FIVE-YEAR REVIEW REPORT FOR
KETCHIKAN PULP COMPANY SUPERFUND SITE
KETCHIKAN, ALASKA
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Prepared by
U.S. Environmental Protection Agency
Region 10
Seattle, Washington
Cami Grandinetti
Program Manager, Remedial Cleanup Program
Date
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TABLE OF CONTENTS
LIST 01 ABBREVIATIONS v
EXECUTIVE SUMMARY 1
Five-Year Review Summary Form 2
1 INTRODUCTION 4
2 SITE CHRONOLOGY 5
3 BACKGROUND 7
3.1 Physical Characteristics 7
3.2 Land and Resource Use 9
3.3 History of Contamination 11
3.4 Initial Response 12
3.5 Basis for Taking Action 12
4 REMEDIAL ACTIONS 14
4.1 Marine OU Remedy Selection 14
4.2 Marine OU Remedy Implementation 14
4.3 Marine OU Long-Term Monitoring and Reporting 18
4.4 Uplands OU Remedy Selection 20
4.5 Uplands OU Remedy Implementation 20
4.6 Uplands OU Long-Term Monitoring and Reporting 21
5 PROGRESS SINCE THE LAST FIVE-YEAR REVIEW 22
6 FIVE-YEAR REVIEW PROCESS 23
6.1 Administrative Components/Community Involvement/ Document Review 23
6.2 Data Review - Marine OU 23
6.3 Data Review - Uplands OU 25
7 TECHNICAL AS SES SMENT 27
7.1 Question A: Is the Remedy Functioning as Intended by the Decision Documents?
27
7.2 Question B: Are the Exposure Assumptions, Toxicity Data, Cleanup Levels, and
Remedial Action Objectives (RAOs) used at the Time of the Remedy Still Valid?
28
7.3 Question C: Has any Other Information Come to Light that Could Call into Question
the Protectiveness of the Remedy? 29
7.4 Technical Assessment Summary 29
8 SUMMARY OF ISSUES & RECOMMENDATIONS/FOLLOW-UP ACTIONS.. 30
9 PROTECTIVENESS STATEMENT 31
10 NEXT FIVE-YEAR REVIEW 31
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LIST OF TABLES
Table 1 Chronology of Site Events
Table 2 Action Items That Do Not Affect Remedy Protectiveness
LIST OF FIGURES
Figure 1 Ward Cove Property Location
Figure 2 Marine and Uplands Operable Units, former Ketchikan Pulp Company Site,
Ketchikan, Alaska
Figure 3 Location of the Ward Cove Area of Concern (AOC), areas of thin layer
placement, dredging, piling removal, and natural recovery (Figure 2, from
2009 Final Remedial Action Report)
LIST OF ATTACHMENTS
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
Attachment 7
Attachment 8
Attachment 9
Attachment 10
Attachment 11
Attachment 12
Attachment 13
Attachment 14
Attachment 15
Attachment 16
Interview Records
Site Inspection Checklist and Building Map
Photographs
Map of Ward Cove Properties
Ketchikan Pulp Site Parcels Ownership Changes from 2010-2015
Ward Cove Plat and Replats
Zoning Areas and Regulations
Commitment for Title Insurance
Letter from Perkins Coie, to Jacques Gusmano, EPA dated June 27, 2006,
regarding Institutional Control Documents for Ward Cove Pipeline Parcels
Equitable Servitude and Easement, and Subordination Agreement Pipeline
Parcels, by Ketchikan Gateway Borough to ADNR, recorded May 1, 2006
2003 Agreement between Ketchikan Gateway Borough, Gateway Forest
Products, and Ketchikan Pulp Company, recorded July 16, 2008
Ketchikan Pulp Company Residential Risk Calculation
Certification of Completion Letters for Uplands and Marine Operable Units,
dated January 21 and 22, 2010
Letter from Sheila Eckman (EPA) to KGB (Bockhorst) and Alaska Assistant
Attorney General (Welsh), dated January 25, 2010, regarding: CERCLA
Liability Associated with Potential Redevelopment of Ward Cove
Environmental Easement and Declaration of Covenants, recorded July 18,
2003, between Ketchikan Gateway Borough, Ketchikan Pulp Company, and
Gateway Forest Products
Environmental Easement and Declaration of Covenants, recorded July 15,
2004, between Ketchikan Gateway Borough and Ketchikan Pulp Company
in
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Attachment 17
Attachment 18
Attachment 19
Attachment 20
Attachment 21
Attachment 22
Attachment 23
Attachment 24
Attachment 25
Attachment 26
Executive Summary, 2007 Monitoring Report for Sediment Remediation in
Ward Cove, Alaska (April 2009)
Letter from Karen Keeley (EPA) to Phil Benning (KPC), dated May 7, 2009,
regarding: EPA Approval of 2007 Monitoring Report
Environmental Easement, recorded August 6, 2001, between Ketchikan Pulp
Company and State of Alaska, Department of Natural Resources
Environmental Easement and Declaration of Restrictive Covenants, recorded
October 28, 1999, between Ketchikan Pulp Company and State of Alaska,
Department of Natural Resources
Email from Kirk Miller (ADOT&PF) to EPA (Karen Keeley), dated October
23, 2014, regarding: Submerged land ownership and Letter from Reuben Yost
(ADOT&PF) to EPA, dated June 10, 2010, regarding Project 68704 KTN Lay-
up Berth & Mooring Structures
Ward Cove Industries LLC 2015 Development Plan Map
Letter from Amy Briggs (KGB) to EPA (Karen Keeley), dated January 4,
2012, regarding: Closing documents related to sale of Ward Cove between
KGB and PSSA
List of Power Systems and Supplies of Alaska LLC's Lessees and Template
Lease/Letters Sent to Lessees
Uplands Operable Unit Record of Decision, Table 1 (June 7, 2000)
Ketchikan Pulp Company 2015 Five-Year Review Question B Dioxin
Reassessment
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LIST OF ABBREVIATIONS
ADOT&PF
Alaska Department of Transportation and Public Facilities
ADEC
Alaska Department of Environmental Conservation
ADNR
Alaska Department of Natural Resources
APDES
Alaska Pollutant Discharge Elimination System
AMHS
Alaska Marine Highway System
AOC
Administrative Order on Consent
AOC
Area of Concern
ARAR
Applicable or Relevant and Appropriate Requirement
ATS
Alaska Tidelands Survey
ATSDR
Agency for Toxic Substances and Disease Registry
BLM
Bureau of Land Management
CD
Consent Decree
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act
CFR
Code of Federal Regulations
CoC
Contaminants of Concern
CSFo
Cancer Slope Factor, oral
cy
Cubic Yards
DTSR
Detailed Technical Studies Report
EMS
Emergency Medical System
ENR
Enhanced Natural Recovery
EPA
United States Environmental Protection Agency
ESI
Expanded Site Investigation
GFP
Gateway Forest Products
HI
Hazard Index
IC
Institutional Controls
IRIS
Integrated Risk Information System
KGB
Ketchikan Gateway Borough
KPC
Ketchikan Pulp Company
LMRP
Long-Term Monitoring and Reporting Plan
LP
Louisiana-Pacific Corporation
mg/kg
Milligrams per kilogram
MLLW
Mean Lower Low Water
MNR
Monitored Natural Recovery
NCP
National Contingency Plan
NPDES
National Pollutant Discharge Elimination System
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NPL
National Priorities List
O&M
Operations and Maintenance
OSWER
Office of Solid Waste and Emergency Response
OU
Operable Unit
PAH
Polynuclear Aromatic Hydrocarbons
PCB
Polychlorinated Biphenyl
PCDDs/Fs
Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofurans
ppm
Parts Per Million
PRG
Preliminary Remediation Goal
PRP
Potentially Responsible Party
PSSA
Power Systems & Supplies of Alaska LLC
RA
Remedial Action
RAO
Remedial Action Objective
RCRA
Resource Conservation and Recovery Act
RD
Remedial Design
RD/RA
Remedial Design/Remedial Action
RI
Remedial Investigation
RI/FS
Remedial Investigation/Feasibility Study
RfD
Reference Dose
RKG
Renaissance Ketchikan Group
ROD
Record of Decision
RSL
Regional Screening Level
SARA
Superfund Amendments and Reauthorization Act
TCDD
2,3,7,8-tetrachlorodibenzo-p-dioxin
TEC
Toxic Equivalent Concentration
TLP
Thin Layer Placement
uss
United States Survey
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EXECUTIVE SUMMARY
The Ketchikan Pulp Company (KPC) site is located on the shoreline of Ward Cove, near
Ketchikan, Alaska. The KPC site is not listed on the National Priorities List (NPL). The site is
divided into two Operable Units (OUs): the Uplands Operable Unit and the Marine Operable
Unit. This is the third Five-Year Review Report, and it is a statutory review.
The remedy at the Marine OU is protective of human health and the environment. For the
Marine OU, remedial action construction is complete, the remedy is functioning as intended, and
the Certificate of Completion has been issued. The remedial action objectives (RAOs) for the
sediment remedy have been achieved, and institutional controls (ICs) remain in effect. Because
RAOs have been achieved, monitoring pursuant to the Long-Term Monitoring and Reporting
Plan (LMRP) is no longer necessary.
The remedy at the Uplands OU is protective of human health and the environment. For the
Uplands OU, construction is complete, the RAOs have been met, the Certification of Completion
has been issued, and ICs remain in effect. As recommended in the previous Five-Year Review,
the dioxin levels for the Uplands OU were reassessed due to new 2012 Regional Soil Screening
Levels and it was determined that the remedy is still protective of human health and the
environment as long as the ICs are functioning.
The three current property owners at the site are the Ketchikan Pulp Company/Louisiana-Pacific
Corporation (KPC/LP), Power Systems and Supplies of Alaska LLC (PSSA), and the Alaska
Department of Transportation and Public Facilities (ADOT&PF)/Alaska Marine Highway
System (AMHS). KPC owns the landfill; PSSA owns the upland pulp mill site (minus the
landfill) and a large portion of the marine property; and ADOT&PF owns a portion of the upland
and marine properties. PSSA leases its property to Ward Cove Industries LLC, which in turn, is
actively leasing buildings and portions of its property to multiple businesses and entities.
ADOT&PF has proposed to remove pilings and build a new AMHS ferry terminal on its upland
and marine property at the head of the Cove. Two new Alaska Pollutant Discharge Elimination
System (APDES) permits have been issued in the Cove, with a potential third permit to be issued
during 2015. With all of this redevelopment, the ICs remain effective and protective of the
Uplands and Marine OUs due to KPC, Ward Cove Industries LLC, and ADOT&PF's
coordination with the United States Environmental Protection Agency (EPA) and Alaska
Department of Environmental Conservation (ADEC) on IC implementation and property
changes. Additional coordination will be necessary during the extensive construction and
property development for ADOT&PF's ferry terminal proposal and the list of development
prospects identified by Ward Cove Industries LLC.
All remedies at the site are protective of human health and the environment.
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Five-Year Review Summary Form
SITE IDENTIFICATION
Site Name: Ketchikan Pulp Company
EPA ID:
AKD009252230
Region: 10
State: AK
City/County: Ketchikan, Ketchikan Gateway
Borough
NPL Status: Non-NPL
Multiple OUs?
Yes
Has the site achieved construction completion?
Yes
Lead agency: EPA
If "Other Federal Agency" was selected above, enter Agency name:
Author name (Federal or State Project Manager): Karen Keeley (Marine OU) and Anne
Christopher (Uplands OU)
Author affiliation: EPA
Review period: March 2015 - August 2015
Date of site inspection: June 2, 2015
Type of review: Statutory
Review number: 3
Triggering action date: August 28, 2010
Due date (five years after triggering action date): August 28, 2015
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Five-Year Review Summary Form (continued)
Issues/Recommendations
OU(s) without Issues/Recommendations Identified in the Five-Year Review:
Marine and Uplands Oils
Protectiveness Statement(s)
Include each individual OU protectiveness determination and statement. If you need
to add more protectiveness determinations and statements for additional OUs, copy
and paste the table below as many times as necessary to complete for each OU
evaluated in the FYR report.
Operable Unit: Protectiveness Determination: Addendum Due Date
Marine OU Protective (if applicable):
Protectiveness Statement:
The remedy at the Marine OU is protective of human health and the environment.
Operable Unit: Protectiveness Determination: Addendum Due Date
Uplands OU Protective (if applicable):
Protectiveness Statement:
The remedy at the Uplands OU is protective of human health and the environment.
Sitewide Protectiveness Statement
Protectiveness Determination: Addendum Due Date (if
Protective applicable):
Protectiveness Statement:
The remedies at the site are protective of human health and the environment.
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KETCHIKAN PULP COMPANY SITE
KETCHIKAN, ALASKA
1 INTRODUCTION
The purpose of this third Five-Year Review is to ensure that remedial actions selected in the
Records of Decision (RODs) and implemented for the Ketchikan Pulp Company (KPC) Site
Operable Units (OUs) continue to be protective of human health and the environment, and are
functioning as designed. To achieve this purpose, this review evaluates the status of
implementation of the selected remedies, identifies any significant variances from the RODs, and
makes recommendations for reconciling variances and/or for improving performance of remedial
actions. In addition, the review identifies any new information that becomes evident, documents
that no new contaminant sources or exposure pathways were discovered, and verifies that no new
work was performed that was not identified in the RODs. The methods, findings, and
conclusions of reviews are documented in the Five-Year Review reports. In addition, Five-Year
Review reports identify issues or deficiencies found during the review, if any, and
recommendations to address them.
The United States Environmental Protection Agency (EPA) is preparing this Five-Year Review
pursuant to Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) Section 121 and the National Contingency Plan (NCP). CERCLA Section 121(c)
states that:
If the President selects a remedial action that results in any hazardous substances,
pollutants, or contaminants remaining at the site, the President shall review such
remedial action no less often than each five years after initiation of such remedial action
to assure that human health and the environment are being protected by the remedial
action being implemented. In addition, if upon such review it is the judgment of the
President that action is appropriate at such site in accordance with section [104] or
[106], the President shall take or require such action. The President shall report to the
Congress a list offacilities for which such review is required, the results of all such
reviews, and any actions taken as a result of such reviews.
The EPA interpreted this requirement further in the NCP, at 40 Code of Federal Regulations
(CFR) Section 300.430(f)(4)(ii), which states:
If a remedial action is selected that results in hazardous substances, pollutants, or
contaminants remaining at the site above levels that allow for unlimited use and
unrestricted exposure, the lead agency shall review such action no less often than every
five years after the initiation of the selected remedial action.
The EPA Region 10 is the lead Agency for the KPC site and this is the third five-year review for
the site. The triggering action for this review is the date of the last five-year review, which was
signed August 28, 2010. The EPA Region 10 conducted the first five-year review of the KPC
remedy implemented at the Uplands and Marine OUs from February through June 2005 and a
second five-year review from February through August 2010. Five-year reviews are required
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due to the fact that hazardous substances, pollutants, or contaminants remain at the site above
levels that allow for unlimited use and unrestricted exposure.
2 SITE CHRONOLOGY
The KPC site is not on the NPL.
Table 1 - Chronology of Site Events
Event
Date
KPC operated a dissolving sulfite pulp mill
1954-1997
Preliminary site investigations
1991, 1993
Entry of EPA Clean Water Act and Clean Air Act Consent
September 19, 1995
Decree for investigation and feasibility study work for the
Marine OU
Responsible party implemented sediment investigation and
feasibility study work (referred to as Detailed Technical Studies
Report [DTSR]) for the Marine OU
September 1995 -
March 2000
EPA performed Expanded Site Investigation (ESI)
1997
EPA CERCLA Administrative Order on Consent (AOC)
June 1997
between KPC, Louisiana-Pacific (LP) Corporation (the parent
company of KPC), and the Alaska Department of Environmental
Conservation (ADEC) - Primarily for the Uplands OU
KPC/LP, per the AOC, completed early pre-ROD actions
focused on the Uplands OU (removal of contaminated soil and
upland sediment, building demolition, and cleaning out roof
cisterns used for water collection and storage of drinking water)
Spring 1998 to summer 1999
Final DTSR
May 1999
Issued Proposed Plan for public comment - Marine OU
July 12, 1999
Recording of "Environmental Protection Easement and
October 28, 1999
Declaration of Restrictive Covenants"
Sale of KPC assets to Gateway Forest Products (GFP), Inc.,
November 5, 1999
including Ward Cove real property other than the landfill and the
pipeline and dam parcels, USS 3400 and 3401.
ROD Signed - Marine OU
March 29, 2000
ROD Signed - Uplands OU
June 7, 2000
EPA approval of remedial design and start of remedial action -
October 24, 2000
Marine OU
EPA/KPC/LP/GFP Consent Decree (CERCLA) for responsible
party performance of Remedial Design/ Remedial Action for
Uplands and Marine OUs entered by federal court
November 20, 2000
Field construction - Marine OU
October 2000-February 2001
Pre-final inspection performed - Marine OU
February 28, 2001
Final inspection performed - Marine OU
April 4, 2001
EPA approval of final construction report - Marine OU
July 10, 2001
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Event
Date
EPA approval of final Long-Term Monitoring and Reporting
Plan for Marine OU
September 17, 2001
Final cap for last open cell in Uplands OU landfill cap installed
2001
EPA approval of addendum to the Long-Term Monitoring and
Reporting Plan for the Marine OU
January 3, 2002
Environmental Easement and Declaration of Covenants, by and
between KPC, Ketchikan Gateway Borough (KGB), and GFP
July 18, 2003
Field sampling for long-term monitoring in Marine OU
July 2004
Environmental Easement and Declaration of Covenants, by and
between KPC and KGB
July 15,2004
Responsible party submits draft 2004 Monitoring Report for
Marine OU
October 2004
KGB creates Ward Cove Southeast (S.E.) Replat (Plat No. 2005-
30) and auctions off some of the parcels
August 2005
EPA comment letter on draft 2004 Monitoring Report for Marine
OU
January 14, 2005
Preliminary Close Out Report signed for Marine OU
February 25, 2005
Responsible party submits final 2004 Monitoring Report for
Marine OU
June 27, 2005
First Five-Year Review completed
August 2, 2005
Renaissance Ketchikan Group purchases Ward Cove properties
May 2006
KGB creates the Ward Cove West Replat (Plat No. 2006-10)
March 2006
IC documents for Ward Cove Pipeline Parcels approved
June 27, 2006
Field sampling for second long-term monitoring event- Marine
OU
July 2007
KPC submits draft of 2007 Monitoring Report for Marine OU
January 31, 2008
KGB reacquires Ward Cove property from Renaissance
Ketchikan Group through foreclosure
October 2008
EPA comment letter on draft 2007 Monitoring Report for Marine
OU
October 28, 2008
Tenants sign new leases with the KGB
2009
KPC submits final 2007 Monitoring Report for Marine OU
April 24, 2009
EPA approves 2007 Monitoring Report for Sediment
Remediation in Ward Cove, AK
May 7, 2009
EPA fact sheet mailed indicating RAOs met for Marine OU
May 2009
Pre-certification inspection/meeting for Marine OU
June 10, 2009
Certification of completion and extension letter for Remedial
Action Report for Marine OU
June 11,2009
Draft Remedial Action Report - Marine OU
August 5, 2009
Final Remedial Action Report - Marine OU
October 1, 2009
EPA issues Certification of Completion for Remedial Action,
Uplands Operable Unit
January 21, 2010
EPA issues Certification of Completion for Remedial Action,
Marine and Uplands Operable Units
January 22, 2010
State of Alaska (ADOT&PF) bought Lot 3 A of Tract 3005 as
June 16, 2010
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Event
Date
depicted on Plat 2010-19 Ketchikan Recording District, First
Judicial District, State of Alaska from KGB (see Attachment 21)
Second Five-Year Review completed
August 28, 2010
KGB notified EPA that Power Systems & Supplies of Alaska
LLC (PSSA) purchased the former KPC mill site, including
Parcels 1 through 12.
April 18, 2011
KGB requested that AK DNR issue a partial release from the
1999 Environmental Easement and Restrictive Covenants with
respect to restrictions relating to certain marine tidelands with
ATS 1, as set forth in paragraph 8(g).
2010-2011
PSSA purchased the KPC property from KGB and leases the
property to Ward Cove Industries LLC and other businesses (see
Attachments 22 and 23).
January 4, 2012
ADOT&PF coordinates with EPA, the U.S. Army Corp of
Engineers, and ADEC on sampling and analysis plans for
construction/development on their property, the AMHS Ward
Cove Marine Facility Feasibility Plan and ferry terminal
proposal, and structural removal of pilings and shoreline debris
efforts within the Uplands and Marine OUs
2012-2015
PSSA notifies EPA and ADEC of all property that they have
leased and ensured that they have notified all lessees of the
institutional controls at the site (see Attachment 24)
2012-2015
APDES Permit No. AK0053392 issued to KPC for Ward Cove
Landfill (permit effective May 1, 2013-April 30, 2018)
March 28, 2013
PSSA and ADOT&PF coordinate development of the Cove and
follow the IC requirements: received notification from PSSA
regarding a Right of Entry Agreement with ADOT&PF for
drilling test holes on "Bolles Ledge" near the property AMHS's
property line
October 23, 2013
APDES Permit No. AK0053384 issued to Full Cycle LLC for
Ward Cove Wastewater Treatment Plant (permit effective
November 1, 2014-October 31, 2019)
October 1, 2014
2015 Five-Year Review site visit by EPA
June 2, 2015
3 BACKGROUND
3.1 Physical Characteristics
The KPC site is located on the shoreline of Ward Cove, approximately 5 miles north of
Ketchikan, Alaska (Figure 1). The KPC site is comprised of uplands and patented tidelands in
Ward Cove. Ward Cove is one mile long and has a maximum width of 0.5 mile. Water depth to
the bottom of the Cove is greater than -120 ft mean lower low water (MLLW). Ward Creek,
located on the east end of Ward Cove, is the primary source of fresh water to the Cove.
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The Marine OU includes the northern half of Ward Cove and other marine areas where there has
been a migration of hazardous substances from Ward Cove or the Uplands OU (Figure 2). The
Marine OU consists of approximately 250 acres in Ward Cove, of which approximately 80 acres
have been designated in the ROD as an Area of Concern where remedial action objectives have
been met and sediment contamination no longer poses a risk to benthic organisms. Sediments in
the Cove are subtidal; intertidal sediments are limited to a very small area near the mouth of
Ward Creek. The shoreline of the Cove is mostly rocky and relatively steep.
Located on the north shoreline of Ward Cove, the Uplands OU covers approximately 85 acres
(Figure 2). Ward Cove is a coastal valley bounded by Slide Ridge to the north and Ward
Mountain to the south.
To the north of the former pulp mill area, the terrain slopes steeply upward to a peak
approximately 2,100 feet above mean sea level, at a distance of approximately one mile from the
shoreline. The area surrounding the former pulp mill is largely forested with pockets of
industrial/commercial and residential properties clustered along North Tongass Highway, and
some properties used for recreational purposes. There is no residential area along the shoreline
(see Attachment 7).
The former pulp mill was built mainly on steep bedrock. Coarse gravel fill and "shot rock" were
used as fill material to a depth of 11 feet to 25 feet. The former mill area was fenced and had an
unmanned gate access. In 2014, ADOT&PF took out the mill property fencing and gate during a
highway straightening project and only replaced the gate. The gate restricts vehicle access to the
property when closed, but the gate is usually left open all day so that employees and customers
can access the site.
The area has a maritime climate, characterized by mild, wet conditions, receiving an average 151
inches of precipitation annually.
Groundwater in the Uplands OU consists of a transient, shallow aquifer system that exists in the
fill areas above the fractured bedrock, a shallow aquifer in the fractured bedrock, and a potential
discontinuous deeper aquifer within the fractured bedrock. This groundwater is considered Class
III groundwater and thus, non-potable. According to ADEC, the shallow aquifer and potential
deeper aquifer are not considered a reasonably expected future source of drinking water.
In 2010, drinking water for this area was supplied by the Ketchikan public water supply system
and was stored in a water storage tank on site. Now, the mill property has a storage tank and
potable water is trucked in, homes in the surrounding area use catchment systems, and the
AMHS engineering facility catches roof water.
A pipeline (wood stave) running from Connell Lake to the former pulp mill facility provides an
industrial water supply. A service road (3 foot wide path) allows access to most of the pipeline
and is open to the public for walking. A gate limits motor vehicle access by the public. A large
dam at Connell Lake (man-made) and the four-foot diameter pipeline supplied water to the
former mill and now serve as a water source for fire prevention for the North Tongass Fire and
Emergency Medical Services (EMS) Area and a sewage treatment plant on the former mill
property. There were several historic small storage/disposal areas along the pipeline, but now
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only pipes are stored on the trail temporarily. The habitat along the pipeline is heavily forested
and since the pipeline is gravity fed, the general gradient is downward towards Ward Cove.
The Wood Waste and Ash Disposal Landfill is located at Dawson Point, just west of the former
pulp mill facility and east of Refuge Cove. The area around the landfill is heavily forested. The
landfill is situated on thin soil covering fractured bedrock. Groundwater flows through fractures
steeply down-gradient to Ward Cove and Refuge Cove. Groundwater is not now used as a
resource and does not likely represent a future resource.
3.2 Land and Resource Use
The former KPC facility began operations as a dissolving sulfite pulp mill in 1954 and
discharged pulp mill effluent to Ward Cove until March 1997, when pulping operations
terminated. Equipment associated with pulp mill operations has largely been dismantled and
removed from the site. In November 1999, the KPC upland mill property (excluding the landfill
and the pipeline and dam parcels USS 3400 and 3401) and patented tidelands in Ward Cove were
sold from KPC to Gateway Forest Products, Inc. (GFP).
For a short time, GFP operated a sawmill and veneer mill, producing lumber and veneer, chips
for pulp, and hog fuel as a by-product. GFP initiated Chapter 11 Bankruptcy proceedings in
2001, and the U.S. Bankruptcy Court dismissed the action in 2002. GFP no longer owns or
operates on any property within the KPC site.
The Ketchikan Gateway Borough (the Borough) then owned all of the former KPC and GFP
property which was subject to the November 20, 2000 Remedial Design/ Remedial Action
Consent Decree and ICs. The only exception is the landfill parcel, which is still owned by KPC.
