HomeMy WebLinkAboutRightToLease-CityofKake-IPECA
A 2015 - 000428 .0
K Recording District 110 PETERSBURG
A 07/31/2015 09:53 AM Page 1 of 13
INSIDE PASSAGE ELECTRIC COOPERATIVE, INC.
RIGHT TO LEASE AGREEMENT
FOR GUNNUK CREEK DAM AND ASSOCIATED FACILITIES
Between
Inside Passage Electric Cooperative, Inc.
and
City of Kake
Dated July 17, 2015
After recording in the Petersburg Recording District,
please return to:
John Andrew Leman
Kemppel, Huffman & Ellis, P.C.
255 E. Fireweed Lane, Suite 200
Anchorage,AK 99503
INSIDE PASSAGE ELECTRIC COOPERATIVE, INC.
RIGHT TO LEASE AGREEMENT
FOR GUNNUK CREEK DAM AND ASSOCIATED FACILITIES
Preamble. Inside Passage Electric Cooperative, Inc., wishes to design a
hydroelectric project in the City of Kake to bring hydroelectric power to IPEC's
members in Kake. In order to pursue funding for the design and eventual
construction of such a project, IPEC must have site control for the project. The
purpose of this Right to Lease is to provide site control for the project and eventual
lease of the land if the hydroelectric project can be built.
THIS, RIGHT TO LEASE AGREEMENT has been reached this j`t day of
�J i 2015, between the City of Kake, the owner of the land and
improverA6nts described in Exhibit A (hereinafter the "dam and associated facilities"),
and Inside Passage Electric Cooperative, Inc. ("IPEC"). This Agreement provides for
access to and the eventual lease of the dam and associated facilities for
development of a hydroelectric power project.
This Agreement and the stated exhibit embody the whole Agreement between the
parties as it pertains to the dam and associated facilities, and there are no
promises, terms, conditions, or obligations referring to the subject matter hereof,
other than as contained herein.
2. The City hereby grants IPEC the right to enter the property for the purpose of (a)
designing and evaluating the project and (b) determining the boundaries of the
property to be leased to IPEC should it proceed with construction.
3. The City agrees to lease the dam and associated facilities to IPEC by lease
agreement for a total lease price of One Dollar ($1.00) for the life of the lease.
Upon IPEC's written notice that it is prepared to proceed with construction of a
hydroelectric project, IPEC shall prepare a survey of the parcel. The precise size
of the parcel to be surveyed shall be reasonably determined by IPEC to
accommodate the hydroelectric project. The lease shall be in the form attached
as Exhibit B, and the legal description in the lease will conform to the survey of
the parcel. The lease will also provide IPEC with the right of access to the parcel
across City -owned lands.
4. This Agreement is a CONTRACT extending to and binding upon the parties
hereto and upon the respective heirs, devises, executors, administrators, legal
representatives, successors and assigns of the parties. The City expressly
recognizes that development of a hydroelectric project in Kake will bring economic
benefits to City and its residents, and that IPEC will expend money on the design,
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permitting, and potentially construction of the hydroelectric project in reliance on
this Agreement. This Agreement is in the public interest.
5. This Agreement may be recorded by either party.
6. In the event that IPEC has not requested a lease from the City in conformance
with the requirements of this Agreement within fifteen (15) years of the date of this
Agreement, IPEC's rights under this Agreement shall expire.
7. IPEC agrees that it will commence engineering, permitting, studies, and
associated activities to pursue the Project, and that it will spend up to Two
Hundred Fifty Thousand Dollars ($250,000) on such activities.
Exhibit A — Property Description
Exhibit B — Lease Agreement
CITY OF KKAKE
By: 49
its:
ACKNOWLEDGEMENT
STATE OF ALASKA )
)ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on the 00 day of 2015, before
me, the undersigned Notary Public for the State of Alaska, duly c mmissioned and
sworn as such, personally came , for and on behalf of the City of Kake
and acknowledged that this RIGHT TO LEASE AGREEMENT was signed and sealed on
behalf of the City of Kake by proper authority delegated and vested in himself, and
acknowledged further said instrument to be the free act and deed of the City of Kake.
