The following is the full text of the lease that was approved in the April 4, 2000 election and allows Hilltop Ski Area to expand. The Friends of Bicentennial Park will monitor Hilltop's and the Anchorage Municipality's compliance with the terms of the lease.
Below the lease is information from Friends and others regarding the lease. Click here to jump to that section.
LEASE AGREEMENT
MUNICIPALITY OF ANCHORAGE and YOUTH EXPLORING ADVENTURES, INC.
THIS LEASE AGREEMENT ("Lease") is entered into this ___ day of _______, 2000, by and between the Municipality of Anchorage (Landlord) and Youth Exploring Adventure, Inc. (Tenant) Landlord and Tenant agree as follows. This Lease consists of:
A. 40 sections
B. Appendix A, USKH Map of Property
C. Appendix B, YEA, Inc. Corporate Resolution
D/ Appendix C, Anchorage Parks and Recreation Advisory Commission Conditions
Steve Remme executes this Lease on behalf of Tenant. It is understood that Tenant is a nonprofit corporation and that the person who executes this Lease on behalf of Tenant does so in the capacity of Chief Executive Officer and Steve Remme warrants that he has the authority to execute this Lease on behalf of Tenant pursuant to the corporate resolution attached hereto as Appendix B, and incorporated by reference.
This Lease consists of those provisions that are listed below by section number and title.
Section 1. Definitions and Property Description
Section 2. Intent
Section 3. Term of Lease
Section 4. Termination of Lease
Section 5. Duties Upon Termination or Expiration
Section 6. Rent
Section 7. Utilities
Section 8. Property Improvements and Conditions Thereto
Section 9. Management of Property
Section 10 Non-exclusive Use and Control of Property; Use by Others
Section 11. Security of Property
Section 12. Financial Reporting
Section 13. Records Management
Section 14. Budget, Plans and Reporting Requirements
Section 15. Indemnification
Section 16. Insurance
Section 17. Notices
Section 18. Assignment
Section 19. Risk of Loss
Section 20. Reporting of Accidents
Section 21. Subcontracts
Section 22. Janitorial, Maintenance, and Repair of the Property
Section 23. Liens on Buildings and Improvements
Section 24. Liens and Encumbrances Generally
Section 25. Promotion and Signs
Section 26. Discriminatory Acts Prohibited
Section 27. Landlord Remedies
Section 28. Non-waiver
Section 29. Amendment
Section 30. Jurisdiction: Choice of Law
Section 31. Severability
Section 32. Integration
Section 33. Liability
Section 34. Relationship of Parties
Section 35. Nondiscrimination
Section 36. Permits, Laws, Taxes
Section 37. Holdover
Section 38. Abandonment and Untenantability
Section 39. Eminent Domain
Section 40. Force Majeure
Section 1. Definitions and Property Description.
"Property" means the real property known as the Hilltop Ski Area within the Far North Bicentennial Park of Anchorage, Alaska legally descripted as a portion of Sections 11 and 12, Township 12 North, Range 3 West, Seward Meridian, Alaska, more particularly described as follows:
Commencing at the recovered quarter corner a 2 ½" brass cap common to Section 11 and Section 14;
· Thence N 89° 57’00" E also being the Basis of Bearing from BLM for this project a distance of 1417.54 feet to a point on the said section line which is the True Point of Beginning; · Thence N 00° 03’00" W a distance of 211.58 feet to a 2" alcap on a 5/8" rebar; · Thence N 61° 15’02" E a distance of 558.97 feet to a 2" alcap on a 5/8" rebar; · Thence N 27° 52’51" E a distance of 2268.33 feet to a 2" alcap on a 5/8" rebar; · Thence S 70° 01’12" E a distance of 288.89 feet to a 2" alcap on a 5/8" rebar; · Thence N 24° 45’41" E a distance of 1126.08 feet to a 2" alcap on a 5/8" rebar; · Thence N 71° 32’33" E a distance of 1030.82 feet to a 2" alcap on a 5/8" rebar; · Thence S 39° 56’53" E a distance of 1735.31 feet to a 2" alcap on a 5/8" rebar; · Thence S 14° 10’44" W a distance of 300.62 feet to a 2" alcap on a 5/8" rebar; · Thence S 87° 10’19" W a distance of 359.79 feet to a 2" alcap on a 5/8" rebar; · Thence S 19° 28’38" W a distance of 1406.67 feet to a 2" alcap on a 5/8" rebar; · Thence S 84° 48’27" W a distance of 1470.40 feet to a 2" alcap on a 5/8" rebar; · Thence N 61° 12’52" W a distance of 1083.90 feet to a 2" alcap on a 5/8" rebar; · Thence S 22° 47’11" W a distance of 198.72 feet to a 2" alcap on a 5/8" rebar; · Thence S 54° 25’54" E a distance of 394.93 feet to a 2" alcap on a 5/8" rebar; · Thence S 37° 53’59" W a distance of 944.40 feet to a point on the said section line, which point lies S 89° 57’00" W a distance of 487.81 feet from the recovered section corner a 2 ½" brass cap common to Sections 11,12,13 and 14; · Thence S 89° 57’00" W 733.59 feet along the section line common to Section 11 and Section 14 to the True Point of Beginning;
Containing 164.94 acres more or less and depicted on Appendix A. hereto.
B. "Department" means the Department of Cultural and Recreational Services of Landlord.
C. "Administrator" means the Director, Department of Cultural and Recreational Services, or designee.
D. "Landlord" or "Anchorage" means the Municipality of Anchorage, acting through the Mayor or designee.
E. "Year" means a full calendar year.
Section 2. Intent
A. The parties agree that Tenant may use, and will operate and manage the ski areas located on the Property in a manner consistent with accepted industry standards and practices.
B. Tenant is experienced in the business of operating and managing skiing and recreational operations similar to those present or contemplated for the Property.
C. Landlord agrees to permit and authorize Tenant to use the Property, and Tenant agrees to operate and manage skiing and recreational operations on the Property on the following terms and conditions.
Section 3. Term of Lease
A. Provided this Lease is approved by the voters of the Landlord, this lease becomes effective and shall commence on the date the April 4, 2000 Anchorage Municipal election is certified by the Assembly, and shall expire twenty (20) years thereafter.
B. Tenant shall, after review and recommendations by the Anchorage Parks and Recreation Advisory Commission and with consent of Landlord (which may be withheld for any reason), have the right to renew the term of this Lease for one (1) additional ten (10) year term, provided that Tenant is not in default at the time it gives notice of renewal and is not in default at any time between giving such notice and commencement of the renewal term. Notice of Tenant’s election to exercise the renewal shall be given in writing, not less than one year nor more than five years before expiration of the original term.
Section 4. Termination of Lease
A. This Lease may be terminated:
1.. By mutual consent of the parties.
2. For cause, by either party, where the other party fails in any material way to perform its obligations under this Lease. Termination under this paragraph is subject to the condition that the terminating party notifies the other party of its intent to terminate or revoke this Lease and states with reasonable specificity the grounds therefore, and the defaulting party shall have failed within thirty (30) days of receiving the notice to cure the default.
3. If Tenant, after written notice, shall be in default on the payment of fees or any sum or sums due under this Lease for more than thirty (30) days.
4. If Tenant, within thirty (30) days after written notice, where such default or omission complained of is of such nature that the same cannot be completely cured or remedied within said thirty (30) day period, Tenant fails to diligently commence curing such default within such thirty (30) day period, and does not thereafter, with reasonable diligence and in good faith, proceed to remedy or cure such default.
5. Abandonment or vacation of the Property for a period of thirty (30) days or more.
6. If Tenant’s interest or any part of its interest in this Lease be assigned or transferred without Landlord’s express written consent.
