1977-17 Relating to the Acquisition and Disposition of Borough Real PropertySections:
KODIAK ISLAND BOROUGH
ORDINANCE NO.
77 -17 -0
AN ORDINANCE RELATING TO THE
ACQUISITION AND DISPOSITION OF
BOROUGH REAL PROPERTY
BE IT ORDAINED by the Assembly of the Kodiak Island
Borough, Alaska as follows:
SECTION 1. Chapters 18.44 through 18.64 of the
Kodiak Island Borough Code are hereby repealed.
SECTION 2. Title 18 of the Kodiak Island Borough
Code is hereby amended by adding a new chapter 10 to read as
follows:
CHAPTER 18.10
REAL PROPERTY ACQUISITION
18.10.010 Procedure.
18.10.020 Review.
18.10.030 Classification of Availability.
18.10.010 Procedure. Real property to be acquired
for a valuable consideration or as part of a program of grants
under which the borough may receive only a limited amount of
acreage may be acquired only purusant to a resolution of the
assembly. Such resolution may set the terms, conditions and
manner of acquisition of the property or it may authorize the
manager to set such terms, conditions and manner of acquisi-
tion. Other real property may be
the assembly may authorize or as
code. The manager is authorized
property at its fair market value
Page 1, Ordinance No. 77 -17 -0
acquired in such manner as
otherwise provided in this
to lease or purchase real
where the lease or purchase
price does not exceed $5,000 in one transaction. The manager
shall make a written report of such transaction to the assembly
on a quarterly basis.
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18.10.020 Review. Upon acquisition of any real
erty acquired by tax foreclosure
property, including real pro excluding real property acquired for a specific purpose or
project, the planning commission shall review the newly acquired
land, and make recommendations as to whether all or any portion
of the land should be devoted to public use, reserved for
future use to meet projected borough requirements or made
available for sale, lease or other disposition. The manager
shall review the planning commission action and make recom-
mendations to the assembly.
18.10.030 Classification of Availability The
assembly shall review all recommendations and may, by reso-
lution, declare any such lands to be devoted to public use,
reserved for future use or available for sale or other perma-
nent disposition, for leasing, or for any combination of sale,
other permanent disposition and leasing. The assembly may at
any time on its own motion, or upon the recommendation of the
manager, review the status of any lands held by the borough and
change the existing availability classification. Any resolu-
tion declaring lands available for sale, other permanent dispo-
sition or leasing may include such terms, conditions, and
procedures for disposition as may be required to protect the
public interest consistent with this title.
SECTION 3. Title 18 of the Kodiak Island Borough
Code is hereby amended by adding a new chapter 20 to read as
1 follows:
Sections:
CHAPTER 18.20
PERMANENT DISPOSAL OF REAL PROPERTY
18.20.010 Disposition of Real Property.
18.20.020 Convyance to Government.
18.20.030 App e
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18.20.040 Land Valued at One Thousand Dollars
or Less.
18.20.050 Land Valued at More Than One Thousand
Dollars and Less than Twenty -Five Thousand
Dollars.
18.20.060 Ordinance and Voter Ratification Required.
18.20.070 Property Acquired by Tax Foreclosure.
18.20.080 Method of Sale.
18.20.090 Terms and Conditions of Sale.
18.20.100 Form of Documents
18.20.110 Payment.
18.20.120 Development Plans.
18.20.130 Commencement and Completion of Construction.
18.20.140 Assignment.
18.20.150 Quitclaim Deed.
18.20.160 Limitation on Warranty of Title.
18.20.170 Taxes, Fees and Charges.
18.20.180 Location on the Premises.
18.20.190 Clearing.
18.20.200 Expenses of Transaction.
18.20.210 Compliance with Laws.
18.20.220 Waste or Destruction.
18.20.230 Non - Waiver.
18.20.240 Liens and Encumbrances.
18.20.250 Modifications.
18.20.260 Termination Prior to Conveyance.
18.20.270 Conveyance by Special Warranty Deed.
18.20.280 Certificate of Completion.
18.20.290 Breach of Special Warranty Deed.
18.20.010 Disposition of Real Property. Real Property
of the borough may be sold or otherwise permanently disposed
under the terms and conditions established by this chapter.
18.20.020 Conveyance to Government. Real Property
may be sold, leased, donated or exchanged with the United
States, the state, or any political subdivision thereof for
less than appraised value of said lands whenever, in the judg-
ment of the assembly, it is advantageous to the borough to do
so in the manner and upon the terms prescribed by the assembly
by resolution.
18.20.030 Appraisal. The fair market value of real
property to be considered for sale or permanent disposition,
other than to a governmental entity, shall be established by an
appraisal of the land and all improvements thereon by a quali-
fied appraiser or the assessor. The required appraisal shall
be performed within 90 days prior to the date of sale and the
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property may not be sold or otherwise permanently disposed of
for less than the fair market value so determined.
18.20.040 Land Valued at One Thousand Dollars or
Less. Sale or other permanent disposition of land acquired
from the state and valued at $1,000.00 or less, shall be in the
manner and by the terms established by resolution of the
assembly.
18.20.050. Land Valued at More Than One Thousand
Dollars and Less than Twent -Five Thousand Dollars.
A. Land considered for sale and acquired from the
state valued at more than $1,000, and land not acquired from the
state valued at less than $25,000 shall be reviewed by the
•lanning commission which shall make recommendations to the
anager concerning desirable uses of the property, including the
•rojected need, if any, for present or future recreational or
ether public use. Review and recommendation by the planning
ommissioner is not required again if previously performed within
ix months prior to submission to the assembly.
B. After review of the planning commission's
ecommendations, the manager may, if in his opinion it is in
he best interests of the borough to do so, recommend to the
ssembly that the land be sold. The recommendation shall set
• ut the proposed development of the property, if the manager
• etermines such a plan to be necessary, the value of the
• roperty as determined by the assessor or a qualified appraiser
d the recommended terms and conditions of sale.
