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BELLS FLATS TR B-4A OF TR B - Land Disposal (3)' C3HN SESSOMS FINANCIAL CONTROLLER PHONE: 907.4E36.3215 FAX: 907.486.4889 c 907.539 .2056 EMAIL: JSESSOMS@HREOHAN.COM 2705 MILL B"°R".e.t, KODIAK, ALASKA 99615 Kodiak Island Borough 715 Mill Day Rd Kodiak, AK 99615 03/01/2007 Reaeipt Humber: 070012524 14:32:33 Received By FICWH =Received FM: LAND DISPOSAL BRECHA Other 350.0 8ecp pt Total . : J50.00 Amount, Tendered : 350.00 Payment Received: Cash : .00 Check : 350.00 Charge: .00 Jim Graham, Vice President Brechan Enterprises 2705 Mill Bay Road Kodiak, AK 99615 Dear Jim: Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9363 Fax (907) 486 -9396 bcassidy @kib.co.kodiak.ak.us June 29, 2006 Re: One year Lease and Material Sales Agreement to the B Tracts, Bells Flats Alaska Subdivision Attached is the executed copy of the above agreement for your records. The term of the contract is from July 1, 2007 to June 30, 2008. Please submit the rental amount of $24,000 by Tuesday July 2, 2007 (July 1 is the contract due date but it falls on Sunday). Also to be paid is the $1,000 as required by KIBC 18.60.040. Other items it be submitted include an insurance certificate in the amounts identified in the Lease and Material Sales Agreement and a performance bond. We will be in contact with you to negotiate a longer term lease to these sites in the near future. Should you have any questions, please call me. Sincerely, Bud Cassidy, Director Community Development Director cc: Rick Gifford, Manager Cyikae,f g ,r-yao/6 Xrel: 460(4Alt 1f4 v .200 LEASE AND MATERIAL SALES AGREEMENT THIS LEASE and MATERIAL SALES AGREEMENT is made this first day ofJuly, 2010 by and between the Kodiak Island Borough ("Landlord" or "KIB"), a borough organized under the laws of the state of Alaska, and Brechan Enterprises, Inc. ("Tenant" or "BEI"), a corporation incorporated under the laws of the state of Alaska. For and in consideration of the covenants, rents and demises, and upon the terms and conditions set forth in this agreement, the parties agree as follows: 1. Premises. Landlord hereby lets, leases and demises to Tenant the real estate particularly described as follows: Tracts BI, B2, 83 and B4A, Bells Flats Alaska Subdivision, generally according to Plat 69-4 (as to Tract B), located in the Kodiak Recording District, Third Judicial District, State of Alaska. Also known as 12247, 125361 and 12583 Middle Bay Drive and 12027 Bells Flats Road ("the premises"). Tenant, upon paying the rents, and performing all of the terms and covenants required by this agreement, shall peaceably and quietly enjoy the premises subject nevertheless, to the terms of this agreement. 2. Term of Lease. The term of this agreement shall be for the period of nine and one- half (9.5) years following the commencement of the term, unless sooner terminated as provided in this agreement. The lease term shall commence on July I, 2010 ("the anniversary date"), and shall expire at 5:00 P.M., prevailing Alaska Time on Dec-ember 31, 2019. Subject to being approved by the KIB Assembly ("the Assembly"), this agreement may be renewed for two additional five year terms. Tenant must give written notice of its desire to renew this agreement not less than one year prior to the end of the then current term. 3. Rental. In consideration of the demise and leasing of the premises Tenant agrees to pay to Landlord as rental for the premises an Will u al sum adjusted each June I for the following year determined as follows: the prime rate plus 2.0% (as an indication of conventional commercial mortgage rate), but not less than six percent (6%), of the appraised value ($460,000). Rental will be paid in advance, on or before the first day each month of the lease term. All rent shall be paid to the Landlord at 710 Mill Bay Road, Kodiak, Alaska 99615, or at such other place as Landlord may designate from time to time in writing. 4. Unit Price for Materials. Consistent with KIBC Chapter 18.60, BEI is also granted the right to purchase gravel by this agreement. BEI shall bear the cost of and shall provide the volume determination according to KIBC 18.60.040. The volume determination shall be in units of tons which shall be calculated at the rate of one and 7/10 (1.7) tons per cubic yards. Upon execution of this agreement, BEI shall pay to KIB $1,000 as required by KIBC 18.60.050. Lease and Material Sales Agreement Page 1 of 8 BEI shall pay for this gravel the unit price as determined by the Assembly under KTBC 18.60.060 (the "royalty"). BEI shall submit to KIB on an annual basis and not less than thirty days prior to the anniversary date of this agreement, the volume determination of the gravel removed from the premises and the royalty payment. KIB reserves the right, but is not obligated to make its own volume determination of the removed from the premises. In the event BEI fails to pay for the gravel forty five (45) days after the anniversary date of this agreement, a penalty of 10% of the amount due shall be assessed. Interest shall accrue on the amount due including the penalty at thc rate of 12 percent per year from the due date. 5. Alteration of Premises. Except for Tenant's gravel mining operations which are to be conducted consistent with this lease, Tenant shall not make any alterations, additions, or improvements to the premises without first obtaining the written consent of the Borough manager or designee. Any such alterations, additions and improvements consented to by the Borough manager or designee shall be made at Tenant's expense and only after Tenant has secured all required governmental permits. Tenant shall hold Landlord harmless from all liability and liens resulting from the approved \vork. All alterations, additions and improvements are subject to the terms of KIBC 18.40.140 and Section 3.1.3 (Equipment/Debris Removal) of the Reclamation Plan. 6. Use of Premises. The premises shall be used as support for Tenant's extraction, remanufacturing and removal of gravel from the premises (generally referred to as "gravel mining") and for ilo other purpose, without the prior written consent of Borough manager or designee. Tenant shall not use or permit the premises or any part thereof to be used for any purpose in violation of any borough, state, Federal or other governmental law, ordinance, rule or regulation. Tenant shall comply with all laws affecting the property and its gravel mining operation. Tenant agrees that it, together with all other persons entering and/or occupying the premises at its request or with its permission, will abide by, keep and observe all reasonable rules and regulations which Landlord may make from time to time For the protection of the surrounding habitat and residential areas. The violation of any such rules and regulations shall be deemed a material breach of this agreement by Tenant. Tenant shall use, operate and/or install any electrical or mechanical equipment, machinery, or mechanical devices on the premises in compliance with the highest standards applicable to the premises, or to the ise, operation, or installation ofsuch equipment, machinery or devices, generally recognized by the profession or industry in which Tenant is engaged. Tenant expressly agrees to comply with the list of stipulations on attached Exhibit A, which are incorporated into and made part of this agreement. 7. Taxes. Tenant shall pay any and all real property taxes based on its possessory interest in the premises, taxes levied on personal property and trade or other fixtures on the premises, severance taxes associated with its resources extracted or produced from the premises, and license and excise fees and occupation taxes covering business conducted on the premises. Lease and Material Sales Agreement Page 2 of 8 8. Utilities. Tenant shall provide at its expense all utilities and services used on the premises. Landlord shall not be liable for any loss or damage eauscd by or resulting from any variation, interruption or failure of any utilities or services 9. Maintenancc and Repairs. As this is a lease of' land, Landiord has no duty to maintain or repair the premises. Tenant shall, at its expense, maintain and repair the preniSos. Tenant shall commit no waste o[ any kind in or about the premises, and Tenant shall pay [broU damage to the premises caused by Tenant's misuse or neglect of the premises. Landlord shall not be responsible or liable at any time for any Ioss or damages to Tenant's equipment or other personal property or to Tenant's business except to the extent attributable to Landlord's negligence. Landlord shall not be responsible or liable for any defect, latent or otherwise, in the premises. Nor shall Landlord be responsible or liable for any injury, Ioss or damage to any person or to any property of Tenant or other person caused by or resulting from bursting, breakage or by or from leakage, stream or snow or ice, running or the overflow of'waler or sewerage in any part of said premises, or the surrounding area, or for any injury or damage caused by or resultiiig from acts of nature 0[ the elements, or for any injury or damage caused by or resulting from any defect in the operation or MC of any of the premises by any person or by or from the acts or negligence of any occupant of the premises, unless Landlord itself is negligent. 10. Fire and Other Casualty. As this is a lease of land, Landlord has no duty t0 protect the premises from damage by fire or other casualty. Tenant acknowledges that it must protect its niachinery and equipmenl from damage by Fire or other casualty. There will be iio reductioii in rent in the event that Tenant's machinery and/or equipment. is damaged by fire or other casualty. 11. Subletting and Assignment. Tenant shall not sublet the premises, or any part thorcnf, or assign this lease or any par thereof, nor shall this agreement be assigned in whole or in part by operation of Iaw or through any court proceedings, withous. thc prior written consent of Borough Manager ordesignee to such siibleuing or assigning; any such assignment or sublease without Borough Manager or designcc's written consent shall be void. Any merger, consolidation, or dissolution 10 which Tenant is upm�y, or any change in ownership of ann majority of voting stock outstanding, shall constitute assignment of lhi lease for of this paragraph. 12. Indemnification. Tenant shall defend and indemnify Landiord from and against any and all claims, liabilities, or losses of any type arising out of Tenant's occupancy and use of the premises together vvith reasonable attorney's fees and all costs and expenses incurred by Landlord in negotiating, settling, defending and otherwise acting as a result of such claims. Landlord shall promptly notify Tenant of any loss or claim and shall tender defense of such claim to Tenant prior to negotiating, settling, or defending such claim. 13. Insurance. Tenant, at its sole expense, shall keep or CUSC 10 be kepi. in force for the mutual benefit of Landlord and Tenant comprehensive broad form general public liability Lease and Matcrial Sales Agreement Page 3 0[8 insurance coverage agairist claims and liability for personal injury, death or property damage arising from the use, occupancy, disuse or condition oCthe preniises, improvements, or adjoining arcas or ways. This insurance shall provide coverage o[c8 least SZ,000/}00aggregate, $|]0O,000 per occurrence, S2,}0O,OOO for products/operations and Sl,000.000 for personal and advertising. Landlord shall be an additional named insured in such policy' or policies. Such policy or policies shall be wrillen by a responsible insuiance company or companies satisfactory t0 Landlord and licensed 'to do business in Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Landlord that might otherwisc result in a forfeiture oF the insurance; (>) the insurer waives the right of subrogation against Landlord; (3) the policies are primary and noncontributing with any insurance hat niay he calTied by Landiord; and (4) they cannot be cancelled or materially changcd except after thirty (30) days notice by the insurer to Landlord. Upon the signing of this Agrccment. cerli ficaies of insurance showing compliance vith the foregoing requirements shall be furnished by Tenant to Landlord for approval. Maintenance of insurance and thc perf'oi'niance by Tenant oF the obligation under this paragraph shall not relieve Tenant of liability under paragraph 13, above. l[Tenalt fails or refuses to procure or maintain the required insurance, or fails to provide Landlord with the required proof o[ insurance and that it is in force and paid for, Landlord may, at Landlord's election and without notice, procure and maintain such insurance, or may terminate this agreernent without liability upon written notice to Tenant. Any premiums paid by Landlord shall betreated as an added fee due from Tenant with intcrest at twelve per cent (l2%) per year, to be paid on demand, 14. Liens. Tenant will not permit any mechanics', laborers' or material men's liens to stand against the premises for any labor materials furnished to Tenant or claimed to have been furnished to Tenant, or to Tenant's agents in connection \vitt' work of any character performed or claimed to have been performed Onthe premises 0r improvements byoru1ihudirootiounf sufferance of Tenant; provided, however, Tenant shall have the right to contest the validi or amount of any such lien or clairned lien. ln the event Of such contest, Tenant shall give k} Landlord such reasonable seeurity as may he demanded by Landlord io insure payment o[such lien or such claim of lien. Tenant \vill immcdiatcly pay anyjuclgnient rendered with al! proper eOStS and changes and shall 1iave such lien released Or judgment satisfied at Tcnant's own expense. The foregoing provisions respecting liens shall apply to all liens, of any kind or nature, asserted against the premises, including liens arising out of incident to, or connected with the use and occupation of the premises by Tenant. 15. Default. {[Tenant at any time during the term of this lease (and regardless o[the pendency of any hankruptcy, reorganization, rcceivership, inoo[vcnnyorohhorprocccdings,iu law, in equity or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this lease) shall: (a) Foil to make payment or any installnienl of rent, royalty or o f any other SUm herein specificd 10 be paid by Tenant, and Tenant fails 10 eure such default within ten (10) days after such failure to make payment: or Lease and Material Sales Agreement Page 4of8 (b) Fail to observe or perform any of Tenant's other covenants, agreements or obligations required by this agreement or the attached exhibits (the list of stipulations (Exhibit A), the Reclamation Plan dated May 12, 2010 (Exhibit B), and the Stormwater Pollution Prevention Plan (Exhibit C) all ofwhich are incorporated herein by reference), and if within thirty (30) days after Landlord shall have given to Tenant written notice specifying such default . or defaults, Tenant shall not have commenced to cure such default and proceed diligently to cure the same; or (c) Fail to mine gravel from the premises for any twelve (12) months period: (d) If Tenant has filed a Petition under Chapter 11 of Bankruptcy Act, or a voluntary petition under any other provision of the Bankruptcy Act, or if Tenant finally and without further possibility to appeal or review: (1) is adjudicated as bankrupt or insolvent; or (2) has a receiver appointed for all or substantially all of its business or assets on the ground of Tenant's insolvency; or (3) has itself appointed as a debtor-in-possession; or (4) has a trustee appointed for it after a petition has been filed for tenant's reorganization under the Bankruptcy Act of the United States or any future law of the United States having the same general purpose; or (5) if Tenant shall make an assignment for the benefit of creditors then in any such event Landlord shall have the right at its election, then or at any time thereafter, and while such default, defaults or events shall continue, to give Tenant notice of Landlord's intention to terminate this agreement and all Tenant's rights hereunder, on a date specified in such notice, which date shall not be less than ten (10) days after the date of giving of such notice, and on the date specified in such notice, the term of this agreement and all rights granted Tenant hereunder shall come to an end as fully as if this agreement then expired by its own terms, and Tenant hereby covenants peaceably and quietly to yield up and surrender to Landlord the premises, and to execute and deliver to Landlord such instrument or instruments as shall be required by Landlord as will properly evidence termination of Tenant's rights hereunder or its interest therein. In the event of termination of this agreement as in this paragraph provided, Landlord shall have the right to repossess the premises and such structures, buildings, improvements and equipment, either with process of law or through any form of suit or proceeding, as well as the right to sue for and recover all rents and other sums accrued up to the time of such termination, and damages for rent not then accrued. Landlord shall also have the right, without resuming possession of the premises or terminating this agreement, to sue for and recover all rents and other sums, including damages, at any time and from time to time accruing hereunder. 16. Notices. Any and all notices required or permitted under this agreement, unless otherwise specified in writing by the party whose address is changed, shall be mailed, certified or registered mail, or delivered, to the following addresses: LANDLORD: TENANT: Kodiak Island Borough Brechan Enterprises, Inc. 710 Mill Bay Road 2705 Mill Bay Road Kodiak, Alaska 99615 Kodiak, Alaska 99615 Lease and Material Sales Agreement Page 5 of 8 Any such notices shall be deemed effective on the date of mailing or delivery. 17. Costs Upon Default. In the event either party shall be in default in the performance of any of its obligations under this agreement or an action shall be brought for the enforcement thereof, the defaulting party shall pay to the other all the expenses incurred therefor, including a reasonable attorney's fee. In the event either party shall without fault on its part be made a party to any litigation commenced by or against the other, then such other party shall pay all costs and reasonable attorney's lees incurred or paid by such party in connection with such litigation. 18, Rights or Remedies. Except insofar as this is inconsistent with or contrary to any provision of this agreement, no right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. 19. Waiver and Forbearance. Except to the extent that Landlord may have otherwise agreed in writing, no waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants hereunder shall be deemed to be a waiver of any subsequent breach of the same or any other covenant, agreement or obligation. Nor shall any forbearance by Landlord to seek a remedy for any breach of Tenant be deemed a waiver by Landlord of its rights or remedies with respect to such breach. 20. Inspection. Landlord shall at all reasonable times during Tenant's business hours have access to the premises for the purpose of inspection. Landlord shall also be entitled to put "to lease" or "for lease" signs in and about the premises, and to show the premises to prospective tenants, during the last sixty (60) days of this agreement term and any extended term, and during any period of time after Landlord has given Tenant a notice of intention to terminate under paragraphs 3 or 16 of this agreement. 21. Notices of Nonresponsibilitv. Landlord may enter the demised premises at any time for the purpose of posting notices of nonresponsibility. 22. Successors in Interest. This agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the parties hereto. 23. Holding Over. In the event that Tenant holds over at or after the end oldie temi, the tenancy shall be deemed a month-to-month tenancy commencing on the first day of the holdover period. 24. Signs. Other than "no trespassing" signs and signs necessary for compliance with regulatory requirements, Tenant agrees that no other sign or signs shall be installed on the demised premises without the prior written consent of Landlord. Lease and Material Sales Agreement Page 6 of 8 25. Memorandum of Lease. Tenant agrees that it will not record this agreement. At the request of either Landlord or Tenant, the parties shall execute a memorandum lease for recording purposes in lieu of recording this agreement, in such form as may be satisfactory to their respective attorneys. 26. Excuse for Nonperformance. Either party hereto shall be excused from performing any or all of its obligations hereunder with respect to any repair and construction work required under the terms of this. agreement for such times the performance of any such obligation is prevented or delayed by an act of God, floods, explosion, the elements, war, invasion, insurrection, riot, mob violence, sabotage, terrorist activity; inability to procure labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action by labor unions, or laws or order of governmental agencies, or any other cause whether similar or dissimilar to the foregoing which is not within the reasonable control of such party. 27. Construction of Lease. This agreement shall be governed by and construed in accordance with the laws of the State of Alaska. Words of gender used in this agreement shall mean and include any other gender, and singular shall mean and include the plural and the plural the singular, where applicable, and when the sense requires. 28. Performance Bond. As required by KIBC 18.60.070 a performance bond is required to protect Landlord's interest and ensure satisfactory compliance with this agreement and the Reclamation Plan (Exhibit B). As noted in section 4 of Exhibit B, the amount of the bond may be reduced (hiring the term of this lease. The form'of this bond is attached as Exhibit D. 29. Condemnation. If the Premises shall be taken or condemned for any public purpose to such an extent as to render the Premises untenantable, this 'agreement shall, at the option of either party, cease and terminate as ofthe date when possession is taken. All proceeds from any taking or condemnation of the Premises shall belong to and be paid to Landlord, and Tenant shall have no right to any portion of the amount that may be awarded or paid to Landlord as a result of such taking. Tenant shall be entitled to pursue any and all damages from the condemner personal to Tenant resulting from condemnation. 30. Subordination and Nondisturbance. This agreement and all of the rights of Tenant hereunder are and shall be subject and subordinate to the lien of every deed of trust and every mortgage now or hereafter placed on the demised premises or any part thereof (except the property of Tenant), and to any and all renewals, modifications, consolidations, replacements, extensions or substitutions of any such mortgage or deed of trust ("encumbrances"). Lease and Material Sales Agreement Page 7 of 8 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this ./ day of 01-4.3, , 2010. TENANT: Brechan Enterprises, Inc. 13y: 'Michael Martin Its President 77( SUBSCRIBED AND SWORN to before me by Michael Martin this / -4/ day of , 2010, at Kodiak, Alaska. OFFICIAL UAL NELDA RODRIGUEZ NC:ABY ouSLIC-STAT1 V ALASKA Comm. bores 4/-/-,(3 Notary Public in and IPAlaska My Commission expires: .1 ;J3 LANDLORD: TI-IE KODIAK ISLAND BOROUGH Borough Mana Rick Gifford SUBSCRIBED 2010, at Kodiak, Alaska. ATTEST: RN to before me by Rick Giftor his90 day of Ott 1 I f N,N-4itt FRP " i• '• • • y Col : . 1 Borough Clerk, Nova v e Lease and Material Sales Agreement Page 8 of 8 Ilik A el I c in and f 1- Alaska ission ex : LEASE AND MATERIAL SALES AGREEMENT Stipulations Regarding Gravel Mining Operation EXHIBIT A 1. For all public works contracts for the Kodiak Island Borough, the City of Kodiak, or other State or Federal agencies that are subject to competitive bidding, Tenant shall (a) quote materials pricing to bidders for the purpose of allowing such bidders to prepare their bid proposals ("the quoted price") and (b) thereafter sell to successful bidders materials at the quoted price. 2. Tenant acknowledges that Landlord has installed three water monitoring wells identified as KDH09-07, -08 and -09. Tenant further acknowledges that it knows where these wells are located and will preserve and protect them. 3. Tenant acknowledges that the gravel to be mined from the premises shall be used primarily for the production of concrete and asphalt. 4. Tenant acknowledges the importance of mining gravel from the ponds to the deepest depth practical. In order to achieve this, mining of the spit must retain a minimum one hundred (100) foot spit width to separate the two ponds and facilitate efficiency of future land based dragline operations for excavating the bottom of the ponds. Final removal of the spit itself will proceed only with approval of the Borough Manager or designee. 5. Tenant shall coordinate with all appropriate regulatory agencies regarding its extraction and reclamation activities to assure regulatory compliance and minimize potential impacts of its activities. 6. In addition to the terms of the reclamation plan, Tenant shall comply will the following performance standards: a. Buffer Area. Buffer zones as described in the March 1, 2007 BEI letter, and as shown on exhibit A to that letter, shall be maintained and kept in a topography that blends smoothly into the surrounding area. b. Overburden. Overburden shall be stripped, stockpiled, placed, and leveled in the cleared portion of the designated buffer area or transported off site. Existing berms will remain in place for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, berms Nvill conform to the reclamation plan. c. Trees. No brush, trees, stumps, or parts of trees shall be placed in the excavated area or buffer area. Exhibit A Page 1 of 3 d. Access. Ingress and egress shall be-limited to existing points on Middle Bay Drive. Tenant shall not change its point of ingress and egress to the premises without the prior written consent of the MB Manager or designee. e. Hours of Operation. Tenant shall limit hours of operation on the premises to 7:00 a.m. to 7:00 p.m. Monday through Saturday. Only routine maintenance on equipment is allowed on Sundays between 7:00 a.m. to 7:00 p.m. There will be no work of any kind on Memorial Day, July 4th, Labor Day, Thanksgiving and Christmas. f. Haul Road. It is the intent of this agreement to keep loaded trucks off of Middle Bay Drive as much as possible. For purposes of this agreement, Tenant shall operate its vehicles at no more than twenty-five (25)- miles per hour on the following roads: A. Loaded trucks shall use Middle Bay Drive at its intersection with Bells Flats Road, then Bells Flats Road and South Sargent Creek Road while traveling between the premises and Chiniak Highway. 13. Unloaded trucks may use Middle Bay Drive. C. Also included as a designated haul road is Salmonberry Drive fronting Block 3, Tract A, Bells Flats Alaska Subdivision. If there is a temporary closure, by reason of emergency, or for repair or improvement requiring use of an alternative route, BEI shall notify the Borough manager or designee of the reason and duration, which situation will not create liability for Landlord. g. Dust Control. In periods of dry weather when the haul roads become dusty, Tenant shall work with the Womens Bay Service Area to reduce the dust created by its vehicles. A dust pallativc will be applied annually by BEI. Relative to its operations on the premises, Tenant shall comply with applicable Alaska Department of Environmental Conservation regulations regarding fugitive dust specifically, and air quality control in general. h. Security. In the interest of increasing site security, the Following will he accomplished before June 30, 2010: 1. in collaboration with the Womens Bay Service Area, BEI will install at the .two ingress/egress points indent' fied in 6d with KIB approved traffic control signs that comply with State regulations, and will remove brush to improve line of sight; and, 2. BEI will install gates at the two ingress/egress points to be locked at all times except during authorized hours of operation. In addition, BEI will actively pursue installation of security cameras at the two ingress/egress points identified, as well as the option to locate a caretaker/night watchman residence on site to be continuously occupied during seasonal operations at a minimum. Exhibit A Page 2 of 3 Public Information. For purposes of answering questions from the public and responding to problems and conflicts, tenant shall establish within the company, and publish and post on site, a phone number as well as designate a resource contact person or position by name. j. Hazardous Materials. The premises shall not be used for the storing of any hazardous material, as defined in AS 29.35.590(6), beyond what is placed within the tanks on Tenant's trucks, dozers and excavators. Exhibit A Page 3 of 3 LEASE AND MATERIAL SALES AGREEMENT (short teini) THIS LEASE and MATERIAL SALES AGREEMENT is made this first day ofJuly, 2007 by and between the Kodiak Island Borough ("Landlord" or "KIB"), a municipal corporation organized under the laws of the state of Alaska, and Brechan Enterprises, Inc. ("Tenant" or "BEI"), a corporation incorporated under the laws of the state of Alaska. For and in consideration of the covenants, rents and demises, and upon the terms and conditions set forth in this agreement, the parties agree as follows: 1. Premises. Landlord hereby lets, leases and demises to Tenant the real estate particularly described as follows: Tracts BI, B2, B3 and B4A, Bells Flats Alaska Subdivision, generally according to Plat 81-24, located in the Kodiak Recording District, Third Judicial District, State of Alaska. Also known as 12247, 125361 and 12583 Middle Bay Drive and 12027 Bells Flats Road ("the premises"). Tenant, upon paying the rents, and performing all of the terms and covenants required by this agreement, shall peaceably and quietly enjoy the premises subject nevertheless, to the terms of this agreement. 2. Term of Lease. The term of this agreement shall be for the period of one (1) year following the commencement of the term, unless sooner terminated as provided in this agreement. The lease term shall commence on July 1, 2007, and shall expire at 5:00 PM., prevailing Alaska Time on June 30, 2008. 3. Rental. In consideration of the demise and leasing of the premises Tenant agrees to pay to Landlord as rental for the premises the lump sum of twenty four thousand dollars ($24,000.00) in advance, on or before the first day of the lease term. All rent shall be paid to the Landlord at 710 Mill Bay Road, Kodiak, Alaska 99615, or at such other place as Landlord may designate from time to time in writing. 4. Unit Price for Materials. Consistent with KIB Code ("KIBC") Chapter 18.60, BEI is also granted the right to purchase gravel by this agreement. BEI shall bear the cost of and shall provide the volume determination according to KIBC 18.60.040. The volume determination shall be in units of cubic yards. Upon execution of this agreement, BEI shall pay to KIB $1,000 as required by KIBC 18.60.040. BEI shall submit to KIB on an annual basis and not less than thirty days prior to the anniversary date of this agreement, the volume determination of the gravel removed from the premises. BEI shall pay for this gravel the -unit price as determined by the KIB Assembly under LEASE AND MATERIAL SALES AGREEMENT — Page 1 of 9 KIBC 18.60.060. KIB reserves the right, but is not obligated to make its own volume determination of the gravel removed from the premises. 5. Alteration of Premises. Tenant shall not make any alterations, additions, or improvements to the premises without first obtaining the written consent of Landlord to Tenant's development plan ("development plan") attached as Exhibit A. Any such alterations, additions and improvements consented to by Landlord shall be made at Tenant's expense. Tenant shall secure all governmental permits required in connection with the development plan and with the approved work. Tenant shall provide Landlord with copies of all applications and all permits associated with these regulatory compliance requirements. These copies will be provided at the time the applications are submitted to the regulatory agencies and when the permits are received. Tenant shall hold Landlord harmless from all liability and liens resulting from the development plan and approved work. All alterations, additions and improvements are subject to the terms of KIBC 18.40.140. • 6. Use of Premises. The premises shall be used as support for Tenant's extraction, remanufacturing and removal of gravel and for no other purpose, without the prior written consent'of Landlord. Tenant shall not use or permit the premises or any part thereof to be used for any purpose in, violation of any borough, state, federal or other governmental law, ordinance, rule or regulation. Tenant agrees that Tenant, together with all other persons entering and/or occupying the premises at Tenant's request or with Tenant's permission, will abide by, keep and observe all reasonable rules and regulations which Landlord may make from time to time for the protection of the surrounding habitat and residential areas. The violation of any such rules and regulations shall be deemed a material breach of this agreement by Tenant. Tenant shall use, operate and/or install any electrical or mechanical equipment, machinery, or mechanical devices on the premises in compliance with the highest standards applicable to the premises, or to the use, operation, or installation of such equipment, machinery or devices, generally recognized by the profession or industry in which Tenant is engaged. Tenant shall use the premises and any machinery or equipment on it in such a manner as not to cause substantial noise or vibration, or unreasonable disturbance to surrounding residents. Tenant expressly agrees to comply with the list of additional terms on attached Exhibit B and recognizes that a failure to do so shall be an incident of default. Tenant will take all reasonable steps to secure the premises against casual access by the public. 7. Taxes. Tenant shall pay any and all taxes levied on personal property and trade or other fixtures on the premises. Tenant shall pay any license and excise fees and occupation taxes covering business conducted on the premises. Tenant shall pay all severance taxes associated with its resources extracted or produced from the premises. 8. Utilities. Tenant shall provide at its expense all utilities and services used on the premises. Landlord shall not be liable for any loss or damage caused by or resulting from any variation, interruption or failure of any utilities or services. 9. Maintenance and Repairs. As this is a lease of land, Landlord has no duty to maintain or repair the premises. Tenant shall, at its expense, maintain and repair the premises. LEASE AND MATERIAL SALES AGREEMENT — Page 2 of 9 Tenant shall commit no waste of any kind in or about the premises, and Tenant shall pay for all damage to the premises caused by Tenant's misuse or neglect of the premises. Landlord shall not be responsible or liable at any time for any loss or damages to Tenant's equipment or other personal property or to Tenant's business except to the extent attributable to Landlord's negligence. Landlord shall not be responsible or liable for any defect, latent or otherwise, in the. premises. Nor shall Landlord be responsible or liable for any injury, loss or damage to any person or to any property of Tenant or other person caused by or resulting from:. bursting, breakage or by or from leakage, stream or snow or ice, running or the overflow of water or sewerage in any part of said premises, or the surrounding area, or for any injury or damage caused by or resulting from acts of nature or the elements, or for any injury or damage caused by or resulting from any defect in the operation or use of any of the premises by any person or by or from the acts or negligence of any occupant of the premises, unless Landlord itself is negligent. 10. Fire and Other Casualty. As this is a lease of land, Landlord has no duty to protect the premises from damage by fire or other casualty. Tenant acknowledges that it must protect its machinery and equipment from damage by fire or other casualty. There will be no reduction in rent in the event that Tenant's machinery and /or equipment is damaged by fire or other casualty. 11. Subletting and Assignment. Tenant shall not sublet the premises, or any part thereof, or assign this agreement or any part thereof, nor shall this agreement be assigned in whole or in part by operation of law or through any court proceedings, without the prior written consent of Landlord to such subletting or assigning; any such assignment or sublease without Landlord's written consent shall be void. Any merger, consolidation, or dissolution to which Tenant is a party, or any change in ownership of a majority of its voting stock outstanding, shall constitute an assignment of this agreement for purposes of this paragraph. 12. Indemnification. Tenant shall defend and indemnify Landlord from and against any and all claims, liabilities, or losses of any type arising out of Tenant's occupancy and use of the premises together with reasonable attorney's fees and all costs and expenses incurred by Landlord in negotiating, settling, defending and otherwise acting as a result of such claims. Landlord shall promptly notify Tenant of any loss or claim and shall tender defense of such claim to Tenant prior to negotiating, settling, or defending such claim. 13. Insurance. Tenant, at its sole expense, shall keep or cause to be kept in force for the mutual benefit of Landlord and Tenant comprehensive broad form general public liability insurance coverage against claims and liability for personal injury, death or property damage arising from the use, occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways. This insurance shall provide coverage of at least $2,000,000 aggregate, $1,000,000 per occurrence, $2,000,000 for products /operations and $1,000,000 for personal and advertising. Landlord shall be an additional named insured in such policy or policies. Such policy or policies shall be written by a responsible insurance company or companies satisfactory to Landlord and licensed to do business in Alaska. All such policies shall be nonassessable and LEASE AND MATERIAL SALES AGREEMENT — Page 3 of 9 shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Landlord that might otherwise result in a forfeiture of the insurance; (2) the insurer waives the right of subrogation against Landlord; (3) the policies are primary and noncontributing with any insurance that may be carried by Landlord; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Landlord. Upon the signing of this Agreement, certificates of insurance showing compliance with the foregoing requirements shall be furnished by Tenant to Landlord for approval. Maintenance of insurance and the performance by Tenant of the obligation under this paragraph shall not relieve Tenant of liability under paragraph 12, above. If Tenant fails or refuses to procure or maintain the required insurance, or fails to provide Landlord with the required proof of insurance and that it is in force and paid for, Landlord may, at Landlord's election and without notice, procure and maintain such insurance, or may teiminate this agreement without liability upon written notice to-Tenant. Any premiums paid by Landlord shall be treated as an added fee due from Tenant with interest at twelve per cent (12%) per year, to be paid on demand. 14. Performance Bond. A performance bond in the amount of $100,000, payable to Landlord, shall be obtained by Tenant and kept in force during the term of this agreement. Failure to maintain this bond will be a default. 15. Liens. Tenant will not permit any mechanics', laborers' or material men's liens to stand against the premises for any labor or materials furnished to Tenant or claimed to have been furnished to Tenant, or to Tenant's agents in connection with work of any character performed or claimed to have been performed on the premises or improvements by or at the direction of sufferance of Tenant; provided, however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give to Landlord such reasonable security as may be demanded by Landlord to insure payment of such lien or such claim of lien. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. The foregoing provisions respecting liens shall apply to all liens, of any kind or nature, asserted against the premises, including liens arising out of, incident to, or connected with the use and occupation of the premises by Tenant. 16. Default. The provisions of this paragraph shall apply if: (a) Tenant defaults in the payment of rent and the default continues for ten (10) days; Or (b) Tenant defaults in the performance of any of its other obligations under this agreement and the default continues for thirty (30) days after notice of the default from Landlord specifying in what manner Tenant has defaulted. If the default cannot be cured within the thirty (30)-day period, the period shall be extended for a reasonable additional time, provided that Tenant commences to cure the default within the. thirty (30)-day period and proceeds diligently to effect a cure. LEASE AND MATERIAL SALES AGREEMENT — Page 4 of 9 In the event of any default described in subparagraph (a) above, Landlord may: (1) Cure the default, in which case any costs and expenses and reasonable attorney fees and court costs incurred by Landlord because of the default shall be deemed additional rent; or (2) Lawfully enter the premises and repossess the same, and expel Tenant and those claiming under Tenant, without being deemed guilty of any manner of trespass and without prejudice to any other remedies which Landlord may have for arrears of rent or breach of covenant. On entry by Landlord under subparagraph (2) above, this agreement shall terminate. 17. Forfeiture. The following shall apply in the event of the bankruptcy or insolvency of Tenant: (a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code, and the trustee of Tenant elects to assume this agreement for the purpose of assigning it, the election or assignment, or both, may be made only if all of the terms and conditions of this paragraph are satisfied. If the trustee fails to elect to assume this agreement for the purpose of assigning it within sixty (60) days after the trustee's appointment, this agreement will be deemed to have been rejected. Landlord shall then immediately be entitled to possession of the premises without further obligation to tenant or the trustee, and this agreement will be canceled. Landlord's right to be compensated for damages in the bankruptcy proceeding, shall, however, survive. (b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding is filed by or against Tenant under any other chapter of the Bankruptcy Code and is converted to a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as a debtor-in-possession fails to assume this agreement within sixty (60) days from the date of filing of the petition or conversion, the trustee or the debtor-in-possession will be deemed to have rejected this agreement. Landlord shall then immediately be entitled to possession of the premises without further obligation to tenant or the trustee, and this agreement will be cancelled. Landlord's right to be compensated for damages in the bankruptcy proceeding shall, however, survive. To be effective, an election to assume this agreement must be in writing and addressed to Landlord and, in Landlord's business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied: (i) The trustee or the debtor-in- possession has cured or has provided to Tenant adequate assurance, as defined in this subparagraph (b) that: (A) the trustee will cure all monetary defaults under this agreement within ten (10) days from the day of the assumption; and (B) the trustee will cure all nonmonetary defaults under this agreement within thirty (30) days from the date of the assumption. (ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided t Landlord adequate assurance, as defined in this subparagraph (b), that within ten (10) days from the date of the assumption Landlord will be compensated for any LEASE AND MATERIAL SALES AGREEMENT — Page 5 of 9 pecuniary loss it incurred arising from the default of Tenant, the trustee, or the debtor-in- possession as recited in Landlord's written statement of pecuniary loss sent to the trustee for the debtor-in-possession. (iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the further performance of each of Tenant's obligations under the agreement; provided, however, that: (A) the trustee or debtor-in-possession will also deposit with Landlord, as security for the timely payment of rent, an amount equal to 3 months' rent and other monetary charges accruing under this agreement; (B) if not otherwise required by the terms of this agreement, the trustee or the debtor-in-possession will also pay in advance, on each day that the rent is payable, one-twelfth (1/12) of Tenant's annual obligations under the agreement for all additional rent as defined in the agreement; (C) from and after the date of assumption of this agreement, the trustee or debtor-in-possession will pay the annual rent payable under this agreement in advance in equal monthly installments on each day that the base rent is payable; and (D) the obligations imposed on the trustee or the debtor-in possession will continue for Tenant after the completion of bankruptcy proceedings. (iv) For purposes of this subparagraph (b), "adequate assurance: means that: (A) Landlord will determine that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the trustee or the debtor- in possession will have sufficient funds to fulfill Tenant's obligations under this agreement and to keep the premises properly staffed with sufficient employees to conduct a fully operational, actively promoted business on the premises; and (B) an order will have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest will have been granted in property of Tenant, trustee, or debtor-in-possession that is acceptable for value and kind to Landlord to secure to Landlord the obligation of the trustee or debtor-in-possession to cure the monetary or nonmonetary defaults under this agreement within the time periods set forth above. (c) In the event that this agreement is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) and if Tenant is then either adjudicated a bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may terminate, at its option, this agreement and all Tenant's rights under it, by giving written notice of Landlord's election to terminate. (d) If the trustee or the debtor-in-possession has assumed the agreement, under the terms of subparagraphs (a) or (b) above, and elects to assign Tenant's interest under this agreement or the estate created by that interest to any other person, that interest or estate may be assigned only if Landlord acknowledges in writing that the intended assignee has provided adequate assurance, as defined in subparagraph (b)(iv), of future performance of all of the terms, covenants, and conditions of this agreement to be performed by Tenant. LEASE AND MATERIAL SALES AGREEMENT — Page 6 of 9 (e) For the purposes of this paragraph, "adequate assurance of future performance: means that Landlord has ascertained that each of the following conditions has been satisfied: (i) the assignee has submitted a current financial statement, audited by a certified public accountant, that shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of Tenant's obligations under this agreement; (ii) if requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord, from one or more persons who satisfy Landlord's standards of creditworthiness; (iii) Landlord has obtained all consents or waivers from any third party required under any other agreement by which Landlord is bound, to enable Landlord to permit the assignment; and (iv) when, pursuant to the Bankruptcy Code, the trustee or the debtor-in- possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the premises, the charges will not be less than the rent as defined in this agreement and other monetary obligations of Tenant, including additional rent as defined in the agreement. (f) Neither Tenant's interest in the agreement nor any estate of Tenant created in the agreement will pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to the transfer. Landlord's acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, the need to obtain Landlord's consent or Landlord's right to terminate this agreement for any transfer of Tenant's interest under this agreement without that consent. 18. Notices. Any and all notices required or permitted under this agreement, unless otherwise specified in writing by the party whose address is changed, shall be mailed, certified or registered mail, or delivered, to the following addresses: LANDLORD: Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 TENANT: Brechan Enterprises, Inc. 2705 Mill Bay Road Kodiak, Alaska 99615 Any such notices shall be deemed effective on the date of mailing or delivery. 19. Costs Upon Default. In the event either party shall be in default in the performance of any of its obligations under this agreement or an action shall be brought for its enforcement, the defaulting party shall pay to the other all the expenses so incurred, including a reasonable attorney's fee. LEASE AND MATERIAL SALES AGREEMENT — Page 7 of 9 In the event either party shall without fault on its part be made a party to any litigation commenced by or against the other, then such other party shall pay all costs and reasonable attorney's fees incurred or paid by such party in connection with such litigation. 20. Rights or Remedies. Unless it is inconsistent with or contrary to any provision of this agreement, no right or remedy granted to Landlord by this agreement is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this agreement, or now or hereafter existing at law or in equity or by statute. 21. Waiver and Forbearance. Except to the extent that Landlord may have otherwise agreed in writing, no waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants under this agreement shall be deemed to be a waiver of any subsequent breach of the same or any other covenant, agreement or obligation. Nor shall any forbearance by Landlord to seek a remedy for any breach of Tenant be deemed a waiver by Landlord of its rights Or remedies with respect to such breach. 22. Inspection. Landlord shall at all reasonable times during Tenant's business hours have access to the premises for the purpose of inspection. Landlord has no duty to inspect. 23. Successors in Interest. This agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the parties. 24. Holding Over. In the event that the Tenant holds over at or after the end of the term, the tenancy shall be deemed a month-to-month tenancy commencing on the first day of the holdover period. 25. Signs. Tenant agrees that no signs may be installed on the premises without the written consent of Landlord. 26. Memorandum of Lease. Tenant agrees that Tenant will not record this agreement. At the request of either Landlord or Tenant, the parties shall execute a memorandum lease for recording purposes in lieu of recording this agreement, in such form as may be satisfactory to their respective attorneys. 27. Excuse for Nonperformance. Either party hereto shall be excused from performing any or all of its obligations hereunder with respect to any repair and construction work required under the terms of this agreement for such times the performance of any such obligation is prevented or delayed by an act of God, floods, explosion, the elements, war, invasion, insurrection, riot, mob violence, sabotage, terrorist activity, action by laws or order of governmental agencies, or any other cause whether similar or dissimilar to the foregoing which is not within the reasonable control of such party. LEASE AND MATERIAL SALES AGREEMENT — Page 8 of 9 28. Construction of Agreement. This agreement shall be governed by and construed in accordance with the laws of the State of Alaska and with KIBC 18.40 and 18.60. In the event of a conflict between the terms of this agreement and the words of an applicable statute or section of the KIBC, the terms of the statute or KIBC shall control. Words of-gender used in this agreement shall mean and include any other genaer, and singular shall mean and include the plural and the plural the singular, where applicable, and when the sense requires. 29. Condemnation. If the premises shall be taken or condemned for any public purpose to such an extent as to render the premises untenantable, this agreement shall, at the option of either party, cease and terminate as of the date when possession is taken. All proceeds from any taking or condemnation of the premises shall belong to and be paid to Landlord, and Tenant shall have no right to any portion of the amount that may be awarded or paid to Landlord as a result of such taking. Tenant shall be entitled to pursue any and all damages from the condemner personal to Tenant resulting from condemnation. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this Z96-- day of N7*1Vi2— ,2007. TENANT: BRECH N ENTERPRISES INC. By: ,....5c,v1,65 Its c-e. r\r• LANDLORD: THE KODIAK ISLAND BOROUGH Borough Manager, Rick Giff ATTEST: Borou rk, Nova Mj avier, CMC Pule. LEASE AND MATERIAL SALES AGREEMENT — Page 9 of 9 /do EXHIBIT A • LEASE AND MATERIAL SALES AGREEMENT EXHIBIT B (short term) 1. The premises are subject to the minimum requirements of AS 27.19 regarding reclamation plans. Prior to entering into any additional agreements regarding the premises, a more comprehensive reclamation plan must be prepared which will meet all other requirements as set by the Assembly. 2. BEI shall coordinate with all appropriate regulatory agencies regarding its extraction and reclamation activities to assure regulatory compliance and the potential impact of its activities on surrounding habitat and residential areas. BEI shall provide KIB with copies of all applications and all permits associated with this regulatory compliance requirement. These copies will be provided at the time the applications are submitted to the regulatory agencies and when the permits are received. 3. BEI shall use all prudent efforts to minimize the noise levels to meet ADEC regulatory requirements during its operations on the premises. 4. BEI shall comply will the following performance standards: a. Buffer Area. A buffer area two hundred (200) feet in width shall extend from all platted property lines or the banks of the Russian River to the edge of the gravel extraction area, except as shown on Exhibit A. b. Overburden. Overburden shall be stripped, stockpiled, placed, and leveled in the cleared portion of the designated buffer area to create a berm for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, the berm will be removed and spread evenly over cleared portions of the buffer area. c. Side Slopes. Two to one (2:1) side slopes or flatter, to water's edge, shall be accomplished prior to contract termination and shall begin at the excavation side of the designated buffer area. d. Minimum Extraction Depth. Gravel extraction shall be accomplished to a minimum depth of twenty-five (25) feet below grade. e. Brush Removal. All brush shall be removed from not less than two-thirds (2/3) of the premises before any gravel is extracted. Brush shall be burned or removed from the premises and may not be placed in the excavated area or the buffer area. f. Trees. No trees, stumps, or parts of trees shall be placed in the excavated area or buffer area. g. Access. Ingress and egress shall be limited to one point on Middle Bay Drive. BEI shall not change its point of ingress and egress to the premises without the prior written consent of the KIB Manager. h. Hours of Operation. BEI shall limit its hours of operation on the premises to 7:00 a.m. to 7:00 p.m. Monday through Saturday with no work on Sundays, Memorial Day, July 4th, Labor Day, Thanksgiving and Christmas. i. Haul Road. It is the intent of this agreement to keep loaded trucks off of Middle Bay Drive as much as possible. For purposes of this agreement, BEI shall operate its vehicles at no more than twenty-five (25) miles per hour on the following roads: A. Loaded trucks shall use Bells Flats Road and Sargent Creek Road while traveling between Chiniak Highway and the premises. Middle Bay Drive shall be used for Service District work, emergencies, and private deliveries only. B. Unloaded trucks may use Middle Bay Drive. C. Also included as a designated haul road is Salmonberry Drive fronting Block #, Tract A, Bells Flats Alaska Subdivision. Temporary closure, by reason of emergency, or for repair or improvement, shall not excuse performance by BEI or create liability for KIB. j. Dust Control. In periods of dry weather when the haul roads become dusty, BEI shall work with the Womens Bay Service Area to reduce the dust created by its vehicles by means of lignicite, calcium chloride, and/or water. June 26, 2007 — 7:30 p.m. Citizens Comments And Public Hearing Numbers: Toll Free Number: (800) 478 -5736 Local Number: 486 -3231 Mr. Jerome Selby Borough Mayor Term Expires 2007 Mr. Tom Abell Deputy Presiding Officer Assembly Member Term Expires 2008 Ms. Pat Branson Assembly Member Term Expires 2007 Mr. Jerrol Friend Assembly Member Term Expires 2009 Ms. Sue Jeffrey Assembly Member Term Expires 2008 Ms. Chris Lynch Assembly Member Term Expires 2009 Mr. Reed Oswalt Assembly Member Term Expires 2008 Ms. Barbara Williams Assembly Member Term Expires 2007 Mr. Rick Gifford Borough Manager Ms. Nova Javier, CMC Borough Clerk Special Meeting Assembly Chambers Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. 1. ROLL CALL 2. CITIZENS' COMMENTS - Limited to three minutes per speaker. 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. PUBLIC HEARING Resolution No. FY2007 -40 Authorizing the Approval of a Short-term Lease and Material Sales Agreement with Brechan Enterprises, Inc. for Tracts B1, B2, B3, and B4 -A, Bells Flats Alaska Subdivision. B. Contract No. FY2007 -50 Phase I of the Seismic Upgrades to the Kodiak Middle School. C. Mayoral Appointments to the Solid Waste Advisory Board. D. EXECUTIVE SESSION Borough Manager's Performance Evaluation. 4. ADJOURNMENT This meeting was called by the Assembly. Kodiak Island Borough Assembly Agenda June 26, 2007 Page 1 Womens Bay Comprehensive. Plan Update Prepared by: Kodiak Island Borough KIB Planning and Zoning Commission With: Bechtol Planning & Development ASCG Incorporated M. R. Stearns Planning + Design LLC December 2006 Acknowledgements KIB Mayor and Assembly Members Jerome Selby, Mayor Tom Abell, Deputy Mayor Michael Anderson Tuck Bonney, Deputy Mayor Pat Branson Cecil Ranney Nancy Wells Barbara Williams Robin Heinrichs Greg Razo Wayne Stevens KIB Planning and Zoning Commission Mel Stephens Reed E. Oswalt Sue Jeffries Dr. Gary A. Carver Jerrol Friend Casey Janz David King Dennis A. McMurry Reed, E. Oswalt Brent Watkins Cheryl Boehland Jake Ketscher Barbara Williams KIB Staff Gary Juenger Consultants Borough Mayor Office Department of Community Development Womens Bay Community Council Eileen R. Bechtol, AICP, BP&D Nicole McCullough, ASCG Inc. Michelle R. Steams, AICP, M. R. Stearns LLC. This publication was funded by the Alaska Coastal Management, Department of Natural Resources, pursuant to National Oceanic and Atmospheric Administration Award NO. NA 03NOS4190074. The views expressed herein are those of the author(s) and do not necessarily reflect the views of NOAA. Depannsat of gat Community and . Economk Development ALASKA COASTAL MANAGEMENT PROGRAM Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft December 2006 Table of Contents Acknowledgments.................................................. ............................... ........................il Listof Maps ....................................................................... .........................°..... ..:......iv Listof Tables .................................................................................. ............................... iv :...... ............................... iv Introduction 1 A. Project. History 1 B. General Location 2 BackgroundReport 5 A. Population ........................... ............................... 5 B. Cultural Environment 7 C. Natural Environment 7 D. Service Area .......................................................... .............................18 Acronyms Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 E. Public Facilities 18 F. Transportation Access Details 19 G. Natural Use Areas 19 H. State of Alaska Area Plan .......... ........... ...... ............... . ..... ...:20 I. Gravel Operations 22 J. Land Based Classification Standards 23 DevelopmentPattern ............................................... ............................... 30 Section 1 Community Preferences to Planning Issues 30 Section 2 Development Alternatives 31 Section 3 Preferred Development Pattern 33 Goals, Objectives, and Actions ................................ ... .............. 35 A. Land Use. ........ ........ ..... ............. .......... ..... ...... ..... ............••... ...... 35 B. Jack and Lee Lakes Natural Use Area 36 C. Public Health /Safety and Environment 36 Plan Implementation 37 A. Land Use .. ................... ............................... .... 37 B. Jack and Lee Lakes Natural Use Area ' 41 C. Public Health /Safety and Environment 43 Chapter 6 Recommended Land Use Map. ..... ..... ..... .................. ..... ..... 47 A. Land. Use Policies 47 Bibliography 50 Appendix Appendix Items A through 0 are published separately from the plan document. Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft December 2006 List of Maps Map 1 WBC Vicinity Map 3 Map 2 Womens Bay Core and Regional Planning Areas 4 Map 3 AKDOL Census Map 6 Map 4 WBC Geology _ 11 Map 5 WBC Wetlands 15 Map 6 WBC Anadromous Water Bodies 17 Map 7 State Area Plan - WBC Area 20 Map 8 State Area Plan — Sargent Creek.... ....... . ...... . ...... .. ...... ........ ...... . ...... ... ...... 