B. Landlord’s Right to Cure. Tenant’s Breach. In the event of Tenant’s breach of any covenant of this Lease, Landlord may at any time, upon thirty (30) days notice to Tenant, cure such breach for the account and at the expense of Tenant. If Landlord at any time by reason of such breach is compelled to pay or elects to pay any sum of money or to do any act that will require the payment of any sum of money, the sum or sums so paid by Landlord, together with interest thereon at the rate of seven and one-half percent (7.5%) per annum, shall be added to any fees or sums otherwise payable by Tenant to Landlord, and shall be due from Tenant immediately.
C. Landlord’s Election. After Tenant has attempted to cure the breach in accordance with Paragraph C above, and has been unsuccessful, then Landlord may, at its option, without any further demand or notice, terminate this Lease.
Section 5. Duties Upon Termination or Expiration
A. Upon termination or expiration of this Lease all permanent capital improvements shall become the property of Landlord. Notwithstanding, upon written notice Landlord may, in its sole discretion, direct Tenant to remove any equipment, personal property or permanent improvements on the Property, remediate any contamination, and restore the Property if Landlord determines that: (1) the continuation of the equipment, property or improvements on the Property is not in the best interest of Landlord, or (2) the equipment, property or improvements present a hazard to public health or safety. If so directed by Landlord, Tenant shall remove within sixty (60) days, or a mutually agreed upon length of time, any or all its equipment and personal property from the Property. Any equipment or personal property left on the Property sixty (60) days, or a mutually agreed upon length of time, after direction for removal shall be deemed abandoned and Landlord may either retain or have such property removed at Tenant’s expense. Due to climate constraints in the winter, timely removal of said equipment and personal property might not be possible. In such case, the removal date shall be set within the May 15-September 15 period. Tenant shall leave the Property in a good, clean condition, normal wear and tear excepted.
B. In the event no final audit has been performed prior to expiration or termination of this Lease, the parties reserve the right to recover amounts due under the Lease after receiving the final audit.
C. Except as provided in this Lease, termination does not affect any other right or obligation of a party under this Lease.
D. At the expiration of the Lease, upon termination of the Lease, upon re-entry by Landlord or otherwise, Tenant shall peacefully and quietly surrender the Property in as good a condition as it was at the beginning of the term, reasonable use, wear, and damages by the elements excepted.
E. Upon termination or expiration, Tenant shall deliver to the Administrator all documents, records, work product, materials and equipment owned by Landlord as requested by the Administrator.
F. If the Lease is terminated or expires for whatever reason, Tenant shall not claim any compensation under the Lease, other than that allowed under Section 6 hereof.
Section 6. Rent
A. Percentage of Gross Revenues. Rent for the term of this Lease, including any optional or renewal term, shall be calculated initially at the rate of two percent (2%) of the total gross receipts generated by Tenant on the Property as defined herein, and paid quarterly to Landlord. The rental rate may be adjusted by Landlord at every two Years by no greater than 1/4 of 1% (e.g., from 2% to 2 1/4%, from 2 1/4% to 2 1/2%, etc.) each adjustment. Tenant will be given a credit against rent equal to the actual costs of permanent capital improvements made upon the Property by Tenant after commencement of the Lease term. Tenant may carry forward such credits against future rent obligations, but will not, under any circumstances be entitled to any refund, rebate, reimbursement or other payment by Landlord based upon the value of improvements.
B. Sources of Gross Revenues. For purposes of determining quarterly rent, gross receipts shall include the aggregate total amount of sales made and services performed by Tenant, Tenant’s consignees, agents, subcontractors and subtenants on the Property whether such activities are for cash or on credit. Sales on credit are to be included in gross receipts at the time such are discharged by payment. Sales and services include, but are not limited to, lift tickets, including competition entry fees; rentals; sales of apparel or equipment; fees charged for any recreational or other activity on the Property; retail sales of other goods, services, food or beverages; sales from vending or coin operated equipment; and rental of any facilities for any purpose. Amounts received as grants or donations by Tenant, and business trade outs, shall not be included in Tenant’s gross revenues. Any sales tax collected on items producing receipts shall not be included in the gross receipt calculation.
C. Payment of Rent. Rent as provided herein shall be payable quarterly to Landlord for activity occurring during the previous quarter. Such payments shall be due and payable within forty-five (45) days after the end of each calendar quarter.
D. In the event that the review or audits permitted herein discover an overpayment of rent during the reporting period, the amount of overpayment shall be credited to the next quarterly rent payment. In the event an underpayment is discovered the amount of the underpayment shall be paid within thirty (30) days of the discovery.
E. As a condition of Tenant’s retention of the remaining gross revenues, Tenant shall have paid all municipal taxes currently due and owing by Tenant.
Section 7. Utilities
Tenant shall obtain and pay for water, electric, telephone, gas, sewer, refuse, and all other utilities and services necessary for the operation of the Property.
Section 8. Property Improvements and Conditions Thereto
A. Condition. Tenant shall thoroughly inspect the Property and submit a written report on the condition of the property and its permanent improvements to the Administrator immediately prior to commencement of this Lease.
B. Improvements. After conferring with Landlord and obtaining all approvals, licenses, and permits required by this Lease and by law for the improvements, Tenant shall undertake completion of the improvements specified in its management and operations plans. Failure to start and complete the improvements within five years after commencement of this Lease shall constitute a material breach of this Lease.
1. All capital improvements, trail construction and trail relocation shall be in accord with the concept and final conditions of development recommended by the Anchorage Parks and Recreation Advisory Commission (set forth in Appendix C. to this Lease) or the Commission’s amendments to those conditions approved by the Mayor or his designee.
2. Physical development and capital improvements to the Property shall:
a. not be commenced until full funding is in hand to ensure completion of each project, including Spencer Loop re-location;
b. conform to final Planning and Zoning Commission and/or Urban Design Commission approved site plan conditions and requirements, including their conditions and restrictions on tree and natural vegetation clearing and removal and natural habitat; and
c. conform to applicable laws and regulations and have and conform to all permits, licenses and inspections required by law.
C. Tenant agrees that Landlord shall have no obligation to improve, repair, restore, refurbish, or otherwise incur any expense to improve and/or change the condition of the Property.
Section 9. Management of Property
A. Mandatory Uses. Tenant shall manage the Property for the operation of a public ski area for the benefit of the general public.
B. Permitted Uses. Tenant may make the Property available to conduct activities compatible with park and recreational use and existing or permitted improvements, including but not limited to any or all of the following activities: alpine and/or cross-country skiing, snowboarding, ice skating, horseback riding, youth camps, and related activities, sale of food and beverages, and clothing and equipment sales and rentals.
C. Operations and Mitigation of Effects. Year-round operation of the Property’s facilities and trails and the mitigation of adverse effects on the surrounding area, including hours of operation, facility usage and rental, wildlife and snow-making, shall be in accord with operating procedures and policies approved by the Department of Cultural and Recreational Services after review and recommendations by the Anchorage Parks and Recreation Advisory Commission.
Section 10. Non-exclusive Use and Control of Property; Use by Others
A. Non-exclusive Use/Control This Lease creates in Tenant a non-exclusive interest in the Property. Tenant agrees that Landlord may, at its sole discretion, choose to allow other organizations access to the park for purposes benefiting Landlord. Tenant acknowledges that the Property is a part of the Far North Bicentennial Park, and as such is intended by Landlord to provide various recreational opportunities to the public. Such activities may include, but are not limited to, equestrian, hiking, biking, and cross-country skiing. Tenant recognizes that adjacent recreational activities may at times result in some intrusion upon the Property, but the parties agree that the public shall not have the right to use the Property for purposes other than those permitted by Landlord under this Lease or as Landlord may, from time to time, permit in its unfettered discretion. On behalf of Landlord, Tenant shall deny use of the Property for unauthorized purposes. Landlord and Tenant will cooperate in attempting to control unauthorized use of the Property.