The Borough originally obtained the property in 5 different ways. First, the Borough obtained
28 parcels from GFP in December 2002 in connection with the foreclosure on its deed of trust
interest from a loan made in 1999. Second, the Borough foreclosed on acquired interests in a
deed of trust originally granted in favor of Tymatt, Inc. and Tyler Rental concerning USS 1706
and the unsubdivided remainder of USS 1754, to which title was acquired in December of 2002.
Third, the Borough foreclosed on its loan interest, a first deed of trust, on USS 1056 lot 3 and the
unnamed 10.25 acre portion of ATS 1 (an odd shaped portion which contains the dock and
extends both in front of the former sawmill and inland under warehouses) and obtained title in
December 2002. Fourth, in December 2003, Foothill Capital transferred to the Borough USS
1862; ATS 1 portion C-l; ATS 1 portion A; USS 2090 portion B; USS 2923; and a 5.16 acre
portion of USS 056 adjacent to USS 2923. Fifth, KPC transferred USS 2004 lot 1; USS 3400;
and USS 3401 to the Borough.
In 2005, the Borough subdivided the southeast side of Ward Cove (Ward Cove S.E. Replat 2005-
30, see Attachment 6) and auctioned off parcels including: Tract 3011, Tract 3013, Tract 3015,
Tract 3017, Tract 3019, USS 1656, USS 1653, USS 1655, USS 1208, USS 1207, and USS 1508.
Tract 3017 contains the Dredge Spoils Subarea of the Uplands Operable Unit. Along the
shoreline, this parcel also contains small portions of the Marine Operable Unit. In May 2006,
Renaissance Ketchikan Group (RKG) purchased the remaining Ward Cove Properties and leased
portions of the site to Ty-Matt, Loggerville Holdings, Rhineco, GCI, Tongass Forest Enterprises,
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Anderes Oil, The Grotti Vikings, Ketchikan Wood Technology, Lighthouse Marine, and Pool
Engineering.
In March 2006, the Borough created the Ward Cove West Replat - Plat No 2006-10 (see
Attachment 6). In May 2006, a 3 acre parcel along the pipeline, which was subject to an earlier
agreement between the Borough and KPC, was transferred from BLM to the State of Alaska and
from the State of Alaska to the Borough. After the transfer these parcels were made subject to
the ICs of the ROD (see Attachments 9 and 10).
In October 2008, the Borough reacquired the property through foreclosure. Multiple tenants
signed new leases with the Borough, including: Alaska Growth Capital, First City Players, First
City Wood Haulers, Fritz Peters, GCI, Lighthouse Marine, Loggerville Holdings, Olson Marine,
Rhineco, SEAPA, and Tongass Forest Enterprises. In 2010, the lessees at Ward Cove included
the State of Alaska Department of Transportation and Public Facilities (ADOT&PF)/Alaska
Marine Highway System (AMHS) Department of Administration, Alaska Whole Wood (Tongass
Forest Enterprises), Crux Equipment Leasing, Inc., First City Players, First City Wood Haulers,
Fritz Peters, GCI, Olson Marine, and Rhineco, Inc.
The State of Alaska purchased a portion of the former KPC Facility from the Borough for lay-up
and operational berths for the AMHS on June 16, 2010 (Attachment 21). A Phase II
Environmental Site Assessment Report, Ketchikan Ward Cove Property was completed by
CH2M Hill for the ADOT&PF (CH2M Hill, April 2010).
On April 18, 2011, the Borough notified the EPA that the former site of the Ketchikan Pulp
Company mill was purchased by Power Systems & Supplies of Alaska LLC (PSSA). Properties
transferred pursuant to the purchase and sale agreement include Parcels 1 through 12. PSSA was
aware and willing to undertake each and all of the obligations associated with the ICs and the
terms of the 2003 Settlement Agreement between the Ketchikan Gateway Borough and
Ketchikan Pulp Company. On January 4, 2012, the EPA received closing documents of the sale
and transfer of Ketchikan Gateway Borough's interest and ownership in the Ward Cove
Properties to PSSA (see Attachment 23). Along with this notice are copies of two different
Deeds of Trust which have been filed in the Ketchikan recording district and the Alaska Pacific
Bank's requisite acknowledgement to be bound by the July 14, 2003 Agreement and the notice
provision that the transaction was subject to the Environmental Protection Easement and
declaration of Restrictive Covenants, dated October 28, 1999. After PSSA purchased the KPC
property from the Borough, it began leasing the property to Ward Cove Industries LLC and other
businesses (see Attachment 4 for a map of property ownership as of 2013 and Attachment 24 for
a list of the current lessees on the PSSA property).
The current land use for the surrounding area is recreational, residential, commercial, and
industrial (see Attachment 7). The former KPC upland property is industrial/commercial and is
expected to remain industrial/commercial. The majority of the parcels are zoned Heavy
Industrial by the Ketchikan Gateway Borough (see Attachment 7). The primary use of Ward
Cove has been navigation and recreation, including fishing. In addition to a homeport for
commercial fishing vessels, Ward Cove Industries LLC is planning for an industrial hub that will
also serve the oil and gas, mining, transportation, tourism and timber industries (see Attachment
22). Although there are potential land use changes being pursued by Ward Cove Industries LLC,
it is anticipated that a mix of land uses similar to present uses will continue into the future.
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According to the Alaska Department of Fish and Game, there are no public health advisories for
consumption of seafood from Ward Cove.
3.3 History of Contamination
The KPC mill operated continuously from 1954 until 1997, processing raw logs into lumber,
pulp, and hog fuel. The principal product of the KPC mill was dissolving-grade sulfite pulp.
When pulp production began, effluent from the mill was discharged directly to Ward Cove.
After 1971, effluent was treated in a wastewater treatment plant located at the mill. After
treatment, wastewater was discharged to Ward Cove.
The processes and conditions considered possible sources of chemicals of concern (CoC)
included wastewater discharges, wood waste and ash disposal in landfill, stormwater discharges,
release of airborne contaminants from the power boilers, and spills and accidental releases.
Specifically for the Marine OU, contamination at the site was discovered through water quality
and sediment studies of Ward Cove that were conducted to evaluate the potential environmental
effects associated with discharges from the KPC facility. Mill operations affected sediments
through the release of large quantities of organic material as by-products from wood pulping.
This organic material altered the physical structure of the sediments, and thus the type and
amount of benthic (bottom-dwelling) organisms. Degradation of the organic-rich pulping and by
product led to anaerobic conditions in the sediment and production of ammonia, sulfide, and 4-
methylphenol in quantities that were potentially toxic to benthic organisms in sediments on the
bottom of Ward Cove. The chemicals of concern for sediments were ammonia, sulfide, and 4-
methylphenol.
For the Uplands OU, sources of contamination were the use of oils and lubricants in the fuel
storage areas, maintenance shop and paint shop; polychlorinated biphenyls (PCBs) from
electrical transformers and capacitors; heavy metal, polynuclear aromatic hydrocarbons (PAHs)
and dioxins/furans from ash generation and sludge generation in storage areas, as well as the
wood waste/ash landfill; and, naturally-occurring arsenic contamination from "shot rock" fill
material.
Other areas of contamination were the aeration basins, grit chamber soils, filter plant soils and
several storage/disposal areas along the pipeline. The soil contamination outlined above was
remediated during pre-ROD activities. EPA supervised the removal actions, which were
conducted by KPC. Imported soil and rock products containing fines to be placed on the surface
at the site were controlled by a Management Plan for Arsenic in Rock and Soil. Other potential
contaminated areas not discovered during the investigation and feasibility study were managed
by the use of ICs. The wood waste and ash landfill was capped in 2001 and will be monitored
for 30 years. The landfill is permitted under ADEC solid waste permit #9713-BA001, and on
March 28, 2013, ADEC issued APDES Permit No. AK0053392 to KPC for the landfill (permit
effective May 1, 2013-April 30, 2018), which requires quarterly reporting.
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3.4 Initial Response
The KPC site is not listed on the NPL.
Marine OU - The Ward Cove sediment investigation and feasibility study was implemented
pursuant to a 1995 Clean Water Act and Clean Air Act Consent Decree with KPC. The Consent
Decree embodied a settlement between the United States and KPC for violations at the KPC
facility of the Clean Water Act and the Clean Air Act. Under the terms of the settlement, KPC
agreed to pay a penalty of $3.1 million. KPC also agreed to implement requirements for
operating the mill (e.g., using only certified wastewater treatment operators) and to perform
certain projects.
One such project was to develop and implement the Ward Cove Sediment Remediation Project.
EPA Superfund performed oversight of the sediment investigation and feasibility study and other
work performed under the Consent Decree. Upon completion of the investigation and feasibility
study work, EPA issued a CERCLA Proposed Plan (July 1999), and the ROD (March 2000).
EPA's Superfund program then directed the completion of the sediment remediation project
pursuant to a CERCLA Remedial Design/Remedial Action Consent Decree with KPC, its parent
company, Louisiana-Pacific Corporation (LP), and the new owner of the Ward Cove facility,
GFP.
No removal actions or responses occurred prior to the ROD.
Uplands OU - KPC/LP, EPA, and ADEC entered into a CERCLA Administrative Order on
Consent (AOC) during June 1997. The AOC required KPC/LP to undertake early pre-ROD
activities focused on the Uplands OU that involved the removal of contaminated soil and upland
sediment (ditch sediment). Soil removal was completed at the access road ditch, railroad track
areas, compressor area, the paint shop/maintenance shop, the former bulk fuel area, and storage
areas along the pipeline. KPC also conducted building demolition and cleaned out roof cisterns
used for water collection and storage of drinking water in the mill vicinity. These activities were
conducted between spring of 1998 and summer of 1999 with ADEC and EPA oversight.
The ROD for the Uplands OU site was signed on June 7, 2000. The early actions completed in
the Uplands OU were a significant part of the Selected Remedy. As such, development and
detailed evaluation of a series of cleanup alternatives in the form of a Feasibility Study was not
completed for the Uplands OU. The Selected Remedy in the ROD included development and
implementation of the institutional control (IC) plan for anticipated current and future land use, a
management plan for arsenic in rock and soil, and other ICs to ensure that the early actions
remained protective.
3.5 Basis for Taking Action
Marine OU - Hazardous substances in Ward Cove sediments include ammonia, hydrogen sulfide,
and 4-methylphenol. These substances potentially posed an unacceptable ecological risk to
benthic (bottom-dwelling) organisms.
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An ecological risk assessment was conducted using a food-web assessment to estimate risks of
bioaccumulative chemicals to representative birds and mammals at the top of the Ward Cove
food web. The chemicals evaluated were arsenic, cadmium, mercury, zinc, chlorinated
dioxins/furans, and PAHs. The results of this assessment indicated that there were no
unacceptable risks to higher trophic level organisms in Ward Cove.
A human health risk assessment was conducted to identify potential risks posed by chemicals
detected in sediments or seafood (e.g., fish, shellfish). Ingestion of seafood that may contain
chemicals bioaccumulated from the sediments was identified as the only complete exposure
pathway for humans. The chemicals that were evaluated included: arsenic, cadmium, mercury,
zinc, phenol, 4-methylphenol, chlorinated dioxins/furans, and PAHs. Results concluded that
sediments in Ward Cove did not pose an unacceptable risk to human health.
Direct human contact with sediments in Ward Cove is unlikely because of the depth of water
overlying the affected sediments and the cold climate. Although direct contact is unlikely, this
potential exposure was evaluated in a worst-case analysis and results indicated that sediments did
not pose unacceptable risks to people.
Uplands OU - The early actions taken in the Uplands OU removed the most contaminated source
material, eliminated unacceptable risks from direct contact with soils, eliminated soil transport to
Ward Cove, eliminated leaching of surface soil contaminants to groundwater, and minimized
potential future direct contact with subsurface soils at the site.
The paint shop/maintenance shop had an excess carcinogenic risk estimate of 3 x 10"4, exceeding
industrial worker risk for the combination of total PCBs, arsenic, and benzo(a)pyrene, and a total
non-carcinogenic hazard index (HI) of 8. Lead industrial soil concentrations were also exceeded
at the paint shop and the pipeline. State soil cleanup levels were exceeded in several areas prior
to the EPA-supervised removal activities conducted by KPC. ICs now control subsurface use
and disturbance to minimize exposure for industrial uses.
A baseline human health and ecological risk assessment was conducted prior to the removal
actions. This assessment and State cleanup standards formed the basis for the removal actions,
which were conducted at the pulp mill site and the water pipeline access road. Several pathways
were fully evaluated, but did not require quantitative risk calculations due to the lack of a
complete exposure pathway or lack of chemicals of potential concern for the pathways.
Exposure pathways that were quantitatively evaluated in the human health risk assessment were
as follows:
• Current and future adult workers in onsite areas and in areas where aerial deposition had
affected soils were evaluated for potential exposures to CoCs via ingestion, dermal
contact, and inhalation.
• Current or future adult workers who might contact soils along the former pipeline access
road via ingestion, dermal contact or inhalation.
• Offsite residents (adults and children) in aerial deposition areas were evaluated for
potential exposures to CoCs via ingestion, dermal contact, inhalation, and consumption of
homegrown produce.
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• Offsite residents who had amended their yards with grit from the Uplands OU were
evaluated for potential exposures to dioxins in soil via ingestion, dermal contact,
inhalation, and consumption of homegrown produce.
The only completed exposure pathways exceeding the human health based risk levels applied by
the EPA and the State was for current adult workers at the pulp mill site (the paint
shop/maintenance shop area as described above).
In addition, potential exposures for residents who use water from cisterns that may have been
affected by aerial deposition of power boiler stack emissions was considered in the remedial
investigation and in a separate consultation by the Agency for Toxic Substances and Disease
Registry (ATSDR) in 1998. The ATSDR assessment determined that there were no adverse
health effects prior to cistern cleaning.
4 REMEDIAL ACTIONS
4.1 Marine OU Remedy Selection
The ROD for the Marine OU of the KPC site was signed on March 29, 2000. Remedial Action
Objectives (RAOs) were developed based on data collected during the sediment investigation
and feasibility study to aid in the development and screening of remedial alternatives considered
for the ROD.
In order to eliminate or minimize the ecological risk associated with the toxicity of Ward Cove
sediments to benthic organisms, the response action achieved these RAOs:
• Reduce toxicity of surface sediments
• Enhance recolonization of surface sediments to support a healthy marine benthic infauna
community with multiple taxonomic groups
Chemical-specific bulk sediment criteria were not established as cleanup levels for the CoCs
(ammonia, sulfide, and 4-methylphenol) at the site. The ROD concluded that the success of the
remedy would be best measured by those indicators most directly representative of RAOs, i.e.,
sediment toxicity and the health of benthic infauna. Thus, site-specific biological criteria for
sediment toxicity and the health of benthic infauna were established to evaluate the
protectiveness of the Selected Remedy and the rate at which the RAOs were being achieved.
The major components of the remedy selected in the ROD are described below.
4.2 Marine OU Remedy Implementation
In a Consent Decree signed with EPA on November 20, 2000, KPC/LP agreed to perform
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RD/RA, implement long-term monitoring, and pay past and future costs for carrying out work in
the Marine OU. The RD was conducted in conformance with the ROD, and was approved in
2004. The field work for RA construction was completed in February 2001, and EPA approved
the final construction report in July 2001. Pursuant to Paragraphs 41 through 43 of the CERCLA
Consent Decree, KPC and GFP each agreed to implement ICs for the property owned by each
company.
The remedy that was selected for the Marine OU is listed below (verbatim from the ROD, Part 1:
Declaration). Following each component of the remedy that was listed in the ROD is italicized
text describing actual construction completion. Figure 3 depicts the areas of thin layer
placement, dredging, piling removal, and natural recovery.
• Placement of a thin-layer cap (approximately 6- to 12-inches) of clean, sandy material
where practicable. Thin-layer capping is estimated to be practicable over approximately
21-acres within the Area of Concern. Thin-layer capping is preferable over mounding.
Constructed thin-layer (approximately 6- to 12-inches) placement of clean, sandy
material over an estimated 27 acres. The increase in acreage is due to the fact that thin
layer placement was found to be successful over a broader area, and it was not necessary
to construct mounding.
• Placement of clean sediment mounds in areas where thin-layer capping is either
infeasible or impracticable, and where mounding is considered to be practicable.
Mounding is currently considered to be practicable in areas where the organic-rich
sediments are less than 5 ft thick and have a bearing capacity that is greater than 6 psf.
Mounding is estimated to be practicable over approximately 6-acres within the Area of
Concern.
Thin-layer placement was found to be practicable over the entire 27-acres, so mounding
was not constructed.
• Dredging of approximately 17,050 cubic yards (cy) of bottom sediments from an
approximate 4-acre area in front of the main dock and dredging of approximately 3,500
cy of bottom sediments from an approximate 1-acre area near the shallow draft barge
berth area to accommodate navigational depths, with disposal of the dredged sediments at
an upland location. After dredging, a thin-layer cap of clean, sandy material will be
placed in dredged areas unless native sediments or bedrock is reached during dredging.
Dredged approximately 8,701 cubic yards (cy; pay volume) of bottom sediments from an
area in front of the main dock and an area near the shallow draft barge berth area to
accommodate navigational depths, with disposal of the dredged sediments at an upland
location. The dredging volume estimate was less than expected because native, clean
sediments were encountered at a shallower depth than anticipated. After dredging, thin
layer placement of clean, sandy material was constructed in dredged areas where native
sediments or bedrock was not reached.
• Removal of sunken logs from the bottom of Ward Cove in areas to be dredged.
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Sunken logs (approximately 680 tons) were removedfrom the bottom of Ward Cove in
areas to be dredged.
• Natural recovery in areas where neither capping nor mounding is practicable. Natural
recovery is estimated to be the remedy for approximately 50 acres of the 80-acre Area of
Concern, as follows:
1) 8-acre area in the center of Ward Cove and 2-acre area near Boring Station 8 that
exhibit a very high-density of sunken logs (>500 logs/ 10,000 m2);
2) 13.5-acre area where water depth to the bottom of the Cove is greater than -120 ft
MLLW and the depth of the sediment is currently considered to be too great to
cap;
3) 14.5-acre area where slopes are estimated to be greater than 40 percent and are
currently considered to be too steep for capping or mounding material to remain
in place;
4) 11-acre area where the organic-rich sediments do not have the bearing capacity
(i.e., strength is less than 6 pounds per square foot) to support a sediment cap and
are too thick (i.e., thickness is greater than 5 feet) to practicably allow for
placement of sediment mounds; and,
5) 0.2-acre area near the sawmill log lift where maintenance dredging generally
occurs on an annual basis.
In areas where thin-layer placement was not constructed, allowed for monitored natural
recovery in approximately 52 acres.
• ICs requiring that post-remediation activities within the Area of Concern that materially
damage the thin-layer cap or mounds will be required to redress such damage, at the
direction of EPA.
While the remedy selectedfor the Marine OU assumed that Ward Cove would be
redeveloped in the future, institutional controls are required and have been implemented
to prevent the disturbance of the waste remaining on site and affects how the site may be
redeveloped. Section IX of the 2000 ROD prohibits persons from "using the Site in any
manner that would interfere with or adversely affect the integrity or protectiveness " of
the remedy. Per Section XI of the 2000 ROD, this institutional control will remain in
effect even after the Remedial Action Objectives are achieved.
In 1999 - before EPA had issued the ROD and before KPC had entered into a CERCLA
Consent Decree (CD) to perform the remedial design and remedial action - KPC
recorded an Environmental Easement and Declaration of Covenants on its property
("1999 Covenant"). The 1999 Covenant described restrictions on the use of Ward Cove,
including, but not limited to, a requirement that any damage to the sediment cap be
redressed by KPC at EPA's direction. The 1999 Covenant designated the State of
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Alaska, Department of Natural Resources (ADNR) as the holder of the easement, and the
ADNR subsequently granted oversight of the easement to the ADEC.
On February 16, 2010, the then-owner of the tidelands, Ketchikan Gateway Borough
("the Borough "), requested that ADNR release some or all of the restrictions established
in the 1999 Covenant with respect to certain marine tidelands within Alaska Tidelands
Survey (ATS) 1. Following lengthy negotiations in 2010 and 2011, the State of Alaska
Department of Law agreed through written correspondence with the Borough on a
partial release, which only applied to the restriction set forth in Paragraph 8(g) of the
1999 Covenant. Paragraph 8(g) of the 1999 Covenant stated: "Projects or activities that
materially damage the cap applied to tide and submerged lands shall be required, at the
direction of EPA, to redress such impacts, e.g., a dredging project that may erode or
displace large portions of the cap will be required to repair or replace the cap. " The
Department of Law agreed to this release based on the language of the 1999 Covenant,
which stated that the restriction set forth in Paragraph 8(g) only exists until EPA
determines that healthy benthic communities exist in the submerged lands.
It is unclear whether the partial release was ever formally memorialized in a signed
document; however, the validity of Paragraph 8(g) of the 1999 Covenant is immaterial to
the protectiveness of the remedy. The 1999 Covenant was in place before the ROD was
issued in 2000 and was subsequently superseded by the July 2004 Environmental
Easement and Declaration of Covenants ("2004 Covenant"). The 2004 Covenant, which
was entered into by the Borough and KPC after KPC completed the remedy in Ward
Cove, states, inter alia:
The Boroush covenants and asrees that it shall not, throush any activities or
operations at or in the Ward Cove Area, materially damage any cap or capping
materials that may be applied to sediments in the Ward Cove Area under the
Ward Cove [CERCLAl Consent Decree.
In accordance with the 2004 Covenant, in the event of any such damage to the cap, the
Borough (or any future owner) must immediately report the damage to EPA and KPC
and then restore the cap. The 2004 Covenant states that the restricted uses shall run with
the land and be binding on all future owners, and the terms and conditions shall be for a
period of twenty years, after which time the Covenant shall be automatically extended for
successive periods of ten years unless an instrument signed by KPC has been recorded
agreeing to terminate the restrictions.
Ultimately, any activity that materially damages the thin-layer sediment cap at Ward
Cove would be inconsistent with the ROD and a violation of the institutional controls,
including the 2004 Covenant, and may also be considered a release of hazardous
substances, subjecting the owner of the sediments to liability under Section 107(a) of
CERCLA.
• Implementation of a long-term monitoring program for the remedial action until RAOs
are achieved, at the direction of EPA.
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EPA approved a long-term monitoring program for the remedial action, which was
implemented until RAOs were achieved. Based on results of the 2007 long-term
monitoring data, it was determined that RAOs were achieved in Ward Cove (EPA 2009,
see Attachment 18).
• Subtidal investigation of sediments near the east end of the main dock, and subsequent
dredging and disposal of PAH-contaminated sediments, as deemed appropriate by EPA.
PAH-contaminated sediments were dredged along with other dredged materials.
Submerged creosote-soaked pilings were also removedfrom the area of PAH
contaminated sediments.
The deviations, which were not considered significant enough to require documentation in an
Explanation of Significant Difference, from the remedy selected in the ROD are as follows:
• Thin-layer placement occurred over a larger area than was estimated in the ROD;
• The ROD allowed for "mounding" if thin-layer placement could not be implemented -
"mounding" did not occur as thin-layer placement was effective in all areas;
• The dredging volume was less than was estimated in the ROD.
EPA determined that all RA construction activities, including the implementation of ICs, were
performed according to the requirements of the ROD and Consent Decree.
The Preliminary Close-Out Report was signed on February 25, 2005.
4.3 Marine OU Long-Term Monitoring and Reporting
Remediation activities were completed in 2001. On behalf of KPC/LP, KPC conducted long-
term monitoring and reporting according to the monitoring plan that was approved by EPA in
September 2001. The primary objectives of the Ward Cove long-term monitoring program
included the following:
• Compare sediment toxicity in thin capped and natural recovery areas in the remediated
area with sediment toxicity in reference areas located elsewhere in the cove
• Compare the characteristics of benthic communities in thin capped and natural recovery
areas in the remediated area with the characteristics of communities in reference areas
located elsewhere in the cove
• Evaluate temporal trends in sediment toxicity in the thin capped and natural recovery
areas of the remediated area
• Evaluate temporal trends in the characteristics of benthic macroinvertebrate communities
found in the thin capped and natural recovery areas of the remediated areas
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• Evaluate chemical concentrations and their relationship to sediment toxicity and benthic
community structure.
The specific components of sediment quality used for the monitoring program were as follows:
• Sediment chemistry - Surface (0 to 10 centimeters) sediment samples were analyzed for
conventionals, ammonia, and 4-methylphenol.
• Sediment toxicity - Surface sediment samples were evaluated using amphipod bioassay
toxicity tests.
• Benthic macroinvertebrate communities - Characteristics of benthic communities were
evaluated by collection and enumerating the organisms found in surface sediment
samples.
Sediment chemistry and toxicity were assessed during the sediment investigation and feasibility
study and therefore these monitoring components could be compared to pre-remedial conditions
as well as to reference areas. Temporal trends in sediment chemistry, sediment toxicity, and
benthic infauna were evaluated by comparing pre-remediation data with monitoring data
collected in July 2004 and 2007. The analytical methods for chemistry and toxicity testing were
comparable to those used in the sediment investigation and feasibility study. Benthic infauna
measurements were compared to reference area conditions and qualitative data collected prior to
remediation.
The design of the Ward Cove monitoring program built on different categories of benthic strata,
which were based on water depth and on the kind of remedial action taken. Multiple sampling
stations were evaluated within each benthic stratum to estimate average (or mean) conditions in
the stratum and to provide a measure of within-stratum variability so that statistical analyses
could be conducted. A total of 37 Area of Concern stations and 2 reference area stations were
sampled during the monitoring program.
The characteristics of benthic communities can be influenced by water depth and sediment
character. Therefore, the Area of Concern was subdivided into various benthic strata as follows
based on water depth (four strata):
• very shallow areas (<20 ft water depth at mean lower low water (MLLW); 5 stations),
• shallow areas (20-70 ft MLLW; 16 stations),
• moderately deep areas (70-120 ft MLLW; 11 stations), and
• deep areas (>120 ft MLLW; 5 stations).
Remedial action strata were defined as either enhanced natural recovery (ENR) (i.e., thin layer
placement (TLP) areas; 15 stations) or monitored natural recovery (MNR) areas (22 stations).
The shallow, MNR stratum was further subdivided into an area with thick organic deposits (>5
feet) adjacent to the former pulp mill and an area with more limited organic deposits along the
north shore near the mouth of the cove.