C. After receipt of the recommendations, the
ssembly may, by resolution, find that the property is no
onger required for municipal purposes and direct the sale or
ermanent disposition of such lands in compliance with this
hapter and under such additional terms and conditions as it
squires.
age 4, Ordinance No. 77 -17 -0
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D. Notice of proposed disposition shall be
published in a newspaper of general circulation within the
borough once each week for two successive weeks not less than
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i 30 days prior to
the date of disposal and shall be posted in at
least three public places within the borough for at least 30
days prior to the disposal. Additional notice may be given by
any means determined to be reasonable by the manager or assembly.
i
The notice must contain a brief description of the land, its
i
area and general location, the proposed use, term, minimum
I offer, limitations, if any, and time and place set for the
auction or bid opening.
E. Sale shall be to the highest bidder, as
determined by auction or sealed bid to the highest responsible
bidder, in a manner provided by resolution of the assembly. If
there are no acceptable offers, the manager shall reject all
bids and at the instance of the assembly advertise the property
for sale again in the same manner after waiting at least 60
days from the date the previous bids were rejected. If the
date fixed for the sale exceeds 90 days from the last time
the
land was appraised the land shall be reappraised.
18.20.060 Ordinance and Voter Ratification Re ired.
Sale or other permanent disposition of
land not acquired from
the state and valued at $25,000 or more shall be in accordance
with the procedure set forth in section 50 of this chapter and,
in addition, shall be by ordinance ratified by a majority of
voters voting at a regular election or special election at
which the question of the ratification is submitted. The
election shall be conducted as required by AS 29.48.260.
18.20.070 Property Acquired by Tax Foreclosure.
Real property of the borough acquired by tax foreclosures may
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be disposed of in the same manner as other real property of the
borough subject to the provisions of state law.
18.20.080 Method of Sale. Sales under this chapter
shall be by contract. Upon payment of the contract price,
completion of construction of all required improvements and
compliance with all other conditions, a warranty deed shall be
issued. Upon receipt of the full purchase price prior to
completion of all improvements required by a development plan,
a special warranty deed shall be issued subject to designated
conditions.
18.20.090 Terms and Conditions of Sales. In addition
to any other applicable provisions of this code, the terms,
conditions and covenants set forth in this chapter shall be
applicable to all sales and are hereby incorporated as though
set forth in full in the sales contract or deed of conveyance.
The sales contract or deed of conveyance shall contain such
additional restrictions and reservations as the assembly deems
necessary to protect the public interest.
18.20.100 Form of Documents. The borough attorney
shall prepare or approve the form for all sales contracts and
deeds.
18.20.110 Payment.
A. Buyer shall pay the borough an amount equal
to ten percent of the total purchase price upon execution of a
sales contract as a minimum down payment on the purchase of the
property.
B. The remaining balance shall be paid to the
borough over a period not to exceed ten years from the date of
execution of the sales contract. If the principal balance is
$5,000 or less, buyer shall make annual payments of not less
than ten percent of the balance due plus accrued interest. If
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the principal balance exceeds $5,000 buyer shall make quarterly
payments of not less than 2 -1/2% of the balance due plus accrued
interest.
C. Interest shall accrue from the date of the
contract at the rate established by a savings and loan associa-
tion in Kodiak for comparable financing at or about the time of
sale.
18.20.120 Development Plans.
A. The buyer shall submit detailed plans of
i the contemplated development, conforming to the proposed use,
to the borough within 180 days from the execution of the con-
tract of sale.
B. The time
plans may be extended by the borough for an additional period,
not to exceed 180 days, upon timely application and for good
cause. "Timely application" as used in this section means an
application reveived by the borough on or before the date
previously set for submission of construction plans. An exten-
sion may not be granted if the buyer is in breach of any term,
condition or covenant of the contract or deed.
borough if
C.
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Page 7, Ordinance No. 77 -17 -0
for submission of construction
Construction plans shall be approved by the
1. The value of the improvements to be
constructed is at least three times
the purchase price of the property;
2. The development will comply with all
applicable federal,
pal laws; and
3. The buyer is not
state and munici-
in breach of any
term, condition or covenant of the
sale contract.
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18.20.130 Commencement and Completion of Construction.
A. Construction of the improvements required
by the development plan shall be commenced within two years
after execution of the contract and shall be completed within
five years from the date of execution of the contract.
B. The time for commencement and completion of
improvements may be extended by the borough for good cause upon
timely application by the buyer. The time of extension shall
not exceed one year. Timely application, for the purposes of
this section, means an application for an extension of time
received by the borough on or before the date previously set
for commencement of construction or completion of construction,
whichever deadline is applicable. The borough shall not grant
an extension of time if the buyer is then in breach of any
term, condition or covenant of the contract or deed.
18.20.140 Assignment. Buyer shall not assign,
convey, pledge or encumber the sale contract or any interest
the sale contract without the prior written consent of the
borough assembly. Any assignment made without the express
written approval of the borough shall be void.
As used in this section, assignment of an interest in
the sale contract shall include the transfer of any controlling
interest in a corporation or other business entity that is a
buyer under a sale contract.
18.20.150 Quitclaim Deed. Upon execution of the
sale contract, the buyer shall execute and deliver to the
borough a quitclaim deed in proper form, relinquishing all
right, title and interest in and to the property sufficient for
clearing title to the property in the event of default by the
buyer.
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18.20.160 Limitation on Warranty of Title.
A. The title to be conveyed by the borough is
expressly subject to any claims asserted and established by any
village, regional or special corporation, under any provision
of the Alaska Native Land Claims Act; and all reservations,
restrictions and easements of record.
