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2010-02-18 Regular Meeting
Kodiak Island Borough Assembly Regular Meeting Agenda Thursday, February 18, 2010, 7:30 p.m., Assembly Chambers 1. INVOCATION 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. APPROVAL OF AGENDA AND CONSENT AGENDA All items listed with an asterisk (*) are considered to be routine and non - controversial by the Assembly and will be approved by one motion. There will be no separate discussion of these items unless an Assembly member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda. 5. APPROVAL OF MINUTES A. *Special Meeting of December 29, 2009 and Regular Meetings of January 7 and 21, 2010. 6. AWARDS AND PRESENTATIONS A. Employee of the Quarter B. Student of the Month for February 2010 C. National Teen Dating Violence Awareness and Prevention Proclamation 7. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) A. Agenda Items Not Scheduled for Public Hearing and General Comments 8. COMMITTEE REPORTS 9. PUBLIC HEARING A. Contract No. FY2010 -30 Solid Waste Collection Contract. 10. BOROUGH MANAGER'S REPORT 11. MESSAGES FROM THE BOROUGH MAYOR 12. UNFINISHED BUSINESS 13. NEW BUSINESS A. Contracts 1. *Contract No. FY2010 -31 Accepting a Grant from Alaska Department of Transportation and Public Facilities to Partially Fund the Island -Wide Transportation Feasibility Study. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 1 of 2 B. Resolutions 1. Resolution No. FY2010 -25 Establishing Citizens Board of Equalization Dates for the Year 2010. 2. Resolution No. FY2010 -26 Supporting Invasive Species Advisory Council. 3. Resolution No. FY2010 -27 Urging the University of Alaska Fairbanks Cooperative Extension Service to Establish a Cooperative Extension Service District Office With a Full Time Extension Agent in Kodiak. C. Ordinances for Introduction - None. D. Other Items 1. Assembly Review of Case 10 -008 Planning and Zoning Commission Denial of a Rezone of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential and Directing Staff to Prepare an Ordinance of Introduction. 2. Vacation in Accordance With KIBC 16.60 of a 10 -Foot Portion of a 20 -Foot Wide Utility Easement Located Along the Rear Lot Line of Lot 2B -1, Block 6, Miller Point Subdivision, First Addition. (Case S10 -005) 3. *Appointments to the Providence Kodiak Island Service Area Board. 4. *Confirmation of the Assembly Appointment to the Service Area No. 1 Board. 5. *Declaring a Seat on the Service Area No. 1 Board Vacant. 6. *Confirmation of the Assembly Appointment to the Mission Lake "Tidegate" Service Area Board. 7. *Declaring a Seat on the Bay View Road Service Area Board Vacant. 14. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) 15. ASSEMBLY MEMBERS' COMMENTS 16. ADJOURNMENT 17. INFORMATIONAL MATERIALS (No Action Required) A. Minutes of Other Meetings 1. Fire Protection Area No. 1 Board Regular Meeting of December 15, 2009. 2. Monashka Bay Service Area Board Regular Meeting of September 23, 2009. 3. Parks and Recreation Committee Regular Meeting of December 22, 2009 and January 12, 2010. 4. Personnel Advisory Board Regular Meeting of September 23, 2009. 5. Service Area No. 1 Board Regular Meeting of June 9, 2009. 6. Solid Waste Advisory Board Regular Meetings of September 2, 2009 and November 4, 2009. B. Reports 1. Kodiak Island Borough School District Board of Education Regular Meeting Summary of January 25, 2010; and Special Meeting Summaries of January 11, 2010 and January 16, 2010. 2. Kodiak Island Borough December 2009. Meeting broadcast live over radio station KMXT 100.1 FM and Cablevision station 12. Citizens' Comments and Public Hearing Numbers: Toll Free (800) 478 -5736 and Local 486 -3231. Page 2 of 2 KODIAK ISLAND BOROUGH Assembly Special Meeting December 29, 2009 A special meeting of the Kodiak Island Borough Assembly was held on Tuesday, December 29, 2009 in the Borough Conference Room of the Kodiak Island Borough Building, 710 Mill Bay Road. The meeting was called to order at 7:30 p.m. Present were Mayor Jerome Selby, Assembly members Jerrol Friend, Dave Kaplan, Chris Lynch, and Louise Stutes. Staff members present were Manager Rick Gifford, Borough Clerk Nova Javier, and Assistant Clerk Jessica Kilborn. FRIEND moved to excuse Assembly members Branson, Jeffrey, and Fulp who were absent due to personal leave. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. CITIZENS' COMMENTS Toby Sullivan addressed the Kodiak Maritime Museum's future development plans. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. Confirmation of Mayoral /Assembly Appointments to Different Boards, Committees, and Commissions. KAPLAN moved to confirm the Mayoral and Assembly appointments to different boards, committees, and commissions as follows: MAYORAL APPOINTMENTS Architectural /Engineering Review Board Cliff Ford and Norm Wooten to the seats to expire 2012. Parks and Recreation Committee Jeff Huntley, Patrick Salstonstall, and Hans Tschersich to the seats to expire 2012. William Bethea the seat to expire 2011. Planning and Zoning Commission Kathleen (Casey) Janz, Dave King, and William Kersch to the seats to expire 2012. Note: William Kersch is for a City Seat. Solid Waste Advisory Board Gary Turk Martin and Nick Szabo to the seats to expire 2012. Sebastian Niziol to the retail business representative seat to expire 2012. Donn Tracy to the seat to expire 2011. ASSEMBLY APPOINTMENTS Board of Equalization Cheryl Boehland to the seat to expire 2012. Personnel Advisory Board Curtis Law to the seat to expire 2012. Kodiak Island Borough Assembly Minutes December 29, 2009 Page 1 Bay View Road Service Area Board Fred Roberts to the seat to expire 2012. Margo Carmichael to the seat to expire 2010. Monashka Bay Road Service Area Board Jamie Godwin to the seat to expire 2010. FRIEND moved to split the question pulling the Architectural /Engineering Review Board appointments from the question. ROLL CALL VOTE ON MOTION TO SPLIT THE QUESTION CARRIED UNANIMOUSLY: Friend, Kaplan, Lynch, and Stutes. ROLL CALL VOTE ON MOTION TO CONFIRM THE MAYORAL AND ASSEMBLY APPOINTMENTS WITH THE EXCEPTION OF THE ARCHITECTURAL /ENGINEERING REVIEW BOARD MEMBERS CARRIED UNANIMOUSLY: Kaplan, Lynch, Stutes, and Friend. STUTES moved to split the question confirming the Mayoral appointments of Cliff Ford and Norm Wooten to the Architectural /Engineering Review Board. ROLL CALL VOTE ON MOTION TO SPLIT THE QUESTION CARRIED UNANIMOUSLY: Lynch, Stutes, Friend, and Kaplan. ROLL CALL VOTE ON MOTION TO CONFIRM THE MAYORAL APPOINTMENT OF MR. CLIFF FORD TO THE ARCHITECTURAL /ENGINEERING REVIEW BOARD FOR A TERM TO EXPIRE DECEMBER 2012 CARRIED UNANIMOUSLY: Stutes, Friend, Kaplan, and Lynch. ROLL CALL VOTE ON MOTION TO CONFIRM THE MAYORAL APPOINTMENT OF MR. NORM WOOTEN TO THE ARCHITECTURAL REVIEW BOARD FOR A TERM TO EXPIRE DECEMBER 2012 FAILED TWO TO TWO: Friend and Stutes (Noes); Kaplan and Lynch (Ayes). B. Contract No. FY2010 -20B Chiniak Contaminated Soil Clean -Up Project. FRIEND moved to authorize the Manager to execute Amendment #B to the existing Term Contract No. FY2010 -20 with Satori Group, Inc. of Anchorage, AK for clean -up and containment of contaminated soils at Chiniak School property for an amount not to exceed $62,500. The teacher's residence at the Chiniak School experienced a rupture in an above ground fuel oil tank causing a fuel oil spill on the premises during the first week of December 2009. Borough staff investigated and determined the estimated quantity spilled required notification to the Department of Environmental Conservation (DEC). Satori Group, Inc. was contacted and they notified DEC. John's Heating removed the old tank and plumbed in a replacement. Due to the continuous expansion of the oil plume, Manager Gifford authorized immediate action in order to contain costs and environmental damage. Satori Group, Inc. mobilized to assess and plan the clean -up effort and provided an estimate to capture the contaminated soil and construct a Kodiak Island Borough Assembly Minutes December 29, 2009 Page 2 temporary containment cell on site totaling $59,367. The proposed amendment to the Term Contract would authorize the work and provide for compensation based on actual time and expenses in accordance with the agreed fee schedule and all requirements contained in the Term Contract. Staff recommended authorizing Satori Group, Inc. to perform work as described in an amount not to exceed $62,500, which included approximately 5% contingency. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Kaplan, Lynch, Stutes, and Friend. ADJOURNMENT KAPLAN moved to adjourn the meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Stutes, Friend, and Kaplan. The meeting adjourned at 7:53 p.m. ATTEST: Nova M. Javier, MMC, Borough Clerk KODIAK ISLAND BOROUGH Jerome M. Selby, Mayor Approved: Kodiak Island Borough Assembly Minutes December 29, 2009 Page 3 KODIAK ISLAND BOROUGH Assembly Regular Meeting January 7, 2010 A regular meeting of the Kodiak Island Borough Assembly was held on Thursday, January 7, 2010, in the Assembly Chambers of the Kodiak Island Borough Building, 710 Mill 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 Pat Branson, Jerrol Friend, Judy Fulp, Sue Jeffrey, Dave Kaplan, and Louise Stutes. Staff members present were Manager Rick Gifford, Finance Director Karl Short, Deputy Clerk Marylynn McFarland, and Assistant Clerk Jessica Kilborn. BRANSON moved to excuse Assembly member Lynch who was absent due to personal leave. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF AGENDA AND CONSENT AGENDA JEFFREY moved to approve the agenda and consent agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF MINUTES A. Regular Meeting Minutes of December 3, 2009 were approved under the consent agenda. AWARDS AND PRESENTATIONS Mayor Selby presented Student of the Month Awards for the month of December 2009 to Chloe Ivanoff, senior at Kodiak High School, and January 2010 to Cierra Robustellini, junior at Port Lions School. Manager Gifford presented the Certificate of Achievement for Excellence in Financial Reporting to Finance Director Karl Short. Manager Gifford presented the Award for Outstanding Achievement in Popular Annual Financial Reporting to Finance Director Karl Short. CITIZENS' COMMENTS Janet Buckingham, Kodiak Island Convention Visitors Bureau (KICVB) Director, provided a quarterly update and presented the 2010 Kodiak Visitors Guide. COMMITTEE REPORTS Assembly member Fulp provided a report on the Kodiak College Council. Kodiak Island Borough Assembly Minutes January 7, 2010 Page 735 Assembly member Jeffrey announced that the Kodiak Fisheries Advisory Committee would meet on Friday, January 8, 2010, at 9 a.m. at the Kodiak College. PUBLIC HEARING None. BOROUGH MANAGER'S REPORT Manager Gifford reported on the following: • Kodiak Island Borough Transportation Task Force met to review proposals from four consulting firms to develop an Island -Wide Transportation Feasibility Study. Staff selected a firm and would begin the negotiation process. • Alaska Waste and staff would finalize negotiations for the Solid Waste Collection Services Contract. A proposed collections system was anticipated to be presented at the work session on January 14, 2010. • President Obama signed a Federal Disaster declaration on December 18, 2009, for the mudslides that occurred in October 2009 which would set in place Federal and State funding to return affected areas to pre- disaster levels. • New Assessor began his employment on January 4, 2010. The Appraiser and two temporary Appraiser Technician positions were being advertised. • The Strategic Plan packet had been distributed for the work session on January 9, 2010. • The draft Borough Attorney Request for Proposal had been provided and would be discussed at the work session on January 14, 2010. MESSAGES FROM THE BOROUGH MAYOR Mayor Selby expressed appreciation to the North Pacific Fishery Management Council for its support of the Borough's position to keep mother ships out of the Central Gulf of Alaska. He wished everyone a happy new year. UNFINISHED BUSINESS None. NEW BUSINESS Contracts None. Resolutions 1. Resolution No. FY2010 -20 Supporting the Ability of Alaskan Communities to Adopt Codes and Ordinances at the Local Level to Require the Installation of Fire Sprinkler Systems in All Newly Constructed One and Two Family Dwellings and Town Homes. BRANSON moved to adopt Resolution No. FY2010 -20. The resolution was requested by Fire Chief Bob Nimes and was supported by the Alaska Fire Chiefs Association and the National Fire Protection Association. It mirrored Alaska Municipal League's (AML) Resolution No. 2010 -04 which was adopted at the AML conference held in Kodiak Island Borough Assembly Minutes January 7, 2010 Page 736 November 2009. Adoption of the resolution would support the ability of Alaskan communities to adopt codes and ordinances to require installation of fire sprinkler systems in new construction. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Fulp, Jeffrey, Kaplan, Stutes, and Branson. 2. Resolution No. FY2010 -21 Adopting a 2010 Kodiak Island Borough Communities State Legislative Capital Improvement Projects Priority List. KAPLAN moved to adopt Resolution No. FY2010 -21. As a regional government, the Kodiak Island Borough represents the communities of the Kodiak Island Archipelago which include the City of Kodiak, City of Akhiok, City of Larsen Bay, City of Old Harbor, City of Ouzinkie, City of Port Lions, and the community of Karluk. In these communities there were improvements and infrastructure that included docks, airports, community utilities, and facilities. Project needs were indentified and prioritized by each community and were forwarded to the Kodiak Island Borough by resolution for inclusion into a 2010 State Legislative Capital Improvement Projects Priority List to be sent to the Governor and State Legislative delegation. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Fulp, Jeffrey, Kaplan, Stutes, Branson, and Friend. Ordinances for Introduction 1. Ordinance No. FY2010 -01A Amending Ordinance No. 2010 -01 Fiscal Year 2010 Budget by Amending Budgets to Account For Various Revenues That are Over Budget, Provide for Additional Expenditures, Budget New Projects, Accept Grants, and Move Funds Between Projects. FRIEND moved to adopt Ordinance No. FY2010 -01A in first reading to advance to public hearing at the next meeting of the Assembly. The ordinance would: • Reduce the budget for real and personal property taxes by $158,000 in the General Fund budget. • Increase State Raw Fish tax by $239,575 in the General Fund Budget. • Move $72,000 from the General Fund to the Building and Grounds Fund to cover the expenses of a failed oil tank at the Chiniak School. • Add $3,648 to the Child Care Assistance department. This was to adjust the budget to the FY10 budget provided by the State of Alaska. • Increase Fund 410, Borough Capital Projects, by $309,366 to account for receipt of the Exxon Claim Settlement check. • Move available balances in some projects in Funds 410 (Borough Capital Projects), 420 (GO Bond Projects), and 430 (State Capital Grants) to other projects in Funds 410,420, and 430. • Set up a new fund called Capital Projects to account for new capital projects. Kodiak Island Borough Assembly Minutes January 7, 2010 Page 737 • Set up a new Fund to account for the KHS Renovation and Addition Project. • Budget $50,000 for the Energy Block Grant. • Accept a $180,000 State of Alaska Homeland Security and Emergency Management grant. • Accept a $240,000 Federal Economic Stimulus Grant. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Jeffrey, Kaplan, Stutes, Branson, Friend, and Fulp. 2. Ordinance No. FY2010 -06 Amending the Kodiak Island Borough Code of Ordinances Title 2 Administration and Personnel, Repealing Chapter 2.135 Arts Council Advisory Committee. JEFFREY moved to adopt Ordinance No. FY2010 -06 in first reading to advance to public hearing at the next meeting of the Assembly. The ordinance repealed Chapter 2.135 Arts Council Advisory Committee from the Kodiak Island Borough Code. At the time the committee was formed, it was established to serve in an advisory capacity to the Mayor in the administration of the Kodiak Arts Council enterprise fund. The fund no longer existed; therefore, the services of the committee were no longer needed. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Kaplan, Stutes, Branson, Friend, Fulp, and Jeffrey. Other Items 1. Assembly Direction to the Treasurer /Finance Director to Publish the 2009 Roll of Real Properties and Delinquent Garbage Liens Subject to Foreclosure. STUTES moved to direct the Treasurer /Finance Director to publish the 2009 Roll of Real Properties and Delinquent Garbage Liens Subject to Foreclosure in a newspaper of general circulation in the Borough. The action was required as directed by KIBC 3.35.170 Publication of the foreclosure list, KIBC 3.35.160 Preparation of the foreclosure list, and KIBC 8.25.065 Service requests, billing and collection. This was the first time that liens were held against garbage collection billing. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Stutes, Branson, Friend, Fulp, Jeffrey, and Kaplan. 2. Declaring a Seat on the Personnel Advisory Board Vacant. BRANSON moved to accept, with regret, the resignation of Ms. Brenda Zawacki from the Personnel Advisory Board for a term to expire December 2011, and direct the Borough Clerk to advertise the vacancy per Borough code. Kodiak Island Borough Assembly Minutes January 7, 2010 Page 738 Ms. Brenda Zawacki submitted a notice of resignation on December 18, 2009, from the Personnel Advisory Board for a term to expire December 2011. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Branson, Friend, Fulp, Jeffrey, Kaplan, and Stutes. 3. Confirmation of the Mayoral Appointment to the Architectural /Engineering Review Board. JEFFREY moved to confirm the Mayoral Appointment of Ray Nordgulen to the Architectural /Engineering Review Board (ARB) for a term to expire December 2012. There were four applications received for two seats to expire December 2012 on the ARB: 1. Scott Arndt 2. Ray Nordgulen 3. Cliff Ford (Assembly confirmed appointment to one of the seats at the Special Meeting of December 29, 2009) 4. Norm Wooten (Assembly failed to confirm appointment to one of the seats at the Special Meeting of December 29, 2009) Mayor Selby explained the reasons for his appointment of Ray Nordgulen. It was hoped that his expertise in large projects and construction projects would be an asset to the Architectural /Engineering Review Board during the upcoming Kodiak High School Remodel project. Assembly member Friend addressed the qualifications of Mr. Arndt and Mr. Nordgulen. ROLL CALL VOTE ON MOTION CARRIED FIVE TO ONE: Friend (No); Fulp, Jeffrey, Kaplan, Stutes, and Branson (Ayes). CITIZENS' COMMENTS None. ASSEMBLY MEMBER COMMENTS Assembly members congratulated all award recipients and wished everyone a happy new year. Assembly member Stutes thanked Mr. Arndt for providing his time and expertise to the ARB during past years and encouraged him to continue participating with ARB on upcoming projects. Assembly member Jeffrey was anticipating the projects that would be completed within the upcoming year and thanked those serving on boards, committees, and commissions. Assembly member Friend advocated utilizing the Exxon Valdez Oil Spill funds for use on projects that would benefit the community. Kodiak Island Borough Assembly Minutes January 7, 2010 Page 739 Assembly member Branson congratulated Mr. and Mrs. Fulp on the celebration of their 40 wedding anniversary and suggested coordinating the Island -Wide Transportation Task Force with the Governor's Transportation Task Force. Assembly member Fulp commended the efforts on the projects being accomplished throughout the community. Announcements Mayor Selby announced that the Borough Assembly would meet Saturday, January 9, 2010, at 9 a.m. at the Kodiak Fisheries Research Center to discuss the Kodiak Island Borough Strategic Plan. The next Assembly work session would be held on Thursday, January 14, 2010, at 7:30 p.m. in the Borough Conference Room. The next regular meeting was scheduled on Thursday, January 21, 2010, at 7:30 p.m. in the Borough Assembly Chambers. The Borough offices would be closed Monday, January 18, 2010, in observance of Martin Luther King Day. The Assembly and City Council would meet in a Joint Work Session on Tuesday, January 19, 2010, at 7:30 p.m. in the Borough Assembly Chambers. ADJOURNMENT BRANSON moved to adjourn the meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Fulp, Jeffrey, Kaplan, Stutes, Branson, and Friend. The meeting adjourned at 8:30 p.m. Nova M. Javier, MMC, Borough Clerk Approved: KODIAK ISLAND BOROUGH ATTEST: Jerome M. Selby, Mayor Kodiak Island Borough Assembly Minutes January 7, 2010 Page 740 KODIAK ISLAND BOROUGH Assembly Regular Meeting January 21, 2010 A regular meeting of the Kodiak Island Borough Assembly was held on Thursday, January 21, 2010 in the Assembly Chambers of the Kodiak Island Borough Building, 710 Mill 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, Jerrol Friend, Judy Fulp, Sue Jeffrey, Dave Kaplan, Chris Lynch, and Louise Stutes. Staff members present were Manager Rick Gifford, Finance Director Karl Short, Clerk Nova Javier, and Deputy Clerk Marylynn McFarland. FRIEND moved to excuse Assembly member Branson who was absent due to personal leave. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF AGENDA JEFFREY moved to approve the agenda as submitted. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF MINUTES None. AWARDS AND PRESENTATIONS Manager Gifford presented a five -year longevity award to Cassandra Juenger, Revenue Accountant in the Finance Department. CITIZENS' COMMENTS Marsha Oswalt, Ron Chase, Nick Szabo, and Donn Tracy addressed concerns regarding the new Solid Waste Collection Services plan. COMMITTEE REPORTS Assembly member Kaplan reported that the Kodiak Island Borough School District had begun its budget process. Assembly member Stutes attended the Southwest Alaska Municipal Conference on January 21, 2010 and reported that SWAMC was looking for someone from the rural communities to be on the Energy Task Force Board. Assembly member Jeffrey reported on the Kodiak Fisheries Advisory Committee Meeting. PUBLIC HEARING A. Ordinance No. FY2010 -01A Amending Ordinance No.FY2010 -01 Fiscal Year 2010 Budget by Amending Budgets to Account For Various Revenues That are Over Budget, Provide for Additional Expenditures, Budget New Projects, Accept Grants, and Move Funds Between Projects Kodiak Island Borough Assembly Minutes January 21, 2010 Page 1 KAPLAN moved to adopt Resolution No. FY2010 -01A. This ordinance: • Reduced the budget for real and personal property taxes by $158,000 in the General Fund budget. • Increased State Raw Fish tax by $239,575 in the General Fund Budget. • Moved $72,000 from the General Fund to the Building and Grounds Fund to cover the expenses of a failed oil tank at the Chiniak School. • Added $3,648 to the Child Care Assistance department. This was to adjust the budget to the FY10 budget provided by the State of Alaska. • Increased Fund 410, Borough Capital Projects, by $309,366 to account for receipt of the Exxon Claim Settlement check. • Moved available balances in some projects in Funds 410 (Borough Capital Projects), 420 (GO Bond Projects), and 430 (State Capital Grants) to other projects in Funds 410,420, and 430. • Set up a new fund called Capital Projects to account for new capital projects. • Set up a new Fund to account for the KHS Renovation and Addition Project. • Budgeted $50,000 for the Energy Block Grant. • Accepted a $225,000 State of Alaska Homeland Security and Emergency Management grant. • Accepted a $240,000 Federal Economic Stimulus Grant. Mayor Selby opened the public hearing. Seeing and hearing none, Mayor Selby closed the public hearing. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Fulp, Jeffrey, Kaplan, Lynch, and Stutes. B. Ordinance No. FY2010 -06 Amending the Kodiak Island Borough Code of Ordinances Title 2 Administration and Personnel, Repealing Chapter 2.135 Arts Council Advisory Committee. STUTES moved to adopt Ordinance No. FY2010 -06. The ordinance repealed Chapter 2.135 Arts Council Advisory Committee from the Kodiak Island Borough Code. At the time the committee was formed, they served in an advisory capacity to the Mayor in the administration of the Kodiak Arts Council enterprise fund. The fund no longer existed; therefore, the services of this committee were no longer needed. Mayor Selby opened the public hearing. Seeing and hearing none, Mayor Selby closed the public hearing. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Fulp, Jeffrey, Kaplan, Lynch, Stutes, and Friend. BOROUGH MANAGER'S REPORT Manager Gifford reported the following: • Lobbyist report from Mark Hickey summarizing the Legislative Session to date. • Alaska Department of Commerce posted population determination of Kodiak Island Borough at 13,860. • Summarized project status report submitted by Engineering /Facilities Department. • Attendance at AMUJIA January 25 and 26, 2010, and SWAMC February 4 and 5, 2010. Kodiak Island Borough Assembly Minutes January 21, 2010 Page 2 MESSAGES FROM THE BOROUGH MAYOR Mayor Selby encouraged the Kodiak community to participate in support programs for the Haiti disaster. He also voiced his appreciation of the community voicing its concerns about the Solid Waste Collection Services contract in order for staff to address. UNFINISHED BUSINESS None. NEW BUSINESS Contracts A. Contract No. FY2010 -27 Island -Wide Transportation Feasibility Study. JEFFREY moved to authorize the Manager to execute Contract No. FY2010 -27 with McDowell Group of Juneau, Alaska in an amount not to exceed $199,020. The project was conceived at the Kodiak Archipelago Rural Regional Leadership Forum. The concept was to study the feasibility of a local ferry service using smaller vessels than those employed by the Alaska Marine Highway System (AMHS) to connect the outlying communities with the Port of Kodiak. The study included an assessment of existing transportation modes serving the communities and a study of Borough -wide economic benefits that could be expected with improved access to the villages. A Denali Commission grant in the amount of $125,000 and an Alaska Department of Transportation and Public Facilities grant in the amount of $100,000 was awarded to Kodiak Island Borough for the project. Staff drafted an RFP to solicit a consultant to perform the study and provide findings in a report. Proposals were received from McDowell Group, Northern Economics, HDR Alaska, Inc., and Hornblower Marine Services, Inc. The Transportation Task Force evaluated the four proposals and selected McDowell Group. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Jeffrey, Kaplan, Lynch, Stutes, Friend, and Fulp. Resolutions 1. Resolution No. FY2010 -22 Supporting the Senior Citizens of Kodiak, Inc. Legislative Capital Requests. FRIEND moved to adopt Resolution No. FY2010 -22. This resolution was requested by Assembly member Branson to present to the legislature. The resolution supported Senior Citizens of Kodiak, Inc. 2010 Legislative Capital Request to replace the facility's fire sprinkler system, lap cedar siding, and purchase MySeniorCenter program in order to maintain a safe and active environment for the participants at the Senior Center. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Kaplan, Lynch, Stutes, Friend, Fulp, and Jeffrey. 2. Resolution No. FY2010 -23 Adopting the Kodiak Island Borough Strategic Plan for the Years 2010 -2014. STUTES moved to adopt Resolution No. FY2010 -23. Kodiak Island Borough Assembly Minutes January 21, 2010 Page 3 The Assembly held a strategic planning session on January 9, 2010 and the session culminated in the preparation of the Strategic Plan for the Years 2010 — 2014. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Stutes, Friend, Fulp, Jeffrey, and Kaplan. 3. Resolution No. FY2010 -24 Supporting the Candidacy of Mr. Donald Fox to a Seat on the Alaska Department of Fish and Game (ADF &G) Board of Game. FRIEND moved to adopt Resolution No. FY2010 -24. Mr. Donald Fox requested support from the Borough Assembly in his candidacy for a seat on the Alaska Department of Fish and Game Board of Game. This was a seat appointed by the Governor and approved through the State legislature. There were two impending seats that would expire as of March 2010. Mr. Fox submitted a resume that outlined his Alaska residency, hunting history, and experience serving with local and state -wide boards. At the January 14, 2010 work session, it was the consensus of the Borough Assembly to submit a Resolution in support of Mr. Fox's appointment to the Board. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Stutes, Friend, Fulp, Jeffrey, Kaplan, and Lynch. Ordinances for Introduction None. Other Items None. CITIZENS' COMMENTS Mel Stephens reported that the audio portion of the meeting was inaudible. He also questioned the Assembly on salary approved for the new Assessor. ASSEMBLY MEMBER COMMENTS Assembly member Stutes appreciated the public comments regarding the proposed Solid Waste Collection Services contract. She also requested the differential costs between curb side and transfer stations from Manager Gifford. Assembly member Friend responded to Mel Stephens concerns regarding the Assessor's salary. He reported that the Civil Air Patrol would like to pick up waste appliances and not be charged at the landfill. Manager Gifford recommended that they write a letter to the Manager to be forwarded to the Assembly for its approval requesting allocation for those funds. Assembly member Friend also encouraged the Parks and Recreation Committee in its maintenance efforts at Mill Bay Beach. Assembly member Fulp stressed the importance of addressing issues of citizens before signing the Solid Waste Collection Services contract. She also expressed her concern about government spending and encouraged the Borough and its citizens to be responsible. She also addressed the Haiti disaster recommending support of different organizations. Assembly member Jeffrey expressed appreciation of the public comments regarding the Solid Waste Collection Services contract. Kodiak Island Borough Assembly Minutes January 21, 2010 Page 4 Assembly member Kaplan reported on his representation of the Borough at the Kodiak Island Borough School District (KIBSD) budget meetings and commended the individual schools on their programs. Assembly member Lynch congratulated Cassandra Juenger on her longevity with the Borough, and outlined the Solid Waste process over the last three years, encouraging the public to be part of the solution, to be proactive, and to give the plan a chance. Announcements Mayor Selby announced that the Borough Assembly would hold its Annual Board Members, Commissioners, Committee Members, and Volunteers Reception on Friday, January 22, 2010, 7 to 9 p.m., at the Kodiak Fisheries Research Center. All board members, commissioners, committee members, volunteers, and their guests were invited to attend. The Assembly work session scheduled for Thursday, January 28, 2010, and the regular meeting scheduled for Thursday, February 4, 2010, were cancelled. The next Assembly work session were scheduled to be held on Thursday, February 11, 2010, at 7:30 p.m. in the Borough Conference Room. The next regular meeting were scheduled on Thursday, February 18, 2010, at 7:30 p.m. in the Borough Assembly Chambers. ADJOURNMENT JEFFREY moved to adjourn the meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Fulp, Jeffrey, Kaplan, Lynch, and Stutes. The meeting adjourned at 8:45 p.m. Nova M. Javier, MMC, Borough Clerk Approved: KODIAK ISLAND BOROUGH ATTEST: Jerome M. Selby, Mayor Kodiak Island Borough Assembly Minutes January 21, 2010 Page 5 TITLE: Contract No. FY2010 -30 Solid Waste Collection Contract. SUMMARY: In May 2009, the KIB issued a request for proposal (RFP) for solid waste and recycling collection services. This RFP was developed based on the Solid Waste Management Plan (SWMP) which was approved by the Assembly on August 21, 2008. Two proposals were received. KIB staff selected the proposal submitted by Alaska Pacific Environmental Services, LLC dba Alaska Waste. Staff determined that the Alaska Waste proposal provided the most responsive approach to reach KIB's solid waste goals as identified in the Solid Waste Management Plan and the KIB Strategic Plan. Alaska Waste committed to adjust their service delivery as needed to accommodate future progressive steps toward KIB's solid waste goals and needs. Staff has negotiated the details of the contract with Alaska Waste and recommends approval. FISCAL NOTES: Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.A.1 RECOMMENDED MOTION: Move to authorize the manager to execute Contract No. FY2010 -30 with Alaska Pacific Environmental Services, LLC of Anchorage, AK for the Solid Waste Collection Services. FEBRUARY 2010 EXCLUSIVE SERVICE CONTRACT FOR RESIDENTIAL AND COMMERCIAL REFUSE COLLECTION AND TRANSPORTATION To KIB LANDFILL BETWEEN KODIAK ISLAND BOROUGH AND ALASKA PACIFIC ENVIRONMENTAL SERVICE, LLC COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK RECITALS 8 ARTICLE 1 EXCLUSIVE CONTRACT .......................................... ..............................8 ARTICLE 2 REPRESENTATIONS AND WARRANTIES ...........••••••••••••••••••••••.....•••••• 9 2.01 Of Contractor ...................................................................... ............................... 9 2.02 Of HIB .................................................................................. ............................... 9 ARTICLE 3 TERM OF CONTRACT ............................................. ............................... 9 3.01 Term 9 3.02 TABLE OF CONTENTS Survival of Certain Provisions .......................................... ............................... 9 3.03 Contractor's Obligations Upon Expiration or Termination.......................... 10 3.04 New Contract ...................................................................... .............................10 ARTICLE 4 REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL••••••••••••• ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 10............................. .............................10 4•01 Scope of Services and Specifications .................................. .............................10 ARTICLE 5 FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING ................................................ .............................10 5.01 Right of First Proposal ...................................................... .............................10 ARTICLE 6 DROP BOX COLLECTION AND TRANSPORTATION .........................10 6.01 Scope of Contract Services and Specifications ........................................... 10 ARTICLE 7 GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS 1 0 7.01 Scope of Contract Services and Specifications ........................................... 11 ARTICLE 8 REFUSE DISPOSAL ................................................. .............................11 8.01 Scope of Contract Services and Specifications ........................................... 11 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 9 MISCELLANEOUS PERFORMANCE OBLIGATIONS.......................... 11 9.01 9.02 Compliance aw ....................................................... ............................... 11 Personnel............................................................................ .............................12 9.03 Responsiveness to KIB ...... ARTICLE 10 RECORDS AND REPORTING •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 13 ........13 10 •01 Records ............................................................................... .............................13 10•02 Reporting ............................................................................ .............................14 10•03 Financial Records and Reports ........................................ .............................14 ARTICLE 11 INDEMNITIES, INSURANCE, LETTER OF CREDIT .............................15 11•01 Insurance ............................................................................ .............................15 11•02 Contractor Indemnity, Defense and Release •••••••••••••••••••••••••••••••••••••••••••••••• 18 11•03 Letter of Credit ................................................................... .............................19 11•04 Guaranty Agreement .......................................................... .............................19 11.05 Assurance of Performance ............................................. ............................... 20 ARTICLE 12 CHANGE IN SCOPE OF SERVICE ...... 12.01 Change in Performance Obligations .... 13.01 Customer Service Fee .... • • • • • ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 12 • • • • • • • • • • • • • • • • • • . • . . . . . . . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . • . COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK • . • . • . • . • . • . • . • . • . • . 12•02 Proposal .............................................................................. .............................20 12•03 Independent Expert .......................................................... ............................... 22 ARTICLE 13 CONTRACTOR SERVICE FEE, CUSTOMER SPECIAL SERVICE SURCHARGES .............................................................................. ............................... 23 ••••••••••••••••••••••••••••••••••••••••••••••••• ••••••• 20 ••••••• 20 ••••••• 23 13 .02 Inclusiveness .................................................................... ............................... 23 13.03 Adjustment of Contractor Service F •••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 24 ARTICLE 14 BREACHES, DEFAULTS AND REMEDIES.......................................... 27 14.01 Certain Breaches; Liquidated Damages and Specific Compensatory Damages.......... . ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 27 14•02 Defaults ............................................................................... .............................30 14•03 Breaches and Defaults Excused ..................................... ............................... 33 14.04 Remedies ............................................................................ .............................34 14•05 Additional Compensatory Damages ............................... ............................... 35 14.06 Waivers ............................................................................. ............................... 36 14•07 Jurisdiction; Venue, Costs ................................................ .............................36 14.08 Enforcement Costs .......................................................... ............................... 36 14•09 KIB Right to Perform ........................................................ ............................... 36 ARTICLE 15 SUSPENSION OR TERMINATION ......................... ............................... 39 15•01 KIB Right to Suspend or Terminate ................................ ............................... 39 15•02 Criminal Activity ................................................................. .............................40 ARTICLE 16 TRANSFER OF AGREEMENT...... •••••••••••••••••••••••••••••••••••••••••••••••••••••••• 41 16 •01 Transfer ............................................................................... .............................41 ARTICLE 17 THE PARTIES ........................................................... .............................42 17•01 Contractor Is Independent C •••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 42 17•02 Parties in Interest ................................................................. .............................43 17.03 Binding on Successors ................................................... ............................... 43 17.04 Further Assurances ......................................................... ............................... 43 17.05 Actions of KIB in Its Governmental C•••••••••••••••••••••••••••••••••• 43 17.06 Contractor's Obligations Performed at Its Sole Expense............................ 43 17.07 Parties Representatives .................................................. ............................... 43 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 17.08 Due Diligence .... 17.09 No Use of KIB Name .... 17•10 Subcontractors ................................................................... .............................44 ARTICLE 18 AMENDMENTS ......................................................... .............................44 18.01 Amendments .... ARTICLE 19 NOTICES, CONSENTS, APPROVALS, ETC...... 19.01 Notices, etc..... 19•01 Writing Requirements ........................................................ .............................45 19.03 Exercise of Options .... 20.01 20.02 20.03 21.04 20.05 20.06 20.07 Governing Law.... •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 44 • ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 44 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 44 ........................................................... ............................... • • • • • • • • • • 21.01 Execution in Counterparts .... • • • • • • • • • • • • • • • • ARTICLE 21 EXECUTION OF CONTRACT ...... • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ATTACHMENT 2.01 CONTRACTOR'S REPRESENTATIONS AND • • • • • • • • • • • • • • • • • • • • COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK • • • • • • • • • • • • • • • • • • • • •••••••••••••••••••••••••••••••••••••••••••••••••• ................................... ............................... ••••••• 45 ••••••• 45 ••••••• 46 ARTICLE 20 DEFINITIONS AND INTERPRETATION OF CONTRACT ..................... 46 Definitions ......................................................................... ............................... 46 Interpretation of Contract ................................................ ............................... 46 Integration ......................................................................... ............................... 47 •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 47 Severability ....................................................................... ............................... 47 Interpretation.................................................................... ............................... 48 NewContract ...................................................................... .............................48 ••••••• 48 ••••••• 48 21•02 Authority to Execute ........................................................ ............................... 49 WARRANTIES ................................................................................... ............................... 50 ATTACHMENT 2.02 KIB'S REPRESENTATIONS AND WARRANTIES ..................... 51 ATTACHMENT 4REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL 4 -3.03 Obligations Upon Termination or Expiration ................. ............................... 52 4 -4•01 Automated Refuse Collection in Carts ........................... ............................... 52 4 -4.02 Collection in Dumpsters or Compactors .... 4 -4.09 Mandatory Service Notice .... 7 -7.08 Containers .... • • • • • • • • • • • • • • • • • • 5 -5.01 KIB Recyclables Program Specifications .... 6 -6.02 Weekly Residential Roll -off Service .... 7 -7.02 Unpermitted Waste Screening ........... 7 -7.04 Transition and Customer Education .... • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 6 -6.01 On -call Temporary Dumpster and Roll -off Service .... • • • • 7 -7.09 Customer Service Subscription and Bill of Rights .... • • • • • • • • • • • • • • 4 -4•03 On -call, Monthly Bulky Items C ••••••••••••••••••••••••••••••••••••••••••••••••••••••• 54 4 -4•04 Emergency Services ........................................................ ............................... 55 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ATTACHMENT 5FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PF •••••••••••••••••••••••••••••••••••••••••• ATTACHMENT 6 . ...........................DROP BOX COLLECTION AND TRANSPORTATION56 ••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••••••••••••• ATTACHMENT 7GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS 7 -7•01 Missed Pickups and Other Complaints .......................... ............................... 57 . . . 58 ••••••••••••••••••••••••••••••••••••••••••••••••••• ... ... 7 -7•03 Contract Service Exceptions ........................................... ............................... 58 • • • • • • • • • • • • • • • • • • • • • • • • • • • .•••••• 53 .•••••• 55 .•••••• 55 .•••••• 56 .•••••• 56 .•••••• 59 7 -7•05 Other Special Customer Services ................................... ............................... 59 7 -7•06 Contract Service Assets .................................................. ............................... 60 7 -7.07 Customer Billing; Bill & KIB Fee Collection ................... ............................... 60 ............................................................. ............................... ••••••••••••••••••••••••••• 7 -14.01 Liquidated Damages ................................................ .............................62 ATTACHMENT 8 ........................... ............................... REFUSE DISPOSAL ATTACHMENT64 COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK .•••••• 61 .•••••• 62 8 -1•01 Transportation to KIB Landfill ......................................... ............................... 64 8 -1.02 Limited Disposal Defense and Indemnification ............. ............................... 64 ATTACHMENT 13.01 ................. .....................CONTRACTOR SERVICE FEE SCHEDULE66 ATTACHMENT 20.01 ...... . .. ................................................... ............................... DEFINITIONS68 APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION ...... COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ••••• .•••••• 86 CONVENTIONS USED IN THIS CONTRACT In this Agreement words have the meanings defined in Attachment 20.01 appended as the last attachment to this Agreement. "Day" means a calendar day. "Including ", "Include" or variations thereof means "including without limitation, "including, but not limited to" and "including, at a minimum ". "Promptly" or "Prompt" means as soon as practicable, but not more than two days. "Such as" means "for example ". RECITALS: The Parties refer to the following facts, using terms defined in Attachment 20.01. KIB is responsible for protection of public health and the environment in its jurisdiction. Historically, KIB has contracted for residential service in dumpsters, which has created a nuisance and appearance problem with litter. This Contract provides service to residential (and some commercial) customers in wheeled carts, as a measure to minimize nuisance and reduce litter. KIB owns its landfill and may be liable for pollution caused by materials discarded in the landfill. This Contract helps KIB minimize its potential pollution liabilities through performance specifications, such as unpermitted waste screening protocols. KIB has provided customer billing and bill collection services for solid waste services. This Contract reduces KIB 's administrative cost through performance specifications that require the contractor to provide those services. KIB's existing contract for solid waste collection services is expiring, and KIB conducted the competitive procurement pursuant to which this Contract was awarded in order to secure the most comprehensive services for the best price. By entering into this Contract, KIB establishes performance standards, customers' rights and program enforcement flexibility. NOW, THEREFORE, in consideration of the mutual obligations of the Parties under this Contract and the conditions under this Contract, KIB and Contractor agree as follows: ARTICLE 1: EXCLUSIVE CONTRACT 1.01 Exclusive Right and Privilege to Provide Contract Services. KIB grants Contractor the exclusive right and privilege together with the obligation to provide Contract Service in the Contract Service Area conditioned on Contractor being at all times ready, willing, and able to COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK meet each and every Performance Obligation. ARTICLE 2: REPRESENTATIONS AND WARRANTIES 2.01 Of Contractor. Contractor makes the representations and warranties in Attachment 2.01 on the date it executes this Contract. 2.02 Of KIB. KIB makes the representations and warranties in Attachment 2.02 on the date it executes this Contract. ARTICLE 3: TERM OF CONTRACT 3.01 Term. a. Contract Commencement Date and expiration of Term. The Term commences on the Contract Commencement Date, March 1, 2010 and expires at the end of 7 years after the Contract Commencement Date, unless extended. b. Collection Commencement Date. The Collection Commencement Date is July 1, 2010. c. Short -term extension. On or before 30 days prior to the expiration of the Term whether original under subsection a) or extended under subsection c), KIB, in its sole discretion, may extend the Term for up to six months. d. KIB options to extend Term. On or before 60 days prior to the following dates: (1) expiration of the original Term under subsection a), (2) the extended Term under subsection b), or (3) a portion of the maximum allowable extended term under this subsection, KIB, in its sole discretion, may incrementally extend the Term for up to 3 years in any combination of the following number of years (such as 1 +2, 1 +1 +1; 2 +1). 