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HomeMy WebLinkAboutResolution No. 2026-23KENAI CITY OF KENAI RESOLUTION NO. 2026-23 Sponsored by: Administration A RESOLUTION APPROVING A LEASE FORM FOR LEASING OF TIDELANDS FOR SHORE FISHERIES AND AUTHORIZING THE CITY MANAGER TO ENTER INTO A SHORE FISHERY LEASE WITH BRIAN SCOW FOR THE PROPERTY DESCRIBED AS TRACT ONE (1), SHORE FISHERY PLAT NO. 71. WHEREAS, in 1977, the State of Alaska granted the area known as the Alaska Tideland Survey 272 containing approximately 2,752 acres to the City of Kenai pursuant to the City's Municipal Preference Right; and, WHEREAS, Ordinance 3500-2026, relocating tideland leasing provisions for shore fisheries to Kenai Municipal Code (KMC) Title 22 — City Owned Lands, was enacted on February 4, 2026 and became effective on March 6, 2026; and, WHEREAS, a new lease form for leasing tidelands for shore fisheries is needed to reflect the changes to the lease form necessitated by Ordinance 3500-2026 and must be approved by Council Resolution pursuant to KMC 22.10.040(e); and, WHEREAS, KMC 22.10.010(c) provides that a lessee under an existing shore fishery lease will have a preference right to re -lease the same property upon lease expiration, provided the lessee is in compliance with all applicable provisions of the Kenai Municipal Code; and, WHEREAS, the current lessee, Brian Scow, is in compliance with all applicable sections of Kenai Municipal Code and is current with all invoiced lease payments; and, WHEREAS, on March 2, 2026 the City of Kenai provided notice to all existing shore fishery lessees of the June 30, 2026 lease expiration date; and, WHEREAS, Brian Scow timely exercised his preference right to re -lease the property in accordance with KMC 22.10.010(c); and, WHEREAS, KMC 22.10.040(e) requires the use of a standard lease form adopted by resolution of the City Council; and, WHEREAS, the new Lease term is proposed to commence on July 1, 2026; and, WHEREAS, approval of the Lease is consistent with the intent of Kenai Municipal Code, supports the continued authorized use, and is in the best interest of the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. That the City Manager is authorized to execute a lease with Brian Scow for the property described as Tract One (1), Shore Fishery Plat No. 71, in substantially the form approved by the City Council. Section 2. That this Resolution takes effect immediately upon passage. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, THIS 22ND DAY OF APRIL, 2026. New Text Underlined; [DELETED TEXT BRACKETED] Resolution No. 2026-23 Page 2 of 2 ATTEST: Michelle er, MC, City Clerk New Text Underlined; [DELETED TEXT BRACKETED] L I000, City of Kenai MEMORANDUM K E N 4 210 Fidalgo Ave, Kenai, AK 99611-7794 1907.283.75351 www.kenai.city TO: Mayor Knackstedt and Council Members THROUGH: Terry Eubank, City Manager FROM: Kevin Buettner, Planning Director DATE: April 14, 2026 SUBJECT: Resolution No. 2026-23 - Approving a Lease Form for Leasing of Tidelands for Shore Fisheries and Authorizing the City Manager to Enter into a Shore Fishery Lease with Brian Scow for the Property Described as Tract One (1), Shore Fishery Plat No. 71. This Resolution approves a new standard lease form for tidelands for shore fisheries that is consistent with recent code amendments and authorizes the City Manager to execute a Shore Fishery lease. Ordinance 3500-2026, relocating tideland leasing provisions for shore fisheries to Kenai Municipal Code (KMC) Title 22 - City Owned Lands, was enacted on February 4, 2026 and became effective on March 6, 2026. To ensure compliance with the new code references, a new form was created. The draft lease form has been reviewed as to form by the City Attorney. Pursuant to KMC 22.10.010(c), any new lease form must be approved by Resolution. The current shore fishery leases expire on June 30, 2026. All current lessees have expressed their intent to re -Lease their shore fishery tracts for the lease period starting July 1, 2026 and ending June 30, 2036. Adoption of this lease form and authorizing the City Manager to enter into the lease will allow the Administration time to fully execute the agreements prior to expiration. This resolution is specifically regarding the shore fishery tidelands described as Tract One (1), Shore Fishery Plat No. 71 to be leased by Brian Scow. Thank you for your consideration. SHORE FISHERY LEASE THIS AGREEMENT, entered into this day of , 2026, by and between the CITY OF KENAI, a home -rule municipal corporation of Alaska, whose address is 210 Fidalgo Avenue, Kenai AK 99611-7750, hereinafter called "City," and BRIAN SCOW whose address is 6209 E Baseline Road, Mesa, AZ 85206, hereinafter called "Lessee." The City, in consideration of the payments of the rents and performance of all the covenants by the Lessee herein contained, does hereby demise and lease to the Lessee the following described property in the Kenai Recording District, Third Judicial District, State of Alaska; to wit: Tract One (1), Shore Fishery Plat No. 71 A. PURPOSE: The purpose for which the Lease is issued is: Shore fishery B. TERM: The term of this Lease is for ten (10) years, commencing on July 1, 2026, and ending on June 30, 2036. C. RENTAL PAYMENT: Rental for the above described shore fishery tracts shall be payable as follow: 1. The annual rental rate shall be $300.00 for each tract. However, should the State of Alaska set an annual lease rate higher than $300.00 for similar tideland leases for shore fisheries on land owned by the State, the City may amend the annual rental to a rate equal to that charged by the State of Alaska. 