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09082014 City Council Packet
Seward City Council Agenda Packet r Mariner's Memorial September 8, 2014 City Council Chambers Beginning at 7:00 p.m. 1963 1965 2005 The City of Seward, Alaska brikEi CITY COUNCIL MEETING AGENDA +"*.SNT 1-Anrodca c i {Please silence all cellular phones and pagers during the meeting} ilogow September 8, 2014 7:00 p.m. Council Chambers Jean Bardarson 1. CALL TO ORDER Mayor 2. PLEDGE OF ALLEGIANCE Term Expires 2015 3. ROLL CALL 4. CITIZEN COMMENTS ON ANY SUBJECT EXCEPT THOSE Marianna Keil ITEMS SCHEDULED FOR PUBLIC HEARING [Those who Vice Mayor have signed in will be given the first opportunity to speak. Time is Term Expires 2014 limited to 3 minutes per speaker and 36 minutes total time for this agenda item.] Ristine Casagranda 5. APPROVAL OF AGENDA AND CONSENT AGENDA Council Member [Approval of Consent Agenda passes all routine items indicated by Term Expires 2014 asterisk (*). Consent Agenda items are not considered separately unless a council member so requests. In the event of such a request, Christy Terry the item is returned to the Regular Agenda] Council Member Term Expires 2015 6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS David Squires A. Formal Introduction of Mural Delegates from Obihiro, Japan..Pg. 4 Council Member Term Expires 2015 1. International and Domestic Relations Section Manager Murai Kazunori Dale Butts 2. Art Teacher Shiota Akira Council Member 3. Artist Ikeda Midori Term Expires 2014 4. Art Teacher Umetsu Mika 5. Calligraphy Teacher Nosaka Takehide Iris Darling 6. International &Domestic Relations Section Interpreter Josh Neta Council Member 7. City of Obihiro Official Hayashi Nobuhide (arriving 9/12/14) Term Expires 2015 8. Obihiro International Friendship Association Member Natsubori *Appointment (Anderson) Motoko (arriving 9/12/14) Expires 2014 9. Obihiro International Friendship Association Member Yamazaki Chizuko (arriving 9/12/14) James Hunt City Manager B. Proclamations and Awards Johanna Kinney 1. Certificate of Appreciation for citizens Ronn Hemstock, Jill City Clerk Hemstock and Stephanie Cronin for ensuring the safety of others in the community Pg. 5 Eric Wohlforth City Attorney C. Borough Assembly Report D. City Manager's Report E. City Attorney's Report City of Seward, Alaska Council Agenda September 8, 2014 Page 1 F. Other Reports and Presentations 1. Providence Seward Medical Center quarterly update by Joe Fong. 2. Quarterly Report by the Port and Commerce Advisory Board. 3. Update on the Mariner's Memorial Project. 7. PUBLIC HEARINGS A. Resolutions Requiring Public Hearing 1. Resolution 2014-073, Authorizing The City Manager To Enter Into A Lease Amendment With Harmon Properties LLC For Lot 3, Block 3 Fourth Of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough, Plat No. 97-27 Seward Recording District, Third Judicial District, State Of Alaska Pg. 6 8. UNFINISHED BUSINESS—None 9. NEW BUSINESS A. Resolutions 1. Resolution 2014-074, Authorizing The City Manager To Enter Into A Contract With Merrell Bros., Inc. For An Amount Not To Exceed $3,988,530 For The Sludge Removal And Disposal At The Seward Marine Industrial Center (SMIC) And Lowell Point Wastewater Treatment Facility(LPWWTF), And Appropriating Funds Pg. 42 *2. Resolution 2014-075, Requesting The Alaska Board Of Fisheries Hold Its 2017 Upper Cook Inlet Finfish Meeting On The Kenai Peninsula, And Approving Kenai Peninsula Borough And Municipalities Joint Resolution 2014-01 .Pg. 75 B. Other New Business Items *1. Appoint Sandie Roach' to the Historic Preservation Commission with a term expiring May, 2015 Pg. 58 *2. Direct staff to send out a letter of support from the Mayor on Chugach Electric's grant application to fund assessing Fourth of July Creek as a hydroelectric energy resource.Pg.59 3. Discuss SMIC electrical infrastructure needs and options. (Hunt) 4. Schedule a Work Session to review the electric rate study for September 22, 2014 at 5:30 p.m. 10. INFORMATIONAL ITEMS AND REPORTS (No Action Required) A. Quarterly Report by the Planning and Zoning Commission. Pg. 60 B. Nominations for the 2014 Historic Preservation Award due September 30, 2014. C. Providence Seward Medical Center Financials for July 2014.. ..Pg. 62 11. COUNCIL COMMENTS 12. CITIZEN COMMENTS City of Seward, Alaska Council Agenda September 8, 2014 Page 2 13. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZEN COMMENTS 14. ADJOURNMENT City of Seward, Alaska Council Agenda September 8, 2014 3 o ct E O U to 0 E cu eit7, . 1 ` 4 v� ° o .d s. )a s" (1) o 0 g U O O CU 44 tl.) 0 ,- --.11,A C''. ',_1-)u __E ..§ c9 0 P' 7.4 'C o (1.) Hz 4S z �'• 1 + .,..7-4 , ---# .. ,„ ,7T.,.I, 3 cA IT?' o o a� cN >, 3 Q 1- 4:::: a.) (1) o cd _4_7' S.. z Lam'cu carif;I-4 ^d y C WO U W 03 o ol �• bt ' ° �- °' ct '' u - � O °ci� A� . • CCU 4 CERTIFICATE OF APPRECIATION WHEREAS, on May 22, 2014 a call was received for CPR in progress; and WHEREAS, Fire and EMS providers arrived on scene to find bystanders performing excellent quality CPR; and WHEREAS, the patient survived this sudden cardiac event with a good prognosis for recovery; and WHEREAS, this selfless act of bystander CPR significantly contributed to the positive outcome of this event; and WHEREAS, the bystanders performing CPR were identified as Ronn Hemstock,Jill Hemstock and Stephanie Cronin. NOW, THEREFORE, I, Jean Bardarson, Mayor of the City of Seward, Alaska do hereby offer our utmost appreciation to Ronn Hemstock, Jill Hemstock and Stephanie Cronin and honor their extraordinary commitment to ensuring the safety of others in our community. Dated this 8h day of September, 2014 r( / THE CITY OF SEWARD, ALASKA f tilla K_____11/919 CcSV Jean Bardarson, Mayor 5 Sponsored by: Hunt CITY OF SEWARD, ALASKA RESOLUTION 2014-073 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A LEASE AMENDMENT WITH HARMON PROPERTIES LLC FOR LOT 3, BLOCK 3 FOURTH OF JULY CREEK SUBDIVISION, SEWARD MARINE INDUSTRIAL CENTER, KENAI PENINSULA BOROUGH, PLAT NO. 97-27 SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA WHEREAS, the City is owner of real property described as Lot 3, Block 3 Fourth of July Creek Subdivision; and WHEREAS, this parcel was leased to Harmon Properties LLC in 2013 for a term of twenty years; and WHEREAS, the parties to the lease want to extend the term for an additional seventy- nine years; and WHEREAS, the lease request is consistent with the Comprehensive Plan and the Seward Marine Industrial Center Plan. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The Council has determined that the essential terms and conditions of the proposed lease amendment with Harmon Properties LLC for the real property described as Lot 3, Block 3, Fourth of July Creek Subdivision located in the City of Seward, Alaska are in the public's interest. Section 2. The City Manager is authorized to execute the lease amendment with Harmon Properties LLC in substantially the form as presented at this meeting. Section 3. This resolution shall take effect 30 days from the date and posting of adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 8th day of September, 2014. 6 Council Agenda Statement f, of sF� Meeting Date: September 8, 2014 4 q� V �� Through: City Manager Jim Hunt 4&sKP From: Harbormaster Mack Funk Agenda Item: Harmon Properties LLC Seventy-Nine Year Term Extension for Lease 13-108 at Lot 3, Block 3 Seward Marine Industrial Center BACKGROUND & JUSTIFICATION: Harmon Properties LLC, owned by Carol and Lawrence Harmon, has requested to extend their lease by 79 years to make a total term of ninety-nine years. All else being equal, a longer lease will afford greater security for financing purposes. The current Municipal Land Use Plan adopted by the City Council designates SMIC lands for lease. The parcel is located between Jellison and Mustang Avenues and between the Raibow and Alaska Logistics lease parcels. INTENT: To approve a lease amendment between the City of Seward and Harmon Properties LLC on Lot 3, Block 3 Fourth of July Creek Subdivision at the Seward Marine Industrial Center for boat storage and repair operations. CONSISTENCY CHECKLIST: Yes No N/A 1 Comprehensive Plan (document source here): This lease meets the plan X goals to develop SMIC as a major industrial area of the community. Strategic Plan (document source here): Attract New Industry: 2 Develop an aggressive marketing campaign which highlights the diverse X resources, and quality of life that make Seward a great place to live and establish a business or industry. (Page 5) 3. Other (list): FISCAL NOTE: The current annual lease amount is $10,310.00 plus tax, based on 8% of the fair market value ($125,000) from 2010, plus CPI increase effective July 1, 2014. The leased property will be re- appraised next year in early 2015. Approved by Finance Department: tka ,-) ATTORNEY REVIEW: Yes X No RECOMMENDATION: Approve Resolution 2014- 015 authorizing the City Manager to enter into a Lease Amendment with Harmon Properties LLC for Lot 3, Block 3 Fourth of July Creek Subdivision in the Seward Marine Industrial Center, Plat No. 97-27 in the Seward Recording District, Third Judicial District, State of Alaska. 8 LEASE EXTENSION AMENDMENT (RE-13-108) THE CITY OF SEWARD, ALASKA, a home rule municipal corporation, organized and existing under the laws of the State of Alaska, hereinafter referred to as "CITY," whose address is PO Box 167, Seward, Alaska 99664 and HARMON PROPERTIES, LLC, P.O. Box 1606 Seward,Alaska 99664,hereby agree that the lease agreement 13-108 for Lot 3,Block 3,4th of July Creek Subdivision, Seward Marine Industrial Center, Third Judicial District, Seward Recording District, State of Alaska is hereby amended as follows: ARTICLE 2. LEASE TERM The term of this lease shall be extended for seventy-nine (79) years and shall terminate on January 31,2113. In all other respects, the Lease is to remain unchanged and in full force between the undersigned parties. LESSOR: LESSEE: CITY OF SEWARD HARMON PROPERTIES, LLC Jim Hunt,City Manager awrence Harmon,President Date: Date: 6^i9 ATTEST: Johanna Kinney,City Clerk (City Seal) STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of , 2014, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared Jim Hunt,known to me and to me known to be the City Manager for the City of Seward,Alaska, and authorized to execute documents on its behalf, and is the individual named in and who executed Page 1 of 2 9 the foregoing document on behalf of the City of Seward for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this (s day of P1VrkVSi- ,2014, before me, the undersigned, a Notary Public in and for the State o Alaska, personally appeared Lawrence Harmon, known to me and to me known to be the President for Harmon Properties, LLC and authorized to execute documents on its behalf, and is the individual named in and who executed the foregoing document on behalf of the corporation for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public AUL ,.D.C.) it AMANDA MAGNUSON ► NOTARY PUBLIC IN • i FOR ALASKA State of Alaska ► My Commission Expires Jun 19,2017 ► My Commission Expires: ,lvc‘e_ \dl i at n Page 2 of 2 10 3 LEASE AGREEMENT between CITY OF SEWARD, ALASKA and Harmon Properties LLC Effective Date: [February 1,2014] 11 TABLE OF CONTENTS ARTICLE 1 -LEASED LAND 1 1.1 Description of Leased Land 1 1.2 Covenant of Quiet Enjoyment; Warranty of Title 1 1.3 Reserved 1 1.4 Property Accepted 2 1.5 Permits 2 1.6 Platting 2 ARTICLE 2-LEASE TERM 2 2.1 Lease Term 2 ARTICLE 3-RENTAL RATE 3 3.1 Initial Rental Rate 3 3.2 Rental Adjustments 3 3.3 Procedure for Rental Adjustment 3 3.4 Effect of Late Appraisal by CITY 4 3.5 Appraisal by LESSEE 4 3.6 Effective Date of Adjusted Rental Rate 4 3.7 Interim Rental Adjustments 5 3.8 Late Payment Charge 5 ARTICLE 4 -USE OF LEASED LAND 5 4.1 Use of Leased Land 5 4.2 Obligations of LESSEE 5 4.3 No Preferential Rights to Use Public Facilities 6 4.4 Adequacy of Public Facilities 6 4.5 Tariffs and Other Service Fees 6 4.6 Time for Payment of Utilities and Taxes 6 4.7 Other Uses 6 ARTICLE 5-UTILITIES AND RIGHTS OF ACCESS 7 5.1 Utilities 7 5.2 Third-Party Improvements 7 5.3 Easements 8 ARTICLE 6- CONSTRUCTION BY LESSEE 8 6.1 Improvements on Leased Land 8 6.2 City Review of Construction 9 ARTICLE 7-RETURN OF LEASED LAND/SITE CONDITIONS 10 7.1 Return of Leased Land in Original Condition 10 ARTICLE 8- FORCE MAJEURE 10 ARTICLE 9-LESSEE'S ACTS OF DEFAULT 10 ARTICLE 10-REMEDIES FOR DEFAULT BY LESSEE 11 ARTICLE 11 -TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 13 11.1 Real Property Improvements 13 11.2 Personal Property 13 i 12 ARTICLE 12-ASSIGNMENT OR SUBLEASE 13 12.1 Assignment of Lease or Subleasing 13 12.2 Assignment of Lease for Security 13 12.3 Assignment to Affiliate 14 ARTICLE 13-LESSEE'S DUTY TO DEFEND/INDEMNIFY 14 ARTICLE 14-CITY'S DUTY TO DEFEND/INDEMNIFY 14 ARTICLE 15-INSURANCE 14 15.1 Minimum Insurance Requirements 14 15.2 Subrogation Rights Waived 15 ARTICLE 16-CONDEMNATION 16 ARTICLE 17-ARBITRATION 16 17.1 Arbitration 16 ARTICLE 18-MAINTENANCE AND REPAIRS 18 18.1 Normal Maintenance 18 18.2 Safety Issues 18 18.3 Cost of Repairs 18 ARTICLE 19-ENVIRONMENTAL CONCERNS 19 19.1 Hazardous Materials 19 19.2 Permits and Reporting 21 ARTICLE 20-ESTOPPEL CERTIFICATES 21 ARTICLE 21 -CONDITIONS AND COVENANTS 22 ARTICLE 22-NO WAIVER OF BREACH 22 ARTICLE 23-TIME OF THE ESSENCE 22 ARTICLE 24- COMPUTATION OF TIME 22 ARTICLE 25-SUCCESSORS IN INTEREST 22 ARTICLE 26-ENTIRE AGREEMENT 22 ARTICLE 27-GOVERNING LAW 23 ARTICLE 28 -PARTIAL INVALIDITY 23 ARTICLE 29-RELATIONSHIP OF PARTIES 23 ARTICLE 30-INTERPRETATION 23 ARTICLE 31 - CAPTIONS 23 ARTICLE 32 -AMENDMENT 23 ARTICLE 33 -NOTICES 23 ARTICLE 34-FIRE PROTECTION 24 Exhibit A-Map of Parcel Exhibit B - Personal Guarantee Exhibit C-Environmental Compliance Plan ii 13 LEASE AGREEMENT THIS LEASE AGREEMENT (the "LEASE") is made by and between the CITY OF SEWARD(the"CITY"),a municipal corporation located in the Kenai Peninsula Borough,State of Alaska,whose mailing address is P.O.Box 167,Seward,Alaska 99664 and Harmon Properties LLC (the"LESSEE"),an Alaska corporation whose mailing address is P.O.Box 1606, Seward,Alaska 99664. WHEREAS,LESSEE has indicated its desire to lease the property known as Lot 3,Block 3, Fourth of July Creek Subdivision,Seward Marine Industrial Center,Kenai Peninsula Borough,Plat No. 97-27 recorded in the Seward Recording District, Third Judicial District, State of Alaska, consisting of approximately 2 acres,more or less; and WHEREAS, the City Council of CITY has determined that lease of the Leased Land(as defined below)to LESSEE for the purposes described herein would be in the public interest; and WHEREAS, it is the intent of this LEASE to transfer from CITY to LESSEE the entire burden of compliance with environmental regulations or controls with respect to LESSEE's operations on the Leased Land. NOW THEREFORE, for and in consideration of the mutual promises and covenants hereinafter contained,the parties hereto agree as follows: ARTICLE 1 -LEASED LAND 1.1 Description of Leased Land. The Leased Land is located in the City of Seward,Alaska. The Leased Land is described as follows: Lot 3, Block 3, Fourth of July Creek Subdivision, Seward Marine Industrial Center,Kenai Peninsula Borough,Plat No.97-27 recorded in the Seward Recording District,Third Judicial District, State of Alaska, consisting of approximately 2 acres,more or less. The Leased Land is also depicted on the attached Exhibit A,which is incorporated herein by reference. 1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as of the date hereof,any reasonable restrictions imposed on the Leased Land as part of recording of a plat by CITY, and the provisions of this LEASE, CITY hereby covenants and warrants that LESSEE shall have the quiet enjoyment and possession of the Leased Land for the full term of this LEASE. 1.3 Reserved. 1 14 k 1.4 Property Accepted"As-is." LESSEE acknowledges that it has inspected the Leased Land and accepts the same"as-is"and without reliance on any expressed or implied representations or warranties of CITY(other than the representations in Section 1.2 hereof),or agents of CITY, as to the actual physical condition or characteristics thereof and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A hereto. 1.5 Permits. LESSEE,at its sole cost,shall obtain all permits necessary to the construction and operation of its facilities on the Leased Land. CITY may from time to time,upon request of LESSEE, execute such documents, petitions, applications, and authorizations as may be necessary, as the underlying fee owner, to file with an agency or public body responsible therefor an application for conditional use permits,zoning and re-zoning,tentative and final tract approval,or precise plan approval that may be required for the lawful construction and operation of the facilities of LESSEE permitted on the Leased Land by the terms of this LEASE. However,nothing in this Section shall be construed as requiring CITY to support or approve any such application or permit requests. If the agency or public body responsible to approve or grant such application or permit request is a City of Seward agency,department, or board, LESSEE shall follow all City of Seward procedures, the same as any other applicant making similar requests of the City of Seward, according to the Charter, ordinances, resolutions, or any regulation, rules, or procedures of the City of Seward. Nothing in this Section imposes any duty or responsibility on CITY to assist LESSEE in obtaining any other permits or approvals,including without limitation those required by the U.S. Army Corps of Engineers (e.g., wetland fill permits), the Environmental Protection Agency (e.g., Clean Air Act permits), the Alaska Department of Public Facilities and Transportation(e.g., right-of-way permits),the Alaska Department of Fish and Game, and the Alaska Department of Environmental Conservation. 1.6 Platting. In the event CITY elects to replat,CITY agrees to include the Leased Land in such replat in accordance with the description in Section 1.3. If LESSEE requests a replat of the Leased Land prior to that time,CITY shall assist LESSEE in the preparation and filing of the replat,and LESSEE shall reimburse CITY for CITY's costs in assisting with the preparation and filing of the replat. LESSEE agrees to sign the plat and any other documents necessary to complete the platting or replatting of any area including all or a portion of the Leased Land. LESSEE shall accept reasonable restrictions, easements, or plat notes as may be required by CITY or other governmental authorities as a condition to filing the plat of the Leased Land or the plat of CITY-owned real property adjacent to the Leased Land. ARTICLE 2-LEASE TERM Lease Term. The term of this LEASE(the"Lease Term")shall be in accordance with CITY's authorization in Resolution No. 2013- fog (the "Resolution"). The Lease Term shall commence on the date this LEASE is signed by CITY and that date shall be the effective date of this LEASE(the"Effective Date"). The Lease Term shall run for approximately 20 years 2 15 from the Effective Date, ending at midnight on January 31, 2034. LESSEE shall have the right to extend the term of this LEASE for two additional five(5)year periods,provided that: a) LESSEE exercises its option to extend at least one hundred and eighty(180)days prior to the expiration of the then current lease term; b) LESSEE is not in default under any term or provision of this LEASE; and c) LESSEE shall exercise its options to extend by sending written notice in accordance with the provisions of Article 33 of this LEASE. ARTICLE 3 -RENTAL RATE 3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through June 30, 2014, the annual rental rate for the Leased Land shall be set at $10,000.00. Rent shall be payable quarterly in advance upon the Effective Date of this Lease(prorated for the balance of the current quarter)and thereafter on or before the 20th day of the month beginning each calendar quarter: January 20, April 20, July 20 and October 20. The amount of each quarterly payment shall be one-quarter of the annual rental rate as initially established or later adjusted under this Article 3. 3.2 Rental Adjustments. The annual rental payment shall be adjusted on July 1,2015,and on the same date every five years thereafter (each a "Rental Adjustment Date"). The adjusted annual rental payment to be paid under the terms of this Lease shall be the appraised fair market rental value(the"Fair Market Rental Value")of the Leased Land at the highest and best use of the Leased Land. The highest and best use of the Leased Land shall be determined without regard to LESSEE's intended or actual use of the Leased Land unless that use is coincidentally the highest and best use of the Leased Land. CITY shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety(90)days before each Rental Adjustment Date. 3.3 Procedure for Rental Adjustment. To adjust the rent as of any successive Rental Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska certified MM appraiser(Member,Appraisal Institute),who shall determine the"Fair Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive of improvements placed thereon by LESSEE but inclusive of all improvements made by CITY(including those made before or subsequent to this LEASE). The appraiser's report shall be delivered to LESSEE not less than ninety (90) days before the Rental Adjustment Date. The appraiser's determination of Fair Market Rental Value of the Leased Land shall constitute a final binding determination of the Fair Market Rental Value and the adjusted annual rental rate until the next Rental Adjustment Date,unless LESSEE objects to CITY's appraiser's determination of the Fair Market Rental Value. In that case,LESSEE shall give written notice to CITY of its objection within thirty(30)days of receipt of the appraiser's report,and LESSEE shall then engage an independent State of Alaska certified MAI appraiser(Member,Appraisal Institute) 3 16 at LESSEE's expense to make an appraisal of the Fair Market Rental Value in accordance with this Article 3. If LESSEE's appraisal determines a Fair Market Rental Value that varies from that determined by CITY's appraisal by no more than twenty percent(20%), then the adjusted rental rate shall be the average of the rental rates determined by the two appraisals. If LESSEE's appraisal determines a Fair Market Rental Value that varies from CITY's appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this LEASE. 3.4 Effect of Late Appraisal by CITY If,for any reason,CITY does not complete the appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy of the appraisal report to LESSEE at any time thereafter. However,any such adjusted annual rental rate shall not be effective until the quarterly payment due date immediately following the date CITY delivers the appraisal report to LESSEE. 3.5 Appraisal by LESSEE. If,for any particular Rental Adjustment Date,CITY fails to obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent State of Alaska certified MAI appraiser(Member,Appraisal Institute)at LESSEE's expense to make an appraisal under the terms of this Article 3 and submit a copy to CITY before the next quarterly rental payment due date. However, LESSEE must notify CITY in writing within thirty(30) days following the Rental Adjustment Date of LESSEE's election to obtain an appraisal. If CITY objects to LESSEE's appraiser's determination of the Fair Market Rental Value,CITY shall give written notice to LESSEE of its objection within thirty(30)days of receipt of the appraiser's report,and CITY shall then engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at CITY's expense to make an appraisal of the Fair Market Rental Value as of the Rental Adjustment Date and in accordance with this Article 3. If the CITY's appraisal determines a Fair Market Rental Value that varies from that determined by LESSEE's appraisal by no more than twenty percent(20%),then the adjusted rental rate shall be the average of the rental rates determined by the two appraisals. If the CITY's appraisal determines a Fair Market Rental Value that varies from LESSEE's appraisal by more than twenty percent(20%),then,unless CITY and LESSEE agree on a rate themselves,the adjusted annual rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this LEASE. 3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the appraisal report to LES SEE no later than ninety(90)days before the Rental Adjustment Date. If the adjusted annual rental rate is based on CITY's late appraisal or late delivery of the 4 17 appraisal report to LESSEE, the adjusted rental rate shall be effective beginning with the quarterly rental payment due date immediately following the date the CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the exercise by either CITY or LESSEE of the objection procedure relating to rental adjustment described in this Article 3 shall not postpone LESSEE'S obligation to pay rent at the rate established by CITY. LESSEE shall pay the amount of rent as established or adjusted by CITY until the question of objection to the rental rate is finally resolved. At such time the objection to the rental rate is resolved, an appropriate credit or adjustment shall be made retroactive to the date the new rental rate was established by CITY or in cases where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSEE, to the Rental Adjustment Date. 3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment Date, excepting the Rental Adjustment Dates,the annual rental payment shall be increased beginning July 1, 2014 and on July 1 of every year thereafter (each on "Interim Rental Adjustment Date")in an amount that reflects the increase,if any,in the cost of living for the previous year as stated in the Consumer Price Index, All Urban Consumers, Anchorage, Alaska Area,All Items 1967=100("CPI"),as published by the United States Department of Labor,Bureau of Labor Statistics for the most recent period published immediately prior to the Interim Rental Adjustment Date. In no event shall the rent be less than the previous year. If the CPI is revised or ceases to be published,the CITY shall instead use such revised or other index as most nearly approximates the CPI for the relevant period,and make whatever adjustment in its application as may be necessary, in the CITY's sole discretion, to accomplished as nearly the same result as if the CPI had not been revised or ceased to be published. 3.8 Late Payment Charge. Rental payments not received by the due date shall bear interest until paid at a rate of 10.5% per annum, or the maximum rate permitted under Alaska law, whichever is less,plus a flat monthly late fee of$2.50,or such amount as may be established from time to time by CITY ordinance or resolution and relating to late fees for CITY leases generally. ARTICLE 4- USE OF LEASED LAND 4.1 Use of Leased Land CITY has limited land available for lease. Use of the Leased Land by LESSEE has been determined by the City Council of CITY to be in the public interest. LESSEE may use the Leased Land for boat storage/repair work and industrial vessel shop. 4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with applicable CITY zoning code provisions and provided the following conditions are met: a) The Leased Land is to be completely cleaned and restored to its original condition, that is, the condition existing prior to this LEASE or in better condition upon termination of this LEASE. 5 18 b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous Materials on the Leased Land except as permitted in Article 19 of this LEASE. c) LESSEE shall not use the Leased Land in any manner or construct any facilities thereon which would inhibit the use of adjacent or other lands. d) LESSEE may operate a boat repair and boat storage business on the Leased Land. e) Any changes to this site require prior CITY approval,through the City Manager. 4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any exclusive rights to use any public port facilities constructed or operated by CITY. LESSEE will be subject to any tariffs,procedures,rules,and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended,and LESSEE shall not be entitled to any exclusive use. 4.4 Adequacy ofPublic Facilities.CITY makes no representations or warranties as to the fitness of any particular part or the whole of CITY's public facilities for the uses intended by LESSEE,and LESSEE has inspected those facilities and has satisfied itself that the facilities are sufficient for the intended uses by LESSEE. CITY makes no representations or warranties of any nature with respect to the commercial practicability or accuracy of any information provided by CITY. 4.5 Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs, regulations, and scheduled fees from time to time, even if those adjustments shall cost LESSEE more for its operations or use of public facilities, and CITY is free to do so provided only that it does not impose any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities. 4.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related to operations on the Leased Land and LESSEE's interest in this LEASE and improvements thereon,if any,before such obligations become delinquent;provided,that LESSEE may,in good faith and before such delinquency,contest any such charge or assessment. 4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and additional tenants for space,including those who would be in competition with LESSEE or who might be interested in leasing the Leased Land should this LEASE be terminated for any reason. 4.8 Use of Public Docks and Port Facilities. Public docks are subject to port and harbor rules and regulations as adopted by City Council. 6 19 • ARTICLE 5-UTILITIES AND RIGHTS OF ACCESS 5.1 Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of public utilities to the Leased Land sufficient for LESSEE's intended operations. In so doing, LESSEE shall comply with all CITY regulations and requirements, and the tariffs of the affected utilities,with respect to the construction of those utilities. CITY agrees to cooperate and assist the LESSEE, through consultation and review, in LESSEE's planning and engineering of those improvements. All utilities will be located and sized in accordance to CITY's Master Plan for the area leased. All such construction shall be in compliance with all applicable building,mechanical and fire codes. Utilities constructed by the LESSEE within the public right-of-ways or within public utility easements will normally be accepted and maintained by CITY or utility companies may be used to serve other customers of LESSEE's without payment of fees or reimbursement of construction cost to the LESSEE. However; this does not preclude several lessees from agreeing to share the cost of constructing a utility to serve their facilities. CITY or other utility company may determine that it would be to their benefit to oversize the utility or install special fittings or equipment in order to serve other existing or future users. The additional direct costs of such oversizing shall be borne by CITY or other utility company. Such costs shall be limited to the supplier's cost of the additional fittings,equipment,direct labor,and equipment costs to complete the installation. The costs of oversizing pipe or electrical conduit shall be limited to the difference between the supplier's price to provide the size required to serve its facility and the price of the oversized material required by CITY or utility company. LESSEE shall not be entitled to any refund,rebate, or payments from CITY for any rent, investment, or costs incurred by LESSEE with respect to any required permits for construction or operation of LES SEE's facilities on the Leased Land,it being the intent of the parties that the risk of obtaining required permits be solely a risk undertaken by LESSEE. 5.2 Third-Party Improvements. At the request of LESSEE, CITY shall, from time to time, execute and deliver,or join in execution and delivery of,such documents as are appropriate, necessary,or required to impose upon the Leased Land in accordance with the terms of this LEASE covenants, conditions, and restrictions providing for the granting of uses of the Leased Land, or any part thereof, the establishment of party walls, the establishment of mutual and reciprocal parking rights or rights of ingress or egress, or other like matters (herein called "third-party improvements"), all of which are for the purpose of the orderly development of the Leased Land as a commercial unit subject, however, to the conditions that: a) All such matters shall be limited to the Lease Term and shall terminate upon termination of this LEASE for whatever reason. b) Any such matters of a permanent nature extending beyond the Lease Term shall not be granted without the prior written approval of CITY. In any of the foregoing 7 20 instances referred to in this Section,CITY shall be without expense therefor,and the cost and expense thereof shall be borne solely by LESSEE. c) At the expiration of the Lease Term (including any extended period) third-party improvements on the Leased Land other than portable equipment shall become the property of CITY without the payment of any compensation to LESSEE. 5.3 Easements. In order to provide for the orderly development of the Leased Land and adjacent lands,it may be necessary,desirable,or required that street,railroad,water,sewer,drainage, gas, power line, and other easements and dedications and similar rights be granted or dedicated over or within portions of the Leased Land. As additional consideration for this LEASE, CITY and LESSEE each shall, at the request of the other,join with each other in executing and delivering such documents from time to time and throughout the Lease Term as may be appropriate, necessary, or required by the several governmental agencies (including the City of Seward),public utilities,and other users or tenants of CITY land for the purpose of granting such easements and dedications; provided, however, that such easements and dedications and similar rights do not unreasonably interfere with LESSEE's operations. The costs of locating or relocating any public easements or restrictions of record including any relocation of public road,railroad, utility, or other easements shall be at the sole cost and expense of the party requesting the relocation. CITY shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or other public property. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. ARTICLE 6 - CONSTRUCTION BY LESSEE 6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter, remodel,reconstruct,rebuild,build,and/or replace buildings and other improvements on the Leased Land, subject to the following conditions: a) The cost of any construction, reconstruction, demolition, or of any changes, alterations, or improvements, shall be borne and paid for by LESSEE. b) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. c) LESSEE shall provide CITY with a copy of all building plans and specifications and a site development plan or plans(based on a recent survey)for the Leased Land prior to commencement of construction. d) LESSEE is solely responsible for resurveying and locating improvements on the Leased Land in such manner not to violate building setback requirements or encroach into rights-of-ways or easements. On completion of any improvements, LESSEE 8 21 shall provide CITY a copy of an as-built survey depicting the improvements as completed on the Leased Land. e) Any general contractor employed by LESSEE shall be appropriately bonded by use of performance and labor and material payment bonds in the customary form when cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000). Copies of all such bonds shall be furnished to CITY prior to commencement of construction. If the cost of the work is less than FIFTY THOUSAND DOLLARS ($50,000), LESSEE shall provide CITY, if no performance and labor and material bonds are provided by LESSEE, any necessary assurances or guarantees that the contemplated work will be performed by the general contractor or by LESSEE. In the event that LESSEE elects to construct the facility with its own personnel and equipment, or the personnel and equipment of any corporation or person that is an "affiliate" of LESSEE as such term is defined in AS 10.06.990(2)or Alaska limited liability company in which LESSEE maintains a substantial membership interest,a performance bond shall be required when the cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000). f) CITY may,as contemplated by Alaska Statutes,give notice of non-responsibility for any improvements constructed or effected by LESSEE on the Leased Land. g) LESSEE shall comply with all federal, state,and local statutes and regulations with respect to such construction, including, but not limited to, all applicable building, mechanical, and fire codes. 6.2 City Review of Construction. CITY shall have the right to review initial plans, including those supplied to CITY under Section 6.1 hereof, and any future changes or additions to LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the commencement of construction. CITY shall have the right to comment upon that design and to require LESSEE to make reasonable changes so as to avoid interference with public operations, but the exercise of these rights shall not imply any obligation to do so nor any obligation to do so in a particular way. LESSEE shall construct the facility in accordance with final design specifications approved by CITY. CITY's representatives may monitor the work and shall have access to the site at all reasonable times. LESSEE shall be solely responsible for completing all improvements according to LESSEE's plans and specifications and shall bear all risk,responsibility, and liability for properly surveying the Leased Land before construction and to place all improvements on the Leased Land without encroaching upon any land,easements,rights-of-way,or setback requirements. LESSEE shall obtain the usual and customary performance guarantees from its contractors,and CITY shall be named as an additional insured. 9 22 ARTICLE 7-RETURN OF LEASED LAND/SITE CONDITIONS 7.1 Return of Leased Land in Original Condition. Subject to the provisions of Article 11.1 herein, upon termination of this LEASE for any reason,LESSEE shall return the Leased Land to CITY in the same condition as at the commencement this LEASE, subject to normal,non-abusive use. The Leased Land shall be free of all Hazardous Materials and contamination arising out of or resulting from or occurring during LESSEE's operations or use of the Leased Land during this LEASE. ARTICLE 8-FORCE MAJEURE In the event either LESSEE or CITY is delayed from performance of any of its obligations under this LEASE due to acts of nature, acts of the enemies of the United States of America, sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake/tsunami, civil disturbance,or war,the time period wherein such performance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 9 -LESSEE'S ACTS OF DEFAULT Each of the following shall be a"LESSEE Act of Default"under this LEASE and the terms "acts of default"and"default"shall mean,whenever they are used in this LEASE,any one or more of the following events: 9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty(20)days from the due date thereof,the rent required to be paid under this LEASE. 9.2 Failure by LESSEE to comply with Section 4.1 of this LEASE. 9.3 Failure by LESSEE to observe,fulfill or perform any covenants,conditions,or agreements on its part to be observed or performed under this LEASE, other than payment of rent or compliance with Section 4.1, for a period of thirty(30)days after written notice specifying such failure,requesting that it be remedied,and stating that it is a notice of default,has been given to LESSEE by CITY; provided,however,that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the default is corrected. 