HomeMy WebLinkAboutRes2019-028 Sponsored by: Regis
Public Hearing: March 26,2019
Approval Date: March 26,2019
CITY OF SEWARD,ALASKA
RESOLUTION 2019-028
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A
NEW LEASE WITH RAIBOW FIBERGLASS AND BOAT REPAIR LLC
FOR LOT 5 BLOCK 7 FOURTH OF JULY CREEK SUBDIVISION,
SEWARD MARINE INDUSTRIAL CENTER, KENAI PENINSULA
BOROUGH, PLAT NO. 2015-14 RAIBOW REPLAT #2 SEWARD
RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF
ALASKA
WHEREAS, the City is the owner of real property described as Lot 5 Block 7 Fourth of
July Creek Subdivision; and
WHEREAS, Raibow is currently conducting business adjacent to the proposed leased
premises on Lot 4D Block 7 with a 20-year lease which expires in June 2035; and
WHEREAS, the City and Raibow Fiberglass and Boat Repair LLC (Raibow) have
previously executed a lease contract at the Seward Marine Industrial Center(SMIC); and
WHEREAS, Raibow needs to lease additional land at the SMIC; and
WHEREAS, Raibow Fiberglass and Boat Repair LLC submitted a proposal to lease
Lot 5 Block 7 Fourth of July Subdivision for a boat repair yard; and
WHEREAS, Raibow has submitted an application with the State of Alaska for their
Storm Water Prevention Pollution Plan as required; and
WHEREAS,the City Manager has negotiated a lease agreement to lease additional land
to Raibow under the provisions of Seward City Code 7.05.410; and
WHEREAS, the Council approve in Resolution 2019-004 recommending that the Kenai
Peninsula Borough approve the replat of City owned land of Lot 5 Block 7 Fourth of July Creek
Subdivision, which is currently in the process of being re-platted; 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:
CITY OF SEWARD,ALASKA
RESOLUTION 2019-028
Section 1. The Council has determined that the essential terms and conditions and the
method disposition of the proposed lease agreement with Raibow Fiberglass and Boat Repair
LLC for the real property described as Lot 5, Block 7, Fourth of July Subdivision, located in the
City of Seward, is in the public's best interest.
Section 2. The City Manager is authorized to execute the new lease agreement with
Raibow Fiberglass and Boat Repair LLC in substantially the form as presented at this meeting
but subject to an amendment to require the installation of an oil/water separator system no later
than two years from the effective date of the lease.
Section 3. This resolution shall take effect thirty (30) days after its adoption and posting.
Upon the effectiveness of this resolution the lease will be effective April 10, 2019.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this
11th day of March, 2019.
THE CITY OF SEWARD, ALASKA
David Squires, MayoY
AYES: Towsley, Lane, Osenga, McClure, Horn, Squires
NOES: Seese
ABSENT: None
ABSTAIN: None
ATTEST:
_- A/
renda J. Ballo , MMC
City Clerk
(City S 4t, OF SEIti••••
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30
31
Resolution 2019-028 PH
LEASE AGREEMENT
between
CITY OF SEWARD, ALASKA
and
Raibow Fiberglass and Boat Repair LLC
Effective Date:
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TABLE OF CONTENTS
ARTICLE 1 - LEASED LAND .................................................................................................... 3
1.1 Description of Leased Land .................................................................................... 3
1.2 Covenant of Quiet Enjoyment; Warranty of Title ................................................... 3
1.3 Reserved .................................................................................................................. 3
1.4 Property Accepted ................................................................................................... 4
1.5 Permits .................................................................................................................... 4
1.6 Platting .................................................................................................................... 4
1.7 Development of Leased Land 4
ARTICLE 2 - LEASE TERM ...................................................................................................... 5
2.1 Lease Term .............................................................................................................. 5
ARTICLE 3 - RENTAL RATE ................................................................................................... 5
3.1 Initial Rental Rate ................................................................................................... 5
3.2 Rental Adjustments.................................................................................................. 5
3.3 Procedure for Rental Adjustment............................................................................ 6
3.4 Effect of Late Appraisal by CITY ............................................................................ 6
3.5 Appraisal by LESSEE ............................................................................................. 6
3.6 Effective Date of Adjusted Rental Rate ................................................................... 7
3.7 Interim Rental Adjustments ..................................................................................... 7
3.8 Late Payment Charge ............................................................................................. 8
ARTICLE 4 - USE OF LEASED LAND .................................................................................... 8
4.1 Use of Leased Land ................................................................................................. 8
4.2 Obligations of LESSEE ........................................................................................... 8
4.3 No Preferential Rights to Use Public Facilities ..................................................... 8
4.4 Adequacy of Public Facilities ................................................................................. 8
4.5 Tariffs and Other Service Fees ............................................................................... 9
4.6 Time for Payment of Utilities and Taxes................................................................. 9
