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2009-23RESOLUTION NO. 2009 - 23 COUNCIL MEMBER WOLFF INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, the City of Blair, Nebraska, hereinafter referred to as "City ", owns real estate located on a parcel of land hereinafter referred to as "Site ", near the City of Blair Water /Sewage Plant in Blair, NE and commonly known as 742 Fairview Dr., Blair, Nebraska, and WHEREAS, Northstar Wind Towers L.L.C., hereinafter referred to as "Tenant ", desires to occupy, and the City is willing to lease said real estate to the Tenant, at the Site for Tenant's Wind Tower Project, hereinafter referred to as "Tower ", including the related equipment necessary for operation of said project. NOW, THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA, that the City of Blair has entered into an agreement with Northstar Wind Towers L.L.C., identified as Exhibit "A" and attached hereto and fully incorporated herein by reference, leasing land for the location of the Tower, and that the terms and conditions as contained in the Agreement with Northstar Wind Towers L.L.C. are hereby approved and that the Mayor is hereby authorized to execute said Agreement. COUNCILMEMBER WOLFF MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCILMEMBER FANOELE. UPON ROLL CALL, COUNCILMEMBERS STEWART, KEPHART, FANOELE, CHRISTIANSEN, ABBOTT, WOLFF AND JENSEN VOTING "AYE ", AND COUNCILMEMBERS NONE VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 28TH DAY OF JULY, 2009. ATTEST: 1,J) BRENDA WHEELER, CITY CLERK (SEAL) CITY OF BLAIR, NEBRASKA S REALPH, MAYOR STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA R. WHEELER hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said city held on the 28th day of July, 2009. /tt / BRENDA R. WHEELER, CITY CLERK ATTACHMENT "A" LEASE AGREEMENT FOR WIND TOWER PROJECT This Lease is made and entered into the 28th day of July 2009, by and between The City of Blair, Nebraska, whose address is 218 S 16 Street, Blair, NE 68008, hereinafter referred to as "City ", and Northstar Wind Towers L.L.C., hereinafter referred to as "Tenant." WHEREAS, City owns real estate located on a parcel of land hereinafter referred to as "Site ", near the City of Blair Water /Sewage Plant in Blair, NE and commonly known as 742 Fairview Dr., Blair, Nebraska. See the Site as identified on Exhibit "A" attached hereto and fully incorporated herein by reference. WHEREAS, Tenant desires to occupy, and the City is willing to lease said real estate to the Tenant, at the Site for Tenant's Wind Tower Project, hereinafter referred to as Tower, including the related equipment necessary for operation of said project. NOW, THEREFORE, in consideration of the mutual promises, conditions, and other good and valuable consideration of the parties hereto, it is covenanted and agreed as follows: 1. Use of the Premises and Grant of Easement Rights. Tenant shall be entitled to nonexclusive use the premises to construct, operate, modify as necessary, and maintain thereon a Wind Tower device not to exceed one hundred (100) feet in height, and all necessary lines, anchors, connections, devices and equipment for the installation and operation of the Tower with the approval of the City. 2. Term of Lease. The lease term will be three (3) years, commencing on September 1 2009 and ending on August 31 2012. 3. Termination of Agreement. After the conclusion of the first year, either party shall have the unilateral right to terminate this Lease at any time by giving ninety (90) days written notice to the other party. 4. Rent. Tenant shall pay rent to the City in the amount of one dollar ($1.00) per month, which shall be due on the first day of each calendar month during the term of the lease. 5. Tenant's Personal Property. The City acknowledges and agrees that all personal property, equipment, apparatus, fittings, building, fixtures and trade fixtures installed or stored on the Premises by Tenant constitute personal property, not real property, and shall continue to be the personal and exclusive property of Tenant. Tenant's Equipment shall remain at all times the personal property of Tenant, and neither the City nor any person claiming by, through or under the City shall have any right, title Page 1 of 5 or interest in Tenant's Equipment. Tenant shall have the right to remove Tenant's Equipment at any time during the term of this Lease or its earlier termination. 6. Tower Maintenance. Tenant represents and acknowledges that it has the duty and responsibility to repair and maintain the Tower. 7. Utilities. Tenant shall be responsible for the separate metering, billing, and payment of all utility services consumed by its operations if necessary. All meter locations shall be approved by the City. If the Tenant requires additional utilities, additional utilities would need to be installed and metered at the Tenant's expense. 8. Taxes. Tenant shall pay any personal property taxes levied against Tenant's equipment. The City is responsible for all real estate taxes and assessments attributable to the land underlying the Premises. 9. Access. Tenant shall have access to the site at all hours of the day and night as agreed to by the City. 10. Fencing. The area covered by the lease shall have a fence as shown on Exhibit "A" attached hereto and fully incorporated herein by reference. The fence shall remain in place for a period of one (1) year from the date of execution of this agreement or until the City is ready to develop the real estate in question which ever is later. When the City is prepared to develop the real estate in question the City shall give thirty (30) day written notice to the Tenant to remove the said fence. If the City requests that the fence be removed after one (1) year and before the expiration of three (3) years the Tenant may reduce the fenced in area to a fifty (50) foot by fifty (50) foot area directly around the Tower. In addition to the above fence the Tenant shall install and connect a 3 strand barbed wire fence from the above fence to the NRD fence and gate going east along the new road. 11. Grading. All grading costs and erosion control costs related to the construction of the Tower including roads, paving and dirt work, etc shall be at the sole expense and cost of the Tenant. Any grading work on the real estate in question must have prior approval by the City. Further, all grading work performed on the real estate in question shall maintain the present drainage on the site as currently exists. 