21 Map 9 LBCS Activity 25 Map 10 LBCS Structures 27 Map 11 LBCS Vacant Properties 29 Map 12 Womens Bay Land Use Map 49 List of Tables Table 1. Womens Bay Community Population 5 Acronyms ADEC ADES ADFG AKDOL ASCG DCED DNR EPA FEMA FGDC GIS GPS KIB LBCS LWCG NAICS NFIP NPS /RTCA SIC SLUCM USF &WS WB WBC WBCP Alaska Department of Environmental Conservation Alaska Department of Emergency Services Alaska Department of Fish and Game Alaska Department of Labor ASCG Incorporated Department of Community and Economic Development Department of Natural Resources Environmental Protection, Agency Federal Emergency Management Agency Federal Geographic Data Committee Geographic Information System Global Positioning System Kodiak Island Borough Land Based Classification System Land and Water Conservation Grant North American Industrial Classification System National Flood Insurance Program National Park Service — Rivers, Trails, and Conservation Assistance Standard Industrial Classification Standard Land. Use Coding Manual United States Fish and Wildlife Service Womens Bay Womens Bay Community Womens Bay Comprehensive Plan Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft iv December 2006 Chapter 1. Introduction History The Womens Bay community, named for the Bay it overlooks, is located in the lower Russian and Sargent Creek valley on the northeast coast of Kodiak Island. Also known as Bells Flats, the area was extensively used during World War II by the military for national defense. The military placed infrastructure, particularly roads, in the area that still exists today. In the late 1960's the federal government transferred land to the State of Alaska. Some of this land, including the area presently occupied by the Womens Bay community, was subsequently,transferred to the KIB. The KIB in turn, instituted a land disposal program, the Municipal Land Entitlement Trust, and transfered parcels not needed for public purpose into private ownership. A memorandum from the KIB Resource Management/Assessing Department, dated April 30, 2003 outlining recent and past land disposal sales is in the Appendix of this plan. Although the Koniag people were known to be living along the coast in the general vicinity, as evidenced by midden sites at different locations in Womens Bay, none have been found inland in the planning area. However, the area was probably used during this time for hunting, fishing and berry and plant gathering on a seasonal basis. The Russian explorer Sarichev explored and named Womens Bay (which is a direct English translation of the Russian "Guba Babya") in the late 1700's. The lower Russian Creek valley, probably including portions of the planning area,, was occasionally used as a livestock pasture due to its relatively gentle topography. In. 1939, a visiting Alaska Game Commission Agent noted that a Mr. Bell (which Bells Flats is named for) lived at the head of English (Womens) Bay with his family and grazed a milk cow and two calves. A 1940's vintage map also notes a grazing lease belonging to the Nixon Dairy containing 997.5 acres below Lake Lee and Lake Phil., This lease probably extended from this point back toward Russian Creek, where the original Nixon Ranch House still stands near the end of Middle Bay Drive. The advent to World War II brought significant changes to all of Womens Bay, including the planning area. Infrastructure for thousands of military personnel, including barracks, support structures, roads and even piped water and sewer were installed. In the planning area, the extension of present day Sargent Creek Road was called either Sargents Creek .Road or Way according to 1940s vintage Navy maps. This route led to a pumphouse which collected water from Sargent Creek via a gallery and pumped drinking water through a 12 inch wood stave pipe to the water system located throughout Bells Flats. The foundations of Navy Seabee Quonset huts are also visible along the extension of Sargent Creek Road. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 1 December 2006 General Location The Core Planning Area includes the community of Womens Bay on the west coast of Kodiak Island, 8 miles south of the City of Kodiak. It lies at. approximately 57.693° North Latitude and 152.622° West Longitude and encompasses much of the southern % of Sec 29 and Sec 30, most of Sec 31, and the west margin of Sec 32, R 20 W, T 28 S, the SW % of the SW % Sec 36, R 21 W, T 28 S, the northeast 1/4 Sec 2 and the north % Sec 1, R 21 W, T 29 S.( Seward Meridian) Womens Bay is located in the Kodiak Recording District. The Core Planning Area for the WBC plan update' is shown on Map 2. Approved by the KIB Planning Commission at their October 15, 2003 meeting, this planning .area boundary encompasses approximately 2.8 .square miles (1792 acres). Within this core planning area approximately 1.2 square miles (783 acres) is private land in five subdivisions. Russian River Estates Russian Creek Subdivision Russian Hill Subdivision Sargent Cr. Subdivision Bells Flats Subdivision — 11 .acres — 238 acres — 19 acres — 10 acres — 505 acres The boundary of the Regional Planning Area is defined by a series of sharp ridges and peaks which compose the drainage divide for the Russian, Sargent, and Salonie Creek drainages. The greater Regional Planning Area (also shown on. Map 2) includes lands and waters of the surrounding watershed and encompasses approximately 53 square miles (34,000 acres).. The lands within the Regional Planning Area are owned by the Federal government (820 acres), the State of Alaska (17,177 acres), the KIB (6,693 acres), Koniag, Ouzinkie and Leisnoi native corporations (8,165 acres), and other private landowners in the Core Planning Area (783 acres). Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 2 December 2006 Map 1. WBC Vicinity Map Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 3 December 2006 Womens Bay Comprehensive Plan Update -4- December 2006 Womens Bay KIB Natural Use Zoning District Regional Boundary Native = Land Ownership kod_contour — roads Native State of Alaska KIB Federal Gov't MAP2 Womens Bay Core 1` and Regional t Planning Area s Map prepared for the Womens Bay Comprehensive Plan Update, Jan. 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets. Alaska D.O.T. Sept. 2002 Contour information: USGS Digital Elevation Model Kodiak Alaska 50 foot Interval, Scale 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Ownership information was taken from the Kodiak Island Borough Public Access Atlas Published March 1997 by the State of Alaska Dpartment of Natural Resources, Division of Land. Kodiak Island Borough Community Development Department 0 2,500 5,000 10,000 I t 1 l Feet Chapter 2. Background Report A. Population The Womens Bay Community population determined by the U.S. Census Bureau (Census) and the Alaska Department of Labor (AKDOL) is based on an area encompassing 43.7 square miles of land. The population figures are estimated by the AKDOL for the Kodiak area using results from the Census and state certified revenue sharing figures. Table 1. Womens Bay Community Population 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 620* 843 _ 843. 674 746 749 672 662 674 675 2000 2001. 2002 2003 2004 2005 690* , 743** 750** 667** 687** 703** *Actual Census figures **AKDOL Estimates. Map 7 depicts the Womens Bay Census Designated .Place (CDP) map from the Alaska Department of Labor showing the area used by the U.S. Census Bureau and the Department of Labor when, calculating population figures for the Womens Bay area. The majority of this population resides within the subdivisions of the Womens Bay core planning area. The 2000 census population figure for Womens Bay CDP has increased by almost 9% since 1990. However, the population of the Womens Bay Planning Area appear to vary from year to year with a range from 660 — 750 in the past ten years. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 5 December 2006 Census 2000 CDPs Womens Bay CDP - Kodiak Island Borough - Neighborhood Roads Driveway, Private Road Airport/Field NonVisible Pt -to -Pt CDP , Military :e'nsus M omens: Prepared as a special request map June 2004 Some: 16 Censor 20007IGEPIIne Created In ArcGIS 8 using A,rAlep Alasla Alters Proleeem Alaska Department of Labor & Woridorce Devebpment Census & Geographic Irdormatbn Network Page 6 B. Cultural Environment Womens Bay is an unincorporated area located within the Kodiak Island Borough. Approximately twelve percent of the population is Alaska Native or part Native. Due to its close proximity to the Kodiak Coast Guard Base, many residents are Coast Guard families: A community association, the Womens Bay Community Council, advocates for local concerns. Community roads are maintained by a local service district and the community includes a volunteer fire department with a firehouse and fire suppression equipment. The firehouse also serves as a community meeting center, a voting site, and emergency shelter. During the 2000 U.S. Census, there were 269 total housing units, and 18 were vacant. Four of these vacant housing units are used only seasonally. Four hundred and twenty five residents were employed. The unemployment rate at that time was 5.43%, although 20.56% of all adults were not in the work force. The median household income was $72,083, per capita income was $27,746, and 0% of residents were living below the poverty level. C. Natural Environment Topography The topography of the Womens Bay Regional Planning Area is generally mountainous and rugged. The boundary of the Regional Planning Area is defined by a series of sharp ridges and peaks which compose the drainage divide for the Russian, Sargent, and Salonie Creek drainages. The relief of the regional area is 3366 feet .with the highest point the crest of Center Mountain at the southwest end of the area and the lowest point at sea level along the northeast side of the area. The Regional Planning Area contains three northwest trending valleys occupied by Sargent, Russian, and Salonie Creeks. The upper portions of these valleys are steep sided and narrow, but the lower reaches of the valleys are "U" shaped with broad flat floors and low relief rolling topography. The Core Planning Area is located in the lower part of the Sargent and Russian Creek valleys. The Regional Womens Bay planning area contains various lakes throughout the surrounding hills, which are situated at various altitudes.. Most notable is the Jack and Lee Lakes area, five lakes located between the Russian and Sargent Creek valleys on an upland bench of rolling hills above the northwest margin of the Core Womens Bay Planning Area. These lakes (Jack - 4.7 acres, Lee - 14.3 acres, Aurel - 15.2 acres, Caroline - 6.6 acres, and Cicely - 5.6 acres) are stocked by ADFG with Rainbow Trout and encompassed in the Jack and Lee Lakes Natural Use Area. Numerous small streams are also present in the regional area. The existing developed areas, within the Bells Flats, Sargent Creek, Russian Creek, and Russian River subdivisions are generally between 15 to 20 feet above sea level to_100 feet in elevation. The Bells Flats and Russian Creek and Russian River subdivisions are bisected by the Russian River and contain steeply rising hills on both sides of the valley floor. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 7 December 2006 Shoreline Characteristics The shoreline characteristics of the Womens Bay area can be described as gently sloping and containing sand, pebbles, and gravel and rock materials. The Frye Point area becomes an island at high tide but is connected to the mainland by a natural gravel and sand bar at periods of low tide. The area where Panamaroff Creek enters Womens Bay is a tidal wetland containing eelgrass and other shoreline vegetation. The other areas of the bay are gently sloping and at low tides become completely drained. Geology The Womens Bay planning area is underlain by highly deformed Late Cretaceous (100 to 65 million years old) accreted deep marine sedimentary and meta- sedimentary rocks (Kodiak Formation), principally turbidities. Dominant lithologies are dark gray to black shale, slate and phyllite with lesser amounts of interbedded siltstone and greywhake sandstone. These rocks are thin to medium bedded, isoclinally folded, and locally sheared and fractured. Bedding is commonly nearly vertical and over most of the region strikes to the northeast. Because of the sheared and fractured nature of these rocks they are commonly relatively unstable on steep slopes, especially where the slope is parallel to the bedding, and are prone to bedding surface rockslides and block falls. The fine grain nature of the rocks renders them highly impermeable, resulting in low yield of water wells and poor subsurface drainage. The accreted rocks are intruded by dikes and small plutons of biotite granite and biotite quartz diorite of early Tertiary age (-50-55 million years old). These intrusive bodies are rare in the eastern part of the planning area but become more abundant to the west The entire planning area was extensively glaciated during the late Pleistocene. Large outlet valley glaciers originating in a regional icecap centered over the interior of Kodiak Island extended down the Russian River and Sargent and Salonie Creeks eroding deep steep-sided U-shaped glacial valleys that dominate the topography of the regional planning area. At the glacial maximum (— 20 thousand years ago) these outlet glaciers extended far offshore, but as the ice receded it left a discontinuous blanket of clay rich till (ground moraine), and on the valley walls a series of small recessional moraines. Because of its high clay content the till has very low permeability and thus is in general poorly drained. As the glaciers receded into the island's interior cobble and boulder outwash was deposited along the lower margins and on the floors of the lower reaches of the Sargent Creek, Russian River, and Salonie Creek valleys. Following deglaciation additional course fluvial cobbles and gravels were deposited over the outwash. In the lower parts of the Russian, Sargent, and Salonie Creek valleys these glacio-fluvial and fluvial gravels are from 10 to more than 100 feet thick. They constitute a significant economic gravel resource. These glaciofluvial and fluvial valley fills are highly permeable and contain the major ground water aquifer in the planning area. Womens Bay Comprehensive Plan Update. P&Z Commission Approved Draft 8 December 2006 Following deglaciation about 14 thousand years ago, the regional planning area has been repeatedly blanketed by thin layers of air fall volcanic ash from the Alaska Peninsula volcanoes. The thickest and most recent of these is the 1912 Katami ash, which locally is as much as several feet thick. These volcanic ashes are generally very fine grained and clay rich. Except in the valley bottoms where thick fluvial sediments are present, the volcanic ashes constitute the principal component of the local soils. The ash -rich soils range from less than a foot thick on steeper slopes to as much as 6 to 8 feet thick on flat terrain. The ash -rich soils are moderately permeable and in most places where they overlay impermeable rock or till they form perched aquifers which are commonly poorly drained. Except in the valley bottoms these sediments provide the only site for leach fields for septic systems. These perched aquifers contribute to the high incidence of failed septic systems in the planning area. When disturbed, the ash - rich soils are highly erodable. Thin sandy and silty marine and beach sediments and fine- grained organic rich marsh sediments are present along the margins of Womens Bay. Low -lying sand and gravel delta sediments occur at the mouths of the Russian River, extending approximately'/ mile upstream, Sargent Creek, extending about ' /4 mile upstream and Salonie Creek. These sediments are highly erodable, compressible, and have low bearing capacity. Geologic hazards in the planning area include a very high seismic potential common to the northeastern. Kodiak region. No active faults . have been verified in the regional planning area but several potential active faults have been identified. One of these extends up the Sargent Creek and upper Russian River valleys from Old Womens Mountain and another traverses the western part of the planning area from Mount Erskine to Center Mountain. A seismically induced liquefaction potential is present in . fine- grained near -shore sediment marginal to the bay. A high tsunami inundation and moderate subsidence potential exists in low -lying areas along the margin of Womens Bay and in the lower -most parts of the Russian River, Sargent and Salonie Creek valleys. Significant flood hazards are present in the Russian, Sargent, and Salonie Creek valley bottoms and locally along some reaches of tributary streams. Locally severe erosion potential associated with the highly erodible ash -rich soils is present on slopes throughout the regional planning area, especially where the vegetation covering the soils is disturbed. In places where runoff from soil erosion or excavation sites reached . streams, it constitutes a surface water siltation hazard. Bank erosion hazards are high along the lower reaches of the Russian River and some sections of the lower reaches of Sargent and Salonie Creeks. Snow avalanches are common on steep slopes at higher elevations. Landslide potential is moderate to high on steeper slopes and where large over - steepened cut slopes are excavated. The shallow perched aquifers locally represent a significant potential for shallow ground water contamination; especially where septic systems introduce sewage into thin poorly drained soils situated on impermeable till or rock. Except for tsunami hazards, no geologic hazard mapping has been done in the planning area. The preparation of geologic hazard maps for the core part of the planning area is greatly needed. Womens Bay Comprehensive Plan Update. P &Z Commission Approved Draft 9 December 2006 Map 4 depicts the geology of the Womens Bay Community. The following describes the different types of geological formations shown on the map. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 10 December 2006 Womens Bay Comprehensive Plan Update December 2006 Womens Bay Geology roads Regional Boundary Hf - Late Holocene fluvial gravel Hm - Late Holocene marsh sediments Hal - Holocene alluvium Qf - Late Quatemary glaciofluvial and fluvial gravel Qg - Till, glacial scoured bedrock Kk - Kodiak formation mi Fault lines MAP 4 Womens Bay Geology s. Map prepared for the Womens Bay Comprehensive Plan Update, Jan. 2005. G. A. Carver, 2004, (personal communication) and Moore, G.-W., 1967, Preliminary Geologic Map of Kodiak Island and Vicinity, Alaska. U. S. Geological Survey Open File Report, 271, scale 1:250,000. Contour informatidn: USGS Digital Elevation Model Kodiak, Alaska 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27; State Plane 5 Kodiak Island Borough Community Development Department 0 2,5005,000 10,000 I 1 1 I Feet Soils Although a report of a formal soil survey of northeastern Kodiak Island was published by the United States Soil Conservation Service in 1960, the survey did not include most of the Womens Bay planning area. However, soils in the planning area are in general similar to those in adjacent parts of the island with similar topography, geology, and climate. In general, soils in the planning area can be divided into two groups: 1) upland soils in the mountainous portions of the area, and 2) soils at low elevations on flat or gently sloping ground in the lower parts of Sargent, Russian, and Salonie Creek valleys The upland soils are commonly thin, ranging from a few inches to a few feet thick. These soils have silt loam and sandy silt loam textures. On steep slopes the soils are mixed and commonly contain abundant pebbles and cobbles derived from the underlying rock. On gentle sloping or flat ground the upland soil is commonly stratified with sandy and silty volcanic ash layers up to several inches thick inter-layered with the silt loam. The upland soils are moderate to well drained and highly erosive where the vegetation cover is disturbed. The lowland soils in the planning area are predominately silt loams that range between two and five feet thick. These soils also contain layers of volcanic ash up to several inches thick. The soils are strongly acidic (Ph 4.7 to 5.4) and have low to moderate natural nutrient values. The lowland soils are poorly to moderately drained and where the vegetation cover is disturbed they are readily eroded. Climate Kodiak Island is located in the Maritime Climatic Zone, which is characterized as having cool summers and mild winters. The Womens Bay area receives an average annual precipitation of fifty inches and this includes seventy-five inches of snow. The average wind speed is from the Northwest at 8.7 knots per hour. Kodiak has an annual rate of 8860 degree heating days and 1575 growing degree-days with 148 average annual frost free days. The prevailing wind for the Womens Bay area is West/Northwest, which brings moist air from the ocean, and is especially prevalent during the fall,and spring seasons and occasionally during the summer months. In the winter, Northwesterly winds bring cold-dry air into this Kodiak area while Southeasterly and Southwesterly wind bring warmer, moister air to the area. Westerly winds, occurring predominantly in the summer months, bring clear weather. The wind velocity for Kodiak has been recorded on occasion to be as high as eighty miles per hour or more. Vegetation The types of vegetation found in the Womens Bay area range from eelgrass located in the wetland areas along the shoreline to hardier grasses, which dominate the dryer, lowland areas and surrounding hillsides: Cottonwood trees and Alders are also prevalent in the lowland areas, particularly along the drainage systems of the area. A Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 12 December 2006 few Sitka Spruce are also found in the area but,these trees are more often found on the Northeastern shores of Kodiak Island. The predominant types of vegetation found in the developed areas of Womens Bay are deciduous Cottonwood, Alder and Black Birch trees along with low-lying shrubs. Wetlands Descriptions Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered in shallow water. For purposes of this classification, wetlands must have one or more of the following attributes: (1) at least periodically, the land supports, predominantly hydrophytes, (2) the substrate is predominantly undrained hydric soil, and (3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year. Map 5 depicts the types of wetlands and uplands found in the Womens Bay Community. The wetlands information was taken from the National Wetlands Survey complied by the United States Fish & Wildlife (Updated 2003). The following is a description of each of the wetland types found on the map, as well as definitiOns provided by the National Wetlands Survey. Estuarine System: Consists of deepwater tidal habitats and adjacent tidal wetlands that are usually semi enclosed by land but have open, partly obstructed, or sporadic access to'the open ocean, and in which ocean water is at least occasionally diluted by freshwater runoff from the land. Subsystems: Subtidal -The substrate is continuously submerged. Intertidal -The substrate is exposed and flooded by tides. Classes: Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Reef, Streambed, Rocky Shore, Unconsolidated Shore, Emergent, Wetland, Scrub-Shrub Wetland, Forested Wetland. Riverine System: Includes all wetlands and deepwater habitats contained within a channel, with two exceptions: (1) wetlands dominated by trees, shrubs, persistent emergents, emergent mosses, or lichens, and (2) habitats with water containing ocean derived salts in excess of 0.5% Subsystems: Tidal - the gradient is low and water velocity fluctuates under tidal influence. Oxygen deficits may sometimes occur and the floodplain is typically well developed. Lower Perennial - The gradient is low and water velocity is slow. There is no tidal influence, and some water flow throughout the year. The substrate consists mainly of sand and mud, oxygen deficits may sometimes occur, and the floodplain is well developed. Upper Perennial - the gradient is high and water velocity is fast. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 13 December 2006 There is no tidal influence and some water flows throughout the year. The substrate consists of rock, cobbles, or gravel With occasional patches of sand. Oxygen concentration is normally near saturation, and there is very little floodplain development. Intermittent -In this subsystem, the channel contains flowing water for only part of the year. When the water is not flowing, it may remain in isolated pools or surface water may be absent. Classes: Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Streambed, Rocky Shore, Unconsolidated Shore, and Emergent Wetland (non persistent). Palustrine System: Includes all nontidal wetlands dominated by trees, shrubs, persistent emergents, emergent mosses or lichens, and all such wetlands that occur in tidal areas where salinity due to ocean-derived slats is below 0.5%. It also includes wetlands lacking such vegetation but with the following characteristics: (I) area less than 20 acres; (2) active wave formed or bedrock shorelines features lacking; (3) water depth in the deepest part of basin less than 6.6 ft at low water; and (4) salinity due to ocean derived salts less than 0.5%. Subsystems: None. Classes: Rock Bottom, Unconsolidated Bottom, Aquatic Bed, Unconsolidated Shore, Moss-Lichen Wetland, Emergent Wetland, Scrub-Shrub Wetland, and Forested Wetland. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 14 December 2006 Womens Bay Comprehensive Plan Update -15- December 2006 c•;11i, •:%"t .4444, Womens Bay Wetlands kod_contour ammo Road • ESTUARINE / INTERTIDAL PALUSTRINE / PERSISTENT EMERGENT PALUSTRINE/ FORESTED PALUSTRINE / SCRUB SHRUB PALUSTRINE / UNCONSOLIDATED RIVERINE / TIDAL RIVERINE / LOWER PERENNIAL RIVERINE / UPPER PERENNIAL UPLANDS s Map prepared for the Womens Bay 1 ) Comprehensive Plan Update, Jan. 200L. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets. Alaska D.O.T. Sept. 2002 Wetlands information is taken from the National Wetlands Inventory from US Fish & Wildlife. Last updated 2003 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields In the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to-date. • Kodiak Island Borough Community Development Department 0 1,000 2,000 4,000 Feet MAP 5 Womens Bay Wetlands CZ: Fish and Wildlife Fish and wildlife are abundant in the Womens Bay area, as is the case throughout the entire Kodiak Archipelago. The types of fish found in the salt water areas of Womens Bay are numerous and include the following species: Pollock, Cod (Pacific and Black), Ocean Perch, Halibut, all types of Salmon, Shrimp, Flounder and Crab (King, Tanner and Dungeness). Wildlife species found in this area are quite numerous and include Sitka Blacktail Deer, Ptarmigan, fox, weasel, snowshoe hare, land otter, vole, feral rabbit, red squirrel, waterfowl of different species, American Bald Eagles, numerous Seagulls and other birds. Kodiak Brown Bear and Mountain Goat also frequent this area. Womens Bay has also been known to be inhabited by Sea Otters, Sea Lions and an occasional Harbor Seal. The freshwater fish found in the lakes and rivers in the area include Dolly Varden and Rainbow Trout. During salmon spawning season several species of salmon are known to inhabit the numerous streams and rivers in this area, regardless of how small the water source appears. Sport fishing and game hunting have always been major activities in this area. This is largely due to the abundant waterways available to the fish and because the area's development has not reached a magnitude which would force the land mammals out of the area. The 1982 WBC Plan documented the existence of beaver lodges in the Lake Orbin area at one time. Map 6 depicts the Anadromous Water Bodies within the Womens Bay Regional Planning Area. The following is an abstract from the Alaska Department of Fish and Game (ADF &G) describing the source of the data contained in ADF &G's database. enve 3IS coverage�f Fishes`(referred to as the= Catalog' eanng nor Migration of Anatlromous Fps erence and to aid userss m generating e depicts c:-:0,:,,,a,,,44,,nadromous fish er extent of es usage) ie coverage isrent as ofxthe 19 yawning, Rearing Migration Spawning, Reang or Migrat�on'of ie Catalog of Waters ive,F;ebruary6, 1:999. 21 a S.V7 ','s .? c ' Mt., ` 6 ss'S Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 16 December 2006 Womens Bay Comprehensive Plan Update -17- December 2006 Womens Bay Anadromous Water Bodies Anadromous Water Bodies • Specifies Spawning Locat',77 - roads kod_contour Species Found within Womens Bay Boundary. COHO - Silver Salmon CHUM - Dog Salmon PINK - Humpy Dolly Varden s Map prepared for the Womens Bay Comprehensive Plan Update, Jan. 2005. Anadromous information was provided by the Alaska Department of Fish 8 Game ' Published 1998. ( Alaska Highway System, GPSCenterllne d ' National Highway System, Highways, Roads, Street, Alaska D.O.T. Sept. 2002 Contour Information: USGS Digital Elevation Model Kodiak, Alaska 50 foot intervals, Scale Is 1: 63,360 Created In ArcGIS 9, NAD 27, State Plane 5 Parcel Information Is taken from selected fields In the current computerized property records In the Assessing Dept. ThLs data has not been reconciled with data contained In manual files which may be more up-to-date. Kodiak Island Borough Community Development Department 0 750 1,500 • 3,000 I I 1 I Feet MAP 6 Womens Bay Anadromous Water Bodies D. Service Area The Bells Flats-Russian Creek Service Area was established in 1975 and encompasses the following area: Tract A and Tract B of Bells Flats Alaska Subdivision According to plat filed in Kodiak Recorder's Office on June 12, 1969. Plat No.69-4. Serial No.69-684. Bells Flats Alaska Subdivision According to Plat filed in Kodiak Recorder's Office on June 12, 1969, Plat No. 69-4, Serial No. 69-684. Russian Creek Alaska Subdivision According to Plat filed in Kodiak Recorder's Office on February 24, 1969, Plat No. 69-1, Serial 69-201. Alaska State Land Survey 72-11, According to Plat Approved August 18, 1972, Plat No. 72-10, filed in Kodiak Recorder's Office on September 29, 1972. A parcel of land located adjacent to the Bells Flats Alaska Subdivision, Plat 69- 04, filed in the Kodiak Recording Office containing 18.14 acres more or less by KIB Ord. 93-50. • This service area in Womens Bay is referred to as Womens Bay Service Area and includes both the fire service and road service areas. The service area is managed by an elected service area board of members per KIBC 4.50. The latest Womens Bay Water and Wastewater Facilities Plan was written in 1991. Chapter 5 of the plan regarding future water and wastewater needs and proposals has been added to the Appendix of this document for information purposes. E. • Public Facilities Most of the homes in the Womens Bay core planning area use individual wells and septic tanks, and are fully plumbed. Electricity is provided by Kodiak Electric Association. There are no state operated schools located in the community. School-aged children within the community attend the Peterson Elementary School, KIB Middle School and KIB High School. At one time there was an area within the Womens Bay community reserved for a school. Local hospitals or health clinics include Kodiak Providence Hospital. Auxiliary health care is provided by Kodiak hospitals. Panamaroff Creek Park is a small neighborhood park with miscellaneous playground equipment and a bus shelter for local children. The neighborhood maintains flowers at the facility. Sargent Creek Park is the Borough land, zoned public use, Womens Bay Comprehensive Plan Update. P&Z Commission Approved Draft 18 December 2006 adjacent to Womens Bay Firehouse. No developed facilities or plans for park development are identified at this time. The Womens Bay Firehouse (located on Sargent Creek Road) is used for volunteer training, community meetings and storage of emergency-related equipment. The facility is also considered a primary location for community-type events such as Womens Bay Community Council (WBCC) meetings. Additionally, the Womens Bay Firehouse serves as local emergency services' responder and emergency shelter for the Womens Bay community. The KIB maintains approximately 4-5 solid waste trash dumpsters at two sites in the community, one along South Sargent Creek Road and the second on Russian Creek road at the entrance to the Womens Bay subdivisions. During 2004, and with the support of residents of Womens Bay, the KIB Department of Engineering and Facilities investigated a grant to provide a transfer station and recycling center to be located in a central location in the Womens Bay community. To date, the project has not been funded. F. Transportation Access Details Womens Bay, accessible by West Rezanof Drive from the northeast and the Chiniak Highway from the east; is 8 miles from Kodiak. Commercial airline services, ferry access, and boat harbors are therefore nearby in Kodiak. Other feasible escape routes in case of an earthquake or tsunami should also be researched and identified. G. Natural Use Areas A Natural Use Area (NUA) zoning district, covering both Borough and State land, was established by KIB Ordinance No. 89-05-0 in 1989. In 1997; an effort was undertaken to plan for existing and future land uses on Borough-owned land in the Womens Bay Natural Use Area (WBNUA). A first draft of a planning document titled Womens Bay Natural Use Area Plan (1997) was prepared. The stated objective of the draft plan was "to establish uses that were consistent with the intent of the zoning district, which is to protect trails on public land, protect waterways and their banks and discourage development by prohibiting the construction of most structures in this zoning district". (Womens Bay Natural Use Area Plan, 1997) The draft plan was never finalized or formally adopted by the KIB. The State of Alaska-owned property within the greater Regional Planning Area that is zoned Natural Use is approximately 4,336 acres. The KIB-owned property within the greater Regional Planning Area boundary that is zoned Natural Use is approximately 726 acres (1.1 Square Miles). Together, the Womens Bay Natural Use Area (hereafter the Jack and Lee Lakes Natural Use Area) totals more than 5000 acres of property that was zoned Natural Use in 1989. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 19 December 2006 H. State of Alaska Area Plan The State of Alaska Department of Natural Resources prepared the Kodiak Area Plan for State Lands Public Review Draft (November2003) that was adopted on December 20, 2004 by the Commissioner of the Department of. Natural Resources (DNR). The plan establishes land use designations, management intent and guidelines for approximately 3.9 million acres of state . land within the KIB. The adopted plan consists of the Public Review Draft (November 2003) and the Approved Revisions to the draft found at: http:f /www.dnr. state. ak. us /mlw /planning /areaplans /kodiak. In adopting the plan, the Commissioner has also approved Land Classification Order SC -04 -001. The date of issuance of these decisions was January 3, 2005. The state lands included in the Kodiak Area Plan in the Womens Bay Regional Area are depicted on the following maps as areas K -36,` K-37, K -38, K -39 and K -72. The adopted designations for each of the areas are described below. Map 7. State Area Plan - WBC Area State Area Plan Designations K -36 Elbow Mountain /Kizhuyak Bay Drainage: This area has been designated as Dispersed Recreation in its central and eastern parts, essentially coinciding with the area affected by the Natural Use zoning of the KIB. This zoning district limits most forms of development. The remainder of the parcel is designated as General Use, and managed for multiple uses. K -37 Salonie Creek: This area has been designated as Dispersed Recreation in its northern and western parts, essentially coinciding with the area affected by the Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 20 December 2006 Natural Use zoning of the KIB. This zoning district limits most forms of development. The remainder of the parcel is designated as General Use, and managed for multiple uses. K -38 Raymond Peak: This area immediately adjacent to the Kodiak Highway is designated Settlement and may be appropriate for disposal /development during the planning period, although immediate use of the parcel does not seem likely given other available land closer to the City of Kodiak. The remainder of the parcel is designated as General Use. Development in this area is not likely given its steep topography. K -39 Mayflower Creek: This area immediately adjacent to the Chiniak'Highway is designated Settlement (west of highway) and Dispersed Recreation (east of highway) and may be appropriate for disposal /development during the planning period, although immediate use of the parcel does not seem likely given other available land closer to the City of Kodiak. Disposals or development authorizations should protect the two anadrornous streams. Map 8. State Area Plan - Sargent Creek Note: The State of Alask: submerged lands front m three miles scat and from Tideland: and submerged 1 parcel or a Tideland Resou designated Go, K -72 Sargent Creek: If this state selected parcel is conveyed from the federal government, the state intends to manage it for public recreation purposes (Designation is Dispersed Recreation). Development authorizations are to be limited to those required for public safety purposes or for recreational management. Parcel is proposed to be retained in public ownership. Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 21 December 2006 • 1. Gravel Operations Gravel mining operations in Bells Flats started in 1965. In a memorandum from Mike Brechan, of Brechan Enterprises, Inc. to the KB Assembly, dated May 5, 1978, Mr. Brechan stated the following: "Our sand and gravel operations began on Upper Sargent Creek in 1965. We had made application on the tract we presently occupy on parcel P-I to the Bureau of Land Management in 1966 which evolved to the (KIB) ordinance allowing us to lease that area from the Borough for the purpose of gravel production and our facilities for the hot plant. At the time of the inspection of the lease, the Borough recognized the need to supply a source of raw material for development in this community and it was my understanding that the lease fees and gravel charges were basically set up to cover the Borough's administrative cost for handling the leases, although the Borough recognized that gravel in its native form had some value. The original value placed on this material was 25 cents per cubic yard". Brechan Enterprises, Inc. currently operates an asphalt and gravel mining operation at Bells Flats, under permits from the Kodiak Island Borough. The asphalt operation is located on a parcel owned by Brechan Enterprises. Four other parcel tracts, B-1, B-2, B-3 and B-4 totaling approximately 75 acres, are currently under lease from the KIB, and expire in 2007. During 2004, Brechan Enterprises, Inc. had Northern Economics Inc. prepare an economic impact study of their operation in the Womens Bay. Copies of the study, Brechan Enterprises: Moving Cost Estimates, Economic Contribution to Kodiak, 2004 are available from the Brechan Enterprises' website at www.brechanenterprises.com. Since the initiation of gravel mining and processing on the B tracts in the Core Planning Area in 1965 Borough lands adjacent to the B tracts have been transferred through the land disposal process to private ownership and zoned residential (RR1). Development of this land for residential purposes has generated land use conflicts. In May 2006 the Assembly appointed a Gravel Task Force to investigate and report on [1] existing gravel sites, and [2] potential future gravel sites, and [3] estimated community need for gravel in future years, and [4] recommend policies to the Planning and Zoning Commission and the Assembly for the orderly development and long, term availability of gravel and earth materials resources. The Gravel Task Force is continuing with this work. A semi-annual report summarizing the findings of the Task Force is included in the Appendix. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft • 22 December 2006 J. Land Based Classification Standards Land -Based Classification Standards (LBCS) provide a consistent model for classifying land uses based on their characteristics. The LBCS approach for the WBC Plan maps has been utilized to achieve the following:. a. Collecting current land -use data for the Womens Bay planning . area. b. Applying consistent land use classifications so that the products and data may be shared between multiple users. c. Rendering land use information for visual representation and analysis through the use of standard color classifications. d. Documenting land -use data for future updating and tracking of land use changes. e. Organizing land use data so that vacant parcels can be identified and analyzed for their potential for development based upon current zoning classifications. The LBCS standards are based on a multi - dimensional land -use model. For local planning purposes, LBCS calls for classifying land uses in the following dimensions: activities, structure type, and site development character. LBCS Activity Activity refers to the actual use of land based on its observable characteristics. It describes what actually takes place in physical or observable terms (e.g. farming, shopping, manufacturing, vehicular movement, etc.). An industrial activity, for example, refers only to the physical activity on the premises, which could apply equally to.a manufacturing facility or industrial facility. Similarly, residential uses in single- family dwellings, multi - family structures, manufactured structures, or any other type of building, would all be classified as residential activity. LBCS Activity - Activity Definitions: Residential: Includes activities that occur in all types of residential uses, structures, ownership characteristics, or the character of the development. Shopping /Business: This category captures all uses that are business related. It is a catch -all category for all retail, office, commercial, and industrial activities when the subcategories are either too specific or otherwise unknown (as in comprehensive plan designations). Industrial /Manufacturing/Waste Related: All manufacturing, assembly, warehouse, and waste management activities. Institutional /Social: This category is for all institutional activities. This broad Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 23 December 2006 category may also be used for land-use designations in comprehensive and general plans. Leisure: This is a catch-all category for classifying all forms of leisure activities. It includes the customary active and passive kinds of leisure activities although such distinctions are difficult to define. Natural Resources: This category relates to natural resources related activities. Unclassifiable: This category is used as a temporary placeholder for activities that cannot be grouped anywhere until the classification scheme is updated. Womens Bay Comprehensive Plan Update. P&Z Commission ApprovedDraft 24 December 2006 Womens Bay Comprehensive Plan Update December 2006 Womens Bay LBCS Activity El Residential Shopping,Business • Industrial/Manuf./Waste-related • Institutional/Social 0 Leisure Shooting 0 Natural Resources 0 Unclassifiable Activity — stream — kodcontour — roads MAP 9 E Womens Bay LBCS Activity Map prepared for the Womens Bay Comprehensive Plan Update, Jan. 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska 50 foot intervals, Scale is 1:63,360 Created In ArcGIS 9, NAD 27, State Plane 5 Parcel Information Is taken from selected fields In the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to-date. Kodiak Island Borough Community Development Department. 0 1,000 2,000 4,000 1 Feet LBCS Structures Structure refers to the type of structure or building on the land. Land use terms embody a structural or building characteristic, which suggests the utility of the space (in a building) or land (when there is no building). Land use terms such as single-family house, office building, warehouse, firehouse, or highway also describe structural characteristics. LBCS Structures — Structure Definitions Residential: Includes single family, duplexes, manufactured housing, and multi- family and eight-unit dwellings. Commercial: Structures that are used primarily for commercial, warehouse or storage or warehousing. Fire and Rescue Station: The existing WBC Fire and Rescue Station. Utility: Includes parcels with established use but no existing structures. Accessory Structures: This category groups structures that are used as sheds, farm buildings or agricultural facilities, livestock facilities and stables and equine facilities. Vacant Property: Designated with no structure. Unclassifiable: Includes all structures that cannot be included elsewhere. This category is intended as a temporary status until appropriate structure classification can be established. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 26 December 2006 Womens Bay Comprehensive Plan Update -26- December 2006 Womens Bay LBCS Structure F-1 Single Family n Duplex n Manufactured Housing Multi family n Eight Units ® Commercial ® Warehouse /Storage FE Warehouse ® Other Community Structure Fire & Rescue Station Utility /nonbuilding im Sheds /farm bldg /agric fac. Livestock Facility Stable /Equine fac. �1 No Structure kod_contour — stream — roads 7,-;■: , MAP 10 omens Bay LB CS Structure Map prepared for the Womens Bay Comprehensive Plan Update, Sept. 2004. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska • 50 foot intervals, Scale Is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records In the Assessing Dept. This data has not been reconciled with data contained In manual files which may be more up -to -date. Kodiak Island Borough Community Development Department. 0 1,000 2,000 4,000 I I I I I. Feet LBCS Activity and Structures — Vacant Properties. Site development character refers to the overall physical development character of the land. It describes "what is on the land" in general physical terms. For most land uses, it is simply expressed in terms of whether the site is developed or not. LBCS Vacant Properties Map 11 LBCS Vacant Properties, represents a combination of Womens Bay core area parcels currently identified through the KIB Assessor's database as vacant, and those parcels with either an accessory building or gear storage shed located on them (minor structural development), but no primary existing residential development. These parcels are considered to represent the total number of parcels remaining in the core planning area that are available for future development and fall into two land use types: Rural Residential and Business. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 28 December 2006 Womens Bay LBCS Activity & Structure Womens Bay Comprehensive Plan Update , -28- kod_contour stream roads Vacant Parcels MAP 11 Womens Bay LBCS Vacant Properties Map prepared for the Womens Bay Comprehensive Plan Update, Jan. 2005. Alasical-lighway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour informallon:USGS Digital Elevation Model Kodiak, Alaska 50 foot Intervals, Scale is 1:63,360 Created In ArcGIS 9, NAD 27, State Plane 5 Parcel Information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained In manual files which may be more up-to-date. Kodiak Island Borough Community Development Department, 0 1,000 2,000 4,000 1 I Feet CHAPTER 3. DEVELOPMENT PATTERN Section L Community Preferences to Planning Issues The Kodiak Island Borough held an Open House on May 10, 2004, at Peterson Elementary School from 6 p.m. to 9 p.m. Approximately 50 people attended the Open House. The results for each alternative were computed by calculating the percentage of responses for each preference from Do Not Support through No Opinion. If a question was left blank, it was scored under the No Opinion column. (Complete survey is available in the appendix) 1. Land Use Issues Lands in the immediate WB community area are currently zoned industrial, business, rural residential (RR1), public use, conservation and natural use. 2. Natural Use Area A Natural Use Area ordinance was adopted in 1989 and portions of both Borough and State land in the Womens Bay Regional Planning Area were zoned Natural Use in 1989. An initial plan for the area was drafted in 1997, the Womens Bay Natural Use Area Plan, but it was never finalized, reviewed or adopted by the Borough Planning & Zoning Commission and Assembly. 3. Incorporation of the Womens Bay Community as a second-class city. The 1982 Womens Bay Comprehensive Plan considered the incorporation of Womens Bay into a second-class city. 4. Gravel Material Sources and Extraction Gravel mining operations in Bells Flats started in approximately 1965. Brechan Enterprises, Inc. currently operates an asphalt batch plant on land owned by Brechan Enterprises, Inc. along Sargent Creek Road, and gravel mining extraction operations in upper Bells Flats, under permit from the Kodiak Island Borough. The four tracts, B-1, B- 2, B-3 and B-4 total approximately 75 acres. These four tracts are leased from the Kodiak Island Borough, and the lease expires in 2007. Gravel material is a critical Borough-wide need for roads and other forms of construction on Kodiak. 5. Public Health/Safety and Environmental Issues The WB residential community has experienced fluctuating growth patterns during the last 10 years. There are concerns related to public health and safety, such as adequate clean water and areas for current and future waste disposal. There are also environmental concerns such as water quality, ATV impacts, impacts from farm animals, close proximity of existing septic systems, erosion associated with Russian River and Sargent Creek drainages, and potential industrial pollution from former and existing industrial activities to name a few. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 30 December 2006 SECTION 2. DEVELOPMENT ALTERNATIVES In most planning endeavors there are alternative ways that growth and development may occur. The future growth and development of the Womens Bay area is no exception. This section identifies three alternative development patterns that could occur within the Womens Bay area and evaluates each relative to the issues raised and established in prior sections of this plan. This analysis resulted in the identification of a preferred development pattern that is discussed in greater detail in Section 3 of this chapter and that forms the basis for the implementation program described in Chapter 5 of this plan. Continuation of Existing Trends (No Action Alternative) This alternative continues the existing development trends for the Womens Bay area. The characteristics of this trend include little or no new residential subdivision or construction within the community, very limited non-residential development, very limited public investment in infrastructure maintenance and expansion, limited public policy support for zone changes and development proposals, and limited opportunities for community participation in guiding future growth and development Of the Womens Bay area.. Continuation of existing trends fails to achieve many stated public policy objectives and public investment expectations. This development alternative fails to promote the preferred development pattern that the community survey results indicate, fails to provide for continued viability of the rural community, and fails to provide a proactive role for the public in the revival of the community. This alternative provides few opportunities for property owners to achieve their visions of gaining returns on investments due in part to a lack of public support for needed infrastructure and continued uncertainty associated with the success of development proposals. Dispersed Suburban Growth Pattern This alternative establishes a development pattern that disperses expanded growth throughout the entire community fueled by extension of public infrastructure and greater public policy support for zone changes and development proposals. This pattern may be best described as one in which the public plays a role through investment in roads, sewers, waterlines, provision of fire protection and law enforcement, but with little to no authority to manage the location or type of growth occurring within the community. While this trend addresses the issue of encouraging additional growth within the rural community, it fails to address the preferred development pattern that the community survey results indicate and may compromise a number of private investment expectations. This development alternative undermines the traditional development pattern of the community, fails to enable wise management of public fiscal resources, minimizes the ability to protect the natural environment and fails to capitalize on existing public and private investments. This alternative creates an environment where conflicts between incompatible land uses may become more common, thus undermining property values and infringing upon residents quality of life and on some property owners' ability to continue rural activities. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 31 December 2006 Compact Rural Neighborhood Based Pattern This alternative establishes a pattern that promotes limited expanded growth and development in and around the main core areas of the community through the provision of public infrastructure and strong public policy support for zone changes and development proposals that are consistent with the support of the traditional rural residential development pattern. Further, this pattern envisions a strong role for community members in guiding the future growth and development of the community. This trend increases the public's role in managing future growth and development and therefore limits the opportunities of some property owners. However, it is consistent with most of the preferred development pattern that the community survey results indicate, with the goals and strategies identified in this plan and supports the majority of private investment expectations. Further, this development pattern enables wise management of limited public fiscal resources, protects the natural and man-made environment, capitalizes on existing public and private investments, promotes growth and development within the rural community, and promotes a development pattern that is neighborhood-focused. Through the active participation of community members in the implementation of this development pattern, limited expansions of development areas and as needed changes can readily be accommodated as appropriate and necessary. It is this development pattern that has been selected as the most appropriate for the Womens Bay community. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 32 December 2006 SECTION 3: PREFERRED DEVELOPMENT PATTERN As stated in the previous section of this Chapter, the development alternative that best adheres to the guiding principles as stated in the comprehensive plan and in this plan is the compact rural neighborhood based pattern. The following information provides more detail on the characteristics of this preferred development pattern. Spatial Pattern (See Recommended Land Use Map) The preferred development pattern: Expands upon the traditional development pattem Separates rural residential areas from industrial areas with a discernible edge and buffer area Ensure that zoning districts are appropriate for an area that require on-site water and wastewater systems Residential areas contained within the community should continue to grow at very low densities, allowing rural residential and agricultural opportunities in the areas surrounding the existing developed areas. Infrastructure extensions into the rural areas should be limited to those addressing health and safety issues such as replacement of failing on-site wastewater treatment systems and provision of public drinking water. Neighborhood Pattern As the need for additional land becomes evident, new acreage should be added within the existing core areas, taking •care to avoid environmentally sensitive areas and to continue to replicate the neighborhood pattern discussed within this section of the.plan. Further, this avoids .concentrating the land designated for residential development with one or two property owners. Land located within the community that is constrained with significant natural features such as floodplain and wetlands should be placed within a rural conservation designation. These areas should not be further subdivided or developed. Lands located outside of the Womens Bay core planning area should continue to be rural in character. Infrastructure extensions into these areas should be very limited if made at all. The Jack and Lee Lakes Natural Use area should be maintained in its entirety in a natural state and use restricted to activities that do not degrade its natural and wild character. Neighborhoods should remain large in scale, expand upon the traditional development pattern, be physically linked to other neighborhoods and to the two existing cores of the community via pathways, streets, etc., and contain a mix of uses where practical, with a continued emphasis on single family residences. Further, this pattern should include streets that are designed to serve the adjoining residences. Other features found within these neighborhoods should include connections into the trails network and shallow yard setbacks. Lot sizes should be kept to one acre or larger if needed to insure on site septic systems will function properly and not in the long term impair local ground water. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 33 December 2006 Business/Industrial Pattern The preferred development pattern continues to focus new business development in areas that have traditionally served such a purpose, though in an improved physical arrangement and a renewed emphasis on design and development standards. The community's business center will continue to be the area along Chiniak Highway. This area has traditionally focused on automobile oriented business activities such as gas stations, restaurants; convenience stores and limited retail business. This focus should continue, though over time, a mix of uses including office and professional services should be introduced in a well planned manner. Access management and design and development standards should be given a high priority as development and re-development occurs. A renewed interest in building design, building placement, lighting, landscaping, and signage is necessary to promote a more positive and aesthetically pleasing entrance into the Womens Bay community. Other business activities may be accommodated in a second location. This area should offer neighborhood services such as day care that are small in scale and compatible to the surrounding residential uses. Basic employment opportunities in such activities as resource extraction will continue to be accommodated but in new locations outside of the immediate residential. area. This recommendation is based on indications of existing conflicts between industrial uses and residential uses in the Core Plan Area. Existing industrial uses in the Core Planning Area should be phased out as opportunities for the relocation of such activities become available. Leases of Borough owned land for private industrial uses including gravel extraction should be granted for minimum duration terms, in the Core Planning Area. If existing industrial activities, including gravel extraction on Borough leased land are continued, lease agreements will contain operation stipulations to minimize impacts on near-by residential areas including limitations on hours and days of operation and permitted activities, No new industrial activities will be permitted in the Core Plan area. Industrial zoning will be permitted in areas of the Regional Planning Area outside of the Core Planning Area if such zoning is approved through the Borough zoning process. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 34 December 2006 Chapter 4. Goals and Objectives Goals are general achievements that the community wishes to accomplish in the future. Goals provide guidance for developing objectives. Objectives are specific and achievable projects in support of a goal. Land Use Goal: Guide the use of land in the Womens Bay planning area in a manner that provides for orderly and compatible community and regional growth. Goal: Maintain the rural residential setting of the Womens Bay Community. Objectives: a) Encourage new residential development while maintaining a minimum lot size of .RRI (40,000 square feet). b) Platted roads should be developed to Borough code prior to land sales. c) Support a centralized business and office use areas that follow the existing development pattern. Goal: Minimize conflict between different land uses within the Womens Bay Area. Objectives: a) Create a buffer zone between existing industrial and residential use areas. b) Develop light and noise standards for non-residential uses. c) Provide viable land uses for the Salonie Creek Area, including the feasibility of future recreational or resource extraction uses. Goal: Identify and designate areas for public access in Womens Bay. Objectives: a) Provide an area for public launch sites for skiffs and small pleasure craft. b) Provide public access to the shoreline for recreational purposes including skiffs and small pleasure craft. c) Support the KIB Parks and Recreation Committee's efforts to provide transportation trails for motorized and non-motorized vehicles (i.e. Ant trails, foot paths, bike paths, horse trails, etc.) in the planning area. d) Develop transportation trails for non-motorized vehicles (i.e. foot paths, bike paths, horse trails, etc.) Goal: Guide gravel material sources and extraction operations in the Womens Bay planning area that is mutually beneficial to residents and industry. Objectives: a) Conduct an industrial and resource extraction future needs analysis and site capability analysis to determine KIB land use supply and demand. b) Transition the location of industrial and gravel uses out of the immediate Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 35 December 2006 residential area. c) Regulate hours and days of operation and permitted activities to minimize conflicts with adjacent residential areas as provisions in lease agreements. Jack and Lee Lakes Natural Use Area Goal: Address and resolve user conflicts between motorized and non- motorized activities in the Jack and Lee Lakes Natural Use Area . Objectives: a) Change the area's name to Womens Bay Park or Jack and Lee Lakes Natural Use Park to help identify the area to Borough residents and visitors. b) Develop a park, trails, and recreation plan for the Jack and Lee Lakes Natural Use Area. Public Health/Safety and Environment Goal: Minimize development in environmentally sensitive area. Objectives: a) Maintain a high quality natural environment within the planning area. b) Rezone portions of the B Parcels to public use, natural use, or conservation areas zoning classification or possible residential use. c) Implement the Alaska Coastal Management Program and the Kodiak Island Coastal Management Program in planning for appropriate coastal zone uses. d) Protect the Russian River and Sargent Creek drainages by establishing specific strategies through coordination with state and federal regulatory entities. Goal: Ensure adequate public services for the Womens Bay planning area. Objectives: a) Identify and prioritize needed road improvement projects in the WBC. b) Provide better fire service in the planning area. c) Addresses problems associated with private water/sewer systems. d) Provide an upgraded emergency evacuation shelter and support emergency procedures education. e) Support positive bear management practices as described in the Kodiak Archipelago Bear Management Plan. f) Designate a suitable location for a community cemetery. g) Designate a suitable location for a community school. h) Improve waste collection and disposal — Provide a transfer station and recycling center to be located in the core area. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 36 December 2006 Chapter 5. Plan Implementation Action: Identification of the specific task to be accomplished. Funding Source: Identification of possible funding sources to accomplish the task. Lead Department/Entity: Which KIB entities and/or Departments will lead if the action is pursued. Time Frame: What period could be estimated to accomplish the action. Ongoing means the action should be continually a priority for the KIB. Short term means the action could be accomplished with one year; mid-term means two to five years and long term means it would take over five years to accomplish the task. Land Use Goal 1. Maintain the rural residential setting of the Womens Bay Community. Objective: Encourage new residential development while maintaining a minimum lot size of RR1 (40,000 square feet). . ' Action ,Ond i il, Source _ - _ - KIB ; 40',.1 ' : Time Evaluate the need for a KIB zoning and subdivision code amendment that would address future lot sizes in the planning area based on natural constraints such as slope topography, soil and water availability and other conditions. KIB P&Z Comm., Community Development Short-Term Minimize development in rivers and creek flood plains, tsunami surge zones or at the bases of unstable quarry or mountain sides. KIB Private P & Z Comm., Community Development, Assessing On-going Objective: Platted roads should be developed to Borough code prior to land sales. Action KIB Lead Time , Rai* Evaluate the need for a KIB zoning and subdivision code amendment that would address new road improvement standards. KIB . . . P&Z Comm., Community Development Short-Term Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 37 December 2006 Objective: Support a centralized business and office use areas that follow the existing development pattern. Goal 2: Minimize conflict between different land uses within the Womens Bay Area. Objective: Create a buffer zone between existing industrial and residential use areas. N�Gr t^ 'Ly J Y Action N; 3 ) f t I t ) I F E i r..i- ?5.�5.. _ r. 1� .. -.M Y W. _� i f Funding4 E. fT Source ° v fi � x KIB Lead`' ° , `3' x t.,' .5:'.�:,4< �T� 1J F S 7~� Time,Frame f _ _.. .,. 1 +' Create buffer zones through rezone procedures between industrial and residential use areas. KIB DCED ACMP P &Z Comm., Community Development Short-Term Review and revise the I- Industrial zoning district to reflect more up -to -date standards for regulating industrial uses. The emphasis of this review should focus industrial uses within close proximity to residential uses. KIB P &Z Comm., Community Development Short-Term Objective: Develop light and noise standards for non - residential uses. . r "r ction ....., -� `Funding t Source.... KIB Lead i° F ti Time Frame Research existing KIB ordinances to determine areas where amendments to existing standards would be appropriate. KIB P &Z Comm., Community Develop. Mid -Term Objective: Provide viable land uses for the Salonie Creek Area, including the feasibility of future recreational or resource extraction uses. 4 ctio n `� ' � � g Fundin f g � ' a si � 5 KIB Lead JY � � Time Frame Research the feasibility and location of future gravel extraction operations in the Salonie Creek area. KIB Industry P &Z Comm., Community Development Short-Term Determine the management and future land uses of Borough -owned land in the Salonie Creek area, including the existing rifle range, to resolve any existing or future land use conflicts. KIB Private P& Z Comm. Community Development, KIB Parks and Recreation Committee Short-Term Investigate the feasibility of gravel extraction projects in the Russian River and Sargent Creek areas that address multiple management objectives including material extraction, habitat enhancement and floodplain improvements. KIB Native Organizations Industry DNR ADF &G Assembly, P & Z Comm., Community Develop., Assessing Mid -Term Goal 3: Identify and designate areas for public access in Womens Bay. Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 38 December 2006 I Objective: Provide public access to the shoreline for recreational purposes including skiffs and small pleasure craft. � , s £..q y`.` 'S< f�,j q 'l's" "en.�P. t .�. 1� �lJ. s�+.s�x�"�*:, --'• -f E. .'!:[�. ,.a,.... ^m f��%e,...✓, Fund>Irag ��k � Y' I k t g'ik i�- �.z -.��3f �Yl,':.+'T� t � � x j Department y3 G ■/� 'Sx_>.FF.S.-rt- Vommiss1on eFrame Encourage the acquisition of private property to provide public access to the shoreline for recreational purposes and to provide areas for public launch sites for skiffs and small pleasure craft. KIB ADF &G KIB Assembly, P &Z Comm., Community • Development, Engineering and Facilities On -going Objective: Support the KIB Parks and Recreation Committee's efforts to provide transportation trails for motorized and non - motorized vehicles (i.e. ATV trails, foot paths, bike paths, horse trails, etc.) in the planning area Y sf •3 ✓'�� � .i'EYr r3� - � � z _ 4��^�i '�'E -3 3�'"Y�'�c"�{t ��+�, '? }� Action 'tt.,F `Lryi 'st�fi .., -, � '"'t''#I Ai Y; G j� £�.'S'�,,.E"?�'"+ 1 Fundiing C�Fa's /►i4 4 Source Y � -i � �i .'` f _ Department or s 3 ■/�;C •3' '73✓rS's' C Y b 3 .Commission Th a Frame x# ,' Q} .3 s�k'' YY' Encourage the KIB Parks and Recreation Committee and Planning & Zoning Commission to institute management strategies to eliminate conflicts among competitive recreational uses in the planning area. KIB NPS KIB Parks & Rec Comm.; P &Z Comm., Community Develop. Short Term Objective: Develop transportation trails for non - motorized vehicles (i.e. foot paths, bike paths, horse trails, etc.) �i..- ,t?i�47;4 t'..` R'"'`t i + � ;A �an , �-r }Source Y 3 Funcling $° ,y } �: 'r .' x't �x.`,.i KIB Lead r'- {„-' t { Tlme Frame Support the. KIB Parks and Recreation Committee's: efforts to provide transportation trails for motorized and non- motorized vehicles (i.e. ATV's, foot paths, bike paths, horse trails, etc.) in the planning area. KIB NPS • KIB Parks & Rec Comm.; P &Z Comm., Community ' Develop. Short Term Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 39 December 2006 Goal 4: Guide gravel material sources and extraction operations in the Womens Bay planning area that is mutually beneficial to residents and industry. Objective: Conduct an industrial and resource extraction future needs analysis and site capability analysis to determine KIB land use supply and demand. ' -"7I' i'r. RY £. F'°^f 2 x �'..y" } F 5 "'rS , F }h" -�.'. �� �.{ �d v -� t � S Action ` .,. '• �` ! 1 � Funding � Source A. d'S +4.. �_ 2 �t "i'# '""'6?�"' i 1'-e �. �� � � a ��� ,�� ��� � � KI13Lead� tea.' : vv'3.* ': � .� �, , ime. Frame Research the feasibility, including opportunities and constraints, of alternative sites within the KIB for material extraction operations and related material industrial operations. KIB Native Org., Industry DNR Assembly, P & Z Comm., Community Develop., Assessing Mid -Term Objective: Transition the location of, industrial and gravel uses out of the immediate residential area. Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 40 December 2006 Jack and Lee Lakes Natural Use Area Goal: Address and resolve user conflicts between moto i and non- motorized activities in the Jack and Lee Lakes Natural Use Area. Objectives: Change the area's name to Womens Bay Park or Womens Bay Natural Use Park to help identify the area to Borough residents and visitors. Research land ownership and existing land use on the "slaughterhouse property" KIB DCED ACMP Assembly, P&Z Comm., Community Development Short-Term Identify feasible sites for future material extraction within the Womens Bay. planning area. KIB Native Organizatio ns Industry DNR Assembly, P & Z Comm., Community Develop., Assessing Mid-Term Determinewhether to phase out the current gravel leases on the B Tracts after the current leases expire Leases should be renewed or new leases issued for minimum duration terms until a suitable alternative extraction site can be developed. Renewal or new lease agreements should specify operation hours, days of operation, and permitted activities to minimize conflicts with adjacent residences. Review the depth of extraction identified in the current leases and ensure they are consistent with the local habitat need for anadromous water bodies. KIB Industry Asmanxbly, P & Z Comm., Community Develop., Assessing Assess the feasibility of a future phased development utilizing existing water filled pits for fishery enhancement, and adjacent areas for park designation and possible residential lot post gravel extraction phase out. KIB Industry ADF&G Assembly, P & Z Comm., Community Develop., Assessing Mid-Term Jack and Lee Lakes Natural Use Area Goal: Address and resolve user conflicts between moto i and non- motorized activities in the Jack and Lee Lakes Natural Use Area. Objectives: Change the area's name to Womens Bay Park or Womens Bay Natural Use Park to help identify the area to Borough residents and visitors. vvomen P&Z Commission Approved Draft 41 December 2006 Research changing the area's name to Womens Bay Park or Jack and Lee Lakes Natural Use Park to help identify the area to Borough residents and visitors. KIB P&Z Comm., Community Develop. Mid-Term vvomen P&Z Commission Approved Draft 41 December 2006 Objectives: Develop a park, trails, and recreation plan for the Jack and Lee Lakes Natural Use area. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 42 December 2006 Anahoe/apdnualuotmthezoningcodefov the natural use area to determine if a zoning code amendment is necessary. KIB ' P&Z Comm., Community Develop. Mid-Term Research the KIB subdivision code and other potential mechanisms to provide for community-wide green space and usable public recreational use areas in future subdivisions in the planning area. KIB KIB Parks & Rec Comm., P&Z Comm., Community Develop. Mid-Term Identify and map the approved 17b easements that provide public access through native owned land in the study area. KIB KIB Parks & Rec Comm., P&Z Comm., Community Develop. Mid-Term Investigate the potential for an "off-road vehicle" park or use area in an appropriate location outside of the Womens Bay community and outside of the Natural Use zoning district. KIB KIB Parks & Rec Comm., P&Z Comm., Community Develop. Long-Term Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 42 December 2006 Public Health/Safety and Environment Goal 1: Minimize development in environmentally sensitive area. Objectives: Maintain a high quality natural environment within the planning area. 4.1frTAt2fki::: kV • *law - I ''' , ' z. , Lead „ .'.--- ' P Frame :01,'''' Determine if a zoning code amendment is needed to protect natural resources from potential adverse impacts from boarding of large animals. KIB DCED ACMP P&Z Comm., Community Development Short-Term Provide comprehensive land, air and water policies, uses, and zoning recommendations for the land and .waters within the Womens Bay planning area. KIB DCED ACMP State/Feder al agencies. P & Z Comm., Community Development On-going Minimize development in rivers and creek flood plains, tsunami surge zones or at the bases of unstable quarry or mountain sides. KIB Private P & Z Comm., Community Development, Assessing On-going Encourage land owners to seek U.S. Army Corp. of Engineers assistance in cleaning contaminated former military dump sites. KIB DCED State/Feder al agencies. Community Development , On-going Develop a solid waste transfer station and recycling center in the Womens Bay Core Area. KIB ADEC Engineering and Facilities, Community Development Long Term Objectives: Rezone portions of the B Parcels to public use, natural use, or conservation areas zoning classification or possible residential use. Action ' -?•..W-:-.:,:o.izi, Funding in '''.,L•.:, Afri:ce.,-,,z . i -0 - .-7,-( •:4::.,:;,,-:,1%,461,1%2 *FfiatTliti :.2.61-wmiml-g,..tv*:,..,:.5a Create buffer zones through rezone procedures between industrial and residential use areas. KID DCED • ACMP P&Z Comm., Community Development Short-Term Objectives: Implement the Alaska Coastal Management Program and the Kodiak Island Coastal Management Program in planning for appropriate coastal zone uses. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 43 December 2006 It . L4-4,-;g, _ ilAigkAt, 4 4 W1=-2; , z urc ; Lead Tifite4Fraine.??2, Support the update to the Kodiak Island ' Coastal Management Plan (KIB CMP) in planning for appropriate coastal zone uses in the WB planning area. KIB DCED ACMP State/Feder al agencies. P & Z Comm., Community Development On-going Objectives: Protect the Russian River and Sargent Creek drainages, by establishing specific strategies through coordination with state and federal regulatory entities. , .. ',.' %,-,"-,!■, ,-'i-.._ ■,'.. , I ,i ",;, ,",?1" Ai MOM .:--:iik`--1:.;:'1"irz*.-,===:, ' KlBLead a .,-,,,O'it4" at'rti:VI irneFrame , ,,, ,-4";,,,;,,- , -.7,,i'',,:i■ Coordinate a multiple organizational management system to protect the Russian River and Sargent Creek drainage areas through the creation of greenbelt. KIB DCED ACMP State/Fed agencies. P & Z Comm., Community Development . Mid-Term Support a hydrological study for the Womens Bay drainage as it may have been impacted by the leasing of the B- Tracts. KIB DCED ACMP State/Fed Agencies. P & Z Comm., Community Development Long-Term Goal 2: Ensure adequate public services for the Womens Bay planning area. Objectives: Identify and prioritize needed road improvement projects in the WBC. . I. 4, , .,F-mgclin A.--,4,-,..n--x.,..„ - Source _.,., . ;40 Lead R,E4,. ,,,,,.:4;;4.44..,,=...:.: 4,4., , ,rariip;: Encourage and support the WB Service • District's identification and analysis of road, water, sewer, and other utility issues and concerns. WB Service District Eng. And Public Facilities, Service District, Community Development Mid Term Investigate the potential for a new community school to be located in the • Womens Bay community. KIB/DEED Eng. And Public Facilities, Service District, Community development. Long Term Objectives: Provide better e service in the planning area. .__ •W:',;-'itA-(:,'''-': :zi.' =11411).0 _ ‘117001.4:7- ' - 114 ' '-- elfrenie;;.', Provide adequate funding for improved emergency services, including fire service and equipment. WB Service District Eng. And Public Facilities, Service District, Community Development Mid Term Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 44 December 2006 Objectives: Addresses problems associated with private water/sewer systems.. a. t .,,, :,-- UagAlf 1M, 4.,, , ,._ I 'Vf:IA-W7V1,--- . '7', ”, ■ ' 4.021.34-ZU:gagt Research the locations and condition of individual on-site wells and septic systems in the core planning area to determine the potential future need forcommunity water and sewer facilities. KIB Denali Comm. ADEC Community Development, Womens Bay Service District Short-Term Encourage and support the WB Service District's identification and analysis of road, water, sewer, and other utility issues and concerns. WB ' Service District Eng. And Public Facilities, Service District, Community Development Mid-Term Protect the watershed so that in the future it can support, if necessary, a municipal water system to facilitate future growth. KIB ADEC Private Community Development, Assessing Long Term Support the acquisition of the USCG lands between Sargent Creek and the Kodiak State Fairgrounds for a possible gravel extraction site. KIB ADEC USCG Community Development, Assessing - Mid-Term Objectives: Provide an upgraded emergency evacuation shelter and support emergency procedures education. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 45 December 2006 Source .._, , 1,;,,,V,0-`,M1.44 .,-,,,i;::M.VAtZUV,W, Retain .KIB lots along Sargent Creek for uses such as the fire hall, community , center, emergency shelter, and public park lands. KIB Community Development, Womens Bay Service District Short-Term Establish and maintain tsunami warning sirens, tsunami evacuation plans and the location of pertinent informational signs. ADES KIB Coord. with Public Safety and WB Service District Mid-Term Investigate the potential for a new bridge over the Russian Creek to connect the two main development areas. WB Service District Eng. And Public Facilities, Service District, Community Development Long-Term Research other potential escape routes that could serve the Womens Bay planning area. ADES KIB Coord. with Public Safety and WB Service District On-going Provide adequate funding for improved emergency services, including fire service and equipment. KIB Service District Eng. And Public Facilities, Service District, Community Development Mid Term Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 45 December 2006 Objectives: Support positive bear management practices as described in the Kodiak Archipelago Bear Management Plan. 2.. y'.;r f'�!`.F.,*'t+...`i.. .£^ T.«: rf }'' 5 -4Y .._ «�.. •rs�..i :: n" dan "s ,'d3 a .KP� .� 5 'Y S 9'>' �� KIBead '` s' -rt Sys i �i r-''e 'i _'i'1t." { J Tame F'rameM' ` 'c i ..,.` "a^ Ensure that the Kodiak Archipelago Bear Management Plan is consulted for all development projects. KIB Eng. And Public Facilities, Service District, Community Development Long -Term Objective: Designate a suitable location for a community cemetery. Acton }1 �a x rDepartmentor J Sources x,KIB Leadf : Commission f$M Time Frame Review PL- Public Use Land for a suitable or appropriate site for a new cemetery. Consider amending zoning districts to allow cemetery use. Private /KIB P &Z Comm., Community Development On -going Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 46 December 2006 Chapter 6. Recommended Land Use Map LAND USE POLICIES This chapter presents policy statements for each land use category. The Recommended Land Use Map, (Map 12), is on page 48. Each land use category has different characteristics and considerations that must be brought into focus in order to provide for effective and reasonable Plan implementation through public investment, zoning and other regulations. Public Open Space Public open space areas are comprised of public parks, natural areas, greenway paths and existing major public opens spaces and recreational areas in the Womens Bay Planning Area. These public open spaces receive heavy recreational 'usage during all seasons of the year. Hunting, hiking, fishing, camping and picnicking opportunities draw many visitors to the Kodiak Island Borough who contribute to the local economy. These public open space areas will continue to play an important role in serving the Womens Bay residents and the local tourism economy. The Plan identifies about 90 acres of public use land zoning as well as park areas. Floodplains, riparian areas, steep slopes, wetlands and water supply watersheds are environmentally sensitive areas and carry inherent development constraints if they are to continue to function in their essential roles as part of the natural environment. Environmental protection overlay districts should be established for these areas. The Plan adopts the value that these special environments should be reserved and remain undeveloped and undisturbed, with, the exception of-non-invasive recreational uses. The Plan recognizes that all economic and recreational needs of Borough residents and property owners can be adequately accommodated on other accessible lands not impacted by such environmental features. Where public improvements are considered, the development of these improvements should be handled with great care and public scrutiny. The Plan supports conservation of these environmental resources through public reservation, regulation and, where necessary, acquisition'. Industrial. This category is intended for economic uses that result in increased jobs and tax base to the Womens Bay area and the Borough as a whole. This category should include industries and distribution/warehouses that are not generally compatible with residential uses typically found in suburban areas. Four criteria guide the location of large tract industrial uses: transportation access,,water supply, lack of incompatible existing land use and topography. An area of approximately 45 acres is recommended as an excellent location for employment uses. Prime roadway access in this area provides great connections to business centers throughout and beyond the region. A number of natural gravel deposits exist in the Womens Bay Planning Area. Such quarries should also be protected from encroachment by incompatible land uses that may be sensitive to the blasting, dust and heavy trucking operations. Areas around quarries where active blasting is occurring or may occur should be reserved for one of the following use categories: agriculture, industrial, or public open space. Resource Extraction uses include all uses associated with the operation of quarries, such as the Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 47 December 2006 extraction, storage, processing and transportation of the quarry product. Business The character of the category is defined as that which is primarily intended to meet the essential business needs and convenience of Womens Bay area residents. Commercial uses may include a grocery, drug store, and branch dry cleaning establishments as examples. Compatible small-scale industrial uses can also be located in these areas. Business uses should be placed into cohesive groupings rather than on individual properties along the highways and access control should be emphasized. Its purposes are: to encourage the development of groups of nonresidential uses that share common highway access and/or provide interior cross access in order to allow traffic from one business to have access to another without having to enter the highway traffic; to discourage single family residential uses; to protect environmentally sensitive areas, and to maintain the character of the surrounding neighborhoods. Opportunities for business uses, such as, small-scale shops, home occupations and cottage industries, may be appropriate outside these areas as well. • Residential The new residential development should be at a minimum lot size of RR1 (40,000 square feet) for existing lots. Other residential uses are also encouraged within this land use category at a density appropriate to ensure adequate water supply and wastewater treatment on-site. The mix of dwellings should be organized into a rational development pattern, rather than random lot-by-lot development. The B tracts would be converted into Open Space land and some potential residential • development sites. It is not encouraged to develop residential uses adjacent to the B tracts if the industrial uses remain for the long term in their present location as this is contradictory to the objective of buffering residential uses from industrial uses. Institutional This category is defined as that which is primarily intended to accommodate uses of a •governmental; civic, ,public service, or public institutional nature, including major public • facilities, public utilities, and local government-owned property. Womens Bay Comprehensive Plan Update P&Z Commission Approved Draft 48 December 2006 omens Bay Land Use Map Womens Bay Comprehensive Plan Update —49— December 2006 Bibliography 1. American Planning Association Website, 2004. http: / /www.Dlanninq.orq /LBCS 2. Brechan Enterprises: Moving Cost Estimates, Economic Contribution to Kodiak, 2004. Northern Economics Inc. Anchorage, Alaska. http: / /chiniak.net/brechan/ 3. DCED Community Information Website, 2004. http:// www .dced.state.ak.us /dca /commdb /CF 'COMDB.htm 4. Kodiak Area Plan for State Lands, 2003. Public Review Draft and Approved Revisions. ADNR, Division of Mining, Land and Water. Anchorage, Alaska. http: / /www.dnr. state. ak. us /mlw/ planning /areaplans /kodiak/index.cfm 5. Womens Bay Community Plan, 1982. Womens Bay Community and KIB, Community Development Department. Kodiak, Alaska. 6. Womens Bay Natural Use. Area Plan, 1.997. First Draft. KIB, Community Development Department. Kodiak, Alaska. 7. Womens Bay Water and Wastewater Facilities Plan, 1991. HDR Engineering, Inc., Kodiak Island Borough, Kodiak, Alaska. Womens Bay Comprehensive Plan Update P &Z Commission Approved Draft 50 December 2006 MEMORANDUM Jamin Schmitt St. John 323 Carolyn Street Kodiak, Alaska 99615 (907) 486-6024 Fax: (907) 486-6112 e-mail: alan@jesmkod.com to: Rick Gifford, Manager Kodiak Island Borough from: Alan L. Schmitt ATTORNEY-CLIENT PRIVILEGE APPLIES re: Bells Flats Gravel - draft short term lease and material sales agreement date: May 24, 2007 As requested, 1 have prepared a draft short term lease and material sales agreement regarding the request from Brechan Enterprises, Inc. The draft accompanies this memo. From the documents I have reviewed, it appears that the previous agreements regarding the gravel on Tract B have been materials sales contracts which included some lease provisions. You will note that the accompanying document is a lease which includes material sales provisions. I recommend this approach primarily because the law on a landlord's right to promptly evict a tenant for violating a commercial leases is pretty well developed. That is not the case relative to material sales contracts. If you have any concerns about this approach, please let me know.' In the remainder of this memo I would like to offer some observations and comments about the document. 1. The legal description - all recent references to the land mention Tracts B1, B2, B3 and B4A. I found no recorded plat which actually created those tracts however. It appears that Tract B was created by Plat 69-4. If there is a recorded plat showing the subdivision of Tract B into Tracts B1, B2, B3 and B4A, please let me know. 2. The agreement is for a one year period to provide time for preparation and approval of a reclamation plan. 3. The amount of rent should be determined. 4. Paragraph 6 refers to BEI's development plan. I believe this is merely the sketch which has been attached to various documents, particularly the 1989 agreements. In any event, the most current version should be marked as Exhibit A and attached to the agreement. 5. At the end of paragraph 7 I refer to the list of stipulations on attached Exhibit B. I copy of the list also accompanies this memo. In it I tried to cover the concerns expressed 1 Clearly this agreement is a hybrid. That is, it combines a lease, which is authorized by KIBC 18.40 with a material sales contract which is authorized by KIBC 18.60. Memo to Rick Gifford May 24, 2007 Page 2 by the planning and zoning commission as well as the requirements from the previous agreements. Please let me know if you note any additional items to mention on this list. Please let me know if you have any questions or need further information. \966 memo r gifford 1.wpd LEASE AND MATERIAL SALES AGREEMENT (short term) THIS LEASE and MATERIAL SALES AGREEMENT is made this first day of July, 2007 by and between the Kodiak Island Borough ("Landlord" or "KIB"), a municipal - corporation organized under the laws of the state of Alaska, and Brechan Enterprises, Inc. ("Tenant" or "BEI"), a corporation incorporated under the laws of the state of Alaska. For and in consideration of the covenants, rents and demises, and upon the terms and conditions set forth in this agreement, the parties agree as follows: 1. Premises. Landlord hereby lets, leases and demises to Tenant the real estate particularly described as follows: /1/4 Tracts B 1 B d_R4A, Bells Flats Alaska Subdivision, generally according to P1 as to Tract B), located in the Kodiak Recording District, Third Judicial s rict, State-of Alaska. Also known as 12247, 125361 and 12583 Middle Bay Drive and 12027 Bells Flats Road ("the premises"). Tenant, upon paying the rents, and performing all of the terms and covenants required by this agreement, shall peaceably and quietly enjoy the premises subject nevertheless, to the terms of this agreement. 2. Term of Lease. The term of this agreement shall be for the period of one (1) year following the commencement of the term, unless sooner terminated as provided in this agreement. The lease term shall commence on July 1, 2007, and shall expire at 5:00 P.M., prevailing Alaska Time on June 30, 2008. 3. Termination of Agreement. In addition to Landlord's right to terminate this agreement for tenant's default as described below, both parties have the right to terminate this agreement with ninety (90) days written notification. 4. Rental. In consideration of the demise and leasing of the premises Tenant agrees to pay to Landlord as rental for the premises the sum of hundred dollars ($ .00) in advance, on or before the first day each month of the lease term. All rent shall be paid to the Landlord at 710 Mill Bay Road, Kodiak, Alaska 99615, or at such other place as Landlord may designate from time to time in writing. 5. Unit Price for Materials. Consistent with KIB Code ("KIBC") Chapter 18.60, BEI is also granted the right to purchase gravel by this agreement. BEI shall bear the cost of and shall provide the volume determination according to KIBC 18.60.040. The volume determination shall be in units of cubic yards. Upon execution of this agreement, BEI shall pay to KIB $1,000 as required by KIBC 18.60.040. LEASE AND MATERIAL SALES AGREEMENT — Page 1 of 9 BEI shall submit to KIB on an annual basis and not less than thirty days prior to the anniversary date of this agreement, the volume determination of the gravel removed from the premises. BEI shall pay for this gravel the price as determined by the KIB Assembly under. KIBC 18.60.060. KIB reserves the right, but is not obligated to make its own volume determination of the gravel removed from the premises. 6. Alteration of Premises. Tenant shall not make any alterations, additions, or improvements to the premises without first obtaining the written consent of Landlord to Tenant's develot elan develop ptan:, ttached as Exhibit A. Any such alterations, additions a pmen and improvements consented to by Landlord shall be made at Tenant's expense. Tenant shall secure all governmental permits required in connection with the development plan and with the approved work. Tenant shall hold Landlord harmless from all liability and liens resulting from the development plan and approved work. All alterations, additions and improvements are subject to the terms of KIBC 18.40.140. 7. Use of Premises. The premises shall be used as support for Tenant's extraction, remanufacturing and removal of gravel and for no other purpose, without the prior written consent of Landlord. Tenant shall not use or permit the premises or any part thereof to be used for any purpose in violation of any borough, state, federal or other governmental law, ordinance, rule or regulation. Tenant agrees that Tenant, together with all other persons entering and/or occupying the premises at Tenant's request or with Tenant's permission, will abide by, keep and observe all reasonable rules and regulations which Landlord may make from time to time for the protection of the surrounding habitat and residential areas. The violation of any such rules and regulations shall be deemed a material breach of this agreement by Tenant. Tenant shall use, operate and/or install any electrical or mechanical equipment, machinery, or mechanical devices on the premises in compliance with the highest standards applicable to the premises, or to the use, operation, or installation of such equipment, machinery or devices, generally recognized by the profession or industry in which Tenant is engaged. Tenant shall use the premises and any machinery or equipment on it in such a manner as not to cause substantial noise or vibration, or unreasonable disturbance to surrounding residents. Tenant expressly agrees to comply with the list of stipulations on attached Exhibit B and recognizes that a failure to do so shall be an incident of default. 8. Taxes. Tenant shall pay any and all taxes levied on personal property and trade or other fixtures on the premises, and any license and excise fees and occupation taxes covering business conducted on the premises. 9. Utilities. Tenant shall provide at its expense all utilities and services used on the premises. Landlord shall not be liable for any loss or damage caused by or resulting from any variation, interruption or failure of any utilities or services. 10. Maintenance and Repairs. As this is a lease of land, Landlord has no duty to maintain or repair the premises. Tenant shall, at its expense, maintain and repair the premises. Tenant shall commit no waste of any kind in or about the premises, and Tenant shall pay for all damage to the premises caused by Tenant's misuse or neglect of the premises. LEASE AND MATERIAL SALES AGREEMENT — Page 2 of 9 Landlord shall not be responsible or liable at any time for any loss or damages to Tenant's equipment or other personal property or to Tenant's business except to the extent attributable to Landlord's negligence. Landlord shall not be responsible or liable for any defect, latent or otherwise, in the premises. Nor shall Landlord be responsible or liable for any injury, loss or damage to any person or to any property of Tenant or other person caused by or resulting from bursting, breakage or by or from, leakage, stream or snow or ice, running or the overflow of water or sewerage in any part of said premises, or the surrounding area, or for any injury or damage caused by or resulting from acts of nature or the elements, or for any injury or damage caused by or resulting from any defect in the operation or use of any of the premises by any person or by or from the acts or negligence of any occupant of the premises, unless Landlord itself is negligent. 11. Fire and Other Casualty. As this is a lease of land, Landlord has no duty to protect the premises from damage by fire or other casualty. Tenant acknowledges that it must protect its machinery and equipment from damage by fire or other casualty. There will be no reduction in rent in the event that Tenant's machinery and/or equipment is damaged by fire or other casualty. 12. Subletting and Assignment. Tenant shall not sublet the premises, or any part • thereof, or assign this agreement or any part thereof, nor shall this agreement be assigned in whole or in part by operation of law or through any court proceedings, without the prior written consent of Landlord to such subletting or assigning; any such assignment or sublease without Landlord's written consent shall be void. Any merger, consolidation, or dissolution to which Tenant is a party, or any change in ownership of a majority of its voting stock outstanding, shall constitute an assignment of this agreement for purposes of this paragraph. 13. Indemnification. Tenant shall defend and indemnify Landlord from and against any and all claims, liabilities, or losses of any type arising out of Tenant's occupancy and use of the premises together with reasonable attorney's fees and all costs and expenses incurred by Landlord in negotiating, settling, defending and otherwise acting as a result of such claims. Landlord shall promptly notify Tenant of any loss or claim and shall tender defense of such claim to Tenant prior to negotiating, settling, or defending such claim. 14. Insurance. Tenant, at its sole expense, shall keep or cause to be kept in force for the mutual benefit of Landlord and Tenant comprehensive broad form general public liability insurance coverage against claims and liability, for personal injury, death or property damage arising from the use, occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways. This insurance shall provide coverage of at least $500,000 per person for bodily injury or death, $1,000,000 per occurrence for bodily injury or death, and $500,000 for property damage. Landlord shall be an additional named insured in such policy or policies. Such policy or policies shall be written by a responsible insurance company or companies satisfactory to Landlord and licensed to do business in Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Landlord that might otherwise result in a forfeiture of LEASE AND MATERIAL SALES AGREEMENT — Page 3 of 9 the insurance; (2) the insurer waives the right of subrogation against Landlord; (3) the policies are primary and noncontributing with any insurance that may be carried by Landlord; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Landlord. Upon the signing of this Agreement, certificates of insurance showing compliance with the foregoing requirements shall be furnished by Tenant to Landlord for approval. Maintenance of insurance and the performance by Tenant of the obligation under this paragraph shall not relieve Tenant of liability under paragraph 13, above. If Tenant fails or refuses to procure or maintain the required insurance, or fails to provide Landlord with the required proof of insurance and that it is in force and paid for, Landlord may, at Landlord's election and without notice, procure and maintain such insurance, or may terminate this agreement without liability upon written notice to Tenant. Any premiums paid by Landlord shall be treated as an 'added fee due from Tenant with interest at twelve per cent (12%) per year, to be paid on demand. 15. Liens. Tenant will not permit any mechanics', laborers' or material men's liens to stand against the premises for any labor or materials furnished to Tenant or claimed to have been furnished to Tenant, or to Tenant's agents in connection with work of any character performed or claimed to have been performed on the premises or improvements by or at the direction of sufferance of Tenant; provided, however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give to Landlord such reasonable security as may be demanded by Landlord to insure payment of such lien or such claim of lien. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. The foregoing provisions respecting liens shall apply to all liens, of any kind or nature, asserted against the premises, including liens arising out of, incident to, or connected with the use and occupation of the premises by Tenant. 16. Default. The provisions of this paragraph shall, apply if: (a) Tenant defaults in the payment of rent and the default continues for ten (10) days; or (b) Tenant defaults in the performance of any of its other obligations under this agreement and the default continues for thirty (30) days after notice of the default from Landlord specifying in what manner Tenant has defaulted. If the default cannot be cured within the thirty (30)-day period, the period shall be extended for a reasonable additional time, provided that Tenant commences to cure the default within the thirty (30)-day period and proceeds diligently to effect a cure. In the event of any default described in subparagraph (a) above, Landlord may: (1) Cure the default, in which case any costs and expenses and reasonable attorney fees and court costs incurred by Landlord because of the default shall be deemed additional rent; or LEASE AND MATERIAL SAT ES AGREEMENT — Page 4 of 9 (2) Lawfully enter the premises and repossess the same, and expel Tenant and those claiming under Tenant, without being deemed guilty of any manner of trespass and without prejudice to any other remedies which Landlord may have for arrears of rent or breach of covenant. On entry by Landlord under subparagraph (2) above, this agreement- shall terminate. 17. Forfeiture. The following shall apply in the event of the bankruptcy or insolvency of Tenant: (a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code, and the trustee of Tenant elects to assume this agreement for the purpose of assigning it,'the election or assignment, or both, may be made only if all of the terms and conditions of this paragraph are satisfied. If the trustee fails to elect to assume this agreement for the purpose of assigning it within sixty (60) days after the trustee's appointment, this agreement will be deemed to have been rejected. Landlord shall then immediately be entitled to possession of the premises without further obligation to tenant or the trustee, and this agreement will be canceled. Landlord's right to be compensated for damages in the bankruptcy proceeding, shall, however, survive. (b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding is filed by or against Tenant under any other chapter of the Bankruptcy Code and is converted to a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as a debtor -in- possession fails to assume this agreement within sixty (60) days from the date of filing of the petition or conversion, the trustee or the debtor -in- possession will be deemed to have rejected this agreement. Landlord shall then immediately be entitled to possession of the premises without further obligation to tenant or the trustee, and this agreement will be cancelled. Landlord's right to be compensated for damages in the bankruptcy proceeding shall, however, survive. To be effective, an election to assume this agreement must be in writing and addressed to Landlord and, in Landlord's business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied: (i) The trustee or the debtor -in- possession has cured or has provided to Tenant adequate assurance, as defined in this subparagraph (b) that: (A) the trustee will cure all monetary defaults under this agreement within ten (10) days from the day of the assumption; and (B), the trustee will cure all nonmonetary defaults under this agreement within thirty (30) days from the date of the. assumption. (ii) The trustee or the debtor -in- possession has compensated Landlord, or has provided t Landlord adequate assurance, as defined in this subparagraph (b), that within ten (10) days from the date of the assumption Landlord will be compensated for any pecuniary loss it incurred arising from the default of Tenant, the trustee, or the debtor-in- possession as recited in Landlord's written statement of pecuniary loss sent to the trustee for the debtor -in- possession. LEASE AND MATERIAL SALES AGREEMENT = Page 5 of 9 (iii) The trustee or the debtor -in- possession has provided Landlord with adequate assurance of the further performance of each of Tenant's obligations under the 'agreement; provided, however, that: (A) the trustee or debtor -in- possession will also deposit with Landlord, as security for the timely payment of rent, an amount equal to 3 months' rent and other monetary charges accruing under this agreement; (B) if not otherwise required by the terms of this agreement, the trustee or the debtor -in- possession will also pay in advance, on each day that the rent is payable, one - twelfth (1/12) of Tenant's annual obligations under the agreement for all additional rent as defined in the agreement; (C) from and after the date of assumption of this agreement, the trustee or debtor -in- possession will pay the annual rent payable under this agreement in advance in equal monthly installments on each day that the base rent is payable; and (D) the obligations imposed on the trustee or the debtor -in possession will continue for Tenant after the completion of bankruptcy proceedings. (iv) For purposes of this subparagraph (b), "adequate assurance: means that: (A) Landlord will determine that the trustee or the debtor -in- possession has, and will continue to have, sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the trustee or the debtor - in possession will have sufficient funds to fulfill Tenant's obligations under this agreement and to keep the premises properly staffed with sufficient employees to conduct a fully operational, actively promoted business on the premises; and (B) an order will have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest will have been granted in property of Tenant, trustee, or debtor -in- possession that is acceptable for value and kind to Landlord to secure to Landlord the obligation of the trustee or debtor -in- possession to cure the monetary or nonmonetary defaults under this agreement within the time periods set forth above. (c) In the event that this agreement is assumed by a trustee appointed for Tenant or by Tenant as debtor -in- possession under the provisions of subparagraph (b) and if Tenant is then either adjudicated a bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may terminate, at . its option, this agreement and all Tenant's rights under it, by giving written notice of Landlord's election to terminate. (d) If the trustee or the debtor -in- possession has assumed the agreement, under the terms of subparagraphs (a) or (b) above, and elects to assign Tenant's interest under this agreement or the estate created by that interest to any other person, that interest or estate may be assigned only if Landlord acknowledges in writing that the intended assignee has provided adequate assurance, as defined in subparagraph (b)(iv), of future performance of all of the terms, covenants, and conditions of this agreeent to be performed by Tenant. (e) For the purposes of this paragraph, "adequate assurance of future performance: means that Landlord has ascertained that each of the following conditions has'been satisfied: LEASE AND MATERIAL SALES AGREEMENT Page 6 of 9 (i) the assignee has submitted a current financial statement, audited by a certified public accountant, that shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of Tenant's obligations under this agreement; (ii) if requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord, from one or more persons who satisfy Landlord's standards of creditworthiness; (iii) Landlord has obtained all consents or waivers from any third party required under any other agreement by which Landlord is bound, to enable Landlord to permit the assignment; and (iv) when, pursuant to the Bankruptcy Code, the trustee or the debtor-in- possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the premises, the charges will not be less than the rent as defined in this agreement and other monetary obligations of Tenant, including additional rent as defined in the agreement. (f) Neither Tenant's interest in the agreement nor any estate of Tenant created in the agreement will pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to the transfer. Landlord's acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, the need to obtain Landlord's consent or Landlord's right to terminate this agreement for any transfer of Tenant's interest under this agreement without that consent. 18. Notices. Any and all notices required or permitted under this agreement, unless otherwise specified in writing by the party whose address is changed, shall be mailed, certified or registered mail, or delivered, to the following addresses: LANDLORD: Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 TENANT: Brechan Enterprises, Inc. 2705 Mill Bay Road Kodiak, Alaska 99615 Any such notices shall be deemed effective on the date of mailing or delivery. 19. Costs Upon Default. In the event either party shall be in default in the performance of any of its obligations under this agreement or an action shall be brought for its enforcement, the defaulting party shall pay to the other all the expenses so incurred, including a reasonable attorney's fee. LEASE AND MATERIAL SALES AGREEMENT — Page 7 of 9 In the event either party shall without fault on its part be made a party to any litigation commenced by or against the other, then such other party shall pay all costs and reasonable attorney's fees incurred or paid by such party in connection with such litigation. 20. Rights or Remedies. Unless it is inconsistent with or contrary to any provision of this agreement, no right or remedy granted to Landlord by this agreement is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this agreement, or now or hereafter existing at law or in equity or by statute. 21. Waiver and Forbearance. Except to the extent that Landlord may have otherwise agreed in writing, no waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants under this agreement shall be deemed to be a waiver of any subsequent breach of the same or any other covenant, agreement or obligation. Nor shall any forbearance by Landlord to seek a remedy for any breach of Tenant be deemed a waiver by Landlord of its rights or remedies with respect to such breach. 22. Inspection. Landlord shall at all reasonable times during Tenant's business hours have access to the premises for the purpose of inspection. Landlord has no duty to inspect. 23. Successors in Interest. This agreement shall be binding upon and inure to the benefit of the respective heirs, successors and assigns of the parties. 24. Holding Over. In the event that the Tenant holds over at or after the end of the term, the tenancy shall be deemed a month-to-month tenancy commencing on the first day of the holdover period. 25. Signs. Tenant agrees that no signs may be installed on the premises without the written consent of Landlord. 26. Memorandum of Lease. Tenant agrees that Tenant will not record this agreement. At the request of either Landlord or Tenant, the parties shall execute a memorandum lease for recording purposes in lieu of recording this agreement, in such form as may be satisfactory to their respective attorneys. 27. Excuse for Nonperformance. Either party hereto shall be-excused from performing any or all of its obligations hereunder with respect to any repair and construction work required under the terms of this agreement for such times the performance of any such obligation is prevented or delayed by an act of God, floods, explosion, the elements, war, invasion, insurrection, riot, mob violence, sabotage, terrorist activity, action by laws or order of governmental agencies, or any other cause whether similar or dissimilar to the foregoing which is not within the reasonable control of such party. 28. Construction of Lease. This agreement shall be governed, by and construed in accordance with the laws of the State of Alaska and with KIBC 18.40 and 18.60. In the event of LEASE AND MATERIAL SALES AGREEMENT — Page 8 of 9 a conflict between the terms of this agreement and the words of an applicable statute or section of the KIBC, the terms of the statute or KIBC shall control. Words of gender used in this agreement shall mean and include any other gender, and singular shall mean and include the plural and the plural the singular, where applicable, and when the sense requires. 29. Condemnation. If the premises shall be taken or condemned for any public purpose to such an extent as to render the premises untenantable, this agreement shall, at the option of either party, cease and terminate as of the date when possession is taken. All proceeds from any taking or condemnation of the premises shall belong to and be paid to Landlord, and Tenant shall have no right to any portion of the amount that may be awarded or paid to Landlord as a result of such taking. Tenant shall be entitled to pursue any and all damages from the condemner personal to Tenant resulting from condemnation. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this day of , 2007. TENANT: BRECHAN ENTERPRISES INC. By: Its LANDLORD: THE KODIAK ISLAND BOROUGH Borough Manager, Rick Gifford ATTEST: Borough Clerk, Nova Javier LEASE AND MATERIAL SALES AGREEMENT — Page 9 of 9 LEASE AND MATERIAL SALES AGREEMENT EXHIBIT B (short term) 71. By September 1, 2007, BEI shall submit its proposed reclamation plan. This plan is subject to approval by the Assembly. This reclamation plan shall meet the minimum requirements of AS 27.19 and shall meet all other requirements as set by the Assembly. The plan must address how the process of reclamation will be phased in and how it will address areas no longer subject to extraction activities. 2. BEI shall coordinate with all appropriate regulatory agencies regarding its extraction and reclamation activities to assure regulatory compliance and the potential impact of its activities on surrounding habitat and residential areas. 3. The maximum depth of gravel extraction shall be twenty -five feet below grade (as it existed before any extraction), unless otherwise expressly agreed upon in writing by the Assembly. 4. The parties shall ,ip terate in preparing a hydrological management plan. This plan will comply with any regulations adopted under AS 41.08.035. 5. BEI shall limit its hours of operation on the premises to 7:00 a.m. to 7:00 p.m. Monday through Saturday with no work,on Sundays. f(; 6. The buffer zones as identified on the attached sketch (Exhibit A) shall be maintained by BEI and kept in a topography that blends smoothly into the surrounding area. 7. BEI shall use all prudent efforts to minimize noise level during its operations on the premises. 8. Unless modified by this document (in which case those modifications will control), BEI shall continue to comply will all of the performance standards set out in paragraph 10 of the material sales contract for the term beginning on July 1, 1989 and ending on June 30, 2002 (but which was extended for a terms expiring June 30, 2007). �� s� c..4 L ' . OF DEPARTMENT OF RESOURCES `~^^~^~~~~~ ^^�~-~^-^----- '------- -' -'-- -- -- - ---- DIVISION OF MINING, LAND AND ��` ' , . F-1 �_� Northern Region 3700 Airport Way Fairbanks, AK 99709 (907) 451-2740 El Southcentral Region 550 W 7th Ave., Suite 900C ADChO[age'AK 99501-3577 (907) 269-8552 Southeast Region 400 Willoughby, #400 P.O. Box 111020 Juneau, AK 99801 (907) 465-3400 INSTRUCTIONS FOR COMPLETING A DEVELOPMENT PLAN A'development plan is a written statement and a sketch or blueline drawing describing the proposed use and developm�nt of state land. The information contained in a development plan is needed to provide a complete review of the application and the proposed use and development, and helps to determine the terms and conditions of the authorization and the level of bonding and insurance that may be required. Most applications submitted to the Division of Mining, Land and Water must have an attached development plan. The few exceptions to this rule include applications for state land sales and some types of land use permit. The amount and type of information included in the development plan will depend on the proposed use and level of development. Insufficient information in the development plan and/or application or failure to provide a development plan may result in a delay in processing the application. If you are unsure whether your application will require a development plan, contact the regional office responsible for managing the area you are planning to use (regional office addresses and phone numbers are shown at the top of this sheet). If the application is approved, the approved development plan becomes, a part of the authorization document. Authorized activities are limited to those described in the development plan and/or authorization document. The development plan must be updated if changes to an approved project are proposed before or during the project's siting, construction, or operation; if any additional structures, buildings, or improvements are proposed; or if there is a change in activity that was not addressed during consideration of the application. Please note that these development plans or plan changes must be approved by the Division of Mining, Land and Water before any change occurs in use, construction, or activity.' Conducting activities that are not authorized by the development plan and authorization document could result in revocation and termination of the authorization and/or other appropriate legal action. I. General Guidelines for Preparinq a Development Plan For new authorizations, the development plan must show the proposed improvements and/or use areas, as well as preconstruction plans. For existing authorizations without a current development plan or if the development plan is being updated, the plan must show existing improvements and/or use areas, etc., and any known future changes. The development plan must include: • Maps: a USGS map at a scale of at least 1:63,360 showing the location of the a blueline drawing or sketch, drawn to scale (the attached di m may be used); and • Written Project description: a detailed written of the intended use and level of development planned under the authorization and an explanation of the sketch or blueline drawing. II. Land Use Permits Permanent improvements cannot be authorized by a land use permit. However, a d plan accompanying a land use permit application must describe nonpermanent structures and activities. (Nonpermanent structures are structures that can be easily and quickly taken down and removed from the aito, vvithoutanysignificmnt disturbance or damage to the area.) Several of the specific development plan items listed below will not apply to activities authorized under a land use permit; those items that do apply should be described in as much detail as possible, to enable prompt review of the application. If the proposed land use permit activity is of a mobile nature, such as a permit to move heavy equipment across state |ond, a development plan is not required; but a map showing the proposed route of travel is required. If the impact would not have a significant effect on the environment, such as a perrnit to harvest wild produce, a development plan is not required, but a map showing the location of the proposed harvest area is required. III. Narrative portion of the development plan Describe the type of activities or development planned for the site; specify if any facilities are intended for commercial use or wil be rented out and provide a description and explanation of the items shown on the sketch or blueline. Following is a list of specific information to be included in the narrative, if applicable to the proposed project: 102-DEVPL (Rev. 04/06 • Legal description. Provide a lega .6scription of the parcel, i.e. a metes and ds description, survey, lot and block, aliquot part, or other legal description. • Terrain /ground cover. Describe the existing terrain /ground cover, and proposed changes to the terrain /ground cover. • Access. Describe existing and planned access, and mode of transportation. If public access is to be restricted, define possible alternative public access routes. • Buildings and other structures. Describe each building or structure, whether permanent or temporary, including a description of the foundation as well as the building and floor construction; the date when the structure is to be constructed or placed on the parcel; the duration of use; and what activities are to occur within each structure. • Power source. Describe type and availability of power source to the site. • Waste types, waste sources, and disposal methods. List the types of waste that will be generated on -site, including solid waste, the source, and method of disposal. • Hazardous substances. Describe the types and volumes of hazardous substances present or proposed, the specific storage location, and spill plan and spill prevention methods. Describe any containment structure(s) and volume of containment structure(s), the type of lining material, and configuration of the containment structure. Provide Material Safety Data Sheets (MSDS). • Water supply. Describe the water supply and wastewater disposal method. • Parking areas and storage areas. Describe long -term and short-term parking and storage areas, and any measures that will be taken to minimize drips or spills from leaking vehicles or equipment. Describe the items to be stored in the storage areas. • Number of people using the site. State the number of people employed and working on the parcel, and describe the supervisor /staff ratio. Estimate the number of clients that will be using the site. • Maintenance and operations. Describe the long -term requirements, how they will occur and who will perform the work. Specify if any subcontractors will be involved, and explain the tasks they will perform. • Closure /reclamation plan. Provide a closure /reclamation plan, if required for the type of authorization being applied for, e.g. material sale. IV. Sketch or blueline portion of the development plan The sketch or blueline must be drawn to scale, and each item labeled in such a way that the information . contained in the drawing can be located in the narrative portion of the development plan (professional quality drafting and mechanical lettering is preferred). Following is a list of information to be shown on the drawing, if applicable: • Section, Township, and Range lines; North arrow; scale; title; and legend (attached is an acceptable format). • All property boundaries, ordinary or mean high water lines, and existing or proposed rights -of -way; major topographic features such as roads, streams, rivers, and lakes, and their geographic names. • Location and dimensions of any gravel pads, or cement foundations, buildings, and other structures and improvements, appropriately labeled. • Location of any buried or above - ground utility lines (power, water, fuel, natural gas, etc.); sewage facilities, including sewage and wastewater outfall point; underground water system; and water source (if any). • Location where any hazardous substances, including but not limited to oil, lubricants, fuel oil, gasoline, solvents, and diesel fuel, are stored. Method of storage (tank, drum, etc.). • Location of parking areas, and areas for the storage of inactive vehicles; snow storage areas; storage areas for any other items not mentioned above (drill rigs, camps, pipe, watercraft, etc.). 102 -DEVPL (Rev. 04/06) VICINITY MAP Date Prepared: Applicant's Name: STATE OF ALASKA DEPARTMENT OF NATURAL RESOURCES DIVISION OF MINING, LAND AND WATER DIAGRAM Sec. (s} Township, Range , Meridian STATE OF ALA*--KA DEPARTMENT OF NATUkAL RESOURCES DIVISION OF MINING, LAND AND WATER • E] Northern Region 3700 Airport Way Fairbanks, AK 99709 (907) 451-2740 Lii Southcentral Region 550 W 7th Ave., Suite 900C Anchorage, AK 99501-3577 (907) 269-8552 CI Southeast Region 400 Willoughby, #400 P.O. Box 111020 Juneau, AK 99801 (907) 465-3400 MATERIAL SITE RECLAMATION PLAN OR LETTER OF INTENT/ANNUAL RECLAMATION STATEMENT AS 27.19.030 — 27.19.050 Non-refundable filing fee for reclamation plan: $100 In accordance with Alaska Statute 27.19, reclamation is required of all mining operations, including sand and gravel extraction. Completion of this form will meet the law's requirements for a reclamation plan (see below for filing requirements; due date: at least 45 days before mining is proposed to begin; requires approval by the Division of Mining, Land and Water). Completion of this form will also serve as a letter of intent for operations exempt from the plan requirement (due date: before, mining begins). No approval is required for a letter of intent, but a miner who files a letter of intent must, before December 31, file an annual reclamation statement (Section 8 of this form). Check applicable box: El A.. RECLAMATION PLAN (REQUIRED if the operation will disturb five or more acres this year, OR 50,000 cubic yards, OR if the operation has a cumulative disturbed area of five or more acres) El B. RECLAMATION PLAN—VOLUNTARY (for an operation below limits shown in Box A but wanting to qualify for the statewide bonding pool) ID C. LETTER OF INTENT (less than five acres to be disturbed AND less than 50,000 cubic yards AND less than five acres unreclaimed area) NOTE: A miner who files a letter of intent is also required to file an annual reclamation statement at the end of the year. THIS RECLAMATION PLAN/LETTER OF INTENT IS FOR CALENDAR YEAR (IF YOU CHECKED EITHER BOX A OR B ABOVE AND PROPOSE A MULTI-YEAR PLAN, STATE ALL YEARS COVERED.) 