9.4 The making by LESSEE of an assignment for the benefit of creditors,the filing of a petition in bankruptcy by LESSEE,the adjudication of LESSEE as insolvent or bankrupt,the petition or application by LESSEE to any tribunal for any receiver or any trustee for itself or for any substantial part of its property;or the commencement of any proceeding relating to LESSEE under any bankruptcy,insolvency,reorganization,arrangement,or readjustment of debt law or statute or similar law or statute of any jurisdiction, whether now or hereafter in effect 10 23 which shall remain undismissed for a period of six (6) months from the date of commencement thereof. 9.5 Violation by LESSEE of any laws or regulations of the United States, or of the State of Alaska,or any conditions of any permits issued by agencies of the City of Seward,the Kenai Peninsula Borough,the State of Alaska,or of the United States Government applicable to LESSEE's use of the Leased Land,pursuant to the regulations of such agencies,for a period of sixty(60)days after written notice specifying such violation has been given by the agency charged with the enforcement of such laws,regulations,or permits to LESSEE; provided, however,if such violation be such that it cannot be corrected within the applicable period,it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the violation is corrected. Furthermore, if LESSEE shall contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined provided such proceedings are diligently pursued;provided,however,that any such extension of time shall not be effective if the effect of the interim administrative or judicial action is to cause a stoppage,interruption,or threat to the activities of any person or entity other than those of LESSEE. 9.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public rights of way clear. ARTICLE 10 -REMEDIES FOR DEFAULT BY LESSEE Whenever an act of default by LESSEE shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired, CITY shall have the following rights and remedies all in addition to any rights and remedies that may be given to CITY by statute, common law, or otherwise: 10.1 CITY may distrain for rent due any of LESSEE's personal property which comes into CITY's possession. This remedy shall include the right of CITY to dispose of personal property distrained in any commercially reasonable manner. It shall be conclusively presumed that compliance with the procedures set forth in the Alaska Uniform Commercial Code (AS 45.29.601-.628) with respect to sale of property shall be a commercially reasonable disposal. 10.2 CITY may re-enter the Leased Land and take possession thereof and,except for any personal property of LESSEE which CITY has waived its right to distrain under Section 10.1 above, remove all personal property of LESSEE from the Leased Land. Such personal property may be stored in place or may be removed and stored in a public warehouse or elsewhere at the cost of LESSEE all without service of notice or resort to legal process,all of which LESSEE expressly waives. 11 24 10.3 In addition to the above, CITY may: a) Declare this LEASE terminated; b) Collect any and all rents due or to become due from subtenants or other occupants of the Leased Land; c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover an amount to be due immediately on breach equal to the unpaid rent for the entire remaining term of this LEASE. e) Recover all damages incurred by CITY by reason of LESSEE's default or breach, including,but not limited to,the cost of recovering possession of the Leased Land, expenses of reletting, including costs of necessary renovation and alteration of the premises,reasonable attorney's fees,and any real estate commissions actually paid. f) Remove or require the removal of any improvements constructed without CITY approval or constructed contrary to site development plans approved by CITY and recover all costs and expense incurred by CITY to remove violating improvements. 10.4 If LESSEE does not immediately surrender possession of the Leased Land after termination by CITY and upon demand by CITY,CITY may forthwith enter into and upon and repossess the Leased Land and expel LESSEE without being deemed guilty in any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenant. 10.5 No expiration or termination of this LEASE shall expire or terminate any liability or obligation to perform of LESSEE's which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. 10.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by CITY of any one or more of the rights and remedies provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all other rights or remedies provided for in this LEASE or now or thereafter existing at law, or in equity or by statute or otherwise. 10.7 No delay or omission to exercise any right or power accruing following an act of default shall impair any such right or power or shall be construed to be a waiver thereof, but any such 12 25 right and power may be exercised from time to time and as often as may be deemed expedient. ARTICLE 11 -TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 11.1 Real Property Improvements. All improvements constructed by LESSEE or its predecessors on the Leased Land or on easements to or from the same, such as buildings, warehouses, conveyor systems, ditches, sewer lines, water lines, dikes or berms and similar improvements,shall become the property of CITY upon termination of this LEASE for any reason; provided,however,that CITY may require LESSEE to remove any improvements designated by CITY and without cost to CITY. 11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding, LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly remove, in no event later than ninety (90) days from the termination of the LEASE, trade fixtures and equipment from the Leased Land provided that LESSEE shall repair any damages to the Leased Land caused by such removal. ARTICLE 12 -ASSIGNMENT OR SUBLEASE 12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been determined to be in the public interest by the City Council of CITY for the reasons set forth in the approving Resolution. The rights and duties created by the LEASE are personal to LESSEE and CITY has granted the LEASE in reliance upon the individual character and financial capability of LESSEE. Therefore,LESSEE shall not assign or sublease this LEASE without CITY's prior written consent, in CITY's sole discretion. 12.2 Assignment of Lease for Security. Notwithstanding Section 12.1 above, LESSEE may assign, encumber, or mortgage its interest in this LEASE or improvements on the Leased Land,by deed of trust or other security instrument,to an institutional lender("Lender")for development of or operations on the Leased Land,provided that Lender shall be subject to all obligations of LESSEE under the terms of this LEASE upon foreclosure. CITY shall furnish Lender,at the address provided to CITY by Lender in writing,with notice of any default or breach of LESSEE under this LEASE. Lender shall have the right(without being required to do so and without thereby assuming the obligations of LESSEE under this LEASE)to make good such default or breach within thirty (30) days after written notice specifying such breach. Notwithstanding the provisions of Article 10 above,no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; provided, a) If Lender, with respect to any default or breach other than a failure to make any required payment of rent or other money,shall undertake within thirty(30)days after notice to cure the default or breach and shall diligently and in good faith proceed to 13 26 ...n1 do so, CITY may not terminate this LEASE or relet the Leased Land unless Lender fails to cure the default or breach within a reasonable period of time thereafter; and b) If the default for which notice is given is a breach of Section 9.3, CITY shall not exercise any of the remedies afforded to it under Article 10 above so long as LESSEE or Lender remains in possession of the Leased Land and satisfies LESSEE's obligations under the terms of this LEASE. Upon foreclosure or other assertion of its security interest, Lender may further assign, transfer, or dispose of its interests, provided that any subsequent assignee,purchaser,or transferee shall remain bound by each and every term of this LEASE. 12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska limited liability company in which LESSEE maintains a substantial membership interest; provided, however, that LESSEE's full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ARTICLE 13-LESSEE'S DUTY TO DEFEND/INDEMNIFY LESSEE shall defend,indemnify,and hold harmless CITY,its officials,employees,agents, and contractors from any and all liability or claims for damages, including personal injuries, environmental damage,death and property damage arising out of or resulting from LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees, assignees, agents, contractors, or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. If any action or proceeding is brought against LESSEE by reason of any such occurrence,LESSEE shall notify CITY promptly in writing of such action or proceeding. ARTICLE 14-CITY'S DUTY TO DEFEND/INDEMNIFY CITY shall defend,indemnify and hold LESSEE harmless from any and all liability or claims for damages, including personal injuries, death, and property damage arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. ARTICLE 15-INSURANCE 15.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or LESSEE'S occupancy of the Leased Land,LESSEE shall procure and maintain,at LESSEE's sole cost and expense,comprehensive commercial general liability insurance with limits of liability of not less than TWO MILLION DOLLARS($2,000,000)for all injuries and/or deaths resulting to any one person and TWO MILLION DOLLARS ($2,000,000) limit from any one occurrence. The comprehensive commercial general liability insurance shall include coverage for personal injury,bodily injury,and property damage or destruction. Coverage 14 27 under such policies of insurance shall include collapse and underground property damage hazards. Contractual liability insurance coverage in the amount of not less than TWO MILLION DOLLARS ($2,000,000)is also required. LESSEE shall obtain owned and non-owned automobile liability insurance with limits of liability of not less than ONE MILLION DOLLARS($1,000,000)per occurrence combined single limit for bodily injury and property damage. LESSEE shall also maintain workers'compensation insurance as required under Alaska law. The minimum amounts and types of insurance provided by LESSEE shall be subject to revision at the sole discretion of CITY in accordance with standard insurance practices, in order to provide continuously throughout the term of this LEASE and any extensions hereof, a level of protection consonant with good business practice and accepted standards in the industry. Such factors as changes in the type of or extent of use of the Lease Land,increases in the cost of living, inflationary pressures, and other considerations, shall be utilized in assessing whether the minimum insurance requirements should be increased. CITY shall notify LESSEE of any required increase in insurance coverage. All insurance policies shall provide for thirty(30)days'notice of cancellation and/or material change to be sent to CITY at the address designated in ARTICLE 33 of this LEASE. All such policies shall be written by insurance companies legally authorized or licensed to do business in the State of Alaska,and acceptable to CITY(Best's Rating B+or better). CITY shall be listed as an additional insured under all insurance policies. LESSEE shall furnish CITY,on forms approved by CITY,certificates evidencing that it has procured the insurance required herein prior to the occupancy of the Leased Land or operation by LESSEE. Insurance policy deductibles are subject to approval by CITY. Nothing herein contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEE's own individual cost and expense,additional or other insurance as maybe desired. The minimum insurance requirements under this LEASE shall not act to limit LESSEE's liability for any occurrence and shall not limit LESSEE's duty to defend and indemnify CITY for claims related to this LEASE or the Leased Land. 15.2 Subrogation Rights Waived. To the extent permitted by law,LESSEE hereby releases CITY, its elected and appointed officials,employees and volunteers,and others working on behalf of CITY from any and all liability or responsibility to LESSEE or anyone claiming through or under LESSEE by way of subrogation or otherwise, for any loss of any kind(including damage to property caused by fire or any other casualty), even if such loss shall have been caused by the fault or negligence of the CITY,its elected or appointed officials,employees or volunteers,or others working on behalf of the CITY. This provision shall be applicable and in full force and effect only with respect to loss or damage occurring during the time of LESSEE's occupancy or use (including LESSEE's occupancy or use prior to the Effective Date of this LEASE), and LESSEE's policies of insurance shall contain a clause or 15 28 .0 endorsement to the effect that such release shall not adversely affect or impair such policies or prejudice the right of LESSEE to recover thereunder except as against CITY(including its elected and appointed officials,employees and volunteers,and others working on behalf of CITY)during the time of LESSEE's occupancy or use. LESSEE agrees that its policies of insurance will