On May 7, 2009, EPA approved the final 2007 Monitoring Report for Sediment Remediation in
Ward Cove, Alaska (April 2009). EPA also concurred that the RAOs for the sediment remedy
were achieved, that the remedy at the Marine OU was protective of human health and the
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environment, and monitoring pursuant to the long-term monitoring and reporting plan (LMRP)
was no longer necessary.
4.4 Uplands OU Remedy Selection
The ROD for the Uplands OU was signed on June 7, 2000 and included the following RAOs:
1. Reduce cancer and noncancer risks to current and future workers from exposure to soil
contaminants
2. Minimize future cancer and noncancer risks to off-site or future residents from
contaminated soil or groundwater exposure
3. Minimize on-site workers' arsenic exposure from future use of imported rock products
4. Minimize potential migration of contaminants to Ward Cove from the landfill.
The remedial investigation confirmed the presence of the following chemicals of potential
concern in soil at the site: arsenic, lead, manganese, polycyclic aromatic hydrocarbons (PAHs),
polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans (PCDDs/Fs), PCBs, and
petroleum hydrocarbons. After comparison with screening values and calculation of risk
estimates, arsenic, lead, PAHs, PCBs, and petroleum hydrocarbons were identified as CoCs
requiring consideration of remedial actions. Table 1 of the Uplands OU ROD (see Attachment
25) compares the baseline chemical concentration ranges and risk estimates throughout the OU
before the early actions were completed to the residual concentrations and risks following the
implementation of the early actions. Because the early actions completed at the OU reduced the
chemical concentrations and risks to acceptable levels, development and detailed evaluation of a
series of cleanup alternatives in the form of a Feasibility Study was not completed for the
Uplands OU.
4.5 Uplands OU Remedy Implementation
The RAOs for the Uplands OU selected remedy were partially met through the completion of the
early removal actions. Development and implementation of the Institutional Control Plan for
anticipated current and future land use, the Management Plan for Arsenic in Rock and Soil, and
other ICs were selected to ensure that the early actions remained protective and to meet the first
three RAOs. These ICs were implemented through:
• Ketchikan Gateway Borough zoning restrictions;
• Management Plan for Arsenic in Rock and Soil, finalized July 1998;
• Environmental Protection Easement and Declaration of Restrictive Covenants for KPC's
property, recorded on October 28, 1999;
• Institutional Control Plan, including Excavation and Soil Handling Procedures, dated
June 2000;
• Environmental Easement between KPC and ADNR regarding the Wood Waste and Ash
Disposal Landfill at Dawson Point, recorded August 6, 2001;
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• Environmental Easement and Declaration of Covenants, between Ketchikan Gateway
Borough, Ketchikan Pulp Company, and Gateway Forest Products, recorded July 18,
2003;
• Environmental Easement and Declaration of Covenants, between Ketchikan Gateway
Borough and Ketchikan Pulp Company, recorded July 15, 2004; and
• Equitable Servitude and Easements and Subordination Agreement for the Pipeline Parcels
granted by the Ketchikan Gateway Borough in favor of the ADNR, recorded May 1,
2006.
To meet RAO number 4, the selected remedy for the Wood Waste and Ash Disposal Landfill
was to close and cover the landfill with a geomembrane cap, place a topsoil cover over the
geomembrane, establish a vegetative cover and maintain the final cover, the passive gas venting
system, and the leachate treatment system. The cap was installed in 1997 with an open cell
constructed on top of that cap to receive ash from the power boilers which ran until March 1998.
The final cap for this remaining open cell was installed in 2001. The remedy also included long-
term visual and surface water monitoring to detect the potential for public ecological receptor
endangerment or water quality standard or permit violations. The Wood Waste and Ash
Disposal Landfill was also included in the Institutional Control Plan, Management Plan for
Arsenic in Rock and Soil, and recorded Restrictive Covenants.
4.6 Uplands OU Long-Term Monitoring and Reporting
The Uplands OU ROD requires long-term monitoring at the landfill in accordance with all
applicable permits (i.e., ADEC solid waste permit and regulations, EPA NPDES permit, ADEC
APDES permit) and development and implementation of an operation and maintenance program
for the landfill to ensure long term viability of the cap system, including ensuring no tree growth
occur that could compromise the integrity of the cap. KPC conducts visual inspections and
periodic maintenance of the landfill cap and collects surface water samples to assess the site
surface water, as well as maintains operation of the landfill leachate treatment and aeration
ponds. KPC submitted a National Pollutant Discharge Elimination System (NPDES) permit
application to the EPA (and ADEC) in March 2009. However, because the EPA began
transferring authority for Federal NPDES permitting and compliance/enforcement programs to
the State of Alaska on October 31, 2008, the KPC permit application was transferred to ADEC's
Alaska Pollutant Discharge Elimination System Program. As of October 31, 2009, the State of
Alaska has authority under the APDES Program for the KPC Ward Cove Landfill Leachate
permit (#AK0054492). That permit expired on September 30, 2009, so KPC continued to operate
under the expired permit while a new permit application was processed. On March 28, 2013,
ADEC issued APDES Permit No. AK0053392 to KPC for the landfill (permit effective May 1,
2013-April 30, 2018), which requires quarterly reporting. The landfill is also permitted under
ADEC solid waste permit #9713-BA001.
On October 1, 2014, an APDES permit (APDES Permit No. AK0053384) was issued to Full
Cycle LLC, a company leasing property from PSSA, for the Ward Cove Wastewater Treatment
Plant (permit effective November 1, 2014-October 31, 2019).
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PSSA and ADOT&PF enforce ICs with all leaseholders and coordinate with EPA and ADEC on
all potential subsurface construction projects.
5 PROGRESS SINCE THE LAST FIVE-YEAR REVIEW
RAOs have been achieved at the Marine and Uplands OUs. Certificates of Completion were
documented for the Marine OU and Uplands OU by EPA letter to KPC dated January 22, 2010
(see Attachment 13).
Previous Protectiveness Statements from the last Five-Year Review (August 28, 2010)
Marine OU:
"The remedy at the Marine OU is protective of human health and the environment. For the
Marine OU, remedial action construction is complete, the remedy is functioning as intended, and
the Certificate of Completion has been issued. The remedial action objectives (RAOs) for the
sediment remedy have been achieved, and institutional controls (ICs) and Restrictive Covenants
remain in effect."
Uplands OU:
"The remedy at the Uplands OU is protective of human health and the environment. For the
Uplands OU, construction is complete, the RAOs have been met, the Certification of Completion
has been issued, and ICs and Restrictive Covenants remain in effect."
Sitewide:
"All remedies at the site are protective of human health and the environment."
Status of Recommendations from the Last Five Year Review (August 28, 2010)
For the Marine OU, there were no recommendations made in the previous Five-Year Review
(August 28, 2010).
For the Uplands OU, the previous Five-Year Review (August 28, 2010) included the
recommendation: "The Borough should inform EPA and the Alaska Department of
Environmental Conservation (ADEC) of lease/sale activity and EPA and ADEC should increase
oversight during a time of high construction activity, at least once each year. The Borough (or
current property owner) should submit a yearly summary of actions taken at the property,
including sales, leases, implementation of ICs. The Borough should develop a plain language
summary of the enforceable institutional controls for distribution to interested lessees or
purchasers, with approval by EPA and ADEC."
This recommendation has been addressed. PSSA, Ward Cove Industries LLC, and ADOT&PF
have maintained good communication with EPA over the past five years in regards to leases,
sales of property and proposed development. EPA has reviewed sampling and construction plans
for several real and proposed construction projects to determine consistency with ICs, such as
ADOT&PF's ferry terminal proposal and plans for the structural removal of pilings in the Cove.
PSSA and Ward Cove Industries LLC have been submitting new lessee notifications to the EPA
22
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as they occur instead of a yearly summary and have been distributing copies of the actual
institutional control documents to their tenants instead of providing them with a summary.
For Sitewide, there were no recommendations made in the previous Five-Year Review (August
28, 2010).
6 FIVE-YEAR REVIEW PROCESS
6.1 Administrative Components/Community Involvement/Document
Review
The Five-Year Review team was comprised of the Remedial Project Managers responsible for
the Marine and Uplands OUs. There are no current active citizen groups associated with the
KPC site. External stakeholders, including the State, were notified of the start of this Five-Year
Review in April 2015. In May 2015, a newspaper ad was placed in the Ketchikan Daily News to
notify the public of the upcoming Five-Year Review. The Five-Year Review consisted of a
review of relevant documents including decision documents (RODs), remedial action completion
reports, long-term monitoring plans and reports, environmental laws and regulations,
enforcement documents, and all documents submitted to meet the institutional control
requirements.
6.2 Data Review - Marine OU
The detailed results of the monitoring program are provided in the 2004 Monitoring Report for
Sediment Remediation in Ward Cove, Alaska (Exponent, June 2005) and Final Remedial Action
Report, Sediment Remediation in Ward Cove Marine Operable Unit, Ketchikan Pulp Company
Site, Ketchikan, Alaska (Integral September 2009). The data from the final monitoring event
(2007) was summarized in the 2010 Five-Year Review Report and additional details on the long-
term monitoring data are provided in the Executive Summary of the 2007 Monitoring Report
(reproduced herein as Attachment 17). Based on the results of the monitoring program, the EPA
determined that the RAOs for the Marine OU have been achieved and that no further sediment
monitoring would be performed pursuant to the LMRP. The EPA approved the 2007 Monitoring
Report for Sediment Remediation in Ward Cove, Alaska (April 2009) on May 7, 2009 (see
Attachment 18).
KPC submitted a Final Remedial Action Report for the Sediment Remediation in Ward Cove
Marine Operable Unit, Ketchikan Pulp Company Site, Ketchikan, Alaska in September 2009 and
the document was approved by EPA Region 10 on October 1, 2009.
The following documents pertaining to the Marine OU were received since the last Five-Year
Review:
• June 10, 2010. ADOT&PF letter and attachments regarding Project 68704 KTN Lay-up
Berth & Mooring Structures. Attachments include:
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April 2010 Budgetary Cost Estimate for Ketchikan Ward Cove Property Demolition & Cleanup
for Layup Berth & Mooring Structures;
August 27, 2009 Response to Peer Reviews of CH2M Hill Ward Cove Scour Study; and
May 29, 2009 Potential for Scour at Ward Cove from Proposed AMHS Ferry Operations.
The letter indicates that the State of Alaska and the KGB have signed a memorandum of
agreement to complete transfer of part of the Ward Cove property by June 30, 2010. The
letter states: "The AMHS intends to make immediate use of the warehouse on this parcel
and begin planning for an office facility and a vessel berth. Please note that the parcel to
be acquired does not include the dock, avoids most of the sand cap, and roughly
coincides with the location the scour report indicates could be used as a working berth
without disturbing the sand cap."
• August 8, 2011. Letter regarding Ketchikan Gateway Borough's Amended Request for
Partial Release from 1999 Environmental Easement and Restrictive Covenants with
Respect to Certain Marine Tidelands within ATS 1: AGO No. 663-06-0111.
• May 20, 2013. Alaska Marine Highway System Ward Cove Marine Facility Feasibility
Plan AKSAS Project Number 73111 Parts 1-3.
• July 16-August 1, 2013. Ward Cove Dredge- Figures 1-4.
• August 12, 2013. Draft Dredge Material Sampling and Analysis Plan, AMHS Ward Cove
Marine Facility.
• August 31, 2013. U.S. Army Corps of Engineers Application for Department of the Army
Permit for Ward Cove Structure Removal.
• September 9, 2013. Draft Quality Assurance Project Plan (QAPP) for Dredge Material
Sediment Sampling for the Alaska Marine Highway System Ward Cove Marine Facility
Feasibility Study.
• September 10, 2013. Final Dredge Material Sampling and Analysis Plan, AMHS Ward
Cove Marine Facility.
• November 1, 2013. Revised 2 Final Dredge Material Sampling and Analysis Plan,
AMHS Ward Cove Marine Facility.
• August 14, 2014. ADOT&PF Individual Permit Application for dredging in Ward Cove,
state project 70006.
• September 29, 2014. AK0053384 Ward Cove APDES Permit.
• October 3, 2014. Email regarding Ward Cove Structure and shoreline debris removal-
US ACE Authorization for work in waters of the U.S. (UNCLASSIFIED).
• October 9, 2014. USACE Alaska District letter to ADOT&PF requesting additional
information.
• November 13, 2014. ADOT&PF letter providing additional information to USACE
Alaska District.
• January 13, 2015. Ward Cove Permit 20150106.
• January 27, 2015. USACE Public Notice of Application for Permit, POA-2013-273, for
ADOT's proposed AMHS Ward Cove Marine Facility Project, including 17 drawings.
• January 27, 2015. USACE Alaska District letter to ADOT, requesting additional
information for ADOT's permit application POA-2013-273 for the AMHS Ward Cove
Facility.
• April 14, 2015. ADOT&PF receives three permit transfers from the Ketchikan Borough
forWard Cove.
• April 16, 2015. ADOT&PF provides agencies with project demolition and removal plans
for pilings and debris in Ward Cove.
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• June 25, 2015. USACE Alaska District letter to ADOT, closing ADOT's permit
application POA-2013-273 for the AMHS Ward Cove Facility.
In 2010, ADOT&PF acquired ownership of a portion of the KPC site post-remediation and has
since proposed the construction and operation of a ferry terminal project in Ward Cove.
ADOT&PF plans to construct and operate a ferry terminal in waters adjacent to the Sediment
Cap and within the Superfund Area of Concern (AOC). The proposed design currently shows
that nearshore fill will be placed on a small portion of the Sediment Cap. Also, navigation into
Ward Cove is currently impeded by Bolles Ledge, a shallow shoal located within the AOC that is
covered with thousands of sunken logs. To deepen the area near Bolles Ledge, ADOT&PF
proposes to use underwater explosive materials to blow up the ledge, and to extract and remove
thousands of logs. The overall construction of the terminal is projected to include dredging, rock
blasting, filling, log removal activities, and installation of structures (pilings, trestles, docks, etc.)
within and adjacent to the AOC. Additionally, once completed, daily terminal operations are
projected to include use by three agencies' ferries and vessels of a turning basin in waters
directly above sediments located within the AOC and of a berth within 50 feet of the Sediment
Cap.
EPA is working with ADOT&PF, ADEC, and USACE Alaska District to ensure that ADOT&PF
demonstrates that the current proposed construction and operations will not materially impair the
thin-layer Sediment Cap.
6.3 Data Review - Uplands OU
The following documents were reviewed for the Uplands OU:
• Exponent. 1998. Remedial Investigation Report, Ketchikan Pulp Company Site, Volumes
I-III.
• Ecology and Environment. 1998. Final Ketchikan Pulp Company Expanded Site
Inspection Report, Volume 1 and 2.
• Exponent. 1999. Technical Memorandum 9, Technical Approach for Evaluating Arsenic
Bioavailability in Soil and Crushed Rock.
• US EPA. 2000. Ketchikan Pulp Company (KPC) Ketchikan, Alaska Uplands Operable
Unit, Record of Decision.
• Exponent. 2000. Management Plan for Arsenic in Rock and Soil.
• Exponent. 2000. Institutional Control Plan for the Ketchikan Pulp Company Site.
• Ketchikan Gateway Borough. 2005. Ketchikan Gateway Borough Sale of West Ward
Cove - Phase 2 Property Information.
• PSSA's notification letters to lessees from January 9, 2012 to May 27, 2015 and template
lease (see Appendix 24)
• Fact sheets and compliance histories for APDES Permit No. AK0053392 issued to KPC
forWard Cove Landfill (permit effective May 1, 2013-April 30, 2018) and APDES
Permit No. AK0053384 issued to Full Cycle LLC for Ward Cove Wastewater Treatment
Plant (permit effective November 1, 2014-October 31, 2019)
• Information on 2013 Regional Soil Screening Levels for dioxins
In addition, interviews were conducted with the following individuals:
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Evonne Reese and Bruce Wanstall- ADEC Project Managers
Sally Wanstall and Amber Bennett- ADEC APDES Program
Phil Benning, Barry Hogarty, and John Peterson- KPC
Dave Spokely, Andrew Spokely, Jen Spokely, and Glen Thompson- PSSA/Ward
Cove Industries LLC
Kirk Miller, Christa Hagan, and Ward Mace- ADOT&PF
Interview Records are provided in Attachment 1.
A site visit was conducted on June 2, 2015. The Site Inspection Checklist is provided in
Attachment 2 and associated photographs are provided in Attachment 3. Site visit participants
included representatives from KPC, PSSA and Ward Cove Industries LLC, EPA, and ADEC.
The visit included the mill site property, the KPC landfill and lagoon, and the pipeline and dam
at Connell Lake. The site visit did not include observations of the Marine OU Sediment Cap.
During the site visit, PSSA/Ward Cove Industries LLC records and protocols for management of
this property were reviewed. Attachment 4 includes a map of the former KPC holdings that are
now held by PSSA and ADOT&PF (the landfill is not shown on the map, but is still owned by
KPC).
Since the ROD specified ICs as the primary selected cleanup action, review of the Uplands OU
involved a review of property ownership, land use and ICs, all of which play a significant role in
the effectiveness of the intended remedy. Notable ownership changes since the last five-year
review include:
• On June 16, 2010, the State of Alaska (ADOT&PF) purchased a portion (Tract 3005, Lot
3 A) of the former KPC Facility from Ketchikan Gateway Borough for lay-up and
operational berths for the AMHS.
• On April 18, 2011, the Ketchikan Gateway Borough notified the EPA that the former site
of the Ketchikan Pulp Company mill was purchased by PSSA. Properties transferred
pursuant to the purchase and sale agreement include Parcels 1 through 12. On January 4,
2012, the EPA received closing documents of the sale and transfer of Ketchikan Gateway
Borough's interest and ownership in the Ward Cove Properties to PSSA.
• The land ownership of all parcels associated with this former KPC site, except the Wood
Waste and Ash Landfill, Tract 3017, and Tract 3005, Lot 3A are now in the ownership of
PSSA and ADOT&PF.
• PSSA is leasing land and buildings within its parcels to promote industrial growth and
jobs for Ketchikan, while maintaining ICs outlined in the ROD (see Attachment 24).
PSSA and ADOT&PF have maintained records of all parcels and have enforced the ICs. KPC
has documented landfill cap integrity through periodic monitoring, settlement surveys, and cap
inspections. Monitoring and inspections have verified the stability of the engineering.
Significant physical changes at the property since 2010 include:
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• Many of the former KPC buildings and structures remain on the property in various states
of disrepair, however, there have been no violations of ICs prohibiting excavation of
building foundations, soils, or pavement.
• The Borough removed the paint shop/maintenance shop before the property was sold to
PSSA. The building debris was cleaned up and rock was placed on top of the site. Logs
are stored on top of the rock cover and there is no potential for digging or future
exposure. ICs are in place.
• The foundation of the power plant was removed, but was not dug out below ground
surface.
• In 2012, ADOT&PF removed contaminated sediment from the oil/water separator and
associated settling pond at the AMHS Marine Engineering Warehouse.
• In 2014, ADOT&PF took out the mill property fencing and gate during a highway
straightening project and only replaced the gate.
• ADOT&PF has not done any upland construction, but has done some upland
improvements and plans to build another building in the near future which will be
coordinated with EPA and ADEC.
• PSSA and Ward Cove Industries LLC have not proposed any construction projects yet,
but they have many development ideas for the near future (see Appendix 22) and will
coordinate with EPA and ADEC.
Because of the above developments over the past five years, KPC, PSSA and ADOT&PF now
own all of the former KPC and GFP property which is subject to the Consent Decree and ICs.
Ownership and management of the properties is clear, record keeping is thorough and complete,
and the ICs are being enforced. The completeness of KPC, PSSA, and ADOT&PF's records and
PSSA's notification of ICs to prospective leaseholders indicates that, for at least the foreseeable
future, these ICs will be enforced.
7 TECHNICAL ASSESSMENT
7.1 Question A: Is the Remedy Functioning as Intended by the Decision
Documents?
Marine OU - Yes. Construction of the remedial action is complete, all long-term monitoring
efforts are complete, and the results show that the remedy is functioning as intended and that
RAOs have been achieved.
ICs are adequate and complete; no additional actions related to ICs are necessary. EPA and
ADEC should continue coordinating with ADOT&PF on the structural removal of pilings in the
Cove, the proposed AMHS ferry terminal, and any other potential development within the
Marine OU. PSSA and Ward Cove Industries LLC also have development plans within the Cove
that need to be monitored and reviewed to ensure that no harm is done to the Marine OU remedy
(see Attachment 22). These are ongoing requirements which are currently being complied with.
Uplands OU - Yes. Most remediation activities were complete prior to the ROD. The ROD
called for implementation of: a) institutional controls to limit use of the upland properties to
commercial/industrial (with the exception of the pipeline access road where it was restricted to
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commercial/industrial or recreational use), to prohibit groundwater use, and to require sampling,
characterization, and proper management of the soil in the event of excavation or demolition
activities; b) an arsenic management plan to limit exposure to arsenic from crushed rock used on
the site; and c) long-term monitoring and care of the landfill. All of these elements were put in
place and are functioning as intended.
The ICs were designed to be protective after remediation, even in the event of land transfers, and
have proven effective through multiple land transactions. PSSA and ADOT&PF now own all of
the former KPC and GFP property which is subject to the Consent Decree and ICs (with the
exception of the Dawson Point Landfill still owned by KPC) so ownership and management of
the properties is clear, record keeping is thorough and complete, and the ICs are being enforced.
The completeness of KPC, PSSA, and ADOT&PF's records and PSSA's notification of ICs to
prospective leaseholders indicates that, for at least the foreseeable future, these ICs will be
enforced. EPA and ADEC should continue coordinating with ADOT&PF regarding plans to
construct a new building on its property and with PSSA and Ward Cove Industries LLC
regarding their development ideas (see Attachment 22) that need to be evaluated to ensure no
new exposure pathways are created and that the Uplands OU remedy and ICs are still protective.
In addition, most waste (asbestos, hazardous material) originally left on site after remediation has
been removed and landfill closure has been successful with no runoff or unauthorized effluent
apparent to date under the landfill's APDES permit; therefore, the ICs in place are adequate and
complete and there is no evidence that the original remedy is not protective and effective.
7.2 Question B: Are the Exposure Assumptions, Toxicity Data, Cleanup
Levels, and Remedial Action Objectives (RAOs) used at the Time of the
Remedy Still Valid?
Marine OU - Yes. Site conditions have not significantly changed since the ROD. While
ownership and land use for many of the Uplands OU properties adjacent to the Marine OU have
changed significantly since the ROD, the uncertainty in land use of areas outside of the Marine
OU does not bear on the protectiveness of the remedy. The original assumptions regarding
current and future land use and contaminants of concern for the Marine OU are still valid.
The RAOs for this project are also still valid. There are no changes in the standards identified as
ARARs in the ROD, and there are no newly promulgated standards that might be ARARs to the
site, that bear on the protectiveness of the remedy.
Uplands OU - Yes. After review of the current State and Federal applicable or relevant and
appropriate regulations (ARARs), the EPA believes that the ROD exposure assumptions and
RAOs are still protective.
The ROD utilized industrial worker exposure assumptions for areas evaluated on-site. As part of
the 2010 Five-Year Review, a recalculation based on a residential scenario was conducted using
standard EPA equations and parameters (see Attachment 12). The total risk exceeds a threshold
of 1E-04 for all areas with the exception of the former bottom ash storage pile soils, wood waste
and sludge disposal subarea soils, and forested and developed area soil. This reinforced the
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ROD requirement that the Uplands OU properties remain subject to ICs precluding residential
use.
The original risk and exposure assessment calculated a PCB bioavailability of 100 percent, so the
10 ppm cleanup level is conservative and protective. The underlying oral toxicity values for
arsenic, benzo(a)pyrene, and PCBs have not changed. The industrial screening level of 1000
mg/kg for lead remains protective. See Attachment 25 for a list of all Upland OU cleanup levels.
On February 17, 2012, the EPA released the final non-cancer dioxin reassessment, publishing a
non-cancer toxicity value, or reference dose (RfD), for 2,3,7,8-tetrachlorodibenzo-p-dioxin
(TCDD) in EPA's Integrated Risk Information System (IRIS). The Agency followed current
cancer guidelines and incorporated the latest data and physiological/biochemical research into
the reassessment. The May 2012 updated non-cancer dioxin Regional Screening Levels (RSL)
are 51 ppt TEQ for residential soil and 597 ppt TEQ for commercial/industrial soil (based on the
IRIS RfD for TCDD). Table 1 of the Uplands OU ROD (see Attachment 25) lists a summary of
chemical concentrations, risk estimates, early actions, and residual concentrations and risks. All
residual concentrations of dioxins in the Uplands OU listed in Table 1 are below the new RSL of
597 ppt TEQ for commercial/industrial soil (see Attachment 26). By keeping the property zoned
as commercial/industrial with functional ICs preventing any new exposure pathways, the
Uplands OU remedy meets the new dioxin RSLs and remains protective.
7.3 Question C: Has any Other Information Come to Light that Could Call
into Question the Protectiveness of the Remedy?
Marine OU - No other information has come to light that calls into question the protectiveness of
the remedy.
Uplands OU - No other information has come to light that calls into question the protectiveness
of the remedy. However, because ADOT&PF took out the mill property fencing and gate during
a highway straightening project in 2014 and only replaced the gate, the need to replace the fence
as an engineering control to limit access to the site should be evaluated. At this time, personnel
are on the property to observe activities and there is no evidence of activities that would impact
protectiveness of the remedy.
7.4 Technical Assessment Summary
Marine OU - According to the data reviewed, the remedy is functioning as intended by the ROD,
and RAOs have been achieved. There have been no changes in the physical conditions of the
OU that would affect the protectiveness of the remedy. There are no newly-promulgated
ARARs for sediments. There have been no changes to the standardized risk assessment
methodologies and input parameters that could affect the protectiveness of the remedy. There is
no other information that calls into question the protectiveness of the remedy.
Uplands OU - According to the data reviewed, the site inspection, and interviews, the remedy is
functioning as intended by the ROD. The physical changes that have occurred in the mill area
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have resulted in the removal of some of the residual asbestos and hazardous substances which
could have posed risks in the event of exposure under some scenarios.
