LEASE
This lease made this day of April, 1999, by and between Seldovia Native Association, Inc. (lessor), and the Kenai Peninsula Borough (lessee).
WITNESSETH:
1. Premises and Purpose. Lessor, for and in consideration of the rents, covenants, and conditions herein specified to be paid by lessee, does hereby let, lease, and demise to lessee, the real estate for purposes of a sanitary landfill located in the Seldovia Recording District, third Judicial District, State of Alaska, more particularly described as follows:
All of Tract A, according to the plat of Kenai Peninsula Borough Seldovia Landfill filed in the Seldovia Recording District as Plat No. 90-1, Excepting therefrom a specific portion described as follows:
Commencing at the northwest corner of said Tract A; thence, bearing S 0 01' 06" E, along the west line of said Tract A, a distance of 92.76 feet to the True Point of Beginning of this excepted parcel; thence, bearing due east, distance of 169.05 feet; thence, bearing S 37 01' 41" E, a distance of 356.14 feet; thence, bearing S 29 12' 25" W, a distance of 151.25 feet; thence, bearing due west, a distance of 59.47 feet; thence, bearing N 60 47' 33" W, a distance of 286.59 feet to a point on the west line of said Tract A; thence, bearing N 0 01' 06" W along the said west line, a distance of 276.50 feet to the True Point of Beginning of this excepted tract; containing 2.45 acres more or less.
The resulting area of real property subject to the Agreement is 15.05 acres, more or less. The above described excepted parcel is depicted as "Parcel T" on the U.S. Department of Health and Human Services' Exhibit II, dated March 27, 1992.
2. Term. The term of this lease commences on the 15th day of April, 1999, through and including the 30th day of June, 2001, unless sooner terminated as herein provided.
3. Rental. In consideration of the demise and leasing of the premises by the lessor, the lessee covenants to pay to the lessor as rental for the premises described in paragraph 1 above, the sum of ONE THOUSAND SIX HUNDRED SIXTY SIX DOLLARS AND SIXTY SEVEN CENTS ($1,666.67) per month, in advance from April 15, 1999 through and including April 14, 2000. Payments shall be due on the 15th of each month.
Effective April 15, 2000 through and including June 30, 2001, the rental sum shall be TWO THOUSAND FIVE HUNDRED AND NO DOLLARS ($2,500) per month, in advance, paid on the 15th of each month. The lessee may make lease payments in advance of the due date.
All payments, unless and until otherwise directed, in writing, by lessor, shall be paid to the lessor at P.O. Drawer L, Seldovia, Alaska 99663.
4. Covenants of Lessee. The lessee hereby covenants and agrees:
a. The lessee will pay the said rent specified at the times and in the manner set out in paragraph 3 herein, except if the lease is terminated under the provisions of this lease or lessee's ability to use the premises for a sanitary landfill is interrupted or prevented through no fault of the lessee. If such interruption or prevention of landfill use occurs, lessee shall have a right to return of lease payments paid in advance on a prorated basis for the period lessee's use is prevented or interrupted.
b. Lessee shall not assign, sublet or part with the possession of all or any part of the leased premises without the prior written consent of the lessor. Such consent shall not be unreasonably withheld by lessor.
c. Lessee shall allow the lessor to inspect the premises relative to this lease upon 48 hours' written notice. Lessor shall be accompanied by an employee or agent of lessee for all lessor inspections of the premises unless this right is waived in writing by the lessee.
d. Lessee shall pay the Lessor $6,000 per year for gravel. Payments for gravel shall be made on a monthly basis, in advance, at a rate of $500 per month, paid on the 15th of each month. Lessee is responsible for all measures needed to extract the gravel from the lease site. If the lease site gravel is depleted during the lease term, the Lessee will purchase delivered gravel from the Lessor at standard published rates. The lessee may make payments in advance of the due date.
e. The landfill is intended for the use of residential and small businesses residing in the Seldovia or Jakalof Bay area. One hundred (100) cubic yards (approximately 10 dump trucks) is the maximum amount allowed from any one source or project per year. Dumping over the 100 cubic yard limit is subject to lessor approval, and lessor will receive a fee of $20 per cubic yard, if material is approved for disposal by the Lessor and Lessee. The Alaska State Ferry is exempt from this requirement for waste generated as a part of daily activities.
f. At the expiration of the term of this lease, lessee will peaceably yield up to the lessor the premises.
g. The lessee is responsible for any environmental cleanup if necessary due to landfill related activities.
h. The lessee shall close the landfill as required by the Alaska Department of Environmental Conservation.