include such a clause or endorsement. ARTICLE 16 -CONDEMNATION If all or any part of the Leased Land is condemned for a public use by any government agency or other duly authorized entity,CITY and LESSEE shall each make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority;provided,that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. If part but not all of the Leased Land is condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen(15)days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts, and liens to which the Leased Land is subject. If at the time of such partial taking for public use,LESSEE determines that such partial taking will not prevent it from continuing to operate,then LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. ARTICLE 17-ARBITRATION 17.1 Arbitration. a) Disputes between the parties with respect to the performance of this LEASE that cannot be resolved by the parties,shall be submitted to an independent arbitrator for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS 09.43.010 et. sec,.), as it now exists or may hereafter be amended from time to time,and judgment on the award may be entered in any Superior Court in the State of Alaska. Notwithstanding the foregoing,arbitration shall not be applicable to claims or disputes involving a requested remedy having a value of more than FIFTY THOUSAND DOLLARS ($50,000) (exclusive of interest and costs). All demands 16 29 for arbitration and all answering statements thereto that include any claim must contain a statement that the total sum or value in controversy,as alleged by the party making such demand or answering statement,is not more than FIFTY THOUSAND DOLLARS ($50,000.) The arbitrator will not have jurisdiction,power,or authority to consider or make findings (except to deny jurisdiction) concerning any claim, counterclaim,dispute,or other matter in question where the amount in controversy of any such claim, counterclaim, dispute or matter is more than FIFTY THOUSAND DOLLARS($50,000). The costs and expenses of arbitration shall be shared equally by the parties,and each party shall bear its own attorney's fees and costs. b) Arbitration procedures shall be applicable only to contract,negligence,and similar claims arising from or related to this LEASE, and shall not be used to resolve or determine any claim based upon fraud,intentional misrepresentation,nor any claim based on conduct that is a felony crime in the State of Alaska. c) Written notice of requests for arbitration of disputes may be served by either party to this LEASE upon the other party. Arbitration of any dispute or claim shall be determined by a single arbitrator selected from a list of not less than five (5) arbitrators obtained from the presiding Superior Court Judge or other appropriate judicial officer in Anchorage, Alaska. The arbitrator shall be a person who(a)has not less than five (5) years legal experience in the State of Alaska prior to appointment;and(b)such legal experience includes substantial experience with long- term commercial real property transactions. Each party shall be provided with a copy of the list and shall be afforded a maximum of ten (10) working days to become familiar with the qualifications of the prospective arbitrators. The arbitrator shall be selected by each party, commencing with the party demanding the arbitration, striking one name from the list until only a single name remains. d) Arbitration hearings shall be conducted in Anchorage,Alaska or such other location as the parties may agree. Each party shall produce at the request of the other party,at least thirty(30)days in advance of such hearing,all documents to be submitted at the hearing and such other documents as are relevant to the issues or likely to lead to relevant information. e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law, and the written decision shall be supported by substantial evidence in the record. Failure to apply Alaska law, or entry of a decision that is not based on substantial evidence in the record, shall be additional grounds for modifying or vacating an arbitration decision. 17 30 ARTICLE 18-MAINTENANCE AND REPAIRS 18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof,if any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased Land, including any improvements placed thereon by LESSEE,in as good condition as received or constructed by LESSEE, subject to normal,non-abusive use. CITY,at CITY's sole option and expense, may, prior to the commencement of construction by LESSEE, perform maintenance and preventative work on the Leased Land,exclusive of improvements placed thereon by LESSEE,in order to prevent erosion,mitigate damage to plants and animals,or prepare the Leased Land for eventual development by LESSEE or others by grading,filling, or contouring the Leased Land. Any such work performed by CITY shall be at CITY's sole expense and risk unless LESSEE agrees, in advance and in writing,to share such expense and risk. LESSEE shall maintain in first class condition at all times all fire,pollution, and other protective equipment,if any are placed on Leased Land. 18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance of LESSEE's maintenance responsibilities as they relate to public health or safety and LESSEE shall promptly within thirty(30)days of receipt of such notice advise CITY in writing of its proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE's operation such that the surrounding land and port facilities are exposed to risk,unnecessary potential hazards,or a risk to the public interest(as distinguished from a business risk),or if CITY is not satisfied with the proposed schedule of repairs either because of the delays therein or the scope of the repairs,then CITY may engage an independent engineering consultant well-versed and experienced who shall furnish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recommendations,if the report requires repair then LESSEE shall pay the cost of the report and perform such work in accordance therewith at LESSEE's cost,risk, and expense. 18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being necessary or advisable or reasonable to protect the public facilities on adjacent land,it may submit the matter to arbitration; provided, however, that pending the decision of the arbitrator it shall fully comply with the maintenance requests. If an arbitration award should ultimately find that the repairs were not necessary then LESSEE may either deduct from future rental payments the cost of such repairs or be reimbursed therefor. In deciding whether repairs requested by CITY or required by an engineering report are necessary,the arbitration panel is to give primary consideration to the safety and welfare of the Seward port facilities and the citizens of Seward in light of the highest standards in the industry. If any facility or service provided by CITY to the Leased Land shall become inadequate due to changes in environmental control standards or should any facility require updating or 18 31 improvement by reason of a change in LESSEE's use of the Leased Land or operations therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the option of CITY. ARTICLE 19 -ENVIRONMENTAL CONCERNS 19.1 Hazardous Materials. a) Condition of Site. LESSEE has had full opportunity to examine the site for the presence of any Hazardous Material and accepts the site in "as is" condition. LESSEE may elect, at LESSEE's sole cost,to conduct a baseline soils test prior to execution of this LEASE. b) Release of CITY.Any other provision of this LEASE to the contrary notwithstanding, LESSEE 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,and after the term of this LEASE,and resulting from the use, keeping, storage, or disposal of Hazardous Material on the Leased Land by LESSEE or its predecessors in interest,or arising out of or resulting from LESSEE's operations at the Leased Land or the operations of its predecessors in interest at the Leased Land except for those claims arising out of CITY's sole negligence or intentional misconduct. This release includes,without limitation,any and all costs incurred due to any investigation of the Leased Land or any cleanup, removal, or restoration mandated by a federal,state,or local agency or political subdivision or by law or regulation. c) Use of Hazardous Materials on the Site. i) LESSEE shall not cause or permit any Hazardous Material to be brought upon,kept, or used in or about the Leased Land except for such Hazardous Material as is necessary to conduct LESSEE's authorized use of the Leased Land. ii) Any Hazardous Material permitted on the Leased Land as provided in this paragraph, and all containers therefor, shall be used, kept, stored, and disposed of in a manner that complies with all Enviromnental Laws or other laws or regulations applicable to such Hazardous Material. iii) LESSEE 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 19 32 the same,or may adversely affect the(a)health,welfare,or safety of persons, whether located on the Leased Land or elsewhere; or(b) condition, use, or enjoyment of the Leased Land or any other area or personal property. iv) LESSEE 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 Leased Land by LESSEE, its authorized representatives and invitees,and LESSEE shall give immediate notice to CITY of any violation or potential violation of the provisions of this subparagraph. d) Indemnification of CITY. Any other provision of this LEASE to the contrary notwithstanding, LESSEE 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 Leased Land, 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 Leased Land; iii) Any lawsuit brought or threatened,settlement reached,or government order relating to such Hazardous Material or any use of the Leased Land; and/or iv) Any violation of any laws applicable thereto; provided, however, that this Section 19.1(d)shall apply only if the acts giving rise to the claims,demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses(1)occur prior to or during the term of this LEASE;and(2)arise,in whole or in part, from the use of, operations on, or activities on the Leased Land by LESSEE or LESSEE'S predecessors in interest, employees, agents, invitees,contractors,subcontractors,authorized representatives,subtenants, or any other persons. The provisions of this subparagraph shall be in addition to any other obligations and liabilities LESSEE may have to CITY at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this LEASE. e) Operator. For all purposes,LESSEE shall be deemed the operator of any facility on the Leased Land. 20 33 . ) f f) Hazardous Material Defined. As used in this LEASE, Hazardous Material is 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 industrial waste,hazardous waste,extremely hazardous waste, or a hazardous substance under any Environmental Law. Notwithstanding any statutory petroleum exclusion,for the purposes of this LEASE,the term Hazardous Material includes,without limitation,petroleum,including crude oil or any fraction thereof,petroleum soaked absorbent material, and other petroleum wastes. g) Environmental Law Defined. As used in this LEASE,Environmental Laws include 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,Alaska Statutes Title 46,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. 19.2 Permits and Reporting. a) Permits Required by Other Governmental Agencies. LESSEE 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 LESSEE commencing work under this LEASE. LESSEE 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 LESSEE to immediately cease any operations or activities on the Leased Land 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 LEASE. b) Correspondence With and Reports to Environmental Agencies. LESSEE shall immediately (the same or the next business day) provide CITY with copies of all correspondence and notice,including copies of all reports between LESSEE and any state, federal, or local government or agency regulating Hazardous Material which relates to LESSEE's operations on or use of the Leased Land. ARTICLE 20- ESTOPPEL CERTIFICATES Either party shall at any time and from time to time upon not less than ten(10)days'prior written request by the other party,execute,acknowledge,and deliver to such party,or to its designee, a statement in writing certifying that this LEASE is unamended and in full force and effect(or, if 21 34 there has been any amendment thereof, that the same is in full force and effect as amended and stating the amendment or amendments),that there are no defaults existing(or,if there is any claimed default, stating the nature and extent thereof), and stating the dates to which the rent and other charges have been paid in advance. ARTICLE 21 -CONDITIONS AND COVENANTS All the provisions of this LEASE shall be construed to be "conditions" as well as "covenants,"as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. ARTICLE 22 -NO WAIVER OF BREACH No failure by either CITY or LESSEE to insist upon the strict performance by the other of any term,covenant,or condition of this LEASE or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such terms, covenants, or conditions. No waiver of any breach shall affect or alter this LEASE, but each and every term, covenant, and condition of this LEASE shall continue in full force and effect with respect to any other then existing or subsequent breach. ARTICLE 23 -TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 24- COMPUTATION OF TIME The time in which any act provided by this LEASE is to be done by shall be computed by excluding the first day and including the last,unless the last day is a Saturday,Sunday,or a holiday, and then it is also excluded. ARTICLE 25-SUCCESSORS IN INTEREST Each and all of the terms,covenants,and conditions in this LEASE shall inure to the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 26 -ENTIRE AGREEMENT This LEASE contains the entire agreement of the parties with respect to the matters covered by this LEASE, and no other agreement, statement, or promise made by any party which is not contained in this LEASE shall be binding or valid. 