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FY2008-28 & 28A Accepting The Assignment Of The City Of Kodiak’s Interest In Lot 2 U.S. Survey 2538 To The KIB For Pool PurposesKODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 21, 2008 REGULAR MEETING ITEM NO:13. .1 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 long term lease on the site that the new pool will be constructed and protect the Borough's financial investment in the facility. 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.: NSA Amount Budgeted: N/A Expenditure Required: N/A APPROVAL FOR AGENDA: ,41/ 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: Manager Gifford Requested by: Assembly Drafted by: Community Development Introduced: 08/16/2007 Adopted: 08/16/2007 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 ie"e e M. Selby, Borough Ma - ATTEST: Nova M. Javier, CMC Borough Clerk Kodiak Island Borough, Alaska Resolution No. FY2008-05 Page 1 of 1 ItItAx4 THIS g1=i? = of I.aaae, mads this �, � day of ..-.i♦sas®ba: • 1965, between the State of ALUM by its agente, MAR MUr OF W11.T`AKY AFFAi11.8, pasty of the first parts hereinafter called Lessor, fad the, CITY OF MDI,AB„ a municipal corporati,ou, pasty of the secured part, haraia- aftor Called Leasee. W ITd7tbsM: That the Lessor, saklect to aonditioas of an agreemut No. DA -95.514-N6 betvaeu the State of Alaska end the ;United States Goveswout dated 29 October 1957, does hereby lease unto the said Lesaaea a certain parcel of I" which is a portion of U. S. Survey go. 2538 located id tba City of "isk, Alaska, Third Divisioa, Siste of Alaska and being mote particularly described sa follows: Gotm arcing at the How. censer of t" iswreaectiou of .3d xth Nft wa and "J" W"tp tbame "v. 55' 171 W. e ^ . dis trine of r xs: ilvodaw sixty ro", (4601) $ theme � H. 34' 431 We a distance of IQur Huadred Usty F04t, (4504) to rbe true point of baginsing, theme No 54• n 431 W, a distance of Taree Hur`dred Fifty lest, (3W); N theme N. SSI 17' 89 o distome of Wo Rmdred feet,, (2001); ths=e S. 34" 431 Be a distowe of Tbres 8mdra:. Fifty ;routs (3.50'); thence S. "a5. 111 we to the rai= of begividug a distance of Tiro Hundred Fest„ (200 ). Cliffe if; a raotangulsa tract of law aootaiming i.G1 auras mote our Ices. TO RAVZ AW, To UM, the said deosised yrwaisze for a t4=m of fifty. i five (55) years commencing on the Alat.„.„ day of 19y5 and eading at U o'clock addaight on the _-, day of Lues .Zug_,,,a at a yearly rental of One Dollar y ($1.U0) per year,.and other good and valuable consideration. Z -4s lasso in, boww"z•, eubject to the fcllwia4 terms oW coaadiriona which the parties hereto de hereby spot to fully observe, keep and perfera: 1. The Lcsaea agrees 6i►at t" property described herein is for the purpose of construction of a =Acipally owned and opecated rwim- cIX*; pocl, =1 city youth oanter, a vi far 110 QaAr yUrpvsu aLK; the .pcoP*ifty so leased shall be limited to that use. *2- 2. The Lessee sgraas that it will construct at, its ova wapsnsa adequate parking fanilities adjacrut to said pool and yoath cetttex end under ao alm=staraces will Mitloaal Guard PrWwry be used by tha Lessee for parking. 3. The Lessees agrees that tau Lessor shall be bold haarmless sad free from liabdlity of aqr nature in comiectioo vith tba Lessee's operation of said ndxxing pool and youth canter or the construc- tion tb*x"f and that &W Lossie shall maintain during the Life of this halo sA hie =pan" a Inblic lAability Policy protect - lug am awst a the State ¢wry suf for dee to the feoility being heated vpaaa areae owned property. A. The Iossaw agrees that it will subedt to the Lessor all plans and spscificstims for the proposed •aoastruction of said pool and.youtb center and the onus shall be appravod by the Lessor botme the Sema shall be usad sed the Losses furrtbar agrees that the briiaodnpg Iaaility balding, Youth canter lad parkLAS asses ohall be located at least sevsnt7-ttve Yost (751) from the Armory Building,. S. The Lassoo agrees that it id1l coastract at its own saponsa a read for us* in lagress end ag,reas to said pool and youth crater svA such roams shall oot be on the propssty belengtng to the State of Alaska except On that praperty included in ttds Lease• b. The Losses sgrsas ttut it will not assign arm rights acquired by this laws. vithout first obtaining the vrittion pasaclanion Of the Lsesoe. 