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AC Contract No. 1993-09DRIVEWAY ACCESS PERMIT KIBC CHAPTER 15.26 Kodiak Island Borough, a municipal corporation, organized and existing under the laws of the State of Alaska, 710 Mill Bay Road, Kodiak, Alaska 99615, hereinafter referred to as KIB, in consideration of $50.00 and the agreements contained in this instrument, grants to John Tvhuis of P.O. Bog 2392 , Kodiak, Alaska 99615, hereinafter referred to as Grantee, the right, except as limited by this instrument, to the non-exclusive use, for the purpose of a driveway, but not for other purposes, a portion of the right-of-way, described as follows: Undeveloped portion of Bayview Road, Pasagshak River Subdivision according to Plat 174-22; and an Undeveloped portion of Bayside Road, Pasagshak River Subdivision, Second Addition according to Plat 175-17. Both plats are filed in the Kodiak Recording District, Third Judicial District, State of Alaska. This grant is made on the following terms: 1. Construction and Maintenance. The driveway shall be constructed and maintained in a good and workman -like manner and shall be made and kept as safe for travel as possible. The expense of construction and maintenance of the driveway shall be borne by Grantee; KIB shall not be liable for any of the expenses of such construction and maintenance. The driveway shall be constructed and maintained in accordance with the provisions of the Uniform Building Code as adopted by Kodiak Island Borough Code (KIBC) Chap. 15.04, the Uniform Fire Code as adopted in KIBC Chap. 15.24, the provisions on driveway access set forth in KIBC Chap. 15.26, and current industry standards for the construction, maintenance and use of a driveway including proper drainage. The driveway shall be designed and constructed in a manner which is consistent with any prior public design which applies to this right-of-way, and any contiguous or adjacent streets, roads or alleys. Grantee shall replace all survey markers displaced during the course of construction. Grantee shall coordinate his construction with local utility companies to avoid damage to utility lines or interruption of service. Grantee agrees to share in the cost of future construction and maintenance, as necessary, as the use of the roadway increases. 2. Removable Resource Materials. All removable resource materials upon the right-of-way including trees, stumps, rock, gravel and topsoil, and the like are the property of KIB. Grantee is not entitled to sell, transfer, or make any other commercial use of said removable resource materials without the DRIVEWAY ACCESS PERMIT - Page 1 express written permission of KIB. KIB may require the storage of removable resource materials upon the right-of-way, by Grantee_ and in the alternative_ may requi the delivery_ of removable resource materials to any site or disposal area with road access within 0 miles of the right-of-way. KIB may require construction of the right-of-way to be planned or interrupted in order to provide for orderly disposition of removable resource materials. 3. Site Plan. Grantee shall submit to the Resource Development Department a detailed site plan for approval prior to construction. The plan may include a detailed as -built survey and design and construction plans sufficient enough to the satisfy the Resource Manager and demonstrate compliance with the standards set forth in paragraph 1 above. The plan shall include a written report concerning the time schedule and funding for construction and maintenance. The report shall also identify utility lines within the right-of-way and discuss the coordination necessary to avoid the interruption of utility service. Where necessary, the site plan and survey are subject to approval by the Fire Chief for the area which includes the driveway. 4. Compliance With Laws. Grantee shall design, construct and maintain the driveway in strict compliance with all applicable laws, ordinances, regulations and other requirements of any federal, state, county, municipal, or other government and will obtain all necessary permits, licenses, or other consents for the operation of the driveway. In particular, Grantee shall comply with State of Alaska, Department of Transportation access requirements and the wetlands regulations of the Department of the Army, Corps of Engineers. 5. Gate. Grantee, may, at his election, construct a gate across the driveway, which must be kept unlocked. The gate must be removed at the request of the Kodiak Island Borough, or any neighboring landowner with access to the same platted right-of- way. 6. Waiver of Access Claims. Grantee acknowledges that the driveway may be the site of future public construction of a public street or roadway, or for any public purpose. Grantee agrees to cooperate with any such public construction which has been approved by KIB. Grantee expressly waives any future claim related to loss or impairment of access to the roadway, including all claims alleging inverse condemnation or taking of private property without compensation, and all claims relating to interference of constitutional or common law property rights. 7. Waiver of Liability. Grantee expressly waives all claims against the KIB relating to the right-of-way including any DRIVEWAY ACCESS PERMIT - Page 2 interference of constitutional or common law property rights. 7. Waiver of Liability. Grantee expressly waives all claims against the KIB relating to the right-of-way including any claim based upon the title or use of the premises, any claim relating to the condition of the property, and any claim relating to the construction, maintenance and use of the driveway. 8. Indemnity. Grantee shall forever protect, save and keep KIB, its agents, officers and employees, harmless and indemnify them against and from any and all claims, demands, losses, costs, damages, suits, judgments, penalties, expenses, and liabilities of any kind or nature whatsoever arising out of this agreement, including all claims relating to the Grantee's construction, design or maintenance of the road or driveway and all claims relating to damage or interruption of utility service. 9. Blasting. Grantee shall not conduct any blasting operations in connection with the construction or maintenance of the driveway except with the prior written approval of the Resource Management Officer. The personnel who conduct any such blasting operation shall be properly insured and certified to the satisfaction of KIB. 10. No Warranties. The parties hereto agree and acknowledge that no promises, representations or agreements have been made with respect to the use and condition of the premises conveyed except those contained in the body of this agreement. The representations, comments and promises contained herein are for the sole benefit of KIB and Grantee and their successors and assigns, and not for the benefit of any third party. No other person or entity shall have any right of action hereon. 11. Termination. Either party shall have the right to terminate this agreement without cause, provided notice is given at least ninety (90) days prior to termination to the other party. The obligations for indemnity and waiver of liability and access claims, imposed upon Grantee by this agreement shall survive termination and shall remain fully effective thereafter. 12. Relationship of Parties. Nothing herein is intended nor shall ever be construed to create a joint venture, partnership or any other type of association between the parties, nor shall either party have the right to act on behalf of or bind the other for any liability, cost, expense or undertaking, except as set forth in this agreement. 13. IHeadincts. The headings contained in this agreement are for reference purpose only and will not in any way effect the DRIVEWAY ACCESS PERMIT - Page 3 meaning or interpretation of this agreement or any provision hereof. 14. Entire Agreement. This agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants or undertaking other than those expressly set forth herein. No extrinsic matter to this agreement shall have any force or effect. 15. Attorney's Fees and Costs. In any suit or action brought to enforce this agreement or to obtain an adjudication of rights hereunder, the losing party shall pay to the prevailing party a reasonable attorney's fee and all other costs and expenses which may be incurred by the prevailing party in such action. 16. Enforceability. This permit shall run with the land for the benefit of Lot // , Block / , Pasagshak Subdivision (Second Addition). The burdens and obligations of this permit shall also run with the land. 17. Applicable Law. This agreement shall be construed pursuant to the laws of the State of Alaska. DRIVEWAY ACCESS PERMIT - Page 4 instrument at Kodiak, Alaska, this day of KODIAK ISLAND BOROUGH By: Its• L GRANTEE B s Y= By: STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the day of, 19 93, before me, the undersigned, a Notary Public in and for the St4�te of Alaska, duly commissioned and sworn, personally appeared Lhl7 '%il%ia/S known to me to be the individual herein named, azid he acknowledged to me that he signed the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein contained. GIVEN UNDER MY HAND and official seal the day and year last above written. _ A N ary Public foIIfA1aska commission expires: 9-42 OFFlC1AL &S L H A. NIELSEN PUBUO-ALASKASLAND BOROUGHSxWrw Sept. 12, t MaSHF.!SL�. ,7 DRIVEWAY ACCESS PERMIT - Page 5 STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the day of , 19_, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared , known to me to be the individual herein named, and he acknowledged to me that he signed the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein contained. GIVEN UNDER MY HAND and official seal the day and year last above written. Notary Public for Alaska My commission expires: STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the /ft day of G7`r 19_f 3, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared JEROME M. SELBY, to me known to be the Mayor of the Kodiak Island Borough, a municipal corporation, and known to me to be the person who executed the within instrument on behalf of the municipal corporation herein named, and acknowledged to me that he executed the same 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 the Kodiak Island Borough Assembly. GIVEN UNDER MY HAND and official seal the day and year last above written. Return to: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Notary Public for Alaska My commission expires: 01./V '>T T OFFICIAL SEAL DONNA F. SMITH NOTPRY PUBU; — ALASKA KOOIAK ISL ANC BOROUGH My C�^m. Expire;: June 7, 1994 DRIVEWAY ACCESS PERMIT - Page 6 0125 676 DRIVEWAY ACCESS PERMIT KIBC CHAPTER 