There have been no newly promulgated ARARs for the other chemicals of concern in the
Uplands OU. There have been no substantial changes in risk assessment methodologies and
input parameters that affect the protectiveness of the remedy. There is no other information that
calls into question the protectiveness of the remedy. Current management monitoring and record
keeping practices of KPC, PSSA, and ADOT&PF have improved the effectiveness of the ICs.
8 SUMMARY OF ISSUES & RECOMMENDATIONS/FOLLOW-UP
ACTIONS
No issues and recommendations that affect current and/or future protectiveness were identified
during this third Five-Year Review.
Action items that were identified during this third Five-Year Review and do not affect
protectiveness, but are expected to require future action, are summarized below in Table 3.
Table 2. Action Items That Do Not Affect Remedy Protectiveness
OU #Name
Action Item
Marine OU
ADOT&PF is proposing to remove pilings and build an AMHS ferry terminal on
its property within the Marine OU. ADOT&PF should continue coordination with
EPA and ADEC on all development proposals for the Cove.
Marine OU
PSSA and Ward Cove Industries LLC may propose to build concrete float docks
of various slip sizes, which could test the protectiveness and enforcement
capabilities of the ICs. Additional coordination may be necessary during
construction to ensure proper interpretation of IC guidelines. PSSA and Ward
Cove Industries LLC should continue coordination with EPA and ADEC on all
development proposals in the Cove.
Marine OU
Two APDES permits have been issued to discharge into Ward Cove and there is
potential that a third permit will be issued in 2015. EPA should be aware of the
APDES permits that are issued in the Cove to ensure that the discharges do not
harm the Marine OU remedy.
Uplands OU
PSSA and Ward Cove Industries LLC are actively seeking industrial development
of this property. New construction could test the protectiveness and enforcement
capabilities of the ICs. Additional coordination may be necessary during
construction to ensure proper interpretation of IC guidelines. PSSA and Ward
Cove Industries LLC should inform EPA and ADEC of lease/sale activity and
EPA and ADEC should increase oversight during a time of high construction
activity.
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OU # Name
Action Item
Uplands OU
PSSA and Ward Cove Industries LLC have questions regarding the borders that
require ICs as defined in the Uplands OU Consent Decree compared to "all KPC
properties" requiring ICs as defined in other documents. KPC, PSSA, and
ADOT&PF should summarize the areas on a map for each parcel related to the
ROD, easements, and covenants to aid future review of the site ICs and
development plans.
Uplands OU
Because ADOT&PF took out the mill property fencing and gate during a highway
straightening project in 2014 and only replaced the gate, the need to replace the
fence as an engineering control to limit access to the site should be evaluated.
EPA has determined that KPC, PSSA, and ADOT&PF are performing their IC responsibilities
and are expected to continue to do so, such that the remedy is and is expected to remain
protective. Nonetheless, since PSSA is actively leasing portions of the property and both PSSA
and ADOT&PF have development plans for their properties, the good communication and
coordination that has been occurring will need to continue, and additional coordination may be
necessary should extensive construction result from property development or transfer. Therefore
EPA has made the recommendations for action items above, and KPC, PSSA and ADOT&PF
have indicated their willingness to follow through with implementation. EPA and ADEC will
track their implementation and re-evaluate their effectiveness as part of the next five-year
review.
9 PROTECTIVENESS STATEMENT
Marine OU
The remedy at the Marine OU is protective of human health and the environment.
Uplands OU
The remedy at the Uplands OU is protective of human health and the environment.
Sitewide
The remedy for the site is protective of human health and the environment.
10 NEXT FIVE-YEAR REVIEW
The next review is due by 28 August 2020.
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LIST OF FIGURES
Figure 1
Figure 2
Figure 3
Ward Cove Property Location
Marine and Uplands Operable Units, former Ketchikan Pulp Company Site,
Ketchikan, Alaska
Location of the Ward Cove Area of Concern (AOC), areas of thin layer placement,
dredging, piling removal, and natural recovery (Figure 2, from 2009 Final Remedial
Action Report)
LIST OF ATTACHMENTS
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
Attachment 7
Attachment 8
Attachment 9
Attachment 10
Attachment 11
Attachment 12
Attachment 13
Attachment 14
Attachment 15
Attachment 16
Interview Records
Site Inspection Checklist and Building Map
Photographs
Map of Ward Cove Properties
Ketchikan Pulp Site Parcels Ownership Changes from 2010-2015
Ward Cove Plat and Replats
Zoning Areas and Regulations
Commitment for Title Insurance
Letter from Perkins Coie, to Jacques Gusmano, EPA dated June 27, 2006,
regarding Institutional Control Documents for Ward Cove Pipeline Parcels
Equitable Servitude and Easement, and Subordination Agreement Pipeline Parcels, by
Ketchikan Gateway Borough to ADNR, recorded May 1, 2006
2003 Agreement between Ketchikan Gateway Borough, Gateway Forest Products, and
Ketchikan Pulp Company, recorded July 16, 2008
Ketchikan Pulp Company Residential Risk Calculation
Certification of Completion Letters for Uplands and Marine Operable Units, dated
January 21 and 22, 2010
Letter from Sheila Eckman (EPA) to KGB (Bockhorst) and Alaska Assistant Attorney
General (Welsh), dated January 25, 2010, regarding: CERCLA Liability Associated
with Potential Redevelopment of Ward Cove
Environmental Easement and Declaration of Covenants, recorded July 18, 2003,
between Ketchikan Gateway Borough, Ketchikan Pulp Company, and Gateway Forest
Products
Environmental Easement and Declaration of Covenants, recorded July 15, 2004,
between Ketchikan Gateway Borough and Ketchikan Pulp Company
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Attachment 17
Attachment 18
Attachment 19
Attachment 20
Attachment 21
Attachment 22
Attachment 23
Attachment 24
Executive Summary, 2007 Monitoring Report for Sediment Remediation in Ward
Cove, Alaska (April 2009)
Letter from Karen Keeley (EPA) to Phil Benning (KPC), dated May 7, 2009,
regarding: EPA Approval of 2007 Monitoring Report
Environmental Easement, recorded August 6, 2001, between Ketchikan Pulp
Company and State of Alaska, Department of Natural Resources
Environmental Easement and Declaration of Restrictive Covenants, recorded October
28, 1999, between Ketchikan Pulp Company and State of Alaska, Department of
Natural Resources
Email from Kirk Miller (ADOT&PF) to EPA (Karen Keeley), dated October 23, 2014,
regarding: Submerged land ownership and Letter from Reuben Yost (ADOT&PF) to
EPA, dated June 10, 2010, regarding Project 68704 KTN Lay-up Berth & Mooring
Structures
Ward Cove Industries LLC 2015 Development Plan Map
Letter from Amy Briggs (KGB) to EPA (Karen Keeley), dated January 4, 2012,
regarding: Closing documents related to sale of Ward Cove between KGB and PSSA
List of Power Systems and Supplies of Alaska LLC's Lessees and Template
Lease/Letters Sent to Lessees
Attachment 25
Attachment 26
Uplands Operable Unit Record of Decision, Table 1 (June 7, 2000)
Ketchikan Pulp Company 2015 Five-Year Review Question B Dioxin Reassessment
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Ketchikan
FIGURE 1 Former Ketchikan Pulp Company
Ward Cove Property Location
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- CD
if) .1±
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CD 03
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Refuge
Cove
Former
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LEGEND
-Boundary of AOC
Remediation Areas
i\\\i Dredged areas
Thin layer placement areas
Submerged pilings removed
Notes: Areas within AOC boundary not
marked with hatching or shading
are subject to natural recovery.
Bathymetry in feet at MLLW
Figure 2. Location of the Ward Cove AOC;
areas of thin layer placement,
dredging, piling removal, and
natural recovery
Figure 3
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Attachment 1
Interview Records
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Questions for KPC Site Visit/Interviews: Conference Call 6/11/15
Anne Christopher and Sandy Halstead for EPA
Evonne Reese and Bruce Wanstall for ADEC
Phil Benning, Barry Hogarty, and John Peterson for KPC
Dave Spokely, Andrew Spokely, Glen Thompson, and Jen Spokely for Ward Cove Industries LLC
Kirk Miller, Christa Hagan, and Ward Mace for ADOT&PF
1. Who owns each parcel of land? KPC, Spokelys' companies, ADOT&PF to explain and provide a
map if possible
a. 2013 map that II sent out is still current
b. Power .Systems and .Supplies of AK LLC is the company that owns all the .Spokelys'
property. Ward Cove Industries LLC and the .Spokelys' other companies lease the
property/buildings from PSSA
2. List of lessees on each parcel: Spokelys and ADOT&PF to provide info
a. They will send me a map and a list of lessees
b. ADOT has no leases
3. Are the Institutional Control Plan and Restrictive Covenants still being followed and do they
remain effective?
a. Yes, they are being followed and remain effective.
b. Gllen will send me the missing notifications from 7/26/13 and 4/23/15
4. How are KPC, the Spokelys, and ADOT&PF following the Institutional Control Plan?
a. Dave .Spokely asked if they can send quarterly notifications or yearly summaries instead
of notifying EPA and ADEC of every property transfer/lease update and he asked if they
will need to send the notifications forever. John Peterson reminded Dave that the
notification requirement is in the Consent Decree, so it is not easily changed. Anne told
Dave that the ICs/notification requirement will be in place forever or for as long as the
contamination is left onsite.
b. Dave asked where the Upland OU borders are that require IICs vs. "all KPC properties"
mentioned in some documents. John Peterson said that the Upland OU Consent Decree
describes the borders as well as a series of environmental easements and covenants. All
the covenants have different notification requirements, so it gets confusing.
c. "the question about where the Upland OU borders are that require IICs vs. "all KPC
properties" is a conversation that needs to happen on another call. Make a
recommendation in the SYR report to review the borders of the Upland OU to
determine where the Spokelys can develop the property.
5. Has there been extensive construction as a result of property development or transfer?
a. No construction in the Uplands yet, I ' re will be in the near future. It will be
coordinated with EPA and ADEC.
6. Once per year, KPC, the Spokelys, and ADOT&PF (or current property owner) should submit a
brief report to the United States Environmental Protection Agency (EPA) and Alaska Department
of Environmental Conservation (ADEC) on institutional control implementation and property
changes. Has this occurred? If so, who have the reports been sent to at EPA and ADEC?
a. They have been submitting copies of the notifications for each lease, but have not been
sending EPA/ADEC a yearly summary. Gllen is willing to send a yearly summary if we tell
him what data we would want in the summary and in what format.
7. A plain language summary of the enforceable institutional controls was recommended to be
developed by the Ketchikan Gateway Borough for distribution to interested lessees or
purchasers. Have the Spokelys done this too?
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a. Spokelys aire giving the actual documents, not a summary. Google docs oir CD.
b. If the EPA or ADEC want to draft a summary, they would hand it out. If not, they are
giving the full documents to the lessees so there is less confusion about the
requirements for the property.
a. Anne to confirm with Glen
9. 2 APDES permits for the site, and potentially a third: KPC landfill, Full Cycle LLC, and Boyer
Towing
a. Have there been any permit violations in the last 5 years? Any runoff or effluent
problems?
i. KPC landfill: no effluent violations; hoping to reduce the monitoring
requirements with ADEC
ii. Full Cycle LLC: wastewater treatment plant inherited from Ketchikan Gateway
Borough that had problems (lots of violations for non-reporting and effluent
problems). New permit/new applicant for Full Cycle issued in 2014
b. Are any of the contaminants of concern at the site listed in the discharge limits in the
permits?
10. Is there any residential area along the shoreline that has been developed since 2010?
a. No.
11. Is the former mill area still fenced with an unmanned gate access?
a. No, DOT took the fencing out last year during the highway straightening, but put a gate
back up with ' '" fencing (the only fencing that is missing). Future conversation to
see if a fence is still needed because they have employees and customers coming in and
out so they would prefer not to have one.
b. Landfill is still fenced and locked. Gate for mill property so no vehicles, but no fence,
(they leave the gate open for customers all day)
c. II talked to Sandy and she said that a fence may not be necessary to keep the IICs
functional. Given that the property is staffed onsite, there is a constant flow of people
(not an abandoned property), and the site is not that accessible (have to go down a
steep hill to get to the site), there might not be a huge need for a fence. ->Could put in
a recommendation that does not affect protectiveness of the remedy to monitor
whether or not the IICs are still functional and protective without a fence around the mill
site.
12. According to ADEC during the 2010 5YR, the shallow aquifer and potential deeper aquifer below
the site were not considered a reasonably expected future source of drinking water. Is this still
true?
a. Yes.
13. In 2010, groundwater was not used as a resource and did not likely represent a future resource.
Is this still true?
a. Yes, no functional wells in the area.
14. During the 2010 5YR, drinking water for this area was supplied by the Ketchikan public water
supply system and was stored in a water storage tank on site. Is this still true?
a. Mill has a storage tank and they truck in potable water, all the other homes use
catchment systems. AHMS property catch water from roof (the engineering facility)
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15. A pipeline (wood stave) running from Lake Connell to the former pulp mill facility provides an
industrial water supply. A service road allows access to most of the pipeline. A gate limits
motor vehicle access by the public. Is this still true?
a. Still gated off to vehicle use, open to public for walking (3ft wide path)
16. A large dam at Connell Lake (man-made) and the four-foot diameter pipeline supplied water to
the former mill and in 2010 served as a fire prevention water source for the North Tongass Fire
and Emergency Medical Services (EMS) Area. There were plans for other potential industrial
uses of this water supply. Is the water supply used by other industry now?
a. Only use for water now is for sewage treatment pliant and fire hydrants. Need OINR
permit to use that water...applying now.
17. Are there still several historic small storage/disposal areas along the pipeline?
a. No storage on the pipeline now. .Some pipes on the trail that will be used soon.
18. The Borough was in the process of subdividing the property for ease of sale. Since much of the
land is subject to institutional controls and deed restrictions, the Borough was taking steps to
ensure that prospective buyers and lessors were fully aware of the restrictions that are imposed
on these properties. The Borough had published all the Ward Cove Environmental Notice
Documents on their website. Did the Borough inform the Spokelys of all of the institutional
controls and restrictive covenants and are the Spokelys now informing their lessees too?
a. Yes.
19. The former KPC upland property was zoned as industrial/commercial and was expected to
remain industrial/commercial. The majority of the parcels were zoned Heavy Industrial by the
Ketchikan Gateway Borough. Is this still true?
a. Yes.
b. Anne checked KBG online GIIS zoning map on 6/19/15 and the property is still
industrial/co m m ercial.
20. In 2010, the primary use of Ward Cove was navigation and recreation, including fishing. There
were no public health advisories for consumption of seafood from Ward Cove. Is this still true?
a. Yes, to the best of their knowledge. Anne called AK Department of Fish and Game and
confirmed that there are no fish advisories for Ward Cove at this time.
21. The Spokelys want to start a geoduck and oyster hatchery and nursery. Have they started that
yet?
a. Intended to do it last year. Oceans AK got a grant for a nursery. Spokelys will probably
look at doing it next year.
22. The wood waste and ash landfill has been capped and is currently scheduled for monitoring for
30 years. Do we have monitoring reports to review? Part of the APDES permit?
a. Yes, the landfill has an APDES permit and AOIEC reviews the monitoring reports.
23. The paint shop/maintenance shop had an excess carcinogenic risk estimate of 3 x 10"4,
exceeding industrial worker risk for the combination of total PCBs, arsenic, and benzo(a)pyrene,
and a total non-carcinogenic hazard index (HI) of 8. Lead industrial soil concentrations were also
exceeded at the paint shop and the pipeline. State soil cleanup levels were exceeded in several
areas prior to the EPA-supervised removal activities conducted by KPC. Institutional Controls
and Environmental Protective Easements will monitor subsurface use and disturbance to control
and minimize exposure for industrial uses. Are ICs still working for the paint shop/maintenance
shop?
a. Building doesn't exist anymore. Borough removed it. Area is cleaned up and they put
rock on top. IIC aire in place. Logs stored on top of the rocks, no potential for digging oir
future exposure.
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24. For the Upland OU, exposure pathways that were quantitatively evaluated in the human health
risk assessment were as follows:
a. Current and future adult workers in onsite areas and in areas where aerial deposition
has affected industrial soils were evaluated for potential exposures to CoCs via
ingestion, dermal contact, and inhalation.
b. Current or future adult workers who might contact soils along the former pipeline
access road via ingestion, dermal contact or inhalation.
c. Offsite residents (adults and children) in aerial deposition areas were evaluated for
potential exposures to CoCs via ingestion, dermal contact, inhalation, and consumption
of homegrown produce.
d. Offsite residents who have amended their yards with grit were evaluated for potential
exposures to dioxins in soil via ingestion, dermal contact, inhalation, and consumption
of homegrown produce.
The only completed exposure pathways exceeding the human health based risk levels applied by
the EPA and the State was for current adult workers at the pulp mill site (the paint
shop/maintenance shop area as described above). Are the paint shop/maintenance shop still
used? Are there any new exposure pathways that should be evaluated for the site?
No. Recommendation to evaluate commercial development of lodge...is that
commercial or residential? Commercial lodge would be in an area that had not been used by
KPC.-.so area may not have been characterized. Discussion to be had.
25. The Borough and KPC entered into and recorded an Environmental Easement and Declaration of
Covenants in July 2004 (2004 Covenant). In the 2004 Covenant, the Borough agreed to comply
with all Ward Cove institutional controls that were set forth in the Consent Decree and recorded
in the 1999 Covenant, or otherwise, including the restriction on damaging the cap. Have ADOT
and the Spokelys done the same?
a. Yes.
26. The selected remedy for the Uplands OU included compliance with already-existing institutional
controls to ensure the former pulp mill area remains commercial/industrial and that portions of
the pipeline access road where cleanup activities occurred are not developed for residential use.
These institutional controls are implemented through:
a. Ketchikan Gateway Borough zoning restrictions;
b. Management Plan for Arsenic in Rock and Soil, prepared July 1998;
c. Environmental Protection Easement and Declaration of Restrictive Covenants, recorded
on October 28, 1999;
d. Excavation and Soil Handling Procedures, outlined in the Institutional Controls Plan,
dated June 2000;
e. Environmental Easement between KPC and ADNR, recorded August 6, 2001;
f. Environmental Easement and Declaration of Covenants, between Ketchikan Gateway
Borough, Ketchikan Pulp Company, and Gateway Forest Products, recorded July 18,
2003;
g. Environmental Easement and Declaration of Covenants, between Ketchikan Gateway
Borough and Ketchikan Pulp Company, recorded July 15, 2004; and
h. Equitable Servitude and Easements granted by the Ketchikan Gateway Borough in favor
of the ADNR, recorded May 1, 2006.
Have these been updated for ADOT&PF and the Spokelys?
Glen's response: The short answer is "yes". The individual, original documents were not
amended as that might be a herculean task, but all of the purchase documents are very specific
that the covenants apply to "all successor and assigns" and PSSA was required to acknowledge
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same. The covenants and decrees apply to any transfer or assignment of interest in the
property including leases and deeds of trust. Anytime a person has unfettered access rights to
the property, they are required to sign the CERCLA acknowledgement and abide by the IICs.
27. The selected remedy for the Wood Waste and Ash Disposal Landfill was to close and cover the
landfill with a geomembrane cap, place a topsoil cover over the geomembrane, establish a
vegetative cover and maintain the final cover, the passive gas venting system, and the leachate
treatment system. Check the vegetative cover, passive gas venting system, and leachate
treatment system during the site inspection.
a. .See .Sandy's site inspection checklist
28. The Ketchikan Gateway Borough enforced ICs with all leaseholders and coordinated with EPA
and ADEC on all potential subsurface construction projects. Have the Spokelys been
coordinating with ADEC and EPA?
a. No construction projects yet, but .Spokelys will meet with Phil and John and coordinate
with EPA and ADEC on future construction projects.
b. ADOT: No upland construction. Upland improvements, plan to build another building.
Karen is working on it, Bruce and Evonne at ADEC in the loop. Marine OU- removal of
pilings; ferry terminal proposal
29. Are there any active citizen groups associated with the KPC site?
a. No.
30. Ask Spokelys for a list of significant physical changes at the property
a. Removed the foundation of the power plant, but not below the surface
b. Check in with Jonathan Lappin at the Ketchikan Gateway Borough for any physical
changes from August 2010-December 2011 (PSSA bought the property from KGB in Dec
2011)
31. The Upland ROD called for implementation of: a) institutional controls to limit use of the upland
properties to commercial/industrial (with the exception of the pipeline access road where it was
restricted to commercial/industrial or recreational use), to prohibit groundwater use, and to
require sampling, characterization, and proper management of the soil in the event of
excavation or demolition activities; b) an arsenic management plan to limit exposure to arsenic
from crushed rock used on the site; and c) long-term monitoring and care of the landfill.
a. If the pipeline area can be used recreationally, maybe the bear viewing area that
Spokelys are proposing is ok?
b. Are Spokelys and ADOT&PF sampling before all excavation and demolition?
c. Is the arsenic management plan enforced?
i. Sampled near the new wastewater treatment plant near the log vats/near the
waterfront, sampling had some petroleum, but not arsenic
32. As part of the 2010 five year review a residential risk assessment was recalculated which
confirmed the need for the ROD requirement that the Upland OU properties remain subject to
ICs precluding residential use. Does this preclude the Spokelys' ability to build a lodge on the
site?
a. Barry Hogarty and John Peterson- is the area within the Upland OU? We don't know
that it is. Check Appendix E in Consent Decree. Check delineations of the Upland OU.
KPC does have the private easements and convenants of 2003 and 2004. Property
restricted to "commercial activities of an industrial nature." Lodge is likely in that area. A
prior owner had the same interest. KPC to coordinate with Spokelys.
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Areas to cover during the site visit: the mill area, dock facilities, wooden pipeline and associated dam,
landfill, and aeration ponds
During the 2010 site visit, Borough records and protocols for management of this property were
reviewed. Attachment 4 includes a map of the former KPC holdings that are now held by the Ketchikan
Gateway Borough, and a summary of covenants, easements, and other authorities associated with
institutional controls, and of other relevant real property interests or contractual terms.
nmary of easements, etc, from KPC, Spokelys, and ADOT&PF (any
Recommendation from Evonne: .Summarize the areas on a map for each parcel related to each
easement/covenant/documents to aid future review of the site
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Attachment 2
Site Inspection Checklist and Building Map
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Site Inspection
• The Third Five Year Review site inspection for Ketchikan Pulp Company
(KPC) was conducted on-site at Ward Cove, Ketchikan, Alaska by EPA
Region 10 and Alaska Department of Environmental Conservation staff on
June 2, 2015.
• The site inspection involved physical observations of current land use
conditions, documentation of conditions with photos, and a review of
electronic records and repositories. Areas visited included the mill site
property, the KPC landfill and lagoon, and the pipeline and dam at Connell
Lake. The site visit did not include observations of the marine sediment cap.
• The majority of the mill site property, pipeline, and dam are now under the
ownership of Ward Cove Industries, LLC. Land use and leasee's at the mill
site include a number of commercial business involved in marine supply and
transport and timber-related operations. Many of the former KPC buildings
and structures remain on the property in various states of disrepair, however
building foundations, soils, and pavement have not been excavated in
accordance with institutional controls for the site. A number of watercraft are
moored off the dock and shore of the mill site. The wooden stave pipe road is
designated as a recreational foot trail by the United States Forest Service.
Access to the pipeline road is limited to foot traffic by locked gates at areas
where the trail intersects roads. A 300 foot portion of the water stave pipe
was encased under the North Tongass Highway during a road realignment
project in 2013. The Connell Lake dam face is intact and shows no
observable structural defects. Access to the dam structure is limited by chain
link fencing and a locked gate.
• The KPC landfill and leachate lagoon remain the property and responsibility
of KPC. The landfill and lagoon are well maintained and land use has not
changed. The chain link fence around the lagoon is locked and intact. A
current Alaska Pollutant Discharge Elimination System Permit (APDES) for
lagoon discharge requires quarterly reporting to the Alaska Department of
Environmental Conservation (ADEC).
• The Alaska Department of Transportation owns a parcel at the eastern end of
the mill site which includes a large paved parking area and a building which
houses the Alaska Marine Highway System (AMHS) Engineering Facility.
AMHS also leases the former KPC mill office from Ward Cove Industries
LLC as an administration building.
On June 2, 2015, EPA staff reviewed the electronic site document repository
maintained by Ward Cove Industries, LLC on Google Drive. EPA also reviewed
the lease agreement (attached), notification to agencies of leasee's on site, and
leasee acknowledgement of receipt of the CERCLA KPC Consent Decree which
describes institutional controls and land use restrictions at the site.
1
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Appendix X: Site Inspection Checklist
FIVE-YEAR REVIEW SITE INSPECTION CHECKLIST
L SITE INFORMATION
Site Name: Ketchikan Pulp Company
Date of Inspection: June 2,2015
Location/ Region: Ward Cove, Ketchikan, AK/ R10
EPA ID: AKD009252230
Agency, Office or Company Leading the Five-Year
Review: EPA Region 10
Weather/Temperature: overcast, 55 deg F, calm
Remedy Includes: (Check all that apply)
Landfill cover/containment
~ Access controls
^ Institutional controls
~ Ground water pump and treatment
~ Surface water collection and treatment
PI Other:
~ Monitored natural attenuation
~ Ground water containment
~ Vertical barrier walls
Attachments: ^ Inspection team roster attached
Site map attached
H. INTERVIEWS (check all that apply)
1. O&MSiteKPC PhilBenning Ketchikan Pulo Company
Landfill Name Title
Interviewed [Xl at site Plat office 1 1 b\ ohonc Phone: 907-225-2151
Problems, suggestions |~~| email:
06/02/2015
Date
2. O&M Mill Site Dave Sookclv Ward Cove Industries LLC
Name Title
Interviewed [Xl at site PI at office HI b\ ohonc Phone: 907-617-3450
Problems/suggestions | | email: Dave@wciak.com
06/02/2015
Date
3. Local Regulatory Authorities and Response Agencies (i.e., state and tribal offices, emergency
response office, police department, office of public health or environmental health, zoning office,
recorder of deeds, or other city and county offices). Fill in all that apply.
Agency Alaska Department of Env. Conservation
Contact Evonne Reese Contaminated
Name Sites Project
Manager
Title
Problems/suggestions ~ email: evonne.reese@alaska.gov
Agency US EPA RIO
Contact Sandra HalsteadName Remedial
Project
Manager
Title
Problems/suggestions ~ email: halstead.sandra Vy.cpa.gov
4. Other Interviews (optional) EH Report attached:
ita) 161
Bany Hogarty, Technical Environmental Services -AK, 907-617-4561
06/02/2015 907-465-5229
Date Phone No.
06/02/2015 907-271-1218
Date Phone No.
2
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Brian Farcy, Ward Cove Industries, LLC, 907-617-7622, brian@wciak.com
Andrew Spokely, Power Systems and Supplies of Alaska/Ward Cove Industries, LLC, 907-617-3392,
andrew@pssak.com
III. ON-SITE DOCUMENTS AND RECORDS VERIFIED (check all that apply)
1.
O&M Documents
~ O&M manual ~ Readily available ~ Up to date
M N/A
1X1 Historic layout ^ Readily available ~ Up to date
~ n/a
~ Maintenance logs ~ Readily available ~ Up to date
[XI N/A
Remarks: As-builts for most mill site buildines are not available. Site mans of former mill site
buildinss used for reference durine site inspection
2.
Site-Specific Health and Safety Plan ^ Readily available
1X1 Up to date
~ n/a
1X1 Contingency plan/emergency response ^ Readily available
plan
1X1 Up to date
~ n/a
Remarks: Ward Cove Industries olans were available for review
3.
O&M and OSHA Training Records ~ Readily available
Remarks:
1 1 Up to date
[XI N/A
4.
Permits and Service Agreements
1 1 Air discharge permit ~ Readily available
1 1 Up to date
~ n/a
1X1 Effluent discharge ^ Readily available
1X1 Up to date
~ n/a
~ Waste disposal, POTW ~ Readily available
~ Up to date
~ n/a
I-! Other permits: ~ Readilv available
1 1 Up to date
~ n/a
Remarks: Two APDES Dcrmits: KPC and Full Cvcle LLC
5.
Gas Generation Records ~ Readily available
Remarks:
~ Up to date
IX] N/A
6.
Settlement Monument Records ~ Readily available
Remarks:
1 1 Up to date
[XI N/A
7.
Ground Water Monitoring Records ~ Readily available
Remarks: Fractured bedrock - no groundwater on site
~ Up to date
XI n/a
8.
Leachate Extraction Records ^ Readily available
1)^1 Up to date
~ n/a
Remarks: KPC lasoon and landfill leachate
9.
Discharge Compliance Records
~ Air ~ Readily available ~ Up to date
~ n/a
1X1 Water (effluent) ^ Readily available ^ Up to date
~ n/a
Remarks: KPC lasoon and Full Cvcle LLC APDES Dcrmits
3
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10.
Daily Access/Security Logs
~ Readily available ~ Up to date
IXI N/A
Remarks:
IV. O&M COSTS
1.
O&M Organization
I~1 State in-house
1 1 Contractor for state
1X1 PRP in-house
1 1 Contractor for PRP
1 1 Federal facility in-house
1 1 Contractor for Federal facility
n
2. O&M Cost Records
~ Readily available Q Up to date
~ Funding mechanism/agreement in place ~ Unavailable
Original O&M cost estimate: _ _ ~ Breakdown attached
Total annual cost by year for review period if available
From: mm/dd/wvv To: mm/dd/vvvv O Breakdown attached
Date Date Total cost
3. Unanticipated or Unusually High O&M Costs during Review Period
Describe costs and reasons:
V. ACCESS AND INSTITUTIONAL CONTROLS ^Applicable ~ N/A
A. Fencing
1. Fencing Damaged ~ Location shown on site map ^ Gates secured ~ N/A
Remarks: Fencing removed from most of mill site perimeter by former owner. Ketchikan Gateway
Borough: new fence around AMHS state-owned land by Engineering facility: fence intact around landfill
lagoon: fence intact around access to Connell Lake dam structure
B. Other Access Restrictions: Locked Gates - at vehicle entry points to roads at mill site, water pipeline,
landfill lagoon
1. Signs and Other Security Measures ~ Location shown on site map ~ N/A
Remarks: Numerous signs for no tresspassing and restricted access
C. Institutional Controls (ICs)
4
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1. Implementation and Enforcement
Site conditions imply ICs not properly implemented ~ Yes E No ~ N/A
Site conditions imply ICs not being folly enforced ~ Yes ^ No [] N/A
Type of monitoring (e.g., self-reporting, drive by): self reporting: observation at site visit
Frequency: with each new leasee: annual reporting to EPA. ADEC su
Responsible party/agency: Ward Cove Industries LLC
Contact Glen Thompson glen@wciak.com
Name Title
Reporting is up to date
Reports are verified by the lead agency
Specific requirements in deed or decision documents have been met
Violations have been reported
Other problems or suggestions: ~ Report attached
2. Adequacy ^ ICs are adequate ~ ICs are inadequate ~ N/A
Remarks: Development plans for the site will require coordination between Ward Cove Industries and
EPA/ADEC
D. General
1. Vandalism/Trespassing ~ Location shown on site map ^ No vandalism evident
Remarks: Prior to Ward Cove Industries taking possession, metals and other debris removed from site
illegally
2. Land Use Changes On Site ~ N/A
Remarks: Many new commercial businesses using site and warehouse space
3. Land Use Changes Off Site ~ N/A
Remarks: Planned development for parcels adjacent to the water pipeline
VI. GENERAL SITE CONDITIONS
A. Roads Applicable ~ N/A
1. Roads Damaged ~ Location shown on site map ^ Roads adequate ~ N/A
Remarks:
B. Other Site Conditions
Remarks: Former mill site infrastructure is mostly intact: some buildings have been demolished
VII. LANDFILL COVERS ^Applicable ~ N/A
A. Landfill Surface
iggested
907-617-
2122
Date Phone no.
IEI Yes
~ No
~
~ N/A
1^1 Yes
~ No
~ n/a
1^1 Yes
~ No
~ n/a
I~1 Yes
|K|No
~ n/a
5
-------
1.
Settlement (low spots)
~ Location shown on site map
Settlement not evident
Arial extent:
Depth:
Remarks: KPC provides settlement surveys to ADEC Solid Waste division
2.
Cracks
1 1 Location shown on site map
Cracking not evident
Leneths:
Widths:
Deoths:
Remarks:
3.
Erosion
1 1 Location shown on site map
Erosion not evident
Arial extent:
Dcoth:
Remarks:
4.
Holes
~ Location shown on site map
Holes not evident
Arial extent:
Depth:
Remarks:
5.
Vegetative Cover
1X1 Grass
Cover properly established
1^1 No signs of stress
1 1 Trees/shrubs (indicate size and locations on a diagram)
Remarks: mowins occurs durine summer months to prevent alder tree erowth on cap
6.
Alternative Cover (e g
armored rock, concrete)
[21 N/A
Remarks:
7.
Bulges
~ Location shown on site map
Bulges not evident
Arial extent:
Heisht:
Remarks:
8.
Wet Areas/Water
^ Wet areas/water damage not evident
Damage
1 1 Wet areas
1 1 Location shown on site map
Arial extent:
1 1 Ponding
1 1 Location shown on site map
Arial extent:
I~1 Seeps
1 1 Location shown on site map
Arial extent:
1 1 Soft subgrade
1 1 Location shown on site map
Arial extent:
Remarks:
9.
Slope Instability
1 1 Slides
~ Location shown on site map
1)^1 No evidence of slope instability
Arial extent:
Remarks:
B.
Benches ~ Applicable ^ N/A
(Horizontally constructed mounds of earth placed across a steep landfill side slope to interrupt the slope in
order to slow down the velocity of surface runoff and intercept and convey the runoff to a lined channel.)
6
-------
1.
Flows Bypass Bench Q Location shown on site map
Remarks:
1X1 N/A or okay
2.
Bench Breached ~ Location shown on site map
Remarks:
1X1 N/A or okay
3.
Bench Overtopped ~ Location shown on site map
Remarks:
1X1 N/A or okay
C.
Letdown Channels/ Drainage Swale ^ Applicable
~ n/a
(Channel lined with erosion control mats, riprap, grout bags or gabions that descend down the steep side
slope of the cover and will allow the runoff water collected by the benches to move off of the landfill
cover without creating erosion gullies.)
1.
Settlement (Low spots) ~ Location shown on site map
^ No evidence of settlement
Arial extent:
Depth:
Remarks:
2.
Material Degradation Q Location shown on site map
No evidence of degradation
Material tvpe:
Arial extent:
Remarks:
3.
Erosion Q Location shown on site map
^ No evidence of erosion
Arial extent:
Depth:
Remarks:
4.
Undercutting Q Location shown on site map
^ No evidence of undercutting
Arial extent:
Depth:
Remarks:
5.
Obstructions Tvt>e:
1 I Location shown on site map Arial extent:
Size:
Remarks:
No obstructions
6.
Excessive Vegetative Growth Tydc:
M No evidence of excessive growth
~ Vegetation in channels does not obstruct flow
I | Location shown on site map Arial extent:
Remarks:
D.
Cover Penetrations ^ Applicable ~ N/A
7
-------
1.
Gas Vents ~ Active
1^1 Passive
1 1 Properly secured/locked ~ Functioning
1 1 Routinely sampled
1 1 Good condition
1 1 Evidence of leakage at penetration
1 1 Needs maintenance
~ n/a
Remarks:
2
Gas Monitoring Probes
1 1 Properly secured/locked Q Functioning
1 1 Routinely sampled
1 1 Good condition
1 1 Evidence of leakage at penetration
1 1 Needs maintenance
[21 N/A
Remarks:
3
Monitoring Wells (within surface area of landfill)
1 1 Properly secured/locked ~ Functioning
1 1 Routinely sampled
1 1 Good condition
1 1 Evidence of leakage at penetration
1 1 Needs maintenance
[21 N/A
Remarks: former piezometers at bottom of landfill slooc. no lonser monitored
4
Extraction Wells Leachate
1 1 Properly secured/locked Q Functioning
1 1 Routinely sampled
1 1 Good condition
1 1 Evidence of leakage at penetration
1 1 Needs maintenance
M N/A
Remarks:
5
Settlement Monuments Q Located
Remarks:
1 1 Routinely surveyed
M N/A
E.
Gas Collection and Treatment ~ Applicable
|EI N/A
1
Gas Treatment Facilities
1 1 Flaring Q Thermal destruction
1 1 Collection for reuse
1 1 Good condition Q Needs maintenance
Remarks:
2
Gas Collection Wells, Manifolds and Piping
1 1 Good condition ~ Needs maintenance
Remarks:
3
Gas Monitoring Facilities (e.g., gas monitoring of adjacent homes or buildings)
1 1 Good condition ~ Needs maintenance Q N/A
Remarks:
F.
Cover Drainage Layer ~ Applicable
|EI N/A
1
Outlet Pipes Inspected Q Functioning
Remarks:
~ n/a
2
Outlet Rock Inspected Q Functioning
Remarks:
~ n/a
G.
Detention/Sedimentation Ponds ^ Applicable
~ n/a
8
-------
1.
Siltation Area extent: Depth:
Siltation not evident
Remarks:
~ n/a
2.
Erosion Area extent: Depth:
Erosion not evident
Remarks:
3.
Outlet Works ^ Functioning
~ n/a
Remarks: extremely low flow due to driest Mav on record in Ketchikan
4.
Dam ~ Functioning
Remarks:
M N/A
H. Retaining Walls ~ Applicable ^ N/A
1.
Deformations ~ Location shown on site map
1^1 Deformation not evident
Horizontal displacement: Vertical displacement:
Rotational displacement:
Remarks:
2.
Degradation ~ Location shown on site map
Remarks:
1 1 Degradation not evident
I. Perimeter Ditches/Off-Site Discharge ^ Applicable
~ n/a
1.
Siltation ~ Location shown on site map
1^1 Siltation not evident
Area extent:
Depth:
Remarks:
2.
Vegetative Growth ~ Location shown on site map
Vegetation does not impede flow
~ n/a
Area extent:
Tvpe:
Remarks:
3.
Erosion ~ Location shown on site map
1^1 Erosion not evident
Area extent:
Depth:
Remarks:
4.
Discharge Structure ^ Functioning
~ n/a
Remarks: small natural drainases monitored for landfill leachate. No flow at time of the site visit due to
extremely low Drccioitation in Mav
VIII.
VERTICAL BARRIER WALLS ~ Applicable
|EI N/A
1.
Settlement EH Location shown on site map
~ Settlement not evident
Area extent:
Deuth:
Remarks:
9
-------
2.
Performance Monitoring Tydc of monitorins:
1 1 Performance not monitored
Freauencv: 1"! Evidence of breachine
Head differential:
Remarks:
IX.
GROUND WATER/SURFACE WATER REMEDIES ~ Applicable N/A
A.
Ground Water Extraction Wells, Pumps and Pipelines ~ Applicable ^ N/A
1.
Pumps, Wellhead Plumbing and Electrical
1 I Good condition Q All required wells properly operating O Needs maintenance O N/A
Remarks:
2.
Extraction System Pipelines, Valves, Valve Boxes and Other Appurtenances
~ Good condition ~ Needs maintenance
Remarks:
3.
Spare Parts and Equipment
1 1 Readily available Q Good Q Requires upgrade Q Needs to be provided
condition
Remarks:
B. Surface Water Collection Structures, Pumps and Pipelines ^ Applicable Q N/A
1.
Collection Structures, Pumps and Electrical
Good condition ~ Needs maintenance
Remarks:
2.
Surface Water Collection System Pipelines, Valves, Valve Boxes and Other Appurtenances
Good condition ~ Needs maintenance
Remarks:
3.
Spare Parts and Equipment
Readily available ~ Good ~ Requires upgrade ~ Needs to be provided
condition
Remarks:
C.
Treatment System ~ Applicable ^ N/A
10
-------
1.
Treatment Train (check components that apply)
1 1 Metals removal ~ Oil/water separation Q Bioremediation
~ Air stripping EH Carbon adsorbers
I-! Filters:
I-! Additive (e.e.. chelation asent. riocculcnt):
I-! Others:
1 1 Good condition Q Needs maintenance
1 1 Sampling ports properly marked and functional
1 1 Sampling/maintenance log displayed and up to date
1 1 Equipment properly identified
I-! Ouantitv of sround water treated annually:
I-! Ouantitv of surface water treated annuallv:
Remarks:
2.
Electrical Enclosures and Panels (properly rated and functional)
1 1 N/A Good ~ Needs maintenance
condition
Remarks:
3.
Tanks, Vaults, Storage Vessels
N/A ~ Good ~ Proper secondary containment
condition
1 1 Needs maintenance
Remarks:
4.
Discharge Structure and Appurtenances
1 1 N/A Good ~ Needs maintenance
condition
Remarks:
5.
Treatment Building(s)
1 1 N/A ^ Good condition (esp. roof and
doorways)
1 1 Needs repair
1 1 Chemicals and equipment properly stored
Remarks: Houses generator for continuous flow meter
6.
Monitoring Wells (pump and treatment remedy)
1 1 Properly secured/locked ~ ~ Routinely sampled
Functioning
1 1 Good condition
1 1 All required wells located ~ Needs maintenance
[21 N/A
Remarks:
11
-------
D. Monitoring Data
1. Monitoring Data
Is routinely submitted on time APDES permit
Is of acceptable quality
2. Monitoring Data Suggests:
1 1 Ground water plume is effectively
contained
~ Contaminant concentrations are declining
E. Monitored Natural Attenuation
1. Monitoring Wells (natural attenuation remedy)
~ Properly secured/locked ~ Functioning Q Routinely sampled Q Good condition
~ All required wells located ~ Needs maintenance ^ N/A
Remarks:
X. OTHER REMEDIES
If there are remedies applied at the site and not covered above, attach an inspection sheet describing the physical
nature and condition of any facility associated with the remedy. An example would be soil vapor extraction.
XL OVERALL OBSERVATIONS
A. Implementation of the Remedy
Describe issues and observations relating to whether the remedy is effective and functioning as designed.
Begin with a brief statement of what the remedy is designed to accomplish (e.g., to contain contaminant
plume, minimize infiltration and gas emissions).
The upland remedy to contain on-site waste in a capped landfill remains protective. The landfill cap is
mowed frequently to prevent tree growth and cap penetration. The landfill leachate is collected in a
geomembrane lined lagoon. Outflow from the lagoon is monitored under an Alaska Pollutant Discharge
Elimination System permit. Upland mill site remedies remain protective through institutional controls
w hich rcslricl excavation and prevent disturbance oF uncharactcri/cd soils.
B. Adequacy of O&M
Describe issues and observations related to the implementation and scope of O&M procedures. In
particular, discuss their relationship to the current and long-term protectiveness of the remedy.
Operation and maintenance of the landfill cap and lagoon are optimized and KPC provides a full time staff
to oversee the landfill/lagoon remedy. Implementation of the institutional controls for limiting
disturbance of pavement, building foundations, and soil in the mill area will be necessary as development
of new commercial businesses are established on the site. O&M of the dam and water stave pipe appear
to be improved under the ow nership oF Ward Cove Industries.
C. Early Indicators of Potential Remedy Problems
Describe issues and observations such as unexpected changes in the cost or scope of O&M or a high
frequency of unscheduled repairs that suggest that the protectiveness of the remedy may be compromised
in the future.
None observed
D. Opportunities for Optimization
Describe possible opportunities for optimization in monitoring tasks or the operation of the remedy.
Ketchikan Pulp Company has been granted a reduced reporting frequency for their APDES permit from
monthly to quarterly.
12
-------
si
-------
Attachment 3
Photographs
-------
Ketchikan Pulp Company Third Five Year Review Site Visit Photograph Log
Photos taken June 2, 2015 at Ward Cove, Ketchikan, Alaska
Photo 3. View of abandoned power substation,
northeast of administration building. Yellow
building in background is former KPC Filter Plant
and can be seen from North Tongass Highway.
Photo 5. Electrostatic precipitators from KPC
mill Alcan log sorting yard on former boiler
house site.
Photo 6. New fence installed by Ketchikan
Gateway Borough at N. Tongass Hwy. Site
perimeter fence was removed by KGB.
Photo 1. Former KPC Mill Office, leased as an
administration building to Alaska Marine Highway
Photo 2. View to southeast downslope from
administration building
Photo 4. Former Hazardous Waste buildings.
Fioor drains to catchment basin.
1
-------
Photo 7. View east of silo's arid former
demolished woodroom and boiler house
buildings.
Photo 9. Leaking pipe 'waterfall' to north of
demolished woodroom building
Photo 8. View to south of rubble from former
woodroom building.
Photo 10. View west of former boiler house
building, now used by Alcan as a log sorting yard.
No. 2 Warehouse is the yellow building in the
background
Photo 11. View east of silos and demolished
former woodroom building.
Photo 12. New fence defining ADOT / AMHS
Engineering Facility property in the southeast
corner of the mill site.
2
-------
Photo 13. View north of silo's and 1 miilion
gallon fuel tank. Tank interior has been restored
for future marine fuel storage and distribution.
Photo 14. View of Alaska Marine Highway
System Engineering building on east end of mi
site.
Photo 15. View Northwest from AMHS parking
lot towards former mill site.
Photo 16. View west of mill site and Ward Cove
from North Tongass Highway
Photo 17. View to southeast from AMHS across
Ward Cove with remaining pilings. Proposed new
location of AMHS ferry terminal
Photo 18. AMHS ferry "Malaspina" docked at current
ferry terminal in Ketchikan. The proposed new Ward Cove
AMHS terminal would berth ferries as large as the
"Malaspina". This picture is for scale and comparative
purposes
3
-------
Photo 19. View of the southeast portion of Ward
cove. Leasee USFS floating cabin moored to dock
Photo 20. Matanuska-Susitna "MV Susitna" ferry
moored at the KPC dock.
Photo 21. Mining company barge leasing a
mooring spot on the KPC dock
Photo 22. MV Modoc leasing a mooring space in
Ward cove. High water barge off-loading ramp
on shoreline.
Photo 23. Olson Barge Company leasing a
mooring spot in Ward Cove.
Photo 24. West side of former KPC building
'stores'. Leased by AK Powder Coatings
4
-------
Photo 25. View of east side of former KPC
building 'stores' with diesel engine repair leasee
Photo 26. View to north from former KPC 'stores'
building. Alcan log sorting yard in mid; one
remaining wood stave silo behind logs.
Photo 27. Western face of No. 1 Warehouse,
currently leased as a shop for Tongass Wood
products.
Photo 28. No. 3 Warehouse on the northwest
side of the mill site. Used and leased for dry
storage
Photo 29. View north of No. 2 Warehouse (on
left). Former paint shop removed from behind
building in center. Note overhead powerlines
installed by KGB.
Photo 30. Former KPC Building rubble on site.
Aeration basin secondary clarifiers in backgournd.
5
-------
Photo 31. Former KPC building mobile Photo 32. Former KPC effluent neutralization
equipment shop. building. Used by Full Cycle LLC.
Photo 33. Scrap metal yard. Aeration basin Photo 34. View of mill site from west looking east
concrete tank in background.
Photo 35. Gravel road north of aeration basin Photo 36. On-site quarry used for fill rock,
area up to North Tongass Hwy. Incline of road
difficult to ascertain in photo.
6
-------
Photo 37. Geomembrarie lined sediment lagoon
at the KPC landfill. Note six foot chain link fence
Photo 38. Lagoon aerators. Extant but
deactivated in 2007
Photo 39. Locked gate for KPC landfill lagoon
Photo 41. Flow pumps for KPC landfill lagoon.
Photo 40. Landfill generator and storage building.
Photo 42. Outflow/ discharge point for landfill
lagoon. APDES sample point of compliance.
7
-------
Photo 43. "natural area" outflow from lagoon
with landfill upslope.
Photo 44. Landfill leachate compliance
monitoring location SWL12. Dry at time of site
inspection and normally is a small flowing creek.
Photo 45. Looking upslope from landfill toe.
Former manhole vent in foreground; passive
landfill vents seen on landfill horizon.
Photo 46. Top of KPC landfill looking to the
southeast.
Photo 47. Top of KPC landfill, view looking
southwest.
Photo 48. Surface overland flow drainage swale
on top of landfill.
8
-------
Photo 49. Locked gate at Connell Lake dam
structure.
Photo 51. Connell Lake, view to northeast. Log Photo 52. Outflow from dam and intake point for
boom put into place by Ward Cove Industries to wood pipeline,
prevent log buildup on dam spillway face.
Photo 53. Wood pipeline carries water 3.1 miles Photo 54. Wood stave pipeline
to KPC mill site
9
-------
Attachment 4
Map of Ward Cove Properties
-------
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DOT&P:
RopeK
PHAS^I
DRED
MOO Ft
TURNIN
BASIN
Boyer Towing INC
PO Box 8000
Ketchikan, AK 99901
SPOKELY
¦I
M.