i.. The lessee must perform grading, seeding and other work, sample monitor wells and surface water, and conduct other post-closure work after the landfill is closed and the lessor shall allow access for the purposes of lessee performing post-closure work. The lessee shall pay the lessor a $50 access fee per occurrence, after the landfill is closed. Example: $50 shall be paid to the lessor for each day the water sampling contractor is on-site performing work; $50 shall be paid to the lessor for each day the lessee's contractor/representative is on-site to perform erosion control, grading, or other site work. The lessee shall not pay an access fee for a person to inspect the site or other instances where site work is not being performed.
j. The lessee agrees not to object to lessor's lawful development within one mile of the landfill (because of the landfill) for the term of the lease as long as that development does not indicate harm to the Borough's landfill.
5. Lease termination.
a. A land exchange between the lessor and lessee resulting in land transfer of the leased parcel shall effectively end the lease and no additional payments will be made.
b. The lease may also be terminated due to revocation of the Alaska Department of Environmental Conservation permit.
c. Pursuant to KPB 17.10.030(C)(2), this lease shall automatically terminate without penalty on June 30 of any year during which the KPB assembly fails to appropriate funds sufficient to make the lease payments on the leased property.
6. Default. Should either party default in the performance of the obligations of any covenants of this lease and fail to fully remedy such default within thirty days after written notice, then the lease may be terminated by written notice to the other party. All rental hereunder shall abate during the period of any such default. Upon termination of this lease, lessor shall refund to lessee any unearned advance rental paid of lessee.
7. Defense and Indemnification. The lessee covenants and agrees to hold the lessor harmless from any liability that arises from the negligent acts or omissions of the Kenai Peninsula Borough, its servants, officers, or agents, if such liability relates to the use, operation, or existence of the sanitary landfill for which this lease is granted.
8. Insurance. Lessee agrees to be self-insured and/or provide insurance coverage for operation and maintenance of the landfill for any negligent acts or omissions as provided by the defense and indemnification clause in Section 7.
9. Permits, laws, and taxes. Lessee shall acquire and maintain in good standing all permits, licenses, and other entitlement necessary to operation and maintenance of the landfill. All actions taken by either party under this lease shall comply with all applicable statutes, ordinances, rules and regulations. Lessor shall pay all taxes that may be due and owing to a federal, state, or local taxing entity.
10. Warranties. The lessor covenants, guarantees and provides the following express warranties:
a. The lessor warrants that there are no prohibitions in the area for the intended use of the property.
b. The lessor warrants no existing restrictions interfere with the lessee's permitted and intended use of the leased property.
c. The lessor warrants availability of adequate ingress and egress to leased property.
d. The lessor warrants lessor has sufficient interests in property to grant tenant leasehold.
e. The lessor warrants lessee is to have quiet enjoyment of the premises.
f. The lessor warrants that buried waste and the final cap will not be disturbed after landfill closure, unless approved by the Alaska Department of Environmental Conservation.
g. The lessor shall pay all taxes.
11. No waiver. That no assent, expressed or implied, by either party to any breach of any of the covenants or warranties in this lease shall be deemed to be a waiver of any succeeding breach of the same covenant or warranty, nor shall any forbearance by a party to seek a remedy for any breach be deemed a waiver by a party of his rights or remedies with respect to such breach.
12. Integration. This document contains the entire lease agreement of the parties hereto. All negotiations, statements, representations, guarantees, warranties, and assurances, whether oral or written, which are in any way related to the subject matter of this lease and the performance of either party hereto, are merged and integrated into the terms of this document.
13. Modification. The parties may mutually agree to modify the terms of this agreement. Any modifications shall be in writing executed by both parties.
14. Interpretation and enforcement. This agreement has been jointly drafted by the parties following negotiations between them. It shall be construed according to the fair intent of the language as a whole, not for or against any party. The interpretation and enforcement of this agreement shall be governed by the laws of the state of Alaska. The titles of sections in this agreement are not to be construed as limitations or definitions but are for identification purposes only.
15. Severability. If any section or clause of this agreement is held invalid by a court of competent jurisdiction, or is otherwise invalid under the law, the remainder of this agreement shall remain in full force and effect.
16. Notice. Whenever notice is required hereunder, it shall be addressed as follows until written notice of change of address is given to the other party.
Lessor:
Lessee:
Kenai Peninsula Borough
144 North Binkley
Soldotna, Alaska 99669
DATED this day of , 19 .
KENAI PENINSULA BOROUGH
By: