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HomeMy WebLinkAboutRES2026-008 Gun Range Lease with KPBSponsored by: Sorensen Public Hearing: January 26, 2026 CITY OF SEWARD, ALASKA RESOLUTION 2026-008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW 20-YEAR LAND LEASE WITH THE KENAI PENINSULA BOROUGH FOR THE GUN RANGE PROPERTY WHEREAS, the City of Seward has leased the Gun Range Property from the Kenai Peninsula Borough for the last 20 years; and WHEREAS, the lease expires at the end of March 2026; and WHEREAS, the gun range is an important asset to the community; and WHEREAS, the City wants to continue to have access for the next 20 years by renewing the lease. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA: Section 1. The City Council hereby authorizes the City Manager to enter into a new 20-year lease with the Kenai Peninsula Borough for the gun range property. Section 2. This resolution shall take effect 30 days after approval. APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA THIS 26TH DAY OF JANUARY 2026. AYES: NOES: ABSENT: ABSTAIN: ATTEST: 71/10-egm-42. Sue McClure, Mayor Draper, Crites, Barnwell, Warner, Calhoon, Osenga, McClure None None None gm Kris Peck City Clerk City Council Agenda Statement Meeting Date: January 26, 2026 To: City Council Through: Kat Sorensen, City Manager From: Jason Bickling, Deputy City Manager Subject: Resolution 2026-008: Authorizing the City Manager to Enter Into a New 20- Year Land Lease with the Kenai Peninsula Borough for the Gun Range Property Background and justification: The City of Seward leases the land from the Borough for the Gun Range Property. The current lease is for 20 years and expires at the end of March 2026. The lease cost is $1 per year. The approval for the new 20-year lease will go before the Borough in March and Administration wants to give official City authorization for the new lease. After the new lease is approved, Administration will schedule a discussion with Council to review the Conditional Use Permit (CUP) and management agreement of the land with Iron Mountain Gun Club. Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: 3.6.1 Improve, expand, and diversify...recreational opportunities for residents... Strategic Plan: Other: Total amount of funds listed in this legislation: $ 20.00 This legislation (✓): X Creates revenue in the amount of: Creates expenditure in amount of: Creates a savings in the amount of: Has no fiscal impact Funds are (✓): Budgeted Line item(s): Not budgeted Not applicable X $ 20.00 $ $ Affected Fund (✓): General Boat Harbor Motor Pool X Available Fund Balance X Yes SMIC Parking Other Electric Water Attorney Signature: Not applicable Comments: Wastewater Healthcare Note: amounts are unaudited Finance Director Signature: Administration Recommendation X Adopt Resolution Other: -Dferff KPBL# 06-0604-00 KENAI PENINSULA BOROUGH REAL PROPERTY LEASE This LEASE (hereinafter "LEASE"), for good and valuable consideration, and pursuant to Ordinance 2c * 67 enacted 5/V aG , is made and entered into by and between the KENAI PENINSULA BOROUGH, Alaska municipal corporation whose address is 144 North Binkley Street, Soldotna, Alaska 99669, (hereinafter called "KPB"), and the City of Seward, an Alaska Municipal Corporation whose address is 410 Adams Street, Seward, Alaska 99664, (hereinafter called "LESSEE"). I. PURPOSE OF LEASE This Lease grants LESSEE use of the real property described in Section II below for the purpose of operating a public shooting range as further described in Section III. Development Plan. II. DESCRIPTION OF PROPERTY AFFECTED An outdoor shooting facility within the Seward Solid Waste Facility grounds more particularly described as follows: SW1/4NE1/4NE1/4 and the S1/2NW1/4NE1/4NE1/4 Section 28, T1N, R1W, S.M. Alaska Subject to the following reservations: The Kenai Peninsula Borough reserves exclusive use and enjoyment of the approximately 2.7 acres being the solid waste service roadway and all lands east of said service roadway as shown on attachment A (the "Property"). III. TERMS AND CONDITIONS SPECIFIC TO LEASE BETWEEN KPB AND THE CITY OF SEWARD 1. Lease Term. This Lease is for a term of 20 years commencing April 26, 2006 and terminating March 31, 2026 unless sooner terminated. 2. Lease Rental. The annual lease rental for the term of this Lease is $1.00. 3. Development Plan. This Lease requires a development plan per KPB 17.10.140(B). A development plan submitted by LESSEE is subject to approval from both the KPB Planning Department and Solid Waste Department. A development plan establishes the KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 1 OF 10- mutual understanding between KPB and LESSEE as to how the Property will be used and improved by the LESSEE. Jt' a development plan references or relies on a third -party operating agreement, such operating agreement shall be apart of the development plan. A development plan may be updated or amended from time to time, subject to KPB's approval, LESSEE's Operating Agreement and Development Plan is attached hereto and incorporated by reference. 4. Priority Given to KPB Solid Waste Activities. KPB activities upon the Seward Solid Waste Facility grounds include stockpiling, sorting recycling, burying, crushing burning, blasting, composting and hauling materials; landscaping and erosion control; landfill post closure site work and monitoring; and daily operations of a waste transfer facility. These activities result in public traffic and heavy equipment operating throughout the site and other operations that require constant safety controls. KPB's activities and safety concerns on this site and upon the Property are superior to the LESSEE's interests granted by this lease. LESSEE must control all activities in a manner to avoid interference with KPB's primary activities. The borough may require LESSEE to install fencing or take other measures to ensure its use remains compatible with the boroughs. The KPB Solid Waste Department reserves the right to add stipulations as needed to ensure the continued safe and efficient operations on at the site. Additionally the Solid Waste Department may at any time close off any portion of the Property to shooting range use when necessary to perform Landfill Post Closure site work, monitoring, or other activities. 5. Access and Parking. LESSEE shall access the Property along the gated roadway, beginning at the gate southwest of the transfer facility building. LESSEE shall maintain the gate and lock for this road. No parking shall be allowed upon the access road. 6. Land Fill Cap Damage Prevention. The Property is situated atop a landfill cap. LESSEE shall take all necessary precautions to prevent damage to the landfill cap. Range berms may be developed only above the existing ground elevation. Buried waste cannot be exposed and grass and trees shall not be disturbed installation of anchors, posts or other activities which require boring into the ground must first be approved in writing by the KPB Solid Waste Department. 7. General Responsibilities. LESSEE shall provide for its own sanitation, power and water and shall collect its litter, shells, casings and other materials resulting from range activities on a weekly basis LESSEE shall have a qualified designated range master supervising all range activities and enforcing range rules LESSEE shall perform all access road repair, maintenance, and snow removal; fencing; keep culverts and drainage ditches open to prevent ponding or erosion; and other work to keep the site in good condition. Borough facilities, equipment, fencing, monitoring wells, etc, shall not be disturbed or damaged and, if damaged shall be immediately repaired or replaced by LESSEE. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 2 OF 10- 8. Contamination. The Borough acknowledges the presence of the landfill on the Property and the fact that the Property has been used as a shooting range for many years. LESSEE is not responsible for any prior use of the Property. Soil or water contamination resulting from range activities during the term of this Lease shall be remediated by LESSEE. 9. Public Use. LESSEE agrees to allow the general public use of the range facilities. Such public use shall be restricted to those hours during which a range master designated by LESSEE is on the leasehold premises and available for supervision. LESSEE shall ensure all range users are informed of range rules, safety standards, and lease restrictions. LESSEE shall keep gate locked to prevent unauthorized access. 10. Conflict with Solid Waste Operations. KPB may cancel the lease with 30 days written notice if lease activities unavoidably interfere with transfer site operations or if KPB must conduct site work that requires the Property to be vacated. In the event that LESSEE does not abide by the conditions set forth in this lease, KPB can immediately halt range activities until all corrective action is taken. IV. TERMS AND CONDITIONS CONTAINED IN KPB CODE SECTION 17.10.240 1. Assignments. LESSEE may assign this Lease only if approved in advance by KPB. Applications for assignment shall be made in writing on a form provided by the Land Management Division. The assignment shall be approved if it is found that all interests of KPB are fully protected. The assignee shall be subject to and governed by the provisions of this agreement and laws and regulations applicable thereto. 2. Termination. Upon termination of this Lease, LESSEE covenants and agrees to return the property to KPB in a neat, clean and sanitary condition, and to immediately remove all items of personal property subject to the terms and conditions of paragraph 11 below. All terms and conditions set out herein are considered to be material and applicable to the use of the property under this Lease. Subject to the following, in the event of LESSEE's default in the performance or observance of any of the Lease terms, conditions, covenants and stipulations thereto, and such default continues thirty (30) calendar days after written notice of the default, KPB may cancel this lease, or take any legal action for damages or recovery of the property. No improvements may be removed during the time in which the Lease is in default. In the event LESSEE breaches any provisions prohibiting the release of hazardous chemicals, hazardous materials or hazardous waste upon the Property, and fails to immediately terminate the operation causing such release upon notice from KPB, then KPB may immediately terminate this Lease without further notice to LESSEE. Either party may terminate this Lease for convenience upon 30 days written notice to the other party. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 3 OF 10- 3. Cancellation. At any time that this lease is in good standing it may be canceled in whole or in part upon mutual written agreement by the LESSEE and either the KPB Mayor or Planning Director. This Lease is subject to cancellation in whole or in part if improperly issued through error in procedure or with respect to material facts. 4. Conditional Contract. This Lease is issued on a conditional basis and shall be canceled in whole or in part in the event KPB is denied title to the Property. Payment made by the LESSEE on the land to which title is denied KPB shall be refunded in whole or in part to the agreement holder of record and any properly recorded lien holder, if any, jointly. However, KPB shall in no way be liable for any damage that may be done to the Property by the LESSEE or liable for any claim of any third party, or to any claim that may arise from ownership. In the event the Borough does receive title to the Property, the conditional agreement shall then have the same standing, force and effect as non - conditional agreements issued under any regulations of KPB 17.10. 5. Entry or Re -Entry. In the event that the Lease is terminated, canceled or forfeited, or in the event that the Property, or any part thereof, should be abandoned by the LESSEE during the agreement term, KPB or its agents, servants or representative, may immediately or any time thereafter, enter or re-enter and resume possession of the Property or such part thereof, and remove all persons and property thereof either without judicial action where appropriate, by summary proceedings or by a suitable action or proceeding at law or equity without being liable for any damages therefore. Entry or re- entry by KPB shall not be deemed an acceptance of surrender of the Lease. 6. Fire Protection. LESSEE shall take all reasonable precautions to prevent, and take all reasonable actions to suppress destructive and uncontrolled grass, brush, and forest fires on the land under agreement, and comply with all laws, regulations and rules promulgated and enforced by the protection agency responsible for forest protection within the area wherein the Property is located. 7. Hazardous Materials and Hazardous Waste. Storage, handling and disposal of hazardous waste shall not be allowed on lands under lease from KPB per KPB Code, Section 17.10.240(H). LESSEE shall comply with all applicable laws and regulations concerning hazardous chemicals and other hazardous materials, and shall properly store, transfer and use all hazardous chemicals and other hazardous materials and not create any environmental hazards on the lands leased herein. In no event may LESSEE utilize underground storage tanks for the storage or use of hazardous chemicals or other hazardous materials. Should any hazardous chemicals or hazardous materials of any kind or nature whatsoever, or hazardous wastes be released upon the subject lands during the term of this lease, LESSEE shall IMMEDIATELY report such release to the KPB Planning Director and to any other agency as may be required by law, and LESSEE shall, at its KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 4 OF 10- own cost, assess, contain and clean up such spilled materials in the most expedient manner allowable by law. As used herein, "hazardous chemical" means a chemical that is a physical hazard or a health hazard. As used herein, "hazardous material" means a material or substance, as defined in 49 C.F.R. 171.8, and any other substance determined by the federal government, the state of Alaska or KPB, to pose a significant health and safety hazard. As used herein, "hazardous waste" means a hazardous waste as identified by the Environmental Protection Agency under 40 C.F.R.261.3, and any other hazardous waste as defined by the federal government, the state of Alaska or KPB. The covenants and obligations described in this article shall survive the termination of this Lease 8. Full and Final Agreement. This Lease constitutes the full and final agreement of the parties hereto and supersedes any prior or contemporaneous agreements. This Lease may not be modified orally, or in any manner other than by an agreement in writing and signed by both parties or their respective successors in interest. LESSEE avers and warrants that no representations other than those contained within this Lease have been made with the intention of inducing execution of this Lease. 9. Notice. Any notice or demand, which under the terms of this Lease must be given or made by the parties hereto, shall be in writing, and given or made by registered or certified mail, addressed to the other party at the address shown in this section. However, either party may designate in writing such other address to which such notice of demand shall thereafter be so given, made or mailed. A notice given hereunder shall be deemed received when deposited in a U.S. general or branch post office by the addressor. All notices shall be sent to both parties and the Solid Waste Department as follows: LESSOR Kenai Peninsula Borough Planning Director 144 N. Binkley Soldotna, AK 99669-7599 Solid Waste Dept. 47140 East Poppy Ln. Soldotna, AK 99669 LESSEE City of Seward City Manager 410 Adams St P.O. Box 167 Seward, AK 99669 10. Notice of Default. Notice of the default, where required, will be in writing and as provided in the Notice provision of this Lease. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 5 OF 10- 11. Removal or Reversion of Improvements Upon Termination of Lease. a. Improvements on the Property owned by LESSEE shall, within thirty calendar days after the termination of the Lease, be removed by LESSEE, provided such removal will not cause injury or damage to the land; and further provided that the Mayor, or Planning Director when applicable, may extend the time for removing such improvements in cases where hardship is proven. The LESSEE may dispose of its improvements to a succeeding lessee with the consent of the KPB mayor. b. If any improvements and/or chattels having an appraised value in excess of ten thousand dollars, as determined by a qualified appraiser, are not removed within the time allowed, such improvements and/or chattels shall, upon due notice to the LESSEE under the terminated or canceled Lease, be sold at public sale under the direction of the mayor and in accordance with the provisions of KPB Code, Chapter 5. The proceeds