22 35 ARTICLE 27-GOVERNING LAW This LEASE shall be governed by,construed,and enforced in accordance with the laws of the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter amended, including, without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 28-PARTIAL INVALIDITY If any provision of this LEASE is held by a court of competent jurisdiction to be invalid, void,or unenforceable,the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. ARTICLE 29-RELATIONSHIP OF PARTIES Nothing contained in this LEASE shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between CITY and LESSEE; and neither the method of computation of rent, nor any other provisions contained in this LEASE,nor any acts of the parties,shall be deemed to create any relationship between CITY and LESSEE other than the relationship of lessee and lessor. ARTICLE 30 -INTERPRETATION The language in all parts of this LEASE shall in all cases be simply construed according to its fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the opportunity to seek assistance of counsel in drafting and reviewing this LEASE. ARTICLE 31 - CAPTIONS Captions of the articles,paragraphs, and subparagraphs of this LEASE are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction,or meaning of the provisions of this LEASE. ARTICLE 32-AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 33 -NOTICES All notices,demands,or requests from one party to another shall be delivered in person or be sent by mail, certified or registered,postage prepaid, to the addresses stated in this Article and to such other persons and addresses as either party may designate. Notice by mail shall be deemed to have been given at the time of mailing. 23 36 All notices, demands, and requests from LESSEE to CITY shall be given to CITY at the following address: City Manager CITY OF SEWARD PO Box 167 Seward,Alaska 99664 All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: Harmon Properties LLC PO Box 1606 Seward,Alaska 99664 Each party shall have the right,from time to time,to designate a different address by notice given in conformity with this Article. ARTICLE 34-FIRE PROTECTION LESSEE shall, at its sole cost,risk,and expense,provide fire detection and protection to its operations on the Leased Land and fire prevention to industry standards for risks to adjacent facilities such that those risks are minimized. LESSEE shall continue to provide and maintain industry accepted standards of fire protection such that the City of Seward's ISO rating is not degraded by reason of LESSEE'S operation. The parties agree that with the rapid expansion of technology in the field of fire prevention and control LESSEE's obligations hereunder may vary during the term of this LEASE and CITY may submit LES SEE's compliance with its obligation hereunder to arbitration not more frequently than once each five (5)years. IN WITNESS WHEREOF,the parties hereto have set their hands and seals the dates herein set forth. CITY: LESSEE: CJ-TYOF SEW. ' H ON PROPERTI; S LLC 4 V t, City Manager Lawrence Harmon, President 'o ate: / 3 -oe /3 Date:// /6'�-/J' 24 37 ) \ • ATTEST: 00•0••a ae09s e! y�6yp°aa°°py°°y 8'' 0, ....c....a ....c........c.... a f. , •hanna a°e CMC ,. r ity Clerk % ° °j , y°y O STATE OF ALASKA ) ''..per '�., ° 4. +i° 4S ...,...1.* eacv,,,, ) ss. � 4,,,. . OF ply a®.°' THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this `;,�,.,- day of,,J A,,,v n ,201 j by Jim Hunt, City4www of the City of Seward,Alaska, on behalf of the City. 40.\AIACI RJC "" • � T��? Notary b PUBLIC• u'Aio , roc My Co ission Expires: a-1L-1-an STATE OF AL 111 t\���` ) ) ss. THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this 1$ day of n 0v ftWoei,2013, by Larry Harmon who executed the foregoing document on behalf of Harmon Properties LLC • s !• A • 4114/k a JP1('YLr1IYOu^' 0\c ? `15Y\ I Notary Public ! Notary Public in and foVAlaska I AMANDA MAGNUSON i My Commission Expires: 30 At lei., m n I State of Alaska 1 4 My Commission Expires Jun 19.2017 w 25 38 )'E 95. 75' (52530'00"E ~N 95.64) N q� W _ W 60.07 (N26'45'00"W`- 60.001 N00 34'12"W - 254.89' /t •, 1"E 82.47' (N42-37412"E 82.47) z co (N0034'13"4,1"Z.00) 4 5 • C,) `c( Oc Exhibit A. - Lease 3 Harmon Properties LLC N N aj r'i and o 0 PLA City of Seward Li )ved b: rneetil M i� N• M 0 n w w N.G b N Wo z __,■ CO NOTES 60.00' )ng Rights of Nays and Access Easements, 2 0 1 each side of other lot lines within is reserved as a utility easement. N N structure may be constructed or placed I easement which would interfere with the tility to use the easement. s subdivision may be located within a od hazard area; if such Is the case, i nust comply with Title 15 of the City carter and Code of Laws. A survey to of elevation of the property may be to construction. ot�,, re, k' a service road access and utility .,r, z ;cess restricted to Lessees, City of other authorized personnel. 0 1 )n is subject to the City of Seward's luilding Code regulations. 010o3e'07"w 255.00) 50035'48"E 254.89' r Q R I r n, I I"1 1,1 (C) CJ. TED A ( ' T A ---- 39 l Exhibit B PERSONAL GUARANTEE To induce the City of Seward, P.O. Box 167, Seward, AK 99664 ("City") to enter into a Lease Agreement with Harmon Properties LLC, P.O. Box 1606, Seward, AK 99664 ("Harmon") effective February 1, 2014, the undersigned personally guarantees payment of all obligations of Harmon as described in the Lease Agreement. The Lease Agreement covers the following real property: Lot 3, Block 3, Fourth of July Creek Subdivision, Seward Marine Industrial Center,Kenai Peninsula Borough, Plat No. 97-108 recorded in the Seward Recording District, Third Judicial District, State of Alaska, containing approximately 2 acres,more or less. I agree to provide the City with written notification of any changes in my address, and acknowledge that any notice required to be given by the City will be effective if mailed to the address shown below or such changed address on file with the City. My guarantee is absolute and unconditional. Upon default of Harmon under the Lease Agreement, I agree to immediately become liable for Harmon's obligations. The City need not seek performance, payment, and collection from Trust before seeking payment from me. If more than one person guarantees payment, I agree to be jointly and severally liable with all other guarantors for payment. Dated this �0 day of#64;444K , 2013. Signed in my individual capacity as guarantor: Lawrence Harmon 40 , ) --) kIIIQ/T HARMON PROPERTIES, LLC P O BOX 1606 802.5 PORT AVE. SEWARD, ALASKA 99664 PH. (907) 980-8396 11/18/2013 ENVIRONMENTAL COMPLIANCE PLAN Harmon Properties, LLC plans to require and comply with all federal, state of Alaska and City of Seward environmental regulations that apply to storage and vessel repair on property leased from the City of Seward. In compliance with his contractor licensing, Lawrence Harmon has completed all required continuing education including SWPPP. Harmon Properties, LLC will monitor storm water runoff and prevent migration of pollutants outside the limits of the perimeter ditches. All hazardous materials will be stored and disposed of in accordance with Federal, State and City of Seward requirements. Bottom painting or sanding on vessels on leased land will require appropriate ground cover and any disposal of collected debris during this process which will be in compliance with the City of Seward. Harmon Properties, LLC will responsibly maintain leased property and oversee any operations of the leased property and require that all procedures meet environmental regulations. / Harmo 41 Sponsored by: Hunt CITY OF SEWARD, ALASKA RESOLUTION 2014-074 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH MERRELL BROS., INC. FOR AN AMOUNT NOT TO EXCEED $3,988,530 FOR THE SLUDGE REMOVAL AND DISPOSAL AT THE SEWARD MARINE INDUSTRIAL CENTER (SMIC) AND LOWELL POINT WASTEWATER TREATMENT FACILITY (LPWWTF), AND APPROPRIATING FUNDS WHEREAS,funding in the amount of$2,290,000 has been secured for the Sludge Removal and Disposal project at SMIC and LPWWTF; and WHEREAS,staff is preparing to submit a loan application to the Alaska Clean Water Fund ("ACWF") for $1,200,000 to contribute toward the cost of sludge removal and disposal, and are requesting authorization to spend an additional$400,000 from the Department of Correction's 2015 budget earmarked for Spring Creek Correctional Facility sewer purposes; and WHEREAS, the combined reserves of the Water and Wastewater Enterprise Funds and Major Repair and Replacement Funds total approximately$3.4 Million and can be utilized to cover project shortfalls or additional costs incurred by the Public Works department for aerators,Calcium Nitrate, diffusers, aerators, project management and other essentials needed for SMIC and LPWWTF; and WHEREAS, the City and it's engineer, Michael L. Foster & Associates, developed a competitive bid package for the Sludge Removal and Disposal of the lagoons and advertised according to SSC6.10.210 and SCC6.10.215; and WHEREAS, three contractors submitted bids to the City Clerk's office by 2:00 p.m. on August 11,2014 and City staff and the City's engineer,Michael L.Foster&Associates,determined that Merrell Bros., Inc. was the lowest, qualified and responsive bidder; and WHEREAS, the removal and disposal of sludge cannot proceed until the contract is awarded. NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to enter into an agreement,in substantial form as attached hereto,with Merrell Bros.,Inc.for the Sludge Removal and Disposal Project,in the amount of$3,988,530. 42 CITY OF SEWARD,ALASKA RESOLUTION 2014-074 Section 2. Funding in the amount not-to-exceed $2,688,530 is hereby appropriated as follows: 1)$1,300,000 was previously appropriated from the State of Alaska Designated Legislative Grant account no. 18321-0000-5922 to the Sewer Lagoon Sludge Removal ("SLSR") infrastructure account no. 18321-8101 via Resolution 2014-066; 2)$500,000 from the Wastewater MRRF Fund transfers-out account no. 18001-0000-3710- 0000-18320 to the SLSR infrastructure account no. 18320-0000-8101; 3) $490,000 from the Alaska Clean Water Loan#769091 account no. 18320-0000-4700 to the SLSR infrastructure account no. 18320-0000-8101; and 4) if the City receives the expected ACWF loan in the amount of$1.2 Million, then $1.2 Million from ACWF Loan account no. 18320-0000-4700 and the remaining$498,530 from the Wastewater Enterprise Fund transfers-out account no. 18000-0000-3710-0000-18320;or if loan funds are not received,then$112,000 from Wastewater MRRF reserves account no. 18001-0000-3710-0000-18320, $734,000 from the Wastewater Enterprise Fund reserves account no. 18000-0000-3710-0000-18320, and the remaining $852,530 from the Water Enterprise Fund reserves account no. 17000-0000-3710-0000-18320,to account no. 18320- 0000-8101 Section 3. A contingency amount up to $50,000 can be authorized at the sole discretion of the City Manager, upon advance written authorization, with funding appropriated from the Wastewater Enterprise Fund or MRRF reserves if available; otherwise from the Water Enterprise Fund reserves. Section 4. The Notice to Proceed is contingent upon approval from the State of Alaska Department of Environmental Conservation of the alternate sludge disposal site as outlined in the contract. Section 5. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 8th day of September, 2014. 