4.7 Other Uses .............................................................................................................. 9
ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS .......................................................... 9
5.1 Utilities .................................................................................................................... 9
5.2 Third-Party Improvements .................................................................................... 10
5.3 Easements ............................................................................................................. 10
ARTICLE 6 - CONSTRUCTION BY LESSEE ....................................................................... 11
6.1 Improvements on Leased Land ............................................................................. 11
6.2 City Review of Construction ................................................................................. 12
ARTICLE 7 - RETURN OF LEASED LAND/SITE CONDITIONS .................................... 12
7.1 Return of Leased Land in Original Condition ...................................................... 12
ARTICLE 8 - FORCE MAJEURE ........................................................................................... 12
ARTICLE 9 - LESSEE'S ACTS OF DEFAULT ..................................................................... 12
ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE .......................................... 141413
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE ........................ 15
11.1 Real Property Improvements ................................................................................ 15
11.2 Personal Property ................................................................................................. 15
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ARTICLE 12 - ASSIGNMENT OR SUBLEASE ............................................................ 151615
12.1 Assignment of Lease or Subleasing............................................................... 161615
12.2 Assignment of Lease for Security .......................................................................... 16
12.3 Assignment to Affiliate .......................................................................................... 16
ARTICLE 13 - LESSEE'S DUTY TO DEFEND/INDEMNIFY ............................................ 16
ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY ................................................. 17
ARTICLE 15 - INSURANCE .................................................................................................... 17
15.1 Minimum Insurance Requirements ....................................................................... 17
15.2 Subrogation Rights Waived................................................................................... 18
ARTICLE 16 - CONDEMNATION .......................................................................................... 18
ARTICLE 17 - ARBITRATION ............................................................................................... 19
17.1 Arbitration............................................................................................................. 19
ARTICLE 18 - MAINTENANCE AND REPAIRS ................................................................. 20
18.1 Normal Maintenance ............................................................................................ 20
18.2 Safety Issues ...................................................................................................... 2021
18.3 Cost of Repairs ...................................................................................................... 21
ARTICLE 19 - ENVIRONMENTAL CONCERNS ................................................................ 21
19.1 Hazardous Materials ............................................................................................ 21
19.2 Permits and Reporting .......................................................................................... 24
ARTICLE 20 - ESTOPPEL CERTIFICATES ........................................................................ 24
ARTICLE 21 - CONDITIONS AND COVENANTS .............................................................. 24
ARTICLE 22 - NO WAIVER OF BREACH ....................................................................... 2425
ARTICLE 23 - TIME OF THE ESSENCE .............................................................................. 25
ARTICLE 24 - COMPUTATION OF TIME ........................................................................... 25
ARTICLE 25 - SUCCESSORS IN INTEREST ....................................................................... 25
ARTICLE 26 - ENTIRE AGREEMENT ................................................................................. 25
ARTICLE 27 - GOVERNING LAW ........................................................................................ 25
ARTICLE 28 - PARTIAL INVALIDITY................................................................................. 25
ARTICLE 29 - RELATIONSHIP OF PARTIES ................................................................ 2526
ARTICLE 30 - INTERPRETATION ....................................................................................... 26
ARTICLE 31 - CAPTIONS ....................................................................................................... 26
ARTICLE 32 - AMENDMENT ................................................................................................. 26
ARTICLE 33 - NOTICES .......................................................................................................... 26
ARTICLE 34 - FIRE PROTECTION................................................................................... 2627
Exhibit A - Personal Guarantee
Exhibit B - Environmental Compliance Plan
Exhibit C - Leased Parcel
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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 Raibow Fiberglass
and Boat Repair, LLC (the "LESSEE"), an Alaska corporation whose mailing address is P.O. Box
2891, Seward, Alaska 99664.