B. Public Access. The Property shall remain open to the public and Tenant’s use of the Property shall be non-exclusive, it being the intent of the parties that others (including but not limited to vendors or concessionaires authorized by Landlord) be permitted to access and use the Property in a manner permitted by Landlord and not inconsistent with Tenant’s use under this Lease. Trails, lodge/chalet, parking, and recreational facilities of the Hilltop Ski Area shall be open to the public in accordance with the parks and recreation facility policies of the Department of Cultural and Recreational Services, after review and recommendations by the Anchorage Parks and Recreation Advisory Commission. Tenant shall make the Property available to community groups.
C. Reservation of Access. Landlord retains the right to reasonable access to the Property, as well as reasonable use of the Property in conjunction with the construction, repair, or maintenance of the utilities or facilities. Landlord, at its own cost, will return the Property to its pre-existing condition after each entry. Landlord retains the right to designate or grant rights-of-way or utility easements across the Property without compensation, provided that Tenant shall be compensated for the taking or destruction of any improvements installed by Tenant at its expense during the term of this Lease, and provided further that Tenant at its option may terminate the Lease.
1. Landlord, its authorized representatives, agents and employees shall have the right to enter upon the Property at any reasonable time for the purpose of inspection of the Property, facilities and equipment and for observation of Tenant’s operations (except in an emergency in which case at any hour) to:
a. Inspect the Property;
b.. Clean, repair, maintain, alter or improve the Property as Landlord may deem necessary;
c. Show the Property to prospective contractors, or lenders;
d. Abate any nuisance, health or hazardous condition on the Property; and,
e. Preserve and protect the Property.
2. The right of access reserved herein does not impose, nor does Landlord assume by reason thereof, any responsibility for the care, maintenance or supervision of the Property or the design, installation or maintenance of any improvements thereon. Tenant shall not be entitled to any abatement or reduction in rent by reason of Landlord’s access.
Section 11. Security of Property
Tenant shall take all reasonable precautions to prevent unauthorized entry onto the Property including the placing of signs, fences or other devices intended to deter or restrict such entry. The construction of a perimeter fence shall not be necessary. At a minimum, Tenant shall construct or install barriers, gates or other similar devices across roads, driveways, paths, or trails that are intended to prevent or deter unauthorized vehicular traffic from entering the Property. Keys to locking gates, fences, and barriers shall be provided to Landlord by Tenant.
Section 12. Financial Reporting
Tenant shall submit to Landlord a financial statement detailing the gross revenues for the three months of the most recent calendar quarter within forty-five (45) working days after the end of each quarter. Such statements shall contain a breakdown of the gross receipts by the activity that produced such receipts. In addition Tenant shall annually submit to Landlord a financial statement of revenues for the twelve (12) month period of May 1 through April 30 within three months after the period ends. Tenant, upon request by Landlord, will provide a list of annual capital improvements and the approximate cost of those improvements. The statements to be provided by Tenant herein shall be reviewed by Tenant’s accountants (whether audited or unaudited) in accordance with Tenant’s usual business practices from time to time.
Section 13. Records Management
A. Records. Tenant shall, with respect to both lift tickets sold and all other business activities conducted on the Property, keep true and accurate accounts, records, books, and data in a form consistent with good accounting practices. Such accounts, records, books, and data shall, among other things, contain a breakdown of gross receipts and sales from the various activities taking place on the Property. Tenant shall require that any consignees, subcontractors, or others conducting any revenue producing activity on the Property keep and provide Landlord with copies of accurate and complete records and accounts in accordance with this paragraph.
B. Inspection of Records. Tenant shall keep intact for at least five (5) years all of Tenant’s records and other materials that Tenant is required to maintain hereunder. Tenant hereby agrees that Landlord, its employees, agents and representatives, at all reasonable times, shall have the right to inspect and examine all such records in order to enable Landlord to ascertain the amount of Tenant’s gross receipts. To the extent Landlord is required or allowed under federal, state, or municipal law to obtain other information from records kept by Tenant under this contract, Landlord may make a written request for such information.
C. Ownership, Publication, Reproduction and Use of Material. Except as otherwise provided in this Lease, all data, documents and materials produced by Tenant under this Lease shall be the property of Landlord, which shall retain the exclusive right to publish, disclose, distribute and otherwise use, in whole or in part, any such data, documents or other materials. Exclusive rights shall not be attributed to portions of such materials presently in the public domain or which are not subject to copyright.
D. Audit. Landlord may, once in any contract year, cause an audit of Tenant’s gross receipts derived under this Lease (including the operations of any concessionaire or subcontractor) to be made by a Certified Public Accountant (CPA) of Landlord’s selection or Landlord’s Internal Auditor. If the report of gross receipts previously made by Tenant for any Year of this Lease shall be found to be deficient by more than five percent (5%) of Tenant’s gross receipts shown by such audit, Tenant shall immediately pay the cost of such audit along with any other sums shown thereby to be due Landlord. Otherwise, the cost of such audit shall be paid by Landlord, including Tenant’s documented expenses incurred in preparing for and submitting to such audit. A refund to Tenant of an overpayment, if any, shall be made within thirty (30) days of the audit report. Tenant shall be entitled to receive copies of all audit(s), whether conducted by internal or external auditors. In addition, Landlord’s internal auditors shall have access to Tenant’s books and records for purpose of review at any time.
E. Public Information. Landlord reserves the right, in accordance with Anchorage Municipal Code 3.90 as amended, to publish or otherwise make known to the public the results of any audit, or financial information acquired and in its possession in conjunction with this Lease, which shall be limited to verifying gross receipts, i.e. lift ticket sales, special programs, food, misc., required to be reported under the terms of this Lease. Tenant acknowledges that all records and information in the possession of Landlord may be made available for public inspection and copying, and that unless Tenant conspicuously marks any submittals to Landlord as "Confidential" and the same are in fact to be held confidential as a matter of law, the same may be made available to the public..
Section 14. Budget, Plans and Reporting Requirements
A. Prior to beginning operations, Tenant shall provide a management plan and an operations plan, for Landlord’s approval. The business plan of Tenant for the operation and development of the Hilltop Ski Area shall be subject to inspection and approval by the Department of Cultural and Recreational Services after review and recommendations by the Parks and Recreation Advisory Commission. Upon such approval, which shall not be unreasonably withheld, Tenant shall manage and operate the area pursuant to such plans. At any time that Tenant desires to amend such plans or significantly alter its management or operations, a revised management plan or operations plan shall be submitted to Landlord for approval prior to implementation.
B. Scheduling. The parties agree that Tenant has the right to pre-schedule events and offer reservations to select groups.
C. Fees and Charges. Fees and charges for products and services shall be established by Tenant, a copy of which shall be provided to the Administrator.
Section 15. Indemnification
A. Tenant, its subcontractors, assigns and all others acting at the direction, request or authority of Tenant, shall keep, defend, indemnify and hold harmless Landlord and all of its officers, agents, employees, attorneys (in-house and outside) and each of them, from and against any and all costs, claims, actions, proceedings, liability, damage or expense (including expense of legal services) of any kind or nature claimed by anyone by reason of injury or damage to persons or property arising out of Tenant’s performance under this Lease, or the provision of services pursuant to this Lease, or as a proximate result of acts or omissions of Tenant or its agents, servants, employees or anyone acting at the direction, request or authority of Tenant.