IN WITNESS WHEREOF,
year first above written.
have hereunto set my hand and affixed nmy seal the day and
Notary Public for A ska
My Commission expires: U -
FT -
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INSIDE PASSAGE ELECTRIC
COOPERATIVE, INC.
By. Dnlz
its: 0,411 -0 f 6(eGdi i2 offl L✓
ACKNOWLEDGEMENT
STATE OF ALASKA )
)ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on the ' 7 day of o �U'*A , 2015, before
me, the undersigned Notary Public for the STATE_ OPALA__Sj�A; duly commissioned and
sworn as such, personally appeared I LA 4CAntOnn on behalf of Inside
Passage Electric Cooperative, Inc. and acknowledged that this RIGHT TO LEASE
AGREEMENT was signed and sealed on behalf of Inside Passage Electric Cooperative,
Inc., by proper authority delegated and vested in himself, and acknowledged further said
instrument to be the free act and deed on behalf of the Inside Passage Electric
Cooperative, Inc.
IN WITNESS WHEREOF, I have set may hand and affixed my seal the day and year
first above written.
SHARON K.A. ROEBFR
Notary Pobilc
$1WP OtAia$ka
'My Commission Expires
December 01, 2016
�-�bo-'4 k* 4R�-
&Iota+j Public in and for Ala kn
My Commission expires: I a- U
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EXHIBIT A
The portion of Section 35, T56S, R72E, Copper River Meridian, Petersburg
Recording District, First Judicial District, State of Alaska, containing a dam, water
intake, penstock and associated concrete works and improvements, commonly
referred to as the Gunnuk Creek dam, as well as additional land necessary for an
impoundment reservoir, penstock, powerhouse and transmission line with the precise
boundaries to be determined, but in no event to exceed 100 acres. The property
includes all water rights owned by the City for Gunnuk Creek.
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EXHIBIT B
Lease Agreement
between
Inside Passage Electric Cooperative, Inc.,
and
the City of Kake
This Ground Lease and Agreement is made, effective as of the last date of
signature by the parties, between Inside Passage Electric Cooperative, Inc.
(hereinafter "IPEC"), whose address is P.O. Box 210149, Auke Bay, AK 99821, and
the City of Kake (hereinafter "Land Owner") whose address is P.O. Box 500, Kake,
AK 99830.
Description of Location. Land Owner leases to IPEC the surface estate
of that certain property described as:
The proposed location is shown on the attached Exhibit A (the
"Property'). The Lease includes any improvements on the Property.
2. Length of Lease. The Lease will last for so long as IPEC continues to
use the Property for hydroelectric power generation. If more than ten
(10) years pass without IPEC generating power on the Property, the
Lease will terminate.
Rent. Rent for this Lease will be in the total amount of One Dollar and
No/100 ($1). As additional consideration for this Lease, IPEC promises
to use the Property for hydroelectric power generation to serve the City
of Kake and its residents during the term of the Lease.
4. Access to the Property. The Land Owner guarantees legal access to
the Property and will grant a non-exclusive access easement to the
Property as needed for construction and maintenance.
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5. Improvements.
(a) IPEC will have the right, subject to the terms of this Lease, to
build, operate, repair and maintain hydroelectric power generation,
transmission, control, and distribution facilities on the Property (the
"Project"). Such facilities include, but are not limited to:
(i) Hydro turbine power generation;
(ii) Above or underground transmission and distribution lines
for power or heat;
(iii) Equipment associated with the control of the process of
hydro generation, transmission or distribution;
(iv) Other equipment or structures for the generation of hydro
power, including dams, penstocks, reservoirs; and
(v) Any associated facilities that further the purposes of the
Lease, including infrastructure improvements such as
water lines, sewer lines, fences, etc.
(b) IPEC will be solely responsible, at its own expense, for obtaining
all permits and governmental approvals for construction of the facilities
mentioned in paragraph 6(a), and shall comply with all federal, state,
and local law.
Maintenance and Construction Obligations.
(a) Maintenance. IPEC will, at its expense, keep any
improvements, including any water, sewer, waste water drain lines,
fences, vehicle/pedestrian access ways, trench drains and utilities, on
the Property in good repair and maintenance, and in a safe, sanitary,
orderly, and sightly condition. The improvements will be maintained in
compliance with applicable federal, state, and local regulations.