WHEREAS, LESSEE has indicated its desire to lease the property known as Lot 5, Block
7, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough,
Plat No. 2015-14 Raibow Replat #2 recorded in the Seward Recording District, Third Judicial
District, State of Alaska, consisting of approximately 106,370 square feet, 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 5, Block 7, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai
Peninsula Borough, Plat No. 2015-14 Raibow Replat #2 recorded in the Seward Recording
District, Third Judicial District, State of Alaska, consisting of approximately 106,370
square feet, more or less.
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.
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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.
1.7 Development of Leased Land. LESSEE shall continue operate a vessel storage
and maintenance facility through the term of the lease. LESSEE understands that
construction and operations of its marine-related business is a major consideration for the
CITY’s agreement to the lease the Leased Land to LESSEE. LESSEE shall not operate
any other unrelated business on the Leased Land without the consent of the CITY.
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a) CITY may withhold its consent as to any proposed business or activity which, in
CITY’s sole discretion, is not desirable or compatible with the CITY’s operation of
the Seward Marine Industrial Center.
b) In accordance with the provisions of Article 12, no assignment or sublease shall be
permitted, unless approved in writing by CITY. Any sublease shall be expressly
subject and subordinate to this Lease and the rights of the CITY hereunder. The CITY
may elect to not approve any proposed assignment or sublease that might result in a
business or activity that, in the CITY’s sole discretion, is undesirable and/or
incompatible with the CITY’s Seward Marine Industrial Center.
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. 2019-_____ (the "Resolution"). The Lease Term
shall run for approximately 20 years from the Effective Date, ending at midnight on June
30, 2039. 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.
d) The City Council of CITY, at the time each option is exercised, approves the
extension by resolution or ordinance.
ARTICLE 3 - RENTAL RATE
3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through June 30,
2020, the annual rental rate for the Leased Land shall be set at $16,216.00. 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, 2020, 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
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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 MAI 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) 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
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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 p rovided a copy of the
appraisal report to LESSEE 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 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, 2019 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.
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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 repair
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.
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 of Public 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.
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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.
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.
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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 LESSEE'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
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 prope rty or
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other public property. Any easements or rights of access granted to LESSEE by CITY
need not be exclusive to LESSEE.
a) LESSEE shall maintain the drainage easement noted in the Raibow Replat 2015-
14 #2 and install an oil water separator at the South portion of the drainage easement to
protect the adjacent land and wetlands.
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 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).
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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.
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
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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 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, of the State of Alaska
and the City of Seward, 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.
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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 dis train 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.
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.
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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 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
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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 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
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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 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 ONE MILLION DOLLARS ($1,000,000) of Ship Repairers
Liability Insurance including “hot work” coverage and pollution liability coverage.
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
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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 may
be 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 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.
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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. seq.), 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
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.
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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.
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
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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 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
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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 Environmental 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 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:
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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.
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 was te, 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
55
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 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
56
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.
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.
57
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.
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:
Raibow Fiberglass and Boat Repair, LLC
PO Box 2891
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
58
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 LESSEE's compliance with its obligation
hereunder to arbitration not more frequently than once each five (5) years.
59
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates
herein set forth.
CITY: LESSEE:
CITY OF SEWARD RAIBOW FIBERGLASS AND BOAT
REPAIR, LLC
Jeff Bridges, Interim City Manager Dave Phillips, President
Date: __________________________ Date:
ATTEST:
_____________________________
Brenda Ballou, MCMC
City Clerk
60
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this ____ day of ___________,
2019, by Jeff Bridges, Interim City Manager of the City of Seward, Alaska, on behalf of the City.