Power Systems and Supplies
of Alaska LLC, Ward Cove
Industries LLC, Remote Made
Easy LLC, Full Cycle LLC
David Spokely 907-617-3450
Andrew Spokely 907-272-7772
PO BOX 772
Ward Cove, Alaska 99928
S Vf $
/ *
I 7//
Power Systems|
and Supplies
PHASE 2
REDGING
PHASE 1
DREDGING
Borehole Locations '
(NAD83, Alaska State Plane Zone 1. US Feet)
| Borehole
Northing
Easting
A
1310565
3090150
B
1310353
3090138
C
1310201
3089969
D
1309925
3089820
E
1309626
3089734
F
1309465
3089748
I G
1309303
3089694 |
LEGEND
PROPOSED BOREHOLE LOCATION
2004-2007 SEDIMENT MONITORING POINTS
BOUNDARY OF AOC
PROPERTY LINE
SAND CAP
TURNING BASIN
SCALE IN FEET
I
ALASKA DEPT OF TRANSPORTATION & PUBLIC FACILITIES
WARD COVE SEDIMENT SAMPLING
PLANNED
BOREHOLE/SEDIMENT
SAMPLING LOCATIONS
WARD COVE, ALASKA
JOB NO: 26221169
DRAWN: ELK
Exhibit A
DATE: SEPTEMBER 2013
FILE: See left margin
-------
Attachment 5
Ketchikan Pulp Site Parcels Ownership Changes from 2010-2015
-------
Former Ketchikan Pulp Company
303310001000 (Parcel) 3100012,115, 1319933.214 (1)
2010
303310001000 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
303310001000
WARD LAKE
RD
KETCHIKAN
GATEWAY
BOROUGH
585300
1253700
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015 Power Systems &
Supplies of Alaska
LLC
-------
307490034001 (Parcel) 3090678.782, 1313266.547 (1)
2010
307490034001 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display
Field
307490034001
PIPELINE ROW
E SIDE
APPROX 1400'
FROM NTH
KETCHIKAN
GATEWAY
BOROUGH
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
313310002000 (Parcel) 3090012,115, 1312683.214 (1)
2010
313310002000 (Parcel) (1)
PARCELNO
LOCATION
OWN ER_N AM E
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313310002000
N TONGASS
HWY 7100
BLK
KETCHIKAN
GATEWAY
BOROUGH
59600
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
313310032500 (Parcel) 3089651.004, 1312294.325 (1)
2010
313310032500 (Parcel) (1)
PARCELNO
LOCATION
OWN ER_N AM E
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313310032500
N TONGASS
HWY 7200
BLK
KETCHIKAN
GATEWAY
BOROUGH
273300
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
313340038000 (Parcel) 3086651.004, 1308572.103 (1)
2010
313340038000 (Parcel) (1) :
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340038000
BRUSICH
RD
KETCHIKAN PULP
COMPANY
ATTN
BENNING
PHIL
16000
0
PO BOX
6600
KETCHIKAN
AK
99901
KETCHIKAN
PULP
COMPANY
2015 Ketchikan Pulp
Company
-------
313340039500 (Parcel) 3087262,115, 1309183.214 (1)
2010
313340039500 (Parcel) (1)
PARCELNO
LOCATION
OWN ER_N AM E
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340039500
BRUSICH
RD
KETCHIKAN
GATEWAY
BOROUGH
194300
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015 Power Systems &
Supplies of Alaska
LLC
-------
Former Ketchikan Pulp Company
313340040100 (Parcel) 3089442,671, 1310210.992 (1)
2010
3133400401.00 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340040100
N TONGASS
HWY 7037
KETCHIKAN
GATEWAY
BOROUGH
3476200
1615400
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015 Power Systems &
Supplies of Alaska
LLC and State of
Alaska (ADOT&PF)
-------
313340040500 (Parcel) 3088428.782, 1309766.547 (1)
2010
313340040500 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340040500
N TONGASS
HWY 7691
KETCHIKAN
GATEWAY
BOROUGH
309400
266600
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015 Power Systems &
Supplies of Alaska
LLC
-------
Former Ketchikan Pulp Company
313340040700 (Parcel) 3087928.782, 1309905.436 (1)
2010
313340040700 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340040700
N TONGASS
HWY 7757
KETCHIKAN
GATEWAY
BOROUGH
34500
37200
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
313340041500 (Parcel) 3088289.893, 1310738.77 (1)
2010
313340041500 (Parcel) (1)
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340041500
N TONGASS
HWY 7559
KETCHIKAN
GATEWAY
BOROUGH
472600
522700
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
313340041600 (Parcel) 3088206.56, 1311072.103 (1)
2010
313340041600 (Parcel) (1) i
PARCELNO
LOCATION
OWNER_NAME
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340041600
N TONGASS
HWY 7559
KETCHIKAN
GATEWAY
BOROUGH
294900
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
-------
Former Ketchikan Pulp Company
313340041700 (Parcel) 3087039.893, 1310377.659 (1)
2010
313340041700 (Parcel) (1)
PARCELNO
LOCATION
OWN ER_N AM E
OWNER_2
APR_LAND_V
APR_IMPS
ADDRESS
CITY
STATE
ZIP
Display Field
313340041700
N TONGASS
HWY 7700
BLK
KETCHIKAN
GATEWAY
BOROUGH
301100
0
1900 FIRST
AVE SUITE
210
KETCHIKAN
AK
99901
KETCHIKAN
GATEWAY
BOROUGH
2015
Power Systems &
Supplies of Alaska
LLC
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Attachment 6
Ward Cove Plat and Replats
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Attachment 7
Zoning Areas and Regulations
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Industrial Zoned Area - KPC
'Mm
IH (ZONING) 3088912.158, 1311175.13 (1)
2010
IH (ZONING) (1)
Object
ID
ZONE_TYPE
ZONE_DIST
REZONE
ZONE_CLASS
SL_OVERLAY
MOBIL_OVER
OVERLAY
Shape.area
Shape.ien
Display
Field
187
IH
IH
INDUSTRIAL
NL
6615942.177255
22374.93043
IH
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Commercial Zoned Area - KPC
CG (ZONING) 3086641.324, 1309459.852 (1)
2010
CG (ZONING) (1)
Object
ID
ZONE_TYPE
ZONE_DIST
REZONE
ZONE_CLASS
SL_OVERLAY
MOBIL_OVER
OVERLAY
Shape.area
Shape.ien
Display
Field
145
CG
CG
COMMERCIAL
NL
1344527.474186
5868.649111
CG
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Commercial Zoned Area - KPC
CG (ZONING) 3090024.22, 1312315.889 (1)
2010
CG (ZONING) (1)
Object
ID
ZONE_TYPE
ZONE_DIST
REZONE
ZONE_CLASS
SL_OVERLAY
MOBIL_OVER
OVERLAY
Shape.area
Shape.ien
Display
Field
248
CG
CG
COMMERCIAL
NL
2340389.050376
7704.481958
CG
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Future Development Zoned Area - KPC
3,400 1,700
3,400 Feet-
FD (ZONING) 3090138.752, 1313066.977 (1)
2010
FD (ZONING) (1)
Object
ID
ZONE_TYPE
ZONE_DIST
REZONE
ZONE_CLASS
SL_QVERLAY
MOBIL_OVER
OVERLAY
Shape.area
Shape.len
Display
Field
222
FD
FD
FUTURE DEV.
NL
3375427546.45092
439596.636001
FD
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60.10.070. IH Zone, Heavy Industrial Zone,
(A) Uses permitted:
(1) Principal uses:
(a) All principal uses permitted in the EL Zone except multifamily dwellings and
rooming and boarding houses provided that dormitories for persons employed on
the premises and homes of a caretaker or watchman employed on the premises are
permitted;
(b) Automobile, airplane and track assembling;
(c) Airplane, rail end marine shipping terminals;
(d) Food processing plants;
(e) Wood processing plants;
(f) Auto wrecking and junk yards provided that such uses be screened from all abutting
major thoroughfares or collector streets by six (6) foot high sight-obscuring fences
of good appearance acceptable to the planning and zoning commission;
(g) Manufacturing plants using heavy machinery;
(h) Coal or coke yards;
(i) Hot-mix asphalt and concrete batch plants.
(j) Fuel distribution facilities subject to continued compliance with relevant fire
prevention codes and other applicable laws and regulations.
(2) The conditional uses which may be permitted by the planning commission as provided in
section 60.10.110, are:
(a) Mobile buildings as office, commercial or watchman's quarters subject to the
requirements listed in section 60.10.100;
(b) Mobile building sales lots subject to the requirements listed in section 60.10.100.
(c) Boarding kennels subject to the requirements listed in section 60.10.113.
(d) Commercial shopping centers subject to the requirements listed in 60.10.080(N).
(e) Telecommunications facilities subject to the requirements of 60.10.117(A).
Chapter 60,10.070
08/2006
Page 1 of2
Ketchikan Gateway Borough
Code of Ordinances
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(3) Accessory uses which are clearly incidental to permitted uses and which will not create a
nuisance or hazard including signs as permitted in section 60.10.090 and
telecommunications antennas as set forth in section 60,10.117,
(4) All uses not otherwise prohibited by law.
(B) Uses prohibited:
(1) Any use or structure not listed under permitted principal or accessory uses.
(C) Development requirements:
(1) Minimum lot width: Fifty (50) feet.
(2) Lot area, yard, coverage and height requirements: None, except that whenever an 1H Zone
abuts or is separated by an alley from a residential zone, a fifty (50) foot wide buffer shall
be provided, or where necessary be re-established, between the use or structure in the IH
zone and the boundary of the residential zone.
(3) Off-street parking and loading shall be provided as required in section 60.10.085.
(Ord.No. 34, 5-27-68; Code 19S9, §49.15.140; Ord.No, 368, §§16,17, 7-21-80; Old. No. 482, §1,11-21-83; Ord.No.939, §7,5-16-94; Ord. No. 1031, §7,5-
19-97; Ord. No. 1079, §10,11-16-98; Ord. No. 1091, §6,3-1-99; Ord. No. 1093, §2,5-17-99; Ord. No 1150, §1,9-18-00; Ord. No. 1294, §1,2-2-04; Ord. No.
1398, §10, 7-24-06)
Chapter 60.10.070
08/2006
Page 2 of2
Ketchikan Gateway Borough
Code of Ordinances
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60.10.060. CG Zone. General Commercial Zone.
(A) Uses permitted:
(1) Principle uses:
(a) All principal uses permitted In the CC Zone;
(b) Gasoline service stations;
(c) Automotive sales agencies;
(d) Laundromats and bakeries;
(e) Public and private off-street parking lots;
(f) Drive-in businesses;
(g) One (1) and two (2) family dwellings, provided that such uses shall be conducted on
floors other than the ground floor except where the ground floor elevation differs
from the elevation of the nearest adjacent improved right-of-way by greater than ten
(10) feet. In cases where residential use is allowed as the sole use of the property,
the development requirements of the medium density residential zone,
60.10.040(D) shall apply.
(2) Accessory uses which are clearly Incidental and permitted uses and which will not create a
nuisance or hazard, including signs as set forth in section 60.10.090 and
telecommunications antennas as set forth in section 60.10.117.
(3) "The following conditional uses may be permitted by the planning commission to the extent
and In the manner provided in section 60.10.110 of the KGB Code:
(a) All tax-exempt uses, subject to the requirements listed in section 60.10.080(A);
(b) Manufacturing, fabricating, assembling, enclosed storage, and repairing, including
automotive repair, provided that such uses meet development requirements (C)(1)
through (C)(l 1) of the JL Zone;
(c) Boarding kennels subj ect to the requirements listed In section 60.10.113.
(d) Heliports and helistops;
(e) Mobile buildings as office, commercial or watchman's quarters subject to the
requirements listed In section 60.10.100;
(f) Travel trailer parks subject to the requirements listed in section 60.10.] 00;
Chapter 60.10.0fi0
08/2006
Page 1 of2
Ketchikan Gateway Borough
Code of Ordinances
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(g) Mobile building sales lots subject to the requirements listed in section 60.10.100.
(h) Small scale food and seafood processing operations as defined in section 60.10.140.
(i) Veterinary clinics;
Q) Commercial shopping centers subject to the requirements listed in 60.10.080(N).
(k) Telecommunications facilities subject to the requirements of 60.10.117(A).
Uses prohibited:
(1) Any use or structure not listed under permitted principal, accessory and conditional uses.
Development requirements:
(1) Minimum lot width: Fifty (50) feet,
(2) Lot area, yard and coverage requirements: None except as stated in section
60.10.080.
(3) Maximum height of all structures: Fifty (50) feet measured as prescribed under
definitions for maximum structure height or maximum building height and grade,
as applicable.
(4) Off-street parking and loading space required and shall be provided as required in
section 60.10,085.
(5) All open storage shall be enclosed by an eight (8) foot high fence.
(6) Whenever a CG Zone abuts or is separated by an alley from a residential zone, the
use or building in the CG Zone shall be screened by a sight-obscuring fence or
hedge.
(Code 1969, §49.15.120; Ord. No. 64.5-4-70; Ord.No. 136, §3,8-20-73; Ord. No. 368, §14,7-21-80; Ord. No. 414, gl, 5-3-82; Ord. No. 761, §9,9-4-90; Ord.
No.939, §5, 5-16-94; Orcl. No. 1031, §5,5-19-97; Ord.No. 1041, §2,9-2-97; Ord.No. 1079, §§6,7,11-16-98; Ord. No. 1089,§9,2-16-99;Ord.No. 1091, §4,3-
1-99; Ord. No. 1294, §1,2-2-04; Ord. No. 1391, § 1,4-17-06; Ord. No. 1398, p, 7-24-06)
OJLA,—Variances, 73-16.
(B)
(C)
Chapter 60.10.060 Page 2 of 2 Ketchikan Gateway Borough
08/2006 Code of Ordinances
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60,10,030. ID Zone. Future Development Zone.
(A) Uses permitied:
(1) Principal uses:
(a) Watershed reserves and wildlife preserves;
(b) Campgrounds, hunting and fishing areas, siding areas and other developments for
outdoor recreation;
(c) Forest reserves and agriculture;
(d) Logging, mining and extraction of natural resources subject to the development
requirements stated herein;
(e) One (1) family dwellings, subject to the development requirements stated herein;
(f) Hotels and lodges.
(g) Temporary uses and buildings subject to the requirements listed in section
60.10.107.
(2) Accessory uses:
(a) Structures and uses which are necessary to conducting permitted principal uses.
(b) Telecommunications antennas which are attached to a permitted structure and
which will not create a nuisance or hazard as set forth in 60.10.117.
(3) [Conditional uses:] The conditional uses which may be permitted by action of the planning
commission as provided in section 60.10.110, are:
(a) Travel trailer parks subject to the requirements listed in section 60.10.100;
(b) Cottage industries subject to the requirements listed in section 60.10.074;
(c) Storage of explosives, subject to compliance with all applicable local, state and
federal laws and regulations.
(d) Telecommunications facilities subject to the requirements of 60.10.117(A).
(B) Uses prohibited:
(1) Any use or structures not listed under permitted principal and accessory uses.
(C) Development requirements:
Chapter 60.10.030 Page 1 of 2 Ketchikan Gateway Borough
08/2006 Code of Ordinances
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(1) For all logging, mining and similar industrial extractive activities, a strip of uncleared land
at least one hundred (100) feet wide shall be provided between such uses and all public
rights-of-way and all adjoining boundaries of residential zones or recreational areas.
(2} For all cabins and similar residential structures permitted in this zone the development
requirements shall be as stated in section 60.10.033(C) of the RS Zone.
(Code 1969, §49.15.060; Ord.No. 341, §2,9-4-79; Ord.No.368, §6,7-21-80; Ord. No. 639,84,12-21 -87; Ord.No. 716, § 1, !1 -20-89; Ord. No. 743, §§ 1,2,6-
4-90; Ord. No. 939, §2, 5-16-94; Ord. No. 1031, §2, 5-19-97; Ord. No. 1294, §1,2-2-04; Ord.No. 1398, iji, 7-24-06)
Chapter 60.10.030
08/2006
Page 2 of 2
Ketchikan Gateway Borough
Code of Ordinances
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60.10.065. IL Zone, Light Industrial Zone.
(A) Uses permitted:
(1) Principal uses:
(a) All principal uses permitted in the CG Zone, except one (1) and two (2) family
dwellings;
(b) Enclosed storage yards and contractors' yards except for auto wrecking yards and
junkyards;
(c) Light manufacturing, fabricating, assembling and storage uses of a character that
meets the development requirements listed below;
(d) Automotive repair;
(e) Bus and tracking terminals;
(f) Veterinary clinics;
(g) Dormitories for persons employed on the premises or dwellings for a caretaker or a
watchman.
(2) The conditional uses which may be permitted by the planning commission to the extent and
in the manner as provided in section 60.10.110 of the KGB Code:
(a) All tax-exempt uses subject to the requirements listed in section 60.10.080(A);
(b) Mobile buildings as office, commercial or watchman's quarters subject to the
requirements listed in section 60.10.100;
(c) Mobile building sales lots subject to the requirements listed in section 60.10.100;
(d) Small scale food and seafood processing operations as defined in section 60.10.140;
(e) Boarding kennels subject to the requirements listed in section 60.10.113;
(f) Commercial shopping centers subject to the requirements listed in 60.10.080(N).
(g) Fuel distribution facilities subject to continued compliance with relevant fire
prevention codes and other applicable laws and regulations.
(h) Telecommunications facilities subject to the requirements of 60.10.117(A).
(3) Accessory uses which are clearly incidental to permitted uses and which will not create a
nuisance or hazard, including signs as set forth in section 60.10.090 and
Chapter §0.10,065 Page 1 of 3 Ketchikan Gateway Borough
08/2006 Code of Ordinances
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telecommunications antennas as set forth in section 60.10,117.
(B) Uses prohibited: Any use or structure not listed under permitted principal or accessory uses.
(C) Development requirements:
(1) Noise limitation: In all 1L Zones the noise emanating from the use of property shall be
muffled so as not to be objectionable due to intermittence. beat frequency or shrillness. The
maximum permissible sound pressure level, measured at the boundary line between the IL
Zone and any residential zone shall be no greater than the following between the hours of
7:00 p.m. and 7:00 a.m.:
Sound Pressure Level
Frequency Band Decibels RE 0,0002
Cycles Per Second Dynes/cm7
20—75 69
75—150 54
150—300 ...............47
300—600 ......41
600—1,200 ...37
1,200—2,400 .............34
2,400—4,800 31
4,800—10,000 28
During other hours each of the sound level measurements may be increased not to exceed
ten (10) decibels over the above figures.
(2) Electrical interference: The proposed use or structure shall not interfere with electrical
processes in nearby buildings or land uses.
(3) Lighting: Any lighting shall not be used in a manner which produces glare on public
highways and neighboring property. Arc welding, acetylene torch cutting and similar
processes shall be performed so as not to be seen outside the property.
(4) Fire and safety hazards: The storage and handling of flammable liquids, liquefied
petroleum, gases and explosives shall comply with the lire prevention code and all other
applicable laws and regulations. Enameling and paint-spraying operations shall be
permitted when incidental to the principal use and when such operations are contained
within a building of two (2) hour fire-resistive construction.
(5) Vibration: Any machine or operation which causes a displacement exceeding three-
thousandths (3/1000) of one (1) inch as measured at the property line is prohibited.
(6) Odor: Uses causing the emission of obnoxious odors of any kind and the emission of any
toxic or corrosive fumes or gases are prohibited.
Chapter 60.10.065
08/2006
Page 2 of3
Ketchikan Gateway Borough
Code of Ordinances
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(7)
Dust and smoke: Dust and smoke created by industrial operations shall not be exhausted or
wasted into the air in such a maimer as to create a nuisance.
(8) Open storage: Any storage shall not be located closer than twenty-five (25) feet to any
street right-of-way. Any storage shall be enclosed with an eight (8) foot view-obscuring
high fence of good appearance acceptable to the planning and zoning commission.
Whenever lumber, coal or other combustible material is stored, a roadway shall be
provided, graded and maintained from the street to the rear of the property to permit free
access for fire trucks at any time.
(9) Shipping and receiving: No shipping and receiving dock located within one hundred (100)
feet of a residential district shall be operated between the hours of 7:00 p.m. and 7:00 a.m.
(10) Residential buffer: Wherever an IL Zone abuts or is separated by an alley from a residential
zone, the use or building in the IL Zone shall be screened by a sight-obscuring enclosure.
(11) Minimum lot width: Fifty (50) feet.
(12) Lot area, yard and coverage requirements: None except as stated in section 60.10.080.
(13) Maximum height of all structures: Thirty (3 0) feet measured as prescribed under definitions
for maximum, structure height or maximum building height and grade as applicable.
(14) Off-street parking and loading space shall be provided as required in section 60.10.085.
(Code 1969, §49.35.130; Ord,No.368, §15,7-21-80; Ord.No.51S, §3,10-15-84; Ortl. No. 761, § 10,9-1-90; On!. No. 906, § 1,6-7-93; Ord.No. 939, §6,5-16-
94; Ord. No. 1031, §6,5-19-97; Ord. No. 1041, §2,9-2-97; Ord. No. 1079, §§S, 9,11-16-98; Ord No. 1089, §10,2-16-99; Ord. No. 1091, §5,3-1-99; Ord. No.
1093, §3,5-17-99; Ord. No, 1121, §§1» 2,11-15-99; Ord. No. 1294, §1,2-2-04; Ord. No. 1391, §2,4-17-06; Ord. No. 1398, §9,7-24-06)
Chapter 60,10.065
08/2006
Page 3 of 3
Ketchikan Gateway Borough
Code of Ordinances
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60.10,055. CC Zone. Central Commercial Zone.
(A) Uses permitted:
(1) Principal uses:
(a) Retail and wholesale businesses;
(b) Business and consumer services, including newspaper and printing establishments
and radio and television studios;
(c) Banks and business and professional offices;
(d) Theaters and other commercial recreation uses;
(e) Hotels and motels;
(f) Multiple-family dwellings, dormitories, rooming and boarding houses, except when
located on the ground floor and within fifty (50) feet of the right-of-way line of a
collector street;
(g) Private clubs, lodges, fraternal organizations, union halls, hiring halls and social
halls, except establishments operating under a beverage dispensary or club license
from the State of Alaska Alcohol Beverage Control Board;
(h) One (1) and two (2) family dwellings, provided that any such use shall be
conducted on floors other than the ground floor;
(i) Residential use of commercial space, existing as of [June 7,1993J the adoption of
this ordinance, provided that all residential building code requirements are met.
(j) Temporary uses and buildings subject to the requirements listed in section
60.10.107.
(2) Accessory uses which are clearly incidental to permitted uses and which will not create a
nuisance or hazard, including signs as set forth in section 60.10.090 and
telecommunications antennas as set forth in section 60.10.117.
(3) The following conditional uses may be authorized by the planning commission to the extent
and in the manner provided in section 60.10.110 of the KGB Code:
(a) All tax-exempt uses, subject to the requirements listed in section 60.10.080(A);
(b) Public and private off-street parking lots, concessionaire's stands (subject to the
provisions contained in section 60.10.080(0)), drive-in businesses, gasoline service
stations, auto sales agencies, minor and major automobile repair and tire recapping
and other automobile repair and tire recapping and other automotive uses, subject to
Chapter 60.10.055 Page 1 of 3 Ketchikan Gateway Borough
08/2006 Code of Ordinances
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the following requirements:
1, That exits and entrances be located to prevent traffic congestion and
hazards;
2. That the proposed use be located so it will not divide the concentrated
pedestrian shopping area which is intended for this zone.
(c) Light manufacturing, fabricating, assembling and repairing, subject to the following
requirements:
1. Such use shall be conducted on floors other than the ground floor except
where clearly subsidiary and incidental to a principal use permitted in this
zone.
2. Such uses may not include any uses not meeting the development
requirements (1) through and including (11) of the IL Zone.
(d) Heliports and helistops.
(e) Mobile buildings as office, commercial or watchman's quarters subject to the
requirements listed in section 60.10.100.
(I) Travel trailer parks subject to the requirements listed in section 60.10.100.
(g) Commercial shopping centers subject to the requirements listed in 60.10.080(N).
(h) Telecommunications facilities subject to the requirements of 60.10.117(A).
(B) Uses prohibited: Any use of [or] structure not listed under permitted principal, accessory and
conditional uses.
(C) Development requirements:
(1) Minimum lot width: Twenty (20) feet.
(2) Lot area, yard, coverage and height requirements: None except as stated in section
60.10.080.
(3) Off-street parking and loading: In the CC Zone, it is planned that the off-street parking shall
be provided principally by public and commercial parking lots and garages; therefore,
private off-street parking in this zone will only be as required in section 60.10.085. Off-
street loading space is required and shall be provided as required in section 60.10.085.
(4)
(a) Any business, service, repair, storage or merchandise display shall be conducted
wholly within an enclosed building, except concessionaire's stands operating under
Chapter 60.10.055 Page 2 of 3 Ketchikan Gateway Borough
08/2006 Code of Ordinances
-------
the terms and conditions of a conditional use permit by action of the planning
commission.
(b) Conditional use permits for concessionaire's stands must be reviewed annually for
compliance with the current development requirements contained in this chapter
(title).
(Code 1969, §49.15.110;Orel,No, 136, §2,8-20-73; Ord. Nu. 368, § 12,7-21 -HO; Ord.No. 515, §§l, 2,10-15-M;Ord.No. 599, § 1,3-17-87;Ord.No. 906, §2,6-
7-93; Ord. No. 939, §§1,4,5-16-94; Ord. No. 1001, §1,10-21-96; Ord. No. 1031, §§1,4,5-19-97; Ord No. 1091, §3,3-1-99; Ord. No. 1141, §1,6-19-00; Ord.
No. 1158, §1,10-16-00; Ord. No. 1294, §1,2-2-04; Ord. No. 1398, §7,7-24-06)
Chapter 60.10.055
08/2006
Page 3 of3
Ketchikan Gateway Borough
Code of Ordinances
-------
60.10.005. Establishment of zones and provision for official zoning map.
(a) The Ketchikan Gateway Borough is hereby divided into the following zones, as shown on the
official zoning map which, together with, all explanatory matter thereon, is hereby adopted hy reference and
declared to be a part of this chapter:
FD
Future Development Zone
RR
Rural Residential Zone
RS
Suburban Residential Zone
RL
Low Density Residential Zone
RN
Neighborhood Residential Zone
RM
Medium Density Residential Zone
RH
High Density Residential Zone
CD
Commercial Development Zone
cc
Central Commercial Zone
CG
General Commercial Zone
1L
Light Industrial Zone
IH
Heavy Industrial Zone
PLI
Public Lands and Institutions Zone
AD
Airport Development Zone
CI
Superimposed Cottage Industry Zone
HD
Creek Street Historic District Zone
MBU
Mobile Building Unrestricted Zone
MBR
Mobile Building Restricted Zone
(b) Regulations applying to each zone as set forth in the following sections of this chapter [title] and all
other requirements of this chapter [title] are hereby adopted.
(c) Public notice shall be given in a newspaper of general circulation in the borough stating the date,
time, place and purpose of the hearing. The notice shall be published at least ten (10) d ays prior to the date
of the hearing, A copy of the proposed official zoning map shall be available in the department of planning
and community development for public inspection. The official zoning map, and any rezone resulting in a
change thereto, shall be adopted by the assembly by ordinance. After the official zoning map has been
duly adopted as herein provided the borough clerk shall cause the following certificate to be permanently
and securely affixed to each index sheet of each book of the official zoning map:
"1, , Borough Clerk for the Ketchikan Gateway Borough,
Alaska, certify that the zoning map to which this certificate is affixed is Map Book
_ of the seven (7) official zoning map books which comprise the official zoning
map duly adopted by Ordinance No. , on the
day of , 20 .
To this certificate, I have set my hand and the seal of the Ketchikan Gateway Borough,
Alaska, this day of , 20 ,
Borough Clerk"
Chapter 60.10,005
08/2005
Page 1 of 2
Ketchikan Gateway Borough
Code of Ordinances
-------
The official zoning map shall be kept in the department of planning and community development.
Regardless of the existence of purported copies of the official zoning map which may from time to time be
made or published, the copy of the official zoning map that is located in the department of planning and
community development shall be the final official zoning map authority regarding the current zoning status
of land and water areas; provided, however, in the event of any discrepancy between the legal description
or zoning of the property rezoned as set forth on the official zoning map and as described in the specific
ordinance zoning or changing the zone of such property or area, the description and zoning set forth in the
amending ordinance shall control and prevail over the official zoning map.
(d) Changes to the official zoning map resulting by reason of a rezone adopted by the assembly by
ordinance shall be entered on the official zoning map by the borough manager or designee in accordance
with the provisions of section 60.10.130(B)(9), of the KGB Code,
(e) In the event the official zoning map or any part thereof, becomes damaged, lost or destroyed the
borough assembly may adopt a new official zoning map as herein provided which shall be based upon and
generated from the most current digital zoning map computer tape, and upon adoption such new zoning
map, or part thereof, shall supersede the prior official zoning map, or part thereof, and thereafter constitute
the official zoning map.
