1991-02 Miller Point Subdivision Gravel ExtractionADDENDUM TO REAL ESTATE CONTRACT
WHEREAS, the KODIAK ISLAND BOROUGH, of 710 Upper Mill Bay
Road, Kodiak, Alaska 99615, as "Buyer", and RUSSELL WELBORN, of
P.O. Box 634, Kodiak, Alaska 99615, as "Seller", entered into a
contract for the sale of certain real property within the Miller
Point Alaska Subdivision, First Addition, located in the Kodiak
Recording District in March of 1991, hereinafter referred to as the
"Contract"; and
WHEREAS, the contract provided that the Seller may use
the property for the purpose of gravel extraction until December
31, 1991 and that the Buyer was granted an option to extend the
gravel extraction operations for a term of one year; and
WHEREAS, the parties now desire to extend the gravel
extraction operations for an additional year;
NOW, THEREFORE, the parties agree that the Seller may use
the property for the purposes of gravel extraction for an
additional year until March1994, in compliance with all of
the terms and conditions set forth in ¶ 5 of the contract of March,
1991.
SELLER:
Dated:
J
Russell Welborn
BUYER:
KODIAK ISLAND BOROUGH
Dated* By: J' ome Selby, Mayor
/.1 �!%ice. �I
r• •
aMlEam
JAMIN, EBEL[.., BOLGER & GENTRY
A 1PROFES510MAL CORPORATION
ATTORNEYS AT LAW
MATTMEW 0. JAMIN
C. WALTER £BEL4m*
JOEL H. BOLGER'
DIANNA R. GENTRY
ALAN L. SCHMITT
WALTER W. MASON'
DUNCAN S. FIELDS
MICHAEL ARAUJO
..V.ITreO rD wLAe.w
.ND WAs..INDTON rAAf
ALL OTMe,q AD -1 TED WPI
A6Af.A •A.
7
VIA HAND DEWVNSI„�
t. Ben Hao �
Attorney a aw
P. 0. Box 481
Kodiak, AK 99615
323 CAROLYN STREET
KODIAK, ALASKA 99615
FACSIMILE: {907 466-612
TELEPHONE: (9071,4815-602A
REPLY TO KOD'IAK OFFICE
April 25, 1991
SEATTLE OFF;CE:
300 muTLIAL L,FE 61JI1.0r140
4509 F$M5T AVCNUE
SEATTLE. WASMINGTON 9&*4
FACSuuL[: Roel 623.7921
TCLC►MONEI (2061 424.7634
Re: Kodiak Island Borough/Purchase of Welborn Property
Our File No. 4702-132
Dear Ben:
Please accept this letter of explanation with respect to the
real estate contract executed by Russell Welborn on March 2, 1991.
Permits. We acknowledge that after the closing, an
application for a rezoning, permit, exception, or variance with
respect to the gravel extraction described in paragraph 5(a) of the
real estate contract, may have to be undertaken in the name of the
Kodiak Island Borough. Mr. Cassidy confirms that the Resource
Management Office will cooperate in the prosecution of such an
application in order to authorize the gravel extraction.
Insurance. Paragraph 5(c) requires Mr. Welborn to maintain
certain liability insurance during gravel extraction. We
acknowledge that this provision may be satisfied if the contractors
and subcontractors on the project each carry insurance which will
protect the Borough from liability as described.
Per-fQrmance Bond. Mr. Cassidy confirms that the Borough is
willing to waive the provisions of paragraph 5(d) which would
require a performance bond and payment bond, recognizing that this
requirement is unnecessary in view of Mr. Welborn's promise of
indemnification contained in paragraph 5(b).
Do not hesitate to contact me if you have any questions.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
�1-L.5cow
Joel H. Bolger
AA rIA111
L. Ben Hancock, Esq.
April 26, 1991
Page 2 of 2
JHB:dlm
cc: Mr. Sud, aidk Resource Management off iter
Honorable Jerome Selby, Mayor
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\132L.003
ITEM NO. 12.B.1.
Kodiak Island Borough
AGENDA STATEMENT
Meeting of: March 18, 1993 Resolution No. 93-09
ITEM TITLE: A RESOLUTION AUTHORIZING AN ADDENDUM TO AN EXISTING
CONTRACT FOR SALE ALLOWING FOR THE CONTINUATION OF GRAVEL EXTRACTION
ACTIVITIES AT THE PROPOSED NORTH STAR ELEMENTARY SCHOOL SITE.