3.02 Survival of Certain Provisions. The following provisions of this Contract will survive the Term: (1) all acknowledgements, representations and warranties of the Parties in this Contract, (2) all Indemnities, (3) Contractor Payment Obligations or claims therefore, (4) all Contractor's Performance Obligations and KIB's rights with respect to Records, including giving KIB a copy of Records, or allowing KIB to copy, inspect and audit Records, including: • certificates of Insurance or other evidence of Insurance coverage (such as endorsements extending coverage of claims made insurance policies), and • Contract Service Asset Inventory and Contract Service Asset Documentation (for example, with respect to Refuse Carts that KIB has the right to acquire). (5) all Contractor's Performance Obligations and KIB's rights with respect to Reports; including submitting final Reports, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (6) providing endorsements extending coverage of claims made insurance policies, if KIB waives the claims made requirement and allows claims made insurance policies, (7) any other provision that expressly states that it survives the Termination Date (such transfer of Cart ownership to KIB), and (8) any right of either Party vested and any obligation of either Parties accrued before the Termination Date. After the Termination Date, Contractor has no other Performance Obligations or rights under this Contract. 3.03 Contractor's Obligations Upon Expiration or Termination. OBLIGATIONS IN THIS SECTION SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. If Contractor is not awarded an agreement to continue to provide MSW Management Services substantially similar to Contract Services after the expiration or termination of this Contract, prior to and after that expiration or termination, Contractor will cooperate fully with KIB and the succeeding contractor(s), licensee(s), permittee(s) or other Person(s) providing MSW Management Services to assure a smooth, efficient, orderly, timely and effective transition of and delivery of MSW Management Services to Contractor's former Customers. 3.04 New Contract. This Contract is a new obligation between the Parties and is a novation, substitution and replacement for any contract or agreement between the Parties entered into before the Contract Commencement Date with respect to Contract Services. ARTICLE 4: REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL 4.01 Scope of Services and Specifications. Beginning on the Contract Commencement Date (or Collection Commencement Date, if specified), Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 4. ARTICLE 5: FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING 5.01 Right of First Proposal. If KIB intends to implement a recycling program, it will first solicit a proposal from Contractor under Attachment 5. ARTICLE 6: DROP BOX COLLECTION AND TRANSPORTATION 6.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 6. ARTICLE 7: GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 7.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 7. ARTICLE 8: REFUSE DISPOSAL 8.01 Scope of Contract Services and Specifications. Beginning on the Contract Commencement Date, Contractor will provide Contract Service and satisfy Performance Obligations in Attachment 8. ARTICLE 9: MISCELLANEOUS PERFORMANCE OBLIGATIONS 9.01 Compliance with Law. a. Compliance. Contractor will comply with all Applicable Laws, including securing and maintaining all Permits. No Performance Obligation may be construed to relieve Contractor of any obligations imposed by Applicable Law. If a Permit issued by KIB remains in effect after the expiration or termination of this Contract, Contractor nevertheless may not operate within KIB for collection of Solid Waste formerly collected under this Contract. THIS PROHIBITION WILL SURVIVE THE TERMINATION OF THIS CONTRACT and KIB may seek specific enforcement of this prohibition under Section 14.04. Promptly upon KIB request, Contractor will give KIB copies of Permits and documentation evidencing that Contractor is in compliance with its Permits. b. References. References in this Contract to particular provisions or requirements of Applicable Law may not be construed to limit Contractor's obligation to comply with all provisions of Applicable Law. Those references are intended to facilitate Contractor's satisfaction of its Performance Obligations and KIB's administration and specific enforcement of this Contract. Those references may not be construed to constitute lack of Contractor obligation to comply with other provisions or requirements of Applicable Law that are not specifically referred to or cited in this Contract. If any provision of this Contract is more stringent than Applicable Law, Contractor will comply with that provision. c. Fines and penalties. Contractor is solely liable for all fines and penalties that are imposed on Contractor or due to Contractor's actions, including fines and penalties that are the result of Contractor's Violation of Applicable Law (including Permits). Contractor will not seek reimbursement from KIB or any Customer for any fines or penalties. d. Contractual Obligations. Applicable Law is incorporated in this Contract by reference as if set forth fully in this Contract as contractual Performance Obligations of Contractor to KIB. If any Applicable Law is inconsistent with this Contract, the more stringent will apply. 1. Breaches. In addition to or in lieu of prosecuting violations of the KIB Code as misdemeanors, infractions, or other manner provided under the KIB Code, KIB may enforce Contractor's obligations under Applicable Law (including the KIB Code) in the same manner as it may enforce Contractor's other contractual obligations under this Contract (including specific COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK performance and as Breaches subject to cure under Section 14.01) whether or not noncompliance with those provisions of Applicable Law has become a Violation. Neither prosecution of Contractor for noncompliance with Applicable Law or enforcement of Applicable Law is a condition precedent to enforcing those Performance Obligations. In determining whether or not Contractor is in noncompliance with those provisions, the standard of proof applicable to breach of contract will apply. KIB has no obligation to enforce any Applicable Law. 2. Violation. Violation of Applicable Law is a Default subject to contest under Section 14.02. e. KIB's Protection of Public Safety, Health, and Welfare. Contractor acknowledges that KIB is authorized to make all necessary and reasonable rules and regulations regarding all aspects of MSW Management Services to protect the public's health, safety, and welfare. No provision in this Contract may be deemed to limit KIB's police power to take any action that KIB deems necessary or appropriate in its sole discretion to protect the public's safety, health, and welfare. f. Compliance with KIB Code. Contractor must comply with the KIB Code, subject to possible adjustments in Contractor Service Fee in the event of Changes in Law. Contractor warrants and represents that it is fully acquainted with the provisions of KIB Code. Contractor must pay Liquidated Damages with respect to non - compliance with specified provisions of the KIB Code, including failure to remedy any Violation of KIB Code within five days of the date of notice of Violation, and in the event of conviction of a Violation. 9.02 Personnel. a. Identification, Appearance, Conduct. Contractor will train and require each of its personnel to: (1) present a neat, tidy and orderly appearance, (uniforms and safety vests required), (2) conduct his or her self in a courteous manner, (3) refrain from using loud or profane language, (4) perform Collection as quietly as possible. b. No Gratuities. Contractor will not permit its personnel to demand or solicit, directly or indirectly, any additional compensation or gratuity from any Customer or member of the public. c. Compliance with OSHA. Receipt of a citation or failure -to -abate notice from the State Division of Occupational Safety and Health or other Regulatory Authority is a Breach. 9.03 Responsiveness to KIB. a. Phone calls. Contractor will return telephone calls from KIB to the individual who made that call no later than the next KIB Business Day. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK b. Meetings. Within one week of oral or written direction by KIB, Contractor will meet with KIB during KIB Office Hours at the offices directed by KIB. c. E- mails. Contractor will respond to all e -mails from KIB within 48 hours of receipt (except on weekends and Holidays). d. Written correspondence. Contractor will respond to written correspondence from KIB within one week of receipt or other time specified by KIB. ARTICLE 10: RECORDS AND REPORTING Contractor acknowledges KIB's right to review Records and receive reports, for reasons including: (1) enforcing Customers' rights; (2) evaluating Contractor's performance under and in compliance with this Contract; (3) exercising KIB's rights to perform, or cause a third Person to perform; Contractor's Performance Obligations in certain events, such as Defaults and Uncontrollable Circumstances; and (4) determining and corroborating the amount of any Contractor Payment Obligation. 10.01 Records. a. Maintenance. Contractor will keep accurate and complete Records. b. Preservation and Retention. Unless otherwise directed by KIB, Contractor will preserve and retain Records (other than Refuse Disposal Records or Delivery Data), such as Customer billing Records, for the following periods of time: (1) until at least 2 years after the Termination Date, or (2) any longer period required by Applicable Law. c. KIB Inspection and Audit. 1. Location. (i) KIB Offices. Upon 3 Service Days advance telephonic or written request by KIB, Contractor will use Reasonable Business Efforts to provide copies of Records to KIB and its designees for inspection, review or audit at KIB's offices. For example, Contractor might email or physically mail documents from a site outside KIB. (ii) Contractor Office or Service office within KIB. If Contractor cannot provide KIB with copies of Records within the notice period provided under subsection c.1.(i) using Reasonable Business Efforts, Contractor will make those Records available to KIB or its designees for inspection, review or audit at Contractor Office (or if Contractor's Office is not located within 25 miles of KIB's administrative offices, at a location within KIB) during Contractor Office Hours. COLLECTION SERVICES CONTRACT 1 Island Borough, AK 2. Scope of inspection or audit: KIB may do any or all of the following: (i) inspect and review Records at any time following notice under subsection c.1.(i), or (ii) audit Records once each Contract Year, including verification of any of the following: (iii) Customer Special Service Surcharges that Contractor charged to and collected from Customers, (iv) any Contract Fees, (v) Solid Waste tonnage Collected, Processed, Diverted or Disposed, (vi) Collection Customer complaint logs, and (vii) other Records that confirm compliance with Performance Obligations. Promptly upon request, Contractor will provide KIB or its designees with any additional information (such as primary records supporting reports) relevant to this Contract. 10.02 Reporting. a. Annual. Contractor will submit a complete Annual Report to KIB no later than 45 days after the end of the Contract Year (or at direction of KIB, Calendar Year), for the preceding Contract Year (or Calendar Year). b. Additional Information. Promptly upon KIB request, Contractor will prepare interim Reports more frequently than annually and incorporate additional information into Reports. 10.03 Financial Records and Reports. a. Maintenance of Records. 1. Content. Contractor will maintain in Contractor Office accurate and complete financial Records of the following: (i) Customer receipts, (ii) payments to KIB (including Contractor Payment Obligations, such as any Contract Fee), (iii) costs and expenses associated with satisfying Performance Obligations, whether by Contractor or an Affiliate. Contractor may maintain financial Records associated with Goods or Services provided by an Affiliate in the office of the Affiliate but will provide KIB with a copy of those Records within 10 days of KIB request. 2. Form. Contractor will maintain its financial Records on an accrual basis and in accordance with Generally Accepted Accounting Principles showing the results of Contractor's operations under this Contract separately from other operations under other contracts or in other locations, as if Contractor were an independent entity providing service only to KIB. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ARTICLE 11: INDEMNITIES, INSURANCE, LETTER OF CREDIT 11.01 Insurance. a. Coverage Requirements. Without limiting its Indemnities, Contractor will secure and maintain insurance coverage meeting the requirements in this Section. KIB may require Contractor to secure and maintain larger amounts or types of coverage if it compensates Contractor the Direct Costs of the additional premium for that coverage under Article 12. Contractor may use a combination of primary and excess insurance coverage to satisfy these requirements. KIB may reduce insurance requirements if it determines that the reduction is in KIB's best interest. Each liability policy must provide contractual liability coverage for Contractor's Indemnities, including any necessary endorsement, schedule or other documentation. 1. General Liability Insurance. Written on ISO policy form CG 00 01 (occurrence) or its equivalent (and not CG 00 02 claims made) with limits of not less than the following: General Aggregate: $4 million Products /Completion Operations Aggregate: $4 million Personal and Advertising Injury: $1 million Each Occurrence: $2 million 2. Liability coverage for pollution conditions resulting from transported cargo. With a limit of not less than $2 million per occurrence covering loss (including cleanup costs) that the Contractor becomes legally obligated to pay as a result of claims for bodily injury, property damage, and cleanup costs (including expenses required by environmental laws or incurred by federal, state, KIB or third parties) resulting from pollution conditions caused by transported cargo (including waste). For the purpose of this subsection, "pollution conditions" includes the dispersal, discharge, release, or escape of any solid, liquid, gaseous or thermal irritant or contaminant (such as smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, medical waste, and waste materials) into or upon land, any structure on land, the atmosphere, or any watercourse or body of water (including groundwater), provided the conditions are not naturally present in the environment in the amounts or concentrations discovered. Contractor's general liability policy may be endorsed to provide for this pollution liability coverage. 3. Automobile Liability Coverage. Insurance meeting the following requirements: (i) Written on ISO policy forms CA 00 12 or CA 00 20 (or their equivalent) with a limit of liability not less than $2 million for each accident, (ii) endorsed to delete the pollution and /or the asbestos exclusion and include pollution liability (using form CA 99 48 or its equivalent) for accidental spills and discharges while transporting and /or processing materials, and (iii) covering all Vehicles that drive on public roads. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK If Contractor is subject to federal regulations, Contractor also will maintain any other coverage necessary to satisfy state or federal financial responsibility requirements. 4. Workers' Compensation and Employers' Liability. Insurance providing the following: (i) Workers' compensation benefits required by Applicable Law (including the State Labor Code or by any other state labor law), and for which Contractor is responsible, and (ii) Employers' Liability coverage with limits of not less than the following: Each accident: Disease - policy limit: Disease -each employee: $1 million $1 million $1 million b. Insurer qualifications. Contractor will secure insurance provided by an insurer meeting the following qualifications: (1) is acceptable to KIB, (2) is an admitted company in State, (3) has a size category of VII or larger by A.M. Best Company, Inc., and (4) has a rating of A or better by A.M. Best Company, Inc. c. Insurance Coverage Requirements for Subcontractors. Contractor will insure each Subcontractor performing Contract Services or transportation of Solid Waste by providing evidence that either: (1) Contractor is maintaining insurance required by this Section covering the activities of the Subcontractor, or (2) the Subcontractor is maintaining that insurance itself. d. Evidence of Coverage. Contractor will provide COIs, endorsements, schedules and other evidence of insurance coverage requested by and acceptable to at KIB at the following times: (1) on or before the Contract Commencement Date, (2) with submission of each Annual Report, (3) promptly upon renewal of policies, and (4) within 10 days of KIB's request. i. Certificates of Insurance. Contractor will provide certificates (or other evidence of coverage) containing at a minimum, the following information with respect to Contractor and any Subcontractor: (a) Contract name: Explicitly identifying this Contract (for example, UNDER DESCRIPTION OF OPERATIONS), and if necessary to secure contractual liability coverage as an "insured contract" or otherwise, including a schedule or endorsement that specifically identifies this Contract; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (b) Types, policy numbers, policy effective /expiration dates and limits: Explicitly reference each type and corresponding limit of coverage required under this Contract, together with the following: • policy numbers, • effective /expiration dates, and • identification of each required ISO policy form or confirmation of its equivalency to ISO policy forms required under this Contract (such as "auto liability ISO form CA 00 12 "). Where this Contract does not require a specific ISO policy form, the certificate of insurance must specifically reference the required type of coverage (such as "pollution liability" under TYPE OF INSURANCE — OTHER) together with a summary description of its coverage (such as "pollution conditions caused by transported cargo" under SPECIAL PROVISIONS); (c) 30 days' cancellation notice: Containing the express condition that KIB must be given written notice by mail at least 30 days in advance of cancellation for all policies evidenced on the certificate of insurance. Endorsements cannot contain mere "best effort" modifiers or relieve the insurer from its responsibility to give that notice and the CANCELLATION information on the certificate of insurance must delete language such as "failure to do so shall impose no obligation or liability of any kind upon the insurer, its agents or representatives ". (d) Deductibles and self- insured retentions: Identifying any deductible and self- insured retention. Upon KIB request, Contractor will reduce any self - insured retention as it applies to KIB or provide a letter of credit, certificate of deposit or other financial assurance acceptable to KIB guaranteeing payment of all retained losses and related costs and expenses related to investigations, claims administrations, and legal defense. The letter of credit or certificate of deposit must be provided by a bank satisfactory to KIB; and (e) Claims made: If KIB waives the prohibition on procuring claims made policies and insurance coverage is written on a claims -made form, then evidence that the "retro date" is before the Contract Commencement Date. Contractor must maintain that coverage for at least 5 years after the Termination Date (or longer as required under this Contract). Promptly upon KIB request, Contractor must provide KIB with evidence of that coverage. THIS PROVISION SURVIVES THE TERMINATION OF THIS CONTRACT. ii. Endorsements: Contractor must provide copies of the following endorsements or other documentation with respect to Contractor and any Subcontractor satisfactory to KIB: (a) additional insured endorsement to each liability policy, explicitly adding KIB and its "officers, agents, and employees" as additional insured; (b) waiver of subrogation; (c) insurance is primary and not contributing with any other insurance or self - insurance programs maintained by KIB and its officers and employees; (d) excluding any "insured v. insured" clause in a liability policy with respect to KIB as an additional insured; and COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (e) providing dedicated limits under a liability policy in favor of KIB as an additional insured. iii. Schedules. Contractor must provide schedules or other evidence that liability policies of Contractor and any Subcontractor provide contractual liability coverage for Indemnities, such as listing this Contract as an "insured contract ". iv. Signature verification. At KIB's request, Contractor must provide documentation verifying that the individual signing or countersigning the certificates, policies, endorsements, or other evidence of coverage of Contractor and any Subcontractor is authorized to do so and identifies his or her company affiliation and title. KIB may require complete, certified copies of Contractor's insurance policies at any time. e. Notice of claims. If any Person makes a claim against Contractor or any Subcontractor exceeding the amount of any deductibles or self - insured retentions, Contractor will promptly notify KIB of the claim. f. Contractor accounting. Contractor will institute a comprehensive accounting system satisfactory to KIB to monitor all insurance requirements under this Contract, including those of each of its Subcontractors. g. Contractor compliance. Contractor will comply with all requirements of its insurance policies and insurers. 11.02 Contractor Indemnity, Defense and Release. a. General. To the extent allowable under Applicable Law, Contractor will (1) Indemnify and hold harmless, (2) defend with counsel approved by KIB, and (3) release KIB and KIB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, KIB or KIB's Related Parties arising out of or in connection with this Contract, including in connection with any alleged failure of KIB or KIB's Related Parties to enforce provisions of this Contract or of Applicable Law. b. Indemnity During Term Only. Contractor's Indemnity is limited to Liabilities and Losses resulting from Contract Services provided by Contractor from the Contract Commencement Date through the Termination Date. However, CONTRACTOR'S OBLIGATIONS UNDER THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT. c. Reimbursement of Enforcement Costs. If Contractor fails to pay any Indemnities and that failure results in any costs to KIB, within 15 days of KIB request, Contractor will pay KIB's Reimbursement Costs. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 11.03 Letter of Credit. Contractor will provide for the issuance of an irrevocable standby letter of credit (the "Letter of Credit ") for the benefit of KIB in form satisfactory to KIB by a financial institution (the "Bank ") having at least one of the following minimum ratings: (1) Moody's A2 or better LT Issuer Credit and B or better for Bank Financial Strength, (2) Standard and Poor's: A or better for LT Issuer Credit, (3) Bauer Financial: 4 Stars or better, (4) TheStreet.com Ratings: B or better: Contractor will provide for a letter of credit in the following amount (the "Stated Amount "): (i) During the first Contract Year (or balance of the first Contract Year if less than 12 months), the amount of gross Contractor Service Fees projected by KIB for 4 months, (ii) During the second Contract Year, an amount equal to the following: (a) 110% of the average amount of gross Contractor Service Fees that Contractor received during any 4 months the first Contract Year, or (b) if the first Contract Year was less than 4 months, 110% of KIB's projection of the amount that Contractor would have received during 4 full months. (iii) During the third and following Contract Year(s), an amount equal to 110% of gross Contractor Service Fees that Contractor received during the prior Contract Year. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT. The form of the Letter of Credit, including the procedures and place of demand for payment and drawing certificate attached to the Letter of Credit, must be satisfactory to KIB. The Letter of Credit must be transferable to any successor or assign KIB. 11.04 Guaranty Agreement. Any Person that provided the basis of KIB's evaluation of the financial strength and creditworthiness of Contract in Contractor's proposal to KIB with respect to this Contract (or other Person identified by KIB), must be a legal, valid and binding Guaranty by that Affiliate as Guarantor, satisfactory to KIB. (6) KIB may draw on the Letter of Credit, in one or more drawings, in any of the following events as evidenced to the satisfaction of KIB: (i) a Default, or (ii) Contractor is unable to regularly pay its bills as they become due, or (iii) Contractor fails to timely pay any Solid Waste Management Facility, fuel supplier or employee; or (iv) Contractor fails to pay an Insurance deductible or self - insured retention. (7) The Letter of Credit may expire no earlier than the date on which the Bank receives a certificate from KIB stating the following: (i) this Contract has expired, or (ii) this Contract has been terminated for a period of 180 days or other preference period provided under Applicable Law with respect to bankruptcy or insolvency, or (iii) Contractor has substituted an alternative letter of credit or other security document acceptable to KIB in KIB's sole discretion, and (iv) Contractor does not owe KIB any money. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 11.05 Assurance of Performance. In its sole discretion and in addition to all other remedies it may have, KIB may demand from Contractor reasonable assurances of full satisfaction of Performance Obligations by a specified date, in any or all of the following events: (1) Labor unrest: Contractor is the subject of any labor unrest (including work stoppage or slowdown, sick -out, picketing, lock -out or other concerted job action) in excess of 6 days • (2) unable to pay bills: Contractor appears in the judgment of KIB to be unable to regularly pay its bills as they become due, including failure to time pay the following: (i) with respect to a Contractor, a tipping fee at any Solid Waste Management Facility, (ii) any Insurance deductibles or self insured retention, (iii) any employee's wages, and (iv) non - payment of any other bill for over 60 days; or (3) monetary judgments: Contractor is the subject of fines, penalties, or civil or criminal judgment or order entered by a Regulatory Authority, which judgment is in excess of the past 3 months' Contractor Service Fees or requires estimated expenditure by Contractor in excess of those 3 months' Contractor Service Fees. ARTICLE 12: CHANGE IN SCOPE OF SERVICE 12.01 Change in Performance Obligations. a. At KIB Direction. KIB may direct Contractor to implement a change of Performance Obligations in the Contract Service Area following. (1) request for, submission of and review of Contractor's proposal under Section 12.02a -c, and (2) agreement of the Parties or determination of the Independent Expert under Section 12.02d. Contractor will submit its proposal within 10 KIB Business Days of receiving KIB's request for proposal (or a longer period that KIB may designate in light of the complexity or magnitude of the directed change). b. Upon Contractor Proposal. Contractor may propose to KIB a change in the scope of Contract Services under Section 12.02, such as the following: (1) new developments in collection technologies that would improve Contract Service efficiency and reduce the Contractor Service Fee, pollution or environmental impact; (2) a program that would increase Diversion; and (3) changes in operations necessitated by a Change in Law. 12.02 Proposal. a. Contents. In its proposal Contractor must describe its detailed plan for implementing the requested or proposed change, including the following: (1) a task list and time -line implementation schedule, (2) Goods or Services (including any Subcontractor) necessary to implement the change, and (3) any change in Contractor Service Fee and cost substantiation therefore, including Contractor's changes in Direct Costs (taking into account both incremental Direct Costs COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK c. Review. and savings offsets) such as: (i) modifying Vehicle(s); (ii) adding Receptacle(s), Vehicle(s) or routes; (iii) shortening or extending route time; (iv) laying off or supplementing labor; and (v) increasing transportation distance or time to a Solid Waste Management Facility. KIB may withdraw the request for proposal at any time, for any reason, including receipt of a proposal from Contractor unsatisfactory to KIB. Contractor will include documentation supporting its proposal satisfactory to KIB. b. Offer. Contractor's proposal will be deemed Contractor's offer to KIB to implement the directed or proposed change. Contractor's proposal will remain binding for at least 30 days from the date submitted to KIB. (1) Response /Comments. Within 20 KIB Business Days of receiving Contractor's proposal, KIB may review, approve, or disapprove the proposal and comment on it. If KIB does not respond within that time, its approval will be deemed denied. If Contractor's proposal includes a request for change in the Contractor Service Fee that must be approved by the Assembly, KIB may review, approve or disapprove the proposal within 45 days. (2) Acceptance of Comments. Contractor will accept or reject any comments within 15 KIB Business Days of receiving them. If Contractor accepts the comments, KIB will prepare amendments to this Contract that will implement the proposal, satisfactory to Contractor. (3) Rejection of Comments /Negotiations. If Contractor rejects KIB's comments, the Parties will negotiate in good faith for a period of at least 15 KIB Business Days following Contractor's receipt of KIB comments. d. Failure to agree. (1) KIB-directed change. If the Parties cannot reach agreement on a proposal directed by KIB by the end of those 15 KIB Business Days, KIB may take either of the following actions: (i) implement the change itself or through another Person, or (ii) request binding dispute resolution by the Independent Expert. (2) Contractor - initiated proposal ... Changes in Law. If the Parties cannot reach agreement on a proposal initiated by Contractor by the end of those 15 KIB Business Days of negotiation, the proposal is deemed rejected and this Contract will not be COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 12.03 Independent Expert a. Selection amended except that if Parties cannot reach agreement on a proposal initiated by Contractor due to a Change in Law, Contractor may request binding dispute resolution by the Independent Expert under Section 12.03d. (1) Exchange of lists. Following the Contract Commencement Date, Parties will expeditiously select an Independent Expert to keep on retainer in the event the Parties wish to settle disagreement over Contractor's proposal described in Section 12.02, in the selection manner described in this subsection a.(1). If the Person selected as Independent Expert resigns or can no longer serve in capacity as Independent Expert (for example, if he or she subsequently works for either Party, creating conflicts), within 5 days of either Party's request for dispute resolution, Contractor and KIB will to the following: (i) prepare 2 lists (one each) of 5 independent Persons having experience in MSW Management Services as applicable in the Parties' dispute (such as automated collection in carts), in numerical order with the first preference at the top, and (ii) exchange and compare lists. The Person having the lowest total rank order position on the 2 lists will be the Independent Expert. In case of a tie in scores, the Person having the smallest difference between the rankings of the 2 parties will be selected; other ties will be determined by a coin toss. If no Person appears on both lists, Parties will repeat this procedure within the next 5 days. (2) Selection by experts. If selection is not completed after the exchange of 2 lists or 10 days, whichever comes first, then each Party will promptly select one expert having experience described above and within 5 days of selection, the 2 experts will together select an Independent Expert. b. Costs. Parties will share the Independent Expert's costs and fees equally. c. Communications with Independent Expert. Neither Party will communicate orally with the Independent Expert unless the other Party is privy thereto. Neither Party will communicate in writing with the Independent Expert unless it simultaneously sends copies of that communication to the other Party. d. Determination Protocol (1) In addition to KIB's or Contractor's request for binding dispute resolution under Section 12.01d., either Party may request non - binding dispute resolution on any matter relating to Contract Services or, upon agreement of the other Party, binding dispute resolution. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 13.02 Inclusiveness. The Contractor Service Fee includes all Contractor's direct costs, indirect costs, plus profit or return of investment for providing Contract Services, including the following: (1) labor (including wages and fringe benefits), including drivers, Customer service personnel, supervisors, and administrators, (2) acquisition, repair and maintenance of Contract Service Assets (including buildings and grounds, and Vehicles), (3) tools and supplies, (4) fuel and utilities, (5) Insurance premiums and fees for the Letter of Credit or any further assurance of performance, (6) taxes, (7) securing and maintaining Permits and complying with Applicable Law, (8) fines and penalties for violation of Permits or Applicable Law, (9) handling Unpermitted Waste discovered in Solid Waste, including disposal thereof as required by Applicable Law, (10) negligence or misconduct, (2) The Party requesting dispute resolution will give the other Party and the Independent Expert a description of the disagreement and that Party's position thereon. (3) Within 10 days, the other Party may give the Party seeking dispute resolution and the Independent Expert a description of its position. (4) The Independent Expert may make one request for additional information and documentation before the later of the following times: (i) 10 days after receiving the request for dispute resolution, or (ii) After receiving both Parties' description of their respective positions. (5) Promptly upon request by the Independent Expert, either or both Parties will provide the Independent Expert with additional information and documentation and simultaneously provide the other Party with copies thereof. (6) Within 25 days of receiving a request for dispute resolution, the Independent Expert will make its determination based on the submissions of the Parties, the provisions of this Contract, its experience with similar services and disagreements, and other factual determinations it may make regarding the Parties' disagreement over the proposal. (7) The determination is binding on the Parties, unless the Parties agree otherwise. e. Exercise of remedies. Pending the Independent Expert's determination, the Parties may exercise any remedies they have under this Contract or Applicable Law. ARTICLE 13: CONTRACTOR SERVICE FEE, CUSTOMER SPECIAL SERVICE SURCHARGES 13.01 Contractor Service Fee. Contractor may charge Contractor Service Fees to Customers as compensation for providing Contract Services in compliance with all Performance Obligations. The Contractor Service Fee will not change except under Section 13.03. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor Service Fee is not adjusted for changes in these costs, except under Section 13.03. Reference in this Contract to providing Contract Services "without surcharge" or similar language does not infer that absence those words, "without surcharge ", elsewhere in this Contract, means that Contractor is entitled to either of the following: (a) compensation in addition to the Contractor Service Fee listed on the Contractor Service Fee Schedule; or (b) reimbursement of Direct Costs or Contractor's Reimbursement Costs. 13.03 Adjustment of Contractor Service Fee. a. Adjustment events and timing. The Contractor Service Fee will be adjusted at the following times: (i) upon Contractor's request submitted to KIB at least 60 days in advance of implementation, or (ii) upon direction of KIB, in its sole discretion. Between April 1 and April 15 of each Contract Year, Contractor will prepare a statement setting forth Contractor's detailed calculation of Contractor's requested annual adjustment in Contractor Service Fee in the form of the following examples or other format prescribed by KIB. Contractor's statement is for convenience of KIB, but is not binding on KIB. KIB may make corrections or adjustments to that statement. Subsection d contains a sample adjustment calculation. (11) fees imposed by Regulatory Agencies, including any Contract Fee, (12) fees charged by Solid Waste Management Facilities (such as tipping fees at KIB Landfill), and (13) any other cost of providing Contract Services not explicitly compensated by surcharge to Customer or charge to KIB. (1) Annual Adjustment. On July 1 in the second full Calendar Year of the Term and each following July 1, the Contractor Service Fee will be adjusted to equal the following: (O1) the Contractor Service Fee in effect during the prior Contract Year (or portion of that Contract Year), plus or minus (02) the Weighted Adjustment Percentage times that Contractor Service Fee. (i) Weighted Adjustment Percentage. "Weighted Adjustment Percentage" means the sum of the following three portions of the Contractor Service Fee: A. X°/0 Operations Portion: Annual changes in the CPI. XX% of the Contractor Service Fee will be adjusted by XX% of the average percent change, if any, in the CPI during the period commencing April 1 of the previous year and ending March 31 of the current year, no greater than 5 %, as confirmed by KIB. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK "CPI" means the consumer price index (CPI -U) for Anchorage, Series ID 1982 -84 =100, published by the U.S. Department of Labor /Bureau of Labor Statistics (initial release). B. XX% Fuel Portion: Annual changes in the PPI. XX% of the Contractor Service Fee will be adjusted by the XX% of the change, if any, in the PPI during the period commencing April 1 of the previous year and ending March 31 of the current year, as confirmed by KIB. "PPI" means annual Producer Price Index Series WPU057303 for No. 2 diesel fuel, not seasonally adjusted, as published by the United States Department of Labor, Bureau of Labor Statistics as of March 31 of each year. C. Tipping Fee Portion: XX% Refuse Disposal Tipping Fee: Change in tipping fee. XX% of the Contractor Service Fee will be adjusted by 100% of the change, if any, in tipping fees charged Contractor at KIB Landfill. 2. Adjustment for changes in operations (such as changes in Performance Obligations due to Changes in Law). As soon as possible following agreement of the Parties under Article 12, the Contractor Service Fee will be adjusted for a change in Contractor's Direct Costs of providing Contract Services due to changes in Performance Obligations. To the extent permitted by Applicable Law, an adjustment will reflect Contractor's costs from the date incurred. The Contractor Service Fee will not otherwise be adjusted, including for actual changes in the price of fuel. b. Rounding. c. Preconditions to adjustment. The Contactor Service Fee will not be adjusted upwards if either of the following has occurred and remains uncured: (1) Breach, or (2) Default. (1) Calculations. Interim calculations less than 0.5 must be rounded down and 0.5 or greater, up. (2) Dollars. Final adjustment in Contractor Service Fee must be rounded to nearest penny. COLLECTION SERVICES CONTRACT 1 Island Borough, AK Contractor Service Fee Portion of Contractor Service Fee Adjustment due to change in indices/ tipping fees WEIGHTED ADJUSTMENT PERCENTAGE Service Portion 65% 1.5% (CPI) 0.975% Fuel Portion 5% 5.0% (PPI) 0.25% Tipping Fees Portion 30 % 45.8% 0.14 WEIGHTED ADJUSTMENT PERCENTAGE 1.37% Tipping fee charges on Contract $24.00 Commencement Date or last prior adjustment date (12 -month average, not month -to- month) Tipping fee charges on adjustment date $35.00 Percent change 45.8% Calculation of change in PPI April 1, 2003 -March 31, 2004 86'2 (12 -month average, not month -to- month) April 1, 2004 -March 31, 2005 90.5 2.0% (not more than 5 %) Portion of %change 0 �5 0 Percent Change 5.0% Portion of %change 100% 5.0' Calculation of % change in CPI (12 -month average, not month -to- month) April 1, 2003 -March 31, 2004 173.5 April 1, 2004 -March 31, 2005 177.0 Percent Change 2.0% (not more than 5 %) Portion of %change 0 �5 0 0 1.5 /o d. Sample calculations of annual adjustments in Contractor Service Fee. 1. Annual adjustment of OPERATIONS PORTION due to Change in CPI. 2. Annual adjustment of FUEL PORTION Due to Change in PPI. 3. Any changes in Tipping Fees. 4. Weighted Adjustment PercentagL COLLECTION SERVICES C Island Borough, AK 5. Adjusted Contractor Service Fee. If the Weighted Adjustment Percentage is 14.96 percent then a hypothetical Contractor Service Fee of $15.00 would be adjusted as follows: $15.00 + [1.37 X $15.00]= $15.00 + $] _ $0.20 (to the nearest nickel) $15.20= adjusted Contractor Service Fee ARTICLE 14: BREACHES, DEFAULTS AND REMEDIES. KIB may enforce this Contract and exercise its remedies under this Contract in its sole discretion. 14.01 Certain Breaches; Liquidated Damages and Specific Compensatory Damages. a. Notice. If KIB determines that Contractor is in Breach, KIB may assess Compensatory Damages or Liquidated Damages after giving Notice to Contractor identifying and describing the Breach. Contractor will pay those Damages within 20 days of receiving that Notice. b. Dispute. Contractor may dispute the assessment of Compensatory Damages or Liquidated Damages by Notice to KIB within 20 days of receiving the Notice of assessment, but will pay assessed Compensatory Damages or Liquidated Damages pending resolution of its dispute. In that Notice of dispute, Contractor must describe the basis for its dispute and include relevant documentation. The chief administrator of KIB or his or her designee will review the Notice of dispute and make a determination as soon as practicable. His or her determination will be final. If he or she determines that KIB should not have assessed all or a portion of the Compensatory Damages or Liquidated Damages, KIB will return all or a portion of the Compensatory Damages or Liquidated Damages to Contractor. Contractor acknowledges that Compensatory Damages and Liquidated Damages do not constitute fines and penalties imposed by KIB as a governmental or regulatory entity, but as a contracting party. c. Liquidated Damages: Acknowledgement, Agreement and Confirmation. The Parties make the following acknowledgments: (1) KIB incurred considerable time and expense negotiating this Contract to secure an improved level of collection service quality, increased Diversion and increased Customer satisfaction. Therefore consistent and reliable Contract Services are of utmost importance to KIB and Customers. (2) In awarding this Contract to Contractor, KIB considered and relied on Contractor's municipal references, experience, qualifications, and reputation as to service quality, and Contractor's Breach represents a loss of bargain to KIB. (3) Quantified standards of performance are necessary and appropriate to ensure consistent and reliable Contract Service, and if Contractor fails to meet Performance Obligations, KIB will suffer damages in subjective ways and in varying degrees of intensity that are incapable of measurement in precise monetary terms, including: (i) Customers' inconvenience; (ii) anxiety, frustration and potential political pressure; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Therefore, the Parties agree that Liquidated Damages represent a reasonable estimate of the amount of damages, considering all of the circumstances existing on the Contract Commencement Date, including the relationship of the sums to the range of harm to KIB that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Contract, each Party specifically confirms the accuracy of the acknowledgements and agreements made in this Section and the fact that each Party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Contract was made. KODIAK ISLAND BOROUGH, ALASKA PACIFIC ENVIRONMENTAL SERVICE, LLC ALASKA, a political subdivision By: Name: Rick L. Gifford Title: Manager Dated: Attest: By Nova M. Javier, CMC Borough Clerk (iii)criticism and complaint by Customers; (iv)loss of KIB Governing Body members' and staff time; and (v) deprivation of the benefits of this Contract and loss of bargain. It is and will be impracticable and extremely difficult to ascertain and determine the value of those damages. (4) In the event of Breach or Default, urgency of protecting public health and safety may necessitate that KIB enter into emergency or shorter arrangements for services without competitive procurement at prices substantial greater than under this Contract, and the monetary loss resulting there from is impossible to precisely quantify. Termination of this Contract for Default and other remedies provided in this Contract are, at best, a means of future correction and not remedies that make KIB whole for past Breaches. (s) By: Name: Jeff Riley Title: Chief Operation Officer Dated: COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 9.03 failure to timely respond to KIB call in emergency $500 for each 6 hours of failure 9.03 failure to return KIB calls $500 for each breach over 1 time per month 9.03 failure to meet with KIB $500 for each breach over 1 time per Contract Year 9.03 failure to remedy any Violation of KIB Code within 5 days notice of Violation $250 per instance 9.03 conviction of Violation under KIB Code $2,500 per instance 10.02 failure to submit complete Report to KIB $500 per failure /per day until complete report delivered Records, Reports, proposals, Etc. failure to timely submit any documentation to KIB in form and at time required $100 per failure /per document /per day 13.01 Contractor charging any Customer more than the applicable Customer Special Service Surcharge $250 per Contractor / each Customer failure to secure satisfaction of KIB, obtain any consent or approval of KIB, or to give Notice to KIB when required $250 per failure /per day until approval obtained or Contractor ceases action, retracts misinformation or otherwise remedies failure to satisfaction of KIB In the following table, Sections listed under SECTION column describe Performance Obligations (including timeliness) to which the liquidated damages apply. Language listed under BREACH column summarizes those obligations for ease of Contract administration and enforcement, but breach is determined by (non)compliance with the referenced Section of this Contract or the KIB Code. Liquidated Damages in the following chart apply to each Breach, each day: the first occurrence and continuation on successive days. For example, failure to correct a missed pickup would result in liquidated damages on the day of the scheduled pickup and each following day until corrected. COLLECTION SERVICES C Island Borough, AK d. Compensatory Damages. If Contractor fails to deliver any type of Solid Waste to a facility approved by KIB (such as a recyclables processing facility in connection with any recyclables collection program that may be established), then in addition to assessing Liquidated Damages, KIB may in its sole discretion assess the following Compensatory Damages, and Contractor will pay KIB the following Compensatory Damages: (1) KIB's Reimbursement Costs to monitor Contractor's compliance with delivery Performance Obligations, including individuals following Collection Vehicles on Collection routes; and (2) KIB's Reimbursement Cost of enforcing or securing specific performance of Contractor's delivery obligation. 