2. Annual rent for the fiscal year beginning July 1 and ending June 30 shall be payable in advance on or before the first day of July of each year. 3. Rental for any period which is less than one (1) year shall be prorated based on the rate of the last full year. D. GENERAL COVENANTS: 1. USES: Except as provided herein, any use of lands or facilities without the written consent of the City is prohibited. 2. USES NOT CONTEMPLATED PROHIBITED: Solicitation of donations or the promotion or operation of any part or kind of business or commercial enterprises, other than as specifically set forth herein, upon, or in shore fishery lands, without the written consent of the City is prohibited. 3. ASSIGNMENT OR SUBLETTING: Lessee with the City's written consent, which will not be unreasonably denied, may assign for other than collateral purposes, in whole or in part, its rights as Lessee hereunder. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 1 LESSEE: Any assignee of part or all of the leased premises shall assume the duties and obligations of the Lessee as to such part or all of the leased premises. No such assignment, however, will discharge Lessee from its duties and obligations hereunder. 4. COSTS AND EXPENSES: Costs and expenses incident to this lease, including but not limited to, recording costs shall be paid by Lessee. 5. TREATMENT OF DEMISE: The Lessee agrees to keep the premises clean and in good order at its own expense, suffering no strip or waste thereof, nor removing any material therefrom, except fisheries resources, without written permission of the City. At the expiration of the term fixed, or any sooner determination of the Lease, the Lessee will peaceably and quietly quit and surrender the premises to the City. 6. PAYMENT OF RENT: Checks, bank drafts, or postal money orders shall be made payable to the City of Kenai and delivered to the City Administration Building, Kenai, Alaska. 7. HERRING SPAWN COVENANT: This Lease is issued subject to Sections 16.10.172 — 16.10.175 of the Alaska Statutes and it is agreed that the covenants, terms and conditions herein contained shall be binding upon the successors and assigns of the respective parties hereto. 8. DEFAULT RIGHT OF ENTRY: Should default be made in payment of any portion of the rent or fees when due, or in any of the covenants or conditions contained in the Lease or in any regulations now or hereinafter in force, then in such event the City shall by written notice give Lessee thirty (30) days to cure such default or defaults, after which if the default is not cured, the City may terminate the Lease, reenter and take possession of the premises, and remove all persons therefrom. 9. LEASE UTILIZATION: Leased lands shall be utilized for purposes within the scope of the terms of the Lease and the terms of the deed under which the land was granted to the City (and any releases pertinent thereto), in conformity with the ordinances of the City and Borough. Utilization or development for other than the allowed uses shall constitute a violation of the Lease and subject the Lease to cancellation at any time. 10. CONDITION OF PREMISES: The premises demised herein are unimproved and are leased on an "as is, where is" basis. 11. UNDERLYING TITLE: The interests transferred, or conveyed by this Lease are subject to any and all of the covenants, terms, or conditions contained in the instruments conveying title or other interests to the City. 12. RIGHT OF INSPECTION: The City shall have the right at all reasonable times to enter the premises, or any part thereof, for the purposes of inspection. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 2 LESSEE: 13. ASSUMPTION OF RISK AND INDEMITY, DEFEND, AND HOLD HARMLESS AGREEMENT: Lessee assumes full control and sole responsibility as between Lessee and the City for the activities of Lessee, its personnel, employees, and persons acting on behalf or under the authority of the Lessee anywhere on the leased premises. Lessee shall provide all proper safeguards and shall assume all risks incurred in its activities on and access to the leased premises and its exercise of the privileges granted in this Lease. Lessee agrees to fully indemnify, defend, and hold harmless, the City, its officers, agents, employees, and volunteers from and against all actions, damages, costs, liability, claims, losses, including death, judgements, penalties, and expenses of every type and description, including any fees and/or costs reasonably incurred by the City's staff attorneys and outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as "Liabilities"), to which any or all of them may be subjected, to the extent such Liabilities are caused by or result from any negligent act or omission or willful misconduct of the Lessee in connection with or arising from or out of Lessee's activities on or use of the premises. This shall be continuing obligations and shall remain in effect after termination of this Lease. 