HomeMy WebLinkAboutRes1984-065
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06/15/84
FBA/rsa
CITY OF SEWARD, ALASKA
RESOLUTION NO. 84-65
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, FINDING THAT THE PUBLIC
INTEREST WOULD BE SERVED BY A DISPOSITION OF
THE GATEWAY SUBDIVISION BY NEGOTIATED SALE TO
GATEWAY VENTURES, INC.
WHEREAS, the City Council of the City of Seward,
Alaska, has repeatedly determined that development of the City of
Seward in an orderly manner is in the public interest, and
WHEREAS, numerous capital projects of the City of
Seward have been implemented in order to promote industrial
development of the City in order to assure steady rates of
employment and promote new industries, and
WHEREAS, there is now a critical
residential building lots within the City
anticipates rapid residential growth as a
new industries locating in Seward, and
shortage of available
limits, and the City
result of the several
WHEREAS, public development of the Gateway Subdivision
would involve commitment of scarce public resources which are now
fully engaged in developing necessary public services, and
WHEREAS, the City Council offered, by public notice,
the opportunity for private firms to develop the Gateway
Subdivision in its Request for Proposals dated March , 1984,
and that process provided interested members of the public and
the market generally to determine under what conditions and terms
development of the Gateway Subdivision could best take place, and
WHEREAS, the City Council has determined, in Resolution
84-59, that the public interest would not be served by an
appraisal prior to disposition of the Gateway Subdivision, and
WHEREAS, the City and Gateway Ventures, Inc., have
concluded a negotiated sale of the property described in the
Contract of Sale of Unimproved Property and related documents
which are attached hereto as exhibits.
WHEREAS, the Developer, Gateway Ventures, Inc., has
agreed to deve lop the property in accordance wi th that certain
Development Agreement attached and in which the Developer has
undertaken the development of the property and the consistent
supply of residential building sites for construction in Seward,
and
provide
WHEREAS,
off-site
the Developer has
improvements which
additionally
will enhance
agreed to
the City's
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existing utility services as well as serve the property being
developed.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF
CITY OF SEWARD, ALASKA, as follows:
Sect ion l.
public interest to
attached Exhibits by
The City Council finds that it is in the
dispose of the property described on the
negotiated sale rather than public auction.
interest
property
process.
Section 2. The City Council finds that the public
in assuring full and fair opportunity to purchase the
has been accomplished by the Request for Proposal
Section 3. The City Council finds that the best
proposal was that submitted by Gateway Ventures, Inc.
concluded
protection
Resolution
Section 4. The City Council finds that the agreements
subsequent to that proposal have provided adequate
to the public interest as described above and in
84-59.
Section 5. The City Manager is directed to execute the
documents attached to this resolution effecting the transfer of
the property described in accordance with the terms of the
agreements attached to this Resolution.
Section 6. This resolution shall become effective
thirty (30) days after passage and posting.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, this 25 day of June , 1984.
{CIT. y,,,' S:W/;A~RD~ ALASKA
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DONALD W. CR PS, MAYOR
AYES:
NOES:
ABSENT:
ABSTAIN:
CRIPPS, HILTON, MEEHAN, SWARTZ, WILLIAMS & WILSON
NONE
NONE
GILLESPIE
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ATTEST:
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(City
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APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN
Fr1:! !~, Attorney
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CONTRACT OF SAL~ OF UNIMPROVED PROPERTY
of
(the
THIS CONTRACT is made and entered into this day
, 1984, by and between the City of Seward, Alaska,
"Seller"), and Gateway Ventures, Inc., (the "Purchaser").
Seller and Purchaser agree as follows:
1. Contract of Sale. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, at the price and upon the
terms and condi t ions set forth in this Contract, the parcel of
land more particularly described in Schedule A attached hereto
(the "Land").
2. Title. Seller shall convey and Purchaser shall accept a
g6oo-and marketable title in fee simple to the Property, free and
clear of all liens and encumbrances, subject only to: (a) the
rights and reservations expressed in the U. S. Patent to the
Property; (bl the lien of current real estate taxes not yet due
and payable; (c) usual and ordinary public utility easements for
gas, electric, water, sewer and other utility lines; and (d) the
matters set forth in Schedule B attached hereto (collectively,
the "Permitted Exceptions").
3. Purchase Price and Acceptable Funds. The purchase price
(the "Purchase Price") to be paid for the Property as provided in
Schedule C shall be SEVEN HUNDRED FORTY-TWO THOUSAND FIVE HUNDRED
AND NO/lOa DOLLARS ($742,500.00). The Purchase Price and all
other monies payable under this Contract, unless otherwise speci-
fied in this Contract, shall be paid by (a) good certified checks
of Purchaser or any entity making a purchase money loan to Pur-
chaser drawn on a bank or savings and loan association having a
banking office in the State of Alaska or (b) bank checks drawn on
any such financial institution, payable to the order of Seller,
except that uncertified checks of Purchaser payable to the order
of Seller up to the amount of two percent (2%) of the Purchase
Price shall be acceptable for sums payable to Seller at Closing.
4. Purchase Money Deed of Trust.
(a) Schedule C provides for the payment of the Purchase
Price by execution and delivery to Seller of a promissory note
secured by a purchase money deed of trust.
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5. Closinq. The closing of title
"Closing") shall take place on the
at
pursuant to this Contract
day of
o'clock .m.
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6.
that:
Acknowledgements of Purchaser.
Purchaser acknowledges
(a) Purchaser has inspected the Property, is
familiar with the physical condition thereof, and shall
the Property "AS IS" and in its present condition.
fully
accept
(b) Before entering into this Contract, Purchaser has
made such examination of the Property as Purchaser deemed neces-
sary. In entering into this Contract, Purchaser has not been
induced by and has not relied upon any representations, warran-
ties or statements, whether express or implied, made by Seller or
any agent, employee or other representative of Seller or by any
broker or any other person representing or purporting to repre-
sent Seller, which are not expressly set forth in this Cotract,
whether or not any such representations, warranties or statements
were made in writing or orally.
7. Condemnation. If prior to the Closing Date, all or any
part of the Property shall be taken by condemnation in any pro-
ceeding by a governmental authority or other entity vested with
the power of eminent domain or shall be acquired for public or
quasi-public purposes or condemnation proceedings therefor shall
have been instituted, then Purchaser may elect to cancel this
Contract by giving Seller notice to such effect within thirty
(30) days after Purchaser shall have received notice of such
occurrence, and, if Purchaser shall so elect, both parties shall
be relieved and released of and from any and all further liabil-
ity hereunder. If Purchaser does not elect to so cancel, this
Contract shall remain in full force and effect and Seller shall,
at the Closing, sell, transfer and assign to Purchaser all of
Seller's right, title and interest in and to any award paid or
payable for such taking.
8. Seller's Closing Obligations. At the Closing, Seller
shall deliver the following to Purchaser:
( a)
substance with
description of
proper form for
this Contract.
A Statutory Warranty Deed complying in form and
A. S. Section 34.15.030, containing an adequate
the Property, and being properly executed and in
recording so as to convey the title required by
(b) A policy of title insurance in an amount equal to
the Purchase Price, and such affidavits as Seller's title company
shall reasonably require in order to omit from its policy of
title insurance all exceptions for mechanics liens, judgments,
bankruptcies or other returns against persons or e(1.tities whose
names are the same as or similar to Seller's name.
(c) Possession of the Property in the condition
required by this Contract.
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(d) Any other documents required by this Contract to be
rlelivered by Seller.
9. Purchaser's Closing Obligations. At the Closing, Pur-
chaser shall deliver the following to Seller:
(a) Checks in payment of
Price payable at the Closing, as
under pa ragraph IS, recording fees
fees for the Purchase Money Mortgage,
the port ion of the Purchase
adjusted for apportionments
for the deed and recording
if any.
(b) The purchase money deed of trust, ln proper form
for recording, and the note secured thereby.
(c) The fully executed Development Agreement.
(d) Any other documents required by this Contract to be
delivered by Purchaser.
lU. Apportionments.
(a) The following apportionments shall be made between
the parties at the Closing as of 12:01 A.M. on the Closing Date:
.
(i) Real estate taxes. Such taxes shall be appor-
tioned upon the basis of the fiscal period for which assessed,
and if the Closing shall occur before a new tax rate is fixed,
the apportionment of taxes at the Closing shall be upon the basis
of the old tax rate for the preceding fiscal period applied to
the latest assessed valuation.
11. Objections to Title. Seller shall promptly order a
preliminary commitment for a policy of title insurance in an
a~ount equal to the Purchase Price. Seller shall be entitled to
a reasonable adjournment of the Closing for up to sixty (60) days
or until the expiration date of any written commitment of Pur-
chaser's Institutional Lender delivered to Purchaser prior to the
scheduled date of Closing, whichever occurs first, to remove any
defects in or objections to title noted in such title report and
any other defects or objections which may be disclosed on or
prior to the Closing Date.
12. Failure of Seller or Purchaser to Perform.
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(a) I!eller shall be unable to convey title to the
Property at the Closing in accordance with the provisions of this
Contract or if Purchaser shall have any other grounds under this
Contract for refus ing to consummate the purchase provided for
herein, Purchaser, nevertheless, may elect to accept such title
as Seller may be able to convey wi th a credi t against the Pur-
chase Price and the monies payable at Closing equal to the rea-
sonably estimated cost to cure the same up to the Maximum 2xpense
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of two percent (2%) of the Purchase Price, but without any other
credit or liability on the part of Seller. If Purchaser shall
not so elect, Purchaser may cancel this Contract by giving Seller
notice to such effect and the sole liability of Seller shall be
to refund the Earnest Money to Purchaser. Upon such refund and
reimbursement, this Contract shall be null and void and the
parties hereto shall be relieved and released of and from any and
all further obligations and liability other than any arising
under paragral?h 18. Seller shall not be required to bring any
action or proceeding or to incur any expense in excess of the
Maximum Expense to cure any title defect or to enable Seller
otherwise to comply with the provisions of this Contract.
(b) Any unpaid taxes and assessments, charges for util-
ity services, together with the interest and penalties thereon to
the Closing Date, and any other liens and encumbrances which
Seller is obligated to pay and discharge or which are against
corporations, estates or other persons in the chain of title,
together with the cost of recording or filing any instruments
necessary to discharge such liens and encumbrances of record, may
be paid out of the monies payable at the Closing if Seller deliv-
ers to Purchaser on the Closing Date official bills Ear such
taxes, assessments, charges, interest and penalties and instru-
ments in recordable form sufficient to discharge any other liens
and encumbrances of record.
(c) If Purchaser shall default in the performance of
its obligation under this Contract to purchase the Property,
Seller shall have the right to institute an action for specific
performance to enforce Purchaser's obligation under this Contract
to purchase the Property.
13. Broker. Seller and Purchaser each represent to the
other that neither is represented by any broker, agent or finder
in connection with this transaction. Each party agrees to indem-
nify and hold the other party harmless from and against any and
all liability, costs, damages, causes of action or other proceed-
ings instituted by any broker, agent or finder, licensed or
otherwise, claiming through, under or by reason of the conduct of
the indemnifying party in the purchase and sale of the Property
or in any manner whatsoever in connection with this transaction.
14. Miscellaneous Provisions.
(a) This Contract sets forth the entire agreement of
the parties as to the subject matter hereof and supersedes all
prior discussions and understandings between them. This Contract
may not be amended or rescinded in any manner except by an
instrument in writing signed by a duly authorized officer or
representative of each party hereto.
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(b) This Contract shall be governed by, and construed
and enforced in accordance with, the laws of the State of Alaska.
(c) Should any of the provisions of this Contract be
found to be invalid, illegal or unenforceable by any court of
competent jurisdiction, such provision shall be stricken and the
remainder of this Contract shall nonetheless remain in full force
and effect unless striking such provision shall materially alter
the intention of the parties.
(d) In the event any action is brought to enforce this
Contract, the parties agree to be subject to exclusive in per-
sonam jurisdiction in the Superior Court for the State of Alaska
and agree that in any such action venue shall lie exclusively at
Anchorage, Alaska in the Third Judicial District, State of
Alaska.
(e) No waiver of any right under this Contract shall be
effective unless contained in a writing signed by a duly author-
ized officer or representative of the party sought to be charged
with the waiver and no waiver of any right arising from any
breach or failure to perform shall be deemed to be a waiver of
any future right or of any other right arising under this Con-
tract.
.
(f) Paragraph headings contained in this Contract are
included for convenience only and form no part of the agreement
between the parties.
(g) All notices or requests required or permitted under
this Contract shall be in writing; shall be personally delivered
or sent by certified mail, return receipt requested, postage
prepaid; shall be deemed given when so delivered or mailed, irre-
spective of whether such notice or request is actually received
by the addressee; and shall be sent to the parties at the
addresses set forth below:
Purchaser:
Seller:
Gateway Ventures, Inc.
6230 "A" Street
Anchorage, AK 99507
Ci ty of Seward
Post Office Box 167
Seward, AK 99664
.
(h) This Contract shall be binding upon, and inure to
the benefit of, the parties hereto and their respective succes-
sors and assigns. Purchaser shall not assign this Contract or
its rights hereunder without the prior written consent of Seller,
which consent may be withheld for any reason deemed sufficient by
Seller in its sole and uncontrolled discretion. No permitted
assignment of this Contract or Purchaser's rights hereunder shall
be effective against Seller unless and until an executed counter-
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part of the instrument of assignment shall have been delivered to
Seller and Seller shall have been furnished with the name and
address of the assignee. The term "Purchaser" shall be deemed to
include the assignee under any such permitted assignment.
(i) This Contract shall not be binding or effective
until properly executed and delivered by Seller and Purchaser.
(j) As used in this Contract, the masculine shall
include the feminine and neuter, the feminine shall inclucie the
masculine and neuter, the neuter shall include the masculine and
feminine, the singular shall include the plural, and the plural
shall include the singular, as the context may require.
(k) If the provisions
Contract are incons is tent wi th
the provisions of such schedule
of any schedule or rider to this
the provision of this Contract,
or rider shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the date first above written.
SELLER:
CITY OF SEWARD, ALASKA
By
PURCHASER:
GATEWAY VENTURES, INC.
By
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Lots 22, 23 and 24, Block 1; Lots 1
inclusive, Block 8; Lots I through
through 40 inclusive, Block 9
ADDITION, City of Seward, Seward
District, Third Judicial District,
Alaska.
through 7
7 and 34
TERMINAL
Recording
State of
e
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Schedule A
.
Description of Property
The Property is described as follows:
All of TERMINAL ADDITION in the City of
Seward, Seward Recording District, Third
Judicial District, State of Alaska, SAVE and
EXCEPT Lots 10, II, 12, 22, 23 and 24,
tUock 1; Lots I through 7 inclusive, Block 8,
Lots 1 through 7 inclusive and Lots 34 through
40 inclusive, Block 9, and Lots 6 and 7,
Block 2~.
All of tracts A-IA and A-2A, JESSE LE~ HEiGHTS
SUBDIVISION, ADDITION NO. l~ a subdivision of
portions of Jesse Lee Heights Subdivision,
Bayview Addition and Terminal Addition, City
of Seward, according to Plat 6 on file in the
Seward Recording District, Third Judicial
District, State of Alaska.
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Lots la, II and 12, Block 1, TERMINAL ADDITION
in the City of Seward, Seward Recording
District, Third Judicial District, State of
Alaska.
Lots 6 and 7, Block 29, TER/>II NAL ADDIT ION in
the City of Seward, Seward Recording District,
Third Judicial District, State of Alaska.
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Schedule B
Permitted Exceptions
I. Zoning regulations and ordinances which are not violated
by the existing impt"ovements, if any, or the present use thereof
and which do not render title uninsurable.
2. Consents by the Seller or any former owner of the Prop-
erty for the erection of any structure or structures on, under or
above any street Ot" streets on which the Property may abut.
3. Unpaid installments of assessments not due and payable
on or before the Closing Date.
4. Securi'ty agreements and financing statements on person-
alty filed more than five (5) years prior to the Closing Date and
not renewed, or filed against property or equipment no longer
located on the Property or owned by Tenants.
5. Rights of utility companies to install,
t"epair pipes, lines, poles, conduits, cable boxes
equipment on, over and under the Property, provided
such rights imposes any monetary obligation on the
Prope rty.
ma inta i nand
and re la ted
that none of
owner of the
6. Encroachments ascertainable by physical inspection of
the Property.
7. Revocability of the right to maintain excavations and
sub-surface equipment beyond the property line of the Property.
8. Any state of facts that an accurate survey would dis-
close, provided that such facts do not render the title unmarket-
able.
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Schedule C
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Purchase Price
The Purchase Price shall be paid as follows:
By execution and delivery to Seller by Purchaser or its
assignee of a promissory note secured by a Purchase Money Deed of
Trust covering the Property and by a separate deed of trust
securing development performance obligations, payable as follows:
As lots are developed and sold within the Land, Pur-
chaser shall pay to Seller the sum of $2,000.00 per lot
until 100 lots have been sold. Thereafter, Purchaser
shall pay to Seller the sum of $3,500.00 per lot until
the total price of $742,500.00 shall have been paid.
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DEVELOPMENT AGREEMENT
THE CITY OF SEWARD (hereinafter the "City"), an Alaska
home rule city, and GATEWAY VENTURES, INC. (hereinafter the
"Developer'), enter into the following Agreement this
day
of June, 1984.
Kenneth J. Lythgoe, Lynn H. Lythgoe, Jr., and John F.
Gillespie execute this Agreement on behalf of the Developer. It
is understood that the Developer is an Alaska corporat ion, and
that the persons who executed the Agreement on behalf of the
Developer do so in the capacity of officers and directors.
Kenneth J. Lythgoe, Lynn H. Lythgoe, Jr., and John F. Gillespie
warrant that they have authority to execute this Agreement on
behalf of the Developer.
The parties to this Agreement shall
accept notices at the following addresses and telephone numbers:
Developer
City
Gateway Ventures, Inc.
6230 'A" Street
Anchorage, AK 99502
(907)
Ci ty Manager
Ci ty of Seward
Fifth & Adam Streets
Post Office Box 167
Seward, AK 99664
(907) 224-3331
The real property which is the subject of this
Agreement (hereinafter the "Property') is located in the City of
Seward and is described as:
All of TERMINAL ADDITION in the City of
Seward, Seward Recording District, Third
Judicial District, State of Alaska, SAVE and
EXCEPT Lots 10, 11, 12, 22, 23 and 24,
Block 1: Lots 1 through 7 inclusive, Block 8:
Lots 1 through 7 inclusive and Lots 34
through 40 inclusive, Block 9, and Lots 6 and
7, Block 29.
All of tracts A-IA and A-2A, JESSE LEE
HEIGHTS SUBDIVISION, ADDITION NO.1, a
subdivision of portions of Jessee Lee Heights
Subdivision, Bayview Addition and Terminal
Addition, City of Seward, according to Plat 6
on file in the Seward Recording District,
Third Judicial District, State of Alaska.
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Lots 10, 11 and
ADDITION in the
Recording District,
State of Alaska.
12, Block 1, TERMINAL
City of Seward, Seward
Third Judicial District,
Lots 22, 23 and 24, Block 1.; Lots 1
inclusive, Block 8: Lots 1 through
through 40 inclusive, Block 9
ADDITION, City of Seward, Seward
District, Third Judicial District,
Alaska.
through 7
7 and 34
TERMINAL
Recording
State of
Lots 6 and
the City
District,
Alaska.
7, Block 29, TERMINAL ADDITION in
of Seward, Seward Recording
Third Judicial District, State of
The Developer seeks the City's agreement to enter into
a contract for the sale of the Property from the Ci ty to the
Developer for development.
In consideration of the City's
agreement to enter into such a contract of sale. the Deve loper
agrees to cons truct and install the improvements described in
Article IV of this Agreement in accordance with all the terms,
covenants and conditions of this Agreement.
The Developer shall construct and install the following
improvements:
x street
-X- sidewalk
---x- curb and gutter
---x- storm drain
---x- drainage
---x- sanitary sewer
X water
X telephone
-X- electrical
X monumentation
-X- street lighting
---x- traffic control devices
-X- street signs
--;r-- other: Reservoir system
The Developer estimates the cost of the improvements to
be $2.5 million.
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ARTICLE I
GENERAL PROVISIONS
1.01 Application of Article
Unless this Agreement expressly provides otherwise. all
provisions of this article apply to every part of this Agreement.
1.02 Permits, Laws, and Taxes
The Developer shall acquire and maintain in good
standing all permits, licenses, platting approvals and other
entitlements necessary to its performance IJnder this Agreement.
All actions taken by the Developer IJnder this Agreement shall
comply with
all applicable statlJtes, ordinances,
rules,
and
regulat~ons. The Developer shall pay all taxeS pertaining to its
performance IJnder this Agreement.
1.03 Relationship of Parties
Neither by entering into this Agreement, nor by doing
any act hereunder, may the Developer, or any contractor or
subcontractor of the Developer be deemed an agent, employee. or
partner of the City, or otherwise associated with the City other
than,
in the case of
the Developer,
as an
independent
contractor. The Developer and its contractors and subcontractors
shall not represent themselves to be agents, employees. or
partners of the City, or otherwise associated with the City other
than,
in the case of
the Developer,
as an
independent
contractor.
The Developer shall notify all its contractors and
subcontractors of the provisions of this section.
1.04 Enqineer's Relation to City
Notwithstanding Section 2.08, or any agreement Whereby
the City reimburses the Developer's engineering costs, an
engineer retained by the Developer to perform work IJnder this
Agreement shall not be deemed an agent, employee, partner, or
contractor of the City, or otherwise associated with the City.
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1.05 Developer's Responsibility
The Developer shall be solely responsible for the
faithful !;>erformance of all terms, covenants, and conditions of
this Agreement, notwithstanding the Developer's delegation to
another of the actual !;>erformance of any term, covenant, or
condition hereof.
1.06 Allocation of Liabilitv
The Developer shall indemnify and hold the City
,
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,
\
:.t
:~
harmless from any claim, action, or demand arising from any act
or omission related to this Agreement in whole or in part of the
.;
Developer, his agents, employees, or contractors.
The liability
...
"
~,
assumed by the Developer pursuant to this section includes, but
is not limited to claims for labor and materials furnished for
the construction of the improvements.
i
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1.07 Disclaimer of Warranty
Notwi thstanding this Agreement or any action taken by
any person hereunder, neither the City nor any City officer.
agent,
or
employee
warrants
or
t:'epresents
the
fitness,
suitability, or merchantability of any property, !;>lan, design,
material, workmanship, or structure for any !;>urpose.
1.08 Non-Discrimination
A. In performing its obligations under this Agreement,
the Developer shall not discriminate against any person on the
basis of race, creed, color, national origin, sex, marital
st.atus, or age.
B. In
selling
property
or
improvements
in
the
subdivision, the Developer shall not discriminate against any
person on the basis of race, creed, color, national origin, sex,
marital status, or age.
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1. 09
Cost of Documents
All plans, reports, drawings, or other documents that
this Agreement requires the Developer to provide the City , shall
be furnished at the Developer's expense.
1.10 Public Utilities
A. Any public utility service contemplated by this
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Agreement need be provided only to areas where the service is
allowed by the Alaska Public Utilities Commission and applicable
law.
All utility service shall
conform to
the
r:ules,
.J'
"'
;
regulations,
and
tariffs
of
the Alaska
Public
Utili ties
Commission to the extent they may apply.
a. If the Alaska Public Utilities Commission disallows
any utility service by the City or any utility following
execution of this Agreement, the provlsion of the disallowed
service shall be deleted from the requirements under this
Agreement wi thout affecting any other part hereof. The
disallowance shall not be grounds for any Claim, action, or
demand against the City.
1.11 Time is of the Essence
Unless otherwise expressly provided herein, time is of
the essence of each and every term, covenant, and condition of
this Agreement.
1.12 Assiqnments
A. Except insofar as subsection a of this section
specifically permits assignments, any assignment by the Developer
of its interest in any part of this Agreement or any delegation
of duties under this Agreement shall be void, and any attempt by
the Developer to assign any part of its interest or delegate any
duty under this Agreement shall constitute a default entitling
the City to invoke any remedy available to it under Section 1.13.
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B. The Developer may assign its interest or delegate
its duties under this Agreement:
1.
To the extent that Article 9
Commercial Code requires that
contract rights be allowed.
of the Uniform
assignments of
2. To contractors and subcontractors, subject to
Section 1. 05.
3. As expressly permitted in writing by the City.
1.13 Default - City's Remedies
A. The Ci ty may declare the Deve loper to be in
default:
1. If the Developer is adjudged a bankrupt, makes
a general assignment for the benefit of
creditors, suffers a receiver to be appointed
on account of insolvency, takes advantage of
any law for the benef i t of insolvent debtors:
or
2. If the Developer has failed in any measurable
way to perform its obligations under this
Agreement, provided the City gives the
Developer notice of the failure to perform and
the Developer fails to correct the failure
within thirty (30) days of receiving the
notice; or if the failure requires more than
thirty (30) days to cure, the Developer fails
within thirty (30) days of receiving the notice
to commence and proceed with diligence to cure
the failure.
3. If the Developer is in default under that con-
tract of sale, purchase money deed of trust,
and deed of trust executed by Developer in
favor of the City on , 1984.
B. Upon a declaration of default, the City may do any
one or more of the following:
1. Terminate the Agreement wi thou t liabi li ty for
any obligation maturl,ng subsequent to the date
of the termination.
2. Perform any act required of the Developer under
this Agreement, including constructing all or
any part of the improvements after giving seven
(7) days notice in writing to the Developer.
The Developer shall be liable to the City for
any costs thus incurred. The City may deduct
any costs thus incurred from any payments then
or thereafter due the Developer from the Ci ty
whether under this Agreement or otherwise.
3. Exercise its rights under any provision of this
Agreement, or any ~erformance or warranty
guaranty securing the Developer's obligations
under this Agreement.
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4.
Pursue any
including but
injunction and
appropriate judicial remedy.
not limited to an action for
civil penalties.
1.14 Non-Waiver
The failure of the City at any time to enforce a
provision of this Agreement shall in no way constitute a waiver
of the provision, nor in any way affect the validity of this
Agreement or any part hereof, or the right of the City thereafter
to enforce each and every provision hereof.
1.15 Interpretation
A. Each document incorporated by reference herein is
an essential part of this Agreement, and any requirement, duty,
or obligation stated in one document is as binding as if stated
in all.
All documents shall be construed to operate in a
complementary manner and to provide for a complete project.
B. If the terms of any of the documents and amendments
thereto comprising this Agreement conflict, the conflict shall be
resolved by giving the conflicting documents and amendments
thereto the following order of preference:
1. Documents or
Provisions."
sections
titled
"Special
2. Article II of this Agreement titled
"Construction of Improvements," and Article III
of this Agreement titled "Acceptance of
Improvements."
J. Article I of this Agreement titled "General
Provisions."
4. Documents incorporated under Article IV of this
Agreemen t.
5. Article IV of this Agreement
"Improvement Requirements."
titled
6. Any other document incorporated by reference
herein.
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1.16 Effect of Standard Specifications
The
1984
Municipality
of
Anchorage
Standard
Specifications are incorporated by reference herein as minimum
construction standards for performance under this Agreement,
except where this Agreement specifically provides otherwise:
provided, however, that provisions in the Standard Specifications
describing the relationships and responsibilities of parties to
municipal construction contracts do not apply herein to the
extent that they conflict with any provision of this Agreement.
1.17 Amendment
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The parties may amend this Agreement only by written
agreement, which shall be attached as an appendix hereto.
1.18 Jurisdiction - Choice of Law
Any civil action ariSing from this Agreement shall be
brought in the Superior Court for the Third Judicial District of
the State of Alaska at Seward.
The law of the State of Alaska
shall govern the rights and duties of the parties under this
Agreement.
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1.19 Severability
Any prOVision of this Agreement that may be declared
invalid or otherwise unenforceable by a court of competent
jurisdiction shall be ineffective to the extent of ach
invalidity without invalidating the remaining provisions of the
Agreement.
1.20 Inteqration
..
This instrument, and any writings incorporated by
reference herein, embody the entire agreement of the parties.
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This Agreement shall su~ersede all ~revious communications,
representations, or agreements, whether oral or written, between
the ~arties hereto.
1.21 Definitions
Unless this Agreement expressly ~rovides otherwise, the
following definitions shall a~~ly herein:
A. "Improvements" means all work ,.,hich the Develo~er
is required to ~erform by this Agreement.
S. .'City improvements II means improvements ',.,hich are to
be dedicated to the City ~ursuant to Cha~ter of the Seward
City Code, or the final approval of a cond i t ional use unde r
Chapter of the Seward City Code, or which are to be
o~erated and controlled by a City owned utility.
C. "City," for the ~urposes of administering this
Agreement, means the City Manager for the City of Seward, or his
designee.
D. "Acceptance" by the City means a determination that
an improvement meets City construction standards, and does not
refer to accepting a dedication of the improvement by the
Developer.
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ARTICLE II
IMPROVEMENT CONSTRUCTION STANDARDS AND PROCEDURES
2.01 Recordinq of Pinal Plat
The final plat for the subdivision shall not be
recorded until the Developer has submitted, and the City has
approved the performance guaranty required by Section 2.02.
2.02 Performance Guaranty
A. The Developer shall guarantee, for the sole benefit
of the City, that the Developer will perform all of its
obligations under this Agreement.
The guaranty shall be in one
of the forms specified by Sections 2.03, 2.04 and 2.05.
During
the term of this Agreement, the Developer may, with the written
consent of the City, substitute for a performance guaranty
submi tted under this section another guaranty in the required
amount and in one of the forms specified by Sections 2.03, 2.04
and 2.05.
a. Amount of Guaranty
1. The guaranty shall be in an amount equal to the
estimated cost of all improvements, which shall
be computed as follows. The Developer shall
submit for the City's approval, a cost estimate
for each improvement required by this
Agreement. The Developer's engineer shall
prepare and certify all cost estimates. The
estimated cost of all improvements shall be the
sum of the approved estimated cost of
constructing each improvement, plus an overrun
allowance upon that sum as follows:
Total Estimated Cost of
Constructinq Improvements
Overrun Allowance
less than $500,000.00
$5UO,OOO.00 - $1,000,000.00
over $1,000,000.00
20%
15%
10%
2. If the City finds that increases in
construction costs, between the time the City
approves the estimated improvement costs under
section 2.01 of this Article and the time the
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improvements are completed, have rendered the
approved estimated improvement costs
unreasonably low, the City may require the
Developer to increase the performance guaranty
to an amount equal to an approved estimated
cost of all improvements based upon current
construction costs.
C. If the Developer is not in default under this
Agreement, the Ci ty may allow a reduct ion in the amount of the
performance guaranty,
or the amount secured thereby,
not
exceeding the difference between the estimated cost of all
improvements and the current estimated cost of the work remaining
to be performed under this Agreement; provided, however. that the
amount of the performance guaranty, or the amount secured thereby
always shall be greater than or equal to the amount of the
warranty guaranty required by Section 3.08.
D. As soon as one of the following occurs, the Ci ty
shall release any performance guaranty which has not been used or
encumbered under Section 1.13:
1. The final acceptance of all improvements and
the posting of warranty guaranty as provided in
Section 3.07;
2. The expiration of the warranty period as
provided in Section 3.07; or
3. The expiration of a period of three years from
the date of a declaration of default under
Section 1.13.
2.03 Performance Bond
The Developer may provide a performance bond from a
company qualified by law to act as a surety in the State of
Alaska.
The bond shall be in a form approved by the City.
the
bond shall name the City as the sole obligee and the Developer as
the principal.
2.04 Escrow
. The Developer may deposit cash in an escrow with a bank
or financial institution qualified by law to do business in the
State of Alaska. The disbursement of the escrowed funds shall be
governed by an escrow agreement in a form approved by the City.
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.
2.05 Letter of Credit
The Develo~er may cause a bank or financial institution
qualified by law to do business in the State of Alaska to issue
an irrevocable letter of credit or loan commibment agreement to
the City as beneficiary. The letter of credit or loan commitment
agreement shall be in a form approved by the City.
2.06 Prerequisites to Construction
The Developer shall not obtain permi ts for the
construct ion of improvements, or commence t.he construction of
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improvements until the requirements of Sections 2.07 through 2.12
have been met.
2.07 E:nqineer
A. The Developer shall retain an engineer, registered
as a ~rofessional engineer under the laws of the State of Alaska,
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to design and administer the construction of the improvements,
including ~reparing plans and specifications, ins~ecting and
controlling the quality of the work, and ~re~aring as-built
data.
The engineer shall ~erform the work described herein in
accordance with the City's recommended ~rocedures for consulting
engineers.
B. The Oeveloper shall inform the City of the name and
mailing address of the engineer it has retained to ~erform the
duties described in subsection A of this section, and agrees that
notice to the engineer at the address so s~ecified regarding the
performance of such duties shall constitute notice to the
Developer.
The Developer shall promptly inform the Ci ty of any
change in the information required under this subsection.
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2.08 Plans and Specifications
A. The Deve lope!:" shall submi t to the City, in such
fOt"m as the City may specify, all plans and specifications
pe!:"taining to the construction of the improvements.