7. in coasidatstion of the pr"see the Lessor boroby grants to the Lassos the e=lusive right and option to reser or extend this lwwo for a fberther tam of years to be agreed by the panties hereto; It being agreed lad understood that the option to Memew this Lease "Ll be overoissd under the following term and 6 03` cacditicmnz The Leseee s6,t11 give Aotiee to the Lessor of its desire to remm tUs lease at least six = mtbs prim to tisd Ovsratian date; it bsiaa =derstood hast if tbO 1AS"O Obeli fail to give such notieO is Witing tb" the Lasses shall for- Ult its right go amert the opting to team this Laaare at tba option'of the Lessor; it also b*d agreed Brad maderstood that is the ovmt the Option rights shall be sxssaised, tet rovaoants &M Orw4ttlow coatS4 bsrsia mead bO biadiag on them pOrtias harsto, ►,muss acy shall be cLaa&" by wtusl see==n di the parttes harety. B. Leasee furthm agms tbst the Al"ka Ratibaal Guard shall bear use of the civic youth tutu and Ovimsing Pool facility foc iraieiog purposes during sock timas as assaed upon by the Alaska DiR coal Guard =d the City of Eadlak. At least four ho=p such wntb aball be Alotted fot wmlWdvs use by the Alaska 11stional Guard for trelnfag pwpon&. 9. It is mutually awood betwa+n thx parties hereto test this Leave slay be noUlind ur cbac$sd by witwal ooaseot. 1A W=W= ►iY==# tba parties bereto have barapnto set tbair bssds mad seals the day and yeft first bardna►b&q% writtesw D=?AR`DSHi1T 4P Xn=ARj A?PAZU, LES8011 by SUIR op ALUM , myj���� - :,4Xrector. Aivim o of C= N' PIAN LOS= blh JVLNUE (FUVVELIL av�.� IXISTWG CURB AND N 34'42'15"W 349.97' ! (N 34'43'00"W 349.87') '� gt 40 a - 4 4'cl N AN BOD t4� it 4 i oe lk 3 1 1. A. . . . . . . .. . 1 _ WPROXWATE TREE UNE-- L i . . . . . . ._ / I. / �' �--- APPROXWATE TREE UNE ------ I / K.1►S o� 1o, 1 1 I 1 I I t l L 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 1st 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. 34° 43'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. 340 43' E, a distance of Three Hundred Fifty Feed, (3501); 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 1St 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. 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 The Kodiak Island Borough will allow the AKARNG to use the pool and youth center parking lot during training activities. 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 Warranty. 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. Assignment 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 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. (B) 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 Existing Rights. 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 AAC 93.060. 14. Acquisition of Rights 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 -let 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 -let the leasehold or for any failure to collect any compensation due upon such re -letting, nor shall the Lessor be required to account for or pay to the Lessee any excess compensation received as a result of such re -letting. 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 -let 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 parry 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 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. Severability of Clauses of Lease Agreement. 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 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 1 , 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 99616 OKL - 261 10 A 2008-000919-0 NEL Recording Dist: 303 - Kodiak A s 5/21/2008 10:12 AM Pages: 1 of 10 JUN 2 7 2008 K A Kodiak island Borough (I I III (III III IIIIIIIIIIIIIIIIIII�IIIIIIIIIIII IIIIIII I VIII II III II I III I I IIII I I I ASSESSING DEPT. 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 COPY LEASE AGREEMENT Effective this 15t 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. 34° 43'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. 340 43' 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 1st day of April 2008 and is for a 55 year term and will end at 12 o'clock midnight on the 1st 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. 2 I!II�IWC�YIVIVIiI�YIVp 2 of 10 2008-000919.0 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 Warranty. 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. Assignment 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. 3 I'I I�VVIIIIh�IVI9�VYUlI 3 of 10 2008-000919-0 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 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. (B) 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 Rights. 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 AAC 93.060. M 2008-000919.0 14. Acouisition of Rights 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 5 Ili 111111111111111111111111111111111 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 -let 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 -let the leasehold or for any failure to collect any compensation due upon such re -letting, nor shall the Lessor be required to account for or pay to the Lessee any excess compensation received as a result of such re -letting. 