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2009-05-14 Special Meeting1. ROLL CALL Kodiak Island Borough Assembly Special Meeting Agenda Thursday, May 14, 2009, 7:30 p.m. Borough Conference Room 2. CITIZENS COMMENTS (Limited to Three Minutes per Speaker) 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. Resolution No. FY2009 -33 Authorizing the Approval of a Renewed Short-Term Lease and Material Sales Agreement With Brechan Enterprises, Inc. For Tracts B1, B2, B3 AND B4 -A, Bells Flats Alaska Subdivision. 4. ADJOURNMENT This meeting was called by Mayor. TITLE: SUMMARY: KODIAK ISLAND BOROUGH AGENDA STATEMENT MAY 14, 2009 SPECIAL MEETING ITEM NO: 3.A Resolution No. FY2009 -33 Authorizing the Approval of a Renewed Short -Term Lease and Material Sales Agreement With Brechan Enterprises, Inc. For Tracts B1, B2, B3, AND B4- A, Bells Flats Alaska Subdivision. In June of 2007, the Assembly approved Resolution No. FY2007 -39 declaring surplus to the Borough's need an 84.38 acre portion of borough land described as Tracts B1, B2, B3, B4 -A, Bells Flats Alaska Subdivision for the purpose of resource extraction. Resolution No. FY2007 -39 authorized the Borough Manager to negotiate directly with Brechan Enterprises, Inc. a short term lease to be followed by a long -term lease in accordance with relevant provisions of KIBC Title 18 and taking into account recommendations from the Planning and Zoning Commission. The Kodiak Island Borough and Brechan Enterprises entered into a new material site agreement for gravel extraction on the "B" tracts located in Womens Bay on July 1, 2007. The material found at this site is a valuable source of aggregate for the concrete and asphalt produced on the island. The value of this material and its limited supply have been identified by the Kodiak Island Gravel Taskforce who have investigated, sampled, and tested other aggregate at alternative sites on the road system only to find that the material on the B tracts provide the best quality material that is readily available. The current agreement expires on June 30, 2009. Staff and Brechan Enterprises, Inc. have been negotiating a long -term lease. However, several issues such as the reclamation plan, the mining plan, the performance bond (which may fluctuate from year to year), the appropriate amount of insurance, and other issues have yet to be completely negotiated and finalized. Staff recommends granting Brechan Enterprises, Inc. a one year extension to the existing lease to expire on June 30, 2010. Staff and Brechan Enterprises, Inc. will continue to finalize a long term lease and material sales agreement for Assembly approval, hopefully by this fall or at least before year end. APPROVAL FOR AGENDA: RECOMMENDED MOTION: Move to adopt Resolution No. FY2009 -33. 1 Introduced by: Manager Gifford 2 Requested by: Manager Gifford 3 Drafted by: Borough Attorney Introduced on: 05/21/2009 4 Adopted on: 5 6 KODIAK ISLAND BOROUGH 7 RESOLUTION NO. FY2009 -33 8 9 A RESOLUTION OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH ASSEMBLY 10 AUTHORIZING THE APPROVAL OF A RENEWED SHORT -TERM LEASE AND MATERIAL 11 SALES AGREEMENT WITH BRECHAN ENTERPRISES, INC. FOR TRACTS B1, B2, B3 AND 12 B4 -A, BELLS FLATS ALASKA SUBDIVISION 13 14 WHEREAS, in Resolution FY2007 -39, the Borough Assembly declared surplus to the 15 Borough's need and authorized the Borough Manager to negotiate directly with Brechan 16 Enterprises, Inc. a short-term lease for full and true market value of an 84.38 acre portion of 17 borough land described as Tracts B1, B2, B3 and B4 -A, Bells Flats Alaska Subdivision for the 18 purpose of resource extraction; and 19 20 WHEREAS, in Resolution FY2007 -40 and in Resolution FY2008 -38, the Borough Assembly 21 authorized the Borough Manager to negotiate directly with Brechan Enterprises, Inc., a short- 22 term lease for full and true market value of an 84.38 acre portion of borough land described as 23 Tracts B1, B2, B3 and B4 -A, Bells Flats Alaska Subdivision for the purpose of resource 24 extraction; and 25 26 WHEREAS, the Borough Manager presented to the Assembly a lease and material sales 27 contract for a one year term which expires on June 30, 2009 and 28 29 WHEREAS, in Resolution FY2007 -39, the Borough Assembly authorized the Borough 30 Manager to negotiate directly with Brechan Enterprises, Inc. a long -term lease, which includes a 31 material sales contract, in accordance with relevant provisions of KIBC Title 18 and 32 recommendations from the Planning & Zoning Commission; and 33 34 WHEREAS, negotiations for a long -term lease are progressing but the parties need additional 35 time to discuss a reclamation plan, a mining plan, the performance bond (which may fluctuate 36 from year to year), the appropriate amount of insurance and other issues so it is not possible to 37 give the Assembly a lease and material sales contract for a long -term which complies with 38 Resolution FY2007 -39; 39 40 NOW, THEREFORE, BE IT RESOLVED, THE ASSEMBLY OF THE KODIAK ISLAND 41 BOROUGH that the Borough Manager is hereby authorized to renew for not more than one year, 42 on the same terms, the short-term lease and material sales contract with Brechan Enterprises, 43 Inc. 44 45 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 46 THIS DAY OF 2009 47 48 49 50 51 Kodiak Island Borough Resolution No. FY2009 -33 Page 1 of 2 52 53 54 55 56 57 58 ATTEST: 59 60 61 62 Nova M. Javier, MMC, Borough Clerk KODIAK ISLAND BOROUGH Jerome M. Selby, Borough Mayor Kodiak Island Borough Resolution No. FY2009 -33 Page 2 of 2 LEASE AND MATERIAL SALES AGREEMENT (short term) THIS LEASE and MATERIAL SALES AGREEMENT is made this first day of July, 2009 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 B1, 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, 2009, and shall expire at 5:00 P.M., prevailing Alaska Time on June 30, 2010. 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 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. 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. 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 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. 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 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 , 2009. ATTEST: Borough Clerk, Nova Javier TENANT: BRECHAN ENTERPRISES INC. By: Its LEASE AND MATERIAL SALES AGREEMENT — Page 9 of 9 LANDLORD: THE KODIAK ISLAND BOROUGH Borough Manager, Rick Gifford /d0 1' TP.. 8-3 el,os AcIrr c), 1/ , T. 8-4'A le, es' Acifes .... / / / / .... ... ,.. w TX. , fo• \ 9 c 8c 'a EXHIBIT A rR • 0-2 19.7.g ACRES ef'd ,e• / 1 /.'.r•e) • • • 1 '1 1. • 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 4 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. KODIAK ISLAND BOROUGH RESOLUTION NO. FY2007 -39 Introduced by: Manager Gifford Requested by: Manager Gifford Drafted by: Planning & Zoning Com. Introduced: June 7, 2007 Adopted: June 7, 2007 A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY DECLARING AN 84.38 ACRE PORTION OF BOROUGH LAND, DESCRIBED AS TRACTS B1, B2, B3 AND B4-A, BELLS FLATS ALASKA SUBDIVISION AS SURPLUS TO BOROUGH NEED, AND AUTHORIZING THE BOROUGH MANAGER TO NEGOTIATE DIRECTLY WITH THE PETITIONER 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, KIB Code 18.60.010 allows the Borough Assembly to approve contracts for the sale of "materials" owned by the borough; and WHEREAS, KIB Code 18.40.010 allows the Borough Assembly to establish specific leasing procedures by resolution; and WHEREAS, the Planning and Zoning commission, after holding a public hearing on the request, determined by resolution that Tracts B1, B2, 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 ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT Section 1: That an 84.38 acre portion of borough land described as Tracts B1, B2, B3 and B4 -A, Bells Flats Alaska Subdivision is 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 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 petitioner, Brechan Enterprises, Inc., for a short-term lease, which includes a material sales contract, with similar terms and conditions as in the current lease and other relevant provisions of KIBC Title 18. The short-term lease and materials sales contract will be presented to the Assembly for their approval. Section 3: The Assembly, in accordance with KIBC Title 18, hereby authorizes the Borough Manager to negotiate with the petitioner, Brechan Enterprises, Inc., for a Tong -term lease, which includes a material sales contract, in accordance with relevant provisions of KIBC Title 18. The long -term lease and material sales contract will be presented to the Assembly for their approval. Section 4: The Assembly hereby acknowledges the stipulations that were recommended by the Planning & Zoning Commission and request the manager to consider these items during the negotiation of the long -term lease. Kodiak Island Borough, Alaska Resolution No. FY2007 -39 Page 1 of 2 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 (6) 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 7 a.m. to 7 p.m., Monday through Saturday, with no work on Sundays. 8. The buffer zones, laid out in the Brechan Enterprises, Inc. 