1. MINER INFORMATION (IF THERE IS MORE THAN ONE MINER, ATTACH A LIST OF THE NAMES, ADDRESSES, AND TELEPHONE NUMBERS OF ALL OTHER OWNERS, OPERATORS, OR LEASEHOLDERS OF THE MINING OPERATION) NAME OF MINER WHO WILL SERVE AS AGENT FOR NOTICE PURPOSES ADDRESS (NOTIFY THE DEPARTMENT OF ANY LATER CHANGE OF ADDRESS) CITY STATE ZIP CODE TELEPHONE NAME OF LANDOWNER (IF OTHER THAN MINER) OR PUBLIC LAND MANAGEMENT AGENCY FEDERAL OR STATE CASEFILE NUMBER (IF ANY) ASSIGNED TO THE SITE 102-4018 (Rev. 04/06) 2. LEGAL DESCRIPTION OF MINING SITE LEGAL SUBDIVISION! SECTION! QUARTER-SECTION TOWNSHIP RANGE MERIDIAN 3. DESCRIPTION OF THE MINING OPERATION (IF YOU CHECKED BOX A OR B ON P. 1 OF THIS FORM AND ARE PROPOSING A MULTI-YEAR RECLAMATION PLAN, ATTACH SEPARATE SHEETS AS NEEDED SHOWING ACREAGE TO BE MINED, VOLUME TO BE MINED, AND EXISTING ACREAGE OF MINED AREA FOR EACH YEAR COVERED BY THE PLAN) a. acres Total acreage to be mined or disturbed during the year. b. cu. yds. Estimated total volume to be mined or disturbed, including overburden. c, Type of material (sand, gravel, peat, etc.). d. acres acreage of mined area (disturbed area that has not yet been reolaimed, but counting only acreage disturbed after October 15, 1991) 4. DESCRIPTION OF THE RECLAMATION OPERATION The total acreage that will be reclaimed during the year (or each year if for a multi-year reclamation plan) is: b. Provide a list of equipment (type and quantity) to be used during the reclamation operation. e. A time schedule of reclamation measures shall be included as part of the plan. The following measures must be considered in preparing and implementing the reclamation plan. Please mark those measures appropriate to your reclamation activity: O Topsoil that is not promptly redistributed to an area being reclaimed will be se and stockpiled for future use. This material will be protected from erosion and contamination by acidic or toxic materials and preserved in a [] The area wil be backfilled, graded and recontoured using strippings, ovarbunden, and topsoil to a condition that allows for the reestablishment of renewable resources on the site within a reasonable period of time It will be stabilized to a condition that will allow sufficient moisture to be retained for natural revegetation. [] Stockpiled topsoil will be spread over the reclaimed area to promote natural plant growth that can reasonably be expected to revegetate the area within five years. [] Stream channel diversions will be relocated to a stable location in the flood plain. [] Exploration trenches or pits will be backfilled. Brush piles, vegetation, topaoi|.andotherorganicsviUbe spread on the backfilled surface to inhibit erosion and promote natural revegetation. [] All buildings and structures constructed, used, or improved on land owned by the State of Alaska will be removed, dismantled, at of of the m operation. Any roado, airstrips or other facilities constructed to provide access to the mining operation shall be reclaimed (unless otherwise authorized) and included in the reclamation plan. O Peat and topsoil mine operations shall ensure a minimum of two inches of suitable growing medium Is left or replaced on the site upon completion of the reclamation activity. [] If extraction occurs within a plain, the reclamation activity bed and bank profile such that river currents will not be altered and erosion and deposition patterns will not change. NOTE: If you propose pr�pose to use reclamation measures other than those shown above, or if the private landowner or public land manager of the site requires you to use stricter reclamation measures than those shown above, attach a list of those measures to this plan. 5. ALTERNATE POST-MINING LAND USE O The minin site is public land. The land management land use plan (if any) for land use is: O The mining site is public land. As allowed by AS 27.1 I propose to reclaim it to the following post-mining land use: [] The mining site is private property. The private landowner plans to use it for the following post-mining land use: 6. ATTACHMENTS [] If the mining operation has additional owners, operators, or leaseholders not shown on p. 1 of this form, attach a list of their names, addresses, and telephone numbers. [] Attach a USGS map at a scale no smaller than 1:63,360 nity of the mining operation and the specific property to be mined. Option: If you checked Box C on the first page of this form and the mining site is adjacent to an airport or public highway, state the name of the airport or the name and milepost of the public highway. [] Attach a di ram of the mined area (this term includes the extraction site, stockpile sites, overburden disposal sites, stream diversions, settling ponds, etc.) and the mining operation as a whole (this term includes the roads you plan to build, your power lines, support facilities, etc.). Show and state the number of acres to be mined during the year. (If you checked Box A or B on the first page of this form and your plan covers more than one year, show each year's work.) Show the location corners or property boundaries of the site in relation to the reclamation work and any other areas affected by the operation. O Attach a list of the equipment (type and to be used during the reclamation activity. [] A time schedule of events must be attached that includes dates and activities related to this reclamation plan. If the site is private land not owned by the miner, attach' a signed, notarized statement,from the landowner indicating the landowner's consent to the operation. The landowner may also use the consent statement to notify the department that the landowner plans a post-mining land use incompatible with natural revegetation and therefore believes that reclamation to the standard of AS 27.19.020 is not feasible. O For those miners that are required to file an annual reclamation statement, attach photographs and/or videotapes dated and described as to location of the reclamation activity that was completed. If you propose to use reclamation measures other than those listed on this form, or if the private landowner or public land manager of the site requires you to use stricter reclamation measures, attach a list of those measures. 102-4018 (Rev. 04/06) {`Th 7. RECLAMATION BONDING (RECmnr.:ED ONLY IF YOU CHECKED BOX A or L THE FIRST PAGE OF THIS FORM) The total acreage of my mining operation that is subject to the bonding requirement for the current year is acres (add acreages stated in Section 3(a) and 3(d) of this form). The per-acre bond amount is $750/acre or a total bond amount of $ Please check the appropriate bonding method that you will apply toward this reclamation plan: o Participation in the statewide bonding pool. O Posting a corporate surety bond. o Posting a personal bond accompanied by a letter of credit, certificate of deposit, or a deposit of cash or gold. O Posting a bond or financial guarantee with another government agency that has jurisdiction over the mining operation, as allowed by a cooperative management agreement between that agency and the Division of Mining, Land and Water. O Posting a general performance bond with a state agency that meets the requirements of 11 AAC 97.400(4). The above reclamation plan/letter of intent and all attachments are correct and complete to the best of my knowledge. Signature of Miner Date AS 27.19.030 and AS 27.19.050 require a miner either to file a reclamation plan for approval or to file a letter of intent followed by an annual reclamation statement. AS 38.05.035(a) authorizes the director to decide what information is needed to process an application for the sale or use of state land and resources. This information is made a part of the state public land records and becomes public information under AS 40.25.110 and 40.25.120 (unless the information qualifies for confidentiality under AS 38.05.035(a)(9) and confidentiality is requested). Public information is open to inspection by you or any member of the public. A person who is the subject of the information may challenge its accuracy or completeness under AS 44.99.310, by giving a written description of the challenged information, the changes needed to correct it, and a name and address where the person can be reached. False statements made in an application for a benefit are punishable under AS 11.56.210. 102-4018 (Rev. 04/06) 8. ANNUAL RECLAMATION STATEMENT—REQUIRED IF YOU FILED A LETTER OF INTENT (CHECKED BOX C ON THE FIRST PAGE) FOR THIS OPERATION. DUE DATE: DECEMBER 31, . YOU MUST FILE EVEN IF THE MINING DESCRIBED IN YOUR LETTER OF INTENT DID NOT TAKE PLACE. This (year) annual reclamation statement is for: a. acres Total acreage mined. b. cu. yds. Total volume mined or disturbed, including overburden. c. acres Total acreage reclaimed. d. acres Cumulative total of unreclaimed acreage. e. Reclamation measures that were used (check appropriate measures from Section 4, DESCRIPTION OF THE RECLAMATION OPERATION, and attach list of additional or stricter measures if applicable). The above annual reclamation statement and all attachments are correct and complete to the best of my knowledge. Signature of Miner Date AS 27.19.030 and AS 27.19.050 require a miner either to file a reclamation plan for approval or to file a letter of intent followed by an annual reclamation. statement. This information is made a part of the state public land records and becomes public information under AS,40.25.110 and 40..25.120 (unless the information qualifies for confidentiality under AS 38.05.035(a)(9) and confidentiality is requested). Public information is open to inspection by you or any member of the public. A person who is the subject of the information may challenge its accuracy or completeness under AS 44.99.310, by giving a written description of the challenged information, the changes needed to correct it, and a name and address where the person can be reached. False statements made in an application for a benefit are punishable,under AS 11.56.210. 102-4018 (Rev. 04106) Regulatory Division POA-2007-310-9 Mr. Duane Dvorak Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Dear Mr. Dvorak: DEPARTMENT OF THE ARMY U.S. ARMY ENGINEER DISTRICT, ALASKA REGULATORY DIVISION P.O. BOX 6898 ELMENDORF AFB, ALASKA 99506.0898 This is in response to your request for a wetland determination for a parcel of land further described as the Kodiak Islands Boroughs Tract B gravel pie. The site is located within section 2, T. 29 S., R. 21 W., Seward Meridian; Latitude 57.699° N., Longitude 152.604° W., south of Kodiak, Alaska. Based on our review of the information you furnished and available to us, we have preliminarily determined that the above property may contain wetlands under Corps regulatory jurisdiction. Therefore, Department of the Army (DA) authorization may be required if you propose to place dredged and/or fill material into waters of the U.S., including wetlands. Section 404 of the Clean Water Act requires that a DA permit be obtained for the placement or discharge of dredged and/or fill material into waters of the U.S., including wetlands (33 U.S.C. 1344). The Corps defines wetlands as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Nothing in this letter excuses you from compliance with other Federal, State, or local statutes, ordinances, or regulations. You may contact me at (907)-153-2712, toll free from within Alaska at (800) 478-2712, by email at serena.e.sweet@poa02.usace.army.mil or by mail at the address above, ATTN: CEPOA-RD-E, if you have questions. For additional information about our Regulatory Program, visit our web site at www.poa.usace.army.mil/reg. Sincerely, Serena Sweet Regulatory Specialist Enclosures o, • UNI' STATES 9 o DEPARTMENT OF THE INTERIOR GEOLOGICAL SURVEY 152 °40' ,621000m. E. 57 °45' R. 21W.r R. 35' I (KO MK, 0 -2) 6393091m.N. Lt��T /� :��IJl got A. raiw p7/04,„f.. dirfr 6114wA.•1-Ar- r T.29S 7.30 S. -3 iD —q sW+ l l av-uar 26Df1 Duane Dvorak From: Alan Schmitt [alan@JESMKOD.C6M] Sent: Tuesday, May 22, 2007 10:58 AM To: Duane Dvorak Cc: Bud Cassidy; Rick Gifford Subject: Bells Flats Gravel Attachments: devplan_merged.pdf; recIplan_merged.pdf devplan merged.pdf recIplaninerged.pdf (163 KB) (146 KB) Good morning Duane, I am working on the.. lease. One of the staff recommendations adopted by P&Z was that a reclamation plan will need to be developed during the first 5 years. Not knowing much about what that might mean and wanting the lease to be clear, I researched the issue a bit. I see that AS 27.19 covers the issue of reclamation plans and that DNR actually provides a form for them. (Actually, per AS 27.19.010 (b) and AS 27.19.030(a) it looks like a reclamation plan may have been a requirement since 1990 - but there may be a "grandfather" issue.) In any event, I am inclined to refer to AS 27.19 in the lease but would like your views. Also, if you have not already done so, please look at the state form, attached. While on the topic of using state forms, I also noted that the state has one, for a development plan. It is also attached. The 1989 versions of the material sales agreements, at paragraph 9, mentioned a development plan but it looks like the "plan" merely consisted of the sketch (one of which is marked KIBS 115474 an another is marked KIBS 115483 in the lower right hand corner). To me, it seems like the state form requires much more information which might be appropriate for this case. So, please let me know your thoughts on requiring BEI to submit a new development plan, using the state form, within say 3 to 6 months. Alan L. Schmitt Jamin Schmitt St. John, P.C. NOTICE: This electronic message transmission contains information belonging to Jamin Schmitt St.John. It is solely for the recipient(s) named above and it may be privileged or confidential. JAMIN SCHMITT ST. JOHN EXPRESSLY PRESERVES AND ASSERTS ALL PRIVILEGES AND IMMUNITIES APPLICABLE TO THIS TRANSMISSION. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of this communication is STRICTLY PROHIBITED. If you have received this electronic transmission in error, please notify me by telephone at (907) 486-6024 or by electronic mail (alan@jesmkod.com) immediately. Thank you. ll B Tract Lease Comparison of Conditions, Specif . •'r-on and Issues in he Watkins Motion, Staff Recommendations, and Brechan Application Letters Conditions, Specifications and Issues Watkins Motion Staff Recommendation Brechan Application letters Brechan 3/1/07 letter provisions Not included. Make all specifications in 3/1/07 Brechan application letter binding in lease. In 3/1/07 application letter: Sole operator all 4 tracts 1. Operation 7:00 AM -7:00 PM, No work on Sundays 2. Trying to reduce noise - will move crusher to far side of Tract B -1. No time for move specified. 3. Will comply with existing buffer zones. Term of lease --=471sERs7 5— 6filik. Z Not included in staff recommendation but a 5 year lease is indicated in the Staff Comments. Three additional terms of 5 years each on present lease at discretion of ? ?. Renewal options One addition 1 term of 3 years at discretion of KIB Assembly. Two 5 year extensions at discretion of KIB Assembly. See above Right of early entry Yes, period of 3 months If no agreement reached in 3 months operations will cease and the demobilization requirements of existing lease will be in effect. Yes, period of 6 months. If no agreement reached in 6 months operations will cease on Dec 31, 2007 and the demobilization requirements of existing lease will be in effect. Not included. Reclamation plan Rec. plan to be developed prior to leasing, remediation of tract B -4a to begin in first 6 months of lease and completed in first year, remaining tracts remediate prior to end of lease. Reclamation to take place as areas are no longer used for active extraction. Reclamation plan to be developed during initial 5 years of lease, reclamation to be done when resource activities are concluded. Reclamation should be phased in over time for areas no longer subject to active extraction. Not included. P &Z review of final lease agreement The negotiated lease be brought before P &Z prior to final Assembly approval. Not included. Not included. Coordination with regulatory agencies Lessee is required to coordinate with appropriate regulatory agencies to insure compliance with regulations affecting extraction use and potential impact on surrounding habituate and residential areas. Lessee is required to coordinate with appropriate regulatory agencies to insure compliance with regulations affecting extraction use and potential impact on surrounding habituate and residential areas. Not included. Extraction depth 25 ft below grade. 25 feet below grade. Not included. Hydrologic plan Hydrologic management plan within 8 months of lease start. Hydrologic management plan required - no time specified. Not included. B-4a tract water table issues Not surplus in strict sense, access for remediation and maintenance of by- pass stream. Reserve an area for community well on Tract B-4a. Not included. Operation hours Days of operation 7:00 AM to 7:00 PM. No operation on Sundays. Adopt Brechan application letter of 3/1/07; 7:00 AM to 7:00 PM. No operation on Sundays. 7:00AM to 7:00 PM. No operation on Sundays. Noise All Prudent efforts shall be used to minimize noise level during operations including the relocation of the crusher to the far side of Track B- 1. No time for move specified. Not included. Trying to reduce noise - will move crusher to far side of Tract B-1. No time for move specified. Shallow water safety margin on ponds, 15 ft wide tapered from shore to 4 ft depth at drop-off Not included. Not included. Not included. Fisheries issue. Maintaining separation of ponds allows for maximum options, see F&G letter. Not included. Not included. Not included. Road service $$ for haul road maintenance. Present lease provides for $10,000/yr per lease (two tracts), $20,000/yr total (four tracts). Not included. Not included. Not included. Residential lot disposal option. Not included. Not included. Not included. Consider increase width of buffer zone to 200 feet on west end of Tract 1. Grade buffer zones for residential use at end of lease. Sale or transfer of lease. Not included. Not included. Not included. Consider the issue of the sale or transfer of the lease in the event Brechan is sold, merges with or is acquired by another company. Consider the issue of the sale or transfer of the lease in the event Brechan is sold, merges with or is acquired by another company. B Tract Lease Comparison of Conditions, Specifications and Issues in the Watkins Motion, Staff Recommendations, and Brechan Application Letters Conditions, Specifications and Issues oton t ' r i Staff Recommendation Brechan Application letters Brechan 3/1/07 letter provisions Not included. Make all specifications in 3/1/07 Brechan application letter binding in lease. In 3/1/07 application letter: Sole operator all 4 tracts 1. Operation 7:00 AM-7:00 PM, No work on Sundays 2. Trying to reduce noise - will move crusher to far side of Tract B-1. No time for move specified. 3. Will comply with existing buffer zones. Term of lease 3 years. aZ -$rl . Not included in staff recommendation but a 5 year lease is indicated in the Staff Comments. Three additional terms of 5 years each on present lease at discretion of ??. Renewal options One additional term o years at /' discretion of KIB Assembly. Two 5 year extensions at discretion of KIB Assembly. See above Right of early entry Yes, period of 3 months If no agreement reached in 3 months operations will cease and the demobilization requirements of existing lease will be in effect. Yes, period of 6 months. If no agreement reached in 6 months operations will cease on Dec 31, 2007 and the demobilization requirements of existing lease will be in effect. Not included. Reclamation plan Rec. plan to be developed prior to Reclamation plan to be developed during initial 5 years of lease, reclamation to be done when resource activities are concluded. Reclamation should be phased in over time for areas no longer subject to active extraction. Not included. leasing, remecTgoi-1 of tract B-4a to begin in first 6 months of lease and cempteted in first year, remaining tracts reme&te to end of lease. Reclamation to take place as areas are no longer used for active extraction. P&Z review of final lease agreement The negotiated lease be brought before P&Z prior to final Assembly approval. Not included. Not included. Coordination with regulatory agencies Lessee is required to coordinate with appropriate regulatory agencies to insure compliance with regulations affecting extraction use and potential impact on surrounding habituate and residential areas. Lessee is required to coordinate with appropriate regulatory agencies to insure compliance with regulations affecting extraction use and potential impact on surrounding habituate and residential areas. Not included. Extraction depth 25 ft below grade. 25 feet below grade. Not included. Hydrologic plan Hydrologic management plan within 8 months of lease start. Hydrologic management plan required - no time specified. Not included. B-4a tract water table issues Not surplus in strict sense, access for remediation and maintenance of by- pass stream. Reserve an area for community well on Tract B-4a. Not included. Operation hours Days of operation 7:00 AM to 7:00 PM. No operation on Sundays. Adopt Brechan application letter of 3/1/07; 7:00 AM to 7:00 PM. No operation on Sundays. 7:00AM to 7:00 PM. No operation on Sundays. Noise All Prudent efforts shall be used to minimize noise level during operations including the relocation of the crusher to the far side of Track B- 1. No time for move specified. Not included. Trying to reduce noise - will move crusher to far side of Tract B-1. No time for move specified. Shallow water safety margin on ponds, 15 ft wide tapered from shore to 4 ft depth at drop-off Not included. Not included. Not included. Fisheries issue. Maintaining separation of ponds allows for maximum options, see F&G letter. Not included. Not included. Not included. Road service $$ for haul road maintenance. Present lease provides for $10,000/yr per lease (two tracts), $20,000/yr total (four tracts). Not included. Not included. Not included. Residential lot disposal option. Not included. Not included. Not included. Consider increase width of buffer zone to 200 feet on west end of Tract 1. Grade buffer zones for residential use at end of lease. Sale or transfer of lease. Not included. Not included. Not included. Consider the issue of the sale or transfer of the lease in the event Brechan is sold, merges with or is acquired by another company. Consider the issue of the sale or transfer of the lease in the event Brechan is sold, merges with or is acquired by another company. ITEM NO. Kodiak Island Borough Assembly AGENDA STATEMENT Meeting of: June 7, 2007 ITEM TITLE: Case 07-021. A disposal of 84.38 acres of Borough Land by lease for fair market value. SUMMARY STATEMENT: The KIB Planning and Zoning Commission approved the above referenced disposal of Borough land for fair market value after a public hearing held on April 18, 2007. In accordance with KIBC Title 18, the Kodiak Island •Borough Assembly is the final authority with regard to requests to dispose of interest in borough land as follows: Kodiak Island Borough Code Section 18.20.030 states: 18.20.030 Review by planning commission—Assembly approval. Except for disposal required by law: A. Each disposal of borough land is subject to review by the planning commission before submission to the assembly. The commission by resolution shall make a recommendation to the assembly regarding the proposed land disposal. B. Borough land disposal that are not subject to approval by ordinance are subject to approval by assembly resolution. The resolution shall specify the terms and conditions upon which the disposal will be offered. (Emphasis added) Attached is a copy of the Planning and Zoning Commission Recommendation including a hearing decision letter, applicable minutes of the April 18, 2007 Regular P&Z Commission Meeting, and the Staff report for Planning & Zoning Commission Case No. 07-021. FISCAL NOTES [X] N/A Expenditure Account Required $0.00 General Fund N/A APPROVAL FOR AGENDA: Manager: Recommended motion: Move to approve Resolution No. Introduced by: Requested by: Drafted by: Introduced: Adopted: KODIAK ISLAND BOROUGH RESOLUTION NO. 2007- Manager Gifford Manager Gifford CDD Staff 6/_/2007 6/ /2007 A RESOLUTION OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH DECLARING SURPLUS TO BOROUGH NEED AN 84.38 ACRE PORTION OF BOROUGH LAND, DESCRIBED AS TRACTS B1 , B2, B3 AND 134-A, BELLS FLATS ALASKA SUBDIVISION, AND AUTHORIZING THE BOROUGH MANAGER TO NEGOTIATE DIRECTLY WITH THE PETITIONERS FOR A DISPOSAL OF BOROUGH LAND BY LEASE FOR FAIR MARKET VALUE. WHEREAS, KIB Code 18.20.120 allows the Borough Assembly to authorize the Borough Manager to negotiate directly with parties requesting a disposal of interest in Borough land; and WHEREAS, KIB Code 18.20.060 allows citizens to apply for a disposal of interest in Borough land; and WHEREAS, KII3 Code 18.20.090 allows citizens to bid for disposal of Borough land subject to a development plan; and WHEREAS, the Planning and Zoning Commission, after holding a public hearing on the request, determined by resolution that Tracts BI, 132, B3 and B4-A are surplus to borough need and recommended a disposal by lease for fair market value subject to certain stipulations that are recommended that the Assembly include in the proposed lease agreement to meet certain planning and community objectives; NOW, THEREFORE, BE IT RESOLVED BY THE KODIAK ISLAND BOROUGH ASSEMBLY THAT: Section 1: That a 84.38 acre portion of borough land described as Tracts Bl, B2, B3 and B4-A, Bells Flats Alaska Subdivision are hereby declared surplus to the borough's need and authorized for disposal to the petitioner Brechan Enterprises, Inc., by lease for full and true market value, subject to the stipulations enumerated in Section 3' below which relate to the stated purpose of the disposal by lease for the purpose of resource extraction. Section 2: The Assembly, in accordance with KIBC Title 18, hereby authorizes the Borough Manager to negotiate with the petitioners Brechan Enterprises, Inc., subject to the stipulations contained in Section 3, below, and other relevant provisions of KIBC Title 18. Page 1 of 3 Section 3: The Assembly hereby affirms and restates the stipulations that were recommended by the Planning & Zoning Commission in its recommendation to the Assembly: 1. A reclamation plan, subject to approval by the Assembly, shall be developed in the initial five (5) year lease period as part of this disposal to provide for the reclamation of the lease area at the time resource extraction activities are to be concluded. The . process of reclamation should be phased in over time for areas no longer subject to active extraction activities. 2. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 3. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a maximum extraction depth subject to Assembly approval through lease negotiation. 4. A. hydrologic plan be developed for this site and be revisited on a regular basis through the terms of the lease. 5. The lease shall be for a period of five (5) years with two three (3) year renewals at the discretion of the Assembly. 6. The Assembly may permit a "temporary lease" of the lease area, under the provisions of the existing lease agreement, for a period not to exceed six months from the normal expiration of that agreement on June 30, 2007, in order to allow for the full negotiation of a successor lease agreement. Should a lease agreement not be approved by the Assembly after this time, extraction operations will cease after December 31, 2007 and the demobilization requirements of the existing lease agreement for the site will be in effect at that time. 7. Hours of operation (per Brechan Enterprises, Inc. letter March 1, 2007) shall be lam to 7pm Monday through Saturday, with no work on Sundays. 8. The buffer zones laid out in the Brechan letter dated March 1, 2007, shall be maintained and kept in a topography that blends smoothly into the surrounding area. 9. All prudent efforts shall be used to minimize the noise level during operations. Page 2 of 3 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS SEVENTH DAY OF JUNE, 2007. ATTEST: KODIAK ISLAND BOROUGH Jerome. Selby, Borough Mayor Nova Javier, CMC, Borough Clerk Kodiak Island Borough, Alaska Resolution No. 2007- Page 3 of 3 KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION REGULAR MEETING APRIL 18, 2007 CONTINUED ON MAY 7, 2007 MINUTES CALL TO ORDER The continued regular meeting of the Planning and Zoning Commission was called to order at 6:10 p.m. by CHAIR KING on May 7, 2007 in the Borough Assembly Chambers. ROLL CALL Commissioners David King — Chair Gary Carver Brent Watkins Casey Janz Bill Kersch Gary Juenger Vacant Present X X X X X X Excused Absent Others Present Duane Dvorak, Acting Director Community Development Dept. Sheila Smith, Secretary Community Development Dept. A quorum was established. COMMISSIONER CARVER asked the commission to excuse him from this case due to a possible conflict of interest. The commission excused COMMISSIONER CARVER. CHAIR KING stated there have been comments that he has a conflict on interest. KING said he does not work for Brechan and hasn't been promised any offer of employment. He said if the commission feels he should step down, then he will. The commission does not feel there is a conflict of interest: therefore, he should not be excused. PUBLIC HEARINGS A. Case 07-021. Request for a Title 18 Land Disposal, according to KIBC 18.20, 18.40, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) Dvorak reported a letter was distributed from ADF&G that was added to the packet, and the borough attorney was consulted on this case. Dvorak reviewed some codes with the commission. During commission's discussion information was requested from Brechan. Mike Martin answered the commission's questions. Jim Graham spoke regarding the process of opening new pits. COMMISSIONER WATKINS MOVED TO AMEND stipulation 6 to read "The lease shall be for a period of 5. years with two 3 year renewals at the discretion of the Assembly." COMMISSIONER CASEY JANZ SECONDED the motion, and it CARRIED 5-0. May 7, 2007 P & Z Commission Meeting Minutes Page 1 of 4 Discussion of stipulation 1. COMMISSIONER KERSCH MOVED TO AMEND stipulation 1 to use staff's recommended stipulation 3. COMMISSIONER JUENGER SECONDED the motion, and it CARRIED 5-0. Discussion of stipulation 7. COMMISSIONER JUENGER MOVED TO ADOPT staff's recommended stipulation 7 striking the words "early right of entry" and substituting "temporary lease" with the rest of the requirement remaining the same. COMMISSIONER WATKINS SECONDED the motion, and it CARRIED 5-0. Discussion of stipulation 2.. COMMISSIONER CASEY JANZ MOVED to strike stipulation 2. The motion was SECONDED by COMMISSIONER JUENGER, and it CARRIED 5-0. Discussion of stipulation 3. COMMISSIONER JUENGER MOVED TO ACCEPT stipulation 3 on the motion before us. The motion was SECONDED by COMMISSIONER KERSCH. Discussion of stipulation 5. Chris Lynch stated there are other agencies available to do hydrological studies. COMMISSIONER WATKINS MOVED TO AMEND stipulation 5 read "A hydrologic plan be developed for this site and be revisited on a regular basis through the terms of the lease." The motion was SECONDED by COMMISSIONER CASEY JANZ, and it CARRIED 5-0. Discussion on stipulation 8. COMMISSIONER WATKINS MOVED to strike stipulation 8. The motion was SECONDED by COMMISSIONER KERSCH, and it CARRIED 5-0. Discussion of stipulation 11. Diane (inaudible and didn't sign in) speaking against moving the crusher to the farthest end. Mike Martin (inaudible). COMMISSIONER WATKINS MOVED TO AMEND stipulation 11 to read "All prudent efforts shall be used to minimize the noise level during operations. COMMISSIONER JANZ SECONDED the motion, and it CARRIED 5-0. Amended Main Motion from, the April le meeting NOW, THEREFORE, BE IT. RESOLVED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION THAT: Section 1: The Kodiak Island Borough Planning & Zoning Commission, in accordance with Title 18 of the Kodiak Island Borough Code, recommends the approval of a lease disposal by the Kodiak Island Borough Assembly, for fair market value of approximately 84:4 acres comprising of Tracts B-1, B-2, B-3, and B-4A Bells Flats Subdivision subject to certain stipulations. May 7, 2007 P & Z Commission Meeting Minutes Page 2 of 4 Section 2: Stipulations 1. A reclamation plan, subject to approval by the Assembly, shall be developed in the initial five (5) year lease period as part of this disposal to provide for the reclamation of the lease area at the time resource extraction activities are to be concluded. The process of reclamation should be phased in over time for areas no longer subject to active extraction activities. 2. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 3. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a maximum extraction depth subject to Assembly approval through lease negotiation. 4. A hydrologic plan be developed for this site and be revisited on a regular basis through the terms of the lease. 5. The lease shall be for a period of five (5) years with two three (3) year renewals at the discretion of the Assembly. 6. The Assembly may permit a "temporary lease" of the lease area, under the provisions of the existing lease agreement, for a period not to exceed six months from the normal expiration of that agreement on June 30, 2007, in order to allow for the full negotiation of a successor lease agreement. Should a lease agreement not be approved by the Assembly after this time, extraction operations will cease after December 31, 2007 and the demobilization requirements of the existing lease agreement for the site will be in effect at that time. 7. Hours of operation (per Brechan Enterprises, Inc. letter March 1, 2007) shall be 7am to 7pm Monday through Saturday, with no work on Sundays. 8. The buffer zones laid out in the Brechan letter dated March 1, 2007, shall be maintained and kept in a topography that blends smoothly into the surrounding area. 9. All prudent efforts shall be used to minimize the noise level during operations. The question was called on the amended motion, and it CARRIED 5-0. OLD BUSINESS There was no old business. NEW BUSINESS A) Code Revision — Amend Business Zoning District to allow Bed & Breakfast Use After a brief discussion, it was the consensus of the commission not to pursue the Bed & Breakfast revisions. COMMUNICATIONS A) Letter of Courtesy & Advisory to Lesnoi, Inc. dated March 20, 2007 Dvorak explained they had received a report of a squatter living on Lesnoi land at Mayflower Beach, so this Letter of Courtesy & Advisory was sent to Lesnoi making them aware of it. May 7, 2007 P & Z Commission Meeting Minutes Page 3 of 4 Mr. Mike Martin 2705 Mill Bay Road Kodiak, AK 99615 Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 May 15, 2007 Re: Case 07-021. Request a Title 18 Land Disposal, according to KIBC 18.20, 18.40, and 18.60, to consider a request to lease borough land, for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40; and a request for material sale per KIBC 18.60.) Dear Mr. Martin: The Kodiak Island Borough Planning and Zoning Commission at their April 18, 2007 approved the above referenced disposal of Borough land with a recommendation to the Assembly. Findings of fact in support of this decision is as follows: 1. The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by the Womens Bay residents through the public hearing process. 2. The need for continued hydrologic management and reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the site; Brechan Enterprises. 3 The, site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens Bay Comprehensive Plan is intended to be for recreational use or residential development. The commission's recommendation and other packet materials will be forwarded to the Assembly. Please contact this office for information on tentative scheduling arrangements and progress reports. The commission's recommendation includes the following stipulations: 1. A reclamation plan, subject to approval by the Assembly, shall be developed in the five (5) year lease period as part of this disposal to provide for the reclamation of the lease area at the time resource extraction activities are to be concluded. The process of reclamation should be phased in over time for areas no longer subject to active extraction activities. 2. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 3 The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a maximum extraction depth subject to Assembly approval through lease negotiation. 4. A hydrologic plan be developed for this site and be revisited on a regular basis through the terms of the lease. 5. The lease shall be for a period of five (5) years with two three (3) year renewals at the discretion of the Assembly. 6. The Assembly may permit a "temporary lease" of the lease area, under the provisions of the existing lease agreement, for a period not to exceed six months from the normal expiration of that agreement on June 30, 2007, in order to allow for the full negotiation of a successor lease agreement. Should a lease agreement not be approved by the Assembly after this time, extraction operations will cease after December 31, 2007 and the demobilization requirements of the existing lease agreement for the site will be in effect at that time. 7. Hours of operation (per Brechan Enterprises, Inc. letter March 1, 2007) shall be lam to 7pm Monday through Saturday, with no work on Sundays. 8. The buffer zones laid out in the Brechan letter dated March 1, 2007, shall be maintained and kept in a topography that blends smoothly into the surrounding area. 9. All prudent efforts shall be used to minimize the noise level during operations. Please determm on. feel free to contact me at 486-9363 if you should have any questions regarding the Sinc or , Acting Director Community Development Department Page 2 of 2 CONDITIONS OF APPROVAL 1. Prior to final plat approval, prepare a drainage plan for review and approval by the City of Kodiak Building Department and obtain a new drainage/grading permit if required. FINDINGS OF FACT 1. Subject to conditions of approval, this plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat provides a subdivision of land that is consistent with adopted Borough plans for this area. The question was called, and it' CARRIED, 6-0. COMMISSIONER CARVER MOVED TO GRANT preliminary approval for the vacation of a 20 foot wide electrical utility easement per KIBC 16.60, to be replaced with a new 20 foot wide utility easement to coincide with the new Lot line configuration granted preliminary approval for Case S07-012, subject to the following conditions of approval, and to adopt the findings contained in the staff report dated April 11, 2007 as "Findings of Fact" for this case. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Public hearing closed: Regular session opened: CONDITIONS OF APPROVAL 1. Prior to final plat approval the plat shall be submitted to the Kodiak Island Borough Assembly and the City of Kodiak Council for approval of the easement vacation. FINDINGS OF FACT 1. The easement to be vacated will be replaced by a comparable utility easement. 2. Kodiak Electric Association was the only utility that responded to the vacation request and KEA indicated No Objection to the requested vacation. The question was called, and it. CARRIED 6-0. B) Case 07-021. Request a Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Dvorak reported the request involves 4 Tracts of land, approximately 80 acres for disposal. These, parcels have previously been disposed for a 25 year period that is due to expire June 30, 2007. That disposal was executed by lease, and was for 5 years and was renewed or extended in 5 year increments. Originally, the leases were to 2—diffefEti companithat merged-Topther into one entity. The petitioners submitted information indicating their desire to request a new disposal by lease. They have met with staff and discussed the Womens Bay Comp Plan, which is April 18, 2007 P & Z Commission Meeting Minutes Page 4 of 8 what staff refers to when looking at these land disposal requests. Staff hasn't found any indicators that the Borough has any use for this property for municipal purposes. There is indication that eventually these properties will be disposed of for other purposes at such time as the resource extraction activity is either terminated or abandoned. From staffs perspective most of the concerns have been mentioned, if not addressed in the staff report. Staff did recommend a disposal and a number of stipulations which would address concerns that have been raised in the process. In addition to the material staff provided, the petitioners have provided a survey they prepared last fall showing the existing conditions basically at the close of the last construction season. COMMISSIONER CARVER also provided an alternate recommendation for a partial disposal. Staff doesn't think a partial disposal would be the best recommendation. In addition, there was a hydrological analysis provided in the packet. COMMISSIONER CARVER also provided a partial reclamation plan, an extraction analysis, and a quantity analysis of material. Staff hasn't had a chance to look at this. Dvorak stated that COMMISSIONER WATKINS has provided a substitute resolution with alternate stipulations, and copies have been provided to the public and commissioners. The commission had a discussion. COMMISSIONER WATKINS MOVED. TO ADOPT the following resolution containing a recommendation to the Borough Assembly regarding Land Disposal reviewed by the Commission Case 07-021. A resolution of the Kodiak Borough Planning & Zoning Commission, recommending a disposal by lease for fair market value to Brechan Enterprises Borough land known as Tracts B-1, B-2, B- 3 for the purposes of gravel extraction and Tract B-4A 'for the purposes of maintaining the by- pass stream and remediation of Tract B-4A. Now therefore, be it resolved by the Kodiak Island Borough Planning &Zoning Commission that: Section 1: The KIB Planning & Zoning Commission, in accordance with Title 18 of the KIB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B-1, B-2, B-3, and BO4A Bells Flats Subdivision subject to certain stipulations. Section 2: Stipulations 1. A reclamation plan, subject to the approval of the P&Z Commission and the Borough Assembly, be developed prior to leasing these tracts and that remediation of Tract B-4A begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining Tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2. The negotiated' lease be brought before the P&Z Commission prior to its final approval by the Assembly. 3. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affeetiiig -the-extraction-use-and-the-potential-llnpaet-of-tlia - ev let7.4 • rwoll•r. tcm .a• Istovimiers residential areas. April 18, 2007 P & Z Commission Meeting Minutes Page 5 of 8 4. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a Maximum extraction depth subject. to Assembly approval through lease negotiation process. 5. The lessee shall develop a hydrologic management plan for the site within 8 months of lease start. 6. The lease shall be for a period of 3 years with an option to renew at the discretion of the Assembly, not the lessee, for one additional 3 year lease. 7. The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement, for a period not to exceed 3 months from the normal expiration of that agreement, in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction operations will cease, the demobilization requirements of the existing lease will be in affect. 8. As Tract BO4A has a direct impact on the local residential water table is is not surplus in the strict sense of the, word and access shall be for remediation and bypass stream maintenance. 9. Hours of operation (per Brechan Enterprises letter dated March 1, 2007) shall be 7 am to 7 pm, Monday through Saturday, with no work on Sundays. 10. The buffer zones laid out in the Brechan letter dated March 1, 2007 shall be maintained and kept in a topography that blends smoothly into the surrounding area. 11. All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of Tract B-1. Section 3 Findings 1. The proposed lease recommendation, subject to the stipulations, gives due, deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by the Womens Bay residents through the public hearing process. 2. The need for continued hydrologic management and reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the. site, Brechan Enterprises. 3. The site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens' Bay Comprehensive Plan is intended to be for recreational use or 'residential development. ADOPTED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION, THIS EITHTEENTH DAY OF APRIL, 2007. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Mike Martin spoke opposing P&Z's motion. Nick Troxell spoke in favor of the request. April 18, 2007 P & Z Commission Meeting Minutes Page 6 of 8 Sandra Perry asked if any of the commissioners seen this resolution before tonight, have they had a chance to study or look at it, and who prepared it? COMMISSIONER WATKINS stated no one else has seen it before tonight, and he was the one who wrote it. Sulua Stager spoke opposing the request and would rather have a park. John Sessom from Brechan is not happy with the commission. Chris Lynch is opposed to the P &Z resolution. John Miller spoke opposing the P &Z resolution. Howard Weston attested to high quality Brechan material. Don Lawhead spoke opposing the P &Z motion. Judy Kidder spoke in favor of the request. Bob Hales supports the request. Dave Froehlich spoke in support of the request. George Kontra spoke in support of the request. Rusty Pruitt spoke in support of the request. Mike Milligan spoke in support of the request. Jim Towk spoke in support of the request. Kevin Arndt phoned in to state this pit should be utilized to its fullest which could possibly be 12 more years. Tim Booch spoke in support of the request, but stated we need a clear reclamation plan. He also commended COMMISSIONER WATKINS and the P &Z. Lorne White spoke in support of the request. Joe D'Elia stated the Borough should hire a consultant to do a hydrology study. He would also like the Borough to fund the service district to or have Brechan apply calcium chloride or water to the road surface during dry spells to control the dust. Lisa Booch stated we need a reclamation plan that they will talk to us about and need to work. together. Don Mather spoke in support of the request. Tess Dietrich is confused about the whole process. CHAIR KING called a 10 minutes recess. CHAIR KING called the meeting to order. Marie Rice stated a hydrology study is needed. Dave Heauman spoke in favor of the lease, but a hydrology study and a good reclamation plan is needed. April 18, 2007 P & Z Commission Meeting Minutes Page 7 of 8 Josh (inaudible) feels we need to stick to staffs motion. Public hearing closed: Regular session opened: A discussion between Commissioners. CHAIR KING called a 5 minute recess. CHAIR KING called the meeting to order. COMMISSIONER CARVER MOVED TO TABLE this present motion until a special meeting on May 2nd. COMMISSIONER KERSCH SECONED the motion. The question was called, and it FAILED 6-0. COMMISSIONER WATKINS MOVED TO CONTINUE this meeting on May 2, 2007 at 7:30 p.m. in the Assembly Chambers. COMMISSIONER JANZ SECONDED the motion, and it CARRIED 6-0. CHAIR KING ADJOURNED the meeting at 10:05 p.m. CHAIR KING re-opened the meeting at 10:10 p.m. COMMISSIONER WATKINS MOVED TO AMEND the motion for the continuation of the meeting to change the date and time to May 7th at 6:00 p.m. in the KIB Assembly Chambers. COMMISSIONER CARVER SECONDED the motion, and it CARRIED 6-0. ADJOURNMENT COMMISSIONER CARVER MOVED TO ADJOURN. The motion was SECONDED by COMMISSIONER WATKINS, and it CARRIED by unanimous voice vote. CHAIR KING ADJOURNED the regular meeting at 10:12 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By: David King, Chair ATTEST By: Sheila Smith, Secretary Community Development Department DATE APPROVED: May 16, 2007 April 18, 2007 P & Z Commission Meeting Minutes Page 8 of 8 Apr la 07.09:08a And Bernie Finke 9O748 k5 To: Planning & Zoning From: Andy Finke 522 Leta St. Kodiak, AK p.1 In regards to the issue of the Bells Flats grave] pits. I feel that until the useable gravel is removed and an alternate site is developed that the land use stays the same. I currently own .a home about l 800 feet from the gravel pits. Other than once about 5 years ago when there was a silt issue I have no complaints with the location of the gravel pits. I have not seen the silt problem again so I guess the problem was corrected. I think that we should start to think about the land use after the gravel is exhausted. I think it is out of the way for a park. But it would make a good fishing wildlife habitat area. Also to the best of my knowledge the royalties from the gravel is a large source of the road service district budget. I believe that keeping a source of income is much better than raising my property taxes to pay for services. I can be contacted at 487-2885 or 539-1957 if you have any questions for me. .„..., ' '..., i ,i,•••• ,, 47; ir,,,'• ;It ,•, :,,• APR 18 2007 ,..... ,' • CI...IMMUNITY DEVELOPMENT DEW' „ 'VIB. ----Original Message From: Len Schwarz (mailto:len_schwarz@fishgame.state.ak.us) Sent: Monday, April 30, 2007 1:16 PM. To: Gary Carver Cc: Donn A Tracy; Duane' Dvorak; Ed Weiss Subject: Bells.Flats Gravel Ponds and Fish habitat. Dear Gary, thanks for dropping by last week to.talk about the Bells Flats gravel ponds and their potential to provide for fish habitat and production.- Donn and I went out and visited' the gravel ponds on April 25.. Several possibilities for fisheries enhancement come to mind. 1) The department' has programs in place which allOws us to stock landlocked ponds and lakes on the road system with rainbow trout and coho. We currently stock over 20 lakes. The main criteriafor stocking are that anglers can access these lakes and they can produce catchable fish. 2) We also stock coho smolt, which are intended to migrate to sea and return as adults.. Again, access for anglers to fish for the returning adults is a prime criterion for determining if stocking can occur. The existing'gravel ponds have some potential to provide rearing.habitat for coho fingerlings, or act -as an imprinting area for presmolt. A permit from the department to enhance an anadramous return of coho to Russian River would also be carefully reviewed by ... geneticists, pathologists, and fisheries managers to ensure that existing returns and fisheries Were not adversely impacted or complicated. In the 'case of the Russian River, anadramous enhancement could be considered, and not denied out of hand,.because the genetic integrity of the Russian. Rivpr.coho has already been compromised by past releases of coho from stocks of other origin before stringent genetic criteria were established for stocking projects. 3) The natural springs which are occurring between the Russian River and the ponds are an attractive site to install and operate a hatchery raceway. Fish (king, coho, or rainbow/steelhead) raised in the raceway could be released along the Kodiak Road system, as well as in Russian Creek. River channels in the Russian River drainage are dynamic.and constantly changing in response to floods and other natural conditions. Human.development can also influence the physical character of the water course. The potential listed above address the conditions as they now exist and do, not consider, other possible future developments, such as the Russian River entering and leaving the gravel ponds We understand that the Kodiak Island Borough leases these lands for gravel extraction and is currently considering the specifics of a new lease. If at the end of their process, the Borough identifies a need or desire to develop fishery enhancement opportunities or provide for fish habitat, please contact us and we will assist you as our expertise allows. Designing the contours and depth profiles of ponds for fish production, '�r engineering raceway facilities, goes beyond the expertise of the Kodiak area office. However, I am confident that headquarters staff within the Department- wi .e a. • • 0. • local staff can help with the process for identifying existing water bodies for stocking. Hopefully, this information will be of assistance at your May 7th meeting, I do not plan to attend as I don't think I can provide any more information than I have above. Len Schwarz 4bm t4+ed b 5ren+ takktr befotlz rrvas2+1 (.1 A resolution of the Kodiak Borough P &Z commission, recommending a disposal by lease for fair market on LA- t value to Brechan Enterprises Borough land known as TractsB -1, B -2, B -3 for the purposes of gravel extraction and tract B-4a for the purposes of maintaining the by -pass stream and remediation of Tract B-4a. Now therefore, be it resolved by the KIB P &Z commission that: Section 1: The KIB P &Z commission, in accordance with title 18 of the KIB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B -1 B -2 B -3 and B-4a Bells Flats Subdivision subject to certain stipulations Section 2: Stipulations 1)A reclamation plan, subject to the approval of the P &Z commission and the Borough Assembly , be developed prior to leasing theses tracts and that remediation of tract B-4a begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2)The negotiated lease be brought before the P &Z commission prior to its final approval by the assembly 3) The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 4) The minimum extraction depth of the existing lease agreement will be restated in.a new lease agreement as a Maximum extraction depth subject to Assembly approval through lease negotiation process 5) The lessee shall develop a hydrologic management plan for the site with in 8 months of lease start. 6) The lease shall be for a period of 3(three) years with an option to renew at the discretion of the Assembly , not the lessee, for l (one)additional three(3).year lease. 7) The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement , for a period not to exceed 3 (three) months from the normal expiration of that agreement in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction operations will cease, the demobilization requirements of the existing lease will be in affect. 8) As tract B -4a has a direct impact on the local residential water table it is not surplus in the strict sense of the word and access shall be for remediation and by pass stream maintenance 9)Nours of operation (per Brechan Ent letter March 1, 2007)shall be lam to 7pm Monday through Saturday , with no work on Sundays. 10) The buffer zones laid out in the Brechan letter dated March 1 2007 shall be maintained . and kept in a topography that blends smoothly into the surrounding area. 3 ``4 i� rj i E c' Continued on next page with item 11 �{ :! APR 182007 1� II) All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of tract B -1 Section 3 Findings- 1) The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womans Bay Comprehensive Plan and the reasonable concerns expressed by the Womans Bay residents through the public hearing process. -2) The need for continued hydrologic management and reclamation of the site favors the continued lease of the B tracts to the party most responsible for the current disposition of the site, Brechan Enterprises 3) the site requested for review has previously been determined to' be surplus to the borough's needs. Future designation of the site in the 2007 Womans Bay Comp. Plan is intended to be for recreational use or residential development ADOPTED BY THE KODIAK ISLAND BOROUHG PLANNING AND ZONING COMMISSION, THIS EIGHTEENTH DAY OF APRIL, 2007 Current Location P & Z Case # 07 -021 Mike Martin A Title 18 Land Disl , according to KIBC 18.20. 18.40, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land. per KIBC 18.40, and a request for material sale per KIBC 18.60.) �Irr� skiw. • gm WV. i-V1:4#4 o \Oa*''' 1 • , 4fr•li • , 4b* *.st:' /V 1 7 la 1 .. %,04 Q e 111V?. � .• ; .4 O. ‘04::04 tix., . goviii.# 3,,,e". • N•il 4 k. 4 4/Pr • VA.si r Feet 0 5001,000 2,000 3,000 I Legend Subject Parcel Map prepared for the purpose of showing the General location of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data. National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63.360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to-date. Kodiak Island Borough Community Development Department. Current Zoning P & Z Case # 07 -021 II Mike Martin A Title 18 Land Disposal 'according to KIBC 18.20, 18.40, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) Legend Subject Parcel Business Conservation Industrial Light Industrial Natural Use Public Use Single Family Residential Two Family Residential Multi Family Residential Retail Business Rural Residential Rural Residential 1 Rural Residential 2 Split -Lot Zone Feet 0 5001,000 2,000 3,000 4,000 5,000 I i I t I I I I 1 t I Map prepared for the purpose of showing the Zoning of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9. NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up -to -date. Kodiak Island Borough Community Development Department. DATE: TO: FROM:. STAFF: SUBJECT: CASE: APPLICANT: AGENT: REQUEST: LOCATION: ZONING: Twenty-seven Date of site visit: Zoning History: 2. Location: 3 Physical: 4. Legal: SPublic Hearing Item VI-B Kodiak Island Borough Planning and Zoning Commission MEMORANDUM April 11, 2007 Planning and Zoning Commission Community Development Department Duane Dvorak, Associate Planner Information for the April 18, 2007, Regular Meeting 07-021 Brechan Enterprises, Inc. Mike Martin A Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) Bells Fiats Alaska Subdivision, Tracts B1 — B4A. 12247, 125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road. I — Industrial. (27) public hearing notices were distributed on March 19, 200.7. April 6, 2007 The 1968 Comprehensive Plan addresses this area as, "Formerly part of the Naval Station Reserve, Bells Flats is located 4 miles southwest of the Naval Base. It comprises a broad valley at the head of Women's Bay containing approximately 1,200 acres of land well suited to residential and industrial uses. Approximately 12 families are now living in the area". Ordinance 1969-30 zoned Bells Flats Tracts A & B as I — Industrial. Approximately eleven (11) miles southwest of the City of Kodiak. The parcels subject to this request are located in a historical river channel. 5. Lot Size: Case 07-021/Staff Report Bells Flats Tr B-1 of Tr B Bells Flats Tr B-2 of Tr B Dells riats Bells Flats Tr B-4A of Tr B Bells Flats Tr B-1 of Tr B Bells Flats Tr B-2 of Tr B 19.95 acres 19.72 acres Page 1 of 12 P & Z: April 18, 2007 Bells Flats Tr B-3 of Tr B Bells Flat Tr B-4A of Tr B 6. Existing Land Use: |ndustha| — Grovo Extraction. 7. Surroundinq Land Use and ZoninQ: Abutting & adjacen lands to the north are zone RR-1 Rural Residential Zoning District, and the predominate use is single family residential. Abutting & adjacent lands to the east are zoned PL — Public Use & the use is vacant. Abutting & adjacent lands to the south is zoned C - Conservation Zoning District, and the use is vacant. Abutting & adjacent lands to the west are zoned RR-1 Rural Residential Zoning Distriot, and the predominate use is single family residential. ODPublic Hearing Item VI-B 20.07 acres 24.64 acres APPLICABLE KIB CODE & POLICY PROVISIONS The following sections of the Kodiak Island Borough Code and the Kodiak Island Borough Coastal Management Program are applicable to this request: 18.20.030 Review by planning commission—Assembly approval. Except for disposal required by law: A. Each disposal of borough land is subject to review by the planning commission before submission to the assembly. The commission by resolution shall make a recommendation to the assembly regarding the proposed land disposal. B. Borough land disposal that are not subject to approval by ordinance are subject to approval by assembly resolution. The resolution shall specify the terms and conditions upon which the disposal will be offered. 18.20.060 Applications. A. Application for a disposal of borough land under this title shall be filed with the Community Development Department. Only applications completed in full and accompanied by a non- refundable filing fee as set forth in the current fiscal year schedule of fees and charges will be accepted. B. The filing of an application shall not in any way vest in the applicant any right to the borough land or to the use thereof applied for. 18.2O.17UDeOni1iona.Aa used in this chapter: A. land" means any real property or interest therein owned by the Kodiak Island Borough; C. "Disposal" means any transfer of real property authorized under this title; and D. "Real means any interest in real property under the law of the state of Alaska, including but not limited to a fee, easement, or leasehold interest, and a revocable license or permit to use real property. 18.4O.O2O Negotiated leases. A. The assembly may approve by resolution the issuance of a negotiated lease for a period not to exceed five (5) years if the annual rental value of the property is five hundred (500) dollars or less and no competitive interest for the property is apparent. Case 07-021/Staff Report 00 Public Hearing Item VI-B 18.40.030 Term of lease. Leases may be issued for a period not to exceed (55) years. The term of any g kmn/eanenhe||dapenduppnthedooinobi|hymfthepnoponeduom.theamountofinveotmmntin improvements proposed and made, and the nature of the proposed improvement with respect to durability and time required to amortize the proposed amendment. 18.40.040 Terms and conditions of leases. The provisions of this chapter and all other a || b/a provisions of this code are binding as terms and conditions of any lease of borough land. These terms and conditions, if not fully set forth in the lease, are incorporated by reference as though fully set out in full in the lease. The lease shall contain such additional terms, conditions, and restrictions as the borough determines to be in its best interest. 18.40.050 Minimum acceptable annua rental. A. Annual minimum rentals shall be computed.at the prevailing interest rate used lnthe conventional mortgage market in Kodiak, based on the appraised fair market value for the land and/or improvement rights being leased. This minimum shall be the lowest acceptable bid in the event of an auction, lease by sealed bid, or negotiated lease. B. No land shall be leased for less than the approved, appraised, annual rental except as provided in section 18. 20.020 of this title. Chapter 18.60 Material Sales 18.60.010 Materials available. All materials to which the borough holds title may be sold pursuant to contract approved by the assembly. The manager shall recommend to the assembly a form of contract„ including |imibst|ons, oondiUons, and terms of the sale. "Materials" means nonnonevvob|a, nohuna|, extractive resources inc>uding, but not limited to, gnmve|, oend, soil, rock and peat. "Materials" shall be considered real property for the purposes of this title. 