SUMMARY STATEMENT
The Borough has purchased various lots from Mr. Welborn. These
parcels are the future location of the proposed North Star Elementary
School. The Contract for Sale allowed the previous landowner or his
contractors to remove rock from this site for a certain time period.
The time period has expired.
This addendum will authorize the extension of rock extraction
activities for a period of one (1) year from the date of the approval
of this addendum.
FISCAL NOTES
[] N/A Expenditure Amount
Required 0 Budgeted
clove to adopt Resolution No. 93-09.
1
CONTRACT FOR SALE OF REAL PROPERTY
AND RECEIPT FOR EARNEST MDNEY
THIS AGREEMENT, made and entered into the day and year
hereinafter last written, by and between KODIAK ISLAND BOROUGH, of
710 Upper Mill Bay Road, Kodiak, Alaska, 99615, ("Buyer"), and
RUSSELL WELBORN, of P. 0. Box 634, Kodiak, Alaska 99615,
("Seller"). This contract is subject to the approval of the Kodiak
Island Borough Assembly.
W I T N E S S E T H:
1. Sale. The Seller agrees to sell to Buyer and Buyer
agrees to buy from Seller that certain parcel of land, with the
buildings and improvements on it, ("Property"), and more
particularly described as follows:
PARCEL NO. 1:
LOT ONE (1), BLOCK SIX (6), MILLER POINT
ALASKA SUBDIVISION, according to Plat 67-3,
located in the Kodiak Recording District,
Third Judicial District, State of Alaska.
PARCEL NO. 2:
LOT TWO "A" (2A), BLOCK SIX (6), MILLER POINT
ALASKA SUBDIVISION, according to Plat 87-21,
located in the Kodiak Recording District,
Third Judicial District, State of Alaska.
PARCEL NO. 3:
LOT ONE "A" (IA), BLOCK TEN (10), MILLER POINT
ALASKA SUBDIVISION, FIRST ADDITION, according
to Plat 87-21, located in the Kodiak Recording
District, Third Judicial District, State of
Alaska.
PARCEL NO. 4:
LOT TWO (2), BLOCK TEN (10), MILLER POINT
ALASKA SUBDIVISION, FIRST ADDITION, according
to Plat 67-9, located in the Kodiak Recording
District, Third Judicial District, State of
Alaska.
2. Purchase Price. The Buyer agrees to pay for the
property the sum of ONE HUNDRED NINETY ONE THOUSAND AND N0/100
DOLLARS ($191,000.00) as follows:
(a) FIVE THOUSAND AND N0/100 DOLLARS
($5,000.00) as earnest money upon the approval of the
Kodiak Island Borough Assembly and the execution of this
contract by both parties, by check subject to
collections;
(b) At closing, the sum of ONE HUNDRED EIGHTY
SIX THOUSAND AND N0/100 DOLLARS ($186,000.00) by check
subject to collection.
3. Exceptions to Title. The Premises are sold and are
now to be conveyed subject to:
(a) reservations, restrictions and easements of
record;
(b) applicable zoning regulations and ordinances;
and,
(c) real property taxes and assessments for
the year in which the closing takes place.
4. Apportionments. The following items are to be
apportioned as of the date of closing:
(a) real property taxes for the year in which
the closing takes place;
COOMM r FM ART R CW ML MWE"r MW
aF
-MUMM MMU
Page 2 of 1
(b) premiums on any policies of insurance
accepted by Buyer from Seller;
(c) rents, if such property is occupied by
tenants at the date of the closing; and,
(d) water and sewer charges.
5. Gravel Extraction. Seller may use the property for
the purposes of gravel extraction until December 31, 1991, inw
compliance with the development plan attached hereto as Exhibit
"A".
(a) Seller shall obtain all permits prior to
extraction and comply with all applicable laws and ordinances. All
gravel, brush, trees and overburden extracted shall be removed from
the premises unless otherwise directed by the Mayor of the Kodiak
Island Borough or his designee. Seller may not remove gravel in
excess of the amount allowed in the development plan. Seller may
not remove trees, brush, overburden or gravel outside the area
authorized in the development plan. Seller shall maintain a buffer
area and side slopes as required in the development plan.
Compliance with the development plan shall be to the personal
satisfaction of the Mayor or his designee. SELLER MAY NOT USE THE
PROPERTY FOR THE PURPOSE OF GRAVEL EXTRACTION UNTIL HE RECEIVES A
REZONING OF THE PROPERTY TO PUBLIC USE LANDS DISTRICT
CLASSIFICATION, OR UNTIL HE RECEIVES ANY VARIANCE, EXCEPTION OR
PERMIT FROM THE KODIAK ISLAND BOROUGH PLANNING AND ZONING
COMMISSION, NECESSARY TO ALLOW GRAVEL EXTRACTION ON THE PREMISES.