of the sale shall inure to the LESSEE who placed such improvements and/or chattels on the lands, or its successors in interest, after paying to KPB all monies due and owing plus all costs, fees and expenses incurred in storing the goods and making such a sale In case there are no other bidders at any such sale, the KPB mayor is authorized to bid, in the name of such improvements and/or chattels. The bid money taken from the fund to which said lands belong, and the fun al receive all moneys or other value subsequently derived from t s or leasing of such improvements and/or chattels. KPB shall acquire all rights, both legal and equitable, that any other purchaser could acquire by reason of the purchase. c. If any improvements and/or chattels having an appraised value of ten thousand dollars or less, as determined by KPB mayor, are not removed within the time allowed, such improvements and/or chattels shall revert and absolute title shall vest in KPB. Upon request, the purchaser, lessee, or permittee shall convey said improvements and/or chattels by appropriate instrument to KPB. 12. Rental for Improvements or Chattels not Removed. Any improvements and/or chattels belonging to the LESSEE or placed on the land during its tenure with or without its permission and remaining upon the premises after the termination of the LEASE shall entitle KPB to charge a reasonable rent therefore. 13. Resale. In the event that this Lease should be terminated, canceled, forfeited or abandoned, KPB may offer the Property for sale, se or other appropriate disposal pursuant to the provisions KPB Code, Chapter 17.10 or other applicable regulations. If the Property is not immediately disposed of, then said land shall return to the Land Bank. 14. Responsibility of Location. It shall be the responsibility of the LESSEE to properly locate its self and its improvements on the Property. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 6 OF 10- 15. Liens and Mortgages. LESSEE shall not cause or allow any liens of any kind or nature whatsoever to attach to the Property during the term of this Lease, except in connection with financing transactions as discussed below. In the event that any prohibited lien is placed against the property, LESSEE shall immediately cause the lien to be released. LESSEE shall immediately refund to KPB any monies that KPB may, at its sole discretion, pay in order to discharge any such lien, including all related costs and a reasonable sum for attorney's fees. For the purpose of interim or permanent financing of improvements to be placed upon the Property, and for no other purpose, LESSEE, after giving written notice thereof to KPB, may encumber by mortgage, deed of trust, assignment or other appropriate instrument, LESSEE's interest in the Property and in and to this Lease, provided such encumbrance pertains only to such leasehold interest and does not pertain to or create any interest in KPB's title to or interest in the Property. Any such encumbrance shall be entirely subordinate to KPB's rights and interest in the Property. A leasehold mortgagee, beneficiary of a deed of trust or security assignee shall have and be subrogated to any and all rights of the LESSEE with respect to the curing of any default hereunder by LESSEE. In the event of cancellation or forfeiture of this Lease for cause, the holder of a properly recorded mortgage, deed of trust, or assignment will have the option to acquire the Lease for the unexpired term thereof, subject to the same terms and conditions as in the original instrument. 16. Easements and Rights -of -Way. This Lease is subject to all easements, rights -of -way, covenants and restrictions of which LESSEE has actual or constructive notice KPB reserves and retains the right to grant additional easements for utility and public access purposes across the property and nothing herein contained shall prevent KPB from specifically reserving or granting such additional easements and rights -of -way across the Property as may be deemed reasonable and necessary. All trails or roads existing at the time this Lease is executed shall be considered an easement for public use. As the parties agree that this is a reserved right which is reflected in the annual lease rental, in the event that KPB grants future additional easements or rights -of -way across the property, it is agreed and understood that LESSEE shall receive no damages for such grant. As established by AS 38.05, KPB lands sold or leased may be subject to a minimum fifty -foot public access easement landward from the ordinary high water mark or mean high water mark. 17. Sanitation. LESSEE shall comply with all laws, regulations or ordinances promulgated for the promotion of sanitation. The Property shall be kept in a clean and sanitary condition and every effort shall be made to prevent pollution of the waters and lands. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 7 OF 10- 18. Subleasing. No LESSEE may sublease lands or any part thereof without written permission of the mayor when applicable. A sublease shall be in writing and subject to the terms and conditions of the original lease. KPB hereby consents to the Operating Agreement and Development Plan attached hereto. 