B. Tenant shall also assume the defense of, and indemnify and hold harmless Landlord and all of its officers, agents, employees and attorneys (in-house or outside), against and from any and all liens, claims, liabilities, actions, proceedings and charges of every nature and kind that may at any time be established against the Property and improvements, or any part thereof, as a consequence of an act or omission of Tenant, its subcontractors, Tenants, agents assigns, or anyone acting at the direction, request or authority of Tenant, or as a consequence of the existence of Tenant’s interest under this Lease. Each party hereto shall give to the other prompt and timely written notice of any claim made or suit or proceeding instituted within its knowledge that in any way, directly or indirectly, contingently or otherwise, affects or might affect the other party; and both Landlord and Tenant shall have the right to participate in the defense of the same to the extent of their own interest.
Section 16. Insurance
A. Tenant shall maintain in good standing the insurance described in paragraph B of this section. Before rendering any services under this Lease, Tenant shall furnish the Administrator with proof of insurance in accordance with paragraph B of this section in a form acceptable to the Risk Manager for Landlord.
B. Tenant shall provide the following insurance:
1. Worker's Compensation and employer’s liability coverage as required by Alaska law.
2. Comprehensive general liability, including contractual and personal injury coverage - one million dollars ($1,000,000.00), combined single limit to include Premises, Property, operations, products, blanket contractual, broad form property damage, independent Contractors and personal injury.
3. Comprehensive automobile liability insurance - one million dollars ($1,000,000.00) combined single limit to include owned, hired and non-owned vehicles.
4. Casualty insurance-replacement of improvements - Tenant will keep all buildings upon the Property, including improvements under construction, insured against loss of fire, vandalism and malicious mischief in an amount equal to the full replacement value thereof as hereafter determined from time to time. Not less frequently than once every Year Tenant shall obtain and provide to Landlord an estimate of replacement value of said structures and improvements. The value redetermination shall be made promptly and in accordance with the rules and regulations and/or practices of any board of underwriters or like board or body recognized and accepted by the insurance company or companies writing such insurance, and Landlord shall be notified in writing promptly of the results of said redetermination.
C. Each policy of insurance required by this section shall provide for no less than thirty (30) days advance notice to Landlord prior to cancellation.
Each liability policy shall name Landlord as additional insured.
Section 17. Notices
A. All notices to be given hereunder shall be in writing and shall be deemed given when personally delivered, sent via facsimile (Fax) or when deposited in the United States Postal Service mail, postage prepaid, certified receipt requested or registered and addressed as follows:
LANDLORD TENANT
Municipality of Anchorage Youth Exploring Adventure, Inc.
Director, Cultural and Recreational Services Attention: CEO
Post Office Box 196650 7015 Abbott Road
Anchorage, AK 99519-6650 Anchorage, AK 99516
FAX: 343-4318 FAX: 346-3391
AND
Municipality of Anchorage
Manager
Post Office Box 196650
Anchorage, AK 99519-6650
FAX: 343-4110
B. *Notices are effective upon the earlier of receipt or proof of good transmission (facsimiles only).
Section 18. Assignment
A. Assignment. Tenant shall not assign this Lease or any interest herein, or permit any concession or third party to conduct any portion of Tenant’s required operational obligations of the Property, without the prior written consent of Landlord, which consent may be withheld in the sole and unfettered discretion of Landlord, for any cause or for no cause. Any assignment without Landlord’s prior written consent shall be voidable by Landlord and shall, at the option of Landlord, be deemed a breach of this Lease allowing for immediate termination of the Lease. No consent to any such assignment shall constitute a waiver or discharge of the provisions of this paragraph except as to the specific instance covered thereby.
B. Security Assignment. Tenant shall have the right to assign this Lease for security purposes to a lender or lender's trustee to finance required and optional improvements, thereby enabling the lender or assignee for security purposes to acquire or assume the Lease and enabling the lender to assign the Lease after so acquiring it, under the same terms and conditions as this Lease provides, subject to Landlord’s approval, not to be unreasonably withheld, and to applicable requirements of the Anchorage Municipal Code as amended, if any. Notice of any such assignment for security purposes shall be delivered in writing to Landlord, along with a copy of any notes, UCC filings or any other document pertaining to such assignment within five (5) days of the effective date of such assignment. In addition, any such assignment for security purposes shall require the assignee thereof to notify Landlord herein upon the occurrence of a breach or default by Tenant of the terms of the assignee's security instrument, and further require notice of default be given to Landlord at the same time notice is given to Tenant and prior to the assignee taking management of the Property or offering the interest for sale based upon any such breach or default. To be valid, the assignment must give Landlord the right to cure on the same terms as given to Tenant.
Section 19. Risk of Loss
Tenant shall bear the risk of loss for any improvements installed or constructed on the Property and for any property Tenant brings to the Property in the event that such improvements or property are damaged or destroyed, in whole or in part, by whatever cause. Tenant shall bear the risk of loss the Property in the event that the Property is damaged or destroyed, in whole or in part, by reason other than Landlord’s sole negligence or otherwise wrongful conduct.
Section 20. Reporting of Accidents
If a loss or damage occurs during the term of this Lease to any structure and/or improvement on the Property, Tenant shall give immediate notice to Landlord. In the event of damage or destruction to any structures and/or improvements (except due to ordinary wear and tear) on the Property during the term hereof, Tenant shall forthwith repair, restore or rebuild the structures and/or improvements to the same condition as immediately before such damage or destruction, regardless of whether said damage or destruction was insured against and whether the insurance proceeds, if any, payable due to such damage or destruction is sufficient to cover the cost of restoring, repairing or rebuilding.
Section 21. Subcontracts
A. Tenant may enter into subcontracts to purchase goods and services necessary to its performance under this Lease, provided that Tenant and any subcontractor comply with the requirements of this Lease.
B. Every such subcontract of thirty thousand dollars ($30,000.00) or more shall be in writing and contain a precise description of the services or goods to be provided and the nature of consideration paid therefore. Landlord shall be provided with a copy of every subcontract exceeding thirty thousand dollars ($30,000.00) and shall be provided with copies of any other subcontract upon request.
C. Every subcontract exceeding thirty thousand dollars ($30,000.00) shall require the retention of and reasonable access to business records of the Subcontractor relating to the purchase of goods or services under the subcontract.
D. All subcontracts entered with the same individual or entity within any two-year period, or which provide for essentially the same goods or services at different times, shall be aggregated for purposes of determining whether the $30,000.00 approval threshold amount is present.
Section 22. Janitorial, Maintenance, and Repair of the Property
Tenant shall provide at its own cost and expense, all repairs, maintenance and required service on any improvements at the Property. Such maintenance, repairs and service shall be at least of the same quality and nature as that considered industry standard and provided by operators of other similar facilities, and shall be designed to maximize the life cycle of all facilities and improvements upon the Property.
Section 23. Liens on Buildings and Improvements
All buildings and improvements (exclusive of trade fixtures), constructed or placed upon the Property by Tenant, must be kept free and clear of all liens, claims, encumbrances or liability for labor or material. All improvements are the property of Landlord, subject to any lien for security purposes.
Section 24. Liens and Encumbrances Generally
Except for the security interest in this Lease authorized in subsection 18.B., Tenant shall keep the Property and any improvements thereof, free from any and all liens or encumbrances, arising from any work performed or materials furnished, obligations incurred by Tenant, or judgments against Tenant, its employees, agents and contractors, and Tenant agrees to reimburse Landlord for all attorney's fees and costs incurred in defense proceedings to enforce or foreclose such liens.