_______________________________________
Notary Public in and for Alaska
My Commission Expires:___________________
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this ____ day of ___________,
2019, by Dave Phillips who executed the foregoing document on behalf of Raibow Fiberglass and
Boat Repair, LLC
Notary Public in and for Alaska
My Commission Expires:
61
62
63
64
Sponsored by: Planning& Zoning Commission
Public Hearing Date: January 28, 2019
Approval Date: January 28, 2019
CITY OF SEWARD,ALASKA
RESOLUTION 2019-004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, RECOMMENDING KENAI PENINSULA BOROUGH
APPROVAL OF THE CITY OWNED FOURTH OF JULY CREEK
SUBDIVISION, SEWARD MARINE INDUSTRIAL CENTER, RAIBOW
REPLAT #2, CREATING TWO NEW LOTS TO BE KNOWN AS LOTS
4A-2 AND LOT 5, BLOCK 7; LOCATED WITHIN THE INDUSTRIAL
ZONING DISTRICT
WHEREAS, Joshua W. Varney, on behalf of Raibow Fiberglass and Boat Repair, LLC,
has submitted a preliminary replat of City owned Block 7, Fourth of July Creek Subdivision, to
be known as Fourth of July Creek Subdivision, Seward Marine Industrial Center(SMIC) Raibow
Replat#2; and
WHEREAS, this platting action subdivides Lot 4A-1, Block 7, Fourth of July Creek
Subdivision, SMIC, Plat 2015-14; creating two (2) parcels to be known as Lot 4A-2 and Lot 5
and; involving approximately 9.6 acres; and
WHEREAS, the subject properties of this replat are located within the Industrial Zoning
District(I); the minimum lot size and lot width as required by City Code have been met; and
WHEREAS, Dave Phillips of Raibow Fiberglass and Boat Repair, LLC has requested a
long-term lease of one (1) of the parcels depicted in this replat known as Lot 5, Block 7,
containing approximately 2.44 acres; and
WHEREAS, City staff have reviewed and commented, and are requiring that a ten (10)
foot drainage easement be dedicated on the plat which shall preserve a pre-existing drainage
feature on the subject parcel; and
WHEREAS, Block 7 is currently serviced by public roads, municipal water, sewer,
electric and other utilities, therefore, no subdivision installation agreement shall be required; and
WHEREAS, the replat protects and provides easements for existing and planned utilities
throughout the replat area; and
WHEREAS, it is the Seward Planning and Zoning Commission's responsibility to act in
an advisory capacity to the Seward City Council and the Kenai Peninsula Borough regarding
subdivision plat proposals; and
65
CITY OF SEWARD, ALASKA
RESOLUTION 2019-004
WHEREAS, all conditions required by Seward City Code §16.01.015, Conditions to plat
approval, were met; the property owners and leaseholders within 300 feet of the requested replat
were notified of the proposed subdivision, and the property was posted with public notice
signage; and
WHEREAS, the Seward Planning & Zoning Commission held a public hearing on
December 4, 2018 and approved P&Z Resolution 2015-018, recommending Council and the
Kenai Peninsula Borough approve the Fourth of July Creek Subdivision, Seward Marine
Industrial Center, Raibow Replat #2, creating two new lots to be known as Lots 4A-2 and Lot 5,
Block 7; and
WHEREAS, in accordance with Seward City Code Section 16.01.015 ( B), no
preliminary plat of city owned property may be submitted to the Kenai Peninsula Borough for
approval without prior consent of the City Council.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA that:
Section 1. The Seward City Council recommends the Kenai Peninsula Borough Planning
Commission approve the Fourth of July Creek Subdivision, Seward Marine Industrial Center,
Raibow Replat#2, subject to the following condition:
A. Provide a ten (10) foot drainage easement along the existing drainage feature on the
subject parcel, as noted on the preliminary plat.
Section 2. This resolution shall take effect thirty (30) days upon approval.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this
28th day of January, 2019.