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 -let 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 6 Y�WPMIIflIiVI�IIIV�I'lIN 6 of 10 2008-00091 9-o 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 �'I�tlIpI;NININIIINNIyIA condition, order, and repair. 23. Notices (a) Any notice Ma* postage prepaid, or demand by the writing) with delivery addressed as follows Lessee will be made byry occurrin p receipt (°r to address that hand delivery or by certified Occurring upon r anew that the Lessor pt by the Lessor, designates in To the Lessor: Department of Melita �' Alaska Arm and Veterans Affairs F O Y National Guard (AI�,gRNG) Box 5800 Fort Richardson Alaska Officer Alaska Attn: Commandin99505-5802 addressed notice or demand b as follows Y the Lessor will be issued b writing). (Or to a new address Y mail, the that the Lessee notice or or its successor in interest demand will be To the Lessee: designates in Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Attn: Borough Manager The Lessor will issue a co leasehold whose copy of any such secure assignment has notice or demand to security interest not approved been approved b each holder as provided in section y the Lessor of a security interest in the (c) An 6 is in, oeesection 6 of this lease, qn out above notice or dem and regarding the lease quire notice by the Lessor. y must be in writing and will be complete if given as s 24. Modification Parties —�• This lease et signed by Any purported amendment be modified or amended only by a document Land Water. and ndmend b no le signed by both 25. Choice Natural until laced in writing and Resources, Division of Mining, of Law. The lessee confers any The under this lease. Personal jurisdiction on the courts of the State O 26. Severabilit of Clauses f Alaska for judicial proceeding, °f Lease q ree the Lessor 3f determined elle ment. If any clause or each and the Lessee gait invalid, or unenforceable provision clause or agree that the re of this lease is, in a final part of this or provision of this lease that is illegal, ander of this lease present or future laws, then clause or a clause invalid will not be affected provision as °r provision as similar in terms unenforceable and in lieu of may be possible, ►e ms to the elle there will be added as a BY signing this lease gal, valid, and enforceable. gal' invalid, or unenforceable the Lessor and the Lessee agree to be bound by its provisions. R'�IBOof 4Idllt@ll� 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 4, . (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 int interest designates in writing): To the Lessee: Kodiak Island Borough 710 1 II Bay Road Kodak, Alaska 99615 Attn: oro4h Manager Y: The Lessor will issue co py`�of any such notice or demand to each holder of a security interest in the 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. (c) Any notice or demand regarding the lease must be in writing and will be complete if given as set out above. t.: 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. Severability of Clauses of Lease Agreement. 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. �1�INIIWINIOIiII'Oi�lll 8 of 10 2008-00091 9-o STATE OF ALASKA Judicial District ) ss. ) LES�5,EE., p ' oY • A�� r�'(1�� ��r�� h C ate- Rick L. Gifford, nager, Kodiak Island Borough THIS IS TO CERTIFY THAT ON THIS day of me personally appeared ` �C t t-90--L� signed the foregoing lease and acknowledged voluntarily signing hetsme., known me be the —16" r-uonc in and for the State of Alaska My commission expires:et; STATE OF ALASKA Judicial District ) ss. LESSOR: SAND ��c„��,•AND e • o;� � C Y psi � <::�2 �4" ':" l-/ g'--- L - ----------- BG Thomas H. Katkus, Commander Alaska Army National Guard THIS IS TO CERTIFY THAT ON THIS c7- me Tme personally appeared •T�trrnt qs ----- day of /vliq.y fore signed fo �' 'TCvs, known to me to be the person na�and ewho oin a se and ac owledged voluntarily signing the same. Notary Public in and for the My commission expires: ate of Alaska 9 IVAVIIIIIIII�IVIIIAYiIIIIV 90f 10 2008-000919-0 APPROVED: Dick Mylius Director, Division of Mining, Land and Water STATE OF ALASKA ) ss. Judicial District ) THIS IS TO CERTIFY THAT ON THIS b' _day of �J:' before me personally appeared �,�; '.��c�-`-i'��.G, Department of Natural Resources of the State of Alaska, whote he eDuted the fore ivision of log Land and Water of the State of Alaska, and who is fully authorized by the State to do so. g 9 lease on behalf of the Notary Public in and for theState o Eska My commission expires:______ Recorder's Office: Return the recorded document to: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 OKL - 261 10 RI�M11IiOf�ldli1f9�lld