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. ATTEST: ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS SEVENTH DAY OF JUNE 2007 Kodiak Island Borough, Alaska Nova M. Javier, CMF, Borough Clerk KODIAK ISLAND BORO GH Jerome M. Selby, Resolution No. FY2007 -39 Page 2 of 2 A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY 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 WHEREAS, in Resolution FY2007 -39, the Borough Assembly declared surplus to the Borough's need and authorized the Borough Manager to negotiate directly with Brechan Enterprises, Inc., a short -term lease for full and true market value of an 84.38 acre portion of borough land described as Tracts B1, B2, B3 and B4 -A, Bells Flats Alaska Subdivision for the purpose of resource extraction; and WHEREAS, in Resolution FY2007 -39, the Borough Assembly established specific leasing procedures for this matter under KIB Code 18.40.010; and WHEREAS, the Borough Manager has presented to the Assembly a lease and material sales contract for a one year term, which complies with Resolution FY2007 -39; NOW, THEREFORE, BE IT RESOLVED, THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT the Borough Manager is hereby authorized to execute the short-term lease and material sales contract with Brechan Enterprises, Inc. ATTEST: ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS TWENTY SIXTH DAY OF JUNE, 2007 Nova M. Javier, • C, Borough Clerk KODIAK ISLAND BOROUGH RESOLUTION NO. FY2007 -40 Introduced by: Manager Gifford Requested by: Manager Gifford Drafted by: Borough Attorney Introduced: 06 /26/2007 Amended: 06/26 /2007 Adopted: 06 /26/2007 KODIAK ISLAND BOROUGH Jerome M. Selby, Borough Mayor Kodiak Island Borough, Alaska Resolution No. FY2007 -40 Page 1 of 1 A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY AUTHORIZING THE APPROVAL OF A RENEWED SHORT -TERM LEASE AND MATERIAL SALES AGREEMENT WITH BRECHAN ENTERPRISES, INC. FOR TRACTS B1, B2, B3 AND B4-A, BELLS FLATS ALASKA SUBDIVISION WHEREAS, in Resolution FY2007 -40, the Borough Assembly authorized the Borough Manager to negotiate directly with Brechan Enterprises, Inc., a short-term lease for full and true market value of an 84.38 acre portion of borough land described as Tracts B1, B2, B3, and B4 -A, Bells Flats Alaska Subdivision for the purpose of resource extraction; and WHEREAS, the Borough Manager presented to the Assembly a lease and material sales contract for a one year term which expires on June 30, 2008; and WHEREAS, to proceed with negotiations for a long -term lease, KIBC 18.20.130 requires an appraisal of the property and, since this appraisal was just received, it is not possible to give the Assembly a lease and material sales contract for a Tong -term lease, which complies with Resolution FY2007 -39; NOW, THEREFORE, BE IT RESOLVED, THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT the Borough Manager is hereby authorized to renew for not more than one year, on the same terms, the short-term lease and material sales contract with Brechan Enterprises, Inc. ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS FIFTH DAY OF JUNE, 2008 ATTEST: iil ,l a M. Javier, CMC, Bo ough Clerk Kodiak Island Borough, Alaska KODIAK ISLAND BOROUGH RESOLUTION NO. FY2008 -38 Pc Introduced by: Manager Gifford Requested by: Manager Gifford Drafted by: Borough Attomey Introduced: 06/05/2008 Adopted: 06/05/2008 KODIAK ISLAND BOROUGH rome M. Selby, Borough Mayor Resolution No. FY2008 -38 Page 1 of 1 Marylynn McFarland From: Nova Javier Sent: Thursday, May 14, 2009 11:28 AM To: David M. Freeman Cc: Rick Gifford Subject: RE: Concerning the Gravel Lease Mr. Freeman, Yes, the letter will be distributed to the Assembly tonight. Thank you, Nova Nova M. Javier, MMC Borough Clerk Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 www.kodiakak.us Your reputation is merely how you are perceived by others, but your character is who you really are! From: David M. Freeman [mailto:Dfreeman @hwb- law.com] Sent: Thursday, May 14, 2009 11:26 AM To: Nova Javier Subject: RE: Concerning the Gravel Lease 1 PUBLIC RECORDS LAW DISCLOSURE: This e -mail and responses to this email are subject to provisions of the Alaska Statutes and may be made available to the public upon request. Ms. Javier -- Thank you for the update and the agenda packet. I see from the packet that the purpose of the special meeting tonight is to approve a one year extension of the existing short term lease with Brechan Enterprises, Inc. Obviously, we would like the Assembly to first consider our letter on behalf of Twin Peaks Construction, Inc. As noted, we are of the view that the Assembly does not have the authority to approve any negotiated lease of the Bell Flats parcel. Additionally, any lease that is approved and ratified by a majority of the Borough voters should contain the provision we suggested in our letter (or a similar provision) dealing with the maximum allowable unit price for materials sold by the Lessee of the Bell Flats parcel to bidders on public works projects. Would you please confirm for me that the Borough Manager will make our letter available to the Assembly at the special meeting tonight so they can consider its contents prior to voting on Resolution No. FY2009 -33; i.e., our letter needs to be added to the Assembly's packet. DMF From: Nova Javier [mailto:njavier @kodiakak.us] Sent: Thursday, May 14, 2009 10:58 AM To: David M. Freeman Subject: RE: Concerning the Gravel Lease Mr. Freeman, The Assembly is holding a special meeting tonight. The agenda packet is also available for your review online. Thank you for the clarification, Nova Nova M. Javier, MMC Borough Clerk Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 www.kodiakak.us Your reputation is merely haw you are perceived by others, but your character is who you really are! PUBLIC RECORDS LAW DISCLOSURE: This e-mail and responses to this email are subject to provisions of the Alaska Statutes and may be made available to the public upon request. From: David M. Freeman [mailto:Dfreeman @hwb- Iaw.com] Sent: Thursday, May 14, 2009 10:49 AM To: Nova Javier Subject: RE: Concerning the Gravel Lease Ms. Javier -- You are correct. Our fax transmittal sheet contains the confidentiality notice for faxes that inadvertently get sent to the wrong number. It is intended to tell the recipient what to do in that circumstance. 2 While this letter was sent to the Borough Manager, it was also intended for the Assembly and anyone else involved in the leasing process (including the public). Thank you for asking prior to your release of the letter. Do you know when the Assembly will be addressing this leasing matter again? We may want to have a representative of Twin Peaks present at the meeting or work session. DMF David M. Freeman, Esq. HOLMES WEDDLE & BARCOTT, PC 701 W. Eighth Avenue, Suite 700 Anchorage, Alaska 99501 -3408 Phone: (907) 274 -0666 Direct: (907) 222 -8409 Fax: (907) 277 -4657 dfreeman @hwb- law.com From: Nova Javier [mailto:njavier @kodiakak.us] Sent: Thursday, May 14, 2009 10:19 AM To: David M. Freeman Subject: Concerning the Gravel Lease Mr. Freeman, I am in receipt of the attached document. On the fax's cover page, I noticed there is a confidentiality notice and I am assuming that it is intended solely for your clients Twin Peaks? I am under the impression that this is now a public document since it was sent to us. I am giving you a courtesy notice since we're planning to release it as a public record to anyone who requests a copy. Thank you, Nova Nova M. Javier, MMC Borough Clerk Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 www.kodiakak.us Your reputation is merely haw you are perceived by others, but your character is who you really are! PUBLIC RECORDS LAW DISCLOSURE: This e-mail and responses to this email are subject to provisions of the Alaska Statutes and may be made available to the public upon request. 3 05/12/2009 15:18 FAX HolmesweddleBarcott Q11001/037 LAW OFFICES OF HOLMES WEDDLE & BARCOTT A PROFESSIONAL CORPORATION 701 WEST EIGHTH AVENUE, SUITE 700 ANCHORAGE, ALASKA99501 -3408 TEL. (907) 274-0686 FAX (907) 277 -4657 TELECOPY DOCUMENT COVER PAGE TO: Rick L. Gifford, Borough Manager OFFICE: Kodiak Island Borough FAX NUMBER: 1- 907 -486 -9374 FROM: David M. Freeman, Esq. MESSAGE: Please see attached. CONFIDENTIALITY NOTICE: The documents accompanying this facsimile message contain confidential communications which may be subject to protection under the attorney - client privilege or the attorney work - product doctrine. These documents are intended solely for the use of the proper addressee and should not be read or retained by anyone other than the intended recipient. If you have received this telecopy in error, please notify us immediately by collect telephone call at the number shown above. FILE NUMBER: 4508 -18667 FILE NAME: General Matters DOCUMENT TITLE: letter dated 5/12/09 w /enclosures NUMBER OF PAGES BEING SENT J6 + COVER OPERATOR'S NAME: Patty DATE: 5 -a TIME: a 05/12/2009 15:18 FAX Hol®esWeddleBarcott 2002/037 VIA FACSIMILE —1- 907 -486 -9374 Kodiak Island Borough 710 Mill Bay Road, Room 125 Kodiak, AK 99615 Attn: Rick L. Gifford Borough Manager Dear Mr. Gifford: L A W O F F I C E S O F HOLMES WEDDLE & BARCOTT 1 IIOItl,IO,II COIIOCAIION 701 WEST EIGHTH AVENUE, SUITE 700 • ANCHORAGE, ALASKA 99501.3408 TELEPHONE (907) 274.0666 • FAX )907) 277.4657 May 12, 2009 From the Desk of David M Freeman Direct a -mail: dfreeman @hwb-law.com Direct phone: (907)222 -8409 RE: Proposed/possible Borough lease to Brechan Enterprises, Inc., of approximately 83.38 acres, being tract B1, 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 Bell Flats Road. Our File No.: 4508 -18667 On behalf of our firm's client, Twin Peaks Construction, Inc. ( "Twin Peaks "), we are writing the Kodiak Island Borough to express Twin Peaks' concerns regarding the above - described existing one -year lease and proposed longer -term lease. Twin Peaks has written to you in the past expressing an interest in this parcel and the materials being extracted. As you know, Twin Peaks routinely bids on public works construction SE.TTIF OFFICE WE11$ fARGO CENTER . 