14.02 Defaults. Each act or omission described in this Section constitutes a material Breach ( "Default ") under this Contract: a. Contract Service Defaults: (1) Uncured Breach: Contractor Breaches this Contract; and (i) KIB Notifies the Contractor that an identified Breach has occurred; and (ii) Contractor does not correct that Breach within 20 days of receiving KIB's Notice. If Contractor believes that it cannot cure the Breach within 20 days, Contractor A. may Notify KIB within 5 days of receiving KIB's Notice, explaining why Contractor believes it needs additional time to effectuate a cure and proposing schedule for cure, and B. will diligently proceed to cure the breach within that schedule and report to KIB on schedule implementation at the times or frequencies requested by KIB. KIB, in its sole discretion, may take any of the following acts: C. accept Contractor's proposed schedule of cure, or D. make a written demand that Contractor cure the Breach within an alternative time period set by KIB, or E. exercise any remedies under this Contract, including terminating this Contract at the end of the 20 day period. (2) Repeated Breach. Contractor repeatedly or habitually Breaches this Contract, as determined in the sole discretion of KIB. (3) Contract Service failures. Contractor fails to Collect the following percent or number of pickups (regularly scheduled or by appointment) at Customer's Set- Out Sites (subject to Contract Service Exceptions): (i) 100 or more for more than 7 consecutive days, (ii) 500 or more during a 12 -month period; KIB does not have to wait until the end of the 12 -month period to declare this Default, or COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (iii) at least 99.5% of pickups scheduled for a day, for more than 10 cumulative days over the Term. (4) Failure to comply with Applicable Law. (i) Violation A. Material. Contractor does not cure any material Violation of Applicable Law to the satisfaction of KIB or applicable Regulatory Authority within 30 days of the notice, assessment, or determination of that Violation of Applicable Law; or B. Repeated. In KIB's judgment, Contractor repeatedly receives a notice, assessment or determination of the same or different Violation. (ii) Contests. If Contractor is entitled to contest and in good faith does contest a notice, assessment, or determination of Violation of Applicable Law, no Default will be deemed to have occurred until a final decision adverse to Contractor is entered. (5) Criminal activity. Contractor fails to effectuate cures or to timely terminate and /or replace any Contract Manager under Section 15.02. (6) Failure to timely pay Contractor Payment Obligation. Contractor fails to pay any Contractor Payment Obligation within 15 days of the date it is due and payable. ( (g) Charging more than amounts listed in Contractor Service Fee Schedule. Contractor charges any Customer more than the scheduled Customer Special Service Surcharge listed in the Service Schedule and does not reimburse the excess within 30 days of Contractor's discovery thereof, KIB notice or Customer request. Failure to allow KIB to perform Contract Services. Contractor fails to timely allow KIB to exercise any of KIB's rights in connection with performing Contract Services under Section 14.09. b. Performance Assurance Defaults. (1) Failure to provide Performance Assurance. Contractor fails to provide any Performance Assurance. (2) Seizure, attachment. Any Contract Service Asset is seized, attached or levied upon (other than a pre-judgment attachment) so as to substantially impair Contractor's ability to timely and fully perform Contract Services, and which cannot be released, bonded or otherwise lifted within 48 hours, excepting weekends and Holidays. COLLECTION SERVICES CONTRACT 1 Island Borough, AK Insolvency, bankruptcy, liquidation. Contractor: A. files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, unless Contractor retains full control of Contract Service Assets throughout the pendency of that claim, or B. consents to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of Contract Service Assets no longer used to provide Contract Services or backup Contract Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of Contractor's property, or C. makes any general assignment for the benefit of Contractor's creditors, or D. fails generally to pay Contractor's debts as they become due, or E. takes any action in furtherance of any of the foregoing. (ii) A. A court having jurisdiction enters a decree or order for relief in respect of this Contract, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or B. Contractor consents to or fails to oppose any similar proceeding, or C. any court having jurisdiction enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, administrator (or similar official) of Contractor or for any part of Contractor's operating equipment or assets, or orders the winding up or liquidation of the affairs of Contractor. (4) Default under Guaranty. The occurrence of any default under the Guaranty. (5) Transfer. Contractor makes a Transfer without KIB consent required by Section 16.01. (6) Subcontract. Contractor engages a Subcontractor or enters into a Subcontract without KIB consent under Section 17.10, and does not terminate that Subcontract within 15 KIB Business Days of KIB Notice. c. False Representations; Breach of Warranties. (1) Under this Contract. (i) Contractor makes a representation or certification in or under this Contract, including Attachment 2.01, which Contractor knows, or in the course of diligently conducting business and providing Contract Services should have known, is untrue on the date Contractor made it. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (2) As inducement to enter into this Contract. Contractor makes a representation or fails to make a disclosure, whether within this Contract or otherwise, to KIB in connection with or as a material inducement to entering into this Contract or any future amendment to this Contract, which representation or failed disclosure is false or misleading in any material respect when made. 14.03 Breaches and Defaults Excused. a. Uncontrollable Circumstance/ prevention and mitigation. To the extent that any Default is due to an Uncontrollable Circumstance, Contractor will not be deemed in Default for Breach of its Performance Obligations under the following Sections: (1) Section 14.02a1 and 2 (Uncured Breach; Repeated Breach), except to the extent that a Breach constitutes a Default otherwise itemized in Section 14.02a3 -8 or b, or; (2) Section 14.02a3 (Failure to Collect). ifContractor exerted the following best efforts: (i) to prevent the Breach, and; (ii to mitigate the effects of the Uncontrollable Circumstance. For example, if Contractor Breaches the Contract by failing to provide Insurance, which Breach constitutes a specific Default under Section 14.02b(1), that Breach is not excused by an Uncontrollable Circumstance. b. Contractor Notice of Uncontrollable Circumstance. Contractor will give immediate Notice of an Uncontrollable Circumstance to KIB, including: (1) describing the Breach for which Contractor seeks to be excused; (2) the expected duration of the Uncontrollable Circumstance; (3) the extent to which Contractor may curtail Contract Services; (4) any requests or suggestions to mitigate the adverse effects of the Uncontrollable Circumstance. c. KIB's Rights. (ii) Contractor breaches a warranty under this Contract. (1) Perform Contract Services. Notwithstanding that a Breach due to Uncontrollable Circumstances does not constitute a Default, after the continuance of the Breach for 48 hours, in its sole discretion, KIB may nevertheless perform (or cause to be performed) Contract Services in the Contract Service Area itself under Section 14.09. (2) Exercise other remedies. After the continuance of any Breach for 30 days, KIB may, in its sole discretion, exercise any other remedy under this Contract, including suspending or terminating this Contract under Section 15.01. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 14.04 Remedies. a. As provided by law. Either Party may exercise any and all remedies available under law or equity for the other Party's breach of this Contract. A Party's exercise of any one remedy, including KIB's assessing Liquidated Damages or Compensatory Damages, is not an election of remedies but is cumulative with any other available remedies. b. KIB's additional remedies. In addition to exercising any remedy available under law or equity, upon occurrence of a Default, KIB in its sole discretion may exercise any or all of the following additional remedies: (1) Termination. Terminate this Contract or any portion of Performance Obligations under Section 15.01a, (2) Suspension. Suspend this Contract or any portion of Performance Obligations under by Section 15.01b, (3) Perform Contract Services. Perform Performance Obligations under Section 14.09; (4) Injunctive Relief /Damages. Seek to obtain injunctive relief and /or damages; (5) Damages. Assess Liquidated Damages, Compensatory Damages and any other damages under law, and; (6) Financial Assurances. Draw on the Letter of Credit, demand payment under the Guaranty or any Indemnity, or submit any claim under Insurance. c. Injunctive relief. Contractor acknowledges that KIB's remedy of damages for Breach or Default may be inadequate for reasons including the following: (1) public health and safety. The urgency of timely, continuous and high - quality Contract Services, including Collection, transportation and /or transfer and Disposal of putrescible solid wastes that constitute a threat to public health; (2) procurement time and expense. The long time and significant investment of money and personnel (including KIB's staff, elected officials and KIB Counsel, as well as procurement counsel and consultants) required to do the following: (i) develop a scope of Contract Services and Performance Obligations acceptable to KIB, (ii) draft this Contract and related procurement documents, (iii) solicit comments on this Contract and procurement documents from KIB (and KIB Counsel) and Persons interested in proposing to provide Contract Services, (iv) meet with those potential proposers to discuss their comments and answer their questions about this Contract and the procurement, (v) finalize this Contract and procurement documents, (vi) solicit proposals for Contract Services, (vii) review and evaluate those proposals and seek clarifications of those proposals, (viii) award this Contract under KIB's Applicable Law, (ix) finalize execution of this Contract, including reviewing, commenting on and approving (if required) Contractor Documentation, and, (x) conform KIB Code to the new automated Refuse Collection programs; and COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Consequently, KIB is entitled to all available equitable remedies, including injunctive relief. d. Contractor Payment Obligations. KIB may collect Contractor Payment Obligations due and owing by Contractor to KIB by any or all of the following means: (1) demanding payment from Contractor or Guarantor, (2) drawing on the Letter of Credit, (3) submitting claims as an additional insured under Insurance policies or under contractual liability provisions of Insurance policies, and (4) directing Contractor to offset Contractor Payment Obligation from Contractor Service Fees that Contractor received from Customers to remit them to KIB. 14.05 Additional Compensatory Damages. Without limiting KIB's rights to seek Compensatory Damages under Section 14.01 or law, KIB may seek the following compensatory damages: (1) Amounts equal to any Contractor Payment Obligations or other amounts that Contractor has previously paid to KIB but are subsequently recovered from KIB by a trustee in bankruptcy as preferential payments or otherwise; (2) If KIB terminates this Contract for Default, KIB's Reimbursement Costs to provide or re- procure MSW Management Services in lieu of Contract Services; and (3) If KIB terminates this Contract for Default, KIB's projected Direct Costs of replacing MSW Management Services in excess of Contractor Service Compensation for the balance of the Term remaining if this Contract had not been terminated, as based on service fees under replacement agreements for those MSW Management Services. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS CONTRACT FOR 180 DAYS OR OTHER PREFERENCE PERIOD PROVIDED UNDER APPLICABLE LAW (3) reliance on Contractor. KIB's reliance on Contractor's meeting evaluative criteria on which award of this Contract was based, such as the following: (i) solid waste management experience, (ii) KIB references, (iii) qualifications of key personnel, (iv) environmental programs and proposed Unpermitted Waste Screening Protocol, (v) litigation history, (vi) Contractor's proposed transition, Customer education, diversion and other plans, (vii) acceptance of terms of this Contract, and (viii) Diversion record. (4) re- procurement time and expense. The length and significant investment of time and money described in item (2) to develop alternative MSW Management Services comparable to Contract Services for the price provided under this Contract, and to negotiate new agreements therefore. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK WITH RESPECT TO BANKRUPTCY OR INSOLVENCY. KIB may draw upon the Letter of Credit, Guaranty or any other available Performance Assurance to pay compensatory damages. 14.06 Waivers. a. Waiver of Breach. No waiver of any Breach or Default constitutes a waiver of any other Breach or Default. Failure of KIB to enforce any provision of this Contract may not be construed as a waiver of KIB's enforcement rights. KIB's subsequent acceptance of any damages or other money paid by Contractor may not be deemed to be a waiver by KIB of any pre - existing or concurrent Breach or Default. b. Contractor Waiver of Certain Defenses. Contractor acknowledges that it is solely responsible for providing Contract Services and by this Contract irrevocably and unconditional waives defenses to the payment and performance of its obligations under this Contract based on failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non - existence, occurrence or non- occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Contractor with regard to any provision of this Contract; provided that Contractor does not by this Contract waive any defenses under this Contract of Uncontrollable Circumstances. 14.07 Jurisdiction; Venue, Costs. a. Jurisdiction. Parties will bring any lawsuit arising out of this Contract in State courts, which will have exclusive jurisdiction over those lawsuits. Each Party consents to jurisdiction over its person and over the subject matter of any litigation in those courts and to service of process issued by those courts to the Parties at their addresses for Notice. b. Venue. Venue is made in and will be performed in courts sitting in Anchorage, AK, to the extent permitted by Applicable Law. Parties further agree that the site of any other hearing or action, whether arbitration or non-judicial, of whatever nature or kind regarding this Contract, will be conducted in Kodiak, AK. c. Costs. The non - prevailing Party in any dispute involving this Contract will pay the prevailing Party's Reimbursement Costs. 14.08 Enforcement Costs. Contractor will reimburse KIB promptly upon request for either or both of the following KIB's Reimbursement Costs: (1) investigating any alleged Breach, or (2) incurred by KIB as a consequence of a Breach. 14.09 KIB Right to Perform. a. Events. KIB may perform, or providing for the performance of, any or all Performance Obligations (such as Collection or transportation and delivery of Refuse to KIB Landfill) upon COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK the occurrence of either of the following events determined by KIB in its sole discretion: (1) Failure to Collect or Dispose for 48 hours. (i) Contractor, due to Uncontrollable Circumstances or for any reason whatsoever, fails, refuses or is unable to Collect any Solid Waste and transport it to KIB Landfill (or other KIB- approved Facility) for a period of 48 hours after the Collection or acceptance was required under this Contract, and (ii) KIB determines in its sole discretion that there is a danger to the public health, safety or welfare; or (2) Suspension or termination of Contract. KIB suspends or terminates all or a portion of this Contract. b. Continuation. KIB has no obligation to continue performing or providing for the performance of any or all Performance Obligations and may at any time, in its sole discretion, cease to provide any or all Performance Obligation. However, KIB's right to perform or provide for the performance of any or all Performance Obligations will continue until either of the following: (1) Resumption of Service. Contractor can demonstrate to KIB's satisfaction that Contractor is ready, willing and able to resume timely and full performance of all Performance Obligations, or (2) Alternative service arrangements. KIB can make alternative arrangements for providing MSW Management Services, in its judgment comparable to Contract Services in scope and price, which may include contracting with another service provider. c. Notice. KIB may give Contractor 24 hour oral notice that KIB is exercising any or all of KIB's rights under this Section. The oral notice will be effective immediately, but to remain effective, within another 24 hours KIB must confirm that oral notice with a Notice (which is in writing). d. Service Assets. (1) Possessory interest. KIB may take possessory interest in any or all Contract Service Assets necessary or convenient in performing or providing for the performance of Performance Obligations relating to Collection, and Contractor will fully cooperate with KIB to transfer possessory interest in those Contract Service Assets to KIB. Customers' possession of Carts will be deemed possession by KIB if necessary to exercise this right. KIB may use those Contract Service Assets to provide all or a portion of those Contract Services. It will have absolute and exclusive control over those Contract Service Assets as though it was the absolute owner thereof and assume complete responsibility for use of those Contract Service Assets while those Contract Service Assets are in KIB's possession. COLLECTION SERVICES CONTRACT 1 Island Borough, AK (2) Maintenance. At KIB's request, Contractor will keep those Contract Service Assets in good repair and maintenance (including fully fueled and oiled,) or pay KIB's Direct Costs of repair and maintenance. Subject to repair and maintenance performed by Contractor, KIB will do the following: (i) maintain those Contract Service Assets in the same condition as they were in when Contractor transferred their possession to KIB; and (ii) return those Contract Service Assets to Contractor in the same condition as received, normal wear and tear excepted. (3) Insurance. Contractor will maintain in full force and effect all Insurance during KIB's use of Contract Service Assets. By granting KIB the right to possession and use of Contract Service Assets, Contractor declares as follows: (i) KIB or KIB's personnel or designees using those Contract Service Assets are permitted users for purposes of liability Insurance, and (ii) use and possession of those Contract Service Assets is not intended to be and is not transfer of ownership for purposes of any liability Insurance. Contractor will execute whatever documentation its liability Insurers require to ensure that KIB and its designees are protected and covered by liability Insurance, including requesting and executing endorsements to liability policies. KIB may secure endorsements at its cost. KIB may call and confer with Contractor's insurance agent, broker and underwriter to determine what, if any, documentation or actions are necessary to achieve protection satisfactory to KIB. By executing this Contract, Contractor authorizes its insurance broker to cooperate with and respond to requests from KIB. Contractor may not rescind this authorization without KIB consent. 4. Contract Service Asset Documentation. Each Contract Service Asset Document must allow KIB to assume Contractor's obligations and to continue use of those Contract Service Assets in performing MSW Management Services. e. Contractor's Personnel. KIB may immediately engage any or all of Contractor's present or prior employees and Subcontractors to provide all or a portion of Contract Services relating to Collection (including drivers, route supervisors, management and office personnel who provide Customer service and billing). However KIB is not obligated to hire Contractor's employees or Subcontractors and may use municipal employees or other Persons to provide all or a portion of Contract Services relating to Collection. Promptly upon receiving notice under Subsection c, Contractor will make available its employees or Subcontractors to KIB. f. Records. At KIB request, Contractor will immediately provide KIB or its designees with immediate access to Contractor Office at any time KIB is exercising its rights under this Section and possession of any or all Records, including those related to routing and Customers' frequency and level of Contract Service (such as Customer Service Subscription data). COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK g• Contractor Payment or KIB Reimbursement. (1) Uncontrollable Circumstances. In the following events: (i) items (1) and (2) in Subsection a are due to Uncontrollable Circumstances, and (ii) Contractor is not being paid (or if Contractor bills in advance, has not been paid) through billing and collecting Customer charges, then the KIB will pay Contractor each of the following costs: (iii) rental fees for use and possession of those Contract Service Assets equal to their fair market value as determined by an independent appraiser selected by the Parties in the same manner as the Independent Expert in Section 12.03a; (iv) Contractor's Direct Costs of providing Vehicles with fuels, oil and other maintenance under Subsection d(2); (v) Contractor's Direct Cost of making personnel available to KIB under Subsection e. (2) Other than Uncontrollable Circumstances. If the events enumerated in paragraphs numbered (1) and (2) in Subsection a are not due to Uncontrollable Circumstances, then KIB is not obligated to pay the compensation enumerated in preceding Subsection g(1) and Contractor will pay KIB's Reimbursement Costs of performing Performance Obligations within 10 days of its submitting an invoice for that compensation. If Contractor does not timely pay that invoice, KIB may draw upon any or all Performance Assurances. h. Stipulations. Contractor stipulates that KIB's exercise of rights under this Section does not do any of the following: (1) create any liability on its part to Contractor, (2) constitute a taking of private property for which it must compensate Contractor, or (3) exempt Contractor from any Indemnities, which Parties acknowledge are intended to extend to circumstances arising under this Section. However, Contractor is not required to indemnify KIB against claims and damages arising from the negligence of KIB's officers and employees (other than employees of Contractor at the time they commenced performing Contract Services), contractors and agents driving Collection Vehicles. ARTICLE 15: SUSPENSION OR TERMINATION. 15.01 KIB Right to Suspend or Terminate. a. Termination Events. KIB may, in its sole discretion, terminate this Contract in whole or in part, in the following Termination Events: (1) Default. The occurrence of a Default; (2) Uncontrollable Circumstances. The occurrence and continuance of an Uncontrollable Circumstance under Section 14.03c; (3) Non - severable Provisions. Any Contract Provision defined in Section 20.05 is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction and KIB determines not to sever it but to terminate this Contract; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (4) Assignment of Guaranty Without Consent. The Guarantor transfers the Guaranty without consent required by the Guaranty, and on or before 15 days after the transfer, the Guarantor does not provide KIB with a substitute Guarantor or alternative financial credit support satisfactory to KIB. b. Suspension Events. Upon the occurrence of any Termination Event, KIB may in its sole discretion suspend this Contract, in whole in or in part, for no longer than 30 days. During the suspension period Contractor will have the opportunity to demonstrate to the satisfaction of KIB that Contractor can once again fully perform Contract Services. If Contractor so demonstrates to satisfaction of KIB in its sole discretion, KIB's right to suspend or terminate this Contract will cease and Contractor may resume providing Contract Services. If Contractor does not so demonstrate, KIB may terminate this Contract and exercise its additional rights and remedies. c. Notice. KIB will give Contractor a Notice of termination or suspension effective at the following times: (1) immediately or upon other period stated by KIB with respect to the following Defaults described in Section 14.02: (i) Insurance (Failure to Provide Performance Assurances), and (ii) insolvency, bankruptcy, liquidation, to the extent permitted by Applicable Law (Insolvency, Bankruptcy, Liquidation), or (2) upon Contractor's receipt of Notice with respect to any other Default, unless KIB specifies an alternative date in the Notice; (3) a date KIB specifies in the Notice. d. Suspension, Termination of a Portion of Performance Obligations: Reduction in Fee. If KIB suspends a portion of this Contract or terminates some but not all Performance Obligations, Contractor will continue to fully perform its remaining Performance Obligations and the Contractor Service Fee will be adjusted to reflect reductions in Performance Obligations. For example, if KIB suspends Performance Obligations with respect to Collection of Bulky Items upon the occurrence of a Termination Event, Contractor would be obligated to fully perform its other obligations under this Contract (such as Collection of Refuse). 15.02 Criminal Activity a. Notice. Contractor will immediately give Notice to KIB of either of the following with respect to Contractor or any Contract Manager (except for the Contract Manager in a Position of Influence): (1) conviction of a Criminal Activity ( "conviction ") or (2) plea of "guilty ", nolo contendere" or "no contest" to a Criminal Activity ( "plea ") Contractor will promptly give Notice to KIB of any of those convictions or pleas with respect to the Contractor Manager in a Position of Influence. b. Cure. Upon the occurrence of any conviction or plea defined in Subsection a, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor immediately will do or cause to be done both of the following: (1) terminate from employment anyone in a Position of Influence or remove from office anyone in a Position of Influence, unless otherwise directed or ordered by a court or Regulatory Authority of competent jurisdiction and /or authority, and unless termination would subject Contractor, an Affiliate or any of its Contract Managers to substantial liability for breach of any labor agreement entered into before the Contract Commencement Date, and (2) refrain from employing or appointing that individual or individuals responsible for the Criminal Activity from any other Position of Influence. c. KIB remedies. Upon the occurrence of either of the following events: (1) Contractor or any Affiliate fails to effectuate the cure described in Subsection b, or (2) the Criminal Activity is related to this Contract or occurs within the boundaries of KIB (incorporated or unincorporated), KIB may take any or all of the following actions: (3) (4) suspend or terminate this Contract, or impose other sanctions (which may include financial sanctions and any other condition KIB deems appropriate, short of suspension or termination) as it deems proper. d. Limitations on Contractor Manager. No Contractor Manager may have previously (1) been convicted of a Criminal Activity, or (2) plead "guilty ", nolo contendere" or "no contest" to a Criminal Activity. ARTICLE 16: TRANSFER OF CONTRACT. 16.01 Contractor Transfer. a. Acknowledgment. Contractor acknowledges that Contractor submitted evidence to KIB with respect to Contractor's experience, expertise and qualifications to provide Contract Services, and that Contractor's experience, expertise and qualifications were material considerations of KIB in entering into this Contract with Contractor. b. KIB consent. Without KIB consent, given in KIB's sole discretion, Contractor will not Transfer in whole or in part, voluntarily or involuntarily any of the following: (1) this Contract, (2) the Guaranty, or (3) any rights or duties in this Contract or under the Guaranty, Contractor may not circumvent KIB's consent rights by securing Goods or Services from a Subcontractor. c. Contractor request. Without obligating KIB to give consent, Contactor will demonstrate to KIB's satisfaction that the proposed transferee has the operational and financial COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ability to satisfy Performance Obligations. KIB is not obligated to consider any proposed Transfer by Contractor if Contractor is in Breach at any time during KIB's consideration. d. Payment of KIB's Transfer Costs. (1) Transfer Deposit. Contractor must make any request for KIB's consent to a Transfer in the manner prescribed by KIB. Contractor must pay KIB the Transfer Deposit before KIB will consider Contractor's request. "Transfer Deposit" means lesser of the following refundable amounts: (i) $1,500 (ii) KIB's anticipated Transfer Costs. (2) Additional Transfer Costs. Within 30 days of KIB's request, Contractor will further pay KIB's additional Transfer Costs in excess of the Transfer Deposit, whether or not that KIB approves the Transfer. "Transfer Costs" means the following KIB's Reimbursement Costs: (i) considering and reviewing Contractor's request for Transfer, (ii) investigating the suitability of the transferee, and (iii) determining whether or not to give its consent, (iv) preparing documents to effectuate the Transfer. (3) KIB's Reimbursement Costs of enforcement. Within 30 days of KIB's request, Contractor will pay KIB's Reimbursement Costs for fees and investigation costs as KIB deems necessary to enjoin the Transfer or to otherwise enforce this Section e. Novation. If KIB consents to Transfer of this Contract, upon request of the transferee, KIB will execute a novation under which the Person which is the transferee Contractor assumes all of the rights and Performance Obligations of the transferor Contractor. ARTICLE 17: THE PARTIES. 17.01 Contractor Is Independent Contractor. The Parties agree and the Contractor acknowledges as follows: (1) Contractor is an independent entity and contractor engaged by KIB and not KIB's Related Party or a joint venturer with KIB. (2) No employee or agent of Contractor is deemed to be KIB's Related Party. (3) Contractor will have the exclusive control over the manner and means of performing Contract Services and over all Persons performing Contract Services. (4) Contractor is solely responsible for the acts and omissions of Contractor's Related Parties, none of whom is deemed to be KIB's Related Party. (5) Nothing in this Contract may be construed as creating an arrangement for handling Unpermitted Waste. (6) Neither Contractor nor any of Contractor's Related Parties will obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits that accrue to KIB employees and Contractor expressly waives any claim it may have or acquire to those benefits. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 17.02 Parties in Interest. Nothing in this Contract, whether express or implied, is intended to confer any rights on anyone other than the Parties and the Parties' respective representatives, successors and permitted assigns. Related Parties are third party beneficiaries of provisions in this Contract that reference them. 17.03 Binding on Successors. The provisions of this Contract will inure to the benefit of and be binding on the successors and permitted assigns of the Parties. 17.04 Further Assurances. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other to give full effect to this Contract, including Contractor Documentation. Contractor will complete Contractor Documentation satisfactory to KIB by the Contract Commencement Date. 17.05 Actions of KIB in Its Governmental Capacity. Nothing in this Contract may be interpreted as limiting the rights and obligations of KIB in its governmental or regulatory capacity. 17.06 Contractor's Obligations Performed at Its Sole Expense. Contractor will perform Contract Services solely for the compensation expressly provided for in this Contract. 17.07 Parties Representatives. a. KIB b. Contractor Representative. Contractor Representative is named in Contractor Documentation. Contractor Representative must have at least 5 years experience in Solid Waste (7) Contractor bears the sole responsibility and liability for furnishing workers' compensation and all other benefits required by law to any individual for injuries arising from or connected with Contract Services. (1) Identification. KIB Representative is the Manager or his or her designee, as may be amended upon Notice to Contractor by KIB in KIB's sole discretion. (2) Delegation. By authorizing the execution of this Contract, KIB delegates to KIB Representative the authority to exercise KIB's rights, remedies and options under this Contract and administer this Contract, except with respect to the following, which must be approved by the KIB Governing Body: (i) extending the Term for an additional year or more, (ii) suspending or terminating this Contract, (iii) approving or disapproving Transfer of this Contract, (iv) amending this Contract, including the Contractor Service Fee due to changes in operations under Section 13.03a2, but not annual adjustments under 13.03a1, (v) Indemnities, and (vi) exercising any delegation of authority contrary to Applicable Law. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK collection services before being named Contractor Representative. Contractor Representative is authorized to act on behalf of Contractor in the satisfaction of all Performance Obligations and exercise of Contractor's rights and options under this Contract. 17.08 Due Diligence. Contractor acknowledges each of the following: (1) MSW Management Services, including Contract Services, are highly regulated under Applicable Law, (2) waste management is a public health and safety concern. Contractor agrees that it will exercise due diligence in performing Contract Services. 17.09 No Use of KIB Name. Contractor will not do business as or use a corporate, partnership, venture or other formal name, containing the name of any KIB or implying government ownership. 17.10 Subcontractors. a. Subcontracts exceeding $50,000. Contractor will not engage any Subcontractor in an amount exceeding $50,000 for any individual Subcontractor without KIB's prior approval of the Subcontract and Subcontractor. Any Subcontract entered into without KIB's prior approval is void. Contractor will identify approved Subcontractors in Contractor Documentation. b. Contractor responsibility. Contractor is solely responsible for directing the work of Subcontractors and paying Subcontractors' compensation. c. Removal. KIB may require Contractor to remove any approved Subcontractor for any of the following reasons: (1) failure to provide Contract Services, (2) non - compliance with Applicable Law, or (3) in KIB's judgment, conduct that is abusive, rude or unsafe. d. Reference to Subcontractors. Specific reference to Subcontractors under this Contract (such as with respect to compliance with Applicable Law and meeting Insurance requirements) does not imply that lack of specific reference to Subcontractors elsewhere under this Contract exempts Subcontractors from complying with this Contract. ARTICLE 18 : AMENDMENTS. 18.01 Amendments. a. KIB Governing Body authorization and direction / Contractor consent. Amendments to Contract rights, remedies and options that are not delegated to the KIB Representative under subsection b will be effective upon completion of the following actions: (1) authorization and direction of KIB Governing Body, (2) consent of the Contractor, and (3) due execution by the Parties of an amendment reflecting those changes. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK b. KIB Representative Consent /Contractor Representative Consent. All other Amendments to this Contract will be effective upon completion of the following: (1) consent of KIB Representative (except for Contractor's amendments to Contractor Documentation that do not require KIB consent), (2) consent of Contractor Representative (except for amendments to Attachments to this Contract that do not require Contractor consent, such as changing Contractor's address for Notices), and (3) due execution by the Parties of text reflecting those changes. Examples of those amendments include the following: (4) amendments not listed in Subsection a, (5) Contractor Documentation, and (6) Exhibits or Attachments to this Contract (except with respect to Contractor Service Fee other than annual adjustments). c. Due execution. For purposes of this Section, "due execution" of amendments to the text of this Contract means the Parties': (1) witness and signing written amendment in the form provided on the signature page of this Contract; and (2) warranties as to their due authorization and execution of the amendment. "Due execution" of amendments to Contractor Documentation, Attachments and Exhibits means KIB and Contractor Representative signing and dating the amendments. ARTICLE 19 : NOTICES, CONSENTS, APPROVALS, ETC. 19.01 Notices, etc. Notices must be given at the addresses provided in Contractor Documentation attached to this Contract, as follows: (1) by Email or facsimile promptly followed by personal or mailed delivery, or (2) by personal delivery to the Contractor Representative or KIB Representative, as the case may be, or (3) by deposit in the United States mail first class postage prepaid (certified mail, return receipt requested), or (4) by commercial delivery service providing delivery verification. Notice by KIB to Contractor of a missed pick -up or a Customer problem or complaint may be given to Contractor orally by telephone to Contractor Representative or other Contractor personnel responsible for taking complaints from KIB or the public. Parties may change their address upon Notice to the other Party. 19.02 Writing Requirements. All Notices, reports, demands, requests, directions, selections, option exercises, orders, proposals, reviews, comments, acknowledgments, approvals, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK agreements, consents, waivers, certifications and other communications made under this Contract must be in writing, except the following: (1) oral communication is explicitly authorized, and (2) communication with respect to routine Contract administration, such as submitting Records or Reports, correcting Reports or, discussing Customer complaints. 19.03 Exercise of Options. Parties will exercise any approval, disapproval, consent, acceptance, option, discretion, election, opinion or choice under this Contract, make a requirement under this Contract or interpret this Contract ( "Discretionary Action ") reasonably. Recognizing the essential public health and safety protections this Contract serves, where this Contract specifically provides that the exercise of any Discretionary Action is in either Party's independent, sole, exclusive or absolute discretion, control or judgment, the other Party will not question or challenge the other Party's exercise thereof. Parties will nevertheless exercise their rights and remedies in good faith as required by Applicable Law. Any mediator or court must find the Party's exercise to be reasonable. ARTICLE 20: DEFINITIONS AND INTERPRETATION OF CONTRACT. 20.01 Definitions. In this Contract words have the meanings defined in Attachment 20.01, which control in the event of any conflict with the definitions used in the recitals above. 20.02 Interpretation of Contract. a. Plurality. Terms that are defined in the singular and plural in Article 20, include both singular and plural throughout the Contract, unless the context demands otherwise. b. Headings, Font. Any caption or heading after the ATTACHMENT, EXHIBIT, ARTICLE, Section, lettered subsection, Arabic - numbered subsection or Roman - numbered subsection and numbered lists preceding the operative text of this Contract is for convenience of reference only and does not in any way control or affect the scope, intent, meaning, construction, interpretation or effect of this Contract. Any underlined, italicized, bold- faced, UPPER -CASED or other font style is for ease of reading and contract administration, and it does not in any way imply relative importance or unimportance of any provision of this Contract. c. References to Parts. References to Sections and Articles refer to Sections and Articles of this Contract, unless specified otherwise. References to Attachments and Exhibits refer to Attachments and Exhibits appended to this Contract. References to subsections are to the Section in which that subsection occurs, unless otherwise provided. d. Examples. Examples are for purpose of illustration only. If any example is ambiguous or conflicts with the text that it illustrates, the text governs. e. Specifics no limitation on generalities. The mention of any specific duty or liability imposed upon Contractor may not be construed as a limitation or restriction of any general COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK liability or duty imposed upon Contractor by this Contract or Applicable Law. f. Ambiguities, Inconsistencies and Conflicts. If any provision contained in the body of this Contract is ambiguous, inconsistent with or conflicts with any Attachments or Exhibits to this Contract, the provisions of the body of this Contract will govern. g. Time for performance. Any reference to the number of days (or other period of time) in which any action must be taken means consecutive calendar days, without regard to intervening Holidays or Sundays. However, if any Performance Obligation (other than emergency services described in Section 9.07) must be performed on a Holiday or Sunday, the time for performance is extended until next Service Day. 20.03 Integration. This Contract contains the entire agreement between the Parties with respect to their rights and obligations under this Contract. This Contract completely and fully supersedes all prior understandings and agreements between the Parties with respect to their respective rights and obligations, including those contained in each of the following: (1) requests for proposals, (2) proposals, (3) memorandums, (4) correspondence, (5) telephone calls, (6) field trips, (7) interviews, (8) negotiations, and (9) KIB Governing Body sessions. 20.04 Governing Law. This Contract is governed by, and construed and enforced as required by, the Applicable Law of the State, without giving effect to the State's principles of conflicts of laws. 20.05 Severability. If any clause, sentence, provision, subsection, Section or Article of this Contract or Exhibit or Attachment to this Contract (a "Contract Provision ") is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction, then the Parties will take the following actions: (1) promptly meet and negotiate a substitute for the Contract Provision and any related amendments, deletions or additions to other provisions of this Contract which together effect the Parties' original intent to the greatest extent allowable under Applicable Law; and (2) if necessary or desirable to accomplish preceding item (1), apply to the court that declared said invalidity for a judicial construction of the substituted Contract Provision and any amendments, deletions or additions to this Contract. Within 10 days of any KIB's request, Contractor will pay KIB half of the Direct Costs of that application. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK The unconstitutionality, illegality, invalidity, non - binding nature or unenforceability of any Contract Provision will not affect any of the remaining provisions of this Contract. This Contract will be construed and enforced as if the Contract Provision did not exist. However, if any Contract Provision with respect to KIB direction to a Solid Waste Management Facility is ruled unconstitutional, illegal, invalid, non - binding or unenforceable by any court of competent jurisdiction, then KIB in its sole discretion may take either of the following actions: (3) sever that Contract Provision and construe and enforce this Contract under this Section, or (4) terminate this Contract. Contractor agrees not to challenge the constitutionality, legality, validity, enforceability or binding nature of either of the following provisions of this Contract: (5) Contractor obligation to deliver Refuse to KIB Landfill, (6) Contractor obligation to any other type of Solid Waste (such as recyclables) to any other Solid Waste Management facility as directed by KIB. 20.06 Interpretation. This Contract must be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Contractor acknowledges that it determined to provide Contract Services in KIB and execute this Contract upon its own choice and initiative and that it had the opportunity to submit comments, recommend changes and take exception to the proposed provisions of this Contract during the procurement process. Each Party represents and warrants that it has reviewed this Contract and has either commented upon this Contract or had the opportunity to do so, with advice of its attorneys. No provision in this Contract may be construed against KIB solely because KIB prepared this Contract in its signed form. 20.07 New Contract. This Contract is a new obligation between the Parties and is a novation, substitution and replacement for any present or prior contracts or agreements between the Parties connected with or related to MSW Management Services. ARTICLE 21: EXECUTION OF CONTRACT. 21.01 Execution in Counterparts. This Contract may be signed in any number of original counterparts. All counterparts will constitute but one and the same Contract. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 21.02 Authority to Execute. a. KIB. KIB warrants that its officers listed below have been duly authorized to execute this Contract on its behalf. b. Contractor. Contractor warrants that the individuals listed below have been duly authorized to execute this Contract on behalf of Contractor. KODIAK ISLAND BOROUGH ALASKA PACIFIC ENVIRONMENTAL Alaska, a political subdivision SERVICE, LLC By: By: Name: Rick L. Gifford Name: Jeff Riley Title: Manager Title: Chief Operations Officer Dated: Dated: ATTEST: ATTEST: By: KIB CLERK Name: Name: Nova M. Javier, CMC Dated: Dated: APPROVED AS TO FORM: KIB COUNSEL Name: Dated: COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 2.01: CONTRACTOR'S REPRESENTATIONS AND WARRANTIES. a. Status. Contractor is a corporation duly organized, validly existing and in good standing under the laws of the State and is qualified to do business in the State. b. Authority and Authorization. Contractor has full legal right, power and authority to execute and deliver this Contract and satisfy its Performance Obligations. This Contract has been duly signed and delivered by Contractor and constitutes a legal, valid and binding obligation of Contractor enforceable against Contractor in accordance with its terms. c. No conflicts. Neither the execution nor delivery by Contractor of this Contract, the performance by Contractor of its Performance Obligations, nor the fulfillment by Contractor of the terms and conditions of this Contract: (1) conflicts with, violates or results in a breach of any Applicable Law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any Regulatory Authority or any agreement or instrument to which Contractor or any of its Affiliates is a party or by which Contractor or any of its Affiliates' properties or assets are bound, or constitutes a default there under; or (3) will result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. d. No approvals required. No approval, authorization, license, permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, Governing Body, agency or instrumentality is required for the valid execution and delivery of this Contract by Contractor, except those that have been duly obtained from its Board of Directors or other governing body. e. No litigation. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, Governing Body, agency or instrumentality pending or, to the best of Contractor's knowledge, threatened, by or against Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would adversely affect the performance by Contractor of its obligations under this Contract or in connection with the transactions contemplated by this Contract, or which, in any way, would adversely affect the validity or enforceability of this Contract or any other agreement or instrument entered into by Contractor in connection with the transactions contemplated by this Contract. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending or threatened, by or against KIB by Contractor. f. Due Diligence. Contractor has made an independent investigation, examination and research satisfactory to it of the conditions and circumstances surrounding this Contract and best COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK and proper method of providing Contract Services (including the types of Contract Services) and labor, equipment and materials for the volume of Contract Services to be provided. Contractor agrees that it will make no claim against KIB based on any good faith estimates, statements or interpretations made by any officer, employee or agent of KIB that proves to be in any respect erroneous. g. Compliance with Applicable Law. Contractor further represents and warrants that it has fully complied with all Applicable Law, including without limitation law relating to conflicts of interest, in the course of procuring this Contract. h. Truth and Accuracy of Application etc. Information in the following documentation provided by Contractor is true, accurate and complete: (1) Contractor Documentation, and (2) Contractor's proposal submitted in response to KIB's Request for Proposals for this Contract (together with any addendum thereto), including all clarifications to that proposal. Contractor will promptly amend Contractor Documentation to reflect any changes in Contractor Documentation and submit it to KIB. ATTACHMENT 2.02: KIB'S REPRESENTATIONS AND WARRANTIES. a. Status. KIB is a political subdivision of the State, duly organized and valid existing under the Constitution and laws of the State. b. Authority and Authorization. KIB has full legal right, power and authority to execute, deliver, and perform its obligations under this Contract. This Contract has been duly signed and delivered by KIB and constitutes a legal, valid and binding obligation of KIB enforceable against KIB in accordance with its terms. c. No Warranty Regarding Waste Characterization or Volume. KIB makes no warranties with respect to the Solid Waste characterization or volume. KIB disclaims any warranties, either express or implied, as to the merchantability or fitness for any particular purpose of materials that Contactor handles under this Contract. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 4: REFUSE COLLECTION AND TRANSPORTATION TO KIB LANDFILL. 4 -3.03 Obligations Upon Termination or Expiration. a. Contractor Removal of Refuse Containers. If KIB does not exercise its option under Subsection b to acquire any or all Refuse Containers, then upon expiration or termination of this Contract, Contractor will remove Refuse Containers at the following times: (1) after replacement Carts are provided to the Customer's Premises, or (2) at the time directed by KIB. Contractor will use Reasonable Business Efforts to reuse or recycle all removed Refuse Containers. For example, Contractor might ship Carts to the Cart manufacturer of Carts for recycling, or deliver durnpsters for metal salvage.. b. Contractor Transfer of Container Ownership to KIB. In consideration of the privileges granted under this Contract and for Contractor Service Fees previously received during the Term, within 5 KIB Business Days of KIB direction, Contractor will transfer to KIB ownership of any or all Refuse Carts and any or all Refuse Dumpsters in the following events: (1) the effectiveness of any Notice of termination by KIB under this Contract, or (2) the expiration of this Contract. Upon KIB request, Contractor will promptly provide KIB with the following documentation: (3) any or all Contract Service Asset Documents, such as manufacturers warranties, maintenance agreements, financing documents and recorded financing statements, and (4) any other documentation evidencing transfer of ownership of any or all Refuse Containers to KIB. c. Survival. CONTRACTOR'S OBLIGATIONS IN THIS SECTION SURVIVE TERMINATION OR EXPIRATION OF THIS CONTRACT. 4 -4.01 Automated Refuse Collection in Carts. a. Automated or Semi - automated Cart Collection. Contractor will Collect all Carts by automated or semi - automated manner. "Automated" means that Carts are lifted from their Set- out Site, emptied and set back down at their Set -out Site by mechanical means. "Semi- automated" means that Carts are rolled by individuals from the Carts' Set -out Sites into position near the Collection Vehicle; lifted, emptied and set back down by mechanical means; and rolled back by individuals to their Set -out Sites. b. Default Residential /Optional Commercial or Multifamily Cart Collection. (1) Residential. Beginning on the Collection Commencement Date, Contractor will Collect all Residential Refuse weekly, on the same Regularly Scheduled Collection Day. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK c. Cart options. d. Cart Roll -out Service. (2) Commercial or Multifamily Collection. Beginning on the Collection Commencement Date, at the request of the owner or occupant of a Commercial or Multi - family Premise, Contractor will Collect all Commercial and Multifamily Refuse weekly, on the Regularly same Scheduled Collection Day. (1) Default Residential Service: 64 gallon Refuse Carts. Unless Contractor must provide Roll -Off Containers under Section 6 -6.02, Contractor will provide each Residential Premise with one 64 -gallon capacity Refuse Cart for the charge listed on the Service Fee Schedule, except if the owner or occupant of that Residential Premise directs Contractor to provide a different number or capacity of Carts under following Subsection c(2). (2) Larger /smaller, more /fewer Refuse Carts. At any Cart Customer's request, Contractor will provide that Customer's Premise with Refuse Carts in alternative number and capacity options offered on the Service Fee Schedule (such as 32 or 96- gallon capacity Cart) for the corresponding additional (or lesser) charges listed on the Service Fee Schedule. (1) Scope of Service. At Customer request, Contractor will provide Roll -out Service for Refuse Carts. (2) Without charge /with surcharge. (i) Without charge. Contractor will provide Roll -out Service to the Elderly or Handicapped individual, if Customer certifies that no able - bodied person resides at the Customer's premise, which certification Contractor may confirm; (ii) With surcharge. Contractor will provide Roll -out Service to any Customer who does not meet the preceding listed criteria for the surcharge listed on the Contractor Service Fee Schedule. 4 -4.02 Collection in Dumpsters or Compactors. a. Commercial or Multifamily Collection. Beginning on the Collection Commencement Date, Contractor will Collect all Commercial or Multifamily Refuse at least weekly, or on additional days agreed to with Customer, on the same Regularly Scheduled Collection Day or days. COLLECTION SERVICES C Island Borough, AK b. Dumpster Options (1) Default Service: 2.0 Cubic Yard capacity Dumpster. Contractor will provide each Commercial Premise and Multi - family Premise with one 2.0 Cubic Yard capacity Dumpster to be Collected once weekly for the charge listed on the Service Fee Schedule, except in the following circumstances: (i) the owner or occupant of that Premise directs Contractor to provide the following alternative Containers: A. a different capacity of Dumpster or frequency of Collection under following subsection b(2), or B. one or more Carts under Section 4-4.01.b.(2), (c), or (2) the Contractor determines in its sole discretion, that there is insufficient room at a Commercial Set -out Site to place or safely Collect one or more Dumpsters for each Customer using that Commercial Set -out Site, in which circumstance the Contractor will take the following actions, in its sole discretion: (i) provide one or more Carts in the capacity and number that each Customer needs to store its discarded Refuse pending Collection, or (ii) allow one or more Customers to share a Dumpster. Contractor will provide locks for any Dumpster promptly upon Customer request. c. Larger /smaller Dumpsters, more /less frequent Collection. At a Dumpster Customer's request, Contractor will provide that Customer's Premise with Dumpsters in alternative number and Collection frequency options offered on the Service Fee Schedule for the corresponding additional (or lesser) charges listed on the Service Fee Schedule. d. Compactors. Contractor is not obligated to provide a Compactor to any Customer. However, on request of the owner or occupant of a Commercial or Multi - family Premise, Contactor will Collect all Refuse placed inside each Compactor at the frequency requested by that Customer and for the charge listed on the Service Fee Schedule. 4 -4.03 On -call, Monthly Bulky Items Collection. a. Driver report / KIB request. When Collecting any Refuse, Contractor's drivers must immediately report to Contractor any Bulky Item he or she observes Discarded at a Dumpster Set -out Site. b. On -call Collection Service and Charges. Within 3 days of Customer or KIB request, Contractor will Collect up to 4 X 5 X 6 cubic feet of Bulky Items that are Discarded at a Residential Set -out Site for the surcharge listed on the Contractor Service Fee Schedule. c. Diversion Program. Contractor will use Reasonable Business Efforts to Divert all Bulky Items that it Collects. For example, Contractor might cooperate with a thrift store to pick up or accept Contractor's delivery of furniture, or deliver appliances for metal recovery. Contactor will transport and deliver Bulky Items it does not divert to a facility approved by KIB. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 4 -4.04 Emergency Services. a. Nature of emergency services. Within 24 hours of oral notice by KIB, followed as soon as practicable by written notice, Contractor will provide emergency services beyond the scope of Contract Services at the times and to the extent directed by KIB, including providing vehicles, drivers and other equipment and personnel to cleanup Solid Waste and other debris consequent upon natural disasters such as earthquakes, storms, floods, riots and civil disturbances, for which Contractor will be compensated Contractor's Reimbursement Costs. b. Reporting. Contractor will cooperate with KIB, the State, and federal officials in filing information related to a regional, state or federal declared state of emergency or disaster as to which Contractor has provided services under this Section. c. Emergency Backup Service Plan. Contractor will develop an emergency backup service plan in form satisfactory to KIB and implement that plan if, due to Uncontrollable Circumstances or for any reason whatsoever, Contractor fails, refuses, or is unable for a period of 48 hours to collect and /or at any time to transport Solid Waste or any portion thereof to the applicable Solid Waste Management Facility and KIB Manager determines there is danger to the public health, safety, or welfare. 4 -4.09 Mandatory Service Notice. Within 7 Service Days after receiving notice (based on Contractor's drivers' observations, information and belief or otherwise) that a formerly unoccupied Premise becomes occupied or the Customer occupying the Premises have changed, Contractor will give written notice to the owner or occupant of that Premises that Service is required unless Contractor has already received a request for Service at that Premise or KIB revokes provisions of the KIB Code requiring mandatory Service. 4 -14.01 Compensatory damages. Contractor will pay KIB the following Reimbursement Costs: ATTACHMENT 5: FUTURE PROGRAM CONSIDERATION: RECYCLABLES COLLECTION AND PROCESSING . 5 -5.01 KIB Recyclables Program Specifications. In addition to any other changes in Performance Obligations implemented under and subject to the protocol in Article 12, KIB may direct Contractor to implement a recycling program. KIB may prescribe the scope of recycling services, performance specifications and performance standards. KIB will request Contractor to submit a proposal to implement KIB's recycling program under Article 12 before requesting any other Person to submit a proposal or negotiating with any other Person. However, if KIB and (1) for enforcing any Performance Obligation to deliver Refuse to KIB Landfill or Solid Waste to any other approved Solid Waste Management Facility, and (2) following a breach of that Performance Obligation, to monitor Contractor's Vehicles routes. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor do not reach agreement by the end of the period specified in Article 12, KIB may take either of the actions permitted under 12.02. ATTACHMENT 6: DROP BOX COLLECTION AND TRANSPORTATION. 6 -6.01 On -call Temporary Dumpster and Roll -off Service. a. Container delivery. Upon a Customer request, Contractor will deliver a 4 -Cubic Yard Dumpster or Roll -Off Container in any capacity provided on the Service Fee Schedule at the following times: (1) on the same Service Day if a Customer requests Service before 10 a.m. on that Service Day; (2) on the next Service Day if the Customer requests Service after 10 a.m. but before 4:00 p.m. on a Service Day, and (3) within two Service Days, if the Customer requests Service after 4:00 p.m. on a Service Day. b. Collection. Beginning on the Collection Commencement Date, Contractor will Collect all Refuse and C &D Debris in a 4 -yard Dumpster or Roll-off Container at the frequency requested by the Customer for the corresponding charges listed on the Service Fee Schedule. c. Container pick up. Contractor will pick up that 4 -Cubic Yard Dumpster or Roll -off Container within 2 Service Days of a Customer's request or other time agreed to between Contractor and Customer. d. Delivery to KIB Landfill. If Contractor cannot divert C &D Debris from disposal using Reasonable Business Efforts (for example, recovering metal for reuse), it will deliver it to KIB Landfill, subject to the same obligations that Contractor has with respect to Refuse under Attachment 8. (For example, as of the Contract Commencement Date, Contractor cannot deliver C &D Debris to KIB Landfill on windy days when directed by KIB.) 6 -6.02 Weekly Residential Roll -off Service Beginning on the Collection Commencement Date, Contractor will Collect all Residential Refuse weekly, on the same Regularly Scheduled Collection Date, in Roll -off Containers at Residential Premises identified by the KIB Representative from time to time in Notice to Contractor. As of the Contract Commencement Date, Contractor will Collect Solid Waste in Roll -off Containers in the following areas known colloquially as: Bells Flats, Chiniak and Pasagshak. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK ATTACHMENT 7: GENERAL COLLECTION PERFORMANCE OBLIGATIONS AND STANDARDS. 7 -7.01 Missed Pickups and Other Complaints. a. Corrective action. (1) Missed Pickups etc. Absent Contract Service Exceptions, on the next Contract Service Day following telephonic or other notice to Contractor, Contractor will Collect without charge any Container that Contractor should have Collected, delivered, exchanged or repaired but did not Collect, deliver, exchange or repair. If Contractor does not timely provide the Contract Service, KIB may provide the Contract Service itself or through a third party and Contractor will reimburse KIB's Reimbursement Costs thereof. (2) Other Complaints. Contractor will respond to all Customer inquiries and complaints (including any inquiry or complaint left with the telephone answering service) within 24 hours following notice to Contractor and handle complaints substantially as required by the Customer Complaint Protocol. (3) No referral to KIB. Contractor will not refer or forward any Customer to KIB for resolution of complaints or answers to inquiries unless the Customer insists, in which event Contractor will refer the Customer to the KIB Representative. (4) Employee Training. Contractor will train each of its Customer service employees to follow the Customer Complaint Protocol upon starting employment and periodically thereafter. b. Customer Complaint Protocol. Contractor will provide KIB with a copy of the Customer Complaint Protocol in form satisfactory to KIB. c. Records. Contractor will maintain a daily written record of every inquiry and complaint received by Contractor, including information required by KIB, and provide KIB with a copy of those inquiries and complaints by the 15 day of each month. d. KIB access to records. Contractor will allow KIB access to complaint records at Contractor Office during Contractor Office Hours. Contractor will provide copies of any Customer complaints and the resolution of those complaints to KIB within two hours of KIB request, and other Records, promptly. e. Reimbursement of KIB Cost. Contractor will reimburse KIB's Reimbursement Costs incurred by a KIB Related Party or Parties for the following: (1) more than 2 hours in the aggregate resolving any one Customer's complaint or answering that one Customer's question, or (2) more than 1 hour in any work week (KIB Business Days generally Monday COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK through Friday) resolving all Customers' complaints or answering all Customer's questions. KIB's invoice for KIB's Reimbursement Costs must indicate the following: (i) the name and address of the Customer, (ii) nature of complaint or inquiry, (iii) amount of time spent by KIB employee or other Person, (iv) hourly fees for KIB employees or fees of other Person, and (v) cost of materials or other disbursements, including phone and postage costs, required to resolve the complaint or answer the question. 7 -7.02 Unpermitted Waste Screening. a. Unpermitted Waste Screening Protocol. Contractor will implement the Unpermitted Waste Screening Protocol in compliance with Applicable Law and in a manner satisfactory to KIB. b. Inadvertent Delivery of Unpermitted Waste. If Contractor inadvertently delivers Unpermitted Waste to a Solid Waste Management Facility, Contractor will use its best efforts to identify the Customer that discarded the Unpermitted Waste and cooperate with the Solid Waste Management Facility in investigations. Contractor will contact any identified Customer and provide that Customer with information on safe disposal of Unpermitted Waste. 7 -7.03 Contract Service Exceptions. a. Collection Exception. Contractor is not obligated to Collect any Solid Waste in event of any Contract Service Exception. b. Non - Collection Notice. If Contractor does not Collect any Solid Waste in event of a Contract Service Exception, Contractor must complete and leave a Non-Collection Notice securely attached to a Container at or near the Set -out Site (except in the event of unsafe conditions, when Contractor will use best efforts to immediately notify the Customer of the unsafe condition, including leaving a Non-Collection Notice on the door of the Premise (if safe) or telephoning Customer.) (1) A Non-Collection Notice with respect to Solid Waste that is not properly placed inside Containers, must contain the following information: (i) reminder that the Customer must place Solid Waste (except Bulky Items) in a closed Container; (ii) notice that Contractor is authorized to charge the Customer the surcharge listed on the Service Fee Schedule each time the Customer sets out a Container that is filled above the Container rim and will not fully close; (iii) instructions on how the Customer can subscribe to additional Refuse Containers (including any additional surcharges), or request on -call Collection of Bulky Items. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (2) A Non-Collection Notice with respect to Unpermitted Waste (such as hazardous waste) or unsafe materials must describe where Customer can dispose of the Unpermitted Waste or those materials, such as at KIB Landfill or other location designated by KIB. Promptly upon KIB request, Contractor will inform KIB of each Customer to which Contractor gave a Non-Collection Notice. 7 -7.04 Transition and Customer Education. a. Contractor Transition. b. Compliance with Transition Plan. Contractor will timely and fully implement its Transition Plan. Contractor will direct employees to work overtime and /or add extra shifts, as necessary, without Contractor Service Fee increase, to assure compliance with the Plan. Contractor will submit to KIB written status reports in form and content satisfactory to KIB on a weekly basis, commencing no later than the Friday of the week following the Contract Commencement Date. On the first KIB Business Day each week and promptly upon KIB request, Contractor will meet with KIB to review status of Plan implementation. 7 -7.05 Other Special Customer Services. Upon Customer request, Contractor may provide special services in addition to prescribed Contract Services following approval by KIB based on the following information: (1) scope of services, and (2) any surcharge. (1) Necessity for Smooth Transition. Contractor acknowledges that it is of the utmost importance to KIB that the transition from solid waste services provided before the Contract Commencement Date to Contract Services will proceed smoothly to the satisfaction of Customers, including the following: (i) timely Collection at each Customer's Premise, (ii) accurate billing of Customers for Customer Special Service Surcharges, (iii) distributing Refuse Carts or other Carts, as applicable, (iv) changing pickup days or times, (v) changing the scope of services or program specifications, and (vi) responding to Customer complaints and inquires. (2) Transition Plan contents. Contractor will implement the Transition Plan in a manner satisfactory to KIB. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK 7 -7.06 Contract Service Assets. a. Operation and maintenance yard; Contractor Office. b. Use and possession; acquisition. Contractor will either own each Contract Service Asset or ensure that any lease, financing documentation, rents or purchases by installment or conditional sale agreement with respect to each Contract Service Asset allows KIB use and possession of the Contract Service Asset in order to realize KIB's rights to use and possession and, with respect to Carts, acquisition or purchase. Any Contract Service Asset Document, will: (1) allow the Guarantor to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services; (2) allow KIB or its designee to assume Contractor's obligations and to continue use of Contract Service Assets in performing Contract Services. Contactor will provide a copy of the Contract Service Asset Document upon KIB request. d. Inventory. Contractor will prepare a preliminary inventory of Refuse Carts that Contractor will acquire or supply as required by the Transition Plan as Contractor Documentation. In its next Monthly Report following delivery of any Cart as required by the Transition Plan, Contractor will complete and finalize the inventory. In each Annual Report following completion of the Transition Plan or at any time promptly upon the direction of KIB, Contractor will update the inventory to reflect acquisition or replacement of Refuse Carts, accompanied by a representation and warranty signed by Contractor that all Refuse Carts meet specifications. 7 -7.07 Customer Billing; Bill & KIB Fee Collection. a. Customer service fees. Contractor will provide billing and bill collection services at the time and in the manner satisfactory to KIB, in amounts equal to the Contractor Service Fee and any other fees directed by KIB. (1) Operation and maintenance yard; Contractor Office. Contractor will secure possession and use of operation and maintenance yard and Contractor Office located on publicly maintained roads. (2) KIB access. KIB and designees of KIB may enter Contractor's operation and maintenance facilities or Contractor Office during Contractor Office Hours on 2 hours prior telephone, E -mail or facsimile notice, and investigate, observe, inspect and review Contractor's operations and Contract Service Assets. Contractor will make available a management representative or other authorized person to conduct each KIB representative through facilities. This right does not limit KIB's right to inspect Vehicles. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK b. KIB fees. (1) Amount. On behalf of KIB, Contractor will charge Customers a fee or fees in the amount directed by KIB. Contractor will not separately itemize that fee or fees on invoices to Customers or any other correspondence with Customers, unless authorized by KIB. (2) Recording Fees. Upon receipt of any Customer's payment of fees for Contract Service, Contractor will simultaneously record receipt of KIB's fees in separate accounts within Contractor's detail general ledger. Those fees belong to KIB and not to Contractor. (3) 7 -7.08 Containers. Remitting Fees. Contractor will remit to KIB amounts equal to KIB's fees at the time directed by KIB. Contractor may retain the remaining amounts received from Customers as compensation for fully and timely satisfying Contractor's obligations under this Agreement. a. Providing Containers (1) New Carts and New or Used Dumpsters. Contractor will provide the following Containers no later than the date provided in Contractor Transition Plan: (i) new Carts having the specifications described in Contractor Documentation as approved by KIB (including bear Carts, a cart designed to be resistant to opening by bears, set out at Premises located outside the City of Kodiak), that can be recycled, and with warranty of at least one year's duration; and (ii) new Dumpsters, having the specifications described in Contractor Documentation as approved by KIB. (2) New or Used Roll -off Containers. Contractor will provide Roll-off Containers no later than the date provided in the Contractor Transition Plan. Contractor may provide Roll -off Containers that are not new if, in the sole judgment of the KIB Representative, they are in good repair and appearance. Contractor is not obligated to provide a Customer with a Compactor. Contractor will provide additional and replacement Containers (other than Compactors) as necessary to ensure that Customer always has a Container. (2) Container Inventory. As part of Contactor Documentation, Contractor will provide KIB with a copy of Service Asset Documents related to Container acquisition and financing and Container inventory promptly upon Container acquisition and thereafter promptly at KIB request. Contractor will update the Service Asset Documents and Container inventory in each Annual Report and within 10 days of KIB request. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 4 -4.01 failure to provide Contract Services for any Customer (including missed pickups of Carts) $250 per each failure /per Customer / per day; as evidenced to satisfaction of KIB, including oral or written communication with Customer and review of that Customer's complaint log b. Changes in Service; Repair or Replacement. Contractor will exchange, remove and /or deliver Containers at the time directed by KIB and surcharges, if any, listed on the Service Fee Table, including for the following: (1) changes in Service, (2) repair of damaged Containers, and (3) replacement of damaged or stolen Containers. c. Locks. Within one week of Customer direction, Contractor will provide locks on a Dumpster for the surcharges listed on the Contractor Service Fee Schedule. 7 -7.09 Customer Service Subscription and Bill of Rights. a. Form and Content. Before commencing new Contract Service or changing Contract Service levels or frequency, Contractor will provide each Customer with a written Customer Service Subscription. Contractor may include a waiver of damage liability and /or Customer indemnity in connection with Collection on a Customer's private driveway or pavement in form and content satisfactory to KIB. b. Service Requests. Contractor will accept Customer's requests for commencement of or changes in regular or special Service by phone, mail, fax or E -mail. c. Copies. Contractor will provide KIB with a copy of any Customer Service Subscription promptly upon request. 7 -14.01 Liquidated Damages. Liquidated Damages in the chart below apply to each Breach established or substantiated to satisfaction of KIB, for each day (the first occurrence and continuation on successive days). For example, failure to correct a missed pickup would result in liquidated damages on the day of the scheduled pickup and each following day until corrected. KIB's assessment of Liquidated Damages for the following Breaches does not preclude KIB from enforcing the KIB Code for corresponding Violations. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 4 -4.01 failure to return emptied Container to Set -out Site $100 per failure /per Container /per Collection 7 -7.08 failure to deliver, repair, replace or pick- up Carts, Dumpsters or Roll -offs $100 per failure /per Customer /per day 9.01 / KIB Code failure to timely compensate Customer, or to repair or replace damaged pavements, utilities or Customer property $300 per failure /per Customer /per day 9.01 / KIB Code failure to clean up litter, spills, leaks $100 per incident /per day 9.01 / KIB Code, 10.01 failure to provide KIB access to or copies of Records (including Routing) $100/$200/$300/$400 if not provided within 7 / 14 / 21 / 28 days, of KIB request; and $500 for each week thereafter 4 -4.04 failure to timely return a KIB call in event of emergency $500 7 -7.01 / Customer Complaint Protocol failure to record a complaint $100 per failure 7 -7.01 / Customer Complaint Protocol failure to timely respond and resolve a Customer complaint $250 per failure /per Customer /per day 9.01 / KIB Code failure to observe Collection hours $250 per failure /per Customer 9.01 / KIB Code failure to observe Contractor Office Hours $250 per failure /per day 9.01 / KIB Code failure to disclose or correctly describe Service options to any Customer $100 per failure /per Customer 9.01 / KIB Code driving overweight vehicles $500 per incident 17.10 discourteous behavior by Contractor's employees or Subcontractors reported by or complained of by Customers to Contractor or KIB $300 per report or complaint / per Customer 9.01 / KIB Code noise emission in excess of prescribed levels $300 per Vehicle /per day Vehicle is used to provide Collection 9.01 / KIB Code failure to maintain Contractor's phone number on Vehicles $200 per failure /per Vehicle / per day Vehicle is in use to Collect Solid Waste 9.01 / KIB Code failure to clean up litter $100 per failure /per spill location /per day COLLECTION SERVICES C Island Borough, AK SECTION BREACH LIQUIDATED DAMAGE 9.01 / KIB Code failure to cover materials in open Collection Vehicles $100 per failure /per truck / per route (first pick -up until delivery to Solid Waste Management Facility 6-6.01e, [possibly Attachment 5, if recycling program implemented) failure to deliver any Solid Waste to a facility approved by KIB $1,000 per load for first failure; $5,000 per load for each subsequent failure 7 -7.07 KIB Code charging any Customer in excess of the scheduled Service Fee (such as the incorrect $ /Cart ) $500 per inaccurate invoice / per Customer 9.01 / KIB Code failure to submit any general Customer correspondence, promotional material, news releases, public education or community relations materials to KIB for KIB review $500 per failure /per Customer plus $100 per day prior to retraction or correction of misinformation identified by KIB ATTACHMENT 8: REFUSE DISPOSAL. 8 -1.01 Transportation to KIB Landfill. a. KIB Landfill. Contractor will transport and deliver all Refuse that it Collects to KIB Landfill. Contractor will coordinate that delivery with Holiday Collection schedules and closures for repair and maintenance. b. Compliance and cooperation. Contractor will ensure that its vehicles can pass in and out of the door at the baler at KIB Landfill. Contractor will cooperate with KIB Landfill operator and comply with all rules in effect at the KIB Landfill, including the following: (1) delivering Refuse only at the times and on the days specified by KIB; (2) following directions to unload Collection Vehicles in designated areas, (3) accommodating operations and maintenance activities, and (4) complying with Unpermitted Waste exclusion programs. c. Disposal Fees. Contractor will pay Disposal costs. 8 -1.02 Limited Disposal Defense and Indemnification. a. Conduct Included. Contractor will do the following: (1) indemnify, (2) defend with counsel approved by KIB, (3) release, and COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (4) hold harmless KIB and KIB's Related Parties from and against all Liabilities and Losses paid, incurred or suffered by, or asserted against, KIB or KIB's Related Parties, but only to the extent that those Liabilities and Losses are caused by the following: (i) Contractor negligence or misconduct. The wrongful, willful or negligent act, error or omission, or the misconduct of Contractor; (ii) Non - Customer materials. The collection, transporting, delivery, recycling, processing, composting, disposal or other handling by Contractor of Unpermitted Waste that Contractor Collects outside the Contract Service Area or from Persons other than Customers; (iii) Failure to Comply with Unpermitted Waste Screening Protocol. The failure of Contractor to train its employees as required by Applicable Law or the Unpermitted Waste Screening Protocol, whichever is more stringent; (iv) Contractor - identified Unpermitted Waste. The improper or negligent collection, handling, delivery, processing, recycling, composting or disposal by Contractor of Unpermitted Waste that Contractor inadvertently collects but that is subsequently identified as Unpermitted Waste. KIB acknowledges that the mere presence of hazardous waste in Refuse will not constitute negligence or in and of itself create any liability on the part of Contractor absent any of the circumstances described in items (i) through (iv) of this subsection. b. KIB Sole Negligence Excluded. Contractor is not required to reimburse or indemnify KIB to the extent any Liabilities or Losses are due to the sole negligence of KIB with respect to Contract Services. c. Indemnity With Respect to Contract Services Only. Contractor's Indemnity described in this Section is limited to Liabilities and Losses resulting from and after the Contract Commencement Date. d. Statutory Agreement. Contractor's Indemnity under this Section is intended to operate as an agreement under 42 U.S.C. Section 9607(e) and any corresponding Applicable Law provisions of State, to insure, release, protect, hold harmless and indemnify KIB from Liabilities and Losses under this Section. Contractor's Indemnity under this Section includes the specific actions or inactions of Contractor described in items numbered (i) - (ii) consecutively of Subsection a (for example, a driver accepting a Customer bribe and illegally disposing of Unpermitted Waste that upon identification thereof, must be segregated and transported as required by Applicable Law). COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Service Description Contract Section Contractor Service Fee (monthly) On call Collection of Bulky Waste Attachment 4 $25.00 per call (not item) plus Direct Cost of Disposal Rollout Service for Non- eligible Customers Attachment 4- 4.01d Each additional 32 gallon Beginning 7 months after Collection Commencement Date, replacement of Cart in excess of once /calendar year Attachment 7- 7.04b $25.00 plus Direct Cost of Cart Bear lock for Customers in portion of Contract Service Area not required to have bear locks $38.31 One -time difference between Direct Cost of Cart with /without bear lock Up- the -Drive Service Additional Yardage Fee /Inappropriate Set -Out Capacity / # of Refuse Carts Monthly Service Fee 32 gallon $28.90 64 gallon $34.09 96 gallon $38.31 Each additional 32 gallon $28.90 Each additional 64 gallon $34.09 Each additional 96 gallon $38.31 Residential Roll -off $38.31 Additional Yardage Fee /Inappropriate Set -Out ATTACHMENT 13.01: CONTRACTOR SERVICE FEE SCHEDULE. Contractor Service Fees adopted by KIB as of the Contract Commencement Date are appended for convenience of the Parties to this Attachment. Under Article 13 and Applicable Law, KIB may amend these Fees, and the Fees will automatically be deemed to apply to this Contract without any further action. Contractor is deemed to have knowledge of Applicable Law, including KIB resolutions and ordinances. However, for convenience of administering this Contract, the Parties may from time to time amend this Attachment by attaching the most recent dated current Contractor Service Fee resolution or ordinance to this Attachment. In addition, if Customer requests Service at a Receptacle capacity and /or Collection frequency not provided in the Contractor Service Fees adopted by KIB, Contractor may charge that Fee following KIB approval and Customer agreement. Contractor Service Fee for Carts (Section /Attachment 4) Contractor Service Fee Surcharges for Carts COLLECTION SERVICES CONTRACT 1 Island Borough, AK Dumpster Size Pickups per Week /Contractor Service Fee (monthly) 1 2 3 4 5 2 yard $176.93 $353.86 $530.79 $707.72 $884.65 2.6 yard $222.72 $445.44 $668.17 $890.89 $1,113.61 3 yard $281.40 $562.79 $844.19 $1,125.58 $1,406.98 3.6 yard $302.24 $604.48 $906.73 $1,208.97 $1,511.21 4 yard $355.11 $710.22 $1,065.33 $1,402.44 $1,775.55 5 yard $357.55 $715.10 $1,072.65 $1,430.20 $1,787.75 5.5 yard $371.76 $743.52 $1,115.28 $1,487.40 $1,858.80 6 yard $424.94 $849.88 $1,274.82 $1,699.76 $2,124.70 8 yard $531.18 $1,062.36 $1,593.54 $2,124.72 $2,655.90 Compactor Service Description Agreement Section Amount Change in size and number of Dumpster more frequently than once per Contract Year Attachment 4- 4.02b2 $20.00 per exchange per Dumpster Locks on Dumpster Attachment 4- 4.402 Additional $5.00 per month Contractor Service Fee for Dumpsters (Section /Attachment 4) *Contractor Service Fee for multiple Dumpsters is equal to the above scheduled amounts multiplied by the number of Dumpsters. Contractor Service Fee Surcharges for Dumpsters COLLECTION SERVICES CONTRACT 1 Island Borough, AK ATTACHMENT 20.01: DEFINITIONS. Affiliate means a Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, Contractor. For the purpose of this definition, "control" has the meaning provided in Rule 144 of the Securities Act of 1993. Affiliate Parent means an Affiliate that, directly or indirectly, through one or more intermediaries, controls Contractor. Annual Report means the Report required under Section 10.02 in form and content satisfactory to KIB. Applicable Law means any or all of the following enacted, adopted, promulgated, issued, ruled, ordered, determined or otherwise made by any Regulatory Authority that apply to or govern Contract Services or the performance of the Parties' obligations under this Contract: (1) laws, statutes, (2) rules, regulations, (3) guidelines, (4) Permits, (5) actions, determinations, orders, or (6) other requirements, including Applicable Law concerning the following: (7) health, (8) safety, (9) fire, (10) labor relations, (11) mitigation monitoring plans, (12) building codes, (13) zoning, (14) non - discrimination, (15) Vehicles: such as: (i) air emissions (smog checks); tires; documentation through maintenance log or otherwise of a safety compliance report; Vehicle highway lighting, flashing and warning lights, clearance lights, and warning flags; registration; weight limits; cleaning; enclosure /water -tight beds; (ii) The appropriate class of drivers' licenses issued by the State Department of Motor Vehicles; (iii) any State laws relating to operating equipment construction, safety, and parking and identification, (16) Carts: such as: (i) maintenance and placement of Carts; (ii) placing Contractor's name and telephone number on Receptacle; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (17) Labor: (i) Drug and alcohol testing; (ii) The Occupational Safety and Health Act, (29 U.S.C. §651 et seq.), including the Solid Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., Parts 257 and 258); and corresponding State requirements; (iii) Immigration Reform and Control Act of 1986 (PL.99-603), (18) Environmental Protection: (i) CERCLA, (ii) RCRA, (iii) Clean Air Act, (42 U.S.C. §1351 et seq., 42 U.S.C. §7401 -7642) and Clean Water Act, and; (iv) corresponding State requirements; (v) Emergency Planning and Community Right to Know Act, (42 U.S.C. §11001 et seq.); (vi) regulations governing the recovery of ozone - depleting refrigerants during the Disposal of air conditioning or refrigeration equipment, including 40 C.F.R. Part 82; (vii) any wash -down requirements for containers, trucks or facilities, (19) KIB Code, (20) Miscellaneous: (i) Civil Rights Act of 1964 (Sub chapter VI or Chapter 21 of Title 42); (ii) Customer's privacy rights. Reference to Applicable Law includes amendments and supplements to or replacement, restatement or recodification occurring after the Contract Commencement Date. Base Service Level is described on the Contractor Service Fee Schedule. Bear Cart Breach means Contactor's failure to fully and timely meet any Performance Obligation. Bulky Items) means any large item of Solid Waste that can be safely lifted by two individuals using a dolly, generated at Residential Premises and discarded at Residential Set -out Sites, such as the following: (1) furniture, including metal desks and storage cabinets, (2) pianos and organs, (3) televisions, (4) large appliances, including washers, driers, refrigerators, freezers, dishwashers and stoves, (5) toys, bikes and dismantled swing sets, (6) lawn mowers and snow blowers with no gas or oil in them, up to 4 auto or pickup tires per Customer each calendar month, with rims removed, COLLECTION SERVICES C Island Borough, AK (7) any item (other than lumber) that can be cut or broken down meeting the following requirements: (i) not longer than 4 feet in length, (ii) weighing no more than 70 pounds. Bulky Items does not mean the following: (1) material generated at non - Residential Premises, including commercial business operations, (2) bundled Yard Waste, branches, (3) sod, soil and rock, (4) broken concrete and asphalt, (5) brick, block and stone, (6) railroad ties or similar type of retaining wall timbers, (7) remodeling debris, including shingles, (8) carpeting, (9) sinks, concrete laundry tubs and cast iron plumbing fixtures, (10) windows and doors, (11) lumber, (12) animal waste, including all excrement from domestic animals and fowl, and all hay, straw or other materials that have been used for animals' or fowls' bedding, (13) liquids, including paint, (14) hazardous waste, including household hazardous waste, (15) fuel oil tanks, (16) any automotive parts (including vehicle batteries and tires). C &D Debris means any Solid Waste discarded in Dumpsters or Roll -off Containers that Contractor must Collect under Section 6 -6.01, such as the following: (1) bundled Yard Waste, branches, (2) railroad ties or similar type of retaining wall timbers, (3) remodeling debris, including shingles, (4) carpeting, (5) sinks, concrete laundry tubs and cast iron plumbing fixtures, (6) windows and doors, (7) lumber. Calendar Year means a period of 12 months of 365 or 366 consecutive days beginning January 1 and ending December 31. (Compare "Contract Year') Cart means a wheeled receptacle that can be emptied by either semi- or fully- automated vehicles. Change in Law means the following changes occurring after the Contract Commencement Date: (1) the adoption, promulgation, repeal, modification, amendment or other change in Applicable Law or change in judicial or administrative interpretation thereof occurring, other than: COLLECTION SERVICES C Island Borough, AK (i) laws with respect to taxes based on or measured by net income, or (ii) any unincorporated business, payroll or Contract taxes levied by any tax governmental authority (other than any taxes levied by KIB that are obligations of Contractor and not merely fees that Contractor must collect on behalf of KIB), or (iii) employment taxes; or (2) any order or judgment issued by a Regulatory Authority that binds Contractor or has a material impact on Contract Service: (i) if the order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and (ii) unless excused in writing from so doing by the other Party, the Party relying thereon will make or have made, or will cause or have caused to be made, Reasonable Business Efforts (such as retaining counsel) to contest the order or judgment (it being understood that contesting in good faith an order or judgment will not constitute or be construed as a willful misconduct or negligent action of that Party); or the imposition by a Regulatory Authority of any new or different material conditions in connection with the issuance, renewal, or modification of any Permit; or (4) a Regulatory Authority's (i) failure to issue or renew any Permit, (ii) delay in issuing or renewing any Permit, or (3) (iii) suspension, interruption or termination of, any Permit; provided the failure, delay, suspension or termination is not due to the willful misconduct or negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible. Collect, Collection or Collecting other form thereof means pick -up and removal of discarded Solid Waste required under this Contract, including Sections 4 -4.01 (from Carts), 4.02 (from Dumpsters) and 4.03 (Bulky Items), 6 -6.01 (4 -yard Dumpsters and Roll -Off Containers) and 6- 6.02 (Roll -off Containers). Collection Commencement Date means the date (July 1, 2010) on which Contractor must begin Collecting solid waste at Customer Set -out Sites. (Compare "Contract Commencement Date".): (1) Attachment 4 -4.03 (residential Carts), (2) 4 -4.04 (commercial Dumpsters), (3) 6 -6.01 (on -call Roll -Off containers), and (4) 6 -6.02 (permanent Roll -off Containers). Collection Hours means the time during which Contractor can Collect Solid Waste under the KIB Code. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Commercial describes Persons (such as Customers) or things (such as Carts, Premises or types of Solid Waste) in the Contract Service Area that are not Residential or Multi - family. Commercial Customer means a Customer who owns or occupies a Commercial Premise. Commercial Premise means each Premise containing that is not a Residential Premise or Multi- family premise, such as businesses. Compactor means a receptacle containing a ram that pushes and compresses waste into a container or bale. Compensatory Damages means "Compensatory Damages" described in Sections 14.01 and 14.05. Contract means this agreement, including the following: (1) all Attachments, (2) all Exhibits and (3) all appended documentation which Attachments, Exhibits and documentation are incorporated in this Contract by reference. Contract Commencement Date means the date March 1, 2010 in which this Contract is signed by Contractor and KIB. (Compare "Collection Commencement Date") Contract Manager means the following: (1) Contractor Representative (2) Contractor's officers (3) Contractor's directors, and (4) any individual in a Position of Influence. Contract Service means the MSW Management Services that Contractor must provide for Customers under this Contract, including Performance Obligations in the Attachments 4 (Collection in Carts, dumpsters or compactors), 5 (possible Collection of recyclables in the future), 6 (Collection in roll- offs), 7 (Collection specifications and standards; Customer billing and collection), and 8 (transportation to KIB landfill). (Compare "MSW Management Services") Contract Service Area means all land within the boundaries of KIB where Customer's premises can be served by roads. Contract Service Asset Document means a document that encumbers or limits Contractor's interest in a Contract Service Asset or that evidences Contractor's ownership interest in the Contract Service Asset, such as: (1) lease- purchase agreement, (2) installment purchase agreement, COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (3) (4) (5) financing statement, mortgage or other instrument establishing a security interest to or by Contractor, if requested by KIB, documents related to Contractor's rights with respect to the Contractor Service Asset, such as Cart warranties, and if requested by KIB, documents related to operation and maintenance of the Contractor Service Asset. Contract Service Assets means all property, both tangible and intangible (such as facility leases or equipment installment purchase agreements) used directly or indirectly in performing Contract Services, including the following: (1) vehicles, (2) receptacles, (3) operation /maintenance equipment and facilities, (4) administrative /office equipment (such as computer hardware and software, telephones /telefax) and offices. Contract Service Day means a weekday or Saturday on which Contractor must perform Contract Services, Holidays excepted. (Compare "day" and "KIB Business Day".) Contract Service Exceptions means: (1) Solid Waste Not Proper Placed in Receptacles: discarded Solid Waste (other than any Bulky Item) is not placed inside a Receptacle. (2) Any Receptacle that weighs more than limits prescribed on Receptacle's manufacturer warranty or other documentation acceptable to KIB and noted on the Receptacle. (3) Receptacle or Bulky Items Not Placed at Proper Set -out Site: a Receptacle is not discarded at the Set -out Site, or a Bulky Item or excess Refuse is not discarded at the Set -out Site under 4 -4.04. (4) Unsafe Condition: the Set -out Site is not safely accessible to Vehicles or Contractor's employees. (5) Unpermitted Waste or Unsafe Materials: Contractor observes Unpermitted Waste in a Receptacle or at the Set -out Site. Contractor means the following: (1) the Person named and signing the signature page of this Contract, (2) any transferee of that Person consented to by KIB under Section 16.01 (3) for purposes of Indemnities, Contractor and Contractor's Related Parties. Contractor's actions and Performance Obligations include reference to any Subcontractor's actions under this Contract, as applicable, without specifying in each instance that Contractor must directly take those actions itself, or cause its Subcontractors to take those actions on Contractor's behalf. Contractor Documentation means documentation provided by Contractor to KIB under this Contract in form and content satisfactory to KIB, listed and collected in the Appendix. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Contractor Office means Contractor's office located in KIB at the address listed in the Appendix. Contractor Office Hours means at least 8:00 a.m. to 5:00 p.m. Monday through Friday (Holidays excepted). (Compare "KIB Office Hours") Contractor Payment Obligations means amounts Contactor owes to KIB, including: (1) damages, including Liquidated Damages and Compensatory Damages; (2) reimbursements to KIB, including KIB's Reimbursement Costs; (3) any other amounts provided in this Contract, such as costs of applying to courts for judicial construction of Contract Provisions as defined and under Section 20.05. Contractor Phone Hours are hours (excepting Holidays) between the following times: (1) 8:00 a.m. and 5:00 p.m., Monday through Friday, and (2) if Contractor provides Contract Services on Saturday, from 8:00 a.m. to noon on Saturdays. Contractor Representative means Contractor Representative named by Contractor under Section 17.07b and listed in Contractor Documentation. (Compare "KIB Representative".) Contractor's Reimbursement Costs means Contractor's Direct Costs plus 10% thereof. (Compare "KIB 's Reimbursement Costs.) Contractor's Related Parties means Contractor's employees, partners, officers, agents, Subcontractors, attorneys, consultants, licensees, invitees and Affiliates. Contractor's Related Parties are third party beneficiaries of provisions that reference them. (Compare "KIB 's Related Parties".) Contractor Service Fee means the amount listed on the Contractor Service Fee Schedule. Contractor Service Fee Schedule means the schedule appended to Attachment 13.01. Contractor Transition Plan means the plan under Attachment 7 -7.06 in form and content satisfactory to KIB. It is Contractor Documentation. Contract Year means each 12 -month period commencing July 1 and ending June 30, or with respect to less than 12 -month periods following execution, termination or execution of the Agreement, the portion of that 12 -month period. (Compare "Calendar Year") Criminal Activity means any of the following: (1) fraud or criminal felony offenses in connection with obtaining, attempting to obtain, procuring or performing a public or private agreement related to recyclables, yard waste, construction and demolition debris, garbage, refuse, or any other solid waste or MSW Management Services of any kind (including collection, hauling, transfer, processing, composting or disposal), including this Contract; COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK (2) (3) (4) (5) bribery or attempting to bribe a public officer or employee of a Regulatory Authority; or embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification or destruction of records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony; or unlawful disposal of hazardous, designated or other waste; or violation of the following: (i) securities or antitrust laws (such as laws relating to price - fixing, bid - rigging and sales and market allocation), and (ii) unfair and anti - competitive trade practice laws, including with respect to inflation of waste collection, hauling or disposal fees. Cubic Yard means 46,656 cubic inches. Customer or Customers means a Person who subscribes for Contract Services from Contractor. Customer Complaint Protocol means the protocol under Attachment 7 -7.01 in form and content satisfactory to KIB. It is Contractor Documentation. Customer Service Subscription means the service order form under Attachment 7 -7.09, in form and content satisfactory to KIB. It is Contractor Documentation. Day means a calendar day. (Compare "KIB Business Day" and "Contract Service Day".) Default means "Default" defined in Section 14.02. Direct Costs means the sum of the following: (1) payroll costs directly related to the performance, or management or supervision of any obligation under the provisions of this Contract, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, workers' compensation insurance, federal and state unemployment taxes and all medical and health insurance benefits, plus (2) the costs of materials, services, direct rental costs and supplies, plus (3) travel and subsistence costs, plus (4) the reasonable costs of any payments to Subcontractors (with respect to Contractor) or contractors (with respect to KIB) or third parties necessary to and in connection with Performance Obligations; plus (5) any other cost or expense which is direct or normally associated with a task performed; plus (6) reasonable litigation costs and expenses, including attorneys' fees (including the reasonable value of the services rendered by KIB Counsel's Office) investigation fees and expert witness fees. which Direct Costs are substantiated by: COLLECTION SERVICES CONTRACT 1 Island Borough, AK Direct Costs excludes profit or return on investment. Disposal or Dispose or other form thereof means final deposition or destruction of Solid Waste. Diversion or Divert means activities that reduce or eliminate the amount of Solid Waste from disposal. Dumpster means a receptacle for discarded solid waste that has slots to allow pick -up by the forklifts, generally a metal box with lid also referred to as "bin ". Elderly or Handicapped means any Residential Customer who meets the following criteria: (1) has handicapped status recognized by the State Department of Motor Vehicles, or Goods or Services means goods or services used in providing Contract Services, including the following: (1) labor, (2) leases and subleases, (3) equipment, (4) supplies, (5) capital, (6) insurance, if the insurer is an Affiliate, (7) bonds or other credit support if the surety or other provider is an Affiliate; and (8) legal, risk management, general and administrative services. Guarantor means the Person executing the Guaranty. Guaranty means the guaranty in substantially the form attached as Exhibit 11.04, as approved by KIB, signed by Guarantor. (7) a certificate signed by the principal financial officer of Contractor or an authorized representative of KIB, as the case may be, (i) setting forth the amount of the cost and the reason why the cost is properly chargeable to KIB or Contractor, as the case may be, and (ii) stating that the cost is an arm's length and competitive price, if there are competitive prices, for the service or materials supplied; and (8) if KIB or Contractor requests, as the case may be, the additional back -up documentation to substantiate any Direct Cost, including invoices from suppliers, Subcontractors and contractors. is over 65 years old as evidenced by birth dates on driver's licenses, birth certificates, passports, green cards or other documentation issued by a Regulatory Authority, and provides written representation that he or she is functionally unable to roll his or her Refuse Cart to the curb, and that there is no one else residing in that Customer's premises who is functionally able to roll that Refuse Cart to the curb. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Herein, Hereof, Hereunder and variations mean "in this Contract ", "of this Contract ", "under this Contract "; "hereinbefore" and "hereinafter" mean before and after the Contract Commencement Date, respectively. Holidays means days on which KIB offices are closed for business to the public, comprised on the Contract Commencement Date of the following days: (1) New Year's Day, (2) Martin Luther King Day (3) President's Day (4) Seward's Day (5) Memorial Day, (6) Independence Day, (7) Labor Day, (8) Veteran's Day (9) Thanksgiving Day and the day after Thanksgiving and, (1 0) Christmas. Including or Include or variations thereof means "including without limitation, "including, but not limited to" and "including, at a minimum ". Indemnities or Indemnity or Indemnification or variations thereof means hold harmless obligations, defenses, indemnities and releases under this Contract, including under Attachment 8 -8.01 and Section 11.02. Independent Expert is the Person having the qualifications and selected under Section 12.03. Insurance means the insurance coverage described in Section 11.01. KIB means the following: (1) Kodiak Island Borough, and (2) any transferee of Kodiak Island Borough under Section 16.01a, and (3) for purpose of Indemnities, Kodiak Island Borough's Related Parties. KIB Business Day means any day on which KIB Administration office is open to do business with the public. (Compare "Contract Service Day".) KIB Code means municipal law of KIB. KIB Governing Body means KIB Assembly. KIB Office Hours means the hours of any KIB Business Day on which KIB Administration office is open to do business with the public. (Compare "Contractor Office Hours".) KIB Representative means the individual holding the position named by KIB under Section 17.07a. (Compare "Contractor Representative".) COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK KIB's Reimbursement Costs means KIB's Direct Costs plus 15 %. (Compare "Contractor's Reimbursement Costs") KIB's Related Parties means KIB's officers, employees, agents, contractors, attorneys, administrators, affiliates, representatives, servants, insurers, heirs, assigns, volunteers and each and every one of them. They are third party beneficiaries of provisions in this Contract that reference them. (Compare "Contractor's Related Parties".) KIB Landfill means the landfill owned by KIB. Letter of Credit means the letter of credit described in Section 11.03. It is Contractor Documentation. Liabilities and Losses means all of the following: (1) liabilities, (2) lawsuits, (3) claims, (4) complaints, (5) causes of action, (6) citations, (7) investigations, (8) demands, (9) clean -up orders, (10) damages (including actual, special, consequential and punitive) whether in contract or in tort, such as natural resource, property and personal injury damages, (11) costs and expenses, including (i) all costs and expenses of litigation, mediation or arbitration, accountants fees, engineers fees, attorneys fees (whether KIB's or Contractor's staff attorneys or outside attorneys) and other consultant's fees, expert witness fees, and court costs, and (ii) response remediation and removal costs, (12) losses, (13) debts, (14) liens, (15) mediation, arbitration, legal or administrative proceedings, (1 6) interest, (17) fines, charges, penalties, and (18) other detriments of every nature and description, whether under state or federal law. Liquidated Damages are described in Section 14.01. Monthly Report means the report prescribed by Attachment 10.02a COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK MSW Management Services means: (1) collection, transportation, storage, transfer, or processing of solid waste; and /or (2) arranging for disposal of solid waste. Multi - family describes Persons (such as Customers) or things (such as Carts or types of Solid Waste) in the Contract Service Area that are not Residential. Multi - family Customer means a Customer who owns or occupies a Multi-family Premise. Multi - family Premises means premises that are not residential premises (and therefore contains 4 or more dwelling units) including apartment complexes and trailer courts. Non - Collection Notice means a notice in form and substance satisfactory to KIB left by Contractor in event of Contract Service Exceptions, such as Discard of Unpermitted Materials. Notice or Notify or other variation thereof means notice given under Section 19.01. "Due Notice" or "Notice duly given ", refers to Notice given under Section 19.01. Own, Owner or Ownership or other variation there or has the meaning provided in the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the Contract Commencement Date , except that (1) 10% is substituted for 50% in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; (2) Section 318(a)(5)(C) is disregarded, and (3) ownership interest of less than 10 percent is disregarded and percentage interests is determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Party and Parties means the following 2 Persons, individually and together: (1) KIB, and (2) Contractor. Performance Assurances means each and every Indemnity, Insurance, Letter of Credit and Guaranty, and any other instrument described in Article 11. Performance Obligations means each and every obligation and liability of Contractor under this Contract. Permit means the following: (1) permit, (2) registration, (3) order, (4) license (including business license), (5) approval, (6) authorization, COLLECTION SERVICES CONTRACT 1 Island Borough, AK (7) consent and (8) entitlement of whatever kind and however described that Applicable Law requires Contractor to obtain or maintain with respect to satisfaction of Performance Obligations, as renewed or amended from time to time. Person means any of the following: (1) individual, (2) sole proprietorship, (3) firm, (4) association, (5) organization, (6) partnership (whether limited or general), (7) corporation, (8) trust, (9) joint venture, (10) Regulatory Authority, or (11) any other entity. Position of Influence means a position of authority or responsibility to directly or indirectly administer, manage, direct, supervise or oversee Contract Services or this Contract, including the following: (1) Affiliate Parents' officers; (3) Affiliate Parents' directors; (4) individual who reviews or negotiates Contractor's contracts (including this Contract); (5) individual who provides in -house legal services; (6) Affiliate insurer (captive insurance), (7) Guarantor, and (8) Affiliate surety or other Person providing Performance Assurance. Premises means a tract of land with habitable buildings located in the Contract Service Area and safely accessible by Vehicles. Processing means solid waste: (1) reduction, (2) separation, (3) recovery, (4) conversion or (5) recycling, and (6) creating compost. processing does not mean baling refuse. Processing means "processing" of Solid Waste. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Promptly or Prompt means as soon as practicable, but not more than two days. Quarter means any of all of the following periods, as the context demands: (1) January, February, March ( "1st Quarter "), (2) April, May, June ( "2 " Quarter "), (3) July, August, September ( "3 Quarter "), (4) October, November, December ( "4 Quarter "). RCRA means the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.). Reasonable Business Efforts means those efforts a reasonably prudent business Person would expend under the same or similar circumstances in the exercise of that Person's business judgment, intending in good faith to take steps calculated to satisfy the obligation which that Person has undertaken to satisfy. Receptacle means any Cart, Dumpster, Roll -off Container or other receptacle (such as bags designed for solid waste discard, but not shopping or grocery bags) for storing discarded Refuse. Records means information relating to Contract Services and other Performance Obligations, including documentation in any form or media, including: (1) ledgers and books of account, (2) invoices, vouchers and canceled checks, (3) logs and correspondence, (5) data and computations, (6) files, (7) reports, (8) drawings, plans and designs (other than those respecting facilities or facility operations that do not involve Collection, such as materials recovery facility plans and specifications), and (9) photographs. Recyclables means Solid Waste that is recyclable. Recycle, Recycling or Recyclable means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the market place. Recycled Content Procurement Policy means KIB ' S current buy - recycled policy, if any. Refuse means Solid Waste comprised of rubbish, trash and garbage, excluding any Bulky Item that Contractor Diverts. Regularly Scheduled Collection Day(s) means the same day(s) each week on which Contractor provides Collection to a Customer. COLLECTION SERVICES CONTRACT 1 Island Borough, AK Regulatory Authority means each of the following that has jurisdiction over either Party or this Contract: (1) the United States, (2) the State and other states, (3) KIB, (4) governmental authorities, agencies and districts, (5) governmental boards and commissions, (6) federal, state and local courts, and (7) any other municipal, governmental or public bodies. Report means any report that Contractor is obligated to provide under this Contract, including Section 10.02. Residential describes Persons (such as Customers) or things (such as Carts, Premises or types of Solid Waste) in the Contract Service Area that reside or are related to Residential Premises. Residential Customer means a Customer who owns or occupies a Residential Premise. Residential Premise means a premises meeting both of the following conditions: (1) It contains one, two or three dwelling unit(s), and (2) Each dwelling unit is occupied by related individuals or by 5 or fewer unrelated individuals. Roll Off Container means an open - topped rectangular containers for storage, collection and transport of Solid Waste that are rolled on and off flatbed collection vehicles via winches or reeving cylinders (hooks). Rollout Service means taking the following actions by manual means: (1) dismounting from the Collection Vehicle, (2) moving a Receptacle from its storage location indicated on that Customer's Service Subscription (such as within enclosures or by garages) to the Collection Vehicle for emptying, and (3) returning the Receptacle to its storage location. Service Day means a weekday or Saturday, Holidays excepted, when Contractor must provide Contract Services. (Compare "KIB Business Day".) Set -out Site means the location agreed to by Contractor and the Customer and indicated on the Customer Service Subscription or required by KIB, where Customer must place its Carts for Collection, including: (1) Residential curb: on the curb in front of Residential Premises; in the street immediately adjacent to that curb or; if there is no curb, at the edge of Customer's property abutting the street, unless Contractor provides Roll -out Service or Up -the- Drive Service; (2) Roll -out Service: at the storage location agreed upon between a Residential COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Customer and Contractor and included on the Customer Service Subscription; and. (3) Up- the -Drive Collection: at the storage location agreed upon between a Residential Customer and Contractor. Solid waste means "municipal solid waste" defined under AS 46.03.900. Solid Waste means "municipal solid waste" discarded in Receptacles located in the Contract Service Area that Contractor must Collect, including: (1) Refuse, (2) Recyclables, (3) Bulky Items, and (4) C &D Debris. but excluding Unpermitted Waste. Solid Waste Management Facility means the following facilities, individual and together, as the context demands: (1) KIB Landfill, and (2) any other facility that handles Solid Waste and that is approved by KIB. State means the State of Alaska. Subcontract means any arrangement, formal or informal, written or merely in practice, between Contractor and a Subcontractor, including: (1) contracts or agreements, (2) letters or memorandum of understanding or intent, (3) subscription or purchase orders. Subcontractor means anyone Person that provides Goods or Services related to Collection, transportation or storage of Solid Waste or related to Service Assets, including their operation, maintenance and repair, to or on behalf of Contractor. Term of this Contract means the period beginning on the Contract Commencement Date and ending on the Termination Date. Termination Date means the date this Contract expires or is earlier terminated. Termination Events are listed in Section 15.01a. Ton (or Tonnage) means a short ton of 2,000 pounds avoirdupois. Transfer means any of the following: (1) selling, exchanging or otherwise transferring Ownership or control of Contractor (through sale, exchange or other transfer of outstanding stock, partnership shares, equity interest or otherwise); (2) issuing new stock or selling, exchanging or otherwise transferring 20% or more of the COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK then outstanding common stock of, or partnership shares or equity interest in, Contractor; (3) any dissolution, reorganization, consolidation, merger, re- capitalization, stock issuance or re- issuance, voting trust, pooling agreement, escrow arrangement, liquidation, buy -out or other transaction which results in a change of Ownership or control of Contractor; (4) any assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a receiver taking possession of any of Contractor's tangible or intangible property; (5) any sale or other transfer of 50% or more of the value of assets of Contractor except for sales or transfers to parents, grandparents, siblings, children, and grandchildren of persons having a shareholder, partnership or other equity interest in Contractor on the Contract Commencement Date ( "Immediate Family ") or trust created primarily to benefit members of the Immediate Family; (6) substitution by a surety company providing any performance bond of another Person for Collector to perform Contract Services; and (7) assumption of any of Contractor's rights under this Contract, or (8) assumption by, delegation to or takeover of any Performance Obligations or any other Contractor's duties or responsibilities under this Contract by any Person other than Contractor, whether by Subcontract (unless approved by KIB under Section 17.10) or any other mechanism. (9) any combination of the forgoing (whether or not in related or contemporaneous transactions), without consideration, which has the effect of any transfer or change of Ownership or control of Contractor. For the purpose of this definition, "control" has the meaning provided in Rule 144 of the Securities Act of 1993 Transition Plan means the plan under Attachment 7 -7.04, in form and content satisfactory to KIB. It is Contractor Documentation. Uncontrollable Circumstance(s) means any of the following events: (1) any natural disaster such as landslide, lightning, earthquake, fire, flood, tsunami, (other than reasonably anticipated weather conditions for the geographic area of KIB, such as wind, rain or snow); (2) sabotage, explosion; (3) insurrection, riot or civil disturbance, war or other emergency affecting KIB declared by the President of the United Sates or Congress of the United States, the State Governor or KIB Governing Body; (4) failure of public agency or private utility to provide and maintain water, power or service in KIB or at Contractor's operations and maintenance yard or administrative offices; (5) other catastrophic events beyond the reasonable control of that Party and not the result of willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure in good faith to contest that action or inaction), which materially and adversely affects the ability of either Party to perform any obligation under this Contract despite that Party's exercise of due COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK diligence. Uncontrollable Circumstances excludes, without limitation: (1) Breach, Default or Contractor's financial inability to satisfy its Performance Obligations; (2) strikes, work stoppages or other labor disputes or disturbances of any Subcontractor or Contractor's inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned; (3) failure of Contractor to obtain Permits and patents, licenses, or trademarks necessary to perform Contract Services; and (4) the failure of any Contract Service Asset to function under any warranties, unless caused by Uncontrollable Circumstances. Unpermitted Waste means materials that cannot be disposed of in the KIB Landfill under Applicable Law of the State or KIB rules. Unpermitted Waste Screening Protocol means the protocol under Section 7 -7.02, in form and content satisfactory to KIB. It is Contractor Documentation. Vehicle means any truck used to provide Contract Services. Violation means any noncompliance with Applicable Law as evidenced by written notice, assessment or determination of any Regulatory Authority to Contractor, whether or not a fine or penalty is included, assessed, levied or attached. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK "CONTRACT MANAGERS" CONTRACTOR AFFILIATE PARENT SUCCESSIVE AFFILIATE PARENT (1) CONTRACTOR REPRESENTATIVE (2) OFFICERS: Chief Operating Officer Chief Financial Officer (3) Management Board 1. 2. 3. 4. 5. (4) "POSITION OF INFLUENCE" (1) officers of Parent Affiliate President Vice - President Secretary Treasurer APPENDIX: CONTRACTOR INFORMATION AND DOCUMENTATION Name and /or Title Telephone Email Telefax Postal address Delivery address Contractor Representative 17.07b Jeff Riley, COO 907.273.2763 jeffr 907.273.2730 6301 Rosewood St Anchorage, AK 99518 6301 Rosewood St Anchorage, AK 99518 Contractor Notice 19.01 Jeff Riley, COO 907.273.2763 jeffrgakwaste.com 907.273.2730 6301 Rosewood St Anchorage, AK 99518 6301 Rosewood St Anchorage, AK 99518 "Contractor Office" (local) Attachment 21.01 Caro 11 Mahoney, Site Manager 907.486.5308 carollmgakwaste.com 907.486.2300 1621 Mill Bay RD Kodiak, AK 99615 1621 Mill Bay RD Kodiak, AK 99615 Attachment 21.01 "Contract Managers" (with respect to Section 15.02 Criminal Activity) COLLECTION SERVICES C Island Borough, AK (2) Directors of Parent Affiliate (3) individual who reviews / negotiates Contract (4) individual providing in- house legal services (5) Guarantor (6) Affiliate insurer (7) Affiliate surety etc. COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK CONTRACTOR DOCUMENTATION (in form and content satisfactory to KIB) 7 -7.01 CUSTOMER COMPLAINT PROTOCOL 7 -7.02 UNPERMITTED WASTE SCREENING PROTOCOL 7 -7.03 TRANSITION PLAN 7 -7.07 CUSTOMER BILLING AND BILL COLLECTION PROCEDURE 7 -7.08 CART INVENTORY AND SERVICE ASSET DOCUMENTATION (purchase invoices &warranties) 7 -7.09 FORM OF CUSTOMER SERVICE SUBSCRIPTION; "BILL OF RIGHTS" 11.01 EVIDENCE OF INSURANCE: (1) COIs, (2) ENDORSEMENTS, (3) SCHEDULES 11.03 LETTER OF CREDIT 11.04 GUARANTY COLLECTION SERVICES CONTRACT 1 Kodiak Island Borough, AK Mayor Jerome Selby & Kodiak Island Borough Assembly Members 710 Mill Bay Road Kodiak, AK 99615 Dear Mayor Selby and Assembly Members, DEPARTMENT OF FISH AND GAME DIVISION OF WILDLIFE CONSERVATION Recent discussions with borough staff have indicated that such a "best case" scenario is not economically possible and was contrary to the findings of the solid waste management study SEAN PARNELL, GOVERNOR 211 Mission Road Kodiak, AK 99615 PHONE: (907) 486 -1880 FAX: (907) 486 -1869 E -MAIL: larry.vandaele@alaska.gov January 27, 2010 I apologize for not being able to attend the discussion on solid waste management options during last week's borough assembly work session. With this letter, I would like to clarify my thoughts and professional advice on this important and contentious issue. I am currently the Alaska Department of Fish and Game area wildlife biologist for the Kodiak Archipelago. I have been working for the Department for over 28 years, most of which has been spent here in Kodiak. I have a doctorate in Natural Resource Management with a dissertation topic on the management of Kodiak bears. I am the chairman of the IUCN North Asian Brown Bear Expert Team and leader of the Northern Forum Brown Bear Workgroup. I have been invited to assist governments and communities in Russia, Japan, Canada, Sweden and the lower 48 states with bear management and bear -human encounters, and I was on the organizing committee of the Bear - People Conflicts Workshop held in Alberta in November 2009. Most importantly, I am a resident and homeowner here in Kodiak. Finding ways for bears and people to co -exist is a relatively easy task, in theory. If bears are not attracted to people or their residences by food or garbage, and if people learn to be cautious when passing through bear habitat and when encountering them, there will be few problems. In Kodiak, the best way to do this is to continue to educate local residents and visitors in bear safety techniques, make sure there are no attractants around residences, and provide consolidated secure places for garbage collection and disposal. As I have noted before in written and oral testimony, the best scenario for garbage collection along the Kodiak road system would be well- designed and maintained transfer sites to serve the Monashka Bay area, the Bell's Flats area, and the southern part of the road system. These areas have the greatest bear density and cover for bears, and development of transfer sites would drastically reduce the number and locations of potential attractants to bears. Bear resistant containers (BRC) could be used within city limits if they are maintained and used properly. commissioned by the Borough and the desires of the Solid Waste Advisory Board. They asked me if there was a way to minimize bear problems with no transfer sites and the use of BRCS in rural areas. I agreed to work with Borough and Alaska Waste staff to explore possibilities, but emphasized that such a program was not what I would prefer and had to be conducted on a trial basis with the caveat that it be done in an open public forum and that if bear problems were to arise there be contingency plans to modify the program. My reluctance to committing to the proposed collection system of BRCs in the Monashka area and status quo in Bells Flats and within city limits is based on our experiences here in Kodiak in 1999 and 2008. During those years bear encounters around town increased dramatically because bears persistently sought human food and garbage due to a drastic reduction in the availability of natural foods. It was only through diligent efforts by local public safety, government, and waste management staff and unprecedented support by local residents that we were able prevent any human injuries and minimize injuries to bears. A major part of this success was due to an effort to consolidate garbage into localized areas away from most residences. Communities in western Canada have had similar experiences, and I provided Borough staff with a report summarizing how many of those communities abandoned the use of BRCS for curb -side pick -up because of continued bear problems during poor food years. The most notable was Canmore, Alberta (the venue for our November 2009 conference) where the community took aggressive action to eliminate all bear attractants after a fatal mauling of a resident in 2005. While there have been places where BRCS have been successfully deployed, their success depends on continuous aggressive efforts to make sure they are used properly. So, in summary, our Department and I are committed to work with the Borough to end ways for bears and people to co -exist in Kodiak. The best way to do this is to minimize places bears can get to human food and garbage, but if such action is not economically feasible, I am willing to work with you to develop the best possible compromise. While we do not have staff or funding to conduct a thorough research project, we will do our best to work with you to find practical and reasonable solutions. If you have any questions, please give me a call. Sincerely, Larry Van Daele, Ph.D. Kodiak Area Wildlife Biologist cc: Kodiak Island Borough manager City of Kodiak Kodiak Daily Mirror KMXT KVOK Kodiak Unified Bear Subcommittee 2 Jeff Riley Alaska Waste Mr. Riley, I thought you might be interested in some background information regarding our bear- resistant curbside carts. As you know, BearSaver has been fabricating and selling bear- resistant trash, recycling and food storage enclosures for many years. By far, our largest customer historically has been the Federal Government; the National Park Service, U.S. Forest Service, Fish and Game and BLM specifically. Although their main areas of concern are for public lands, there was always a concern for bears on private lands as well. To address these issues and a growing market, BearSaver was asked on many occasions to provide residential and commercial solutions. Our challenge was to design a residential curbside cart that was bear - resistant, easy to use and cost effective. We researched this for almost two years with the main elements of research being bear capabilities and human behavior. One of BearSaver's primary "claims to fame" has always been self - latching mechanisms that remove the need for unnecessary secondary operations in order to re -latch the container. This consistent on everything we make. In working with Alaska Fish and Game in the Kenai area, we observed in person what happens when it's left up to the individual property owners to make sure their cart is properly latched. In a study of over 100 "bear- resistant" carts with lid clips that were in service for about a year, it was recorder that over 80% of the lid clips were not properly engaged on both sides. This observance gave us our primary design criteria moving forward. We already knew by our years working with bear biologists from the National Park system, the basic capabilities of different bears. We had also done extensive testing at the Grizzly and Wolf Discovery Center in West Yellowstone, MT using the protocols established by the Interagency Grizzly Bear Committee. We tested ten different configurations during that process, most with bears that weighed more than 750 lbs. We learned where the weaknesses were and how to overcome those weaknesses. To date, there are about 40,000 BearSaver carts in service throughout the U.S. and Canada. Our failure rate is less than 1 %. Overfilling causes most failures, which bends the lid reinforcement thus causing a gap that any bear can compromise. In summary, reinforcing a plastic container, if done properly, can provide an excellent deterrent against bear intrusion. Normally, a bear will knock over the container, jump on it few times then walk away in search of an easier meal. Naturally, if given enough time, anything not made of steel will be compromised. However, under normal conditions, and with proper usage, BearSaver curbside carts prove to be are a very effective deterrent. Sincerely, Steve Thompson Director of Marketing and Sales, BearSaver PH 909 - 605 -1697, FAX 909 - 605 -7780 salesgbearsaver.com www.bearsaver.com 1390 S. Milliken Ave., Ontario, CA 91761 Kodiak Island Borough Contact: Tracy Mitchell Environmental Specialist, Kodiak Island Borough Phone: 486 -9348 Manager's Office 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9301 Fax (907) 486 -9374 FOR IMMEDIATE RELEASE Kodiak Island Borough Looks Forward to New and Improved Solid Waste Collection Services Introduction of new services and lifelong Alaska resident, Jeff Riley, of Alaska Waste Who is Jeff Riley? Born in Kenai, Jeff Riley loves to cook for his family and friends. He now lives in Anchorage with his wife and two daughters. Over the years, his family has enjoyed soccer, basketball, volleyball, plus golf and gardening during the summer. They keep a worm composting bin in their garage to recycle their food scraps. In the spring, Jeff uses the worm casings to supplement the soil in their patio garden of flowers. Mr. Riley has worked in the solid waste industry for over 16 years with considerable experience in establishing and providing management and support in all areas of daily operations, safety, and customer service. He oversees Alaska Waste's operations in the Municipality of Anchorage providing service to approximately 50,000 residential homes. He has a proven track record managing start up projects and new contracts. While at Alaska Waste the company has started two new "green" collection programs; used cooking oil and commingled residential curbside with plans for a third program with the start up of post consumer food waste collection. What are Alaska Waste's goals in providing solid waste collection services for residents of Kodiak? Alaska Waste's primary goal is to follow the collection plan outlined in the Solid Waste Management Plan (SWMP), adopted by the Kodiak Island Borough Assembly on August 22, 2008. The SWMP provides for: 1. Operational efficiency with a safe, uniform system of standardized carts 2. Rate stability: collection rates over the long -term (5 -10 years) will fluctuate less 3. Fair and equitable garbage rates based on how much you throw away, creating a direct economic incentive to reduce, reuse and recycle 4. Rate equity and elimination of waste generators that are currently being subsidized in the existing system 5. Removal of community dumpsters: Dumpsters are expensive and wasteful, by allowing an out -of- sight, out -of mind way to avoid the responsibility of paying for disposal, thus creating increased costs to all rate payers in the system 6. Higher level of service: Customer convenience is increased and litter and garbage in the streets is reduced 7. Addition of future services, such as curbside recycling How will the new service work? Kodiak residential customers will be serviced by 1 of 3 ways depending on where you live: 1. BEAR CART AREA: Weekly curbside pickup of standardized bear carts for the area located primarily north of the intersection of Mill Bay Road and East Rezanof. Carts available will come in 64- gallon or 96- gallon sizes. 2. DOWNTOWN CORE: Weekly curbside pickup of standard roll carts located primarily south of intersection of Mill Bay Road and East Rezanof. Carts available will come in 32- gallon, 64- gallon or 96- gallon sizes. 3. ROLL -OFFS: For residential users in Bells Flats, Chiniak and Pasagshak the service will continue to be provided by roll -off containers (dumpsters) in the same manner as today. Areas utilizing carts will be serviced by new automated or semi - automated collection vehicles. How will the bear area work? The bear area is viewed as a "test" area for wildlife experts to observe the behavior of humans, bears and the effectiveness of equipment. Alaska Waste will provide residents with regularly - scheduled weekly removal of waste. What will be the rate for the new residential service? The Kodiak Island Borough landfill operates as an Enterprise Fund which is similar to a not-for-profit business where revenues must meet expenses. For many years revenues were not meeting expenditures and there were regulatory compliance issues that were not being adequately addressed. Therefore, in 2003 residential and commercial rates were raised for the first time in 7 years. In 2005, commercial rates were raised again to balance the budget. The proposed monthly rates listed below are very similar to what residential customers are currently paying. While these proposed rates are not cast in stone, substantial rate increases are not expected to occur during the term of the collection contract. The following prices include use of the carts and residential roll -offs (dumpsters). In the bear area: $32.60 for 64- gallon cart $36.40 for 96- gallon cart In the downtown core area: $27.92 for 32- gallon cart $32.60 for 64- gallon cart $36.40 for 96- gallon cart In the area defined past Dead Man's Curve - Bell's Flats, Chiniak and Pasagshak: $36.40 per residence What if I live in an apartment building or multi - family housing? The new automated collection service will be available to all residential customers. Often larger housing units, such as triplexes, 4- plexes, condos and apartment buildings, have a commercial dumpster service. If you live in an apartment or multi - family dwelling your complex will be serviced by a commercial dumpster. What if I can't get my cart down to the pickup point? Alaska Waste is committed to tailoring their services to meet the individual needs of Kodiak customers and ensure consistent services at both the local and state levels. If you have a concern, special need or circumstance, contact Alaska Waste at the time the collection contract is implemented (most likely July 1, 2010) to communicate your needs. For more information please contact Tracy Mitchell, Environmental Specialist for the Kodiak Island Borough at 486 -9348. TITLE: Contract No. FY2010 -31 Accepting a Grant from Alaska Department of Transportation and Public Facilities to Partially Fund the Island -Wide Transportation Feasibility Study. SUMMARY: This grant provides partial funding to study the feasibility of a local ferry service using smaller vessels than those employed by the AMHS to connect the outlying communities with the Port of Kodiak. Accepting the terms of this grant, as agreed in the attached MOA, provides funding in the amount of $100,000 of the $225,000 total project cost. A Denali Commission grant in the amount of $125,000 completes the proposed funding budget. Staff forwarded a grant request to AK DOT /PF and won approval. Accepting the grant award provides total funding for this project. Staff recommends acceptance of the grant. FISCAL NOTES: Account No.: Amount Budgeted: $225,000 Expenditure Required: APPROVAL FOR AGENDA: , KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.A.2 RECOMMENDED MOTION: Move to authorize the Manager to execute Contract No. FY2010 -31 Accepting a Grant from the Alaska Department of Transportation and Public Facilities to partially fund the Island -Wide Transportation Feasibility Study in the amount of $100,000. MEMORANDUM OF AGREEMENT Between the ALASKA DEPARMENT OF TRANSPORTATION AND PUBLIC FACILITIES And the KODIAK ISLAND BOROUGH PROJECT: KODIAK ISLAND TRANSPORTATION STUDY AKSAS 80210 The parties to this Agreement are the State of Alaska acting through the Department of Transportation and Public Facilities (hereafter called DOT &PF) and the Kodiak Island Borough (hereafter called the Borough). This agreement provides for the transfer of funds from the State to the Borough for the purpose of supporting an Island Transportation Study, including the feasibility of an intra- island ferry system that would link isolated coastal communities with the hub city of Kodiak. State funding is to be matched with funds from Denali Commission and Kodiak Island Borough. WHEREAS, the Borough has an interest in promoting prudent investment in transportation infrastructure resources, and has requested DOT &PF provide funding in the amount of $100,000 for this Study; WHEREAS, a Kodiak Island Transportation Study is consistent with the mission and goals of DOT &PF to provide accurate data for transportation policy decision makers; WHEREAS, the Borough has already secured matching funds for this study; WHEREAS, the undersigned parties have been authorized to enter into this Agreement to cooperatively complete the project under the terms and conditions identified below. THEREFORE, the parties, in consideration of the mutual promises in this Agreement, agree to the following: 1. COMPLIANCE WITH LAWS AND REGULATIONS 3. DELEGATION OF DUTIES AKSAS 80210 The Borough agrees to comply with, and shall require compliance by any consultants, all applicable local, state and federal laws and regulations. 2. PROJECT SCOPE Conduct an all Kodiak Island Transportation Study to include a feasibility study on an intra - island ferry system to link remote coastal communities in Kodiak Island Borough with the hub city of Kodiak. The Borough has the responsibility to plan, coordinate public involvement, advertise for proposals, award, and administer the project within available funds. 5. FUNDING b) There will be one lump sum payment for the study. 7. CONTRACT PROCUREMENT 8. PROJECT SUBMITTALS AND REVIEW 9. AUDIT OF PROJECT 10. WAIVER OF PROVISIONS AKSAS 80210 4. CONTACTS Required notices of the Agreement must be sent to the following contract administrators: DOT &PF: Joselyn Biloon, Area Planner, P.O. Box 196900, Anchorage AK 99519 -6900 Borough: Rick Gifford, Borough Manager, 710 Mill Bay Road, Kodiak, AK 99615 Funds required to complete the project, including dispute resolution, in excess of $ 100,000, will be secured by the Borough. 6. BILLING a) Project costs eligible as expenses include in -house project management, contracted services, planning, research, printing, public notification and meeting expenses. If the Borough contracts with third -party contractors for planning, design or construction, the Borough shall select the contractors using contract procurement principles consistent with the State Procurement Code, AS 36.30. a) the Borough agrees to provide 3 hard copies and 1 electronic copy of the completed study to the State prior to December 31, 2012; and b) The Borough, upon completion of the project, shall provide the DOT &PF a final expenditure report of all costs incurred in the accomplishment of the project. c) Within 6 months after acceptance by the State that the Borough has met the requirements of this Agreement, the Borough will return the full amount of the grant, less legitimate project expenses, to the State of Alaska. The Borough will retain for a period of three years after final billing, all contracts, invoices, payrolls, personnel records, condition of employment and other data relating to the matters of this agreement. DOT &PF reserves the right to perform a final project audit. The failure of DOT &PF to insist upon strict performance by the Borough of any provision in this Agreement is not a waiver or relinquishment of the provision for the future. The waiver by DOT &PF of any provision in this Agreement cannot be enforced or relied upon unless the waiver is in writing and signed on behalf of the DOT &PF. 11. LOBBYING The Borough shall ensure that none of the funds under this Agreement will be used for the purposes of lobbying the Alaska State Legislature or the United States Congress. 12. TERMINATION a) If the Borough is in substantial violation of this agreement, or if the Borough has failed to fulfill its responsibilities under this agreement prior to December 31, 2012, DOT &PF may in its discretion, notify the Borough of the violation or failure. If the Borough fails to correct the violation within a reasonable time, or to offer assurance satisfactory to DOT &PF that the violation or failure will be remedied, DOT &PF will, in its discretion, terminate the agreement. b) Upon termination, the Borough shall provide the DOT &PF a final expenditure report of all costs incurred in pursuit of accomplishing the project for DOT &PF determination of legitimate expenses. Within 6 months of termination the Borough will return the full amount of the grant, less legitimate project expenses to the State of Alaska. 13. EXTENSIONS DOT &PF may grant a time extension at its discretion, at the request of the Borough. 14. THE WHOLE AGREEMENT AKSAS 80210 This agreement constitutes the entire agreement between the parties. There are no other understandings or agreements between the parties, either oral or memorialized in writing regarding the matters addressed in this agreement. This agreement may not be amended by the parties unless agreed to in writing with both parties signing through their authorized representatives. APPROVALS: Borough Manager Date Central Region Director Date TITLE: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.B.1 Resolution No. FY2010 -25 Establishing Citizens Board of Equalization Dates for the Year 2010. SUMMARY: The Board of Equalization hearing of appeals from the 2010 assessed valuations of real and personal property within the Kodiak Island Borough will be held on Monday, May 10 and Tuesday, May 11, 2010 and will continue from day to day as established by the Board of Equalization and the Borough Clerk until all properly filed appeals have been heard. This meeting(s) will start at 7:30 p.m. in the assembly chambers of the Kodiak Island Borough. This resolution also reflects that the date taxes are due is on October 15, 2010, unless the taxpayer elects to pay the taxes in two equal installments, then the first half is due on August 16, 2010, and the second half is due on November 15, 2010. APPROVAL FOR AGENDA: RECOMMENDED MOTION: Move to adopt Resolution No. FY2010 -25. Introduced by: Manager Gifford Requested by: Manager Gifford Drafted by: Borough Clerk Introduced: 02/18/2010 Adopted: 1 KODIAK ISLAND BOROUGH 2 RESOLUTION NO. FY2010 -25 3 4 A RESOLUTION OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 5 ESTABLISHING CITIZENS BOARD OF EQUALIZATION 6 DATES FOR THE YEAR 2010 7 8 WHEREAS, part of the public notification process is the setting of dates, by resolution, of Board 9 of Equalization hearings for appeals; and 10 11 WHEREAS, the date taxes become delinquent shall be fixed by resolution; and 12 13 WHEREAS, the actions are required by Alaska Statutes 29.45.240; 14 15 NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND 16 BOROUGH THAT: 17 18 Section 1: The Board of Equalization hearing of appeals from the 2010 assessed valuations 19 of real and personal property within the Kodiak Island Borough, Alaska will be 20 held on Monday, May 10 and Tuesday, May 11, 2010 and will continue from day 21 to day as established by the Board of Equalization and the Borough Clerk until all 22 properly filed appeals have been heard. This meeting(s) will start at 7:30 p.m. in 23 the assembly chambers of the Kodiak Island Borough, 710 Mill Bay Road, 24 Kodiak, AK 99615. 25 26 Section 2: The date taxes are due is October 15, 2010, unless the taxpayer elects to pay 27 the taxes in two equal installments, then the first half is due on August 16, 2010, 28 and the second half is due on November 15, 2010. 