THE CITY OF SEWARD, ALASKA
Davi quires, Mayor
66
CITY OF SEWARD, ALASKA
RESOLUTION 2019-004
AYES: McClure, Towsley, Lane, Seese, Osenga, Horn, Squires
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
Brenda J. Ballou, MMC
City Clerk
City Seal) ,,,,,,,,,,„
SEAL GY ;.
s
OFA
67
Meeting Date:
To:
Through
From:
Agenda Item:
Agenda Statement
January 28, 2019
City Council
JeffBridges, Interim City Manage
Jackie C. Wilde, Planner U 0
Resolution 2019-004 recommending City Council and Kenai Peninsula
Borough approval of the Fourth of July Creek Subdivision, Seward
Marine Industrial Center, Raibow Replat #2, creating two new lots to
be known as Lots 4A-2 and Lot 5, Block 7; located within the industrial
zoning district
BACKGROUND & JUSTIFICATION:
Attached for the Council's review and recommendation to the Kenai Peninsula Borough
Planning Commission is a preliminary plat submitted by Joshua W. Varney on behalf of Dave
Phillips, Raibow Fiberglass & Boat Repair, LLC. In accordance with Seward City Code (SCC)
16.0l.015(B) "No preliminary plat of City-owned property may be submitted to the Kenai
Peninsula Borough Planning Commission for approval without the prior consent of the City."
This replat is located within the Seward Marine Industrial Center (SMIC). This platting action
subdivides Lot 4A-l, Block 7, Fourth of July Creek Subdivision, SMIC, Plat 2015-14; creating
two (2) parcels to be known as Lot 4A-2 and Lot 5; involving approximately 9.6 acres. Lot 5
will also be under a long-term lease to Raibow Fiberglass & Boat Repair, LLC. When the
platting action is completed the lease agreements with Raibow Boat Repair will be brought
beforethe Council forapproval.
SUBDIVISION REVIEW:
Zoning:
The replat is within the Industrial Zoning District. Current development surrounding this replat
includes Jag Industrial & Marine Services, Exit Marine, and the City boat storage yard parcels.
Utilities:
The replat area is currently serviced by private roads, some municipal water, sewer, electric and
other utilities are available; no subdivision installation agreement shall be required. The
surveyor has worked diligently with City staff to provide current and planned utility/access
easements.
Existing Uses:
Block 7 currently contains the Jag Industrial & Marine Services lease parcels, the City Vessel
Washdown Pad, Polar Seafoods storage parcel, the transfer rails for the vessel syncrolift and
driveway and utility easements. The parcel immediately to the north, known as Lot 4D, is also
currently under long term lease by Raibow Fiberglass & Boat Repair, LLC.
5468
Flood Zone:
The area is within a Flood Zone D, which are areas ofundetermined flood hazards.
CONSISTENCY CHECKLIST: Yes
Seward 2030 Comprehensive Plan (approved by Council, 2017)
3 .5 Port and Harbor Develor2ment (page 16)
1.Section 3.5.1 Maintain a thriving port of Seward through harbor X
improvements, infrastructure expansion, and implementation of
management plans.
2.Strategic Plan (1999)
Seward City Code:
16.01.015. Conditions to 12latarmroval.
3. b)No preliminary plat ofcity-owned property may be submitted to the X
Kenai Peninsula Borough planning commission forapproval without
the prior consent ofthe city council.
Staff Comments:
No
All staffand administration concernshave been addressed and all City department heads
recommend approval ofthe preliminary replat. ··
FISCAL NOTE:
Replat costs were paid by Raibow Boat Repair in preparation oflong term lease agreements.
Approved by Finance Department:
ATTORNEY REVIEW: Yes No X NIA -----------
RECOMMENDATION:
NIA
X
Approve Resolution 2019- 004, recommending Kenai Peninsula Borough approval of the
Fourth of July, Seward Marine Industrial Center, Raibow Replat #2, creating two new lots to
be known as Lots 4A-2 and Lot 5, Block 7, subject to the cdnditions listed in this resolution.
5569
5670
5771
NSURVEYOR'
S
CERTIFICATENOTARY'
S
ACKNOWLEDGMENT
CERTIFICATION
OF
72
City of Seward
Strategic Plan
M Approved by City Council Resolution No 99 043
5973
This
Strategic
Plan is a
flexible and
evolving
document
which the
City
government
will use to
move the
community
into the
future
Introduction
The community of Seward is using strategic planning to identify and address the
ajor issues ofthe future The City Council Planning and Zoning Commission and
administrative staff developed this plan using the results of the Community Town
Meetings to guide the City to the year 2020 The goals and objectives identified
under each vision element were developed based on a five year schedule for
completing the objectives and attaining the goals
This Strategic Plan is a flexible and evolving document which will guide decision
making The City will use this plan to develop specific action items to move our
community with confidence into the twenty first century
Our Beginning
Seward was founded in 1903 as a railroading town one of Alaska s earliest pianned
communities This ice free port became the tidewater te inus for an overland route
o the Interior the gateway to the Iditarod gold fields and the means to export the
state s agricultural mineral and timber resources
Page16074
This vision
reflects
the citizen s
hopes for
the Seward
community
into and
beyond the
year
2020
Our Vision
Building on Seward s heritage and impressive natural setting the community s vision
for Seward includes an attractive healthy vibrant community a strong diverse
economy with quality business educational and recreational opportunities a process
for orderly growth and an appreciation of local history culture and sense of
community
The City s Mission
The mission of the City of Seward government is to provide quality leadership
operate efficiently be responsive to the desires of its residents preserve and promote
the unique heritage and natural setting of the city and further the social and
economic well being of its citizens
Page 2
6175
These
elements
comprIse
today s
vision of
Seward
in the
year
2020
VISION ELEMENTS
Economic Base
We are a community that promotes economIc diversity
encourages growth of year round businesses desires
environmentally responsible industry and seeks jobs that
promote a higher standard of living
Growth Management and Land Use Planning
We have an attractive community in which to live work be
educated and recreate where growth is orderly and driven by
community consensus Growth and land use planning are
coordinated through the collaboration of private and public
entities We promote and facilitate balanced development
Recreation and Leisure
We provide diverse year round indoor and outdoor recreational
educational and cultural opportunities and facilities for residents
and visitors of all ages and socioeconomic backgrounds
Page36276
These
elements
comprise
today s
vision of
Seward
in the
year
2020
VISION ELEMENTS
HistolY and Sense of Community
We value and protect Seward s historic ch acter culture and
physical attributes all of which contribute to its strong sense of
community
Natural Environment
We celebrate our natural environment by preserving views and
open spaces working in harmony with nature protecting
wildlife and providing environmentally sensitive access to
nearby waterways glaciers fjords mountains and marine life
Transportation Facilities
Weare a community with diverse transportation facilities
including road rail air pedestri and water routes that meet the
needs of residents businesses and visitors
Page46377
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Economic Base
We are a community that promoreseconomic diversity encourages growth of year
round businesses desires environmentally responsible industry and seeks jobs that
promote a higher standard of living
Goals and Objectives
Attract New Industry
Develop an aggressive marketing campaign which highlights the
diverse resources and quality of life that make Seward a great place
to live and establish a business or industry
Develop appropriate economic tools to attract industry
Endeavor to provide modern communication infrastructure
Adjust local development regulations where appropriate to
encourage development that is consistent with our economic base
VISIon
Develop infrastructure expansion plans for currently undeveloped
residential and commercial property
Establish a foreign trade zone
Page56478
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Attract More Public Sector FederaVState Employment and
Program Funding
Continu to lobby on behalf of the University of Alaska in their
efforts to expand the Institute of Marine Science facility in Seward
Continue to lobby the Department of Corrections and the state
legislature to expand the Spring Creek Correctional Center
Continue to lobby for the growth of the Alaska Vocational Technical
Center
Support construction of the inter agency facility including National
Park Service U S Forest Service Alaska State Parks and University
ofAlaska
Continue to support external funding for the Alaska SeaLife Center
Support efforts of village and regional native corporations to expand
their services
Encourage the appointment of a supenor court judge and
construction of a courthouse public safety building in Seward
Page 6
6579
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Improve and Expand Maritime Facilities
Complete the renovation of the Small Boat Harbor