19. Violation. Violation of any of the terms of this Lease may expose LESSEE to appropriate legal action including forfeiture of lease/purchase interest, termination, or cancellation of its interest in accordance with state law. 20. Non -Waiver Provision. The receipt of payment by KPB, regardless of KPB's knowledge of any breach by LESSEE, or of any default on the part of the LESSEE in observance or performance of any of the conditions or covenants of this LEASE, shall not be deemed to be a waiver of any provision of the LEASE. Failure of KPB to enforce any covenant or provision herein contained shall not discharge or invalidate such covenant or provision or affect the right of KPB to enforce the same in the event of any subsequent breach or default. The receipt by KPB of any payment of any other sum of money after notice of termination after the termination of the agreement for any reason, shall not reinstate, continue or extend the agreement, nor shall it destroy or in any manner impair the efficacy of any such notice of termination unless the sole reason for the notice was nonpayment of money due and the payment fully satisfies the breach. V. GENERAL TERMS AND CONDITIONS 1. Waste. LESSEE shall not commit waste or injury upon the Property. 2. Safety. LESSEE shall be solely responsible for maintaining the Property in a safe and fit condition, including without limitation snow and ice removal from all improvements and areas on the Property developed or used for pedestrian traffic 3. Compliance With Laws. The LESSEE agrees to comply with all applicable federal, state, borough and local laws and regulations. 4. Inspections. LESSEE shall allow KPB through its duly authorized representative, to enter and inspect the Property at any reasonable time, with or without advance notice to LESSEE, to ensure compliance with the terms and conditions of this Lease. KPB's right to enter and inspect shall be exercised at KPB's sole discretion and the reservation or exercise of this right, and any related action or inaction by KPB, shall not in any way impose any obligation whatsoever upon KPB, and shall not be construed as a waiver of any rights of KPB under this Lease. 5. Indemnification and Liability Insurance. a. Indemnification and Hold Harmless. The LESSEE shall indemnify, defend, save and hold KPB, its elected and appointed officers, agents and employees, harmless KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 8 OF 10- from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees resulting from LESSEE'S performance or failure to perform in accord with the terms of this Lease in any way whatsoever The LESSEE shall be responsible under this clause for any and all claims of any character resulting from LESSEE or LESSEE'S officers, agents, employees, partners, attorneys, suppliers, and subcontractors performance or failure to perform this Lease in any way whatsoever This defense and indemnification (responsibility includes claims alleging acts or omissions by KPB or its agents, which are said to have contributed to the losses, failure, violations, or damage However, LESSEE shall not be responsible for any damages or claims arising from the sole negligence or willful misconduct of KPB, its agents, or employees. b. Liability Insurance. LESSEE, or its assign, shall purchase at its own expense and maintain in force at all times during the term of this Lease Comprehensive General Liability Insurance, which shall include bodily injury, personal injury, and property damage with respect to the Property and the activities conducted by the LESSEE in which the coverage shall not be less than $1,000,000 per occurrence. The policy purchased shall name LESSEE, or its assign, as the insured and KPB as an additional insured, and shall also require the insurer to provide KPB with thirty (30) days or more advance written notice of any pending cancellation or change in coverage. c. Proof of Insurance. At the time of executing this LEASE, at the time of each renewal of insurance, LESSEE shall deliver to the KPB Planning Director certificates of insurance meeting the above criteria. 6. Property Taxes. LESSEE shall timely pay all real property taxes, assessments and other debts or obligations owed to KPB. Pursuant to KPB Code, Section 17 10 120(F) this Lease will terminate automatically should LESSEE become delinquent in the payment of any such obligations. 7. Jurisdiction. Any suits filed in connection with the terms and conditions of this Lease, and of the rights and duties of the parties, shall be filed at Kenai, Alaska and shall be governed by Alaska law. 8. Savings Clause. Should any provision of this Lease fail or be declared null or void in any respect, or otherwise unenforceable, it shall not affect the validity of any other provision of this Lease or constitute any cause of action in favor of either party as against the other. 9. Binding Effect. It is agreed that all covenants, terms and conditions of this Lease shall be binding upon the successors, heirs and assigns of the original parties hereto. 10. Authorization to Sign. LESSEE warrants that the person executing this agreement is authorized to do so on behalf of the City of Seward. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 9 OF 10- CITY OF SEWARD Ce6 Y-7-01, Clark Corbridge � City Manager ATTEST: • .�� Vim• *IolI'P . s t�� -Jean @veis • • �' '• er.,e4CF Y „�� r • OF PN atIVX E OF ALASKA KENAI PEN BQROUGH J. W .lr ams ayor APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Holly B. Montague Assistant Borough Attorney NOTARY ACKNOWLEDGEMENT )ss. THIRD JUDICIAL DISTRICT The foregoing was acknowledged before me this .4,4 — dayof L 20a0 , by Clark Corbridge, City Manager of the City of Seward, an Alaska municipal corporation, for and on behalf of the corporation. STATE OF ALASKA O11I II1/// `���yP.