999 TH160 AVENUE. SUITE 2600 SEATTLE. WASHINGTON 96101 x011 TEIEFHONE (206) 292.6006 FAX (206) 340.0269 05/12/2009 15:19 FAX HolmesWeddleBarcott Q5003/037 Kodiak Island Borough May 12, 2009 Page 2 Additionally, due to the fact that the current lessee, Brechan, is also a company that routinely bids on public works projects in the Borough and considering (a) the materials are the only local materials of sufficient quality to use in such public works projects and (b) the significant expense associated with bringing materials from off - island, a provision should be added to the lease to prohibit any monopolistic control of pricing or unfair advantage for the lessee. Specifically, the lease provision should require the lessee to sell the extracted materials to any and all bidders on public works projects at the same minimum unit price as set annually by the Borough under KIBC 18.60.060 for materials sold to which the Borough holds title. Each of these points is discussed in detail below. I. To avoid unallowable monopolistic control of pricing that would ultimately injure the Borough, its citizens and taxpayers, and its contractors, any final lease for the parcel, or contract for the removal of the gravel, should include a mandatory provision requiring the lessee and/or operator to sell at the minimum unit price annually established by the Borough under 18.60.060. First, and most importantly to Twin Peaks, because the gravel (and any other materials) are being removed from publicly -owned land, any lessee of the Bell Flats parcel should not be allowed to (1) gain an unfair advantage when bidding on a public works project by increasing the cost of the materials that are extracted from Borough land and are sold to competing bidders, (2) charge competing or successful bidders an amount beyond that which the Borough establishes annually as the minimum unit price under the KIBC, or (3) refuse to sell materials to the lessee's competitors.' projects, both to the Borough and to the City of Kodiak, as well as to other State and Federal owners on Kodiak Island. In examining the situation and the Kodiak Island Borough Code ( "KIBC "), it appears that any proposed lease of the 84.38 acre parcel must be ratified by a majority of the qualified voters, as required by the KIBC. The Assembly does not have authority to approve any negotiated lease of the parcel to Brechan Enterprises, Inc. ( "Brechan") or any other lessee because the annual rental value is in excess of $250,000 and Twin Peaks has expressed an apparent competitive interest. Consequently, the Borough must put any lease of the 84.38 parcel up for competitive bid and then the lease must be ratified by voters. ' For example, Twin Peaks is currently experiencing refusal by Brechan to sell certain types of backfill to Twin Peaks extracted out of the Bell Flats parcel. 05/12/2009 15:19 FAX HolmesWeddleBarcott 1004/037 Kodiak Island Borough May 12, 2009 Page 3 As noted by Brechan in its September 20, 2006 letter to the Borough Manager and Assembly: From a quality perspective, the materials extracted from the Tract 13 source are far superior to any other sources currently available within the Kodiak road system. Historically, all of the high quality aggregates needed for 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 material 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. The Assembly noted in its minutes from the June 5, 2008 regular meeting that the "B" tracts provided a valuable source of aggregate and the best quality material that was readily available for concrete and asphalt produced on the island. The above statements recognize that the aggregate materials extracted from the Bells Flats location will be used in road construction and other public works projects and are the highest quality locally available (although notably in "limited supply "). Additionally, shipping aggregate and materials from off -island greatly increases the cost of any public works project. Accordingly, the local materials from the `B" tracts would be the best materials to use. Therefore, this situation could provide an unfair and monopolistic advantage to a lessee that is also a competitive bidder on public works construction projects. To avoid this situation and to ensure that competitive bidders on public works projects, like Twin Peaks, are not charged inflated amounts by a `B" tracts lessee for a See attached Exhibit 1, pg. 1. 'See attached Exhibit 2, pgs. 554 -555. 05/12/2009 15:20 FAX HolsesWeddleBarcott Q0005/037 Kodiak Island Borough May 12, 2009 Page 4 materials being extracted from Borough land and used in public works projects, the following or similar lease language should be utilized: Maximum allowable unit price for materials included in competitive bids for public work projects For all public works contracts for the Kodiak Island Borough, the City of Kodiak, or other State and Federal owners that are subject to competitive bidding, the Lessee agrees to (a) quote materials pricing to any and all bidders for the purpose of allowing such bidders to prepare their bid proposals and (b) thereafter sell to any successful bidder materials extracted from the premises for use in any such public works project at the minimum unit price for materials as annually established by the Borough pursuant to KIBC 18.60.060. Such a provision, or one similar, will foster competition among bidders without providing any undue advantage to the lessee and will ensure that the Borough, its residents and taxpayers, and its contractors do not pay more for the gravel and other materials than is appropriate when a public works contract is performed. To do otherwise, i.e., to not include such a provision in the lease agreement, would certainly create an untenable situation where the lessee could effectively block all competition on public works projects by charging competitors an amount for aggregate or other materials that far exceeds the lessee's cost paid to the Borough under the unit price provision of the lease, plus a reasonable pro rata extraction cost. II. Any proposed lease of the 84.38 acre parcel must be ratified by a majority of the qualified voters, as required by the KIBC. In 1986, the Assembly amended KIBC 18.20.050 as follows: ° See attached Exhibit 3. The sale, lease or other permanent disposal of borough land riot valued at qty -five two hundred fifty thousand dollars or more per parcel to any single individual, partnership or corporation by means other than outcry auction, shall in addition to conforming to this title, be subject to approval by ordinance ratified by a majority of the qualified voters voting at a regular or special election at which the question of the ratification of the ordinance is submitted. Notice of the election shall be given in accordance with AS 29.48 206 Title 2 of this Code.4 05/12/2009 15:20 FAX HolmesWeddleBarcott a000/037 Kodiak Island Borough May 12, 2009 Page 5 In Kodiak Island Borough Assembly resolution No. FY2007 -39, the Assembly noted that the proposed lease would be for 84.38 acres. Additionally, the current one- year lease and material sales contract, FYC 2009 -04, Resolution FY2008 -38, contains a map showing the leased parcel totaling 84.38 acres. During the June 26, 2007 special meeting, the Assembly noted that the value of the land per acre had increased and stated the value was $31,000.00 per acre. However, rather than just estimate the value per acre, KIBC 18.20.130 requires that Borough land be appraised within ninety days prior to the date fixed for its disposal, with the appraisal being performed by an assessor or qualified appraiser to reflect the fair market value of the land. Therefore, the information above shows that the value of the parcel being leased, and proposed to be leased, to Brechan is: 84.38 x $31,000 = $2,615,780.00. This value far exceeds the $250,000 limit on the Assembly's authority as set forth in KIBC 18.20.050. Consequently, any leasing of this parcel to any lessee (even including the current one -year lease), is subject to approval by an ordinance ratified by a majority of the qualified voters in the Borough. III. Under the KIBC, the Assembly does not have authority to approve any negotiated lease for the parcel to Brechan. KIBC 18.40.020 provides in part: 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. [subsections B, C, and D address leasing to nonprofit corporations or public utilities]. In the current matter, the Assembly noted in the June 26, 2007 special meeting and Resolution No. 2007 -40 that the annual rental value was $24,000 per acre and that the s See attached Exhibit 4, pg. 1, labeled as Section 1. 