Continue working with the Alaska Railroad Alaska Marine Highway
System shipping and cruise ship industries to ensure the expansion
and modernization of the freight and cruise ship port facilities
Complete the eastward expansion of the Small Boat Harbor
Reduce Energy Costs
Expand customer base within the Seward Electric Utility area
Complete a utility rate study
Continue to support efforts that would provide Seward with
alternative energy sources including natural gas hydropower etc
Expand Development in the Seward Marine Industrial Center
Resolve the financial burden of the North Dock
Expand utilities throughout the Seward Marine Industrial Center area
Develop an active marketing campaign
Page 7
6680
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
visionfor
the year
2020
Promote Winter Activities
Promote winter back country activities such as the expansion of
nordic ski trails alpine skiing and snowmachining
Support and encourage the development of an ice skatinghockey
facility
Page86781
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
cO11munity s
vision for
the year
2020
Growth Management and Land Use
Planning
We have an attractive community in which to live work be educated and recreate
where growth is orderly and driven by community consensus Growth and land use
planning are coordinated through the collaboration ofprivaie and public entities We
promote and facilitate balanced development
Goals and Objectives
Establish An Attractive Highway Corridor From Mile 0 8
Establish a joint land use planning process for the corridor with the
local residents and the Kenai Peninsula Borough
Coordinate with local residents and the Borough to develop a specific
land use plan for the corridor
Implement the jointly adopted land use plan
Promote Residential and Commercial Development Inside The City
Encourage construction of residential and seasonal housing at all
market levels
Streamline plan approval and building inspection processes
Page 9
6882
These
goals and
objectives
wilt guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Develop infrastructure and utility expansion plans for currently
undeveloped residential and commercial property
Create a financial plan for new services and infrastructure
Reduce utility costs
Maintain Comprehensive And Land Use Plans That Reflect And Achieve
The Community s Vision
Revise the Comprehensive Plan so that it is consistent with this
Strategic Plan
Annually review update and affirm the Comprehensive and Land
Use Plans
Revise the Comprehensive Plan to include infrastructure and growth
plans
Pursue the community s vision thro gh rigorous imple mentation of the
Comprehensive and Land Use Plans
Promote in fill development by encouraging and promoting
construction on vacant sites in already established areas of the city
Achieve public awareness and acceptance of the Comprehensive and
Land Use Plans through public participation in town meetings
outreach to community groups and increased public relations
Page106983
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Ensure that all legislative and administrative decisions are consistent
with the goals of the Strategic and Comprehensive plans
Update the Zoning Code in order to implement the Comprehensive
Plan
Work towards bringing the Zoning Map into conformance with the
Land Use Plan
Ensure uniform and consistent enforcement of the Zoning Code
Mitigate Flood Hazards
Secure funding to implement the comprehensive flood mitigation
plan for Resurrection River and Japanese Creek
Actively maintain the Fourth of July Creek channel through debris
removal
Determine the best solution and seek adequate funding to dimin sh
the Lowell Creek flood potential
Plan and Prepare for Natural Disasters
Actively participate in the National Flood Insurance Program
Coordinate with the Kenai Peninsula Borough to annually review all
disaster emergency plans
Coordinate community wide disaster preparedness training and
public education efforts
Page117084
These
goal and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vis ion for
the year
2020
Recreation and Leisure
We provide diverse year round indoor and outdoor recreational educational and
cultural opportunities and facilities for residents and visitors of all ages and
socioeconomic backgrounds
Goals and Objectives
Beautify Waterfront Park
Develop a landscaping plan for Waterfront Park which provides for
additional green space
Protect Waterfront Open Space
Maintain Park Zoning designation throughout Waterfront Park
Develop and Improve Public Playgrounds
Replace and maintain equipment with a focus on safety and ADA
accessibility
Complete Two Lakes Park improvement plan
Develop a neighborhood park in the Gateway Subdivision
Encourage Cultural Activities Expand Library Services and Develop
Additional Recreational Facilities
Page127185
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
History and Sense of Community
We value and protect Seward s historic character culture and physical attributes all
of which contribute to its strong sense of community
loals and Objectives
Enhance the Sense of Community Among Residents of the Greater
Seward Area
Make every effort to involve the entire community in decision
making processes
Maintain Seward s small town character throughout the growth
process
Promote the development of local communication networks
Encourage the Recognition Rehabilitation and Preservation of Historic
Sites and Buildings
Support the Historic Preservation Commission s efforts to raise public
