FY2022-41 Lease Agreement With Michael C. And Anita S. Brechan for Tsunami SirenCM 1-f -a4-41:7
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LAND LEASE AGREEMENT
This Lease Agreement ("Lease") is made effective as of September 30, 2020 ("Effective Date"), between
The Michael C and Anita S Brechan Trust, of Post Office Box 303, Kodiak, Alaska 99615 (Landlord")
and The Kodiak Island Borough, a second class borough ("Tenant") organized and existing under the
laws of Alaska, whose address is 710 Mill Bay Road, Kodiak, AK 99615; (each a "Party" and collectively,
the "Parties").
A. WHEREAS, Landlord owns certain property identified as Borough Property ID# 19195—Pasagshak
2nd TR J 41832 Furin Way; and
B. WHEREAS, The Tenant desires to locate a tsunami warning siren in the Pasagshak area, including
the approximately 50 foot high pole upon which the siren will be mounted and the necessary
electrical and communication connections for the tsunami warning siren operation, and desires to
use Landlord's property for that purpose; and
C. WHEREAS, Landlord is willing to accommodate the tsunami siren, pole, and related equipment
and utilities in exchange for the Tenant installing conduit for the Landlord's future use connecting
the property to a nearby electrical utility transformer and Tenant's payment of the taxes on the
property during the term of the lease.
NOW, THEREFORE, it is hereby agreed as follows:
1. Property. Landlord leases to Tenant the following property ("Property"): 1) exclusive use
of an approximately 150 square foot portion of that parcel identified by Borough Property ID# 19195 -
Pasagshak 2nd TR J 41832 Furin Way, which areas includes the location of a utility trench and the pole site;
and 2) a nonexclusive easement contemporaneous with the pole use over the entire parcel to the extent
required as a fall zone for the pole. The Property and proposed utility trench and pole location is depicted
in the diagram and aerial photograph attached as Exhibit A.
2. Authorized Uses. This Lease is issued for the following authorized uses: Tenant may
construct, maintain, and operate a tsunami siren and pole and related equipment and install electrical and
communication connections on the Property.
3. Term. The initial term of this Lease is 25 years ("Term"), commencing as of September
30, 2020 ("Commencement Date") with one ten year extension at the sole option of Tenant, so long as
Tenant is not in violation of any terms or conditions as set forth in this Lease. The Extension shall be
automatic unless: (a) Tenant notifies Landlord at least 30 days prior to the expiration of the then -current
term of its intent not to renew this Lease, or (b) Landlord notifies Tenant in writing of a default, and Tenant
fails to timely cure that default. At the conclusion, of the original Term or Extension, if any, this Lease shall
continue year to year unless either Party has given notice of termination. Notice of termination during the
year to year period shall be given no later than 30 days before the expiration of the then -current Lease
term.
4. Rent. The rent for the Property will be: 1) the obligation of the Tenant to install conduit
from the nearby Kodiak Electric transformer which may be used by Landlord; and 2) the Tenant's annual
payment of the property taxes assessed against the parcel.
5. Improvements. Tenant shall install the power conduit and any communications conduit
required, and install the pole and siren, in a workmanlike manner. Any construction on the Property must
be neat, presentable, and compatible with its use and surroundings.
6. Maintenance. Tenant shall keep the Property and all its improvements thereon neat and
presentable. Tenant shall not strip, waste, or remove any material from the Property without the prior written
permission of Landlord, which permission shall not be unreasonably withheld, conditioned ordelayed.
Tsunami Siren Pole Lease
7. Utilities. Tenant shall be solely responsible for and promptly pay all charges for gas,
electricity, telephone service, or any other utility used or consumed by Tenant on the Property.
8. Disposition of Improvements.
(a) Within 180 days after the end of this Lease, improvements and personal property
must be:
removed by Tenant if required by Landlord; or
2. with Landlord's consent, be sold to the succeeding Tenant; or
3. abandoned on the Property.
(b) Landlord may grant additional time for the removal of improvements if hardship is
established by Tenant.
(c) At the end of this Lease, Tenant must peaceably and quietly vacate the Property
and return possession to Landlord. The Property must be left in a clean, neat and presentable condition,
at least as good as existed at the commencement of the Lease, normal wear and tear excepted. If Tenant
causes any abnormal wear and tear or abuse of or to the Property, Tenant shall, at its expense and upon
demand by Landlord, immediately eliminate such abnormal wear and tear or abuse or waste and pay for
the restoration of the affected area(s) to a commercially reasonable equivalent condition to the Property'
condition at the commencement of this Lease.
9. Title. Title to any improvements or other property owned by Tenant which is not disposed
of as set out above shall automatically vest in Landlord.