14. COLLECTION ON UNPAID MONIES: Any or all rents, charges, fees, or other consideration which are due and unpaid at the expiration or voluntary or involuntary termination or cancellation of this Lease, shall have such lien rights as are allowed by law, and enforcement by distraint may be made by the City or its authorized agent. 15. EASEMENT GRANTS RESERVED: The City reserves the right to grant and control easements in, or above the land leased. No such grant or easement will be made that will unreasonably interfere with the Lessee's use of the land, and Lessee shall have free access and use of any and all parking and loading rights, rights of ingress and egress now or hereafter appertaining to the leased premises. 16. SURRENDER ON TERMINATION: Lessee shall, on the last day of the term of this Lease or upon any earlier termination of this Lease, surrender and deliver the premises into the possession and use of the City without fraud or delay in good order, condition, and repair, except for reasonable wear and tear since the last necessary repair, replacement, restoration or renewal, free and clear of all lettings and occupancies unless expressly permitted by the City in writing, and free and clear of all liens and encumbrances other than those created by and for loans to the City. Upon the end of the term of this Lease or any earlier termination thereof, title to any shore fishery equipment left on the leased land for a period in excess of thirty (30) days shall automatically vest in the City without requirement of any deed, conveyance, or bill of sale thereon. However, if the City should require any such document in confirmation hereof, Lessee shall execute, acknowledge, and deliver the same and shall pay any charge, tax, and fee asserted or imposed by any and all governmental units in connection herewith. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 3 LESSEE: 17. RIGHT TO ENJOYMENT AND PEACEABLE POSSESSION: The City hereby agrees and covenants that the Lessee, upon paying rent and performing other covenants, terms, and conditions of this Lease, shall have the right to quietly and peacefully hold, use, occupy, and enjoy the said leased premises, subject to the rights of the general public and except that any inconvenience caused by public works projects in or about the leasehold premises shall not be construed as a denial of the right of quiet or peaceable possession. 18. LESSEE TO PAY TAXES: Lessee shall pay all lawful taxes and assessments which, during the term hereof may become a lien upon or which may be levied by the State, Borough, City, or any other tax levying body, upon any taxable possessory right which Lessee may have in or to the property by reason of its use or occupancy or the terms of this lease, provided however, that nothing herein contained shall prevent Lessee from contesting any increase in such tax or assessment through procedures outlined in State statutes. 19. SPECIAL SERVICES: Lessee agrees to pay the City a reasonable charge for any special service or facilities required by Lessee in writing, which services or facilities are not provided for herein. 20. NO PARTNERSHIP OR JOINT VENTURE CREATED: It is expressly understood that the City shall not be construed or held to be a partner or joint venture of Lessee in the conduct of business on the demised premises; and it is expressly understood and agreed that the relationship between the parties hereto is, and shall at all times remain landlord and tenant. 21. DEFAULT BANKRUPTCY, ETC.: If the Lessee shall make any assignment for the benefit of creditors, or shall be adjudged bankrupt, or if a receiver is appointed for the Lessee or Lessee's assets, or any interest under this Lease, and if the appointment of the receiver is not vacated within thirty (30) days, or if a voluntary petition is filed under Section 18(a) of the Bankruptcy Act by the Lessee, then and in any event, the City may, upon giving the Lessee thirty (30) days' notice, terminate this lease. 22. NONDISCRIMINATION: The Lessee, Lessee's personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (a) No person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said shore fishery: 23. PARTIAL INVALIDITY: If any term, provision, condition, or part of this Lease is declared by a court of competent jurisdiction to be invalid or unconstitutional, the remaining terms, provisions, conditions, or parts shall continue in full force and effect as though such declaration was not made. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 4 LESSEE: 24. MODIFICATION: No lease may be modified orally or in any manner other than by an agreement in writing, signed by all parties in interest or their successors in interest. Any such modification shall require Council approval. 