awareness regarding local historic property
Plan and Celebrate the Seward Centennial Celebration in 2003
Page137286
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Continue to Support and Encourage the Re vitalization of Downtown
Focus downtown revitalization efforts on vacant and dilapidated
buildings
Complete Hoben Park improvements
Identify location for public restrooms and fund construction
Encourage downtown resident apartments
Page147387
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Natural Environment
We celebrate our natural environment by preserving views and open spaces working
in harmony with nature protecting wildlife and providing environmentally sensitive
access to nearby waterways glaciers fjords mountains and marine life
Goqls and Objectives
Preserve and Protect the Scenic Views of the Mountains and Resurrection
Bay
Ensure that Waterfront Park is zoned and dedicated for park purposes
in perpetuity
Seek ways to protect the watershed and mitigate development impacts
on the slopes of Bear Mountain Marathon Mountain Mount Benson
and the Mt Alice bench
Encourage Citizens As Well As The City To Take An Active Role In
Beautifying The Community
Plant trees shrubs and wildflowers
Develop landscaping recommendations
Page157488
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
community s
vision for
the year
2020
Expanded Transportation Facilities
We are a community with diverse transportation facilities including road rail air
pedestrian and water routes that meet the needs of residents businesses and visitors
Goals and Objectives
Provide Safe and Efficient Vellicular Tran portation Facilities That Meet
the Needs of the Community
Use the State Transportation Improvement Plan STIP to complete
the Seward Highway MP 0 8 improvement project which includes
replacing the Resurrection River bridges and constructing a separated
pedestrianlbicycle path and upgrade Lowell Point Road
Improve public transportation between downtown and the harbor by
developing an ADA compliant local transit system
Improve access to and within the City
Improve the State Airport
Complete an airport runway expansion feasibility study
Develop a flood mitigation project to protect the runway from
flooding
Upgrade navigational aids technology
Page167589
These
goals and
objectives
will guide
the City
government
over the
next five
years to
help reach
the
comlunity s
vision for
the year
2020
Expand and Maintain Existing Sidewalks and the Multi Purpose Trail
System in Order to Provide a Safe Fully Accessible Paved Pathway
Throughout the City
Construct a separated trail along the Seward Highway from mile 0 8
Construct a pedestrian sidewalk between the Alaska Railroad Dock
an9 the lditarod Trail at Fourth Avenue and Van Buren Street
Connect schools and residential areas through the development of
sidewalks and trails
Develop long term sidewalk installation plans
Ensure year round maintenance of existing sidewalks
Support the construction of a pedestrian path to Exit Glacier
Page 17
7690
These
elements
comprise
the
community s
vision of
Seward
in the
year
2020
Other Major Elements of Our Vision
The following elements were identified by the public as key components of Seward s
vision Specific goals and objectives were not identified for these elements because
many of them have already been addressed in other sections of the Plan However
the Council Planning and Zoning Commission and administration agreed that they
warranted special consiaeration in the Plan
Expa d and integrate educational programs
We are a community with quality educational resources and facilities that
provide academic and personal growth opportunities for citizens of all ages
Such a vision includes integrating the Seward public schools University of
Alaska Institute of Marine Science Alaska Vocational Technical Center
Alaska SeaLife Center and other such facilities to maximize resources
Promote a safe community
Weare a community that promotes the public health safety and welfare of
its residents by preparing for natural and man made hazards through
responsible building construction maintaining streets and sidewalks and
providing superior police fire and disaster management services
Expand availability of affordable diverse year round housing
Seward has a wide range of housing alternatives to meet the varied needs of
Seward s long term and seasonal residents
Page187791
These
elements
comprise
the
community s
vision of
Seward
in the
year
2020
Provide adequate funding for afinancially sound city government
The City ofSeward is a fiscally responsible entity which utilizes creative and
responsible ftmding alternatives
Maintain and enhance medical and social services
Weare a community that provides an integrated array of health 1are servies
designed to protect and improve the quality of life for all citizens
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7892
Implementation
It is the City s intent to consider the implementation ofall recommendations outlined
in this Strategic Plan to the fullest extent possible In order to assist in the
implementation the Plan will be used as the basis for all City Council Planning and
Zoning Commission and administrative decision making The City of Seward annual
operating budget capital improvement budgeting and Comprehensive Plan will also
be developed consistent with the community vision and recommendations of the
Strategic Plan
f
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