B. The Developer shall submit to the City proof that
it has retained an engineer to perform the duties described in
Section 2.07A.
C. If the City requires soils tests or other tests
!?ertaining to the design of improvements, the Developer shall
submi t !:"eports of
the
test
resul ts ..i th
the plans
and
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specifications.
D. The City shall approve the plans and specifications
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as submitted, or indicate to the Developer how it may modify them
"-
to secur~approval ..ithin three ..eeks from the submission of all
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!?lans and specifications for the improvement.
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2.09 Quality Control Proqram
A. The Developer shall submit to the City, in such
form as the City may specify, a quality control !?rogram for the
construction of the improvements.
B. The
quali ty
control
program
shall
!?rovide
sufficient inspection and test procedures to determine compliance
..ith
all
applicable
plans.
specifications.
and
safety
!:"equirements. The program shall include at least the following:
1. The frequency and type of all tests to be
performed.
2. A list of all persons who will perform tests
and inspections.
3. Procedures for coordinating testing and
inspections with the City, and for providing
advance notice to the Ci ty of all inspections
and tests which the City shall witness.
4.
Procedures for reporting
activities. including
deficiencies in the "ork.
quality control
discoveries of
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.
2.10 Woek Schedule
A. The Developee shall submit to the City. in such
form as the City may specify, a woek schedule.
B. The work schedule shall include a progress chart of
a suitable scale, indicating the approximate peecentage of woek
scheduled
foe completion at any given time.
For each
improvement, the schedule shall indicate starting and completion
dates for the following:
1. Clearing, g,rubbing, and eemoving of oveebueden.
2.
Excavation, installation,
compaction for each utility
the Developer.
and backfill and
to be installed by
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3. Excavation, backfill, and compaction foe steeet
facilities othee than paving.
4. Paving.
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2.11 <'1aterials
A. The Developer shall submi t, in such form as the
City may specify, detailed information conceening all materials
and equipment it proposes to incorporate into an impeovement.
B. Upon the City's request, the Developer shall submit
samples of maerials or equipment it proposes to incorpoeate into
an improvement.
2.12 Liability Insurance
The Developer shall provide proof that it has acquired
the insurance r'equired under the 1984 Municipality of Anchorage
standard construction specifications in the fol."lll prescribed in
those standard specifications, or, if the Developer has engaged a
prime contractor' to perfol."lll the work under this Agreement, proof
that the prime contractor has acquired such insurance, naming the
Developer' as an insured.
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2.13 Gene~al Standa~d of Wo~kmanship
A. The Develope~ shall construct all improvements in
acco~dance with plans, specifications, and cont~acts approved by
the City, and with the terms, covenants, and conditions of this
Agreement. The Developer shall not incorporate any material or
equipment into an improvement unless the City has app~oved its
use. Unless the City specifically agrees otherwise in writing,
all materials, supplies, and equipment inco~po~ated into an
improvement shall be new.
B. If the course of construction conditions appear in
the exercise of ~easonable enginee~ing judgment, to ~equi~e a
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modification
of,
or
substitution
for
approved
materials,
equipment, plans, specifications, or contracts to meet a higher
standard
of
performance,
the
Develope~
shall
make
the
,
,
i
modification or substitution.
C. The Developer shall construct all facilities in the
,
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subdivision not otherwise subject to this Agreement in acco~dance
with applicable statutes, o~dinances, and specifications.
2.14 Placement of Utilities
The Develope~ shall place all utilities unde~ground,
except where this requi~ement is specifically waived unde~
Article IV of this Agreement.
2.15 Work In Riqht-of-Wav
The Developer shall comply with all ordinances and
secure all necessary permits and authorizations j;lertaining to
work in public rights-of-way. The Developer shall coordinate and
supervise the installation and construction of all utility
imj;lrovements, including those not otherwise covered by this
Agreement,
in a manner that will prevent delays in City
construction or other damage to the City, and that will permit
the City to properly schedule work that it will perform.
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2.16 Surveyor
All surveys required for the completion of improvements
under this Agreement shall be made by a \lerson registered as a
\lrofessional land surveyor under the laws of the State of Alaska.
2.17 Required Reportinq
A. Quality Control
1. The Deve lO\ler shall submi t to the Ci ty
regularly and ?romptly, written re\lorts
describing the results of all tests and
lnspect~ons required by the quality control
?rogram, and all other tests and ins\lections
which the Developer may make.
2. The Developer shall coordinate testing and
inspections with the City, and \lrovide advance
notice to the City of all tests and inspections
which the City shall witness as required by the
a\lproved quality control \lrogram.
B. Construction Progress
1. At such intervals as the Ci ty may require, the
Developer shall enter on the a\lproved work
schedule \lrogress chart the actual work
\lrogress to date and immediately forward two
(2) cOIl ies of the marked \lrogress chart to the
City.
2. If actual \lrogress indictes that the Developer
will not \lerform the work as scheduled, the
Developer shall \lrepare and submi t a revised
schedule for the City's approval.
3.
In addition to any other notice
Agreement may requlre, the Developer
the City reasonable notice \lrior to
the following:
that this
shall give
commencing
a. Clearing and grubbing:
b. Completion of excavation:
c. Installation of utilities, \llacement of
backfill or classified backfill:
d. ~1rst concrete ?our:
e. ~irst \llacement of leveling course:
f. ~irst \llacement of asphalt;
g. ~1rst placement of seal coat.
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C.
Surveys
The Developer shall furnish promptly to the City copies
of all surveys required for the completion of the improvements.
D. Express or implied approval by the City of any
report or inspection, shall not authorize any deviation from
approved plans and specifications, or from the terms of this
Agreement.
2.18 proqress Payments
The Developer shall pay its contractors all contract
progress payments when due.
2.19 Surveillance
A. The City may monitor the progress of the work and
the Developer's compliance with this Agreement, and perform any
inspection or test which it deems necessary to determine whether
the work conforms to this Agreement.
B. If the Developer fails to notify the City of
inspections, tests, and construction progress, as required by
Section 2.17, the City may require, at the Developer's expense,
retesting, exposure of previous stages of construction, or any
other steps which the Ci ty deems necessary to determine whether
the work conforms to this Agreement.
C. Any monitoring, tests, or inspections that the City
orders or performs pursuant to this section, are solely for the
benefit of the City. The City does not undertake to test or
inspect the work for the benefit of the Developer or any other
person.
2.20 Stop Work Orders
A. If the City determines there is a substantial
likelihood that the Developer will fail to comply, or if the
Developer does fail to comply wi th this Agreement, the Ci ty may
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stop all further construction of improvements by posting a stop
work order at the site of the nonconforming construction and
notifying the Developer or its engineer of the order.
B. A stop work order shall remain in effect until the
Ci ty approves:
1. Arrangements made by the Developer to remedy
the nonconformity; and
2. Assurances by the Developer
nonconformities will not occur.
that
future
C. The issuance of a stop work order under this
section is solely for the benefit of the City. The City does not
undertake to supervise the work for the benefit of the Developer
or any other person. No suspension of work under this section
shall be ground for an action or claim against the City, or for
an extension of time to perform the work.
D. The Developer shall include in all contracts for
work to be performed, or materials to be used under this
Agreement, the following provision:
The City of Seward, pursuant to a Development
Agreement on file wi th the City Clerk and
incorporated by reference herein, has the authority
to inspect all work or materials under this
contract, and to stop work in the event that the
work performed under this Agreement fails to comply
with any provision of the Development Agreement.
In the event that a stop work order is issued by
the City, the contractor shall immediately cease
a 11 work and awa it further ins truct ions from the
Developer.
2. 21 Access
The City shall have access to all parts of the
subdivision
convenient
for
monitoring
the
necessary
or
Developer's performance,
inspecting,
surveying,
testing,
or
performing any other work.
2.22 Maintenance
A. Until the City accepts the improvements, the
Developer
shall
maint'ain
all
existing
roads
within
the
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subdivision that are necessary for access to \lro\lerty not o....ned
by the DeveloJ;ler.
For the J;lurJ;loses of this subsection, existing
roads are roads that physically exist. as distinguished from mere
rights-af-way dedicated for road purJ;loses.
The maintenance
required by this subsection includes cleaning. effective dust
contral measures, snow removal, and similar activities, but does
not include reJ;lair, reJ;llacement. or reconstruction.
B. The DeveloJ;ler shall reJ;lair or pay the cost of
reJ;lairing damage to any imJ;lrovement that occurs "rior to the
Ci ty' s acceptance of the imJ;lrovements, except for damage caused
solely by the Ci ty, its agents. emJ;lloyees. or contractors. The
DeveloJ;ler shall give reasonable notice to the City before
undertaking the repair of the damaged imJ;lrovement.
2.23 Operation of Improvements Prior to Acceptance
A. Before the City acceJ;lts the imJ;lrovements. the City
may enter upon. insJ;lect. control. and oJ;lerate any imJ;lrovement if
the City determines that such action is necessary to "rotect the
public's health, safety. and welfare.
B. The action described in subsection A of this
section shall not constitute the acceJ;ltance of any imJ;lrovement by
the City, nor shall the action affect in any way the Develo\ler's
....arranty under this Agreement.
2.24 Time
A. All imJ;lrovements required by this Agreement shall
be completed within two (2) years of the date of execution
hereof.
B. The Developer shall begin actual construction of
improvements required under this Agreement in accord with the
Developer's work schedule as approved by the City.
C. If the DeveloJ;ler is delayed by an act or omission
of the City not otherwise authorized under this Agreement, or by
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changes ordered in the work. labor disputes. fire, delays in
transportation, casualties, or other causes beyond the
Developer's control. or by any cause which the City in its
discretion determines to be adequate to justify the delay, the
time of completion of construction under this Agreement may be
extended for a reasonable time, which shall be determined by the
City. No extension shall be granted unless the Developer gives
notice in writing to the City within ten (10) days after the
occurrence of the cause for delay. In the case of a continuing
delay, only one notice is required.
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ARTICLE III
ACCEPTANCE UP IMPROVEMENTS
3.01 PrerequiSites to Acceptance
The City shall not accept the improvements until all
the requirements of Sections 3.02 through 3.05 have been met.
3.02 Monuments and As-Built Drawinqs
A. Upon completing the improvements, the Developer
shall replace lost lot corners and monuments and shall monument
t
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the center lines of all required paved streets with monuments of
--~~t least one-foot rebar and alcap at points of curvature, ends of
curvature,
intersections,
and
centers
of
cul-de-sacs
in
~.~
,
accordance with the terms of Anchorage Municipal Code. Section
21.85.025 and any standards established thereunder.
B. No later than sixty (60) days after the final
inspection and certification under Section 3. 05F, the Developer
shall provide the City with one acceptable set of reproducible
mylar as-built drawings for each improvement.
The as-built
drawings shall be certified by a professional engineer registered
under the laws of the State of Alaska to represent accurately the
improvements as actually constructed.
3.03 Certificate of Compliance
The Developer shall furnish the City with a certificate
of compliance for the work performed under this Agreement, in the
form prescribed by the 1984 Mun icipa11 ty of Anchorage standard
specifications.
3.04 Conveyance of Easements and Riqhts-of-Way to City
The Developer shall convey to the City any easement,
right-of-way, or other property interest necessary to allow
access to the City improvements to operate, maintain. or repair
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the City improvements.