29 30 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 31 THIS DAY OF , 2010 32 33 34 KODIAK ISLAND BOROUGH 35 36 37 38 ATTEST: Jerome M. Selby, Borough Mayor 39 40 41 42 Nova M. Javier, MMC, Borough Clerk Kodiak Island Borough Resolution No. FY2010 -25 Page 1 of 1 TITLE: SUMMARY: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.B.2 Resolution No. FY2010 -26 Supporting Formation of a Statewide Invasive Species Advisory Council. This resolution was requested by the Prince William Sound Regional Citizens Advisory Council seeking support of the formation of a Statewide Invasive Species Advisory Council. The proposed council will work in a collaborative effort to reduce the introduction of new invasive species and manage efforts related to species that have already entered the state. Alaska suffers the effects of invasive Atlantic salmon, pike, reed canary grass, Japanese knotweed, Canadian thistle, orange hawkweed, spotted knapweed, and garlic mustard among others. States with invasive species councils are more likely to be successful in securing federal funding and a statewide council coordinating with federal partners will bring success to minimizing the impacts of invasive species in Alaska. The funding spent on a council will pay dividends in the significant amount of money not spent on managing weeds, pests, and aquatic invaders. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA% /e, o °'‘'/ RECOMMENDED MOTION: Move to adopt Resolution No. FY2010 -26. Form Ver. 06/30/2009 1 Introduced by: Borough Assembly 2 Requested by: PWSRCAC 3 Drafted by: PWSRCAC Introduced on: 01/18/2010 4 Adopted on: 5 6 KODIAK ISLAND BOROUGH 7 RESOLUTION NO. FY 2010 -26 8 9 A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY 10 SUPPORTING FORMATION OF A STATEWIDE 11 INVASIVE SPECIES ADVISORY COUNCIL 12 13 WHEREAS, invasive species have proven worldwide to be a threat to natural resources and 14 economies by competing with native species, crop, degrading fish and wildlife habitat and 15 decreasing property values; and 16 17 WHEREAS, plants, animals, fish, and invertebrates introduced into an environment devoid of 18 their natural predators can irreversibly destroy an ecosystem, including local ecosystems such as 19 Resurrection Bay thereby impacting the natural environment and economy essential to the health 20 and well being of the community of Kodiak; and 21 22 WHEREAS, Alaska suffers the effects of invasive Atlantic salmon, pike, reed canary grass, 23 Japanese knotweed, Canadian thistle, orange hawkweed, spotted knapweed, and garlic mustard 24 among others; and 25 26 WHEREAS, managing invasive species when they are in small incipient populations is the 27 most cost effective way to prevent damage to resources and the economy; 28 29 WHEREAS, other states have established Invasive Species Councils to provide affected 30 stakeholders a cooperative, comprehensive, and integrated means of communicating, prioritizing 31 action, planning, and coordinating efforts toward prevention and management of invasive 32 species; and 33 34 WHEREAS, a councils' coordinated approach will serve many essential functions in advancing 35 invasive species management including compatibility of collected data, enhanced education, and 36 outreach associated with invasive species, identifying shared priorities and avoiding duplication 37 of efforts; 38 39 WHEREAS, Alaska has a unique opportunity to be proactive and work collaboratively to 40 reduce the introduction of new species and mange efforts related to species that have already 41 entered the state; and 42 43 WHEREAS, states with invasive species councils are likely to be more successful in securing 44 federal funding; and 45 46 WHEREAS, a statewide council coordinating with federal partners will bring success to 47 minimizing the impacts of invasive species in Alaska; and 48 Kodiak Island Borough Resolution No. FY2010 -26 Page 1 of 2 49 WHEREAS, funding spent on a council will pay dividends in the significant amount of money 50 not spent on managing weeds, pests, and aquatic invaders. 51 52 NOW, THEREFORE BE IT RESOLVED, THAT THE ASSEMBLY OF THE KODIAK ISLAND 53 BOROUGH THAT: 54 55 SECTION 1. The Assembly of the Kodiak Island Borough supports the formation of a state - 56 wide advisory council within the Governor's Office to advise the Governor, other 57 policy makers, and management in the development of a strategic plan 58 implemented to prevent and control invasive species by coordinating efforts, 59 prioritizing action, streamlining management of associated challenges, 60 identifying information gaps, and implementing early detection and rapid 61 response plans. 62 63 SECTION 2. This resolution shall take effect immediately upon adoption. 64 65 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 66 THIS DAY OF 2010 67 68 69 KODIAK ISLAND BOROUGH 70 71 72 73 ATTEST: Jerome M. Selby, Borough Mayor 74 75 76 77 Nova M. Javier, MMC, Borough Clerk Kodiak Island Borough Resolution No. FY2010 -26 Page 2 of 2 TITLE: Resolution No. FY2010 -27 Urging The University Of Alaska Fairbanks Cooperative Extension Service To Establish A Cooperative Extension Service District Office With A Full Time Extension Agent In Kodiak. SUMMARY: This resolution was requested by Assembly member Jeffrey that urges the University of Alaska Fairbanks Cooperative Extension Service to Establish a Cooperative Extension District Office with a full -time extension agent in Kodiak. FISCAL NOTES: Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING RECOMMENDED MOTION: Move to adopt Resolution No. FY2010 - 27. ITEM NO: 13.B.3 1 Introduced by: KIB Assembly 2 Requested by: Assembly Member Jeffrey 3 Drafted by: Assembly Member Jeffrey Introduced on: 02/18/2010 4 Adopted on: 5 6 KODIAK ISLAND BOROUGH 7 RESOLUTION NO. FY 2010 -27 8 9 A RESOLUTION OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 10 URGING THE UNIVERSITY OF ALASKA FAIRBANKS COOPERATIVE EXTENSION 11 SERVICE TO ESTABLISH A COOPERATIVE EXTENSION SERVICE DISTRICT OFFICE WITH 12 A FULL TIME EXTENSION AGENT IN KODIAK 13 14 WHEREAS, harvesting marine resources and land mammals for food is a 10,000 - year -old 15 tradition for the people of Kodiak; and 16 17 WHEREAS, the Federal government recognizes that Kodiak residents still depend on 18 subsistence fishing and hunting to feed their families and thus grants Kodiak "rural" status to 19 allow subsistence use; and 20 21 WHEREAS, food preservation and safety education is vital to Kodiak because most residents 22 process fish and game at home or eat subsistence fish and game processed by friends and 23 family; and 24 25 WHEREAS, Kodiak is the largest commercial fishing port in Alaska and home to the largest 26 U.S. Coast Guard base in the nation; and 27 28 WHEREAS, the commercial fishing industry workforce and rotating Coast Guard personnel 29 create a highly transient population in Kodiak that would benefit from Extension Service food 30 preservation and safety and health and safety resources, agent and office in Kodiak; and 31 32 WHEREAS, Kodiak is a remote rural community with limited youth activities and has critical 33 youth development needs; and 34 35 WHEREAS, the residents of Kodiak are actively seeking ways to adopt energy conservation 36 measures in their homes, have formed a grassroots "Sustainable Kodiak" committee and would 37 utilize Extension Service resources, agent and office in Kodiak. 38 39 NOW, THEREFORE BE IT RESOLVED THAT THE ASSEMBLY OF THE KODIAK ISLAND 40 BOROUGH urges the University of Alaska Fairbanks Cooperative Extension Service to Establish 41 a Cooperative Extension District Office with a full -time extension agent in Kodiak. 42 43 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 44 THIS DAY OF 2010 45 46 KODIAK ISLAND BOROUGH 47 48 49 50 ATTEST: Jerome M. Selby, Borough Mayor 51 52 53 54 Nova M. Javier, MMC, Borough Clerk Kodiak Island Borough Resolution No. FY2010 -27 Page 1 of 1 TITLE: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING Assembly Review of Case 10 -008 Planning and Zoning Commission Denial of a Rezone of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential and Directing Staff to Prepare an Ordinance of Introduction. SUMMARY: At its regular meeting of January 20, 2010, the Planning and Zoning Commission adopted findings of fact in support of its decision on December 16, 2009 to deny a rezone of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential. Per KIBC 17.205.055 Submission to the Assembly. B. If the commission recommends denial of any proposed amendment, its action shall be final unless the initiating party, within 10 days, files a written statement with the clerk requesting that the commission's action be taken up by the assembly. The petitioner's representative has met the requirements to have this case before the Assembly for review. In response, the Assembly needs to review Case 10 -008 and determine: FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA:S .,.."_, ITEM NO: 13.D.1 • If the case should move forward by directing staff to prepare an ordinance for introduction that rezones this parcel From RB- Retail Business To R3 -Multi Family Residential; or • Uphold the Commission's decision and fail the motion. RECOMMENDED MOTION: Move to direct staff to prepare an ordinance for introduction relating to Case 10 -008 Rezoning of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential. ( (/ 4 ./ c �C < t S / Iif,/ S '141 4 4 4.. / ( � The public hearing was opened & dosed: Public testimony given in support of the request was Amy Tubb and Kevin Arndt. Testimony given opposing the request was Pete Thompson, Barbara Rabold, and Opal Oliver. During discussion there was consensus to follow the Comp Plan and not mix Business and Residential zoning, and public sentiment. ROLL CALL VOTE ON MOTION FAILED 5 -1. The noes were WATKINS, JANZ, KERSCH, TORRES, and RYSER. The aye was KING. COMMISSIONER TORRES MOVED to adopt the Findings of Fact in the staff report dated December 16, 2009 in support of the denial of Case No. 10 -007. Discussion FINDINGS OF FACT Section 17.205.020 states that the Commission shall incorporate the following criteria into their report to the Assembly: 17.205.020 A. Findings as to the Need and justification for a Change or Amendment. No justification for the rezone has been offered, nor has any need for the rezone been shown. 17.205.02013. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan. A rezone of the subject parcel would be inconsistent with objectives of the 2008 Kodiak Island Borough Comprehensive Plan Update. A rezone to B - Business Zoning District would add to an existing under - utilized inventory of Business zoned lands. 17.205.020 C. Recommendations as to the approval or disapproval of the change or amendment. By majority vote, the Kodiak Island Borough Planning & Zoning Commission recommends disapproval of this rezone request. ROLL CALL VOTE ON MOTION CARRIED 5 -1. The ayes were WATKINS, JANZ, KERSCH, TORRES, and RYSER. The noe was KING. B) Case 10 -008. Request an investigation, according to KIBC 17.205, of a rezone from RB- Retail Business .t4 R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision, The applicant is Lester Leroy Russell. The location is 2522 & 2620 Selief Lane, and the zoning is RB- Retail Business. Cassidy stated you granted a Similar Use Determination in 2008 that would have allowed multi- family housing to be developed on that site. In the RB zoning the multi- family takes place not on the ground floor but on the 2nd floor and above. The ground floor is reserved for retail use. That project didn't come to fruition. Staff recommends approval of this rezone. Should you approve there is an ongoing subdivision for this property. Public comments received were 4 opposing and 1 in favor of the rezone. COMMISSIONER TORRES MOVED to recommend that the Kodiak Island Borough Assembly approve the rezoning of Tract A and a portion of Lot 7, Industrial Park Subdivision as granted preliminary approval in related Case S10 -004, from RB- Retail Business to R3- Multi- family Residential, subject to an effective clause requiring the recordation of a new plat based upon the preliminary approval in related Case S10 -004. The public hearing was opened & closed: Testimony given in support of the request was Dick Rohrer and Sam Rohrer. Testimony opposing the request was Dennis Symmons, Gary (Turk) Martin, and Kathleen Ballenger (called in). December 16, 2009 P &Z Minutes Page 2 of 9 Smith read Rogers comment into the record (directed by Rogers). During discussion, there was consensus to follow the Comp Plan and not mix Business and residential zoning. ROLL CALL VOTE ON MOTION FAILED UNANIMOUSLY COMMISSIONER TORRES MOVED to postpone the Findings of Fact until January 20th Planning & Zoning meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY C) Case 10 -009. Request a review of recommended policies, developed by the KIB Parks & Recreation Committee, to address recreational shooting on borough land, including (but not limited to) appropriate signage, cleanup of non - recommended locations, and an informational brochure to be developed in conjunction with the Kodiak Island Sportsmen's Association. The applicant is the Parks & Recreation Committee. Cassidy stated people have taken fire from people shooting irresponsibly and this is a public safety issue. Staff recommends the Commission approve and forward them on to the Assembly. COMMISSIONER JANZ MOVED to recommend to the Borough Assembly that policies for shooting be adopted in a manner similar to other recreational rules. The public hearing was opened & closed: Given testimony in support of this request was Mike Sirofchuck, Parks & Recreation Committee Chair. Testimony given in opposition was Tom Schwantes. During discussion it was the consensus that the irresponsible behavior be addressed before someone is hurt or killed, and the public access issue should be addressed with KISA. CHAIR KING stated the NRA has education programs that range from pre- school through retired people concerning guns and safety. The NRA is willing to come at no cost to the borough to implement these programs. He has the programs for people to look at that includes CD's, coloring books, work books, etc. SUGGESTED ACTION 1. Current unauthorized target practice sites be cleaned up and signs posted; 2. At White Sands Beach a sign also be posted stating Shooting not Recommended Here; 3. KISA and the Committee work together on an informational brochure identifying the location where shooting can legally occur such as at the KISA range in Salonie Creek; 4. Develop an education process that allows citizens to file a citizen's complaint when they notice illegal shooting along the road system. This effort encourages folks not to confront the shooters, but simply write down license plate numbers and report the incident to the state troopers. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY D) Case 10 -001. Request a review and recommendation of the 2010 - 2014 Capital Improvement Projects. The applicant is the Planning & Zoning Commission. Cassidy gave background information on the FY 10 - FY14 CIP list and recommends it be postponed indefinitely. He suggests they discuss how best to proceed with a FY 2011 to FY 2015 CIP process at the January work session so we can do an advertising campaign to really get the word out. COMMISSIONER TORRES MOVED to postpone indefinitely the Kodiak Island Borough's five (5) year 2010 -2014 Capital Improvement Program (CIP). The public hearing was opened & closed: There was no public testimony. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY December 16, 2009 P &Z Minutes Page 3 of 9 Current Location 2522 & 2620 Selief Ln P & Z Case # 10 -008 = Lester Leroy Russell Request an investigation, according to KIBC 17.2051 of a rezone from RB- Retail Business to R3 -Multr Family Residential, for Lot 7 and Tract A, Industria Park Subdivision. The zoning is RB- Retail Busines .0 Feet 500 v 1,000" r U. 3169 u.. Legend Notification Area Subject Parcels Map prepared for the purpose of showing the General location of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour infonnation:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to-date. Kodiak Island Borough Community Development Department. 04 Kodiak Island Borough Zoning Map Community Development Department , �E Current Zoning Request: Investigation of rezone for Lot 7 and Tract A, P & Z Case # 10 -008 Industrial Park Subdivision from RB- Retail Business t r Ag ent: Daniel L . Nelson Sr. R3- Multi- family Residential. _ — it .�'... o co e 0" & 4. 4 kir 6P ti eso &Ja Cst 4, u, -.4 212 K RI all If N 0 245 490 980 1 t t t 1 t r t ( Feet NI 1 1' 46Aii ( . `,,``, �.• , ,',�• � ° � . �► 1' ice co D e 4 s � __ „° o -• M1 Jo ° $' ,4 el L.: �� .® �� � V'P h° ,q.. 211 ® 21D •.. I Ee l � M1e �jE DRIVE GO''''' , 6' 4' us Zoning Legend Business 1 1 Light Industrial 1 1 Single Family Residential I 1 Retail Business Rural Residential 2 1 1 Conservation 1 1 Natural Use 1 1 Two Family Residential 1 I Rural Residential r Split Lot Zone Industrial Public Use 11 Multi Family Residential Rural Residential 1 This map was prepared from the Kodiak Island Borough's GIS System. It is provided for the purpose of showing the general location of a property within the Kodiak Island Borough. This map does not represent a survey. More information about the mapping data can be obtained by contacting the Kodiak Island Borough IT Department at (907) 486 -9333. DATE: December 1, 2009 TO: Planning and Zoning Commission FROM: Community Development Department SUBJECT: Information for the December 16, 2009 Regular Meeting CASE: 10 -008 APPLICANT: Lester Leroy Russell AGENT: Daniel L. Nelson, Sr. MEMORANDUM Public Hearing Item VI -B REQUEST: An investigation, according to KIBC 17.205, of a rezone from RB- Retail Business t4 R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. LOCATION: 2522 & 2620 Selief Lane ZONING: RB- Retail Business Twenty -nine (29) public hearing notices were mailed on November 30, 2009. Date of site visit: 1. Zoning History: The 1968 Comprehensive Plan identified this area as Public and Semi - Public. When this area was rezoned to I- Industrial in 1980 (Ordinance No. 80 -14 -0) the motion indicates that it was being rezoned from Unclassified to I- Industrial. The Lakeside /Safeway Subarea Plan, adopted and incorporated into borough code by Ordinance No. 91 -31, depicts the area as Retail Business. The property was subsequently rezoned to RB- Retail Business in April 1997 by Ordinance No. 97 -06. 2. Lot Size: Lot 7 (as proposed Lot 7 -1) Tract A 3. Existing Land Use: Case 10- 008 /Staff Report 1.58 acres 3.21 acres Resource Extraction /Vacant /Outdoor Storage Page 1 of 12 P & Z: December 16, 2009 4. Surrounding Land Use and Zoning: North: Lot 2A, Lakeside 2 Addition Use: Park/Ball Fields Zoning: PL- Public Use Land South: 1 -Lot 8, Industrial Park Subdivision 2 -Lot 1, Block 1, Lakeside Subdivision Use: 1- Vacant 2- Vacant Zoning: 1 -I- Industrial 2- RB- Retail Business East: 1 -Lot 8B, Block 1, Shahafka Acres 2 -Tract S -5A -1, Tract 1, U.S. Survey 3218 3 -Tract S -5A -1, Tract 2, U.S. Survey 3218 Use: 1- Single- family Residential 2- Commercial Retail 3- Vacant/Outdoor Storage Zoning: 1 -R2- Two - family Residential 2 -B- Business 3 -B- Business West: 1 -Lot 2A, Lakeside 2 Addition 2 -Lot 1A-1, Lakeside 2nd Addition Use: 1- Park/Ball Fields 2- Ministorage /SFR Zoning: 1- PL- Public Use Land 2 -I- Industrial 5. Comprehensive Plan: 6. Applicable Regulations: Public Hearing Item VI -B The 2008 Kodiak Island Borough Comprehensive Plan Update identifies this area for Commercial development. The following sections of Title 17 (Zoning) of the Borough Code and the Kodiak Island Borough Coastal Management Program are applicable to this request: 17.10.020 REFERENCE AND USE. In accordance with Alaska Statutes, zoning decisions shall be based upon the recommendations contained in the comprehensive plan. 17.10.030 COMPREHENSIVE PLAN. For the purpose of this title, the Kodiak Island Borough comprehensive plan consists of the following documents: A. Kodiak Island Borough comprehensive plan update dated December 6, 2007, prepared by Cogan, Owens, Cogan and the Kodiak Island Borough; ... Case 10- 008 /Staff Report Page 2 of 12 P & Z: December 16, 2009 17.205.030 MANNER OF INITIATION. Changes in this title may be initiated in the following manner: A. The assembly upon its own motion; B. The commission upon its own motion; and *C. By petition of one or more owners of property within an area proposed to be rezoned. A petition shall be in the form of an application for a change in the boundary of a district, shall be filed in the community development department, be accompanied by the required fee and such data and information as may be necessary to assure the fullest practicable presentation of facts and shall set forth reasons and justification for proposing such change. 17.205.055 SUBMISSION TO ASSEMBLY. A. Within 30 days after the commission has acted favorably upon a proposed zoning change in accordance with the above provisions, a report with recommendations shall be submitted to the assembly together with the proposed ordinance. Such recommendations of the commission shall be advisory only and shall not be binding upon the assembly. When an ordinance has been forwarded to the assembly, the assembly shall act in accordance with this chapter, and notice shall be issued as provided in KIBC 17.205.070 by the clerk. B. If the commission recommends denial of any proposed amendment, its action shall be final unless the initiating party, within 10 days, files a written statement with the clerk requesting that the commission's action be taken up by the assembly. COASTAL MANAGEMENT APPLICABLE POLICIES 4.4 Enforceable Policies B. Coastal Development POLICY B -1: MULTIPLE USE a. Structures or dredged or fill material placed in coastal waters shall be designed to minimize the need for duplicative facilities. Cbnsiseicy, material` i coastal w b. This policy is established for the Coastal Development standard (11 AAC 112.200) subject use. It applies to all uses and activities related to siting of facilities in or adjacent to coastal waters and placement of dredged or fill material into coastal waters. C onsistent T Nat Applicable; th POLICY B -3: DREDGE AND FILL ACTIVITIES a. An applicant for a project that will place structures or discharge dredge or fill material into coastal waters must include in the project description measures that will limit the extent of direct disturbance to as small an area as possible. Consl to ipy.,,, ,, 4ot Ap0166ble ;The prof Case 10- 008 /Staff Report Page 3 of 12 C O Public Hearing Item VI -B P & Z: December 16, 2009 b. This policy is established for the Coastal Development standard (11 AAC 112.200) subject use. It applies to all uses and activities related to placement of structures in or adjacent to coastal waters and placement of dredged or fill material into coastal waters. Consistency :Not Applicable.' The profect1oo is no adjacen C. Natural Hazards POLICY C -1: EROSION AND LANDSLIDES a. Proposed development and resource extraction activities in designated erosion hazard areas shall: 1. Minimize removal of existing vegetative cover, and 2. Stabilize soils and re- vegetate with native species for areas where development necessitates removal of vegetation, unless re- vegetation activities would cause more damage. Consistency revegetatlon. b. Subsection a applies to areas designated as erosion hazards under 11 AAC 114.250(b) as described in Section 4.5.2. Consistency Not Applicable. The,. within an erosion hazar D. Coastal Habitats and Resources Consieter c t orAr.i0 able: The r .. c, ctt ansisten"cy ot'Appllceb� Case 10- 008 /Staff Report r eu' e POLICY D -5: WIND GENERATION AND BIRD HABITAT a. The applicant shall incorporate measures into the project description regarding the siting of wind generation projects to minimize mortality to birds. These measures shall include, but are not limited to, installation of turbines on the tallest towers practicable for the site, configuration of towers to reduce the likelihood of bird strikes, and use of tubular towers, fully enclosed nacelles or other appropriate technology that has been demonstrated to reduce bird mortality from wind turbines. 9 Public Hearing Item VI -B #jent ftea b. This policy applies to uses and activities related to the Energy Facilities Standard 11 AAC 112.230. Consis of A pplicable.: energy aci �. H. Recreation POLICY H -1: PROTECTION OF RECREATION RESOURCES AND USES a. On public lands and waters used for recreation activities within designated recreation areas or on private lands and waters within designated recreation areas where the landowner has granted formal permission for recreational activities, non - recreational projects and activities shall be located, designed, constructed and operated to avoid significant adverse impacts to recreation resources and activities, including access and scenic views unless a comparable alternative recreational opportunity can be provided that would not decrease the quality of the recreation experience in another area. r uction of,an b. Access through water bodies shall be maintained. 1. Fences shall not be constructed across streams, 2. Bridges must be constructed at least four feet above the ordinary high water mark, 3. Structures, other than weirs, shall not impede travel by watercraft along waterways, and Page 4 of 12 P & Z: December 16, 2009 4. Weirs shall be constructed to allow for small boat passage over or around the structures, and warning signs shall be placed at least 25 yards upstream of the weirs. Consis erc " tIo Applicable The pr'oj Consistenc — Consls enc c. This policy applies to areas designated for recreation under 11 AAC 114.250(c) as described in Section 4.5.1, and it applies to all uses and activities that could affect recreational values described in the resource inventory and analysis. I. Archaeological and Historic Resources POLICY 1 -1: CONSULTATION AND SURVEYS a. For projects within the historic and prehistoric designation area, the applicant shall submit with the consistency review packet an assessment of potential impacts to historic and prehistoric resources and a plan for the protection of those resources. As part of the assessment, the applicant shall consult with the KIB, tribal entities and the Alutiiq Museum. tlatibn area b. This policy is established for areas designated for the study, understanding and illustration of history and prehistory under 11 AAC 114.250(i) as described in Section 4.5.4. It applies to all uses and activities that could affect these resources. Copsistency Nest Applicable`. ,The ,proje POLICY 1 -2: RESOURCE PROTECTION a. For projects within the historic and prehistoric designation area, if previously undiscovered artifacts or areas of historic, prehistoric or archaeological importance are encountered during development, an artifact curation agreement will be developed between the landowner, appropriate state of federal preservation authorities, and the curation facility if artifacts are discovered on the project site. b. This policy is established for areas designated for the study, understanding and illustration of history and prehistory under 11 AAC 114.250(i) as described in Section 4.5.4. It applies to all uses and activities that could affect these resources. K. Mineral Extraction and Processing POLICY K -1: SITING OF MATERIAL SOURCES a. Sources of sand and gravel shall be authorized in the following priority: 1. Upland sites, including river terraces above historic high water, 2. Areas of low habitat value, including river bars, 3. Streams which do not provide fish habitat, and 4. Other habitats. A Ica Case 10- 008 /Staff Report Page 5 of 12 Public Hearing Item VI -B Fecte •r P & Z: December 16, 2009 b. This policy applies to the sand and gravel standard (11 AAC 112.260). Consisteinc' : l of Applicable. Th e'praje 4.5 Designated Areas 4.5.1 Recreation Areas N/A 4.5.2 Natural Hazard Areas N/A 4.5.3 Important Habitat Areas N/A 4.5.4 Historic and Prehistoric Resource Areas N/A 4.5.5 Commercial Fishing and Seafood Processing Facilities N/A 4.5.6 Subsistence Areas N/A COMMENTS The land owner /petitioner initiated this rezone investigation with the assistance of local agent. Daniel J. Nelson, Sr. has been designated the agent for the property owner Lester Lee Russell. The petitioner has requested a rezone of Lot 7 and Tract A, Industrial Park Subdivision, from RB- Retail Business to R3- Multi- family Residential. The application form does not address the reasoning behind the request or provide any supplemental information about the suitability of the subject parcels for the intended use, whatever that may entail. CONFORMANCE WITH THE COMPREHENSIVE PLAN: Public Hearing Item VI -B e" The Kodiak Island Borough Regional Comprehensive Plan Update, January 2008, generally identifies this property for Commercial development. As such, the property is conforming to the comprehensive plan at present and could also be potentially consistent with other commercial zoning districts such as B- Business and UNC -Urban Neighborhood Commercial. Interestingly, this is not the first time that interest has been expressed in using this property for multi - family residential. In February 2007, the Planning and Zoning Commission granted a Similar Use Determination to allow multi- family residential in the RB- Retail Business zoning district as a use similar in character and impact to permitted boarding houses, hotels, motels, multi - family residential (not located on street level of the structure). The project proposed at Case 10- 008 /Staff Report Page 6 of 12 P & Z: December 16, 2009 ❖ Provide for orderly development; • Lessen street congestion; Promote fire safety and public order; ❖ Protect the public health safety and general welfare; • Prevent overcrowding; that time however was never executed and as a result the property remains in the RB- Retail Business zoning district. Although the similar use request proposed to develop the entire site for multi - family residential, granting of the similar use determination did not restrict the developer from changing their mind later and developing a mixed use residential and commercial site. As a result, the addition of unrestricted multi - family residential as an option in 2007 did not preclude the site from also having commercial uses in the mix, as permitted generally under the RB- Retail Business zoning district. In this case, it appears that the property owner wishes to make an irrevocable commitment to multi - family residential use (or other uses allowed only in the R3- Multi- familiy Residential zoning district) with no option to develop a substantial retail business component on the site. The analysis of the rezone will consider the relative benefits benefit of both the existing (RB) zone and the proposed R3 zone. The 2008, KIB Comprehensive Plan Update notes under "Implementation Policies" the following criteria: Identify an adequate supply of land in each community to meet future needs for homes and businesses, including commercial and industrial uses. Additional study is needed to estimate future employment in specific industries and related needs for land zoned for those types of uses. For example, in assessing the need and most appropriate locations for new industrial [sic, Business] land, consider the following factors. ✓ The need to support potential economic growth sectors. The level of need should be based on an assessment of trends in population growth and in specific economic sectors, including a realistic assessment of their potential within the KIB. ✓ Proximity to adequate public facilities, including roads, water and air transport facilities, as well as water and wastewater treatment facilities. ✓ Potential conflicts with adjacent land uses, particularly residential uses and sensitive natural resources. ✓ Parcel size, topography and other site characteristics as they relate to the requirements of businesses in anticipated growth industries. Another consideration that must be taken into account is the timing of a zoning change. Comprehensive plans typically project future land use proposals for a 10, 15 or 20 year period. The Commission and Assembly are not obliged to implement such recommendations in the plan if the overall condition and context of the community are not ready for such changes. As indicated in KIBC 17.05.030 (Intent), the purpose of the KIB system of land use regulation is to: Case 10- 008 /Staff Report Public Hearing Item VI -B Page 7 of 12 P & Z: December 16, 2009 The requested rezone is generally consistent with the applicable goals and objectives of the comprehensive plan. Staff has addressed the relative need for RB- Retail Business zoning and R3- Multi - family Residential zoning in the zoning section which follows. With regard to the location of the rezone area at the edge of the City of Kodiak boundary, with access to Tract A only through the city's jurisication, it is recommended that the Commission consider the initiation of annexation as a way to ensure the issue is propertly investigated by the Alaska Local Boundary Commission. Staff has investigated the annexation process and attached to this staff report answers to frequently asked questions. Initiation of an annexation request, which would most likely be done by or through the City of Kodiak, only guarantees a review will be done, it does not guarantee a particular outcome. Each annexation case is reviewed on the merits regard of which local action procedure is used to initiate the review. Zoning Regulations Public Hearing Item VI -B ❖ Stimulate systematic development of transportation, water, sewer, school, park, and other public facilities; and Encourage efficiency in the use of energy and the substitution of energy from renewable sources for energy from fossil fuels. The land is currently vacant and it is zoned RB- Retail Business. The RB zone permits a shorter list of permitted uses than the related B- Business zoning district. As the name implies the focus of the RB zone is on retail sales and service uses. As noted in the approved similar use determination (Case 07 -016), multi- family residential is an allowed use in all commercial zoning districts. It just so happens in the RB- Retail Business zone is unique in that multi - family residential is only allowed within a commercial structure and not on the street level of said structure. This would be a substantial impediment to strictly multi- family residential development as desired by the petitioner. Case 07 -016 also observed that the character and impact of multi - family residential is easily accommodated on a parcel that has been identified and found suitable for commercial use. So the real criteria for determining what zone best serves the community in this location is more likely based upon the need for additional high density residential land in the larger community that does not unreasonably reduce the inventory of vacant or under developed commercial land. It is also more likely that the determination of whether this is a suitable location for R3- Multifamily Residential uses will have quite a bit to do with the nature of surrounding uses which are a mixture of commercial, industrial and public recreation uses. Staff performed a simple screening exercise based upon the current certified tax roll and found that there is only about 20 acres of undeveloped R3 zoned land (borough wide) compared with more than 160 acres of vacant business land, While it is possible that recent projects permitted since the tax roll was certified may affect these figures, the area relationship between the two categories is not that close to be overly concerned with the margin of error. Case 10- 008 /Staff Report Page 8 of 12 P & Z: December 16, 2009 Public Hearing Item VI -B Of more concern is the fact that Lot 7 is currently being subdivided (Case S10-004) and has preliminary approval to subdivide .54 acres abutting Lot 8, Industrial Park Subdivision. Although not presently documented in the file, staff is aware that the presumptive purchaser of the smaller portion of Lot 7 does not wish to have R3 zoning. A request has been made to the agent for the rezone to provide clarification that the rezone only applies to the larger remainder portion of Lot 7, Industrial Park Subdivision. While it normally makes sense to place multi - family residential use close to a commercial center like the Safeway /Wal -Mart area, and close to a park such as the nearby Dark Lake ball fields, this context could be impacted by future industrial land uses. The intent of the I- Industrial zoning district is as follows: The I industrial zoning district is established as a district in which the principal use of the land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling, and distributing operations, which may create some nuisance, but which are not properly associated nor compatible with residential land uses. For the industrial zone, in promoting the general purpose of this title, the specific intentions of this chapter are: A. To encourage the construction of and the continued use of the land for business and industrial purposes; B. To prohibit all residential uses of the land not associated with industries and any other land use which would substantially interfere with the development, continuation or expansion of industry in the zone; C. To concentrate the industrial and business uses within designated areas to protect residential districts from noxious or noisy operations; and D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. [Ord. 81 -40 -0 §2, 1981. Formerly §17.24.005]. Although the I- Industrial zone does place some burden on the industrial user when located next to residential property, past experience has shown that these performance measures are no guarantee that conflicts due to noise, vibration, glare, hours of operation, etc. , will not at some point become a nuisance to adjoining residential land uses. Although the .54 acre subdivision parcel will likely remain zoned RB- Retail Business for the moment, any further change to the zoning (such as a change to I- Industrial) would also need to come through a rezoning process for public review before the Commission and the Assembly. Staff has contacted the various parties to the rezone and subdivision to obtain written clarification to the rezone boundary. These correspondences have been received and attached to this staff report for review. The latest maps have been revised to show the rezone area as it is requested based upon the written clarifications submitted by the respective applicant agents. Case 10- 008 /Staff Report Page 9 of 12 P & Z: December 16, 2009 LAND SUITABILITY: Public Hearing Item VI -B The land as currently situated is suitable for multi - family residential development. The total lot area proposed for rezone is 3.79 acres. Utilities to serve the site are available from or through the City of Kodiak. The utility infrastructure in the area is deemed adequate for the proposed use of the rezone area for multi - family residential as it would similarly be adequate for commercial development of the same area. There is nothing unusually about the lot shape or topography that would preclude development of permitted R3 zone uses. RECENT DEVELOPMENT TRENDS IN THE AREA: There is a large undeveloped tract below the bluff, next to Safeway, that is currently zoned B- Business. Because these sites are separated by topography, cross boundary impacts should be minimal, however it is unreasonable to expect that a business development on the lower lot will be able to screen or buffer any visual or noise impacts when development of this site occurs. The zoning code places certain obligations on the developer of business property when it adjoins residential, but that doesn't always mean that it is feasible to provide screening or buffering. There are a number of I- Industrial zoned properties in the area. Of the two closest ones the abutting Lot 8 is vacant and the industrial lot across Selief Lane at the corner of the intersection is developed with a ministorage warehouse use and a watchman /caretaker residence. The borough has developed the Dark Lake ball fields at the end of the cul -de -sac, although the City of Kodiak Parks and Recreation Department maintains them. There is a tentative plan for a third ball field to be developed as part of the Dark Lake fields and there was also a plan (and area set aside) for a BMX bike course. Although the BMX course seems to have gone by the wayside, there is potential for a "pocket park" or tot lot should the area be developed with a substantial residential population. TRAFFIC IMPACTS: The amount of traffic to commercially developed property can vary considerably. Nevertheless, if the Commission considers the highest traffic generation scenario for commercially zoned land it is unlikely that the uses allowed in the R3 zone would surpass that level. More than likely, the nature of traffic changes would be based on residential commute times and sporadic traffic and deliveries during the day as opposed to sustained commercial traffic during the day and peak traffic on evenings, weekends and holidays. Given the mixed nature of development in the area staff does not anticipate any significant impact from the change of zoning. The rezone area is located close to a commercial center which is convenient for obtaining goods and services as well as employment in the area, Across the intersection of Von Scheele Way and Selief Lane is a paved bike /pedestrian path. Although it is located close to Safeway and Wal- Mart, it does not seem prudent from a safety standpoint to develop a path directly from this Case 10- 008 /Staff Report Page 10 of 12 P & Z: December 16, 2009 RECOMMENDATION APPROPRIATE MOTIONS Public Hearing Item VI -B rezone site to the commercial area. If a safe access were to be developed it would need to be done with approval by the affected land owners. So it would appear that for public access purposes the shortest route to nearby commercial areas and schools would be Selief Lane to Von Scheele Way and then to the Safeway driveway or Mill Bay Road intersection. Staff recommends that the Commission forward this rezone request to the Kodiak Island Borough Assembly with a recommendation that Tract A, and a portion of Lot 7 (as granted preliminary approval in Case S10 -004) Industrial Park Subdivision, be rezoned from RB- Retail Business to R3- Multi - family Residential, subject to an effective clause requiring the recordation of a new plat based upon the preliminary approval in related case S10-004. Should the Commission agree with the staff recommendation, the appropriate motion is: Move to recommend that the Kodiak Island Borough Assembly approve the rezoning of Tract A and a portion of Lot 7, Industrial Park Subdivision as granted preliminary approval in related Case S10 -004, from RB- Retail Business to R3- Multi- family Residential, subject to an effective clause requiring the recordation of a new plat based upon the preliminary approval in related Case S10 -004. The preceding motion should be APPROVED. EFFECTIVE CLAUSES 1. The rezoning will not become effective until a final plat is filed for case S10 -004, establishing the new property boundary to which the R3 zoning will be mapped. FINDINGS OF FACT Section 17.72.020 states that the Commission shall incorporate the following criteria into their report to the Assembly: 17.72.020 A. Findings as to the Need and Justification for a Change or Amendment. Based on a review of the current certified borough tax roll, there is a large supply of vacant commercial land (160 acres + / -) and a relatively small supply of vacant multi - family (R3) zoned land (20 acres + / -). The site is located close to a commercial center which can provide some employment opportunities in addition to the goods and services that residential use requires. The site is located relatively close to an elementary school (East Elementary) and it has good access through Von Scheele Way to Mill Bay Road an arterial street. There is also a bike /pedestrian path across Von Scheele Way near the intersection with Selief Lane. The site has a borough Case 10- 008 /Staff Report Page 11 of 12 P & Z: December 16, 2009 Public Hearing Item VI -B owned ball field nearby (which is currently maintained by the City of Kodiak) and the site has potential for additional ball field and park development as needed. Generally, multi - family residential is considered a good fit with commercially zoned land as it is an allowed use in some form in all urban commercial zones where municipal water and sewer are available. There may be some concerns about the mixed use nature of the area surrounding the rezone area (I- Industrial zoned land) and concern about the most efficient and cost effective way to provide services, given the fact the rezone area falls into two different service areas. On the whole, however, the rezone has more positive attributes than negative, hence the recommendation to make the zoning change from RB- Retail Business to R3- Multi- family Residential. 17.72.020 B. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan. The 2008 Kodiak Island Borough Comprehensive Plan Update recommends this area for Commercial development, however the plan does not take into account the available supply and demand for undeveloped commercial and multi - family residential land. In addition, while all urban commercial zones provide for some form of multi - family development, this multi - family residential is sometimes permitted only in conjunction with commercial development as is the case for the RB- Retail Business zoning district. The plan encourages a balance of zoned lands to meet the future needs of the community and while the plan does encourage the development of higher density residential in close proximity to commercial centers, it does not specifically address the desire to have the synergy of multi - family residential and commercial development without actually permitting commercial development on the same lot as the multi - family residential use. Case 10- 008 /Staff Report Page 12 of 12 P & Z: December 16, 2009 LOT 7 -1 1 5 AC, ES AR•' =68938 SM. FT. SOME MAC RAMM. CO 1000 MAMA 9000 COWL_ 1 Recommended rezone area Case 10 -008 (Tract A extends beyond this page view F , uAN>E J „ `l V... --T " SS S 27'51 30 W LOT 8 120' 80' 40' 0' 19%28 � „ SS �G111 OF MIN't 8'30 5 T Rg CT s_ 5,4 PLAT 93,34 LEGEND — 1_1__.1 .__1_1_1 — _ 010 MK FENCE — z _-_. ss -- ss --- - SEWER UNE --- w -- w -- - WATER UNE t - PONEII POLE - 1ANP POLE OHP — - OVERHEAD PA ES 0 - MSS CAP MOIEMEN0 FOUND SO&ECT TO ALL CONDEMNS. S0JMNOE'S, EASEMENTS, CWf.WN15, RESER0ATON, EESIPoCTOIS AND MGM OF MAY OF RECORD, ,_Preliminary Plat, Case S10 -004, Granted approval on 23N0V09 N 01'20'28" W 6.42 PRELIMINAR Y VICINITY MAP )WNERSHIP AFFIDAVIT 1007 MDR 9W E NE DE MRS 0 TIC 010177 MsxaD IOAM I ME0F 0X81 10 RE MCC Ai (ROEII0 FMS max CUES , ACES, AIM 770090 FACT PAMM NO 090 Nat NOS SEEM RDEDA DUE OAMR ow 965f1 NO 981E 1 CECIL -COMA 0 ATIC95! I11)1V0 A AMEN NOTARY ACKNOWI EDGMFNT I 1260990 MO DOOM M MEOWS 06 Dn D 2002 (05IOI 11007 ME$ MD DONNE 1059.E -ADO Cr 01I9NE7 KAM A ADO TAX CERTIFICATE] I*041? COW DAT AOMADAC 1900411016 DE KM WS MOM Al 7993 ease, RO0.E DLM61S10 6MMMMCI 091M PS SAM 20412 OE NIO M RO. M ILO MDM NOAP EM OM O_ m DIM 6 ID 619007 9W MAN R0 6 027 MMED M AXDEOIf ANTI 9E DOMM( WOO 0817101 CME gas OM 6 2006 DOOM 0NE7i MUM 00* COMM DC 168* 09100 DAD.._ REFERENCES: 1SIAT 92 - 73 RECORDED NI THE MOAN( RECOPI0MG MERCT ANE 19, 1992 2.793 93-34 RECORDED NI THE OM RECORDING CASINO Seplemb0 27. 1993 IRA 91 -16 RECORDED MINE ROW( RECORDING NON ARY 1, 1967 RICIGRD RORER MODIMS At. 99627 MEIM @NO OMpAM 0000 URN 9 9G9944901 OF IM 7 /TIC 4 106 7 - 0 1 PAM RR „MI'A CO GAWK K 1025 -1 OD 7-2 wa n -u E010( P0600006 AA94 _ MIMS =Ma wwm w WE 1••••1•• a•••• m. AM) Mt s•••• Y mamma Se wig *471017 M0®Mw mud • M M.( '9'"s ILPIY iW"7NC. PAL 1aa 1 aOMm rra ww (PIP) a.+1r• Rezone Area, Case 10 -008, Retail Business to R3- Multi- family Residential G LOT 2 TRACT B Sheet 18 7 1y,n +n /0 'City of Kodiak Boundar r\JUIHIN IJLHIVU GVt[VUVr7 - t.JIVIIVIU1111 1 ucv c6.vrrvl cull 1 ucrrtr.1I nr_It 710 Mill Bay Rd„ Room 205, KODIAK, AK 99615 -6398 (907) 486 -9363 - FAX (907) 486 -9396 www.kib.co.kodiak.ak.us Applicant Information r (`"(00 Property owner's name , rc)6 Property owner's mailing address City State Home phone Work Phone E -mail Addr. Agent's name (If applicable) Agent's mailing address 't ar City / S tate / e Work Phone Home phone 5a 7 63 7 Additional Narrative/History As -built Survey Property Owner's Signature Code Section(s) Involved: Variance (KIBC 17.66.020) $250. Conditional Use Permit (KIBC 17. Other (appearance req ests, site Zoning change from Application received by: Staff signature 97 Zip Zip E -mail Addr. tjt STAFF USE ONLY Property information Property ID Number /s i's7F1 ; 1 PA rk 1± 7 -f"Tvx, )- Legal Description Current Zoning: et47)// 8U. ; r /2 e �s Applicable Comprehensive Plan: Year of Plan adoption: J / Present Use of Property: l (K PH /1 130s//? ? r V'Cs t eTr is" ( /4r /Proposed Us of Property: _ /3a/it/ res./0/9/7 (Note: Use additional sheets, if needed, to provide a complete description of the proposed request. Applicant Certification I hereby certify as the property owner /authorized agent that this application for Planning and Zoning Commission review is true and complete to the best of my knowledge and that it is submitted in accordance with the requirements of the applicable Kodiak Island Borough Code, which includes a detailed site plan for variance and conditional use requests and which may include optional supporting documentation as indicated below. Photographs . dev Date Authorized Agent's ignature if2L �j�<<,sir, 00 67.020.B) $250.00 plan review, etc,) $150.00 (KIBC t 14449 Maps Other //- -0 Date 1A development plan for one or more lots on which is shown the existing and proposed conditions of the lot, including topography, vegetation, drainage, flood plains, wetlands, and waterways; landscaping and open spaces; walkways; means of ingress and egress; circulation; utility services; structures and buildings; signs and lighting; berms, buffers, and screening devices; surrounding development; and any other information that reasonably may be required in order that an Informed decision can be made by the approving authority. (Source: The New illustrated Book of Development Definitions, 01993 by Rutgers University) PAYMENT VERIFICATION *Zoning Change, Fee Schedule: (per K111 Assembly Resolution Eft. July 1, 2005) Less than 1.75 acres 1.76 to 5.0(1 acres 5.01 to 30.