'See attached Exhibit 5 (Exhibit A of the lease). See attached Exhibit 6. 'It appears that the requirements of this code provision have not been satisfied. 05/12/2009 15:21 FAX HolmesWeddleBarcott IJ007/037 Kodiak Island Borough May 12, 2009 Page 6 rental value had increased to $31,000 per acre. 9 Either of these figures exceeds the five hundred dollar limit. Additionally, on October 24, 2008, Twin Peaks noted an interest in the exact same parce1. Therefore, there is a competitive interest for the property. It is important to note that 18.40.020 does not require any formal filing to establish a competitive interest. Rather, the code just states that a competitive interest is "apparent." Twin Peak's letter is clearly an apparent competitive interest. (But irrespective of whether Twin Peaks maintains that interest, the $500 maximum figure relative to the Assembly's authority has been exceeded with this parcel's value.) Because the annual rent exceeds $500.00 and a competing interest in the property is apparent, the Assembly does not have the authority to approve any negotiated lease. As noted above, the KIBC also requires that the lease must be ratified by the voters. IV. The Borough must put the lease of the 84.38 parcel up for competitive bid. To be able to lease (dispose of) borough land, the Assembly must have authority under the code. KIBC 18.20.120 addresses disposal methods the assembly may use. KIBC 18.20.170 defines "disposal" to mean "any transfer of real property authorized under this title." A lease is obviously a transfer, and KIBC 18.40 specifically deals with leasing of real property. Subsection A allows the Assembly to directly negotiate with interested parties "where specifically permitted under this title." As noted above, KIBC 18.40.020 addresses negotiated leases and does not authorize such action by the Assembly in this instance. Consequently, the Assembly must look to subsection B,' 1 which requires the Assembly to "[ i]nvite sealed bids for borough land" and further requires the Assembly to "specif[y] the time and place for receiving bids and the minimum acceptable bid." Therefore, if the Assembly wishes to lease the `B" tracts property, the KIBC requires that it must invite sealed, competitive bids. V. CONCLUSION On behalf of Twin Peaks, we urge the Borough Manager and the Assembly to take these comments and proposal into consideration when evaluating any lease of the Bell 'See attached Exhibit 6. 10 See attached Exhibit 7. " Subsections C and D deal with sales and purchases of borough land, not leasing. 05/12/2009 15:21 FAX Kodiak Island Borough May 12, 2009 Page 7 Flats property. Certainly, if you or the Assembly have any questions regarding our comments or proposal, we will always be available to address them directly or through the Borough's attorneys. X: 445081186671KIB Lease \Gifford. 121808.doc Ho1®esWeddleBarcott 2D008/037 Very truly yours, HOLMES WEDDLE & BARCOTT, P.C. David M. Freeman DMF /pm Enclosures cc: Twin Peaks Construction, Inc. (via facsimile transmissionxw /enclosures) Attn: Nikki Baringer, President 05/12/2009 15:21 FAX HolmesweddleBarcott 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 Dear Manager and Assembly: As you may be aware, on June 30 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 • • ALEUTIAN MATERIALS INC. Box 223 • Kodiak, AK 99615 (907) 487 -2185 • Alaska Business License # 113090 Alaska Contractors License # 19600 Sept 20, 2006 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 t/ 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. EXHIBIT { PAGE.,,_ OF 3 2D0 09/037 05/12/2009 15:22 FAX Ho1mesWeddleBarcott • 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. White 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 17 • IS ($20,000 per year in ® fees and $1.25 per cy in royalty) ✓ • Leave a valuable natural resource untouched EXHIBIT 1 PAGE )- OF 3 fD 010/037 05/12/2009 15:22 FAX • Page 3 President Enterprises, Inc. HolmesWeddleBarcott • • 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 Aleutian Materials, Inc. • gi 011/037 05/12/2009 15:23 FAX HolmesWeddleBarcott KODIAK ISLAND BOROUGH Assembly Regular Meeting June 5, 2008 ,, K AA --�� Q012/037 /U 5 4 5 A regular meeting of the Kodiak Island Borough Assembly was held June 5, 2008 in the Assembly Chambers of the Kodiak Island Borough Building, 710 MIN Bay Road. The meeting was called to order at 7:30 p.m. The invocation was given by Captain John Quinn of the Salvation Army. Mayor Selby led the Pledge of Allegiance. Present were Mayor Jerome Selby, Assembly members Tom Abell, Pat Branson, Jerrol Friend, Sue Jeffrey, Chris Lynch, Reed Oswalt, and Louise Stutes. Staff members present were Manager Rick Gifford, Finance Director Karl Short, Engineering and Facilities Director Woody Koning, Clerk Nova Javier, and Assistant Clerk Jessica Kilbom. APPROVAL OF AGENDA AND CONSENT AGENDA BRANSON moved to approve the agenda and consent agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF MINUTES A. Regular meeting minutes of May 1, 2008 were approved under the consent agenda. AWARDS AND PRESENTATIONS Mayor Selby proclaimed the week of June 8 through 14, 2008 as Filipino American Heritage Welk urging all citizens to participate in the festivities celebrating the rich heritage and traditions of the Philippine Islands. CITIZENS' COMMENTS I ttg_auningto, Kodiak Island Convention and Visitors Bureau (KICVB) President, spoke of the organization's preliminary audit, and procedural and staff changes of the organization. She noted that KICVB was looking toward continued development of tourism on Kodiak to ensure its vital role on the Kodiak economy. Trevor Brown, Chamber of Commerce Economic Development Specialist, thanked the Assembly for sponsoring the North Pacific Fisheries Management Council (NPFMC) reception. He noted the reception showed great support for the fisheries industry in Kodiak. COMMITTEE REPORTS Assembly member Stutes reported on the Providence Kodiak Island Mental Health Center Board (PKIMHC) meeting. PUBLIC HEARING A. Ordinance No. FY2009 -01 Levying Taxes on All Taxable Real and Personal Property Within the Kodiak Island Borough for the Expenses and Liabilities of the Kodiak Island Borough for the Fiscal Year Commencing on the First Day of July 2008 and Ending on the Thirtieth Day of June 2009 (Fiscal Year 2009 Budget) JEFFREY moved to adopt Ordinance No. FY2009 -01. EXHIBIT PAGE . L OF Kodiak Island Borough June 5, 2008 Assembly Minutes Page 551 The ordinance was for fiscal year 2009 and included funds to be spent in the General Fund, Special Revenue Funds, Debt Service Funds, Capital Project Funds, and Enterprise Funds. The ordinance would also levy taxes on the real and personal property within the Borough as well as upon natural resources extracted and removed from the Borough. Manager Gifford noted there were changes to the ordinance and a substituted version was provided to the Assembly. BRANSON moved to amend Ordinance No. FY2009 -01 by substitution. ROLL CALL VOTE ON MOTION TO AMEND CARRIED UNANIMOUSLY: Abell, Branson, Friend, Jeffrey, Lynch, Oswalt, and Stutes. Mayor Selby opened the public hearing. Seeing and hearing none, Mayor Selby closed the public hearing. Manager Gifford explained that the borough and school district finance staff met and agreed on amounts between direct appropriation and in -kind service funds in order to meet the FY2009 budget cap. Assembly members were glad that funds had been capped and provided to the school district without a borough tax increase. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Branson, Friend, Jeffrey, Lynch, Oswalt, Stutes, and Abell. B. Ordinance No. FY2008 -20 Adding a Ballot Question at the Next Regular Municipal Election to be Held on October 7, 2008 on Whether to Exempt Municipal Officers and Candidates for Elective Office from the State of Alaska Public Official Financial Disclosure Law (AS 39.50), Effective in 2008, and to Reauire Instead that Municipal Officers and Candidates for Elective Office Annually and Upon Declaration of Candidacy or Taking Office Fill Out the 2007 Kodiak Island Borough Financial Disclosure Statement Form Used Prior to the AS 39.50 Amendments, and Follow Municipal Conflict of Interest Laws. FRIEND moved to adopt Ordinance No. FY2008 -20. Many of the disclosure provisions, based on the amendments to Alaska Statutes 39.50 effective in 2008 as well as the 2008 Financial Disclosure Statement form, impose extensive record keeping requirements, are intrusive, have become unduly burdensome, and may require financial disclosures regarding dependent and non - dependent children and other parties of municipal officers and candidates for elective office. By adopting the ordinance, a question would be added to the October ballot, whether to exempt municipal officers from the disclosure law per AS 39.50 and instead, municipal officers would annually fill out a KIB financial disclosure statement which Is similar to the form used prior to the AS 39.50 amendments. A draft copy of this form-was provided to the Assembly. Should the proposition be approved by the voters in October 2008, KIB code sections pertaining to conflict of interest would be amended to include enforcement issues about financial disclosure, similar to what was adopted by the City of Kodiak. EY.HiBiT Kodiak Island Borough June 5, 2008 05/12/2009 15:23 FAX HolnesWeddleBarcott 40013/037 PAGE OF 8 Assembly Minutes Page 552 05/12/2009 15:23 FAX HolmesWeddleBarcott Mayor Selby opened the public hearing. Seeing and hearing none, Mayor Selby closed the public hearing. Assembly member Lynch explained to the public that the amended Alaska Statutes financial disclosure laws have become very intrusive to any municipal officials that hold employment contracts with the public and was concerned that this information would be publicized on the Internet. She stressed that the passing of the ordinance was not an attempt to hide Information from the public. Assembly members agreed the new amendments could hinder new applicants. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Jeffrey, Lynch, Oswalt, Stutes, Abell, and Branson. BOROUGH MANAGER'S REPORT Manager Gifford reported: • During Senator Lisa Murkowski's visit to Kodiak, a tour of the community was provided, including the Kodiak Fish Tech and Fisheries Research Centers and the proposed ADF&G building site on Near Island. The need for an island -wide transportation study was discussed with the Senator. • Updates from EF on bond projects: Construction had begun on various school seismic projects, and on the Community Health Clinic building and parking projects. The Anton Larsen Bay Boat Ramp project was ahead of schedule. KFRC received its annual inspection by GSA, who was pleased with Improvements that had been made to the building. Their report would follow soon. • The Borough received a copy of courtesy correspondence from Attomey Matt Peterson to Borough Attomey Matt Jamin regarding a lawsuit filed on June 4. Although not officially served, Attomey Jamin advised that he would be unable to represent the Borough because he would be called as a witness to the case. The Borough is pursuing alternate options for legal representation. MESSAGES FROM THE BOROUGH MAYOR Mayor Selby spoke on the following: • Revenue Sharing adopted by the Legislature in 2008 was of benefit to the FY09 budget. • North Pacific Fisheries Management Council ( NPFMC) members would be in town and willing to speak with the public regarding the fisheries economy in Kodiak. Over 80% of Kodiak's economy Is based on the fishing industry. Mayor Selby thanked Assembly member Jeffrey and Trevor Brown for their participation with NPFMC. UNFINISHED BUSINESS • None NEW BUSINESS Contracts A. Contract No. FY2008 -35 Between the Kodiak Island Borough and Kodiak Island Convention and Visitors Bureau for Destination Marketing and Tourism Development Services For FY2009. BRANSON moved to authorize the manager to execute Contract No. FY2008 -35 with Kodiak Island Convention and Visitors Bureau for Destination Marketinghftxism Dexe lopment Services for FY 2009 in the amount not to exceed $55,000. Kodiak Island Borough June 5, 2008 PAGE Assembly Minutes Page 553 ID014/037 05/12/2009 15:24 FAX HolmesWeddleBarcott The Kodiak Island Convention and Visitors Bureau ( KICVB) has provided destination marketing and tourism development for the Kodiak Island Borough for several years. Funding support from the Borough and the City of Kodiak has been used to support the KICVB. The Borough's bed tax revenue funds the KICVB. The contract would renew this relationship for the 2009 fiscal year.' An agreement document spelling out the duties to be accomplished for the spedfied period was provided. Assembly discussion ensued regarding KICVB's auditing information. The organization provides benefits for the community through its support of tourism and economic development ROLL CALL VOTE ON MOTION CARRIED SIX TO ONE. Jeffrey, Lynch, Oswalt, Abell, Branson, and Friend (ayes); Stutes (no). B. Contract No. FY2008 -38 Between the Kodiak Island Borough and the Kodiak Chamber of Commerce For Economic Planning and Project Development within the Kodiak Island Borough For FY2009. JEFFREY moved to authorize the manager to execute Contract No. FY2008 -36 with Kodiak Chamber of Commerce of Kodiak, Alaska in the amount not to exceed $43,000 for FY2009. The Kodiak Island Borough has participated in a community-based economic development program operated by the Kodiak Chamber of Commerce for many years. Funding support from the Borough and the City of Kodiak has been used to establish an economic development specialist position at the Chamber. The position ensures that the Kodiak Island Borough is provided with economic development expertise and support. The position Is responsible for meeting planning and reporting requirements established by the Federal Economic Development Administration and for supporting the Kodiak Comprehensive Economic Development Strategy (CEDS) Committee. The contract would renew this relationship for the 2009 fiscal year. An agreement document outlining the duties to be accomplished for the specified period was provided. Assembly members voiced support for the organization which benefits Kodiak's economic development. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Oswalt, Stutes, Abell, Branson, Friend, and Jeffrey. Resolutions 1. Resolution No. FY2008-37 Authorizing the Records Manager to Dispose of Certain Kodiak Island Borough Records. Approved under consent agenda. 2. Resolution No. FY2008 -38 Authorizing a Renewed Short-Term Lease and Material Sales Agreement with Brechan Enterprises for Tracts B1 -, B2, B3, and B4-A, Bells Flats, Alaska Subdivision. JEFFREY moved to adopt Resolution No. FY2008-38. The Kodiak Island Borough and Brechan Enterprises entered into a material site agreement for gravel extraction on the B" tracts located in Womens Bay. The material found at the site was a valuable source of aggregate for the concrete and asphalt produced on the island. The value of the material and its limited supply were identified by the Kodiak Island Gravel Taskforce who investigated, sampled, and tested other aggregate at alternative sites on the road system and Kodiak Island Borough mbly Minutes PAGE te OF Page 554 June 5, 2008 0015/037 05/12/2009 15:25 FAX HolaesWeddleBarcott determined the material on the 'B" tracts provided the best quality material that was readily available. To proceed with negotiations for a Tong -term lease, KIBC 18.20.130 required an appraisal of the property and, since that appraisal had only recently been received, it was not possible to give the Assembly a lease and material sales contract for a long -term lease, which would comply with Resolution FY2007 -39 prior to the expiration of the short term lease. Therefore, staff recommended granting Brechan Enterprises a one year extension to the existing lease to expire on June 30, 2009. During this time period staff and Brechan Enterprises would finalize a long term lease and material sales agreement and bring forth a long -term lease to the Assembly for approval. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Oswalt, Stutes, Abell, Branson, Friend, Jeffrey, and Lynch. 3. Resolution No. FY2008 -39 Refunding Contributions From Organizations and Individuals for Construction of a BMX Track. Work on this Project has Ceased. A corrected copy of Resolution No. FY2008 -39 was provided. OSWALT moved to adopt Resolution No. FY2008 -39. The Borough received $94,666.77 in contributions for a new BMX track from several different organizations over the years, and $45,391 of the funds were still available for the project. Inasmuch as work has ceased on the BMX track, remaining funds would be disbursed in accordance with the schedule reflected in the resolution. The Assembly discussed the reasons for the projects cessation. Consensus was to keep the account open in order to allow future development on the project. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Stutes, Abell, Branson, Friend, Jeffrey, Lynch, and Oswalt. Mayor Selby thanked Bill Hinkle for origination and support of the project and thanked volunteers for their support and time on the project. He stated that grant funds for future development of the project are being investigated by Borough staff. 4. *Resolution No. FY2008 -40 Accepting the Pre- disaster Mitigation Grant From the Division of Homeland Security and Emergency Management for the KIB Non - Structural Seismic Bracing Project in the Amount of $75,490 and Authorizing the Manager to Enter Into a Grant Agreement to Administer the Funds. Approved under consent agenda. 5. *Resolution No. FY2008 -41 Accepting a Pre- disaster Mitigation Grant from Division of Homeland Security and Emergency Management for the Seismic Upgrade for Critical Mechanical, Electrical and Plumbing Equipment for Kodiak Schools Project in the Amount of $132,249 and Authorizing the Manager to Enter into a Grant Agreement to Administer the Funds. Approved under consent agenda. Kodiak Island Borough June 5, 2008 EXHI{81T PAGE 5 OF - &. Assembly Minutes Page 555 Q018/037 05/12/2009 15:32 FAX HolmesWeddleBarcott l 017/037 Ordinances for Introduction 1. Ordinance No. FY2008 -21 Amending Title 2 Administration and 'Personnel, Chapter 2.24 Borough Attorney by Adding Section 2.24.040 Alternate Counsel. BRANSON moved to adopt Ordinance No. FY2008 -21 in first reading to advance to public hearing on June 19, 2008. The ordinance was requested and sponsored by Assembly member Branson. KIBC 2.24.020 states the Assembly shall appoint the Borough Attomey by Resolution. The ordinance would clarify the process when individual actions of municipal officials are being chalenged or the possibility of individual liability is presented and outside counsel is needed. The ordinance would require that the request for payment be made through the goveming body of the Assembly before hiring another attomey. Assembly discussion ensued. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Oswalt, and Stutes. 2. *Ordinance No. FY2008-01 D Amending Ordinance No. Budget for Several Grants. Approved under consent agenda Other Items Abell, Branson, Friend, Jeffrey, 2008 -01 Fiscal Year 2008 to 1. Resignation of Parks and Recreation Committee Member. FRIEND moved to accept, with regret, the resignation of Cassandra Juenger from the Parks and Recreation Committee for a term to expire December 31, 2008 and direct the Borough Clerk to advertise the vacancy per Borough Code. A letter of resignation from Ms. Juenger was received by the Clerk's office requesting the Assembly to accept her resignation from the Parks and Recreation Committee. Ms. Juenger served on the Committee since 2008. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Branson, Friend, Jeffrey, Lynch, Oswalt, States, and Abell. 2. Mayoral Appointment of an Altemate Member to the Cook inlet Regional Citizens Advisory Council. JEFFREY moved to confirm the mayoral appointment of Woody Koning to a three -year alternate seat to expire January 2011 to the Cook Inlet Regional Citizens Advisory Council. Ms. Elizabeth Chilton, the Kodiak Borough representative for the Cook Inlet Regional Citizen Advisory Council, requested that Mr. Woody Koning be appointed to the alternate seat on the Cook Inlet Regional Citizens Advisory Council. The appointment was for a three -year term to expire January 2011. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Jeffrey, Lynch, Oswalt, Stutes, Abell, and Branson. Kodiak island Borough June 5; 2008 EXHIBIT ") ICE �' O p nhly Minutes Page 558 05/12/2009 15:35 FAX HolmesWeddleBarcott 3. Resignation of Solid Waste Advisory Board Members. JEFFREY moved to accept, with regret, the resignations of Bill Hinkle from the Solid Waste Advisory Board for a term to expire December 31, 2010 and Dan Rohrer from the Solid Waste Advisory Board for a term to expire December 31, 2009 and direct the Borough Clerk to advertise the vacancies per Borough Code. Mr. Hinkle and Mr. Rohrer submitted resignation letters to the Clerk's office requesting the Assembly to accept their resignation from the Solid Waste Advisory Board. Mr. Hinkle and Mr. Rohrer both served on the board since its formation in 2007. Mr. Rohrer held the Retail Business Representative seat. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Jeffrey, Lynch, Oswalt, Stutes, Abell, Branson, and Friend. CITIZENS' COMMENTS Stephen Taufen spoke on crab rationalization affecting the community and urged the Assembly to support the crew member resolution. ASSEMBLY MEMBER COMMENTS Assembly member Stutes was happy to have participated in the meeting. Assembly member Friend had no comments. Assembly member Abell commended donators of the BMX track project: SKA, CHARR, Elks Club, Lions Club, Nielsen Cycling Association, and the City of Kodiak. Assembly member Branson encouraged local non -profit organizations to submit their PFD check off applications before June 14; this would allow Alaskans to donate to non -profit organizations of their choice. She was glad school funding (education) was able to be funded to the cap as it is an investment to the future of the community. She looked forward to Filipino week. Assembly member Branson spoke of an existing opportunity for Assembly members to resolve legal issues by presenting a revised resolution to the Assembly for the lawsuit payment. Assembly member Jeffrey congratulated the Kodiak Chamber of Commerce for a pleasant Crab Festival. She spoke of visitors coming to Kodiak to enjoy the surrounding beaches and kayaking activities. She encouraged public participation at the NPFMC meetings to let people know that the fisheries industry Is important to the continuation of healthy coastal communities. Assembly member Oswalt asked Manager Gifford for a status report on Lot 7A. He would like to see the property become available to the public for subdividing due to the current lack of available properties on the market. He spoke of a bear in his driveway. Bears are active during this time due to the lack of fish at this time of year. Assembly member Lynch requested that at the next work session the Clerk review with the Assembly the procedures for requesting information and the number of members it requires for such requests. She spoke of the State program "Gravel to Black', which allows for gravel roads to receive pavement, and the lack of maintenance on State roads around the community. She noted that the expected life time of asphalt paving Is 10-15 years; Kodiak is currently getting 2 -3 years out of the paved roads. She encouraged the community to stay involved and consider the state of Kodiak's roads and the benefits they would like to see from the upcoming State bond issue for road paving projects. Assembly member Lynch noted the recent Assembly litigation > XHIBIT_2 Kodiak Island Borough PAGE June 5, 2008 Page 557 Q018/037 05/12/2009 15:38 FAX HolsesWeddleBarcott 019/037 activity and hoped the public heard and stayed involved with the process. As an elected official she urged the public to come forward and encouraged recals if the public felt it was necessary. Announcements Mayor Selby announced the Assembly will meet In a work session on Thursday, June 12, 2008 at 7:30 p.m. In the Borough Conference Room. The next regular meeting is scheduled on Thursday, June 19, 2008 at 7:30 p.m. in the Assembly Chambers. EXECUTIVE SESSION A. Borough Clerk's Performance Evaluation. BRANSON moved to convene into executive session to discuss the Borough Clerk's performance evaluation, a subject that qualifies for executive session as a matter that may tend to prejudice her reputation or character. ROLL CALL VOTE ON MOTION TO CONVENE INTO EXECUTIVE SESSION CARRIED UNANIMOUSLY: Lynch, Oswalt, Stutes, Abell, Branson, Friend, and Jeffrey. Mayor Selby invited the Assembly members and Clerk to join in executive session. Mayor Selby recessed the regular meeting at 8:47 p.m. and convened the executive session. Mayor Selby reconvened the regular meeting. BRANSON moved to place the annual review of Borough Clerk Nova Javier in her record and to increase the Clerk's salary to Range 23, Step K. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Oswalt, Stutes, Abell, Branson, Friend, Jeffrey, and Lynch. ADJOURNMENT JEFFREY moved to adjourn the meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Stutes, Abell, Branson, Friend, Jeffrey, Lynch, and Oswalt. The meeting adjourned at 9:15 p.m. ATTEST: Nova' M. Javier, CM , Borough Clerk Approved: July 17, 2008 Kodiak Island Borough June 5, 2008 KODIAK ISLAND BOROUGH Jerome M. Selby, Mayor Doerr DoE . of Assembly Minutes Page 558 05/12/2009 15:39 FAX that; Ho1`esWeddleBarcott KODIAK ISLAND BOROUGH ORDINANCE NO. 86 -40-0 AN ORDINANCE or THE KODIAK ISLAND BOROUGH AMENDING CHAPTER 18.20, REAL PROPERTY DISPOSAL Officer 3 PEE first Reading, Approval Date: September 4, 1986 Second Reading, Public Hearing, Approval Date: October 2, 1986 Q 020/037 WHEREAS, by passage of Resolution No. 86 -63 -R, a land sale will be scheduled for November 20, 1986, and WHEREAS, the assembly has indicated a desire to make land available to a wider range of residents at affordable rates; NOW, THEREFORE, BE IT ORDAINED by the Kodiak Island Borough Assembly Section 1: This ordinance is of a general and permanent nature and shall become a part of the Cods of Ordinances. Section 2; Chapter 18.20 is hereby amended as follows: 18.20.050 Election required. The sale, lease or other permanent disposal of borough land see aegelsed -free- the - state -aed valued at weety-ltve two hundred fifty thousand dollars or more per parcel to any single individual, partnership or corporation by means other than outcry auction, shall, in addition to conforming to this title, be subject to approval by ordinance ratified by a majority of the qualified voters voting at a regular or special election at which the question of the ratification of the ordinance is submitted. Notice of the election ahall be given in accordance with A8- 89,48,268 Title 2 of this Code. 18.20.100 Disposal for fair market value. A. Except as otherwise provided by this title or another provision of law, all disposals of borough land shall be for the fair market value of the interest disposed of. The borough may accept in exchange for borough land any consideration of sufficient value not prohibited by law. B. The borough may dispose of borough land to the United States, the state of Alaska, or any political subdivision thereof, or a nonprofit corporation or association, for leas than the fair market value of the !M `interest disposed of, upon a finding by the assembly that the disposal will all the use of the land for a public purpose beneficial to the borough. It may do so by direct negotiation with the organisation acquiring the land, :!land without conforming to Section 18.20.120 through 18.20.155 unless otherwise directed by the assembly. Section 31' Chapters 18.20.110 and 18.20.150 are hereby repealed. Section 4; A new chapter, 18.20.155 is hereby enacted as follows: 18.20.155 Award -- Rejection of bids or proposals. A. Borough land disposals by competitive bidding or proposals shall be awarded to the highest bidder at the time the bids or proposals are opened in accordance with the criteria set forth in the resolution required under Section 18.20.030. B. If the assembly finds it to be in the best interest of the borough to do so, it may reject all bids or proposals up to the time set for the opening of the bids or proposals. Section 51 This ordinance becomes effective upon passage. PASSED AND APPROVED THIS 2nd DAY OF OCTOBER , 1986. 05/12/2009 15:42 FAX HolaesWeddleBarcott 1021/037 = CORRECTED VERSION KODIAK ISLAND BOROUGH RESOLUTION NO. FY2007 -39 Introduced by Manager Gifford Requested by: Manager Gifford Drafted by Planning & Zoning Com. Introduced: 06/07/2007 Adopted: A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY DECLARING AN 8438 ACRE PORTION OF BOROUGH LAND, DESCRIBED AS TRACTS BI, B2, B3 AND B4-A, BELLS FLATS ALASKA SUBDIVISION AS SURPLUS TO BOROUGH NEED, AND AUTHORIZING THE BOROUGH MANAGER TO NEGOTIATE DIRECTLY WITH THE PETITIONER FOR A DISPOSAL OF BOROUGH LAND BY IMMO 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 dtizens to apply for a disposal of Interest in Borough land; and WHEREAS, KIB Code 18.60.010 allows the Borough Assembly to approve contracts for the sale of "materials" owned by the borough; and WHEREAS, KIB Code 18.40.010 allows the Borough Assembly to establish specific leasing procedures by resolution; and WHEREAS, the Planning and Zoning commission, after holding a public hearing on the request, determined by resolution that Tracts B1, B2, B3, and B4-A are surplus to borough need and recommended a disposal by — for fair market value subject to certain stipulations that are recommended that the Assembly include in the proposed SIM agreement to meet certain planning and community objectives; NOW, THEREFORE, BE IT RESOLVED, BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT Section 1; That an 84.38 acre portion of borough land described as Tracts B1, B2, B3 and B4 -A, Bells Flats Alaska Subdivision is hereby declared surplus to the borough's need and authorized for disposal to the petitioner Enterprises, Inc.. by MN for full and true market value 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 petitioner, 11111111111111 Enterprises, Inc., for a short-term f —, which includes a material sales contract. with similar terms and conditions as in the current MIS and other relevant provisions of KIBC Title 18. The short-term ® and materials sales contract will be'presented to the Assembly for their approval. Sec t qn 3: The Assembly, in accordance with KIBC Title 18, hereby authorizes the Borough Manager to negotiate with the petitioner, Enterprises, Inc., for a long -term , which includes a material sales contract, in accordance with relevant provisions of KIBC Title 18. The long -term MIN and material sales contract will be presented to the Assembly for their approval. Se ctio n 4: The Assembly hereby acknowledges the stipulations that were recommended by the Planning 8 Zoning Commission and request the manager to these ,items during the negotiation of the long -term Iii. Kodiak Island Borough, Alaska Resolution No. t•YZU07-39 Page 1 of 2 ATTEST: Nova M. Javier, CMC, Borough Clerk 05/12/2009 15:45 FAX HolmesWeddleBarcott UO22/037 1. A redamation plan, subject to approval by the Assembly, shall be developed in the initial five (5) year ® period as part of this disposal to provide for the reclamation of the MI 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 till agreement will be restated in a new MIN agreement as a maximum extraction depth subject to Assembly approval through 11111111 negotiation. 4. A hydrologic plan be developed for this site and be revisited on a regular basis through the terms of the MIL 5. The MIMI 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 miler of the Ma area, under the provisions of the existing INN agreement, for a period not to exceed six (6) months from the normal expiration of that agreement on June 30, 2007, In order to allow for the full negotiation of a successor MIMI agreement. Should a MIMI 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 NMI agreement for the site will be in effect at that time. 7. Hours of operation (per 111111111111111 Enterprises, Inc. letter March 1, 2007) shall be 7 a.m. to 7 p.m., Monday through Saturday, with no work on Sundays. 8. The buffer zones, laid out in the MS= Enterprises, Inc. 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. ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS DAY OF 2007 KODIAK ISLAND BOROUGH Jerome M. Selby, Borough Mayor EXHIBIT LI PAGE � OF Kodiak Island Borough, Alaska Resolution No. FY2007 -38 Page 2 of 2 05/12/2009 15:47 FAX HolnesWeddleBarcott A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY AUTHORIZING THE APPROVAL OF A RENEWED SHORT-TERM LEASE AND MATERIAL. SALES AGREEMENT WITH ENTERPRISES, INC. FOR TRACTS 81, B2, B3 AND B4-A, BELLS FLATS ALASKA SUBDIVISION WHEREAS, in Resolution FY2007 -40, the Borough Assembly authorized the Borough Manager to negotiate directly with 1111111111111111 Enterprises, Inc., a short -term lease for full and true market value of an 84.38 acre portion of borough land described as Tracts B1, B2, B3, and B4-A. Bells Flats Alaska Subdivision for the purpose of resource extraction; and WHEREAS, the Borough Manager presented to the Assembly a lease and material sales contract for a one year term which expires on June 30, 2008; and WHEREAS, to proceed with negotiations for a wars —, KIBC 18.20.130 requires an appraisal of the property and, since this appraisal was just received, it is not possible to give the Assembly a lease and material sales contract for a 11111-1.111 NNW which complies with Resolution FY2007 -39; NOW, THEREFORE, BE IT RESOLVED, THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT the Borough Manager is hereby authorized to renew for not more than one year, on the same terms, the short -term lease and material sales contract with MIMI Enterprises, Inc. ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS FIFTH DAY OF JUNE, 2008 KODIAK ISLAND BOROUGH RESOLUTION NO. FY2008 -38 44- Iniroduced by Manager Gifford Requested by Manger Gifford Dratted by Borough Attorney Introduced: 08/06/2008 Adopted: 06!06/2008 i ODIAK ISLAND BOROUGH I ; = rome M. Selby, Borough Mayor EXHIBIT PAGE Kodiak Island Borough, Alaska Resolution No. FY2008-38 Page 1 of 1 Q 023/037 05/12/2009 15:49 FAX HolnesWeddleBarcott Fr e. too f du LEASE AND MATERIAL SALES AGREEMENT (short term) THIS LEASE and MATERIAL SALES AGREEMENT is made this first day of July, 2008 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 B1, 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, 2008, and shall expire at 5:00 P.M., prevailing Alaska Time on June 30, 2009. 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 (324,000.00) 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 31,000 as required by KIBC 18.60.040. BEI shall submit to K113 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 EXHIBIT PAGE a 024/037 05/12/2009 15:51 FAX HolmesWeddleBarcott 0025/037 KIBC 18.60.060. MB reserves the right, but is not obligated to make its own volume determination of the gravel removed from the premises. 5. Alteration of Premiset. 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 EXHIBIT PAGE_ 3 OF _ 05/12/2009 15:55 FAX HolaesWeddleBarcott 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 EXHIBIT PAGE L OF 0 14026/037 05/12/2009 15:58 FAX HolmesWeddleBarcott a 027/037 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 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. 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 EXHIBIT PAGE S O la. 05/12/2009 16:01 FAX HolmesWeddleBarcott R028/037 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, maybe 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 awn PAGE __( OF ID_ 05/12/2009 18:04 FAX HolaesWeddleBarcott Q11029/037 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 ()leach 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 EXHIBIT 'S ' PAGE 1 OF 1D- 05/12/2009 16:07 FAX HolmesWeddleBarcott IJ030/037 (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 EXH19pf -_..�_ PAGE � 05/12/2009 16:09 FAX HolmesWeddleBarcott 0031/037 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 EXHIDfr — PAGE ' OF 1). 05/12/2009 16:12 FAX HolaesWeddleBarcott 28 • traction of Aareem *+t. 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 teens 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. C on em atin .Q 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. INJ&ITNESS WHEREOF, the parties have hereunto set their hands and seals thin 2 7 " day of 20o7-8. 