The Developer may condi tion the
conveyance upon the City.s acceptance of the improvements.
3.05 Inspection
A. Upon receiving notice that the Developer has
completed the improvements, the City shall schedule inspections
of the improvements. The City may inspect all improvements, and
any other work in dedicated easements or rights-of-way.
B. A privately owned utility may inspect any phase of
~ork on an improvement of which it is to assume control.
C. The City or appropriate privately owned utility
shall inform the Developer in writing of any deficiencies in the
work found in the course of its inspection.
D. The Developer shall, at its own expense, correct
all deficiencies found by inspections under subsections A or B of
this section. Upon receiving notice that the deficiencies have
been corrected, the City or appropriate privately owned utility
shall reinspect the improvements.
g. The City or appropriate privately owned utility may
continue to reinspect an improvement until the Developer has
corrected all deficiencies in the improvement.
F. After a final inspection has revealed that all
improvements and other work in dedicated easements and rights-of-
way meet City standards, and each privately owned utility ',;hich
is to assume control of an improvement certifies that that
improvement or improvements are acceptable to it, and the
Developer has furnished the as-built drawings required by
Section 3.02B, the City shall notify the Developer that all
improvements have been accepted.
3.06 Consequences of Acceptance of Improvements
A. The
City's
final
of
acceptance
the
City
improvements constitutes a grant to the City of all the
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Developer's right, title, and interest in and to the City
improvements.
B. By accepting the City improvements under this
Agreement, the City does not undertake to maintain any such
improvement, unless obligated to do so by applicable statute,
ordinance, regulation, or tariff.
3.07 Developer's Warranty
A. The
shall
warrant
Developer
the
design,
construction materials, and workmanship of the improvements
against any failure or defect in design, construction, material,
or workmanship which is discovered no more than one year from the
date the City notifies the Developer of the acceptance of the
improvements.
This warranty shall cover all direct and indirect
costs of repair or replacement, and damage to the property,
improvements, or facilities of the City or any other person,
caused by such failure or defect or in the course of repairs
thereof, and any increase in cost to the Ci ty of operating and
maintaining a City improvement resulting from such failures,
defects, or damage.
B. The Developer's warranty shall not extend to any
failure
or defect
solely
caused
by
changes
in
des ign,
construction, or materials required by the City.
C. Except as provided in subsection B of this section,
the fact that the City takes any action, or omi ts to take any
action authorized in this Agreement, including out not limited to
operation or routine maintenance of the improvements prior to
acceptance, or surveillance, inspections, review or approval of
plans, tests or reports, shall in no way limit the scope of the
Developer's warranty.
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3.08 Warranty Guaranty
A. To secure the Developer's performance of the
warranty under Section 3.07, the performance guaranty provided by
the Developer under Section 2.02 shall remain in effect until the
end of the warranty period, or the Developer shall provide a
warranty guaranty by one or more of the methods described in
Sections 2.03 through 2.06.
8. The amount of the warranty guaranty shall be the
percentage of the estimated cost of all improvements calculated
pursuant to Section 2.028, determined by the following table:
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Estimated Cost of
All Improvements
Percent to Secure
Warranty
less than 5500,000.00
5500,000.00 - 51,000,000.00
over 51,000,000.00
10.0%
7.5%
5.0%
3.09 City's Remedies Onder Warranty
A. The City shall notify the Developer in writing upon
its discovery of any failure or defect covered by the warranty in
Section 3.07.
The City shall notify the Developer before
conducting any tests or inspections to determine the cause of the
failure or defect, and shall notify the Developer of the results
of all such tests and inspections.
8. The Developer shall correct any failure or defect
covered by the warranty within thirty (30) days of receiving
notice of the failure or defect from the Ci ty.
The Developer
shall correct the failure or defect at its own expense and to the
satisfaction of the City.
C. If the Developer fails to correct the failure or
defect within the time allowed by subsection 8 of tris section,
the City may correct the failure or defect at the Developer's
expense.
If the Developer fails to pay the City for the
corrective work within thirty (30) days of receiving the City's
bill therefor, the City may pursue any remedy provided by law or
this Agreement to recover the cost of the corrective work.
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3.10 Conditions of Reimbursement
A. If this Agreement requires the City to reimburse
the Developer for all or part of the cost of an improvement, the
reimbursement shall be conditioned upon the Developer's
performance of all its obligations under this Agreement.
B. Any reimbursement shall be subject to the approval
of bonds and the appropriation of funds as required by law. If
funds are not ava ilable at the time any reimbursement is due
under this Agreement, the City shall reimburse the Developer when
funds become ava ilable. The Ci ty shall not be liable for any
delay in reimbursing the Developer due to the unavailability of
funds, nor shall such delay constitute a breach of this
Agreement.
C. The
installments, and
interest at the
t"e imburs ema n t .
City may reimburse the Developer in
in such event, any unpaid balance shall bear
rate paid on bonds sold to finance the
3.11 Completion of Performance: Release of Warranty
A. The City shall inspect the improvements at or
before the end of the warranty period, and before releasing any
performance guaranty or warranty guaranty then in effect. The
Developer shall correct any failure or defect in the work
revealed by the inspection as required by Section 3.09.
B. On the Developer's satisfactory performance of all
its obliga tions under this Agreement, the Ci ty shall execute a
written statement acknowledging such performance. and shall
release any remaining security posted by the Developer under this
Agreement.
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ARTICLE IV
IMPROVEMENT REQUIREMENTS
4.01 Improvements Required
It is the intent of the City and Developer to provide
for the orderly development of the property.
It is understood
and agreed that a principal reason for the City of Seward to
provide for the development of the property is a ~erceived need,
by the City Council of the City of Seward, as more particularly
set forth in Resolution 84- to provide building lots for
residential expansion within the City, especially as a result in
cecent
and
future
The
antlclpatea industrial
growth.
availability of residential building lots within the City of
Seward for construction of residential structures is perceived by
the City as being in the public interest, and it is the steady
supply of such lots by Developer as a result of the development
plans contained herein that has induced the City to enter into
this, agreement.
The City Council of the City of Seward has determined
that private development of
the property would be more
advantageous than public development in that such private
development will be more responsive to market pressures, less
expensive, and will not commit scarce public resources to a
project that can be developed privately.
The City, however,
requires as a fundamental matter that the public's need for a
steady supply of building lots be met by the Developer during the
course of this Agreement. Therefore, Developer shall be required
to complete development and market for sale 40 lots by
and, upon sale of the first 40 residential lots within the
property. to continuously and diligently develop the remainder of
the property such that there are consistently available at least
20 residential building lots within the property.
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The term I'consistently availablelt means listed for sale
at fair market value or less with a realtor who is a ~artici~ant
in the Mult i~le Listing Service.
Terms of the listing shall
~ermit closing of the sale on a cash on first draw basis upon
construct ion of a res ident ial structure, such construction to
begin no later than ninety days from the date of execution of the
earnest money agreement, or 60 days after the beginning of the
spring construction season, whichever is later. If the Develo~er
is unable to meet the requirements of this condi tion because of
circumstances actually beyond its control and reasonably beyond
the control of an experienced developer with adequate available
financing, then a reasonable extension of time to meet this
requirement may be requested by the Developer and granted by the
City Council of the City of Seward.
If Developer fails, for a
~eriod of sixty days, to have consistently available twenty (20)
building lots, then the City may, at its sole discretion, declare
a default under the terms of this Agreement. If the Developer is
of the belief that its failure to make twenty (20) lots
consistently available is excusable by reason of circumstances
actually beyond its control and reasonably beyond the control of
an experienced developer with adequate available financing, then
the Developer may request arbitration of the issue of default.
. \.
Provided a decision of the arbitrators is rendered within ninety
days from the date of the declaration of default by the City
Council, this Agreement will not be in default.
Upon the
rendering of a decision that the Developer has failed to meet
these requirements by an arbitrator in accordance with this
Agreement, the City may proceed with the default remedies
provided in section 1.13B under the terms of this Agreement, or
the City may acquire the ~roperty that has been sold upon
assumption by the City of any outstanding indebtedness of
Developer for development of the ~roperty secured by a Deed of
Trust on all or part of the Property.
In making its decision,
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4.03 Sanitary Sewer Improvements
Sewer
system
improvements
shall
be
provided
in
accordance with an agreement with the City, incorporated by
~eference herein.
The estimated cost of the sewer system is
s
4.04 Water System Requirements
A. Water system improvements, including reservoir and
related facilities, shall be provided in accordance with an
agreement with the City, incorporated by reference herein. The
the
water
system
is
estimated
to
be
The Developer's total water facility cost,
including connection fees, under this Agreement
is estimated to be S
The City's cost share of water facilities is
estimated to be S
4.05 Electrical Facilities
A. Electrical
improvements shall
be provided
in
accordance with an agreement with the City, incorporated by
reference herein.
The total cost of the electrical system
serving the subdivision is estimated to be S
1.
The Developer's
facilities within
to be S
cost share of electrical
the subdivision is estimated
2. The City's cost share of electrical facilities
within the subdivision is estimated to be
S
4.06 Telephone Facilities
A. Telephone
improvements
shall
be
provided
in
accordance with an agreement with the City, incorporated by
reference herein. The total cost of the telephone system serving
the subdivision is estimated to be S
1. The Developer's cost share of telephone
facilities within the subdivision is estimated
to be S
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the arbitration panel shall award reasonable costs and attorney's
fees and expert witness fees to the prevailing party. The intent
of requiring Developer to make at least twenty (20) lots
consistently available and the remedies of City is to insure that
the public purposes as set forth in Resolution 84-____ are met.
4.02 Street, Alleyway, Monumentation, Waterway, Traffic Control,
Street Liqhtinq, Street Name Signing, and Drainaqe Improve-
~
A. All improvements to the property (herein "site
improvements') shall be provided and constructed in accordance
!
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wi th the approved pIa t and the 1984 Municipali ty of Anchorage
standard specifications.
B. In addition to the site improvements referred to in
'.
subparagraph A above, Developer shall construct, in accordance
with the 1984 Municipality of Anchorage standard specifications,
additional improvements within the City but on property other
than the developed hereunder ('off-s ite improvements.).
Such
off-site improvements wi-II be in accordance with the plans and
specifications therefore attached hereto as exhibit
and
incorporated herein by reference.
The estimated costs for such
improvements is SevEN HUNDRED FORTY-TWO THOUSAND FIVE HUNDRED AND
NO/IOO DOLLARS (5742,500.00).
The Developer shall promptly
construct such improvements as part of its obligations hereunder
and in accordance with the construction schedules developed under
paragraph 2.10.
C. The City shall reimburse Developer for construction
of off-site improvements only after receipt from Developer of
invoices for such work and further in accordance with the
provisions of Article III of this Agreement.
All of the
provisions of this Agreement shall apply to off-site as well as
on-site improvements.
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2.
The City's
within the
$
..
cost share of
subdivision
telephone facilities
is estimated to be
IN WITNESS WHEREOI;', the parties hereto ha'Je set their
hands on the date first set forth abo'Je.
CITY 01;' SEWARD, ALASKA
By:
ATTEST:
Linda Murphy, City Clerk
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DEVELOPER,
GATEWAY VENTURES, INC.