18.60.020 Additional application information. A. An application for a material sale shall inclmde, in addition to requiremen in section 18.20.040 of this title, a map showing or containing the following: 1. the location of the material site area oriented to topographic features or survey markers; 2. the location of adjacent property boundaries, roads and watercourses; 3. names of adjoining property owners; and 4. a vicinity map of appropriate scale to properly locate the application area. B. The information required in subsection A of this section is waived when applying for material from a borough-designated material source. 18.60.040 Volume determination. Measurements to determine the volume of material sold may be by cross sectioning, wwighing, or other method considered to give accountability of the materials sold. The purchaser shall bear the cost of volume determination for all material sales. The borough, on its own motion, may make additional volume measurements to verify the accuracy reported. 18.60.050 Method of payment. A. A minimum of one thousand (1.000) dollars shall be paid to the borough when executing negotiated material contract. No refund will be made if the volume removed is not equivalent to the value of the initial payment. The balance of the negotiated contract price is due as provided in the sale contract. B. Competitive bid offerings shall require the following payment schedule: 1. an initial payment of one thousand (1,000) dollars or ten (10) percent of the total oonbactva|ue, whichever is more, shall be deposited at the time of the bid award; Case 07-021/Staff Report Public Hearing Item VI-B 2. the balance of the contract price shall be due as provided in the rnaterial sales contract; 3. refund of the initial payment will be made if no material or the equivalent valued material not removed; and 4. up to two thousand (2,000) dollars of the initial payment may be retained by the boro deposit throughout the life of the contract to be applied to the final payment due for. materials not earlier paid for 18.60.060 Appraisal. A. The assembly shall establish, at annual intervals, a minimum unit price for material to be sold. B. All new and exiating contracts for sale of material shall be adjusted automatically to reflect the price established under subsection A of this section; provided, that a contract price established by competitive bidding, if higher than the general price established by the assembly, shall not be affected. 18.60.070 Performance bond. The manager may require the purchaser to provide a performance bond in an amount he determines necessary to protect the borough's interest and ensure satisfactory compliance of the contract gbpu|abono. A purchaser may use a state-wide bond to meet the performance bond requirements. Case 07-021/Staff Report Page 4 of 12 P&Z: April 18`2OO7 ����� ����� Public Hearing e VI-B COASTAL MANAGEMENT PROGRAM APPLICABLE POLICIES 5.3.1 GENERAL POLICIES Land and Water Activities 3. Compatibility Activities on and uses of coastal lands shall be compatible with adjacent land use to the greatest extent feasible. Consistency: Yes. The Kodiak Island Borough, as land owner, has control over the terms and conditions of this disposal by lease. The lease terms and conditions can address many issues of compatibility that are not addressable through the I-Industrial zoning standards. Geophysical Hazards 1, Utilization The utilization of potentially hazardous lands shall be safe and sensible. Developments shall be sited to minimize the risk to life and property to the extent feasible and prudent. Consistency: Not Applicable. This site is not located in a known hazardous area. 3. Coastal /Seiche flooding Development within thirty (30) feet elevation above mean sea level (100 year recurrence or 1 percent probability event) shall be ndod, designed, and constructed to mitigate against the potential hazard of coastal I seiche flooding. Consistency: Not Applicable. This site is not located within the 30 foot elevation above mean sea level. Riverine Flooding Development shall not take place to the extent feasible and prudent with the 10-year recurrence (or 10 percent probability) floodplain in order to protect life and property and to avoid construction of unnecessary flood control structures at public expense. Development considered necessary within the 1-year (one percent probability) floodplain shall bw, to the extent feasible and prudent, subject to proper siting, design, and construction measures to minimize the potential flooding hazard. Consistency: Unknown. It does not appear that the site is within the 10-vaar floodplain. Neverthe|eoo, it seems likely that the material being extracted was deposited in this location by the adjoining river drainage at some point in the distant past. Resource Enhancement and Protection 1. Enhancement be a priority of the Kodiak Island Borough. Case 07-021/Staff Report IS Public Hearing Item VI -B Consistency: Yes. The development and utilization of the site is expected to conform to applicable fish and game regulations promulgated by the Alaska Department of Fish & Game. 2. Habitat Protection Management of sensitive areas such as estuaries, wetlands, tideflats, beaches, rivers, streams, lake systems, and high energy coasts shall be done in accordance with ACMP Standard 6 AAC 80.130 (Habitats). Federal and state regulations should guide development in anadromous fish streams, in the vicinity of bald eagle nests, and other coastal habitat areas. Consistency: Yes. Although development will not be occurring within an anadromous water body, reasonable efforts should be required to protect the adjoining river habitat. 3. Siting and Design. Development should be designed, located and built to preserve or wisely use natural features. Consistency: ' Yes.. Minimal design is required for a resource extraction activity. There is a need for a clear and concise reclamation plan . however, to ensure that the remaining buffer areas are returned to a productive state at the conclusion of resource extraction activities. 4. Natural Processes . Estuaries, tideflats, wetlands and lagoons shall be managed so as to assure water flow, natural circulation patterns, and adequate nutrient and oxygen levels. Dredging and filling is not permitted in these areas unless approved by the Community Development Department, U.S. Army Corps of Engineers, and other appropriate state and federal agencies. Consistency: Yes. It appears that efforts are being made to ensure that natural water migration and circulation patterns are preserved while attempting to isolate the turbidity caused by the disturbance of the pond that has been created by past excavation efforts. Prior to refilling any portion of the 'excavation a wetland jurisdiction review should be conducted by the U.S. Army Corp of Engineers to ensure that the re- filling of man -made wetlands is allowable under the COE jurisdiction. Case 07- 021 /Staff Report Page 6 of 12 P & Z: April 18, 2007 IN Public Hearing Item VI-B STAFF COMMENTS Brechan Enterprises has requested to re-lease Tracts 81 through 84A (hereinafter "B Tracts') for the purposes of continued resource extraction. In the letter dated September 20, 2006. which included a ground survey and material analysis, Brechan Enterprises has requested to lease the B Tracts for an additional 15 years which would be structured in the form of a five (5) year lease with two five (5) year extensions. According to the |ntter, this would allow for continued resource extraction until June 2022 or untif the resource is depleted. - Although the letter requesting disposal was submitted to the KIB in September 2006, it was not recognized by staff as a disposal request until February 2007. At that time a meeting between borough staff and representatives from Brechan Enterprises was scheduled to discuss the request and to get a better idea of what the request entails. Brechan Enterprises was briefed by staff on the applicable provisions of the draft Womens Bay Comprehensive Plan Update and in response they submitted an additional letter dated March 1, 2007 to accompany the application and fee for this request. The letter addresses, among other things, hours of operation, excessive noise and buffer zones. Based on past review by the 'KIB Assembly dating back to 1082, it appears that this area is surplus to the borough's need in the sense that the site has been previously disposed by lease for resource extraction purposes. The 2007 Womens Bay Comprehensive Plan recognizes this resource extraction use may need to continue for an indeterminate period until another material source can be identified and made available for use The plan recommends that further lease of the B Tracts be limited to the minimum time frame necessary to identify and prepare an alternative material site. The plan identifies the future use of the B Tracts for recreational and/or residential development as part of a reclamation plan for the area. It is staffs understanding that a reclamation plan accompanied the original }aana, but staff has not been able to locate such a plan that would clearly identify the disposition of the land after all resource extraction activities have been concluded. Alternative gravel sources have been investigated by the Gravel Task Force which was empanelled by the K|B Assembly for that purpose. At this time those investigations of still underway and an alternative material site that meets the requirements of industry and the community has yet to be identified. Title 18 — Real Property Disposal is generally accepted to be the exclusive province of the Borough Assembly. The role of the Planning and Zoning Commission in regard to such matters is defined by two chapters of the code. Authority of the commission to participate in the process is found in KIBC 2.40.030 Powers and duties, which reads, "The commission shall accomplish the following: (H.) - Make investigations regarding any matter related to borough planning". The specific contribution to the process, which the commission is expected to make, is to advise the Assembly, i.e., "The commission by resolution shall make a recommendation to the assembly regarding the proposed land disposal." (KIBC 18.20.030 above). Because this request is intended to be both a lease of the land and a material sale, this disposal involves the applicable provisions of both KIBC 18.40 with regard to leasing and KIBC 18.60 with regard to material sales. In the past the Assembly preferred to lease the B Tracts as two separate extraction areas in order to ensure that there was competition for material in the community. In its current condition, staff does not believe that there is adequate upland area remaining to support more than one extraction operator. If the Assembly desires to foster compe1ition, it would need to consider 'whether to make this disposal as a competitive offering to a single operator to simply to lease the land to the requestor in this case. According to KIBC 18.20.060.B the fact that an application for disposal is filed does not vest any right in the disposal requested. The Assembly is the ultimate authority in determining if a disposal is to occur and, if approved for disposal, how that land disposal might be structured. The only apparent limit onthia authority according to KIBC 18.20.050 is a requirement to submit the disposal for approval of borough voters if the value of the property is more than $250'000 and the land is to be disposed ofb10 single |ndividua), partnership or corporation by means other than outcry auction. The value of the land must be determined by appraisal within 90 days of the proposed disposal date as provided by KIBC 18.20.130. Case 07-021/Staff Report Page 7 of 12 P & Z: April 18, 200 Public Hearing Item VI-B The prospect of having a new lease agreement in place before the existing lease expires on June 30, 2007 seems to be unlikely given the magnitude of the request and changes in the community since the last disposal was approved in 1982. If the Assembly is inclined to approve a new disposal, staff recommends that approval for an "early right of entry" onto the property should be considered as a means to bridge the gap until a new agreement can be approved. While staff is not recommending this as an extension of the existing agreement, it would seem reasonable to bind the "early right of entry" to the existing lease terms for an additional three to six months in order to ensure that a new agreement can be negotiated by the administration and approved by the Assembly for further leasing of the site. Staff believes that the existing agreement may form the basis of a new agreement subject to the usual re- evaluation of lease rates, material royalties and insurance requirements. There aro, hovxmver, certain aspects of a new lease that staff believes should be considered in the process of negotiating a new lease agreement for the B-Tracts. These suggestions are based on public input from the Womens Bay community during the development of the 2007 Womens Bay Comprehensive Plan which was adopted in March 2007. 1. Provisions offered by Brechan Enterprises in the letter dated March 1, 2007 should be incorporated into the agreement in order to make these conditions binding upon the lease; 2. Options to renew should be worded in such a that the option t� renew is subject to the discretion of the Assembly and not a right to be exercised by the lessee. This will allow the Assembly an opportunity to periodically review compliance with lease provisions and to determine whether other material extraction options are available that would permit phasing out of the B-Tract' extraction operations. 3. Requirement for a reclamation plan to indicate the proposed condition of the land` at the time resource extraction activities are concluded. In this regard, the process of reclamation should be phased in over time for areas no longer subject to active extraction activities. The 2007 Womens Bay Comprehensive Plan calls for the land to be made available for recreation or residential purposes. From the staff site vio|t, it appears that much of the original overburden from the B-Tracts has been stockpiled in the large berms located along Middle Bay Drive. It may be prudent to require that this overburden be redistributed on the areas disturbed by extraction activities in order to return the site to some semblance of the natural topography of the remaining uplands prior to extraction. This is not to suggest the remaining buffer areas should be graded flat, but that the natural undulations of surrounding areas can be approximated if desirable. 4. Require the lessee to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with all existing regulations affecting the extraction use and the potential impact on the surrounding habitat and residential areas. 5. Review the minimum extraction depth of the existing agreement and perhaps consider a maximum extraction depth for the site. G. Development of a hydrological management plan for the site. Staff is in receipt of an undated hydrological study submitted by a member of the commission along with a recommendation for certain leasing conditions. From the correspondence and the map it is unclear who the preparation of the map may be attributed to. Navarthm|ase, the information presented on the map is beyond the qualifications of Community Development Department staff to adequately review. Staff has submitted the map information to the Alaska Department of Natural Resources for review, however it is nse issue prior to the Commission s oonnoeratmnct this n .., request. Case 07-021/Staff Report all Public Hearing Item VI-B One of the recommendations accompanying the map is to reduce the proposed lease area by eliminating Tract B-4A and half of Tract B-3 along the approximate line of the existing nd edge. Staff did discuss this prospect with the petitioners and they indicated an ongoing need to have access to this site in order to use the pond on Tracts B-3 and B-4A as part of their water quality management plan. In addition, they have developed water bypass facilities that are routed through these tracts which are necessary to isolate the ponds from interacting with the adjoining anadromous stream. Staff would further note that by dropping Tract B-4A and a portion of B-3 from the proposed lease area may forestall any further reclamation of those areas when the extraction use is concluded. Staff would suggest that phasing out the B Tract leases should include more than simply reducing the leasehold area of active extraction activities and that areas no longer needed for active extraction should be reclaimed within the context of proposed lease disposal. If these areas are not under lease then there will be no way in order to require reclamation at some later date. With regard to the issues of hydrological management and site reclamation staff notes that potentially leasing the site to another mpmnator, in the context of a competitive dinposa|,faimom certain concerns. Another operator is unlikely to want to be made responsible for prior disturbances in terms of -hydrological management and final reclamation of the site. In this rmgard, staff believes that continued "sole-source" leasing of the site to Brechan Entorprinen, which has previously assumed the leasehold interest of other predecessors in interest such as Aleutian Materials, is the most responsible party to have operating the site in terms of continued concern about hydrological management of the site and eventual reclamation. Staff has been made aware of four or five shallow water wells that went dry for a short period in this past month. There has been speculation that the unseasonably cold winter and lack of precipitation contributed to the problem. There has also been speculation that the prior extraction activities located across Bells Flats Road may also be a factor in this observed phenomenon. Something that the Commission and Assembly may want to consider in this regard 10 to reserve a portion of Tract B-4A for a potential community well to serve these dwellings should they desire to collectively develop a deeper community water well capable of supplying the water needs of affected households. This area could be reserved for future recreational or open space use that would not interfere with the water well reservation. Case 07-021/Staff Report ��� ���� ���� Public Hearing Item VI-B ������������������J�~�U���� o�������xmnomou~n�u�x�u"��n� Staff believes the current request meets the standards for a land disposal by lease. APPROPRIATE MOTUON Should the commission agree with the recommendation of staff, the appropriate motion is: Move to adopt the following resolution containing a recommendation to the Borough Assembly regarding the land disposa reviewed by the Commission in Case 07 — 021. A RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING • AND ZONING COMMISSION, RECOMMENDING A DISPOSAL BY LEASE FOR FAIR MARKET VALUE TO BRECHAN ENTERPRISES OF APPROXIMATELY 84.4 ACRES OF BOROUGH LAND DESCRIBED AS TRACTS B-1, B-2, B-3 and 8-4A' BELLS FLATS ALASKA SUBDIVISION FOR THE PURPOSE OF RESOURCE EXTRACTION. WHEREAS, Kodiak Island Borough Code (KIBC) 18k20'030 requires each disposal of Borough land to be reviewed by the Planning and Zoning Commission before submission hothaAsmembhy;and.- ' WHEREAS, the Planning and Zoning Commission is required under KIBC 18.20.030 to make a recommendation on the disposal by resolution before the case can be forwarded to the Borough Assembly; and, WHEREAS, the principal purpose of the Commission's recommendation is to determine whether the land is considered to be surplus to the Borough's need; and, WHEREAS, the Planning and Zoning Commission held a public hearing on April 18, 2007. to consider the land disposal request made by Brechan Enterprises, Inc., for a land disposal by lease for fair market value; Case 07-021/Staff Report S. 4101) Public Hearing |temV|-B NOW, THEREFORE, BE IT RESOLVED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION THAT: Section 1: Section 2: The Kodiak Island Borough Planning and Zoning Commission, in accordance with Title 18 of the Kodiak Island Borough Code, recommends the approval of a lease disposal by the Kodiak Island Borough Assembly of a land for fair market value of approximately a84.4 acres comprised wf Tracts B-1,B-2LB-3and B-4A, Bells Flats Alaska Subdivision, subject to certain recommended stipulations. 1. Provisions offered by Brechan Enterprises in the letter dated March 1, 2007 shall be incorporated into the agreement in order to make these conditions binding upon the lease; 2. Options to renew shall be worded in such a way that the option to renew is subject to the discretion of the Assembly and not a right to be exercised at the discretion of the lessee. 3. A reclamation pian, subject to approval by the Assembly, shall be developed in the initial five (5) year lease period as part of this disposal to provide for the reclamation of the lease area at the time resource extraction activities are to be concluded. The process of reclamation should be phased in over time for areas no longer subject to active extraction activities. 4. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. S. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a maximum extraction depth subject to Assembly approval through the lease negotiation process. G. The lessee shalldevelop a hydrological management plan for the site. 7. The Assembly may permit an 'early right of entry" into the lease orem, under the provisions of the existing lease agraement, for a period not to exceed six months from the normal expiration of that agreement on June 30. 2007. in order to allow for the full negotiation of a successor lease agreement. Should a lease agreement not be approved by the Assembly after this time, extraction operations will cease after December 31, 2007 and the demobilization requirements of the existing lease agreement for the site will be in effect at that time. 8. The Assembly may designate or reserve an area within the buffer area on Tract B-4A as a community well site if needed by nearby residential users for a future water supply. Case 07-021/Staff Report 400 Section 3: Findings. Public Hearing Item VI-B 1. The proposed lease recommendation, subject to stipulations, gives due deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by Womens Bay residents through the public hearing process. 2. The need for continued hydrological management and future reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the site, Brechan Enterprises. 3. Conditions of site operation offered by the petitioner addressing hours of operation, noise, buffer areas, and other issues, will be included in the lease agreement in order to ensure they have binding affect. 4. The site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens Bay Comprehensive Plan is intended to be for recreations use or residential development. ADOPTED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION, THIS EIGHTEENTH DAY OF APRIL, 2007 Case 07-021/Staff Report Page 12 of 12 P & Z: April 18, 2007 PAIIDIAK ISLAND BORAH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI-A PUBLIC HEARING NOTICE. A public hearing will be held on Wednesday, April 18, 2007. The meeting will begin at7:30 p.m. in the Borough Assembly ChamberS, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear :comments if any, on he following request: , CASE: APPLICANT: AGENT: •. REQUEST: A Title 18 Land Disposal, according to KIBC- 18.20, 1840, and* 18.60; to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Bells Flats Alaska Subdivision, Tracts B1 B4. 12247, 125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road. 07-021 :.; !\P:71 -62007 V', t ; z Brechan Enterprises, Inc. 17Z2PielEf,"•' Mike Martin h LOCATION: ZONING: I-Industrial This notice is being sent to you the request. If you do not wish to to the Community Development fax number is: (907) 486-9396. the appropriate public hearing toll free telephone number is 1-800-478-5736. One week prior to the regular meeting, ' Kodiak Island Borough Conference Kodiak Island Borough Code provides decision on this request. If you have at 486-9363. . Your Name: 7-0CXii i ‘.) because our records indicate you are a property owner/interested party in the area o testify verbally, you may provide your comments in the space below, or in a letter Department prior to the meeting. if you would like to fax your comments to us, our If you would like to testify via telephone, please call in your comments during section of the meeting. The local call-in telephone number is 486-3231. The on Wednesday, April 11, 2007 a work session will be held at 7:30 p.m. in the Room (]2l), to review the packet material for the case. you with specific appeal rights if you disagree with the Commission's any questions about the request or your appeal rights, please feel free to call us ... FO ,E.. Mailing Address: \ C( 3 i'V\ 1 0 P I t. 0 Ati f ___i_ Your property description: L. CgT & B 1--- - L., 0-E- g C. "B----- s ' / -4--/.. kso, -i. --k-k. ,-.)--,--,2 --E Comments: L 1 —0 ik- A c --i--- .5, 444.0„,„ Fo-r- 12(v‘ . Co IT- p ik-e- tc- • 1 01-( s S CCr)--L-.<2 l'\-)-e , 1,,,_, -( -,c3cs G 9O -ii.e..Q _A LA) Pc, 2 "krt., vi-es' 4-6- cp • cUtla.-0- U)-e_ k--- , ves; --t-- kik-4 ' :=----t-4 23/03 2007 01y37 FAX 907 41 OUTSIDE THE LINES • KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 ll001 Public Hearing Item V1 -A PUBLIC HEARING OTICE A public hearing will be held on Wednesday, April 18, 2007. The meeting will begin at 7:30 p.m.. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: 07-021 APPLICANT: 13rcchan Enterprises, Inc. MAR 2 3 2007 .,. .. t d AGENT: Mike Martin • REQUEST: A Title 18 Dend Disposal, according to 1.113 1.8 2.0 , ,184 , and .1.8.60,, to consider a request to lease borough land for laic ri3ax the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per. KIBC ] 6.40, and a request for material sale per KI13C 18.60.) LOCATION: Bells Flats Alaska Subdivision, Tracts B1 - B4. 12247,125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road: I- Industrial it ZONING: This notice is being sent to you because our records indicate you are a property owner /interested party in the area the request. If you do not wish to testify verbally, you 'may provide your comments in the space below, or in a to the Community Development Department prior to the meeting, if you would like to fax your comments to us, of letter our The in the us fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. toll free telephone number is 1 -800- 478 -5736. One week prior to the regular meeting, on Wednesday, April 11, 2007 a work session will he held al 7:30 p.m. Kodiak island Borough Conference Room (4121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's • decision on this request. If you have any questions about the request or your appeal rights, please feel free to call at 486 - 9363. 1 Your Name : V °JAIL. C i � ti �� Mailing Address: V MO y t 3-a Your property dcsciipliun: �L t f U. ?S G. , \ Ue� -S� t a� � _� Comments: 1 � rx, l � t t l ' -i ���1 ,.� J] 'I C J �, ' 1 1.�' C%t`L� ,I , 1 L'', tit. IA .k 0 . i .t e 'l . i • rite ' _' 1,. C 0-71 `Pf .P/tAte 1 I RLl , `'r1.(,.�'Yfrth,(r]d , / ' I ., 0 fil . t l Y i d e,v _ _. v\a/i1,_...„.1,1L„L keti Se ) all KODIAK ISLAND EUUGH - COMMUNITY DEVr-VMENT DEPARTMENT 710 Mill Bay Rd., ' A 05, KODIAK, AK 99615-6398 (907) 4rtio-JIM - FAX (907) 486-9396 www.kib.co.kodiak.ak.us Applicant Information Brechan Enterprises, Inc. Property owner's name 2705 Mill Bay Rd Property owner's mailing address Kodiak. AK 99615 City Property Information Bells Flats Tracts B1-B4 Property ID Number/s Bells. Flats Alaska Sub Division B1-B4 Legal Description Current Zoning: Industrial State Zip Applicable Comprehensive Plan: Year of Plan adoption:. 2007 (907)4867321.53jSessoms@brechan.com Home phone Mike Martin Work Phone E-mail Addr. Agent's name (If applicable) 2705 Mill Bay Rd. Agent's mailing address Kodiak AK 99615 City State Zip (907)486-3215 mrmartin@gci.com Home phone Work Phone E-mail Addr. see attached letter Present Use of Property: Gravel Extraction Operation Proposed Use of Property: ia0 attached (Note: Use additional sheets, if needed, to provide a complete description of the proposed request.) Applicant Certification I hereby certify as the property owner/authorized agent that this application for Planning and Zoning Commission review is true and complete to the best of my knowledge and that it is submitted in accordance with the requirements of the applicable Kodiak Island Borough Code, which includes a detailed site planl for variance and conditional use requests and which may include optional supporting documentation as indicated below. Additional Narrative/History As-built Survey Photographs Maps Other Property Owner's Signature Date Authorized Agent's Signature Date A development plan for one or more lots on which is shown the existing and proposed conditions of the lot, including topography, vegetation, drainage, flood plains, wetlands, and waterways; landscaping and open spaces; walkways; means of ingress and egress; circulation; utility services; structures and buildings; signs and lighting; berms, buffers, and screening devices; surrounding development; and any other information that reasonably may be required in order that an informed decision can be made by the approving authority. (Source: The New Illustrated Book of Development Definitions, ©1993 by Rutgers University) STAFF USE ONLY Code Section(s) Involved: /2,Z-4 tI cia 0/JAos., Va ance KIBC 17.66.020)_$250.90 PAYMENT VERIFICATION f134112€11.17 "2,411igtig43ittuge, 07=224 Schedule: Conditional Use Permit (KIBC 17.67.020.B) $250.00 Other (appearance requests, site plan review, etc.) $150.00 Zoning change,from to (KIBC 17.72.030 and 030.C)* Application rec Staff signature (pep riVisse Resot i0 Eif4AWY I. 2905} *** Paid in- Full *t kfAl3M.111'41,4444trfflti S350AM.' -768cialA71. 'tAr4in • S750-4ei =.146.15:31.2Ark,.5 s 01- 0 ,"Z. BRECHAN ENTERPRISES, INC / GENERAL CONTRACTORS 2705 MILL BAY ROAD • KODIAK, ALASICA 99615 Kodiak Island Borough Community Development Department Attn: Duane Dvorak, Acting Director 710 Mill Bay Road Kodiak, AK 99615 March 1'2OO7 RE: Gravel Contract on tracts B-1 thru B-4A, Bells Flats On behalf of Brechan Enterprises, Inc. we would like to take this opportunity to set forth our suggestions for the extraction of material from the Bells Flat Pit. We would also like to thank you for taking the time to meet with us Monday, February 26, 2007 to discuss possible issues with the upcoming lease renewal. ' As per our discussion with your staff, there seems to no longer be a need for two entities to occupy the tracts located at Bells Flats, therefore Brechan Enterprises, Inc. will be the sole applicant for the upcoming lease renewal. We feel that that this will simplify the process, and have been granted the authority by Aleutian Materials, Inc. to be the sole applicant. After reviewing the Women's Bay Comprehensive Plan Update - December 2006, we have found several items that we would like to address: 1. Hours of Operation - As in then past we will continue to work on 7am to 7pm Monday thru Saturday with no work to be done on Sundays. 2. Excessive Noise - Brechan Enterprises is making every attempt to reduce the amount of noise in the area. We will be utilizing updated equipment and mechanical engineering to minimize the amount of noise in the area. i.e. backup alarms on the loaders, we are inquiring as to ways to refract noise levels. 3. Buffer Zones - Brechan Enterprise will fully comply with the existing buffer zones set forth in exhibit A. As well as addressing these issues that a����g[�c���P������oc� fu�he,�����g�e��h' to the far side of Tract 1 ,this will further reduce the noise encountered by the residence. We have also' increased our efficiency at this location cutting our production time by more tho n half,.requiring less time for same amount of product. Thank you for your attention to this matter, and if there is any further assistance that we may provide, please, feel free to contact our office. Thank you Brechan Enterprises, Inc c: Rick LGddrd, Borough Manager Bud Cassidy, Engineering and Facilities PHONE: 907.486.3215 • FAx 907.486.4889 ALASKA BUSINESS #001858 • ALASKA CONTRACTORS #AA441 We Are An Equal Opportunity Employer S. Y0o ,�v BRECHAN ENTERPRISES, INC. 2705 Mill Bay Road • Kodiak, AK (907) 486-3215 • Fax: (907) 486-4889 Alaska Business License #001858 • Alaska Contractors License #AA441 Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Attn: Kodiak Island Borough Assembly Rick Gifford, Borough Manager Re: Tract B Gravel Extraction Areas ALEUTIAN MATERIALS INC. Box 223 • Kodiak, AK 99615 (907)487-2185. - Alaska Business License # 113090 Alaska Contractors License # 19600 Sept 20, 2006 Dear Manager and Assembly:. As you may be aware, on June 301 2007, the leases on the Tract B, gravel extraction areas will expire. In June 2006 Jim Purdy of Kodiak Land Surveying (KLS) performed a survey and quantity calculation of materials remaining on the Tract B gravel extraction areas (summary of his notes are attached). Various scenarios were calculated and the final survey results revealed the following: Quantity of gravel Digging Depth Remaining on tracts B-1 through B-4 20 feet 25 feet 50 feet 1.178 million CY 1.422 million CY 2.790 million CY • From a quality perspective, the materials extracted from the Tract B source are far superior to any other sources currently available within the Kodiak road system. Historically, all of the high quality aggregates needed for the production of concrete and asphalt have come from one of these sources. In recent years there has been much discussion relative to gravel resources within our community. Despite much effort by the Borough and many citizens, no reasonable alternatives have been put forth for a source of quality aggregate for use in the manufacture of asphalt, concrete and road materials Attempts have been made to use the local greywacke (shot rock) with very limited success. In general, shot rock is inferior to the alluvial deposits found in the B tracts. Even the best materials that we have available now, fails to meet the State of Alaska standard specifications. Historically, the state has relaxed their specifications to allow the use of the Bells Flats material, which has shown to give a reasonable product at a reasonable cost. • Page 2 To meet the demands of the community, in the near term, we see the following 4 alternatives: I. A completely new site of extraction within a reasonable haul distance of town and quality characteristics similar to the existing B tracts. While this may be a viable option in the long term, it is impractical in the short term. A new material site will require a number of years to procure, permit and develop before any material can be extracted. 2. The use of native shot rock materials, which are of inferior quality, more expensive to extract and require more additives to produce a usable product. The end result is that the cost will be far greater for a product that is of lower quality. 3. Importation of aggregates from off-island sources. While this would produce a product similar to what we have historically used, the cost of procurement and transportation will be prohibitively high. 4. Renewal of the current Tract B leases until other sources can be identified. It's clear that this is the best alternative, striking a reasonable balance between price and quality. The KLS survey has revealed that there is a minimum of 1 million cy (2 million tons) of recoverable gravel. Our usage for the last 5 years has been: 2005 60,456 tons 2004 40,958 tons 2003 54,920 tons 2002 55,530 tons 2001 55 247 tons 267,111 tons Unfortunately, there is some public sentiment that is attempting to force the abandonment of the extraction activity on the B Tracts. While we understand the concerns, we would also like to point out that the original intent of these leases was to not only to provide a • source of material for the entire community, but also to develop property around the lake that would ultimately be created. Obviously, the parties that drafted the leases in 1982 had no way of knowing how much would be extracted and at the time an assumption of 25 years would have been reasonable. To cease the development and extraction activities in 2007, based upon "guesstimate" made in 1982 would: • Force the community to pay higher prices for a lower quality products • Eliminate the revenues that the Borough receives though royalty payments • Eliminate the revenues that the B nrough_xeceives_though_lease-fees ($20,000 per year in lease fees and $1.25 per cy in royalty) • Leave a valuable natural resource untouched • Page 3 All of which, would be a disservice to the community. In conclusion, we are hereby requesting that the Kodiak Island Borough allow additional time extensions to the Material Extraction Leases on the B-tracts. We suggest that there be 3 allowable time extensions of 5 years each, which would allow extraction activity to continue on the site until June 2022 or until such time that the resource is depleted or a realistic alternative source is located and developed. Please let us know if you need any additional information and we look forward to further discussion on this subject in the near future. Sincerely: Michael R. Martin Tom Allen President President Brechan Enterprises, Inc. Aleutian Materials, Inc. Duane Dir - From: Bud Cassidy Sent: Thursday, April 05, 2007 8:31 AM To: Duane Dvorak Cc: Rick Gifford Subject: B tract photo- ground water copy.pdf Attachments: B tract photo- ground water copy.pdf Duane - Gary had dropped off some hard copy of this photo to Rick. Rick and I got together before he left and he wanted me towss these to you for your P&Z lease case. Iwitprovide you the hard copies that Gary provided Rick. Gary made the following comments based on this photo: • The low water table (winter drought) has left some of the adjacent neighborhood water wells (his included) dry. They all seem to be shallow wells at 15' because, he says, that bedrock is below and it is expensive to drill wells • He attributes the lack of well water to the lack of recharge of the area due to no rain, • He sees value in keeping the lower pond as a undisturbed area because in his estimation needs to be available for recharge of the groundwater and wells. So he is suggesting the following: • Only leasing the upper pond to Brechan • Leaving a dike, between the two ponds as a condition of the lease so that the lower pond acts as that recharge area for neighborhood wells. • He is thinking that Brechan does not need the lower pond any, because it is "played out" as far as a gravel source (my words) • It would also show, he suggests, that the Borough is serious in slowing moving Brechan off the site. He also said that he went to talk with Brechan. The party he made contact with was their finance fellow. Anyway, it sounded like you were drafting a staff report on the lease request and he wanted to provide this information Should you have any questions, let me know. Bud B tract photo- ground water co.,. ''"`',a+,,„ SF `,cam )m44 2007 DIpItalGbba 4 ':. _ t, . ` z ...M 1 „err ".: e .:;,. �, - ~z+r.. hy; -,, . 4 . Pl nbir .51� 4 '59: �a`'M i 2° 3 r O$!N algi" �if m ;.` . �, k�a 3 t�wming• IIIIIIII {100% Y' g "237,N B Tract Gravel Pit Groundwater Hydrology -mcf;{tw�(p,�gR.t;lia nnei. ocsftpatrf (low.ir3ffitr4tir ou d„iiateriE:cI.iatdo. A 90 Pr= =ent • round surface ';F • •,'fetfi ming'"I I II II(1009¢, Arrows show lowered water table resulting from excuvation of the gravel pits. Water surface elevation in pits controls groundwater table elevation in adjacent gravel deposits. s Forrn`r around W Ler3r l — e ^ r ou 'ace Elev (ft) fir °undya•rbfe " ''•••• 70... •••. •• e• Tta – . L Pit Water' surface ` 50 40 r ; "ie'7 1:2 A' ._ Tuundsurface – _former – _ ,. -- — •lf Present • round surface Pit water _urf�e _" – – .. Present low f aw It . _-Present ow flowrw ter table . --. water surface Water tnttnm,nf nit B Tract Gravel Pit Groundwater Hydrology RBI titer s7 41:s9943N;(152 °36;0208'iV?dlc "v 16m' ^• A 50 40 • Imaga0,2007gig!(i1G4Pbo fa e i5tria mina' 1111111111100% t ' %u' "'$:lt i Arrows show lowered water table resulting from excuvation of the gravel pits. Water surface elevation in pits controls groundwater table elevation in adjacent gravel deposits. Forme, Ford 'r %nd w ert le ��� Space Pit water surface Former %round surface WNW _ Present • round surface Pitwatersuurface ,^,_ - Groundwateriab1e rresenTl Flow •rc ater u - ._.— Present low flow water table;--- - srface water I A' Bottom of pit CONDITIONS OF APPROVAL 1. Prior to final plat approval, prepare a drainage plan for review and, approval by the City of Kodiak Building Department and obtain a new drainage/grading permit if required. FINDINGS OF FACT 1. Subject to conditions of approval, this plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat provides a subdivision of land that is consistent with adopted Borough plans for this area. The question was called, and it CARRIED 6-0. COMMISSIONER CARVER MOVED TO GRANT preliminary approval for the vacation of a 20 foot wide electrical utility easement per KIBC 16.60, to be replaced with a new 20 foot wide utility easement to coincide with the new Lot line configuration granted preliminary approval for Case S07-012, subject to the following conditions of approval, and to adopt the findings contained in the staff report dated April 11, 2007 as "Findings of Fact" for this case. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Public hearing closed: Regular session opened: CONDITIONS OF APPROVAL 1. Prior to final plat approval the plat shall be submitted to the Kodiak Island Borough Assembly and the City of Kodiak Council for approval of the easement vacation. FINDINGS OF FACT 1. The easement to be vacated will be replaced by a comparable utility easement. 2. Kodiak Electric Association was the only utility that responded to the vacation request and KEA indicated No Objection to the requested vacation. The question was called, and it CARRIED 6-0. B) Case 07-021. Request a Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per 103C 16.40, and a request for material sale per KIBC 18.60.) Dvorak reported the request involves 4 Tracts of land, approximately 80 acres for disposal. These parcels have previously been disposed for a 25 year period that is due to expire June 30, 2007. That disposal was executed by lease, and was for 5 years and was renewed or extended in 5 year increments. Originally, the leases were to 2 different companies that eventually merged together into one entity. The petitioners submitted information indicating their desire to request a new disposal by lease. They have met with staff and discussed the Womens Bay Comp Plan, which is April 18, 2007 P & Z Commission Meeting Minutes Page 4 of 8 , -x what staff refers to when looking at these land disposal requests. Staff hasn't found any indicators that the Borough has any use for this property for municipal purposes. There is indication that eventually these properties will be disposed of for other purposes at such time as the resource extraction activity is either terminated or abandoned. From staff's perspective most of the concerns have been mentioned, if not addressed in the staff report. Staff did recommend a disposal and a number of stipulations which would address concerns that have been raised in the process. In addition to the material staff provided, the petitioners have provided a survey they prepared last fall showing the existing conditions basically at the close of the last construction season. COMMISSIONER CARVER also provided an alternate recommendation for a partial disposal. Staff doesn't think a partial disposal would be the best recommendation. In addition, there was a hydrological analysis provided in the packet. COMMISSIONER CARVER also provided a partial reclamation plan, an extraction analysis, and a quantity analysis of material. Staff hasn't had a chance to look at this. Dvorak stated that COMMISSIONER WATKINS has provided a substitute resolution with alternate stipulations, and copies have been provided to the public and commissioners. The commission had a discussion. COMMISSIONER WATKINS MOVED TO ADOPT the following resolution containing a recommendation to the Borough Assembly regarding Land Disposal reviewed by the Commission Case 07-021. A resolution of the Kodiak Borough Planning & Zoning Commission, recommending a disposal by lease for fair market value to Brechan Enterprises Borough land known as Tracts B-1, B-2, B- 3 for the purposes of gravel extraction and Tract B-4A for the purposes of maintaining the by- pass stream and remediation of Tract B-4A. Now therefore, be it resolved by the Kodiak Island Borough Planning &Zoning Commission that: Section 1: The KM Planning & Zoning Commission, in accordance with Title 18 of the KIB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B-1, B-2, B-3, and BO4A Bells Flats Subdivision subject to certain stipulations. Section 2: Stipulations 1. A reclamation plan, subject to the approval of the P&Z Commission and the Borough Assembly, be developed prior to leasing these tracts and that remediation of Tract B-4A begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining Tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2. The negotiated lease be brought before the P&Z Commission prior to its final approval by the Assembly. 3. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. April 18, 2007 P & Z Commission Meeting Minutes Page 5 of 8 4. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a Maximum extraction depth subject to Assembly approval through lease negotiation process. 5. The lessee shall develop a hydrologic management plan for the site within 8 months of lease start. 6. The lease shall be for a period of 3 years with an option to renew at the discretion of the Assembly, not the lessee, for one additional 3 year lease. 7. The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement, for a period not to exceed 3 months from the normal expiration of that agreement in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction, operations will cease, the demobilization requirements of the existing lease will be in affect. 8. As Tract BO4A has a direct impact on the local residential water table is is not surplus in the strict sense of the word and access shall be for remediation and bypass stream maintenance. 9. Hours of operation (per Brechan Enterprises letter dated March 1, 2007) shall be 7 am to 7 pm, Monday through Saturday, with no work on Sundays. 10. The buffer zones laid out in the Brechan letter dated March 1, 2007 shall be maintained and kept in a topography that blends smoothly into the surrounding area. 11. All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of Tract B -1. Section 3 Findings 1. The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by the Womens Bay residents through the public hearing process. 2. The need for continued hydrologic management and reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the site, Brechan Enterprises. 3. The site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens Bay Comprehensive Plan is intended to be for recreational use or residential development. ADOPTED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION, THIS EITHTEENTH DAY OF APRIL, 2007. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Mike Martin spoke opposing P &Z's motion. Nick Troxell spoke in favor of the request. April 18, 2007 P & Z Commission Meeting Minutes Page 6 of 8 Sandra Perry asked if any of the commissioners seen this resolution before tonight, have they had a chance to study or look at it, and who prepared it? COMMISSIONER WATKINS stated no one else has seen it before tonight, and he was the one who wrote it. Sulua Stager spoke opposing the request and would rather have a park. John Sessom from Brechan is not happy with the commission. Chris Lynch is opposed to the P &Z resolution. John Miller spoke opposing the P &Z resolution. Howard Weston attested to high quality Brechan material. Don Lawhead spoke opposing the P &Z motion. Judy Kidder spoke in favor of the request. Bob Hales supports the request. Dave Froehlich spoke in support of the request. George Kontra spoke in support of the request. Rusty Pruitt spoke in support of the request. Mike Milligan spoke in support of the request. Jim Towk spoke in support of the request. Kevin Arndt phoned in to state this pit should be utilized to its fullest which could possibly be 12 more years. Tim Booch spoke in support of the request, but stated we need a clear reclamation plan. He also commended COMMISSIONER WATKINS and the P &Z. Lorne White spoke in support of the request. Joe D'Elia stated the Borough should hire a consultant to do a hydrology study. He would also like the Borough to fund the service district to or have Brechan apply calcium chloride or water to the road surface during dry spells to control the dust. Lisa Booch stated we need a reclamation plan that they will talk to us about and need to work together. Don Mather spoke in support of the request. Tess Dietrich is confused about the whole process. CHAIR KING called a 10 minutes recess. CHAIR KING called the meeting to order. Marie Rice stated a hydrology study is needed. Dave Heauman spoke in favor of the lease, but a hydrology study and a good reclamation plan is needed. April 18, 2007 4, P & Z Commission Meeting Minutes Page 7 of 8 Josh (inaudible) feels we need to stick to staff's motion. Public hearing closed: Regular session opened: A discussion between Commissioners. CHAIR KING called a 5 minute recess. CHAIR KING called the meeting to order. COMMISSIONER CARVER MOVED TO TABLE this present motion until a special meeting on May 2nd. COMMISSIONER KERSCH SECONED the motion. The question was called, and it FAILED 6-0. COMMISSIONER WATKINS MOVED TO CONTINUE this meeting on May 2, 2007 at 7:30 p.m. in the Assembly Chambers. COMMISSIONER JANZ SECONDED the motion, and it CARRIED 6-0. CHAIR KING ADJOURNED the meeting at 10:05 p.m. CHAIR KING re-opened the meeting at 10:10 p.m. COMMISSIONER WATKINS MOVED TO AMEND the motion for the continuation of the meeting to change the date and time to May 7th at 6:00 p.m. in the KIB Assembly Chambers. COMMISSIONER CARVER SECONDED the motion, and it CARRIED 6-0. ADJOURNMENT COMMISSIONER CARVER MOVED TO ADJOURN. The motion was SECONDED by COMMISSIONER WATKINS, and it CARRIED by unanimous voice vote. CHAIR KING ADJOURNED the regular meeting at 10:12 p.m. ATTEST By: Sheila Smith, Secretary Community Development Department DATE APPROVED: May 16, 2007 April 18, 2007 t KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By: David King, Chair P & Z Commission Meeting Minutes Page 8 of 8 Rpr 18 07 09:08a flndj7Berriie Finke 807487__J5 p.1 To: Planning & Zoning From Andy Finke 522 Leta St. Kodiak, AK. In regards to the issue of the Bells Flats gravel pits. I feel that until the useable gravel is removed and an alternate site is developed that the land use stays the same. I currently own a home about 1800 feet from the gravel pits. Other than once about 5 years ago when there was a silt issue I have no complaints with the location of the gravel pits. I have not seen the silt problem again so 1 guess the problem was corrected. I think that we should start to think about the land use after the gravel is exhausted. I think it is out of the way for a park. But it would make a good fishing wildlife habitat area. Also to the best of my knowledge the royalties from the gravel is a large source of the road service district budget. I believe that keeping a source of income is much better than raising my property taxes to pay for services. I can be contacted at 487-2885 or 539-1957 if you have any questions for me. 1E; UEPWE ; APR 1 8 2007 COMMUNITY DEVELOPMENT DEPARTMENT V( B. ----Original Message From: Len Schwarz [mailto:len_schwarz@fishgame.state.ak.us] Sent: Monday, April 30, 2007 1:16 PM To: Gary Carver Cc: Donn A Tracy; Duane Dvorak; Ed Weiss Subject: Bells Flats Gravel Ponds and Fish habitat. Dear Gary, thanks for dropping by last week to talk about the Bells Flats gravel ponds and their potential to provide for fish habitat and production. Donn and I went out and visited the gravel ponds on April 25. Several possibilities for fisheries enhancement come to mind. 1) The department has programs in place which allows us to stock landlocked ponds and lakes on the road system with rainbow trout and coho. We currently stock over 20 lakes. The main criteria for stocking are that anglers can access these lakes and they can produce catchable fish. 2) We also stock coho smolt, which are intended to migrate to sea and return as adults. Again, access for anglers to fish for the returning adults is a prime criterion for determining if stocking can occur. The existing gravel ponds have some potential to provide rearing habitat for coho fingerlings, or act as an imprinting area for presmolt. A permit from the department to enhance an anadramous return of coho to Russian River would also be carefully reviewed by geneticists, pathologists, and fisheries managers to ensure that existing returns and fisheries were not adversely impacted or complicated. In the case of the Russian River, anadramous enhancement could be considered, and not denied out of hand, because the genetic integrity of the Russian River coho has already been compromised by past releases of coho from stocks of other origin before stringent genetic criteria were established for stocking projects. 3) The natural springs which are occurring between the Russian River and the ponds are an attractive site to install and operate a hatchery raceway. Fish (king, coho, or rainbow/steelhead) raised in the raceway could be released along the Kodiak Road system, as well as in Russian Creek. River channels in the Russian River drainage are dynamic and constantly changing in response to floods and other natural conditions. Human development can also influence the physical character of the water course. The potential listed above address the conditions as they now exist and do not consider other possible future developments, such as the Russian River entering and leaving the gravel ponds We understand that the Kodiak Island Borough leases these lands for gravel extraction and is currently considering the specifics of a new lease. If at the end of their process, the Borough identifies a need or desire to develop fishery enhancement opportunities or provide for fish habitat, please contact us and we will assist you as our expertise allows. Designing the contours and depth profiles of ponds for fish production, or engineering raceway facilities, goes beyond the expertise of the Kodiak area office. However, I am confident that headquarters staff within the Department will be able to provide you some level of assistance in this regard. Again, local staff can help with the process for identifying existing water bodies for stocking. Hopefully, this information will be of assistance at your May 7th meeting, I do not plan to attend as I don't think I can provide any more information than 1 have above. Len Schwarz LA. bn+ ok t on -. L3 ubrn i4 y-eci by Qcen+ t,Ookktr 5 bef o0z (T uaI fit A resolution of the Kodiak Borough P &Z commission, recommending a disposal by lease for fair market on 1..k_t value to Brechan Enterprises Borough land known as TractsB -1, B -2, B -3 for the purposes of gravel extraction and tract B-4a for the purposes of maintaining the by -pass stream and remediation of Tract B-4a. Now therefore, be it resolved by the KIB P &Z commission that: Section 1: The KIB P &Z commission, in accordance with title 18 of the MB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B -1 B -2 B -3 and B-4a Bells Flats Subdivision subject to certain stipulations Section 2: Stipulations 1)A reclamation plan, subject to the approval of the P &Z commission and the Borough Assembly , be developed prior to leasing theses tracts and that remediation of tract B-4a begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2)The negotiated lease be brought before the P &Z commission prior to its final approval by the assembly 3) The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 4) The minimum extraction depth of the existing lease agreement will be restated in .a new lease agreement as a Maximum extraction depth subject to Assembly approval through lease negotiation process_ 5) The lessee shall develop a hydrologic management plan for the site with in 8 months of lease start. 6) The lease shall be for a period of 3(three) years with an option to renew at the discretion of the Assembly , not the lessee, for 1(one)additional three(3).year lease. 7) The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement , for a period not to exceed 3 (three) months from the normal expiration of that agreement in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction operations will cease, the demobilization requirements of the existing lease will be in affect 8) As tract B-4a has a direct impact on the local residential water table it is not surplus in the strict sense of the word and access shall be for remediation and by pass stream maintenance 9)Hours of operation (per Brechan Ent letter March 1, 2007)shall be lam to 7pm Monday through Saturday , with no work on Sundays. 10) The buffer zones laid out in the Brechan letter dated March 1 2007, shall . he maintained . and kept in a topography that blends smoothly into the surrounding area. Continued on next page with item 11 LL; Lr APR 1 8 2007 �. . ,£,p.,t UNi {.. EvE c PREEN` 11) All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of tract B-1 Section 3 Findings- 1) The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womans Bay Comprehensive Plan and the reasonable concerns expressed by the WOITIallS Bay residents through the public hearing process. 2) The need for continued hydrologic management and reclamation of the site favors the continued lease of the B tracts to the party most responsible for the current disposition of the site, Brechan Enterprises 3) the site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womans Bay Comp. Plan is intended to be for recreational use or residential development ADOPTED BY THE KODIAK ISLAND BOROUHG PLANNING AND ZONING COMMISSION, THIS EIGHTEENTH DAY OF APRIL, 2007 Current Location P & Z Case # 07 -021 Mike Martin A Title 18 Land Disl according to KIBC 18.20. 18.40, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) **,4*. 4°i4*#.44* p r 1,4; v. 4•P 44 Feet 0 5001,000 2,000 3,000 I I I 7 Legend Subject Parcel Map prepared for the purpose of showing the General location of the Kodiak Urban area. June. 2005. Alaska Highway System. GPS centerline data, National Highway System, Highways, Roads. Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to -date. Kodiak Island Borough Community Development Department. Feet 0 5001,000 2,000 3,000 4,000 5,000 I i I I I t 1 i l t 1 Current Zoning P & Z Case # 07 -021 Mike Martin A Title 18 Land Disposal, "according to KIBC 18.20. 18.40, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) Legend Subject Parcel Business Conservation Industrial Light Industrial Natural Use Public Use Single Family Residential /% Two Family Residential Multi Family Residential Retail Business Rural Residential Rural Residential 1 Rural Residential 2 Split -Lot Zone Map prepared for the purpose of showing the Zoning of the Kodiak Urban area. June. 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up -to -date. Kodiak Island Borough Community Development Department. Public Hearing Item VI-B Kodiak Island Borough Planning and Zoning Commission MEMORANDUM DATE: April 11, 2007 TO: Planning and Zoning Commission FROM: Community Development Department STAFF: Duane Dvorak, Associate Planner SUBJECT: CASE: Information for the April 18, 2007, Regular Meeting 07-021 APPLICANT: Brechan Enterprises, Inc. AGENT: Mike Martin REQUEST: A Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 18.40, and a request for material sale per KIBC 18.60.) LOCATION: Bells Flats Alaska Subdivision, Tracts B1 — B4A. 12247, 125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road. ZONING: I — Industrial. Twenty-seven (27) public hearing notices were distributed on March 19, 2007. Date of site visit: Zoning History: April 6, 2007 The 1968 Comprehensive Plan addresses this area as, "Formerly part of the Naval Station Reserve, Bells Flats is located 4 miles southwest of the Naval Base. It comprises a broad valley at the head of Women's Bay containing approximately 1,200 acres of land well suited to residential and industrial uses. Approximately 12 families are now living in the area". Ordinance 1969-30 zoned Bells Flats Tracts A & B as I — Industrial. 2. Location: Approximately eleven (11) miles southwest of the City of Kodiak. 3 Physical,: The parcels subject to this request are located in a historical river channel. 4. Legal: Bells Flats Tr B-1 of Tr B Bells Flats Tr B-2 of Tr B Bells Flats Tr B-3 of Tr B Bells Flats Tr B-4A of Tr B 5. Lot Size: Bells Flats Tr B-1 of Tr B Bells Flats Tr B-2 of Tr B Case 07-021/Staff Report 19.95 acres 19.72 acres Page 1 of 12 P & Z: April 18, 2007 - Public Hearing Item VI-B Bells Flats Tr B- of Tr B Bells Flats Tr B-4A of Tr B 20.07 acre 24.64 acres O. Existing Land Use: Industrial — Grave Extraction. 7. Surrounding Land Use and Zoning: Abutting & adjacent lands to the north are zoned RR-1 Rural Residential Zoning District, and the predominate use is single family residential. Abutting & adjacent lands to the east are zoned PL — Public Use & the use is vacant. Abutting & adjacent lands to the south is zoned C - Conservation Zoning Oisthct, and the use is vacant. Abutting & adjacent lands to the west are zoned RR-1 Rural Residential Zoning Oiotriot, and the predominate use is single family residential. APPLICABLE KIB CODE & POLICY PROVISIONS The following sections of the Kodiak Island Borough Code and the Kodiak Island Borough Coastal Management Program are applicable to this request: 18.20.030 Review by planning commission--Assembly approval. Except for disposal required by law: A. Each disposal of borough land is subject to review by the planning commission before submission to the assembly. The commission by resolution shall make a recommendation to the assembly regarding the proposed land disposal. B. Borough land disposal that are not subj ct to approval by ordinance are subject to approval by assembly resolution. The resolution shall specify the terms and conditions upon which the disposal will be offered. 18.20.060 Applications. A. Application for a disposal of borough land under this title shall be filed with the Community Development De dm t Only applications completed in full and accompanied by a non- refundable filing fee as set forth in the current fiscal year schedule of fees and charges will be accepted. B. The filing of an application shall not in any way vest in the applicant any right to the borough land or to the use thereof applied for. 18.20.170 Definitions. As used in this chapter: A. "Borough land" means any real property or interest therein owned by the Kodiak Island Borough; B. C. means any transfer of real property authorized under this title; and D. "Real means any interest in real property under the law of the state of Alaska, including but not limited to a fee, easement, or leasehold interest, and a revocable license or permit to use real property. 18.4O.D2O Negotiated leases. A. The assembly may approve by resolution the issuance of a negotiated lease for a period not to exceed five (5) years if the annual rental value of the property is five hundred (500) dollars or less and no competitive interest for the property is apparent. Case 07-021/Staff Report Page 2 of 12 P & Z: April 18, 2007 Public Hearing Item VI -B 18.40.030 Term of lease. Leases may be issued for a period not to exceed fifty -five (55) years. The term of any given lease shall depend upon the desirability of the proposed use, the amount of investment in improvements proposed and made, and the nature of the proposed improvement with respect to durability and time required to amortize the proposed amendment. 18.40.040 Terms and conditions of leases. The provisions of this chapter and all other applicable provisions of this code are binding as terms and conditions of any lease of borough land. These terms and conditions, if not fully set forth in the lease, are incorporated by reference as though fully set out in full in the lease. The lease shall contain such additional terms, conditions, and restrictions as the borough determines to be in its best interest. 18.40.050 Minimum acceptable annual rental. A. Annual minimum rentals shall be computed at the prevailing interest rate used in the conventional mortgage market in Kodiak, based on the appraised fair market value for the land and /or improvement rights being leased. This minimum shall be the lowest acceptable bid in the event of an auction, lease by sealed bid, or negotiated lease. B. No land shall be leased for less than the approved, appraised, annual rental except as provided in section 18. 20.020 of this title. Chapter 18.60 Material Sales 18.60.010 Materials available. All materials to which the borough holds title may be sold pursuant to contract approved by the assembly. The manager shall recommend to the assembly a form of contract, including limitations, conditions, and terms of the sale. "Materials" means nonrenewable, natural, extractive resources including, but not limited to, gravel, sand, soil, rock and peat. "Materials" shall be considered real property for the purposes of this title. 18.60.020 Additional application information. A. An application for a material sale shall include, in addition to requirements in section 18.20.040 of this title, a map showing or containing the following: 1. the location of the material site area oriented to topographic features or survey markers; 2. the location of adjacent property boundaries, roads and watercourses; 3. names of adjoining property owners; and 4. a vicinity map of appropriate scale to properly locate the application area. B. The information required in subsection A of this section is waived when applying for material from a borough- designated material source. 18.60.040 Volume determination. Measurements to determine the volume of material sold may be by cross sectioning, weighing, or other method considered to give accountability of the materials sold. The purchaser shall bear the cost of volume determination for all material sales. The borough, on its own motion, may make additional volume measurements to verify the accuracy reported. 18.60.050 Method of payment. A. A minimum of one thousand (1,000) dollars shall be paid to the borough when executing a negotiated material contract. No refund will be made if the volume removed is not equivalent to the value of the initial payment. The balance of the negotiated contract price is due as provided in the sale contract. B. Competitive bid offerings shall require the following payment schedule: 1. an initial payment of one thousand (1,000) dollars or ten (10) percent of the total contract value, whichever is more, shall be deposited at the time of the bid award; Case 07- 021 /Staff Report Page 3 of 12 P & Z: April 18, 2007 Public Hearing Item VI-B 2. the balance of the contract price shall be due as provided in the material sales contract; 3. no refund of the initial payment will be made if no material or the equivalent valued material is not removed; and 4. up to two thousand (2.000) dollars of the initial payment may be retained by the borough as payment deposit throughout the life of the contract to be applied to the final payment due for materials not earlier paid for. 18.60.060 Appraisal. A. The assembly shall establish, at annual intervals, a minimum unit price for material tobe sold. � B. All new and existing contracts for sale of material shall be adjusted automatically to reflect the price established under subsection A of this section; prmvided, that a contract price established by competitive bidd|ng, if higher than the general price established by the aooemb|y, shall not be affected. 18.60.070 Performance bond. The man require the purchaser to provide a performance bond in an amount he determines necessary to protect the borough's interest and ensure satisfactory compliance of the contract stipulations. A purchaser may use a state-wide bond to meet the performance bond requirements. Case 07-021/Staff Report ' Public Hearing Item VI-B COASTAL MANAGEMENT PROGRAM APPLICABLE POLICIES 5.3.1 GENERAL POLICIES Land and Wate Activities 3. Compatibility Activities on and uses of coastal lands shall be compatible with adjacent land use to the greatest extent feasible. Consistency: Yes. The Kodiak Island Borough, as land owner, has control over the terms and conditions of this disposal by lease. The lease terms and conditions can address many issues of compatibility that are not addressable through the I-Industrial zoning standards. Geophysical Hazards 1. Utilization The utilization of potentially hazardous lands shall be safe and sensible. Developments shall be sited to minimize the risk to life and property to the extent feasible and prudent. Consistency: Not Applicable. This site is not located in a known hazardous area. 3. Coastal / Seiche flooding Development within thirty (30) feet elevation above mean sea level (100 year recurrence or 1 percent probability event) shall be sited, designed, and constructed to mitigate against the potential hazard of coastal I seiche flooding. Consistency: Not Applicable. This site is not located within the 30 foot elevation above mean sea level. 8. Riverine Flooding Development shall not take place to the extent feasible and prudent with the 10-year recurrence (or 10 percent probability) floodplain in order to protect life and property and to avoid construction of unnecessary flood control structures at public expense. Development considered necessary within the 1-year (one percent probability) floodplain shall be, to the extent feasible and prudent, subject to proper siting, design, and construction measures to minimize the potential flooding hazard. Consistency: Unknown. It does not appear that the site is within the 10-yeer floodplain. Nevertheless, it seems likely that the material being extracted was deposited in this location by the adjoining river drainage at some point in the distant past. Resource Enhancement and Protection 1. Enhancement The maintenance and enhancement of fish, wildlife, and vegetative resources shall be a priority of the Kodiak Island Borough. Case 07-021/Staff Report \ Public Hearing Item VI-B Consistency: Yes. The development and utilization of the site is expected to conform to appUcable fish and game regulations promulgated by the Alaska Department of Fish & Game. 2. Habitat Protection Management of sensitive areas such as estuaries, wetlands, tideflats, beachoa, rivers, streams, lake systems, and high energy coasts shall be done in accordance with ACMP Standard 6 AAC 80.130 (Habitats). Federal and state regulations should guide development in anadromous fish streams, in the vicinity of bald eagle neeto, and other coastal habitat areas. Consistency: Yes. Although development will not be occurring within an anadromous water body, reasonable efforts should be required to protect the adjoining river habitat. 3. Siting and Des Development features. Consistency: ign. should be designed, locate and built to preserve or wisely use natural Yes. Minimal desi nhsraquirwdfororesounzeextnacbon There is a need for a clear and concise reclamation plan however, to ensure that the remaining buffer areas are returned to a productive state at the conclusion of resource extraction activities. 4. Natural Processes Estuaries, tideflats, wetlands and lagoons shall be managed so as to assure water flow, natural circulation patterns, and adequate nutrient and oxygen levels. Dredging and filling is not permitted in these areas unless approved by the Community Development Department, U.S. Army Corps of Engineera, and other appropriate state and federal agencies, Consistency: Yes. It appears that efforts are being made to ensure that natural water migration and circulation patterns are preserved while attempting to isolate the turbidity caused by the disturbance of the pond that has been created by past excavation efforts. Prior to refilling any portion of the excavation a wetland jurisdiction review should be conducted by the U.S. Army Corp of Engineers to ensure that the re-filling of man-made wetlands is allowable under the COE jurisdiction. Case 07-021/Staff Report Public Hearing Item VI -B STAFF COMMENTS Brechan Enterprises has requested to re -lease Tracts B1 through B -4A (hereinafter "B Tracts ") for the purposes of continued resource extraction. In the letter dated September 20, 2006, which included a ground survey and material analysis, Brechan Enterprises has requested to lease the B Tracts for an additional 15 years which would be structured in the form of a five (5) year lease with two five (5) year extensions. According to the letter, this would allow for continued resource extraction until June 2022 or until the resource is depleted. Although the letter requesting disposal was submitted to the KIB in September 2006, it was not recognized by staff as a disposal request until February 2007. At that time a meeting between borough staff and representatives from Brechan Enterprises was scheduled to discuss the request and to get a better idea of what the request entails. Brechan Enterprises was briefed by staff on the applicable provisions of the draft Womens Bay Comprehensive Plan Update and in response they submitted an additional letter dated March 1, 2007 to accompany the application and fee for this request. The letter addresses, among other things, hours of operation, excessive noise and buffer zones. Based on past review by the KIB Assembly dating back to 1982, it appears that this area is surplus to the borough's need in the sense that the site has been previously disposed by lease for resource extraction purposes. The 2007 Womens Bay Comprehensive Plan recognizes this resource extraction use may need to continue for an indeterminate period until another material source can be identified and made available for use. The plan recommends that further lease of the B Tracts be limited to the minimum time frame necessary to identify and prepare an alternative material site. The plan identifies the future use of the B Tracts for recreational and /or residential development as part of a reclamation plan for the area. It is staff's understanding that a reclamation plan accompanied the original lease, but staff has not been able to locate such a plan that would clearly identify the disposition of the land after all resource extraction activities have been concluded. Alternative gravel sources have been investigated by the Gravel Task Force which was empanelled by the KIB Assembly for that purpose. At this time those investigations of still underway and an alternative material site that meets the requirements of industry and the community has yet to be identified. Title 18 — Real Property Disposal is generally accepted to be the exclusive province of the Borough Assembly. The role of the Planning and Zoning Commission in regard to such matters is defined by two chapters of the code. Authority of the commission to participate in the process is found in KIBC 2.40.030 Powers and duties, which reads, "The commission shall accomplish the following: (H.) - Make investigations regarding any matter related to borough planning ". The specific contribution to the process, which the commission is expected to make, is to advise the Assembly, i.e., "The commission by resolution shall make a recommendation to the assembly regarding the proposed land disposal." (KIBC 18.20.030 above). Because this request is intended to be both a lease of the land and a material sale, this disposal involves the applicable provisions of both KIBC 18.40 with regard to leasing and KIBC 18.60 with regard to material sales. In the past the Assembly preferred to lease the B Tracts as two separate extraction areas in order to ensure that there was competition for material in the community. In its current condition, staff does not believe that there is adequate upland area remaining to support more than one extraction operator. If the Assembly desires to foster competition, it would need to consider whether to make this disposal as a competitive offering to a single operator to simply to lease the land to the requestor in this case. According to KIBC 18.20.060.B the fact that an application for disposal is filed does not vest any right in the disposal requested. The Assembly is the ultimate authority in determining if a disposal is to occur and, if approved for disposal, how that land disposal might be structured. The only apparent limit on this authority according to KIBC 18.20.050 is a requirement to submit the disposal for approval of borough voters if the value of the property is more than $250,000 and the land is to be disposed of to a single individual, partnership or corporation by means other than outcry auction. The value of the land must be determined by appraisal within 90 days of the proposed disposal date as provided by KIBC 18.20.130. Case 07- 021 /Staff Report Page 7 of 12 P & Z: April 18, 2007 - Public Hearing Item VI-B The rospect of hav new lease agreement in place before the existing lease expires on June 30, 3007 seems to be unlikely given the magnitude of the request and changes in the community since the last disposal was approved in 1982. If the Assembly is inclined to approve a new dispoaa|, staff recommends that approval for an "early right of entry" onto the property should be considered as a means to bridge the gap until a new agreement can be approved. While staff is not recommending this as an extension of the existing agreement, it would seem reasonable to bind the "early right of entry" to the existing lease terms for an additional three to six months in order to ensure that a new agreement can be negotiated by the administration and approved by the Assembly for further leasing of the site. Staff believes that the existing a t may form the basis of a new agreement subject to the usual re- ovaluation of lease raten, material royalties and insurance requirements. There ona, howovar, certain aspects of a new lease that staff believes should be considered in the process of negotiating a new lease agreement for the B-Tracts. These suggestions are based on public input from the Womens Bay community during the development of the 2007 Womens Bay Comprehensive Plan which was adopted in March 2007. 1. Provisions offered by Brenhon Enterprises in the letter dated March 1, 2007 should be incorporated into the agreement in order to make these conditions binding upon the leaso; 2. Options to renew should be worded in such a way that the option to renew is subject to the discretion of the Assembly and not a right to be exercised by the lessee. This will allow the Assembly an opportunity to periodically review compliance with lease provisions and to determine whether other material extraction options are available that would permit phasing out of the B-Tract extraction operations. . 3. Requirement for a reclamation plan tUindioab� the proposed cond�ionof the |and at the time resource extraction activities are concluded. In this hagard, the process of reclamation should be phased in over time for areas no longer subject to active extraction activities. The 2007 VVomena Bay Comprehensive Plan calls for the land to be made available for recreation or residential purposes. From the staff site vimit, it appears that much of the original overburden from the B-Tracts has been stockpiled in the large berms located along Middle Bay Drive. It may be prudent to require that this overburden be redistributed on the areas disturbed by extraction activities in order to return the site to some semblance of the natural topography of the remaining uplands prior to extraction. This is not to suggest the remaining buffer areas should be graded flat, but that the natural undulations of surrounding areas can be approximated if desirable. 4. Require the lessee to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with all existing regulations affecting the extraction use and the potential impact on the surrounding habitat and residential areas. 5. Review the minimum extraction depth of the existing agreement and perhaps consider a maximum extraction depth for the site. O. Development of a hydrological management plan for the site. Staff is in receipt of an undated hydrological study submitted by a member of the commission along with a recommendation for certain leasing conditions. From the correspondence and the map it is unclear who the preparation of the map may be attributed to. 00evedhm|oas, the information presented on the map is beyond the qualifications of Community Development Department staff to adequately review. Staff has submitted the map information to the Alaska Department of Natural Resources for review, hovveve, it is unlikely that a response will be received on this issue prior to the Commission's consideration. of this request. Case 07-021/Staff Report _ Public Hearing Item VI-B One of the recommendations accompa ing the map is to reduce the proposed lease area by eliminating Tract B-4A and haif of Tract B-3 along the approximate approximate Une of the existing pond edge. Staff did discuss this prospect with the petitioners and they indicated an ongoing need to have access to this site in order to use the pond on Tracts B-3 and B-4A as part of their water quality management plan. In addiUon, they have developed water bypass facilities that are routed through these tracts which are necessary to isolate the ponds from interacting with the adjoining anadromous stream. Staff would further note that by dropping Tract B-4A and a portion of B-3 from the proposed lease area may forestall any further reclamation of those areas when the extraction use is concluded. Staff would suggest that phasing out the B Tract leases should include more than simply reducing the leasehold area of active extraction activities and that areas no Ionger needed for active extraction should be reclaimed within the context of proposed lease disposat. If these areas are not under lease then there will be no way in order to require reclamation at some later date. With regard to the issues of hydrological management and site reclamation staff notes that potentially leasing the site to another operator, in the context of a competitive disposal, raises certain concerns. Another operator is uniikely to want to be made responsible for prior disturbances in terms of hydrological management and final reclamation of the site. In this regard, staff believes that continued "sole-source" leasing of the site to Brechan Enterphmea, which has previously assumed the leasehold interest of other predecessors in interest such as Aleutian Materials, is the most responsible party to have operating the site in terms of continued concern about hydrological management of the site and eventual reclamation. Staff has been made aware of four or five shallow water wells that went dry for a short period inthiapoat month. There has been speculation that the unseasonably cold winter and lack of precipitation contributed to the problem. There has also been speculation that the prior extraction activities located across Bells Flats Road may also be a factor in this observed phenomenon. Something that the Commission and Assembly may want to consider in this regard is to reserve a portion of Tract B-4A for a potential community well to serve these dwellings should they desire to collectively develop a deeper community water well capable of supplying the water needs of affected households. This area could be reserved for future recreational or open space use that would not interfere with the water well reservation. Case 07-021/Staff Report Page 9 of 12 P & Z: April 18, 2007 Public Hearing ItemN-B RECOMMENDATION u�������nmnxmn�~n����sx o��n� Staff believes the current request meets the standards for a land disposa by lease APPROPRIATE MOTUOm Should the commission agree with the recommendation of staff, the appropriate motion is: Move to adopt the following resolution containing a recommendation to the Borough Assembly regarding the land disposa reviewed bv the Commission in Case O7-021. A RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMK8|SS|ON, RECOMMENDING A DISPOSAL BY LEASE FOR FAIR MARKET VALUE TO BRECHAN ENTERPRISES OF APPROXIMATELY 84A ACRES OF BOROUGH LAND DESCRIBED AS TRACTS B-1, B-2, B-3 and 8'4A, BELLS FLATS ALASKA SUBDIVISION FOR THE PURPOSE OF RESOURCE EXTRACTION, WHEREAS, Kodiak Island Borough Code (KIBC) 18.20.030 requires each disposal of Borough land to be reviewed by the Planning and Zoning Commission before submission to the Assemby; and, WHEREAS, the Planning and Zoning Commission is required under KIBC 18.20.030 to make a recommendation on the disposal by resolution before the case can be forwarded to the Borough Assembly; and, VVHEREAS, the principal purpose of the Commission's recommendation is to determine whether the land is considered to be surplus to the Borough's need; and, WHEREAS, the Planning and Zoning Commission held a public hearing on April 18, 2007, to consider the land disposal request made by Brechan Enterprises, Inc., for a land disposal by lease for fair market value; Case 07-021/Staff Report Page 10 of 12 Public Hearing Item VI -B NOW, THEREFORE, BE IT RESOLVED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION THAT: Section 1: The Kodiak Island Borough Planning and Zoning Commission, in accordance with Title 18 of the Kodiak Island Borough Code, recommends the approval of a lease disposal by the Kodiak Island Borough Assembly of a land for fair market value of approximately a 84.4 acres comprised of Tracts B-1, B -2, B -3 and B -4A, Bells Flats Alaska Subdivision, subject to certain recommended stipulations. Section 2: Stipulations. 1. Provisions offered by Brechan Enterprises in the letter dated March 1, 2007 shall be incorporated into the agreement in order to make these conditions binding upon the lease; 2. Options to renew shall be worded in such a way that the option to renew is subject to the discretion of the Assembly and not a right to be exercised at the discretion of the lessee. 3. A reclamation plan, subject to approval by the Assembly, shall be developed in the initial five (5) year lease period as part of this disposal to provide for the reclamation of the lease area at the time resource extraction activities are to be concluded. The process of reclamation_ should be phased in over time for areas no longer subject to active extraction activities. 4.. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 5. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a maximum extraction depth subject to Assembly approval through the lease negotiation process. 6. The lessee shall develop a hydrological management plan for the site. 7. The Assembly may permit an "early right of entry" into the lease area, under the provisions of the existing lease agreement, for a period not to exceed six months from the normal expiration of that agreement on June 30, 2007, in order to allow for the full negotiation of a successor lease agreement. Should a lease agreement not be approved by the Assembly after this time, extraction operations will cease after December 31, 2007 and the demobilization requirements of the existing lease agreement for the site will be in effect at that time. 8. The Assembly may designate or reserve an area within the buffer area on Tract B -4A as a community well site if needed by nearby residential users for a future water supply. Case 07- 021 /Staff Report Page 11 of 12 P & Z: April 18, 2007 Public Hearing Item VI-B Section 3: Findings. 1. The proposed lease recommendation, subject to stipulations, gives due deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by Womens Bay residents through the public hearing process. 2. The need for continued hydrological management and future reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the site, Brechan Enterprises. 3. Conditions of site operation offered by the petitioner addressing hours of operation, noise, buffer areas, and other issues, will be included in the lease agreement in order to ensure they have binding affect 4. The site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens Bay Comprehensive Plan is intended to be for recreations use or residential development. ADOPTED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION, THIS EIGHTEENTH DAY OF APRIL, 2007 Case 07-021/Staff Report Page 12 of 12 P & Z: April 18, 2007 Duane Dvorak ;- From: Bud Cassidy Sent: Thursday, April 05, 2007 8:31 AM To: Duane Dvorak Cc: Rick Gifford Subject: B tract photo- ground water copy.pdf Attachments: B tract photo- ground water copy.pdf Duane - Gary had dropped off some hard copy of this photo to Rick. Rick and I got together before he left and he wanted me topass these to you for your P&Z lease case. I will provide you the hard copies that Gary provided Rick. Gary made the following comments based on this photo: • The low water table (winter drought) has left some of the adjacent neighborhood water wells (his included) dry. They all seem to be shallow wells at 15' because, he says, that bedrock is below and it is expensive to drill wells • He attributes the lack of well water to the lack of recharge of the area due to no rain, • He sees value in keeping the lower pond as a undisturbed area because in his estimation needs to be available for recharge of the groundwater and wells. So he is suggesting the following: • Only leasing the upper pond to Brechan • Leaving a dike, between the two ponds as a condition of the lease so that the lower pond acts as that recharge area for neighborhood wells. • He is thinking that Brechan .does not need the lower pond any, because it is "played out" as far as a gravel source (my words) • It would also show, he suggests, that the Borough is serious in slowing moving Brechan off the site. He also said that he went to talk with Brechan. The party he made contact with was their finance fellow. Anyway, it sounded like you were drafting a staff report on the lease request and he wanted to provide this information Should you have any questions, let me know. Bud B tract photo- ground water co... e zooz oipitaicbr e w41!5g. " k ' yrtriaimtng '"ittiii !Ma CO+ac"' "' �� B Tract Gravel Pit 'Groundwater Hydrology allitgowin ateflec Elev (ft) A 90 Present .round surface 80 70 60 50 40 •• Ground;'atr Perm Arrows show lowered water table resulting from excuvation of the gravel pits. Water surface elevation In pits controls groundwater table elevation In adjacent gravel deposits. Former o� zater blegro� n ds�ace Plt water surface F_r-erzoundsu_ Prtwater, _urface resent water surface Water nttnm nr nrf omo p e resent . round surface t rwae--- -Pre e low flow water table A' B Tract Gravel Pit Groundwater Hydrology 4 r - ly , rr•'I,.a' i•urr �:....^",c , i1. ;i?'olriter' Sr-4.1;55094t ?152 °302:0x., Wa11"uv 1101,' 50 40 Sfriaming "1111111111 1o0'x "V' ; ,47i- " k. " *•« c:i r :" ' Arrows show lowered water table resulting from excuvation of the gravel pits. Water surface elevation in pits controls groundwater table elevation in adjacent gravel deposits. _ _ Former Former round atr round'sgrtace ^� �ate�t.l- Pit water surface Bottom of pit ...former yc,�round surfface Pit—watatersuurface Present low f ow • 17-- - water surface Water . Bottom of pi A' Present • round surface "biro t nrrwataraab7e:.7 °' ---• Present low flow water table-I CONDITIONS OF APPROVAL 1. Prior to . final plat approval, prepare a drainage plan for review and , approval by the City of Kodiak Building Department and obtain a new drainage /grading permit if required. FINDINGS OF FACT 1. Subject to conditions of approval, this plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat provides a subdivision of land that is consistent with adopted Borough plans for this area. The question was called, and it CARRIED 6 -0. COMMISSIONER CARVER MOVED TO GRANT preliminary approval for the vacation of a 20 foot wide electrical utility easement per KIBC 16.60, to be replaced with a new 20 foot wide utility easement to coincide with the new Lot line configuration granted preliminary approval for Case S07 -012, subject to the following conditions of approval, and to adopt the findings contained in the staff report dated April 11, 2007 as "Findings of Fact" for this case. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Public hearing closed: Regular session opened: CONDITIONS OF APPROVAL 1. Prior to final plat approval the plat shall be submitted to the Kodiak Island Borough Assembly and the City of Kodiak Council for approval of the easement vacation. FINDINGS OF FACT 1. The easement to be vacated will be replaced by a comparable utility easement. 2. Kodiak Electric Association was the only utility that responded to the vacation request and KEA indicated No Objection to the requested vacation. The question was called, and it CARRIED 6 -0. B) Case 07 -021. Request a Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Dvorak reported the request involves 4 Tracts of land, approximately 80 acres for disposal. These parcels have previously been disposed for a 25 year period that is due to expire June 30, 2007. That disposal was executed by lease, and was for 5 years and was renewed or extended in 5 year increments. Originally, the leases were to 2 different companies that eventually merged together into one entity. The petitioners submitted information indicating their desire to request a new disposal by lease. They have met with staff and discussed the Womens Bay Comp Plan, which is April 18, 2007 srct.-(4— P & Z Commission Meeting Minutes Page 4 of 8 what staff refers to when looking at these land disposal requests. Staff hasn't found any indicators that the Borough has any use for this property for municipal purposes. There is indication that eventually these properties will be disposed of for other purposes at such time as the resource extraction activity is either terminated or abandoned. From staff's perspective most of the concerns have been mentioned, if not addressed in the staff report. Staff did recommend a disposal and a number of stipulations which would address concerns that have been raised in the process. In addition to the material staff provided, the petitioners have provided a survey they prepared last fall showing the existing conditions basically at the close of the last construction season. COMMISSIONER CARVER also provided an alternate recommendation for a partial disposal. Staff doesn't think a partial disposal would be the best recommendation. In addition, there was a hydrological analysis provided in the packet. COMMISSIONER CARVER also provided a partial reclamation plan, an extraction analysis, and a quantity analysis of material. Staff hasn't had a chance to look at this. Dvorak stated that COMMISSIONER WATKINS has provided a substitute resolution with alternate stipulations, and copies have been provided to the public and commissioners. The commission had a discussion. COMMISSIONER WATKINS MOVED TO ADOPT the following resolution containing a recommendation to the Borough Assembly regarding Land Disposal reviewed by the Commission Case 07 -021. A resolution of the Kodiak Borough Planning & Zoning Commission, recommending a disposal by lease for fair market value to Brechan Enterprises Borough land known as Tracts B -1, B -2, B- 3 for the purposes of gravel extraction and Tract B -4A for the purposes of maintaining the by- pass stream and remediation of Tract B -4A. Now therefore, be it resolved by the Kodiak Island Borough Planning &Zoning Commission that: Section 1: The KIB Planning & Zoning Commission, in accordance with Title 18 of the KIB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B -1, B -2, B -3, and BO4A Bells Flats Subdivision subject to certain stipulations. Section 2: Stipulations 1. A reclamation plan, subject to the approval of the P &Z Commission and the Borough Assembly, be developed prior to leasing these tracts and that remediation of Tract B -4A begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining Tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2. The negotiated lease be brought before the P &Z Commission prior to its final approval by the Assembly. 3. The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. April 18, 2007 T-4+ P & Z Commission Meeting Minutes Page 5 of 8 4. The minimum extraction depth of the existing lease agreement will be restated in a new lease agreement as a Maximum extraction depth subject to Assembly approval through lease negotiation process. 5. The lessee shall develop a hydrologic management plan for the site within 8 months of lease start. 6. The lease shall be for a period of 3 years with an option to renew at the discretion of the Assembly, not the lessee, for one additional 3 year lease. 7. The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement, for a period not to exceed 3 months from the normal expiration of that agreement in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction . operations will cease, the demobilization requirements of the existing lease will be in affect. 8. As Tract BO4A has a direct impact on the local residential water table is is not surplus in the strict sense of the word and access shall be for remediation and bypass stream maintenance. 9. Hours of operation (per Brechan Enterprises letter dated March 1, 2007) shall be 7 am to 7 pm, Monday through Saturday, with no work on Sundays. 10. The buffer zones laid out in the Brechan letter dated March 1, 2007 shall be maintained and kept in a topography that blends smoothly into the surrounding area. 11. All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of Tract B -1. Section 3 Findings 1. The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womens Bay Comprehensive Plan and the reasonable concerns expressed by the Womens Bay residents through the public hearing process. 2. The need for continued hydrologic management and reclamation of the site favors the continued lease of the B Tracts to the party most responsible for the current disposition of the site, Brechan Enterprises. 3. The site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womens Bay Comprehensive Plan is intended to be for recreational use or residential development. ADOPTED BY THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION, THIS EITHTEENTH DAY OF APRIL, 2007. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing opened: Mike Martin spoke opposing P &Z's motion. Nick Troxell spoke in favor of the request. ct4 April 18, 2007 P & Z Commission Meeting Minutes Page 6 of 8 Sandra Perry asked if any of the commissioners seen this resolution before tonight, have they had a chance to study or look at it, and who prepared it? COMMISSIONER WATKINS stated no one else has seen it before tonight, and he was the one who wrote it. Sulua Stager spoke opposing the request and would rather have a park. John Sessom from Brechan is not happy with the commission. Chris Lynch is opposed to the P &Z resolution. John Miller spoke opposing the P &Z resolution. Howard Weston attested to high quality Brechan material. Don Lawhead spoke opposing the P &Z motion. Judy Kidder spoke in favor of the request. Bob Hales supports the request. Dave Froehlich spoke in support of the request. George Kontra spoke in support of the request. Rusty Pruitt spoke in support of the request. Mike Milligan spoke in support of the request. Jim Towk spoke in support of the request. Kevin Arndt phoned in to state this pit should be utilized to its fullest which could possibly be 12 more years. Tim Booch spoke in support of the request, but stated we need a clear reclamation plan. He also commended COMMISSIONER WATKINS and the P &Z. Lorne White spoke in support of the request. Joe D'Elia stated the Borough should hire a consultant to do a hydrology study. He would also like the Borough to fund the service district to or have Brechan apply calcium chloride or water to the road surface during dry spells to control the dust. Lisa Booch stated we need a reclamation plan that they will talk to us about and need to work together. Don Mather spoke in support of the request. Tess Dietrich is confused about the whole process. CHAIR KING called a 10 minutes recess. CHAIR KING called the meeting to order. Marie Rice stated a hydrology study is needed. Dave Heauman spoke in favor of the lease, but a hydrology study and a good reclamation plan is needed. April 18, 2007 P & Z Commission Meeting Minutes Page 7 of 8 Josh (inaudible) feels we need to stick to staffs motion. Public hearing closed: Regular session opened: A discussion between Commissioners. CHAIR KING called a 5 minute recess. CHAIR KING called the meeting to order. COMMISSIONER CARVER MOVED TO TABLE this present motion until a special meeting on May 2nd. COMMISSIONER KERSCH SECONED the motion. The question was called, and it FAILED 6-0. COMMISSIONER WATKINS MOVED TO CONTINUE this meeting on May 2, 2007 at 7:30 p.m. in the Assembly Chambers. COMMISSIONER JANZ SECONDED the motion, and it CARRIED 6-0. CHAIR KING ADJOURNED the meeting at 10:05 p.m. CHAIR KING re-opened the meeting at 10:10 p.m. COMMISSIONER WATKINS MOVED TO AMEND the motion for the continuation of the meeting to change the date and time to May 7th at 6:00 p.m. in the KIB Assembly Chambers. COMMISSIONER CARVER SECONDED the motion, and it CARRIED 6-0. ADJOURNMENT COMMISSIONER CARVER MOVED TO ADJOURN. The motion was SECONDED by COMMISSIONER WATKINS, and it CARRIED by unanimous voice vote. CHAIR KING ADJOURNED the regular meeting at 10:12 p.m. ATTEST KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By: David King, Chair By: Sheila Smith, Secretary Community Development Department DATE APPROVED: May 16, 2007 April 18, 2007 -4, P & Z Commission Meeting Minutes Page 8 of 8 Apr 18 07 0908a And j ..- Bernie Finke To: Planning & Zoning From: Andy Finke 522 Leta Si Kodiak, AK 907487_ 5 p.1 In regards to the issue of the Bells Flats grave] pits. I feel that until the useable gravel is removed and an alternate site is developed that the land use stays the same. I currently own a home about 1800 feet from the gravel pits. Other than once about 5 years ago when there was a silt issue I have no complaints with the location of the gravel pits. I have not seen the silt problem again so I guess the problem was corrected. I think that we should start to think about the land use after the gravel is exhausted. I think it is out of the way for a park. But it would make a good fishing wildlife habitat area. Also to the best of my knowledge the royalties from the gravel is a large source of the road service district budget. I believe that keeping a source of income is much better than raising my property taxes to pay for services. I can be contacted at 487-2885 or 539-1957 if you have any questions for me. C V/ r APR 18 2007 COMMUNITY DEVELOPMENT DEPARTMENT ' VI B ----Original Message From: Len Schwarz (mailto:len_schwarz@fishgame.state.ak.us] Sent: Monday, April 30, 2007 1:16 PM. To: Gary Carver Cc: Donn A Tracy; Duane. Dvorak; Ed Weiss Subject: Bells Flats Gravel Ponds and Fish.habitat. Dear Gary, thanks for dropping by last week to talk about the Bells Flats gravel ponds and their potential to provide for fish habitat and production. Donn and I went out and visited the gravel ponds on April 25. Several possibilities for fisheries enhancement come to mind. 1) The department has programs in place which allows us to stock landlocked ponds and lakes on the road system with rainbow . trout and coho. We currently stock over 20 lakes. The main criteria for stocking are that anglers can access these lakes and they can produce catchable fish. 2) We also stock coho smolt, which are intended to migrate to sea and return as adults. Again, access for anglers to fish for the returning adults is a prime criterion for determining if stocking can occur. The existing gravel ponds have some potential to provide rearing habitat for coho fingerlings, or act as an imprinting area for presmolt. A permit from the department to enhance an anadramous return of coho to Russian River would also be carefully reviewed by geneticists, pathologists, and fisheries managers to ensure that existing returns and fisheries were not adversely impacted or complicated. In the case of the Russian River, anadramous enhancement could be considered, and not denied out of hand, because the genetic integrity of the Russian River coho has already been compromised by past releases of coho from stocks of other origin before stringent genetic criteria were established for stocking projects. 3) The natural springs which are occurring between the Russian River and the ponds are an attractive site to install and operate a hatchery raceway. Fish (king, coho, or rainbow/steelhead) raised in the raceway could be released along the Kodiak Road system, as well as in Russian Creek. River channels in the Russian River drainage are dynamic and constantly changing in response to floods and other natural conditions. Human development can also influence the physical character of the water course. The potential listed above address the conditions as they now exist and do not consider other possible future developments, such as the Russian River entering and leaving the gravel ponds We understand that the Kodiak Island Borough leases these lands for gravel extraction and is currently considering the specifics of a new lease. If at the end of their process, the Borough identifies a need or desire to develop fishery enhancement opportunities or provide for fish habitat, please contact us and we will assist you as our expertise allows. Designing the contours and depth profiles of ponds for fish production, or engineering raceway facilities, goes beyond the expertise of the Kodiak area office. However, I am confident that headquarters staff within the Department will be able to provide you some level of assistance in this regard. Again, local staff can help with the process for identifying existing water bodies for stocking. Hopefully, this information will be of assistance at your May 7th meeting, I do not plan to attend as I don't think I can provide any more information than I have above. Len Schwarz LAboi- o-t- t o n • Owornt44-eck b y erect+ Oak k.,tr\ tDefore M.20.41. A resolution of the Kodiak Borough P&Z commission, recommending a disposal by lease for fair market on 4..t value to Brechan Enterprises Borough land known as TractsB-1, B-2, B-3 for the purposes of gravel extraction and tract B-4a for the purposes of maintaining the by-pass stream and remediation of Tract B-4a. Now therefore, be it resolved by the KIB P&Z commission that: • Section 1: The KIB P&Z commission, in accordance with title 18 of the KIB code recommends the approval of a lease disposal by the KIB Assembly, for fair market value of approximately 84.4 acres comprising of Tracts B-1 B-2 B-3 and B-4a Bells Flats Subdivision subject to certain stipulations Section 2: Stipulations 1)A reclamation plan, subject to the approval of the P&Z commission and the Borough Assembly , be developed prior to leasing theses tracts and that remediation of tract B-4a begin in the first 6 months of the lease, and be completed in the first year of the lease and the remaining tracts be remediate prior to the end of the lease period. Reclamation shall take place as areas are no longer used for active extraction. 2)The negotiated le the assembly be brought before the P&Z commission prior to its final approval by 3) The lessee is required to coordinate with the appropriate regulatory agencies with regard to extraction and reclamation activities to ensure compliance with existing regulations affecting affecting the extraction use and the potential impact of that use on surrounding habitat and residential areas. 4) The minimum extraction depth of the existing lease agreement will be restated in a new . lease agreement as a Maximum extraction depth subject to Assembly approval through lease negotiation process 5) The lessee shall develop a hydrologic management plan for the site with in 8 months of lease start. 6) The lease shall be for a period of 3(three) years with an option to renew at the discretion of the Assembly , not the lessee, for 1(one)additional three(3) year lease. 7) The Assembly may permit "early right of entry" into the lease area under the provisions of the existing lease agreement , for a period not to exceed 3 (three) months from the normal expiration of that agreement in order to allow lease negotiations to take place. If no lease agreement is reached by the end of this period extraction operations will cease, the demobilization requirements of the existing lease will be in affect 8) As tract B-4a has a direct impact on the local residential water table it is not surplus in the strict sense of the word and access shall be for remediation and by pass stream maintenance 9)Hours of operation (per Brechan Ent letter March 1, 2007)shall be lam to 7pm Monday through Saturday , with no work on Sundays. 10) The buffer zones laid out in the Brechan letter dated March 1 2007;shailbe maintained . . - and kept in a topography that blends smoothly into the surrounding area ;1 • 1ff: VI ire .1 Continued on next page with item 11 • APR 1 8 2007 • - MUNFY DEVELOPMENT DEPA'TffC-3..'" 11) All prudent efforts shall be used to minimize the noise level during operations including the relocation of the crusher operations to the farthest side of tract B -1 Section 3 Findings- 1) The proposed lease recommendation, subject to the stipulations, gives due deference to the 2007 Womans Bay Comprehensive Plan and the reasonable concerns expressed by the Womans Bay residents through the public hearing process. 2) The need for continued hydrologic management and reclamation of the site favors the continued lease of the B tracts to the party most responsible for the current disposition of the site, Brechan Enterprises 3) the site requested for review has previously been determined to be surplus to the borough's needs. Future designation of the site in the 2007 Womans Bay Comp. Plan is intended to be for recreational use or residential development ADOPTED BY THE KODIAK ISLAND BOROUHG PLANNING AND ZONING COMMISSION, THIS EIGHTEENTH DAY OF APRIL, 2007 ) KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI-A PUBLIC HEARING NOTICE. A public hearing will be held on Wednesday, April 18, 2007. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, ,before the Kodiak Island Borough Planning and Zoning Commission, to hear:Ornine* i any,on ,the following request: CASE: 07-021 APPLICANT: Brechan Enterprises, Inc. AGENT: Mike Martin REQUEST: -- LOCATION: ZONING: s's jf APR - 6 2007 - ';11VF: OPMFrg PPARTIVID,1". - A—Title-1-8-hand- Disposal, according to -KIBC-18.20;-1-840,--and----18.60,--to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Bells Flats Alaska Subdivision, Tracts B1 - B4. 12247, 125361, 12583 Middle Bay Drive,. and 12027 Bells Flats Road. I-Industrial ..... ■ ■ • • This notice is being sent to you because our records indicate you are a property owner/interested party in the area of the request. If you do not wish to testify verbally, -you may provide your comments in the space below, or in a letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907) 486-9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call-in telephone number is 486-3231. The toll free telephone number is 1-800-478-5736. One week prior to the regular meeting, on Wednesday, April 11, 2007 a work session. will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room (#121), to review the packet material for the case. ' Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486-9363. . . • . Your Name: 770 au I 0 FO E. Mailing Address: \ C( 3 ( 11.1\- 1 °P 1 I Your property description: I-. C9+ B 1 - L 0-i-- ec Comments: 1+/S Pt ce0 c..k. ± -4-t_ vv1-12_, . _ . u 0 6.-1,5-e-' . i 0-e,r‘A-L 01_ ' Prf_,A-1. -\ Fo-C Ri" Tr■ .0 ct.' d--ti A 2) i'r" p (`-t itli--( .S k H-0.-Q Q_Vi.(41r, •-e- A-'L l C G ' 0 ' 0 t \ -LQ. 5 a/rrA--Q 'N ?- L ' IL V X D -,/' 1-•oo 4 t -1 liq AcD 2 _ . .0 k ce (A-6 4- 6 LUk1(2---- uk_ PI cGs-t- tk-t a „Lk , _ II A '. uNi, e , IC."--14..5 . • i • jquest a Title 18 Land ispp ;'according ;to EKI BG 3 8 20, '1.8 4t ;naahrdk,wet r'alue f r nhs e dy er a.- reque st toease borough'la r d for s fsa. rr slaose reourcexraetion 1proceit g =stoekpilirg (r isf-equest involves toti alrequest to lease th and,'p`er,KIB 1�6 j� n&a yreguest fonmateriel sale :per *KIB,C` 0 600 1,200 Feet I 1 1 Map prepared for the purpose of showing the General location of the Kodiak Urban area. June. 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale Is 1:63,360 Created In ArcGIS. 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up -to -date. Kodiak Island Borough Community , Development Department. 23/03 2007 01y37 FAX 907 486 —_,_1 OUTSIDE THE LINES KODIA.K ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 1 001 Public Hearing Item VI -A PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, April 18, 2007. The meeting will begin at. 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: 07 -021 APPLICANT: I3rcchan Enterprises, Inc. AGENT: Mike Martin (E ICS L ry t±Vi i■; ` i r. MAR 2 3 2007 REQUEST: A Title 18 Lancl Disposal, according toIfBF' 1.8,.20 184�),.� a>,td,..18 60,, to • consider a request. to lease borough land fot fair par, C •f_ bue -.tor the. purposes of resource extraction processing and stockpiling. (This request 'involves both a request to lease the land, per .KIBC 16.40, and a request for material sale per KIBC 18.60.) LOCATION: Bells Flats Alaska Subdivision, Tracts Bi — B4. 12247, 125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road. ZONING: 1- Industrial This notice is being sent to you because our records indicate you are a property owner /interested party in the area o the request. If you do not wish to testify verbally, you may provide your continents in the space below, or in a letter . to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our . fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1 -800- 478 -5736. One week prior to the regular meeting, on Wednesday, April 11, 2007 a work session will he held al 7:30 p.m. in the Kodiak Island Borough Conference Room (1/121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's' decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. Your Name: a d Cy yr ' t( ■ \ O 1 1.)0 )( i -3,� Your properly description: ��� ` ` J� �U. ;�.�? 1 (k.1/\ S� \ \ieJf �.'j�ts!�, � Continents: Ct .4,71 �V't M. 7 l ,Cl4 ve 'Bat, � v.; vt .. S iV..C.n+ 4 poi 1 \ t 'so-) `twti c ( M. rap . '. : e .L. ' .. l f ' -.5q,a l M : , ft . • -, ���e,.)143_ tyOr ie.v . tn.. . t __f� ____, U■S t lt_,. y � P_. 4�II tz�P',�_ r::: *Y....' 4�c�G � r\ C� � to >('.� 1 C,i �. 4 pp `�f)11 11147', 1 (.../LLB LA) liAL L I Ityv l &( V VUA v\ jS i / , ^ F'.((:.(.ttIrx 1L2..--a_l~'114' ',t /`' 0 1 C`t. ; sd e (-:-e.j-Qf', _______ 1,.0_,, q ,P.N__cl,.A8.. a —.._ Aga.._ V �. ide._ tft( 6 ° LQ0 w e KODIAK ISLAND BOE —UGH - COMMUNITY DEVEL MENT DEPARTMENT 710 Mill Bay Rd., Roc... --35, KODIAK, AK 99615 -6398 (907) 486 4 _ _ _I - FAX (907) 486 -9396 www.kib.co.kodiak.ak.us Applicant Information Brechan Enterprises,, Inc. Property owner's name 2705 Mill Bay Rd Property owner's mailing address Kodiak, AK 99615 City State Zip (907) 486 32153 :a6ssoms @b?echan.co Home phone Work Phone E -mail Addr. Mike Martin Agent's name (If applicable) 2705 Mill Bay Rd. Agent's mailing address Kodiak AK 99615 City State Zip (907)486 -3215 mrmartin @gci.com Home phone Work Phone E -mail Addr. Property Information Bells Flats Tracts B1 -B4 Bella Flats Alaska Sub Division B1 -B4- Property ID Number /s Legal Description Current Zoning: Industrial Applicable Comprehensive Plan: Year of Plan adoption: 2007 m. Present Use of Property: Gravel Extraction Operation see attached letter Proposed Use of Property: See attached (Note: Use additional sheets, if needed, to provide a complete description of the proposed request.), Applicant Certification I hereby certify as the property owner /authorized agent that this application for Planning and Zoning Commission review is true and complete to the best of my knowledge and that it is submitted in accordance with the requirements of the applicable Kodiak Island Borough Code, which includes a'detailed site plan for variance and conditional use requests and which may include optional supporting documentation as indicated below. Additional Narrative /History As -built Survey Photographs Maps Other Property Owner's Signature Date Authorized Agent's Signature Date 1 A development plan for one or more lots on which is shown the existing and proposed conditions of the lot, including topography, vegetation, drainage, flood plains, wetlands, and waterways; landscaping and open spaces; walkways; means of ingress and egress; circulation; utility services; structures and buildings; signs and lighting; berms, buffers, and screening devices; surrounding development; and any other information that reasonably may be required in order.thatan informed decision can be made by the approving authority. (Source: The New Illustrated Book of Development Definitions, ©1993 by Rutgers University) Code Section(s) Involved: STAFF USE ONLY tktut, f '10 j8:(00 i •oa Variance (KIBC 17.66.020) $250.00 R 1 �7 Conditional Use Permit (KIBC 17.67.020.B) $250.00 Other (appearance requests, site plan review, etc.) $150.00 Zoning chan. - from i to (KIBC 17.72.030-and 030.C)* Application rec °i ed +y: Staff signature PAYMENT VERIFICATION AR OTHER FICt1SH 03/01/0 07 ?«iiFt.s3i :14 s :a a; fl7Fl812 24 Fee Schedule: (rep' Ig.1113Mssembly R€sollyikm •Eifigaigy I. 2005) * *'Raid in Full * ** fidikhkhfflatillYtiked. t. 16kl'A•£ A, %6,1 5.gien 414103L4res 40.0 9 OiCres or more `750.00 S1.000.00. cable Kodiak Island Borough Code Application Req, cents General 17.03.050 Approval by planning and zoning commission. When it is stated in this title that uses are permitted subject to approval by the commission, an application for consideration shall be submitted to the community development department with a site plan.... Variance 17.66.020 Application. An application for a variance may be filed by a property owner or his authorized agent. The application shall be made on a form provided by the community development department and accompanied by the required fee and site plan. All applications shall be available for public inspection. 17.66,050 Approval or denial. "...A. Approval. if it is the finding of the commission, after consideration of the investigator's report and receipt of testimony at the public hearing, that the use proposed in the application, or under appropriate conditions or restrictions, meets all of the following, the variance shall be granted: 1. That there are exceptional physical circumstances or conditions applicable to the property or to its intended use or development which do not apply generally to other properties in the same land use district; 2. That the strict application of the provisions of this title would result in practical difficulties or unnecessary hardship; 3. That the granting of the variance will not result in material damage or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety or general welfare; 4. That the granting of the variance will not be contrary to the objectives of the comprehensive plan; 5. That actions of the applicant did not cause special conditions or financial hardship or inconvenience from which relief is being sought by a variance; 6. That granting the variance will not permit a prohibited land use in the district involved. B: Denial. If the commission finds, after consideration of the investigator's report and receipt of testimony at the public hearing, that it cannot make all of the required findings in subsection A of this section it shall deny the variance. and 17.66.060 Conditions. The commission, in granting the variance, may establish conditions under which a lot or parcel of land may be used or a building constructed or altered; make requirements as to architecture, height of building or structure, open spaces or parking areas; require conditions of operations of an enterprise; or make any other conditions, requirements or safeguards that it may consider necessary to prevent damage or prejudice to adjacent properties or detrimental to the borough. When necessary, the commission may require guarantees in such form as deemed proper under the circumstances to ensure that the conditions designated will be complied with. Conditional Use 17.67.020 Application and fee. A. An application to the community development department for a conditional use or modification of an existing conditional use may be initiated by a property owner or his authorized agent. B. An application for a conditional use shall be filed with the department on a form provided. The application for a conditional use permit shall be accompanied by a filing fee, established by resolution of the assembly, payable to the borough. 17.67.030 Site plan. A detailed site plan showing the proposed location of all buildings and structures on the site, access points, drainage, vehicular and pedestrian circulation patterns, parking areas, and the specific location of the use or uses to be made of the development shall be submitted with the application, together with other information as may be required to comply with the standards for a conditional use Iisted in this chapter and in other pertinent sections of this chapter. 17.67.050 Standards. In granting a conditional use permit, the commission must make the following findings: A. That the conditional use will preserve the value, spirit, character and integrity of the surrounding area; B. That the conditional use fulfills all other requirements of this chapter pertaining to the conditional use in question; C. That granting the conditional use permit will not be harmful to the public health, safety, convenience and comfort; D. That the sufficient setbacks, lot area, buffers or other safeguards are being provided to meet the conditions listed in subsections A through C of this section; E. If the permit is for a public use or structure, the commission must find that the proposed use or structure is located in a manner which will maximize public benefits. 17.67.060 Stipulations. In recommending the granting of a conditional use, the commission shall stipulate, in writing, requirements which it finds necessary to carry out the intent of this chapter. These stipulations may increase the required lot or yard size, control the location and number of vehicular access points to the property, require screening and landscaping where necessary to reduce noise and glare, and maintain the property in a character in keeping with surrounding area; or may impose other conditions and safeguards designed to ensure the compatibility of the conditional use with other uses in the district. Public Use Land Zone 17.33.020 Permitted uses. The following land uses are permitted in the public lands district subject to the approval of a detailed site plan by the commission: Zero Lot Line Development 17.34.090 Site plan requirement. Developments of more than three (3) common -wall structures shall provide a site plan containing the information required by section 17.67.030 of this title. Said site plan shall be reviewed and approved by the commission prior to issuance of a building permit. Boundary Amendment (Rezoning) 17.72.030 Manner of initiation. Changes in this title maybe initiated in the following manner: A. The assembly upon its own motion; B. The commission upon its own motion; and C. By petition of one (1) or more owners of property within an area proposed to be rezoned. A petition shall be in the form of an application for a change in the boundary of a district, shall be filed in the community development department, be accompanied by the required fee and such data and information as may be necessary to assure the fullest practicable presentation of facts and shall set forth reasons and justification for proposing such change. Revised Jan. 2004 N: \CD \Templates\ComDev \Revised F -CUP Variance Application.doc U�U���A�K���� ��»�����xo��o� cmsppR/ace./wu GENERAL CONTRACTORS BRECHAN ENTERPRISES, INC / GENERAL CONTRACTORS 2705 MILL BAY ROAD • KODIAK, ALASKA 9961 5 Kodiak Island Borough Community Deve Department Attn: Duane Dvorak, Acting Director 710 Mill Bay Road Kodiak, AK 99615 March 1, 2007 RE: Gravel Contract on tracts B-1 thru B-4A, Bells Flats Dn behalf ofBrechon Enterprises, \nn.wevvou\dUketotakethkooppodunitvtooetforthour suggestions for the extraction of materia! from the Belis FIat Pit. We would also like to thank you for taking the time to meet with us Monday, February 26, 2007 to discuss possible issues with the upcoming lease renewal. As per our discussion with your staff, there seems to no longer be a need for two entities to occupy the tracts located at Bells Flats, therefore Brechan Enterprises, Inc. will be the sole applicant for the upcoming lease renewal. We feel that that this will simplify the process, and have been granted the authority by Aleutian Materials, Inc. to be the sole applicant. After reviewing the Women's Bay Comprehensive Plan Update - December 2006, we have found several items that we would like to address: 1. Hours of Operation - As in then past we wifl continue to work on 7am to 7pm Monday thru Saturday with no work to be done on Sundays. 2. Excessive Noise - Brechan Enterprises is making every attempt to reduce the amount of noise in the area. We will be utilizing updated equipmeat and mechanical engineering to minimize the amount of noise in the area. i.e. backup alarms on the loaders, we are inq as to ways to refract noise !evels. 