Section 25. Promotion and Signs
A. Promotion. Tenant shall promote, advertise and otherwise offer to the public the privileges of the area. Any such promotion or advertising shall comply with applicable law and indicate that the area is a municipal facility open to the public.
B. Signs. Tenant will not erect any signs on the Property intended for viewing by persons outside the Property, except not more that two (2) signs informing the public of the direction to the entrance and a sign at that entrance. Tenant may also install signs on the Property intended to prevent trespassing and vandalism, and to guide or regulate activities on the Property. Any signs erected by Tenant shall comply at all times with any law in effect that regulates signs, advertisements, or their content.
C. Inherent Risk Notification. Tenant shall comply with all sections of the Alaska Ski Safety Act of 1994, as amended. Landlord may immediately suspend operations on the Property or suspend its obligations under this Lease if Tenant, its subcontractors, assigns, or agent[s] fails to comply with the Act. A suspension shall start when a written letter detailing the alleged failure is delivered to Tenant and shall not be lifted until the failure is cured or otherwise resolved upon mutual consent. Tenant shall warn the public, including by giving written notice on all ski lift tickets sold or made available and on signs at each lift, about the inherent risks of activities allowed on the Property.
Section 26. Discriminatory Acts Prohibited
A. Tenant shall furnish any service to be rendered by Tenant in connection with or upon the Property on a fair, equal and not unjustly discriminatory basis to all users thereof. In performing such services, Tenant shall charge fair, reasonable and not unjustly discriminatory prices or rates for each unit of service furnished, provided, however, Tenant may make reasonable discounts, rebates, or other similar types of price reductions to employee or volume users, group or prepaid purchasers or as integrated package pricing.
B. Tenant, in its management of the Property, shall not discriminate against any person or class of persons by reason of race, color, age, marital status, ancestry, gender, religion or national origin.
C. Landlord, upon discovery of any violation of paragraph A or B, may request that Tenant either correct or justify any practice or charge alleged as a violation. Tenant shall have at least ten (10) days after the request to respond. In any proceeding whatsoever, the burden of justification shall be on Tenant to show that the practice or charge does comply with the requirements of paragraph A or B. Any service or rates regulated by a State or Federal regulatory agency shall be deemed to be in compliance with the requirements of paragraph A or B until shown to be otherwise in an appropriate proceeding before the agency. Landlord shall submit its findings and decision as to any alleged violation within fifteen (15) days after the receipt of Tenant’s response, and such findings and decision of Landlord shall be final. Unless Tenant shall notify Landlord in writing within ten (10) days of its objections to any request for compliance or to any adverse findings and decision, Tenant shall waive any defense that the alleged violation is justified.
D. Landlord, at its option, may forthwith terminate this Lease, without liability, for failure by Tenant without justification to comply with Landlord’s request for compliance within the time set forth in the request or the findings and decision to correct the alleged violation.
Section 27. Landlord Remedies
A. All rights and remedies of the Landlord herein enumerated shall be cumulative, and none shall exclude any other right or remedy allowed by law. In addition to the other remedies in this Lease provided, the Landlord shall be entitled to the restraint by injunction of the violation or attempted violation of any of the covenants, agreements or conditions of this Lease.
1. If the Tenant shall (a) apply for or consent to the appointment of a receiver, trustee or liquidator of Tenant or of all or a substantial part of its assets, (b) admit in writing its inability to pay its debts as they come due, (c) make a general assignment for the benefit of creditors, (d) file a petition or an answer seeking reorganization or arrangement with creditors or to take advantage of any insolvency law, including but not limited to the federal Bankruptcy Code, (e) file an answer admitting the material allegations of a petition filed against the Tenant in any reorganization or insolvency proceeding, including but not limited to a proceeding commenced pursuant to the federal Bankruptcy Code, or if any order, judgment or decree shall be entered by any court of competent jurisdiction, except for a bankruptcy court or a federal court sitting as a bankruptcy court, adjudicating the Tenant insolvent or approving a petition seeking reorganization of the Tenant or appointing a receiver, trustee or liquidator of the Tenant or of all or a substantial part of its assets, then, in any of such events, the Landlord may give to the Tenant a notice of intention to end the term of this Lease specifying a day not earlier than ten (10) days thereafter, and upon the giving of such notice the term of this Lease and all right, title and interest of the Tenant hereunder shall expire as fully and completely on the day so specified as if that day were the date herein specifically fixed for the expiration of the term.
2. If the Tenant defaults in the payment of rent or any other sum due to Landlord and such default continues for five (5) days after notice, or defaults in the prompt and full performance of any other provision of this Lease and such default continues for five (5) days after notice, or if the Leasehold interest of the Tenant be levied upon under execution or be attached by process of law, or if the Tenant abandons the Property, then and in any such event the Landlord may, at its election, either terminate this Lease and the Tenant’s right to possession of the Property or, without terminating this Lease, endeavor to relet the Property. Nothing herein, including a forcible entry and detainer action, shall be construed so as to relieve Tenant of any obligation, including the payment of Rent, as provided in this Lease.
3. Upon any termination of this Lease, the Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to the Landlord, and hereby grants to the Landlord full and free license to enter into and upon the Property in such event with or without process of law and to repossess the Landlord of the Property as of the Landlord’s former estate and to expel or remove the Tenant and any others who may be occupying or within the Property and to remove any and all property therefrom, using such force as may be necessary, without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer, and without relinquishing the Landlord’s right to rent or any other right given to the Landlord hereunder or by operation of law.
4. Any and all property which may be removed from the Property by the Landlord pursuant to the authority of the Lease or of law, to which the Tenant is or may be entitled, may be handled, removed or stored by the Landlord at the risk, cost and expense of the Tenant, and the Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. The Tenant shall pay to the Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be in the Landlord’s possession or under the Landlord’s control. Any such property of the Tenant not removed from the Property or retaken from storage by the Tenant within thirty (30) days after the end of the term or of the Tenant’s right to possession of the Property, however terminated, shall be conclusively deemed to have been forever abandoned by the Tenant and either may be retained by Landlord as its property or may be disposed of in such manner as Landlord may see fit.
5. The Tenant agrees that if it shall at any time fail to make any payment or perform any other act on its part to be made or performed under this Lease, the Landlord may, but shall not be obligated to, and after reasonable notice or demand and without waiving, or releasing Tenant from, any obligation under this Lease, make such payment or perform such other act to the extent the Landlord may deem desirable, and in connection therewith to pay, expenses and employ counsel. The Tenant agrees to pay a reasonable actual attorney’s fee if legal action is required to enforce performance by Tenant of any condition, obligation or requirement hereunder. All sums so paid by the Landlord and all expenses in connection therewith, together with interest thereon at the rate of ten percent (10%) per annum, or at the maximum rate allowed by law if less, from the date of payment, shall be deemed additional rent hereunder and payable at the time of any installment of rent thereafter becoming due and the Landlord shall have the same rights and remedies for the non-payment thereof, as in the case of default in payment of rent.
Section 28. Non-waiver
The failure of either party at any time to enforce a provision of this Lease shall in no way constitute a waiver of the provisions, nor in any way affect the validity of this Lease or any part hereof, or the right of such party thereafter to enforce each and every provision hereof.
Section 29. Amendment
A. This Lease shall only be amended, modified or changed in writing, executed by authorized representatives of the parties, with the same formality as this Lease was executed and such writing shall be attached to this Lease as an amendment.
B. For the purposes of any amendment to the terms and conditions of this Lease, the only authorized representatives of the parties are:
1. Chief Executive Officer, Youth Exploring Adventure, Inc.
2. Municipal Manager, Municipality of Anchorage
C. Any attempt to amend, modify or change this Lease by either an unauthorized representative or an unauthorized means shall be void.
Section 30. Jurisdiction: Choice of Law
Any civil action arising from this Lease shall be brought in the Superior Court for the Third Judicial District of the State of Alaska at Anchorage. The laws of the State of Alaska shall govern the rights and obligations of the parties under this Lease.
Section 31. Severability
Any provisions of this Lease decreed invalid by a court of competent jurisdiction shall not invalidate the remaining provisions of the Lease.
Section 32. Integration
This instrument and all appendices and amendments hereto embody the entire Lease of the parties. There are no promises, terms, conditions or obligations other than those contained herein; and this Lease shall supersede all previous communications, representations, or Leases, either oral or written, between the parties hereto.
Section 33. Liability
Tenant shall indemnify, defend, save and hold Landlord and it’s agents, employees and attorneys (in-house and outside) harmless from any claims, lawsuits or liability, including attorneys fees and costs, allegedly arising out of loss, damage, or injury to persons or property occurring during the course of or as a result of the drafting, negotiation, execution, approval or implementation of this Lease.
Section 34. Relationship of Parties
Tenant shall perform its obligations hereunder as an independent Contractor. Landlord may administer this Lease and monitor Tenant’s compliance with its obligations hereunder. Landlord shall not supervise or direct Tenant other than as provided in this section.
Section 35. Nondiscrimination
A. Tenant will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, age, sex, or marital status or who is a "qualified individual with a disability" (as that phrase is defined in the Americans With Disabilities Act of 1990). Tenant will take affirmative action to ensure that applicants and employees are treated appropriately in accordance with federal, state, and local civil rights and employment laws. Such action shall include, without limitation, employment, upgrading, demotion or transfer, recruitment or recruiting advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.
B. Tenant shall state, in all solicitations or advertisements for employees to work on the Property, that all qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, ancestry, age, sex or marital status, or mental or physical impairment/disability.
C. Tenant shall comply with any and all reporting requirements that may apply to it that the Anchorage Office of Equal Employment Opportunity Contract Compliance may establish by regulation.
D. Tenant shall include the provisions of this section in every subcontract or purchase order for goods or services provided for or on the Property, so as to be binding upon every such subcontractor, or vendor of Tenant under this Lease.
E. Tenant shall comply with all applicable federal, state and municipal laws concerning the prohibition of discrimination including, but not limited to, Title 5 and Title 7 of the Anchorage Municipal Code. Tenant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this section.
Section 36. Permits, Laws, Taxes
A. Tenant shall acquire and maintain in good standing all permits, licenses and other entitlements necessary to its performance under this Lease. All actions taken by Tenant under this Lease shall comply with all applicable statutes, ordinances, rules, and regulations. Tenant shall pay all taxes pertaining to its performance under this Lease.
B. Tenant’s Obligation to Pay. During the term of this Lease, Tenant agrees to pay, unless exempt, prior to delinquency, all taxes and assessments (including general and special) levied or assessed against the Property and its equipment used in the Tenant’s operations. This includes without limitation, taxes and assessments on all structures, improvements and fixtures, now or hereafter existing on the Property, and on any personal property in or on the Property. It is understood, however, that Tenant may pay any such taxes and/or assessments under protest, and without liability, cost or expense to Landlord, in good faith to contest the validity of amount thereof. In the event Tenant shall be unsuccessful in any such protest, such taxes, and any interest or penalties thereon shall be paid by Tenant as required. Tenant hereby agrees to hold Landlord harmless from all costs, expenses, interest and penalties resulting from Tenant’s protest.
C. Substituted Taxes. If at any time during the contract term, a tax, however described, is later assessed against Landlord on the fees or any portion thereof payable hereunder as a direct substitute, in whole or in part, for any of the taxes that Tenant is obligated to pay under paragraph A, Tenant agrees to pay such tax on or before the last day upon which same may be paid prior to delinquency.
Section 37. Holdover
In the event Tenant shall hold over after the expiration or termination of this Lease for any cause whatsoever, Tenant shall hold Anchorage Harmless from all damages resulting from Tenant’s failure to surrender the Property, including, without limitation, claims made by any other person or entity arising, directly or indirectly, from Tenant’s failure to surrender the Property. Tenant shall pay for any holdover period an amount equivalent to the rental rate based on gross receipts in existence immediately prior to such holdover period and shall pay said amount on the first day of each month.
Section 38. Abandonment and Untenantability
A. Abandonment. If Tenant abandons the Property without prior written consent, this Lease may be immediately terminated by Landlord.
B. Untenantability. If at any time during the term of this Lease the Property or improvements thereon are damaged or destroyed by fire, earthquake, or any other natural disaster to such a degree that they are no longer tenantable or suitable for the intended uses, either Tenant or Landlord may, at its option, terminate this Lease.
Section 39. Eminent Domain
A. Whole Property Taken. If the whole of the Property shall be taken for any public or quasi-public use under any statute, or by right of eminent domain, or by private purchase by a public authority in lieu of the exercise of eminent domain, then the term of this Lease hereby granted shall cease and expire on the date when possession shall be taken thereunder. All fees, taxes and other charges shall be prorated and paid to such date.
B. Partial Property Taken. If only a part of the Property is so taken and the part not so taken is sufficient for the reasonable operation of the ski area, this Lease shall remain unaffected except that Tenant shall promptly after such taking, and at Tenant’s expense, restore that part of any building or ground improvement, including landscaping and natural vegetation, to as near its former condition as the circumstance will permit.
1. Landlord agrees to contribute to the cost thereof a sum not exceeding in any event that part of the net award actually received by Landlord, after deduction of reasonable expenses of collection, which is specifically attributed to the damage to or taking of said improvement by the condemnation court, or, if not so attributed, as is determined by Lease by the parties.
C. Division of Award. In the event of such taking, whether of all or any part of the Property and regardless of whether this Lease survives, any award of compensation shall be divided between Landlord and Tenant according to their respective interests as determined by the court, subject to the limitation that Tenant shall under no circumstances be entitled to any portion of the proceeds in excess of that required to fully pay any secured lender which has financed improvements to the Property as permitted herein.
Section 40. Force Majeure
If either party is delayed in or prevented from performing any act required hereby by reason of acts of God, restrictive governmental laws or regulations, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act will be excused for the period of the delay or completely excused, as the case may be. However, nothing in this paragraph excuses Tenant from the prompt payment of any fees due.
IN WITNESS WHEREOF, the parties have executed this Lease on the dates shown below:
MUNICIPALITY OF ANCHORAGE YOUTH EXPLORING ADVENTURE, INC.
LANDLORD TENANT
_______________________________ ____________________________________
George J. Vakalis Steve Remme
Municipal Manager Chief Executive Officer
Date: __________________________ Date: _______________________________
ATTEST:
_______________________________
Lejane Ferguson
Municipal Clerk
Date: __________________________
| STATE OF ALASKA | |
| ss. | |
| THIRD JUDICIAL DISTRICT |
THIS IS TO CERTIFY that on the ____ day of __________, 2000, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared George J. Vakalis, known to be the Municipal Manager of Municipality of Anchorage, a municipality existing under the laws of the State of Alaska and named in the foregoing instrument, and he acknowledged to me that he had, in his official capacity, executed the foregoing instrument as the free act and deed of the said organization for the uses and purposes therein stated.
WITNESS my hand and official seal the day and year in this certificate first above written.
| NOTARY PUBLIC in and for Alaska | |
| My Commission Expires: __________ |
| STATE OF ALASKA | |
| ss. | |
| THIRD JUDICIAL DISTRICT |
THIS IS TO CERTIFY that on the ____ day of __________, 2000, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared STEVE REMME, known to be the Chief Executive Officer of Youth Exploring Adventure, Inc., an organization existing under the laws of the State of Alaska and named in the foregoing instrument, and he acknowledged to me that he had, in his official capacity, executed the foregoing instrument as the free act and deed of the said organization for the uses and purposes therein stated.
WITNESS my hand and official seal the day and year in this certificate first above written.
| NOTARY PUBLIC in and for Alaska | |
| My Commission Expires: __________ |
APPENDIX A. (USKH Map Of Property)
to
Lease Agreement entered into the____ day of _______, 2000, by and between the Municipality of Anchorage (Landlord) and Youth Exploring Adventure, Inc.
APPENDIX B. (YEA, Inc. Corporate Resolution)
to
Lease Agreement entered into the____ day of _______, 2000, by and between the Municipality of Anchorage (Landlord) and Youth Exploring Adventure, Inc.
RESOLUTION
Upon motion duly made, seconded, and carried, it was:
RESOLVED, that the corporation, YOUTH EXPLORING ADVENTURE, INC. enter into a lease agreement with the Municipality of Anchorage, in substantially the form attached hereto, subject to public voter approval as contemplated by Anchorage Ordinance 2000-43(am); and
RESOLVED, that Steve Remme, in his capacity as chief executive officer of the corporation, be authorized to execute such lease, negotiate or approve any modifications thereto, and otherwise act on behalf of the corporation in performing under such lease, unless and until such authority is revoked in writing by the Board of Directors of the corporation with notice to the Landlord.
IN WITNESS WHEREOF we have hereunto set our hands as officers of said corporation, in the capacity of Secretary and President respectively, and affix the corporate seal this ___ day of _____________, 2000.
| YOUTH EXPLORING ADVENTURE, INC. | ||||
| Dated: | By: | |||
| Its: | Secretary | |||
| Dated: | By: | |||
| Its: | President | |||
APPENDIX C.
(Anchorage Parks and Recreation Advisory Commission Conditions)
to
Lease Agreement entered into the____ day of _______, 2000, by and between the Municipality of Anchorage (Landlord) and Youth Exploring Adventure, Inc.
Initial Concept Approval Conditions
1. That impacts to adjacent residential areas be more particularly identified and mitigated if at all possible.
2. That both full funding be in hand prior to beginning construction work to ensure completion of the project and that a site restoration bond be posted to ensure that site re-vegetation is completed in a timely manner.
3. That impacts to other ski areas be identified and addressed in such a manner as to minimize any economic harm which might threaten to close other ski areas as a result of this project moving forward.
4. That a detailed business plan be prepared by Tenant and reviewed by a Certified Public Accountant demonstrating to the public and the Municipality that projected revenues will cover anticipated operating costs.
5. That the proposed restaurant be included continent on receipt of formal written approval from BLM concurring that this use is consistent with the original recreational and related facilities stipulation of conveyance of the park to the Municipality if it is determined to be necessary by the Municipal Attorney.
6. That the Spencer Trail be redesigned to the satisfaction of the Municipality and to meet F.I.S. Standards in effect at the time of construction of the project, so as to provide an acceptable Olympic caliber racing trail that closes on itself and avoids the heavily used novice lighted loop.
7. That existing and future ski jump facility needs be carefully inventoried to determine the requirements of that program to ensure that Tenant’s expansion project will in no way hinder the growth and development of ski jumping in Anchorage.
8. That Tenant’s Agreement be specifically revised to recognize that all permanent buildings and facilities developed by Hilltop as part of this proposal, be considered municipal property for the purpose of allowing the Municipality to support the long term maintenance of these buildings. The amended use agreement should also include reinstatement of the standard concessionaire fee routinely charged all other non-profits using park facilities, as a way to offset associated municipal costs for providing support administration, staffing, operations, and maintenance.
Final Concept Approval Conditions
9. Prior to commencing construction on any phase of the project, Tenant shall submit to the Municipality for its approval:
a. Tenant’s plans (construction design documents) for that phase of the project;
b. Tenant’s budget for that phase of the project;
c. Written proof of funds on hand or commitments of financing, or both,
adequate to complete that phase of the project; and
d. Adequate payment and performance bonds.
10. Construction shall not commence until the Municipality is reasonably satisfied that Tenant has in place a plan and the financial wherewithal to complete that particular phase of the project. The Municipality shall indicate its approval or disapproval in writing.
11.. If the Spencer cross-country ski trail is to be relocated, in whole or in part, because of this project, Options A or B, or some combination thereof are acceptable so long as the relocated trail meets current FIS standards. Option C is rejected. Tenant’s construction of the second ski lift and relocation of the Spencer cross-country ski trail shall be considered a single phase of the project.
12. Th Final Approval by the Anchorage Parks and Recreation Advisory Commission expires as to any phase of the project on which construction has not been approved by the Municipality and commenced within five (5) years of January 1, 1999.
From an unattributed source, the following is a Hilltop Status Report (received 6/29/00)
| ITEM | STATUS |
| Civil Site Drawing | Ready for permit application 6/21/00 |
| Architectural Drawings | Ready for permit application 6/20/00 |
| Structural Drawings | Ready for permit application 6/23/00 |
| Mechanical Drawings | Design by Subcontractors - not selected |
| Electrical Drawings | Design by Subcontractors - not selected |
| Application to DEC for septic system | Ready for permit application 6/21/00 |
| Planning and Zoning Meeting - consent agenda | Scheduled for July 17,2000 |
| Parks & Recreation Commission (submittals 2 weeks in advance) | Scheduled for July 13,2000 |
| Contract and Pay Estimate #1 | To be executed June 21, 2000 |
George Matz of the Audobon Society has been persistent in keeping an eye on the progress of the ski slope expansion. Some of his letter follow.
September 7, 2000
Mr. Harold Snow, Chair
Parks and Recreation Advisory Commission
Municipality of Anchorage
PO Box 196650
Anchorage, AK. 99519
Dear Chairman Snow:
I made an appearance before the August 10th meeting of the Parks
and Recreation Advisory Commission to discuss questions that the
Anchorage Audubon Society has with some of the language in
Proposition 1, which was approved by the voters in the April
election thereby allowing a long-term lease for the Hilltop Ski
Area. As I have previously expressed to you, the gist of
Anchorage Audubon’s concerns is the impact that the
expansion of the ski are will have on wildlife habitat and
populations. Commission members at the meeting seemed interested
in the points I made, but mentioned that they will not be in a
position to address these issues until they are asked to approve
Hilltop’s plan. Meanwhile, the acting chair ask me to state
our concerns in a letter to you so that it will be on the record
and be considered at a more appropriate time.
The language I refer to is under the Proposition 1 Terms and
Conditions of Lease that was advertised in the paper prior to the
vote.
6. All capital improvements, trail construction and trail
relocation shall be in accord with the concept and final
conditions of development recommended by the Anchorage Parks and
Recreation Commission…..
Obviously, the Commission must approve the ski expansion plans
before any development can begin, even preparatory efforts like
surveying. What I specifically asked about was how the Commission
plans to address impacts on wildlife as required by the following
Terms and Conditions (emphasis added);
7. Physical development and capital improvements to the Hilltop
Ski Area shall….(b) conform to final Planning and Zoning
Commission and /or Urban Design Commission approved site plan
conditions and requirements, including their conditions and
restrictions on tree and natural vegetation clearing and removal
and natural habitat.
8. Year-round operation of the Hilltop Ski Area facilities and
trails and the mitigation of adverse effects on the surrounding
area including…. wildlife…shall be in accord with
operating procedures and policies approved by the Department of
Cultural and Recreation Services after review and recommendations
by the Anchorage Parks and Recreation Advisory Commission.