12. Compliance with Laws. Tenant, shall, at Tenant's cost and expense, comply with all federal, state, county or local laws, rules, regulations and ordinances now or hereafter enacted by any governmental authority or administrative agencies having jurisdiction over the Site and Tenant's operations thereupon. 13. Indemnification. Tenant shall indemnify and hold the City harmless from and against any loss, damage, or injury caused by, or on behalf of, or through the fault of the Tenant, or resulting from Tenant's use of the Premises or its presence at the Site. Nothing in this Article shall require either party to indemnify the other party against such Page 2 of 5 other party's own willful or negligent misconduct. 14. Insurance. During the term of this agreement the Tenant shall provide at least annually, proof of insurance continuously covering claims for public liability, personal injury, death and property damage with limits not less than $1,000,000 per person and $2,000,000 per occurrence, and property damage insurance of not less than $1,000,000. Such insurance shall insure against liabilities arising out of or in connection with the Tenant's use or occupancy of the City's premises. 15. Interference. Tenant's facilities shall be installed and operated in a manner that does not cause interference with the City's existing operations. Should such interference occur, Tenant shall diligently pursue a cure to remove or satisfactorily alleviate such interference. The City hereby covenants to use its best efforts to afford Tenant similar protection from interference which may be caused by the operation of tenants that begin occupying the premises subsequent to the commencement of Tenant's lease. 16. Default. If Tenant fails to comply with any provision of this Lease which the other party claims to be a default hereof, the City shall serve written notice of such default upon the defaulting party, whereupon a grace period of thirty (30) days shall commence to run during which the defaulting party shall undertake and diligently pursue a cure of default. This Article shall not apply in the case of interference, which instead shall require immediate and effective curative action. 17. End of Lease Term. Upon the expiration or earlier termination of this Lease, Tenant shall remove all of Tenant's property from the Premises and surrender the Premises to the City in good condition, reasonable wear and tear excepted. The parties agree that all of Tenant's property must be removed from the Premises no later than ninety (90) days from the date of expiration or effective termination hereof unless otherwise agreed to in writing. However, at the end of the lease term Tenant agrees to remove the Tower, fence, all fixtures, foundations and associated hardware to a level that is six (6) feet below the ground surface. Tenant shall have the option if mutually agreed upon in writing to donate the Tower to the City subject to the City's written acceptance. The City shall have the option to retain Foundation and Slab on Grade if it so agrees and the City at its sole discretion may allow the anchor bolts to be cut off at grade. All rock parking roads and road ways shall be left intact upon termination of the lease term and they shall become the property of the City. 18. Binding Effect. All of the covenants, conditions, and provisions of this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective successors. 19. Entire Agreement. This Lease constitutes the entire agreement of the parties, and may not be modified except in writing signed by the party against whom such modification is sought to be enforced. Page 3 of 5 20. Choice of Law and Forum. Any dispute under this agreement shall be governed by the laws of the State of Nebraska and shall be limited to the court system of Washington County, Nebraska by agreement of the parties. IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written. CITY: City of Blair, Nebraska B '� � I Jam s E. ealph, Mayor State of Nebraska County of Washington I, the undersigned, a notary public in and for the State and County aforesaid, do hereby certify that James E. Realph, known to me to be the same person whose name is subscribed to the foregoing Lease, appeared before me this day in person and acknowledged that, pursuant to his authority, he signed the said Lease as his free and voluntary act and deed for the uses and purposes therein stated. Given under my hand and seal this 28th day of July, 2009. Notary Public My commission expires 3une 2 Zoo 2 Page 4 of 5 ilt.,,,L TENANT: Author'. +� e Pr Title: resen ative of Northstar Wind Towers L.L.C. ,14-1 / 1.(45 State of Nebraska ) )ss County of Washington ) I, the undersigned, a notary public in and for the State and County aforesaid, do hereby certify that Crre � VN 1 LS an authorized representative of Northstar Wind Towers L.L.C. , known to me to be the same person whose name is subscribed to the foregoing Lease, appeared before me this day in person and acknowledged that, pursuant to his authority, he signed the said Lease as his free and voluntary act on behalf of Northstar Wind Towers L.L.C. for the uses and purposes therein stated. Given under my hand and seal this 28th day of July, 2009. Page 5 of 5 Notary Public My commission expires J 4(S e 2 A ao c ?- U101 0BERAL NOTAR'(- Sttie of Nebraska BRENDA R. WHEELE My Comm. BB. June 20, 2012 Black Hills Energy Spoils Distribution Area & Demo`ed Trees Chain Link Fence to Match Laydown Area Trees to be Removed