3. Buffer Zones - Brechan Enterprise will fully comply with the existing buffer zone's set forth in exhibit A. As well as addressing these issues that appear in the Comprehensive Plan we are taking it a step further by relocating the crushing operation to the far side of Tract 1 ,this wiH further reduce the noise encountered by the residence. We have also increased our efficiency at this location cutting our production time by more than haif, requiring Iess time for same amount of product. Thank you for your attention to this matter, and if there is any further assistance that we may provide, p|gano, feel free to contact our office. Thank you J hSooaoma.Controller Brechan Enterprises, Inc. Co: Rick L. Gifford Manager Bud Cassidy, Engineering and Facilities PH 90 486.32l5 • FAX: 907.486.488 ALASKA BUSINESS 9F00l858 • ALASKA CONTRACTORS #AA441 We Are An Equal Opportunity Employer ��Z P r BRECHAN ENTERPRISES, INC. 2705 Mill Bay Road • Kodiak, AK (907) 486-3215 • Fax: (907) 486-4889 Alaska Business License #001858 • Alaska Contractors License #AA441 Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Attn: Kodiak Island Borough Assembly Rick Gifford, Borough Manager Re: Tract B Gravel Extraction Areas ALEUTIAN MATERIALS INC. Box 223 • Kodiak, AK 99615 (907) 487-2185 Alaska Business License # 113090 Alaska Contractors License # 19600 Sept 20, 2006 Dear Manager and Assembly: As you may be aware, on June 300' 2007, the leases on the Tract B, gravel extraction areas will expire. In June 2006 Jim Purdy of Kodiak Land Surveying (KLS) performed a survey and quantity calculation of materials remaining on the Tract B gravel extraction areas (summary of his notes are attached). Various scenarios were calculated and the final survey results revealed the following: Quantity of gravel Digging Depth Remaining on tracts B-1 through B-4 20 feet 25 feet 50 feet 1.178 million CY 1.422 million CY 2.790 million CY From a quality perspective, the materials extracted from the Tract B source are far superior to any other sources currently available within the Kodiak road system. Historically, all of the high quality aggregates needed for the production of concrete and asphalt have come from one of these sources. In recent years there has been much discussion relative to gravel resources within our community. Despite much effort by the Borough and many citizens, no reasonable alternatives have been put forth for a source of quality aggregate for use in the manufacture of asphalt, concrete and road materials Attempts have been made to use the local greywacke (shot rock) with very limited success. In general, shot rock is inferior to the alluvial deposits found in the B tracts. Even the best materials that we have available now, fails to meet the State of Alaska standard specifications. Historically, the state has relaxed their specifications to allow the use of the Bells Flats material, which has shown to give a reasonable product at a reasonable cost. w Page 2 To meet the demands of the community, in the near term, we see the following 4 alternatives: 1. A completely new site of extraction within a reasonable haul distance of town and quality characteristics similar to the existing B tracts. While this may be a viable option in the long term, it is impractical in the short term. A new material site will require a number of years to procure, permit and develop before any material can be extracted. 2. The use of native shot rock materials, which are of inferior quality, more expensive to extract and require more additives to produce a usable product. The end result is that the cost will be far greater for a product that is of lower quality. 3. Importation of aggregates from off - island sources. While this would produce a product similar to what we have historically used, the cost of procurement and transportation will be prohibitively high. 4. Renewal of the current Tract B leases until other sources can be identified. It's clear that this is the best alternative, striking a reasonable balance between price and quality. The KLS survey has revealed that there is a minimum of 1 million cy (2 million tons) of recoverable gravel. Our usage for the last 5 years has been: 2005 60,456 tons 2004 40,958 tons 2003 54,920 tons 2002 55,530 tons 2001 55,247 tons 267,111 tons Unfortunately, there is some public sentiment that is attempting to force the abandonment of the extraction activity on the B Tracts. While we understand the concerns, we would also like to point out that the original intent of these leases was to not only to provide a source of material for the entire community, but also to develop property around the lake that would ultimately be created. Obviously, the parties that drafted the leases in 1982 had no way of knowing how much would be extracted and at the time an assumption of 25 years would have been reasonable. To cease the development and extraction activities in 2007, based upon "guesstimate" made in 1982 would: • Force the community to pay higher prices for a lower quality products • Eliminate the revenues that the Borough receives though royalty payments • Eliminate the revenues that the Borough receives though lease fees ($20,000 per year in lease fees and $1.25 per cy in royalty) • Leave a valuable natural resource untouched • Page 3 All of which, would be a disservice to the community. In conclusion, we are hereby requesting that the Kodiak Island Borough allow additional time extensions to the Material Extraction Leases on the B- tracts. We suggest that there be 3 allowable time extensions of 5 years each, which would allow extraction activity to continue on the site until June 2022 or until such time that the resource is depleted or a realistic alternative source is located and developed. Please let us know if you need any additional information and we look forward to further discussion on this subject in the near future. Sincerely: Michael R. Martin President Brechan Enterprises, Inc. Tom Allen President Aleutian Materials, Inc. Duane Dvorak From: Bud Cassidy Sent: Thursday, April 05, 2007 8:31 AM To: Duane Dvorak Cc: Rick Gifford Subject: B tract photo- ground water copy.pdf Attachments: B tract photo- ground water copy.pdf Duane - Gary had dropped off some hard copy of this photo to Rick. Rick and I got together before he left and he wanted me to pass these to you for your P &Z lease case. I will provide you the hard copies that Gary provided Rick. Gary made the following comments based on this photo: • The low water table (winter drought) has left some of the adjacent neighborhood water wells (his included) dry. They all seem to be shallow wells at 15' because, he says, that bedrock is below and it is expensive to drill wells • He attributes the lack of well water to the lack of recharge of the area due to no rain, • He sees value in keeping the lower pond as a undisturbed area because in his estimation needs to be available for recharge of the groundwater and wells. So he is suggesting the following: • Only leasing the upper pond to Brechan • Leaving a dike, between the two ponds as a condition of the lease so that the lower pond acts as that recharge area for neighborhood wells. • He is thinking that Brechan does not need the lower pond any, because it is "played out" as far as a gravel source (my words) • It would also show, he suggests, that the Borough is serious in slowing moving Brechan off the site. He also said that he went to talk with Brechan. The party he made contact with was their finance fellow. Anyway, it sounded like you were drafting a staff report on the lease request and he wanted to provide this information Should you have any questions, let me know. Bud B tract photo- ground water co... Elev (ft) B Tract Gravel Pit Groundwater Hydrology I A 90 PreSent round surface 80 - - - 70 6 • . 0 Gr�na" .,. Mater table •......, 50 40 Arrows show lowered water table resulting from excuvation of the gravel pits. Water surface elevation in pits controls groundwater table elevation In adjacent gravel deposits. mer roue FOrrnerr. °Lnd d water�(e - - - - surface Pit water surface Water Bottom of pit A' - FOr e= �roundurffce - - - - r � _ Present round surface Pity to uurface --i- __ - - - Groundwater iabTe..... -- . ;•:ant In•t °low •,:r;l: -i t Ihl. ,ate' s.af3c, Water Bottom of pit 3 0 rf 5 0 0 o E 8 D m m f y N c n 1 CD CD O < �p do rp o • i 5 d U N • {y n tT O rRy c O ▪ r0 c— f 3 • ro Et A c cr O N N O •- O rD • tO • N _Q. rD d .. C n Elev (ft) 90 80 Dive sion 70 Br channel Former mound surface 50 ................ 40 Gravel Pit water surface Well Gravel Bedrock Bedrock B Bedrock Former ground water table - Ground water table Present low flow water table i(6oloapRH Jalempunoa9 l!d lane-ID Peal 8 Kodiak Island Borough OFFICE of the MANAGER, 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9301 Fax (907) 486-9374 E-mail: iljensen@kib.co,kodiak.ak.us October 19, 2000 Final Finding and Decision Extension of Material Sales Contract Aleutian Materials, Inc. Tract's B-1 and B-2, Bells Flats Subdivision Requested Action: Aleutian Materials Inc. has submitted a request to amend the existing Material Sales Contract with the Kodiak Island Borough by adding 5 years to the contract generating a new termination date of June 30, 2007. Legal Authority: This action is taken pursuant to authority granted under AS 29.20.500 and MB 2.20.030 J. 2. and by extension the Material Sales Contract Section 5 Option to Renew.' Discussion: In response to the applicant's request, a compliance review of the contract, case file and property was conducted. Numerous items were found on-site that resulted in a Notice of Default dated 9/2712000. The items referenced in the Notice are required to be cured prior to granting of the extension request. The existing contract is in force and the Kodiak Island Borough cannot unreasonably deny the applicants request. Pertinent Issues: As part of the review it was found that the amendment to the lease2 illegally exempted the taxable possessory interest in the property in violation of AS 29.45.0303 and must be deleted. It is important to point out that the basis and logic for the exemption still applies, in that at the time of bidding there was no notice to the bidders that the property would be subject to possessory interest property taxes except for improvements. 5. Option to Renew. This contract may be renewed for one-five (5) year period. Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 2 KIS Resolution No. 89-32-R Passed and Approved 7/6/89. 'AS 29.45.010 (c) If a tax is levied on real property the tax must be assessed, levied, and collected as provided in this chapter. AS 29.45.030 (a) (1) (A), a private leasehold, contract, or other interest in the property is taxable to the extent of the interest. Kodiak Island Borough OFFICE of the MANAGER Mr. John Zbitnoff, Vice President Aleutian Materials, Inc. P.O. Box 223 Kodiak, AK 99615 Dear Mr. Zbitnoff: 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9301 Fax (907) .486 -9374 - E- mail: djensen @kib.co.kodiak.ak.us October 19, 2000 I am writing in regard to the Notice of Default of the Material Sales Contract between your firm and the Kodiak Island Borough. After a staff review of the operation and contract we determined that there were certain parts of the operation that were not in compliance with the contract. Due to your quick and diligent efforts, all of the items of concern have been adequately addressed and your operation is in full compliance with the Contract. The Notice of Default is hereby rescinded and no further action is required. David Jensen Manager, Kodiak Is _ ' •rough L O Date ) Logic dictates that the bid price of $5,000 per tract per annum would have been affected if the property tax liability was known. I think an appropriate solution to this problem would be credit the annual payment for the amount of taxes paid pertains to the taxable interest in the land. Any improvements or personal property taxes should not be part of the credit as they were not associated with the original bid. This process would bring us into compliance with State Law and should not adversely affect the financial position of the lessee as the property tax is estimated to be less then the annual fee. Another issue is the use of the property for storage and maintenance of equipment not related to gravel extraction A residential structure was also found on the property and based on our attorney's advice, both of these uses of the property are not allowed.4 Another issue is the asphalt plant on the site and whether that is an allowable use under the agreement. My research of the records.found that this is an allowable use under the agreement? Findings: In order to fully comply with the agreement and State Law, the attached amendment will need to be completed clarifying the treatment of property taxes and extending the Contract term. The Contractor has removed the residential structure and all equipment, machinery and other items of personalty not directly associated and necessary for the extraction and remanufacturing of gravel resources and is in compliance with the Agreement. Pat Carlson, Assessor-Lands Manager, Kodiak Island Borough Oci-. 19, a"C) Date I, the undersigned, have reviewed the application, case file and the property and find the applicant is in compliance with the applicable Borough ordinances regarding zoning and permitting. VGr- I bob Scholze, Date Acting Community Development Director, Kodiak Island Borough I, the undersigned, have reviewed KIB's financial records of the applicant pertaining to the contract payments and royalty fees and find that there are no outstanding financial liabilities and the required bonding is in force, „la ILL Karl Short, Finance Director, Kodiak Island Borough c2c,z4, ? Date, 4 Att. Op. Steven Gray Esq., 5/31/89 Pg. 4, Para 2, "Use of the property for storage of other equipment and machinery, or use of the property for living purposes is clearly not allowed by the Material Sales Contract. 5 Att. Op. Joel Bolger, Esq, 7/24/84. Final Decision: • The administrative findings presented above have been reviewed and considered. A review of the case file and a physical inspection of the facility has been conducted and the applicant has been found in full compliance with the existing material sales contract. The following amendments are incorporated by agreement of the parties as authorized by Section 31 of the Agreement. Pursuant to the authority granted me I hereby approve an extension of the existing material sales contract until June 30, 2007. David Jensen Manager, Kodi . 9. 0 c-1"-• 2- Borough Date AMENDMENT TO Material Sales Contract Aleutian Materials, Inc. Tract's B -1 and B -2, Bells Flats Subdivision AMENDMENT, made this 29 day of /CerrbeS Frt,. , 2000, by and between the KODIAK ISLAND BOROUGH, "KIB ", and ALEUTIAN MATERIALS Inc., "AMP': WHEREAS, the contract entered into between the parties did not make provisions for the payment of real property taxes assessed on the Premises; and, WHEREAS, the parties agreed to an amendment to the contract on Sept. 7, 1984; and, WHEREAS, the method used for dealing with property taxes in that amendment does not comply with State Law, which requires the payment of property taxes and does not allow K113 the legal authority to exempt possessory interests in real property; and, WHEREAS, AMI requests the option to renew for an additional 5 years pursuant to the agreement, NOW, THEREFORE, in consideration of the promises and mutual covenants of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties hereby adopt this amendment, and agree that Paragraph 6 of the Material Sales Contract dated July 7, 1982 and amended September 7, 1984, shall be amended as follows: 6. Annual Use Fee. (a) An annual use fee will be paid to KIB by the AMI on each anniversary data occurring during the term of the contract. The annual use fee for the tract of land described in Section 1 above is $5,000 and resulted from competitive bidding on June 24, 1982. No refund will be made to AMI for any portion of a year remaining if this contract is terminated or cancelled, (b) The annual use fee of $5,000 will be reduced dollar for dollar for the amount of property taxes paid on the premises during the calendar year assessed against AMI's possessory interest in KIB's land if the annual use fee is timely paid in full. If AMI does not timely pay in full this section does not apply and the annual fee of $5,000 will be due in addition to the property taxes lawfully assessed against the Premises. FURTHER: AMI acting in good faith is in complete compliance with all provisions of the agreement and pursuant to Article 5 of the agreement a timely request for renewal of the option for extension having been received, parties agree that Article 4 of the Material Sales Contract dated July 7, 1982 and amended September 7, 1984 and further amended by this document shall be further amended as follows: 4. Term,, The term of this contract is twenty five (25) years, beginning on July 1, 1982, and ending on June 30, 2007, (the balance of this section remains in force and unchanged). IN WITNESS WHEROF, the parties have executed this Amendment to the Material Sales Contract the day and year first written above. OWNER: KODIAK ISLAND BOROUGH By STATE OF ALASKA ) ss: THIRD JUDICIAL DISTRICT } John Zbitnoff, Vice President THIS IS TO CERTIFY that on the day of O) , 2000, before me, the undersigned, a Notary lic in an the State of Alaska, duly commissioned and sworn as such, personally appeared i �� 1 , to me known to be the Manager of the KODIAK ISLAND BOROUGH, a Municipal Corporation, and known to me to be the person who executed the within Amendment to the Material Sales Contract on behalf of the Municipal Corporation herein named, and acknowledged to me that the same was signed as a free act and deed of said Municipal Corporation for the uses and purposes therein stated and pursuant to its ordinances or a resolution of its Assembly. WITNES d notarial seal the da and v fi rst ritten above. STATE OF THIRD JUDICIAL DISTRICT } } 1 ss: Notary Pub is in and for Alaska My commission expires Q /�l lt_ THIS IS TO CERTIFY that on the 1C day of C*) , 2000, before me, the undersigned, a Notary Public in and or the State of Alaska, duly commissioned and swom as such, personally appeared �qn ? j+ , known by me to be the Vice President of Aleutian Materials Inc., a corporation, and known to me to be the person who executed the within Amendment to the Material Sales Contract on behalf of the corporation herein named, and acknowledged to me that the same was signed as a free act and deed of said corporation for the uses and purposes therein stated and pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and notarial seal the da and trst written above. Notary Publ c in an • for Alaska My commission expires Q41 !c-- 1 SENT BY; .3011. H. ■aLatll unoYMRW 0. JAYIM July 24, 1984 Linda Freed Kodiak Island Borough P.O. Box 1246 Kodiak, Alaska 99615 0 ; 2 :51PM ;Jamin Ebell Schmitt; -!.� RIGHTFAX;# 5/ 7 JAMIN & BOL,acR ATTORNdYI AT LAW POST OFFICE BOX 123 KODIAK, ALASKA 99818 12071 488 -804) RR: Felton Construction Material Sales Contract near Lind: .This letter is in response to your letter of July 19, 1984. i will prepare an amendment to the material sales contract that would allow the Felton tracts to be considered as one tract for the purpose of the continuing extraction requirement. pave also reviewed the contract with respect to the objection raised by Brechan Enterprises:, Inc. Apparently an asphalt plant ia. going to be set up on the Felton tract. The asphalt .plant in question belongs to Kodiak Contractors, Inc. The first paragraph of the Felton material sales contract gives Felton the right to enter on the tract for the purpose of extracting, remanufacturing and removing gravel resources. Paragraph 3 specifically, defines gravel remanufacturing as "crushing, screening, cashing and the use of 'gravel in manufac- turing processes to create road.a■phalt and concrete, and opera - tion of all equipment and machinery required for and associated with remanufacturing." With reepect.to assignment of rights under this contract paragraph 17 states apecifioally.as follows: "this contract cannot pill assigned without the owners approval." The agreement under which Kodiak Contractors is allowed to enter onto the Felton tract for the purpose of asphalt rei%anu- facturing.ia an Assignment of rights under the material stales contrast— Paragraph 17 requires this aeeignment'to be approved by the Kodiak Island Borough. I suggest that you request a. copy of the agreement between tt SENT BY )18- 0 ; 2:52FM ;Jamitt EbeII Sthm Letter TO: - Linda Freed RE: Felton Construction Material Bales Contract DATE: July 24, 1984 . Page 2 RIGTFAt;# 6/ 7 Felton Construction Company and Kodiak Contractors for review by the Assembly. The Assembly may determine whether or not to . approve.the assignment under paragraph 17 of the material gales contract. Such approval . should not be unreasonably withheld. Sincerely youts, Joel H. Bolger Attorney JHB /vkb SENT BY: 8- 0 ; 2:48PM .;Jam Ebell Schmltt(�� BRECHAN ENTERPRISES, INC /GENERA BOX 1276 PHONE (Ao7) 4841215 KODIAK, ALASKA 99614 July 6, 1984 Mr. Phil Shealy Borough Manager Kodiak Island 8otough Box 1246 Kodiak, Alaska 99615 RIGHTFAX ;# 3/ 7 CONTRACTORS Kvu!uk Island 9nrouph KodUc,I:, A!aska RECEIVED Phi , 1111i1,11;11 ' �!`tIgii; �,I �� �,T 1 ) Tracts 53 and B4A Bells Flats Alaska Subdivision. Dear Sirs; It has come to our attention that the leaseholder of Tracts 81 and 32. is setting up an asphalt plant oontigious to our existing leasehold and although the materials extraction ].ease directly allows the leasehold to set up such a.plant, we are wondering if it intact is his asphalt plant and whether or not it complies with his development plan as is required by the existing leases. Rumor -mill has it that the asphalt plant being erected may belong to another con- tractor and this might not be in the best interest of the Borough or in compliance with the existing materials lease. Az we have been involved in several battles over these material leases already perhaps it would be in the best interest of the Borough to hook into the matter before it comes to the Assembly's attention. Sinoerely yours, BRECHAN ENTERPRISES, INC. Michael C. arechan President MCB/ jmj Ws An An Equal Opportunity Employe. SENT M: KODIAK IS 18- 0 , 2:30PM ;Jamin Eball SchmItk__) ' RIGHTPAX;# 4/ 7 AND BOROUGH Telephones 486-5736 - 486-5 73 7 — Buz 1246 KODIAK, ALASKA 99615 Joel Bolger Jamie 5 Bolger Box 193 Kodiak, Alaska. 99615 RE: Material Sales Contracts - Bells Flats July 19, 1984 Igo Dear Joel: X have two "projecte for you related to our material sales contracts with Felton Construction Company and Brechan Enterprises, Inc. )Tor your infOrmantiOn, I have enclosed a complete contract for one of the tracts in Bells Flats (11-1). The other three (3) contracts are the same except fax the tract identification number and size (in acrei). First, the Assembly recently reviewed the attached letter from Felton Construction Company. The Assembly would like you to draft an amendment to the 6) contract(e) that:Would allow the tracts in common ownership to be considered as onetract,-for thc purpose of the default clause found in the contract. Second, the Assembly would like you to investigate the matter brought to the Borough's attention in the letter from Brechan Enterprises (attached>. It le the feeling of staff and the Assembly that the "setting up" of a batch plant on Tract Bier B2 by a contractor, other than the one holding the materials salts contract with the Borough, is not a violation of the contract. It is our understanding from Jim Graham (Thia was discussed at the Assembly work session on July 12th.) that the.b is h asticin beim to Kodiak Cont and that they have a verbal. agreement to set np't e plant an the property in exchange for gravel from the Site. Further information.should be Available from either Jim Grehem, Felton Construction Company (487-4072) or Burt Reanier, Kodiak Contraatore, Inc. (486-3274). I would like to have this information byAugust 1, 1984 for inclusion in the August Assembly packet. Bincerely, KODIAK ISLAND BOROUGH C-24J7eKef6S.., Linda Fr—eld . Acting Borough Manager jh cc: Mike Brechan, Brechan Enterprises, Inc. Jim Graham, Felten Construction Company Burt Reanier, Kodiak Contractotn,InC. SENT BY: 4., • • ..711 • 1.1 December 24, 1984 Mr, Joel Bolger Jamin and Bolger P.O. Box 193 Kodiak, Alaska 99615 Dear Joel* 0 ; 2:52PM ;Jamln Ebel I Schml tt RIGHTFAX;# 7/ 7 Kodiak Island Borough P.O. BOX 124e KOOIAK, ALASKA 99615.1246 PHONE (9Q7) 416-67345 Subject; Material Sales Contract I was going through a pile of pending material and found the attached information. I don't recall any amendments being drafted to our material sales contracts that would allow the tracts in common ownership to be considered as one tract for the purposes of the default clause found in the contract. I believe that we should have amendments drafted for the two (2) Felton contracts and the two (1) Brechan contracts. If you have any questions, or if this has been done already and I don't know about it, please call me. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Linda L. Freed Planning Director amts Enclosures (2) ccs Mr. Jim Graham, Felton Construction Company Mr. Mike Brechan, Breehaa Enterprise:I, Inc, . SENT - 0 ; 2:48PM ;Jamln Ebell SchmItc_: RIGHTFAX;# 2/ 7 FELTON CONSTRUCTION COMPANY P. 0. Box 7009 3660 Grant Crook Rood It1.4 June 29; 1984 Kodiak Island Borough Box 1246 Kodiak, AK. 99615 Att: Linda Freed Mlsooula. Mon n 6807 • phone 1725-9100 Bear Linda; This letter confirms our previous discussions concerning our material leases on tracts'R-t and 5-2 in dells Flats, As you are well aware, there is a clause in the lease agreement which states that a "substantial amount" of gravel must be extracted from each lease site within every 2 year period. In compliance with the foregoing provision, we have extracted approximately 200 cy from 9-2 and approximately 40,000 cy from 5-1. In addition we have expended considerable time and money in the Last 2. years for development and ex- traction of gravel from 9-2. These development costs will permit us to extract gravel consistent with sound conservation prin- cipals established by the lease agreement. As we have discussed with you, we intend to continue to develop tracts 13-1 and B-2 as though they were a single site. Since the two tracts are adjacent, this procedure will permit maximum utilization of both lots, enhance productivity and insure environmentally sound development. At present B-1 ts about 95% developed and 13-2 25%. While it is possible to immediately extract larger amounts of gravel from 9-2, it is impractacle to do so. We presume that the Borough wants to see an efficient extraction operation, hence the stipulation that work occur within every 2 year period. We believe that the foregoing plan is consistent with that intent. We extract gravel on a daily basis but having to work at two seperate locations would 'hamper; our total operation. In light of the foregoing, we intend to continue to develop 8-1 and 13-2 as outlined above, consistent with the terms and conditions of the tease agreement, Sincerly; • James Graham fah l r.. 7' '1. KODIAK ISLAND BOROUGH RESOLUTION NO, B2 -25 -R A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY AUTHORIZING ,MATERIAL SALES CONTRACTS FOR THE REMOVAL OF GRAVEL FROM TRACTS B -1, 8 -2, 8 -3 i;AND 8 -4A, BELLS FLATS ALASKA SUBDIVISION. (Kodiak island Borough) WHEREAS, the Planning and Zoning Commission and Borough staff have • iexpended much effort to create a realistic material soles contract outline ',which takes into account concerns expressed by citizens, contractors and public )'officials at numerous public meetings; and WHEREAS, the Planning and Zoning Commission, at the Assembly's direction considered at length the problems involved with gravel extraction act ,ivities on Borough owned land, specifically Tracts 0-1, 8 -2, 8 -3 and 8-4A-in Bells Flats Alaska Subdlvislon,.and recommended, at its March 17, 1982 meeting, torial-sales • contracts as the preferred method of gravel extraction. NOW, THEREFORE, BE I7 RESOLVED the the administration is authorized Hance with :Chapter 18.60 of Borough Code, to prepare material sales contracts, using the outline recommended by the Planning Commission, for the removal of gravel from Borough owned land known as Tracts 8-1, 8 -2, B -3 and 1-4A,' .bells Flats Alaska Subdivision, with the following conditions: 1. Contracts shall be offered through a public bidding process: 2, Bid besls.shell be an annual use fel.beginning at 88.000 per ;year per tract with the fee being in addition to any royalty rata; 3. No more than two tracts shall be obtained by any person, his irs, executors; administrators or assigns, firms, partnerships or corporetfons 4. A performance bond, contractor's license and liability insurance 'Ooltcy are required to be a bidder; end • 5. Prior improvements to the land involved matc be recognized and p value placed thereon. PASSED AND APPROVED THIS /-0 DAY OF 04(4,:i 1982. AMENDMENT TO MATERIAL SALES CONTRACT AMENDMENT, made this 7th day of September , 1984, by and between KODIAK ISLAND BOROUGH, hereinafter "Owner," and FELTON CONSTRUCTION COMPANY, hereinafter "Contractor ": WHEREAS, the parties have entered into a Material Sales Contract regarding- Tract 8 -2, Bells Flats Alaska Subdivision, Kodiak Recording District, Third Judicial District, State of Alaska, hereinafter "Premises "; and, WHEREAS, the contract entered into between the parties did not make provisions for the payment of real property taxes assessed on the Premises; an( WHEREAS, the parties desire to amend the contract in order to provide for the allocation of a portian•of the annual- use fee as payment of any future real property taxes. NOW, THEREFORE, in consideration of the promises and mutual covenant! of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which.are hereby expressly acknowledged and confessi the parties hereby adopt this amendment, and agree that Paragraph 6 of the Material Sales Contract dated July 7, 1982, shall be amended to read as follow • 6. Annual Use Fee: . (a) An annual use fee will be paid to the Owner by the Contrac on each anniversary date occurring during the term of the contract. The annua use fee for the tract of land described in Section 1 above is $5,000.00 and resulted from competitive public bidding on June 24, 1982. No refund will be made to the Contractor for any portion of a year remaining if this contract is terminated or cancelled. (b) The annual use fee includes any and all real property taxE assessed on the Premises; and the Kodiak Island Borough Finance Director will allocate a portion of the annual use fee as payment of any assessed real prop( taxes. However, in no event shall the Contract be liable for a payment in ex( of the annual use fee, except as.provided in Section 7 hereof. KZBS274497 IN WITNESS WHEREOF, the parties have executed this Amendment to Material Sales Contract the day and year first above written. OWNER: KODIAK ISLAND BOROUGH STATE OF ALASKA ss: .THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the ''day of <... •• �•. , 1984, before me, the undersigned, a Notary Public in and for t tate o as a, duly commissioned and sworn as such, personally appeared Jerome M. Selby to me known to be the Manager . of the KODIAK ISLAND BOROUGH, a Municipal Corporation, and known to me to be the person who executed the within Amendment to Material Sales Contract on behalf of the Municipal Corporation herein named, and acknowledged to me that the same was signed as a free act and deed of the said Municipal "Corporation for -the uses and purposes therein stated and pursuant to its ordinances or a resolution of its Assembly. . WITNESS my hand and notarial seal the day and year first above written. By CONTRACTOR: FELTON CONSTRUCTION COMPANY By STATE OF ALASKA ss: THIRD JUDICIAL DISTRICT ) Notarymnf c n and fire ska My co ssion expires �' THIS IS TO CERTIFY that.on the / Z day of�._�•,p.t • ,rc,ic,f 1984, before me, the undersigned, a Notary Public and for .the State,of Kaska, duly commissioned and sworn as such, personally appeared ter. f ,xi to me known to be the,1� .w of FELTON CONS RUCTION COMPANW, a corporation, and known �o me to a he person who executed the within Amendment to Material Sales Contract -on behalf of the corporation herein named, and acknowledged tome that the same was signed as a free act and deed of the said corporation for the uses and purposes therein stated and pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and notarial seal the day and year first above written, ii :/,•, 4 YY Ole . ,�(—r• Notary ?tut in + and for ia� �y..•., My commission expires }' '�� " "'• KIBS274470 ' Bond No. 6089161 BOND FOR PERMIT (LEASE) KNOW BY MEN THESE PRESENTS, THAT Aleutian Materials, Inc., as Principal, and Safeco Insurance Company of America, as Surety, are held and firmly . bound unto the Kodiak Island Borough in the sum of Ten Thousand and No /100 Dollars ($10,000.00), lawful money of the United States, for the payment of which, well and truly be made, we bind ourselves, executors, administrators and successors, jointly and severally, firmly by these presents. The conditions of this obligation are such, that whereas the above named principal entered into a permit (lease) of the lands described therein and upon conditions therein expressed, which permit (lease) bears the following description: Tract B -1, Bells Flats Alaska Subdivision NOW THEREFORE, if the said principal, his heirs, executors, administrators and successors, shall faithfully carry out the obligations and observe the requirements of said permit (lease) and shall duly keep, perform and abide by each and every term and provision of said permit (lease) as therein stipulated and agreed, then this obligation shall be null and void; otherwise to remain in full force and effect. LIABILITY UNDER THIS BOND shall be continuous until released by the Kodiak Island Borough or until 30 days written notice of cancellation to the Kodiak Island Borough. IN WITNESS WHEREOF, the said principal and the said surety have affixed their hands and seals this 6th day of February, 2001. Aleutian Materials, Inc. Principal By: AtatIMZe Y)(#.1'4* In urance Company of America By: � a}4-- Chris m M. Sweet, Attorney -in -Fact S A F E C O POWER F ATTORNEY 51,‘,” 71 INSURANCE COMPANY OF AMERICA G AL INSURANCE COMPANY OF AMERICA )FFICE: SAFECO PLAZA SEATTLE, WASHINGTON 98185 No. 4153 KNtovv ALL BY THESE PRESENTS: Thst SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each heret appoint r• JAMES L. FERGUSON; KURTIM1G; CHRISTIN M. SWEET; LISA M. BATTISTA; Anchorage, Al asks ' "x*rsf*.rs*..as **s «r*s• +siitu Its true and lawful attomey(s) -In -fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar charact • Issued in the course of its business, and to bind the respective company thereby. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed ar attested these presents thls RA. PIERSON, SECRETARY day of April , 1999 4244•Iii W. RANDALL STODDARD, PRESIDENT CERTIFICATE Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA: "Article V, Section 13. - FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice President appointed for 11 purpose by the officer In charge of surety operations, shall each have authority to appoint individuals as attomeys -intact or under other appropriate titles with authority execute on behalf of the company fidelity and surety bands and other documents of similar character Issued by the company In the course of Its business... On a Instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any, Instrument conferring such authority or on any bond 'rtaking of the company, the seal, or a facsimile thereof, may be Impressed or affixed or in any other manner reproduced; provided, however, that the seal shall i ,ecessary to the vafichty of any such Instrument or undertaking." Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28, 1970. On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (I) The provisions of Article V, Section 13 of the By-Laws, and (II) A copy of the power.of- attomey appointment, executed pursuant thereto, and (III) Certifying that said powerof- attorney appointment Is in hill force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof." I, RA. Pierson, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA, do hereby certify that foregoing extracts of the By -Laws and of a Resolution of the Board of Directors of these corporations, and of a Power of Attorney issued pursuant thereto, are true I correct, and that both the By -Laws, the Resolution and the Power of Attorney are still In MI force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this 6th day of S -0974/SAEF 7198 February 2001 RA. PIERSON, SECRETARY 49 Registered trademark of BAFECO Corpora 4/22/99 / Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 MATERIAL SALES CONTRACT This contract is between the Kodiak Island Borough, hereinafter Owner, and Aleutian Materials, Inc., hereinafter Contractor, In consideration of the mutual covenants herein, the parties agree as follows: 1. In accordance with Title 18, Real Property, of the Kodiak Island Borough Code and based on the condition of KIB Resolution No. 89-32-R, the Owner hereby grants to the Contractor the right to enter upon Tract B-1, Bells Flats Alaska Subdivision, hereinafter premises, which contains a total of approximately 19,95 acres, for the purpose of extracting, remanufacturing, and removing gravel resources. 2. Gravel Extraction. For the purposes of this contract, gravel extraction means the removal and transporting of gravel, and operation of all equipment and machinery required for the associated with extraction. 3. Gravel Remanufacturing. For the purposes of this contract, gravel remanufacturing means crushing, screening, washing and the use of gravel in manufacturing processes to create road asphalt and concrete, and operation of all equipment and machinery required for and associated with remanufacturing. Contractor may not maintain on the premises any equipment or other material not related to gravel extraction or remanufacturing. 4. Term, The term of this contract is thirteen (13) years, beginning on July 1, 1989, and ending on June 30 2002, or until the gravel resource is extracted, whichever occurs first, The Contractor may, if in full compliance with the provisions of the development plan and the performance standards herein, request early termination of this contract by the Owner for the following reasons: A. Exhaustion of the gravel resource; or B. Lack of gravel which is economically feasible to extract; or C. Bankruptcy of the Contractor. Notice of request for early termination shall be accomplished not less than. ninety (90) days prior to contract anniversary date and in accordance with the provisions of Section 28 herein. KIBS115475 , I 5. Option to Renew. This contract -ay be renewed for one-five (5) year period, Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 6. Annual Use Fee An annual use fee will be paid to the Owner by the Contractor on each anniversary date occurring during the term of the contract, The annual use fee for the tract of land described in Section 1 above is $ 5.000,00 and resulted from competitive public bidding on June 24 , 1982. No refund will be made to the Contractor for any portion of a year remaining if this contract is terminated or cancelled. 7. Royalty Rate. The Owner hereby establishes a royalty rate of $0.85 per cubic yard for materials excavated. In accordance with Section 18.60.060 of Borough Code, the Owner will review and establish on an annual basis, the minimum unit price for materials to be sold. The Contractor will reimburse the Owner for excavated materials upon receipt of a billing from the Owner, which shall be not less than annually during the term of the contract. Each new annual rate shall apply to the materials excavated during each twelve-month period established by Section 6. 8, Volume Determination. In accordance with Section 18.60.040 of the Borough Code, the Contractor shall bear the cost of volume determinations for excavated materials. The Owner may make additional volume determinations for excavated materials. The Owner may make additional volume measurements to verify the accuracy of the information provided by the Contractor. The Contractor's measurements will be submitted to the Owner on an annual basis and not less than thirty (30) days prior to the anniversary date of this contract. All measurements shall be in units of cubic yards. 9. Development Plan. The Contractor shall accomplish gravel extraction in accordance with all provisions of this contract and the development plan approved for Tracts B-1, B-2, 5-3, and B-4A, by the Owner, on March 4, 1982, a copy of which is attached as Exhibit A. 10. Performance Standards. The following performance standards shall be met by the Contractor: a. Buffer Area. A buffer area two hundred (200) feet in width shall extend from all platted property lines or the banks of the Russian River to the edge of the gravel extraction area except as shown on Exhibit A. Not KIBS115476 -2- more than one hundred ( 00) feet shall be adjacent to the area to be excavated. b. Overburden. Overburden shall be stripped, stockpiled, placed, and levelled in the cleared portion of the designated buffer area to create a berm for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, the berm will be removed and spread evenly over cleared portions of the buffer area. c. Side Slopes. Two to one (2:1) side slopes or flatter, to water's edge, shall be accomplished prior to contract termination and shall begin at the excavation side of the designated buffer area. d. Minimum Extraction Depth. Gravel extraction shall be accomplished to a minimum depth of twenty-five (25) feet below grade. e. Brush Removal. All brush shall be removed from not less than two-thirds (2/3) of the property described in Section 1 above before any gravel is extracted. Brush shall be burned or removed from the premises and may not be placed in the excavated area or buffer area on the premises. f. Trees. No trees, stumps, or parts of trees shall be placed in the excavated area or buffer area on the premises. g. Access. Ingress and egress shall be limited to one point on Middle Bay Drive. 11. Hours of Operation. Hours of operation shall be limited to 6:00 a.m. to 10:00 p.m. daily. 12. Haul Road. For the purposes of this contract, the designated haul roads area are as follows: a. From Tracts B-1, B-2, B-3, and B-4A to Chiniak Road via Middle Bay Drive to Bells Flats Road, Bells Flats Road to Sargent Creek Road, and Sargent Creek Road to Chiniak Read. b. From Chiniak Road to Tract B-1, B-2, B-3, and B-4A via Sargent Creek Road to Middle Bay Drive and Middle Bay Drive to Tracts B-1, B-2, B-3, and B-4A. c. Also included as a designated haul road is Uyak Drive fronting Block 3, Tract A, Bells Flats Alaska Subdivision. Temporary closure, by reason of emergency, or for repair or improvement, shall not excuse performance by Contractor or create any liability for Owner. 13. Speed Limit. Truck speed on the designated haul road shall be limited to twenty-five (25) miles per hour. KIBS115477 -3- 14. Performance Bond. A performance bond in the amount of ten thousand dollars ($10,000.00), payable to the Owner, shall be obtained by the Contractor and renewed annually prior to the anniversary date of this contract. Failure to maintain said performance bond shall constitute default. 15. License. Contractor shall possess a valid State of Alaska contractor's license. Failure to possess said license shall constitute default. 16. Insurance Required. Throughout the term, at Contractor's sole cost and expense, Contractor shall keep or cause to be kept in force for the mutual benefit of Owner and Contractor, comprehensive broad from general public liability insurance against claims and liability for personal injury, death or property damage arising from the use, occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways, providing protection of at least $500,000.00 for bodily injury or death of any one person, at least $1,000,000.00 for any one accident or occurrence, and at least $500,000.00 for property damage. All insurance required by this contract shall be carried only by responsible insurance companies licensed to do business in the State of Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance; (2) the insurer waives the right of subrogation against the Owner; (3) the policies are primary and noncontributing with any insurance that may be carried by Owner; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Owner. Contractor shall furnish Owner with copies of all such policies promptly on receipt, or with certificates evidencing the insurance. Before commencement of the contract, Contractor shall furnish Owner with binders representing all insurance required by this contract. If Contractor fails or refuses to procure or to maintain insurance as required by this contract, or fails or refuses to furnish Owner with required proof that the insurance has been procured and is in force and paid for, owner may, at Owner's election and without notice, procure and maintain such insurance, or may terminate this contract without liability by written notice to Contractor. Any premiums paid by owner shall be treated as an added fee KIBS115478 -4- due from Contractor with interest at eight percent (8 %) per year, to be paid on the first day of the month following the date on which the premiums, stating the amounts paid and the names of the insurers, and interest shall run from the date of the notice. 17. Assignability. This contract cannot be assigned without the Owner's approval. 18. Review. Contract performance will be reviewed at least annually or as necessary by the Owner. 19. Improvements. At any time and from time to time during the term, Contractor may, but, except as provided in the development plan, is not obliged to construct or otherwise make new improvements on any part or all of the premises, to demolish, remove, replace, alter, relocate, reconstruct or add to any existing improvements in whole or part, and to modify or change the contour or grade, or both, of the land, provided Contractor is not then in default under any term or condition of this contract. 20. Removal of Improvements. Within ninety (90) days after expiration of this contract, Contractor shall at his expense, remove all improvements, including fixtures. Any such improvements not so removed shall become the property of the Owner and may be sold at auction, leased as part of the premises, or otherwise disposed of, in any event without liability on the part of the Owner. The Notice requirements of Section 28 herein apply to the Owner. 21. Indemnity. Contractor shall defend and indemnify Owner against any claims, liabilities, or losses of any type arising out of performance pursuant to this contract together with reasonable attorney's fees and all costs and expenses incurred by Owner in negotiating, settling, defending and otherwise protecting against such claims. In accordance with Section 28 herein, Owner shall promptly notify the Contractor of any loss or claim, and shall tender defense of such claim to Contractor prior to negotiating, settling, or defending such claim. 22. Maintenance. Throughout the term, Contractor shall at his sole cost and expense, maintain the premises and improvements in good condition and repair, and in accordance with all applicable laws, rules, ordinances, orders and regulations of Federal, State, Municipal and other governmental agencies KIBS115479 -5- 14 --/ and bodies having or claiming jurisdiction and their respective departments and officials; and with the requirements of all insurance companies insuring all or part of the premises. 23. Owner Access. Owner shall have free access to the premises at all reasonable times for the purpose of inspecting the conditions thereof in order to exercise any right or power reserved to Owner under the terms and provision of this contract. 24. Default. Each of the following events shall be a default by Contractor and a breach of this contract: a. Failure to make any payment as provided in. Sections 6 and 7 or this contract, or of any other sum required by this contract to be paid by the Contractor, or failure to perform as required or conditioned by any other covenant or condition of this contract. b. The subjection of any right or interest of Contractor to attachment, execution, or to seizure under legal process, c. The appointment of a receiver to take possession of the improvements or of Contractor's operation on the premises for any reason, including, but not limited to, assignment for benefit of creditors or voluntary bankruptcy proceedings. d. An assignment by Contractor for the benefit of creditors or the filing of a voluntary or involuntary petition by or against Contractor under any law for the purpose of adjudicating Contractor a bankrupt; or for extending time for payment, adjustment or satisfaction of Contractor's liabilities; or for reorganization, dissolution , or arrangement on account of, or to prevent bankruptcy or insolvency. e. The failure of the Contractor to occupy the land or to perform according to the terms of this contract within twelve months of the execution of this contract, or failure within any two (2) year period to extract, process, and remove a substantial quantity of gravel from the premises. If the alleged default is non-payment of annual use fee, royalty rate or other sums to be paid by Contractor under this contract, Contractor shall have ten (10) days after notice is given to cure the default.. For any other default, Contractor shall promptly and diligently, after the notice, commence during the default and shall have thirty (30) days after notice is given to complete the cure. 1CIBS 115480 -6- 25. Owner's Remedies on Default. If any alleged default by Contractor remains uncured after notice and the period for cure allowed under this contract, Owner has the following remedies in addition to all other rights and remedies provided by law or equity, to which Owner may resort cumulatively or in the alternative: a. Owner may at Owner's election terminate this contract by giving notice of termination. On the giving of the notice, all Contractor's rights in the premises and in all improvements shall terminate. Promptly after notice of termination, Contractor shall surrender and vacate the premises and all other improvements in good condition, and Owner may re-enter and take possession of the premises and all remaining improvements and eject all parties in possession, or eject some and not others or eject none. b. If this agreement is referred by Owner to an attorney upon any default by Contractor, Contractor shall pay Owner the latter's reasonable attorney fees, regardless of whether or not nay suit or action is commenced. 26. Non-Waiver. No failure on the part of the Owner to enforce any covenant or provision herein contained, nor any waiver of any right hereunder by the Owner shall discharge or invalidate such covenants or affect the right of the Owner to enforce same in the event of any subsequent breach or default. 27. Construction. The obligations of the undersigned parties are joint and several, and wherever the context hereof so admits or requires, the singular shall include the plural. The covenants, terms and conditions of this agreement shall extend to and be binding upon and insure to the benefit of the heirs, executors, administrators, and assigns of the parties hereto. 28. Notice, Any notice provided for hereunder shall be given in writing and transmitted by personal delivery or prepaid first class mail addressed as follows: Owner Borough Mayor Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Contractor Mr. Richard C. Egge, President Aleutian Materials, Inc, P. O. Box 1188 Woodinville, Washington 98072 or to such other persons or addresses as Owner or Contractor may from time to time designate in writing. -7- KIBS115481 29. Violation of Law. Any provision of this contract in violation of any law or Ordinance shall not invalidate this contract, and any unlawful provision shall be deemed separate and apart from all other provisions herein and stricken from this contract. The parties shall attempt to prepare a mutually acceptable substitute provision for any provision stricken from this • contract due to illegality, and shall subsequently incorporate the substituted provision by a written modification of this contract. All remaining terms and provision shall remain in full force and effect as though the stricken provisions had never appeared in this contract. Each provision of this contract shall be valid and enforced to the fullest extent permitted by law. Neither party shall be required to indemnify the other for any damages or losses resulting from a determination that a contract provision is unlawful. 30. Venue. Any civil action arising from this contract shall be brought in the Superior Court, Third Judicial District, for the State of Alaska in Kodiak. The law of the State of Alaska shall govern the rights and duties of the parties under this contract. 31. Amendment. -The parties may amend this contract only by written agreement, which shall be attached as an appendix hereto. OWNER 'Kodiak Island Borough By: CONTRACTOR Aleutian Ma By: WITNE KIBS115482 r1L r Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 MATERIAL SALES CONTRACT This contract is between the Kodiak Island Borough, hereinafter Owner, and Aleutian Materials, Inc., hereinafter Contractor. In consideration of the mutual covenants herein, the parties agree as follows: 1. In accordance with Title,18, Real Property, of the Kodiak Island Borough Code and based on the condition of KIB Resolution No. 89-32-R, the Owner hereby grants to the Contractor the right to enter upon Tract B-2, Bells Flats Alaska Subdivision, hereinafter premises, which contains a total of approximately 19.72 acres, for the purpose of extracting, remanufacturing, and removing gravel resources. 2. Gravel Extraction. For the purposes of this contract, gravel extraction means the removal and transporting of gravel, and operation of all equipment and machinery required for the associated with extraction. 3, Gravel Remanufacturing, For the purposes of this contract, gravel remanufacturing means crushing, screening, washing and the-use of gravel in manufacturing processes to create road asphalt and concrete, and operation of all equipment and machinery required for and associated with remanufacturing. Contractor may not maintain on the premises any equipment or other, material not related to gravel extraction or remanufacturing. 4. Term. The term of this contract is thirteen (13) years, beginning on July 1, 1989, and ending on June 30. 2002, or until the gravel resource is extracted, whichever occurs first. The Contractor may, if in full compliance with the provisions of the development plan and the performance standards herein, request early termination of this contract bay the Owner for the following reasOns: A. Exhaustion of the gravel resource; or B. Lack of gravel which is economically feasible to extract; or C. Bankruptcy of the Contractor, Notice of request for early termination shall be accomplished not less than ninety (90) days prior to contract anniversary date and in accordance with the provisions of Section 28 herein. KIBS 115466 5. Option to Renew. This contract may be renewed for one -five (5) year period. Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 6. Annual Use Fee. An annual use fee will be paid to the Owner by the Contractor on each anniversary date occurring during the term of the contract. The annual use fee for the tract of land described in Section 1 above is $ 5,000.00 and resulted from competitive public bidding on June 24 , 1982. No refund will be made to the Contractor for any portion of a year remaining if this contract is terminated or cancelled. 7. Royalty Rate. The Owner hereby establishes a royalty rate of $0.85 per cubic yard for materials excavated. In accordance with Section 18.60.060 of Borough Code, the Owner will review and establish on an annual basis, the minimum unit price for materials to be sold. The Contractor will reimburse the Owner for excavated materials upon receipt of a billing from the Owner, which shall be not less than annually during the term of the contract. Each new annual rate shall apply to the materials excavated during each twelve -month period established by Section 6. 8. Volume Determination, In accordance with Section 18.60.040 of the Borough Code, the Contractor shall bear the cost of volume determinations for excavated materials. The Owner may make additional volume determinations for excavated materials. The Owner may make additional volume measurements to verify the accuracy of the information provided by the Contractor. The Contractor's measurements will be submitted to the Owner on an annual basis and not less than thirty (30) days prior to the anniversary date of this contract. All measurements shall be in units of cubic yards. 9. Development Plan. The Contractor shall accomplish gravel extraction in accordance with all provisions of this contract and the development plan approved for Tracts B -1, B -2, B -3, and B -4A, by the Owner, on March 4, 1982, a copy of which is attached as Exhibit A. 10. Performance Standards. The following performance standards shall be met by the Contractor: a. Buffer Area. A buffer area two hundred (200) feet in width shall extend from all platted property lines or the banks of the Russian River to the edge of the gravel extraction area, except as shown on Exhibit A. Not KIBS115467 -2- more than one hundred (100) feet shall be adjacent to the area to be excavated. b. Overburden. Overburden shall be stripped, stockpiled, placed, and levelled in the cleared portion of the designated buffer area to create a berm for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, the berm will be removed and spread evenly over cleared portions of the buffer area. c. Side Slopes. Two to one (2:1) side slopes or flatter, to water's edge, shall be accomplished prior to contract termination and shall begin at the excavation side of the designated buffer area. d. Minimum Extraction Depth. Gravel extraction shal be accomplished to a minimum depth of twenty-five (25) feet below grade. e. Brush Removal. All brush shall be removed from not less than two-thirds (2/3) of the property described in Section 1 above before any gravel is extracted. Brush shall be burned or removed from the premises and may not be placed in the excavated area or buffer area on the premises. f Trees. No trees, stumps, or parts of trees shall be placed in the excavated area or buffer area on the premises. g. Access. Ingress and egress shall be limited to one point on Middle Bay Drive. 11. Pours of Operation. Hours of operation shall be limited to 6:00 a,m. to 10:00 p.m. daily. 12. Haul Road. For the purposes of this contract, the designated haul roads area are as follows: a, From Tracts B-1, B-2, B-3, and B-4A to Chiniak Road via Middle Bay Drive to Bells Flats Road, Bells Flats Road to Sargent Creek Road, and Sargent Creek Road to Chiniak Road. b. From Chiniak Road to Tract B-1, B-2, B-3, and B-4A via Sargent Creek Road to Middle Bay Drive and Middle Bay Drive to Tracts B-1, B-2, B-3, and B-4A. c, Also included as a designated haul road is Uyak Drive fronting Block 3, Tract A, Bells Flats Alaska Subdivision. Temporary closure, by reason of emergency, or for repair or improvement, shall not excuse performance by Contractor or create any liability for Owner. 13, Speed Limit. Truck speed on the designated haul road shall be limited to twenty-five (25) miles per hour. KIBS115468 -3- l y� 14. Performance Bond. A performance bond in the amount of ten thousand dollars ($10,000.00), payable to the Owner, shall be obtained by the Contractor and renewed annually prior to the anniversary date of this contract. Failure to maintain said performance bond shall constitute default. 15. License. Contractor shall possess a valid State of Alaska contractor's license. Failure to possess said license shall constitute default. 16. Insurance Required. Throughout the term, at Contractor's sole cost and expense, Contractor shall keep or cause to be kept in force for the mutual benefit of Owner and Contractor, comprehensive broad from general public liability insurance against claims and liability for personal injury, death or property damage arising from the use, occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways, providing protection of at least $500,000.00 for bodily injury or death of any one person, at least $1,000,000.00 for any one accident or occurrence, and at least $500,000.00 for property damage. All insurance required by this contract shall be carried only by responsible insurance companies licensed to do business in the State of Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance; (2) the insurer waives the right of subrogation against the Owner; (3) the policies are primary and noncontributing with any insurance that may be carried by Owner; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Owner. Contractor shall furnish Owner with copies of all such policies promptly on receipt, or with certificates evidencing the insurance. Before commencement of the contract, Contractor shall furnish Owner with binders representing all insurance required by this contract. If Contractor fails or refuses to procure or to maintain insurance as required by this contract, or fails or refuses to furnish Owner with required proof that the insurance has been procured and is in force and paid for, owner may, at Owner's election and without notice, procure and maintain such insurance, or may terminate this contract without liability by written notice to Contractor. Any premiums paid by owner shall be treated as an added fee KIBS115469 -4- due from Contractor with interest at eight percent (8 %) per year, to be paid on the first day of the month following the date on which the premiums, stating the amounts paid and the naives of the insurers, and interest shall run from the date of the notice. 17. Assignability. This contract cannot be assigned without the Owner's approval. 18. Review. Contract performance will be reviewed at least annually or as necessary by the Owner. 19. Improvements. At any time and from time to time during the term, Contractor may but, except as provided in the development plan, is not obliged to construct or otherwise make new improvements on any part or all of the premises, to demolish, remove, replace, alter, relocate, reconstruct or add to any existing improvements in whole or part, and to modify or change the contour or grade, or both, of the land, provided Contractor is not then in default under any term or condition of this contract. 20. Removal of Improvements. Within ninety (90) days after expiration of this contract, Contractor shall at his expense, remove all improvements, including fixtures. Any such improvements not so removed shall become the property of the Owner and may be sold at auction, leased as part of the premises, or otherwise disposed of, in any event without liability on the part of the Owner, The Notice requirements of Section 28 herein apply to the Owner. 21. Indemnity. Contractor shall defend and indemnify Owner against any claims, liabilities, or losses of any type arising out of performance pursuant to this contract together with reasonable attorney's fees and all costs and expenses incurred by Owner in negotiating, settling, defending and otherwise protecting against such claims. In accordance with Section 28 herein, Owner shall promptly notify the Contractor of any loss or claim, and shall tender defense of such claim to Contractor prior to negotiating, settling, or defending such claim. 22 Maintenance. Throughout the term, Contractor shall at his sole cost and expense, maintain the premises and improvements in good condition and repair, and in accordance with all applicable laws, rules, ordinances, orders and regulations of Federal, State, Municipal and other governmental agencies KIBS115470 -5- and bodies having or claiming jurisdiction and their respective departments and officials; and with the requirements of all insurance companies insuring all or part of the premises. 