B. If it is determined, subsequent to the
execution of the sale contract or deed, that the borough had no
right, title or interest in the premises at the time of execu-
tion of this agreement because of claims asserted and estab-
lished by any village, regional or special corporation, under
any provision of the Alaska Native Land Claims Act, and that
the conveyance to the Buyer did not establish a valid third -pa
rty interest excepting the property from selection, the sale
contract shall terminate and be of no further force and effect.
All payments of principal and interest received by the borough
from the buyer under the agreement shall be returned to the
buyer and the buyer agrees to indemnify, hold and save the
borough harmless, to the extent of such reimbursement, from any
claims or liability for damages based upon trespass or similar
actions brought by any village, regional or special corporation.
18.20.170 Taxes, Fees and Charges. Buyer shall pay
all taxes, fees, assessments and other charges levied by any
public or private authority against the premises and shall
timely file all notices or declarations relating to taxes,
fees, charges or assessments with the appropriate authority.
The borough shall promptly forward to buyer any and all notices
of taxes, fees, charges or assessments relating to the property
received by the buyer.
18.20.180 Location on the Premises. Buyer shall
.properly locate the boundary of the premises subject to the
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sale contract and shall construct all improvements within those
boundaries and shall not encroach on other lands of the borough
or other parties.
18.20.190 Clearing. Prior to full payment to the
borough and completion of all required improvements, buyer may
remove and utilize only so much of the standing timber or other
materials from the premises as may be reasonably necessary to
permit construction of the proposed improvements and utiliza-
tion of the proposed premises for the stated purpose.
18.20.200 Expenses of Transaction. The buyer shall
pay attorney fees incurred for the preparation of all necessary
documents and all other fees associated with the preparation,
execution or recording of the contract for sale and any deed.
18.20.210 Compliance With Laws. Buyer shall comply
with all laws relating to the possession and occupancy of the
property or relating to the construction, maintenance or altera-
tion of any improvement to the premises.
18.20.220 Waste or Destruction. Buyer shall not
permit, allow or suffer any waste or destruction to the premises.
18.20.230 Non - Waiver. The failure of the borough to
insist upon strict performance of any term, condition or covenant
of the sale contract or any deed, or to exercise any right to
remedy available on a breach thereof, or the acceptance of full
or partial payment during the continuance of any breach, shall
not constitute a waiver of such breach of any applicable term,
condition or covenant of the sales contract or deed.
18.20.240 Liens and Encumbrances. Buyer shall keep
the property free and clear from any liens or encumbrances
arising from construction, maintenance or repairs on the property
or from any other cause and shall, at buyer's sole cost and
expense, promptly secure the removal of any lien so filed.
Page 10, Ordinance No. 77 -17 -0
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C. Upon termination, all payments
I made by the buyer for the Previosuly
purchase of the premises shall accrue
to the benefit of the borough as reasonable rental and liqui-
dated damages associated with the buyer's breach and the borough
shall have a right to record the quitclaim deed and re -enter
the property. The contract shall thereafter be of no further
force and effect, but such termination shall not waive any
remedy the borough may have against buyer for waste or removal
of timber, minerals or other resources from the property in
violation of the contract.
18.20.250 Modification. No modification of a contract
for sale or deed will be bindin g on either
party unless reduced
to writing and subscribed by buyer and
I' I' the borough.
18.20.260 Termination Prior to Conve ante.
A. If buyer defaults in any payment required
by the contract for sale and such default is not cured within
30 days, the borough may, at its option, declare the entire
remaining balance of principal and interest to be immediately
due and payable. Notice of acceleration shall be mailed to the
buyer by certified mail and if the buyer fails to pay the
balance of principal and interest within 30 days from the date
of mailing of the notice, the borough may declare the contract
to be terminated.
B. If the buyer defaults in the performance of
any other term, covenant or condition of the contract of sale,
prior to receipt of a deed from the borough, and fails to cure
such default within 30 days after mailing of notice from the
borough by certified mail, specifying the nature of the default,
the borough may, at its option, declare the contract to be
terminated.
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18.20.270 Conveyance by Special Warranty Deed.
A. If the buyer desires to obtain restricted
title to the property pending construction of all improvements
required by the contract, the borough shall, upon receipt of
the balance of principal and interest due to the borough, and
providing buyer is not then in default, convey title to buyer
by a special warranty deed.
B. The conveyance by special warranty deed
shall be subject to the following conditions:
1. Grantee may pledge or encumber the
property for temporary or permanent
financing of improvements required to
be constructed by the contract of sale
and for additional funds, if any, in
an amount not to exceed the principal
payments made to the borough for the
property conveyed. The pledge or
encumbrance shall be subject to the
covenant running with the land requir-
ing the construction of improvements
specified in the contract for sale in
accordance with approved plans.
2. Grantee shall pay real property taxes
and assessments on the property when
due and shall not create, cause or
suffer any lien or encumbrance to
attach to the property, other than
authorized in subsection 1 above,
until the borough certifies that all
improvements required to be con-
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structed have been completed by the
grantee.
3. The grantee shall promptly commence or
continue construction of the improve-
ments required by the contract of sale
in accordance with the approved plans
and shall diligently prosecute con-
struction of those improvements to
completion. In any event, construc-
tion shall commence within two years
from the date of execution of the
contract for sale and shall be com-
pleted within five years from the date
of execution of the contract for sale.
4. Until the borough certifies that all
required improvements have been com-
pleted, the grantee shall have no
power to convey or transfer the prop-
erty or any part thereof without the
prior written consent of the borough
except to a morgagee or trustee as
security to obtain financing as permit-
ted by subsection 1 of this section.