THE BUYER AGREES TO COOPERATE WITH THE SELLER IN PURSUING AN
CONMcr PM sats CW ML PMCRJMrr MW
r
Page a
APPLICATION FOR REZONING OR .ANY NECESSARY APPLICATION FOR AN
EXCEPTION, VARIANCE, OR PERMIT.
(b) The Seller shall forever protect, save and keep
the Buyer, its agents, officers and employees, harmless and
indemnify them against and from any and all claims, demands,
losses, costs, damages, suits, judgments, penalties, expenses, and
liabilities of any kind or nature whatsoever arising directly or
indirectly out of or in connection with the gravel extraction
permitted under this paragraph.
(c) The Seller shall take out and maintain during
the period of gravel extraction on the premises, public liability
insurance for bodily injury and property damage liability,
including without limitation, coverage for explosion, blasting
collapse, and destruction of underground utilities and contingent
liability, including products and complete operations in blanket
contractual liability, as shall protect him and the Buyer. The
Seller shall have the Buyer specifically added as an additional
named insured in said policies all at no cost to the Buyer. The
above insurance shall cover the Buyer and the Seller for claims or
damages for bodily injury, including wrongful death, as well as
other claims for property damage which may arise from operations
under this paragraph whether such operations be by the Buyer or by
any subcontractor or anyone directly employed by either of them.
The aforementioned bodily injury and property damage liability
insurance shall be in an amount of not less than $1,000,000.00
combined single limit per occurrence.
crsmum Fm Gaza CW HnL PEMEM ME
CW ffiffluff
r
Page 4 of IF-
(d) Prior to beginning gravel extraction operations
under this contract, the Seller shall furnish the Buyer with a
performance bond and a payment bond in an amount acceptable to the
Buyer, conditioned upon the performance by the Seller of all
undertakings, covenants, terms, conditions, and agreements of this
paragraph and the development plan attached and upon the prompt
payment by the Seller to all persons supplying labor, materials,
equipment and services in the prosecution of the work provided
herein. Such bond shall be executed by the Seller and a corporate
bonding company licensed to transact business in this state. The
expense of these bonds shall be born by the Seller.
(e) The Buyer is hereby granted an option to extend the:i
gravel extraction operations allowed under this paragraph for an
additional term of one year, and all the terms, covenants, and
provisions of this contract shall apply to such extended term. If
the Buyer shall elect to exercise the aforesaid option, it shall do
so by giving to the Seller notice in writing of its intention to do
so not later than December 1, 1991.
5. Title. Within ten (10) days from the date this
contract is signed, Seller, at his expense, shall deliver to Buyer
a Preliminary Commitment for Title Insurance issued by a title
insurance company acceptable to Buyer or his attorney, showing that
the title of the Seller is good and marketable excepting only the
items specified in Paragraph 3 hereof. if there are defects in the
title, the Buyer shall notify the Seller in writing within fifteen
(15) days after receipt of the Preliminary Commitment for Title
CWZRMs Am sats nw ML PFAxna rr M
MCEPT CW RAM" M=r
Page 5 of 1
Insurance, and the Seller, in good faith and with due diligence,
shall proceed to cure such defects.
7. Risk of Loss. The risk of loss or damage to such
property, until the delivery of the deed, is assumed by the
Seller.
8. Possession. Possession of the Premises shall be
delivered to the Buyer upon delivery of the deed. Time is of the
essence of this contract.
9. Indemnification. The Seller shall forever protect,
save and keep the Buyer, its agents, officers and employees,
harmless and indemnify them against and from any and all claims,
demands, losses, costs, damages, suits, judgments, penalties,
expenses, and liabilities of any kind or nature whatsoever arising
directly or indirectly out of or in connection with the discharge
of oil or any other hazardous substance upon the property, or in
connection with the violation of any state or federal statutes or
regulations relating to environmental pollution or hazardous
substance release occurring on or before the date of delivery of
the deed as set forth herein.
10. Assessments. All assessments for local improvements
now liens or which may become liens prior to the closing, shall be
paid by the Seller.
11. Expenses. All costs of this transaction shall be
divided equally between Buyer and Seller.