�SKi R� scion Expo' • I///1611110 )ss. THIRD JUDICIAL DISTRICT ) Notary Public in and for Alas My commission expires: Oq-a6 -act)? WLEDGEMENT The foregoing was acknowledged before me this o?1` -" day of , by John J. Williams, Mayor of the Kenai Peninsula Borough, an A T k municipal corporation, for and on behalf of the corporation. OFFICIAL SEAL STATE OF ALASKA BEVERLEY S. DOVE NOTARY PUBLIC My Comm. Exp.: 22-2 otary Public n and for Alaska My commiss n expires: -tea-� KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 10 OF 10- Attachment A Outdoor Shooting Facility within the Seward Solid Waste Facility grounds Subject to KPBL -1:14-00O __ _ 46 Legend Boundary Shooting Facility Reserved to KPB Parcels Section Lines • SW1/4NE1/4NE1/4 and the S1/2NW1/4NE1/4NE1/4 Section 28, T1 N, R1 W, S.M. Alaska with approximately 2.3 acres being reserved Date: January 9, 2006 for exclusive use and enjoyment by KPB Created By: Marcus A. Mueller Title: Land Management Agent as shown in yellow Phone:907.714.2204 Email: mmueller©borough.kenai.ak.us SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN This Shooting Range Operating Agreement & Development Plan ("Agreement") is made and entered into this/? day of Ap,, ' ( , 2006 by and between the City of Seward, Alaska a municipal corporation located within the Kenai Peninsula Borough and oranized under the laws State of Alaska ("City") and Iron Mountain Shooting Club, a vi or iaeorMto do business in Alaska, whose address is �; c X Z ("Operator"). WITNESSETH WHEREAS, the City wishes to enter into an agreement with an independent contractor to provide operator services for an outdoor shooting range facility at the Seward Solid Waste Facility grounds; and WHEREAS, the Operator represents that it has qualifications sufficient to operate and manage an outdoor shooting range facility; NOW THEREFORE, in consideration of the mutual promises and covenants contained in this agreement, the parties agree as follows: 1.0 DEFINITIONS. 1.1 "Agreement" shall mean this Shooting Range Operating Agreement and Development Plan. 1.2 "Borough" shall mean the Kenai Peninsula Borough, Alaska. 1.3 "City" shall mean the City of Seward, Alaska. 1.4 "Contracting Officer" shall mean the City of Seward City Manager and include any successor or authorized representative. 1.5 "Environmental Law" shall mean any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 1 OF 8- 1.6 "Facility" shall mean the outdoor shooting range on the Property. 1.7 "Hazardous Material" shall mean any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defined as "hazardous waste," "extremely hazardous waste" or a "hazardous substance" under any Environmental Law. Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. 1.8 "Lease" shall mean the Real Property Lease dated 2�i 2 we p y �' between the Kenai Peninsula Borough, as landlord, and the City of Seward as lessee covering the Property. 1.9 "Operations" shall mean the operation and management of the Facility. 1.10 "Property" shall mean the real property described in Section 2 of this Agreement. 2.0 DESCRIPTION OF THE PROPERTY. The Property which is the subject of this Agreement is more particularly described as: 06 V4 SW1/4NE1/4NE1/4 and the S1/2NW1/4NE1/4,Section 28, T1N, R1W, S.M., Seward Recording District, Third Judicial District, State of Alaska. 3.0 TERM. The term of this Agreement shall commence on 4c, 41 ) 7, 2006 and end on Apt " / j [one day less than 5 years] 2011 and shall continue from year to year unless earlier termi ated or extended as provided in this Agreement. 4.0 CONSIDERATION. In consideration for providing the operational services described in this Agreement, the Operator shall be permitted to use the facility for its members. 5.0 OPERATIONS. The Operator shall manage and operate the Facility in accordance with the Lease and this Agreement, and shall be fully responsible for all Operations including: 5.1 Operate, manage and administer the Facility on the Property in accordance with the Lease. The Operator will have a certified range master on the Property during Operation. 5.2 Operations will be in accordance with National Rifle Association ("NRA") standards and guidelines and the best management practices for lead in outdoor shooting ranges established by the Environmental Protection Agency in document EPA-902-B-01-001, each as amended from time to time. 5.3 The Operator expressly assumes all responsibility, risk and liability of the City as described in the Lease. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 2 OF 8- 5.4 No alcohol is permitted on the Property, and the Operator will not allow anyone on the Property who is under the influence of alcohol. 5.5 Operator shall maintain the berms and fencing on the Property and shall keep the fence locked unless a certified range master is present. The value of these improvements is estimated by the Operator to be approximately $ y'J 5.6 Notwithstanding any other requirements, Seward police officers may use the Property for training at all reasonable times. 6.0 COMPLIANCE WITH LAWS. The Operator shall be familiar with and at all times comply with and observe all applicable federal, state and local laws, ordinances, rules, regulations, and executive order, all applicable safety orders, all orders or decrees of administrative agencies, courts, or other legally constituted authorities having jurisdiction or authority over the Operator, the City, or the Services which may be in effect now or during performance of the Services. The Operator shall indemnify and save harmless the City and all its officers, agents, and employees against any claim or liability from or based upon the violation of any such law, ordinance, rule, regulation, order, or decree whether such violation be the result of conduct by the Operator, its agents, invitees or employees. 7.0 INDEMNIFICATION AND INSURANCE. 