By:
Title:
By:
Title:
By:
Title:
APPROVED AS TO I;'ORM:
HUGHES, THORSNESS, GANTZ,
POWELL AND BRUNDIN, Attorneys
for the City of Seward
By
I;'red B. Arvidson
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DEED Ob' TRU::iT
(Securing Promissory Note)
of
Inc., an Alaska
address is 6230
This Deed of Trust ("Deed of Trust"), made this day
, 1984, between and among Gateway Ventures,
corporation (hereinafter called "Trustor"), whose
"G" Street, Anchorage, Alaska 99502;
(hereinafter called "Trustee"),
whose address is
and the City of
"Beneficiary"), whose
Alaska 99664.
Seward,
address is
Alaska (hereinafter
Post Office Box 167,
called
Seward,
WIT N E SSE T H:
\vHEREAS, Beneficiary is the fee owner of certain real
property described in Exhibit "A";
WHEREAS, Trustor has agreed to purchase from Beneficiary
the real property described in Exhibit "A" and to pay the pur-
chase price of SEVEN HUNDRED FORTY-TWO THOUSAND FIVE HUNDRED AND
NO/IOO DOLLARS ($742,500.00) on an installment basis as lots are
developed and sold, said purchase price to be evidenced by a
promissory note of even date herewith (hereinafter called the
"Note").
NOW, THEREFORE, in orde r to secure the payment of the
principal on the Note as the same shall become due and payable
according to its tenor, and to secure the performance and observ-
ance of all the provisions therein and herein contained, and for
and in consideration of the debt above described, Trustor by
these presents does irrevocably grant, transfer and assign in
Trust, with power of sale, unto ,
as Trustee, and unto its successors in the Trust hereby created,
and unto its assigns forever all of the following contained in
Granting Clauses I to IX inclusive (all of which are hereinafter
collectively called the "Property").
GRANTING CLAUSE I
Real P~operty OWned in Fee. All that certain real prop-
erty situated In the Seward Recording District, Third Judicial
District, State of Alaska, more particularly described in Exhibit
A attached hereto and made a part hereof.
GRANTING CLAUSE II
Buildings, Improvements and Building Equipment'. All
right, title and interest of Trustor in and to the buildings,
structures and improvements now or at any time hereafter erected,
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.
.
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.
constructed and situated upon the real property described in
Granting Clause I or any part thereof and (i) all apparatus,
appliances, furnaces, boilers, machinery, engines, motors, com-
pressors, dynamos, elevators, fittings, piping, connections,
conduits, ducts, equij;lment and ot'her like personal property of
every kind and description now or hereafter affixed or attached
to any such building structure or improvement as shall be now or
hereafter used or procured for use in connection with the heat-
ing, cooling, lighting, plumbing, ventilating, air conditioning,
refrigeration, cleaning or general operation and which are struc-
tural components of any such building, structure, or improvement
(all of which other than such foundations and footings are here-
inafter called the "Building Equipment"), together with any and
all alterations, replacements and additions to any such building,
structure or improvement or Building Equipment, whether made by
Trustor or any successor in interest (all of the foregoing
including the Building Equipment being hereinafter collectively
called the "Buildings").
GRANTING CLAUSE III
Assignment of Rents and Other Riyhts and Interests of
Trustor in or Appurtenant to the Buildings. All right, title and
interest of Trustor now owned or hereafter acquired, in and to
all and singular the tenements, hereditaments, privileges, ease-
ments, franchises, leases, licenses, and appurtenances belonging
or in any wise appertaining to the property described in the
preceding Granting Clauses and the reversions, remainders, rents,
issues and prof i ts thereof, including all interest of Trustor as
landlord in and to all present and future licenses, leases, ten-
ancies and occupancies of space in the Buildings and all the
estate, rights, title and interest, claim and demand whatsoever
in law or in equity, which Trustor now has or may hereafter
acquire in and to such property, including, without intending to
limit the generality of the foregoing, any proceeds of insurance
or awards in condemnation.
GRANTING CLAUSE IV
Architectural Plans, Soil Tests, Etc. All architectural
drawings, plans, specifications, soil tests, feasibility studies,
appraisals, and similar materials, documents or studies relating
to the Property.
GRANTING CLAUSE V
Governmental Permissions. All governmental permissions,
environmental clearances, authority to subdivide or combine the
Property and such rights, licenses and permits as are necessary
for the commencement, continuation, completion, occupancy, use
and disposition of any or all of the Property.
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GRANTING CLAUS8 VI
Intangibles. All general intangibles relating to the
development or use of the Property, including without limitation,
all names under which or by which the Property or any improve-
ments on the Property may at any time be operated or known, all
rights to carryon the business under any such names or any vari-
ant thereof, and all trademarks and goodwill in any way relating
to the Property.
GRANTING CLAUSE VII
Reserves, Deferred Payments, Etc. All reserves,
deferred payments, deposits, refunds, cost savings and payments
of any kind relating to the construction, operation, occupancy,
use and disposition of any or all of the Property.
TO HAVE AND TO HOLD the Property together wi th all
buildings, improvements and building equipment thereon and all
the rights, hereditaments and appurtenances in anywise appertain-
ing or belonging thereto, and all reversions, remainders, rents,
issues and profits thereof, and all of the estate, right, title,
claim or demands whatsoever of Trustor, either in law or in
equi ty, of, in and to the Property, unto Trustee and its succes-
sors and assigns forever, SUBJECT, HOWEVER, to the right, power
and authority hereinafter given to and conferred upon Beneficiary
to collect and apply such rents, issues and profits.
FOR THE PURPOSE OF SECURING: (1) Payment of the sum of
SEVEN HUNDRED FORTY-TWO THOUSAND AND FIVE HUNDRED AND NO/IOO
DOLLARS ($742,500.00), according to the terms of the Promissory
Note of even date herewith made by Trustor, payable to Bene-
ficiary or order, and all modifications, extensions or renewals
thereof i and (2) Performance of each agreement of Trustor con-
tained herein or incorporated herein by reference.
This conveyance is made in Trust, and these presents are
upon the express condition, that if Trustor, or its successors or
asslgns, pays the sum of money stated in the Promissory Note
secured by this Deed of Trust, and otherwise performs all of its
obligations under this Deed of Trust, and the Promissory Note,
and other documents incorporated herein by reference, then this
Deed of Trust and the estate hereby granted, shall cease, deter-
mine and be void and Trustee shall reconvey without warranty the
Property then held hereunder.
Trustor warrants that (i) it is lawfully possessed and
is the fee owner of the real property described in Granting
Clause Ii (ii) it is well and truly seized of the property
described in Granting Clauses II through VII hereof, free and
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.
.
.
.
clear of any liens and encumbrances except as expressly set forth
in this Deed of Trust; (iii) it has not heretofore assigned the
rents and payments mentioned under Granting Clause III hereof i
(iv) it will maintain and preserve the lien of this Deed of Trust
until the indebtedness secured hereby has been paid in full; (v)
it has good right and lawful authority to mortgage and pledge the
Property, as provided in and by this Deed of Trust; and (vi) that
it will forever warrant and defend the same against any and all
claims and demands whatever, except as are specifically set forth
in this Deed of Trust.
THE TRUSTOR HEREBY COVENANTS AND AGREES AS fOLLOWS:
1. Payment of Indebtedness. To pay all debts and
monies secured by this Deed of Trust, when from any cause the
same shall become due. To keep the Property free from statutory
and governmental liens of any kind and to forever warrant and
defend the Property against every gerson _WJ:LoIIlsoever lawfully
claiming the same or any part thereof. Trustor upon request by
mail will furnish a writ.ten statement duly acknowledged of the
amount due on the indebtedness secured by this Deed of Trust and
specifying whether any offsets or defenses exist against the debt
secured by this Deed of Trust.
2. Defense of Security and Attorney fees. To appear in
and defend any suit, action or proceeding that might affect the
value of this Deed of Trust or the security itself or the rights
and powers of Beneficiary or Trustee, and should Beneficiary or
Trustee elect also to appear in or defend any such act ion or
proceeding, be made a party to such action by reason of this Deed
of Trust, or elect to prosecute such action as appears necessary
to preserve said value, security or powers, Trustor will, at all
time, indemnify and save Beneficiary or Trustee harmless from,
and, on demand, reimburse Beneficiary or Trustee for, any and all
loss, damage, expense or cost, including costs of evidence of
title and attorney's fees, arising out of or incurred in connec-
tion with any such suit, action or proceeding, and the sum of
such expenditures shall be secured by this Deed of Trust with
interest at the rate !?rovided for in the Note and shall be due
and payable on demand. To pay costs of suit, cost of evidence of
title and a reasonable attorney's fee in any proceeding or suit
brought by Beneficiary to foreclose this Deed of Trust.
3. Payment of Taxes, Etc. To pay in full at least
thirty (30) days before delinquent all taxes, assessments and
encumbrances, charges or liens wi th interest, that may now or
hereafter be levied, assessed or claimed upon the Property or any
part thereof, which at any time appear to be prior or superior
hereto for which provision has not been made heretofore, and upon
request to exhibit to Beneficiary official receipts therefor, and
to pay all taxes imposed upon, reasonable costs, fees and ex-
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SST/bs/I04/G-S
penses of this Trust, provided, however, that the Trustor shall
not be required to discharge any such tax, assessment, encum-
brance, charge or lien so long as the Trustor shall in good faith
diligently contest such tax, assessment, encumbrance, charge or
lien or defend enforcement thereof in legal proceedings which
operate to prevent its enforcement or forfeiture of the property
or any part thereof, and provided further that funds equal to
150% of the amount in dispute shall be escrowed wi th the Bene-
fie i ary for tha t purpose, on such terms and condi t ions as Bene-
ficiary may reasonably require.
4. Repayment of Benef iciary' s Expenditures. To repay
immediately after written notice to Trustor all sums expended or
advanced hereunder by or on behalf of Beneficiary or Trustee,
with lawful interest from the date of such expenditure or advance
maximum until paid, and the repayment thereof shall be secured by
this Deed of Trust. Failure to repay such expenditure or advance
and interest thereon within ten (10) days of the mailing of such
notice will, at Beneficiary's option, constitute an event of
default hereunder, or, Beneficiary may, at its option, commence
an action against Trustor for the recovery of such expenditure or
advance and interest thereon, and in such event Trustor agrees to
pay, in addition to the amount of such expenditure or advance,
all costs and expenses incurred in such action, together with a
reasonable attorney's fee.
5. Beneficiary's Right to Protect Security. Should
Trustor fail to make any payment or to do any act as herein pro-
vided, then Beneficiary or Trustee, but without obligation so to
do and without notice to or demand upon Trustor and without
releasing Trustor from any obligation hereof, may (i) make or do
the same in such manner and to such extent as either may deem
necessary to protect the security hereof, Beneficiary or Trustee
being authorized to enter upon the Property for such purposes;
(ii) commence, appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers
of Benef iciary or Trustee; (i ii) pay, purchase, contest, or com-
promise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto, and in exercising
any such powers, incur any liability, expend whatever amounts in
its absolute discretion it may deem necessary therefor, including
cost of evidence of title, employ counsel and pay his reasonable
fees. Trustor covenants and agrees to pay immediately and with-
out demand all sums so expended by Beneficiary or Trustee, with
lawful maximum interest from the date of such expenditure until
paid, and the repayment thereof shall be secured by this Deed of
T ru st.