43 Agenda Statement t °F sett.9 Meeting Date: September 8, 2014 4: • a b a To: City Council `P tasty Through: Jim Hunt, City Manager From: W.C. Casey, Public Works Director Agenda Item: Contract approval for the Sludge Removal and Disposal project. BACKGROUND &JUSTIFICATION: The City of Seward has secured funding in the amount of$2,290,000 for the sludge removal and disposal project at the Lowell Point Wastewater Treatment Facility (LPWWTF) and Seward Industrial Center(SMIC),with$1.3 Million coming from a State of Alaska Designated Legislative Grant, $500,000 from the Water Fund reserves, and $490,000 from an Alaska Clean Water Fund ("ACWF") loan. The City hired the engineering firm,Michael L. Foster&Associates,to develop a competitive bid package for the Sludge Removal and Disposal project and advertised according to SSC6.10.210 and SCC6.10.215. Three contractors submitted bids by 2:00 p.m. on August 11,2014. The following are the bids submitted: Compilation of Bids Project: Sludge Removal and Disposal Contractor Final Bid Merrell Bros., Inc. $3,988,530 Lakloey, Inc $6,849,518 Central Environmental, Inc. $7,404,971 City staff and Michael L. Foster&Associates determined that Merrell Bros., Inc. was the lowest, qualified, responsive bidder with a total bid price of$3,988,530. The removal and disposal of the sludge at both lagoons will not be able to proceed until the contract is awarded. Once the contract has been authorized by Council and the Contractor's sludge disposal site is approved by the State of Alaska Department of Environmental Conservation, a Notice to Proceed will be issued. INTENT: To authorize the City Manager to enter into a contract with Merrill Bros.,Inc.to remove and dispose of the sludge from the LPWWTF and SMIC sewer lagoons. CONSISTENCY CHECKLIST: Yes No N/A 1. Comprehensive Plan (document source here): X 2. Strategic Plan (document source here): X 44 3. Other(list): Wastewater Facilities Operation &Maintenance Plan X FISCAL NOTE: Funding for this project in the amount of $2.29 Million is available from a State of Alaska Designated Legislative Grant in the amount of $1.3 Million (authorized and appropriated by Resolution 2014-66 on 8/11/14), $500,000 appropriated from the Water Enterprise Fund by Resolution 2014-019 on 2/10/14; and a loan from the State of Alaska in the amount of$490,000 authorized by Resolution 2012-056 on 7/23/12. Total project costs are$3,988,530,for a shortfall of $1,698,530. The City is seeking an ACWF loan in the amount of$1.2 Million which would result in annual debt service payments of$70,000 for 20 years;this will be brought back to the City Council for acceptance and budget amendment if the loan is approved. The remaining project funding requirement would be$498,530 which would come from the Wastewater Enterprise Fund,leaving that Fund with approximately$225,000 in reserves and $112,000 in MRRF reserves. Should the City fail to qualify for the loan, the amount of$1,698,530 would be funded by a combination of Wastewater and Waster Funds,as follows: $112,000 from Wastewater MRRF(depletes reserves); $734,000 from Wastewater Enterprise Fund (depletes reserves); and $852,530 from the Water Enterprise Fund (reduces reserves to approximately $1.3 Million plus Water MRRF reserves of $411,000). Approved by Finance Department: Jt ATTORNEY REVIEW: Yes X No (Contract reviewed minus addenda) RECOMMENDATION: o1 Staff recommends that the Seward City Council approve Resolution 2014 xcx authorizing the City Manager to enter into a contract with Merrell Bros.,Inc. for an amount not-to-exceed$3,988,530 for the removal and disposal of sludge project at the Lowell Point Wastewater Treatment Facility and SMIC lagoons. 45 CITY OF SEWARD,ALASKA SLUDGE REMOVAL AND DISPOSAL CONTRACT THIS CONTRACT is between the City of Seward,Alaska(hereinafter called OWNER),and Merrell Bros.,Inc (Hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: 1. WORK Contractor shall complete Work as described in the Invitation to Bid and Contract documents. The Work is generally described as follows: The Scope of work includes remove,dewater and dispose of sludge and grit that has accumulated in the Lowell Point and SMIC lagoons for more than 20 years. At the Seward Marine Industrial Center (SMIC), provide temporary secondary treatment of influent sewage or haul sewage and discharge it to the Lowell Point lagoon or to an identified manhole in the "City Sewer System"; assess and possibly remove a torn baffle;inspect and service diffusers. At the Lowell Point Facility, replace and possibly relocate the yard valves above ground; inspect and service diffusers, 2. CONTRACTING OFFICER&CONTRACTOR 2.1.CITY MANAGER is hereinafter called CONTRACTING OFFICER and is authorized to enter into and administer the Contract on behalf of the OWNER. CONTRACTING OFFICER has the authority to make findings,determinations and decisions with respect to the Contract and, when necessary,to modify or terminate the Contract. 2.2. Dustin M. Smith is hereinafter called CONTRACTOR and is to act as OWNER'S representative, assume duties and responsibilities,and have the rights and authority assigned to CONTRACTOR in the Contract Documents in connection with completion of the Work in accordance with the Contract Documents. 3. CONTRACT TIMES AND LIQUIDATED DAMAGES 3.1.Contract Times: Work shall be completed and ready for final payment and acceptance in accordance with Article I I of the City of Seward General Conditions no later than June 15,2015. City of Seward General Conditions are available by contacting the CONTRACTING OFFICER. Sludge Removal and Disposal Contract Page 1 of 6 46 4. CONTRACT AMOUNT OWNER shall pay CONTRACTOR the following Not-to-Exceed amount based on the conformed Bid,included as an Exhibit to this Agreement,subject to additions and deletions as provided in the Contract Documents: THREE MILLION,NINE HUNDRED EIGHTY EIGHT THOUSAND FIVE HUNDRED TI IIRTY Dollars&ZERO Cents (words) $3,988,530.00 (numbers) At no time will any provision of this Agreement make the City or its representative liable for payment for performance of work under this Agreement in excess of the amount that has been appropriated by the City Council and obligated for expenditure for purposes of this Agreement. 5. CONTRACTOR'S REPRESENTATIONS In order to induce OWNER to enter into this Agreement,CONTRACTOR'S representations are set forth as follows: 5.I.CONTRACTOR has familiarized itself with the nature and extend of the Contract Documents, work, site, locality,general nature of work to be performed by OWNER or others at the site that relates to Work required by the Contract Documents and local conditions and Federal, State, and Local Laws and Regulations that in any manner may affect cost, progress, performance,or completion of Work. 5.2.CONTRACTOR has correlated information known to CONTRACTOR and results of such observations, familiarization, examinations, investigations, explorations, tests, studies, and reports with Contract Documents. 5.3.CONTRACTOR has given CONTRACTING OFFICER written notice of conflicts, errors, ambiguities,or discrepancies that it has discovered in the Contract Documents and the written resolution thereof by CONTRACTOR is acceptable to CONTRACTOR, and the Contract Documents are generally sufficient to indicate and convey understanding of terms and conditions for performing and furnishing Work. 6. CONDITION OF THE SITES CONTRACTOR must maintain the sites in an orderly condition. If utilizing OWNER provided composted sludge and wood chips,remaining inventory must be disposed of by November 1,2016. Sludge Removal and Disposal Contract Page 2 of 6 47 7. INSURANCE The Contractor must maintain insurance to these minimum levels: 7.1.Commercial General Liability: The coverage of$2,000,000 combined single limit per occurrence,and$2,000,000 General aggregate and Products-Complete Operations aggregate. The Contractor must assume all insurable risks and bear any loss or injury to property or persons because of neglect or accident during the term of the contract,except for negligence entirely attributable to the City or its agents. 7.2.Workers' Compensation: Coverage required by State law for the Contractor and all of its subcontractors. The policy must include employer's liability coverage of$100,000 per person, and $1,000,000 per occurrence.The Contractor must notify the City and the Alaska Division of Workers'Compensation promptly when changes in its business operation affect its insurance status. 7.3.Automobile Liability: Coverage for all owned,hired,and non-owned vehicles for$1,000,000 combined single limit for each occurrence for bodily injury and property damage. To the extent allowed by law, the Contractor will be required to defend, indemnify, and hold harmless the City of Seward and its officers,employees and engineers from all damage,loss,injury, or proceedings of any kind in connection with the performance or activities of the Contractor, except for damage, loss, or injury resulting from the Owner's sole gross negligence or willful misconduct. 8. MINIMUM WAGE RATES Contractor will ensure that wages paid are the higher of the State or Federal wage rate on a classification by classification basis for the Sludge Removal and Disposal project. Both prevailing wage rates established for the locality by the Alaska Department of Labor under AS 36.05.010,and Federal standards in accordance with subchapter IV of chapter 31 of Part A of subtitle II of Title 40,U.S.C.(commonly referred to as the"Davis Bacon Act")apply. 9. AMERICAN IRON AND STEEL REQUIREMENT The Contractor assures that it,and its subcontractors will utilize American Iron and Steel,when, and if applicable,for construction,alteration,maintenance and repair unless all of the iron and steel products used in the project are produced in the United States. American Iron and Steel means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural reel,reinforced precast concrete,and construction materials. Sludge Removal and Disposal Contract Page 3 of 6 48 10. DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENT(DBE) The CONTRACTOR will comply with the DBE requirements of the State Revolving Loan Fund program,and will require its subcontractors to also meet these requirements. Details are contained in the Invitation to Bid and can also be found on the State website. 11. Equal Employment Opportunity Contractor will remain in compliance with Executive Order 11246 of September 24, 1965,entitled "Equal Employment Opportunity"as amended by Executive Order 11375 of October 13, 1967,and as supplemented in Department of Labor regulations(41 CFR 60). 12, INDEMNIFICATION CONTRACTOR agrees to indemnify, defend and hold harmless City (including its employees, officers,and agents)from any and all claims,arising in favor of third parties and arising out of or relating to this Agreement of the performance of any Work or obligations hereunder. 13. RECORDS CONTRACTOR shall keep accurate records of the Material removed from the Site for use on the Project. City shall have the right to audit CONTRACTOR'S records concerning the volume of Material removed from the sites. 14. AMENDMENTS This Agreement may be amended, modified, or extended at any time by mutual agreement of the Parties, but any such amendment must be in writing, dated, signed by the Parties, and attached hereto. 15. CHOICE OF LAW VENUE The Parties agree that this Agreement shall be governed by the laws of the State of Alaska, and venue for any dispute shall be in Anchorage,Alaska. 16. REMEDIES OF DEFAULT The City shall have the right,but not the obligation,to terminate this Agreement following ten days written notice of default to CONTRACTOR. CONTRACTOR shall have the right to cure such default within the notice period and thereby avoid termination,provided that no other default and cure have occurred in the prior six months. Notwithstanding termination,the City retains its rights to be reimbursed for all Material removed up to and including the date of termination,and all other remedies available at law or equity. Sludge Removal and Disposal Contract Page 4 of 6 49 17. ENTIRE AGREEMENT This Agreement contains the entire understanding and agreement between the Parties with respect to this subject. There are no other written or oral understandings or promises between the Parties with respect to the subject matter of this Agreement other than those contained herein, and any prior oral or written understandings are hereby extinguished. 18. CONTRACT DOCUMENTS 18.1. The Contract Documents which compromise the entire Agreement between OWNER AND CONTRACTOR concerning Work are defined in Invitation to Bid. 18.2. Additional Documents relevant to the Project are available at NN .mlfaalaska.com. 18.3. Exhibits to this Agreement include: 18.3.1. Cost Proposal 18.3.2. Executed Payment Bond in the amount of 100%of the contract Amount 1 8.3.3. Executed Performance Bond in the amount of 100%of the contract amount 18.3.4. Alaska Business License 18.3.5, City of Seward Business License 18.3.6. Certificates of Insurance with Endorsements 18.3.7. Documents submitted by CONTRACTOR prior to execution of Agreement 18.3.8. Kenai Peninsula Borough Tax Compliance Certificate 18.3.9. EEO Statement 18.3.10.DBE Forms: 18.3.10.L. Compliance Statement 18.3.10.2. Report of'Participation 18.3.10.3. Contract Documentation I8.3.10.4. Subcontractor Participation, Performance and utilization 6100-2,6100-3 &6100-4 18.3.11.Documents submitted by CONTRACTOR prior to execution of Agreement. 