12. Deed. The deed shall be a warranty deed in
statutory form, proper for recording, and shall be duly executed
CXW=MW Pm sane CW ML VRWEWr MW
BECs3r CW
Page 6 of 10
and acknowledged so as to convey to the Buyer the fee simple of the
premises, free of all encumbrances except as herein stated.
13. Date and Place of Closing. The deed shall be
delivered upon receipt of the payment of the purchase price as
herein provided at the offices of Western Alaska Land Title
Company, at P. 0. Box 664, Kodiak, Alaska, at a time set by mutual
agreement of the parties not later than ten (10) days after the
attorney for buyer approves title; and Seller shall promptly
thereafter provide a policy of title insurance with no exceptions
other than listed herein.
14. Default_ by Seller. In the event the Seller is
unable to convey title in accordance with the terms of this
contract, the Seller shall refund to the Buyer the earnest money
and any other funds paid on account of the purchase prase, and
shall pay all costs incurred in preparing and securing Preliminary
Commitment for Title Insurance and all legal fees. Upon such
refund and payment being made, this contract shall be considered
canceled. This provision does not relieve the Seller from his
obligation to protect the title from the encumbrances referenced
above and to convey the title if the state of the title is
acceptable to the Buyer.
15. Defa It by Buyer. In the event the Buyer defaults
hereunder, any monies paid under this contract shall be retained as
liquidated damages; and in such event neither party shall be
further liable to the other and this contract shall be deemed null,
void and of no force and effect.
CCOMR ME FM alis W BP71i, Pa rry wm
MMM M sh mmr
Page 7 of IF-
16. Surviving Covenants. No provision of this contract
survives the delivery of the deed except as expressly provided.
Acceptance of the deed shall be an acceptance of performance of all
of the obligations of the Seller hereunder except such as may be
expressly stated to survive the delivery of the deed.
17. Notice. All notices, payments or deliveries to be
made under this contract shall be effectively made if delivered to
either party in person or sent by certified or registered mail with
charges prepaid to the Seller or to the Buyer at the respective
address set opposite each signature of this agreement, or to such
other address as either party from time to time may furnish in
writing to the other party.
1B. Binding Effect. This contract shall extend to and
be binding upon the heirs, administrators, executors, successors
and assigns of the respective parties hereto.
19. Representation by Attornev. Seller expressly
understands and acknowledges that the law firm of Jamin, Ebell,
Bolger & Gentry, selected by Buyer to draft this agreement and
advise Buyer in regard to this transaction, exclusively represents
Buyer and Buyer's interests. Seller further acknowledges that he
has been advised to seek independent assistance of counsel
regarding this transaction, and, by executing this agreement,
Seller acknowledges that he has either sought independent
assistance of counsel or has elected to proceed with this
transaction without independent assistance of counsel.
CMMM FM MU Cr MML PHaPffiT am
noir
Page a of 10
20. Entire Agreement. This contract constitutes the
entire agreement between the parties.
21. Construction. This agreement shall be construed and
enforced in accordance with the laws of the state of Alaska. All
parties have had the opportunity to consult with their attorneys.
Accordingly, the rule of construction that a document is construed
most strictly against the drafter of the document shall not apply
in construction nor interpretation of this agreement.
IN WITNESS WHEREOF, this contract has been signed, sealed
Ap riL�
and delivered this 16441 day of �fkrehh, 1991.
ADDRESS
710 Upper Mill Bay Road
Kodiak, AK 99615
ATTEST:
ADDRESS
P. 0. 634
Kodiak, Alaska 99615
COEMMM IM am ar IML PM?E r arm
Mork
Page 9 of 1
BUYER:
KODIAK ISLAND BOROUGH
By: _ �,", vu -e -jt- L c 6,7-u
J ome Selby,
SELLER:
Russell Welborn
STATE OF ALASKA )
)ss.
THIRD JUDICIAL DISTRICT ]
,4 r L
THIS IS TO CERTIFY that on the 1(044*� of Ne}i1 1991, before
me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn, personally appeared JEROME
SELBY, to me known and known to me to be the identical individual
described in and who executed the within and foregoing instrument
as Mayor of the Kodiak Island Borough and he acknowledged to me
that he signed the same in the name of and for and on behalf of
said municipality freely and voluntarily and by authority of its
Assembly for the uses and purposes therein mentioned.
GIVEN UNDER MY HAND and official seal the day and year last
above written.