6. Condemnation. Should the Property, or any part or
appurtenance thereof, or right or interest therein, be taken or
damaged by reason of any public or private improvement, condem-
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.
.
.
.
nation proceeding (including change of grade), fire, earthquake
or other casualty, or in any other manner, Beneficiary may, at
its option, commence, appear in and prosecute, in its own name,
any action or proceeding, or make any compromise or settlement,
in connection with such taking or damage, and obtain all compen-
sation, awards or other relief therefor. All such compensation,
awa rds, damages, righ ts of act ion and proceeds, inc lud i ng the
proceeds of any policies of insurance affecting the Property, are
hereby assigned to Beneficiary, which may, after deducting there-
from all its expenses, including attorney's fees, release any
monies so received by it, or apply the same on any obligations
secured by this Deed of Trust or apply the same to the repair or
restorat ion of the Property, as it may elect. Trustor further
assigns to Beneficiary any return premiums or other repayments
upon any insurance at any time provided for the benefit of Bene-
ficiary, refunds or rebates made of taxes or assessments on the
Property, and Beneficiary may at any time collect said return
premiums, repayments, refunds and rebates, notwithstanding that
no sum secured by this Deed of Trust be overdue when such ri<;jht
to collection be asserted. Trustor also agrees to execute such
further assignments of any such compensation, award, damages,
rebates, return of premiums, repayments, rights of action and
proceeds as Beneficiary or Trustee may require.
7. Waiver. Time is of the essence hereof in connection
with all obligations of the Trustor under this Deed of Trust or
the note secured by this Deed of Trust. By accepting payment of
any obligation secured by this Deed of Trust after its due date,
Beneficiary does not waive its right either to require prompt
payment when due of all other obligations so secured or to
declare default for failure so to pay.
8. Platting, Reconveyance, Etc. Trustee may, at any
time upon written request of Beneficiary, and upon payment of its
fees and presentation of this Deed of Trust and the note secured
by this Deed of Trust for endorsement (in case of full recon-
veyance, for cancellation and retention), without affecting the
liability of any person for the payment of any obligations
secured by this Deed of Trust: (a) consent to the making of any
map or plat of the Property; (b) join in granting any easement
or creating any restriction thereon; (e) join in any subordi-
nation or other agreement affecting this Deed of Trust or the
lien or charge thereof; (d) reconvey, without warranty, all or
any part of the Property. The grantee in any reconveyance may be
described as the "person or persons legally entitled thereto,"
and the recitals therein of any matters or facts shall be con-
clusive proof of the truthfulness thereof. Trustor agrees to pay
a reasonable Trustee's fee for full or partial reconveyance,
together with a recording fee if Trustee, at its option, elects
to record said reconveyance.
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9. Order of Sale. In case of a sale under this Deed of
Trust, the Property, real, personal and mixed, may be sold in one
parcel or in separate parcels and in such order as Trustee shall
determine.
10. Impairment of Security. The Trustor shall not,
without first obtaining Beneficiary's written consent, change the
general nature of the occupancy or initiate or acquiesce in any
zoning reclassification, or do or suffer any act or thing which
would impair the security for said debt or Beneficiary's lien
upon the Property or the assignment to Beneficiary of the rents,
issues and profits thereof. In the event of breach of any of the
requirements of this paragraph, Beneficiary may, in addition to
any other rights or remedies, at any time thereafter declare all
obligations secured by this Deed of Trust immediately due and
payable.
II. Receiver. The holder of this Deed of Trust, in any
action to foreclose it, shall be entitled (without notice and
without regard to the adequacy of any security for said debt) to
the appointment of a receiver of the rents, issues and profits of
the Property and such receiver shall have, in addition to all the
rights and powers customarily given to and exercised by such
receiver, all the rights and powers granted to Beneficiary by the
covenants contained in paragraph 13 hereof.
12. Assignment of Rents. As additional security for
the payment of all obligations secured by this Deed of Trust, all
Trustor's rents, issues and profits of the Property and the
right, title and interest of the Trustor in and under all leases
now or hereafter affecting the Property, are hereby assigned and
transferred to Beneficiary, and Trustor hereby gives to and
confers upon Beneficiary the right, power and authority, during
the continuance of these Trusts, to collect and receive the
rents, issues and profits of the Property, reserving unto Trustor
the right, prior to the occurrence of an event of default under
this Deed of Trust, to collect and receive the rents, issues and
profits of the Property as they may become due and payable. All
rents, issues or profits of Trustor receivable from or in respect
to the Property which it shall be permitted to collect~hereunder
shall be received by it in trust to pay the usual and reasonable
operating expenses of, and the taxes upon, the Property and the
sums owing to Benef iciary as they may become due and payable as
provided in this Deed of Trust or the Note or in any modification
of either. The balance of such rents, issues and profits after
payment of such operating expenses, taxes and sums due to Bene-
ficiary, and after the setting aside of accruals to date of such
expenses, taxes and sums, including amortization, shall be
Trustor's absolute property.
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.
.
.
.
13. Collection of Rent by Beneficiary after an Eve~t of
Default. Upon the occurrence of any event of default under this
Deed of Trust, Beneficiary may, at its option, without demand or
notice and at any time, either in person, by agent, or by a
receiver to be appointed by a court, and without regard for the
adequacy of any security for the obligations secured by this Deed
of Trust, enter upon and take possession of the Property, or any
part thereof, making therefor such alterations as it finds neces-
sary, in its own name sue for or otherwise collect such rents,
issues and profits including those past due and unpaid and apply
the same, less costs and expenses of operation and collection,
including reasonable attorney's fees, upon any obligations
secured by this Deed of Trust in such order as Beneficiary may
determine, and terminate in any lawful manner any tenancy or
occupancy of the Property, or any part thereof, exercising with
respect thereto any righ t or option ava ilable to Trustor. from
and after the occurrence of an event of default under this Deed
of Trust, if any owner of the Property shall occupy the Property,
or any part thereof, such owner shall pay to Benef iciary in
advance on the first day of each month a reasonable rental for
the space so occupied, and upon failure to do so Beneficiary
shall have the right to remove such owner from the Property, or
any part thereof, by any appropriate action or proceeding.
14. No Cure or Waiver. The entering upon and takin9
possession of the ProQerty, the collection of such rents, issues
and profits, or the proceeds of fire and other insurance policies
or compensation or awards for any taking or damage of the Prop-
erty, and the application or release thereof as aforesaid, shall
not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
15. Default and foreclosure.
15.1 All obligations secured by this Deed of Trust
shall become immediately due and payable, at the option of Bene-
ficiary, without demand or notice, after any of the following
occur, each of which shall be an event of default: (a) Default
by Trustor in the payment of any obligation secured by this Deed
of Trust or in the performance or observance of any agreement
contained herein or in the Development Agreement between Trustor
and Beneficiary of even date; or (b) Any assignment made by
Trustor or the then owner of the Property for the benefit of
creditors; or (c) Any of the following shall occur, with respect
to the Property, Trustor or the then owner of the Property: (i)
the appointment of a receiver, liquidator, or trustee who is not
discharged wi thin thirty (30) days after such appointment; (i i)
the adjudication as a bankrupt or insolvent; (iii) the filing of
any Petition for Bankruptcy, reorganization or arrangemeni under
the Bankruptcy Act which is not dismissed within thirty (30) days
of such filing; (iv) the institution of any proceeding for disso-
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lution or liquidation which is not dismissed or abandoned within
thirty (30) days of such institution; (v) if Trustor be unable,
or admit in writing an inability, to pay its debts as they
mature; (vi) a default in any provision of any other instrument
which may be held by Beneficiary as security for the note secured
by this Deed of Trust, the terms and conditions of which are
incorporated herein by reference as though fully set forth
herein. No waiver by Beneficiary of any default on the part of
Trustor shall be construed as a waiver of any subsequent default
hereunder.
l5.2 In the event of such default Beneficiary may,
at its option, execute or cause Trustee to execute a written
notice of such default and if its election to cause the Propecty
to be sold to satisfy the obli(Jations secured by this Deed of
Trust, and shall cause such notice to be recorded in the office
of the recorder of each recording district in which the Property
or some part thereof is situated. Notice of sale having been
given as then required by law and not less than the time then
required by law having elapsed after recordation of such notice
of default, Trustee, without demand or notice, shall sell the
I?roperty in accordance with the Deeds of Trust Act of the State
of Alaska, A.S. Section 34.20.070-135 as now enacted, or here-
after amended, and the Uniform Commercial Code of the State of
Alaska where applicable, at the time and place of sale fixed by
it in such notice of sale, at public auction to the highest and
best bidder for cash in lawful money of the United States, pay-
able at time of sale. In the event no time period is provided by
law for such notice, then Beneficiary shall cause notice of sale
to be given thirty (30) days prior to said sale. Trustee may
postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at
the time fixed by the preceding postponement. Any person except
Trustee, but including Trustor or Beneficiary, may bid at such
sale. Trustee shall deliver to the purchaser at such sale its
deed without any covenant or warranty expressed or implied, which
deed shall convey to such purchaser the interest in the Property
which Trustor had or had the power to convey at the time of its
execution of this Deed of Trust, and such as it may have acquired
thereafter. The recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Trustee
shall apply the proceeds of sale as follows: (a) to the expenses
of sale, including all costs, fees and expenses of Trustee and of
this trust, costs of evidence to title, and attorney's fees in
connection with such sale; (b) to the obligations secured by this
Deed of Trust, and (c) the surplus, if any, to the person or
persons legally entitled thereto pursuant to such Deeds of Trust
Act.
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16. Right to foreclose this Deed of Trust as a
Mortgaqe; to a De E ic iency Judqment and to a Personal Judgment.
The Power of Sale conferred by this Deed of Trust and by such
Deeds of Trust Act is not an exclusive remedy, and when not exer-
cised, Benef iciary may foreclose this Deed of Trust as a mort-
gage. If Beneficiary elects to judicially foreclose this Deed of
Trust as a mortgage, Beneficiary shall be entitled to a defi-
c iency judgment aga inst the maker, surety or guarantor of the
Note. If Beneficiary elects to commence an action on the Note,
Beneficiary shall be entitled to a personal judgment against the
maker, surety or guarantor of such Note.
17. Taxation. In the event of the passage after the
date of this Deed of Trust of any Federal, State or local law,
deducting from the value of real property for the purpose of
taxation any lien thereon, or changing in any way the laws now in
fot'ce for the taxation of mortgages, deeds of trust, or debts
secured thereby for Federal, State or local purposes, or the
manner of the collection of any such taxes so as to affect the
interest of Beneficiary, then and in such event, Trustor shall
bear and pay the full amount of such taxes, provided that if for
any reason payment by Trustor of any such new or additional taxes
would be unlawful or if the payment thereof would constitute
usury or render the obligations secured by this Deed of Trust
wholly or partially usurious under any of the terms or provisions
of the Note or otherwise, Beneficiary may, at its option, without
demand or notice, declare all obligations secured by this Deed of
Trust with interest thereon to be immediately due and payable, or
Beneficiary may, at its option, pay that amount or portion of
such taxes as renders the obligations secured by this Deed of
Trust unlawful or usurious, in which event Trustor shall concur-
rently therewith pay the remaining lawful and non-usurious por-
tion or balance of said taxes.