19. MISCELLANEOUS 19.1 No assignments by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound;and specifically,but without limitation,monies that may become due and monies that are due,may not be assigned without such consent(except to the extent that the effect of this restriction may be limited by law),and unless specifically stated to the contrary in Sludge Removal and Disposal Contract Page 5 of 6 50 any written consent to an assignment,no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 19.1.1. OWNER and CONTRACTOR each bind itself, its partners, successors, assigns,and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect of all covenants,agreements,and obligations contained in the Contract Documents. IN WITNESS WHEREOF,OWNER and CONTRACTOR have signed 2 copies of this Agreement. All portions of the Contract documents have been signed or identified by OWNER and CONTRACTOR. OWNER: City of Seward,Alaska CONTRACTOR: Merrell Bros.,Inc. ttogia4C By:_ _ Dustin Smith Title: Title: C.B.D.O. Date: Date: 09/03/2014 AFF1.ST: Johanna Kinney,CMC City Clerk Sludge Removal and Disposal Contract Page 6 of 6 51 Sponsored by: Hunt CITY OF SEWARD,ALASKA RESOLUTION 2014-075 A RESOLUTION OF THE COUNCIL OF THE CITY OF SEWARD, ALASKA,REQUESTING THE ALASKA BOARD OF FISHERIES HOLD ITS 2017 UPPER COOK INLET FINFISH MEETING ON THE KENAI PENINSULA, AND APPROVING KENAI PENINSULA BOROUGH AND MUNICIPALITIES JOINT RESOLUTION 2014-01 WHEREAS,Upper Cook Inlet finfish are a vital and long-standing component of the City of Seward economy and community; and, WHEREAS,Seward residents are impacted by Board of Fisheries decisions regarding Upper Cook Inlet finfish; and, WHEREAS,the Alaska Board of Fisheries Upper Cook Inlet Finfish regular meeting has not been held on the Kenai Peninsula since 1999; and, WHEREAS, Alaska and Seward residents and businesses benefit from informed science based fisheries management, strategies and practices; and, WHEREAS, sound management, strategies and practices are developed by transparent processes, accessible public meetings and user participation, knowledge and representation; and, WHEREAS,conducting the Alaska Board of Fisheries regular meetings concerning Upper Cook Inlet finfish exclusively in Anchorage instead of rotating locations between Anchorage and all communities affected by the Board's management decisions greatly hampers public participation due to the substantial expense and burden of attending multi-day meetings in Anchorage; and, WHEREAS,all users of public resources are entitled to reasonable access to public meetings and processes concerning matters affecting their economy, livelihood and lifestyle; and, WHEREAS,holding the 2017 Alaska Board of Fisheries Upper Cook Inlet Finfish meeting on the Kenai Peninsula would improve the amount of testimony about local traditional knowledge to the board, which is a great resource for the Board of Fisheries; and, WHEREAS,it is in the best interest of the residents and visitors to both the Kenai Peninsula and the Anchorage area to maintain healthy well-managed salmon stocks and provide opportunities and access for diverse user groups; and, WHEREAS,Joint Resolution No.2014-01;A Joint Resolution of the Assembly of the Kenai Peninsula Borough, and Councils of the City of Homer, City of Kenai, City of Seldovia, City of Seward and City of Soldotna,Requesting the Alaska Board of Fisheries Hold its 2017 Upper Cook 52 CITY OF SEWARD, ALASKA RESOLUTION 2014-075 Inlet Finfish Meeting on the Kenai Peninsula is proposed to be sent to the Alaska Fisheries Board and other interested officials for consideration. NOW, TIIEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. That the Alaska Board of Fisheries is respectfully and strongly urged to schedule its full Upper Cook Inlet Finfish Meeting of 2017 and future such meetings on the Kenai Peninsula on a semi-regular basis. Section 2. That Mayor Jean Bardarson is authorized to sign Joint Resolution 2014-01 on behalf of the City of Seward. Section 3. That this resolution takes effect immediately upon passage. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 8th day of September, 2014. THE CITY OF SEWARD, ALASKA Jean Bardarson, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney, CMC City Clerk (City Seal) 53 Council Agenda Statement 4., setC.9 Meeting Date: September 8, 2014 o �'o b From: Ron Long, Community Development Director ,q •:p &Assistant City Manager e Agenda Item: Authorize Seward's Mayor to sign a Joint Resolution of the Kenai Peninsula Borough Requesting the Alaska Board of Fisheries hold its 2017 Upper Cook Inlet Finfish Meeting on the Kenai Peninsula BACKGROUND & JUSTIFICATION: The decisions made by the Alaska Board of Fisheries have the potential to profoundly affect many residents of the Kenai Peninsula and Seward. Joint resolution 2014-01 brings forward a coalition of borough wide and municipal entities that support the Board of Fisheries holding its 2017 Finfish Meeting on the Kenai Peninsula. The Board of Fisheries has not held its Finfish Meeting on the Kenai Peninsula since 1999. Travel time and costs associated with attending meetings outside the Kenai Peninsula pose a significant burden to local residents, limiting participation. Appropriate venues are available and businesses including lodging,restaurants and other auxiliary services would be positively impacted. While making informed decisions regarding finfish issues in Upper Cook Inlet,the Board of Fisheries should consider the comments and interests from residents of the Kenai Peninsula.The residents of the Seward area and Kenai Peninsula would have a greater opportunity to attend the meetings and have their concerns heard if the Finfish meeting is held on the Kenai Peninsula. INTENT: To authorize the Mayor of the City of Seward to sign joint Resolution 2014-01 of the Kenai Peninsula Borough,requesting that the Alaska Board of Fisheries holding its 2017 Finfish Meetings on the Kenai Peninsula in 2017. CONSISTENCY CHECKLIST: Yes No N/A 1. Comprehensive Plan (document source here): X 2 Strategic Plan(document source here): Page 3, Support a strong and X diverse economic base. 3. Other(list): X FISCAL NOTE: Support businesses would be positively impacted by the 2017 Finfish meeting being held on the Kenai Peninsula. Approved by Finance Department: $64. v4Ze e ATTORNEY REVIEW: Yes No X RECOMMENDATION: 01S Council approve Resolution 2014- /authorizing Seward's Mayor to sign Joint Resolution 2014-01 • of the Kenai Peninsula Borough,requesting the Alaska Board of Fisheries hold its 2017 Upper Cook Inlet Finfish Meeting on the Kenai Peninsula. 54 KENAI PENINSULA BOROUGH CITY OF HOMER CITY OF KENAI CITY OF SELDOVIA CITY OF SEWARD CITY OF SOLDOTNA JOINT RESOLUTION NO. 2014 - 01 A JOINT RESOLUTION OF THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH, COUNCILS OF THE CITY OF HOMER, CITY OF KENAI, CITY OF SELDOVIA, CITY OF SEWARD AND CITY OF SOLDOTNA, REQUESTING THE ALASKA BOARD OF FISHERIES HOLD ITS 2017 UPPER COOK INLET FINFISH MEETING ON THE KENAI PENINSULA. WHEREAS, Upper Cook Inlet Finfish issues are vitally important to, and directly impact residents, municipal governments and communities on the Kenai Peninsula; and WHEREAS, many local residents and businesses of the Kenai Peninsula depend on, participate in, and are otherwise affected by decisions made by the Board of Fisheries with regard to subsistence fisheries, sport fisheries, commercial fisheries, personal use fisheries and conservation measures in Upper Cook Inlet; and WHEREAS, when making informed decisions regarding finfish issues in Upper Cook Inlet, the Board of Fisheries should consider the comments and interests from residents of the Kenai Peninsula; and WHEREAS, the costs and travel time to attend meetings outside the Kenai Peninsula pose a significant burden to local residents, limiting participation and the Board of Fisheries' ability to benefit from local knowledge; and WHEREAS, the Alaska Board of Fisheries has not held its full Upper Cook Inlet Finfish meeting on the Peninsula since 1999 despite numerous requests that it do so; and WHEREAS, holding the meeting on the Kenai Peninsula would show local residents, businesses and communities that the Board of Fisheries listens, cares about and understands the local impacts of its decisions; and WHEREAS, there are local quality venues of sufficient size with advanced technologic capabilities to host public meetings, as well as exceptional lodging and dining opportunities on the Kenai Peninsula; NOW, THEREFORE, BE IT RESOLVED BY THE KENAI PENINSULA BOROUGH ASSEMBLY, AND THE COUNCILS FOR THE CITY OF HOMER, CITY OF KENAI, CITY OF SELDOVIA, CITY OF SEWARD AND CITY OF SOLDOTNA: Section 1. That the Alaska Board of Fisheries is respectfully and strongly urged by the Kenai Peninsula municipal governments representing their constituents to hold the full 2017 Upper Cook Inlet Finfish meeting on the Kenai Peninsula. 55 Kenai Peninsula Joint Resolution Page 2 of 3 Section 2. That this Joint Resolution be forwarded to Governor Sean Parnell, Senator Peter Micciche, Senator Gary Stevens, Speaker Mike Chenault, Representative Kurt Olson, Representative Paul Seaton, Governor's Chief of Staff Mike Nizich, Department of Fish & Game Commissioner Cora Campbell, Alaska Board of Fisheries Members - Karl Johnstone, Orville Huntington, Susan Jeffrey, John Jensen, Fritz Johnson, Thomas Kluberton, Reed Moriskey, Alaska Board of Fisheries Executive Director Glenn Haight Section 3. That this resolution takes effect immediately upon approval by the participating city councils. APPROVED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS * DAY OF *, 2014. HAL SMALLEY, ASSEMBLY PRESIDENT ATTEST: Johni Blankenship, Borough Clerk APPROVED BY THE COUNCIL OF THE CITY OF HOMER this * day of*, 2014. MARY E. WYTHE, HOMER MAYOR ATTEST: Jo Johnson, City Clerk APPROVED BY THE COUNCIL OF THE CITY OF KENAI this * day of*, 2014. PAT PORTER, MAYOR ATTEST: Sandra Modigh, City Clerk APPROVED BY THE COUNCIL OF THE CITY OF SELDOVIA THIS * DAY OF *, 2014. 56 Kenai Peninsula Joint Resolution Page 3 of 3 KEITH GAIN, SELDOVIA MAYOR ATTEST: Mary Klinger, City Clerk APPROVED BY THE COUNCIL OF THE CITY OF SEWARD, THIS * DAY OF *, 2014. JEAN BARDARSON, SEWARD MAYOR ATTEST: Johanna Kinney, City Clerk APPROVED BY THE COUNCIL OF THE CITY OF SOLDOTNA, this * day of*, 2014. NELS ANDERSON, SOLDOTNA MAYOR ATTEST: Michelle M. Saner, City Clerk 57 CITY OF SEWARD, ALASKA RECFIVED APPLICATION FOR THE AUG 2 0 2014 SEWARD HISTORIC PRESERVATION COMMISSIO OFFICE OF THE CITY NAME: n d ) gi'ar_ki. STREET ADDRESS: c2 2'/ rce MAILING ADDRESS: ?1, 9BOK 302)/ LSe 1,0av E-MAIL ADDRESS 6.Q11C L tSel,c) 'd . /2e/t HOME TELEPHONE: 0202 - 26 7 ( LENGTH OF RESIDENCY IN THE SEWARD AREA: PRESENLY EMPLOYED AS: 'Fe. 71/red- List any special training, education or background such as grant writing, history, airchitecture, or archeology, which may help you as a member of the Commission: /greAed/r 4�cc //ZZie,re 6-z1- cwt 41,56 r�y 0 Have you ever been involved in any aspect of historic preservation? If so, briefly describe your involvement: l. I am specifically interested in serving on the Historic Preservation Commission because: Loc vd z, ct_ ZS174e - /7' 'e Or -d, 0 W1 %' Lner�e c&fc& .ex posuu^� as a At,5�or e rnrnw zL Have you ever served on a similar commission elsewhere. Ye or No If so, where? O 2Y? ? And when? SOD_ aD/ If appointed, are you willing to: • Do historic research? NO • Work on preparing grant applications? 'W NO • Work on writing historic register nominations? NO • Attend his • .c preservation workshops? YE NO ,/#..L , iii cl)/h/ SIGNATURE DATE / 58 September , 2014 Brad Evans, Chief Executive Officer Chugach Electric Association, Inc. P.O. Box 196300 Anchorage, AK 99519-6300 Re: Chugach's Renewable Energy Fund Grant Application Dear Mr. Evans: On behalf of the City of Seward, I am expressing my strong support for Chugach's grant application to partially fund the continued assessment of Fourth of July Creek as a hydroelectric energy resource. The proposed project has many advantages. It has the potential to provide clean, renewable hydro energy for years to come, offsetting the use of fossil fuels and increasing local reliability. Further, the project site is accessible and interconnection is readily available due to the proximity to the local system. The City of Seward appreciates the opportunity to work with Chugach Electric on this project. Please feel free to include my comments in support of the project with Chugach Electric's grant application. Sincerely, Jean Bardarson, Mayor City of Seward 59 MEMORANDUM \`{oa sp ..� ,, • City of Seward • Date: Sept 8, 2014 To: Seward City Council From: Planning and Zoning Commission Donna Glenz, Planner Subject: Planning and Zoning Quarterly Report (April — September, 2014) (with apologies the 2nd Quarterly Report was missed) April • Elected Cindy Ecklund, Chair and Bixler McClure, Vice Chair • Approved Reso 2014-04 —recommendation to Council for the nomination of disposal for City-owned Lot 1, Block 6, Seward Small Boat Harbor. • Approved Reso 2014-05 —recommending Council approve the annual priorities for April 2014 through April 2015. • Held a special meeting on April 15th — Approved Reso 2014-06 recommending Council approval of the code additions and changes regarding Mobile and Roving Vendors on City property and within the public Right of Way. • Community Development staff participated in the annual Permitting & Agency Information Day on April 17 at the Seward Community Library & Museum May • Vice-Chair Bixler McClure resigned from the Commission. • Approved Reso 2014-07 and 08 a height variance and Conditional Use Permit for the Shoreside Petroleum bulk fuel storage facility in Leirer Industrial Subdivision • Rescheduled the June 3rd meeting due to staff attendance at the Association of State Floodplain Managers in Seattle Washington. • Work Session Canceled due to lack of quorum June • Planner Donna Glenz and Planning Technician Dwayne Atwood attended an annual Association of State Floodplain Managers training conference in Seattle, Washington, June 1 through June 6. • Canceled June 17 Special Meeting due to lack of quorum 60 July • July 1 regular meeting was cancelled due to lack of quorum • July 15th Special meeting the Commission approved Reso 2014-10, recommending KPB approval of replat of Lots 14-16, Block 36, Original Townsite of Seward, Eagleton Replat. • Elected Martha Fleming as vice-chair August • August 5th regular meeting and 19th work session were canceled due to lack of quorum. 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