(Code 1969, §49.15.010; Ortl. No. 263, §§2—A, 9-6-77; On!. No. 680, §§2» 3,3-20-89; Ord. No. 738, §7,4-23-90; On! No. 851, §1,4-20-92; OnLNo. 1363, §2,
7-18-05)
Chapter 60.10.005
08/2005
Page 2 of 2
Ketchikan Gateway Borough
Code of Ordinances
-------
Ketchikan Gateway Borough's Online GIS Zoning Map of Ward Cove as of June 19, 2015.
http://206.223.197.181/kgbgisviewer/
B ~ 5' Topography
I 0 5' Topography (North)
3 5' Topography (City & Sout
0 ~ 100' Topography
@ 100' Topography (USGS)
0 0 Annotation
0 Parcels
0 Labels
[vl Buildings
© 0 Municipal Boundary
S3 @ Borough Limits
0 0 Zoning
0 0 ZONING
AD
CC/MBR
mcg
¦ICG/MBR
~CG/MBR/NT
|gCG/MBR/SL
¦CG/SL
FD
I-: FD/CI
¦ HD/MBR
¦IH/SL
IL
HIUMBR
EJIUSL
¦FU/MBR
¦ PU/MBR/SL
WPLI/SL
¦ RH
B1RH/MBR
I1RH/MBR/SL
¦RH/SL
RL
BRL/CI
E3RL7MBR
~ RL/MBU
RM
L RM/MBR
~rm/mbr/nt
3088559.061,1309881.349
CG- Genera! Commercial; IH-
«il00% -
Heavy Industrial; IL- Light Industrial; FD- Future Development; RL- Low Density Residential Zone
-------
Attachment 8
Commitment for Title Insurance
-------
ALASKA ESCROW AND TITLE INSURANCE AGENCY, INC.
2030 Sea Level Drive Suite 201 8800 Glacier Hwy Suite 102
Ketchikan, Alaska 99901 Juneau, Alaska 99801
TEL:(907)225-9077 FAX:(907)225-9076 TEL:(907)789-1161 FAX:(907)789-1159
Title Officer: Mike Jausoro
Reference: 68704 Order Number: 38427
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
Updated March 16, 2010 (See Effective Date)bm
Amended and Updated March 23, 2010 (See effective date) KAS
Amended May 10, 2010 (See Effective date)bm
1. Effective Date: March 22, 2010 at 8:00 a.m.
2. Policy Or Policies To Be Issued:
(X) ALTA OWNER S POLICY, (6/17/06) Amount: TO BE DETERMINED
(X ) STANDARD ( ) EXTENDED Premium: $250.00
Proposed Insured: State of Alaska
( ) ALTA LOAN POLICY (6/17/06) Amount:
Premium:
3. The estate or interest in the land described or referred to in this Commitment and
covered herein is:
FEE SIMPLE ESTATE
4. Title to said estate or interest in said land is at the effective date hereof vested in:
Ketchikan Gateway Borough
5. The land referred to in this commitment is described as follows:
Lots 2 and 3, Tract 3005 of the Ward Cove-West Replat of Lot 3, Gateway Subdivision (Plat
2000-41), apportion of U.S. Survey 1862, U.S. Survey 1706, unsubdivided remainder of U.S.
Survey 1754 and a portion of Alaska Tidelands Survey No. 1, according to the plat thereof filed
March 24, 2006 as Plat No. 2006-10, Ketchikan Recording District, First Judicial District, State
of Alaska.
We have been informed but
do not insure that the said
property is also known as:
NHN North Tongass Highway
Ketchikan, Alaska 99901
American Land Title Association
Commitment Form - 2006
Page 1
Order Number: 38427
-------
SCHEDULE B
REQUIREMENTS
I. The following are the requirements to be complied with:
(a) Pay the agreed amounts for the interest in the land and/or the mortgage to be insured:
(b) Pay us the premiums, fees and charges for the policy.
(c) Documents satisfactory to us creating the interest in the land and/or the mortgage to be insured
must be signed, delivered and recorded.
(d) You must tell us in writing the name of anyone not referred to in this Commitment who will get
an interest in the land or who will make a loan on the land. We may then make additional
requirements or exceptions.
(e) Pursuant to the State of Alaska, Division of Insurance Order No. R92-1, dated May 4, 1992, the
charge for providing this commitment is to be billed at this time. Payment of this charge must
be made within 30 days of this initial billing. In the event this transaction fails to close, the
minimum billing will be the cancellation fee in accordance with our filed rate schedule.
NOTE: Investigation should be made to determine if there are any service, installation, maintenance,
construction, reimbursement and/or hookup charges/costs for sewer, water, garbage, electricity or
other utilities outstanding and not of record.
NOTICE
In 1999, the Alaska Department of Natural Resources began recording maps of claimed rights of way
which may have been created under a federal law known as "RS 2477", pursuant to Alaska Statute
19.30.400. Because the maps are imprecise, the exception from coverage shown on Paragraph 2f.
General Exceptions has been taken. Questions regarding the State's RS 2477 claims should be
directed to the Department of Natural Resources, Public Information Center, 770 W. 5th Avenue,
Anchorage, Alaska 99501.
II. Schedule B of the Policy or policies to be issued will contain exceptions to the following
matters unless the same are disposed of to the satisfaction of the Company:
1) Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in
the public records or attaching subsequent to the effective date hereof but prior to the date the
proposed insured acquires for value of record the estate or interest or mortgage thereon covered
by this Commitment
American Land Title Association
ALTA Commitment Form - 2006
Page 1
Order Number: 38427
-------
SCHEDULE B
GENERAL EXCEPTIONS
2) a. Taxes or assessments which are not shown as existing liens by the records of any taxing
authority that levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notice of such
proceedings whether or not shown by the records of such agency or by the public records.
b. Any facts, rights, interests or claims which are not shown by the public records but which
could be ascertained by an inspection of the land or by making inquiry of persons in
possession thereof.
c. (1) For Owners Policy: Easements, claims of easements, or encumbrances which are not
shown by the public records.
(2) For Loan Policy: Easements, liens or encumbrances, or claims thereof which are not
shown by the public records.
d. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other
facts which a correct survey would disclose, and which are not shown by the public records.
e. (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts
authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the
matters excepted under (1), (2) or (3) are shown by the public records.
f. Rights of the state or federal government and/or public in and to any portion of the land for
right of way as established by federal statute RS 2477 (whether or not such rights are
shown by recordings of easements and/or maps in the public records by the State of Alaska
showing the general location of these rights of way).
g. Any lien or right to lien, for services, labor or material heretofore or hereafter furnished
imposed by law and not shown by the public records.
SPECIAL EXCEPTIONS
3) Taxes and/or assessments, if any, due the City of Ketchikan and/or Ketchikan Gateway
Borough, a report of which will follow.
4) Reservations and exceptions as contained in the U.S. Patent and acts relating thereto.
5) Reservations and exceptions as contained in the State of Alaska Patent and acts relating
thereto.
6) Easements and notes as shown on Plat No. 2000-41 and Plat No. 2006-10.
7) Any prohibition of or limitation of use, occupancy or improvements of the land resulting from
the rights of the public or riparian owners to use any portion thereof which is now or formerly
may have been covered by water, and the rights of the public as set forth in Alaska statutes
38.05.128.
(Continued on next page)
American Land Title Association
ALTA Commitment Form - 2006
Page 1
Order Number: 38427
-------
SCHEDULE B
8) Terms, provisions and reservations under the Submerged Land Act (43 USC 1301, 67 Stat.
29) and the Enabling Act (Public Law 85-508, 72 Stat. 339).
9) Paramount rights and easements in favor of the United States to regulate commerce,
navigation, fishing and the production of power.
10) Any adverse claim based upon the assertion that any portion of said land was not tidelands
subject to disposition by the State of Alaska, or that any portion thereof has ceased to be
tidelands by reason of erosion, or by reason of having become upland by accretion.
11) Environmental Easement and Declaration of Covenants, entered into by and between
Ketchikan Gateway Borough, a municipal corporation, Ketchikan Pulp Company, a
Washington corporation, and Gateway Forest Products, Inc., an Alaska corporation, according
to the terms and provisions thereof, dated July 14, 2003 and recorded July 18, 2003 under
Ketchikan Recording District Serial No. 2003-004128-0.
12) Environmental Protection Easement and Declaration of Restrictive Covenants, entered into by
an between Ketchikan Pulp Company, Grantor, and the State of Alaska, Department of
Natural Resources, Grantee, according to the terms and provisions thereof dated October 28,
1999 and recorded October 28, 1999 in Book 305 at Page 772.
Said instrument contains the following provision:
Notice requirement: Grantor agrees to include in any instrument conveying any interest in any
portion of the Property, Including but not limited to deeds, leases and mortgages, a notice
which is in substantially the following form:
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL
PROTECTION EASEMENT AND DECLARATION OF RESTRICTIVE COVENANTS, DATED
19 RECORDED IN THE KETCHIKAN RECORDED
DISTRICT, FIRST JUDICIAL DISTRICT, STATE OF ALASKA, ON 19 IN
BOOK AT PAGE THAT IS IN FAVOR OF AN ENFORCEBLY BY, THE STATE
OF ALASKA.
(Continued on next page)
American Land Title Association
ALTA Commitment Form - 2006
Page 2
Order Number: 38427
-------
SCHEDULE B
13) Reservations and exceptions as contained in Deed recorded November 15, 1999 in Book 306
at Page 72 as follows:
Reserving and excepting, however, unto the Grantor, all right, title, equity and interest as set
forth in the Plant Systems Easement, by and between Grantor and Grantee of even date,
incorporated herein by reference as though fully set forth herein. The Plant Systems
Easement establishes the terms and conditions of such easement over and upon the following
of the parcels, described in Exhibit 1:
NOTE: Said instrument also contained the following conditions, reservations and restrictions
which have been released by instrument recorded November 1, 2002 at Instrument No. 2002-
004405-0.
Subject to, however, all covenants, restrictions and agreements as set forth in the Easement
and Declaration of Covenants Regarding Allocation of Environmental Responsibilities, by and
between Grantor and Grantee of even date, incorporated herein by reference as though fully
set forth herein. The Easement and Declaration of Covenants Regarding Allocation of
Environmental Responsibilities establishes the terms and conditions of covenants applicable
to, and binding upon, Parcel No. 1 through and including Parcel No. 15 of the parcels of real
property described in Exhibit 1.
Reserving and excepting, however, unto the Grantor, all right, title, equity and interest as set
forth in the Easement and Declaration of Covenants Regarding Allocation of Environmental
Responsibilities, by and between Grantor and Grantee of even date, incorporated herein by
reference as though fully set forth herein. The Easement and Declaration of Covenants
Regarding Allocation of Environmental Responsibilities establishes the terms and conditions
of an easement over and upon Parcel No. 1 through and including Parcel No. 15 of the
parcels of real property described in Exhibit 1.
14) Associated Real Property and Water Rights Agreement, and the terms and provisions thereof,
entered into by an between Ketchikan Pulp Company, a Washington corporation, Seller, and
Gateway Forest Productions, Inc., an Alaska corporation, Purchaser, dated November 3, 1999
and recorded November 5, 1999 in Book 306 at Page 84.
Subject to the terms and provisions as contained in Assignment Assumption and Release
recorded July 18, 2003 at Document No. 2003-004126-0.
15) Plant Systems Easement, and the terms and provisions thereof, entered into by an between
Gateway Forest Products, Inc., an Alaskan corporation, Grantor, and Ketchikan Pulp
Company, a Washington corporation, Grantee, dated November 3, 1999 and recorded
November 5, 1999 in Book 306 at Page 99.
Amendment to Plant Systems Easement recorded December 15, 2000 in Book 319 at page
360.
Second Amendment to Plat Systems Easement recorded January 3, 2001 in Book 320 at
Page 421.
(Continued on next page)
American Land Title Association
ALTA Commitment Form - 2006
Page 3
Order Number: 38427
-------
SCHEDULE B
16) Water Use Site Easement, and the terms and provisions thereof, entered into by and between
Gateway Forest Products, Inc., an Alaskan corporation, Grantor, and Ketchikan Pulp
Company, a Washington corporation, Grantee, dated November 3, 1999 and recorded
November 5, 1999 in Book 306 at Page 125.
Amendment to Water Use Site easement recorded December 12, 2000 in Book 319 at page
250.
17) Option Agreement to Purchase Water Use Site, and the terms and provisions thereof, entered
into by and between Gateway Forest products, Inc., an Alaskan corporation, Grantor, and
Ketchikan Pulp Company, a Washington corporation, Grantee, dated November 3, 1999 and
recorded November 5, 1999 in Book 306 at Page 149.
Subject to the terms and provisions as contained in Assignment Assumption and Release
recorded July 18, 2003 at Document No. 2003-004126-0 also with Exception No. 24.
18) Option Agreement to Purchase Excess Water, and the terms and provisions thereof, entered
into by and between Gateway Forest Products, Inc., an Alaskan corporation, Grantor, and
Ketchikan Pulp Company, a Washington corporation, Grantee, dated November 3, 1999 and
recorded November 5, 1999 in Book 306 at Page 160.
Subject to the terms and provisions as contained in Assignment Assumption and Release
recorded July 18, 2003 at Document No. 2003-004126-0.
(Continued on next page)
American Land Title Association
ALTA Commitment Form - 2006
Page 4
Order Number: 38427
-------
SCHEDULE B
19) Terms and provisions as contained in that certain Warranty Deed dated May 2, 2006 and
recorded May 2, 2006 at Document No. 2006-001753-0 including the following:
FURTHER SUBJECT TO the limitations and obligations identified in Section 15 (d) of the Real
Estate Sale Agreement entered into by and between GRANTEE, Renaissance Ketchikan
Group LLC, as Purchaser, and GRANTOR, Ketchikan Gateway Borough, as Seller, executed
on behalf of the GRANTOR/Seller by Borough Manager Roy Eckert on October 13, 2005 and
identified as Borough Document 05-114, as amended by Addendum One, Addendum Two,
Addendum Three and Addendum Four to said Real Estate Sale Agreement (hereinafter,
collectively, "Amended Real Estate Sale Agreement"), including without limitation the
following:
GRANTEE in further consideration for, and as a condition to, this Amended Real Estate Sale
Agreement, hereby agrees that the real property interests it is hereby acquiring from the
GRANTOR are subject to the same limitations and conditions as the ones applicable to the
GRANTOR which are set forth in that certain Agreement dated July 13, 2003, by and between
Ketchikan Pulp Company and the Ketchikan Gateway Borough, which is the GRANTOR
hereunder, a copy of which Agreement is attached to the Amended Real Estate Sale
Agreement as Exhibit O and is incorporated herein by reference as though fully set forth. In
particular, all releases, waivers and limitations on claims against Ketchikan Pulp Company, its
agents, servants, employees, officers, directors, partners, principals, shareholders, or any of
their insurance companies and contractors, including but not limited to environmental claims,
whether arising under CERCLA, 42 USC §9601 et seq.; RCRA, 42 USC §6901 et seq.; AS
46.03.822; or otherwise, as they now exist or hereafter may be amended, to which the
GRANTOR concurred, are hereby agreed to be applicable and in full force and effect.
Further the parties to this agreement agree that Ketchikan Pulp Company, its shareholders,
successors, heirs and assigns, are third party beneficiaries of this agreement and any future
agreements concerning the property.
GRANTEE HEREBY AGREES THAT LANGUAGE IDENTICAL TO THE PREVIOUS TWO
PARAGRAPHS SHALL BE INCORPORATED INTO ANY FUTURE LEASE, SALE, OR
CONVEYANCE OF ANY INTEREST (INCLUDING DEEDS OF TRUST) IN ALL OR PART OF
THE PROPERTY.
FURTHER SUBJECT TO the terms and provisions of that certain Agreement dated July 13,
2003 by and between Ketchikan Pulp Company and the Ketchikan Gateway Borough, which is
the GRANTOR hereunder, a copy of which Agreement is attached to the Amended Real
Estate Sale Agreement as Exhibit O, and is incorporated herein by reference as fully as if set
forth.
FURTHER SUBJECT TO the leases identified in Exhibit E to the Amended Real Estate Sale
Agreement.
(Special Exception No. 19 continued to next Page)
American Land Title Association
ALTA Commitment Form - 2006
Page 5
Order Number: 38427
-------
SCHEDULE B
RESERVING AND EXCEPTING, HOWEVER, UNTO THE GRANTOR, reservation of a 15%
water usage right as provided in Section 3(a)(i) and 3(c) of the October 13, 2005 Real Estate
Sale Agreement (Borough Document 05-114).
RESERVING AND EXCEPTING, HOWEVER, UNTO THE GRANTOR, reservation of the
personal property identified in Section 3(a)(vii) and on Exhibit K of the October 13, 2005 Real
Estate Sale Agreement (Borough Document 05-114).
20) Certain springing easements created by foreclosure as set forth on Exhibit "B" and "C" of that
certain Deed of Trust dated November 2, 1999 and recorded November 5, 1999 in Book 306
at Page 169.
21) Acknowledgment That Interest Conveyed Are Subject to Environmental Protection Easement
and Declaration of Restrictive Covenants, entered into by and between the Ketchikan
Gateway Borough, an Alaska municipal corporation, and Ketchikan Pulp Company, according
to the terms and provisions thereof, dated August 2, 2003 and recorded August 4, 2003 under
Ketchikan Recording District Serial No. 2003-004419-0.
22) Subject to the terms and provisions as contained in Assignment Assumption and Release
recorded July 18, 2003 at Document No. 2003-004126-0.
23) Environmental Easement and Declaration of Covenants, entered into by and between
Ketchikan Gateway Borough, a municipal corporation, and Ketchikan Pulp Company, a
Washington corporation, according to the terms and provisions thereof, dated July 14, 2004
and recorded July 15, 2004 under Ketchikan Recording District Serial No. 2004-002967-0.
NOTE: Effects of that certain Subordination Agreement, executed by Ketchikan Pulp
Company, a Washington corporation, and the Ketchikan Gateway Borough, a municipal
corporation, for the benefit of the State of Alaska, dated May 1, 2006 and recorded May 1,
2006 at Document No. 2006-001708-0.
24) Reservations, conditions, and easements as contained in that certain Quitclaim Deed between
Ketchikan Pulp Company, a Washington corporation, Grantor, and the Ketchikan Gateway
Borough, a municipal corporation, Grantee, dated July 11, 2003 and recorded July 22, 2003 at
Document No. 2003-004183-0.
25) Consolidated Easement for Landfill entered into by and between the Ketchikan Gateway
Borough, a municipal corporation and Ketchikan Pulp Company, a Washington corporation,
according to the terms and provisions thereof, dated September 23, 2005 and recorded at
Document No. 2005-003857-0.
26) Easement for Utility Line granted by Gateway Forest Products, Inc., Grantor, in favor of the
City of Ketchikan d.b.a. Ketchikan Public Utilities, Grantee, according to the terms and
provisions thereof, recorded March 16, 2000 in Book 310 at Page 500.
(Continued on next page)
American Land Title Association
ALTA Commitment Form - 2006
Page 6
Order Number: 38427
-------
SCHEDULE B
27) Easement for Utility Line granted by James K. Erickson, Gateway Forest Products, Inc.,
Grantor, to the City of Ketchikan d.b.a. Ketchikan Public Utilities, its successors and assigns,
Grantee, according to the terms and provisions thereof, dated February 17, 2001 and
recorded February 22, 2001 in Book 322 at Page 159.
28) Easement for Landfill Outfall, granted by Gateway Forest Products, Inc., an Alaska
corporation, Grantor, in favor of Ketchikan Pulp Company, a Washington corporation, its
successors and assigns, Grantee, according to the terms and provisions thereof, dated April
30, 2002 and recorded April 30, 2002 under Ketchikan Recording District, Serial No. 2002-
001755-0.
(Affects a portion lying within ATS No. 1 and other property)
29) Terms and provisions as contained in that certain Quitclaim Deed dated October 12, 2007 and
recorded on October 12, 2007 at Document No. 2007-004314-0.
30) Judgment, and the terms and provisions thereof:
AGAINST: Renaissance Ketchikan Group, LLC
AMOUNT: $102,312.42 plus additional interest and penalties that may accrue
RECORDED: April 8, 2008
DOCUMENT NO.: 2008-001196-0
31) A copy of this report has been sent to Stewart Title for approval; said report is subject to any
changes or amendments that may be required by Stewart Title.
Mike Jausoro/kas
Updated March 16, 2010 (See Effective Date)bm
Amended and Updated March 23, 2010 (See effective date) KAS
Amended May 10, 2010 (See Effective date)bm
NOTE: Please be aware that a change in coverage amount may necessitate a change in the
premium amount.
END OF GENERAL AND SPECIAL EXCEPTIONS
American Land Title Association
ALTA Commitment Form - 2006
Page 7
Order Number: 38427
-------
Attachment 9
Letter from Perkins Coie, to Jacques Gusmano, EPA dated June 27, 2006, regarding Institutional
Control Documents for Ward Cove Pipeline Parcels
-------
Perkins
Coie
[Tit, I! FldsUil
i -ii.il ti}cKt,tili[i pcikinscoie.com
June 27, 2006
Jacques GuSmano
U.S. Environmental Protection Agency
Region 10- Alaska Operations Office
Federal Building Room 537
222 West Seventh Avenue, No. 19
Anchorage, AK 99513-7588
Re; Institutional Control Documents for Ward Cove Pipeline Parcels
Dear Mr, Gusmano:
Please find enclosed copies of the following documents that, with the cooperation of
the State of Alaska and the Ketchikan Gateway Borough, have been recorded in the
Ketchikan Recording District to implement institutional controls with respect to the
three Ward Cove pipeline parcels under the auspices of the CBRCJLA consent decree
in United States v Gateway Purest Products, Inc., et al, No, A00-225 CV (D. Alaska)
("Consent Decree"):
1. Patent from State of Alaska to Ketchikan Gateway Borough of Section 34,
Lot 1 ("the 3,09 Acre Parcel") that is referred to in paragraph (46) of the
Ward Cove Consent Decree as "the pipeline access road area." Patent to
the 3.09 Acre Parcel was recorded on May 1,2006 as Document No. 2006-
1705;
2. Equitable Servitude and Easement {AS 34 17,010-AS 34.17,060), executed
by the Ketchikan Gateway Borough, as Grantor, in favor of the State of
Alaska, Department of Natural Resources, Division of Mining, Land and
Water, Realty Services Section, Grantee, dated April 24, 20()(i, and
recorded Way 1, 200(i, at Document No. 2006-001706-0, implementing
institutional controls with respect to the 3.09 Acre Parcel;
3. Equitable Servitude and Easement (AS 34.17.010-AS 34.17.060), executed
by the Ketchikan (fateway Borough, as Grantor, in favor of the Stale of
Alaska, Department of Natural Resources, Division of Mining, Land and
1029 West Third Avenue, Suite 300
Anchorage, AK 39501-1981
PHONE: tjCJ7,27Q.85:6l
IM
ww.v pt-'jkinst'me u m
116411 -0031/AA061780.0G5]
ANCHORAGE - BEIJING - 8ELLEVUE - BOISE ¦ CHICAGO • DENVER - LOS ANGELES
MIHIO PARK • OtYMPIA • PHOENIX • PORTLAND ¦ SAW Ft IM O - SEATTLE • WASHINGTON, O.C,
Perkins Coie «• and Aftiii.Ut <,
-------
June 27, 2006
Page 2
Water, Realty Services .Section, Grantee, dated April 24,2006, and
recorded May 1, 2006, at Document No. 2006-001707-0, implementing
institutional controls with respect to portions of U. S.. Survey 3400 and II.
S. Survey 2923;
4. Subordination Agreement, executed by Ketchikan Pulp Company and the
Ketchikan Gateway Borough for the benefit of the State of Alaska, dated
May 1, 2006, and recorded May 1, 2006, at Document No. 2006-001708-0,
by which lvP(' agreed to subordinate certain of its prior recorded interests
to the rights of the Stole of Alaska under the two Equitable Servitude and
Easement documents noted above; and,
5. Correction to Equitable Servitude and Hasement dated May 26, 2006, and
recorded June 2, 2006, at Document 2006-002278-0, by which Exhibit i to
the institutional controls regarding U. S, Survey 3400 and U, S. Survey
2923 was effectively added to thai document and made a matter of record.
The parcels made subject to these institutional controls are located upland of KPC's
former Ward Cove pulp mill site, near the pipeline from the Connell Lake Dam. The
institutional control documents were drafted in conformance with Appendix II of the
Consent Decree, as well as the institutional control document that EPA and ADIiC
previously approved for the Ward Cove* Landfills in 2001.
This completes obligations under the Consent Decree for the establishment of
institutional controls at Ward Cove. To summarize, there are now four controlling
instruments in place. The first instrument, entitled "Environmental Protection
Hasement and Declaration of Restrictive Covenants," was executed on October 28,
1 lW, and recorded October 28, 1999, at Book 305, Page 7 / 7, and applies to the main
plant parcel and ancillary areas, including Alaska Tidelands Survey No. 1. The
second instrument entitled "Environmental Basement," was executed on June 29,
2001, was recorded August 6, 2001, at Book 329. Page 680, and applies to the Ward
Cove landfill. Copies of these are also enclosed. The most recent two instruments,
just executed and recorded in May 2006, apply to areas adjacent to the pipeline access
road, upland of north of North Tongass Highway. Of these four areas, KPC still owns
and operates the Ward Cove Landfills and retains responsibility for implementing the
institutional controls in that area.
The State of Alaska was represented in this matter by Ruth I lamilton Ilecse from the
Attorney General's Office ((907) 465-3600; Ruth Hamilton Heese(
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June 27, 2006
Page 3
and Sandra Singer from the Department of Natural Resources ((907) 269-8586;
sandra_singer<£Mni\state.aJk.us). Should you have any questions, please contact Ms,
Heese,. Ms. Singer, or the undersigned.
Sincerely,
Eric B. Fjelstad
EBF:sc
cc: Gina Belt, U.S. DOJ w/encs.
Bill lanes, ADEC w/encs.
iarry J, Hcjgarty w/encs.
Ruth Hamilton Heese, Dept. of Law w/o erics.
Sandra Singer, ADNR w/o encs,
Scott Brandt-Erichsen, KGB w/o cues.
Phil Benning, KPC w/o encs.
John Peterson, Ziegler Law Firm w/o encs.