7.1 Indemnification and Hold Harmless. The Operator shall indemnify, defend, save and hold the Borough, and the City, their elected and appointed officers, agents and employees, harmless from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees resulting from the Operator's performance or failure to perform in accord with the terms of this Agreement in any way whatsoever. The Operator shall be responsible under this clause for any and all claims of any character resulting from the Operator or the Operator's officers, agents, and employee's performance or failures to perform this Agreement in any way whatsoever. This defense and indemnification responsibility includes claims alleging acts or omissions by the Borough, the City or their agents, which are said to have contributed to the losses, failure, violations, or damage. However, the Operator shall not be responsible for any damages or claims arising from the sole negligence or willful misconduct of the Borough, the City their agents, or employees. 7.2 Liability Insurance. The Operator shall purchase at its own expense and maintain in force at all times during the term of this Agreement Comprehensive General Liability Insurance, which shall include bodily injury, personal injury, and property damage with respect to the Property and the activities conducted by the Operator in which the coverage shall not be less than $1,000,000 per occurrence. The policy purchased shall name the Operator as the insured and the City and the Borough as additional insured, and shall also require the insurer to provide the City and the Borough with thirty (30) days or more advances written notice of any pending cancellation or change in coverage. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 3 OF 8- 7.3 Proof of Insurance. At the time of executing this Agreement, and at the time of each renewal of insurance, the Operator shall deliver to the City and to the Borough Planning Director certificates of insurance meeting the above criteria. 7.4 Deductibles. Any deductibles or exclusions in coverage will be assumed by the Operator, for account of, and at the sole risk of the Operator. 7.5 Revisions. The minimum amounts and types of insurance provided by the Operator shall be subject to revision at the City's request in order to provide continuously throughout the term of this Agreement a level of protection consistent with good business practice and accepted standards of the industry. 8.0 ENVIRONMENTAL CONCERNS. 8.1 Condition of Site. Operator has operated a shooting range facility on the Property for years and had full opportunity to examine the Property for the presence of any Hazardous Material and accepts the Property in "as is" condition. 8.2 Release of City. Any other provision of this Agreement to the contrary notwith- standing, Operator releases City from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert fees) arising prior to, during, or after the term of this Agreement, and resulting from the use, keeping, storage or disposal of Hazardous Material on the Property by Operator, or arising out of or resulting from Operations at the Property under this Agreement or any prior use of the Property by Operator or Operator's assignees or predecessors in interest, except for those claims arising out of the City's sole negligence or intentional misconduct. This release includes, without limitation, any and all costs incurred due to any investigation of the Property or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law or regulation. 8.3 Use of Hazardous Materials on the Site. In addition to the terms of the Lease, Operator agrees to comply with the following: i. Operator shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Property except for such Hazardous Material as is necessary to conduct Operations. ii. Any Hazardous Material permitted on the Property as provided in this paragraph, and all containers therefore, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. In addition, Operator shall SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 4 OF 8- comply with EPA-902-B-01-001 as it now exists and may be amended from time to time. iii. Operator shall not discharge, leak or emit, or permit to be discharged, leaked or emitted, any material into the atmosphere, ground, ground water, sewer system or any body of water, if such material (as reasonably determined by the City, or any governmental authority) does or may, pollute or contaminate the same, or may adversely affect the (a) health, welfare or safety of persons, whether located on the Property or elsewhere; or (b) condition, use or enjoyment of the Property or any other area or personal property. iv. Operator hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage and disposal of Hazardous Material kept or brought on the Property, and Operator shall give immediate notice to City of any violation or potential violation of the provisions of this paragraph. 8.4 Indemnification of City. Any other provision of this Agreement to the contrary notwithstanding, Operator shall defend, indemnify and hold City harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: i. The presence, disposal, release or threatened release of any such Hazardous Material which is on or from the Property, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii. Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Property; iii. Any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material or any use of the Property; and/or iv. Any violation of any laws applicable thereto; provided, however, that this section shall apply only if the acts giving rise to the claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (1) occur during the term of this Agreement; (2) arise in whole or in part from the use of, operations on, or activities on the Property by Operator or Operator's employees, agents, invitees, authorized representatives, or any other persons; or (3) occurred during the term of any prior use of any portion of the Property previously used by Operator, its assignees, affiliates, or predecessors in interest. The provisions of this section shall be in addition to any other obligations and liabilities Operator may have to City at law or equity and shall survive and shall survive the termination of this Agreement. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 5 OF 8- 8.5 Facility Operator. For all purposes, Operator shall be deemed the operator of Facility. 9.0 PERMITS AND REPORTING. 9.1 Permits Required by Other Governmental Agencies. Operator shall obtain all permits or approvals required by any applicable law or regulation. Copies of all such permits shall be provided to City prior to Operator commencing work under this Agreement. Operator shall promptly make all reports to any federal, state or local government or agency required by any permit or Environmental Law, including reports of any spill or discharge of Hazardous Material. The City, through the City Manager, may order Operator to immediately cease any operations or activities on the Property if the same is being carried out without necessary permits, in violation of the terms of any permit or Environmental Law, or contrary to this Agreement. 9.2 Correspondence With and Reports to Environmental Agencies. Operator shall immediately provide City with copies of all correspondence and notices, including copies, of all reports between the Operator and any state, federal or local government or agency regulating Hazardous Material which relates to Operator's operations on or use of the Land. 10.0 GOVERNING LAW. This Agreement will be governed by, construed, and enforced in accordance with the laws of Alaska. 11.0 NONWAIVER. No failure of the City or Contractor to insist upon the strict performance by the other of any of the terms of this Agreement or to exercise any right or remedy conferred under this Agreement shall constitute a waiver or relinquishment to any extent of its rights to rely upon such terms or rights on any future occasion. Each and every term, right, or remedy of this Agreement shall continue in full force and effect. 12.0 SAFETY/PERFORMANCE. The Operator shall perform all Operations in a safe and worker like manner. The Operator shall comply with all federal and state statutes, ordinances, orders, rules, and regulations pertaining to the protection of workers and the public from injury or damage, and shall take all other reasonable precautions to protect workers and the public from injury or damage. 13.0 SUSPENSION OR TERMINATION. 13.1 Fault Termination or Suspension. This Agreement may be terminated by either party upon ten (10) days written notice if the other party fails substantially to perform in accordance with its terms. 13.2 Convenience Suspension or Termination. The parties acknowledge that this Agreement is subject to the Lease and shall terminate immediately upon SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 6 OF 8- termination of the Lease. In addition, the City may at any time terminate or suspend this Agreement for any reason including its own needs or convenience. 14.0 EQUAL EMPLOYMENT OPPORTUNITY. The Operator shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, or because of age, physical handicap, sex, marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. The Operator shall take affirmative action required by the law to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, national origin, ancestry, age, or marital status. 15.0 NO ASSIGNMENT OR DELEGATION. The parties acknowledge that the Operator was selected based on particular demonstrated experience in operating the Facility. The Operator may not assign or delegate this Agreement, or any part of it. 16.0 INDEPENDENT CONTRACTOR. The Operator shall be an independent contractor in the performance of work under this Agreement, and shall not be an employee or agent of the City. 17.0 PAYMENT OF TAXES. As a condition of performance of this Agreement, Operator shall pay all applicable federal, state and local taxes incurred by the Operator in the performance of this Agreement. 18.0 PRECEDENCE AND DIVISIBILITY. This Agreement, the Lease and any resolutions adopted in relation thereto, contain the entire agreement between the parties as to the Operations to be performed by the Operator. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. 19.0 TIMELINESS OF PERFORMANCE. The Operator shall perform all Operations in a timely fashion. 20.0 CLAIMS AND DISPUTES. All claims and disputes under this Agreement, if not otherwise resolved by the parties, shall be filed in the Superior Court for the State of Alaska in Anchorage. 21.0 NOTICES. Any notices, bills, invoices, or reports required by the Agreement shall be sufficient if they shall be sent by the parties in the United States mail, postage paid, to the address noted below: SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 7 OF 8- City of Seward P.O. Box 167 Seward, Alaska 99664 Iron Mountain Shooting Club Zo 1 Sscantcva A c1966 IN WITNESS WHEREOF, the parties have executed this Agreement. CITY OF SEWARD (/41 Clark Corbridge City Manager Dated: 4'7— 0.b ATTEST: Lewis, C ty Clerk Dated: (City Seal) 4-7 -0‘„..e a oeeis °'�° OSEW��'�. eve , 4 ..... es •�FiOi14).:!;1d• i�I SEAL •0i •Is+s5 vGNE 1 19,ry k4eee7 ►r� OF A4-@;;t' kiaaaaaaaaa� IC%pcoveI per Secffo►. ICE KM Pl4r►n;nf DeparfMenit; IRON MOUNTAIN SHOOTING CLUB Opiik Bydb.v4- ), w Its:r.4w6 F{rs d e Dated: 3/ 1 7 6 4 3 of Lease- K 81.41- -0604/-00 KP8 Sot;d 1,tias4c. bfarf e' l- CA��yfilaee'bl;cf wask &rector•• SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 8 OF 8-