The conveyance or transfer prohibited
shall include transfer by any party of
controlling interest in a corporation
that is a grantee under this Deed
or any similar significant change
in ownership of such stock or
the relative distribution thereof by
any means including, but not limited
to, increased capitalization, merger,
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issuance of additional or new stock oz.
classification of stock.
C. The covenants set forth in subsection B
shall run in favor of and enure to the benefit of the borough
for the entire period during which such covenants are in force
and shall be binding upon the owner of any land or interest in
land to which the covenants relate. In the event of a breach
of any such covenant, the borough may exercise all rights and
remedies available and may maintain any action in law or equity
to enforce the curing of such breach.
18.20.280 Certificate of Completion.
A. Upon completion of all required improve-
ments in accordance with the provisions of the approved con-
struction plans, the borough will furnish the grantee under a
special warranty deed with a certificate of completion. The
certificate shall be a conclusive determination of satisfaction
of the conditions and covenants of the contract for sale and
special warranty deed relating to timely construction of improve-
ments and shall terminate all existing covenants
and conditions
binding on the grantee, provided, however, that such termina-
tion shall not relieve grantee of his obligation to pay property
taxes or assessments. The certificate of completion shall be
in a form suitable for recording in the office of the district
recorder.
B. If the borough shall refuse or fail to
provide a certificate of completion, the borough shall, within
30 days after written request by the grantee provide the grantee
with a written statement, indicating in what respects the
grantee has failed to duly complete said improvements and what
measures or acts will be necessary, in the opinion of the
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borough, for the grantee to take or perform in order to obtain
such certification.
18.20.290 Breach of Warranty Deed.
A. At any time prior to certification by the
borough that improvements have been completed as required, the
borough may terminate the estate granted by the special warranty
deed if
Page 15, Ordinance No. 77 -17 -0
1. The grantee, in violation of section
270 B 2, fails to 'pay property taxes
or assessments when due or places an
unauthorized lien or encumbrance on
the property and such taxes or assess-
ments are not paid or the lien or
encumbrances removed or discharged, or
provisions satisfactory to the borough
for such payment, removal or discharge,
within 90 days after mailing of written
or service of notice from the borough.
2. There is, in violation of section 270
B 4, a transfer of the property or any
part thereof or a change in the owner-
ship or distribution of the stock of
the grantee, and such violation is not
cured within 60 days after mailing or
service of written notice from the
borough; or
3. The grantee defaults in timely commence-
ment or completion of required improve-
ments in compliance with approved
plans, or abandons or suspends con-
struction work for any substantial
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time, in violation of section 270 B 3,
and such default relating to timely
commencement or prosecution of the
work is not cured within 60 days after
mailing or service of notice by the
borough, or, as relates to timely
completion in accordance with plans,
is not cured within six months after
mailing or service of notice or within
any extended period of time that may
be granted by the borough for good
cause shown.
B. Upon termination of the grantee's estate,
fee title to the property shall be revested in the borough and
the borough may re -enter and take possession of the property,
subject only to those rights and interests as hereinafter set
forth in this section. It is the intent of this ordinance that
the conveyance of the property by special warranty deed shall
contain a condition subsequent providing that upon default by
grantee in performance of any covenant or condition required by
section 18.20.270 B and the failure of the grantee to remedy
such default within times and in the manner as provided, the
borough may at its option declare a termination in favor of the
borough of all rights and interest in the property conveyed by
the deed, subject, however, to specified limited interests.
C. Following termination of the grantee's
interest, the property shall continue to be subject to and
limited by the lien or encumbrance of any mortgage or deed of
trust authorized by this chapter and any rights or interests
created by this chapter for the protection of holders of such
Mortgage or deed of trust.
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D. If title to the property or part thereof
shall revest in the borough in accordance with the provisions
of this chapter, the borough shall use its best efforts to
resell the property or part thereof, in a reasonably prompt
manner and subject to any authorized encumbrance to a party or
parties, determined by the borough to be qualified and respon-
sible who will assume the obligation of making or completing
the improvements or such other improvements in their stead as
shall be satisfactory to the borough. Upofi such resale of the
property the proceeds thereof shall be applied as follows:
1. To reimburse the borough, for all net
costs and expenses incurred as a
result of grantee's breach including,
but not limited to, salaries of per-
sonnel in connection with the repos-
session, management and resale of the
property or part thereof; all taxes,
assessments, and water and sewer
charges with respect to the property
or part thereof; any payments made or
necessary to be made to discharge any
encumbrances or liens existing on the
property or part thereof at the time
of revesting of title thereto in the
borough or to discharge or prevent
from attaching or being made any
subsequent encumbrances or liens due
to obligations, defaults, or acts of
the grantee, its successors, or trans-
ferees; any expenditures made or
obligations incurred with respect to
Page 17, Ordinance No.77 -17 -0
the making or completion of the im-
provements or any part thereof on the
property or part thereof, and any
amounts otherwise owing the borough by
the Grantee and its successors or
transferees; and then
2. To reimburse the Grantee, its succes-
sors or transferees up to an amount
equal to the sum of the purchase price
paid by it for the property, or allo-
cable to the part thereof, and the
cash actually invested by it in making
any of the improvements on the improve-
ments on the property or part thereof,
less any gains or income withdrawn or
made by it from this conveyance or
from the property. Any balance remain-
ing after such reimbursements shall be
retained by the borough.
SECTION 4. Title 18 of the Kodiak Island Borough
Code is hereby amended by adding a new chapter 30 to read as
follows:
Sections:
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18.30.010 Lands Available for Leasing.
18.30.020 Leasing Requirements.
18.30.030 Leasing Procedures.
18.30.040 Qualification of Applicants or Bidders.
18.30.050 Applications for Lease.
18.30.060 Development Plan.
18.30.070 Deposits for Costs.
18.30.080 Appraisal and Reappraisal Required.
18.30.090 Minimum Acceptable Annual Rental.
18.30.100 Rights Prior to Leasing.
18.30.110 Review.
Page 18, Ordinance No.77 -17 -0
CHAPTER 18.30
LEASE OF LANDS
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18.30.120 Term of Lease.