25. WARRANTY: The City does not warrant that the property which is the subject of this Lease is suited for the use authorize herein, and no guarantee is given or implied that it shall be profitable or suitable to employ he property to such use. 26. RIGHT TO ADOPT RULES: The City reserves the right to adopt, amend, and enforce reasonable rules and regulations governing the demised premises and the public areas and facilities used in connection therewith. Except in cases of emergency, no rule or regulation hereafter adopted or amended by the City shall become applicable unless Lessee has been given thirty (30) days' notice of adoption or amendment thereof. 27. NON -LIABILITY: The City shall not be liable to Lessee for any diminution or deprivation of possession, or of Lessee's right hereunder, on account of the exercise of any such right or authority as provided in this or the preceding section, nor shall Lessee be entitled to terminate the whole or any portion of the leasehold estate herein created, by reason of the exercise of such rights or authority, unless the exercise thereof shall so interfere with Lessee's use and occupancy of the leasehold estate as to constitute a termination in whole or in part of this lease by operation of law in accordance with the laws of the State of Alaska and of the United States made applicable to the states. 28. COMPLIANCE WITH LAWS: (a) Lessee shall observe, obey, and comply with all applicable laws, ordinances, rules, and regulations of the Federal, State, Borough, or City governments or of any other public authorities now or hereafter in any manner affecting the leased premises. (b) Lessee agrees to hold the City financially harmless: (1) From the consequences of any violation of such laws, ordinances, and/or regulations; and (2) From all claims for damages on account of injuries, death, or property damage resulting from such violation. (c) Lessee further agrees it will not permit any unlawful occupation, business, or trade to be conducted on said premises or any use to be made thereof contrary to any law, ordinance, or regulation as aforesaid with respect thereto, including zoning ordinances, rules, and regulations. 29. CONDEMNATION: In the event the leased premises or any part thereof shall be condemned and taken for a public or a quasi -public use, then upon payment of any award or compensation arising from such condemnation, there shall be such division of the proceeds, such abatement in rent payable during the term or any extension of the term hereof, and such other adjustments as the parties may agree upon as being just and equitable under all the circumstances. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 5 LESSEE: If the City and lessee are unable to agree within thirty (30) days after such an award has been paid into Court, upon what division, annual abatement in rent, and other adjustments are just and equitable, the disputes shall be determined by arbitration. 30. PROTECTION OF SUBLESSEES: To protect the position of any sublessee(s) hereafter obtaining any property interests in the leasehold estate granted by the Lessee hereunder, the City agrees that in the event of the cancellation, termination, expiration, or surrender of this Lease (the ground lease), the City will accept the sublessee, its successors and assigns, as its Lessee for a period equal to the full unelapsed portion of the term of the sublease, including any extensions or renewals thereof, not exceeding the term of this Lease, upon the same covenants and conditions therein contained, to the extent that said covenants and conditions are not inconsistent with any of the terms and conditions of this Lease, provided such Sublessee shall make full and complete attornment to the City for the balance of the term of such sublease so as to establish direct privity of estate and contract between the City and the Sublessee with the same force and effect as though such sublease was originally made directly between the City and such Sublessee; and further provided such Sublessee agrees to comply with all the provisions of the ground lease. 31. SUCCESSORS IN INTEREST: This Lease shall be binding upon and shall inure to the benefit of the respective successors and assigns of the parties hereto, subject to such specific limitations on assignments as are provided for herein. 32. GOVERNING LAW: This indenture of Lease shall be governed in all respects by the laws of the State of Alaska. 33. NOTICES: (a) Any notices required by this Lease shall be in writing and shall be deemed to be duly given only if delivered personally or mailed by certified or registered mail in a prepaid envelope addressed to the parties of the address set forth in the opening paragraph of this lease unless such address has been changed pursuant to sub- paragraph (b) hereafter, and in that case shall to the most recent address so changed. Any notice so mailed shall be deemed delivered on the date it is deposited in a U.S. general or branch post office. The City shall also mail a copy of any notice given to the Lessee, by registered or certified mail, to any leasehold lender (mortgage, beneficiary of a deed of trust, security assignee) who shall have given the City notice of such mortgage, deed of trust, or security assignment. (b) Any such addresses may be changed by an appropriate notice in writing to all other parties affected provided such change of address is given to the other parties by the means outlined in paragraph (a) above at least fifteen (15) days prior to the giving of the particular notice in issue. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 2 LESSEE: 34. ENTRY AND RE-ENTRY: In the event that the Lease should be terminated as hereinbefore provided, or by summary proceedings or otherwise, or in the event that the demised lands or any part thereof should be abandoned by the Lessee during said term, the City or its agents, servants, or representatives may, immediately or any time thereafter, re-enter, and resume possession of said lands or such part thereof and remove all persona and property therefrom, either by summary proceedings or by a suitable action or proceeding at law without being liable for any damages therefor. No re-entry by the City shall be deemed an acceptance of a surrender of the lease. 35. RETENTION OF RENTAL: In the event that the Lease should be terminated because of any breach by the Lessee as herein provided, the rental payment last made by the Lessee shall be retained by the City as partial or total liquidated damages for said breach. 36. WRITTEN WAIVER: The receipt of rent by the City with knowledge of any breach of the Lease by the Lessee, or any default on the part of the Lessee in observance or performance of any of the conditions or covenants of the Lease, shall not be deemed to be a waiver of any provisions of the Lease. No failure on the part of the City to enforce any covenant or provision therein contained, nor any waiver of any right thereunder by the City, unless in writing, shall discharge or invalidate such covenants or provisions, or affect the right of the City to enforce the same in the event of any subsequent breach or default. The receipt, by the City, of any rent or any other sum of money after the termination, in any manner, of the term therein demised, or after the giving by the City of any notice thereunder to effect such termination, shall not reinstate, continue, or extend the resultant term therein demised, or destroy, or in any manner impair the efficacy of any such notice of termination as may have been given thereunder by the City to the Lessee prior to the receipt of any such sum of money or other consideration, unless so agreed to in writing and signed by the City. 37. ZONING LAWS: Leased tidelands and shore fishery lands shall be utilized in accordance with the building and zoning ordinances and rules and regulations of the City. Failure to do so shall constitute a default. 38. PERSONAL USE OF MATERIALS: All coal, oil, gas, and other minerals and all deposits of stone or gravel valuable for extraction or utilization and all materials subject to Title II, Division I, Chapters 4, 5, and 6 of the Alaska Administrative Code are excepted from the operation of a surface Lease. Specifically, the Lessee of the surface rights shall not sell or remove for the use elsewhere any timber, stone, gravel, peat moss, topsoil, or any other material valuable for building or commercial purposes; provided, however, that material required for the development of the leasehold may be used if its use is first approved by the City Manager. 39. MUTUAL CANCELLATION: Leases in good standing may be cancelled in whole or in part at any time upon mutual written agreement by Lessee and the City Council. SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 7 LESSEE: 40. UNLAWFUL USE PROHIBITED: Lessee shall not allow the leasehold premises to be used for an unlawful purpose. 41. APPROVAL OF OTHER AUTHORITIES: The issuance by the City of leases does not relieve the Lessee of responsibility of obtaining licenses or permits as may be required by duly authorized Borough, State, or Federal agencies. 42. PREFERENCE RIGHT TO RE -LEASE: A Lessee under an existing lease shall, upon the expiration or the termination by mutual agreement of said Lease, be allowed a preference right to re -lease those lands previously leased by him if all other sections of the Kenai Municipal Code are complied with. Re -leasing will not necessarily be under the same terms and conditions as the prior lease. When the lease is offered to the preference right holder, the preference right holder shall exercise the right within thirty (30) calendar days after said lease is offered by the City. Failure to do so shall result in forfeiture and cancellation of the preference right. No preference right shall inure to a Lessee whose lease has been terminated by cause. IN WITNESS WHEREOF the parties hereto have hereunto set their hands, the day and year stated in the individual acknowledgements below. LESSOR: CITY OF KENAI BY: Terry Eubank Date City Manager LESSEE: BRIAN SCOW BY: Brian Scow Date SHORE LEASE FISHERY— BRIAN SCOW Tract One (1), Shore Fishery Plat No. 71 LESSOR: 0 LESSEE: