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HomeMy WebLinkAbout03282006 City Council Packet ~' . I ,; I . William H. Seward ~. . i; JJ: ,.. March 28,2006 City Council Chambers Beginning at 7:30 p.m. . ~ ~. ;.. ,',; ". ;~ " ;.'. . .~. .. The City of Seward, Alaska . '. Mareh28, 2006 Vanta Shafer Mayor Term Expires 2007 Willard E, DUDham Vice Mayor Term Expires 2006 Robert Valdatta Council Member Term Expires 2007 Robert Thomas Council Member Term Expires 2007 Steve Schafer Council Member Term Expires 2007 Dorene M. Lorenz Council Member Term Expires 2006 Jean Bardarson Council Member Term Expires 2006 Clark Corbridge City Manager Jean Lewis City Clerk ... Brad Meyen Cheryl Brooking City Attorney 6. i ~ City Co-uncil Meeting. 7:30 p.m. Council Chambers 1. 2. 3. 4. Call to order Pledge of allegiance Roll call Special orders, presentations and reports A Proclamations and Awards I. Farewell and Certificate of Appreciation awarded to former Mayor 8tu Clark for his involvement and support of the City of Seward. ................. .Pg. 4 2. Goldpan awarded. to Carol Griswold for. her excellent nine years of service in the Planning & Zoning Commission. B. C. D. E. Borough Assembly Report City Manager's Report Chamber of Commerce Report Other Reports, Announcements and Presentations 1. Port and Commerce Advisory Board applicant Bruce Martin. ...................................... .Pg. 5 5. Citizens' comments on any subject except those items scheduled for public hearing. {Those who have signed in will be given the first opportunity to speak. Time is limited to 2 minutes per speaker and 30 minutes total timefor this agenda item.] Approval of agenda and consent agenda [Approval of Consent Agenda passes all routine items indicated by asterisk (.). Consent Agenda items are not considered separately unless a council member so requests. In the event of such a request, the item is returned to the Regular Agenda] City of Seward, Alaska March 28, 2006 Council Agenda Page 1 7. Public Hearings - A. Ordinances for Public hearing and Enactment .. 1. Ordinance 2006-02. Amending Seward City Code Section 2.30.31 0 -2.30.330, Changing The Number Of Members On The Port And Commerce Adyisory Board From Nine To Seven, And Establishing A Quorum Of Four Members. ........................................................... ...Pg. 6 B. Resolutions requiring a public hearing , 1. Resolution 2006-29. entering into an operating agreement with Iron Mountain Shooting Club and a lease with the Kenai Peninsula Borough regarding the land parcel described as SWl/4 NEl/4 NEl/4 and the S l/2NWl/4, NEl/4 Section 28, TIN, Rl W, S.M., Seward Recording District, Third Judicial District, State of Alaska. ........................................................... .Pg. 10 2. Resolution 2006-30. recommending Kenai Peninsula Borough approval of the Fourth of July Creek Subdivision Number 3, Roberts Replat. ............................................... ..Pg. 32 3. Resolution 2006-31. authorizing the sale to Carol Roberts of a portion of Tract H, Fourth of July Creek Subdivision Number 2 consisting of approximately 5.3 72 acres. ..... .Pg. 52 4. Resolution 2006-32. authorizing the lease ofland to the Seward Racing Lions Club of the real property described as 14534028, Block 5 Fourth Of July Creek Sub. Seward Marine Industrial Center; 14534044, Fourth Of July Creek Sub. Seward Marine Industrial Center Sub. Unsubdivided Remainder Of Block 6; 14534042 Fourth Of July Creek Sub. Seward Marine Industrial Center Addn. No.1 Lot 2 Block 6; 14534043 Fourth OfJuly Creek Sub. Seward Marine Industrial Center Addn. No. 1 Lot 3 Block 6; And 14534029 Fourth Of July Creek Sub. Seward Marine Industrial Center Lot 1 Block 6. ........ ... ......... ............ ........... ................ ...Pg. 65 8. Unfinished business - None 9. New business A. Ordinances for Introduction *1. Ordinance 2006-03. amending the Seward City Code to address the safety issues of discharging weapons in the city limits. . .............................................. ...... .Pg.I02 B. Resolutions * 1. Resolution 2006-33. determining that it is in the public interest to waive the normal bid process per Seward City Code 6.10.130 and authorize the City Manager to enter into a lease agreement with Xerox for the pmpose of leasing a public use copier in the Seward Community Library. .......................................................................... ...Pg. 106 *2. Resolution 2006-34. approving an assignment of the agreement by and between the City of Seward and Qutekcak Native Tribe for operating and maintaining the Seward Mariculture Research Center and Shellfish Hatchery to Chugach Regional Resources Commission. .................... ..... .... .................................... .................................... .Pg.116 <" .. City of Seward, Alaska March 28, 2006 Council Agenda Page 2 - *3. Resolution 2006-35. in support of the Prince William Sound Regional Citizens' Advisory Council compiling an oral history of the Exxon Valdez Oil Spill. ........ .Pg. 127 4. Resolution 2006-36. amending the city parking fees schedule for city-owned parking lots as listed in attaclnnentA .......................... ...... .................................... ...Pg.136 . 5. Resolution 2006-37. approving the site selection-location for the electric department office and shop and authorizing the city manager to approve site selection, pursue design planS, and funding sources for the construction of an electric department office and shop on Lot 6A-l, Fort Raymond Subdivision ReplatNo. 2. .......... ............................ .Pg.140 A. Other New Business Items * 1. Appoint Bruce Martin to fill the last vacancy on the Port and Commerce Advisory Board (pACAB) with a term to expire 2009. *2. Approve the February 27, and March 13, 2006 regular city council meeting minutes. . . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. ... .. . . .. . .. . .. . .. . .. . .. . .. . . .. .. . .. ... . .. . ..... ................................Pg. 146 3. Schedule a work session with the Alaska Sealife Center after April 4th for the pwposes to discuss the tidelands lease request. 4. Schedule a work session on the prioritization of the city manager spreadsheet of projects. 5. Discussion of the city council's 2006 travel budget and plans. 6. Discussion and direction given on whether to continue funding the WON station.. .... .......... ..........~....................................................... ................... ........ .....Pg. 160 10. Informational items and reports (No action required) 11. Council comments 12. Citizens' comments [5 minutes per individual- Each individual has one opportunity to speak] 13. Council and administration response to citizens' comment 14. Executive Sessions A. Go into Executive Session to discuss strategies for the negotiation of a quarry rock sales contract, in accordance with Seward City Code 2.1 0.030(B)4, and give direction to the city manager. B 00 into Executive Session to discuss matters, the knowledge of which would clearly have an adverse impact on the finances of the city, in accordance with Seward City Code 2.10.030 (B)I, and give direction to the city manager. 15. Adjournment . I I I City of Seward, Alaska March 28, 2006 Council Agenda Page 3 CITY OF SEWARD CERTIFICATE OF -ApPRECIATION AWARDED To: STU CLARK THE COUNCIL THANKS YOU FOR YOUR HARD WORK, DEDICATION, AND FRIENDSHIP TO THE CITY OF SEWARD. WE APPRECIATE YOUR SERVING ON THE PLANNING AND ZONING COMMISSION, RAILROAD DEPOT BOARD, AD-HOC LEGISLATIVE COMMITTEE, PLANNING COMMISSION LIAISON, SEWARD NATIONAL SCENIC BYWAY COMMITTEE, MARY LOWELL CENTER COMMITTEE, CENTENNIAL COMMITTEE, ALL- _ AMERICAN AWARD COMMITTEE, ACTING AS AN AMBASSADOR TO JAPAN, SERVING AS A SILVER SALMON DERBY STATISTICIAN, CITY COUNCILMEMBER, VICE MAYOR AND MAYOR. THE SEWARD CITY COUNCIL WISHES YOU AND YOUR WIFE MUCH LUCK ON YOUR NEW ENDEAVORS! AWARDED ON MARCH 28, 2006 (' VANTA SHAFER, MAYOR ;, RECEIVED FEB 1 5 Z006 . CITY OF SEWARD, ALASKA OF~~EC~~J~E APPLICATION FOR THE PORT & COMMERCE ADVIS8RY BOARD . NAME: r~;C/~ l , M t:Y; -Ce;<' STREET ADDRESS: I ~?q Z. f>rvMc Rd ~t7&~ 7Z C( 7?-&-v_tY/ 11~ Clcr&b 7' MAILING ADDRESS: HOME PHONE: 2Zo/~ >"970 BUSINESSPHONE: Z 2V -7? 7 yo 2.Z~ - 7? 75 FAX NUMBER: HOW LONG IN THE SEWARD AREA: .,. ~P'5 PRESENTLY EMPLOYED AS: . ,c/~i10)': 15""Y~$ c; ~~f (" de<7A1''''~ List any special training, education or background you have which may help you as a member of the Board: 10 r/~ -r ,... t:"o......,..~_ r 't;..,~ Have you ever been involved in port operations? If so, briefly descnbe you involvement: No If so, where and when? Are you available for meetings at noon (second Wednesday of each month)? lj't! 5 If appointed, are you willing to travel occasionally? 0/('., '7 /7..-<<1't%- ~ Signature 2.. /I~ Jd~ Date I / ;, .. .", ... '.. 5 ~ Sponsored by: Corbridge Introduction: March 13, 2006 Public Hearing: March 28, 2006 Enactment: March 28, 2006 . CITY OF SEWARD, ALASKA ORDINANCE 2006-02 ~ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD ALASKA, AMENDING SEWARD CITY CODE SECTION 2.30.310 - 2.30.330, CHANGING THE NUMBER OF MEMBERS ON THE PORT AND COMMERCE ADVISORY BOARD FROM NINE TO SEVEN, AND ESTABLISHING A QUORUM OF FOUR MEMBERS WHEREAS, a reorganization of boards and commissions has been proposed, drafted and are presently being reviewed; and WHEREAS, the Port and Commerce Advisory Board currently has three vacancies on its board; and WHEREAS, the city council agrees the number of members on this board should be reduced to seven; and WHEREAS, this would change the number that constitutes a quorum from five to four; m _~_~_~~..~ ~ .and ~.__________.___~_.~ -~~ ~-~..~.~~~--.._-.-~ ~. ~ ~ --------~.~-- -.-...----....--- -.---..--..~-..-....---.-- WHEREAS, this ordinance is supported and recommended by the Port and Commerce Advisory Board; and WHEREAS, this change is necessary for the Port and Commerce Advisory Board to conduct business. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, HEREBY ORDAINS that: Section 1. Seward City Code Section 2.30.310 is hereby amended as follows: Stril(eeat = delete Bold italics = new Article 3. Port and Commerce Advisory Board 2.30.310. Established. (a) The port and commerce advisory board is hereby created, consisting of Bille seven .. residents of the City of Seward or surrounding areas, and who shall be appointed by the council. Ifthere is more than one applicant for the position, the council shall appoint by ., \.... 6 CITY OF SEWARD, ALASKA ORDINANCE 2006-02 (b) ballot voting. Applicants must receive at least four votes in order to be appointed. No officer or employee of the city may be appointed a member of the board. (c) A chairman of the board shall be selected annually by the appointed members. (d) The city manager will appoint a city employee to serve as an ex officio member of the board who shall have the privilege of the floor but not the right to vote. (Ord. 512, 1982; Ord. 553, ~1, 2, 1986; Ord. 93-23; Ord. 2000-13, .~ 2, 2000) Section 2. Seward City Code Section 2.30.320 is hereby amended as follows: Strikeallt = delete Bold italics = new 2.30.320. Meetings and quorum. (a) The board will meet at a time and place to be designated by the board. (b) -F-W&-Four members of the board shall constitute a quorum for the transaction of business except that, in the absence of a quorum, any number less than a quorum may adjourn the meeting to a later date. The affirmative votes of at least a majority of those board members present shall be required for any action. (c) All meetings and records of the board shall be open to the public. The board shall keep minutes of proceedings showing the vote of each member upon each question and shall keep records of any actions, all of which shall be immediately filed in the office of the city clerk and shall be a public record. (Ord. 512, 1982; Ord 553, ~ 4, 1986; Ord. 93-23) Section 3. This ordinance shall take effect ten days following its enactment. ENACTED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA .. Vanta Shafer, Mayor " Agenda Statement Meeting Date: March 13,2006 . Ma"". City Council M Jean Lewis, City Cler~ Agenda Item: Reducing the number of board members and adjusting the quorum for the Port and Commerce Advisory Board. BACKGROUND & mSTIFICATION: To: From: It is my understanding that in the past this Board resulted in the combination of two different boards, thus, the current number of nine members on it. It has been proposed to reduce the number of members on this board which will lower the amount needed for a quorum to four, thus giving this board better ability to conduct business with no pending vacanCIes. Advertising for the last vacancywiII run concurrently during this time frame, with your appointment of that final member on the March 28,2006 city council regular meeting. INTENT: To reduce the number of members from 9 to 7, and adjusting the number needed for a quorum to 4. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: None for this particular change. t \(t.c.t: f"I(\()..{I~J(~"'\(j.~~'~~ Approved by Finance Department: t 0.; ~"" . l'l"~ S.<J RECOMMENDA nON: Introduce and enact this Ordinance 2006-02. to reduce the members on the Port and Commerce Advisory Board from 9 to 7, and adjusting the number needed for a quorum to 4. . ." 8 CITY OF SEWARD, ALASKA PORT AND COMMERCE ADVISORY BOARD RESOLUTION NO. 2006-01 . A RESOLUTION OF THE CITY OF SEWARD, ALASKA PORT AND COMMERCE ADVISORY BOARD, RECOMMENDING CITY COUNCIL AMEND CHAPTER 2.30, ARTICLE 3 OF THE CITY CODE TO REFLECT CHANGES TO THE BOARD SIZE AND PURPOSE. WHEREAS, positive economic growth and quality of life in Seward are f1l'S1: and foremost concepts held by the Port and Commerce Advisory Board; and, WHEREAS, P ACAB bas been historically instrumental in making recommendations to the City Council concerning projects to promote and develop domestic and international trade for the port and City; and, WHEREAS, continuation of PACAB's role to provide input on matters involving industry and economic growth of both the port and City is requested by City Council; and, WHEREAS, a streamlining of board membership will not prohibit the successful achievement of desired outcomes for board goals; and, WHEREAS, the City of Seward has seen consistent growth over the past years and P ACAB' s advisory role has evolved beyond matters pertaining only to the port of Seward to more general economic development projec1s; NOW, THEREFORE, BE IT RESOLVED AND RECOMMENDED BY THE PORT AND COMMERCE ADVISORY BOARD OF THE CITY OF SEWARD, ALASKA, THAT: Section I. The City Council of the City of Seward, Alaska, amend Chapter 2.30, Article 3 of the City Code to reflect a change from nine (9) members to seven (7) members; and Section 2. The City Council of the City of Seward, Alaska, amend Chapter 2.30, Article 3, Section 4 to include "and other matters pertaining to Seward economic development" after the existing line. P ASSEt> AND APPROVED by the City of Seward, Alaska, Port and Commerce Advisory Board this I Sf day of March 2006. " Ayes: Van Buskirk, Wbitman, Waliezer, Hettinger and Long Noes: None Absent: Altermatt . n Sponsored by: Corbridge CITY OF SEWARD, ALASKA RESOLUTION 2006-29 . -' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ENTERING INTO AN OPERATING AGREEMENT WITH IRON MOUNTAIN SHOOTING CLUB AND A LEASE WITH THE KENAI PENINSULA BOROUGH REGARDING THE LAND PARCEL DESCRIBED AS SW1I4NE1I4NE1/4 AND THE S1I2NW1I4NE1I4 Section 28, TlN, R1W, S.M., SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA WHEREAS, the Kenai Peninsula Borough has offered the City of Seward the opportunity to lease a portion ofland for a shooting range; and WHEREAS, the Iron Mountain Shooting Club has been operating the shooting range in a prior Operations Agreement with the American Legions; and WHEREAS, the American Legions has decided to terminate its lease with the Kenai Peninsula Borough; and WHEREAS, the Kenai Peninsula Borough has offered the lease to the City of Seward; and WHEREAS, the Iron Mountain Shooting Club has maintained a desire to provide the professional services needed to operate the shooting range on the leased property at no cost to the City; and WHEREAS, the Iron Mountain Shooting Club is in the process of being formed as a legal entity in Alaska; and WHEREAS, the City recognizes that the shooting range fulfills a service in the community; and WHEREAS, the City would like to lease the property for the purpose of a shooting range to be operated by the Iron Mountain Shooting Club. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The recitals are incorporated herein as City Council findings by this reference. . Section 2. It is in the public interest to enter into a Real Property Lease agreement with the Kenai Peninsula Borough ("Lease") and Shooting Range Operating Agreement & Development Plan .iO CITY OF SEWARD, ALASKA RESOLUTION 2006-29 with the Iron Mountain Shooting Club ("Operating Agreement"), each in substantially the fonn as presented at this meeting. Section 3. The City Manager is authorized to make such changes or corrections as needed to finalize the lease and operating transactions contemplated herein without changing the essential tenns and conditions and is authorized to execute the Lease, the Operating Agreement, and any related documents as needed to complete this transaction. Section 4. This resolution shall take effect thirty days after the date of passage and posting, provided that no agreements authorized herein shall be effective until the Iron Mountain Shooting Club is created as a legal entity in Alaska. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. . THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) . 11 . Through: Council Agenda Statement Mmch 28, 2006 .. Clark Corbridse, City _ (J.}L ],-17 -(J ~ W Meeting Date: Entering into an operating agreement with the Iron Mountain Shooting Club and a lease with the Kenai Peninsula Borough regarding the land parcel described as SW1I4NE1I4NE1I4 AND THE SI/2NWl/4NEl/4 Section 28, TIN, Rl W, S.M., SEWARD RECORDING DISTRICT, TlDRD JUDICIAL DISTRICT, STATE OF ALASKA Agenda Item: BACKGROUND & JUSTIFICATION: The Kenai Peninsula Borough has offered the City of Seward the opportunity to lease a portion of land for a shooting range. The Iron Mountain Shooting Club has been operating the shooting range in a prior Operations Agreement with the American Legions. The American Legions has decided to terminate the lease with the Kenai Peninsula Borough. The Kenai peninsula Borough has offered the lease to the City of Seward. The Iron Mountain Shooting Club has maintained a desire to operate the shooting range on the leased property. The City recognizes that the shooting range fulfills a service to the community. The City would like to lease the property for the purpose of a shooting range to be operated by the Iron Mountain Shooting Club. The Iron Mountain Shooting Club is the process of being formed as a legal entity no agreement will be entered into unless or until such an entity is created. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: This Lease is for a term of approximately 20 years commencing April 27 , 2006 and terminating March 31, 2026 unless sooner terminated. The annual lease rental for the term of this Lease is $1.00. Approved by Finance Department ~~ RECOMMENDATION: ~ Council approve Resolution 2006-ii authorizing the City Manager to enter into an operating agreement with the Iron Mountain Shooting Club and a lease with the Kenai Peninsula Borough regarding the land parcel described as SW1I4NE1I4NEl/4 AND THE S1I2NWl/4NE1I4 Section 28, TIN, Rl W, S.M., SEWARD RECORDING DISTRICT, TlDRD JUDICIAL DlS1RICT, STATE OF ALASKA. .. ..J.'!) l~ SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN This Shooting Range Operating Agreement & Development Plan ("Agreement") is made and entered into this _ day of . 2006 by and between the City of Seward, Alaska a municipal corporation located within the Kenai Peninsula Borough and organized under the laws State of Alaska ("City") and Iron Mountain Shooting Club, a authorized to do business in Alaska, whose address is ("Operator"). WITNESSETH WHEREAS, the City wishes to enter into an agreement with an independent contractor to provide operator services for an outdoor shooting range facility at the Seward Solid Waste Facility grounds; and WHEREAS, the Operator represents that it has qualifications sufficient to operate and manage an outdoor shooting range facility; NOW THEREFORE, in consideration of the mutual promises and covenants contained in this agreement, the parties agree as follows: . 1.0 DEFINITIONS. 1.1 "Agreement" shall mean this Shooting Range Operating Agreement and Development Plan. 1.2 "Borough" shall mean the Kenai Peninsula Borough, Alaska 1.3 "City" shall mean the City of Seward, Alaska. 1.4 "Contracting Officer" shall mean the City of Seward City Manager and include any successor or authorized representative. 1.5 "Environmental Law" shall mean any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRIL 2006 -PAGE 1 OF 8- I .-- 13 1.6 "Facility" shall mean the outdoor shooting range on the Property. 1.7 "Hazardous Material" shall mean any substance which is.toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defmed as "hazardous waste," "extremely hazardous waste" or a "hazardous substance" under any Environmental Law. HazardoUs Material includes, without limitation, . petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. .. 1.8 "Lease" shall mean the Real Property Lease dated between the Kenai Peninsula Borough, as landlord, and the City of Seward as lessee covering the Property. 1.9 "Operations" shall mean the operation and management of the Facility. 1.10 "Property" shall mean the real property described in Section 2 of this Agreement. 2.0 DESCRIPTION OF THE PROPERTY. The Property which is the subject of this Agreement is more particularly described as: SWl/4NEl/4NEl/4 and the Sl/2NWl/4NEl/4 Section 28, TIN, RIW, S.M., Seward Recording District, Third Judicial District, State of Alaska. 3.0 TERM. The term of this Agreement shall commence on , 2006 and end on , [one day less than 5 years] 2011 and shall continue from year to year unless earlier terminated or extended as provided in this Agreement. 4.0 CONSIDERATION. In consideration for providing the operational services described in this Agreement, the Operator shall be permitted to use the facility for its members. 5.0 OPERATIONS. The Operator shall manage and operate the Facility in accordance with the Lease and this Agreement, and shall be fully responsible for all Operations including: 5.1 Operate, manage and administer the Facility on the Property in accordance with the Lease. The Operator will have a certified range master on the Property during Operation. 5.2 Operations will be in accordance with National Rifle Association ("NRA") standards and guidelines and the best management practices for lead in outdoor shooting ranges established by the Environmental protection Agency in document EPA-902-B-OI-OOl, each as amended from time to time. 5.3 The Operator expressly assumes all responsibility, risk and liability of the City as described in the Lease. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT pLAN APRIL 2006 -PAGE20F 8- 14 5.4 No alcohol is permitted on the Property, and the Operator will not allow anyone on the Property who is under the influence of alcohol. 5.5 Operator shall maintain the berms and fencing on the Property and shall keep the fence locked unless a certified range master is present. The value of these improvements is estimated by the Operator to be approximately $_. 5.6 Notwithstanding any other requirements, Seward police officers may use the Property for training at all reasonable times. 6.0 COMPLIANCE WITH LAWS. The Operator shall be familiar with and at all times comply with and observe all applicable federal, state and local laws, ordinances, rules, regulations, and executive order, all applicable safety orders, all orders or decrees of administrative agencies, courts, or other legally constituted authorities having jurisdiction or authority over the Operator, the City, or the Services which may be in effect now or during performance of the Services. The Operator shall indemnify and save harmless the City and all its officers, agents, and employees against any claim or liability from or based upon the violation of any such law, ordinance, rule, regulation, order, or decree whether such violation be the result of conduct by the Operator, its agents, invitees or employees. 7.0 INDEMNIFICATION AND INSURANCE. 7.1 Indemnification and Hold Harmless. The Operator shall indemnify, defend, save and hold the Borough, and the City, their elected and appointed officers, agents and employees, harmless from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees resuitingfrom the Operator's performance or failure to perform in accord with the terms of this Agreement in any way whatsoever. The Operator shall be responsible under this clause for any and all claims of any character resulting from the Operator or the Operator's officers, agents, and employee's performance or failures to perform this Agreement in any way whatsoever. This defense and indemnification responsibility includes claims alleging acts or omissions by the Borough, the City or their agents, which are said to have contributed to the losses, failure, violations, or damage. However, the Operator shall not be responsible for any damages or claims arising from the sole negligence or willful misconduct of the Borough, the City their agents, or employees. 7.2 Liabilitv Insurance. The Operator shall purchase at its own expense and maintain in force at all times during the term of this Agreement Comprehensive General Liability Insurance, which shall include bodily injury, personal injury, and property damage with respect to the Property and the activities conducted by the Operator in which the coverage shall not be less than $1,000,000 per occurrence. The policy purchased shall name the Operator as the insured and the City and the Borough as additional insured, and shall also require the insurer to provide the City and the Borough with thirty (30) days or more advances written notice of any pending cancellation or change in coverage. SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRll.. 2006 -PAGE 3 OF 8- .,' ,... j:J 7.3 proof of Insurance. At the time of executing this Agreement, and at the time of each renewal of insurance, the Operator_ shall deliver to the City and to the Borough Planning Director certificates of insurance meeting the above criteria. 7.4 Deductibles. Any deductibles or exclusions in coverage will be assumed by the Operator, for account of, and at the sole risk of the Operator. 7.5 Revisions. The minimum amounts and types of insurance provided by the Operator shall be subject to revision at the City's request in order to provide continuously throughout the term of this Agreement a level of protection consistent with good business practice and accepted standards of the industry. 8.0 ENVIRONMENTAL CONCERNS. 8.1 Condition of Site. Operator has operated a shooting range facility on the Property for years and had full opportunity to examine the Property for the presence of any Hazardous Material and accepts the Property in "as is" condition. 8.2 Release of City. Any other provision of this Agreement to the contrary notwith- standing, Operator releases City from any and all claims, demands, penalties, fmes, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert feeS) arising prior to, during, or after the term of this Agreement, and resulting from the use, keeping, storage or disposal of Hazardous Material on the Property by Operator, or arising.. out of or resulting from Operations at the Property under this Agreement or any prior use of the Property by Operator or Operator's assignees .or Pn:dece~rs in interest, except for those claims arising out of the City's sole negligence or intentional misconduct. This release includes, without .~tation, any and all costs incurred due to any investigation of the Property or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law or regulation. 8.3 Use of Hazardous Materials on the Site. In addition to the terms of the Lease, Operator agrees to comply with the following: i. Operator shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Property except for such Hazardous Material as is necessary to conduct Operations. ii. Any Hazardous Material permitted on the Property as provided in this paragraph, and all containers therefore, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. In addition, Operator shall SHOOTING RANGE OPERATING AGREEMENT &; DEVELOPMENT PLAN APRIL 2006 .PAGE4OFt~ , ..." comply with EPA-902-B-OI-OOI as it now exists and may be amended from time to time. 111. Operator shall not discharge, leak. or emit, or permit to be discharged, leaked or emitted, any material into the atmosphere, ground, ground water, sewer system or any body of water, if such material (as reasonably determined by the City, or any governmental authority) does or may, pollute or contaminate the same, or may adversely affect the (a) health, welfare or safety of persons, whether located on the Property or elsewhere; or (b) condition, use or enjoyment of the Property or any other area or personal property. iv. Operator hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage and disposal of Hazardous Material kept or brought on the Property, and Operator shall give immediate notice to City of any violation or potential violation of the provisions of this paragraph. 8.4 Indemnification of City. Any other pf()vision of this Agreement to the contrary notwithstanding, Operator shall defend, indemnify and hold City harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: i. The presence, disposal, release or threatened release of any such Hazardous Material which is on or from the Property, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii. Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Property; 111. Any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material or any use of the Property; and/or . iv. Any violation of any laws applicable thereto; provided, however, that this section shall apply only if the acts giving rise to the claims, demands, penalties, fmes, judgments, liabilities, settlements, damages, costs or expenses (1) occur during the term of this Agreement; (2) arise in whole or in part from the use of, operations on, or activities on the Property by Operator or Operator's employees, agents, invitees, authorized representatives, or any other persons; or (3) occurred during the term of any prior use of any portion of the Property previously used by Operator, its assignees, affiliates, or predecessors in interest. The provisions of this section shall be in addition to any other obligations and liabilities Operator may have to City at law or equity and shall survive and shall survive the termination of this Agreement SHOOTING RANOE OPERATING AGREEMENT &: DEVEWPMENT PLAN APRIL 2006 .PAGE S OF 8. 11 8.5 Facility OPemtor. For all purposes, Opemtor shall be deemed the opemtor of n Facility. 9.0 PERMITS AND REPORTING. 9.1 Permits Reauired bv Other Governmental Agencies. Opemtor 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 Opemtor commencing work under this Agreement. Opemtor 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 Opemtor to immediately cease any operations or activities on the Property if the same is being carried out without necessary permits. in violation of the terms of any permit or Environmental Law, or contrary to this Agreement. 9.2 Correspondence With and Reports to Environmental Agencies. Opemtor shall immediately provide City with copies of all correspondence and notices, including copies, of all reports between the Operator and any state, federal or local government or agency regulating Hazardous Material which relates to Opemtor's opemtions on or use of the Land. 10.0 GOVERNING LAW. This Agreement will be governed by, construed, and enforced in accordance with the laws of Alaska. 11.0 NONW AlYER. No failure of the City or Contmctor to insist upon the strict performance by the other of any of the terms of this Agreement or to exercise any right or remedy conferred under this Agreement shall constitute a waiver or relinquishment to any extent of its rights to rely upon such terms or rights on any future occasion. Each and every term, right, or remedy of this Agreement shall continue in full force and effect. 12.0 SAFETY/PERFORMANCE. The Operator shall perform all Operations in a safe and worker like manner. The Operator shall comply with all federal and state statutes, ordinances, orders, rules, and regulations pertaining to the protection of workers and the public from injury or damage, and shall take all other reasonable precautions to protect workers and the public from injury or damage. 13.0 SUSPENSION OR TERMINATION. 13.1 Fault Termination or Suspension. This Agreement may be terminated by either party upon ten (10) days written notice if the other party fails substantially to perform in accordance with its terms. . 13.2 Convenience Suspension or Termination. The parties acknowledge that this Agreement is subject to the Lease and shall terminate immediately upon SHOOTING RANGE OPERATING AGREEMENT & DEVELOPMENT PLAN APRll.. 2006 -PAGE 6 OF &- 18 termination of the Lease. In addition, the City may at any time terminate or suspend this Agreement for any reason including its own needs or convenience. 14.0 EOUAL EMPLOYMENT OPPOR111NITY. The Operator shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, or because of age, physical handicap, sex, marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. The Operator shall take affmnative action required by the law to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, national origin, ancestry, age, or marital status. 15.0 NO ASSIGNMENT OR DELEGATION. The parties acknowledge that the Operator was selected based on particular demonstrated experience in operating the Facility. The Operator may not assign or delegate this Agreement, or any part of it. 16.0 INDEPENDENT CONTRACTOR. The Operator shall be an independent contractor in the performance of work under this Agreement, and shall not be an employee or agent of the City. 17.0 PAYMENT OF TAXES. As a condition of performance of this Agreement, Operator shall pay all applicable federal, state and local taxes incurred by the Operator in the performance of this Agreement. 18.0 PRECEDENCE AND DMSmILITY. This Agreement, the Lease and any resolutions adopted in relation thereto, contain the entire agreement between the parties as to the Operations to be performed by the Operator. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. 19.0 TIMELINESS OF PERFORMANCE. The Operator shall perform all Operations in a timely fashion. 20.0 CLAIMS AND DISPUTES. All claims and disputes under this Agreement, if not otherwise resolved by the parties, shall be filed in the Superior Court for the State of Alaska in Anchorage. 21.0 NOTICES. Any notices, bills, invoices, or reports required by the Agreement shall be sufficient if they shall be sent by the parties in the United States mail, postage paid, to the address noted below: SHOOTING RANGE OPERATING AGREEMENT Ik. DEVELOPMENT PLAN APRIL 2006 .PAGE 7 OF 8- '1.~ City of Seward P.O. Box 167 Seward, Alaska 99664 Iron Mountain Shooting Club IN WITNESS WHEREOF, the parties have executed this Agreement. CITY OF SEWARD IRON MOUNTAIN SHOOTING CLUB . Clark Corbridge City Manager By: Its: Dated: Dated: ATTEST: Jean Lewis, CMC, City Clerk Dated: (City Seal) SHOOTING RANGE OPERATING AGREEMENT &: DEVELOPMENT PLAN APRIL 2006 -PAGE 8 OF 11- '"' 11 DRAFT KPBL# 06-0604-00 KENAI PENINSULA BOROUGH ---REAl,-PROPERTY LEASEn This LEASE (hereinafter "LEASE"), for good and valuable consideration, and pursuant to Ordinance , enacted , is made and entered into by and between the KENAI PENINSULA BOROUGH, an Alaska municipal corporation whose address is 144 North Binkley Street, Soldotna, Alaska 99669, (hereinafter called "KPB"), and the City of Seward, an Alaska Municipal Corporation whose address is 410 Adams Street, Seward, Alaska 99664, (hereinafter called "LESSEE"). I. PURPOSE OF LEASE This Lease grants LESSEE use of the real property described in Section II below for the purpose of operating a public shooting range as further described in Section III. Development Plan. n. DESCRIPTION OF PROPERTY AFFECTED An outdoor shooting facility within the Seward Solid Waste Facility grounds more particularly described as follows: SW1/4NE1/4NE1/4 and the S1I2NW1I4NE1I4NEI/4 Section 28, TIN, RIW, S.M. Alaska Subject to the following reservations: The Kenai Peninsula Borough reserves exclusive use and enjoyment of the approximately 2.7 acres being the solid waste service roadway and all lands east of said service roadway as shown on attachment A (the "Property"). ill. TERMS AND CONDITIONS SPECIFIC TO LEASE BETWEEN KPB AND THE CITY OF SEWARD I. Lease Term. This Lease is for a term of 20 years commencing April 26, 2006 and terminating March 31, 2026 unless sooner terminated. 2. Lease Rental. The annual lease rental for the term of this Lease is $1.00. 3. Develonment Plan. This Lease requires a development plan per KPB 17.10.140(B). A development plan subInitted by LESSEE is subject to approval from both the KPB Planning Department and Solid Waste Department. A development plan establishes the KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 1 OF 11- -"", ,le ~,.' 11 mutual understanding between KPB and LESSEE as to how the Property will be used and improved by the LESSEE. It a development plan references or relies on a third-party operating agreement, such operating agreement shall be apart of the development plan. A d.evelopment plan may be updated or amended from time to time, subject to KPB's approval, LESSEE's Operating Agreement and Development Plan is attached hereto and incorporated by reference. 4. Priority Given to KPB Solid Waste Activities. KPB activities upon the Seward Solid Waste Facility grounds include stockpiling, sorting recycling, burying, crushing burning, blasting, composting and hauling materials; landscaping and erosion control; landfill post closure site work and monitoring; and daily operations of a waste transfer facility. These activities result in public traffic and heavy equipment operating throughout the site and other operations that require constant safety controls. KPa's activities and safety concerns on this site and upon the Property are superior to the LESSEE's interests granted by this lease. LESSEE must control all activities in a manner to avoid interference with KPB's primary activities. The borough may require LESSEE to install fencing or take other measures to ensure its use remains compatible with the boroughs. The KPB Solid Waste Department reserves the right to add stipulations as needed to ensure the continued safe and efficient operations on at the site. Additionally the Solid Waste Department may at any time close off any portion of the Property to shooting range use when necessary to perform Landfill Post Closure site work, monitoring, or other activities. 5. Access and Parking. LESSEE shall access the Property along the gated roadway, beginning at the gate southwest of the transfer facility building. LESSEE shall maintain the gate and lock for this road. No parking shall be allowed upon the access road. 6. Land Fill CaD Damae:e Prevention. The Property is situated atop a landfill cap. LESSEE shall take all necessary precautions to prevent damage to the landfill cap. Range berms may be developed only above the existing ground elevation. Buried waste cannot be exposed and grass and trees shall not be disturbed installation of anchors, posts or other activities which require boring into the ground must first be approved in writing by the KPB Solid Waste Department. 7. General Responsibilities. LESSEE shall provide for its own sanitation, power and water and shall collect its litter, shells, casings. and other materials resulting from range activities on a weekly basis LESSEE shall have a qualified designated range master supervising all range activities and enforcing range rules LESSEE shall perform all access road repair, maintenance, and snow removal; fencing; keep culverts and drainage ditches open to prevent ponding or erosion; and other work to keep the site in good condition. Borough facilities, equipment, fencing, monitoring wells, etc, shall not be disturbed or damaged and, if damaged shall be immediately repaired or replaced by LESSEE. . KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 2 OF 11- .;. .".~. ,.;4, ~ 1:0. 8. Contamination. The Borough acknowledges the presence of the landfill on the Property and the fact that the Property has been used as a shooting range for many years. LESSEE is not responsible for any prior use of the Property. Soil or water contamination resulting from range activities during the term of this Lease sball be remediated by LESSEE. 9. Public Use. LESSEE agrees to allow the general public use of the range facilities. Such public use shall be restricted to those hours during which a range master designated by LESSEE is on the leasehold premises and available for supervision. LESSEE shall ensure all range users are informed of range rules, safety standards, and lease restrictions. LESSEE shall keep gate locked to prevent unauthorized access. 10. Conflict with Solid Waste Ooerations. KPB may cancel the lease with 30 days written notice iflease activities unavoidably interfere with transfer site operations or ifKPB must conduct site work that requires the Property to be vacated. In the event that LESSEE does not abide by the conditions set forth in this lease, KPB can immediately halt range activities until all corrective action is taken. IV. TERMS AND CONDITIONS CONTAINED IN KPB CODE SECTION 17.10.240 1. Assignments. LESSEE may assign this Lease only if approved in advance by KPB. Applications for assignment shall be made in writing on a form provided by the Land Management Division. The assignment shall be approved if it is found that all interests of KPB are fully protected. The assignee shall be subject to and governed by the provisions of this agreement and laws and regulations applicable thereto. 2. Termination. Upon termination of this Lease, LESSEE covenants and agrees to return the property to KPB in a neat,. clean and sanitary condition, and to immediately remove all items of personal property subject to the terms and conditions of paragraph 11 below. All terms and conditions set out herein are considered to be material and applicable to the use of the property under this Lease. Subject to the following, in the event of LESSEE's default in the performance or observance of any of the Lease terms, conditions, covenants and stipulations thereto, and such default continues thirty (30) calendar days after written notice of the default, KPB may cancel this lease, or take any legal action for damages or recovery of the property. No improvements may be removed during the time in which the Lease is in default. In the event LESSEE breaches any provisions prohibiting the release of hazardous chemicals, hazardous materials or hazardous waste upon the Property, and fails to immediately terminate the operation causing such release upon notice from KPB, then KPB may immediately terminate this Lease without further notice to LESSEE. Either party may terminate this Lease for convenience upon 30 days written notice to the other party. KENAI PENINSULA BOROUGH REAL PROPERlY LEASE APRIL 2006 -PAGE 3 OF 11- 23 3. Cancellation. At any time that this lease is in good standing it may be canceled in whole or in part upon mutual written agreement by the LESSEE and either the KPB Mayor or Planning Director. This Lease is subject to cancellation in whole or in part if improperly issued through error in procedure or with respect to material facts. 4. Conditional Contract. This Lease is issued on a conditional basis and shall be canceled in whole or in part in the event KPB is denied title to the Property. Payment made by the LESSEE on the land to which title is denied KPB shall be refunded in whole or in part to the agreement holder of record and any properly recorded lien holder, if any, jointly. However, KPB shall in no way be liable for any damage that may be done to the Property by the LESSEE or liable for any claim of any third party, or to any claim that may arise from ownership. In the event the Borough does receive title to the Property, the conditional agreement shall then have the same standing, force and effect as non- conditional agreements issued under any regulations ofKPB 17.10. 5. Entrv or Re-Entrv. In the event that the Lease is terminated, canceled or forfeited, or in the event that the Property, or any part thereof. should be abandoned by the LESSEE during the agreement term, KPB or its agents, servants or representative, may immediately or any time thereafter, enter or re-enter and resume possession of the Property or such part thereof, and remove all persons and property thereof either without judicial action where appropriate, by summary proceedings or by a suitable action or proceeding at law or equity without being liable for any damages therefore. Entry or re- entry by KPB shall not be deemed an acceptance of surrender of the Lease. 6. Fire Protection. LESSEE shall take all reasonable precautions to prevent, and take all reasonable actions to suppress destructive and uncontrolled grass, brush, and forest fires on the land under agreement, and comply with all laws, regulations and rules promulgated and enforced by the protection agency responsible for forest protection within the area wherein the Property is located. 7. Hazardous Materials and Hazardous Waste. Storage, handling and disposal of hazardous waste shall not be allowed on lands under lease from KPB per KPB Code, Section 17.10.240(H). LESSEE shall comply with all applicable laws and regulations concerning hazardous chemicals and other hazardous materials, and shall properly store, transfer and use all hazardous chemicals and other hazardous materials and not create any environmental hazards on the lands leased herein. In no event may LESSEE utilize underground storage tanks for the storage or use of hazardous chemicals or other hazardous materials. Should any hazardous chemicals or hazardous materials of any kind or nature whatsoever, or hazardous wastes be released upon the subject lands during the term of this lease, LESSEE shall IMMEDIATELY report such release to the KPB Planning Director and to any other agency as may be required by law, and LESSEE shall, at its KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 4 OF 11- ".' 't ...,..\ i... own cost, assess, contain and clean up such spilled materials in the most expedient manner allowable by law. .A.S used herein, "hazardous chemical" means a chemical that is a physical hazard or a health hazard. As used herein, "hazardous material" means a material or substance, as defined in 49 . C.F.R. 171.8, and any other substance determined by the federal government, the state of Alaska or KPB, to pose a significant health and safety hazard. As used herein, "hazardous waste" means a hazardous waste as identified by the Environmental Protection Agency under 40 C.F.R.26L3, and any other hazardous waste as defined by the federal government, the state of Alaska or KPB; The covenants and obligations described in this article shall survive the termination of this Lease 8. Full and Final Agreement. This Lease constitute~ the full and final agreement of the parties hereto and supersedes any prior or contemporaneous agreements. This Lease may not be modified orally, or in an)' ~anner other than by an agreement in writing and signed by both parties or their respective successors in interest. LESSEE avers and warrants that no representations other than those contained within this Lease have been made with the intention of inducing execution of this Lease. 9. Notice. Any notice or demand, which under the terms of this Lease must be given or made by the parties hereto, shaII be in writing, and given or made by registered or certified mail, addressed tothe other party at the address shown in this section. However, either party may designate in writing such. other address to which such notice of demand shall thereafler be so given, made or mailed. A notice given hereunder shall be deemed received when deposited ina U.S. general or branch post office by the addressor. All notices shall be sent to both parties and the Solid Waste Department as follows: LESSOR .. Kenai Pe~u1a Borough Planning Director 144 N. Binkley Soldotna, AK 99669-7599 Solid Waste Dept. 47140 East Poppy Ln. Soldotna, AK 99669 LESSEE City of Seward City Manager 410 Adams St P.O. Box 167 Seward, AK 99669 10. Notice of Default. Notice of the default, where required, will be in writing and as provided in the Notice provision of this Lease. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE S OF 11- .~'to l>:l:'t- i .~.) 11. Removal or Reversion of ImDrOvements Upon Termination of Lease. a. Improvements on the Property owned by LESSEE shall. within thirty calendar -. --- --days-afterthe-termination of the Lease. be removed by LESSEE. provided such ~ removal will not cause injury or damage to the land; and further provided that the Mayor. or Planning Director when applicable. may extend the time for removing such improvements in cases where hardship is proven. The LESSEE may dispose of its improvements to a succeeding lessee with the consent of the KPB mayor. b. If any improvements and/or chattels having an appraised value in excess of ten thousand dollars. as determined by a qualified appraiser. are not removed within the time allowed, such improvements and/or chattels sbaU. upon due notice to the LESSEE under the terminated or canceled Lease. be sold at public sale under the direction of the mayor and in accordance with the provisions of KPB Code. Chapter 5. The proceeds of the sale shall inure to the LESSEE who placed such improvements and/or chattels on the lands. or.its successors in interest, after paying to KPB all monies due and owing plUS all costs, fees and expenses incurred in storing the goods and making such a sale In case there are no other bidders at any such sale, the KPB mayor is authorized to bid, in the name of such improvements and/or chattels. The bid money taken from the fund to which said lands belong. and the funal receive all moneys or other value subsequently derived from t s or leasing of such improvements and/or chattels. KPB shall acquire all rights. both legal and equitable. that any other purchaser could acquire by reason oftb,epurchase. c. If any improvements and/or chattels having an appraised value of ten thousand dollars of less, as determined by KPB mayor, are not removed within the time allowed. suchiInproveJ1lellts and/or chattels shall revert and absolute title shall . vestinKPB. Up<>n request, the purchaser, lessee, or permittee shall convey said improvelllents and/or chattels by appropriate instrument to KPB. 12. Rental for Imorovements or Chattels not Removed. Any improvements and/or chattels belonging to the LESSEE or placed on the land during its tenure with or without its permission and remaining upon the premises after the termination of the LEASE shall entitle KPBto cbargc::8 reasonable rent therefore. 13. Resale. In the event that this Lease should be terminated. canceled, forfeited or abandoned, KPB may offer the Property for sale. se or other appropriate disposal pursuant to the provisions KPB Code. Chapter 17.10 or other applicable regulations. If the Property is not immediately disposed of, then said land shall return to the Land Bank. 14. Resoonsibility of Location. It shall be the responsibility of the LESSEE to properly locate its self and its improvements on the Property. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 6 OF 11- .n f.' ;;.. ,,; 15. Liens and Mortszaszes. LESSEE shall not cause or allow any liens of any kind or nature whatsoever to attach to the Property during the term of this Lease, except in connection with financing transactions as discussed below. In the event that any prohibited lien is place<Lagainst the-Itf9~J1Y-, LESSEE shall immediately cause the lien to be released. LESSEE shall immediately refund to KPB any monies that KPB may, at its sole discretion, pay in order to discharge any such lien, including all related costs and a reasonable sum for attorney's fees. For the pmpose of interim or permanent financing of improvements to be placed upon the Property, and for no other pmpose, LESSEE, after giving written notice thereof to KPB, may encumber by mortgage, deed of trust, assignment or other appropriate instrument, LESSEE's interest in the Property and in and to this Lease, provided such encumbrance pertains only to such leasehold interest and does not pertain to or create any interest in KPB's title to or interest in the Property. Any such encumbrance shall be entirely subordinate to KPB's rights and interest in the Property. A leasehold mortgagee, beneficiary of a deed of trust or security assignee shall have and be subrogated to. any and all rights of the LESSEE with respect to the curing of any default hereunder by LESSEE. In the event of cancellation or forfeiture of this Lease for cause, the holder of a properly recorded mortgage, deed of trust, or assignment will have the option to acquire the Lease for the unexpired term thereof, subject to the same terms and conditions as in the original instrument. 16. Easements and Riszhts-of-Wav. This Lease is subject to all easements, rights-of-way, covenants and restrictions of which LESSEE has actual or constructive notice KPB reserves and retains the right to grant additional easements for utility and public access pmposes across the property and nothing herein contained shall prevent KPB from specifically reserVing or granting such additional easements and rights-of-way across the Property as may be deemed reasonable and necessary. All trails or roads existing at the time this Lease is executed shall be considered an easement for public use. As the parties agree that this is a reserved right which is reflected in the annual lease rental, in the event that KPB grants future additional easements or rights-of-way across the property, it is agreed and understood that LESSEE shall receive no damages for such grant. As established by AS 38.05, KPB lands sold or leased may be subject to a minimum fifty-foot public access easement landward from the ordinary high water mark or mean high water mark. 17. Sanitation. LESSEE shall comply with all laws, regulations or ordinances promulgated for the promotion of sanitation. The Property shall be kept in a clean and sanitary condition and every effort shall be made to prevent pollution of the waters and lands. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 7 OF 11- '(.~.~ - ; 18. Subleasing. No LESSEE may sublease lands or any part thereof without written permission of the mayor when applicable. A sublease shall be in writing and subject to the terms and conditions of- the original lease. KPB hereby consents to the Opemting Agreement and Development Plan attached hereto. 19. Violation. Violation of any of the terms of this Lease may expose LESSEE to appropriate legal action including forfeiture of lease/purchase interest, termination, or cancellation of its interest in accordance with state law. 20. Non-Waiver Provision. The receipt of payment by KPB, regardless ofKPB's knowledge of any breach by LESSEE, or of any default on the part of the LESSEE in observance or performance of any of the conditions or covenants of this LEASE, shall not be deemed to be a waiver of any provision of the LEASE. Failure ofKPB to enforce any covenant or provision herein contained shall not discharge or invalidate such covenant or provision or affect the right of KPB to enforce the same in the event of any subsequent breach or default. The receipt by KPB of any payment of any other sum of money after notice of termination after the termination of the agreement for any reason, shall not reinstate, continue or extend the agreement, nor shall it destroy or in any manner impair the efficacy of any such notice of termination unless the sole reason for the notice was nonpayment of money due and the payment fully satisfies the breach. V. GENERAL TERMS AND CONDITIONS 1. Waste. LESSEE shall not commit waste or injury upon the Property. 2. Safety. LESSEE shall be solely responsible for maintaining the Property in a safe and fit condition, including without limitation snow and ice removal from all improvements and areas on the Property developed or used for pedestrian traffic 3. Compliance With Laws. The LESSEE agrees to comply with all applicable federal, state, borough and local laws and regulations. 4. Insoections. LESSEE shall allow KPB through its duly authorized representative, to enter and inspect the Property at any reasonable time, with or without advance notice to LESSEE, to ensure compliance with the terms and conditions of this Lease. KPB's right to enter and inspect shall be exercised at KPB's sole discretion and the reservation or exercise of this right, and any related action or inaction by KPB, shall not in any way impose any obligation whatsoever upon KPB, and shall not be construed as a waiver of any rights of KPB under this Lease. 5. Indemnification and Liabilitv Insurance. a. Indemnification and Hold Harmless. The LESSEE shall indemnify, defend, save and hold KPB, its elected and appointed officers, agents and employees, harmless KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 8 OF 11- 96 ~'. .,.g from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees resulting from LESSEE'S performance or failure to perform in accord with the terms of this Lease in any way whatsoever The LESSEE shall be responsible under this clause for any and all claims of any character resulting from LESSEE or LESSEE'S officers, agents, employees, partners, attorneys, suppliers, and subcontractors performance or failure to perform this Lease in any way whatsoever This defense and indemnification (responsibility includes claims alleging acts or omissions by KPB or its agents, which are said to have contributed to the losses, failure, violations, or damage However, LESSEE shall not be responsible for any damages or claims arising from the sole negligence or willful misconduct of KPB, its agents, or employees. b. Liability Insurance. LESSEE, or its assign, shall purchase at its own expense and maintain in force at aU times during the term of this Lease Comprehensive General Liability Insurance. which shall include bodily injury, personal injury, and property damage with respect to the Property and the activities conducted by the LESSEE in which the coverage shall not be less than $1,000,000 per occurrence. The policy purchased shall name LESSEE, or its assign, as the insured and KPB as an additional insured, and sha1l also require the insurer to provide KPB with thirty (30) days or more advance written notice of any pending cancellation or change in coverage. c. Proof of Insurance. At the time of executing this LEASE, at the time of each renewal of insuran<:e, LESSEE shall deliver to the KPB Planning Director certificates of insurance meeting the above criteria. 6. Prooertv Taxes. LESSEE shall timely pay all real property taxes, assessments and other debts or obligations owed to KPB. Pursuant to KPB Code, Section 17 10 120(F) this Lease will terminate automatically should LESSEE become delinquent in the payment of any such obligations. 7. Jurisdiction. Any suits filed in connection with the terms and conditions of this Lease, and of the rights and duties of the parties, shall be filed at Kenai, Alaska and shaU be governed by Alaska law. 8. Savine:s Clause. Should any provision of this Lease fail or be declared null or void in any respect, or otherwise unenforceable, it shaU not affect the validity of any other provision of this Lease or constitute any cause of action in favor of either party as against the other. 9. Binding Effect. It is agreed that all covenants, terms and conditions of this Lease shall be binding upon the successors, heirs and assigns of the original parties hereto. 10. Authorization to Sign. LESSEE warrants that the person executing this agreement is authorized to do so on behalf of the City of Seward. KENAI PENINSULA BOROUGH REAL PROPERlY LEASE APRIL 2006 -PAGE 9 OF 11- t~ CITY OF SEWARD KENAI PENINSULA BOROUGH Clark Corbridge City Manager JohnJ. Williams Mayor .. AITEST: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Jean Lewis City Clerk, CMC Holly B. Montague Assistant Borough Attorney NOTARY ACKNOWLEDGEMENT STATE OF ALASKA ) )ss. THIRD JUDICIAL DISTRICT ) The foregoing was acknowledged before me this day of , , by Clark Corbridge, City Manager of the City of Seward, an Alaska municipal corporation, for and on behalf of the corporation. Notary Public in and for Alaska My commission expires: NOTARY ACKNOWLEDGEMENT STATE OF ALASKA ) )ss. THIRD JUDICIAL DISTRICT ) The foregoing was acknowledged before me this day of , , by John J. Williams, Mayor of the Kenai Peninsula Borough, an Alaska municipal corporation, for and on behalf of the corporation. KENAI PENINSULA BOROUGH REAL PROPERTY LEASE APRIL 2006 -PAGE 10 OF 11- , , , '- 1'>,'1 ,Ju Notary Public in and fOl'Alaska My commission expires: KENAI PENINSULA BOROUGH REAL PROPERlY LEASE APRIL 2006 -PAGE 11 OF 11- ~:f . Sponsored by: Pl~g and Zoning Commission CITY OF SEWARD, ALASKA RESOLUTION 2006-30 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, RECOMMENDING KENAI PENINSULA BOROUGH APPROVAL OF THE FOURTH OF JULY CREEKSUBDMSION NUMBER 3, ROBERTS REPLAT WHEREAS, Carol Roberts, the owner of Lot 2, US Survey 3294, does not have frontage on a dedicated public right-of-way; and WHEREAS, the applicant submitted a request to purchase a portion of Lot H, Fourth ofJuly Creek Subdivision Number 2, which is owned by the City of Seward. The portion is approximately 5.372 acres; and WHEREAS, Council approved Resolution 2005-31, supporting the disposal of the City owned land to the applicant, in order to provide access necessary for the development and use of her land; and WHEREAS, this platting action will create a new subdivision by vacating a lot line between the current applicant property of, Lot 2, US Survey 3294 and a portion of the current City owned Tract H, providing the applicant with the newly formed Tract 2A, Fourth of July Subdivision, Number 3, Roberts Replat a parcel of approximately16 acres; and WHEREAS, the City will continue to own two lots, Tract HI, containing approximately 9.663 acres and Tract H2, containing approximately 15.636 acres. The new subdivision will have a total acreage of approximately 41.321 acres; and WHEREAS, the subdivision is in the Resource Management Zoning District (RM), which allows for residential and commercial uses and the subdivision meets the minimum lot size and width requirements of the Seward Zoning Code; and WHEREAS, easements for utilities shall be added to the plat; and WHEREAS, the property is accessed by Nash Road but is not served by existing public utilities, and therefore will require an subdivision installation agreement exception, as required by the Seward Subdivision Code 16.01.030 (3); and WHEREAS, the Seward City Code 16.01.015 (B) stipulates that no preliminary plat of City- owned property may be submitted to the Kenai Peninsula Borough Planning Commission for approval without prior consent of the City Council; and ~~ CITY OF SEWARD, ALASKA RESOLUTION 2006-30 WHEREAS, in accordance with Seward City Code, the Planning and Zoning Commission held a public hearing on the preliminary plat at their November 1, 2005 regular meeting; and WHEREAS, the Seward Planning and Zoning Commission approved Resolution 2005-24, recommending Seward City Council and Kenai Peninsula Borough approval of the Fourth of July Creek Subdivision Number 3, replat subject to certain conditions. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Seward Alaska that: Section 1. The Seward City Council recommends Kenai Peninsula Borough approval of the Fourth of July Creek Subdivision Number 3, Roberts Replat subject to the following conditions: 1. A deed shall be used to transfer the City of Seward's interest in the portion of Tract H which is being transferred to the applicant. 2. A subdivision agreement exception shall be completed and recorded before the final plat is signed and recorded. 3. Utility easements shall be provided for all existing and proposed utilities. The easement for the transmission line shall be a minimum of sixty feet in width, centered on the existing transmission line. 4. A recommendation for the legal description for the subdivision is "Fourth of July Creek Subdivision Number 3, Roberts Replat", Section 2. This resolution shall take effect immediately after adoption and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska this 28th day of March 2006. THE CITY OF SEWARD, ALASKA ,J. .... 33 . CITY OF SEWARD, ALASKA RESOLUTION 2006-30 Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATIEST: Jean Lewis, CMC City Clerk (City Seal) S~ Council Agenda Statement From: March 28, 2006 Clark Corbridge, City Manager {I~ 3 - t7 -OJ, Donna Glenz, Planning Assistant ~M" Preliminary Plat of Fourth of July Creek Subdivision Number 3, Roberts Replat r ....of' s~~-<7 4~\-";:....~ ... ~., ,'~ \J " ",\"';,;,;ccl ~;~~~~;. 'lG..s...." Meeting Date: Through: Agenda Item: BACKGROUND & JUSTIFICATION: Johnson Surveying and the applicant, Carol Roberts submitted the attached preliminary plat of Fourth of July Creek Subdivision Number 3, for the City's review. A full size copy of the plat is available for review in the Community Development Office. The applicant, Carol Roberts is the owner of Lot 2, US Survey 3294, which does not currently have frontage on a dedicated public right-of-way. The applicant submitted a request to purchase a portion of Lot H, Fourth of July Creek Subdivision Number 2, which adjoins her property to the East which is owned by the City of Seward. The requested portion of City owned Lot H fronts on the public right of way of Nash Road and would allow the applicant legal access to and from her current property to the West. The requested portion is approximately 5.372 acres. Council approved Resolution 2005-31, supporting the disposal of the City owned land to the applicant, in order to provide access necessary for the development and use of her land. This platting action will create a new subdivision by vacating a lot line between the current applicant property of, Lot 2, US Survey 3294 and a portion of the current City owned Tract H, providing the applicant with the newly formed Tract 2A, Fourth of July Subdivision, Number 3, Roberts Replat a parcel of approximately 16 acres. Tract H is currently a long and rather narrow 28.4 acre parcel located on the east side of Resurrection Bay, positioned between Nash Road on the East and Resurrection Bay on a majority of West. The greater part of the lot has very steep terrain; however a beach access trail exists in the South portion. There is a cliff along most of the Bay side. Tract H is in the Resource Management zoning district, which allows for both residential and commercial uses. Although all subdivisions are required to have subdivision installation agreements, Seward City Code 16.01.030 (3); allows for City administration to consider granting an exception to this new subdivision, due to the remoteness. City administration will continue to work with the applicants on the subdivision agreement exception, as necessary. Since there will be a transfer of ownership for the 5.372 acres which will be acquired by the 35 . applicant, a warranty deed will be necessary before the plat can be finalized. Seward City Code requires that the City Council provide consent prior to any preliminary plats of city-owned land being submitted to the Kenai Peninsula Borough. It is the Planning and Zoning Commission's responsibility to act in an advisory capacity to the Kenai Peninsula Borough regarding subdivision plat proposals. The Planning and Zoning Commission reviewed the preliminary plat at its November 1, 2005 regular meeting and approved Resolution 2005-24 recommending City Council and Kenai Peninsula Borough approval of the Fourth of July Creek Subdivision #3 replat subject to certain conditions. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: In accordance with the sales agreement all surveying and platting costs for this subdivision of city owned land is at the applicant's expense. Finance Approval: RECOMMENDATIONS: Council consent to the submittal to the Kenai Peninsula Borough, the Fourth of July Creek Subdivision Number 3, and recommend approval subject to the conditions identified in the resolution. '" ..... .J"" FOURTH OP JULy CREBK PRELIMINARY PLAT SI..IlmMSION-'3 ~ ~ " 1'r-am 14 f'0\I1tI1lI' ....r 0'eIk Md. .eo : .11 ~~.;~Lf.~~~II.T1SIlIV.ll'lClh ! e,,\&J lll~'1i I N11114 SCIIIn 7, TIS RE. II'. Cle)' of' kwCrll. I\laH. At.. ..'.;. I ~l flIward ~ IliI'lrIIll ~?J).,"', · : IA ,,.1NlI tw ,,,,,nil !'r' · . l ! I/J IIDd& ~ oW.- ...... · ~A~r99114 &:. ~ lie" >- : OCT-12-290S 08:10 AM JOHNSON. SURVEYING IOALI ,. . .... . ..,...." .... ~. .1....... CIlY OF SEWARD I I , '\ OCT 1 2 2005 PlANNING OFFICE .).' : Q ......... ~ .--.. ,- I 0: '::~.: .. II.!!' --.f\ .."... ~ .. , " 262 0812 I mr I I ) I ,:W NII'bfwV ... '. r 'r I H. II . -I I. ,:.. ' ~AII.. N ."",.. - Nr , , " 31 P.01 City Owned Lot 1 U.S.S. 3294 " " North Roberts Prope y Lot 2 U.S.S.3 9 Proposed Sale Property of 5.372 Acres Current City Owned Parcel Tract H, Fourth of July Creek Subdivision No 2 City Owned 1 Tract H, Fourth of July Creek . Subdivision, N~.~L-~.QL"-.j Sponsored by: Applicant ~ITY OF-SEW ARD,ALASKA PLANNING AND ZONING COMMISSION RESOLUTION 2005-14 A RESOLUTION OF THE SEWARD PLANNING AND ZONING COMMISSION OF THE CITY OF SEWARD, ALASKA, RECOMMENDING A STATUS FOR DISPOSAL OF LAND OWNED BY THE CITY, WHICH HAS A LEGAL DISCRIPTION OF TRACT H, FOURTH OF JULY CREEK SUBDMSION NO.2 WHEREAS, Carol Roberts has applied to buy a portion of Tract H, Fourth of July Creek Subdivision to access her property, Lot 2 U.S. Survey 3294, which does not have access to Nash Road; and WHEREAS, Tract H is not mentioned in the Municipal Lands Management Plan (1995), which is the primary document for determining status for disposal of City owned lands; and WHEREAS, the Planning and Zoning Commission reviews and makes recommendations to the City Council regarding the pros and cons of disposing of a nominated parcel as provided for in the Seward Lease Policies and Procedures; and WHEREAS, providing access to the applicant's property is necessary for the development and enjoyment of their property and the City encourages the development of property within City limits; and WHEREAS, there are numerous beach access points from City owned. Tract H that would provide public beach access without crossing Lot 2 U.S. Survey 3294. Public access would not be affected by the purchase of the portion of Tract H requested by the applicant; and WHEREAS, Tract H is located in the Resource Management Zoning District which allows for residential and commercial uses; and WHEREAS, the disposal of City land can be done most fairly through the Request for Proposal process; and . WHEREAS, access to Lot 2, US Survey 3294, would be provided in the subdivision at the time of sale; and WHEREAS, having co.mplied with the public notification process on May 4, 2005, the Seward Planning and Zoning Commission held the required public hearing on the disposal options for Tract H, Fourth of July Creek Subdivision No.2. .,:.~ .:);.;:)11 Seward Planning and Zoning Commission Resolution No. 2005-14 Page 2 NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning Commission that: Section 1. The Planning and Zoning Commission finds that recommending that Council provide for the sale of a portion of Tract H, Fourth of July Creek Subdivision No.2 as described by the attached plat and further delineated as being an extension on an identical heading of the Northern and Southern property lines of Lot 2 U.S. Survey 3294 to where said lines intersect Nash Road, will be beneficial to the public and will encourage the development of land in City limits. Section 2. The Planning and Zoning Commission fmds that selling a portion of Tract H, Fourth of July Creek Subdivision No.2 is in the best interest of the City. Section 3. The Planning and Zoning Commission finds that the Request for Proposal process is in the best interest of the City and, in consideration of the applicant, recommends that an abbreviated and expedited RFP process be followed Section 4. The Planning and Zoning Commission finds that this resolution shall take effect 10 days following its adoption. PASSED AND APPROVED by the Seward Planning and Zoning Commission this 4th day of May 2005. THE CITY OF SEWARD AYES: NOES: ABSENT: ABSTAIN: Smith, Griswold, Hohl, Roach', Schafer, Keil None Vacant None ATTEST: ",,"11".,~ .........'_1 OF SfEJ.?",,- .....~" ....... ~.., .' :4t ,.~, ... PO';~. "#; .,:; v ..boor. . ..,>i... ~ ~ ~ ...!>> ~:. ~ .. .. ~ -.....- '0.. . .- : ! \ = :.: SEAL :...r.; . . . v ~ Wi :. : .: .. --.-."" ~ . . ~ (City St\J~.~A.... n...."'....b. 1/ iI1: ~ ..~r~ 1 '\~... ~ ~~ , - r~ .....I~.. ~:. ..:1).:;"- ~~~~- OF ""\..~.J .' . . 116nul"'''' "", '< \,. City of Seward. Alaska May 4, 2005 Planning Commission Minutes Volume 5, Page 52 9 Motion Passed Motion (HohIlGriswold) Motion Passed Vote on the main motion, as amended Motion Passed 10 minute recess ofthe Commission beginning with the North and East boundaries be submitted for approval by the administration. Unanimous Amend Resolution 2005-13, Section 3, Condition (d), Add the word Security Unanimous Yes: Smith, Roach', Schafer, Keil No: Hohl, Griswold Resolution 2005-14, recommending a status for disposal ofland owned by the City, which has a leg~' ~escription of Tract H, Fourth of .Tub' Creek Subdivision No.2 Brown reviewed the request to the City to purchase a portion of Tract H by Carol and Wade Roberts. The applicant had purchased Lot 2, U.S. Survey 3294. Lot 2 currently did not have access to Nash Road. He explained that two options were before the Commission. Brown noted that one option was to allow an access easement across City owned Tract H in return for public access to the beach across the Roberts Lot 2. Another option was to sell the portion ofTract H directly east of the Lot 2 property. Brown stated that with the option of selling the property staff t~opunended the property go through the Request for Proposal (RFP). Brown continued by reviewing the concerns from the utilities, :fire department and other City staff. He noted that other City departments had done a very preliminary reviews and a cost projection was not available. He stated a few of the initial concerns by staff were emergency access to the property, possible future widening of Nash Road, electric transmission line clearance and cost involved to provide service. In response to Griswold's request for information on the width of the Nash Road Right-of- Way and how additional road right-of-way easement could affect the property, W.C. Casey Public Works Director stated that without a survey that showed exactly where the current right-of-way was located he had no way of answering that question. In response to Hohl Brown noted that staff currently did not have a plat the showed the utility easements or right-of-way lines on the City owned Tract H. Cl 4( . . City of Seward, Alaska May 4. 2005 Planning Commission Minutes Volume 5. Page 530 Notice of public hearing being posted and published as required by law was noted and the public hearing was opened. Wade Roberts, outside the City, spoke as the representative of the applicant. He provided the Commission with a substitute Resolution and several photos of the area. He stated that access had been discussed at the work session and that since that time he had walked Tract H locating the public access to the beach. He stated that he found access to the north of Lot 2 and numerous accesses to the south across City owned Tract H. He affirmed that the applicant no longer felt it was necessary to allow public access to the beach area though the privately owned Lot 2. He noted that the applicant had requested to purchase a portion of Tract H and preferred to not work with an access easement. He stated he had spoken with City Manager, Clark Corbridge and had been advised to present a substitute resolution to the Commission for consideration. In review of the substitute resolution submitted to the Commission Roberts noted the elimination of the access easement and the trade of public access across Lot 2; he noted the direct sale and removal of the RFP request. He noted the addition of the property description to the best ofhis ability without a survey of the exact location of property line extensions. In response to Schafer, Roberts stated the requested parcel was approximately five acres. In response to Keil, Roberts stated he had no idea who else might be interested in the parcel should it be placed for RFP. He felt due to the terrain that there would be very little interest. No one else requested to be heard and the public hearing was closed. Motion (Smith/Griswold) Approve the substitute Resolution 2005-14 The Connnission discussed the need and to protect the public interest for using the RFP process. In response to Hohl, Brown stated that the resolution was a recommendation to Council on the disposal of the land and if so how, by access easement, outright sale, or RFP. The Commission continued the discussion on the RFP requirements and process. The Commission generally felt the RFP process was the fairest way to handle the sale. Motion (GriswoldlHohl) Amend Resolution 2005-14, Add Whereas number 7 to read. "Whereas, the disposal of the City land can be done most fairly through the Request for Proposal; and" Motion Passed Unanimous Consent 'it'" .~ City of Seward, Alaska May 4, 2005 Planning Commission Minutes Volume 5, Page 531 Motion (HohllKeil) Amend Resolution 2005-14, Add Whereas number 3, "Whereas the Planning and Zoning Commission reviews and makes recommendations to the City Council regarding the pros and cons of disposing of a nominated parcel as provided for in the Seward Lease Policies and Procedures" Motion Passed Unanimous Motion (Smith/Griswold) Amend Resolution 2005-14, Add a new Section 3 "The Planning and Zoning Commission finds that the Request for Proposal process is in the best interest of the City and, in consideration for the applicant, recommends that an abbreviated and expedited RFP process be followed" Motion Passed Unanimous Consent The Connnission discussed the RFP process and noted that access was required to be provided to the land locked parcel of Lot 2 owned by the Roberts. Motion (HohIlSchafer) Amend Resolution 2005-14, Add Whereas number 8 "Whereas access to Lot 2 would be provided in the subdivision at the time of sale." Motion Passed Unanimous Vote on Main Motion, substitute Resolution 2005-14, as amended Motion Passed Unanimous Resolution 2005-12 granting a Conditional Use Permit to the City of Seward for asphalt plant and gravel operations at Tract C Fourth of July Creek Tracts, commonly known as the "City Quarry" Schafer requested a conflict of interest ruling as a business owner of the same type of business. Chair ruled that Commissioner Schafer had a conflict and he removed himself from the dais to take a seat in the audience until the issue was completed. Brown oriented the Commission to the City Quarry and the proposed asphah plant site. He noted the location as the east side of the Seward Marine Industrial Center (SMIC) on an approximate i\WJ.; 2f ~. Sponsored by: Planning and Zoning Commission CITY OF SEWARD, ALASKA RESOLUTION 20OS-31 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO SUBDIVIDE AND SELL A PORTION OF A PROPERTY OWNED BY THE CITY, ALONG NASH ROAD, WHICH HAS A LEGAL DESCRIPTION OF TRACT H, FOURTH OF JULY CREEK SUBDIVISION NO.2 WHEREAS, Carol Roberts has applied. to buy a portion of Tract H, Fourth of July Creek Subdivision to access her property, which is Lot 2 U.S. Survey 3294, which does not have access to Nash Road; and WHEREAS, Tract H is not mentioned in the Municipal Lands Management Plan (1995), which is the primary document for determining status for disposal of City owned lands; and WHEREAS, providing access to the applicant's property is necessary for the development and enjoyment of her property and the 'City encourages the development of property within City limits; and SJ WHEREAS, there are numerous beach access points from City owned Tract H that would provide public beach access without crossing Lot 2 U.S. Survey 3294. Public access would not be affected by the purchase of the portion of Tract H requested by the applicant; and WHEREAS, Tract H is located in the Resource Management Zoning District which allows for residential and commercial uses; and WHEREAS, the Planning and Zoning Commission held a public hearing on May 4th, 2005 and made a recommendation to City Council to dispose of a portion of Tract H, as provided for by the City of Seward Lease Policies and Procedures; and WHEREAS, Tract H will have to be subdivided and appraised prior to selling. NOW, THEREFORE, BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. Selling the portion of Tract H, Fourth of July Creek Subdivision No. 2 which is adjacent to Lot 2 U.S. Survey 3294 and which is approximately five acres in size, will be beneficial to the public and will encourage the development of land in City limits. Section 2. This resolution shall take effect immediately. .~ '.~ 44 ~_II'I' CITY OF SEWARD, ALASKA RESOLUTION 2005-31 PAGE 2 ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 23rd day of May, 2005. AYES: NOES: ABSENT: ABSTAlN: ATTEST: THE CITY OF SEWARD, ALASKA /&.~ '~flr--- Vanta Shafer, Mayor Branson, Dunham, Clark, Lorenz, Shafer Valdatta, Amberg . None None ~//4id,~ ohanna Dollerhide Acting City Clerk (City Seal) . ",'III"",,, ~~~'--t OF SEu~",,, ...... ~ ......... ""'4~ 'G! If O:.p..... p.PO~;~......"....... ~ ::. . "'V'..........., "'" ~.. 'fA.- Ifi . -0.- v. ... . . \ . ! 0 { SEAL !. 5 ,\ ....- 1= iI' ~'.c.o'J . ..l :: '\ t.X"~1\I, 9...:....". ~ ~~~ ~1~..~.1J.1... Y;~ Il ..<}.... OF p.,\.p.:. ...~.. ~l. ~... ~rI#Hnlt.'I. .. " 45 Sponsored by: Applicant - CITY OF SEWARD, ALASKA PLANNING AND ZONING COMMISSION RESOLUTION 2005-24 A RESOLUTION OF THE SEWARD PLANNING AND ZONING COMMISSION, RECOMMENDING CITY COUNCIL AND KENAI PENINSULA BOROUGH APPROVAL OF THE FOURm OF JULY CREEK SUBDIVISION NUMBER 3 WHEREAS, Carol Roberts owner of Lot 2, US Survey 3294, which does not have frontage on a dedicated public right-of-way; and WHEREAS, the applicant would like to obtain road access by acquiring a portion ofTract H, Fourth of July Creek Subdivision Number 2, which is owned by the City of Seward. The portion is approximately 5.372 acres; and WHEREAS, Council approved Resolution 2005-31, supporting the transfer of the City owned land to the applicant, in order to provide access necessary for the development and use of her land; and WHEREAS, this transfer of land will take place by creating a new subdivision and vac~ting a lot line between her property, providing her with the newly formed Tract 2A, approxirnately16 acres. The City will continue to own two lots, Tract HI, containing approximately 9.663 acres and Tract H2, containing approximately 15.636 acres. The new subdivision will have a total acreage of approximately 41.321 acres; and WHEREAS, the subdivision is in the Resource Management Zoning District (RM), which allows for residential and commercial uses and the subdivision meets the minimum lot size and width requirements of the Seward Zoning Code; and WHEREAS, easements for utilities shall be added to the pIat; and WHEREAS, the property is accessed by Nash Road but is not served by existing public utilities, and therefore will need a subdivision instaIlation agreement, as required by the Seward Subdivision Code. As this subdivision is in a remote area an exception to a subdivision agreement might be appropriate; and 46 Seward Planning and Zoning Commission Resolution No. 2005-24 Page 2 WHEREAS, this transfer of ownership of the portion ofland owned by the City of Seward shall be done in accordance with Seward City Code 7.05, Acquisition and Disposal of Public Property; and WHEREAS, the Seward City Code 16.01.015 (B) stipulates that no preIiminaryplatofCity- owned property may be submitted to the Kenai Peninsula Borough PIannirig Commission for approval without prior consent of the City Council; and WHEREAS, as required by Seward City Code Section 16.01.015 Conditions to plat approval, property owners within 300 feet ofU.S.S. 1864, Tract A were notified of the proposed platting action, and the property was posted with a public notice sign; and WHEREAS, in accordance with Seward City Code, the Commission held a public hearing on the preliminary plat at their November 1,2005 regular meeting. NOW, mEREFORE, BE IT RESOLVED by the Seward Planning and Zoning Commission that: '. Section 1. The Commission recommends City Council and Kenai Peninsula Borough approval of the Fourth of July Creek Subdivision Number 3, subject to the following conditions: 1. A warranty deed shall be used to transfer the City of Seward's interest in the portion of Tract H which is being transferred to the applicant. 2. The value ofthe City of Seward's land which is to be transferred shall be established by an appraisal. 3. A subdivision agreement or an exception to a subdivision agreement shall be entered into before this preliminary plat is forwarded to the Kenai Peninsula Borough. 4. Utility easements shall be provided for all existing and proposed utilities. The easement for the transmission line shall be a minimum of sixty feet in width, centered on the existing transmission line. 5. A recommendation for the legal description for the subdivision is "Fourth of July Creek Subdivision Number 3, Roberts Replat". ~? Seward Planning and Zoning Commission Resolution No. 2005-24 Page 3 Section 2. This resolution shall take effect innnediately upon its adoption. PASSED AND APPROVED by the Seward Planning and Zoning Commission this 1. day of November 2005. THE CITY OF SEW ARD~ ALASKA AYES: NOES: ABSENT: ABSTAIN: VACANT: Griswold, Strobel, Smith, Roach', Hohl, Keil None None None One ATTEST: "'I~III",, ~~~,,~ Of 81:';"''.'" .z. <' ......... '4.... ~ (City Seal) :l (j....c,o'f\F'OFiqJ.:..:::~" \31 . ~ ~~l. 0' ~ i~ -+- ~\ ~ .. . SEAL . " u o. 1 "..i .... :: . :0: :s'I . II .., ~.)I . .....- ... ... e. .... ~ !'l,.VG\ ~.':: ~ U,.., '" 7'1"<: 1 '\ 9'\....,~ .:' ;,r""r.~. .' ~:..~..,..... c...-";-,..~. h ' ~ 0 \ .......... -. ..... ~ f-:",r'..~.' '1, r,... ,".- "'ilUH'\ 48 City of Seward, Alaska November 1. 2005 Planning Commission Minutes Volume 5. Page 607 In response to Griswold, Brown stated he had not received any updates on the Coastal Zone Management Plan or the Airport Master Plan. KPB Planning Commission Report by Lynn Hohl Commissioner HoW submitted a written report of the recent Borough Planning Commission meeting to the Commission and the public. HoW noted that she was working to have a teleconference set up for the Public Hearing on the Vacation of Washington Street. Other Reports, Announcements and Presentations - None Citizens' Comments on Any Subject except Those Items Scheduled For Public Hearing-None Approval of Agenda and Consent Agenda Motion (GriswoldIHohl) Approve the Agenda and Consent Agenda Griswold removed item 9B, the October 6 and 7, 2005 meeting minutes. HoW added item 10D, Discussion of possible Borough teleconference for the Vacation of Washington Street, Borough Planning Commission agenda item. Motion Passed Unanimous Consent Public Hearings Resolution 2005-24, recommending City Council and the Kenai Peninsula -J.L. Borough approval of the Fourth of July Creek Subdivision Number 3, Roberts ~ Replat. Brown stated the applicant owned the landlocked parcel to the west of the City owned Tract H, Fourth of July Subdivision. The applicant had submitted a request to purchase the approximate five (5) acres of the 28.4 acre Tract H located between the privately owned Lot 2 U.S. Survey 3294 and Nash Road. Brown noted that the applicant bad requested the purchase to provide access to the landlocked parcel and restrict other development. He stated that both Planning and Zoning and the City Council had previously approved the sale of the approximate five acres. Brown recommended the pedestrian access easements from Nash Road to the beach needed to be addressed. He stated that the replat subdivision was a very irregular shape and covered a long distance between Nash Road and the Resurrection Bay beach. He stated that the plat that was before the Commission did not note the 60 foot transmission line easement that was currently in place. He stated that staff supported the replat subject to the following conditions: 1. A warranty deed shall be used to transfer the City of Seward's interest in the portion of Tract H which is being transferred to the applicants. \~ City of Seward. Alaska Nqvember 1, 2005 Planning Commission Minutes Volume 5, Page 608 2. The value of the City of Seward' s land which is to be transferred shall be established by an appraisal. 3. Pedestrian easements going from the beach to Nash Road shall be added to the subdivision as required by the Kenai Peninsula Borough Code. 4. A subdivision agreement or an exception to a subdivision agreement shall be entered into before this preliminary plat is forwarded to the Kenai Peninsula Borough. 5. Utility easements shall be provided for all existing and proposed utilities. The easement for the transmission line shall be a minimum of sixty feet in width, centered on the existing transmission line Notice of public hearing being posted and published as required by law was noted and the public hearing was opened. Wade Roberts, outside the City. He stated he had submitted a lay down resolution for the Commission to review and approve. He noted that he had deleted and or changed several areas of the Whereas statements presented in the staff resolution. He stated he felt the issue of pedestrian easements from Nash Road to the beach had been previously addressed and he removed number 3 of section 1 in the staff resolution. No one else requested to be heard and the public hearing was closed Motion (Roach'/Strobel) Approve Resolution 2005-24 Motion (Griswold/Smith) Amend Resolution 2005-24; adopt the Resolution as presented by the applicant Brown requested to address the issue of pedestrian easements. He stated that the plat before the Commission addressed the entire subdivision not just the area west of the applicant property. He noted that Tract H of the subdivision was a very large parcel adjacent to Nash Road. Brown stated that there currently were no pedestrian easements from Nash Road to the beach noted on the replat. Corbridge stated that a letter from the City to the Borough expressing the concerns might be appropriate. He suggested the letter specifically ask the Borough to consider the public access issue and that the City would be pleased to have pedestrian access easements added to the plat as the Borough deemed appropriate. Griswold supported the dedicated public access to the beach; however she voiced concerns of the cost to plat the access to the applicant. Motion Passed Unanimous In response to Commissioner Roach', W.C. Casey, Director of Public Works, stated that should Nash Road need to be widened in the future the land needed would be taken from the northeast side of the existing road. ~..'\. .'d Y,l City of Seward. Alaska November !, 2005 Planning Commission Minutes Volume 5, Page 609 In response to Commissioner Roach', David Squires, Fire Chief, stated he had felt the applicant was Willing to workVvillitlie-City on any access issues to the property. Motion (Hohl/Smith) Amend Resolution 2005-24, first Whereas, change to read following does not have "frontage on a dedicated public right-of- way". Motion Passed Unanimous Vote on main motion, Resolution 2005-24 submitted by applicant as amended, Motion Passed Unanimous Resolution 2005-25 granting a Conditional Use Permit to the Breeze Inn for a hotel expansion on Lot 3B, Block 1, Marina Subdivision, Mindenbergs Replat in the Harbor Commercial (He) Zoning District Brown stated the applicant had applied for a Conditional Use Permit (CUP) to expand the current Breeze Inn Hotel to the North, adding 14 guest rooms, a new lobby, and conference rooIDS. He noted several concerns, the ongoing lack of parking in the Harbor, storm water run off, traffic congestion on North Harbor Street Brown stated the submitted site plan did not depict all known utilities. Brown reviewed the following staff recommended conditions: 1. One off-street parking space per guest unit shall be provided for the life of the hotel. The required parking must meet the requirements of Seward City Parking Code 15.10.215. 2. A landscaping plan shall be approved by staff and shall contribute to the retention of storm water runoff 3. Modifications to the site plan dated October 27,2005 which was approved by the Commission as a supporting document for this Conditional Use Permit, shall be approved by staff or the Commission prior to implementation. 4. There shall be an as-built survey depicting all existing and planned construction features, including utility easements and above-ground utility equipment 5. The traffic flow shall be one-way, from North to South, and the building permit review process shall include approval by staff of the location and configuration of the curb cuts. 6. There shall be no encroachments, above or below ground, on the public utility easements. 7. Modification of final approval of a conditional use permit may, upon application by the permitee, be modified by the Planning and Zoning Commission: A When changed conditions cause the conditional use to no longer conform to the standards for its approval. B. To implement a different development plan conforming to the standards for its approval. 51 ) & Sponsored by: Corbridge CITY OF SEWARD, ALASKA RESOLUTION 2006-31 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEW ARD,ALASKA, AUTHORIZING THE SALE TO CAROL ROBERTS OF A PORTION OF TRACT H, FOURTH OF JULY CREEKSUBDMSION NUMBER 2 CONSISTING OF APPROXIMATELY 5.372 ACRES WHEREAS, Seward City Code Section 7.05.120 authorizes the City Council to dispose of real property by negotiation, public auction or sealed bid; and WHEREAS, Carol Roberts submitted a request to purchase from the City the real property described as a portion of Lot H, Fourth of July Creek Subdivision Number 2, Seward Recording District, State of Alaska (the "Property"); and ' WHEREAS, the proposal before the City will result in placing the Property in private hands and on the tax rolls of the City and the Kenai Peninsula Borough; and WHEREAS, the City finds that it is in the public interest to convey the fee interest in the Property to Carol Roberts for fair market value and pursuant to the terms of the Purchase and Sale Agreement between the City and Carol Roberts, in substantial form as presented at this meeting. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The recitals are hereby incorporated by reference. The City Council finds that it is in the public interest to enter into a purchase and sale agreement with Carol Roberts by sole source negotiation pursuant to the essential terms and conditions in the Purchase and Sale Agreement presented at this meeting for the following described real property: Currently described as a certain approximately 5.372 acres portion of Tract H, Fourth of July Creek Subdivision Number. 2 and is further described in the Preliminary Plat for Fourth of July Creek Subdivision #3, Roberts Replat, which will be combined with the adjacent parcel and will have a proposed legal description of: "Fourth of July Creek Subdivision #3, Roberts Replat, Tract 2A", containing approximately 16.022 acres, attached as Exhibit A hereto and incorporated herein by reference. ~ CITY OF SEWARD, ALASKA --RESOLUTION 2006-31 The final legal description is subject to plat approval by all necessary parties. Section 2. The Property was recently appraised at $45,000 and such appraisal is accepted as fair market value. Section 3. The Purchase and Sale Agreement presented at this meeting is hereby approved and the City Manager is hereby authorized to execute the Purchase and Sale Agreement in substantial form as presented and to make such corrections and execute related documents as may be necessary to fulfill the intent of this resolution on behalf of the City of Seward. Sale of the Property is expressly conditioned upon replatting and other conditions stated in the Purchase and Sale Agreement. Section 4. This resolution shall take effect 30 days after passage and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) ~ '" 53 COUNCIL AGENDA STATEMENT Through: March 28, 2006 Clark Corbridge, City Manager CfoJL 3 -17-0(, Meeting Date: Authorizing the sale to Carol Roberts of a portion of tract H, Fourth of July Subdivision number 2 consisting of approximately 5.372 acres Agenda Item: BACKGROUND & JUSTIFICATION: Carol Roberts submitted a request to purchase from the City the real property described as a portion of Lot H, Fourth of July Creek Subdivision Number 2, Seward Recording District, State of Alaska (the "Property"). The City recently had the Property appraised and the result of the appraisal shows a market value for the Property of $45,000. Sale of the Property by the City will result in placing the Property in private ownership and on the tax rolls of the City and the Kenai Peninsula Borough. No sale would occur until the buyer completes a replat of the Property as required by borough ordinances. Carol Roberts indicated she is willing to replat the Property, pay fair market value, and purchase the Property according to the terms of the Purchase and Sale Agreement presented at this meeting. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: Sale of the property will result in payment of $45,000 to the City and make the property subject to annual property taxes. Approved by Finance Department .)d.-i.....//- ~ RECOMMENDATION: Council approves Resolution 2006- ~ authorizing the City Manager to enter into a Purchase and Sale Agreement with Carol Roberts for a portion of Lot H, Fourth of July Creek Subdivision No.2. 54 PURCHASE AND SAlE AGREEMENT This Purchase and Sale Agreement ("Agreement") is made as of TBD between Carol Roberts, a Married Woman ("Purchaser") and The City of Seward ("Seller"), organized as a first class home-rule municipality under the laws of the State of Alaska. Purchaser and Seller agree as follows: 1. Purchase and Sale: Subject to the terms and conditions of this Agreement, Seller agrees to sell and Purchaser agrees to purchase good and marketable title in fee simple to the real property described as follows (the "Property"): Currently described as a certain approximately 5.372 acres portion of Tract H, Fourth of July Creek Subdivision Number. 2 and is further described in the Preliminary Plat for Fourth of July Creek Subdivision #3, Roberts Replat, which will be combined with the adjacent parcel and will have a proposed legal description of: "Fourth of July Creek Subdivision #3, Roberts Replat, Tract 2A", containing approximately 16.022 acres, attached as Exhibit A hereto and incorporated herein by reference. The final legal description is subject to plat approval by all necessary parties and subject only to the "Permitted Exceptions" as defined in Section 5 below. 2. Purchase Price and Pavment Terms: a. The purchase price for the Property shall be Forty five thousand dollars ($45,000), payable in immediately available funds. One thousand dollars ($1,000) (the "Deposir) shall be paid to the Escrow Agent described in paragraph 4 upon Purchaser signing and delivering this Agreement to the Seller. The balance of the purchase price plus any other amounts due the Seller under this Agreement shall be paid to Seller at Closing. b. In addition to payment of the purchase price, Purchaser shall pay all costs and fees, including but not limited to survey charges, filing and application fees, certificate to plat costs, title insurance and recording fees, as may be necessary to properly subdivide and plat the tract of land from which the Property to be purChased will be created; provided, Purchaser shall only be responsible for paying fees and/or charges for services and other items that are actually ordered directly or approved in advance by Purchase Sales Agreement April 2006 -Page 1 of9- .....- Purchaser. Should the sale fail to close for any reason, Purchaser shall not be reimbursed by the Seller for any such costs related to the platting process. e&t$:Ml{e and Sale Agreement 3. Referendum: Under the charter and code of Seller, the resolution approving this Agreement may be subject to a referendum and the sale approval may be voided. Nothing in this Agreement shall affect or reduce the rights of the voters of the City of Seward to reject the City Council's approval of this Agreement by referendum. Purchaser agrees that it shall have no rights under this Agreement unless and until a resolution is approved by the voters of the City of Seward (in the event a referendum petition is timely filed and accepted). Purchaser shall not be entitled to any damages or other relief against the Seller in the event the resolution is not approved by the voters. If the resolution approving this Agreement is voided by such referendum action, this Agreement shall terminate, the Deposit shall be returned to Purchaser, and neither party shall have any further obligation hereunder. 4. Closina: The parties shall cause an escrow (the "Escrow") to be established with First American Title Company of Alaska - Seward Office ("Escrow Agent'). Consummation of the sale (the "Closing") shall take place through the Escrow at the offices of the Escrow Agent, or such other place as Seller and Purchaser agree in writing. Purchaser shall be given One Hundred Eighty (180) days from the effective date of the resolution approving the sale to complete the subdivision and platting process to create the parcel to be the Property and to close this transaction. Closing of the transaction shall occur within thirty (30) days from: (i) Purchaser's completion of all items necessary to create the subdivision and plat of the Property; or (ii) expiration of the legal timeframe for validly initiating a petition for referendum (or if applicable, referendum vote), whichever occurs later. In the event this transaction is not closed within One Hundred Eighty (180) days of the effective date of the resolution approving this transaction, this Agreement shall terminate unless extended in writing by mutual agreement of the parties. Notwithstanding the foregoing, the Seller and Purchaser shall cause the following to occur at the Closing: A Quit Claim Deed conveying the Property (including after acquired title) to Purchaser, duly executed and acknowledged by Seller, shall be recorded in the Records of the Seward Recording District, Third Judicial District, . State of Alaska. a. Purchaser shall pay to Seller the amount set forth in section 2 of this Agreement. b. The title company shall issue to Purchaser the title insurance policy described in section 7 of this Agreement. 5. Title: Seller will deliver to Purchaser, at Purchaser's expense, a commitment for title Purchase Sales Agreement April 2006 -Page 2 af9- ..' '- ~.",. :lfi insurance (the "Preliminary Commitmenf') preliminary to the issuance of the title policy referred to in paragraph 7 of this Agreement, together with copies of all underlying exceptions described in the Preliminary Commitment. The Property is to be sold and conveyed subject to: (a) title to the Property being vested solely in Seller and in Seller's name, and (b) reservations, restrictions and easements as disclosed in the Preliminary Commitment and approved by Purchaser. Purchaser shall be entitled to object to any exceptions stated in the Preliminary Commitment by delivering written notice to Seller and Escrow Agent on or before fifteen (15) days after the receipt of the Preliminary Commitment, supplemented with the copies of the underlying exceptions described therein, which notice shall specify the matters to which Purchaser objects. If Purchaser objects to any such matters, Seller shall have fifteen (15) days after receiving written notice from Purchaser to attempt to eliminate the matters to which Purchaser has objected or to cause Escrow Agent to insure over said matters. Seller shall notify Purchaser in writing, within the thirty (30) day period, if Seller is unable or unwilling to eliminate said matters or cause Escrow Agent to insure over said matters. Purchaser may then elect, by written notice to Seller and Escrow Agent, either to waive the objectionable matters and proceed to Closing or to terminate this Agreement and receive a refund of the Deposit, and the parties shall have no further obligations to each other under this Agreement. With respect to any amendments or updates to the Preliminary Commitment prior to Closing, if there are any exceptions or matters not previously disclosed to which Purchaser objects, Purchaser may then elect to object to said matters as provided above; to terminate the Agreement and receive a refund of the Deposit; or waive the objectionable matters and proceed to Closing. Permitted ExceDtions: Notwithstanding the immediately preceding paragraph, Purchaser may not object to any of the following title matters: real property taxes or assessments due after Closing; the restrictive covenant regarding removal of vegetation in Section 12 herein; those certain plat notes and restrictions included by Seller in the subdivision and platting documents as necessary to conform with the requirements of state and local law; easements consistent with Purchaser's intended use of the Property; reserved mineral rights; and rights reserved to federal patents. All items to which Purchaser does not object under the immediately preceding paragraph, plus all items described in this paragraph, are referred to herein as "Permitted Exceptions.. 6. Deed' -' Title to the Property shall be conveyed to Purchaser by a Quit Claim Deed (the "Deed") duly executed by Seller and recorded at the Closing. The Deed shall be in the form and content acceptable to Seller and Purchaser, conveying to Purchaser good and marketable title consisting of a fee simple interest subject only to the Permitted Exceptions. 7. Deliverv of Title Policv. At Closing, or as soon as practical thereafter, Seller shall cause to be delivered to Purchaser the owner's title insurance policy required by this Agreement, which policy shall insure Purchaser's fee simple interest in the Property in the amount of the Purchase price, and which shall contain no exceptions other than the general exclusions Purchase Sales Agreemcot April 2006 .Page 3 of 9- 57 and exceptions common to the form of policy issued, and the Permitted Exceptions. 