2608 TENANT: BRECHAN ENTERPRISES INC. ATTEST: Borough Clerk, Nova avier LEASE AND MATEAL SALES AGREEMENT — Page 9 of 9 By: Its LANDLORD: THE KODIAK ISLAND BOROUGH Borough Mana - ; ' 'ck Gifford maw 5 PAGE _12_ n OF I ? Q032/037 05/12/2009 16:14 FAX HolmesWeddleBarcott fa 033/037 • EXHIBIT PAGE 1l OF ) 05/12/2009 16:15 FAX Ho lmesWeddl eBarcot t im 034/037 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 noise level 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. PAGE _ix_ _ OF — -- 05/12/2009 16:17 FAX Kodiak Island Borough AGENDA STATEMENT Special Meeting of June 26, 2007 HolmesWeddleBarcott Item No.3A Resolution No. FY2007 -40 Authorizing the Approval of a Short-Term and Material Sales Agreement with Enterprises, Inc. for Tracts B1, B2, B3, and B4-A, Bells Flats Alaska Subdivision The Kodiak Island Borough currently leases Tracts B1, B2, B3, B4A, Bells Flats Alaska Subdivision ( "B Tracts ") to Inn. Enterprises, Inc. ( "Brechan ") for the purpose of resource extraction. The current Mall expires on June 30, 2007. MEM has applied to re- the B Tracts for the purpose of continued resource extraction per Kodiak Island Borough Code, Title 18. KIBC 18.20.30 states that "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." The Planning & Zoning Commission ("P&Z") approved the disposal of Borough land for fair market value after a public hearing held on April 18, 2007 and continued on May 7, 2007. According to KIBC Title 18, the Assembly is the final authority with regard to requests to dispose of interest in borough land. The Assembly approved Resolution No. FY2007 -39 on June 7, 2007 declaring the B Tracts as surplus to borough need, and authorizing the borough manager to negotiate with for a disposal of borough land by — for fair market value. The resolution authorized the manager to negotiate with for a short-term lam, which includes a material sales contract to be presented to the Assembly for their approval. This MIME resolution authorizes the manager to execute a short-term MI of one year with to MIN the B Tracts for the purpose of resource extraction. The attached Its has been negotiated with and includes the following: • MN rate of $24,000 per year, up from $20,000 per year • • Payment of the yard Real & Personal Property Taxes • • Performance and operation standards as outlined in Exhibit Our goal with the short -term was to update the NMI documents to reflect current legal language and other minor improvements that have been noted by both parties to the . In addition, we wanted to minimize the financial impacts that would affect this summer's projects. We increased the annual IIIIMII rate by 20% to reflect an estimated increase in the estimated fair market value from $25,000 per acre to $31,000 per acre. This reflects a minimal increase, but recognizes that the fair market value has gone up. This will allow staff time to develop its analysis of the fair market value for the leasehold interest, allow ■in time to review it and then develop and negotiate a NMI rate for the long -term contract. (Continued on next page.) EXHIBIT 1 035/037 AGE 1 OF 'a- 05/12/2009 16:21 FAX HolmesWeddleBarcott The other major change is the accounting for the real property tax on the leasehold interest of the property. The current MIN allows a credit for the real property tax of approximately $8,000 against the MS rate. We believe this was allowed because when the agreement was first initiated twenty -five years ago, it was done as a material sales contract, not a and therefore, no real property tax. Sometime during the twenty -five year period, it was determined that the agreement really was a and a material sales contract. The makes it subject to real property tax based on an appraisal of the fair market value of the leasehold Interest. In order to minimize the impacts of the real P property tax at that time, it was agreed to allow the lessees to take a credit of the real property tax against the use fee (MI amount). This, in effect, reduced the amount of i going into the Land Sale fund for MN of the property. It is my recommendation that the new short-term MINI not allow a credit of the real property tax. The net effect of the above changes is a $4,000 annual increase in the MN rate and the discontinuance of the credit for the real property tax which is approximately $8,000 for a total increase from the current — of approximately $12,000. has agreed to the terms and conditions of the one -year short -term �. Staff recommends approval of the one -year an with MIMI Enterprises, Inc. APPROVAL FOR AGENDA: Recommended motion: Move to adopt Resolution No. FY2007 -40. EXHIBIT PAGE _ a OF ,�_.e IiO36/037 05/12/2009 16:23 FAX HoluesweddleBarcott TWIN PEAKS CONSTRUCTION, INC David M. Freeman From: Dale Heath [dheath @jalaska.net] Sent Friday, December 12, 2008 1:36 PM To: David M: Freeman Subject: Fw: Twirl Peaks Letter to Kodiak Borough - -- Original Message ----- From: Dale Heath _ To:. Dale Heath Sent: Monday, October 20, 2008 2:22 PM Subject Twin Peaks Letterhead.docjnk.doc Rick Gifford Borough Manager - 710 Mill Bay Road Kodiak, Alaska 99615 Dear Mr. Gifford, Sincerely, Nikki Baringer President Cc: KIB Assembly. 12/13/2008 October 20, 2008 TWIN PEAKS CONSTRUCTION, INC. 30590 Sterling Highway P.O. Box 70, Anchor Point, AK 99556 Phone: (907) 235 -3802 -- Fax: 907 -235 -1042 - Email: twinpeak®Aya,net Certified. DBE - WOB - Hub Zone - 8A la 037/037 Page 1 of 1 Twin Peaks Construction, Inc. requests that your office and the KIB Assembly bring back to the table for reconsideration, KIB Resolution #FY2007 -39 which would allow for the Borough to enter into a long term "Sole - Source" lease for gravel extraction on KIB Tracts B -I, B -2, B -3 and 13-4A, Bells Flats Alaska Sub - division. We would ask that in revisiting this issue the Assembly would instead allow for other interested contractors to have fair and equal access to this resource. We have always found that competition benefits everyone in the community while a monopoly works to the detriment of the community. 1 would ask that this letter act as notice of our petition to the KIB for disposal by lease of a portion of the above mentioned tracts for the purpose of gravel extraction. Twin Peaks Construction understands that this disposal would by for fair market value subject to certain stipulations and is willing to abide by all KIB requirements to meet certain planning and community objectives. Thank you for your consideration and we look forward to hearing from you. EXHIBIT 7 RAGE I OF ___I- *:K*:K**** * * ** K**** *: K********** ***:K***** * *** * *** * * * *X * ***** C:K:K**** * **** ** * * * * * *X *Y * * * *** ** C** **** * * *:K * * * TRANSACTION REPORT * MAY -12 -2009 TUE 04 :19 PM * * FOR: KODIAK ISLAND BOROUGH 907 486 9374 * * * RECEIVE * * * DATE START SENDER PAGES TIME NOTE M# * * * MAY -12 03 :13 PM G3 37 66'18" OK Mayor Selby The mayor may not vote except in the case where only six members of the assembly are present and there is a three /three tie vote of the assembl Ms. Stutes TOTAL: Ms. Lynch Mr. Kaplan u Ms. Fulp Mr. Friend 14111 Branson n Ch 03 Z r YES I NO Mayor Selby Ms. Lynch Mr. Kaplan • Ms. Fulp Mr. Friend Ms. Branson t0 03 n O C5 P c/) i v' A N I YES ', I NO Mayor Selby Ms. Lynch Mr. Kaplan Ms. Fulp Mr. Friend Ms. Branso *l CA 03 9 V O :5 §.._,z- G . , p _ . a v. YES NO Mayor Selby Ms. Stutes ":OINE 1' TOTAL: Ms. Lynch Mr. Kaplan Ms. Fulp Mr. Friend 4( Ms. Branson N oo n ;5 0 v _? YES NO Mayor Selby Ms. Stutes TOTAL: Ms. Lynch Mr. Kaplan Ms. Fulp Mr. Friend Ms. Branson cn 00 m 75 0 z q YES INOI 0 7J 0 CD M CO < - Cb -' m a 0 m w' D 1. ROLL CALL Kodiak Island Borough Assembly Special Meeting Guidelines Thursday, May 14, 2009, 7:30 p.m. Borough Conference Room KIBC 2.16.070.... the Chair shall cause the record to reflect the absence of the member, the REASON for the absence, and whether the absence is excused by the Assembly. Assembly membe+ f* and Jeffrey will be absent and asked to be excused due to personal leave. Recommended motion: Move to specifically excuse Assembly members Fulp and Jeffrey who are out on personal leave. VOICE VOTE ON MOTION. 2. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) A. Agenda items not scheduled for public hearing and general comments. ASK SPEAKERS TO SIGN IN AND STATE THEIR NAME FOR THE RECORD. 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. RESOLUTIONS 1. Resolution No. FY2009 -33 Authorizing the Approval of a Renewed Short-Term Lease and Material Sales Agreement With Brechan Enterprises, Inc. For Tracts B1, B2, B3 AND B4-A, Bells Flats Alaska Subdivision. Recommended motion: Move to adopt Resolution No. FY2009 -33. Staff Report - Manager Gifford Assembly discussion - Amendments may be offered at this time. ROLL CALL VOTE ON MOTION. 4. ADJOURNMENT Recommended motion: Move to adjourn the meeting. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines May 14, 2009 Page 1 ` - Pc-- cr-sJn i t 4 tre.,,,N P I7- qe,f„ G aAr C arvv - ©r v� � P Per- r IAJI 4 / ''!! V� ,m �C ..tk /ci W \M 1 N o j,AJICJI C/€ o n Mc a ._>. 13 ii-g4ik iook-i- (-1-0 Matz R di/k_ Yg G •;, ,, -� l.. w G" d w fCC9 \w ‘'- A - - I ' . ?ititkpri )1) rz-z,.. . :DA51k 15 , , i l '2-% ,._ i P l ft P , ., 12i4, Y R KODIAK ISLAND = ROUGH ASSEMBLY W • ' K SESSION Work Session of: SI 1 oq Please PRINT your name Please PRINT your name