10. Hazardous Materials. If fuel, lead, acid batteries, coolants, fire suppressants, lubricants
or any other hazardous materials are placed on the Property, Tenant agrees to have properly trained
personnel, equipment and procedures in place for safely handling the materials in accordance with the
National Fire Protection Code and all applicable federal, state and local laws. In the event of a material
spill of fuel or other hazardous materials on the Property, Tenant shall promptly notify Landlord and act
promptly to contain the spill, repair any damage, absorb and clean up the spill area, and restore the Property
to a condition reasonably satisfactory to Landlord.
11. Warranties. Landlord shall indemnify and defend Tenant for any breach of the following
warranties: The execution of this Lease has been duly authorized by Landlord and all necessary consents
have been received. To the actual knowledge of Landlord, no hazardous substances have been placed,
released, or disposed on the Property. Landlord has all right, title, and interest in the Property, and to
execute and to perform its obligations under this Lease. Other than the express warranties above, Landlord
makes no express or implied warranties concerning the title or condition of the Property, including survey,
access, or suitability for any use, including those uses authorized by this Lease. Tenant takes the Property
as -is, subject to all other provisions to this Lease.
12. Liability. Tenant shall indemnify and defend Landlord from any liability, action, claire, suit,
loss, property damage, or personal injury of whatever kind resulting from or arising out of any act of
commission or wrongful omission by Tenant, to the extent arising from or connected with Tenant's use and
occupation of the Property or its exercise of the rights and privileges granted by this Lease, except that it
shall have no duty to indemnify Landlord to the extent of Landlord's own negligence, wrongful omission, or
misconduct, fraud, or breach of the terms of this Lease.
13. Insurance.
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Tsunami Siren Pole Lease
(a) Tenant shall secure and keep in force during the term of this Lease adequate
insurance to protect both Landlord and Tenant against comprehensive public liability and property damage:
1. Property damage arising from one occurrence in the amount of not less
than $1,000,000.00, and
2. Personal injury or death in an amount of not less than $1,000,000.00 per
person and $1,000,000.00 per occurrence.
(b) All insurance required by this covenant must:
name Landlord as an additional assured;
2. provide that Landlord be notified prior to any termination or cancellation in
the insurance coverage; and
3. include a waiver of subrogation by which the insurer waives all rights of
subrogation against Landlord for payments made under the policy.
(c) The requirement of insurance coverage does not relieve Tenant of any other
obligations under this Lease. Tenant may self -insure against the risks undertaken herein.
14. Holding Over. Subject to the Extensions available to Tenant in Section 3 above, if Tenant
holds over after the expiration of this Lease, the holding over will not operate as a renewal or extension of
this Lease, but only creates a tenancy from month to month, regardless of any rent payments accepted by
Landlord. Tenant's obligations for performance under this Lease will continue until the month-to-month
tenancy is terminated by Landlord. Landlord may terminate the hold -over, month-to-month tenancy at any
time by giving Tenant at least 30 days' prior written notice.
15. Sale, Assignment or Sublease. The Parties may not sell or assign this Lease without the
written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or
delayed. Provided however, that Tenant may assign this Lease to another governmental unit without
Landlord's consent, and Landlord may convey the Property, and assign the Landlord's rights under this
lease, to the Pasagshak Bridge Association without Tenant's consent.
16. Condemnation. If the Property is condemned by any proper authority, the term of this
Lease will end on the date Tenant is required to surrender possession of the Property. Landlord is entitled
to all the condemnation proceeds.
17. Cancellation. Landlord may cancel this Lease and recover possession of the Property by
giving Tenant 30 days' prior written notice, upon failure of Tenant to perform any provision or covenant in
this Lease that is not cured within the 30 day notice period. If such provision or covenant is not possible to
perform within such 30 day cure period, Tenant shall not be in default under this Lease if it has promptly
commenced and is diligently pursuing the cure thereof.
Tenant may cancel this Lease with 30 days' written notice if (a) for any reason the Property
becomes unsuitable for its purposes, (b) the appointment of a trustee or receiver for the Landlord's assets
in a proceeding brought by or against Landlord, or (c) the failure of Landlord to perform any provision or
covenant in this Lease. If such provision or covenant is not possible to perform within such 30 day cure
period, Landlord shall not be in default under this Lease if it has promptly commenced and is diligently
pursing the cure thereof.
The Parties may cancel this lease by mutual agreement at any time.