18.30.130 Renewal of Lease.
18.30.140 Preference Privilege.
18.30.150 Deposit and Receipt.
18.30.160 Bids - Manager Rejection.
18.30.170 Bidder - Appeal.
18.30.180 Execution of Lease.
18.30.190 Terms and Conditions of Lease.
18.30.200 Payment of Annual Rentals.
18.30.210 Adjustment of Rental.
18.30.220 Lease Utilization.
18.30.230 Responsibility to Properly Locate on
Leased Premises.
18.30.240 Waste and Injury to Land.
18.30.250 Approval of Other Authorities.
18.30.260 Subleasing.
18.30.270 Assignments.
18.30.280 Modification.
18.30.290 Cancellation and Forfeiture.
18.30.300 Notice or Demand.
18.30.310 Rights of Mortgagee or Lienholder.
18.30.320 Entry and Reentry.
18.30.330 Forfeiture of Rental.
18.30.340 Written Waiver.
18.30.350 Expiration of Lease.
18.30.360 Renewal Preference.
18.30.370 Removal or Reversion of Improvements
Upon Termination of Lease.
18.30.380 Compliance With Laws.
18.30.390 Condition of Premises.
18.30.400 Inspection.
18.30.410 Use of Material.
18.30.420 Right -of -Way.
18.30.430 Warranty.
18.30.440 Lease Rental Credit.
18.30.010 Lands Available for Leasing. All lands
and interests in land owned by the borough, including all
improvements, may be leased as hereinafter provided. Lands
devoted to or reserved for public use may not be leased nor may
an existing lease of such lands be renewed unless such lease is
for, or will not interfere with, the public use or purpose to
which the land is devoted or reserved. No lands may be leased
which have not been declared by assembly resolution, passed
within 30 days prior to assembly approval of the lease, to be
no longer required for municipal purposes and available for
leasing.
18.30.020 Leasing Requirements. Land shall be
leased by the borough as follows:
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A. Lands acquired from the state with a computed
annual minimum rental of $500 or less may be leased
for a term of up to five years by negotiation with
the manager, subject to the approval of the assembly.
B. Lands acquired from the state with a computed
annual minimum rental in excess of $500, and all
lands not acquired from the state, shall be leased by
competitive bid in compliance with the procedure set
forth in subsections D and E of section 18.20.050.
C. The lease of lands not acquired from the
state and appraised at $25,000 must be authorized and
by ordinance ratified by a majority of the qualified
voters voting at a regular or special elction at
which the question of the ratification of the ordinance
is submitted. The procedures established by AS
29.48.260 shall be followed.
D. Lease of land under paragraph B shall be
approved by resolution of the assembly.
18.30.030 Leasing Procedures. Unless otherwise
provided by resolution of the assembly relating to the lease of
specific lands, the land leasing procedures established by this
chapter shall be utilized in the leasing of any borough land.
18.30.040 Qualifications of Applicants or Bidders.
An applicant or bidder for a lease is qualified if the applicant
or bidder:
Page 20, Ordinance No. 77 -17 -0
A. Is nineteen years of age or over, or
B. Is a group, association, or corpo-
ration which is authorized to conduct
business under the laws of Alaska, or
C. Is acting as an agent for another and
has qualified by filing with the
clerk, prior to the time set for the
disposition, a proper power of attorney
or a letter of authorization creating
such agency. The agent shall represent
only one principal, to the exclusion
of himself.
18.30.050 Applications for Lease.
A. Applications for a negotiated lease or
for lease by competitive bid shall be
filed with the clerk on forms provided
by him and available at the municipal
building. Only forms completed in
full and accompanied by a non - refundable
$25 filing fee will be accepted for
filing. Applications for lease by
competitive bid must be filed within
the time period advertised.
B. Appliations for a negotiated lease of
land pursuant to section 18.30.020 A
shall be considered as applications
for general use purposes.
18.30.060 Development Plan.
A. Filing fees are not refundable. With every
application for a lease by competitive bid, except an applica-
tion for general use purposes, the applicant shall submit a
development plan showing and stating:
1. The purpose of the proposed lease;
2. The use, value and nature of improve-
ments to be constructed;
3. The type of construction;
Page 21, Ordinance No. 77 -17 -0
9 9 1 1
2
4. The dates construction is estimated to
commence and be completed; and
5. whether the intended use complies with
this title and the comprehensive plan
of the borough.
B. The assembly shall evaluate the applications
and development plans and shall accept a proposed development
plan properly submitted by a prospective bidder if the develop-
ment plan reflects proposed improvements having a value of not
less than two times the appraised value of the land to be
leased and the plan is consistent with the borough comprehensive
plan and is in compliance with all applicable federal, state
and local laws.
C. The assembly shall direct the borough manager
to give written notification to each applicant of the assembly's
decision to accept or reject the individual applicant's develop-
ment plan. If an applicant's development plan is rejected by
the assembly he shall not submit a bid for the lease of land.
If an applicant's development plan is accepted by the assembly
he shall be notified by the borough manager at least 30 days
before the time set for acceptance of competitive bids, of the
acceptance and that he may submit a bid for the land.
18.30.070 Deposits for Costs. All applications for
negotiated leases and competitive bids filed with the clerk
will be forwarded to the manager or other designated official
for an estimate of costs required to handle the application
including but not limited to survey, appraisal and advertising
of the area under application. The applicant shall be notified
in writing of the cost estimate and he shall make a deposit
•I
with the borough in that amount within 30 calendar days after
the date of the notice. If the applicant fails to make the
Page 22, Ordinance No. 77 -17 -0
deposit, the application shall be cancelled. If the applicant
does not accept a lease within 30 days after it is offered to
the applicant, all deposit money spent or encumbered for survey,
appraisal or advertising shall be forfeited, and the balance,
if any, shall be returned to the applicant. If the land applied
for upon which deposit for costs is made is leased to another,
the latter shall be required to pay actual costs of survey,
appraisal and advertising, and the original deposit shall be
returned to the depositor.. Where the applicant becomes the
lessee, he shall be required to pay any excess of costs over
deposits, and where the deposit exceeds actual costs, the
excess shall be credited to present or future rents under the
lease. All survey, appraisal and advertising shall be performed
only under the authorization of the borough, and any such work
performed without such authorization will not be accepted.
18.30.080 Appraisal and Reappraisal Reauired.
A. No land or interest in land may be leased,
or a renewal lease issued, unless the land has been appraised
within 90 days prior to the date fixed for beginning of the
term of the lease of renewal lease. The appraisal shall be
performed by the assessor or a qualified appraiser and shall
reflect fair market value of the land and to improvements
located thereon.
B. Land leased for a term in excess of five
(5) years shall be reappraised by the borough at the end of the
first five year term and at the end of every five year term
thereafter for the purposes of adjustment of rental as provided
in this chapter.
18.30.090 Minimum Acceptable Annual rental.
A. Annual minimum rentals shall be computed as
ten percent of the appraised fair market value of the land and
Page 23, Ordinance No. 77 -17 -0
1 2 5 1
1
all improvements thereon and shall be the lowest acceptable bid
in the event of an auction or lease by sealed bid.
I , B. No land shall be leased for less than the
approved, appraised annual rental except that when leased to a
governmental unit, agency, department or body for public purposes.
18.30.100 Rights Prior to Leasing. The filing of an
application for a lease does not give the applicant a right to
a lease or to the use of the land applied for. Any use not
authorized by lease shall constitute a trespass against the
borough.
18.30.110 Review. Leased land may not be changed in
use, nor may any renewal lease be issued until the proposed use
or renewal has been reviewed and approved by the assembly.
18.30.120 Term of Lease. Leases may be issued for a
period not to exceed 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 investment.
18.30.130 Renewal of Lease. If, at the expiration
of the lease of any
lands hereunder, the lessee desires a
renewal lease on the lands, properties, or interests covered
thereby, he shall, not sooner than 60 calendar days prior to
the expiration, and not later than 30 calendar days prior to
the expiration, make application for a renewal lease in writing
on forms provided by the borough clerk, certifying under oath
as to the character and value of all improvements existing on
the lands, properties or interests, the purpose for which he
desires a renewal lease and such other information as the
manager may require to evaluate the renewal application. The
applicant shall deposit $25.00 with the clerk as a renewal fee.
Page 24, Ordinance No.77 -17 -0
The manager may thereupon lease the lands in compliance with
all sections of this chapter with a preference being allowed
the former lessee if all other pertinent factors are substan-
tially equivalent. The date that the application for renewal
of lease is presented to the office of the manager, as evidenced
by the borough receipt date stamped thereon, whether delivered
or forwarded by regular, certified or registered mail, shall be
binding.
'
1 2 ', ^,
18.30.140 Preference Privilege. A lessee under an
existing lease shall, upon the expiration or the termination by
mutual agreement, be allowed a preference privilege to re -lease
those lands previously leased by him if all other factors are
substantially equivalent. When the lease is put up for public
bidding, the preference privilege holder shall at the close of
the bidding indiate if he wishes to exercise his preference
privilege and meet the highest bid. If he does so choose, he
shall meet all the requirements of this chapter. If the pref-
erence privilege holder elects not to exercise his privilege at
that time, or if he does not fulfill the requirements of this
chapter, his preference privilege is forfeited and cancelled.
No preference privilege will inure to a lessee whose lease has
been cancelled or terminated for cause.
18.30.150 Deposit and Receipt. The apparent high
bidder, or the preference privilege holder, if his preference
privilege is exercised, shall upon award of the lease deposit
with the borough the portion of the annual rental then due
together with the unpaid costs of survey, appraisal and adver-
tising. All payments must be made in cash, money order,
certified check or cashier's check, or any combination thereof.
Upon deposit of the required sum by apparent high bidder or
preference privilege bidder, the manager shall thereupon issue
Page 25, Ordinance No.77 -17 -0
to the successful bidder a receipt for the required sum con-
taining a description of the land or interest leased, and the
rental bid. Bidder shall acknowledge the receipt in writing.
18.30.160 Bids - Manager Rejection. Prior to the
signing of the formal lease by the borough, the manager may,
without cause reject any and all bids for leases when the best
interest of the borough clearly justifies such action.
18.30.170 Bidder - Appeal. An aggrieved bidder may
appeal the manager's determination of the apparent high bidder
or the preference privilege bidder to the assembly within five
business days following such determination. Appeals must be in
writing and contain a short statement of the grounds for the
appeal and be verified under oath. The assembly shall, within
30 days of receipt of a timely appeal, review the asserted
grounds for appeal and rule thereon. The assembly's decision
I shall be final, but without prejudice to any other rights an
aggrieved bidder may have. Failure of the assembly to rule
within 30 days shall constitute a rejection of both the claim
under the appeal and the contested bid.
18.30.180 Execution of Lease. After expiration of
the period for appeal of the manager's determination of the
high holder, or, if an appeal was filed, upon expiration of the
time for action by the assembly or based upon their determina-
tion, the manager shall notify the successul bidder that the
borough is prepared to issue the lease. The bidder shall,
wthin 30 days after receipt of such notice, remit to the borough
the bid balance and any other sums that may be due, and shall
complete and sign all necessary documents. Failure to timely
remit payment or complete and sign documents shall result in a
forfeiture of any and all rights previously acquired in the
proposed lease, and any money paid or deposited with the borough.
Page 26, Ordinance No.77 -17 -0
7 l
18.30.190 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 hereby 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 the best public interest.
18.30.200 Payment of Annual Rentals. Annual rentals
or less shall be paid annually in advance. Annual
of more than $250 but less than $500 shall be paid in
in two equal installments every six months. Annual
of $250
rentals
advance
2 5 1
rentals of $500 or more, but less than $1,000 shall be paid in
advance every calendar quarter. Annual rentals of $1,000 or
more shall be'paid in advance each calendar month.
18.30.210 Adjustment of Rental. Annual rental
payments shall be reviewed and adjusted by the manager not less
often than every fifth year beginning with the rental payment
due after completion of each review period. Any changes or
adjustments shall be based upon changes in the appraised fair
market value of the land and improvements owned by the borough,
excluding landfill placed upon the land by the lessee. The
lessee may protest the adjustment to the manager, and if denied
wholly or in part, an appeal may be taken to the assembly. The
decision of the assembly shall be final.
18.30.220 Lease Utilization. Leased borough lands
shall be utilized for purposes within the scope of the applica-
tion, the terms of the lease, and in substantial conformity
with the borough comprehsive plan. Utilization or development
for other than the allowed uses shall constitute a violation of
the lease and subject the lease to cancellation. Failure to
Page 27, Ordinance No.77 -17 -0
1
commence construction of the proposed improvements within two
years or failure to complete constructor of the proposed
improvements within five years of the date of lease shall be a
breach of lease and shall, at the borough's option, result in
termination of the lease unless the borough has granted an
extension under the terms and conditions set forth in section
I 18.20.130.
18.30.230 Res to Properly Locate on
Leased Premises. It shall be the responsbility of the lessee
to properly
locate himself and his improvements on the leased
land. It is unlawful to encroach on other lands of the borough
or on lands owned or leased by another.
18.30.240 Waste and Iniury to Land. No person may
i to or upon
wilfully commits waste, trespass or other injury
borough land. In addition to civil liability for damages and,
penalties, a person convicted of violating this section is
guilty of a misdemeanor.
18.30.250 A royal of Other Authorities.
The issuance
by
the borough of leases under the provisions of this title
does not relieve the lessee of responsibility of obtaining
licenses or permits as may be required by the borough or by
I duly authorized state or federal agencies.
18.30.260 Subleasing. No lands leased from the
be subleased without the prior written approval of
borough may A proposed
manager, which shall not be unreasonably withheld.
sublease shall not be approved for lands not containing improve-
meats, nor shall a sublease be approved unless it appears that
the utilization of improvements is a substantial esubject s fo all
sublease. Subleases shall be in writing and be
terms and conditions of the original lease and this chapter.
Page 28, Ordinance No. 77 -17-0
18.30.270 Assignments. Lessee may assign the lands
leased to him if the proposed assignment is first approved by
, the manager. The assignee shall be subject to all of the
provisions of the original lease and this chapter.
18.30.280 Modification. The lease may be modified
only by an agreement in writing signed by all parties or their
successor in interest.
18.30.290 Cancellation and Forfeiture.
A. The lease, if in good standing, may be
cancelled in whole or in part, at any time, upon
mutual written agreement by the lessee and the manager.
B. The manager may cancel the lease if the
property is used for any unlawful purpose.
C. If the lessee defaults in the performance
or observance of any of the lease terms, covenants or
stipulations or fails to comply wth any of the provi-
sions of this code, and the default continues for 30
calendar days after service of written notice from
the borough stating the nature of the default, the
borough may subject the lessee to appropriate legal
action including, but not limited to termination of
the lease. No improvements may be removed by the
lessee or other person during any time the lessee is
in default.
D. If the lessee fails, for a period of one
year or for such shorter period as may be specified
in the lease to make substantial use of property for
which a development plan was not required, or fails
to make substantial use of the property within one
year after completion of required improvement pursuant
to a development plan, or within such shorter time as
Page 29, Ordinance No. 77 -17 -0
1
'1 I i .t ! "' ? 5 ?
may be specified in the lease, the borough may termi-
nate the lease.
18.30.300 Notice or Demand. Any notice or demand,
which, under the terms of •a lease or under any statute, must be
given or made by the parties thereto, shall be in writing, and
be given or made by registered or certified mail, addressed to
the other party at the address of record. Either party may
designate in writing such new or other address to which the
notice or demand shall thereafter be so given, made or mailed.
A notice given hereunder shall be deemed delivered when deposited
in a United States general or branch post office enclosed in a
registered or certified mail prepaid wrapper or envelope addressed
as hereinbefore provided.
18.30.310 Rights of Mortgagee or Lienhoider. In the
event of cancellation or forfeiture of a lease for cause, the
holder of a properly recorded mortgage, conditional assignment
or collateral assignment will have the option to acquire the
lease for the unexpired term thereof, subject to the same terms
and conditions as in the original lease.
18.30.320 Entry and Reentry. In the event the lease
should be terminated as herein provided, or by summary proceed-
ings or otherwise, or in the event that the demised lands, or
any part thereof should be abandoned by the lessee during the
term, the borough may immeediately or any time thereafter,
reenter and resume possession of the land or any portion thereof,
and remove all persons and property therefrom either by summary
proceedings or by a suitable action or proceeding at law without
being liable for any damages therefor. No reentry by the
borough shall be deemed an acceptance of a surrender of the
lease.
Page 30, Ordinance No. 77 -17 -0
1
1)
2 5
18.30.330 Forfeiture of Rental. If the lease is
terminated because of any breach by the lessee, as herein
provided, the rental payment last made by the lessee shall be
forfeited and retained by the lessor as partial or total damages
for the breach.