8. Closina Costs:. All Clo~ing costs of the transaction, unless othelViise provided in this Agreement, shall be divided as follows: Seller shall pay the following Closing costs: a. Any outstanding or pending assessments or liens b. Seller's attorney fees and costs c. Real Property taxes will be prorated to date of closing and if applicable. paid through escrow . Purchaser shall pay the following Closing costs: a. All recording fees b. All document preparation fees c. All escrow closing fees d. Owner's standard coverage title insurance described herein (Required) e. Any AL TA title insurance policies desired by Purchaser (Optional) f. All Purchaser's attorney fees and costs g. All appraisals, commitment fees, points. and financing costs h. Real Property taxes will be prorated to date of closing and, if applicable, paid through escrow i. All costs not otherwise specified but related to this transaction and not otherwise agreed to be paid by the Seller Notwithstanding the above. if the escrow fails to close due to the default of a party, the defaulting party shall pay any escrow and title policy cancellation fees. From the date of mutual acceptance of this Agreement until Closing, Seller shall agree to maintain the Property in its present condition. 9. Seller's Conditions Precedent: The parties acknowledge that the Seller's obligation to close on the purchase of the Property shall be subject to the following: a. Receipt of approval by Purchaser of Purchaser's inspection of the Property not revealing any basis upon which Purchaser timely terminates this Agreement as provided in paragraph 10 below. b. Approval of this Agreement by The City Council for the City of Seward and approval by voters in a referendum election, if any. c. No litigation or other claim which has any probability or reasonable likelihood of success, challenges or controverts the Purchaser's action to acquire the Property. Purchase Sales Agreement April 2006 -Page 4 of9- h~ d. Completion by Purchaser of all items necessary to subdivide and plat the Property to be purchased. e. Purchaser to pay all amounts required by this Agreement. 10. ---Inspection:---- Purchaser, her agents and contractors, shall be given reasonable access to the Property to conduct such tests and inspections as Purchaser deems appropriate; provided, however, Purchaser shall give Seller reasonable notice of Purchaser's intention to access the Property. If Purchaser reasonably determines from the inspections or testing that any condition of the Property does not meet Purchaser's satisfaction, Purchaser shall have the right within thirty (30) days after the effective date of this Agreement to object to such matter by delivering written notice to Seller specifying the matters to which Purchaser objects. Seller shall have twenty (20) days after receipt of the written notice to cure the deficiency, at Seller's expense. Seller shall notify Purchaser in writing, within the twenty (20) day period, if Seller is unable to cure the deficiency. Purchaser may then elect, by written notice to Seller, either to waive the objectionable matter and proceed to Closing or to terminate this Agreement and the parties shall have no further obligation to each other under this Agreement. 11. prooertv Acceoted "As-is". Purchaser acknowledges that she has inspected the Property and accepts the same "as-is" and without reliance on any expressed or implied representations or warranties of Seller or agents of Seller, as to the actual physical condition or characteristics thereof of the Property. Seller expressly makes no warranties as to the physical condition of the Property and all inspection obligations rest with the Purchaser. Purchaser shall provide at her own cost, on-site septic system and water and fire protection. 12. Restrictive Covenant. During the construction of any improvements on the Property, Purchaser shall exercise as much care as is reasonably possible to retain natural vegetation, trees, shrubs, and other similar growth. In no event shall more than thirty percent (30%), on a square foot basis, of the natural vegetation, trees, and shrubs on the Property, be removed from the Property. Clearing of vegetation or trees and the like for purposes other than as reasonably necessary for construction, and reasonable and ordinary ownership, use, and enjoyment of the Property, shall be limited to the removal of dead or dangerous trees and limbs. The preceding restrictions shall be placed in the Deed, plat, and/or recorded, in Seller's discretion, as a restrictive covenant against the Property. 13. Remedies: a. If Purchaser (a) fails, without legal excuse, to complete the purchase of the Purchase Sales Agreement April 2006 -Page S of9- ,. r t;Q Property, or (b) otherwise defaults under this Agreement, Seller shall be entitled to retain the one thousand dollars ($1,000) Deposit deposited by Purchaser with the Escrow Agent pursuant to Section 2.a above, and such retention by Seller of this one thousand dollars ($1,000) Deposit shall be the sole and exclusive remedy available to Seller for such failure or default by Purchaser; provided, however, Purchaser shall remain responsible to pay all subdivision and platting costs owed to the Seller or third parties and Purchaser shall not be reimbursed by Seller for any subdivision and platting costs already paid by Purchaser. b. If Seller fails, without legal excuse, to complete the sale of the Property, then the Deposit shall be retumed to Purchaser. Retum by Seller of the one thousand dollars ($1,000) Deposit to Purchaser shall be the sole and exclusive remedy available to Purchaser for such failure or default by Seller. All costs relating to subdivision and platting shall remain the responsibility of Purchaser. 14. Costs and Fees: If either party institutes suit concerning this Agreement, the substantially prevailing party shall be entitled to its attorneys' fees and costs. 15. Waiver: No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of a breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 16. Assianment: This Agreement is binding on the heirs, successors, and assigns of the parties, but shall not be voluntarily assigned by either party without prior written consent of the other party, which consent shall not be unreasonably withheld. 17. Commissions: Each party represents and warrants to the other that it has not engaged the services of any broker, finder or other person who would be entitled to any commission or fee in respect to the subject matter of this Agreement and each shall indemnify the other against any loss, cost, liability or expense incurred by the other as a result of any claim asserted by any such broker, finder or other person on the basis of any brokerage or similar arrangement or agreement made or alleged to have been made. 18. Notices: No notice, consent, approval or other communication provided for herein or given in connection with this Agreement shall be validly given, made, delivered or served unless it is in writing and delivered personally, sent by overnight courier or sent by registered or certified United States mail, postage prepaid, with return receipt requested to: Seller: Purchase Sales Agreement Apri12006 -Page 6 of 9- GO Purchaser: City of Seward P. O. Box 167 Seward, Alaska 99664 A TIN: City Manager Carol Roberts POBox 1175 Seward, Alaska 99664 or to such other addresses as either party may from time to time designate in writing and deliver in a like manner to the other party. Notices, consent, approvals, and communications given by mail shall be deemed delivered upon the earlier of three days after deposit in the United States mail in the manner provided above or immediately upon delivery to the respective addresses set forth above, if delivered personally or sent by overnight courier. 19. Entire Aareement: This document and its attachments contain the entire Agreement between the parties. It may not be modified except in writing and signed by all parties. 20. Construction of Aareement: Tha captions of the paragraphs of this Agreement are for convenience only and shall not govem or influence the interpretation hereof. This Agreement is the result of negotiations between the parties and, accordingly, shall not be construed for or against either party regardless of which party drafted this Agreement or any portion thereof. 21. Survivina Covenants: The provisions of this Agreement shall survive the delivery of the Deed. 22. Time is of the Essence: Time is of the essence of this Agreement. 23. Exclusive Aareement This Agreement shall constitute an exclusive arrangement between the parties. Seller shall not market, sell, negotiate for the sale of, or conveys the Property to any other person, provided that Purchaser has not delivered notice that it will not close due to an unsatisfied condition. 24. Controllina Law and Venue: This Agreement shall be govemed by, construed under and enforced in accordance with the laws of the State of Alaska, and venue for actions between the parties arising out of or related to this Agreement shall be in the Alaska Superior Court, Third Judicial District, Anchorage, Alaska. Purchase Sales AgreementoApril 2006 -Page 7 of9- . . r~l 25. Further Assurances: Whenever requested to do so by the other party, Seller or Purchaser promptly and expeditiously shall execute, acknowledge and deliver any and all such conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents and any and all further instruments and documents as may be reasonably necessary, expedient, or proper in order to complete any and all conveyances, transfers, sales, and assignments herein provided, and to do any and all other reasonable acts and to execute, acknowledge and deliver any and all documents as so reasonably requested in order to carry out the intent and purpose of Purchase Sales Agreement April 2006 -Page 8 of9- t'0 {;Iv", d. this Agreement, including but not limited to subdividing and platting the tract containing the Property and the parcel to be the Property. 26. Possession: Purchaser shall receive possession of the Property at the closing and recording of the Quit Claim deed. Executed this TSD day of TBD.TBD. Seller: The City of Seward, Alaska Purchaser: Carol Roberts Clark Corbridge, City Manager Carol Roberts ATTEST: ~WdJ:~~SI l;M\; (City Seal) Purchase Sales Agreement April 2006 -Page 90f9- ,J '.. 63 City Owned Lot 1 U.S.S. 3294 North Roberts Prope y Lot 2 U.S.S. 3 9 Proposed Sale Property of 5.372 Acres Current City Owned Parcel Tract H, Fourth of July Creek Subdivision No 2 City owned-l Tract H, Fourth of July Creek , Subdivision, No 2, .b9t 1 1 Sponsored by: Corbridge CITY OF SEWARD, ALASKA RESOLUTION 2006-32 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE LEASE OF LAND TO THE SEWARD RACING LIONS CLUB OF THE REAL PROPERTY DESCRIBED AS 14534028, BLOCK 5 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER; 14534044, FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER SUB. UNSUBDlVIDED REMAINDER OF BLOCK 6; 14534042 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER ADDN. NO.1 LOT 2 BLOCK 6; 14534043 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTERADDN. NO.1 LOT 3 BLOCK 6; AND 14534029 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER LOT 1 BLOCK 6 WHEREAS, Seward City Code Section 7.05.120 authorizes the City Council to dispose of real property by negotiation, public auction or sealed bid; and WHEREAS, the Seward Racing Lions Club submitted a request to lease land from the City to use as a racetrack; and WHEREAS, the Seward Planning and Zoning Commission approved the use of the land as a racetrack as an unlisted use, subject to conditions stated in its Resolution 2005-13 adopted May 4, 2005; and WHEREAS, the City finds that it is in the public interest to lease the land to the Seward Racing Lions Club for less than fair market value and pursuant to the terms of a Lease Agreement in substantial form as presented at this meeting. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The recitals are hereby incorporated by reference. The City Council fmds that it is in the public interest to enter into a lease agreement with the Seward Racing Lions Club by sole source negotiation pursuant to the essential terms and conditions in the form of lease presented at this meeting. Section 2. The form of Lease Agreement presented at this meeting is hereby approved and the City Manager is hereby authorized to execute the Lease Agreement in substantial form as attached hereto and to make such corrections and execute related documents as may be necessary to t"!.. .... V';) CITY OF SEWARD, ALASKA RESOLUTION 2006- fulfill the intent of this resolution on behalf of the City of Seward. Section 3. This resolution shall take effect 30 days after passage and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska this 28th day of March 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) ./ . 66 Council Agenda Statement Agenda Item: Entering into a lease agreement with the Seward Rating Lions Club for land as destribed helow in the Fourth of July Creek Subdivision, Seward Marine Industrial Center . Through: Marth 28, 2006 Clark Corbridge, City Manager {J,J., 3 .'7 -r;(, Mecmng Date: BACKGROUND & JUSTIFICATION: The Seward Racing Lions Club asked the City for pennission to use a portion of City .owned land to operate a racetrack for certain motorized vehicles. The property is described as: Description of Leased Land. The Leased Land is located in the City of Seward, Alaska. The Leased Land is described as follows: 14534028, Block 5, Fourth of July Creek Subdivision; Seward Marine Industrial Center (containing approximately 4.28 acres) 14534044, unsubdivided remainder of Block 6, Fourth of July Creek Subdivision; Seward Marine Industrial Center (containing approximately 6.08 acres) 14534042, Lot 2 Block 6, Fourth of July Creek Subdivision; Seward Marine Industrial Center Addn. No.1 (containing approximately 1.07 acres) 14534043, Lot 3 Block 6, Fourth of July Creek Subdivision; Seward Marine Industrial Center Addn. No.1 (containing approximately .60 acres) 14534029, Lot 1 Block 6, Fourth of July Creek Subdivision; Seward Marine Industrial Center (containing approximately .23 acres) All within the Seward Recording District, Third Judicial District, State of Alaska, collectively the "Leased Land." The Leased Land contains approximately 12.26 acres and is generally depicted on the attached Exhibit A, which is. incorporated herein by reference. , '. 67 Resolution 2006- Page Two The Seward Planning and Zoning Commission passed its Resolution 2005-13 on May 4, 2005, authorizing the operation of a racetrack as an unlisted use, subject to specified conditions. Exhibit B to the fonn of the Lease presented at this meeting incorporates the conditions stated in Resolution 2005-13. The City recognizes that a race track fulfills a service in the community and supports leasing the property for the purpose of a racetrack to be operated by the Seward Racing Lions Club. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: This Lease is for a tenn of one year commencing April 26, 2006. The annual lease rental for the tenn of this Lease is $1.00. Approved by Finance Department ~~ RECOMMENDATION: Council approve Resolution 2006-~ authorizing the City Manager to enter into a lease in substantial fonn as presented at this meeting, with Seward Racing Lions Club for land in the Fourth of July Creek Subdivision to operate a race track. ~ '- 68 LEASE AGREEMENT between CITY OF SEWARD, ALASKA and SEWARD RACING LIONS CLUB #68816 Effective Date: r ] 69 TABLE OF CONTENTS ARTICLE 1 - LEASED LAND.................................................................................................... 1 1.1 Description of Leased Land.................................................................................... 1 1.2 Covenant of Quiet Enjoyment; Warranty of Title .................................................~. 2 1.3 Survey of Leased Land ............................................................................................2 1.4 Property Accepted................................................................................................... 3 1.5 Permits ......................................... ................ ................................... ........... ............. 3 1.6 Plotting....... .......... ........... ........................................................................................ 3 ARTICLE 2 - LEASE TERM...................................................................................................... 3 2.1 Lease Term .............................................................................................................. 4 2.2 Lease Subject to Referendum .................................................................................. 4 ARTICLE 3 .............................................................................. ................. .......;............................ 4 3.1 Use of Leased Land................................................................................................. 4 3.2 Obligations of LESSEE ....................... ......................................................... ........... 4 3.3 No Preferential Rights to Use Public Facilities ..................................................... 4 3.4 Adequacy of Public Facilities .................................................................................5 3.5 Tariffs and Other Service Fees ............................................................................... 5 3.6 Time for Payment of Utilities and Taxes................................................................. 5 3.7 Other Uses ................................. .............................. ....... ........................................ 5 ARTICLE 4 - UTILITIES AND RIGHTS OF ACCESS.......................................................... 5 4.1 Utilities........... ......................................................................................................... 5 4.2 Third-Party Improvements ...................................................................................... 6 4.3 Easements .................................... ............................................ ............................... 6 ARTICLE 5 - CONSTRUCTION BY LESSEE......................................................................... 7 5.1 Improvements on Leased Land ............................................................................... 7 5.2 City Review of Construction ................................................................................... 8 ARTICLE 6 - RETURN OF LEASED LAND/SITE CONDITIONS ...................................... 8 6.1 Return of Leased Land in Original Condition ........................................................ 8 6.2 Return of Leased Land in Different Condition ....................................................... 9 ARTICLE 7 - FORCE MAJEURE ............................................................................................. 9 ARTICLE 8 - LESSEE'S ACTS OF DEF AUL T ....................................................................... 9 ARTICLE 9 - REMEDIES FOR DEF AUL T BY LESSEE .................................................... 10 ARTICLE 10 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE ....................... 12 10.1 Real Property Improvements ................................................................................ 12 10.2 Personal Property ................................................................................................. 12 ARTICLE 11 - ASSIGNMENT OR SUBLEASE .................................................................... 12 11.1 Assignment of Lease or Subleasing....................................................................... 12 11.2 Assignment of Lease for Security .......................................................................... 13 11.3 Assignment to Affiliate .......................................................................................... 14 ARTICLE 12 - LESSEE'S DUTY TO DEFENDIINDEMNIFY ............................................14 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 -PAGE iOF 30- 1\l ARTICLE 13 - CITY'S DUTY TO DEFENDIINDEMNIFY .................................................14 ARTICLE 14 - INSURANCE .................................................................................................... 14 14.1 Minimum Insurance Requirements ....................................................................... 14 14.2 Subrogation Rights Waived................................................................................... 15 ARTICLE 15 - CONDEMNATION .......................................................................................... 16 ARTICLE 16 _ ARBITRATION ...............................................................................................17 16.1 Arbitration ................................. ....... ............................. ......... ............ .................. 17 ARTICLE 17 - MAINTENANCE AND REPAIRS ................................................................. 18 17.1 Normal Maintenance ............................................................................................ 18 17.2 Safety Issues ........................................................................................................... 18 17.3 Cost of Repairs...................................................................................................... 19 ARTICLE 18 _ ENVIRONMENTAL CONCERNS ................................................................ 19 18.1 Hazardous Materials ............................. ................................................ ............... 19 18.2 Permits and Reporting .......................................................................................... 21 ARTICLE 19 _ ESTOPPEL CERTIFICATES ........................................................................ 22 ARTICLE 20 - CONDITIONS AND COVENANTS .............................................................. 22 ARTICLE 21 - NO WAIVER OF BREACH ........................................................................... 22 ARTICLE 22 - TIME OF THE ESSENCE .............................................................................. 23 ARTICLE 23 _ COMPUTATION OF TIME........................................................................... 23 ARTICLE 24 _ SUCCESSORS IN INTEREST .......................................................................23 ARTICLE 25 - ENTIRE AGREEMENT .................................................................................23 ARTICLE 26 _ GOVERNING LAW........................................................................................ 23 ARTICLE 27 - PARTIAL INVALIDITY................................................................................. 23 ARTICLE 28 _ RELATIONSHIP OF PARTIES .................................................................... 24 ARTICLE 29 _ INTERPRETA TION........................................................................................ 24 ARTICLE 30 _ CAPTIONS ....................................................................................................... 24 ARTICLE 32 _ AMENDMENT .................................................................................................24 ARTICLE 32 _ NOTICES ...................... ............................................................................... ..... 24 ARTICLE 33 _ FIRE PROTECTION.......................................................................................25 EXHIBIT A: Leased Land EXHIBIT B: Use and Development of the Leased Land LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE ii OF 30- . '. 11 LEASE AGREEMENT TIDS 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 SEWARD RACING LIONS CLUB #68816 (the "LESSEE"), whose mailing address is P.O. Box . Seward Alaska 99664. WHEREAS, the City Council of CITY has determined that continued lease of the Leased Land (as defmed 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 present or future environmental regulations or controls with respect to LESSEE's operations on the Leased Land during the lease term. 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: 14534028, Block 5, Fourth of July Creek Subdivision, Seward Marine Industrial Center (containing approximately 4.28 acres) 14534044, unsubdivided remainder of Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center (containing approximately 6.08 acres) 14534042, Lot 2 Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center Addn. No.1 (containing approximately 1.07 acres) 14534043, Lot 3 Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center Addn. No.1 (containing approximately .60 acres) 14534029, Lot 1 Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center (containing approximately .23 acres) All within the Seward Recording District, Third Judicial District, State of Alaska, collectively the "Leased Land." LEASE AGREEMENT between CIlY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 1 OF 30- ~2. I The Leased Land contains approximately 12.26 acres and is generally depicted on the attached Exhibit A, which is incorporated herein by reference. The legal description is as follows: 14534028, BLOCK 5 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER; 14534044, FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER SUB. UNSUBDNIDED REMAINDER OF BLOCK 6; 14534042 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER ADDN. NO.1 LOT 2 BLOCK 6; 14534043 FOURTH OF JULY CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER ADDN. NO.1 LOT 3 BLOCK 6; AND 14534029 FOURTH OF 1UL Y CREEK SUB. SEWARD MARINE INDUSTRIAL CENTER LOT 1 BLOCK 6 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: a) LESSEE shall have the quiet enjoyment and possession of the Leased Land for the full term of this LEASE; b) CITY is unaware of any prior conflicting use of the Leased Land that would adversely affect LESSEE's intended use of the subject parcel. 1.3 Survey of Leased Land. If not completed prior to execution of this LEASE, within ninety (90) days from the date of this LEASE, LESSEE, at its sole cost, will cause the Leased Land to be surveyed and replatted by a land surveyor registered in the State of Alaska. A copy of the drawing and description of the Leased Land based upon this survey shall be attached to this LEASE as Exhibit B and shall be incorporated herein by reference. In such event, the description of the Leased Land in Exhibit B shall supersede the description in Exhibit A, and shall be considered the correct description of the Leased Land for all purposes under this LEASE. LESSEE shall provide CITY a copy of any and all surveys within ten (10) days of LESSEE's receipt of any and all surveys. CITY shall have the right to comment upon any and all surveys, but the exercise of this right shall not imply any obligation to do so or any obligation to do so in any particular way. If CITY objects to the surveyor's conclusions in the survey, CITY may give written notice to LESSEE of CITY's objection within thirty (30) days of receipt of the survey. CITY shall then engage a second land surveyor registered in the State of Alaska at CITY's expense to make a second survey of the Leased Land. CITY shall provide LESSEE a copy of the second survey within ten (10) days of CITY's receipt of the second survey. Unless CITY and LESSEE agree which survey is acceptable, the acceptable LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 -PAGE 2 OF 30- iM.~ .~ survey shall be determined in accordance with the arbitration provisions contained in Article 16 of this LEASE. 1.4 Property Accepted "As-is. " LESSEE acknowledges that it has inspected the Leased Land and accepts the same lias-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 therefore 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 ofFish 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 prepared by LESSEE under Section 1.3 herein. If LESSEE requests a replat of the Leased Land prior to that time, CITY shall assist LESSEE in the preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's costs in assisting with the preparation and filing of the replat. LESSEE agrees to sign the plat and any other documents necessary to complete the platting or replatting of any area including all or a portion of the Leased Land. LESSEE shall accept reasonable restrictions, easements. or plat notes as may be required by CITY or other governmental authorities as a condition to filing the plat of the Leased Land or the plat of CITY -owned real property adjacent to the Leased Land. ARTICLE 2 - LEASE TERM LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 -PAGE 3 OF 30- .,J ..... 74 2.1 Lease Term. The term of this LEASE (the "Lease Term") shall be in accordance with CITY's authorization Resolution No. 2006- (the "Resolution"). The Lease Term shall commence on the date this LEASE is signed by CITY and that date shall be the effective date of this LEASE (the "Effective Date"). Subject to Section 2.2 below, the Lease Term shall run for one year from the Effective Date. 2.2 Lease Subject to Referendum. LESSEE understands and assumes the risk that under the Charter and Code of CITY this LEASE may be voided by referendum. LESSEE agrees that if the Resolution approving this LEASE is the subject of a referendum petition filed with the Clerk of CITY, LESSEE shall have no rights unqer this LEASE: unless and until the Resolution is approved by the voters of the City of Seward, and LESSEE shall not be entitled to any damages or any other relief against CITY in the event the Resolution is not so approved. ARTICLE 3 - USE OF LEASED LAND 3.1 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 ofCITYtb be in the public interest. 3.2 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 ~ondition existing prior to this LEASE or in better condition upon termination of this LEASE. b) LESSEE agrees to prohibit the use, keeping, stomge, or disposal of Hazardous Materials on the Leased Land except as permitted in Article 18 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 shall opemte a mcetmck on the Leased Land in accordance with Resolution No. 2005-13 of the Seward Planning and Zoning Commission and Exhibit B hereto. Any changes to this site require CITY approval, through the City Manager, prior to additional construction. LESSEE's failure to obtain CITY approval of any changes to the site development plan or LESSEE's failure to install the improvements according to the site development plan shall be a LESSEE Act of Default under this LEASE. 3.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 4 OF 30- I .' '. t"'I:; Iv 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 shal1 not be entitled to any exclusive use. 3.4 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. 3.5 Tariffs and Other Service Fees. CITY shall have the right to make amenclmeJ;lts to its tariffs, regulations and scheduled fees from time to time even if those adjustinents 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. 3.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related to operations on the Leased Land and LESSEE's iIlterest 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 3.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and additional tenants for spac~j11Cluding those who would be in competition with LESSEE or who might be interested in leasing the Leased Land should this LEASE be tenninated for any reason. ARTICLE 4 - UTILITIES AND RIGHTS OF ACCESS 4.1 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, LEASE AGREEMENT between CIlY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE S OF 30- 76 this does not preclude severa1lessees 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 over sizing shall be bome 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 over sizing pipe or electrical conduit shall be limited to the difference between the supplier's price to provide the size required to serve its facility and the price of the oversized material required by CITY or utility company. LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent, investment, or costs incurred by LESSEE with respect to any required permits for construction or operation of 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. 4.2 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 therefore, and the cost and expense thereof shall be bome 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. 4.3 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 AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 6 OF 30- 77 LEASE, CITY and LESSEE each shall, at the request of the other, join with each other in executing and delivering such documents from time to time and throughout the Lease Term as may be appropriate, necessary, or required by the several governmental agencies (including the City of Seward), public utilities and other users or tenants of CITY land for the purpose of granting such easements and dedications; provided, however, that such easements and dedications and similar rights do not unreasonably interfere with LESSEE's operations. The costs of locating or relocating any public easements or restrictions of record including any relocation of public road, railroad, utility, or other easements shall be at the sole cost and expense of the party requesting the relocation. CITY shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or other public property. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. ARTICLE 5 - CONSTRUCTION BY LESSEE 5.1 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) LESSEE shall cause to be operated on the Leased Land a racetrack by September 30, 2006. b) The cost of any construction, reconstruction, demolition, or of any changes, alterations or improvements, shall be borne and paid for by LESSEE. c) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. d) 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. e) 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. f) Any general contractor employed by LESSEE or its sublessees 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 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 7 OF 30- .'8 commencement of construction. If the cost of the work is less than FIFTY THOUSAND DOLLARS ($SO,OOO.OO), 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)1 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). g) CITY may, as contemplated by Alaska Statutes, give notice of non-responsibility for any improvements constructed or effected by LESSEE on the Leased Land. h) 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. . 5.2 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 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 6 - RETURN OF LEASED LAND/SITE CONDITIONS 6.1 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 1 Affiliate IIlC8IIS a penon that diJmly or inclirecl1y lbrouSb one or more intermediarica c:ontrols, or is controlled by, or is under commoa control with, a corporation subject to !he Alaska Corporation Code. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 .PAGE 8 OF 30- n 79 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. 6.2 Return of Leased Land in Different Condition. Notwithstanding the provisions of Section 7.1 above, upon termination of this LEASE for any reason LESSEE may return the Leased Land in a re-contoured or graded clean, safe, and stable condition different from its original condition provided CITY grants written approval of LESSEE's plans for development of the Leased Land contours, including its plans for material extraction and final grade. ARTICLE 7 - 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 8 - LESSEE'S ACTS OF DEFAULT Each of the following shall be a "LESSEE Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, anyone or more of the following events: 8.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20) days from the due date thereof, ~ rent required to be paid under this LEASE. 