(b) Construction. IPEC may remove all or portions of any existing
improvements pre -dating this Agreement on the Property in its sole
discretion and subject to a right of first refusal by Land Owner to
remove and retain any such improvements or portions of existing
improvements for its own purposes and ownership. Land Owner shall
have no obligation to remove such improvements. No compensation
shall be due to IPEC for the exercise of Land Owner's right of first
refusal under this paragraph 6(b).
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No Right of Entry. Land Owner will not have the right to enter the
Property during the term of the Lease without IPEC's permission. IPEC
will grant permission to enter the premises if entry is necessary for
Land Owner to perform its obligations under this Lease or to monitor
IPEC's compliance with the terms of this Lease, or to comply with a
federal, state, or local law, regulation, or directive.
Payment of Taxes and Other Charges. IPEC shall be responsible for
the payment of all real property taxes on the leasehold interest in the
Property during the term of the Lease. IPEC shall be responsible for
payment of any sales tax, excise tax, gross receipts tax, or other
business tax associated with its use of the Property. IPEC will make all
payments of taxes directly to the charging governmental entity seven
(7) days prior to delinquency, and before any fine, interest, or penalty
shall become due or be imposed by operation of law for their
nonpayment.
Indemnification
(a) Land Owner shall indemnify, save, and hold IPEC harmless, and
defend IPEC at Land Owner's sole cost and expense against any claim
or liability for any injury to any person or persons or damage to any
Property or any other liability arising or relating to any act, omission,
neglect or misconduct of Land Owner, its officers, agents,
subcontractors, servants, or employees relating to the Property existing
prior to the effective date of this Lease or to Land Owner's obligations
under this Lease.
(b) IPEC shall indemnify, save, and hold Land Owner harmless, and
defend Land Owner at IPEC's sole cost and expense against any claim
or liability for any injury to any person or persons or damage to any
Property or any other liability arising or relating to any act, omission,
neglect or misconduct of IPEC, its officers, agents, subcontractors,
servants, or employees relating to IPEC's Lease of the Property from
Land Owner or IPEC's obligations under this Lease.
(c) The parties expressly waive any right to common law
indemnification.
10. Insurance. IPEC shall maintain insurance relating to the Property in
commercially reasonable amounts. IPEC shall add Land Owner as an
additional insured on all insurance policies related to the Property and
such insurance shall provide Land Owner with thirty (30) days notice
prior to cancellation or termination. Land Owner has no obligation
under this Lease to provide insurance of any kind for the Property,
improvements, or activities of IPEC.
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11. Lease Termination. In the event of Lease termination or expiration,
IPEC may:
(a) remove or destroy any improvements or equipment on the
Property; or
(b) With Land Owner's permission, leave all or some of the
improvements and equipment on the Property.
12. Modification. This Lease may not be amended or modified except in
writing signed by both parties and any mortgagee of any portion of the
leasehold estate. Both parties hereby agree that they will sign any
additional documents and perform any other acts that may be required
to permit IPEC to fulfill the intent of the agreement. The parties agree
that they will act in good faith, and use their best efforts to comply with
this Agreement as rapidly as possible.
13. Assignment, Mortgage, and Security Interests.
(a) Assignment. With prior written approval of Land Owner and in
Land Owner's reasonable discretion, IPEC may assign this Lease in
whole or in part. If IPEC assigns the Lease, it will be relieved of all of
its obligations under this Lease as long as the person taking the
assignment assumes IPEC's obligations under this Lease.
(c) Mortgages and Security Interests. IPEC may mortgage IPEC's
leasehold interest in the Property as long as it gives written notice to
Land Owner within thirty (30) days after recording of any mortgage(s).
IPEC may also grant security interests in its leasehold interest in the
Property as necessary to secure financing from the federal government
or financial institutions. Land Owner agrees to reasonably cooperate
with IPEC in the preparation of submission of any documents
necessary for IPEC to secure financing from Rural Utilities Service or
NRUCFC.
14. Land Owner's Remedies and Breach.
(a) In the event that IPEC defaults on its obligations under this
Lease, Land Owner may terminate the Lease if:
(i) Land Owner has given written notice of the default to
IPEC; and
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(ii) IPEC has not cured the default within sixty (60) days, or
in the case of a default which cannot reasonably be cured within sixty
(60) days, has not made reasonable efforts to complete a cure of the
default.
(b) In the event that Land Owner defaults upon any of its obligations
under this Lease, IPEC may terminate the Lease if:
(i) IPEC has given written notice of the default to Land
Owner; and
(ii) Land Owner has not cured the default within sixty (60)
days, or in the case of a default which cannot reasonably be cured
within sixty (60) days, has not made reasonable efforts to complete a
cure of the default.
15. Title. Land Owner agrees that it has the right and authority to lease the
Property.
16. Condemnation.
(a) Termination. If, during the term of this Lease, title to the whole
or substantially all of the Property is taken as the result of the exercise
of the power of eminent domain, this Lease shall, at the election of
IPEC terminate as of the date of vesting of title pursuant to such
proceeding. For the purposes of this Section 19, "substantially all of
the leased premises" shall be deemed to have been taken if a taking
under any such proceeding shall involve such an area, whether the
area be improved with a building(s) or be utilized for a parking area or
otherwise (including a deprivation of access to all streets and highways
abutting the leased premises), that IPEC cannot reasonably operate in
the remainder of the leased premises the business being conducted on
the leased premises at the time of such taking.
(b) Award. The award made in any proceeding shall be divided
between Land Owner and IPEC as follows: The amount of any such
award attributable to the improvements or equipment IPEC has
provided shall belong to IPEC, and the remainder of the such award
shall belong to Land Owner; provided, however, in the event title to the
whole or substantially all of the Property is taken, or any mortgagee of
the Property so requires, IPEC shall be obligated to use so much or all
of its award as shall be necessary to pay off any permanent mortgage
of IPEC.
17. Easements. IPEC's interest is subject to any easements of record as
of the date of this Lease.
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18. Arbitration. IPEC and Land Owner agree that if any dispute arises
between them relating to this Lease, the dispute will be submitted for
arbitration. The determination of the arbitrator will be binding on the
parties. In the event the parties are unable to agree to an arbitrator or
method of selecting an arbitrator, the arbitrator shall be appointed by
the presiding judge of the Alaska judicial district in which the Property is
located.
19. Attornev's Fees. The prevailing party in any action or arbitration
relating to this Lease agreement is entitled to reasonable attorneys'
fees and costs as may be fixed by the court or arbitrator.
20. Impossibility. If the obligations and duties of IPEC or Land Owner
cannot be performed by either of them because of an unforeseeable
act beyond their control, then for such time period as the rights and
obligations are incapable of being performed this Lease shall be
suspended and the time of such suspension shall not be counted
against IPEC, anything in this Lease to the contrary notwithstanding.
21. Recording. This Lease may be recorded at IPEC's option. In the event
the Lease terminates, Land Owner shall have the right to record an
affidavit so stating.
CITY OF KAKE
M
its:
ACKNOWLEDGEMENT
STATE OF ALASKA )
)ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on the day of , 201 , before
me, the undersigned Notary Public for the State of Alaska, duly commissioned and
sworn as such, personally came for and on behalf of the City of Kake
and acknowledged that this LEASE AGREEMENT was signed and sealed on behalf of
the City of Kake by proper authority delegated and vested in himself, and acknowledged
further said instrument to be the free act and deed of the City of Kake.
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to 2015-000428-0
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and
year first above written.
Notary Public for Alaska
My Commission expires:
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u
INSIDE PASSAGE ELECTRIC
COOPERATIVE, INC.
0
its:
ACKNOWLEDGEMENT
STATE OF ALASKA )
)ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on the day of , 201_, before
me, the undersigned Notary Public for the STATE OF ALASKA, duly commissioned and
sworn as such, personally appeared , on behalf of Inside
Passage Electric Cooperative, Inc. and acknowledged that this LEASE AGREEMENT
was signed and sealed on behalf of Inside Passage Electric Cooperative, Inc., by proper
authority delegated and vested in himself, and acknowledged further said instrument to
be the free act and deed on behalf of the Inside Passage Electric Cooperative, Inc.
IN WITNESS WHEREOF, I have set may hand and affixed my seal the day and year
first above written.
Notary Public in and for Alaska
My Commission expires:
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