18.30.340 Written Waiver. The receipt of rent by
the borough with knowledge of any breach of the lease by the
lessee or of any default on the part of the lessee in observance
Page 31, Ordinance No. 77 -17 -0
or performance of any of the conditions or covenants of the
lease, shall not be deemed to be a waiver of a provision of the
lease. No failure on the part of the borough to enforce any
covenant or provision therein contained, nor any waiver of any
right thereunder by the borough unless in writing, shall dis-
charge or invalidate such covenants or provisions or affect the
right of the borough to enforce the same in the event of any
subsequent brech or default. The receipt by the borough of any
rent or any other sum or money after the termination, in any
manner, of the term demised, or after the giving by the borough
of any notice thereunder to effect such termination, shall not
reinstate, continue, or extend the resultant term therein
demised, or destroy, or in any manner impair the efficacy of
any notice or termination as may have been given thereunder by
the borough to the lessee prior to the receipt of any such sum
of money or other consideration, unless so agreed to in writing
and signed by the borough.
18.30.350 Expiration of Lease. Unless the lease is
renewed or sooner terminated as provided herein, the lessee
shall peaceably and quietly leave, surrender and yield up unto
the borough all of the leased land on the last day of the term
of the lease.
1
1
1 2 5 9
18.30.360 Renewal Preference. Any renewal preferen
granted the lessee is a privilege, and is neither a right nor
bargained for consideration. The lease renewal procedure and
renewal preference shall be that provided by ordinance in
effect on the date the application for renewal is received by
the designed official.
18.30.370 Removal or Revision of Improvements Upon
Termination of Lease.
A. Improvements owned by the lessee and not
Permanently affixed to the land shall, within 60 calendar days
after the termination of the lease, be removed by lessee,
provided, such removal will not cause injury or damage to the
lands or improvements demised and further provided that the
manager may extend the time for removing such improvments in
cases where hardship is proven. Improvements owned by the
lessee may, with the consent of the manager, be sold to the
succeeding lessee. All periods of time granted the lessee to
remove improvements are subject to the lessee's paying to the
borough pro rata lease rentals for the period. Improvements
owned by the lessee and permanently affixed to the land shall
revert to and absolute title shall vest in the borough.
B. If any improvements or chattels not owned
by the borough and not permanently affixed to the land, which
have an appraised value in excess of $5,000 as determined by
the assessor, are not removed within the time allowed, such
improvements or chattels shall upon due notice to the lessee,
be sold at public sale under the direction of the manager. The
proceeds of the sale shall inure to the lessee if he placed
such improvements or chattels on the lands, after deducting for
the borough rents due and owing and expenses incurred in making
Page 32, Ordinance No. 77_17_n
such sale. If no responsible bids are received, title to such
improvements or chattels shall vest in the borough.
C. If any improvements or chattels having as
appraised value of $5,000 or less, as determined by the assessor,
are not removed within the time allowed, such improvements and
chattels shall revert to, and absolute title shall vest in the
borough.
18.30.380 Compliance With Laws. Lessee shall comply
with all applicable provisions of federal, state or borough
statutes, ordinances, regulations or other laws relating to
lessee's occupancy of the leased land.
18.30.390 Condition of Premises. The lessee shall
keep the leased premises in neat, clean, sanitary and safe
condition and shall take all reasonable precautions to prevent,
and take all necessary action to supress destruction or un-
t controlled grass, brush or other fire on the leased lands. The
lessee shall not undertake any activity which causes or increases
a sloughing off or loss of suface materials of the leased land.
18.30.400 Inspection. The lessee shall allow an
authorized representative of the borough to enter the leased
land for inspection at any reasonably time.
18.30.410 Use of Material. The lessee shall not
sell or remove for use off the premises any timber stone,
gravel, peatmoss, topsoils, or any other material valuable for
building or other commercial purposes; provided, however, that
material may be removed or used if required for the development
or utilization of the leasehold and, if its use or removal is
first approved by the manager.
18.30.420 Right -of -Way.
A. The borough expressly reserves the right to
reasonable ingress or egress over and across the leased premises
Page 33, Ordinance No. 77 -17 -0
1
for the purposes of constructing, repairing, maintaining or
replacing any utility or road right -of -way, which the borough
is authorized to construct or maintain and to grant to itself
reasonable easements over and through the leased premises for
these purposes.
B. The borough reserves the right to grant
easements or rights -of -way over and across leased land if it is
determinated in the best interest of the borough to do so. If
the borough grants an easement or right -of -way across any of
the leased land, the lessee shall be entitled to damages for
all lessee -owned improvements or crops destroyed or damaged.
Damges shall be limited to improvements and crops only, and
loss shall be determined by fair market value. Annual rentals
may be adjusted to compensate the lessee for loss of use.
18.30.430 Warranty. The borough does not warrant by
its classification or leasing of land that th land is suited
for the use authorized under the classification or lease and no
guaranty is given or implied that it shall be profitable to
employ the land to said use.
18.30.440 Lease Rental Credit. When authorized in
writing by the manager prior to the commencement of any work,
the lessee may be granted credit against current or future
rent; provided, the work accomplished on or off the leased
area, results in increased valuation of the leased or other
borough -owned lands. The authorization may stipulate type of
work, standards of construction and the maximum allowable
credit for the specific project. Title to improvements or
chattels credited against rent under this section shall vest
immediately and be in the borough and shall not be removed by
the lessee upon termination of the lease.
Page 34, Ordinance No. 7717-0:
1
ATTEST:
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Ark
/ / /iv/"
Borough A
FIRST READING: ,-;7, /91'1
SECOND READING: September 1, 1977
EFFECTIVE DATE: September 1, 1977
age 35, Ordinance No. 77_17_0
KODIAK ISLAND BOROUGH