8.2 Failure by LESSEE to observe, fulfill or perform any covenants, conditions or agreements on its part to be observed or performed under this LEASE 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. 8.3 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 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 9 OF 30- 841 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. 8.4 Violation by LESSEE of any laws or regulations of the United States, or of the State of Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States Government applicable to LESSEE's use of the Leased Land, pursuant to the regulations of such agencies, for a period of sixty (60) days after written notice specifying such violation has been given by the agency charged with the enforcement of such laws, regulations or permits to LESSEE; provided, however, if such violation be such that it cannot be corrected Within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the violation is corrected. Furthermore, if LESSEE shall contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined provided such proceedings are diligently pursued; provided, however, that any such extension of time shall not be effective if the effect of the interim administrative or judicial action is to cause a stoppage, interruption or threat to the activities of any person or entity other than those of LESSEE. 8.5 Failure by LESSEE to opemte a racetmck on the Leased Land and place the facilities in service by September 30, 2006. 8.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public rights of way clear. ARTICLE 9 - 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: 9.1 CITY may distmin for rent due any of LES SEE's personal property which comes into CITY's possession. lIDs 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. 9.2 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 dis1J'!lin under Section 9.1 above, LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 10 OF 30- 81 remove all personal property of LES SEE from the Leased Land. Such personal property may be stored in place or may be removed and stored in a public Wflreho~_or elsewhere at the cost of LESSEE all without service of notice or resort to legal process, all of which LESSEE expressly waives. -" 9.3 In addition to the above, CITY may: a) Declare this LEASE terminated; b) Collect any and all rents due or to become due from subtenants or other occupants of the Leased Land; c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover an amount to be due immediately on breach equal to the unpaid rent for the entire remaining term of this LEASE. e) Recover all damages incurred by CITY by reason of LESSEE's default or breach including, but not limited to, the cost of recovering possession of the Leased Land, expenses of reletting including costs of necessary renovation and alteration of the premises, reasonable attorney's fees and any real estate commissions actually paid. f) Remove or require the removal of any improvements constructed without CITY approval or constructed contrary to site development plans approved by CITY and recover all costs and expense incurred by CITY to remove violating improvements. 9.4 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. 9.5 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. 9.6 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 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 11 OF 3()" 82 \., exercise by CITY of anyone 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 byCI'fY 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. 9.7 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 10 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 10.1 Real Property Improvements. All improvements constructed by LESSEE 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. 10.2 Personal Property. LESSEE, upon termination of this LEASE for any reason other than default by LESSEE, 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 11- ASSIGNMENT OR SUBLEASE 11.1 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. LESSEE may sublease a portion of the Leased Land or buildings or improvements located thereon only with CITY's prior written consent, which consent shall be granted if: a) The use of the Leased Land by the proposed sublessee is compatible with the use of adjacent lands; b) The proposed use is a permitted use under the then existing zoning regulations and comprehensive land use plan; LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 12 OF 30- ~3 c) LESSEE has made a written request to sublease a portion of the Leased Land or buildings or improvements located thereon and provided CITY with a copy of the sublease agreement. The sublease agreement shall state that it is subject to and subordinate to this LEASE and any amendments thereto; J d) The sublessee shall agree to defend, indemnify and hold harmless the CITY, its officials, employees, and agents, from any and all liability or claims for damages, including personal injuries, death and property damage arising out of or resulting from sublessee's use of the Leased Land by themselves, their agents, contractors, guests or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors; e) LESSEE's full faith and credit shall remain obligated under this LEASE as though the sublease had not taken place; t) The sublessee assumes and agrees in writing to pay and perform all of the obligations of LESSEE hereunder including, without limitation, Article 18 - Environmental Concerns; and g) The sublessee has a credit-worthiness demonstrated to be equal to or better than LESSEE and has opemting experience suitable to manage any facilities located on the Leased Land. 11.2 Assignment of Lease for Security. Notwithstanding Section 11.1 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 opemtions 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 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 13 OF](). e4 b) If the default for which notice is given is a breach of Section 8.3, CITY shall not exercise any of the remedies afforded to it under Article 9 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 ofits 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. 11.3 Assignment to Affiliate. Notwithstanding Section 11.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2i 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 12 - LESSEE'S DUTY TO DEFEND/INDEMNIFY LESSEE shall defend, indemnify and hold harmless CITY, its officials, employees, agents, and contractors from any and all liability or claims for damages, including personal injuries, environmental damage, death and property damage arising out of or resulting from LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees, assignees, agents, contractors or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. If any action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE shall notify CITY promptly in writing of such action or proceeding. ARTICLE 13 - 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 d8rnage arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. ARTICLE 14 - INSURANCE 14.1 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 ofliability of not less than ONE MILLION DOLLARS ($1,000,000) for all injuries and/or deaths resulting 2 Affiliate means . person lbat diRctJy or indiRctJy tbrou8b one or more intermediaries controls, or is controlled by, or is under COIIlIIlOII control wilb, . corporatioo sui!jccl to the Alaska Corporation Code. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 14 OF 30- 85 to anyone person and ONE MILUON DOLLARS ($1,000,000) limit from anyone 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 ONE MILUON DOLLARS ($1,000,000) is also required. LESSEE shall obtain owned and non-owned automobile liability insurance with limits of liability of not less than ONE MILUON DOLLARS ($1,000,000) per occurrence combined single limit for bodily injury and property damage. LESSEE shall also maintain workers' compensation insurance as required under Alaska law. The minimum amounts and types of insurance provided by LESSEE shall be subject to revision at the sole discretion of CITY in accordance with standard insurance practices, in order to provide continuously throughout the term of this LEASE and any extensions hereof, a level of protection consonant with good business pmctice and accepted standards in the industry. Such factors as changes in the type of or extent of use of the Lease Land, increases in the cost of living, inflationary pressures, and other considerations, shall be utilized in assessing whether the minimum insurance requirements should be increased. CITY shall notify LESSEE of any required increase in insurance covemge. 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 32 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. 14.2 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 LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 15 OF 30- ... i" Sw caused by the fault or negligence of the CITY, its elected or appointed officials, employees or volunteets-OIothers~orlOOg Q!l})ehalf 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 there under 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. ARTlCLE15-CONDEMNATION If all or any part of the Leased Land is condemned for a public use by any government agency or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority; provided, that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. If part but not all of the Leased Land is condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts and liens to which the Leased Land is subject. If at the time of such partial taking for public use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 16 OF 30- ! .~ '- 87 ARTICLE 16 - ARBITRATION 16.1 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. ~.), 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 and No/lOOs ($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 and No/IOOs ($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 and No/I OOs ($50,000). The costs and expenses of arbitration shall be shared equally by the parties, and each party shall bear its own attorney's fees and costs. b) Arbitration procedures shall be applicable only to contract, negligence, and similar claims arising from or related to this LEASE, and shall not be used to resolve or determine any claim based upon fraud, intentional misrepresentation, nor any claim based on conduct that is a felony crime in the State of Alaska. c) Written notice of requests for arbitration of disputes may be served by either party to this LEASE upon the other party. Arbitration of any dispute or claim shall be determined by a single arbitrator selected from a list of not less than five 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 include 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 fSlmiliar 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. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 . -PAGE 17 OF 30- 88 -- 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) daysin-advance-of such hearing, all documents to be submitted at the hearing and such other documents as are relevant to the issues or likely to lead to relevant information. e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law, and the written decision shall be supported by substantial evidence in the record. Failure to apply Alaska law, or entry of a decision that is not based on substantial evidence in the record, shall be additional grounds for modifying or vacating an arbitration decision. 17.1 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, roay, 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. ARTICLE 17 _ MAINTENANCE AND REPAIRS 17.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance of LESSEE's maintenance responsibilities as they relate to public health or safety and LESSEE shall promptly within thirty (30) days of receipt of such notice advise CITY in writing of its proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE's operation such that the surrounding land and port facilities are exposed to risk, unnecessary potential hazards, or a risk to the public interest (as distinguished from a business risk), or if CITY is not satisfied with the proposed schedule of repairs either because of the delays therein or the scope of the repairs, then CITY may engage an independent engineering consultant well-versed and experienced who shall furnish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recommendations, if the report requires repair then LESSEE shall pay the cost of the report and perform such work in accordance therewith LEASE AGREEMENT betWeen CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 18 OF 30- 89 at LESSEE's cost, risk and expense. 17.3 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 [rod that the repairs were not necessary then LESSEE may either deduct from future rental payments the cost of such repairs or be reimbursed therefore. 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 there from, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the option of CITY. ARTICLE 18 - ENVIRONMENTAL CONCERNS 18.1 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 notwith- standing, 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 during, and after the term of this LEASE, and resulting from the use, keeping, storage or disposal of Hazardous Material on the Leased Land by LESSEE or its predecessors in interest, or arising out of or resulting from LESSEE's operations at the Leased Land or the operations of its predecessors in interest at the Leased Land except for those claims arising out of CITY's sole negligence or intentional misconduct. This release includes, without limitation, any and all costs incurred due to any investigation of the Leased Land or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law or regulation. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 19 OF 30- I : .J '~. 90 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 therefore, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. 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, indenmifY and hold CITY harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenseS) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: i) The presence, disposal, release or threatened release of any such Hazardous Material which is on or from the Leased Land, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii) Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Leased Land; LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING UONS CLUB APRIL 2006 -PAGE 20 OF 30- '~1 ~, Hi) Any lawsuit brought or threatened, settlement reached or government order .~rellltingto such Hazardous :tv1a~eria! or any use of~c: !-~~d_ Land; and/or iv) Any noncompliance with 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 (I) 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 on the Leased Land. 1) Hazardous Material Defined. As used in this LEASE, Hazardous Material is any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defined as industrial waste hazardous waste, extremely hazardous waste or a hazardous substance under any Environmental Law. Notwithstanding any statutory petroleum exclusion, for the purposes of this LEASE, the term Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. g) Environmental Law Defined. As used in this LEASE, Environmental Laws include any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, Alaska Statutes Title 46, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. 18.2 Permits and Reporting. a) Permits Required by Other Governmental Agencies. LESSEE shall obtain all permits LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 21 OF 30- '~~ or approvals required by any applicable law or regulation. Copies of all such pennits 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 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 19 - 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. ARTICLE20-CONDnnONSANDCOVENANTS 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 21 - NO WAIVER OF BREACH No failure by either CITY or LESSEE to insist upon the strict performance by the other of any term, covenant or condition of this LEASE or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such terms, covenants or conditions. No waiver of any breach shall affect or alter this LEASE, but each and every term, covenant and condition of this LEASE shall continue in full force and effect with respect to any other then existing or subsequent breach. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 .PAGE 22 OF 30- 93 ARTICLE 22 - TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 23 - 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 24 - 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 25 - 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 26 - 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 27 - 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. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 23 OF 30- U4 ARTICLE 28 - RELATIONSHIP OF PARTIES Nothing confuinedirithist.EASE shallbedeemed 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 oflessee and lessor. ARTICLE 29 . 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 LEASR ARTICLE30-C~ONS 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 31- AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 32 - 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 ManagertCITY 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: LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRll.. 2006 .PAGE 24 OF 30- fj5 SEWARD RACING LIONS CLUB #68816 Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. ARTICLE 33 - FIRE PROTECTION LESSEE shall at its sole cost, risk and expense provide fire 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 fue 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 fue 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 years. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 25 OF 30- 96 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: LESSEE: CITY OF SEWARD SEWARD RACING LIONS CLUB #68816 By: Its: Date: Clark Corbridge City Manager By: Its: Date: ATTEST: Jean Lewis, CMC City Clerk STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) TIllS IS TO CERTIFY that on this _ day of , 2006, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared Clark Corbridge, known to me and to me known to be the City Manager for the City of Seward, Alaska, and authorized to execute documents on its behalf, and is the individual named in and who executed the foregoing document on behalf of the City of Seward for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 .PAGE 26 OF 30- 91 My Commission Expires: STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) TIllS IS TO CERTIFY that on this _ day of ,2006, before me, a Notary Public in and for Alaska, personally appeared ' to me known to be the person who executed the foregoing instrument on behalf of the Seward Racing Lions Club #68816. ShelHe acknowledged to me that she/he executed the same freely and voluntarily on behalf of said entity. She/he stated to me under oath that shelhe is the of the said entity, has been authorized by the of the said entity to execute said instrument on its behalf, and has full power and authority to execute the same. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires: LEASE AGREEMENT between CITY OF SEWARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 27 OF 30- ,(' 8' ... . EXHIBIT A LEASED LAND [TO BE PROVIDED] LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 28 OF 30- U9 EXHIBIT B The Lease is subject to City approval of the following plans. 1. Lessee shall prepare and deliver the plans within 60 days of the Effective Date to the City Manager, or his delegee, for review and consent. The administration shall have 60 days to review each plan and provide revisions or consent. a) An evaluation of noise impacts on properties located within one mile of the racetrack. The evaluation shall identify the projected or actual dBA levels. If the projected or actual noise level exceeds the standards set in the Seward City Code noise ordinance, Section 9.25.020, the evaluation shall identify mitigation measures. To help control litter in the property Lessee will supply the area with garbage cans that will be emptied by Lessee when applicable, as well as having SLRC (Seward Lions Racing Club) members police activity areas before leaving each evening. SLRC may also supply a dumpster. b) A plan to control dust and litter and a description of the methods for collecting trash on the site. To control dust Lessee shall use a water truck for dampening the dirt before racing. c) A plan to ensure compliance with the applicable environmental laws (for example petroleum substances and other hazardous materials). To ensure proper clean up of potential spills, Lessee will have a supply of "Sorbi" pads available to clean up any excess fluids. Also, we plan on having a large container such as a garbage can and shovel available for removing all contllminated soil that will be disposed of and treated properly when necessary. d) An operation plan that will include identification of the appropriate individual(s) responsible for security, enforcement, noise, operation, dust control and environmental plans developed by the operator. The operation plan shall also include provisions to monitor and enforce prohibition of alcoholic beverages on the premises. At any time during an activity any club members on scene are responsible for enforcing, established rules or guidelines for the track, such as enforcing the hours of operation. e) A plan to mitigate traffic impacts on access roads and the immediate neighborhoods. Such plan shall include mandatory transportation of racing motor vehicles to the site, as well as methods to prevent casual access to and from the site and mitigate adverse effects of the racetrack upon adjacent land uses. In order to help LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 -PAGE 29 OF 3()" 1cn control the impact of traffic on areas surrounding the Leased Land, Lessee shall post signs clearly stating authorized areas for the public. Signs will include identifying where the Leased Land property lines are and that riding beyond them is prohibited. lfthese rules are violated it will be the responsibility of any member present to report the violators. Lessee will post signs located at the entrance to the Leased Land stating that "All unlicensed racing vehicles must arrive at the track on a trailer or in a truck" in order to be admitted to the area. f) A landscape plan emphasizing retention of native vegetation, in order to provide visual enhancement, noise buffers, screening and as a natural erosion control method. Alders and other trees on the Leased Premises will not be removed, in order to help create a barrier and inhibit riders from leaving the area. Also, this will help to create a dust screen and noise buffer for the surrounding properties. g) AparkingplaninaccordancewithSCC 15.10.215. h) A plan for public sanitation facilities. i) An emergency response plan. Lessee shall notify volunteer emergency response personnel of all scheduled events and shall request the presence of volunteer emergency response personnel at all large events held by the SRLC. In addition, SLRC shall use its best efforts to train as many SRLC members as possible in first aid and CPR in order to make all activities as safe as possible. j) A plan for controlling access beginning with the north and east boundaries. 2. Lessee has provided a bond in the amount of $50.000 for the cost of rehabilitation or clean up in the case of an environmental release or spill. 3. Maximum hours of operation for the racetrack shall be from 7:00 a.m. to 10:00 p.m. Monday through Saturday and from 12:00 noon to 10:00 p.m. on Sunday. LEASE AGREEMENT between CITY OF SEW ARD,ALASKA and SEWARD RACING LIONS CLUB APRIL 2006 .PAGE 30 OF 30- 101 Sponsored by: Corbridge Introduction: March 28, 2006 Public Hearing: April 1 0, 2006 Enacted: April 10, 2006 CITY OF SEWARD, ALASKA ORDINANCE 2006-03 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE SEWARD CITY CODE TO ADDRESS THE SAFETY ISSUES OF DISCHARGING WEAPONS IN THE CITY LIMITS WHEREAS, the City's police department is receiving an increasing number of complaints involving the discharge of weapons within the City limits; and WHEREAS, ensuring the safety of the public is a primary responsibility of the City of Seward's police department; and WHEREAS, misconduct involving weapons or explosives is a crime in Alaska as described in AS 11.61.190 through AS 11.61.250 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, HEREBY ORDAINS that: Section 1. Section 10.10.030 of the Seward City Code is hereby amended to read as follows (8trikeelit deletions, Underline = additions): 10.10.030. Discharge of weapons. 1 (A) No person shall discharge any firearm, pellet gun, or bow. to include: crossbow. longbow. recurve and compound bow. aF Gfesseew within the City except at an approved range or as noted in subsections (B)~ aM (C) and (0) of this section. 1 See ~ 10.05.025 as to the sale of firearms to minors; see AS 11.61.190-11.61.250 as to state law as to weaponsgenerallv see :\8 11.33 Jl1 9 et seE):. as te state lw.'.' as ta wea13aBs geBerlll~. l€J12 CITY OF SEWARD, ALASKA ORDINANCE 2006-03 (B) Hunting with shotguns using a steel shot size no larger than number 2 shall be allowed by pennit in areas designated for hunting by resolution of the city council. (C) The use of air rifles and; BB guns ana leag ge'.'16 is allowed by persons over the age of 16, or younger when supervised by an adult. (D) The city manager or chief of police or his designee mav approve bv permit the use of firearms and bows at special events. (Ord. 378, 1971; Ord. 93-27). Section 2. This ordinance shall take effect 10 days following enactment. ENACTED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC, City Clerk .J \ 103 Council Agenda Statement To: Honorable Mayor and Council fll ~ 3-I7-oh Clark Corbridge, City Manager l,IvL Tom Clemons, Chief of Police ~ Meeting Date: March 28, 2006 Through: From: Agenda Item: Seward City Code ~10.10.030 BACKGROUNll & JUSTIFICATION: The Seward Police Department has received numerous complaints over the last few years involving the discharge of weapons within the City limits. In addition, the hunting of big game inside the City has become a safety concern. The City's current weapons ordinance fails to adequately address the issues at hand. New and improved weapons have become a threat to public safety and are not addressed within the current ordinance. The goal of this amendment is to protect the public while still giving individuals the opportunity, within a controlled environment, to enjoy activities that involve the discharge of weapons. INTENT: The intent of this amendment is to protect public safety. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Ru1es of Procedures. Other: FISCAL NOTE: None. Approved by Finance Department: ~..$# ~ 104 RECOMMENDATION: City Council approve Ordinance 2006- 03 . amending City Ordinance ~ 1 0.1 0.030. 105 , Sponsored by: Corbridge . CITY OF SEWARD, ALASKA RESOLUTION 2006-33 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, DETERMINING THAT IT IS IN THE PUBLIC INTEREST TO WAIVE THE NORMAL BID PROCESS PER SEWARD CITY CODE ~6.10.130 AND AUTHORIZE THE CITY MANAGER TO ENTER INTO A LEASE AGREEMENT WITH XEROX FOR THE pURPOSE OF LEASING A PUBLIC USE COPIER IN THE SEWARD COMMUNITY LIBRARY WHEREAS, The Seward Community Library has consistently maintained one of the few public use copiers in Seward; and WHEREAS, the current copier lease expired in January, 2006, and the library desires to replace the copier with a new machine with expanded capabilities; and WHEREAS, Xerox has submitted a proposed 6O-month lease for a copier that is wheelchair accessible, has coin operated features and includes full service maintenance, including parts and labor, for a total monthly lease rate of $208.60, representing a total lease cost of$12,515.00 over five years, with no lump-sum payout at the end of the lease; and WHEREAS, the above lease fee includes a trade-in on the existing machine, and Xerox agrees to remove the existing equipment; and WHEREAS, the lease includes the required non-appropriation clause which allows the City to terminate the lease if monies are not appropriated for any given budget year; and WHEREAS, in addition to the lease fee, Xerox will bill the City $0.0169 per copy; and WHEREAS, funding for this project was included in the 2006 library budget; and WHEREAS, it is in the public interest to waive the normal bidding process per Seward City Code ~6.1 0.130 based on the following: 1) the current copier has a higher trade-in value with Xerox; 2) Xerox will remove the current copier at no extra cost; 3) the quality of maintenance and repair work from Xerox is excellent given their Kenai Peninsula presence and the overwhelming number of Xerox copiers in Seward. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The Seward City Council hereby affirms that it is in the public's interest to waive the normal bid process per Seward City Code ~6.10.130 and authorizes the City Manager to enter into a lease agreement with Xerox for a copier at the library, with a monthly lease rate of$208.58, including maintenance, parts, and labor. 106 CITY OF SEWARD, ALASKA . RESOLUTION 2006-33 . -, Section 2. Funding for this purchase is available from Account 101-1500-5500. Section 3. This resolution to take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC, City Clerk (City Seal) , '. 107 , Council Agenda Statement From: Mayor Shafer and Council Members Clark Corbridge, City Manager ()JL S -( 7 . 0 ~ Meeting Date: March 28, 2006 To: Agenda Item: Seward Community Library Xerox Copier Lease BACKGROUND & JUSTIFICATION: The Seward Community Library has consistently maintained one of the few public use copiers in Seward. Our current machine has survived the end of a five year lease and the library bas negotiated a new lease on a new copier. The enclosed proposed lease agreement includes a copier that is wheelchair accessible, has coin operated features and full service maintenance including parts and labor for a monthly charge of $208.60 paid over the five year life of the lease totaling $12515.00. There will be an additional charge of$0.0169 per copy made, assessed monthly. The previous monthly payment included 1400 copies per month. The number of copies made monthly on the machine was always less than 1400. The new contract takes that fact into account by having a base lease payment and additional per copy charge. Xerox has allowed for trade in on the old machine and will remove and install as part of the agreement The lease (copies attached) is for sixty (60) months and includes the required non-appropriation clause which allows the City to terminate the lease if monies are not appropriated for any given budget year. Based on the heavY use of the above copier, it is recommended to trade-in the old copier for the proposed copier. It is also recommended that Council find it in the public interest to waive the normal bidding process per City Code ~ 6.10.103 based on the following: 1) the current copier bas a higher trade in value with Xerox; 2) Xerox removes the current copier at no extra cost; and 3) the maintenance level is excellent from Xerox due to their Kenai Peninsula presence and the overwhelming number of Xerox copiers in Seward. The number of Xerox copiers in Seward means that the maintenance technician is usually in Seward on a weekly basis and therefore, is able to perform regular maintenance on the copier. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: Currently the library charges $.25 per copy. Under this contract Xerox will charge the library $.0169 for each copy. This revenue from copies will offset a portion of the $208.60 monthly lease payment. 108 Funding has been approved in the FY2006 General Fund Library Budget under the Equipment Rental Account. x~,~t~ RECOMMENDATION: Seward City Council approve request for the library to contract with Xerox as per the attached documents to lease a copier for public use. 109 11.18:13a.m. 03-16-2001l 2n /" LEASE AGREEMENT Pull Lcp! N_ Cily OfScword Libnly C_rNIIIIIC(IliIIo) CITY OF SEWARD DBAIN_ 0vcrfI~ LlBRARV S_ Addlas PO BOX 167 BoxMtoutinc City,Sare SEWARD,AI( Zip Code !/9664.O167 Till< II>> IlIJ II C__ Namt (instill) CITY OF SEWARD DBAlNamcOvctnowlifroq'd) LIBRARY Ins1aDed II SlIod Add1e&s 238 5TH AVE FloorIRoomiRoutirJI City,S_ SEWARD,AK Zip Code 99664. Counly Iulalled In Sewn CwIomor~ hloII 0... 0WJI20ll6 LeaP It. XEROX. Clift. d IIlaf apply o Assoc.ICoop. N....: ONeaocillCd CoaIlaCt ,. 0 OSA Coatrll:U: . OVIl... Added Scntica: OAIIatlEd eus- P.O.'s: SuJllllia: Lc&w: o Stile or I.caJ Gov_1 C1I5Iemcr 1m. RIle: " Total 11\1. PanbJc: $ URtpla~m..VModilIcaIiOll of Prior Xuoa Ac--' Agrmncnlcoverinc Xerox Equipmalt Scrillllllor '51): is """y C modif.... C.... EO'coliYo Date: COIIUIICIIIIs: L_ loformalioa Lc.e T.... : 601IlOIIIb& IiISupplies included in IlaseIPrilll Chargu D Rcfin. of Ptiot ApmI. :0 XtIOX 19'1): 0 3n1 PIIly Eq, AnII Rdia: $ 1111 Ra1e:" TDIaIInt Payable: $ M 'a~meol D ormolioo l'rodu;t I'un:IIoY Dowa Pm- Fia' (willi serialllllllb<r, ifm pi... ..,~) 0DIiaa Po_I IIlSlIII InICIlII DlGBKA DIG COP tFUV I\BKMRKVF.ND IlDCMETRCRU I\OOBKCT CUSlemerl'd AMI." Sen.;,.. Min. .AMI' P....m..r FHto fpMlxlit, tseludq .131'_-'" C MondIIy CQuoncrIy o Semi-Annual CAmuII OOt/lcr s JIlI.6t : MINIMUM LEASE 'A YMf;NT IReI. of appIio. lIlIeS) o Adiuslment Period Period A - Mos. AfCccted: Periodic Base 0Iar&c Print Char,. M..... I: PriDIs I . PriDIS PriDII Print CharJIC M..... 2: Prials I . Pr.... PoIiodi. Mid of Prints (based OIl M_ 1 Print Ouqa) o Mi. I....M' h'VlltlP.r Modf DAd..... 0 AneaIs 'riff ..for...o Periodic Base 0..... Print Ch McIa I: PrilIIs I PrilllS Prints PriM Ch.... M..... 2: Prints I. Prinll Periodi. Min.' ofPli.nlS lhued OIl Mela' I PrintCloqcs) o 0 + Purchased SUPllIieJ Cash Fio'd A.D1~a'ioo Software Reorder . 0I\r DcscrJDtion nee Software Till. Ih'ilial License Fcc ~nval RcnowII FOI !J Cash 0 Fi...""" S"""""OnIv 0IaI Pril:c a TOIalloiliaJ LiceIIse Fe..- o iii T.....I. Allowa.l:e o K-16 8Wi.. Additienal Optio.. (.hock all dtallllIllYJ ~f-= I~~ Final Allowance SuSDftlsi6n o Ru. Length PIIn o Fixed Price Plan Prm..... P..........: (dlcclr. J .rcquRd) o Per-Foal Pri.m, XEROX FOOOO864 1495.00 MooIho all'ecoed C EJIIOIIded ScMce Houn: Cl June ....y DcscripIioa: IS o mo. [J July <*Iy o AuacIled Addenda: Total A1lewllKle a I 495.00 0 AuJUSI only Total AIIOWIIICe Applied to: OTradc.1D Equip. Balance. 0 Juoe . July o OIlIer Addcada: iJPricc ofR.,Jcmm. Equip.: 1,49.5.00 C July - AuIvsI AI........' Prewnled By: CIISTO,,",ER ACacl\llWI F.oc.F.~ .lreEI" OltTHr: TERMS OJl' TN' Xerox Name:' Frank GIWnMl Phone:(907~22.~I~O ACR~[,M['HT 4C:ON~1!rnNl: QJ" P.U';F.5 INCl.11DINt: THIS F.AC:'E PACS:\ FOH ,\ld'li('kIZU) Ill) //'iTEIIN,\I. USEONl\': AUI'\, S...... Name: Patrica Linville ,'C..'t'Ph:u: ~""-,)\.L'OI'11t.l{illiun (i'l<tr.w/'_ :v_, '" tlM,.",c.vSlw"'" Ll~: Sipallft: X Dale: !""I~n.l/itl'i'IJ .lmlIfWt:.'" ~i;ol'r'r, (.'iiprmliln l# AuHtnrt:ftl .'V,.WVJ fid.' 1"'1<. AUIIl. 5i..... TilJc: General MIII,- ofOivllGc Phon.: (907)224-4082 'A.W'I;s:hL'C1: f.)()~2~ l;n;a 1 .Ie 11>'21~lr> I ~:3?:~6 E.Mail: www.xerox.com C 1'.. b...pt("MIUI GntIClt $lIln Ttur Exnitpl/M C~l . Xeto. FonolI 51860 (OSl2OOS) 3//6(2006 P.I 016 110t GENERAl TERMS: 1lIc followi..'mns apply 10 IllIIcasc 1rInsllcIklns: I. PRODUCTS. The lenn "ProdlldS" shall refer coIlectiYely 10 aU eq.ip..-(the 'Equipment'). .oIlwon,llIld .uptllics ordmd uJldcr thiJ AgRement. You "'pmcaI thIIlhc ProdU<ts Ol' being otde<ecl for your own bu.iness .... (lither tUn male) IJId thIa they will IlOI be ll5ed for personal. houre!lold o. ramily purposes. 