HomeMy WebLinkAbout20111004 Pitka's Point NC Ground Lease Agreement- WindAfter recording, return to:
Alaska Village Electric Cooperative
4831 Eagle Street
Anchorage. AK 99503
Ground Lease and Agreement
between
Alaska Village Electric Cooperative, Inc.,
and
Pitka's Point Native Corporation
This Ground Lease and Agreement is made, effective as of the last date of
signature by the parties, between Alaska Village Electric Cooperative, Inc. (hereinafter
"AVEC"), whose address is 4831 Eagle Street, Anchorage, AK 99503 and Pitka's Point
Native Corporation (hereinafter "Land Owner") whose address is P.O. Box 289, St.
Mary's, Alaska 99658.
1. Description of Location. Land Owner leases to AVEC the surface estate
of that certain property described as Lot 6 and the West Yz of the Northeast
'/4 of the Southeast Y. of Section 32, Township 23 North, Range 76 West,
Seward Meridian, Bethel Recording District, Fourth Judicial District. The
proposed location is shown on the attached Exhibit A (the "Property").
This description allows the project to he sited relative to community,
geotechnical, and community resources. Upon completion of the Project
(as hereinafter defined), but in no event later than July 1, 2014, the actual
boundaries of the Project shall be surveyed to define the smallest practical
parcel allowing for required setbacks, access and clearances. The
description is approximate and is subject to amendments to the description
necessary to reflect as built alignments of improvements. The Lease
includes any improvements on the Property.
2. Length of Lease. The Lease will last for fifty (50) years, beginning on
1ekk)w , and will terminate on�1 , Up —or
upon conveyance of the Property pursuant to paragraph no. 3.
3. Survey_ and Conve + c . The parties agree that after the Project is
constructed, but in no event later than July 1, 2014, AVEC will survey the
Property and determine the amount of land that is actually needed for the
AVEC facility as outlined in paragraph no. I above. AVEC shall submit
the proposed survey to Land Owner prior to recordation and Land Owner
shall have twenty (20) days to review the survey and provide written
notice to AVEC of any reasonable objections to the contents of the survey,
which AVEC shall remedy. After the survey is recorded, the Land Owner
will convey fee title of the surveyed parcel to AVEC. Upon conveyance
by Land Owner to AVEC of fee title, this Lease shall automatically
terminate.
4. Rent. Rent for this Lease will be in the total amount of One Dollar and
No1100 ($l ). As additional consideration for this Lease, AVEC promises
to use the Property for power generation or transmission purposes to serve
the Pitka's Point and St. Mary's communities during the term of the Lease.
5. 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 after construction and maintenance, limited to thirty (30) feet in
width and at a location approved in advance by Land Owner.
6. Improvements.
(a) AVEC will have the right, subject to the terms of this Lease, to
build and develop wind power generation, transmission, control,
and distribution facilities on the Property (the "Project"). Such
facilities include, but are not limited to:
(i) Wind turbine power generation;
(H) Above or underground transmission and distribution lines
for power or heat;
(iii) Equipment associated with the control of the process of
wind generation, transmission or distribution;
(iv) Other equipment or structures for the generation of wind
power; and
(v) Any associated facilities that further the purposes of the
Lease, including infrastructure improvements such as water
lines, sewer lines, fences, etc.
(b) AVEC 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.
7. Maintenance and Construction Obligations.
(a) Maintenance. AVEC 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. AVEC may remove all or portions of any existing
improvements pre -dating this Agreement on the Property in its sole
discretion, upon ten (1 U) days advanced written notice to Land
Owner 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 AVEC for the exercise of Land
Owner's right of first refusal under this paragraph 7(b).
8. Division. AVEC may, upon advanced written notice to Land Owner,
divide the Property into two (2) or more parcels for purposes of
development, assignment, or mortgage. In conjunction with such a
division, and upon written request of AVEC, AVEC and Land Owner
shall execute new leases identical in terms to this Lease for each new
parcel.
9. No Right of Entry. Land Owner will not have the right to enter the
Property during the term of the Lease without A VEC's permission.
AVEC will grant permission to enter the premises if entry is necessary for
Land Owner to perform its obligations under this Lease or to monitor
AVEC's compliance with the terms of this Lease, or to comply with a
federal, state, or local law, regulation, or directive.
10. Payment of Taxes and Other Charges. AVEC shall be responsible for the
payment of al I real property taxes on the leasehold interest in the Property
during the term of the Lease. AVEC 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. AVEC 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.
11. Indemnification.
(a) Land Owner shall indemnify, save, and hold AVEC harmless, and
defend AVEC 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) AVEC shall indemnify, save, and hold Land Owner harmless, and
defend Land Owner at AVEC'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 AVEC, its officers, agents,
subcontractors, servants, or employees relating to AVEC's Lease
of the Property from Land Owner or AVEC's obligations under
this Lease.
(c) The parties expressly waive any right to common law
indemnification.
12. Insurance. AVEC shall maintain insurance relating to the Property in
commercially reasonable amounts. AVEC 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 AVEC.
13. Hazardous Materials & Environmental Compliance.
(a) As detailed in Paragraph 5, AVEC may use the Property for wind
generation facilities. Such use may require Hazardous Materials to
be brought onto, used, and stored on the Property. AVEC will
indemnity, save, and hold Land Owner harmless, and defend Land
Owner at AVEC'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 resulting from any
negligent act, omission, or intentional misconduct of AVEC, its
officers, agents, subcontractors, servants, or employees relating to
AVEC's use, transportation, or storage of Hazardous Materials on
the Property.
(b) Violations of federal, state, or local environmental laws,
regulations shall constitute a breach of this Lease agreement.
(c) As used herein the term "Hazardous Material" means any
hazardous or toxic substance, material, or waste which is or
becomes regulated by any local government authority, the State of
Alaska, the United States Government, or any other governmental
entity. The term "Hazardous Material" includes, without
limitation, any material or substance that is (i) defined as a
"hazardous substance" under appropriate state law provisions (ii)
petroleum; (iii) asbestos; (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. 1321); (v) designed as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act (42 U.S.C. 6903); (vi) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act (42
U.S.C. 9601); or (vii) defined as a "regulated substance" pursuant
to Subchapter IX Solid Waste Disposal Act (Regulation of
Underground Storage Tanks) (42 U.S.C_ 6991).
14. Lease Termination. In the event of Lease termination or expiration,
AVEC 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.
15. 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
pen -nit AVEC 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.
16. Subletting, Assiggment, Mortgage, and Security -Interests.
(a) Sublet. AVEC may sublet portions of the Property during the tern
of this Lease to persons who will occupy a portion of the Property
for the conduct of business consistent with the uses permitted
herein but in no event shall such sublease expand the legal
description of the Property. Each sublease will be in writing and
will provide that the sublease is subject to this Lease and to any
extension, modifications or amendments of this Lease.
(b) Assignment. With prior written approval of Land Owner and in
Land Owner's reasonable discretion, AVEC may assign this Lease
in whole or in part. If AVEC assigns the Lease, it will be relieved
of all of its obligations under this Lease as long as the person
taking the assignment assumes AVEC's obligations under this
Lease.
(c) Mortgages and Security Interests. AVEC may mortgage AVEC'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). AVEC 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 AVEC in the preparation of
submission of any documents necessary for AVEC to secure
financing from Rural Utilities Service.
17. Land Owner's Remedies and Breach.
(a) In the event that AVEC 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
AVEC; and
(ii) AVEC 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, AVEC may terminate the Lease if-
(i) AVEC 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.
18. Notices. Any notice required or desired to be given pursuant to this Lease
shall be in writing. Notices may be faxed or mailed and are effective on
the date they are received. Notices shall be given to:
Alaska Village Electric Cooperative, Inc.
4831 Eagle Street
Anchorage, Alaska 99503
Facsimile No. (907) 562-4086
with copy to:
Kemppel, Huffman and Ellis, P.C.
255 E. Fireweed Lane, Suite 200
Anchorage, Alaska 99503
Facsimile No. (907) 276-2493
and if addressed to Land Owner, the address of Land Owner is:
Pitka's Point Native Corporation
P.O. Box 289
St. Mary's, Alaska 99658
Facsimile No. (907) 438-2276
with a copy to:
Dalrymple Law, P.C.
348 E. Elmwood Ave.
Palmer, AK 99645
Facsimile No. (907) 745-6331
Upon written notice, the parties may change the address for notice
required under this Lease.
19. Title. Land Owner agrees that it has the right and authority to lease the
Property. It is the sole obligation of AVEC to determine ownership and
obtain appropriate authorization for the use of any subsurface estate or
surrounding property affected by AVEC's activities under this Lease.
Land Owner specifically disclaims any warranty of title or use of the
Property for any purpose. .
20. 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
AVEC terminate as of the date of vesting of title pursuant to such
proceeding. For the purposes of this Section 20, "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 AVEC
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 AVEC as follows: The amount of any
such award attributable to the improvements or equipment AVEC
has provided shall belong to AVEC, 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, AVEC shall be
obligated to use so much or all of its award as shall be necessary to
pay off any permanent mortgage of AVEC.
21. Easements. AVEC's interest is subject to any easements of record as of
the date of this Lease.
22. Arbitration. AVEC 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.
23. Attorne '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.
24. Impossibility. If the obligations and duties of AVEC 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 AVEC,
anything in this Lease to the contrary notwithstanding.
25. Recording. This Lease may be recorded at AVEC's option. In the event
the Lease terminates, Land Owner shall have the right to record an
affidavit so stating.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed:
FOR: PITKA'S POINT NATIVE CORPORATION
STATE OF ALASI{A )
) ss.
Fourth Judicial District }
THIS IS TO CERTIFY that before me, the undersigned, a Notary Public
in and for the State of Alaska, duly sworn and commissioned as such, personally
appeared I+c - A " e, , the of Pitka's
Point Native Corporation, whose name is subscribed to Ae foregoing instrument, and
he/she acknowledged to me that he/she is authorized to and did execute the same freely
and voluntarily for the uses and purposes contained therein.
IN WITNESS WHEREOF, I have hereunto set my hand and notary seal
this 9LIJKX day of 'Ceykmrb� , 2U11.
0�tiiarrlfl,�jy --
f�
a�`t"• �ti Notary Public n and for Alaska
i:
My Commission expires:
:NOTARyl.
PUBLI .4Sz
� .e.... at. f;L a.
FOR ALASKA VILLAGE ELECTRIC COOPERATIVE, INC.
By: V*Fn, ( ou"'V
Meera Kohler, President & CEO
STATE OF ALASKA )
ss.
Third Judicial District }
THIS IS TO CERTIFY that before me, the undersigned, a Notary Public
in and for the State of Alaska, duly sworn and commissioned as such, personally
appeared MEERA KOHLER, the PRESIDENT & CEO of ALASKA VILLAGE
ELECTRIC COOPERATIVE, INC., whose name is subscribed to the foregoing
instrument, and she acknowledged to me that she is authorized to and did execute the
same freely and voluntarily for the uses and purposes contained therein.
IN WITNESS WHEREOF, I have hereunto set my hand and notary seal this AAW
day of , 2011.
►� '. 'I.S
NOTARY
+* = PUBLIC
K L�" KCLQI�
Notary Public in and for Alaska _
My Commission expires: � 7
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