(10 acres 40.01 acres or more 1+35UMli $7;0,00 51,000.00 S IO -JD 10 /L0 39dd KODIAK ISLAND BOROUGH ,. COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Pulilie Piearing Item VI -E A public hearing will be held on Wednesday, December 16, 2009. The meeting will begin at 7:30 p.m_ in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: APPLICANT: REQUEST: LOCATION: ZONING: This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in tht space below or in a letter to the Community Development Department prior to the meeting. If you would ble to fax your comments to us, our fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The localeall -in telephone number is 486 -3231. The toll free telephone number is 1- 800478 -5736. One week prior to the regular meeting, on Wednesday, December 9, 2009, a work session will be held at 730 p.m. in the Kodiak Island Borough Conference Room (#121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your apPeal rights, please fool free to call us at 486 -9363. Mailing Address: nv. • ''r�Gx 2-0 Your property description: C j 5 CL{ (° G< Your Name: Comments; PUBLIC HEARING NOTICE 10-008 Lester Leroy Russell An investigation, according to KIBC 17.205, of a rezone from RE-Retail Business to R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. 2522 & 2620 SeliefLane R13- Retail Business S3NOr a2itiMa3 05099817L06 EZ:t't 6002/Z0/EI December 3, 2009 Regarding Rezone Case 10 -008 To the KIB Planning and Zoning Commission: As the authorized representative for the land owner, Lester Lee Russell, I would like to clarify the rezone application with regards to the requested rezone boundary. Concurrent with this request, Mr. Russell had agreed to sell a portion of Lot 7 to another party and that transfer was addressed in Abbreviated Subdivision Case S10 -004. As the abbreviated plat was granted preliminary approval on 23NOV09, we would ask that you adjust the requested rezone boundary amendment to conform with that preliminary plat. -e4.1 Daniel L. Nelson, Agent for Case 10 -008 MASTER GUIDE - OUTFITTER Dick Rohrer P.O. Box 2219 Kodiak, Alaska 99615 Ph: (907) 486 -5835 Fax: (907) 486 -5800 rrohrer @alaska.com Kodiak Island Borough Community Development Department 710 Mill Bay Rd Kodiak, Alaska Dec. 3, 2009 Mr. Dvorak, S r BFARCAMI INC FARE CHASE HUNTING Brown Bear Mountain Goat Sitka Blacktail Deer Family Trips Fishing This letter is in response to our conversation in your office yesterday concerning the requested rezone of Lot 7 Industrial Park Subdivision to R3. Samuel Rohrer and I recently purchased Lot 8 because of its current zoning as Light Industrial. We have no intention to include Lot 8 in this rezone request. On October 15, 2009 Leroy and Bonnie Russell gave me Power of Attorney specific to all matters relating to the subdivision and replatting of Lot 7 Industrial Park Subdivision. (See Attached) On November 23, 2009 The Kodiak Borough Community Development Department, granted preliminary approval for the subdivision of Lot 7 creating Lots 7A & 7B. Case S10-004. It is the intent of Mr. and Mrs. Russell that only the larger lot resulting` from the subdivision of Lot 7 be included in the rezone request in question. The smaller resulting lot of the Lot 7 subdivision will therefore retain the existing zoning. Regards, Richard A. Rohrer FILE # POWER OF ATTORNEY (SPECIFIC) KNOW ALL MEN BY THESE PRESENTS, THAT I, LESTER LEROY RUSSELL AND BONNIE J RUSSELL, whose address is 722 SUGAR AVENUE, ONTARIO, OREGON 97q 14, have made, constituted, and appointed RICHARD A ROHRER, whose address is PO BOX 2219, KODIAK, ALASKA 99615, my true and lawful attorney, for me and in my name, place and stead, and for my use and benefit, to make, seal and deliver, to bargain, contract, agree for, purchase, receive and take lands, tenements, hereditaments and accept the seizing and possession of lands, deeds and other assurances and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements and hereditaments, upon such terms and conditions and under such covenants as he/she shall think fit, and to sign, seal, execute, deliver and acknowledge such deeds, leases and assignments of leases, covenants, indentures, agreements, mortgages, bills, notes, receipts, evidences of debts, releases and satisfactions of mortgages, judgments and other debts and such other instruments in writing of whatsoever kind and nature as may be necessary or proper in the premises, with regard to the following described real property. All matters related to the subdivision and replatting of LOT SEVEN (7), INDUSTRIAL PARK SUBDNISION, according to Plat No. 92 -23, located in the Kodiak Recording District, Third Judicial District, State of Alaska. Giving and granting unto my said attomey full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do If personally present hereby ratifying and confirming all that my said attomey shall lawfully do or cause to be done by virtue of these present. !U IN WITNESS : HEREOF, I have hereunto set my hand and seal this 1_day of LESTER LEROY RUSSE BONNIE J RUSSELL 200 Page 1 of 2 Power of .Attorney - (Ru5scll to Rohrer) Rezone Area, Case 10 -008, Retail Business to R3- Multi - family Residential 2 LOT 2 IA- Borough Ballfields BEAVER 1LAKE LOOP ROAD BEAVER DRIVE 16 2A V SARK .LIKE 11 rintod 2/2 Kodiak Urban Area FEET O 5Q 100 1000 Sheet 18 City of Kodiak Boundary /07 Table 3.8 Kodiak Island Borough Population by Age and Sex, and Components of Change, 2006 - 2030 July 1, 2006 Estimate Age Total Male Female 0 -4 5 -9 10 -14 15 -19 20 -24 25 -29 30 -34 35 -39 40 -44 45 -49 50 -54 55 -59 60 -64 65 -69 70 -74 75 -79 80 -84 85 -89 90+ 1,119 1,179 1,236 1,133 679 739 944 1,118 1,134 1,119 980 831 512 306 202 124 73 50 28 560 559 628 551 606 630 607 526 349 330 364 375 480 464 569 549 585 549 614 505 534 446 439 392 279 233 164 142 101 101 62 62 37 36 28 22 8 20 Total 13,506 7,014 6,492 Median Age 33.5 34.1 33.0 July 1, 2015 Projected Age Total Male Female 0 -4 5 -9 10 -14 15 -19 20 -24 25 -29 30 -34 35 -39 40 -44 45 -49 50 -54 55 -59 60 -64 65 -69 70 -74 75 -79 80 -84 85 -89 90+ 985 984 1,098 953 876 1,018 779 760 849 973 1,004 921 754 620 346 190 100 51 37 Total 13,298 Median Age 34.7 505 480 504 480 572 526 510 443 434 442 548 470 405 374 370 390 428 421 507 466 534 470 516 405 401 353 333 287 188 158 98 92 45 55 21 30 17 20 6,936 6,362 34.9 34.6 0 -4 5 -9 10 -14 15 -19 20 -24 25 -29 30 -34 35 -39 40 -44 45 -49 50 -54 55 -59 60 -64 65 -69 70 -74 75 -79 80 -84 85 -89 90+ July 1, 2010 Projected Age Total Male Female 0 -4 5 -9 10 -14 15 -19 20 -24 25 -29 30 -34 35 -39 40 -44 45 -49 50 -54 55 -59 60 -64 65 -69 70 -74 75 -79 80 -84 85 -89 90+ Alaska Population Projections • 2007 - 2030 962 1,184 1,164 1,034 960 760 806 946 1,057 1,093 1,022 831 708 398 239 151 78 44 40 Total 13,477 7,042 6,435 Median Age 34.2 34.6 33.8 July 1, 2020 Projected Age Total Male Female 993 1,006 885 884 791 933 1,047 730 660 772 884 903 838 667 549 281 130 65 40 Total 13,058 Median Age 35.0 Source: Alaska Department of Labor and Workforce Development, Research and Analysis Section, Demographics Unit 493 469 615 569 616 548 514 520 521 439 397 363 393 413 476 470 549 508 581 512 571 451 443 388 381 327 220 178 127 112 72 79 33 45 19 25 21 19 509 484 515 491 454 431 465 419 425 366 460 473 561 486 380 350 321 339 389 383 461 423 481 422 469 369 353 314 290 259 149 132 65 65 28 37 16 24 6,791 6,267 35.1 34.8 65 Table 3.8, cont. Kodiak Island Borough Population by Age and Sex, and Components of Change, 2006 - 2030 July 1, 2025 Projected July 1, 2030 Projected Age Total Male Female Age Total Male Female 0 -4 953 488 465 0 -4 838 429 409 5 -9 1,015 520 495 5 -9 972 498 474 10 -14 911 468 443 10 -14 921 473 448 15 -19 653 338 315 15 -19 689 356 333 20 -24 730 385 345 20 -24 512 265 247 25 -29 848 452 396 25 -29 783 409 374 30 -34 961 471 490 30 -34 871 462 409 35 -39 1,008 542 466 35 -39 919 450 469 40-44 632 331 301 40 -44 914 495 419 45-49 590 286 304 45 -49 563 296 267 50 -54 692 348 344 50 -54 519 251 268 55 -59 783 408 375 55 -59 601 302 299 60 -64 821 436 385 60 -64 702 365 337 65 -69 749 418 331 65-69 732 386 346 70 -74 597 311 286 70 -74 671 368 303 75 -79 459 236 223 75 -79 503 255 248 80 -84 203 104 99 80 -84 345 172 173 85 -89 86 41 45 85 -89 137 68 69 90+ 49 21 28 90+ 63 29 34 Total 12,740 6,604 6,136 Total 12,255 6,329 5,926 Median Age 36.5 36.7 36.3 Median Age 38.0 38.0 37.9 Population and Components of Population Change, 2006 -2030 2006 -2010 2010 -2015 2015-2020 2020 -2025 2025 -2030 Population at Start of Period 13,506 13,477 13,298 13,058 12,740 Population at End of Period 13,477 13,298 13,058 12,740 12,255 Average Annual Births 204 Average Annual Deaths 72 Average Annual Net Migrants -139 Average Annual Change -7 212 217 211 198 73 80 90 101 -175 -185 -185 -194 -36 -48 -64 -97 Average Annual Percent Change -0.05% -0.27% - 0.36% -0.49% -0.78% * Average annual numbers are rounded to whole numbers. Source: Alaska Department of Labor and Workforce Development, Research and Analysis Section, Demographics Unit Alaska Population Projections • 2007 - 2030 66 Planning and Preparing Proposals for Annexation to Cities Prepared by: Local Boundary Commission Staff Division of Community & Business Development Alaska Department of Community and Economic Development revised September 21, 2000 Proper planning can be critical to the success of any annexation proposal. This is particularly true if the proposal is complex or likely to be controversial. Encourage Public Participation in Planning for Annexation Participation in the annexation planning process by city residents and those who live, work, and /or own property in the area proposed for annexation should be encouraged. If the city is within an organized borough, officials of the borough should also be invited to participate. If the annexing city is in the unorganized borough, the city should confer with agencies and organizations currently providing local services to the area contemplated for annexation (e.g., regional educational attendance area). When considering the size of the area to be proposed for annexation, identify all proximate areas that are integrated with the community and that may reasonably warrant inclusion within the city during the next decade. Development of an annexation petition requires a substantial commitment of time and energy. Therefore, municipal governments, residents and property owners are often better -served if municipal boundary changes are few in number and comprehensive in scope rather than small and piecemeal. The product of the planning effort should form the basis of the annexation petition. Page 1 Define Objectives The annexation planning process typically begins by developing a statement of what is intended to be accomplished through annexation. The following are often cited by cities in Alaska as objectives for annexation: I. To remedy inequities faced by city taxpayers. For example, it may be that city services are being provided to non - residents without commensurate taxes, user fees, or other adequate revenues. Often, businesses within a city will be subject to both higher property taxes and higher sales taxes than businesses located in the adjoining area outside the city. Businesses inside the city may consider themselves to be unfairly burdened and to be at a significant competitive disadvantage under such circumstances. 2. To reduce the city's exposure to liabilities. Cities may choose to provide services such as fire protection or police protection outside their corporate boundaries even though the city may lack clear extraterritorial authority under AS 29.35.020 to do so. In other cases, there may be clear legal authority to provide extraterritorial services such as emergency medical services, however, residents and property owners inside the city may be deprived of timely receipt of emergency services because city resources were committed outside the city's boundaries. 3. To provide services needed by an outlying area. Often residents of areas adjacent to a city request services from the city, such as police protection, fire protection, emergency medical services, road maintenance, and utilities. 4. To promote orderly growth and development or to abate threats to public health and safety through platting, land use regulation, and other powers. Page 2 5. To promote greater efficiency in governmental operations. A city may be able to achieve improved economies of scale by serving a larger area. Additionally, a city may seek annexation of territory to eliminate or avoid the creation of another governmental unit in accordance with Article X, Sections I & 5 of Alaska's constitution. 6. To include areas undergoing growth and development outside the corporate boundaries of the city in order to provide political boundaries that more fully reflect the actual community as defined by economic, sociological, physical, and cultural characteristics. 7. To enfranchise individuals. Residents of outlying areas may be a part of the greater community served by the city, but because they live political boundary, those individuals are not allowed on the other side of an artificial a voice in city government. Annexation would allow those individuals to be appointed to city boards and commissions, hold elective office in city government, and vote in city elections. 8. To provide more orderly boundaries eliminating confusion and uncertainty regarding whether a particular property is inside the city. This is especially important for the timely delivery of emergency services. 9. To protect or enhance the city's tax base in order to provide more reasonable taxes for all who benefit from city government and /or to increase the bonding capacity of the city. 10. To lower utility rates. Some cities impose utility surcharges to areas served outside the boundaries of the city. 1 I. To lower fire insurance premiums. Often fire insurance premiums are lower for properties within the boundaries of a city. Page 3 Consider Likely Arguments in opposition to Annexation In planning for annexation, it may be useful to anticipate arguments from those who may oppose any proposal to extend the boundaries of the city. The following arguments are often advanced by critics of city annexations in Alaska. I. Annexation is unnecessary or unwise. Opponents of annexation may assert that they chose to live outside the jurisdiction of a city to pursue a lifestyle free from intrusive local government. Frequently, annexation to a city is equated with a diminution of the personal freedom of residents of the area proposed for annexation. 2. The city lacks adequate resources to extend its services within expanded boundaries. The annexing city may be characterized as deficient in terms of its delivery of services to areas already within the city. Critics may assert that annexation will only exacerbate the annexing city's deficiencies. Critics sometimes express the unrealistic expectation that the annexing city will be obligated to ��•� extend utilities, sidewalks, paved streets and other amenities to the territory proposed for annexation. 3. Annexation is just a "cash cow" for the city. Opponents to city annexation may characterize the annexing city as being driven by greed and thus being inherently objectionable. 4. Residents of the area proposed for annexation already provide commensurate support to the city. They pay sales taxes for goods and services purchased within the city, they serve as volunteer firefighters, and they pay user fees for city services. 5. Residents may lose certain privileges and entitlements if annexed. These may include eligibility to participate in the rural housing loan program of the Alaska Housing Finance Corporation. 6. The area proposed for annexation is not compatible in character with the annexing city. Residents and property owners in areas proposed for annexation commonly assert that they are 'rural' folk with lifestyles and service needs quite different from those of 'city' people. Residents wish to retain the rural character of their area and oppose annexation as a step toward greater urbanization. They oppose municipal animal control, regulation of firearms, and other ordinances, regulations, and license requirements of the city. Page 4 7. Residents and businesses outside the city chose to build and live there in order to avoid government regulation and taxes for services they do not wish to have. 8. There is distrust of the government and politics of the city. Frequently, opponents of city annexation assert that they moved to the area proposed for annexation with the intention of `getting away' from government regulation. 9. The city is unable to finance the additional services expected by residents of the area proposed for annexation. Annexation would be a financial drain upon the city for many years. Services may not be extended to new areas without adversely affecting in -city service levels or without utility rate increases. 10. Existing police or fire services may be overextended by annexation, reducing the level of protection to the entire community. 1 1. It cannot be presumed that it will be more economical for the city to provide services to a larger area. Extending the service area may cost much more for each unit than the existing per unit cost. Consider Alternatives to Annexation Page 5 12. Annexation, particularly annexation by the legislative review method that does not require voter approval for annexation, is anathema to democracy. Non- resident owners of property in the area may consider it unfair that they are not extended special procedural status in the annexation process. Once the objectives have been defined and potential arguments against annexation considered, city officials should determine whether there are alternatives to annexation that may be more suitable means of accomplishing the objectives. For example, an alternative to annexation as a way to remedy inequities and reduce liabilities might be to eliminate all extraterritorial services delivered by the city. Of course, such alternatives may have serious shortcomings. Eliminating all extraterritorial services including police, fire protection, and emergency medical services may be morally unacceptable for the community as a whole. Other alternatives to annexation that are often proposed include: (I) increasing property and other taxes within the present city boundaries, (2) establishing borough (organized or unorganized) service areas to provide services, and (3) imposing or increasing user fees on non - residents. Determine which Method of Annexation is Best Suited If city officials choose to pursue annexation, the planning effort should address which particular method of annexation would be best suited to accomplish the objectives (see: "Background on Annexation of Territory to Cities" prepared by LBC staff, 9/21/00). The method selected will determine the timing and other characteristics of the proposal. Consider the Standards that Govern Annexation Careful consideration should be given to the criteria established in law governing the nature of territory that may be annexed to cities. These are found in AS 29.06.040 and 3 AAC 110.090 — 3 AAC 1 10.150. A summary of these standards is provided in "Background on Annexation of Territory to Cities" prepared by LBC staff on September 21, 2000. The standards will be particularly useful in defining what territory should be included in the annexation proposal. Consider how Annexation would be Implemented State law (3 AAC 110.900) requires that every annexation proposal include a transition plan explaining how annexation will be implemented. The plan must demonstrate: A. The intent and capability of the city to extend essential city services [as defined by 3 AAC 110.990(a)(8)] into the territory proposed for annexation in the shortest practical time following annexation (not to exceed two years); B. The manner in which the city will assume all relevant and appropriate powers, duties, rights, and functions presently exercised within the territory proposed for annexation; C. The manner in which the city will assume and integrate all relevant and appropriate assets and liabilities of entities providing those services to the territory that will be assumed by the city without Toss of value in assets, loss of credit reputation, or a reduced bond rating for liabilities; and D. That the plan was prepared in consultation with entities currently responsible for or otherwise providing those services to the territory that will be assumed by the city. Page 6 The transition plan should specifically address: I. What specific powers, services, taxes, license requirements, and zoning or other regulations will be extended to the area proposed for annexation; 2. What schedule will guide the extension of powers, services, and taxes, license requirements, and regulations; 3. Whether differential tax zones or other special circumstances are contemplated in conjunction with anticipated levels of services and taxes in the area proposed for annexation; 4. What costs are reasonably anticipated in connection with the proposed extension of powers, services, taxes, license requirements, and zoning or other regulations; 5. What revenues are reasonably anticipated to be gained by the city as a result of annexation; 6. What financial impacts annexation would have on other governments; Transition Plan 1 ji;*p * ii I Emergency Services der Vii; Revenues 4 014 , * i , _ � Ala Planning, Zoning & Development S 7. What assets and liabilities the city will assume from agencies and organizations currently providing services to the area proposed for annexation; 8. Plans for transition of relevant local laws currently in place in the city; 9. The effect that annexation will have on powers or services currently provided or exercised by an organized borough in the area; Page 7 10. If the territory proposed for annexation is within one or more service areas of an organized or unorganized borough, how annexation will affect the nature of the service area (e.g. abolition or detachment of territory). Public Hearing Although not required by current law, a public hearing before the city council is an effective and appropriate means to maximize the effectiveness of the annexation planning process. PUBLJC NEARING Ideally a draft of the prospective annexation petition will be made available for public review prior to the public hearing. Additionally, a summary of the annexation proposal, including a map of the territory proposed for annexation, synopsis of the application of the annexation standards to the proposal by the prospective petitioner, and an outline of the reasonably anticipated effects of annexation will also be available for public review in advance of the hearing. Public notice of the hearing should be given in the manner provided for a hearing of the Local Boundary Commission under 3 AAC 1 10.550. The hearing should be held at a convenient location in or near the territory proposed for annexation. It should provide for a period of comment on the proposal from members of the public. Appropriate hearing topics include: (1) annexation standards and their application to the annexation proposal; (2) proposed method for annexation; and (3) the reasonably anticipated effects of the proposed annexation. It would be fitting to include a transcript or detailed account of the hearing as an appendix of the petition. Technical Assistance, Forms, and Sample Materials Available Local Boundary Commission staff are available to provide technical assistance, petition forms, and sample annexation materials to prospective petitioners, prospective respondents (those favoring or opposing annexation), and to other interested individuals and groups. Page 8 For more information about annexation of territory to a city or the Local Boundary Commission contact: Local Boundary Commission Staff Department of Community and Economic Development 550 West 7th Avenue, Suite 1770 Anchorage, Alaska 99501-3510 Telephone: 269 -4559 Fax: 269 -4539 E -mail: Dan_Bockhorst@dced.state.ak.us Information about annexation to cities is also available on the Local Boundary Commission's Internet website at: http://www.dced.state.ak.us/mra/Mrad_lbc.htm Page 9 This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department prior to the meeting. If you would hlce to fax your comments to us, our fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local•call-1n telephone number is 486 -3231. The toll free telephone number is 1- 800478 -5736. One week prior to the regular meeting, on Wednesday, December 9, 2009, a work session will be held at 7 :30 p.m. in the Kodiak Istand Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. if you have any questions about the request or your appeal rights, please fool free to callus at 486 -9363. , C ! ' Your Name: ecie "t . 6 -J 6 t4 7� J _) Address. ry ... X 2 _0 `) Your property description: � r i � s ', t l ' in t g 5 f'E '� e G C Comments: — • i , -- .. — _e..w. —K c, KODIA K ISLAND BOROUGH,. COMMUNITY DEVELOPIVIENT DEPARTMENT 710 Mill Bay road, Kodiak, Alaska 99615 Public Hearing Item VT -E PUBLIC HEARING NOTICE To /TO 39ad A public hearing will be held on Wednesday, December 16, 2009. The meeting will begin at 7:30 p.m_ in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the followinp CASE: APPLICANT: REQUEST: LOCATION: ZONING: VI B 10 -008 Lester Leroy Russell An investigation, according to KTBC 17.205, of a rezone from RB- Retail Business to R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. 2522 & 2620 Selief Lane BB- Retail Business s3NOr QZiVMQ3 0t0998tL06 EZ :bt 6002 /Zo /Zt This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally. you may provide your comments in the space below or in n letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907) 486 -9396. If you would tike to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1 -800 -478 -5736. One week prior to the regular meeting, on Wednesday, December 9, 2009, a work session will be held at 7;30 p.tn. in the Kodiak Island Borough Conference Room ( #121). to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights. please feel free to call us at 486 -9363. / Your Name: f/v <-5 ft-f�(.xim.e...5 Moiling Address: Pa !-5 DX al .3 Your property description: 3 Oq S' +4 A -,P4AF ,/ '4 ell , L o'r '7 ^ 2 ��,.y� Comments: ...... / ,t4 A- »U W ) J rf',i/ '/ 6e0/' 2,,,t 7 AS 1 ,t 7 r+ . i s_... i e Y 1Q'vG.. ' -1 L e PII A / /e'0 - 7 "t'i. l 774 E .e LtEF il 3.44.4. ' 4-14 ,€}4 6G ' ri.v 6 ieo tf /n y 40,41-7- r 4-6 "Th ' 1(.24- A, 7" e4-/U-.6 4 rNEi LPL - s7 /A)/1- 7'ro,o S 7 7t6 907 - 406 -3090 p.l Dec 15 09 09:14a Saunders ) .'4K •- Y 1 i b ,� C... 0 >')�1 '11 !] w i 't `� Oe (✓ KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak. Alaska 99615 Public Hearing Item VI -E PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, December 16, 2009. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road,- Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: 10 -008 APPLICANT: Lester Leroy Russell REQUEST: An investigation, according to KIBC 17205, of a rezone fipn. RB- RetaiI Business IQ R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. LOCATION: 2522 & 2620 Selief Lane ZONING: RB- Retail Business This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below or in a letter to the Community Development Department prior to the meeting. if you would like to fax your comments to us, our fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, December 9, 2009, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak .Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. , Your Name: 1 , e /' Mailing Address: 4 314 1.44 /1 1 . Your property description: 6/'t!`'' cZA Comments: / .' .-. .e..../ .0 / /I. // / / L -or! / � 1 / . � i #' i/ / /''/ i // J_ / /!_ / /!.r" � .�/ //G / / l/ /L1/ //' /./ .-i/ . i.� _ /_1 '/ ..., 7 i ../ ' • . . . I / r ... /,' ., / I i / . / / / . . / / .e ' / . ' _ //s /i /.0 !% /�/ .. .44 ,/ /_. // .e. / �/ ".•••• .d 11/ / / /' __ �' -/ ,. < �/ /n• / - ' 'lI Al e # a_.A ele . /" 1/f / j '',.ytI ©/.41 411,.,6') ,d ,g.. ._ /. , / // // / . i// - /,,A /- ,_' /. - 49 /i/ / .:.' '�. .i �./ .//.' _el / std'' aa' / // ter .' 1 wa.. ____ L . r 1 6 2009 I KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI -E PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, December 16, 2009. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: 10 -008 Lester Leroy Russell An investigation, according to KIBC 17.205, of a rezone from RB- Retail Business to. R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. LOCATION: 2522 & 2620 Selief Lane ZONING: RB- Retail Business CASE: APPLICANT: REQUEST: COMMUNITY DEVELOPMENT DEPARTMLN This notice is being sent to you because our records indicate you are a property owner /interested party in (he area of the request. If you do not wish to testify verbally. you may provide your comments in the space below or in a letter to the Community Development Department prior to the meeting. If you would like to fax your continents to us. our fax number is: (907) 436 -9396. if you would like to testify via telephone, please cull In your comments during the appropriate public hearing section of the meeting, The local call -in telephone number is 486 -3231. The toll free telephone number is I- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, December 9, 2009, a work session will be held at 7:30 pan. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights. please feel free to call us ::: / ''''' la I/L . 41-6 / /i ll r Malang Address. Your property description: 2/ q S 4Se /1 . kodia.< / Comments: _.--- - 'fU ec /t/e e e' ?c° 7? Dlit t)-t 4 .' 3 Dec 16 09 03:24p — yr " o ;N) rvl l' A , t r `.{ Vt? J � KODIAK ISLAND BOROUGH COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road. Kodiak. Alaska 99615 Public Hearing Item VI -E PUBLIC HEARING NOTICE A public bearing will be held on Wednesday, December 16, 2009. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak. Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: APPLICANT: REQUEST: LOCATION: ZONING: VI B p. 1 10 -008 Lester Leroy Russell An investigation, according to KIBC 17.205, of a rezone from RB- Retail Business R3 -Multi Family Residential. for Lot 7 and Tract A, Industrial Park Subdivision. 2522 2620 Selief Lane RB- Retail Business December 15, 2009 Case: 10 -008 Chairman and Board Members, As a property owner in the affected area of this rezone request, our concerns are as follows. The property is currently zoned R -B Retail Business, which is consistent with the adjacent and surrounding properties, i.e., Safeway, WalMart, Petro Express, Mill Bay Storage, Threshold Recycling, Impound Lot and private storage lots. Rezoning should take into account near term and long term future effects when deciding how our community utilizes its' resources to make for an efficient, functional and aesthetically pleasing municipality. Rezoning this particular property to multi - family residential would NOT be consistent with neighboring land zoning. We think my multi - family housing within the middle of a commercially zoned business park area is poor planning. This immediate area has been and continues to be a growing Business District. Multi- Family housing in this area would not serve the future housing residents and community at large advantageously. The views of the back side of business establishments are not aesthetically pleasing. This is where companies collect garbage, store cardboard, discarded store fixtures, electrical appliances, etc. This would create an unpleasant and possibly a dangerous environment for any future Multi - Family residents. Since this area is continuing to develop in to a growing business district and is still formulating, we feel that it is in the best interest of the borough and the surrounding land owners for this property to remain as RB Retail business. Respectfully, d Maryjane rs 445 Shahafka Cr ( i E.: 7: ', b 009 Kodiak, AK 99615 n!,1 }iU+VITY DEVELOPMENT DEPA�tTa LOT 4A -1, 4A -2, and 4A -3 Shahafka Subdivision ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY OLD BUSINESS A) Case 10 -008. Adopt findings of fact in support of the commission's denial of a rezone from RB- Retail Business to R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. The applicant is Lester Leroy Russell. The location is 2522 & 2620 Selief Lane and the zoning is RB- Retail Business. Cassidy stated at the last meeting you denied the rezone request and delayed adopting Findings of Fact until the January meeting. COMMISSIONER JANZ MOVED to adopt the findings contained in the memorandum dated January 8, 2010 as "Findings" in support of the decision to deny a rezone from RB- Retail Business to R3- Multifamily Residential for Lot 7 and Tract A, Industrial Park Subdivision. During discussion COMMISSIONER TORRES suggested deleting #2 because he feels it is too subjective. It was the consensus to keep it in the findings because it shows the neighborhood sentiment. FINDINGS OF FACT 1 Spot zoning: A residential lot (R1, R2 or R3) should not be placed in the middle of a business /industrial zoned area. 2 Public Comment: With the number of comments against the rezone it is clear the local residents of this area don't support the rezone. 3 The 2008 Kodiak Island Borough Comprehensive Plan Update recommends this area for Commercial development. As indicated in Table 4.1 in the KIB Comprehensive Plan currently there are 128 acres designated as Multi- Family Residential (R3) and 8 acres designated as Retail Business (RB) in the Borough. Based on this information if this is rezoned to R3 were approved the amount of RB zoned land would be reduced to approximately 5 acres. This would substantially reduce the availability of RB property. 4 The proximity of this property fits the character of other businesses in the area. By putting a multi - family residential land use in the middle of a business district that has Retail Business and Industrial zoned Lots nearby appears to look unorganized with poor planning and creates a piece meal and hodge -podge of buildings and equipment. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY B) Case 10 -007. Request Reconsideration of the Commission's vote to recommend denial on an investigation, according to KIBC 17.205, of a rezone from RR1 - Rural Residential One to B- Business, for Lot 4, Block 5, Miller Point Alaska Subdivision. The applicant is Dayton Wandersee. The location is 4210 Otmeloi Way and the zoning is RR1 -Rural Residential One. Cassidy said the commission voted to deny this rezone request. A formal reconsideration affidavit was submitted to the Clerk's Office and tonight you will first vote on a motion to reconsider your previous action denying the rezone request. COMMISSIONER TORRES MOVED to reconsider action taken on Case No. 10 - 007 COMMISSIONER RYSER stated she feels this property should be rezoned to Business and her voting decision was swayed by the public testimony last month. CHAIR KING stated in Pete Thompson's letter he references a conflict of interest with Lori Ryser and King proceeded to read it aloud, COMMISSIONER RYSER stated she doesn't have a conflict of interest nor a direct or indirect January 20, 2010 P &Z Minutes Page 4 of 8 MEMORANDUM DATE: January 8, 2010 TO: Planning and Zoning Commission FROM: Community Development Department SUBJECT: Information for the January 20, 2010 Regular Meeting CASE: 10 -008 APPLICANT: Lester Leroy Russell AGENT: Daniel L. Nelson, Sr. SUBJECT: Adoption of appeal findings in support of the Planning & Zoning Commission denial of a request for the rezone of Lot 7 and Tract A, Industrial Park Subdivision, from RB- Retail Business to R3- Multifamily Residential. LOCATION: 2522 & 2620 Selief Lane ZONING: RB- Retail Business Applicable Regulations: Case 10- 008 /Appeal Findings of Fact The following sections of Title 17 (Zoning) of the Borough Code and the Kodiak Island Borough Coastal Management Program are applicable: 17.205.010 AUTHORITY. Whenever the public necessity, convenience, general welfare or good zoning practice requires, the assembly may, by ordinance and after report thereon,, by the commission and public hearing as required by law, amend, supplement, modify, repeal or otherwise change these regulations and the boundaries of the districts. [Ord. 83 -58 -0 §1, 1983. Formerly §17.72.010]. 17.205.020 REPORT FROM PLANNING AND ZONING COMMISSION. The commission shall report in writing to the assembly on any proposed change or amendment regardless of the manner in which such change is initiated and such report shall find: A. Findings as to need and justification for a change or amendments; B. Findings as to the effect a change or amendment would have on the objectives of the comprehensive plan; and C. Recommendations as to the approval or disapproval of the change or amendment. 17.205.055 SUBMISSION TO ASSEMBLY. A. Within 30 days after the commission has acted favorably upon a proposed zoning change in accordance with the above provisions, a report with recommendations shall be submitted to the assembly together with the proposed ordinance. Such Page 1 of 3 P & Z: January 20, 2010 recommendations of the commission shall be advisory only and shall not be binding upon the assembly. When an ordinance has been forwarded to the assembly, the assembly shall act in accordance with this chapter, and notice shall be issued as provided in KIBC 17.205.070 by the clerk. B. If the commission recommends denial of any proposed amendment, its action shall be final unless the initiating party, within 10 days, files a written statement with the clerk requesting that the commission's action be taken up by the assembly. COMMENTS The above referenced rezone was heard and decided by the KIB Planning & Zoning Commission at its December 16, 2009 regular meeting. The Commission denied the request which had been recommended by staff and subsequently deferred the adoption of findings until the next regular meeting on January 20, 2010. As noted in the applicable codes sections above, it is necessary for the Commission to adopt findings in support of the decision to convey it's reasoning to both the petitioner and the Assembly. As indicated in KIBC 17.205.055.B, the petitioner has the option of taking the request to the Assembly without a favorable recommendation from the P &Z Commission, however the 10 -day period during which the petitioner may elevate the case to Assembly level is generally not considered to begin until the findings for the case have been adopted and made a part of the case record. Several Commissioners have provided draft findings in support of the decision to deny the requested rezone. As noted in prior zoning cases, the review and adoption of findings is not intended to be a further review of the case, but simply an opportunity to complete the decision making process by the adoption of findings in support of the Commission decision. The petitioner may then consider these findings in terms of whether to elevate the request to the Assembly level or whether to let the decision stand. It is not essential for all Commissioners to agree with the findings personally so long as the Commissioner believes they are a true reflection of the rationale relied upon and expressed by the prevailing member(s) of the Commission for this case. Without the adoption of findings the rezone decision remains incomplete and the ten (10) day elevation period does not begin. Case 10- 008 /Appeal Findings of Fact RECOMMENDATION The Commission must adopt findings that reasonably represent the rationale behind the decision to deny the rezone requested in this case. Page 2 of 3 P & Z: January 20, 2010 FINDINGS APPROPRIATE MOTION Move to adopt the findings contained in the memorandum dated January 8, 2010 as "Findings" in support of the decision to deny a rezone from RB- Retail Business to R3- Multifamily Residential for Lot 7 and Tract A, Industrial Park Subdivision. 1 Spot zoning: A residential lot (R1, R2 or R3) should not be placed in the middle of a business /industrial zoned area. 2 Public Comment: With the number of comments against the rezone it is clear the local residents of this area don't support the rezone. 3 The 2008 Kodiak Island Borough Comprehensive Plan Update recommends this area for Commercial development. As indicated in Table 4.1 in the KIB Comprehensive Plan currently there are 128 acres designated as Multi - Family Residential (R3) and 8 acres designated as Retail Business (RB) in the Borough. Based on this information if this is rezoned to R3 were approved the amount of RB zoned land would be reduced to approximately 5 acres. This would substantially reduce the availability of RB property. 4 The proximity of this property fits the character of other businesses in the area. By putting a multi - family residential land use in the middle of a business district that has Retail Business and Industrial zoned lots nearby appears to look unorganized with poor planning and creates a piece meal and hodge -podge of buildings and equipment. Case 10- 008 /Appeal Findings of Fact Page 3 of 3 P & Z: January 20, 2010 TITLE: Vacation in Accordance With KIBC 16.60 of a 10 -Foot Portion of a 20 -Foot Wide Utility Easement Located Along the Rear Lot Line of Lot 2B -1, Block 6, Miller Point Subdivision, First Addition. (Case S10 -005) SUMMARY: The petitioner is requesting the vacation of the 10 -foot portion of a utility easement found at the rear of his parcel. Public hearing notices were sent to neighbors as well as utility companies with interest in the easement. None of the utility companies have expressed interest in accessing or utilizing this easement. The services provided by these companies are already in place without the benefit of this easement. The commission at their January 20, 2010 meeting agreed with the request to vacate that portion of the easement found on the petitioner's land and is recommending the Assembly approve this request. The granting of this vacation request is not formal until approved by the Assembly according to KIBC 16.60.060(A). FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: Form Ver. 06/30/2009 KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.D.2 RECOMMENDED MOTION: Move to approve the vacation of a 10 -foot wide portion of a 20 -foot utility easement located at the rear of Lot 2B -1, Block 6, Miller Point Subdivision, First Addition. front yard setback and a variance to allow an existing nonconforming single- family residence to be expanded by two additional stories where the structure encroaches 16 feet into the required 25 foot front yard setback, located in the R2- Two - family Residential zoning district (KIBC 17.80.040.A); and, A variance to allow the garage to encroach 10 feet into the required 40 from centerline and the single - family residence to encroach 1 foot into the 30 foot additional setback required of all properties along Mission Road (KIBC 17.155). The applicant is Jay Johnston. The location is 1110 Mission Road and the zoning is R2 -Two Family. Cassidy stated staff recommends postponement due to the applicant isn't ready to move forward on the case and he requested postponement until he's able to provide the needed information. COMMISSIONER WATKINS directed staff to provide the commission with the additional information that references the new building height to the old building height. Right now there's a single story on a finished basement kind of setup. Are we shifting the height of the building overall or are we starting the first floor higher, stepping the building up. What's the benchmark of that building compared to the one that's on site now. Cassidy said the building officials do the height determination so we'll include that in the staff report. In response to COMMISSIONER TORRES' inquiry of if the motion should include a time certain because it seems like an open postponement, Cassidy said the deadline is the first day of the month for the next month's cases so we were hoping to have information from him by January 1St for the February meeting, and the next deadline is February 1st for the March meeting. Smith stated it does need a date certain. If it's postponed indefinitely then it's killed and he will have to reapply. COMMISSIONER RYSER MOVED to postpone action on Case 10 -010 until the petitioner provides new or additional information to supplement the original application after which time the case will be rescheduled on the next available Planning & Zoning Commission agenda. The public hearing was opened and closed: There was no public testimony. COMMISSIONER TORRES MOVED to make an amendment to the motion to postpone it until the March 17th meeting of 2010. COMMISSIONER WATKINS and CHAIR KING said they both occasionally gets materials from Jay Johnston but do not receive any discounts or anything. COMMISSIONER TORRES stated if he is providing the service and you aren't receiving a discount then what significant financial advantage do you have. CHAIR KING said it doesn't sound like there's a conflict. ROLL CALL VOTE ON MOTION TO AMEND CARRIED UNANIMOUSLY ROLL CALL VOTE ON MAIN MOTION AS AMENDED CARRIED UNANIMOUSLY B) Case S10 -005. Request preliminary approval, according to KIBC 16.60, for the vacation of a 10 foot portion of a 20 foot wide utility easement located along the rear lot line of Lot 2B -1, Block 6, Miller Point Alaska Subdivision, First Addition. The applicant is Robert S. Currie. The location is 562 Lilly Drive and the zoning is R2 - Two Family Residential. January 20, 2010 P &Z Guidelines Page 2 of 8 Cassidy stated you're being asked to vacate the utility easement located on the property and also approve the replat. There haven't been any objections from any of the utility companies, and staff recommends approval of both. In response to COMMISSIONER TORRES' inquiry if Cassidy got the information regarding the sewer running behind there, Cassidy said it's not on Currie's property but he doesn't have any definite description of exactly where it is. CHAIR KING suggested some corrections to the motions; the end of the motion should read "subject to 1 condition of approval and to adopt Findings of Fact" so we don't have to go back to amend. COMMISSIONER TORRES MOVED to approve the vacation of a 10 foot wide utility easement according to KIBC 16.60, as shown on a preliminary drawing dated November 18th, 2009 by Horizon Land Surveying, Inc. subject to 1 condition of approval and adopt the Findings of Fact for Case S10 -005. The public hearing was opened and closed: Public testimony was given by Danielle Curry in support of the request. During discussion COMMISSIONER WATKINS said as a note for when we rewrite the code; vacation of easements are done by chunks, lot by lot, and when there's an easement we don't need we could go in to this initial section, clear the easement and put a note into the different property files. Ss folks come in to replat all our background work is done so they can pay their fees and get their lot redrawn with that chunk taken off. CONDITIONS OF APPROVAL 1. The granting of the vacation is not effective unless reviewed and approved by the Borough Assembly. FINDINGS OF FACT 1. It has been demonstrated by the responses from utility companies that the area being considered for vacation has no value to these authorities. 2. All utilities serving this home and neighborhood are installed and are not within the area being considered for a vacation. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMISSIONER WATKINS stated he will make the same corrections to this motion as in the first motion - subject to 1 condition of approval and adopt Findings of Fact. COMMISSIONER WATKINS MOVED to grant approval of a plat vacating a 10 foot wide utility easement as shown on a preliminary plat submitted November 18th, 2009 by Horizon Land Surveying, Inc. subject to 1 condition of approval and adopt the Findings of Fact by staff for this case. CONDITION OF APPROVAL 1. Approval by the Borough Assembly to grant a vacation of the 10 foot utility easement. FINDINGS OF FACT 1. This plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat provides a subdivision of land that is consistent with adopted Borough plans for this area. January 20, 2010 P &Z Guidelines Page 3 of 8 ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY OLD BUSINESS A) Case 10 -008. Adopt findings of fact in support of the commission's denial of a rezone from RB- Retail Business to. R3 -Multi Family Residential, for Lot 7 and Tract A, Industrial Park Subdivision. The applicant is Lester Leroy Russell. The location is 2522 & 2620 Selief Lane and the zoning is RB- Retail Business. Cassidy stated at the last meeting you denied the rezone request and delayed adopting Findings of Fact until the January meeting. COMMISSIONER JANZ MOVED to adopt the findings contained in the memorandum dated January 8, 2010 as "Findings" in support of the decision to deny a rezone from RB- Retail Business to R3- Multifamily Residential for Lot 7 and Tract A, Industrial Park Subdivision. During discussion COMMISSIONER TORRES suggested deleting #2 because he feels it is too subjective. It was the consensus to keep it in the findings because it shows the neighborhood sentiment. FINDINGS OF FACT 1 Spot zoning: A residential lot (R1, R2 or R3) should not be placed in the middle of a business /industrial zoned area. 2 Public Comment: With the number of comments against the rezone it is clear the local residents of this area don't support the rezone. 