2. NON.cANCELABLE LEASE. THIS AGREEMENT ]S A LEASE AND IT CANNOT BE CANCEU:D OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN. AND YOUR OBLIOA TION TO MAKE ALL PA YMENTS DUE OR TO BECOME DUE SHALL BE ABSOLLrrE AND UNCONDITIONAL AND SHALL NOT BE SUBJECT TO ANY DELAY, REDUCTION. SET.oFF. DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WltA TSOEVER. IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CLAIM AGAINST XEROX MAY BE ASSERTED SOLELY AGAINST XEROX IN A SEPARATE ACTION. 3. LEASE COMMENCEMENT, PA YMENT, TAXES" CREDIT HISTORY. A TIle lease IaIIl rot Ibis Agreement shill commence upon inslallltion of the EquipmeDl; provided. IIowevc.. fo. customer';lI$talllble Equ~ the lease tcnII for Ihis Apccmcnt shaU _ upon delivery of the Equipment B. Invoices an: _ble upon receipt llIld you ..... 10 pay Xerox .ach Minimum Lease PlYmcilt, all PriIlt Charges and 1111 0Ibc:r .UIIIS due as lbUows: (i) if Ihc invoice displays I U dare, plymcm is due aDd must be JOCCiml by Xcroll 011 or before said ... cUIc, or (ii) if the invoice does not display a due dale. PaylIlCIlt is due and must be ....ivcd by Xerox no IBla Ihan thiJly (30) days BIlcr the jlWoice dale. Rameliv. ""'_s 011 ins_ts or doc_ subnlined for or with ~ you send to Xerox win nor ...du.. y.... obliprions. C. You shal] he responsibl. for lIII)' and BlI applicablc Taxes, whicll wi. be oncIuded in Xerox's invoice unles. you provide proor or your IIX ......pl ....L "Taxes' shall mean lIII)' lBX, assessment or ~ imposed or c:oU....d by .." lOVemmental lllIity or my political s.bdivisioo t/lercof, h_ delllnlled III levied, imposed on lIlis Agreemenl or lhe amoums pa~ 10 X.IOll by you for Ihc billing of Products, Print C....... Slrvic:es and mBinl_ of lIII)' kind; T..... include. but ... nollimited tn. sales _d .... ""'tal. excise. IJOSS receipts and oec.paIiollB1 or privilqp: ...... phis any in_I and/or penalty the_ but axel.dine any personal JIlllPIny ..... and l81ces 011 Xerox's nOl income. If lla>ling audlorily delennines 1hIt Xerox did noI collect all oppIicable Tous. you sIWl rcmBin liable 10 X..Oll for ",ch addilionBl T..... D. You. 10 the ......t.eq.ired by Iptllicable law, aullorilC Xcroll (or ia accnt) to oblllin credit rcpcns, male. such olba credit inquiries as Xcroll may dean oecessary II .." Iillll. tilJ1lish P"_I history infonnation 10 credil ....OIIing aacncics. and ",lease 10 prospecti.. assi_ of this ABICOIIIIIll or ..y riEhlS he""""'"' cralil. ",laIed iIlrDllllBlion XClOll hu about you and thiJ A&r=meal 4. BASIC SERVICES. As a mandaIOry pBl1 or a lease. Xerox (CW a dcsipaled servi..l) will provide the foIlowinc Basic Services under this ^~mcnt (un.... you III ocquirins Equiplllall fOl which XClOll does 1101 olfer Basic Services; such EquipmenllO be desijpll1ed IS "No S... j: A REPAIRS a PARTS. Xerox wal male. ..pails and odjuslm.... necas&I)' 10 keep EqUipmenl in Bood lOOIking order (includi'!ll such repai,:" or odjuslmenls ~ui'ed duril1l initial iAstalIBlioJl). Parts rcquircd for rcpaor ilia)' be ..... rcpIOCCSIId. or rCCOVCfed. B. HOURS a EXCLUSIONS. UrIIcss oIherwisc: slBled. Basic Soni... will be provided durinB Xerox's srandard ....rIling IIourI (""eluding Xerox~ holidays) in IIfClIS within the United S-, its SerriIOrics. BIld posscssioI1s 0II<<l for repair service for the Equipmcot BI issIIe. Yo. ICfIC 10 Ili~ XIlOll .-aIIIe ...,... III the Eqllipmcnt. Basic Sonices shal] -:er rcpaus and adjusIments required IS I raull of IlOI11lII wear and loar or def.1IS In matinal. ... worlcm....lllp (aud shall ""clude repairs or odjUSlmelllS Xerox determines ID relBlt 10 .... be allOcted by the 1151 of opIiOllS, accessories. or odlcr colllloctCd plOduers not savlCld by Xerox. IS well IS any ftOIl-X_ .r.ions, JCIocation. scrvice. .......i... or conslllllBbles) YOll .....'" use Equipmeat in........t.... with. _d 10 pcrfona all opetlIlor l1IBinrelIanco ptOCedures Cor Equipment as "'1 rorth in, the applicable IIIIDlBls provided by Xerox. C"INSTALLATION SITE a METER READrNGS. Th. Equipment installal~ site musl conform 10 Xerox', p.b1ishcd rcquircmen15 througho1l1111c teml of this AI_I. If applicable, you agrce '" provide 111_ roadi~ in dlt ~ prcscribed by XerOll. (fyou do noI .....ide Xorox w'lh _ ...dings as rcquRd, X~ may tslimBI.1hem md bill yaw accordingly. D EQUIPMENT REPLACEMENT. If Xerox is unable ID mailIIIiIl Ille Equipmenl IS desaibed .... Xerox will. IS yo~ ""clus~\'e remedy.ror XCrox's rail.... 10 provide Basic Services, replace lhe EqUlP_ WIth an '~I~al p.oduet cw. Bl XerOll's oprion, BIIOIber .......... of sq." or grealer capabll..... If a ..p......... producI is provided plllSUIIlI 10 'lIis SectioA, dtote will IIOl be III Xerox FormM 5J ~ (1n1200S) 3/1612006 11.18:31 a.m. 03-16-2008 3" addilioual charp for the ....Iacemmt producl ...s. lloept IS set f.... in the seclion of this Agrcemcr1llilled "MAINTENANCE COMPONENT PRICE rNCREASSS". IMrc will nor be III additional c....... for BasIC Scmces durinC 1Ilc .............. ICnII during whicll Basic S....i... on heilll provided. E. CARTRIDGE PRODUCTS. If Xcroll is providing Ilastc: Services for Eqwipmcnllllilizinll canr. dcsipared by Xerox as CIIIIonIo:r rcpIaccBble W1ils, includi1ll copyIprillI CBIlridFS BIld xao....ic moduIa or f....,. moduIa ("CanricJ&es1. you ope '" use only lIIlIaOdified Canridps purdlued diRctJy &om Xerox or its IIIIhorized _Ilers ill the: Uai~ S_ and Ille ~Iurc to use such Cartridga lIhaIIvoid any wananty applicable: 10 such EquiplllCll. F. PClWORKSTATlON REQUIREMENTS. III order ID rocciv. Basic Servic:cs and/or So1twarc Suppon for EquipIllClll rcquirins _aecIioa 10 a PC or wOltstation, you must utilizc a PC or WOltst...... thalalhcr (I) Ilu been provided by Xerox or (2) _ Xaox's publislled specificaIions. G. DEUVERY AND REMOVAl.. XIlOll will be ....,....;ble for .,1 SIandonI deli,,"ry and removal chqa. You will be ..........lIIe for any IIOlHIandard doliwry or ......val eharps ~ S. WARRANTY DISCLAIMER a WAIVERS. XEROX DISCLAIMS, AND YOU WAIVE. THE IMPLED WARRANTIES OF NON-rNFRINGEMENT AND FI11IIESS FOR A PARTICULAR PURPOSE. Tile panies iDteIId Ibis A&r-t 10 he a "fi_ ...... under Article 2A of IIIc Uniform COIlIIIlelCiBl Code. EX"JllIO !he exlIIIl IIJIIOSSIy provided, herein BIld to Ihc .._ permilled by appllC8blo law, YOll waive all richts and ranedin conl'erted upoIl & Iessce by said ArIicIo. 6. INTELLECTUAL PROPERTY INDEMNITY. Xerox, II its ~ will defend you flOlll, and pay .." ...1_l'Creed 10 by XCIOX or ...y finIl j......- for. any claim tbat a Xerox-brand Producr infringes I third pIlly's U.s. i....1eauaI property rights. provllled you plOlllplly notil"y XtmlI of the alIeJed inrrinse- and permil Xerox 10 d~ the dere-. X..... is IlOl responsible lOr..y ooa-Xotox liliption .x_ or selllo...... unless it prcapprov.. them in wrilin& To awi" inrrinsemlllt. Xerox IIlIy modil"y or SUWU1e III .qui...... XClOll-bnnd ProcIuct, tcftmd Ihc: price paid lOr the Xerox-brBlld Product (less the reasonable rental val.. for IIlc: period it was nl1lab/e 10 )IOU), or oblain ..y necessary liczasa. XCIOX is not liable for any infri.........l-reIB1Cd liIlliIities outside tile scope of this Secrion includin.. but noIlimiled 10. inliinlllm... based upon a Xerox-llrand Product beinC modified 10 your specifICations or being u.... or sold WIth ....oducts IlOl JIlDvided by Xerox. 7. LIMITATION OF LIABILITY. Xerox shalllO\ be liablo to)lOU for illY direct dlllllB8fi in excess of$lo,ooo or tho amounts paid hereunder. "'ichcwr i. 8fC11C1". and neither pony shaD Ile 1iBbIe 10 the _ Cor Illy special, indi*'. ia<:idcatal. conscquenliBl or puuiti... damaps arising out of or rclBIill8 III Ibis ~ w........ IIIC claim alleges tortious c:ondua (includilllllCCligcncc) or any OIlIer IcpI dIeory. The Bbo....taliod limillliorl of liability shall DOl be applicable ID ISII)' specift, indemniliCllioa obliaBliDns IllI forIh in this Asr=m0lll Any Ktion ycIII rake 'CaiMI Xttox must be _need within IWO (2) years BIlcr the IYIIIl IhIl c-.eel it I. ASSIONMENT. A If you wish to usign any rights ... obliplions.unda Ibis AgrIClIIIlII, )IOU uall prOVide a _ notice III Xaox of such rcqllCSl fcw COJISIIIl, with said noIice incJudina tho IIUIlI or the proposed usp. Yow rcquest '" ...... this AB"'1IDCllI will be &llIIlled by Xerox ie: (t) you ... DOl in default ..... Ibis ~ or illY oIIICr ...-r with Xcroll; (2) IIIC proposed BSSIIlJ1CO """" 10 !he section or this Apemenl titled "LEASE COMMENCEMENT, PAYMENT. TAXES a CRIDIT HISTORY" as applicable 10 it. for the purposes or lho proposed assiplllC:lll; (3) Ihc: proposed usi.... meets Xero~'s IIIeD _ ctedil ereia for simU' 1r8Ii8l:1ions IS determined by Xerox on its sole discMioa; and, (4) you and Ihc proposed ................ a wri1me. in I bm a...~ III Xerox. """firminl said assipJllalt. Assignment by you .equim 1M wrmOR cotIMlIt of Xcroll and may not be aecoonplished by opmrtion of law. B. Xcrolll1lBY BSSian1his A&rccment. in whoI. or in pari, 10 a JIIIfCIII, subsidiary or Iffili... ofXemx, or to I penon or ....iry Cor the pwrposes of sccuritizinJ I pool of ...... or as port of a Ihird pIlly lilllllcial _ion withoul prior ~ III ~ pR).ided. how....r. .." proposed assignmeal 10 a person or .lImy nor ident.flld p"vlOllS'y In this senIeUCC "'III requim your prior w.itten consal '" tbe "1111 of III ...ignmenl pmnilted by the prccedilll so-. Xerox. wlthoulllOllCllID YOU. may m1eas. informllioa il has abouI you related 10 this Agrcemoac.. Ea:b successive assipee 01 Xttox .shall "ve all 01 lb. liahts bullIOI1. of the obI.pligns of Xttox haellDdcr. You.shall continue 10 look to Xerox for perfllrllllUlCl or Xerox's obligalions, includinC the provision of Basic: Seniccs. and )'011 homby wli.. and release uy assiguecs of Xerox from lIII)' ..ch claim n:1Blin& 10 or arisin& frora the pcrfo_ of XIIOll'S obliptions hereunder. . You shall_assert MY def_. counterclaim or K1O/f IhBt you may ..... 01 .llm apinst Xerox IpJlISt P.20f6 111 . ".__ .__u ,,1;>>'" Illy l5.ignees of Xerox. In dle evenl of an assiJlllllcnl by Xerox, you shall mnil paymenu duo in a~ wilb rem"""," insllUClions orlbe wi....... 9. MINIMUM LEASE PA YM6NTS. Each Minimum Lcac PlI)'IIICIIl (wbicll may be billed on more dI.. one invoic.) intJuOO a PcriocIic B... CIIargc. and IU)I include a Periodic Minimum NUlllber of PriDIs. The Minimum Lease PoyJIlClIIS, IIOII/! wilb any lddiliOllllI Prim CbarJos for prinl. mode in ..cess of the Mini...... Number of Prinu, CO\'CI' your <OS1 for the use of Ibe EquiplftCllllnd i1s mlinlCllllll:e (pro.ided 15 Basic Services). 10. MAI!IrTENANCE COMPONENT PRICE INCREASES. X..... II1II)' onnually "'- 1IIa1 amount of !be Minimum Leas. Pa)"l1lC1ll and PrUII Chqos you are charaed roo mainrelllllCC 0( lI1c EquiplftClll (... "MailllClllalz CoqxJncaa"). eaell sucb ilu:t.... IlOIlO....... 10%. (For s.... Illd Joeol aovcmmcnl QI_, au IdjUSllllCnI shall. plal:c allh. COIlIIIlCRCClIII of cacb of your annual _ cycles.) II. TITLE, RISK A RELOCATION. Tille to tbe EquiplllClll slIaIllCIIlIia with X.rox Old you cxcn:ioe your oprion 10 pu~ it Until you cxaeisc r- 01'1" 10 pun:basc lbe E""ipmcn~ ~ou agre..: la) i. shall .anain pas..... propcny; (h) you will not IIlaCh My of i.1S a fllllW. to any rcaI C$l1Ie; (c) you will nol pledge. .ub~.... OJ p.-t WIlli possession of it 01 tile or pmnit to be tiled illY IiGl apinst i~ and, (d) )'011 will not male. any pcmlIIlcal a11eJ1lioas to it. Tbe risk of toss due to )'0lIl faull 01 ncglipncc, 15 ....Ies dleft. fire OJ dislppcasancc, sball pau 10 you upon shipmenl fi'om a Xerox conlJOlJcd facility. The risk of IoIS due to all Olhcr _ shall .emain with X_ unless and lIIIliI )'DII CXCJCioe )'OW" option 10 pllJCbasc the Equipment. Untillillc passes 10 YOU. all Equipment rcIocaIions _ lie ananged (OJ approved in advlllCC) by Xerox and shall be II)'OUJ CIpCDSC. While [quipmcDI is IH:ina JdocaIcd, you .. .cspoll>ibIc fOJ all pa_,S "'CJUin:d to Xerox undeJ Ibis Ail_I. Equipmenl elllllOl be n:lo"U,d 0UlSidc of dle UIli1Cd ~-. its. _!">sics or po.....iOJl. ~ ~ hIVe ....oiled Ibe Pwcb... Opckm indlCllcd IA 1II1S Ai_n, tryou acqmn: lilIc 10 the EquipmenJ. )'OIIlIlIlStcomply ",ilh all applioabl. lows ..d n:gu10ti0ns rcpsdinlthe expon of My COIMlOdity, lCohnoJocy IIIl1/OI soli...... All pans/JnltCfiats repllCCd. includin& IS pan of III uparade. will beCOlllC Xerox's properly. 12. DEFAlJLT A REM6D1ES; LATE CHARGES A COLlECTION COSTS. A. FOJ"y payment not ,"eiYcd by XCI"" wilhm Icn (10) days of IIIc .... disc IS lei forll1 bercin, XctoI ma~ claarge. and you agree 10 PlY. a .... cIwgc equal 101bc hip of five perCCJll (S%) of the amounl due OJ ill (not to .xceed rhe maxim. amount pcrmined ~ law) ... .easonabl. eollccrion COSlS. B. You will be in defauI1 under Ibi. AgRcn\clIt "(1) X..... docs not r<cci.e lID)' paymcal wilhin fiftccll (IS) clay. a&r .... d.... il is due or (2) if you bJeach l1li)' olbet obliption hcramdeJ. If you c1cfauh, Xftox. in IddiJion 10 its oIhcJ .......... (including .... ceslllion of Basic Services). may requiJe immedil1e pa~~ as liquidated damages 10J loss of bargain and nul as apcnlllty, of: (a) a1111llOu1l1$1hcn due. plus inIcJat on 011 amounts due from die due dIJC until paid II !be .IIC 0( one IIIId OlIC.haIf perceJlJ (1.5%) per mondl (llDl 10 exceed the maximum _I pcmIiIIed by la..); (1)) the .emainiag Minimum Lcac Paymenl5 in IIIe ~'I lalllless any unearocd mance, mlinlcnancc, and supply eharJcs (as JIflcc1cd on lbe ........s books and records); (c) a JCISOIIIbIe dis...I.....,.1lJ fee calculoJcd by XcmIlbat ",i111lOl exceed fil\ccn pcJCCIII (lS%) ofdle amount ill (h) above (said _ is available fiom )Ca0l upon n:qucss); and (d) 011 appIieahJe Taxes. You also shall eilhcJ (J) make dle EquiJllllCllI I.ailablc fOJ ,"""",II by X..... wilen rcqueslCd to do so by Xcroxllld, lithe lime oflClllOYaI. the Equipmcm JbaIl be in the IIIIIC COIIdilion as w.... d.ti...... ('CI5OJIable _ ..d tcaJ ex<:cp1Cd). lOCClhcr with My ..Ia1Cd software, 01 (2) p........ the EquiplllCllt "AS IS, WHERE JS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALU6 by payina XCIOI the Putdlas. Option and III applicable Taxes. X.rox'f dcciskm 10 waiYc.. foqiv. a paniculaJ defauk shall not JlfCYcnl XctoI Iiom dcl:Iaria& any odxr clef.1I1. In addition, if you defaull undClI!1iS A&n:.....n~ you apcc to pay aI' ofdle lIlSl5 XcmI illC1lIS to ...f..cc ilS richI5 apiDsI Yllll. meluding __Ie IIlomCys' fees lAd 1CIIIIl_. 13. CARTRIDGES. Cnidgcs padocd wilb Equipment IIICI .cpl__ Cartridacs II1II)' be IICW, r=naJIufaclllJcd ... 'Cploccssed. Rcmanur.aun:d and 'epIOCCSSCd Cartridacs IIICCI X....... new Carlridp pcrfoJmancc SIIIldaJd$ IIId COIIfIin new IAcIIor "JIfUCCSIed COIIIJlOIICnIs. To.nbancc prinl quaIily, lhe Caflrid&c(s) fOf IJlIJ\Y rnodds of Equipment ba.. been clesipcd 10 ..... lillU:tiouins .. a plCdcJamillCd poial. In addilion, many Eqllipmenl modcIs _ desiJned 10 funcuon only wilb c-idges Ibat _ newly mlllufilcJun:d original XCfDX Cll1J1dgcs OJ with Cartridges intcndc:l roo .... in Ihc U.S. EquiplllClll oontigwation Ilia! pcIlJ1i1s use of non_l~ manufllClUJed ..iginol Xcrax Camidges may be a.ailallle from Xuox.. an IddltiOJlal charII'. CaI1Jid&cs sold as Envi.onftlClllal Panncnbip C"EP") Can.idps remain Ihc property of Xerox. You IIfCt dall you shall rc1Um all EP c-idgcs and may n:I1Im odIcJ Clf1ridges JO XClOX. II Xerox's expens. ....... usillg Xcrox-supplicd shippifla 1-" for lOlIllIDlIfacnuins ...... such Canridacs cease fuaclioaing. XcroxfllJ1llj SJ 8601&C (OSI2OO5) 11.19:13a.m. 03.16.2006 4{7 . 14. EQUIPMENT STATUS. UnIcss)'GII IIC lCIjUirinB Pseviously .....Icd Equl~_~ [qui".- will be .itbeJ (a) "Newly Manuflcl\ued". which _y contain S_ ,"yolcd componoms Ihat ... rocondalioocd; (hI "Fac1~ Pnlducood New Model", which is manufllC1UJed Illd newly so.iaIiocd .. a Xc:Jox flCt~, lIdds fimc1ions .... fi:llla.. to a produa pn:violu\y dislSSClJlblecl 10 . XcroI plCdctcnnillcd SIn\anl, and contaiIIs both IN'" COIIIpOIlCIIIs and NCyeIcd compo_ that an: JCCQJIditioKd; .... (c) "Ilell\llllllflclun:d". whic:h IIlIs btJClI fact~ ploduccd foIJowinl di...scmbI~ to a Xerox prcdetcnnincd standard and contains both new COJIlponcnts and JIlCyclcd componcnts1haJ IIC IOCOJldiIioJled. IS. LEASE OPTIONS. The following OI'Iions IIC availalll. for Equipmcnllllllject 10 this ApcmcnI. A. PURCHASE OPTION. If not ill default, you II1II)' puschase the Equipmem, "AS JS, WH6RE-IS" and wmtOUT ANY WARRAN1Y AS TO CONDITION OR. V ALV6: (i) II ... end of lhe I.... lCmI fa. Ihc PUJChasc Opuoa indicaled 011 6& face of Ibis Agn:cmelll (i.e. rilhcJ a ICI dolloJ IIllOWII. OJ the Fail MIfItcl VIII... 01 the Equipment II the lease lCJ\Il'S eoJlClusion ["FMVj). plus all applicable T_ or (ii) lilY 1* durinlthe Icasc tcrm by payi"8: (I) all amoumslbca duc' (2)'" .cmaininl Min~ ~ PI)'IIlCIIII ifllhc AIfCCIftClll'S tcrm ... any u'n..m..s f........ rnai_. Illd supply ciIaJps (. ron-d on lhe IcsIlaJ's books and '_1); (3) a JCISOllaIlle "lCIIpganent fee cah:ulalcd by Xaux th.. will .... cxcccd fdle... pen:c:n1 (ll%) of lb. _ in (2) abow (said __ is avllilahle &om Xerox upclJI re<jUCIII); (4) the applicable Pwcbasc ~. and (5) aD applicable T..... .....-. B. RENEWAL. Unless.iIbcr paR)' pIOVidcs notice II IcasI dIiny (30) days bcfJn lhe end of... Icasc ICIIII of ils inlenlion not 10 SCJlCW Ibis AgJ~ it will be renewed au-.:aDy on a monda__lII basia II ... SIlllC price, 1_ and eODditions and bij61l1 &cqucncy IS the oriaina1 A&Jecment. DIrilIS dais rawwaI period, cilhcr pany may ICIIIlm. this A&n:emenl upon .. IeIII thirty (30) days IIOlicc. C. LEAS6 TEKMlNA TION. lJpon ICJDI'nation punuant 10 B. IbcM and if )'011 ba.. nol pun:I1ased the Equipmenl, you shall make the EquiPl\lCfll ~aila1l1c for ..1IlOYaI by Xcrax when ~ 10 40 so by X....x and, 111bc time of RIRWII. IIIe Equipment sbaIl be ia Ibc ..... condition IS wilen dcliVCJCd (..-bIc war and ..., .xccpled), loplbc. wilb lilY JelaIcd 1OftwaJe. 16. PROTECTION OF XEROX'S RIGHTS. You hereby ..dIoria XemII OJ il$ IJCl1IS 10 file, by any pcnaiasiblc mClll&, fllllllcinc slakl1lClllS necessary 10 p_ Xerox's ripts 15 tbe EqWpmenl Lessor. X_x. on ,.,.. IIcbaIr aad II __ expense. II1II)' like illY acticIn rcqu..... 10 be laic... by YOOS IIflclcr Ibis ~ dw yooliil to like. ) 7 . REPRESENTATIONS, W ARIlANTIES A COVENANTS. 6ac:b pony n:psaeDlS ...... IS of lbe dIJC of sbis ACJCClIlCIlI. il .... 1he IawJill power aad awbOJity 10. CIlJCr illlO 1bis Agfccmau, lb. indi.iduals sipilli 1bis AIJCCIIlCftI .. duly authorized \0 do 10 on lIS behalf and. by cm..ing I!1is ~ it wiU "'" .ioI... any Ilw or oIhcr.....- \o...ic:h il is a pany. You.", ""'a_ of 1Ay1hmg III.. will ba>e a mllC.ialllCptivc .fI'cct 011 yaw ability 10 SalislY __ payment obligabos&s under lhif AcJecmcnt and all flflllEial inlOnnaJioft you hhe pJOllidcd. ... will p.cwidc. III X..... is InIC and ..,..... and proviclcs I aood n:pICs.mllloD of your filllllClll COJIdilion. Eadt JIIf\)'. apes dw iI will -..eIy noIJfy dle other party .. wnbnS of I cbaII&e IA ......-sllip. if ilJCIOCIICS ill principal place of busintss Of cbanps the llIIDC of ill business. II. NOTlC6S. Noli... must be ill wnting aad will be deemed &ivcn five (5) days aJlcJ 1I11ilin&, OJ '- (2J days aIlcJ sendinJ by l1IIionIIIy n:cop= 0....... couricJ. 10 the olheJ pany'. busiDcss ad..... OJ 10 such 0IbCJ ad..... dacignaMd by either pllly 10 tbe olheJ b~ wrin.. lIOlice aivca p1lJSUllllIO 1bis _ Tbc tenD "busiDcss 1ddJcss" sbaU _ for )'DII, the "Bill to" addn:ss listed on doe fast pap of dIis A&r=menI and, fOJ Xcmx. ou. inquiry address set forth on dle JIIOSJ _t imroice \0 you. 19.. FORCE MAlElJItE.. XctoI sball nol be liable III you during l1l)I period in ~hicb lIS pe~ IS dclIJ'cd or p.....tcd, in u.IloIc .. ill port. by a CItC1II1\S1InCe beyond lIS n:lSOJIabJc COtlIJOI. which cilCUl1lSlanOCS include, but ... lI01 limi1Cd 10, the faDowina: act of God (..g.. tIood. canhqoaIcc, wind); 6n:; ww; ~ of a public enemy or ~~ ICI of saboJa&c; sIrik. or other labor dispute; rioI; mISIdY~~. of doe sea; inab.hl)' 10 __ maIcliaIs and 1 01 transpOJlllion; ... . .CSIlo:uon Imposed by legISlatIon, III onIcr or I J1IIe OJ ..aula1ion of I pcllllllCJllll cDIity. If such I eiJcuJnf..... _. Xerox sbaII uncIcnakc JCISOJIIbIc action 10 llOlity you oflbe...... 20. MISCELLANEOUS. Thif A&JecmeDl COIlSIilUlCS the CDIm. ag.....-t.. .0 i1s subjccl _. supencdes III prioJ IIld CJllltcmpor_ OJII aad wrillal IgJOCI1lCIIts. and ....11 be COJlS1J\ICd IIIIdeJ dle laws of tbe SIIJC of New yat (wilhoot JCpnl to OODIlicHlf-law plinciplcs). Yoo IIJCC 10 \be jurisdiction IIId venue oflbe _ and 51... coWU in Monroe CouIlIY, New York. In any action 10 enforce lbif AJn:ana1l, the pasta _ 10 wli.. tbeit ri&h11o I juJy mal. If I 3/1612006 p.30f6 t.' ...... .... ,Itt ..1"" . c:oun finds illY lcrm of thi. Asreemmlto be UIlCllforceablc, lhe romalllin& lerm. ol Ihi. Agreemenl shall romain in .ft"ect. Beth panics may rolain a rcproduClioa (e.c.. electroni. illl8g&!. ph01OCOPY. facsimile) oi Ibis ApotI1eIll which sltaIl be admissil>l. in any action to .Dforce it, bill only lho A,lCOlIlODI hold by Xerox sbIIl be coJlSidered III oriSinal. X.... may accopI Ibi. Allcemcnl .ilber by ilS 8Illhorizcd .iSDoluro or by COnlmencinc pcrbmanco (..g.. Equipm.... delivery, iaitillin& Basic ServICe'. ~.). All .h..p -to lIIis A&recmeDl mUSl be IIl8dc in a writias .ipcd by both pani..; accordingly, illY rerms on your OId.rille documcnls shall be of no force orelfect. The followinc fOllr 5OlIIcnocs ClJlItroI over e,.., Olher pan of llIis AgJeomClllllld 0... all oilier documeals now or I.er pcnaiDiDlIo thi6 Agrecmeal. W. blllh in1end 10 comply willi appli"bJe Ilws. In noevOlll win Xerox charge or colJecr lilY ImOUlIl. in ...... olll1ost allowed by Ipplicable law. Any pan 01 this Agremenl thol would. but for Ibis Section. be read under any .ircunullnccs to IIIIow for I chatce hi&hcr 1han that 1110,," under Iny Ippli.abIe lepllimil. i. limited and modiflCd by this Saction 10 limit the amounts chargeable under Ibi. Acreemcat 10 the _i_ IIDOUn! allowed under Ihe Iegallimil. If, in any eircu...w..... any III1OW1I in ex.... of lb. llJo\ocd by law is chaIpd or received, any such ellargc will be deenlCd limited by lIIe amOtllllIc:pUy aIlowc4 Ind anyamouDI received by Xerox in elIee.. 01 that legally a11o,," will be applied by us 10 lb. pa)'lllOlll of amollllls legally owed under this A3fecmcnI. or refundcd 10 you. SOI'TWARF TERMS: The ioll_inS additional rerms apply only 10 uasacri... _eriDS ApplicallOll Software and/or Xerox-brand Equipmenl: 2l. SOFTWARE LICENSE. The mUowins lerm. apply 10 COpJII'ilhted softwllle and Ihe accornpanY'''S docUlllCllraioll. includiD&. bill IlO\ limited 10, opetIIin& 'yslCnl softwar&, provided with or within Ihe ~rox.brand Equipment ..quiJal 1len:1UIdcr ("Base Software') .. ..,11 .. software speemcally set OUI.. "ApplicalioD Software" OR the face of lIIi. Alrcanenl. Thi. license doca not ~Iy to 81\)' Dlapostic Software or 10 any software I documentation ICCDmpanjed by I c1ickwrap or shrinkwsap hce... _ment or Olhcrwise made subject to I ~ IiceDsc "8'eemcIIl. A. Xcro. grants you . nOll....lusivc, DOD-l_sfcrabIe lie.... 10 ... ... a- Software within die Uniud SIIles. iU lelTltories. and pos$CS5ions (Ihe 'United 51""") mly on or with die EquiJlfllCl1t with which (or willoin which) iI .... ddivcred. For ApplicaliOll Software. Xerox grantS you I non-exclusive. nOll' lrIIlsforablc li_ to use this softw"", within chc United Sta1C5 onlOY s..... uail of .quipment for as IonS as you ore ......1 in die pa)'IIICIII oIlOY indicated software lic:ensc foes (includiDe lilY Annual Renewal Fe..). You ha,e 110 odIor riPts to Ihc Bue or IIpplicabon Software and, in. panicular, may 1lOl: 1I) distribUlC, copy, modil)>, ClCIIt duivali,.. o( decompile. or ..".... ......... thIS softw..; (2) acr;\'IIO any sDftware cIeIivl:ted wilh or within die Equip_ in an lIJI8Cti_ ....; or. (l) allow Olhors 10 enPIC in s_. Tid. to the Bare_ ApplicaliOR Software and aU copyrieJus and olhor inl<Dectual propctty rigbll in it "'all II all limes re.ide soIcIy wilh x..ox and/or irs licensors (who shaD be con.idered third-party bcncflC..nCS of this AgrcCftICIII's sotlw.. and limitation oi Iiabilily provisions). B... MId Application Software mBY CODIaiIl, or be IIIOdiIied to eonllia, compuler code capcbI. of automalically disablins proper opct"""" or funclioning of 1hc Equipmenl Such disabling code may be 1CIM1ed if. (I) lCC\lIX is denied reasonable access to the Base or IIppJiCllion Software 10 periodically mel IlIch code; (b) YOCI arc nOlified of a defauk UDder any ICllII of this AIfCC\IICIl\: or. (e) your liCOllSC IS tennilllled or expires. B. ~ may Icrminate your li<CIISC b' any Ilasc Software (I) immedillCly if you DO 1_ US. or possess the Equ;,mcDl or ... I Jcsaor of die Equipment and your rust ICSAC no Joncer .... or pas...... i~ or (2) upon Ihe tcnninarion of any liJCCIIlenl under wllich you bye rented or leased the EqUlpnlall. C If you llMSfer possession of lhc Equipmelll aIIcr you ~D Iille to it. Xerox will olTerl/le transfer.. a Ii..... to lISC the Bare Software wishin die United Stares on or willi k, subj cor 10 Xerox~ thcn.appljgble ~ lid Ii..... te... if lilY, and pIOYided Ihc tnlI$fer is 101 in ,iolllion ol Xerox's ripts. D. Xcro. WlUlaDlS that tho Base and Application Software will perfonn in lIlIIOrial collfonnity with it. user doc:wDcmalion for I ninety (90) day period fromlhc dale 1\ is deliverod or ior sofIwll/e in'lalJed by Xcro~, the date of SOnw.e ...taIl..... Neither Xerox 'nor ilS licensors warrlllt that tbc a- or Applicllion Soll..are will be li'cc li'om elTOrS or that its operation wiD be Wlinlcnupt<d. 22. Sorrw lIRE SUPPORT. During the period that lCerOI< (or I dcsi&aatM servicer) provides Basic Services mr the Equipment but in no event ~... 1han1lvt (5))'CaB aIler X..... 'lop. taking ordors trom eu.lomers for rhe" acqulStaonofdle sab.ieJ:t model 01 Equipmem, Xerox (or I dcsillllated SCf\/icor) will IIso proviclo . software suppan lOr 1hc Base Sollware ...dcr tho foIJOWIll81crms. for IIppliC81ion SoIIware licensed purs\lln\ 10 chis A&rccm.... lCerOI< WIll plOYide software ~ UDder Ihe following 'orm. provided you are .urreal .. the paytnCIII of all lnilial Li..... and Annual RellCwa! Fees (Of, '" program. not rcquirilll Annual R_ . f....th. payment oldie lnil;.1 License fee and the lIlDUaI -Suppon OIly" Fees). .. Xerox formll 5186OlA. (0SI2005) 311612006 11.19:59 a.m. 03- 1 6-2006 5" A Xerox will 1S5USC dlat Base and Applic<<ion Sollwarc perfOrms m _ia1 confOllllity with iu II5C1 cIocumenlllrioD and will118illlain I lOlI.lice bolJiIIe duria& .tandard busillCS. bows 10"'_ related qUCSIHlas. B. XClO~ may make avaiJablc .... re...... of the a- or Applicalion Software that primll'ily incnrporalO codillC error n... and ... designaled as ""MaiJ1~ Rdc....... MaiDl_ Rdc.... arc provided . 110 cIoarp and must be implemented within .i. (6) IIIOIIths allcr bciJt& made availallle 10 you. Each..... Maintenance ReJease .hall be oonsidcred Base or ApplicaliOll Soh.. JIl'o'ClIlCd by th.se Software Tc:rms. Ne.. releases of Ihc Base or Application Sollwuc tbal arc nol Maintenance Releases. if any. may be su~tlO oddi1ionalli_ foes at Xero~~ ...........1 pricinl and shall be clDlSidercd Base or Applicalion Software govemod by Ihes. Software Terms (uaI... ntherwisellOled). lCerOI< will nDl be ill bzcach 0I.1s software suppon obliplions hcteulldu il; in order 10 implcmca/, in whDIe or in pan. a new n:1casc 01 Bare or Appliearion Software provided or made available to you by Xetox, you IIIUS\ procwe. II your expert5C. additiollal hardwIrc lIICIIor sollw.. Ilom Xern~ or any Olher cnlity. You qrce to .....m or desboy all prior releases. C. Xcrox will use n:lSOIlIblc efbts. .i1bor directly IIIdIor with lis vendors, lO resolve codin& errotS or provide worIwound. or palChcs, provided you rapon problems as spceifaed by lCaax. D. Xcrox .....11IOl be obIipted (I) to support..y Bare or Application Software that is two or II10rC rei..... older than Xero~'. most ....m release or (2llll r=ncdy codinc Cl'fO/5 if)'OU ha,. modified the BasI or Application Sollwan:. E. for Applicalion SolIwan:, lCaax may IlIIlIlIlly incrcue the AMuaI ReaewaI and Suppon.()aJy F.... each 51Ich........1IOl to exceed 10%. (For staIt and 1ocaJ.. ...........t CUSlOlllCQ. Ibis 8lljumncn1 shaIIl8ke place at IIIe ClIrIIIIIOalcme 01 each of your annual COIllrICl cydcs.) 23. DIAGNOSTIC SOFTWARE. SOftware....d 10 mainWn lhe EquiplllClll aadlor di_ iU fililarcs .. ....,.tandanl performance (coUcctiwly "Diapostic Sollw...") is embedded ia, resides on, or may be Iooded 0IIl0 tho Equipment. The DiagnosIie Software and DIOlbod oi entry or ...... 10 it constilUle valuable tnlde SCClClS ollCerOl<. Tide 10 Ihc Di"8JIGSbC Software shall . a111imcs romain solely ..i\lo ~"'" and/or XeroIt~ b........ You."... thai (I) your acqu.sition of IIlc EqulJll1lCl1l does nor BflDI you I license or right to use the Diaposlic Sollw... in ..y /IlIlIRCI', and (b) rhat 1UI1css scpantdy licensed by Xerox to do 10. )'OIl willlllll .... reproduce, disUibuIe. or disclose the Diagoostic Softwan: far any purpose (or allow dlird p81lics 10 do 10). You asm: II "I times (includina subsequem III die expiralion ofthi. Acr-ent) 10 allow ~lDJllD ......, monitnr,lIId orlIerwise lake 51eJ115 10 """"'" IIIl8IIlItorize \ISC or rcproduclion ofdle Diapostic Softwan. GOVERNMENT CUSTOMER TEIlMS' The foil..... additional _ apply only to ..... IrIDSICtiGns with SIIlC and local government_: 24. REPRESENTII TIONS a WARRANTIES. FUNDJ)/G, TAX TREATMENT &: PAYMENT. "- REPRESENTATIONS a WARRANTIES. You hereby n:prestnl and warrant, . of the dati of Ibis Act........1. lhal: (I))'OU.... I SIIlc or I fully ~ed political subdivision or apncy 01 the Stale OR whu:b you lro Iocatcd and ... IUlhoriaed to enlCl into, 8Dd c:any DUl. your obliptions under this AgrccRlCnl aod any osher documelllS tcquircd to be delivered in conncclioa Mdt Ihc Apccrncoa (collecliveJy, die "Docu_i; (2) the DocumcnlS have been duly IlIlhoriad, execulOd and deI.vered by you in accordance willi all applicable lawa, rules. ordinances and rcguIlIIions (iecludiDJ, bur nor limilcd to, all applicable lawa sovcmins opon meeli..... public biddin& aad approprialions Rquirod in ~ wilh tIlis A",-I IlId 1IIc ....uisition of the Equipmenr) lIld arc valid. lelll. binding Ipcemenl$, enfon:c.able in accordance wilh thcit ......... and 1hc pcason(s) .ignilll lbe Doclamcnts baYC Ihc aulborily 10 do so, .. acl'lIC wid> the filii autIJorizatioa of your .......inJ body aad hold Ihc olliccs indued below their .i......,.... each ol wIIich arc 8C\Illine: (3) lhc E...i..- is OSIClIlial to ... immtdillc performance of I SOV_I or proprietllfY functioa by you wilhin Ihe .cope of your authority and shall be .sed durinc ~ Icase _. only by you and only 10 pcrfonn such function; and, (4) your obI,pUons to relAll pI)mCllts under this AgrccmeoI constitW I ......11I oxpcnsc and nor . debt tmder appl_1e 5lIIe law and IIIl provision ollhis AIfCCIlICIlI constiMcs I pIedse of your till or pncraI revenues and ..y provision IhaJ is.o conStrUed by a COlIn of compc....tJUrlsdICl... is VOId JiOllldle inc:cpcion oflhis A&rccmcllI. B. FUNDING. You lCJlI....llrId ......... ... all paymeolS due and to become clue duriD& your cuncn\ fiacaJ year arc within the Ibcal bIJc!8c1 of such ye... ~ arc included withiD an ....-ictcd and uoenl:Ulllbered appropnatlOll currntly IVIIIabIe tor Ihe 1eascIplD'Chase ollhc Equiprnonl. ..d Ihal it is your ill1enl to use ~ Equip_ tor the colire ..... Ierm and to ~ all JlIYIIICD15 required ..der thlS A&rcancnt. In Ihe CYCII\ that (I) lhroqh no ICI,,,,, irIitio1ed by you your Je&isl1l"e body doca IlO\ approp,,* tiInd5 '" Ihc .<*ituiarion of Ibts II8fCCIllCIll for allY fiscal Y" after the Iinlliscal year lid has IlO funds to do 50 !tom Olher sources, and (2) you have made I reasonable but uasucccssfuI ./Yon to fled I creditworthy I'afe 4 of 6 lt~ ..._- .-...... ........-- II' assp lOoopIablc 10 lWox in its sol. dismtion ..idlin your general orpniulion who can lXJIIlinu.lhis A&JUIIl.... Ibis Agrcemcol may be lenninated. To cIfcGt !his lennillMi... you shaI~ thiny (30) days plior 10 tho bqi..... of.... Iisc:ol year for which your lesislalivc body docs nol IPI'lOptiat. filnds for such upooming Iisc:ol yell, ....d XaoK written JIOtia: statinB lhaI yout legislative body foiled 10 appropriate filnds and lhII you have made the requited .ffon 10 fiIld on assi...... YOlIr noti"" mllSl be """"",ponied by paymonl of III 5\IJ1I5 lhcn owed lhmusJI doe <.,rcnl ,.. 10 x..... under Ihis Agreement and DIlI5I wrilY lhII the oaDa:lcd Equipmenl is n01 beina replaa:d by equipmeal pedormill& .simil. func:Ij... dunng the: C05LIing fiseal)'Cllr. III addilioa. you 1&* 11 your expalse 10 tCllJlJl Ibe Equipment in good condition 10 I Iexllion designaled by XeroK and dill, when returned. the Equipmenl will be free ofoll Ii.... and encumbnnees. You wiD then be rei...... from YOIll obli&llions Jl) maU 10' funher paymenrs 10 lWox beyond those due for !be currenl fIScal y.... (with X..... retainiJls all s_ p.id 10 dllle). C. TAX TREATMENT. This Agrccmenthas been acc:epICd 00.... ....is ofy_ rep_arion IhaI x..... may daim any interest paid by you 15 ex.mpt from federal ilK'Ofll. taX under Sel:lion 10](c) of !he Code. You apec: 10 oomply with IIle information ICpOJIina requimnenl5 of SeeI1011 1491.) of.... Code. Such collllllionee shaD include, bUI IIIlI be limitetl to. dle ..ecution of 803&-<l or S038.oc lafolllllllion Retoms. You herl:by ""poinl X..... as your ....110 maintain. and Xerox ogroa 10 main1aio, or...... 10 be mainlaiaed. a complete and accur.. rKGnI of olI assignments of this Agrccmenl in form sufflCienl to comply wilh the booI: enuy requirements of Scc:tion 149(0) of !he Code and tho rqulalions pRSCribed lhen:under from hm< 10 lime. Shoul4 XCfOK lose .... benefll ofdlis exemplioa as a JC5U1l of your fililure to comply with or be _eted by S_ 103(.) or 'IS rcgu181ioas, then, IUbjcct 10 IIle availability of funds IOd upon demand by Xaox. you shall pay XelOK III lIIJlOUIIl .qual 10 its loss in Ibis n:prd. At dle time of execution of dlis Agreemen~ you ""all provide Xerox with a pr<lpClly prepared and _d copy of US T....\II)' Form 8038 or 80~ D. PAYMENT. YOUJpaymenl is clue ....hin thlllY (30) days ofOUl' invoi<edllle. ADDITIONAL TERMS: The foDowin& additiooal tams ....ly ooIy to !be _ Ihat you have apec:d '" 00< 0/1llDR of the options dCSClibod below: 2S. CONSUMABLE SUPPLIES INCLUDED IN BASElPRlNT CHARGES. If lllis option hIS been selected. Xerox (0/ I desi&llllled .....icer) will provide you willt black lDIler (excluding hishligln color ronerl, b1ac1: developer, copy Cartridps. and, if applicable, l'utcr ("Consumable SuppliesM) lhmupo.t Ibe term of lIlis Alreemenl. For full-coJor Equipment, Consumable Supplies shall also include, as applicable, colnt lOller and developer. You asm: lbllllhe C..surnable Supplies ... XeIo1l's propeny .mil used by you, lhal you will use tbem ....Iy wilb !be Equipment. lhII you will retum 011 Cwidges to Xerox for .......ofacruriRI oace they have been lUll '" tbeir .....-func:tion poilll (at lWox', 'xpeII5C wbea -I Xeroot. supplied ""ipping lobeIs), and IhaI II lbe ClOd of.... tentl of this AaJcemmt either (a) you will return any lIJIlIIed CDOSllmable Supplies to x..... (II Xerox's Cl<JIC* ....... \ISing Xerox-sUPI'liod sbippilll labds)or (b) desttoy _ in I _ penniltcd by "PI'licabIe low. Should your use or COIIs...oble SuppJics ..need J(emx'. publisKd yields '" lhese Itmns by more tI1an 10%, you opec 11III Xatox shall have the right 10 cbaI8< you for IOY such .......... WIlen ltqooestcd by Xetox, you apec: 10 pIOvieIe me.... R:adiDas and iIIVCtItory of ContlllDable Supplies in Y'" poISMSion. 