23. Owner Access. Owner shall have free access to the premises at all reasonable times for the purpose of inspecting the conditions thereof in order to exercise any right or power reserved to Owner under the terms and provision of this contract. 24. Default. Each of the following events shall be a default by Contractor and a breach of this contract: a. Failure to make any payment as provided in Sections 6 and 7 or this contract, or of any other sum required by this contract to be paid by the Contractor, or failure to perform as required or conditioned by any other covenant or condition of this contract. b. The subjection of any right or interest of Contractor to attachment, execution, or to seizure under legal process. c. The appointment of a receiver to take possession of the improvements or of Contractor's operation on the premises for any reason, including, but not limited to, assignment for benefit of creditors or voluntary bankruptcy proceedings. d. An assignment by Contractor for the benefit of creditors or the filing of a voluntary or involuntary petition by or against Contractor under any law for the purpose of adjudicating Contractor a bankrupt; or for extending time for payment, adjustment or satisfaction of Contractor's liabilities; or for reorganization, dissolution , or arrangement on account of, or to prevent bankruptcy or insolvency. e. The failure of the Contractor to occupy the land or to perform according to the terms of this contract within twelve months of the execution of this contract, or failure within any two (2) year period to extract, process, and remove a substantial quantity of gravel from the premises. If the alleged default is non-payment of annual use fee, royalty rate or other sums to be paid by Contractor under this contract, Contractor shall have ten (10) days after notice is given to cure the default. For any other default, Contractor shall promptly and diligently, after the notice, commence during the default and shall have thirty (30) days after notice is given to complete the cure. KIBS115471 -6- 25. Owner's Remedies gn Default. If any alleged default by Contractor remains uncured after notice and the period for cure allowed under this contract, Owner has the following remedies in addition to all other rights and remedies provided by law or equity, to which Owner may resort cumulatively or in the alternative: a. Owner may at Owner's election terminate this contract by giving notice of termination. On the giving of the notice, all Contractor's rights in the premises and in all improvements shall terminate. Promptly after notice of termination, Contractor shall surrender and vacate the premises and all other improvements in good condition, and Owner may re-enter and take possession of the premises and all remaining improvements and eject all parties in possession, or eject some and not others or eject none. b. If this agreement is referred by Owner to an attorney upon any default by Contractor, Contractor shall pay Owner the latter's reasonable attorney fees, regardless of whether or not nay suit or action is commenced. 26. Non-Waiver. No failure on the part of the Owner to enforce any covenant or provision herein contained, nor any waiver of any right hereunder by the Owner shall discharge or invalidate such covenants or affect the right of the Owner to enforce same in the event of any subsequent breach or default. 27. Construction. The obligations of the undersigned parties are joint and several, and wherever the context hereof so admits or requires, the singular shall include the plural. The covenants, terms and conditions of this agreement shall extend to and be binding upon and insure to the benefit of the heirs, executors, administrators, and assigns of the parties hereto. 28. Notice. Any notice provided for hereunder shall be given in writing and transmitted by personal delivery or prepaid first class mail addressed as follows: Owner Borough Mayor Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Contractor Mr. Richard C. Egge, President Aleutian Materials, Inc. P. O. Box 1188 Woodinville, Washington 98072 or to such other persons or addresses as Owner or Contractor may from time to time designate in writing. -7- KIBS115472 29. Violation of Law. Any provision of this contract in violation of any law or Ordinance shall not invalidate this contract, and any unlawful provision shall be deemed separate and apart from all other provisions herein and stricken from this contract. The parties shall attempt to prepare a mutually acceptable substitute provision for any provision stricken from this contract due to illegality, and shall subsequently incorporate the substituted provision by a written modification of this contract. All reniaining terms and provision shall remain in full force and effect as though the stricken provisions had never appeared in this contract. Each provision of this contract shall be valid and enforced to the fullest extent permitted by law. Neither party shall be required to indemnify the other for any damages or losses resulting from a determination that a contract provision is unlawful. 30. Venue. Any civil action arising from this contract shall be brought in the Superior Court, Third Judicial District, for the State of Alaska in Kodiak. The law of the State of Alaska shall govern the rights and duties of the parties under this contract. 31. Amendment. The parties may amend this contract only by written a e er.t, which shall be attached as an appendix hereto. ATTEW By: Bbroug • OWNER Kodiak Island Borough By: CONTRACTOR Aleutian KIBS115473 r 06'0 1 ACORD,. CERTIFICA''_ ' OF LIABILITY INSUR _'�JCE oA E(MWDD/YY) PRODUCER Parker Smith & Feek Anchorage Office 40+`^ Old Seward Hwy., Ste. 200 A, Jrage, AK 99503 -6067 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE ALTER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURED Brechan Enterprises, Inc. 2705 Mill Bay Road Kodiak, AK 99615 INSURER A: Alaska National Ins. Co. INSURER B: SeaBright Insurance Company INSURER C: INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MMIDDIYY) POLICY EXPIRATION DATEJMMlDDlYY) LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY 06BLS55211 02/01/06 02/01/07 EACH OCCURRENCE $1,000,000 $100,000 $5,000 $1 ,000,000 X FIRE DAMAGE (Any one Sire) CLAIMS MADE X OCCUR MED EXP (Any one person) PERSONAL & ADV INJURY ■ GEN'L GENERAL AGGREGATE $2,000,000 $2,000,000 AGGREGATE LIMITAPPLIES PER: PRODUCTS -COMP/OP AGG POLICY PRO n LOC JECT A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 06BAS55212 02/01/06 02/01/07 COMBINED SINGLE, LIMIT (Ea accident) $1,000,000 X BODILY INJURY (Per person) BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY BB1060772 02/01/06 02/01/07 X TORY If MTITS _ OTH- ER E.L. EACH ACCIDENT $1,000,000 $1,000,000 E.L. DISEASE -EA EMPLOYEE E.L. DISEASE • POLICY LIMIT $1,000,000 OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES !EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS Evidence of Insurance C-) APR "' r CERTIFICATE HOLDER t ADDmONALINSURED;INSURERLETTER: CANCELLATION Kodiak Island Borough Fianance Department 710 Mill Bay Road Kodiak, AK 99615 SH OULD ANYOF TH E ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE TH E EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TOTHE CERTIFICATE HOLDER NAM EDTOTHELEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES, AUT ORIZED REPRESENTATI E ACORD 25 -S (7/97)1 of 2 #S64753/M60065 MRFOO 0 ACORD CORPORATION 1988 , ACORD CERTIFICATi.-_ Thi OF LIABILITY IN URAN .• . 21/2005 TYPE OF INSURANCE POLICY NUMBER PRODUCER Willis North America, Inc. 26 Century Blvd. P. 0. Box 305191 Nashville, TN 372305191 877- 945 -7378 - Regional Cert Center THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE . HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC# INSURED Brechan Enterprises, Inc. 2705 Mill Bay Road P.O. Box 1275 Kodiak, AK 99615 12/31/2004 INSURER A: Alaska National Insurance Co. 38733 -000 INSURER B: X 4 INSURER C: $ 100,000 INSURER D: CLAIMS MADE X OCCUR INSURER E: $ 5,000' COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY9 POLICY EXPIRATION DATE (MM /DD/YYI LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY 04LLS55211 12/31/2004 12/31/2005 EACHOCCURRENCE $ 1,000,000 X 4 PREMI ETORENTED PREMISES (Ea occurence) $ 100,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $ 5,000' PERSONAL &ADVINJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2, 000, 000 POLICY X PRO- JECT JECT A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 04LAS55212 12/31/2004 12/31/2005 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X BODILY INJURY (Per person) BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGELIABILITY ANY AUTO AUTO ONLY. EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? 11 yes, describe under SPECIAL PROVISIONS below 04LWS55213 12/31/2004 12/31/2005 X ,TORYLMITS OTH- ER E.L. EACH ACCIDENT $ 500x000 E.L. DISEASE - EA EMPLOYEE $ 500, 000 E.L. DISEASE- POLICY IT $ 5 00,000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS Re: Material Sales Contracts - Tracts B -3 and B -4 - Bells Flats Alaska Subdivision _1 rsnr}r OLDE CANCELLATION • Kodiak island Borough 710 Mill Bay Road Kodiak, AK 99615 1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPR„BS VE ACORD 25 (2001/08) Co11:1223502 Tp1:344303 Cert :5481365 n0 ACORD CORPORATION 1988 710 Mill Bay �1 Kodiak, Alaska '9io15 Phone (907) 486-9301 Fax (907) 486 -9374 E- mail: Sliensen @kib.co.kodiak.ak.us October 19, 2000 Final Finding and Decision Extension of Material Sales Contract Brechan Enterprises, Inc. Tract's B -3 and B -4, Bells Flats Subdivision Requested Action: Brechan Enterprises Inc. has submitted a request to amend the existing Material Sales Contract with the Kodiak Island Borough by adding 5 years to the contract generating a new termination date of June 30, 2007. Legal Authority: This action is taken pursuant to authority granted under AS 29.20.500 and KIB 2.20.030 J. 2. and by extension the Material Sales Contract Section 5 Option to Renew.' Discussion: In response to the applicant's request, a compliance review of the contract, case file and property was conducted. The existing contract is in force and the Kodiak Island Borough cannot unreasonably deny the applicants request, Pertinent Issues: As part of the review it was found that the amendment to the lease2 illegally exempted the taxable possessory interest in the property in violation of AS 29.45.0303 and must be deleted. It is important to point out that the basis and logic for the exemption still applies, in that at the time of bidding there was no notice to the bidders that the property would be subject to possessory interest property taxes except for improvements. Logic dictates that the bid price of $5,000 per tract per annum would have been affected if the property tax liability was known. 1 think an appropriate solution to this problem would be credit the annual payment for the amount of taxes paid pertains to the taxable interest in the land. 15. Option to Renew. This contract may be renewed for one -five (5) year period. Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 2 KIB Resolution No. 89-32-R Passed and Approved 7/6/89. . _ __ ._ �_. _a ._ ._.� th. ear mnat he assessed. levied. and collected as provided in CsUImrtLCu tt) VC Scan UIGLt LttI.suutiaau Findings: In order to fully comply with the agreement and State Law, the attached 'amendment will need to completed clarifying the treatment of property taxes and extending the Contract term. The Contractor is in full compliance with the Agreement. Po-t Co (•ti (.1" ±, ! `I Pat Carlson, Date 1 Assessor -Lands Manager, Kodiak Island Borough I, the undersigned, have reviewed the application, case file and the property and find the applicant is in compliance with the applicable Borough ordinances regarding zoning and permitting. Bob Scholxe, Date Acting Community Development Director, Kodiak Island Borough I, the undersigned, have reviewed KIB's financial records of the applicant pertaining to the contract payments and royalty fees pertaining to this property and find that there are no outstanding financial liabilities and the required bonding is in force. Wet„,44. )1.4a- Karleton Short, Finance Director, Kodiak Island Borough Dd 23, .von Date Final Decision: The administrative findings presented above have been reviewed and considered. A review of the case file and a physical inspection of the facility has been conducted and the applicant has been found in full compliance with the existing material sales contract. The following amendments are incorporated by agreement of the parties as authorized by Section 31 of the Agreement. Pursuant to the authority granted me 1 hereby approve an extension of the existing material safes contract until June 30, 2007. David Jensen Manager, K d Borough 4 Date AMENDMENT, mar day of ?0, by and between the KODIAK ISLAND BOROUGH, "KIB ", and BRECHAN ENTERPRLA INC., "BEI": WHEREAS, the contract entered into between the parties did not make provisions for the payment of real property taxes assessed on the Premises; and, WHEREAS, the parties agreed to an amendment to the contract on Sept. 7, 1984; and, WHEREAS, the method used for dealing with property taxes in that amendment does not comply with State Law, which requires the payment of property taxes and does not allow KW the legal authority to exempt possessory interests in real property; and, WHEREAS, BEI requests the option to renew for an additional 5 years pursuant to the agreement, NOW, THEREFORE, in consideration of the promises and mutual covenants of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties hereby adopt this amendment, and agree that Paragraph 6 of the Material Sales Contract dated July 7, 1982 and amended September 7, 1984, shall be amended as follows: 6. Annual Use Fee. (a) An annual use fee will be paid to KIB by BEI on each anniversary data occurring during the term of the contract. The annual use fee for the tract of land described in Section 1 above is $5,000 and resulted from competitive bidding on June 24, 1982. No refund will be made to BEI for any portion of a year remaining if this contract is terminated or cancelled. (b) The annual use fee of $5,000 will be reduced dollar for dollar for the amount of property taxes paid on the premises during the calendar year assessed against BEI's possessory interest in KIB's land if the annual use fee is timely paid in full. KBE does not timely pay in full this section does not apply and the annual fee of $5,000 will be due in addition to the property taxes lawfully assessed against the Premises. FURTHER: BEI acting in good faith is in complete compliance with all provisions of the agreement and pursuant to Article 5 of the agreement a timely request for renewal of the option for extension having been received, parties agree that Article 4 of the Material Sales Contract dated July 7, 1982 and amended September 7, 1984 and further amended by this document shall be further amended as follows: 4. Term; The term of this contract is twenty five (25) years, beginning on July 1, 1982, and ending on June 30, 2007, (the balance of this section remains in force and unchanged): IN WITNESS WHEROF, the parties have executed this Amendment to the Material Sales Contract the day and year first written above. CONTRACTOR: ,CHAN ENTERPRISE$, INC. By STATE OF ALASKA THIRD JUDICIAL DISTRICT } } ss: } THIS IS TO CERTIFY that on the before me, the undersigned, a Notary Pi It in and sworn as such, personally pe Y Manager of the KODIAK ISLAND BOROUGH, a Municipal Corporation, and known to me to be the person who executed the within Amendment to the Material Sales Contract on behalf of the Municipal Corporation herein named, and acknowledged to me that the same was signed as a free act and deed of said Municipal Corporation for the uses and purposes therein stated and pursuant to its ordinances or a resolution of its Assembly. S d and notarial seal the ' ; and yerst ritten above. Michael R. Martin, President y of Ockkir. , 2000, State of Alaska, duly commissioned , to me known to be the THIRD JUDICIAL DISTRICT } } } ss: Notary Public in an for Alaska l My commission expires q44/6g- THIS IS TO CERTIFY that on ther2g44i day of 301-63V--- , 2000, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared rith2Ya, rr i , known by me to be the President of Brechan Enterprises Inc., a corporation, and known to me to be the person who executed the within Amendment to the Material Sales Contract on behalf of the corporation herein named, and acknowledged to me that the same was signed as a free act and deed of said corporation for the uses and purposes therein stated and pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and notarial seal the day and year first ritten above. Notary Pubii in and for Alas ka / Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 M4TERIAL SALES CONTRACT This contract is between the Kodiak Island Borough, hereinafter Owner, and Aleutian Materials, Inc., hereinafter Contractor. In consideration of the mutual covenants herein, the parties agree as follows: 1. In accordance with Title 18, Real Property, of the Kodiak Island Borough Code and based on the condition of KIB Resolution No. 89-32-R, the Owner hereby grants to the Contractor the right to enter upon Tract Bells Flats Alaska Subdivision, hereinafter premises, which contains a total of approximately 19.72 acres, for the purpose of extracting, remanufacturing, and removing gravel resources. 2. Gravel Extraction. For the purposes of this contract, gravel extraction means the removal and transporting of gravel, and operation of all equipment and machinery required for the associated with extraction. 3. Gravel Remanufacturing. For the purposes of this contract, gravel remanufacturing means crushing, screening, washing and the use of gravel in manufacturing processes to create road asphalt and concrete, and operation of all equipment and machinery required for and associated with remanufacturing. Contractor may not maintain on the premises any equipment or other material not related to gravel extraction or remanufacturing. 4. Term. The term of this contract is thirteen (13) years, beginning an July 1, 1989, and ending on June 30, 2002, or until the gravel resource is extracted, whichever occurs first. The Contractor may, if in full compliance with the provisions of the development plan and the performance standards herein, request early termination of this contract by the Owner for the following reasons: A. Exhaustion of the gravel resource; or 5. Option to Renew. This contract may be renewed for one-five (5) year period. Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 6. annual Use Fee. An annual use fee will be paid to the Owner by the Contractor on each anniversary date occurring during the term of the contract. The annual use fee for the tract of land described in Section 1 above is $ 5.000.00 and resulted from competitive public bidding on June 24 , 1982. No refund will be made to the Contractor for any portion of a year remaining if this contract is terminated or cancelled. 7. Royalty Rate. The Owner hereby establishes a royalty rate of $0.85 per cubic yard for materials excavated. In accordance with Section 18.60.060 of Borough Code, the Owner will review and establish on an annual basis, the minimum unit price for materials to be sold. The Contractor will reimburse the Owner for excavated materials upon receipt of a billing from the Owner, which shall be not less than annually during the term of the contract. Each new annual rate shall apply to the materials excavated during each twelve-month period established by Section 6. 8. Volujne Determination. In accordance with Section 18.60.040 of the Borough Code, the Contractor shall bear the cost of volume determinations for excavated materials. The Owner may make additional volume determinations for excavated materials. The Owner may make additional volume measurements to verify the accuracy of the information provided by the Contractor. The Contractor's measurements will be submitted to the Owner on an annual basis and not less than thirty (30) days prior to the anniversary date of this contract. All measurements shall be in units of cubic yards. 9. Development Plan, The Contractor shall accomplish gravel extraction in accordance with all provisions of this contract and the development plan approved for Tracts B-1, B-2, B-3, and B-4A, by the Owner, on March 4, 1982, a copy of which is attached as Exhibit A. more than one hundred (100) feet shall be adjacent to the area to be excavated. b. Overburden. Overburden shall be stripped, stockpiled, placed, and levelled in the cleared portion of the designated buffer area to create a berm for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, the berm will be removed and spread evenly over cleared portions of the buffer area. c. Side Slopes. Two to one (2:1) side slopes or flatter, to water's edge, shall be accomplished prior to contract termination and shall begin at the excavation side of the designated buffer area. d. Minimum Extraction Depth. Gravel extraction shall be accomplished to a minimum depth of twenty-five (25) feet below grade. e. Brush Removal. All brush shall be removed from not less than two-thirds (2/3) of the property described in Section 1 above before any gravel is extracted. Brush shall be burned or removed from the premises and may not be placed in the excavated area or buffer area on the premises. f. Trees. No trees, stumps, or parts of trees shall be placed in the excavated area or buffer area on the premises. g. Access. Ingress and egress shall be limited to one point on Middle Bay Drive. 11. Hours of Operation. Hours of operation shall be limited to 6:00 a.m. to 10:00 p.m. daily. 12. Haul Road. For the purposes of this contract, the designated haul roads area are as follows: a. From Tracts B-1, B-2, B-3, and B-4A to Chiniak Road via Middle Bay Drive to Bells Flats Road, Bells Flats Road to Sargent Creek Road, and Sargent Creek Road to Chiniak Road. b. Front Chiniak Road to Tract B-1, B-2, B-3, and B-4A via Sargent Creek Road to Middle Bay Drive and Middle Bay Drive to Tracts B-1, B-2, B-3, and 13 -4A. 14. Performance Bond. A performance bond in'the amount of ten thousand dollars ($10,000.00), payable to the Owner, shall be obtained by the Contractor and renewed annually prior to the anniversary date of this contract. Failure to maintain said performance bond shall constitute default. 15. License. Contractor shall possess a valid State of Alaska contractor's license. Failure to possess said license shall constitute default. 16. Insurance Required. Throughout the term, at Contractor's sole cost and expense, Contractor shall keep or cause to be kept in force for the mutual benefit of Owner and. Contractor, comprehensive broad from general public liability insurance against claims and liability for personal injury, death or property damage arising from the use, occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways, providing protection of at least $500,000.00 for bodily injury or death of any one person, at least $1,000,000.00 for any one accident or occurrence, and at least $500,000.00 for property damage. All insurance required by this contract shall be carried only by responsible insurance companies licensed to do business in the State of Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance; (2) the insurer waives the right of subrogation against the Owner; (3) the policies are primary and noncontributing with any insurance that may be carried by Owner; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Owner. Contractor shall furnish Owner with copies of all such policies promptly on receipt, or with certificates evidencing the insurance. Before commencement of the contract, Contractor shall furnish Owner with binders representing all insurance required by this contract. If Contractor fails or refuses to procure or to maintain insurance as due from Contractor with interest at eight.percent (8 %) per year, to be paid on the first day of the month following the date on which the premiums, stating the amounts paid and the names of the insurers, and interest shall run from the date of the notice. 17. Assignability. This contract cannot be assigned without the Owne approval. 18. Review, Contract performance will be reviewed at least.annually or as necessary by the Owner. 19. Improvements, At any time and from time to time during the term, Contractor may, but, except as provided in the development plan, is not obliged to construct or otherwise make new improvements: on any part or all of the premises,, to demolish, remove, replace, alter, relocate, reconstruct or add to any existing improvements in whole or part, and to modify or change the contour or grade, or both, of the land, provided Contractor is not then in default under any term or condition of this contract. 20. Removal of Improvements, Within ninety (90) days after expiration of this contract, Contractor shall at his expense, remove all improvements, including fixtures. Any such improvements not so removed shall become the property of the Owner and may be sold at auction, leased as part of the premises, or otherwise disposed of, in any event without liability on the part of the Owner. The Notice requirements of Section 28 herein apply to the Owner. 21. Indemnity. Contractor shall defend and indemnify Owner, against any claims, liabilities, or losses of any type arising out of performance pursuant to this contract together with reasonable attorney's fees and all costs and expenses incurred by Owner in negotiating, settling, defending and otherwise protecting against such claims. In accordance with Section 28 herein, Owner shall promptly notify the Contractor of any loss or claim, and shall tender defense of such claim to Contractor prior to negotiating, settling, or defending such claim. and bodies having or claiming jurisdiction and their respective departments and officials; and with the requirements of all insurance companies insuring all or part of the premises. 23. Owner Access. Owner shall have free access to the premises at all reasonable times for the purpose of inspecting the conditions thereof in order to exercise any right or power reserved to Owner under the terms and provision of this contract. 24. Default. Each of the following events shall be a default by Contractor and a breach of this contract: a. Failure to snake any payment as provided in Sections 6 and 7 or this contract, or of any other sum required by this contract to be paid by the Contractor, or failure to perform as required or conditioned by any other covenant or condition of this contract. b. The subjection of any right or interest of Contractor to attachment, execution, or to seizure under legal process. c. The appointment of a receiver to take possession of the improvements or of Contractor's operation on the premises for any reason, including, but not limited to, assignment for benefit of creditors or voluntary bankruptcy proceedings. d. An assignment by Contractor for the benefit of creditors or the filing of a voluntary or involuntary 'petition by or against Contractor under any law for the purpose of adjudicating Contractor a bankrupt; or for - extending time for payment, adjustment or satisfaction of Contractor's liabilities; or for reorganization, dissolution , or arrangement on account of, or to prevent bankruptcy or insolvency. e. The failure of the Contractor to occupy the land or to perform according to the terms of this contract within twelve months of the execution of.this contract, or failure within any two (2) year period to extract, process, and remove a substantial quantity of gravel from the premises. If the alleged default is non - payment of annual use fee, royalty rate or n 25. Owner's Remedies on Default. If any alleged default by Contractor remains uncured after notice and the period for cure allowed under this contract, Owner has the following remedies in addition to all other rights and remedies provided by law or equity, to which Owner may resort cumulatively or in the alternative: a. Owner may at Owner's election terminate this contract by giving notice of termination. On the giving of the notice, all Contractor's rights in the premises and in all improvements shall terminate. Promptly after notice of termination, Contractor shall surrender and vacate the premises and all other improvements in .good condition, and Owner may re -enter and take possession of the premises and all remaining improvements and eject. all parties in possession, or eject some and not others or eject none. b.. If this agreement is referred by Owner to an attorney upon any default by Contractor, Contractor shall pay Owner the -latter's reasonable attorney fees, regardless of whether or not nay suit or action is commenced. 26. Non- Waiver. No failure on the part of the Owner to enforce any covenant or provision herein contained, nor any waiver of any right hereunder by the Owner shall discharge or invalidate such covenants or affect the right of the Owner to enforce same in the event of any subsequent breach or default. 27. Construction. The obligations of the undersigned parties are joint and several, and wherever the context hereof so admits or requires, the singular shall include the plural. The covenants, terms and conditions of this agreement shall extend to and be binding upon and insure to the benefit of the heirs, executors, administrators, and assigns of the parties hereto. 28. Notice. Any notice provided for hereunder shall be given in writing and transmitted by personal delivery or prepaid first class mail addressed as follows: Owner Contractor Borough Mayor Mr. Richard C. Egge, President 29. Violation of Law. Any provision of this contract in violation of any law or Ordinance shall"not invalidate this contract, and any unlawful provision shall be deemed separate and apart from all other provisions herein and stricken from this contract. The parties shall attempt to prepare a mutually acceptable substitute provision for any provision stricken from this contract due to illegality, and shall subsequently incorporate the substituted provision by a written modification of this contract. All remaining terms and provision shall remain in full force and effect as though the stricken provisions had never appeared in this contract. Each provision of this contract shall be valid and enforced to the fullest extent permitted by law. Neither party shall be required to indemnify the other for any damages or losses resulting from a determination that a contract provision is unlawful. 30. Venq . Any civil action arising from this contract shall be brought in the Superior Court, Third Judicial District, for the State of Alaska in Kodiak. The law of the State of Alaska shall govern the rights and duties of the parties under this contract. 31. Amendment. The parties may amend this contract only by written agreetrat, which shall be attached as an appendix hereto. , . • ATTEST "N, • By: B roug rk WITNESST3), OWNER Kodiak Island Borough By: CONTRACTOR Aleutian By: c. EXHIBIT A • Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 MATERIAL SALES CONTRACT This contract is between the Kodiak Island Borough, hereinafter Owner, and Aleutian Materials, Inc., hereinafter Contractor. In consideration of the mutual covenants herein, the parties agree as follows: 1. In accordance with Title 18, Real Property, of the Kodiak Island Borough Code and based on the condition of KIB Resolution No. 89 -32 -R, the Owner hereby grants to the Contractor the right to enter upon Tract BB =1, Bells Flats Alaska Subdivision, hereinafter premises, which contains a total of approximately 19.95 acres, for the purpose of extracting, remanufacturing, and removing gravel resources. 2. Gravel Extraction. For the purposes of this contract, gravel extraction means the removal and transporting of gravel, and operation of all equipment and machinery required for the associated with extraction. 3. Gravel Remanufacturing. For the purposes of this contract, gravel remanufacturing means crushing, screening, washing and the use of gravel in manufacturing processes to create road asphalt and concrete, and operation of all equipment and machinery required for and associated with remanufacturing. Contractor may not maintain on the premises any equipment or other material not related to gravel extraction or remanufacturing. 4. Term. The term of this contract is thirteen (13) years, beginning on July 1, 1989, and ending on June 30. 2002, or until the gravel resource is extracted, whichever occurs first. The Contractor may, if in full compliance with the provisions of the development plan and the performance standards herein, request early termination of this contract by the Owner for the following reasons: A. Exhaustion of the gravel resource; or 5. Option to Renew. This contract may be renewed for one -five (5) year period. Said option to renew can be requested by written notice to the Owner not less than sixty (60) days prior to the expiration date specified in Section 4 above. 6. Annual Use Fee, An annual use fee will be paid to the Owner by the Contractor on each anniversary date occurring during the term of the contract. The annual use fee for the tract of land described in Section 1 above is $ 5.000.00 and resulted from competitive public bidding on June 24 , 1982. No refund will be made to the Contractor for any portion of a year remaining if this contract is terminated or cancelled. 7. Royalty Rate, The Owner hereby establishes a royalty rate of $0.85 per cubic yard for materials excavated. In accordance with Section 18.60.060 of Borough Code, the Owner will review and establish on an annual basis, the minimum unit price for materials to be sold. The Contractor will reimburse the Owner for excavated materials upon receipt of a billing from the Owner, which shall be not less than annually during the term of the contract. Each new annual rate shall apply to the materials excavated during each twelve -month period established by Section 6. 8. .Volume Determination. In accordance with Section 18.60.040 of the Borough Code, the Contractor shall bear the cost of volume determinations for excavated materials. The Owner may make additional volume determinations for excavated materials. The Owner may make additional volume measurements to verify the accuracy of the information provided by the Contractor. The Contractor's measurements will be submitted to the Owner on an annual basis and not less than thirty (30) days prior to the anniversary date of this contract. All measurements shall be in units of cubic yards. 9. Development Plan. The Contractor shall accomplish gravel extraction in accordance with all provisions of this contract and the development plan approved for Tracts B -1, B -2, B -3, and B -4A, by the Owner, on March 4, 1982, a copy of which is attached as Exhibit A. more than one hundred (100) feet shall be adjacent to the area to be excavated, b. Overburden. Overburden shall be stripped, stockpiled, placed, and levelled in the cleared portion of the designated buffer area to create a berm for the reduction of visual and noise impacts on nearby properties. Upon completion of excavation, the berm will be removed and spread evenly over cleared portions of the buffer area, c. Side Slopes. Two to one (2:1) side slopes or flatter, to water's edge, shall be accomplished prior to contract termination and shall begin at the excavation side of the designated buffer area. d. nj.nimum Extraction Depth. Gravel extraction shall be accomplished to a minimum depth of twenty-five (25) feet below grade. e. Brush Removal. All brush shall be removed from not less than two-thirds (2/3) of the property described in Section 1 above before any gravel is extracted. Brush shall be •burned or removed from the premises and may not be placed in the excavated area or buffer area on the premises. f. Trees. No trees, stumps, or parts of trees shall be placed in the excavated area or buffer area on the premises. g. Access. Ingress and egress shall be limited to one point on Middle Bay Drive. 11. Hours of Operation. Hours of operation shall be limited to 6:00 a.m. to 10:00 p.m. daily. 12. Haul Road. For the purposes of this contract, the designated haul roads area are as follows: a. From Tracts B-1, B-2, B-3, and B-4A to Chiniak Road via Middle Bay Drive to Bells Flats Road, Bells Flats Road to Sargent Creek Road; and Sargent Creek Road to Chiniak Road. b. From Chiniak Road to Tract B-1, B-2, B-3, and B-4A via Sargent Creek Road to Middle Bay Drive and Middle Bay Drive to Tracts B-1, B-2, B-3, and B-4A. 14. Performance Bond. A performance bond in the amount of ten thousand dollars ($10,000.00), payable to the Owner, shall be obtained by the Contractor and renewed annually prior to the anniversary date of this contract. Failure to maintain said performance bond shall constitute default. 15. License. Contractor shall possess a valid State of Alaska contractor's license. Failure to possess said license shall constitute default. 16. Insurance Required. Throughout the term, at Contractor's sole cost and expense, Contractor shall keep or cause to be kept in force for the mutual benefit of Owner and Contractor, comprehensive broad from general public liability insurance against claims and liability for personal injury, death or property damage arising from the use occupancy, disuse, or condition of the premises, improvements, or adjoining areas or ways, providing protection of at least $500,000.00 for bodily injury or death of any one person, at least $1,000,000.00 for any one accident or occurrence, and at least $500,000,00 for property damage. All insurance required by this contract shall be carried only by responsible insurance companies licensed to do business in the State of Alaska. All such policies shall be nonassessable and shall contain language to the effect that (1) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance; (2) the insurer waives the right of subrogation against the Owner; (3) the policies are primary and noncontributing with any insurance that may be carried by Owner; and (4) they cannot be cancelled or materially changed except after thirty (30) days notice by the insurer to Owner. Contractor shall furnish Owner with copies of all such policies promptly on receipt, or with certificates evidencing the insurance. Before commencement of the contract, Contractor shall furnish Owner with binders representing all insurance required by this contract. If Contractor fails or refuses to procure or to maintain insurance as due from Contractor with interest at eight percent (8%) per year to be paid on the first day of the month following the date on which the premiums, stating the amounts paid and the names of-the insurers, and interest shall ruri from the date of the notice. 17. Assignability. This contract cannot be assigned without the Owner's approval. 18. Review. Contract performance will be reviewed at least annually or as necessary by the Owner. 19. Improvements. At any time and from time to time during the term, Contractor may, but, except as provided in the development plan, is not obliged to construct or otherwise make new improvements on any part or all of the premises, to demolish, remove, replace, alter, relocate, reconstruct or add to any existing improvements in whole or part, and to modify or change the contour or grade, or both, of the land, provided Contractor is not then in default under any term orcondition of this contract. 20, Removal of IMprovements: Within ninety (90) days after expiration of this contract, Contractor shall at his expense, remove all improvements, including fixtures. Any such improvements not so removed shall become the property of the Owner and may be sold at auction, leased as part of the premises, or otherwise disposed of, in any event without liability on the partof the Owner. The Notice requirements of Section 28 herein apply to the Owner. 21. Indemnity. Contractor shall defend and indemnify Owner against any claims, liabilities, or losses of any type arising out of performance pursuant to this contract together with reasonable attorney's fees and all costs and expenses incurred by Owner in negotiating, settling, defending and otherwise protecting against such claims. In accordance with Section 28 herein, Owner shall promptly notify the Contractor of any loss or claim, and shall tender defense of such claim to Contractor prior to negotiating, settling, or defending such claim. and bodies having or claiming jurisdiction and their respective departments and officials; and with the requirements of all insurance companies insuring all or part of the premises. 23. Owner Access. Owner shall have free access to the premises at all reasonable times for the purpose of inspecting the conditions thereof in order to exercise any right or power reserved to Owner under the terms and provision of this contract. 24. pefault. Each of the following events shall be a default by Contractor and a breach of this contract; a. Failure to make any payment as provided in Sections 6 and 7 or this contract, or of any other sum required by this contract to be paid by the Contractor, or failure to perform as required or conditioned by any other covenant or condition of this contract. b. The subjection of any right or interest of Contractor to attachment, execution, or to seizure under legal process. c. The appointment of a receiver to take possession of the improvements or of Contractor's operation on the premises for any reason, including, but not limited to, assignment for benefit of creditors or voluntary bankruptcy proceedings. d. An assignment by Contractor for the benefit of creditors or the filing of a voluntary or involuntary petition by or against Contractor under any law for the purpose of adjudicating Contractor a bankrupt; or for extending time for payment, adjustment or satisfaction of Contractor's liabilities; or. for reorganization, dissolution , or of, or to prevent bankruptcy or insolvency. e. The failure .of the Contractor to occupy the land or to perform according to the terms of this contract within twelve months of the execution of this contract, or failure within any two (2) year period to extract, process, and remove a substantial quantity of gravel from the premises. If the alleged default is non-payment of annual use fee, royalty rataor arrangement on account 25. Owner's Remedies on Default. If any alleged default by Contractor remains uncured after notice and the period for cure allowed under this contract, Owner has the following remedies in addition to all other rights and remedies provided by law or equity, to which Owner may resort cuniulatively or in the alternative: a. Owner may at Owner's election terminate this contract by giving notice of termination. On the giving of the notice, all Contractor's rights in the premises and in all improvements shall terminate. Promptly after notice of termination, Contractor shall surrender and vacate the premises and all other improvements in good condition, and Owner may re-enter and take possession of the premises and all remaining improvements and eject all parties in possession, or eject some and not others or eject none. b. If this agreement is referred by Owner to an attorney upon any default by Contractor, Contractor shall pay Owner the latter's reasonable attorney fees, regardless of whether or not nay suit or action is commenced. 26. Non-Waiver. No failure on the part of the Owner to enforce any covenant or provision herein contained, nor any waiver of any right hereunder by the Owner shall discharge or invalidate such covenants or affect the right of the Owner to enforce same in the event of any subsequent breach or default. 27. Construction, The obligations of the undersigned parties are joint and several, and wherever the context hereof so admits or requires, the singular shall include the plural. The covenants, terms and conditions of this agreement shall extend to and be binding upon and insure to the benefit of the heirs, executors, administrators, and assigns of the parties hereto. 28. Notice. Any notice provided for hereunder shall be given in writing and transmitted by personal delivery or prepaid first class mail addressed as follows: Owner Borough Mayor Contractor Mr, Richard C. Egge, President 29. Violation of Law. Any provision of this contract in violation of any law or Ordinance shall not invalidate this contract, and any unlawful provision shall be deemed separate and apart from all other provisions herein and stricken from this contract. The parties shall attempt to prepare a mutually acceptable substitute provision for any provision stricken from this contract due to illegality, and shall subsequently incorporate the substituted provision by a written modification of this contract. All remaining terms and provision shall remain in full force and effect as though the stricken provisions had never appeared in this contract. Each provision of this contract shall be valid and enforced to the fullest extent permitted by law. Neither party shall be required to indemnify the other for any damages or losses resulting from a determination that a contract provision is unlawful. 30. Venue. Any civil action arising from this contract shall be brought in the Superior Court, Third Judicial District, for the State of Alaska in Kodiak. The law of the State of Alaska shall govern the rights and duties of the parties under this contract. 31. Amendment. The parties may amend this contract only by written agreement, which shall be attached as an appendix hereto. WITH ''u., : [/ ) OWNER 'Kodiak Island Borough By; CONTRACTOR Aleutian Mate By: VI* q.$ A.145;lit dr, 40 Ma. •ke +0.11F z 1Z e-g Tit. or tic ie. 4c 7-41v • *" *4c- 4 44 11 4-* Le- xo-fiea. r z4.10 9 P- S \ • • • IM • • 10,651 461C 1 / (wc, R. Alaska Department of Natural Resources Land Administration System Alaska Mapper Land Records/Statu',-as Recorders Search State Cabins Nat.— J Resources Lam jfind Page 1 of 2 Alaska DNR Case Abstract File Type: JADL J File Number: [ 215259 Printable Case File Abstract See Township, Range,'Section and Acreage? (;) Yes C, No NewScarch LAS Menu 1 Case Summary 1 Case Detail Land Abstract 1 Water Rights Information File: ADL 215259 Search for Status Plat Updates Customer: 000126349 KODIAK ISLAND BOR 710 MILL BAY ROAD KODIAK AK 99615 Case Type: 801 WATER RIGHTS File Location: LWMANC LWM ANCHORAGE AREA Case Status: 35 ISS/APPRV/ACTV AUTH Total Acres: 0.000 DNR Unit: 800 WATER Status Date: 12/14/1982 Date Initiated: 07/09/1982 As of 04/10/2007 Office of Primary Responsibility: WANC WATER MGT-ANCHORAGE Last Transaction Date: 04/14/2003 Case Subtype: SUR SURFACE Last Transaction: SUMCHG SUMMARY RECORD DATA CHANGED/CORRECTED Meridian: S Township: 029S Range: 018W Section: 31 Section Acres: 0 Search Plats Case Actions 07-09-1982 APPLICATION ACCEPTED STATUS 10 10 APP ACCPTD DATA ENTERED BY MLTRUELOVE 12-14-1982 CERTIFICATE ISSUED STATUS 12 12 CERT ISSD CERTIF SIGNED BY L.A. DUTTON 12-15-1982 REQUEST DTS PLAT UPDATE ACTION ADD ADD POINT 01-31-1983 CORRECT CUSTOMER ID OLD CID 155891 NEW CID 126349 02-07-1983 PLOTTED BY DTS REQUEST DATE 12-15-1982 REQUEST ACTION ADD ADD POINT PLOT RESULT ERR ERROR FOUND PLOTTED BY N/A TYPE IS GIVEN AS OTHER, BUT WE NEED TO KNOW WHETHER IT IS A DAM, STREAM SYMBOL, OR WELL SYMBOL. 03-07-1983 REQUEST DTS PLAT UPDATE ACTION ADD ADD POINT 04-28-1983 PLOTTED BY DTS http://vvww.dnr.state.ak.us/las/Case_Abstract.cfm?FileType=ADL&FileNumber=215259&... 4/10/2007 Alaska Department of Natural Resources Land Administration System 1 t REQUEST DATL --- 3 -07 -1983 REQUEST ACTION ADD ADD POINT PLOT RESULT COM. COMPLETED PLOTTED BY DWP CHAINS NORTH PLOTTED 2 CHAINS WEST PLOTTED 73 08 -02 -1986 CASEFILE CUSTOMER DOCUMENTED CUSTOMER NUMBER 000126349 KODIAK ISLAND,BOR, UNIT CODE 800 WATER MANAGEMENT RELATIONSHIP CODE 10 OWNER THIS TRANSACTION WAS GENERATED BY THE CONVERSION TO THE NEW CUSTOMER SYSTEM TO DOCUMENT THE UNIT AND RELATIONSHIP CODES 12 -30 -2002 STATUS CODE STANDARDIZED STATUS CODE 35 ISS /APPRV /ACTV AUTH * * * ** STATUS CODE STANDARDIZATION * * * ** STATUS CODE CHANGED BY BATCH UPDATE 04 -14 -2003 SUMMARY RECORD DATA CHANGED /CORRECTED OFF PRIM RESPONS WANC WATER MGT - ANCHORAGE CHANGED THE OFFICE OF PRIMARY RESPONSIBILITY TO NEW CODES Legal Description SEI /4 SW1 /4 SECTION31, TOWNSHIP 29 SOUTH, RANGE 18 WEST, SEWARD MERIDIAN. End of Case Abstract Page 2 of 2 Last updated on 04/10/2007. Not sure who to contact? Have a question about DNR? Visit the Public Information Center. Report technical problems with this page to the Webmaster. Site optimized for Netscape 7, IE 6 or above. This site also requires that all COOKIES must be accepted. State of Alaska Natural Resources LAS Home Copyright Privacy System Status http: / /www.dnr.state.ak.us /las /Case Abstract.cfm ?FileType= ADL &FileNumber= 215259 &... 4/10/2007 Kvi)IAK ISLAND BOROU III COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI -A PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, April 18, 2007. The meeting will begin at 7:30 p.m. in the Borough ,Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: APPLICANT: AGENT: REQUEST: LOCATION: ZONING: 07 -021 Brechan Enterprises, Inc. Mike Martin A Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Bells Flats Alaska Subdivision, Tracts B1 — B4. 12247, 125361, 12583 Middle Bay Drive, and 12027 Bells Flats Road. I- Industrial This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below, or in a letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486-3231. The toll free telephone number is 1- 800 - 478 -5736. One week prior to the regular meeting, on Wednesday, April 11, 2007 a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. Your Name: Mailing Address: Your property description: Comments: Current Location Request a Title 18 Land Dispos- ' according to KIBC 18.20, 18.40, Agenda Item #VI A and 18.60, to consider a requty ,,t to lease borough land for fair P & Z Case # 07 -021 market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the Brechan Enterprises, Inc. land, per KIBC 16.40 and a request for material sale per KIBC 18.60.) a 600 1,200 Feet 1 f 1 i 1 Map prepared for the purpose of showing the General location of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets. Alaska D.O.T. Sept. 2002 Contour informatlon:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up -to -date. Kodiak Island Borough Community Development Department. S I "EPHEN DRYDEN P O BOX 3425 KODIAK, AK 99615 AARON REED 11948 MIDDLE BAY DR KODIAK, AK 99615 DOROTHY HOLM P.O. BOX 365 KODIAK, AK 99615 LISA A MCCORMICK 11902 BELLS FLATS RD KODIAK, AK 99615 KODIAK ISLAND BOROUGH 710 MILL BAY RD KODIAK, AK 99615 JOSEPH D'ELIA ETAL 12110 BELLS FLATS RD KODIAK, AK 99615 MARIA CLEMONS 12721 MIDDLE BAY DRIVE KODIAK, AK 99615 DAVID & EVALYN SALZER 12767 MIDDLE BAY DR KODIAK, AK 99615 State of Alaska Dept. of Environmental Conservation 555 Cordova St. Anchorage AK 99615 WILLIAM & ANDREA KRAHN 11829 MIDDLE BAY DR KODIAK, AK 99615 GLENN & VIRGINIA BETH DICK PO BOX 2182 KODIAK, AK 99615 BILLY & ANNETTE ECRET 11850 BELLS FLATS RD KODIAK, AK 99615 MICHAEL KIDDER 11989 MIDDLE BAY DR KODIAK, AK 99615 GARY & DEBORAH H CARVER P.O. BOX 52 KODIAK, AK 99615 UNITED STATES COAST GUARD P.O. BOX 5 KODIAK, AK 99619 DUANE & KATHRYN FREEMAN 12792 MIDDLE BAY DR. KODIAK, AK 99615 JASON TANDLER ETAL PO BOX 4471 KODIAK, AK 99615 Serena Sweet Army Corp of Engineers PO Box 6898 Elmendorf AFB, 995 06 -6898 SULUA HOLM P O BOX 8243 KODIAK, AK 99615 TIMOTHY & TAMARA HOCUM PO BOX 2455 KODIAK, AK 99615 DAVID ROE 11931 MIDDLE BAY DR KODIAK, AK 99615 DAVID ROE 11931 MIDDLE BAY DR KODIAK, AK 99615 STEVEN & CYNTHIA SALUS 12061 MIDDLE BAY DR KODIAK, AK 99615 EVELYN AMYES 6345 W. DIMOND BLVD ANCHORAGE, AK 99502 JAMIE GODWIN P O BOX 1532 KODIAK, AK 99615 CHRISTOPHER COONEY 12825 MIDDLE BAY DR KODIAK, AK 99615 Bruce 'Talbot ADNR Div. of Mining, Land, & Water 550 W. 7th Ave., Suite 1050 Anchorage, AK 99501 -3579 Mike Martin Brechan Enterprises, Inc. 2705 Mill Bay Road Kodiak, AK 99615 Kodiak Island Borough Community Development Department 710 Mill Bay Road Room 205 Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us March 19, 2007 Re: Case 07-021. Request a Title 18 Land Disposal, according to KIBC 18.20, 1840, and 18.60, to consider a request to lease borough land for fair market value for the purposes of resource extraction processing and stockpiling. (This request involves both a request to lease the land, per KIBC 16.40, and a request for material sale per KIBC 18.60.) Dear Mr. Martin: Please be advised that the Kodiak Island Borough Planning and Zoning Commission has scheduled the case referenced above for Public Hearing at their April 18, 2007 regular meeting. This meeting will begin at 7:30 p.m. in the Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. Attendance at this meeting is not mandatory but recommended. One week prior to the regular meeting, on Wednesday, April 11, 2007 at 7:30 p.m. in the Borough Conference Room (#121), the Commission will hold a packet review work session for the purpose of reviewing packet materials and staff summaries of cases scheduled for the regular meeting. The public is welcome to attend the packet review work session; however, the work session is not for the purpose of receiving public testimony. Applicants who wish to present testimony and/or evidence related to their case should appear at the Public Hearing during the Regular Meeting and present such information in person. Please contact the Community Development Department at 486-9363 if we can answer any outstanding questions or provide additional information. In advance, thank you for your cooperation. Sincerely, Sheila Smith, Secretary: Community Development Department � B^ ECHAN ENTERPRISES, INC BRECHAN ENTERPRISES, UNC/ GENERAL CONTRACTORS 2705 MILL BAY ROAD • KODIAK, ALASKA 99615 Kodiak Island Borough Communty Development Department Attn: Duane Dvorak, Acting Director 710 Mill Bay Road Kodiak, AK 99615 March 1, 2007 RE: Gravel Contract on tracts B-1 thru B-4A, Bells Flats On behalf of Brechan Enterprises, Inc. we would like to take this opportunity to set forth our suggestions for the extraction of material from the Bells Flat Pit. We would also like to thank you for taking the time to meet with us Monday February 26, 2007 to discuss possible issues with the upcoming lease renewal. As per our discussion with your staff, there seems to no longer be a need for two entities to occupy the tracts located at Bells Flats, therefore Brechan Enterprises, Inc. will be the sole applicant for the upcoming lease renewal. We feel that that this will simplify the process, and have been granted the authority by Aleutian Materials, Inc. to be the sole applicant. After reviewing the Women's Bay Comprehensive Plan Update - December 2006, we have found several items that we would like to address: 1. Hours of Operation - As in then past we will continue to work on 7am to 7pm Monday thru Saturday with no work to be done on Sundays. 2. Excessive Noise - Brechan Enterprises is making every attempt to reduce the amount of noise in the area. We will be utilizing updated equipment and mechanical engineering to minimize the amount of noise in the area. Le. backup alarms on the loaders, we are inquiring as to ways to refract noise Ieve/s. 3. Buffer Zones - Brechan Enterprise will fully comply with the existing buffer zones set forth in exhibit A. As well as addressing these issues that appear in the Comprehensive PIan we are taking it a step further by relocating the crushing operation to the far side of Tract 1 ,this will further reduce the noise encountered by the residence. We have aiso increased our efficiency at this Iocation cutting our production time by more than half, requiring Iess time for same amount of product. Thank you for your attention to this matter, and if there is any further assistance that we may provide, please, feel free to contact our office. Thank you, —n8asnomn.Controller Brechan Enterprises, Inc. Cc: Rick L. Gifford, Borough Manager Bud Cassidy, Engineering and Facilities P 907.486.3215 • FAX: 907.486.488 ALASKA BUSINESS ADO 185B • ALASKA CONTRACTORS #AA44l We Are An Equ Opportunity Employer ‘0 GRECHAN ENTERPRISES, INC / GENERAL CONTRACTORS 2705 MILL BAY ROAD • KODIAK, ALASKA 99615 Kodiak Island Borough Community Development Department Attn: Duane Ovonok, Acting Director 710 Mill Bay Road Kodiak, AK 99615 March 1, 2007 RE: Gravel Contract on tracts B-1 thru B-4A, Bells Flats On behalf of Brechan Enterprises, |nc.vvewou|d|ihetotakathhaoppodunUvtoaetfodhour suggestions for the extraction of material from the Bells Flat Pit. We would also like to thank you for taking the time to meet with us Monday, February 26, 2007 to discuss possible issues with the upcoming lease renewal. As per our discussion with your staff, there seems to no longer be a need for two entities to occupy the tracts located at Bells Flats, therefore Brechan Enterprises, Inc. will be the sole applicant for the upcoming lease renewal. We feel that that this will simplify the process, and have been granted the authority by Aleutian Materials, Inc. to be the sole applicant. After reviewing the Women's Bay Comprehensive Plan Update - December 2006, we have found several items that we would like to address: 1. Hours of Operation - As in then past we will continue to work on 7am to 7pm Monday thru Saturday with no work to be done on Sundays. 2. Excessive Noise - Brechan Enterprises is making every attempt to reduce the amount of noise in the area. We will be utiflzing updated equipment and mechanical en ineeringtnmin|m|zethearnountofnn|oaintheoroa.i.e.bonkuo alarms on the loaders, we are in as to ways to refract noise Ievels. 3. Buffer Zones - Brechan Enterprise will fully comply with the existing buffer zones set forth in exhibit A. As well as addressing these issues that appear in the Comprehensive Plan we are taking it a step further by relocating the crushing operation to the far side of Tract 1 ,this will further reduce the noise encountered by the residence. We have also increased our efficiency at this location cutting our production time by more than half,.requiring less time for same amount of product. Thank you for your attention to this matter, and if there is any further assistance that we may ppovide, please, feel free to contact our office. Thank you, Sessoms, Controller Brechan Enterprises, Inc. Cc: Rick L. Gifford, Borough Manager Bud Cassidy, Engineering and Facilities 90 486.321G° FAX: 907.486.488 ALASKA BUSINESS #O0l858°ALASKA CoNTRACroee#AA44l We Are An Equal Opportunity Employer gone MIDDLE BuFFFR 2O) /. BAY REA DRIVE 8�' T F •SQ.o GRAVOZ X /44C Tio y 'A'D ReAf l CruRfN6- �RF 1 r /. 7J 8i/get ARER BRECHAN ENTERPRISES, INC itva GENERAL CONTRACTORS BRECHAN ENTERPRISES, INC / GENERAL CONTRACTORS 2705 MILL BAY ROAD • KODIAK, ALASKA 99615 Kodiak Island Borough Finance Department 710 Mill Bay Road Kodiak, AK 99615 February 22, 2007 RE: Gravel Contract on tracts B -3 & B -4A, Bells Flats In response to your February, 9 2007 letter, I would like to address item 3 "Default" on section 24(e). I have found that we have in the past misreported all gravel extractions under Aleutian Materials, Inc., rather than splitting the extractions equally between AMI and Brechan Enterprises, Inc. Now that we have recognized the error we have made the necessary corrections to our recording system so that this will not happen in the future. All previous royalty payments for gravel extractions reported by AMI, need to be divided equally between AMI and Brechan Enterprises for the years in question. Thank you for bringing this matter to our attention, and we look forward to working with you in the future. Thank you, Jolfn Sessoms, Controller Brechan Enterprises, Inc. PHONE: 907.486.3215 • FAX: 907.486.4889 ALASKA BUSINESS #001858 • ALASKA CONTRACTORS #AA441 We Are An Equal Opportunity Employer Brechan Enterprises Inc PO Box 1275 Kodiak AK 99615 Kodiak Island Borough Finance Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9323 Fax (907) 486-9392 Re: Gravel contract on tracts B-3 & B-4A, Bells Flats February 9, 2007 Your business is currently in default of the terms of your lease. Any one of the first three items listed below is grounds for Kodiak Island Borough to exercise section 25 "Owner's Remedies on Default". 1. Non-reporting of your cubic yards extracted from July 1, 2005 to June 30, 2006. 2. Your annual volume determination report was due September 10th per section 8 of your lease. 3. Section 24 (e) "Default". . . or failure within any two (2) year period to extract, process, and remove a substantial quantity of gravel from the premises. Your last royalty payment for gravel yards extracted was billed for July 1997 to June 1998. 4. No severance tax return has been received for the fourth quarter 2006 or from October to December 2006. Item 1 above must be received within ten days or by Friday, February 23, 2007 or your contract may be terminated. You will have an additional ten days to pay from the date of billing of the royalty due on the yards extracted to satisfy your lease agreement. Items 2 & 3 must be received within thirty days or by March 9, 2007. If your volume report isn't received by the borough we may hire a third party to complete this report and you may be responsible for the cost. Please explain in writing how you plan to resolve section 3 to allow management, the assembly, and our gravel task force to approve this decision. Sincerely, Cassandra Juenger Accountant, Kodiak Island Borough cc: Karleton Short, Finance Director Rick Gifford, Borough Manager Borough Attorney Aleutian Materials Inc. PO Box 3707 Kodiak AK 99615 Kodiak Island Borough Finance Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9323 Fax (907) 486-9392 Re: Gravel contract on tracts B-1 & B-2, Bells Flats February 9, 2007 Your business is currently in default of the terms of your lease. Any one of the first two items listed, below is grounds for Kodiak Island Borough to exercise section 25 "Owner's Remedies on Default". 1. Non-reporting of your cubic yards extracted from July 1, 2005 to June 30, 2006. 2. Your annual volume determination report was due September 10th per section 8 of your lease. 3. No severance tax returns have been received for any of the four quarters of 2006. Items 1 & 2 above must be received within ten days or by Friday, February 23, 2007 or your contract may be terminated. Item 2 must be received within thirty days or by March 9, 2007. If your volume report isn't received by the borough we may hire a third party to complete this report and you may be responsible for the cost. This will serve to remind you that your property tax on this lease cannot be deducted from the royalty payment due to late payment of the user fee. Sincerely, Cassandra Juenger Accountant, Kodiak Island Borough cc: Karleton Short, Finance Director Rick Gifford, Borough Manager Borough Attorney Project: PIT 2 ROCK SOURCE BELLS FLATS Sheet Contents: EXISTING GROUND TOPOGRAPHY 7/2006 , - r mom MM. - 029104 MOTO TOPOGRAPHY OW. PAPY WPM M 110 111 APt MUD MP NY PORKY: - OVIDrt Or 00 014MG 00 MALY TOPCGMMT. ■T 19 HOT rTMEO 70 CCRGY ALT. 00UMMI EASUIM. TOM Or M. M. - IIIPOGRAPPY WRYLY MAL TOR OWNITtly MLIN710019 PPM 10-25X /MM. 119 MUM° PY *0200* YNT. '0 r. IAND. 51.JP71VniNG PA. WPC 2022 PPM HAM MPS (907) 480-0433 MTN Dote Sig.* 'VA