15.26 Kodiak Island Borough, a municipal corporation, organized and existing under the laws of the State of Alaska, 710 Mill Bay Road, Kodiak, Alaska 99615, hereinafter referred to as KIB, in consideration of $50.00 and the agreements contained in this instrument, grants to John Tyhuis of P.O. Boa 2392 , Kodiak, Alaska 99615, hereinafter referred to as Grantee, the right, except as limited by this instrument, to the non-exclusive use, for the purpose of a driveway, but not for other purposes, a portion of the right-of-way, described as follows: Undeveloped portion of Bayview Road, Pasagshak River Subdivision according to Plat 174-22; and an Undeveloped portion of Bayside Road, Pasagshak River Subdivision, Second Addition according to Plat 075-17. Both plats are filed in the Kodiak Recording District, Third Judicial District, State of Alaska. This grant is made on the following terms: 1. Construction and Maintenance. The driveway shall be constructed and maintained in a good and workman -like manner and shall be made and kept as safe for travel as possible. The expense of construction and maintenance of the driveway shall be borne by Grantee; KIB shall not be liable for any of the expenses of such construction and maintenance. The driveway shall be constructed and maintained in accordance with the provisions of the Uniform Building Code as adopted by Kodiak Island Borough Code (KIBC) Chap. 15.04, the Uniform Fire Code as adopted in KIBC Chap. 15.24, the provisions on driveway access set forth in KIBC Chap. 15.26, and current industry standards for the construction, maintenance and use of a driveway including proper drainage. The driveway shall be designed and constructed in a manner which is consistent with any prior public design which applies to this right-of-way, and any contiguous or adjacent streets, roads or alleys. Grantee shall replace all survey markers displaced during the course of construction. Grantee shall coordinate his construction with local utility companies to avoid damage to utility lines or interruption of service. Grantee agrees to share in the cost of future construction and maintenance, as necessary, as the use of the roadway increases. 2. Removable Resource Materials. All removable resource materials upon the right-of-way including trees, stumps, rock, gravel and topsoil, and the like are the property of KIB. Grantee is not entitled to sell, transfer, or make any other commercial use of said removable resource materials without the DRIVEWAY ACCESS PERMIT - Page 1 U125 677 express written permission of KIB. KIB may require the stc of removable resource materials upon the right-of-way, Grantee, and in the alternative may require the deliver, removable resource materials to any site or disposal area with road access within 0 miles of the right-of-way. KIB may require construction of the right-of-way to be planned or interrupted in order to provide for orderly disposition of removable resource materials. 3. Site Plan. Grantee shall submit to the Resource Development Department a detailed site plan for approval prior to construction. The plan may include a detailed as -built survey and design and construction plans sufficient enough to the satisfy the Resource Manager and demonstrate compliance with the standards set forth in paragraph 1 above. The plan shall include a written report concerning the time schedule and funding for construction and maintenance. The report shall also identify utility lines within the right-of-way and discuss the coordination necessary to avoid the interruption of utility service. Where necessary, the site plan and survey are subject to approval by the Fire Chief for the area which includes the driveway. 4. Compliance With Laws. Grantee shall design, construct and maintain the driveway in strict compliance with all applicable laws, ordinances, regulations and other requirements of any federal, state, county, municipal, or other government and will obtain all necessary permits, licenses, or other consents for the operation of the driveway. In particular, Grantee shall comply with State of Alaska, Department of Transportation access requirements and the wetlands regulations of the Department of the Army, Corps of Engineers. 5. Gate. Grantee, may, at his election, construct a gate across the driveway, which must be kept unlocked. The gate must be removed at the request of the Kodiak Island Borough, or any neighboring landowner with access to the same platted right-of- way. 6. Waiver of Access Claims. Grantee acknowledges that the driveway may be the site of future public construction of a public street or roadway, or for any public purpose. Grantee agrees to cooperate with any such public construction which has been approved by KIB. Grantee expressly waives any future claim related to loss or impairment of access to the roadway, including all claims alleging inverse condemnation or taking of private property without compensation, and all claims relating to interference of constitutional or common law property rights. 7. Waiver of Liability. Grantee expressly waives all claims against the KIB relating to the right-of-way including any DRIVEWAY ACCESS PERMIT - Page 2 0125 67S I nterference of constitutional or common law property rights. 7. Waiver of Liability. Grantee expressly waives all claims against the KIB relating to the right-of-way including any claim based upon the title or use of the premises, any claim relating to the condition of the property, and any claim relating to the construction, maintenance and use of the driveway. 8. Indemnity. Grantee shall forever protect, save and keep KIB, its agents, officers and employees, harmless and indemnify them against and from any and all claims, demands, losses, costs, damages, suits, judgments, penalties, expenses, and liabilities of any kind or nature whatsoever arising out of this agreement, including all claims relating to the Grantee's construction, design or maintenance of the road or driveway and all claims relating to damage or interruption of utility service. 9. Blasting. Grantee shall not conduct any blasting operations in connection with the construction or maintenance of the driveway except with the prior written approval of the Resource Management Officer. The personnel who conduct any such blasting operation shall be properly insured and certified to the satisfaction of KIB. 10. No Warranties. The parties hereto agree and acknowledge that no promises, representations or agreements have been made with respect to the use and condition of the premises conveyed except those contained in the body of this agreement. The representations, comments and promises contained herein are for the sole benefit of KIB and Grantee and their successors and assigns, and not for the benefit of any third party. No other person or entity shall have any right of action hereon. 11. Termination. Either party shall have the right to terminate this agreement without cause, provided notice is given at least ninety (90) days prior to termination to the other party. The obligations for indemnity and waiver of liability and access claims, imposed upon Grantee by this agreement shall survive termination and shall remain fully effective thereafter. 12. Relationship of Parties. Nothing herein is intended nor shall ever be construed to create a joint venture, partnership or any other type of association between the parties, nor shall either party have the right to act on behalf of or bind the other for any liability, cost, expense or undertaking, except as set forth in this agreement. 13. Headings. The headings contained in this agreement are for reference purpose only and will not in any way effect the DRIVEWAY ACCESS PERMIT - Page 3 0125 67`) meaning or interpretation of this agreement or any provision hereof. 14. Entire Agreement. This agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants or undertaking other than those expressly set forth herein. No extrinsic matter to this agreement shall have any force or effect. 15. Attorney's Fees and Costs. In any suit or action brought to enforce this agreement or to obtain an adjudication of rights hereunder, the losing party shall pay to the prevailing party a reasonable attorney's fee and all other costs and expenses which may be incurred by the prevailing party in such action. 16. Enforceability. This permit shall run with the land for the benefit of Lot // , Block / , Pasagshak Subdivision (Second Addition). The burdens and obligations of this permit shall also run with the land. 17. Applicable Law. This agreement shall be construed pursuant to the laws of the State of Alaska. DRIVEWAY ACCESS PERMIT - Page 4 0125 680 IN WITNESS WHEREOF, the parti s have exec ted this instrument at Kodiak, Alaska, this day of J lgn'). KODIAK ISLAND BOROUGH � By: ,Lc� Its: GRANTEE i/ By:y By: STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on theme day of , 19 93, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared Thn 'TIha/S known to me to be the individual herein named—and he acknowledged to me that he signed the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein contained. GIVEN UNDER MY HAND and official seal the day and year last above written. N97ary Public fo aska commission expires: i OFFICIAL SEAL JUDITH A. NIELSEN NOTARY PUBUC ALASKA KODIAK IS1 AND SOROUQH My Comm Expires SVt.12,1976 DRIVEWAY ACCESS PERMIT - Page 5 11125 681 STATE OF ALASKA Iss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the day of , 19 before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared , known to me to be the individual herein named, and he acknowledged to me that he signed the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein contained. GIVEN UNDER MY HAND and official seal the day and year last above written. Notary Public for Alaska My commission expires: STATE OF ALASKA ) )ss: THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the /S� day of (i Go%Pr r 1983, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared JEROME M. SELBY, to me known to be the Mayor of the Kodiak Island Borough, a municipal corporation, and known to me to be the person who executed the within instrument on behalf of the municipal corporation herein named, and acknowledged to me that he executed the same 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 the Kodiak Island Borough Assembly. GIVEN UNDER MY HAND and official seal the day and year last above written. Return to: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Notary Public for Alaska My commission expires: 0"'CIAL SEAL DO?INA . SMITH NOTFRY pUBt.!C — ALASKA KOOIAK ISLANu BOROUGH My Expires: Jun_ 7, 1994 DRIVEWAY ACCESS PERMIT - Page 6 0125 682 94-00+7 3d FRECORDED-FL+'D DISTRICT JAN 7 4 04 PP. '94 R-, ,Hsr�- ev rA228 ADDU S