18. Subrogation. Beneficiary shall be subrogated for
further security to the rights of all beneficiaries, mortgagees,
lienholders and owners directly or indirectly paid off or satis-
fied in whole or in part by the proceeds of the loan secured by
this Deed of Trust, regardless of whether such persons ass igned
or released of record their rights.
19. Execution of Further Instruments. Trustor, from
time to time, within fifteen (15) days after request by Benefici-
ary, shall execute, acknowledge, and deliver to Beneficiary, such
securi ty agreements or other security instruments, in form and
substance satisfactory to Beneficiary, covering all property of
any kind whatsoever owned by Trustor or in which Trustor has any
interest which, in the sole opinion of Beneficiary, is essential
to the operation of the Property. Trustor shall further, from
time to time, within fifteen (15) 'days after request by Benefici-
ary, execute, acknowledge and deliver any financing statement,
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renewal, a.ffidavit, certificate, continuation statement or other
document as Beneficiary may request in order to perfect, pre-
serve, continue, extend or maintain the security interest under,
or the priority of, this Deed of Trust and the priority of such
security agreement or other security instrument as a first lien.
Trustor further agrees to pay to Beneficiary on demand all costs
and expenses incurred hy Beneficiary in connection with the prep-
aration, execution, recording, filing and refiling of any such
instrument or document. However, neither a request so made by
Beneficiary nor the failure of Beneficiary to make such request
shall be construed as a release of the Property, or any part
thereof, from the conveyance of title by this Deed of Trust, it
being understood and agreed that this covenant and any such
security agreement or other security instrument, delivered to
Beneficiary, are cumulative and given as additional security.
20. Cumulative Rights. All of Beneficiary's rights and
remedies herein specified are intended__t() J:>e. c1,!mu~E_tive and not
in substitution for any right or remedy otherwise available and
no requirement whatsoever may be waived at any time except by a
writing signed by Beneficiary, nor shall any waiver be operative
upon other than a single occasion. The term "Beneficiary" shall
mean the holder and owner, including pledgees, of the Note,
whether or not named as Beneficiary herein.
21. Right to Release Collateral, Etc. Without affect-
ing the liability of any other person for the payment of any
obligation herein mentioned (including Trustor shoul<i it convey
the Property) and wi thout affecting the lien hereof upon any
property not released, Beneficiary may, without notice, release
any person so liable, extend the maturity or modify the terms of
any such obligation, or grant other indulgences, release or re-
conveyor cause to be released or reconveyed a t any time all or
part of the Property, take or release any other security or make
compositions or other arrangements with debtors. Beneficiary may
also accept additional security, either concurrently herewith or
thereafter, and sell same or otherwise realize thereon, either
before, concurrently with, or after sale hereunder.
22. Sale, Transfer or Encumbrance of the Property.
(a) Beneficiary would not sell the property secured by this
Deed of Trust on the terms set forth in the Note were it not for
the financial strength and development and management
capabilities of Trustor. In the event that Trustor shall sell,
convey, transfer, lease (except as provided in this Deed of
Trust) assign, further encumber or alienate the Property, or any
part thereof, or any interest therein, or be divested of title or
any interest therein, (all of the foregoing being hereinafter
called "transfer"), in any manner whatsoever, whether voluntarily
or involuntarily, without prior written approval from
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l3eneficiary, Beneficiary may, in addition to any other rights or
remedies, at its option, declare all obligations secured by this
Deed of Trust immediately due and payable without, in the case of
a voluntary or involuntary transfer, forfeiture of any prepayment
fee provided for in the Note secured by this Deed of Trust.
Beneficiary's option to declare all obligations secured by this
Deed of Trust immediately due and payable may be exercised at any
time after transfer is made and acceptance of one (1) or more
monthly payments made by transferee shall not constitute a waiver
of Beneficiary's option and shall not be construed as a waiver of
the provisions hereof regarding any subsequent purchaser or
transferee. Beneficiary may withhold its consent for any reason
it deems sufficient in its sole and uncontrolled discretion.
Consent by Beneficiary to one such transaction shall not be
deemed to waive the right to require such consent to future
transactions, and any consent given may be conditional.
Beneficiary will not require a modification of the interest rate
provided for in the Note as a condition of its approval, or
impose any charges on Trustor in connection therewith, except a
charge for processing and reviewing any application of
Beneficiary, or a transferee, for its approval.
(b) Notwithstanding anything herein to the contrary,
Beneficiary agrees to subordinate this deed of trust in favor of
any lender for specific loans or advances by lender to Trustor to
be used for development in accordance with the development
agreement attached hereto as Exhibit "B." However, as a
precondition to subordination, Beneficiary shall be entitled to
approve and consent to the terms of such loans or advances, which
approval and consent may not be unreasonably withheld.
23. Duties of Trustee. Trustee accepts this trust when
this Deed of Trust, duly executed and acknowledged, is made a
public record as provided by law. Trustee is not obligated to
notify any party hereto of any pending sale under any other Oeed
of Trust or of any action or proceeding in which Trustor, Bene-
ficiary or Trustee shall be a party, unless brought by Trustee.
24. Substitution of Trustee. Beneficiary may, from
time to time, as provided by statute, appoint another Trustee in
place and stead of Trustee herein named, and thereupon, Trustee
herein named shall be discharged and the Trustee so appointed
shall be substituted as Trustee hereunder with the same effect as
if originally named Trustee herein.
25. Powers of Trustee. If two or more persons be
designated as Trustee herein, any, or all, powers granted herein
to Trustee may be exercised by any of such persons, if the other
person or persons is unable, for any reason, to act, and any
recital of such inability in any instrument executed by any of
such persons shall be conclusive against Trustor, its successors
and assigns.
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26. Notice of Default and Notice of Sale.
signed Trustor requests that a copy of any Notice of
of any Notice of Sale hereunder be mailed to it at
hereinabove set forth.
The under-
Default and
its address
27. Miscellaneous Provisions.
27.1 This Deed of Trust sets forth the entire
agreement of the parties as to the subject matter hereof and
supersedes all prior discussions and understandings between the~.
This Deed of Trust may not be a~ended or rescinded in any manner
except by an instrument in writing signed by a duly authorized
officer or representative of each party hereto.
27.2 This Deed of Trust shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Alaska.
27.3 Should any of the provisions of this Deed of
Trust be found to be invalid, illegal or unenforceable by any
court of competent jurisdiction, such provision shall be stricken
and the remainder of this Deed of Trust shall nonetheless remain
in full force and effect unless striking such provision shall
materially alter the intention of the parties.
27.4 In the event any action is brought to enforce
this Deed of Trust, the parties agree to be subject to exclusive
in personam jurisdiction in the Superior Court for the State of
Alaska and agree that in any such action venue shall lie exclu-
sively at Anchorage, Alaska in the Third Judicial District, State
of Alaska.
27.5 Paragraph headings contained in this Deed of
Trust are included for convenience only and form no part of the
agreement between the parties.
27.6 All notices or requests required or permitted
under this Deed of Trust shall be in writing: shall be personally
delivered or sent by certified mail, return receipt requested,
postage prepaid; shall be deemed given when so delivered or mail-
ed, irrespective of whether such notice or request is actually
received by the addressee, and shall be sent to the parties at
the addresses set forth in in the introductory paragraph of this
Deed of Trust. Either party may change the address to which
notices shall be sent by notice to the other party.
27.7 This Deed of Trust shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
successors and assigns.
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e
27.8 As used in this Deed of Trust, the masculine
shall include the feminine and neuter, the feminine shall include
the masculine and neuter, the neuter shall include the masculine
and feminine, the singular shall include the plural and the
plural shall include the singular, as the context may require.
TRUSTOR:
By
Its:
ss.
TO CERTIFY that on this day of
the undersigned, a Notary Public in and for the
, personally appeared
, to me known and known to me to be
the individual named in and who executed the foregoing document
and he acknowledged to me that he was authorized to execute the
foregoing document for the uses and purposes therein set forth.
1984,
State
THIS IS
before me,
of
WITNESS my hand and notarial seal the day and year first
hereinabove written.
Notary Public in and for
My Commission Expires:
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SST/bs/104/G-5
, ~
~TATUTORY \,ARRANTY DE:~D
Th~ Granr.or. th~ CITY OF ~EWARD, ALASKA, an Alaska ~ome
rule C1t'l, for and in considec-ation of the sum of TEN DOLLARS
I :;10.00) lawful money of th~ United States of Amec-ica, and other
~ood and valuable Consideration in hand paid, cOnveys and
warc-ants to GATl::WAY VENTUR!;;~, INC., of 6230 "/'." Street,
;nchoc-age. Alaska 99502, and assigns foc-evec- the following
,iescc-ibed c-eal pc-opec-ty situated in the Seward Recoc-ding
DLstr-ict, Thir-d Judicial District, State of Alaska, and moc-e
particularly descr-ibed as follows:
All of TERMINAL ADDITION in the City of Seward,
Seward Recording District, Third Judicial
District, State of Alaska, SAVE and EXCEPT Lots
10, 11, 12, 22, 23 and 24, Alock 1; Lots 1
thr-ough 7 inclusive, Block 8; Lots 1 thcough 7
inclus1ve and Lots' 34 thcough 40 1nclus1ve.
Alock 9; and Lots 6 and 7, Alock 29.
All of tr-~cts 1'.-11'. and 1'.-21'., JF.SSl:: LEE KEIGKTS
SUBDIVISION, ADDITION NO.1, a subdivision of
portions of Jesse Lee Heights SubdiVision,
Bayview Addition and Terminal Addition, City of
Seward, accor-ding to Plat 6 On file in the
Seward Recording Oistr-ict, Third Judicial
District, State of Alaska.
Lots 10, 11 and 12, Block 1, TERMINAL
in the City of Seward, Seward
Distr-ict, Third Judicial District,
Alaska.
AOQITION,
Recording
State of
Lots 22, 23 and 24, BLOCk 1; Lots 1
i.nclusive. Fllock 8; Lots 1 through
through 40 inclusive, Fllock 9,
ADDITION, City of Seward, Seward
District, Third Judicial District,
Alaska.
through 7
7 and 34
TEllM I NAL
Recording
State of
Lots 6 and 7, Block 29, TERMINAL ADDITION, 1n
the City of Seward, Seward Recording District,
Third Judicial District, State of Alaska.
SUA.TECT
wherein Grantor
Developer, which
ree..rence.
only to that certain
is named the City and
is attached hereto and
D",velopment
G~ante", is
incorporated
Ag reel'len t
the named
here in "y
Toyether with all and singular, the tenements, heredi-
taments and appurtenances thereunto belonging or in anywlse
appertaining, and subject to the rights and reservations ex-
pressed in the patent to said land, existing easements tor roads,
power. lights and other utilities and restrictions of record, and
to encroachments ascertainable by physical inspection of the
i;)roperty.
1984.
DATED at: Anchorage, Alaska, this _ day of
GRANTOR:
CITY OF SEWARD, ALASKA
By
Ron Garzinl, City Manager
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