18. Easements. Landlord covenants and agrees that Tenant shall have access to the Property
for and ingress and egress to the Property for all uses authorized or required by this Lease, including, but
Tsunami Siren Pole Lease
not limited to, Tenant's right to place underground conduits or aerial feeds, fiber as needed for power and
telephone or other purposes from the Property to all utility easements and rights-of-way. Landlord reserves
the right to grant to third parties or reserve to itself easements or right-of-way through, on, or above the
Property. No easement or right-of-way on the Property may unreasonably interfere with Tenant's use of
the Property. All of Tenant's rights in this section shall be granted to Tenant without any further
compensation due to Landlord.
19. Laws and Taxes. Tenant will conduct all activities authorized by this Lease in compliance
with all applicable federal, state, and local laws, including but not limited to matters of health, safety,
sanitation, pollution and communications.
20. Disputes. In any disputes between the Parties, the laws of the State of Alaska will govern.
Any lawsuit must be brought in the courts of the State of Alaska, Third Judicial District, sitting in Kodiak.
Either Party may request a mediation of any unresolved dispute. Tenant agrees to notify Landlord of any
claim, demand, or lawsuit arising out of Tenant's occupation or use of the Property. Upon Landlord's
request, Tenant will reasonably cooperate and assist in the investigation and litigation of any claim,
demand, or lawsuit affecting the Property.
21. Liens. Tenant shall keep the Property free of all liens, pay all costs for labor and materials
arising out of any construction or improvements by Tenant on the Property, and hold Landlord harmless
from liability for any liens, including costs and reasonable attorney fees related to Tenant's activities. By
this provision, Landlord does not recognize that it is in any way liable for any liens on the Property.
22. No Waiver; Consents. The failure of a Party to insist upon the strict performance of any
provision in this Lease may not be considered as a waiver or relinquishment of that provision for the future.
The waiver of any provision or covenant in this Lease cannot be enforced or relied upon unless the waiver
is in writing and executed by the Party waiving such provision. Whenever consent by one Party is required
in this Agreement, the granting of such consent in any one instance will not constitute continuing consent
to subsequent instances where such consent is required.
23. Validity of Parts. If any provision of this Lease is declared to be invalid by a court of
competent jurisdiction, the remaining covenants and provisions will continue in full force.
24. Natural Disasters. If any cause which occurs without the fault or negligence of either
Party renders the Property permanently unusable, this Lease may be terminated by either Party upon 30
days' written notice to the other, in accordance with Section 26 below. Causes include but are not restricted
to acts of God or the public enemy, acts of the United States, fires, floods, epidemics, quarantine
restrictions, or strikes. No Party shall be liable for any delay or failure in performance due to such events
outside of the defaulting Party's reasonable control. The obligations and rights of the excused Party shall
be extended on a day-to-day basis for the time period equal to the period of the excusable delay.
25. Notices. Any notices to be given under this Lease by either Party to the other may be
effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return
receipt requested, to the recipient at the address indicated below:
Landlord:
Michael and Anita Brechan
Kodiak, Alaska 99615
Telephone:
E-mail:
Tenant:
Kodiak Island Borough
Attn.: Michael Powers, Borough Manager
710 Mill Bay Road
Kodiak, Alaska 99615
Telephone:
Email:
26. Inspection. Landlord reserves the right to enter any part of the Property, including
buildings, for the purpose of inspection at any reasonable time. Except in the case of an emergency, all
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Tsunami Siren Pole Lease
inspections will be coordinated with Tenant in advance, in order to minimize interference with Tenant's
activities.
27. Quiet Enjoyment; Access. So long as Tenant is not in breach of this Lease, it shall have
the right of quiet enjoyment of the Property for the Term and all Extensions thereof, regardless of any sale,
transfer, assignment or foreclosure of the Property. This Lease shall be binding on each Party's successors
and assigns. Under no circumstances shall Tenant and Tenant's sub -lessees be prevented or delayed from
accessing its equipment during the Term and all Extensions, twenty-four hours a day, seven days a week.
28. Binding Agreement; Amendments; Counterparts. This Lease shall be binding upon
each Party's heirs, representatives, executors, successors and assigns. This Lease may only be amended
in writing, and such amendment shall be signed by authorized representatives of both Parties. The Parties
may execute this Lease in counterparts, each of which shall be deemed an original, and both of which,
collectively, taken together shall constitute one and the same Lease. Delivery of an executed counterpart
by electronic transmission email or fax shall be as effective as physical delivery of an executed counterpart.
[END OF SECTIONS AND TEXT]
Tenant: Kodiak Island Borough
By:
Name: Michael Powerjs, Sorough Manger
Date:
Name: Alise r1ce, Borough Clerk
Date:
Landlord: The Michael and Anita Brechan Trust
By:
Name: Anita 6rechan / AA
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