3 The 2008 Kodiak Island Borough Comprehensive Plan Update recommends this area for Commercial development. As indicated in Table 4.1 in the KIB Comprehensive Plan currently there are 128 acres designated as Multi - Family Residential (R3) and 8 acres designated as Retail Business (RB) in the Borough. Based on this information if this is rezoned to R3 were approved the amount of RB zoned land would be reduced to approximately 5 acres. This would substantially reduce the availability of RB property. 4 The proximity of this property fits the character of other businesses in the area. By putting a multi - family residential land use in the middle of a business district that has Retail Business and Industrial zoned lots nearby appears to look unorganized with poor planning and creates a piece meal and hodge - podge of buildings and equipment. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY B) Case 10 -007. Request Reconsideration of the Commission's vote to recommend denial on an investigation, according to KIBC 17.205, of a rezone from RR1 -Rural Residential One to B- Business, for Lot 4, Block 5, Miller Point Alaska Subdivision. The applicant is Dayton Wandersee. The location is 4210 Otmeloi Way and the zoning is RR1 -Rural Residential One. Cassidy said the commission voted to deny this rezone request. A formal reconsideration affidavit was submitted to the Clerk's Office and tonight you will first vote on a motion to reconsider your previous action denying the rezone request. COMMISSIONER TORRES MOVED to reconsider action taken on Case No. 10 - 007 COMMISSIONER RYSER stated she feels this property should be rezoned to Business and her voting decision was swayed by the public testimony last month. CHAIR KING stated in Pete Thompson's letter he references a conflict of interest with Lori Ryser and King proceeded to read it aloud. COMMISSIONER RYSER stated she doesn't have a conflict of interest nor a direct or indirect January 20, 2010 P &Z Guidelines Page 4 of 8 �.` Public Hearing Item VI-B P &Z January 20, 2010 ; Request;. Preliminary approval, according t K IBC 6.6O or the v ca on ofa `10 foots portion o ` 26. 'foot wide uti ty easiC lent ." t along' the rear lot line of Lot 2B -1, Block '6, Miller Point Alaska Subdivison, First Additto , Feet 50 100 150 200 250 300 Business Conservation Industrial Light Industrial Natural Use Public Use Single Family Residential Legend Two Family Residenti Multi Family Resident Retail Business Rural Residential Rural Residential 1 Rural Residential 2 Split -Lot Zone S Map prepared for the purpose of showing the Zoning of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour information:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, NAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized properly records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up-to -date. Kodiak Island Borough Community Development Department. Notification Area Legend Subject Parcel Parcels w Map prepared for the purpose of showing the General location of the Kodiak Urban area. June, 2005. Alaska Highway System, GPS centerline data, National Highway System, Highways, Roads, Streets., Alaska D.O.T. Sept. 2002 Contour infonnation:USGS Digital Elevation Model Kodiak, Alaska. 50 foot intervals, Scale is 1:63,360 Created in ArcGIS 9, WAD 27, State Plane 5 Parcel information is taken from selected fields in the current computerized property records in the Assessing Dept. This data has not been reconciled with data contained in manual files which may be more up- to-date. Kodiak Island Borough Community Development Department. LOT 2A P40347 4 7■AT/71' CASENVIT KACAATD 37x5 FIAT LOT 23-1 14679 SF. at n vmnr FASEVENT 50:70. LOT 3A -2 TAX CERTIFICATE HEREBY CERFM r THAr ACCORD/NC: 1 Ir/E RECOROS OF r, /E KOO/AK /SLAMO Ob ?OUGN, ALL rAx(S ASS0 5r0 AND DUE AGAINST SAID LAND AND IN FAVOR OF D/E KODAK ISLAND BOROUGH ARE PAID /N FULL DATED AT X0O1. SX, ALASKA NOS DAY 03 20 KODIAX ISLAND BOROUGH GLERY 1 PRELIMINARY RY HORIZON LAND SURVEYING INC. P.O. BOX 1945 KODAK, ALASKA 99615 I*, /°37 ARR -5 J'N ECEIV iuL ! „ jv <00MMIMI T DEEVEID PMEIRDFPAR1307: VACATION: CP THE 10' PORTION OF THE UTILITY EASEMENT ON LOT 2B-1 BLOCK 6, MILLER POINT ALASKA. 1ST ADOOi110N PER PLAT 82 -12 IN THE KODAK RECORDPIG DISTRICT, KODAK, ALASKA tom SC071 CURRIE 562 ULLY DRIVE KODAK, ALASKA 99615 SCALD: 1 • . 30' NOVEMBER 18th 2009 F Arr 7 F 1 41 1 SC 9a 2 S * ® t 0514E i ft44 . VICINITY MAP 1,- 400' OWNERSHIP AFFIDAVIT 1 (WE) HEREBY MOM"( THAT 1 (WE AM ((ARE) THE OWNER(5) OF THE PROPERTY SHOWN AND DESC ED HEREON.I (WE) HEREBY DEDICATE TO THE PUBLIC ALL EASEMENTS FOR FIJSUC UTILITIES, STREETS. ALIENS, THOROUGHFARES, PARKS AND OTHER PUBLIC AREAS SHOWN HEREON. DA 7£ NOTARY'S ACKNOWLEDGEMENTS SUBSCRIBED A140 SWORN TO BEFORE ME THIS DAY OF 20 NOTARY FOR AIASKA ON 403WSS1(44 MARES PLAT APPROVAL K00NK ISLAND PLANNING AND ZONING COMMISSION RECEIVED APPROVED CHAR DATE THIS IS TO LLAIRY THAT THE MOWN PLAT I5 DULY APPROVE° IN ACCORDANCE WITH THE KOOIAK ISLAND BOROUGH CODE THIS DAY OF 20 MANAGER CLERK COMMUNITY DEVELOPMENT DIRECTOR DATE SURVEYORS CERTIFICATE 1 HEREBY CERTIFY THAT 1 AM PROPERLY REGISTERED AND LICENSED TO PRACTICE LAND SURVEYING IN THE STATE OF MASRA, ANO THAT THIS PLAT REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECT SUPERVISOR AND THAT THE MONUMENTS MD 41PR)VEMENTS SHOWN HEREON ACTUALLY EXIST AS DESCRIBED ANO THAT ALL DIMENSIONS AND OTHER DETAILS ARE CORRECT. DATE: REGISTRATION NO. 5777 I0. BERGEE REGISTERED LAND SURVEYOR DATE DATE ‘ 1 1 1 i ? 9 1 requires that the building official obtain a search warrant before making an inspection, he shall not make the inspection until authorized to do so by a search warrant issued by a court of competent jurisdiction. 17.75.030 penalties and Remedies A. A person who violates any provision of this title, any order issued under Section 17.75.010A, or any term or condition of a conditional use, variance or other entitlement issued under this title is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than five hundred dollars ($500.00). B. The Borough or any aggrieved person may bring a civil action to enjoin any violation of this title, any order issued under Section 17.75.O10A, or any term or condition of a conditional use, variance or other entitlement issued under this title; and to obtain damages for any injury the plaintiff suffered as a result of the violation. An action for injunction under this section may be brought notwithstanding the availability of any other remedy. Upon application for injunctive relief and the finding of an existing or threatened violation, the Superior Court shall enjoin the violation. C. Each act or condition violating thia.title, any order issued under Section 17.75.C10A, or any term or condition of a conditional use, variance or other entitlement issued under this title, and every day during which the act or condition occurs, constitutes a separate violation under this section. Section 4. That the date of passage of this ordinance creates a new grandfather or non - conforming use date, June 5, 198d. Any zoning or building violations except matters presently under litigation, become legal as of this date, June 5, 1980, and shall be termed a non- conforming use. Section 3,, This ordinance is effective upon passage and approval. (907) 4864700 Box 787 KODIAK, ALASKA 99615 -0787 December 17, 2009 Sheila Smith, Secretary Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Ms. Smith: Following are comments on the plat sent to us for review under your cover letter dated December 14, 2009: Case S10 -005. Request for preliminary approval for the vacation of a 10 foot portion of a 20 foot wide utility easement located along the rear lot line of Lot 2B -1, Block 5, Miller Point Alaska Subdivision, First Addition. Kodiak Electric has no objection to the vacation. Thanks for the opportunity to comment. Sincerely, Jim Devlin Engineering Manager Kib 121709.wpd D El, 2 2 2009 I COMMUNITY DEVELOPMENT DEPARTMENT 12- 16- 09;03:34AM; Date: December 15, 2009 To: From: Mark Kozak, Public Works Director Sheila Smith, Community Development Department ;907- 486 -8066 # 2/ 2 CITY OF KODIAK 2410 Mill Bay Road, KODIAK, ALASKA 99615 Public Works Department 907- 486 -8060 Voice 907486 -8066 Fax Subject Case S10-005, Request to Vacate a 10 ft Portion of Utility Easement along back property line of Lot 2B -1, Blk 6, Miller Point Alaska Subd. First Addition The Public Works Department has no objection to this vacation request. Asbuilts show the existing sewer main is not affected by this request. To: PRELIMINARY PLAT REVIEW AGENCIES Alaska Communications Systems- Engineering Department -Kenai City of Kodiak- Building Officials City of Kodiak- Public Works Department Bayside Fire Station GCI Cable, Inc. Kodiak Island Borough - Engineering and Facilities Department Kodiak Electric Association- Engineering Department FROM: Sheila Smith, Secretary DATE: December 14, 2009 Kodiak Island Borough Community Development Department 710 Mill Bay Road Room 205 Kodiak, Alaska 99615 Phone (907) 486 -9363 Fax (907) 486 -9396 RE: Case S10 -005. Request for preliminary approval, in accordance with KIBC 16.60, for the vacation of a 10 foot portion of a 20 foot wide utility easement located along the rear lot line of Lot 2B -1, Block 6, Miller Point Alaska Subdivision, First Addition. The Kodiak Island Borough Community Development Department received the enclosed plat for review and action by the Kodiak Island Borough Planning and Zoning Commission at their January 20, 2010 regular meeting. This meeting will begin at 7:30 p.m. in the Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. We would appreciate your review and comment regarding this proposed plat. The week prior to the regular meeting on Wednesday, January 9, 2010 at 7 :30 p.m. in the Kodiak Island Borough Conference Room, the Commission will hold a worksession to review the packet material for the regular meeting. Therefore, we will need to receive your comments no later than 5:00 p.m. on January 8, 2006 in order for your comments, suggestions, or requests to be considered by staff and discussed at the packet review worksession. If we do not receive a written response from you by January 8th, we will conclude that you have no requests or suggestions. Our FAX number, should you wish to use it, is 486 -9396. If you have any questions, please call the Community Development Department at 486 -9363. t4 -01 DATE: January 3, 2010 TO: Planning and Zoning Commission FROM: Bud Cassidy, Community Development Department SUBJ: Information for the January 20, 2010 Regular Meeting CASE: S10 -005 APPLICANT: Robert S. Currie AGENT: Horizon Surveying REQUEST: Preliminary approval, according to KIBC 16.60, for the vacation of a 10 foot portion of a 20 foot wide utility easement located along the rear lot line of Lot 2B -1, Block 6, Miller Point Alaska Subdivision, First Addition LOCATION: 562 Lilly Drive ZONING: R2 — Two Family Residential Fifty -eight (58) public hearing notices were mailed on December 9, 2009. Date of site visit: Various 1. Minimum lot size: 7200 Square Feet Compliance: Yes 2. Minimum lot width: R2 -60 feet Compliance: Yes 3. Existing land uses: Residential Compliance: Yes 4. Existing structure(s) on the property: Yes Compliance with setbacks: Grandfathered (see discussion in the comment section) Case S10-005 Currie Vacation MEMORANDUM Public Hearing Item VI -B Page 1 of 6 P & Z: January 20 2010 Compliance with other zoning regulations: Yes Encroachments: Yes 5. Topography: Provides good building sites: Yes Provides good parking areas: Yes Allows driveway construction to meet maximum slope requirement: Yes 6, Physical Features: Wetlands, streams, drainage courses: No Need for driveway /access restrictions: No Adequate line of sight: Yes Adequate access for additional traffic volume: Yes Adequate access from a safety standpoint: Yes Neighborhood character: Residential /Open Space /Next to public trail system Double frontage Tots: No Flag lots: No Adequate access for fire apparatus: Yes Utility installation meets Title 13: Yes Common wall or zero -lot line: No Frontage on dedicated public right -of -way: Yes Other road and utility improvements required before final approval: No 7. Existing Plat Restrictions: No Compliance: Not Applicable Case S10 -005 Currie Vacation Public Hearing Item VI -B Page 2 of 6 P & Z: January 20 2010 APPLICABLE CODE PROVISIONS The following code sections apply in this case: 1. KIBC16.20.100 Easement. An interest in land owned by another that entitles the easement holder to a specified limited use or enjoyment. 2. KIBC 16.20.260 — Vacation. The act of making legally void any right -of -way, easement, public area, or other public interest. 3. KIB 16.60 .010 Generally a. ... in all cases the commission shall deem the area being vacated to be of value to the borough or a city unless proven otherwise. The burden of proof shall lie entirely with the petitioner. 4. KIB 16.60.030 Required application a. A written statement containing reasons in support of the vacation b. A map illustrating the area to be vacated. 5. KIB 16.60.060 — Additional approval required a. A decision to grant a vacation is not effective unless approved by the city council if the vacated area is within a city or by the assembly if the vacated area is within the borough outside a city. COASTAL MANAGEMENT APPLICABLE POLICIES The Coastal Management Plan does not apply to the vacation of utility and access easements. Kodiak Electric Association: No Objection ACS Inc.: No Response Case S10-005 Currie Vacation REVIEW AGENCY COMMENTS Public Hearing Item VI -B Page 3 of 6 P & Z: January 20 2010 State of Alaska Department of Transportation: No Response KIB Department of Facilities and Engineering: No Objection City of Kodiak Public Works: No Objection GRANDFATHERED STRUCTURE COMMENTS Public Hearing Item VI -B INTRODUCTION The petitioner purchased an existing home that is located partially within an existing utility easement (see preliminary plat). This easement area, by law, can be used and only used by any of the utility authorities (power, cable T.V., telephone, water and sewer, etc.) without formal permission of the property owner. This case provides a mechanism for the homeowner to ask utility companies, in a coordinated manner, to respond to whether they have a need for this easement. Because what is at issue here is the vacation or elimination of an easement, should the commission approve the request, it is actually a favorable recommendation to the Assembly under KIBC 16.60.060. Also, should this request be acted on favorably, the result will be the approval of a plat that eliminates the utility easement on the plat. As a side note, the structure also encroaches into what would normally be the rear yard setback (10 feet in the R2- Two family residential zone), but because staff has determined, with the use of Assessing Department records (attached), that the existing structure as sited is a "grandfathered" or "nonconforming" structure, the encroachment into the setback is not an issue. The Borough's "grandfather" clause as stated in Borough Ordinance 80 -24 -R (portion attached) states: ... that as of June 5, 1980 any zoning or building violation: except matters presently under litigation, become legal as of this date. The term "grandfathered" and "non- conforming" can be used interchangeably. The thinking behind establishing a grandfather clause is that it allows structures built before the grandfathered date to continue to exist even though they may not meet all Case S10-005 Currie Vacation Page 4 of 6 P & Z: January 20 2010 Public Hearing Item VI -B building and zoning requirements. But from the grandfathered date forward, all new structures must meet any and all codes. Another reason behind establishing a grandfather clause is recognition of the tenor of the times where building inspection was hit and miss, building materials were hard to come by, and folks were living and working hard and living in all kinds of structures. A grandfather clause also gave a party the ability to amortize their investment in their home over a long period of time. But it also set limits. Those limits state that should these existing buildings be demolished, destroyed by a fire, or cease to be occupied for a period of a year, they lose their nonconforming /grandfathered status and now have to be built to the standards of the existing code. Other aspects of non - conforming structures can be found in chapter 17.140 Existing Nonconforming Uses and Structures. Lastly, the overall community goal with these kinds of structures is that they should eventually be replaced with new structures that meet the new building, fire, electrical, mechanical, plumbing codes. ANAYLSIS A. VACATION The request for vacation of an easement, especially in the case where there is no objection from utility authorities, is common. One of the things in favor of granting this request is that the utility easement that exists is actually 20 feet wide. Reducing the overall easement to ten feet, based on comments by utility authorities, does not appear to be a problem. Also, all of the existing utility services to this home and to this neighborhood are already installed and they are not within the area being considered for vacation. As required in KIBC 16.60.060, this request for a vacation must be sent to the borough Assembly for a final review before the plat goes through the abbreviated plat process. B. SUBDIVISION Also requested by the petitioner, is approval of a plat that eliminates the easement. The applicant has provided a drawing for the easement that also satisfies the platting requirements of Chapter 16 Subdivisions. Generally we would discourage a party from paying for a survey until their request for vacation is approved. That way should it be denied, there has not been an unnecessary expenditure by the applicant. But this is a fairly straight - forward case and the applicant has simultaneously submitted a plat. Again, staff feels that the submittal meets code requirements. Staff recommends approval of two actions in this case: 1) Vacation of a 10' utility easement; and 2) approval of a preliminary plat. Case S10-005 Currie Vacation RECOMMENDATION Page 5 of 6 P & Z: January 20 2010 Motion #1 — Vacation Request CONDITIONS OF APPROVAL FINDINGS OF FACT APPROPRIATE MOTIONS Public Hearing Item VI -B Move to approve the vacation of a 10 foot wide utility easement according to KIBC 16.60, as shown on a preliminary drawing dated November 18 2009 by Horizon Land Surveying, Inc. subject to the following condition of approval. 1. The granting of the vacation is not effective unless reviewed and approved by the Borough Assembly.. 1. It has been demonstrated by the responses from utility companies that the area being considered for vacation has no value to these authorities. 2. All utilities serving this home and neighborhood are installed and are not within the area being considered for a vacation. Motion #2 — Approval of a Preliminary Plat Move to grant approval of a plat vacatinn a 10 foot wide utility easement as shown on a preliminary plat submitted November 18 , 2009 by Horizon Land Surveying, Inc. subject to the following condition of approval 1. Approval by the Borough Assembly to grant a vacation of the 10 foot utility easement. FINDINGS OF FACT 1. This plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat provides a subdivision of and that is consistent with adopted Borough plans for this area Case S10 -005 Currie Vacation Page 6 of 6 P & Z: January 20 2010 2.3.42 00 D RIVE LOT JA -2 BY: RELIM N ' RV O JECTIONS ACAS NICATIONS SYST MS ATE:iLVA COMMUNITY DEVELOPMENT DEPARTMENT 1 NOV 2 0 200 COMMUNITY DEVELOPMENT D r HORIZON LAND SUR' P.O. SOX 19 KODIAK, ALASKA (907) 486 -E TITLE: Appointments to the Providence Kodiak Island Service Area Board. SUMMARY: Providence Kodiak Island Medical Center has appointed Mr. Alvin Arboleda to fill the vacant seat on the Providence Kodiak Island Service Area Board. The board has also reappointed Gretchan Saupe and Cecil Ranney. Attached is the letter from Providence dated January 14, 2010. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: RECOMMENDED MOTION: Move to voice non - objection to the appointments of Alvin Arboleda, Gretchan Saupe, and Cecil Ranney to the Providence Kodiak Island Service Area Board. Form Ver. 06/30/2009 KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.D.3 Providence Kodiak Island Medical Center Hospital Administration 1915 East Rezanof Drive Kodiak, AK 99615 t: 907.486.9595 f: 907.486.2336 www.providence.org January 14, 2010 Jerome Selby, Mayor Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Selby and Assembly Members: Sincerely, Donald J. Rush, CEO PROVIDENCE Kodiak Island Medical Center I am pleased to announce that the Providence Kodiak Island Service Area Board has appointed Alvin Arboleda to fill a vacancy. Mr. Arboleda is currently employed at the KIBSD and serves as a member of the School Nutrition Association and a council member for the USDA. We believe he will be a valuable addition to our board and provide helpful insight into the school district's perspective. The board has also reappointed long- standing members Gretchen Saupe and Cecil Ranney. Both have contributed greatly to the board throughout the years, and we are grateful they are willing to renew their terms. TITLE: Confirmation of the Assembly Appointment to the Service Area No. 1 Board. SUMMARY: The Service Area No. 1 Board met on January 26, 2010, to review applications received for the vacant seat term to expire 2011. There were three applications that were submitted to the Service Area No. 1 Board: 1. Tuck Bonney — October 27, 2009 2. Greg Spalinger — November 19, 2009 3. Gary Turk Martin — December 10, 2009 The Board recommended the appointment of Tuck Bonney to the vacant seat for a term to expire October 2011. 4.15.040 Vacancies. E. The service area board may submit its nomination of a person from the submitted applications to fill the vacancy to the assembly. The assembly shall appoint a new member selected from the submitted applications for the remaining unexpired term. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.B.4 RECOMMENDED MOTION: Move to confirm the Assembly appointment of Turk Martin to the Service Area No. 1 Board for a term to expire October 2011. Form Ver. 06/30/2009 February 9, 2010 Kodiak Island Borough Assembly 710 Mill Bay Road Kodiak, AK 99615 RE: Recommendation to Service Area No. 1 Board The Service Area No. 1 Board met on Monday, February 8, 2010 at KFRC to review applications for the vacant seat for a term to expire October 2011. There were three applications received, which were Tuck Bonney, Greg Spalinger and Turk Martin. The Board recommends appointing Turk Martin to the two -year seat on the Service Area No. 1 Board with the term to expire October 2011. S harlie Lorenson Service Area No. 1 Chair cc: Rick Gifford, KIB Manager Mayor Selby Service Area No. 1 Board 710 Mill Bay Rd Kodiak, AK 99615 Phone: (907) 486 -9343 Fax: (907) 486 -9394 1.1 t FEB - 9 2010 BCr;,0 f H C I_.[P.. � > � IC ; E NAME: 77 k HOME PHONE: !o ` 3 32.. STREET ADDRESS: 3 h h. c - (-z MAILING ADDRESS: i? ' E, 0 x 2 2-6 r LENGTH OF RESIDENCE IN KODIAK: c 6 s ARE YOU A REGISTERED VOTER IN KODIAK? ARE YOU A PROPERTY OWNER IN KODIAK? COMMUNITY ACTIVITIES: L A vi pp, 01 Co PROFESSIONAL ACTIVITIES: AREA OF EXPERTISE AND /OR EDUCATION: 1. �P cr_ /J S�✓ c4 3. Signature Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) 486 -9391 EMAIL: njavier @kodiakak.us BOARD APPLICATION WORK : 6-32-3 c( E- MAIL: '?`A.,,.. 4i1 S kw /-17- ;...< �. 2. 4. IN ALASKA: � Y y --� /M NO ( ) NO ( ) OCT 2 7 2009 I AM INTERESTED IN SERVING ON THE FOLLOWING BOARD(S) (List in order of preference) . _2r) - O01 Date A resume or letter of interest may be attached, but is not required. This application will be kept on file for one year. Please retum the application by the advertised deadline. • STAFF USE oNLY Voter ID No Verified B Documentation: Appointment Letter: Applicant's Residence, : gh City ( ) Roster: Date Appointed: Oath of Office: Term Expires on: Financial Disdosure: Comments: BOARD APPLICATION NOV i C 2:;,',3 NAME: Ge speat HOME PHONE: e - CY3 WORK : q6- 3 JOSE -MAIL: 4 C5 442V45.fri. n oL STREET ADDRESS: 2I/ c C Ccth i)e MAILING ADDRESS: BP m(4 3 c LENGTH OF RESIDENCE IN KODIAK: 3 (...1.414 IN ALASKA: 3 0 pi--,e s ARE YOU A REGISTERED VOTER IN KODIAK? YES - NO ( ) ARE YOU A PROPERTY OWNER IN KODIAK? YES NO ( ) COMMUNITY ACTIVITIES: 1 me,-46 vr zpi g0roA k C s eht-�/ Flat. Teof ec -F-0?), Aeat I , Se419i e Di 5(e/d / PROFESSIONAL ACTIVITIES: c J L.- p air\ C 0,k) f,, e, 4 fen(,( C 0 trAA.1e!? p B hcyri P AREA OF EXPERTISE AND /OR EDUCATION: I AM INTERESTED IN SERVING ON THE FOLLOWING BOARD(S) (List in order of preference) Z 441 Sign Voter ID No Verified By: Applicant's Residence: B Date Appointed: Term Expires on: Comments: City ( ) diak Island Borough ffice of the Borough Clerk 710 Mill Bay Road Kodiak, Alaska 99615 907) 486 -9310 Fax (907).486-9391 EMAIL: njavier @kodiakak.us 4. / /- /Z- . Date A resume or letter of interest may be attached, but is not required. This application will be kept on file for one year. Please return the a••ilcation by the advertised deadline. • StAFF USE ONLY • Doeumentetion: Appointment Letter: Roster: Oath of Office: Financial Disclosure: BOARD APPLICATION L NAME: L.9 ray ; .k.2 y > / 7 7/----4/, I ti BOROUGH CLERK'S OFFICE HOME PHONE: 4/ (-- )6-,;z.ej WORK : ` /..5 E -MAIL: l 7 `7—urf (7' STREET ADDRESS: 3c), 5 / -/A / e:-, /9 ( ?ge, MAILING ADDRESS: TSc° )C , C ql r -; /r -- / J i' 4 7 I I /5 LENGTH OF RESIDENCE IN KODIAK: " IN ALA '7" ?Z ARE YOU A REGISTERED VOTER IN KODIAK? YESA(') NO ( ) ARE YOU A PROPERTY OWNER IN KODIAK? YES NO ( ) COMMUNITY ACTIVITIES: ti a r' . '� e 4.L; I -t: % 1 PROFESSIONAL ACTIVITIES: Kodiak Island Borough Office of the Borough Clerk 710 Mill Bay Road Kodiak Alaska , Phone (907) 486 -9310 Fax (I' I A EMAIL: njavier @kc . ak.us DEC 1 0 2009 AREA OF EXPERTISE AND /OR EDUCATION: 1 AM INTERESTED IN SERVING ON THE FOLLOWING BOARD(S) (List in order of preference) Signature Date / / A resume or letter of interest may be attached, but Is not required. This application will be kept on file for one year. Please return the . • •lication by the advertised deadline. • EtAFF USE ONLY - Voter ID No Verified By O0CVmanlatl0n: Appointment Letter: Applicants Residence; or City ( ) Roster: Date Appointed: / Oath of Office: Term Expires on: V Financial Disdosure: Comments: TITLE: Declaring a Seat on the Service Area No. 1 Board Vacant. SUMMARY: Mr. Rick Ryser submitted the attached notice of resignation from the Service Area No. 1 Board on January 21, 2010, for a term to expire October 2010. 4.15.040 Vacancies. A. Vacancies on service area boards, other than by expiration of the member's term, are created when a member: 3. Resigns and the resignation is accepted; C. The service area board shall notify the clerk of a vacancy on the board. The clerk shall cause notice thereof to be published at least twice in a newspaper of general circulation within the borough. The notice shall set forth the vacancies and any qualifications of members. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: Form Ver. 06/30/2009 KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.D.5 RECOMMENDED MOTION: Move to accept, with regret, the resignation of Mr. Rick Ryser from the Service Area No. 1 Board for a term to expire October 2010 and direct the Borough Clerk to advertise the vacancy per Borough Code. Mary Barber From: Rick Ryser [goldenalaska @gmail.comj Sent: Wednesday, January 20, 2010 10:38 PM To: Mary Barber Subject: Service District 1 Seat Hello Mary, This is to inform the Kodiak Island Borough that I must resign my seat on the Service District 1 board as I have moved outside the boundries of the district. Thank you for the opportunity to service on the board for the time that I did. Sincerely, Rick Ryser 1 I JAN 2 1 2010 BOROUGH CLERK'S OFFICE TITLE: Confirmation of the Assembly Appointment to the Mission Lake "Tidegate" Service Area Board. SUMMARY: On January 28, 2010, Mr. Al Burch indicated his desire to be reappointed to the Mission Lake "Tidegate" Service Area Board for a term expire December 2012. 4.130.020 Board. The Mission Lake tidegate service area board shall consist of three members appointed by the assembly. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.D.5 RECOMMENDED MOTION: Move to confirm the Assembly appointment of Mr. Al Burch to the Mission Lake "Tidegate" Service Area Board for a term to expire December 2012. Form Ver. 06/30/2009 NAME: 8L ZWCH HOME PHONE: 4 - (5•-1 1, 94 7 WORK: 4' ''9 /O E- MAIL: d. ark-Ga*. G p/ialQska .fief - STREET ADDRESS: Old Arlde,166 K Way MAILING ADDRESS: Pa £ ©,V cst LENGTH OF RESIDENCE IN KODIAK: IN ALASKA: ARE YOU A REGISTERED VOTER IN KODIAK? YES (vr NO ( ARE YOU A PROPERTY OWNER IN KODIAK? YES V NO ( ) COMMUNITY ACTIVITIES: PROFESSIONAL ACTIVITIES: A AREA OF EXPERTISE AND /OR EDUCATION: Kodiak Island Borough Office of the Borough CI 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9310 Fax (907) EMAIL: n'avier • kodiak BOARD APPLICATION CELL NO: I AM INTERESTED IN SERVING ON THE FOLLOWING BOARD(S) (List in order of preference) 1. mi i 011 Lake- ! / del 2/e. 2. C rv' GG ifre-4L 4. egelpy a ure i' te esume or letter of interest may be attached, but Is not required. This application will be kept on file for one year. Please retum the application by the advertised deadline. Mt, Voter 10 No Vedette By `', , Documentation: Appointment Liner Appicenrs Residence:: • 7. ( City ( ) Roster Date Appointed: Oath of OM*: Term Expires on: financial Disclosure Comments: Vacant NAME Al Burch PO Box 884 Kodiak, AK 99615 Marian Johnson PO Box 945 Kodiak, AK 99615 KODIAK ISLAND BOROUGH TERM 486 -5238 486 -3910 2010 486 -5171 2011 This board is governed by the Kodiak Island Borough Code 4.130 1';MENT GATE" SERVICE AREA BOARD HOME WORK CELL PHONE PHONE PHONE 486 -9343 wkoninq @kodiakak.us EMAIL alaska a(�ptialaska.net kearn(qci.net Revision Date: 4/16/2009 Revised by: JK TITLE: Declaring a Seat on the Bay View Road Service Area Board Vacant. SUMMARY: Ms. Dawn Lea Black submitted the attached letter of resignation from the Bay View Road Service Area Board on February 4, 2010, for a term to expire October 2010. 4.15.040 Vacancies. A. Vacancies on service area boards, other than by expiration of the member's term, are created when a member: 3. Resigns and the resignation is accepted; C. The service area board shall notify the clerk of a vacancy on the board. The clerk shall cause notice thereof to be published at least twice in a newspaper of general circulation within the borough. The notice shall set forth the vacancies and any qualifications of members. FISCAL NOTES: N/A Account No.: Amount Budgeted: Expenditure Required: APPROVAL FOR AGENDA: RECOMMENDED MOTION: Move to accept, with regret, the resignation of Ms. Dawn Lea Black from the Bay View Road Service Area Board for a term to expire October 2010 and direct the Borough Clerk to advertise the vacancy per Borough Code. Form Ver. 06/30/2009 KODIAK ISLAND BOROUGH AGENDA STATEMENT FEBRUARY 18, 2010 REGULAR MEETING ITEM NO: 13.D.7 P. 0. Box 1912 Kodiak, Ak. 99615 1/30/2010 Kodiak Island Borough Clerk Kodiak, Ak. Dear Borough Clerk: I am resigning from my position on Bayview Drive Service District Board because our board no longer has sufficient membership present in Kodiak for enough of the year to hold the required meetings. For at least two years we have tried to find additional people to serve on our board, but we have been unsuccessful. Best regards, Dawn Lea Black eLc,i6P_614L p E C E _ FEB - 4 � 2010 L BOROUGH CLERK'S OFFICE ACTION ITEMS: KODIAK ISLAND BOROUGH SCHOOL DISTRICT Board of Education Special Meeting — January 11, 2010 APPROVED: Motion to adjourn. SUMMARY APPROVED: Motion to approve Memorandum of Agreement Number 090 -039 to Emerald Isle Therapy in the amount not to exceed $13,300 for occupational therapy services for the period of January 4, 2010 to May 21, 2010. APPROVED: Motion to approve a Request to Bid Internet and Telecommunications Services including: phone service; internet access; distance learning services; and internal connections equipment, supplies and materials. ACTION ITEMS: KODIAK ISLAND BOROUGH SCHOOL DISTRICT Board of Education Special Meeting — January 16, 2010 SUMMARY APPROVED: Motion to approve Memorandum of Agreement Number 090 -045 to DeJong- Richter to develop and refine the Kodiak High School Educational Specifications as presented in the amount of $48,500 plus travel expenses for the period of January 13, 2010 to April 1, 2010. APPROVED: Motion to adjourn. ACTION ITEMS: APPROVED: PRESENTED: PRESENTED: PRESENTED: APPROVED: APPROVED: KODIAK ISLAND BOROUGH SCHOOL DISTRICT Board of Education Regular Meeting — January 25, 2010 SUMMARY Motion to approve the agenda and consent agenda to include: *Approval of Minutes Regular Meeting Minutes of December 14, 2009 and Special Meeting Minutes of January 6, 2010, January 11, 2010, and January 16, 2010 *FY1 O Winter Budget Revisions Approved as presented. *FY1 O Carl Perkins Vocational Education Secondary Grant Award Amendment Accepted in the amount of $13,188 for a total grant award of $56,718. *Kodiak Island Borough School District Record Retention Schedule Adopted as presented. *Purchase Requisition Number 49200086, Pennsylvania State University Approved in the amount of $23,928. Acting School Board President Peggy Rauwolf presented a retirement gold pan to Maintenance Mechanic John Rice. Acting School Board President Peggy Rauwolf presented certificates of appreciation to East Elementary School Volunteer of the Month Candice Griswold and to Karluk School Volunteer of the Month Justin Hochmuth. Principal of K -12 Small Schools Phillip Johnson accepted the certificate of appreciation on behalf of Justin Hochmuth. Acting School Board President Peggy Rauwolf presented certificates of appreciation to School Board Pages Nia Pristas, an East Elementary School third grade student, and Garett Wise, a Peterson Elementary fourth grade student. Motion to acknowledge receipt of the November 2009 Report of Revenues and Expenditures, year -to -date general fund revenues in the amount of $13,959,030 and year -to -date general fund expenditures in the amount of $10,871,098. Motion to approve a 2009/2010 certificated contract to Joanne Langevin — MA+0/5 in the amount of $29,267 plus $616 special education stipend for a temporary, remainder of the 2009/2010 school year, 1.0 FTE Special Education Teacher at Kodiak Middle School for 94 days. Kodiak Island Borough School District Board of Education Regular Meeting — January 25, 2010 SUMMARY Page 2 APPROVED: Motion to approve 2010/2011 tenured certificated contracts as presented by Director of Finance Luke Fulp in the amount of $11,211,578 for a total of 157.6 FTEs (full -time equivalents). APPROVED: Motion to approve purchase requisition number 00022289 to School Access in the amount of $30,700 for video teleconferencing equipment. APPROVED: Motion to adopt the new Kodiak Island Borough School District School Board Policy Manual as presented in the first reading and to forward it to the February 22, 2010 Regular Meeting for a second reading and public hearing. PUBLIC HEARING: Motion to close the Regular Meeting and open a Public Hearing to allow for comments from members of the community regarding the FYI 1 Budget. No comments were given. APPROVED: Motion to approve the 2009/2010 School Board Meeting Calendar revision as presented. APPROVED: Motion to approve the revision to the 2009/2010 School Board Committee Appointments as presented. APPROVED: Motion to adjourn. Subsequent to approval, Board of Education meeting minutes are posted on the District's website at www.kodiakschools.org. Kodiak Island Borough Assembly Regular Meeting Guidelines February 18, 2010, 7:30 p.m., Borough Assembly Chambers 1. INVOCATION Captain John Quinn of the Salvation Army. 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 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. Recommended motion: Move to specifically excuse any Assembly members that are absent. VOICE VOTE ON MOTION. 4. APPROVAL OF AGENDA AND CONSENT AGENDA All items listed with an asterisk ( *) are considered to be routine and non - controversial by the Assembly and will be approved by one motion. There will be no separate discussion of these items unless an Assembly member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda. All items in yellow are consent agenda items. Summary of Consent Agenda Items: * Special Meeting Minutes of December 29, 2009 and Regular Meeting Minutes of January 7 and 21, 2010. *Contract No. FY2010 -31 Accepting a Grant from Alaska Department of Transportation and Public Facilities to Partially Fund the Island -Wide Transportation Feasibility Study. *Appointments to the Providence Kodiak Island Service Area Board. *Confirmation of the Assembly Appointment to the Service Area No. 1 Board. *Declaring a Seat on the Service Area No. 1 Board Vacant. *Confirmation of the Assembly Appointment to the Mission Lake "Tidegate" Service Area Board. *Declaring a Seat on the Bay View Road Service Area Board Vacant. Recommended motion: Move to approve the agenda and consent agenda as submitted. VOICE VOTE ON MOTION. 5. APPROVAL OF MINUTES A. *Special Meeting of December 29, 2009 and Regular Meetings of January 7 and 21, 2010. Kodiak Island Borough Assembly Guidelines February 18, 2010 Page 1 6. AWARDS AND PRESENTATIONS A. Employee of the Quarter — Manager Gifford B. Student of the Month — Mayor Selby • February 2010 — Carolyn Craig, Senior at Kodiak High School. C. National Teen Dating Violence Awareness and Prevention Proclamation — Mayor Selby 7. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) A. Agenda Items not scheduled for public hearing and general comments. Read phone numbers: Local is 486 -3231 and Toll Free is 1- 800 - 478 -5736. Please ask speakers to sign in and state their name for the record. 8. COMMITTEE REPORTS 9. PUBLIC HEARING A. Contract No. FY2010 -30 Solid Waste Collection Contract. Recommended motion: Move to authorize the manager to execute Contract No. FY2010 -30 with Alaska Pacific Environmental Services, LLC of Anchorage, AK for the Solid Waste Collection Services. Staff Report — Manager Gifford Open public hearing. Read phone numbers: Local is 486 -3231 and Toll Free is 1- 800 - 478 -5736. Please ask speakers to sign in and state their name for the record. Comments are limited to three minutes per speaker. Close public hearing. Assembly discussion and amendments may be offered at this time. Recommended motion: Move to postpone Contract No. FY2010 -30 to the next regular meeting of the Assembly. ROLL CALL VOTE ON MOTION TO POSTPONE. 10. BOROUGH MANAGER'S REPORT 11. MESSAGES FROM THE BOROUGH MAYOR 12. UNFINISHED BUSINESS 13. NEW BUSINESS A. Contracts 1. *Contract No. FY2010 -31 Accepting a Grant from Alaska Department of Transportation and Public Facilities to Partially Fund the Island -Wide Transportation Feasibility Study. Kodiak Island Borough Assembly Guidelines February 18, 2010 Page 2 B. Resolutions 1. Resolution No. FY2010 -25 Establishing Citizens Board of Equalization Dates for the Year 2010. Recommended motion: Move to adopt Resolution No. FY2010 -25. Staff Report — Manager Gifford Assembly discussion. ROLL CALL VOTE ON MOTION. 2. Resolution No. FY2010 -26 Supporting Invasive Species Advisory Council. Recommended motion: Move to adopt Resolution No. FY2010 -26. Staff Report — Manager Gifford Assembly discussion. ROLL CALL VOTE ON MOTION. 3. Resolution No. FY2010 -27 Urging the University of Alaska Fairbanks Cooperative Extension Service to Establish a Cooperative Extension Service District Office With a Full Time Extension Agent in Kodiak. Recommended motion: Move to adopt Resolution No. FY2010 -27. Staff Report — Manager Gifford Assembly discussion. ROLL CALL VOTE ON MOTION. C. Ordinances for Introduction — None. D. Other Items 1. Assembly Review of Case 10 -008 Planning and Zoning Commission Denial of a Rezone of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential and Directing Staff to Prepare an Ordinance of Introduction. Recommended motion: Move to direct staff to prepare an ordinance for introduction relating to Case 10 -008 Rezoning of Industrial Park Subdivision, Lot 7 and Tract A From RB- Retail Business To R3 -Multi Family Residential. Staff Report — Manager Gifford Assembly discussion. Kodiak Island Borough Assembly Guidelines February 18, 2010 Page 3 ROLL CALL VOTE ON MOTION. 2. Vacation in Accordance With KIBC 16.60 of a 10 -Foot Portion of a 20 -Foot Wide Utility Easement Located Along the Rear Lot Line of Lot 2B -1, Block 6, Miller Point Subdivision, First Addition. (Case S10 -005) Recommended motion: Move to approve the vacation of a 10 -foot wide portion of a 20 -foot utility easement located at the rear of Lot 2B -1, Block 6, Miller Point Subdivision, First Addition. Staff Report — Manager Gifford Assembly discussion. ROLL CALL VOTE ON MOTION. 3. *Appointments to the Providence Kodiak Island Service Area Board. 4. *Confirmation of the Assembly Appointment to the Service Area No. 1 Board. 5. *Declaring a Seat on the Service Area No. 1 Board Vacant. 6. *Confirmation of the Assembly Appointment to the Mission Lake "Tidegate" Service Area Board. 7. *Declaring a Seat on the Bay View Road Service Area Board Vacant. 14. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) Read phone numbers: Local is 486 -3231 and Toll Free is 1- 800 - 478 -5736. Please ask speakers to sign in and state their name for the record. 15. ASSEMBLY MEMBER COMMENTS Announcements — Mayor Selby The next Assembly work session will be held on Thursday, February 25, 2010, at 7:30 p.m. in the Borough Conference Room. The next regular meeting is scheduled on Thursday, March 4, 2010, at 7:30 p.m. in the Borough Assembly Chambers. The Mayor and members of the Assembly will be traveling to Juneau to attend the Legislative Reception on Wednesday, March 10, 2010. 16. ADJOURNMENT Recommended motion: Move to adjourn the meeting. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines February 18, 2010 Page 4 BY: SECOND: W BY: raft SECOND: I/4 \) BY: J tfaffig 6S1\1\CC°'Ctj)"* r,b BY: br SECOND: 1 , i 11 1� 'Q V BY: I SECOND: c..) Y(N\ t , 0 9, YES NO YES NO YES NO YES NO YES NO Ms. Branson ✓ Ms. Branson Ms. Branson Ms. Branson ✓ Ms. Branson V Mr. Friend V Mr. Friend Mr. Friend Mr. Friend i Mr. Friend le Ms. Fulp V Ms. Fulp Ms. Fulp Ms. Fulp V Ms. Fulp V Ms. Jeffrey V Ms. Jeffrey Ms. Jeffrey Ms. Jeffrey V Ms. Jeffrey V Mr. Kaplan V Mr. Kaplan Mr. Kaplan Mr. Kaplan V Mr. Kaplan V Ms. Lynch V. Ms. Lynch Ms. Lynch Ms. Lynch ` / Ms. Lynch Ms. Stutes I Ms. Stutes Ms. Stutes Ms. Stutes V Ms. Stutes ✓ CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? TOTAL: TOTAL: TOTAL: TOTAL: Lc 1 TOTAL: � 0 The mayor may not except in the case where only six members of the assembly are present and there is a three /three tie vote of the asseMbl . Y Y P Y Y P Y Mayor Selby /cite Mayor Selby Mayor Selby Mayor Selby Mayor Selby Regular t Special Convened: KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET ' c� cl Date: V? I l ZJ 1, 9•01AD Adjourned: ��. t5 eft Regular ✓ Special 9 P Convened: KODIAK ISLAND BOROUGH ASSEMBLY,ROLL CALL SHEET •� cl I 0 I I 1 11 ���v Vf. Date: OO`I t t -b E D \ 0 Adjourned: 0 Ms. Branson Mr. Friend Ms. Fulp ot Ms. Jeffrey Mr. Kaplan Ms. Lynch Ms. Stutes Mayor Selby YES / V v n NO 0 BY: jI 1 SECOND Ir 7 4 f4. ,0 0/' /kAu Ms. Branson Mr. Friend Ms. Fulp Ms. Jeffrey Mr. Kaplan 4 Ms. Lynch Ms. Stutes TOTAL: Mayor Selby YES v v r l NO 0 BY: 3 SECOND: 1 0 ,0 ). Ms. Branson Mr. Friend Ms. Fulp Ms. Jeffrey Mr. Kaplan Ms. Lynch Ms. Stutes TOTAL: Mayor Selby YES v, v v V V 7 NO O BY: bOASIO, SECOND: / 0 ol, Ms. Branson Mr. Friend Ms. Fulp Ms. Jeffrey Mr. Kaplan Ms. Lynch Ms. Stutes TOTAL: Mayor Selby YES NO v V v 5 Ms. Branson Mr. Friend Ms. Fulp Ms. Jeffrey Mr. Kaplan Ms. Lynch Ms. Stutes TOTAL: Mayor Selby YES v v v v v v v TOTAL: II 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 assembly. NO CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? D BY: r g9 SECOND: � 1' 6 (:)-\ BY: SECOND: BY: SECOND: BY: SECOND: BY: SECOND: YES NO YES NO YES NO YES NO YES NO Ms. Branson ✓ Ms. Branson Ms. Branson Ms. Branson Ms. Branson Mr. Friend ✓ Mr. Friend Mr. Friend Mr. Friend Mr. Friend Ms. Fulp 'V Ms. Fulp Ms. Fulp Ms. Fulp Ms. Fulp Ms. Jeffrey V Ms. Jeffrey Ms. Jeffrey Ms. Jeffrey Ms. Jeffrey Mr. Kaplan V Mr. Kaplan Mr. Kaplan Mr. Kaplan Mr. Kaplan Ms. Lynch V/ Ms. Lynch Ms. Lynch Ms. Lynch Ms. Lynch Ms. Stutes lit Y Ms. Stutes Ms. Stutes Ms. Stutes Ms. Stutes CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? TOTAL: TOTAL: TOTAL: TOTAL: TOTAL: The mayor may not ote xcept in the case where only six members of the assembly are present and there is a three /three tie vote of the assembly. Mayor Selby Mayor Selby Mayor Selby Mayor Selby Mayor Selby Regular Special Convened: KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET Date: Adjourned: KODIAK ISLAND BOROUGH ASSEMBLY MEETING Regular Meeting of: 62kYLIalij I? c2C'I C Please PRINT your name Please PRINT your name / r tv T an - BACrz--- ChAL, oy /c Suck harY) v - -f V 5 ,',1 r /t. ft /u 04 /141 1 VM tr KODIAK ISLAND BOROUGH ASSEMBLY MEETING Regular Meeting of: Please PRINT your name Please PRINT your name •loeR14 eCC-13 /e/ I'm Rob Baer and live at 2847 Lakeview Drive (Monashka Bay Block 4 Lot 19C). I'm speaking to you as a citizen and representing no one but myself. Members of the Assembly I thank you for your time and further consideration with the issue of waste disposal. As a Monashka Bay resident, I do not support curb -side trash pickup for residents outside of city limits. Challenges to this plan include: steeply graded roads and driveways, state owned and maintained roads, blind corners, high winds, snow berms, and bears. The name alone, "curb -side pickup ", suggests that it occurs in densely populated areas with suitable engineering and infrastructure such as paved streets, sidewalks, zero lot lines and curbs. I live outside the city because I prefer more space and less of the conveniences associated with city life. I adapt without city sewer and city water and I deal with the mud, the potholes, treacherous winter conditions, bears, and a longer commute so that I can avoid the city curb -side atmosphere. My mailbox sits 800 feet away from the entrance to my driveway because that is the closest place where anyone can safely stop on that portion of Lakeview Drive. In addition to logistical problems I also see the lack of enforcement as another drawback to the plan. I have observed everything from refrigerators and dishwashers to engine blocks and gutted trucks strewn about the Otmeloi dumpster site. This dumpster was so poorly managed last year that it was removed because it was a bear attractant. A new plan that relies on an increase of citizen responsibility without sufficient enforcement will surely face many more obstacles. However, I do recognize the importance of developing a working waste management plan, and I recognize the difficulties with which you are faced. I suggest an alternative plan that incorporates a simple transfer station at the existing landfill site where residents of Monashka Bay (and anyone else for that matter) can deliver household waste and as well as their recyclable materials. Such a station could utilize existing borough owned lands, facilities, scales, and equipment, and support the same "pay as you throw" incentives proposed by curbside pickup. In addition, this system would encourage more people to actually see our landfill and the impacts of waste disposal. The Borough Comprehensive and Strategic Plans clearly indicate that landfill waste reduction and recycling are objectives of the Borough. I encourage you to adopt a plan that not only incorporates goals on how we deal with waste, but also a plan that specifically addresses a capacity to deal with recyclable materials and an enforcement policy that will ensure compliance. I look forward to participating in a comprehensive plan that addresses this waste management issue as a whole. Thank you, Rob er k■- a /6/ o NAME ADDRESS PHONE E -MAIL yes No S de 7d " 72 r.3 i r- '18G- 889 ? .1 / 7e ' . , cc -4.-m +a . I : M . �i � . � Thr�� ; fiery WalKi UCH r 2� gzfo -5"1 4 C wiRsait raw _i M1111111.11K ' rd. 9 (Act r ' e‘ -5 • _ .' 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