26. REPLACEMENT I MODlFlCATION OF PRIOR XEROX AGREEMENT. If this optiCNI hIS been selected, this "reo- will tepiace or modity I pIior ..,_ betweea you and XeIo1l COl'Uina !be specified cquipnleot. If it is a tqll_ asreemeat. lbe prior IlltcelllClll shall be nuD .... VOId. If ft IS a modificalioa, Ihe ptior ICfCCIIlCJIl shall rem... ill .llCct ClCcept Ihat III)' terms pICSCOteG in this modification IgreCfOent Ihat conllil:lwi1h, or .. adcIitm: to, III)' of lhe tenn5 in .... prior agreemenl shall tat. precedetl<e 0Yet Ibe temlS ift .... prior ..,..,...1 lOt the balll1CC of tbe Agr_. In oddition, modifiellions ttqlIirina a rnmortizalion of your paymeD15 may include a ooe-time adminiSlJltiwe/proccssina c:Iliqc dlaI wiD appear on your first bill ....... this ",wised arnnce-cnt. 27. XEROX AS FlNANCIAL INTERMEDIARY. If Ihis optiOll ... been sdCOled. you lie lcasinl specilically idenlifled Jlfodllcl5 tbaI ""'" ..1<<led by you and that ... 110I sold by XerOK in the ......... course of its bu.i..... If you h... siJned a purclltie conltal:l for Slll:h plDducu, by silJling this AgrccmeDt you assip ,- rishlS bill none of ~ obIigllinlls UIIdet web purdaase c:onttaCt 10 Xaox. With reganl to lbese pmdll<U, you 08fCC dI. x..... i$ leas... them .. you "AS IS, WHERE IS" lIIId lhal XEROX HAS NOT MADE, AND YOU HEREBY WAIVE, ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (a) ANY IMPLIED WARRANTY OF MERCHANTABilITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT, and (b) ANY REPRESENTATION' OR WARRANTY REGARDING THE PRODUCTS' SUITABILITY, DESJGN. CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR APPliCABLE LAW. Xerox assigns '" you, '" the exlCnlassiplble, III)' ..arratIl)' Xerox FormII ~11601&:e (OSI2OOS) 311&2006 11.20.42 a.m. 03-16-2006 en . rigllls it has to thc:se producIs (which rights shall ""'... 10 lWox if you breacIl did Agr...-I). YOlI" (I) Ihat thc:se prodacts ... J\Ol COYettd by XCJOill'S obliption 10 provide Basic Sctwi...; (2) 10 maialain a serwice ......11I for these prodllClS with I setVi.. prowidcr KCeplabIe 10 Xaox ......ghout this ~'s term; (3) 10 pay all pmOIIaI property ..... ..llIed 10 these procIucu; and (4) to sip 10 XemK my ri&bts you "lYe to lhese pIOOlIClS llIllil1itle passes from Xerox 10 YOll (which, sabject 10 MY toftware IiCCll$CS sllttClllDlling tile lCq\Iisilion of1hese product>, shaD OCCUt when you obtain lille to III X......-bnnd Equipment cowered by \his Agreementl. 28. FINANCED SOfTWARE TOT At. If this option .... been selecled. the itIili11 license fec:s for any Application Software sel forth in this AgtcemcIlllIIaII be paid for lIDouJh your MiDittllltl Lease P~ If you bread> this 1ic:eDSe or Ill)' of your obliplions reganling .... Eq~ .... full _ oflbe miliallicensc fees shall be immediaIely clue and poyabIc. 29. FINANCED SUPPUES TOTAL. If this option has been sdecled. the <051 of my supplies you hawe purchased lIIIder this Apement shall be paid for Ibrouch your Minimum Lease Payments. lfyou bracb III)' of your obligations tep"dill& the Equipmen~ the fulllll1lOUll1 of the wpply 0lltIS shall become iIMlediMely oM IIld payable. 30. RE.FINANCE OF PRIOR AGREEMENT If this option.... been selected, tile ..lane< of your pIior indicated __ with Xerox or a thinl patty shall be paid for tI1tough your Minimum Lease Pa~. If your pnot ......... is ..ith a tbinI party. yOU bcrcby actnowleels' thll you h""" !be right 10 .....illll. .... .- and ... 10 p_ide 0 ........... from the thinlopuly idenlifyiaJ the equi~ 1\ i..ue and dle _ to be peid oft' (as ...11 as a s__ from you i*",ifYiIlI lite payee and mailing addRlSS fi:Ir your payoft' chedc} If your prior ..- _ wi1lt Xerox. tho use of this rd"manoeoplion shaIJ RlIldcr your prior ............ ...11 and wold. If you bRad> Ibs Agreement. the f.1I amouoI of yout prior lIjp1lClJICnI bII_. sholl be immediately dlx and payable. 31. ADJUSTMENT PERIOD. If this option has been seleetetl, your MWmum Lease Payment IIldIor Prinl Chqes shall be adjumd in accordance with .. mcorma.iCNI co...ined in the Alljustmclll Period portion of this Acreemeat; IS a nsult. your inilill payment(s) shall be dilfetent Iiom Ihose payable 4.rinc IIle beIance ofthi. A8feelIIaII. 32. K-16 BILLING SUSPENSION. If this optioll .... beeIl selectl4. the Mainlenan<e Component of)'OUt MiDimltl\l Leue Plyment and Pliol Char.. wi. be suspended each yell dllriDg .... 1tl0llllls indic...... During these montlls. you I&tee that you wiD DOIl1SC the EquipmeDI and ..... Xerox shaD not be ICSponsible for prowiding Basic SeMce$ 011 it. If X..... provides Basic Setvices dwiD& the K. 16 Billing Suspension period. you will be billed 1& Xerox's thcnoQllTCll1 Time and Materials ('"TAM") rates fi:Ir sach Basic SeMc:es 33. TRADE-IN EQUIPMENT. If this llpIiDR has been sela:led. you .. providing equipment '" Xaox as pan of this Aarcemeal (MTrade-1n Eq1lipmeat") 18lI1Ile follow... shaU apply. A TITLE TRANSFER. You w_ that you have dle ri8ht to _fer litle to the Trade-Ill Equipntelll and that il has been installed and pedonniDI its intaldetl function. Title and risk 00... to Ibe Trade-In Equipment shall p.ss to Xeroot ..... Xerox......... it from your"...... B. CONDmoN. YOlI wonantthat thc Trade-In Eq~ is in BOnd wwk.. order. has lIDl...... modified from its original configuratiooo (olIIer _ by Xeroot~ and hIS a UL label attached. You "Fl' to lDIintain 1Ile Trade-In Equ",,- 1\ iIs pmcII\ siI. and ia subttantillly ilS pJaClIl condilion 1IIIli1_ by Xerolc. C. ACCRUED CHARGES. Voa "Fl' to pay all accrued c:Iuqcs for the Ttade-In Equip_ (up to and indudinl payment of the Final Principal Paymelll NWllher) and 10 pay all mainleaanc:e. administrative, 5lIpply and flJ\lllCC cbarps far this oqulJlmenll/uougb the dole IilIe pasteS to Xaox. 34. RUN LENOlll PLAN. If this opliorl hIS ...... ....CIed, the flJSl ten prints of ead> original (per 111I1) ... recorded and billed on botb ........ with all s_"""", prinlS m:ordcd and billed 00 M..... A only. 3S. FIXED PRICE PLAN. If Ibis option bas beea sdecIcd, X_ will bqo lis right 10 ilIcrease tl10 Mutenance COIIlponelll throuchoul the inicial IemI of this ~ 36. PER-FOOT PRICING. If this option has been sdeded, all Print ChIltJCS will be billed OIl a per.foo\ basis, with ead>li_ or square fool. as applicable, equa!1O onepl" 37 EXTENDED SERva HOURS. If this option .... been selected, Xerox will prow'de Basic: Serwi... d...... lhe l10uts indicalcld, witIt tile fllSt IlWlIber CSlabIishing dle .umber of.ighl-bour shills covered and.... second eslablishillg lhe days of the week (..... 2 x 6 MUId provide service from 8.00 AM. to 11 :S9 P.M.. Monday throa&h Saturday). The 005t of this enloaIlced wwine co_. will be . p.S of6 tt4' _ .,...._ ,_...11-'"'''''' 1 1 .21.25 a.m. :l billod scpualCly and, as such, is DOl included in )'OUf MinImum Le... Payment or Print Char... 38. A TT AOIED ADDENDA. If this option bas been sdceJcd, you acknowle4p lhaI one OJ more specified ~dcllda (as indiclled) llave been provided 10 you. These addellda, which provide oddilianal wms ..1evanI to lbe Uansaoboas covered he.OllIIder. .. hereby fully inlo8ralCd into this Aareement. 39. NEGOTIATED CONTRACT. If this optiOll hIS been selecled, lbe I'roducls idcnliflCd in this Agr....... are subject solely 10 the IeIIIlS COIlIained .. (,) eilher (I) the identified NcgOlillCd CllllUICI lbr a lease uansacli"" or (2) ifthcre.. no such lcnns ,n Ihe Ncgolialed ConlraC\, Ihc tonns SCIlOr1h in this Agrccmcn~ and, if applicable and nolW.thstandin@anyrhin8 10 the c:ontraIy set forIb in the NepalCd Con....~ lll) the "Additional Tenns" potlioa of this Apemenl for dIC scIccted oplion OJ options to the extent the subjccl rnalIer of any such .."'led 0IIli0n is IlO\ addrcssod in the Ncgotialcd ConIrIcI. 40. DSA CONTRACT NUMBER. If a DSA CcrurllC\ NIIIIIbcr hIS been inscnccI, the EquipmeIW and/or software idcntiflCd in lIIis Apccmcnl are associ8lod with Ihc Service.s bcinc prOTided undef Ibe ..fOfCllClOd Documml Services Agrcernem ("OSA"~ bat such EquiplllCllt ....01 software are sllbjCC1 soIcIy to the lenns conIainccl in this A&r=mcnI. For eastolllcr support tools to mBlIlIlc your aceo..t online, visit YOllr Aeeount MBDBllcmcat Jjok @ w_.xcrOLc:om Xcn>x fortnll 51860l4<. (0SI20051 3/1612006 <1;;....- It;'l 03-16-2006 7n Pagc60f6 Sponsored by: Corbridge .. CITY OF SEWARD, ALASKA RESOLUTION 2006-34 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING AN ASSIGNMENT OF THE AGREEMENT BY AND BETWEEN THE CITY OF SEWARD AND QUTEKCAK NATIVE TRIBE FOR OPERATING AND MAINTAINING THE SEWARD MARlCULTURE RESEARCH CENTER AND SHELLFISH HATCHERY TO CHUGACH REGIONAL RESOURCES COMMISSION WHEREAS, the City and Qutekcak Native Tribe ("QNT") entered into an agreement in December 1997 for the operation of the Mariculture Production Facility and to cover maintenance costs at the Mariculture Technical Center while producing high quality spat and aquatic plant seed stalks for the Alaska Mariculture Industry; and WHEREAS, a new Agreement for Operating and Maintaining the Seward Mariculture Research Center and Shellfish Hatchery (the II Agreement") was entered into with QNT and QNT has been operating the shellfish hatchery under this Agreement since May 28,2003; and WHEREAS, QNT would like to assign its responsibilities under the Agreement to the Chugach Regional Resources Commission ("CRRC"), a consortium of tribal entities; and WHEREAS, Amendment No. 1 to the Agreement authorized QNT to assign its rights and responsibilities, subject to the City's consent and other conditions being met; and WHEREAS, under this assignment, CRRC would assume all the responsibilities under the Agreement, but it would not release QNT from its responsibilities, if CRRC failed to perform under the Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. An assignment by and between the City of Seward and Qutekcak Native Tribe for operating and maintaining the Seward Mariculture Research Center and Shellfish Hatchery to CRRC in substantial form as presented at this meeting is hereby approved. Section 2. This resolution shall take effect immediately upon its adoption. . ~,r;K- -:1.\"1. v, PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC, City Clerk (City Seal) 117 COUNCIL AGENDA STATEMENT Agenda Item: March 28, 2006 Clark Corbridge, City Manager (jelL 3~ 17-0&' Kirsten Vesel, Assistant City Manager ~ Seward Mariculture Research Center and Shellfish Hatchery . Meeting Date: Through: From: BACKGROUND & JUSTIFICATION: The City and the Qutekcak Native Tribe ("QNT") entered into an agreement in December 1997 for the operation for the Mariculture Production Facility and to cover maintenance costs at the Mariculture Technical Center while producing high quality spat and aquatic plant seed stalks for the Alaska Mariculture Industry. A new Agreement for Operating and Maintaining the Seward Mariculture Research Center and Shellfish Hatchery (the "Agreement") was entered into with QNT May 28, 2003. In December 2004, the City approved Amendment No. 1 to the Agreement, authorizing and approving an assignment to the Agreement to the Chugach Regional Resources Commission ("CRRC"), a consortium of tribal entities. That assignment expired and the parties have requested another assignment to allow CRRC to continue operating the facility. Under this assignment, CRRC would assume all the responsibilities under the Agreement, but it would not release QNT from its responsibilities, if CRRC failed to perform under the Agreement. Eventually, the parties involved would like to negotiate a new operating and maintenance agreement. However, a new agreement would involve a longer process and require approval from the University of Alaska who holds an underlying lease of the property. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: The only costs associated with this assignment are administrative staff time and legal costs which are provided for within budget. Approved by Finance Department ~.Ia.r~ RECOMMENDATION: Council approve Resolution 2006-1:1. approving QNTs request for an assignment of the Agreement by and between The City of Seward and the Qutekcak Native Tribe for operating and maintaining the 1:1~ Seward Mariculture Research Center and Shellfish Hatchery to Chugach Regional Resources Commission. <j;f" n -4 i ,,; ASSIGNMENT OF AGREEMENT TO OPERATE AND MAINTAIN THE SEWARD MARICULTURE RESEARCH CENTER & SHELLFISH HATCHERY THIS AGREEMENT for the Seward Mariculture Research Center and Shellfish Hatchery is made this day of March 2006, by and between Qutekcak Native Tribe, a non-profit corporation organized under the laws of the State of Alaska, P.O. Box 1467, Seward, Alaska 99664 (''QNT'') and Chugach Regional Resources Commission, a non-profit corporation organized under the laws of the State of Alaska, 6200 Lake Otis Parkway, Anchomge, Alaska 99507 ("CRRC"). WHEREAS, the City of Seward is the owner of real property located in the City of Seward, Alaska; and WHEREAS, the City, as Lessor, leased the property to the University of Alaska (the "University") as Lessee through June 30, 2069, under the conditions of a Lease Agreement dated March 7, 1991; and WHEREAS, the purpose of the MPF is to produce seed stocks for Alaska aquatic farms, and the purpose of the MTC is to focus on mariculture research in Seward; and WHEREAS, the City entered into an agreement with QNT to opemte the facility pursuant to an agreement dated May 28th, 2003 by and between the City of Seward and Qutekcak Native Tribe (Master Operating Agreement"); and WHEREAS, QNT desires that its obligation under the Master Opemting Agreement for the opemtion of the MPF and the maintenance of MTC be performed on its behalf by Chugach Regional Resources Commission; Assignment of Agreement to Operate Ill. Maintain the Seward Maricu1ture Research Center and Shellfish Hatchery Man:h 2006 .page 1 oftZ'i) WHEREAS. CRRC is willing to perform the obligations of QNT. to operate and maintain MPFIMTC pursuant to the terms of the Master Operating Agreement; and WHEREAS. the City consented to an assignment from QNT to CRRC in December 2004 and that agreement has since expired. IN MU11JAL CONSIDERATION of the covenants and promises expressed herem. and other good and valuable consideration. the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Master Ooeratin2 A2reement. The Master Operating Agreement referred to herein is the Agreement for Operating and Maintaining the Seward Mariculture Research Center and Shellfish Hatchery dated May 28th. 2003 by and between the City of Seward and Qutekcak Native Tribe. 2. Mana2ement & Ooeration of Facility. CRRC shall maintain, operate and control the facility pursuant to the terms of the Master Operating Agreement and as provided herein. CRRC shall meet the obligations of QNT as provided in the Master Operating Agreement. The Master Operating Agreement shall remain unaffected by this Sub-Master Operating Agreement except as provided herein. It is the intent of the parties that CRRC shall assume the responsibility of performing the obligations of QNT under the Master Operating Agreement. It is not the intent of the parties to relieve QNT of those obligations but to fulfill them by utilizing the services of CRRC. Assignment of Agreement to Operate & Maintain the Seward Mariculture Research Center and Shellfish Hatchery March 2006 _Page 2 of 7- 1~1 3. Term. Subject to approval by the City of Seward, the term of this. Agreement shall be from July 1, 2005 until June 30, 2006. 4. No Release. QNT shall not be released from its obligations under the Master Operating Agreement. 5. Performance bv CRRe. CRRC shall perform the obligations of QNT under the Master Operating Agreement except as specifically provided herein. 6. Bond. - The bond requirement of the Master Operating Agreement shall remain in effect. 7. Insurance. CRRC shall provide insurance on the same terms and conditions that QNT is required to provide coverage to the City and the University under the terms of the Master Operating Agreement. The coverage will also have QNT as an additional insured. 8. City Approval. This Agreement shall be without force or effect until it is separately approved by the City of Seward. 9. Further Aereement. It is intended that by June 30, 2006, a new Agreement will be negotiated between CRRC, QNT and the City whereby CRRC contracts directly with the City and the Master Assignment of Agreement to Operate & Maintain the Seward Mariculture Research Center and Shellfish Hatchery March 2006 -Page 3 of7- .. {)-") .l'-I- Operating Agreement is replaced with an operating agreement that does not include QNT as a party. The consent of the University of Alaska will be required. 10. Nature of the Relationship. QNT is a member of CRRC but they enter this Agreement as separate entities. The obligations ofQNT are independent of the obligations ofCRRC. The parties are neither partners nor joint venturers, and they do not stand in an employer/employee relationship. They are independent, non-profit corporations. CRRC's work shall not be subject to supervision by QNT, and CRRC shall establish its work schedule, in its discretion, and the process and methods to perform the services required by this Agreement. CRRC will perform all services in accordance with applicable laws, reasonable and ordinary business customs and in an efficient manner. 11. Coooeration. QNT shall cooperate with CRRC in connection with CRRC's performance. QNT shall make available to CRRC the records of its operations and shall freely share information with CRRC as may be necessary or convenient for CRRC to perform its obligations. 12. Default & Termination. In the event that either party shall after fifteen (15) days notice continue to fail to perform any of its obligations hereunder, the non-defaulting party may elect to terminate the Agreement on seven (7) days notice, and such notices to include notice to the City of Seward. Assignment of Agreement to Operate & Maintain the Seward Maricu1ture Research Center and Shellfish Hatchery March 2006 -Page 4 of7- 't ."}. 3 -l-'"'- 13. Hatcherv Operatine Permit. CRRC shall conduct its operations under this Agreement utilizing QNT's Hatchery Operating Permit from the Alaska Department ofFish & Game. CRRC and QNT shall work with ADF &G to transfer QNT's Permit to CRRC as soon as possible. In the event of an ADF &G refusal, or of delay in transfer, CRRC shall provide notice of such refusal or delay to the City of Seward. DATED at , Alaska this day of March, 2006. CHUGACH REGIONAL RESOURCES COMMISSION By: Its: STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this day of March, 2006 by , (title) of Chugach Regional Resources Commission, an Alaskan corporation, on behalf of the corporation. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: DATED at , Alaska this day of March, 2006. QlITEKCAK NATIVE TRIBE Assignment of Agreement to Operate &; Maintain the Seward Mariculture Research Center and Shellfish Hatchery March 2006 -Page S of7- 1 01 .- . By: Its: STATE OF ALASKA ) )ss: TIllRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this day of March, 2006, by , (title) of Qutekcak Native Tribe, an Alaskan corporation, on behalf of the corporation. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: Assignment of Agreement to Operate & Maintain the Seward Mariculture Research Center and SheUfish Hatchery March 2006 -Page 6 of7- 123 CONSENT The City of Seward consents to the above Agreement. DATED at Seward, Alaska this day of March, 2006. CITY OF SEWARD By: Its: City ManalZer ATIEST: Jean Lewis, CMC, City Clerk STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this day of March, 2006 by , City Manager of the City of Seward on behalf of the City of Seward. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: Assignment of Agreement to Operate & Maintain the Seward Mariculture Research Center and Shellfish Hatchery March 2006 -Page 7 of7- \ 1J.~ Sponsored by: Dunham CITY OF SEWARD, ALASKA RESOLUTION 2006-35 A RESOLUTION OF THE CITY OF SEWARD IN SUPPORT OF THE PRINCE WILLIAM SOUND CITIZENS' ADVISORY COUNCIL COMPILING AN ORAL HISTORY OF THE EXXON VALDEZ OIL SPILL WHEREAS, the Exxon Valdez oil spill of 1989 was the largest oil spill in the history of North America, and; WHEREAS, the spill did great hann to the marine environments of Prince William Sound. the northern Gulf of Alaska, Cook Inlet, and the Kodiak Island area, and; WHEREAS, the spill severely disrupted traditional use of marine resources by residents of communities throughout these areas and; WHEREAS, the spill did great hann to the fishing-based economies of communities throughout the spill area and; WHEREAS, the spill created great social and economic strains in Seward and other communities throughout the spill area and; WHEREAS, preventing spills like the Exxon Valdez requires that we fully understand its causes, impacts, and lessons and; WHEREAS, no complete oral history of the spill has ever been compiled and; WHEREAS, many people with direct experience of the spill have since died and the memories of others are fading with time and; WHEREAS, the mission Prince William Sound Regional Citizens' Advisory Council includes the roles of improving oil-spill prevention and response. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCn.. OF THE CITY OF SEWARD, ALASKA that: Section 1. The City of Seward, Alaska supports the efforts of the Prince William Sound Regional Citizens' Advisory Council to compile and publish, in book form, a thorough oral history of the Exxon Valdez oil spill. Section 2. This resolution takes effect immediately upon adoption. PASSED AND APPROVED by the City Council of Seward Alaska on this 28th day of March 2006. . lf1 Mayor & Council Members, Seward City Council, Prince William Sound Regional Citizens' Advisory Council (PWSRCAC) is gathering support for gathering information and publishing an oral history of the Exxon Valdez oil spill (EVOS). The PWSRCAC Board of Directors, including lJle as your representative, believe this project is important and perhaps long over due. We have designated $50,000 to start this project in July this year. However we estimate the total cost of the project to be closer to $250,000. We are seeking supporting resolutions from all the member entities to help us document stakeholder support for this project. Hopefully that will help us secure foundation funding for the remainder of the project. I have attached a sample resolution for your consideration. I have also attached a set of talking points developed by Stan Jones (PWSRCAC staff member responsible for the project) to help provide background of this project. I would be happy to meet with you to provide further information about this project. Jean Lewis has told me that the first step in gaining your consideration is to identify a sponsoring Council Member. If you are interesting in sponsoring a supporting resolution, please let me know. If you have specific questions concerning the project I will be happy to answer them within the constraints of the open meetings laws. Thank you for your time and support, John John S. French, PhD PWSRCAC, City of Seward Board Member POBox 1470 Seward, AK 99664-1470 (907) 2244429 isfrenchtfiJ.aci.net 128 Lessons from Prince William Sound An Oral History ofthe Exxon Valdez Oil Spill o The Exxon Valdez oil spill of 1989 was the largest oil spill in the history of North America. olt did great harm to the environment of Prince William Sound and adjoining waters and to the commercial fishing industry in those waters. o It created great social and economic strains in communities on Prince William Sound and adjoining waters. oln order to prevent or respond to spills like the Exxon Valdez, we need to understand its causes, impacts, and lessons. o The mission ofthe Prince William Sound Regional Citizens' Advisory Council includes the roles of improving oil-spill prevention and response. o No oral history of the Exxon Valdez spill has ever been compiled. o Many people with direct experience of the spill have since died and the memories of others are fading with time. o Consequently, the council believes the time has come to preserve these personal experiences permanently in the form of a book we're calling Lessons from Prince William Sound. The first part will consist of interviews with people who directly experienced the spill and its aftermath: Alaska citizens; government agency personnel involved with the spill and cleanup; elected officials who dealt with the spill; and oil industry personnel involved in the spill and cleanup. The second part will analyze the lessons in oil spill prevention and response to be drawn from this wealth of personal experience. We intend to make it available in electronic as well as printed form. . Release of the book will be coordinated with a campaign of presentations, free copies, and other forms of outreach to industry, public leaders, and the news media. The book will also be promoted and distributed at trade shows and conferences. Copies will be provided to libraries in Alaska and elsewhere, as well as to researchers studying issues raised in the book. o We expect this project may identify needs that should be addressed in law or regulation, and we will pursue legislative or policy changes on those issues. o The council is now starting the process of raising approximately $200,000 in grant funds for the project, which is expected to cost about $250,000 over two years (including approximately $50,000 in council funds). Resolutions from our member entities will be instrumental in convincing major foundations that our project enjoys broad-based grass-roots support among the communities, people, and interests who were most affected by the spill. 129 . VI~ have drafted a resolution for your consideration as one of our member entities. We hope you will showyour-supportfor this project and the knowledge it can provide by passing this, or a similar resolution. . (If appropriate) We also will appreciate any financial support you feel you can contribute to this project. Another way to show support is by providing in-kind services. For example, we appreciate offers to host people who come to your community to conduct interviews by giving them a place to stay, or supplying transportation during their visit. You can also serve as a liaison _ connecting our interviewer with people who have important stories to share. All this demonstrates your community is behind this project.O .. r" J ...' :s:~t~~:ce w~'"'~::~ a-\:~so~:;t re p ~CA <'.. Page 1 of2 We.h~l~ . ~- Home About Projects Newsroom Outreach FAQS Calendar Valdez OffIce PO Box 3089 339 Haze\et Valdez, AK 99686 907.835.5957 877.478.7221 {toll free} 907.835.5926 (fax) Anchorage Office 3709 Spenard Road Suite 100 Anchorage, AK 99503 907.277.7222 800.478.7221 (toll free) 907.277 .4523 (fax) Emall US (main address) 24-hou r Incident reporting contact: 907.751.4489 (Anchorage) Who We Are Citizens of Alaska organized the Prince William Sound Regional Citizens' Advisory Council (PWSRCAC) after the Exxon Valdez 011 spill In 1989 to provide a voice for communities affected by 011 Industry decisions In Prince William Sound, the Gulf of Alaska, and Cook Inlet. The council Is an Independent non-profit organization whose mission Is to promote environmentally safe operation ofAlyeska Pipeline's Valdez Marine Terminal and associated 011 tankers. What We Do The council works to reduce pollution from crude 011 transportation through Prince william Sound and the Gulf of Alaska. PWSRCAC monitors Alyeska's Valdez terminal and tanker operations, conducts Independent research, and advises Industry and government on ways to prevent 011 spills and respond effectively If spills do occur. PWSRCAC also Increases publiC awareness of these areas and variOUS other aspects of Alyeska's operations, Including environmental protection capabilities and actual and potential environmental Impacts of the terminal and tanker operations, PWSRCAC and the Exxon Valdez 011 spill Regional Maps Brochure: Introduction to PWSRCAC (2004) (pdf/696KB) 131 Resources RFPs What's New HELP WANTED: PWSRCAC seeks skilled & experienced applicants for two positions: Maritime Operations Project Manager and Project Manager Assistant. Enter the 2006 Whalefest Poetry Contest. Winning poems will be read Sunday, April 23rd, in Kodiak. Prizes will also be awarded to winning poets. See our Outreach page for details. North Slope crude oil spill, March 2: PWSRCAC is not involved in the spill cleanup since it is on the North Slope, but we are monitoring this in terms of Impacts to InventorY at the Valdez Marine Terminal. > ADEC Division of Spill Prevention & Response The date has changed for the council's September board meeting in Homer. The new date Is September 18-19. Council president weighs in on Seabulk Pride grounding. CItizen oversight of 011 prollen to work: focus on John Devens' viewpoint in Anchorage Daily News, Feb. 6. 3/20/2006 PWSRCAC--History ofPWSRCAC and the Exxon Valdez Oil Spill Page 1 of4 ~ Prince William Sound Regional Citizens' Advisory Council ~ Citizen: promoting en'''luntTlent~1I1' :ule opel "llon 01 the ".I, "':1 (, klllilrl~1 and (,~ :ocl,tcd tCinl.el: Home About . Projects Newsroom Outreach FAQs Calendar Resources RfPs J_ On This Page History of PWSRCAC and the Exxon Valdez Oil Spill > Citizen Involvement Home - About Introduction History Commtttees Member Entitles Board ot Directors Board Members Stiff Directory Anandallnfonnation + projects + Newsroom + Outreach FAQs Calendar + Resources RFPs > Exxon Valdez 011 Spill > Poor Clean-up Response > Pollution Monitoring Citizen Involvement Before the Exxon Valdez 011 spill In 1989 there was no mechanism, other than publiC hearings by regulatory agencies, for citizens to advise the 011 Industry or otherwise speak directly on operations affecting their communities and livelihoods. Earlier attempts by Prince William Sound residents to give Input to 011 Industry representatives were generally met with negative responses. Much has been done In the years since 1989 to address the factors that lead to that catastrophic 011 spill. New and revised federal and state laws and regulations are In place, and the 011 Industry operates with a heightened awareness of the consequences of a major spill. Perhaps the most radical Innovation to come out of the Exxon Valdez 011 spill was the establishment of permanent, Industry- funded citizens' councils for Prince William Sound and Cook Inlet to oversee both the oil transportation industry and Its government regulators. The Exxon spill could have been averted by stronger prevention practices and more vigilant government oversight. Better response planning In advance could have lessened the Impacts of the spill. The first three days after the Exxon Valdez 011 spill afforded nearly ideal weather for 011 recovery. Seas and winds were calm. But the equipment wasn't ready. The Exxon Valdez 011 spill was not simply a freak accident. While Exxon Corp. was Immediately responsible, other factors were IIlso at work. The 011 Industry, government agencies, elected officials 132 3/20/2006 ." . ~ _ ___ LL.......-.1 PWSRCAC--History ofPWSRCAC and the Exxon Valdez Oil Spill Page 2 of 4 and the citizens of Alaska share responsibility for the complacency that allowed the spill to occur and failed to ensure a prompt, effective cleanup. . The 011 Industry failed to maintain adequate systems for preventing and responding to 011 spills . Regulatory agencies failed to protect public resources because of Ineffective or Inadequate oversight . State and federal elected officials failed to pass laws strong enough to protect the environment and give regulatory agencies the funds they needed to protect public resources . Except for a few outspoken local citizens, many Alaskans simply failed to pay attention The Prince William Sound Regional Citizens' AdviSOry council believes Alaska waters and the communities affected by the Exxon spill are, in fact, safer today. But we can never relax. Continued vigilance Is essential to ensure that protections are not diluted and gains are not lost as memories of the spill fade. Exxon Valdez 011 Spill OvervIew photos immediately below courtesy of Exxon Valdez Oil Spill Trustee Council. The Exxon Valdez 011 spill Is the largest 011 spill to have occurred In the United States and Is widely considered the most environmentally destructive, due to the remote and pristine condition of the damaged area. The 011 tanker Exxon Valdez ran aground on a charted rock, Bligh Reef, In Prince William Sound on Good Friday, March 24, 1989. The ship ran aground after leaving the designated tanker lanes 133 3120/2006 PWSRCAC--History ofPWSRCAC and the Exxon Valdez Oil Spill Page 3 of4 because of earlier reports of Icebergs In the area. Eleven million gallons (2S7,000 barrels) -Of Alaska North Slope crude 011 spilled Into the resource-laden environment, less than 30 miles from Valdez. The 011 fouled approximately 1,300 miles of wildlife-abundant shoreline. Spilled 011 damaged shoreline from Bligh Reef to Kodiak Island and beyond. 011 washed up on shores near Chlgnik, as far as 470 miles from Bligh Reef, a distance comparable to that from Cape Cod to North Carolina. /~ "-- ,<' f~ rt;r~'fff:J",", > - .. I'! \ . \ . -"'..#,.... . """'..;;.~ ' The estimated Initial death toll of the spill included 250,000 seabirds, 2,800 sea otters, 300 harbor seals, 250 bald eagles, up to 22 killer whales, billions of salmon and herring eggs, and other intertidal plants and animals. Some injured species are stili recovering. The people and economies of communities In the 011 spill region suffered In the months and years following the spill. commercial fishing and tourism were especially affected. View map of Prtnce William Sound Photos immediately below are courtesy of the Office of Response and Restoration, National Ocean Service, NOAA. H w.~ 'n_ ~ -~,-.' .. ~ ..",,- .r ~""'''' ." ~~~....""... .- I';:? _~.,.-.;:~ ~. ,,~~ '. A brown sediment plume and sheens of refloated 011 drift away from this oiled beach as it is cleaned by a team applying high-pressure, hot-water washing. Refloating of oil and release of sediment are often unavoidable consequences of shoreline cleanup that can cause additional environmental harm. -- - ~ ~ ~. \"''''':..G~~, -:..l" ::t:Jf!:1--. ~;~1>t'..- ""-- . ~! Bags of Exxon Valdez cleanup debris await disposal. Much of the debrts collected during the Exxon Valdez cleanup was eventually deposited In a landfill in Oregon State, the closest faCility certified to properly handle the waste. poor Clean-up Response The Initial clean-up response In March 1989 was slow, Ineffective and poorly coordinated. The first three days after the Exxon Valdez oil spill afforded nearly Ideal weather for 011 recovery. Seas and winds were calm. But the 134 3/20/2006 PWSRCAC--History ofPWSRCAC and the Exxon Valdez Oil Spill Page 4 of4 equipment wasn't ready. Seventeen hours after the grounding, neither the leading edge of the spill nor the grounded tanker had been boomed. The few skimmers on-scene were operating Ineffectively. Cordova area fisherman took cleanup Initiative. These photos were taken off of Knight Island In Prince William Sound, on day 18 of the Exxon Valdez 011 spill dean-up effort. Photos by former council board member Tom Copeland. Ollis still present on some shores, despite mechanical and chemical (bloremediatlon) clean-up efforts totaling more than $2 billion between 1989 and 1992. Eight sections of beach near Chenega Bay were cleaned again In 1997. A casual scan of the shoreline reveals little evidence of 011, but weathered 011 remains trapped beneath rocks and In the subsurface of the more heavily oiled beaches. For more details of the Incident, please visit: Exxon Valdez 011 Spill Trustee Council NOAA'S National Ocean Service site also offers a good overview of the Exxon Valdez oil spill and Its effects: Prince William's Oily Mess: A Tale of Recovery Pollution Monitoring While It was the Exxon Valdez incident that focused world attention on Prince WIlliam Sound In 1989, a catastrophic spill Is not the only risk posed by the crude 011 trade. The Sound and Its residents are also at risk of pollution from routine operations-such things as the release of hazardous vapors during the loading of crude 011 to the tankers. leaks or permitted discharges from the Valdez terminal, small spills of crude 011 or refined products by tankers loading at the terminal, and even the Invasion of Prince William sound by non-native sea life. Visit our Projects pages for In-depth Information on these topics. >top of page Home I Contactsl Help I Site Map Copyright @1998-2006 Prince Wi\llam Sound Regional Citizens' Advisory Council all rights reserved. Updated February 10, 2006 1:28 PM .. '15 .