During my appearance I stated that the residents of Anchorage
highly appreciate the presence of wildlife in their urban area. I
referred to a survey described by the Alaska Department of Fish
and Game in a recent report entitled "Living with Wildlife
in Anchorage: A Cooperative Planning Effort" (see
attachment). To cite just one statistic, 98% of the respondents
said that they appreciate the presence of wildlife in the
Anchorage area. The report indicates that Anchorage’s
network of greenbelts and blocks of open space provide essential
habitat for wildlife. Given the strong public support for
wildlife and that many of the best opportunities to observe
wildlife in the Anchorage bowl are on Municipal lands, it makes
sense that this type of recreation be of prime interest to the
Parks and Recreation Commission.
I also mentioned that the combination of Hillside Park and the
Campbell Tract provides unique wildlife viewing opportunities for
both Anchorage residents and visitors. Species that are normally
associated with a wilderness setting, such as bears, wolves, and
lynx can be seen in this area. To provide a point of view from a
world renown wildlife expert who is familiar with Anchorage, I
referred to Dr. Stephen Herraro, University of Calgary, who was
the keynote speaker at last years Alaska Bear Festival. He said,
"I see the situation in Anchorage as being absolutely world
class and unique…The long and short of it is if you’ve
got a bear population, best thing to do is to hang on to
it."
It is important to realize that the expansion of the Hilltop Ski
Area and the relocation of Spencer Loop would occur on a stretch
of forested land that may appear to be relatively small but it is
strategically located and provides an important travel corridor
for wildlife. This corridor connects Hillside Park and
Bicentennial Park to the much larger area in Chugach State Park
and allows bears and other large animals to freely move between
the two areas. The combination of the 30 acre clearing for the
downhill slopes and the wider and more concentrated network of
trails for the relocated Spencer Loop would fragment most of the
forest in this travel corridor. Biologist know that forest
fragmentation can have serious impacts on a variety of wildlife
species, particularly large animals. Allowing the loss of this
corridor for wildlife would not be "hanging on" to one
feature of Anchorage which truly is world class.
The expansion of the Hilltop Ski Area will also result in the
loss of locally important habitat for a variety of forest birds,
including some neotropical songbirds whose population trends are
of national concern. The expansion area also has a high
concentration of woodpeckers, some species being relatively rare.
Most of the area that would be cleared for the ski slope
expansion is not just beetle-killed spruce, but a boreal forest
with a mixed composition of species and age classes. Although
many mature spruce have died, leaving some dead tress provides
habitat for various cavity nesters. Some of these cavity nesters
(woodpeckers) provide important defense against insect
infestations. Most clearcuts nowadays leave at least a few snags
per acre. Clearing for a ski slope could have greater impact than
clearcutting since, obviously, snags will not be left nor will
there be any new forest growth. The vegetation that will be
allowed will be grass, which incidentally, creates greater fire
risk than dead spruce.
Hillside Park is not only a favorite spot for local birders but
one of the places that out-of-state birders make a point of
visiting. Every spring and summer, many small groups of avid
birders meet in Anchorage to begin trips to exotic places like
the Aleutians or Saint Paul Island. These groups usually spend a
day or two in the Anchorage area and Hillside Park is a priority
place to visit. In addition, there are many birders who visit
Anchorage on their own and know about Hillside because of the
Anchorage Audubon web site or our book "Field Guide to
Birding in Anchorage" which states, "Hillside Park is a
densely forested area very good for northern woodland
species." In fact, I would venture to say that there are
many more out-of-state birders who visit Hillside Park then there
are out-of-state skiers who visit Hilltop Ski Area. But, because
you don’t need to buy a ticket or a license to go birding,
there is no information on the level of this activity or its
economic impact. Nevertheless, the Commission should not ignore
the importance of Hillside Park to birders.
Another impact that was not previously addressed is the damage
that the relocated Spencer Loop trails might have on anadromous
fish in Campbell Creek. The size of trail being discussed for FIS
certification is actually more like a road than a trail. Given
the slopes and the nearby presence of an anadromous stream, this
could increase erosion and siltation in salmon spawning areas.
The trail map that was released during the Assembly hearings
indicated that there would be cuts in the slope, further
increasing the potential for erosion. Any trail layout should be
reviewed by someone familiar with mitigation of fish impacts from
roads.
Before the Commission meeting, I got a call from Dave Gardner of
Parks and Beautification to confirm my appearance. After
discussing the reason for the appearance, he suggested I call
Mary Ann Beacham, who is handling the Hilltop lease, to make sure
these issues have not already been addressed. When I called Mary
Ann, she said that the only thing approved so far is construction
of the new chalet. She said that if Hilltop Ski Area decides to
expand the ski area, the Municipality has a policy regarding
harassment of wildlife and wetlands that will be followed. I
mentioned that the wildlife issues we are concerned with
don’t fall under either category, therefore it may be that
current Municipality policy does not address the wildlife impact
language stated in the Proposition.
Although Youth Exploring Adventure, Inc. (YEA), the Hilltop lease
holder, made public comments before the election that the ski
slope expansion would not impact wildlife, it is not clear what
they were referring to or that these statement were supported by
professional biologists. Given the mandate that the Assembly gave
the Commission to consider impacts to wildlife and its habitat,
we suggest that either the Commission require YEA to have their
expansion plans reviewed by professional biologists or that the
Commission seek the advice of professional biologists when it
comes time to review Hilltop’s plans. Be aware however, that
a professional assessment of wildlife impacts is usually based on
field studies. Unless site specific data already exists, field
studies take a long time to plan and implement.
Anchorage Audubon will be pleased to offer any advice that is
appropriate for us. However, we are a volunteer organization and
don’t have the resources to determine wildlife impacts that
might result from this project. We believe that this is the
responsibility of the project developer. We look forward to being
notified if and when YEA presents a ski expansion plan to the
Commission for approval.
Sincerely,
George Matz, President
cc Parks and Recreation Commission
Dave Poisy, Cultural & Recreational Services Department
Dave Garner, Cultural & Recreational Services Department
John Rhoda, Cultural & Recreational Services Department
Municipal Assembly
April 18, 2000
Mr. Harold Snow, Chair
Parks and Recreation Advisory Commission
Municipality of Anchorage
PO Box 196650
Anchorage, AK. 99519
Dear Mr. Snow:
As you know, Proposition 1, which provides a long-term lease to
the Hilltop Ski Area, was approved by the voters at the last
municipal election. The proposition lists a number of terms and
conditions for the lease. Term 8 states, in part, that the
"mitigation of adverse effects on…wildlife" shall
be in accord with operating procedures and policies approved by
the Department of Cultural and Recreational Services after review
and recommendations by the Anchorage Parks and Recreation
Advisory Commission."
The Anchorage Audubon Society has repeatedly expressed concern
about the impact that the expanded Hilltop Ski Area will have on
wildlife, an important and unique feature of Anchorage. We have
not been pleased with either the Municipalities or Hill
Top’s understanding of wildlife issues or the lack of any
mitigation for the impacts that are likely to occur as a result
of clearing 30 acres of forest for additional ski slopes as well
as the fragmentation of additional forest habitat that would
occur with a relocated Spencer Loop. The little attention that
has been given to this impact seems to address only moose, which
is the species we are least concerned with.
The purpose of this letter is to inquire about Municipality
operating policies and procedures that relate to wildlife
impacts. Please let us know how you intend to comply with this
part of the lease. We will be more than willing, if so requested,
to give you further details about the types of wildlife impacts
that we are most concerned with.
Sincerely,
George Matz, President
cc Mayor Mystrom