No ary lic f Alaska
My Commission Expires:
STATE OF ALASKA }
)ss
THIRD JUDICIAL DISTRICT )
r�=-I
THIS IS TO CERTIFY that on the _&X ' -I of March, 1991, before
me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn, personally appeared RUSSELL
WELBORN, to me known and known to me to be the identical individual
described in and who executed the within and foregoing instrument
and he acknowledged to me that he signed the same freely and
voluntarily as a free and voluntary act, with full knowledge of its
contents, for the uses and purposes therein mentioned.
GIVEN UNDER MY HAND and official seal the day and year last
above written.
Not lic in an or Alaska
My Commission Expires: Z/ lei
4702\132D.001
COMMMM FOR S= OF ML PAMMI WO
SMIPT GI
Page 10 of W
Re: Kodiak Island Borough/Purchase of Welborn Property
Our File No. 4702-132
07!T3 •?S:4
I received a copy of your letter to Jerome Selby. I wanted to point out to you that the option to
extend the contract for extraction of gravd is held by the Kodiak Island Borough. I have no authority to
take any position concerning the exercise of that option at this time, but I wanted to allow you the chance
to take a look at the contract to see if you agree with this interpretation.
Feel free to call if you have any questions.
Sincerely yours,
JA3EN, EBEU - BOLGER & GENTRY
Joel H. Bolger
Bud Cassidy, -
Honorable Jerome Selby, Mayor
7 f
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\132L.004 I
JAM IN, E®ELL, BOLDER &
GENTRY
A PROFESSIONAL EOR RATI N
ATTORNEYS AT LAW
MATTHEW E!. JAMIN
SEATTLE MCE.'
C. WALTER E13ELL'
.323 CAROLYN STREET
300 MUTUAL LIFE BUiLWNG
.J EL, H. BOL ER'
KODIAK. ALASKA 99615
605 F1R5T AVENUE
MANNA R. GENTRY
S[KTTL Eo WKFA6PoGTOPV 01690A
ALAN L. SCHMITT
WALTER W. MASON'
P-ACSIMILE: (907) 400-6112
RACSS MILL:12061 623.75211
TELEPHONES 12QSq 622.763A
DuNCAN s. F1EL®E
"1'E,.EPHONE. g9 7y 442IS-IS024
MICHAEL A.RAUJO
.A0WTTc6 TO ALAS..
REPLY TO MOCIIAK OFFICE
SND F0.5 0T®N 0-4
meµ ov.cpm AD..TTCR 41!
�LLA6%A AW
,�{fy�rimlllOirmlgm011 i11PmmIIIIIWm11111111m0mI01mnp011umll�blllll�lllimm v
June 12,1991
IIII• tl
m ,:ICEIVE'
1 4 1
L. Ben Hancock, Esq.
Attorney at Law
KO[MAK VEM.,,AND 810ROI--JGi
506 Marine Way, Scute 2
CLERKS () °FIC1E
P. 0. Box 481,x,1��
Kodiak, AK 99615
Re: Kodiak Island Borough/Purchase of Welborn Property
Our File No. 4702-132
07!T3 •?S:4
I received a copy of your letter to Jerome Selby. I wanted to point out to you that the option to
extend the contract for extraction of gravd is held by the Kodiak Island Borough. I have no authority to
take any position concerning the exercise of that option at this time, but I wanted to allow you the chance
to take a look at the contract to see if you agree with this interpretation.
Feel free to call if you have any questions.
Sincerely yours,
JA3EN, EBEU - BOLGER & GENTRY
Joel H. Bolger
Bud Cassidy, -
Honorable Jerome Selby, Mayor
7 f
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\132L.004 I
-Z ge-7, Xzw�
ATTORNli
EY AT LAW
506 MARINE WAY
IRECHAN SLOG., SUITE 2
P.O. 19OX 481
KODIAK, ALASKA 9961 S
1907)486-5769
Kodiak Island Borough
JeromeSelby, Mayor -
710 Mill Bay Rd.
Kodiak, AK. 99615
Re: Kodiak Island Borough/ MEMO*=
Mr. Welborn would like to exercise the right to extend his
contract to extract gravel for a period of one year, as
per the contract executed on March 2, 1991.
If you have any questions, please don't hesitate to contact
my office.
With Best Regards,
lk,
L. Ben Hancock
Attorney for Russell Welborn
c -c. Jamin, Ebell, Bolger & Gentry/Joel Bolger
Mr. Jadk McFarland, Presiding Officer, Kodiak Island
Borough Assembly
Mr. Bud Cassidy, Resource Management Officer
CONTRACT FOR SALE OF REAL PROPERTY
AND RECEIPT FOR EARNEST MONEY
THIS AGREEMENT, made and entered into the day and year
hereinafter last written, by and between KODIAK ISLAND BOROUGH, of
710 Upper Mill Bay Road, Kodiak, Alaska, 99615, ("Buyer"), and
RUSSELL WELBORN, of P. 0. Box 634, Kodiak, Alaska 99615,
("Seller"). This contract is subject to the approval of the Kodiak
Island Borough Assembly.
W I T N E S S E T H:
1. Sale. The Seller agrees to sell to Buyer and Buyer
agrees to buy from Seller that certain parcel of land, with the
buildings and improvements on it, ("Property"), and more
particularly described as follows:
PARCEL NO. 1:
LOT ONE (1), BLOCK SIX (6), MILLER POINT
ALASKA SUBDIVISION, according to Plat 67-3,
located in the Kodiak Recording District,
Third Judicial District, State of Alaska.
PARCEL NO. 2:
LOT TWO "A" (2A), BLOCK SIX (6), MILLER POINT
ALASKA SUBDIVISION, according to Plat 87-21,
located in the Kodiak Recording District,
Third Judicial District, State of Alaska.
PARCEL NO. 3:
LOT ONE "A" (1A), BLOCK TEN (10), MILLER POINT
ALASKA SUBDIVISION, FIRST ADDITION, according
to Plat 87-21, located in the Kodiak Recording
District, Third Judicial District, State of
Alaska.
PARCEL NO. 4:
LOT TWO (2), BLOCK TEN (10), MILLER POINT
ALASKA SUBDIVISION, FIRST ADDITION, according
to Plat 67-9, located in the Kodiak Recording
District, Third Judicial District, State of
Alaska.
2. Purchase Price. The Buyer agrees to pay for the
property the sum of ONE HUNDRED NINETY ONE THOUSAND AND N0/100
DOLLARS ($191,000.00) as follows:
(a) FIVE THOUSAND AND N0/100 DOLLARS
($5,000.00) as earnest money upon the approval of the
Kodiak Island Borough Assembly and the execution of this
contract by both parties, by check subject to
collections;
(b) At closing, the sum of ONE HUNDRED EIGHTY
SIX THOUSAND AND N0/100 DOLLARS ($1B6,000.00) by check
subject to collection.
3. Exceptions to Title. The Premises are sold and are
now to be conveyed subject to:
(a) reservations, restrictions and easements of
record;
(b) applicable zoning regulations and ordinances;
and,
(c) real property taxes and assessments for
the year in which the closing takes place.
4. Apportionments. The following items are to be
apportioned as of the date of closing:
(a) real property taxes for the year in which
the closing takes place;
Comm= FM aux Cr Mn Paor r im
FMC=PT CW Bn=M MMr
Page 1 of 1
(b) premiums on any policies of insurance
accepted by Buyer from Seller;
(c) rents, if such property is occupied by
tenants at the date of the closing; and,
(d) water and sewer charges.
5. Gravel Extraction. Seller may use the property for
the purposes of gravel extraction until December 31, 1991, in
compliance with the development plan attached hereto as Exhibit
"Alt.
(a) Seller shall obtain all permits prior to
extraction and comply with all applicable laws and ordinances. All
gravel, brush, trees and overburden extracted shall be removed from
the premises unless otherwise directed by the Mayor of the Kodiak
Island Borough or his designee. Seller may not remove gravel in
excess of the amount allowed in the development plan. Seller may
not remove trees, brush, overburden or gravel outside the area
authorized in the development plan. Seller shall maintain a buffer
area and side slopes as required in the development plan.
Compliance with the development plan shall be to the personal
satisfaction of the Mayor or his designee. SELLER MAY NOT USE THE
PROPERTY FOR THE PURPOSE OF GRAVEL EXTRACTION UNTIL HE RECEIVES A
REZONING OF THE PROPERTY TO PUBLIC USE LANDS DISTRICT
CLASSIFICATION, OR UNTIL HE RECEIVES ANY VARIANCE, EXCEPTION OR
PERMIT FROM THE KODIAK ISLAND BOROUGH PLANNING AND ZONING
COMMISSION, NECESSARY TO ALLOW GRAVEL EXTRACTION ON THE PREMISES.
THE BUYER AGREES TO COOPERATE WITH THE SELLER IN PURSUING AN
commecr FM seas aF W" PRWEmr MW
sir cw seer PK=r
Page 3 of 1
APPLICATION FOR REZONING OR ANY NECESSARY APPLICATION FOR AN
EXCEPTION, VARIANCE, OR PERMIT.
(b) The Seller shall forever protect, save and keep
the Buyer, its agents, officers and employees, harmless and
indemnify them against and from any and all claims, demands,
losses, costs, damages, suits, judgments, penalties, expenses, and
liabilities of any kind or nature whatsoever arising directly or
indirectly out of or in connection with the gravel extraction
permitted under this paragraph.
(c) The Seller shall take out and maintain during
the period of gravel extraction on the premises, public liability
insurance for bodily injury and property damage liability,
including without limitation, coverage for explosion, blasting
collapse, and destruction of underground utilities and contingent
liability, including products and complete operations in blanket
contractual liability, as shall protect him and the Buyer. The
Seller shall have the Buyer specifically added as an additional
named insured in said policies all at no cost to the Buyer. The
above insurance shall cover the Buyer and the Seller for claims or
damages for bodily injury, including wrongful death, as well as
other claims for property damage which may arise from operations
under this paragraph whether such operations be by the Buyer or by
any subcontractor or anyone directly employed by either of them.
The aforementioned bodily injury and property damage liability
insurance shall be in an amount of not less than $1,000,000.00
combined single limit per occurrence.
CDWR = FM ARTM nP Mn P"EMY MW
ESCUPT aP EAMM MWx
Page 4 0 1
(d) Prior to beginning gravel extraction operations
under this contract, the Seller shall furnish the Buyer with a
performance bond and a payment bond in an amount acceptable to the
Buyer, conditioned upon the performance by the Seller of all
undertakings, covenants, terms, conditions, and agreements of this
paragraph and the development plan attached and upon the prompt
payment by the Seller to all persons supplying labor, materials,
equipment and services in the prosecution of the work provided
herein. Such bond shall be executed by the Seller and a corporate
bonding company licensed to transact business in this state. The
expense of these bonds shall be born by the Seller.
(e) The Buyer is hereby granted an option to extend the
gravel extraction operations allowed under this paragraph for an
additional term of one year, and all the terms, covenants, and
provisions of this contract shall apply to such extended term. If
the Buyer shall elect to exercise the aforesaid option, it shall do
so by giving to the Seller notice in writing of its intention to do
so not later than December 1, 1991.
6. Title. Within ten (10) days from the date this
contract is signed, Seller, at his expense, shall deliver to Buyer
a Preliminary Commitment for Title Insurance issued by a title
insurance company acceptable to Buyer or his attorney, showing that
the title of the Seller is good and marketable excepting only the
items specified in Paragraph 3 hereof. If there are defects in the
title, the Buyer shall notify the Seller in writing within fifteen
(15) days after receipt of the Preliminary Commitment for Title
aoaFZRAM FM saLs CF am
asrs_*! CW saEHIar HER=
Page 5 at 1
Insurance, and the Seller, in good faith and with due diligence,
shall proceed to cure such defects.
7. Risk of Loss. The risk of loss or damage to such
property, until the delivery of the deed, is assumed by the
Seller.
8. Possession. Possession of the Premises shall be
delivered to the Buyer upon delivery of the deed. Time is of the
essence of this contract.
9. Indemnification. The Seller shall forever protect,
save and keep the Buyer, its agents, officers and employees,
harmless and indemnify them against and from any and all claims,
demands, losses, costs, damages, suits, judgments, penalties,
expenses, and liabilities of any kind or nature whatsoever arising
directly or indirectly out of or in connection with the discharge
of oil or any other hazardous substance upon the property, or in
connection with the violation of any state or federal statutes or
regulations relating to environmental pollution or hazardous
substance release occurring on or before the date of delivery of
the deed as set forth herein.
10. Assessments. All assessments for local improvements
now liens or which may become liens prior to the closing, shall be
paid by the Seller.
11. Expenses. All costs of this transaction shall be
divided equally between Buyer and Seller.
12. Deed. The deed shall be a warranty deed in
statutory form, proper for recording, and shall be duly executed
aaMMM PCR sllLs CW M PrAME ar Am
EBCZWT CP RAFMI r Monn
Page 6 of 1
and acknowledged so as to convey to the Buyer the fee simple of the
premises, free of all encumbrances except as herein stated.
13. Date and Place of Closing. The deed shall be
delivered upon receipt of the payment of the purchase price as
herein provided at the offices of Western Alaska Land Title
Company, at P. 0. Box 854, Kodiak, Alaska, at a time set by mutual
agreement of the parties not later than ten (10) days after the
attorney for buyer approves title; and Seller shall promptly
thereafter provide a policy of title insurance with no exceptions
other than listed herein.
14. Default by Seller. In the event the Seller is
unable to convey title in accordance with the terms of this
contract, the Seller shall refund to the Buyer the earnest money
and any other funds paid on account of the purchase price, and
shall pay all costs incurred in preparing and securing Preliminary
Commitment for Title Insurance and all legal fees. Upon such
refund and payment being made, this contract shall be considered
canceled. This provision does not relieve the Seller from his
obligation to protect the title from the encumbrances referenced
above and to convey the title if the state of the title is
acceptable to the Buyer.
15. Default by Buyer. In the event the Buyer defaults
hereunder, any monies paid under this contract shall be retained as
liquidated damages; and in such event neither party shall be
further liable to the other and this contract shall be deemed null,
void and of no force and effect.
aoMMM FM SATs CW ssaT r r
MMM ce Ram= POMY
Page 7 of 1
16. Surviving Covenants. No provision of this contract
survives the delivery of the deed except as expressly provided.
Acceptance of the deed shall be an acceptance of performance of all
of the obligations of the Seller hereunder except such as may be
expressly stated to survive the delivery of the deed.
17. Notice. All notices, payments or deliveries to be
made under this contract shall be effectively made if delivered to
either party in person or sent by certified or registered mail with
charges prepaid to the Seller or to the Buyer at the respective
address set opposite each signature of this agreement, or to such
other address as either party from time to time may furnish in
writing to the other party.
18. Binding Effect. This contract shall extend to and
be binding upon the heirs, administrators, executors, successors
and assigns of the respective parties hereto.
19. Representation by Attorne . Seller expressly
understands and acknowledges that the law firm of Jamin, Ebell,
Bolger & Gentry, selected by Buyer to draft this agreement and
advise Buyer in regard to this transaction, exclusively represents
Buyer and Buyer's interests. Seller further acknowledges that he
has been advised to seek independent assistance of counsel
regarding this transaction, and, by executing this agreement,
Seller acknowledges that he has either sought independent
assistance of counsel or has elected to proceed with this
transaction without independent assistance of counsel.
CKIrM r FM SKTM CW Mn rre *MY MM
MCMPr aff n== Mr
Page 8 of 1
20. Entire Agreement.
This contract constitutes the
entire agreement between the parties.
21. Construction. This agreement shall be construed and
enforced in accordance with the laws of the state of Alaska. All
parties have had the opportunity to consult with their attorneys.
Accordingly, the rule of construction that a document is construed
most strictly against the drafter of the document shall not apply
in construction nor interpretation of this agreement.
IN WITNESS WHEREOF, this contract has been signed, sealed
A rA-
and delivered this JV' day of , 1991.
ADDRESS
710 Upper Mill Bay Road
Kodiak, AK 99615
ATTEST:
B ROU LERK
ADDRESS
P. 0. 634
Kodiak, Alaska 99615
cOMMUec:r FM Sam OF Mem P MW
MMMUM CW �Morar
Page 9 of 1
BUYER:
KODIAK ISLAND BOROUGH
J ome Selby,
SELLER:
............................................................................... . .... ........... L ........................... anl="�'�
Russell Welborn
STATE OF ALASKA }
)ss.
THIRD JUDICIAL DISTRICT )
A, n L
THIS IS TO CERTIFY that on the of , 1991, before
me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn, personally appeared JEROME
SELBY, to me known and known to me to be the identical individual
described in and who executed the within and foregoing instrument
as Mayor of the Kodiak Island Borough and he acknowledged to me
that he signed the same in the name of and for and on behalf of
said municipality freely and voluntarily and by authority of its
Assembly for the uses and purposes therein mentioned.
GIVEN UNDER MY HAND and official seal the day and year last
above written.
Not4arylic f Alaska
My Commission Expires:
STATE OF ALASKA )
)ss
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on the 2-7 day of March, 1991, before
me, the undersigned, a Notary Public in and for the State of
Alaska, duly commissioned and sworn, personally appeared RUSSELL
WELBORN, to me known and known to me to be the identical individual
described in and who executed the within and foregoing instrument
and he acknowledged to me that he signed the same freely and
voluntarily as a free and voluntary act, with full knowledge of its
contents, for the uses and purposes therein mentioned.
GIVEN UNDER MY HAND and official seal the day and year last
above written.
Not ublic in an or Alaska
My Commission Expires: _ 1Tr/,* —
4702\132D.00i
CONTRMM FOR or PROM Am
RB - R r;: V of 8aEMSs n3ffffY
Page 10 -of