\. ..., 3120/2006 Sponsored by: Corbridge CITY OF SEWARD, ALASKA RESOLUTION 2006-36 A RESOLUTION OF TIlE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE CITY PARKING FEES SCHEDULE FOR CITY-OWNED PARKING LOTS AS LISTED IN ATTACHMENT A WHEREAS, the goal of the City is the appropriate management of the parking lots in an effective, efficient and responsive manner; and WHEREAS, this management style requires a study of fees, uses and policies; and WHEREAS, the Administration has amended the former schedule in the form of Attachment A in such a fashion as to reflect the perceived wishes of the community; and WHEREAS, parking fees are set by Resolution of the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. City Council amends the City parking fee schedule for City-owned parking lots as listed in Attachment A. Section 2. This Resolution shall take effect ten (10) days following adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska this 28th day of March, 2006. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor 136 CITY OF SEWARD, ALASKA RESOLUTION 2006-36 AYES: NOES: ABSENT: ABSTAIN: ATIEST: Jean Lewis City Clerk (City Seal) 13'1 CITY OF SEWARD, ALASKA RESOUJTION 2006-36 PARKING FEE SCHEDULE ; North & South Lots - Dailv o to 2 Hour.... ............................................... ............... ................................................... .Free 2 Hours to One Day......................................................................................................$5.00 Vehicle w/trailer (2 spaces)....................................................................................................$1 0.00 R V's (2 spaces)..... ...... .............. ........................ ..................... ......... .............................. ........ ..$1 0.00 Slipholder Pass...... ... ............. ............. .................. ................ ..... ... ....... ............... .......... ..$1 OO/season Employee Pass....... ......... ....... ... ...................... ............ .... ................. .... .., ..... .......... .... ....$1 OO/season Visitor's Pass.... ........ ................ .......... ........... .... .......... ..... .......... ...... ............. ........... .... .$200/season Multi-Day Pass. .... ..................... ... ................. .... ... ...... ........... .......... .............. ...... ... ........... .$5 .OO/day Middle Lot - 3-Hour Maximum o to 2 Hours........ ............ ..... .......... ......... ... .............. ... ........ ............... .................. .......... ..Free 2 to 3 Hours... ............ ............. ................................ ....... ....... ..... ........................ ........... .$5.00 Company Vehicle Pass (12 passes maximum per lot, per season).......................................$350.00 RV's & Vehic!e w/trailers...............................................................................................No Parking Employee/Slipholder/Multi-Day Pass! Visitor's Pass.....................................................No Parking Vehicles over 19 feet in length........................................................................................No Parking Northeast Lot & LOD!!- Term Parkin!! o to 1 Hour......... ................. ............. ........ ..... ....... ................... ........ ........... ............ ........ .Free 1 Hourto One Day........................................................................................................$5.00 Vehicle w/trailer (2 spaces).. ......................................... ....... .................................................. ..$5 .00 R V's (2 spaces). ........ ................... ............... .... ............ .......... .......... ... ... ..... ............ ... ......... ...... .$5.00 Trailer only... ....... ......... ........ ................ .... ....... ... ......... ....... .... ............ ..... ..... ....... .... ...... ....... .... .$5.00 Slipholder pass......................... ............. .... ....... ............. ..... ................. ......... ....... .... ...... .$1 OO/season Vehicle w/trailer Pass.... ........ ........... .......... ... ...... ... ........... .... .............. .... ..... .... ..... ... ..... .$200/season Employee Pass. .... ..... ............. ... ............. ......... ... .... .......... ..... ..... ...... .... ........ .......... ....... .$1 OO/season Visitor's Pass.... ............. ............ ....... ..... ....... ... ... ...... ..... ....... ... ....... ....... ..... ............... ... .$200/season Boulder Stadium - when needed o Hours to One Day......................................................................................................$5.00 Vehicle w/Parking Pass....................................................................................N0 additional charge Emplovee Lot - South of 4th Avenue boat launch Passholder Only. ... ....... ....... ......... ........... ... ....... ..... ... ............ ......... ....... .............. .......... .$1 OO/season Visitor's Pass.............. .......... ........ ..... ....... .................. ......... ................................ .......... .No Parking · Downtown Parkin!! Residential (Downtown resident only)..................................................................................N0 Fee City of Seward, Alaska !:38 Resolution 2006-36 - Attachment A Council Agenda Statement Through: March 28, 2006 _~ Karin Sturdy, Parks & Recreation D;-cJf - Clark Corbridge, City Manager (JJ.. 3 -Z 'Z.. - O.b Meeting Date: From: Agenda Item: Agenda Item: Seasonal Parking Permit Fee Increase BACKGROUND & JUSTIFICATION: During the 2006 budget work sessions last fall, discussions regarding changes to the seasonal, public parking permit/passes fees were held. Parking fees are set by resolution, according to Seward City Code. Action is required at this time to amend the fees, per our current budget. 2005 2006 Slip-holder seasonal pass $30 $100 Employee seasonal pass $30 $100 Vehicle with trailer $60 $200 Visitor's pass $60 $200 We feel it is in the community's best interest to increase parking permit fees. Currently, with the daily parking fee set at $5 per day, the permit pays for itself after only six uses or three weekends in Seward. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: The proposed changes in fee increases are included within the approved, 2006 parking budget. Approved by Finance Department O~ ~ . RECOMMENDATION: City Council approve Resolution 2006-~ending the City parking fees schedule for City- owned parking lots as listed in Attachment A. 139 Sponsored by: Corbridge CITY OF SEWARD, ALASKA RESOLUTION 2006-37 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING THE SITE SELECTION LOCATION FOR THE ELECTRIC DEPARTMENT OFFICE AND SHOP AND AUTHORIZING THE CITY MANAGER TO APPROVE SITE SELECTION, PURSUE DESIGN PLANS, AND FUNDING SOURCES FOR THE CONSTRUCTION OF AN ELECTRIC DEPARTMENT OFFICE AND SHOP ON LOT 6A-l, FORT RAYMOND SUBDIVISION REPLAT NO.2 WHEREAS, the Electric Department has been sharing numerous buildings around the City for material and equipment storage and the current arrangements are no longer adequate to meet the needs of the department; and WHEREAS, the current lease for office space ends in May 2007 and the facilities are inadequate to allow for privacy when working with customers and doesn't provide for ample working space; and WHEREAS, the construction of a combined office/shop would be a long-term cost savings for the City and would improve efficiencies in the department; and WHEREAS, the property located on Lot 6A-I, Fort Raymond Subdivision, Replat No.2, which is also the location of the City's emergency generators, is owned by the City and is zoned institutional; and WHEREAS, this location has easy access for customers and is close to new areas of development and would provide for increased security of the City's generation and distribution facilities. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is authorized to approve site selection and pursue design plans, and funding for the construction of an Electric Department office and shop on Lot 6A-l, Fort Raymond Subdivision Replat No.2. Section 2. The City Manager is authorized to pursue any and all funding sources. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th day of March, 2006. 140 l\~ . .... COUNCIL AGENDA STATEMENT Meeting Date: March 28, 2006 Through: Clark Corbridge, City Manager (flal.. 3-21-Of, From: Tim Barnum, Electric Utility Manager j S Agenda Item: Approve Site Selection for the Electric Department Office and Shop and Pursue Design Plans and Funding Sources BACKGROUND & JUSTIFICATION: The Electric Department has been trying to get approval for building a new facility for many years. The current arrangement has the department sharing space at several locations around the City. This arrangement has the department's materials and equipment scattered which delays creWS trying to locate the materials needed. The department bas run out of covered storage space for its equipment and bas bad to start parking our bucket truck outside, this winter. This bas been the cause of numerous problems and bas delayed response times to customer power outages. It also raises concerns about the safety of the equipment when being used around energized lines and equipment, due to the continuous exposure to the weather. The lease for space in the Petro Plaza building expires in May 2007. The space is inadequate for the number of staff that is working in that building. There is not adequate room for file storage, privacy when working with customers or when meeting with staff to discuss projects. There is not even enough room to layout project plans in order to review them. When reviewing possible locations for a facility, the department developed a list of criteria for being able to compare properties before bringing a recommendation forward. Some of the criteria used were: ~ ~ Property ownership ~ Non-residential ~ Tsunami run off area ~ Zoning ~ Flood Plain 141 ~ Site Development Cost ~ Customer convenience! Access ~ Area to expand ~ Availability of utilities After evaluating several properties, the Electric department would recommend to Council that Lot 6A-l, Fort Raymond Subdivision Replat No.2, be designated as the location for the Electric Department's office and shop. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: , J,,? ---- ..tuJ,--;:;;;' Approved by Finance Department: v'(!U...,Li,....) ~ RECOMMENDATION: City Council approve Resolution 2OO6-31authorizing the City Administration to approve site selection, pursue design plans, and funding sources for the construction of an Electric Department office and shop on Lot 6A-l, Fort Raymond Subdivision Replat No.2. . l"d 1 ~.s '" ". ~\. ,"'~ ~t ....... ''r_ N ....,... .. .. ..... -t",...~ .... '1!..:'" ~~..3' .: ..... .. '"..i ;.:..... .. "",. "-;.~' :-. #...:. ,\: }...... .. ~.: .~.. :',-- ...', ~:...:- .--: .-... . . --~.-. l J '\ ~ -.G~:'~ . ' .. -"9' ~.. )0\ ," - '. (I" : . . ..... 1" -.-'. .., U ":. . (] . . U" . .Ii~ Li ~ .~!i~ . . \-// \~\ "/1.1,. \ '., . ,/ j q ''\ { ,I r::::.:.. .' ~\' '..J . ( .' i'J~3, ,:j\ ~U'~ / . ~ R '\\-. I~ f7' [. ...-_...d..d.'J \. _,';~~:I~. ~. loc..+:o- .. '- r.~. L ~-=::,1 . ..~: '. \ I ~ . 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"- ...- ...- ~ ~ " ,- / I I I I , I '.1 ~. , ' '"'' " " ;"....----- I I I I I \ 4 145 Ul City o/Seward, Alaska February 27,2006 City Council Minutes Volume 37. Page Call to Order The February 27,2006, regular meeting of the Seward City Council was called to order at 7:30 p.m. by Mayor Vanta Shafer. " Opening Ceremony Police ChiefTom Clemons led the pledge of allegiance to the fl A plaq Commerce Advis There were present: Vanta Shafer presiding and Willard Dunham Steve Schafer Bob Valdatta Roll Call comprising a quorum of the Council; and Clark Corbridge, City M Jean Lewis, City Clerk Johanna Dollerhide, Assistan Special Orders, P a lating Seward as the winner of the Alaska Regional eward students were Phelan Miller, Amy Collman, Tyler d by Jason Fantz. d to Roger Mercer for his excellent service on the Port and Borough Ass Iy Report. Borough Assembly Representative Ron Long stated on February 7, 2006 the assembly introduced an ordinance -for a $500,000 dollar advance for the upcoming Arctic Winter Games, but it wasn't set for enactment until after the games. Tim Dillon, CEO for the games, was able to extend the line of credit in their budget, and the problem was taken care of. Also on February 7,2006, the assembly introduced an ordinance with a final hearing set for · March 4, 2006 to partner with the City of Seward to lease the shooting range. The assembly cut $910,000 from the 2006 budget, putting back in $60,000 for school maintenance that was originally proposed to be cut. A productive work session on the proposed budget occurred on February 21, l46 City of Seward, Alaska February 27, 2006 City Council Minutes Volume 37, Page 2006 with the school board. The assembly finalized their federal priorities. Long thanked City Clerk Jean Lewis for helping get the city's priorities to the borough after hours. . In response to questions, Long thought there was a shared responsibility between the state and the federal government for the maintenance of Lowell Point Road. It had been the borough's number one transportation priority for the last few years, and Long didn't know what else could be done on the borough's end. He suggested the city and the borough work together in their lobbying efforts. as preparing for summer projects. During the last two city's generators operating. Public Works was working the ilding's siding issues. ns _ Corbridge had recommendations prepared for the restructuring . He hoped at the next meeting the council could amend them as t mplete set of policies and procedures for all boards and commissions. er _ The Forest Service met last week in Anchorage. The Park Service, the Forest Service, an e City had submitted their recommendations for each agency's IT needs. Corbridge said the city may want to develop an RFP for personnel functions and possibly look into obtaining a conference manager. . ~ Long Term Care Facilitv - There will be a public meeting on March 22, 2006 at 6:30 p.m. with Architects Alaska, and Corbridge encouraged the public to attend. City Manager's Report. City Manager Clark Corbrid etting a replacement 's contractor would week so they can er by the the new pilings, the breakwater award letter would likely be issued this week. lie meeting. d in an asbestos inspector's course to help assessment of buildings in the city that have Corbridge wanted to bring a city task list to the council, possibly during the alternative weeks of council meetings. He would like to implement the way the council made changes and wanted more participation on prioritizing projects. 147 City of Seward, Alaska February 27. 2006 City Council Minutes Volume 37,Page In response to questions, Corbridge said alternative energy information was being compiled for the upcoming P ACAB meeting. Getting the ferry back in Seward would require a different political approach, and he was welcome for suggestions. Corbridge thought the city did have the financing in line for the waterline project. Corbridge thought the decrease in building permits in the last fiscal quarter was a combination of things, but mainly because building construction was seasonal. ~ Applicants for two vacancies Anderson, Carol Griswold, Randall S Clark introduced themselves and stated Commissioner. Applicants Carol Griswold scheduled for public bearing. Chamber of Commerce Report. Deborab Carter introduc president of the Chamber of Commerce Board. The Chamber just and finished their plan of action, which was similar to the pro proposed. To try and keep relationships up with cruise lines, in Florida during the third week of March to discuss shore another small business seminar at the end of March. A would be in attendance. anning and Zoning Commission. A big 6 invol g the Long Term Care Facility, the Alaska eme eral ADA. Keil encouraged the community to orking on creating a friendlier building permit packet. Keil se d the boards and commissions recommendations on to ey could review it and give their suggestions as well. Ron posed house bill in Legislation that would propose to limit assessments on as blatant grandstanding. Long stated the best way to defeat a bill like this right awa to it during the first committee referral, which was to occur on March 14, 2006 at 8 :00 a.m. Seward Legislative Information Office. Long urged those interested in this matter to attend eferral and voice their opinion. As a member of one of the boards, he also would like to see Corbridge's recommendations for the restructuring of the boards and commissions. Approval of Agenda and Consent Agenda .. Motion (DunhamILorenz) Approval of Agenda and Consent Agenda Lorenz wished to add a resolution to the agenda to change the number of members of P ACAB from nine to seven. 148 City of Seward, Alaska February 27, 2006 City Council Minutes Volume 37, Page Parliamentary inquiry raised by the Chair. ~ City Clerk Jean Lewis stated this motion would be out of order because; no resolution was prepared, the change to P ACAB would require an ordinance change with two readings, not a resolution, and it would have to be noticed to the public beforehand. Scha models were m thought the Public council. Unanimous Motion Passed The clerk read the following approved consent agenda items: There was no objection to the liquor license renewals fo BPO Elks, Barbor Dinner Club, Thorns Showcase a A work session was set on March 21, 2006 for Planning & Zoning Commission. Seward Public Bearings - None Unfinished Business Items postponed from the previous agend Resolution 2006-17. a from Construction funds. the week before and recommended approval Approve Resolution 2006-17 "th the brand of grader that the city was trying to purchase. Other Schafer compared some specs he thought were important. Schafer ent should purchase a CAT 14F and handed out brochures for it to Thomas said administration was doing what the council constantly requests them to do, to follow the RFP process, or in this case, using the state's recent RFP which was an acceptable and legal procedure. . Dunham expressed disappointment in this process and agreed with Thomas, the staff did exactly what they were supposed to for this purchase. If this piece of equipment was what the City Manager and the Public Works Director recommended the city purchase, then that was the direction they should take. 149 City of Seward, Alaska February 27,2006. City Council Minutes Volume 37, Page ~ Motion Passed Yes: Thomas, Valdatta, Dunham, Bardarson, Mayor Shafer No: Lorenz, Schafer New Business - None Council Comments the top two vote mmission with Other New Business Items A work session on the Jesse Lee Leadership proposal was sched p.rn. After ballot voting, the City Council unanimously getters, Margaret Anderson and Kevin Clark to t terms to expire February 2009. Informational Items and Reports Bardarson thanked Corbridge for Science Bowl winners. tulated the recent Ocean was nice week atte congratul students exc ed for the Planning and Zoning Commission. It vacancies. He appreciated Schafer representing Seward last every week placing items on the agenda was being open meetings act and it gave him heartburn. He also e B 1 winners. Thomas thought it was nice to see Seward's ducation cuts Seward had received. Lorenz att odd Trade meeting last week in Anchorage where Senator Murkowski was a speaker. Lore ested some economic opportunities that Seward could take advantage of with the effects ofns gas. Lorenz also spoke of the Alaska Community Foundation and what it could offer the future of the Jesse Lee Home. The next meeting for the Friends of the Jesse Lee ( Home was March 13, 2006. Dunham thanked the Olympic winners and hoped the City of Seward would send some fonn · of congratulations to our Alaskan competitors. Stu Clark was leaving Seward and Dunham thought it would be fitting to honor his contributions to Seward. He appreciated the recent Log article regarding the passing of former Mayor Bob Richardson and hoped he would be honored in some way as well. Jeff Hettrick was going to invite the council to a walk through of the shellfish hatchery and !50 City of Seward, Alaska Pebruary 27, 2006 City Council Minutes Volume 37, Page would appreciate if the council attended. Armed Forces Day on May 22,2006 was corning up and Dunham-really wanted to commemorate it well this year as it used to be done in the past. He would like to invite the Alaska World Trade Center to meet in Seward this summer. , Mayor Shafer asked about possibly donating the city's old travel lift to Louisiana for relief from the recent hurricanes. Corbridge thought the city's old travel lift would be re.utilized in some way. Shafer welcomed a group from the Northern Forum to Seward. This group was a conglomeration of northern rural Arctic countries that brainstorm how economically survive in their small communities. The Forum was interested in how Seward . its tourism. It was a nice meeting and she hoped the community would welcome them Citizens' Comments t sure if it was a public Kevin Clark, thanked the council for sel g Commission. He mentioned a Governor's fo at was represented at. Mayor Shafer said she knew of a event, however. Adjournment Vanta Shafer Mayor (City Seal) 1.51 City of Seward. Alaska March 13. 2006 City Council Minutes Volume 37, Page " Call to Order The March 13,2006, reguIarmeeting of the Seward City Council was called to order at 7:30 p.m. by Mayor Vanta Shafer. r .. Opening Ceremony Police Chief Tom Clemons led the pledge of allegiance to the fl comprising a quorum of the Council; and There were present: Vanta Shafer presiding and Willard Dunham Bob Valdatta Jean Bardarson Roll Call Clark Corbridge, City M Jean Lewis, City Clerk Cheryl Brooking-City Attorn mstrong was recognized for receiving the Alaska lcadon. City City Manager Clark Corbridge stated the library collection had never been inve were doing that now and should be completed by the end of March. He stated the Salv would be contacting the city by the end of March and an agreement should be completed after. Corbridge mentioned a book named "Dispelling the Fear Factor" which was for busines branching out to relocate to Alaska. He said the price would be $1,500 for a minimum set of 15 books and would need direction if council wanted that purchased. He also mentioned a shore excursion conference was attended by Chamber of Commerce Director Laura Cloward to establish connections for shore excursions with Holland America. Other items discussed were: . ~ The North Pacific Rim Housing Authority (NPRHA) was planning on building a modular plant and wanted to meet with the city. Corbridge would refer them to the Port and Commerce Advisory Board. .e:;f'l .1 '.JI ~ City of Seward, Alaska March 13, 2006 City Council Minutes Volume 37, Page ~ An1lSsessmentfor electric on Elhard Subdivision was received and the city planned to meet and discuss this proposal and make a recommendation to the city council at a later date. )- An application had been submitted to the State Disaster Policy Cabinet (OPe) for disaster assistance with the recent avalanches and cost to re-establish electric power. Their recommendation would be forwarded to the Gov or. )- Electric. The power sales agreement on the Association (CEA) would extend the power con 5-year options to automatically extend. He because of the limited ability to interrupt c charged their regular customers. )- Parks & Rec. Twelve teams had p Tournament last weekend, and the sp . day. )- Harbor News. Jim Lewis during a harbor incident gangway was constructed and dock project. ey would be for their quick thinking e hypothermic. A new ce g with an RFP for the I and T- uote for armor rock. )- ch Electric beginning March 6. The generators oted many businesses helped by reducing ed the 50/50 funded Harbor bills were moving through the oped they would pass this year. He directed Seward to apply )- . They would be replacing the boiler, some carpeting, and electrical hall. . )- Polar Equipment. Corbridge stated there was a lot of misinformation out in the public about this lease request. A replat was needed along with an extension of the lease. The city had sent a letter on March 7 to Polar Seafoods, asking for more details such as; the design of the freezer, junk removed from the site, the clearing of utilities, documentations of a new lease arrangement, removal of items from the current dock, and the dock license needed to be negotiated. There were some conditions set from Planning & Zoning Commission, and Bill Fejes from their company was working with them on those conditions. . 153 City of Seward. Alaska March 13. 2006 City Council Minutes Volume 37, Page -; )> DEC regulation changes. A notice was out on proposed changes to DEC regulations. Three public meetings would be held in Anchorage beginning March 16. )> Forest Acres Levee Proiect. Price had increased for corregated metal pipe products beginning March I It, which would have a direct affect on the levee prices. )> Corbridge was saddened to report a council member had lIed him on the weekend and stated his job was hanging by a thread, and d letter written to the Alaska Sealife Center last Friday be retracted. He ided the letter for the rest of council and although he thought the letter coul more artfully crafted, it was legally and factually correct. He reminde bers of the council to give direction. Corbridge also pointed ou eady and available. It appeared the majority of the city council wished t million dollars insurance needed to I million dol f of the Alaska Sealife Center (ASLC), recognized that rumor w e ASLC wanted to address their request in a more productive manner and alife Center was a private local business which employed 110 year round employe compe ve environment that depended on federal appropriations. Schrock stated their lease r d diversify the funding base for the ASLC and expand their mission. He wanted a work se ith the council to properly present this program. To dispel rumor, he stated there was no fe money involved, and there was no unfair competition in the community. Schrock mentioned this request started months ago and they bad no access in the public process of yet. ( Approval of agenda and consent agenda · Motion (LorenzlBardarson) Approval of Agenda and Consent Agenda 154 ~ City of Seward, Alaska March J 3, 2006 City Council Minutes Volume 37, Page Amendment (ThomaslLorenz) Add Resolutions 2006-24, 2006-25, and 2006-27 to the consent agenda. Amendment Passed Unanimous Main Motion Passed Unanimous The clerk read the following approved consent agenda items: Resolution 2006-024, cash to pay employe 0.330, changing the ine to seven, and lie hearing and The February 13, 2006 regular city council meeting minutes Ordinance 2006-02, amending Seward City Code Secti number of members on the Port and Commerce Ad establishing a quorum of four members. This wa enactment on March 28, 2006. Resolution 2006-020, accepting a grant from the S amount of$2,073.11 and appropriating funds to the Po drug training, investigation and equi 1. Resolution 2006-021. amending Rule 22 exclusion of elected officials from the Pub of Procedures to reflect nt System of Alaska (PERS). ncy purchases in the amount oUl.l million resulting ebruary 11, 2006 and appropriating funds. New Business Resolutions Resolution 2006-022, authorizing the city manager to enter into a contract with Kumin Associates Inc. to provide professional design services for the design of the Ocean Front PaviJion(s) and appropriating an amount not to exceed $36,800.00. 155 City of Seward, Alaska March 13, 2006 City Council Minutes Volume 37, Page Corbridge stated this process went through the normal competitive bid RFP procedure, and Kumin and Associates Inc, was the best combination of expertise and price for design services. He recommended approval. .= Motion (ThomaslLorenz) Approve Resolution 2006-022 ~. Schafer stated after speaking to a local builder, this required an architect, and both electrical and structural engineers. He thought the city was getting their money's orth. Corbridge reiterated that the c extend for a bit over 5 years with two auto extensions. There would be a rate incre customers. esolution 2006-023 Corbridge noted state law required if anything would be oc the foundation and above-ground structure had to be engineere was in place had previously been engineered. Motion Passed Resolution 2006-023. authorizing the city ma and purchase ofEledric Power and energy with Ch e customer charge was what the city was CEA has the certificate of convenience north of the ridge of Lawing, Motion Passed Unanimous Council recesses at 8:55 p.m. Council resumes at 9:05 p.rn. " Resolution 2006-026. accepting an in-kind grant from the Community Solutions Group with an estimated value of $125,000, and appropriating $22,250 for the purposes of implementing the Green House@ Project. (laydown) :' " 156 . City of Seward, Alaska March 13, 2006 City Council Minutes Volume 37, Page Corbridge noted a couple oftecbnical errors in the resolution in the packet and produced a laydown version. The Long- Tentt Care Facility (LTCF) would be modeled after the Green House Project. Because of this, funding was available to the city to be used for various aspects of the project. This resolution would accept an in-kind grant for a value estimated at $125,000, and appropriate $22,250 of city money. Mayor Shafer declared a possible conflict of interest because of her employment with Seward Providence Medical Center. Vice-Mayor Dunham ruled there was no substantial financial therefore a conflict did not exist. e bonds of Motion (DunhamILorenz) Motion Passed Corbridge stated this and if this resolution did to move forward wi r the construction of the facility, e built. He recommended approval interest because of her employment with Mo' Approve Resolution 2006-028 by Valdatta on whether the city was stretching itselftoo thin with ge stated this project was projected to pay its own way. I Brooking stated these bonds were revenue bonds. The pledge of payment for the bond ere restricted to the net operating revenues received. The bond provided for future parity bonds, thus any other type of bonds such as prison, GO, etc. would not be affected. " Corbridge informed that the bonds would have a term between 20 and 30 years, and the life of the facility was projected to be in excess of 30 years. He understood that the time frame for the FEMA permit had been built into the accelerated schedule to build the building, and there was no indication of a delay. Motion Passed Unanimous 157 City of Seward, Alaska March 13. 2006 City Council Minutes Volume 37, Page . Oth-er New Business Items----- Discussion ensued on travel dates to visit the Alaska Legislature in April, and it was decided the city would go when Kent Dawson, the city's lobbyist, requested them. ;; Council member Valdatta wanted to discuss whether Seward should institute its own tobacco tax. It was decided HB 443, needed to be followed and the Admini ation should build this into the 2007 budget for consideration. Council Comments o the town when they were ound on those last minute and thought Seward had an Informational items and reports Providence Seward Medical Center 2006 financial st Bardarson thought a work session with the A dollars worth of insurance was fine for the Racetrack. Lorenz, stated the candidates for here. She appreciated the team effort by ili requests. Lorenz thanked the Shellfish Hat amazing resource tucked aw n its waterfro usinesses grow. He hoped the city would work atching the historical church that burned u1led together to put in a sprinkler system in rking on alternative energy now. He thought the Lions ts from other tracks around the state. Dun work session WI harbor parking lot ctrical crew for 25 days of generated power. He also requested a enter. He thought it would be nice to put in a winter ice rink in the er. He asked if there would be another car classic from NAPA. Mayor Share as saddened that Dave Calvert passed away last week. She mentioned the vacation of Washington Street was listed in the Waterfront Development Plan. She stated the multi- agency project began, to encourage and bring economic development into the downtown area, during · the shoulder season, because more and more stores were closing. Shafer stressed years of planning went into the exact location to put the multi-agency facility, and why it was best. The plans required :: the vacation of Washington Street. She hoped this project would ensure the future and growth for the downtown area. 158 . '- City of Seward. Alaska March 13, 2006 .. City Council Minutes Volume 37, Page Citizens' Comments - None Council and administration response to citizens' comments - None Executive Sessions Went into executive session at 10:15 p. Came out of executive session at 10:34 p. Go into executive session to discuss the City Attorney evaluati Motion (Thomas/Bardarson) Motion Passed Went into executive session at 9:50 p.rn. Came out of executive session at 10:14 p.rn. Motion (Thomas/Bardarson) Motion Passed utive session to discuss the ager evaluation. Motion Passed Vanta Shafer Mayor . Jean Lewis City Clerk ~ (City Seal) 15f1 . MEMORANDUM FROM: Jeff Estes, Field Engineer '. DATE: March 21,2006 TO: Tim Barnum, Manager Electric Utility jb SUBJ: City Broadcast of WON (Chicago's SuperStation) I have received notice that WGN is noW digital. The City has an analog receiver and apparently one spare. I had the existing in service receiver checked and it works fairly well. Our transmitteris working but in an average state of repair. Most of our signal degradation is probably happening from transmitter to tower and antenna. However, no clean up of the old tower of now unused lines and antennas has happened as was projected with the new radio tower I1t City Hall. I still do not know which antenna is which either on top of City Hall, new tower, 1,10t old tower as was also proposed. Therefore I cannot even point repair crews iD the proper direction. In any case we are still transmitting a signal at fair quality to as far north as a check point at Port Ave. I have no known viewers to ask how their reception is. Currently, the City pays WGN $101.22 per month for "750 vlewers based on a possible 1413 viewers as I understand it". In this light I called WON as suggested and asked if they would send us a new digital receiver. They response was "No, we do not" , howeVer the party it was suggested that I talk to was not available so I will try again. Along with the digital notice was an offer from Scientific Atlanta good until March 31 st for either a WGN only receiver at $775 orWGN plus the North American pool of stations receiver at $895. The City would have to replace the LNB on the dish with a new unit Cdsting $150 (we have one which may work), and replace the underground cable to the radio room at a cost of maybe $50. Transmitter and antenna repairs althoul2:h not immediately reQuired may cost $4000. Complete replacement may cost $9500. In any case the existing equipment will work barring failure until the first quarter of2007 at which time the analog signal is expected to cease. t ~ ~ 160