable, there will be added as a
part of this lease a clause or provision as similar in terms to the illegal, invalid, or unenforceable
clause or provision as may be possible, legal, valid, and enforceable.
By signing this lease, the Lessor and the Lessee agree to be bound by its provisions.
8
~
III 1111111I111111111I11I I 1111I1111 III
8 of 10
2008-000919-0
STATE OF ALASKA )
) ss.
Judicial District )
Rick L. Gifford,
4If.uI,: rh'f(Ja{A~~~
80YOli h C.&,-k-
Tf-/IS IS TO CERTIFY THAT ON THIS d! 'Ii day of
me personally appeared "/(, d. L ;;..{I'~r,: , known to me to be the pers
signed the foregoing lease and acknowledged voluntarily signing the same.
~~,"11l1J1ll
#'w\. \U3
\.. f................. .,
.,;- .,11 ..T. '-~
>~'tO :A~L",'
,,..' il." .....,.... \. 'j'
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~~~C~ND 't;I
""""""111111",
Not ublic in and for the State of Alaska
My commission expires: (J,,/t 7H l.\YFJ C/;f
lESSOR:
C-)L~ JI r: -rL _
BG Thomas H, Katkus, Commander
Alaska Army National Guard
STATE OF ALASKA
.3 ~Udicial District
)
) ss.
)
/tT
THIS IS TO CERTIFY THAT ON THIS day of M4<f. , ~ If, before
me personally appeared ~ I/S ff. I4rc/"I.5, known to me 10 be the person named and who
owledged voluntarily signing the same,
/
~
Notary Public in and for Ih~ of Alaska
My commission expires: go ::J-..oID
,.
9
1111111""1111111"""111111I11 /111
9 of 10
2008-000919-0
, .
APPROVED:
m(
2-4--/ ZZ
I '. , _5. . '~
Dick Mylius Director,
Division of Mining, Land and Water
STATE OF ALASKA
~ Judicial District
)
) ss.
)
THIS IS TO CERTIF~ THAT ON THIS 6+~ day of rv\["'i '-1 ,~J:-jg, before
me personally appeared \2_\ L~\'(L,-0l. ~\.C'\'~''-r:)(;!'~ , of the Division of Mining, Land and Water of the
Department of Natural Resources of the State of Alaska, who executed the foregoing lease on behalf of the
State of Alaska, and who is fully authorized by the State to do so.
~J-.l.1u:",- I~lc/t."-.(
Notary Public in and for the 9fate of ~Iaska
My commission expires: 7:::>/ Lv crl
",-\\\\\IIIII1IIIIJ'
~" nRA ItIi. ,.~
~ ~'v.......... o~
~ ~..;... .-.."'; r:. ~
~ ~....~OT~l' \G' ~
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...... ........ 11%--
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:= z. \\p l . ;::
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~ ~ \;\'" +-'r'.....&>~
~~~.of..~f...f..';~~....o,~~
~ 8/On Expires 'Or ~~
~11111l1II\\\\\;
Recorder's Office: Return the recorded document to:
KOdiak Island Borough
710 Mill Bay Road
KOdiak, AK 99615
OI{L - 261
10
~/1111/111~/nll/~nlll"
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2008-0DmH 0 ^