116411-003 i/AA06I780.0051
06/27/06
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Attachment 10
Equitable Servitude and Easement, and Subordination Agreement Pipeline Parcels, by Ketchikan
Gateway Borough to ADNR, recorded May 1, 2006
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2006-001706-0
Recording Dist: 102 - Ketchikan
5/1/2006 8:46 AM Pages: 1 of 10
EQUITABLE SERVITUDE AM) EASEMENT
AS 34.17.010-AS 34,17.060 '
0^
This Equitable Servitude and Easement (hereinafter "Instrument") is made by and
between the Ketchikan Gateway Borough, a second class Borough of the State of Alaska (whose
address is 344 Front Street, Ketchikan, Alaska 99901), as grantor (hereinafter, with its successors
and assigns, "Grantor"), and the State of Alaska (whose address is State of Alaska, Department
of Natural Resources, Division of Mining, Land and Water, Realty Services Section, 550 West
Seventh Avenue, Suite 1050A, Anchorage, Alaska 99501-3579), as grantee (hereinafter, with its
assigns, "Grantee"), for good and valuable consideration,
WHEREAS, all of the real property referred to herein is located in, and all patents
referred to as recorded are in the Ketchikan Recording District, First Judicial District, State of
Alaska;
WHEREAS, Grantor is the owner of the following described parcel of real property,
which is hereinafter referred to as the "Property":
TOWNSHIP 74 SOUTH. RANGE 90 EAST, COPPER RIVER
MERIDIAN. ALASKA. Section 34: Lot 1, containing 3.09 acres
more or less, according to the Survey Plat accepted by the United
States Department of Interior, Bureau of Land Management In
Anchorage, Alaska on January 28, 2003, and officially filed March
3,2003;
WHEREAS, Grantor wishes to make the Property subject to this Instrument;
WHEREAS, the Property was formerly used by Ketchikan Pulp Company ("KPC") for
storage of industrial materials, which resulted in its contamination with substances defined as
hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. §§ 9601 el seq. ("CERCLA"), and 18 AAC 75;
WHEREAS, on November 20, 2000, KPC, Gateway Forest Products ("GFP"), and the
United States entered into a CERCLA consent decree in the case of United States v. Gateway
Forest Products, Inc., et al, No. A00-225 CV (D. Alaska) ("Consent Decree") to address
hazardous substances contamination issues associated with KPC's historical operating areas at
Ward Cove, including the Property;
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WHEREAS, the Consent Decree required KPC and Gateway to implement appropriate
institutional controls on certain portions of real property owned or controlled by KPC or GFP, as
the case may be;
WHEREAS, the Consent Decree is binding upon KPC, GFP, the United States, and their
respective heirs, successors, and assigns;
WHEREAS, KPC was granted permission to utilize the Property under a 1952
Amendment to Special Use Permit, and that Amendment extended to the Property, the terms of
the 1951 Forest Service Special Use Permit that allowed KPC to build and operate the Connell
Lake dam, and the pipeline for it that runs adjacent to the Property on U.S. Survey 3400;
WHEREAS, Grantor previously included areas adjacent to U.S. Survey 3400 in
municipal entitlement lands that Grantor selected from the State of Alaska, and such lands
selected by Grantor included the Property, but issuance of patent to the State of Alaska was
delayed;
WHEREAS, investigation and remediation work undertaken by KPC and completed in
1998 identified the Property as an area where institutional controls would be required;
WHEREAS, KPC entered a services agreement with the U.S. Department of Interior,
Bureau of Land Management ("BLM") in 2000 under which, when BLM undertook to survey
surrounding municipal entitlement lands for patent to the State of Alaska, it would survey the
Property as a separate parcel. This would allow the area to be made subject to institutional
controls to be patented by BLM as a separate parcel;
WHEREAS, the Patent to the State of Alaska with respect to the Property was issued by
BLM on November 21, 2005 as Fed. Patent No. 50-2006-0058, recorded on the 30th day of
November, 2005 as Document No. 2005-4744-0;
WHEREAS, the State of Alaska issued the Patent to Grantor with respect to the Property
on the day of , 2006 as Patent No. 'Q-Q I """] , recorded
concurrently with this Instrument;
WHEREAS, GFP went into bankruptcy during 2001;
WHEREAS, on July 14, 2003, KPC, GFP, and Grantor entered into a settlement
agreement ("Settlement Agreement") to resolve issues arising from or relating to the GFP
bankruptcy. Under the Settlement Agreement, the Grantor undertook obligations relating to
establishment of and compliance with institutional controls on property formerly owned by KPC
and GFP, including the Property;
WHEREAS, the Alaska Department of Environmental Conservation ("ADEC") has
determined that groundwater is not a current or potential future drinking water source on or
around the Property;
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WHEREAS, ADEC has determined, and Grantor has agreed, that the recording of this
Instrument is necessary as an institutional control as part of the Consent Decree; and
WHEREAS, the requirements, rights, covenants, conditions, prohibitions, and restrictions
of this Instrument (hereinafter "Provisions") are intended to protect human health, safety, and
welfare and the environment and maintain and enhance water quality,
NOW, THEREFORE, pursuant to the laws of Alaska, including AS 34.17.010-
AS 34.17.060, Grantor does hereby grant and convey to Grantee forever, with warranties of title,
subject however to easements, rights, reservations, conditions, restrictions;, and limitations of the
United States, and third parties, if any, of record, an equitable servitude and easement, including
the right of entry thereto, of the nature and character and to the extent set forth below.
1. Restrictions:
Unless otherwise specifically authorized in writing by ADEC or its successor in
administrative function or assigns, the Property is subject to the following restrictions
(hereinafter, "Restrictions"):
a. Uses of the Property are limited to commercial or industrial use.
b. The Property shall not, at any time, be used, in whole or in part, for human
habitation, schooling of children, hospital care, child care, or any purpose necessitating around-
the-clock residence by humans.
c. Drilling of drinking water wells is prohibited.
d. Controls specified in the "Management Plan for Arsenic and Rock and Soil,"
prepared by Exponent for KPC, dated July 1998, to limit concentrations of arsenic from crushed
rock shall be complied with.
e. No activities shall be allowed on the Property, without prior approval of ADEC in
writing, that involve use of groundwater, or potential exposure of Waste Materials within the
Property. Waste Materials shall mean (i) any "hazardous substance" under Section 101(14) of
CERCLA, 42 U.S.C, § 9601(14) or AS 46,03.826(5); (ii) any pollutant or contaminant under
Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); and (iii) any "solid waste" under Section
1004(27) of the Resource Conservation & Recovery Act ("RCRA"), 42 U.S.C. § 6903(27), AS
46.03.900(26), or the State of Alaska Solid Waste Management Regulations, 18 AAC 60.
2. Required Activities:
Grantor shall comply with the Restrictions in this Instrument and with the terms and
conditions of any ADEC permit regulating activities on the Property.
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3. Rigbt-of-Entry:
During reasonable hours, after reasonable notice, and subject to reasonable security
requirements, ADEC and its Authorized Representatives shall have the right to enter in, on,
upon, over, and across any portion of the Property to determine whether the Provisions herein
have been or are being complied with. This Right-of-Entry shall include a right of access for, but
not be limited to, conducting the following activities:
a. Verifying any data or information submitted to the United States or the State of
Alaska,
b. Conducting investigations relating to contamination located at or near the Property.
c. Obtaining samples,
d. Assessing the need for, planning, or implementing additional response actions at or
near the Property.
e. Implementing the activities required to be performed under the Consent Decree
pursuant to the conditions set forth in Paragraph (101) of the Consent Decree.
f. Inspecting and copying records, operating logs, contracts, or other documents
maintained or generated by Grantor or its agents consistent with Section XXIV (Access to
Information) of the Consent Decree.
g. Monitoring and assessing compliance with the Consent Decree and any requirements
or restrictions of this instrument.
h. Determining whether the Property is being used in a manner that is prohibited or
restricted, or that may need to be prohibited or restricted, by or pursuant to the Consent Decree.
Violation of, or reasonable suspicion of the violation of, any of the Provisions herein shall
give ADEC and its Authorized Representatives the right, privilege, and license to enter in, on,
upon, over, and across any portion of the Property and to investigate, abate, mitigate, or cure such
violation, at the expense of Grantor, provided written notice of the violation is given to Grantor,
describing what activity is necessary to investigate or correct the violation, and Grantor fails to
cure the violation within a time specified in such notice, Such activities include, but are not
limited to, the right to store, move, and remove equipment and supplies; construct, operate,
maintain, alter, repair, and remove devices for the monitoring, containment, and treatment of
contamination in soil, air and water; investigate and collect samples; excavate and remove waste,
pollutants, hazardous substances, contaminated soils, contaminated waste; deposit
uncontaminated soil; and the performance of any other activity which may be reasonably
necessary and incident to ADEC's investigation and response. Any such entry by ADEC or its
Authorized Representatives shall not be deemed a trespass or any other wrongful entry or
remaining on the Property, and Grantee shall not be subject to liability to Grantor for such entry
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or any action taken to investigate, abate, mitigate, or cure a violation. ADEC and its Authorized
Representatives shall be considered Invitees on the Property, and the Grantor shall make every
reasonable effort to inform ADEC and its Authorized Representatives of hazards or hazardous
areas to prevent personal injury.
To enable them to carry out the activities contemplated under this Instrument, Grantor
also grants and conveys to Grantee, for the use and benefit of ADEC and its Authorized
Representatives, a right of access over and across those portions of the following-described real
property: U. S. Survey 3400; Triangle, U. S. Survey 2923; and, that portion of U. S, Survey 1056
lying northerly of the northerly boundary line of North Tongass Highway, Ketchikan Recording
District, First Judicial District, State of Alaska, being adjacent to U. S. Survey 2923 and
comprised of 5,16 acres. The portions of these three parcels which shall be subject to this right
of access shall consist of the areas thereof located between the Property and the adjacent public
rights-of-way of North Tongass Highway and Revilla Road, and which are subject to the
Easement by and between Ketchikan Pulp Company, as grantor, and the United States of
America, acting by and through the Forest Service, Department Agriculture, recorded October
23, 2000, at Book 317, Page 595 ("the Easement"). In addition, to the extent the Property is
adjacent to, but not abutting, the areas subject to the Easement, the right of entry hereby granted
shall also extend to those areas of the foregoing parcels which are necessary or convenient to
allow access to the Property, With respect to the areas subject to the Basement, this right of
access is granted in accordance with, and subject to, the terms of the Easement. The right of
access hereby panted is for purposes of allowing ADEC and its Authorized Representatives to
conduct any and all activities contemplated by this Instrument.
4. Contaminants of Concern that May be Present on the Property:
During an investigation and remediation of the Property completed in 1998, contaminated
soil and surface debris were removed from the Property by RFC, There are areas on the Property
where contaminants may remain in the soil in concentrations potentially greater than cleanup
levels established by ADEC or EPA. These contaminants include petroleum products,
polychlorinated bipheynyls, pentachlorophenol, lead, chromium, and arsenic. Most areas, where
active remediation activities occurred, were filled to original grade with clean soil, covered with
clean soil, and seeded with grass.
5, General Provisions;
a. This Instrument is for the benefit of Grantee and conveys the perpetual right to
Grantee, acting through ADEC and contractors, employees, and authorized representatives acting
on ADEC's behalf (herein, "Authorized Representatives"), to enforce and implement the
Provisions herein. Nothing herein shall be deemed to create in any third party the right to
enforce this Instrument.
b. No right of access or use by the general public to any portion of the Property is
conveyed or authorized by this Instrument.
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2006-001706-0
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c. All real estate, lots, parcels, or portions thereof located within or on the Property, and
any lease, conveyance, or transfer covering or describing any part thereof or interest therein, shall
be subject to the Provisions herein. By acceptance of such conveyance or transfer, each lessee,
transferee, or grantee and each of their heirs, successors, transferees, or assigns agrees with
Grantor and each other to be bound by the Provisions herein.
d. Grantor hereby reserves unto itself, its successors, and assigns, any and all rights and
privileges in and to the use of the Property, including the right of access to the Property, which
are not contrary to the restrictions, rights, and easement granted herein.
e. The Provisions herein shall run with the land in perpetuity, and shall be binding upon
Grantor, and each of Grantor's heirs, successors, grantees, lessees, transferees, and assigns and
each of their heirs, successors, grantees, lessees, transferees, and assigns.
f. Nothing in this Instrument shall relieve Grantor from liability for injuries occurring on,
or resulting from, its-activities on the Property for which Grantor would otherwise ordinarily be
liable. Grantor shall be liable for and shall indemnify and hold Grantee harmless from liability
for injuries and damage which arise because of its status as Grantee. Grantor shall also
indemnify Grantee for all costs, including attorneys' fees, which arise from its status as Grantee.
g. Grantor hereby covenants to and with Grantee that Grantor is lawfully seized of the
surface estate, in fee simple, of the Property, has good and lawful right and power to sell and
convey the same, that the same is free and clear of encumbrances, except as specified herein and
as of record, and that Grantor will forever warrant and defend the equitable servitude and
easement (including the right of entry) conveyed to Grantee by this Instrument against the claims
and demands of all persons.
h. To the maximum extent permitted by law, the Provisions herein shall not be subject to
waiver or abandonment due to non-enforcement or violation of this Instrument or any of the
Provisions herein on all or any portion of the Property. No waiver of the breach of any of the
Provisions herein shall constitute a waiver of a subsequent breach of the same Provision or any
other Provision, No right of action shall accrue for or on account of the failure of any person to
exercise any right created by this Instrument or for imposing any Provision which may be
unenforceable.
i. This Instrument may be enforced by Grantors or Grantee in a court of law. The
interpretation and performance of this Instrument shall be governed by the laws of Alaska.
j. Upon violation of any of the Provisions herein, Grantee may seek any available legal or
equitable remedy to enforce this Instrument, and shall be entitled to recover damages for
violations of the Provisions herein to the public or to the environment protected herein under
applicable federal or state law.
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k. Any notice, demand, request, consent, approval, or communication lhat a party desires
or is required to give another shall be in writing and shall either be served personally or sent by
first class mail, postage prepaid, addressed as follows:
To Grantor:
Ketchikan Gateway Borough
Attn: Borough Attorney
344 Front Street
Ketchikan, AK 99901
To Grantee:
Department of Natural Resources
Director, Division of Mining, Land and Water
Realty Services Section
550 West Seventh Avenue, Suite 1050A
Anchorage, AK 99501-3579
With a copy to:
Program Manager, Contaminated Sites Program
Alaska Department of Environmental Conservation
Division of Spill Prevention and Response
410 Willoughby, Suite 303
Juneau, AK 99801-1795
1. The determination that any Provision herein, or its application to any person or
circumstance, is invalid shall not affect any other Provision herein or its application, and the
other Provisions herein shall remain in full force and effect,
m. Any general rule of construction to the contrary notwithstanding, this Instrument shall
be construed so as to effect the purpose for which it was granted to Grantee, Any ambiguities
shall be resolved in a manner that best accomplishes the purpose of this Instrument,
n, Grantor shall notify ADEC and Grantee at least ten (10) days before the effective date
of any conveyance, grant, gift, or other transfer, in whole or in part, of Grantor's interest in the
Property, Grantor shall include in any instrument conveying any interest in any portion of the
Property, including, but not limited to, deeds, leases, and mortgages, a notice which is in
substantially the following form:
NOTICE: The interest conveyed hereby is subject to an Equitable
Servitude and Easement dated , 2_ , recorded in the
public land records on , 2 , in book
, page , of the Ketchikan Recording District, First
Judicial District, State of Alaska, in favor of, and enforceable by,
the State of Alaska.
2006-001706-0
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o. Grantor shall notify ADEC within ten (10) days prior to Grantor's petitioning for or
Filing of any document initiating a rezoning of the Property under the Ketchikan Gateway
Borough zoning code or any successor code,
p. This Equitable Servitude and Easement does not impose liability on the State of
Alaska nor does it make the State of Alaska a responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act or AS 46,03 or similar federal or state
statutes, regulations or local ordinances,
6. Termination;
This Instrument shall be vacated and shall be of no further force and effect upon the
recordation in the Ketchikan Recording District, First Judicial District, State of Alaska by ADEC
of a Notice of Vacation of Equitable Servitude and Easement. ADEC shall execute and record a
Notice of Vacation of Equitable Servitude and Easement at such time as it, in its sole discretion,
determines that the prohibited and required activities and other provisions of this Instrument are
no longer necessary for the protection of human health, safety, welfare, and the environment.
The Notice of Vacation of Equitable Servitude and Easement shall be executed by ADEC and
state that ADEC has determined that the prohibited and required activities and other provisions
of the Equitable Servitude and Easement are no longer necessary for the protection of human
health, safety, and welfare, and the environment and further state that the Equitable Servitude and
Easement are hereby vacated. If Grantor requests a termination of this Instrument, any costs
incurred by ADEC in reviewing a potential termination shall be paid by Grantor.
IN WITNESS WHEREOF Grantor and Grantee have set their hands on the dates written
below. This Instrument is effective on the date of the last acknowledged signature.
(SIGNATURES CONTAINED ON THE FOLLOWING PAGE]
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KETCHIKAN GATEWAY BOROUGH
By.
/-
Roy A. Eckert
General Manager
GRANTOR'S ACKNOWLEDGMENT
STATE OF ALASKA )
) ss,
FIRST JUDICIAL DISTRICT )
THIS [S TO CERTIFY that on this day of jClpitL. , 2006, before me,
the undersigned, a Notary Public for the State of Alaska, duly commissioned and sworn as such,
personally appeared Roy A, Eckert, to me known and known to be the G^ej»PManager, and the
person who executed the above and foregoing Equitable Servitude and Easement on behalf of the
Keichikari Gateway Borough, and who acknowledged to me that he signed the same as the
¦^enemu'Manager, in the name of and for and on behalf of the Ketchikan Gateway Borough,
freely and voluntarily and by authority of the Ketchikan Gateway Borough Assembly and on oath
stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal, the
day and year first above written.
OFPCtAlW.
HARRIETT J, E0WA1PS
" NOTARY PU8UC-5TA1
MyComm-Ejipiras;,
Notary Public for Alaska
My commission
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ACCEPTANCE
ON BEHALF OF the State of Alaska, pursuant to AS 38.05,035(a)( 12), I do hereby
accept this Equitable Servitude and Easement conveying to the State of Alaska, its successors in
administrative function and assigns, the interests in the Property described therein as an
Institutional Control, pursuant to 18 AAC 75,375 (as of 1/22/99), to be managed and enforced by
the Department of Environmental Conservation or its successor, pursuant to the management
right assignment issued as ADL 107454 for the portion of U.S. Survey 3400 described in this
Instrument, to protect human health, safety, and welfare, and the environment and to enhance or
maintain water quality.
STATE OF ALASKA, DEPARTMENT
OF NATURAL RESOURCES
Division of Mining, Land and Water
Locution Index:
Section 4,
Township 74 S.s Range 90 E.„
Copper River Meridian, Alaska
Section 33,
Township 75 S., Range 90 E.,
Copper River Meridian, Alaska
AFTER RECORDING RETURN TO:
Ruth Hamilton Heese
Assistant Attorney General
Stale of Alaska
Department of Law
Environmental Section
P.O. Box 110300
Juneau, AK 99811
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A 2006-001707-0
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Recording Dist: 102 - Ketchikan
5/1/2006 8:48 AM Pages; 1 of 10
EQUITABLE SERVITUDE AMP EASEMENT
AS 34.17.010 AS 34.17.060
This Equitable Servitude aad Easement (hereinafter "Instrument") is made by and
between the Ketchikan Gateway Borough, a second class Borough of the State of Alaska (whose
address is 344 Front Street, Ketchikan, Alaska 99901), as grantor (hereinafter, with its successors
and assigns, "Grantor"), and the State of Alaska (whose address is State of Alaska, Department
of Natural Resources, Division of Mining, Land and Water, Realty Services Section, 550 West
7th Avenue, Suite 1050A, Anchorage, Alaska 99501-3579), as grantee (hereinafter, with its
assigns, "Grantee"), for good and valuable consideration.
WHEREAS, all of the real property referred to herein is located in, and all deeds referred
to as recorded are in the Ketchikan Recording District, First Judicial District, State of Alaska;
WHEREAS, Grantor is the owner of the following described parcels of real property;
U. S, Survey 3400; and
That certain portion of U.S. Survey 2923, more particularly described as follows;
Beginning at the northerly comer of the Crawford Tract, otherwise known as
Corner Ho, 2 of U.S. Survey 2923; thence South 55°45' East along the
northeasterly boundary of the Crawford Tract a distance of 863.37 feet; thence
South 89°33' West a distance of 709.81 feet, more or less, to a point on the
westerly boundary of the Crawford Tract; thence North 0°27' West along the
westerly boundary of the Crawford Tract a distance of 491.50 feet, more or less, to
the point of beginning, hereinafter referred to as "Triangle, U. S, Survey 2923,"
WHEREAS, Grantor wishes to make two specific areas of U. S. Survey 3400 and one
specific area within the Triangle, U. S, Survey 2923 subject to this Instrument,
WHEREAS, the two portions of U. S. Survey 3400 and the one area within the Triangle,
U, S. Survey 2923, which are to be made subject to this Instrument are described with
particularity in Exhibit 1, attached hereto and incorporated herein by reference;
WHEREAS, the areas of U. S. Survey 3400 and of the Triangle, U. S. Survey 2923 to be
made subject to this Instrument are described in Exhibit 1 as, respectively, "Parcel 1," "Parcel 2"
and "Parcel 3," and are hereinafter referred to collectively as the "Property",
WHEREAS, the Property was formerly used by Ketchikan Pulp Company ("KPC") for
storage of industrial materials, which resulted in its contamination with substances defined as
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hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. §§ 9601 et seq. ("CERCLA"), and 18 AAC 75;
WHEREAS, on November 20, 2000, KPC, Gateway Forest Products ("GFP"), and the
United States entered into a CERCLA consent decree in the case of United States v. Gateway
Forest Products, Inc., et al, No. A00-225 CV (D, Alaska) ("Consent Decree") to address
hazardous substances contamination issues associated with KPC's historical operating areas at
Ward Cove, including the Property;
WHEREAS, the Consent Decree required KPC and Gateway to implement appropriate
institutional controls on certain portions of real property owned or controlled by KPC or GFP, as
the case may be;
WHEREAS, the Consent Decree is binding upon KPC, GFP, the United States, and their
respective heirs, successors, and assigns;
WHEREAS, KPC conveyed Triangle, U.S. Survey 2923 to GFP by a Quitclaim Deed
recorded on November 5, 1999, at Book 306, Page 72;
WHEREAS, GFP went into bankruptcy during 2001 and, through a series of foreclosures
arid related matters, the most recent of which was a Quitclaim Deed to Grantor recorded on
December 18, 2003, as Document No. 2003-006529-0, Grantor became owner of Triangle, U.S.
Survey 2923;
WHEREAS, on July 14, 2003, KPC, GFP, and Grantor entered into a settlement
agreement ("Settlement Agreement") io resolve issues arising from or relating so the GFP
bankruptcy. Under the Settlement Agreement, the Grantor undertook obligations relating to
establishment of and compliance with institutional controls on property formerly owned by KPC
and GFP, including the Property;
WHEREAS, by Quitclaim Deed executed incident to the Settlement Agreement on My
14, 2003, and recorded on July 18,2003, as Document No. 2003-004125-0, KPC conveyed U.S.
Survey 3400 to Grantor. That Quitclaim Deed explicitly incorporated the Settlement Agreement
into its terms;
WHEREAS, the Alaska Department of Environmental Conservation ("ADEC") has
determined that groundwater is not a current or potential future.drinking water source on or
around the Property;
WHEREAS, ADEC has determined, and Grantor has agreed, that the recording of this
Instrument is necessary as an institutional control as part of the Consent Decree; and
WHEREAS, the requirements, rights, covenants, conditions, prohibitions, and restrictions
of this Instrument (hereinafter "Provisions") are intended to protect human health, safety, and
welfare and the environment and maintain and enhance water quality.
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NOW, THEREFORE, pursuant to ihe laws of Alaska, including AS 34.17.010-
AS 34,17,060, Grantor does hereby grant arid convey to Grantee forever, with warranties of title,
subject however to easements, rights, reservations, conditions, restrictions, and limitations of the
United States, and third parties, if any, of record, an Equitable Servitude and Easement over the
Property, including the right of entry thereto, of the nature and character and to the extent set
forth below,
1. Restrictions:
Unless otherwise specifically authorized in writing by the Alaska Department of
Environmental Conservation or its successor in administrative function or assigns (hereinafter,
"ADEC"), the Property is subject to the following restrictions (hereinafter, "Restrictions"):
a. Uses of the Property are limited to commercial or industrial use.
b. The Property shall not, at any time, be used, in whole or in part, for human
habitation, schooling of children, hospital care, child care, or any purpose necessitating around-
the-clock residence by humans,
c. Drilling of drinking water wells is prohibited,
d. Controls specified in the "Management Plan for Arsenic and Rock and Soil,"
prepared by Exponent for KPC, dated July 1998, to limit concentrations of arsenic from crushed
rock shall be complied with,
e. No activities shall be allowed on the Property, without prior approval of ADEC in
writing, that involve use of ground water, or potential exposure of Waste Materials within the
Property. Waste Materials shall mean (i) any "hazardous substance" under Section 101(14) of
CERCLA, 42 U.S.C. § 9601(14) or AS-46,03.826(5); (ii) any pollutant or contaminant under
Section 101(33) of CERCLA, 42 U.S.C, § 9601(33); and (iii) any "solid waste" under Section
1004(27) of the Resource Conservation & Recovery Act ("RCRA"), 42 U.S.C, § 6903(27), AS
46.03.900(26), or the State of Alaska Solid Waste Management Regulations, 18 AAC 60.
2. Required Activities:
Grantor shall comply with the Restrictions in this Instrument and with the terms and
conditions of any ADEC permit regulating activities on the Property,
3. Right of Entry:
During reasonable hours, after reasonable notice, and subject to reasonable security
requirements, ADEC and its Authorized Representatives shall have the right to enter in, on,
upon, over, and across any portion of the Property to determine whether the Provisions herein
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have been or are being complied with. This right of entry shall include a right of access for, but
not be limited to, conducting the following activities;
a. Verifying any data or information submitted to the United States or the State of
Alaska,
b. Conducting investigations relating to contamination located at or near the Property.
c. Obtaining samples.
d. Assessing the need for, planning, or implementing additional response actions at or
near the Property.
e. Implementing the activities required to be performed under the Consent Decree
pursuant to the conditions set forth in Paragraph (101) of the Consent Decree.
f. Inspecting and copying records, operating logs, contracts, or other documents
maintained or generated by Grantor or its agents consistent with Section XXIV (Access to
Information) of the Consent Decree.
g. Monitoring and assessing compliance with the Consent Decree and any requirements
or restrictions of this instrument.
h. Determining whether the Property is being used in a maimer that is prohibited or
restricted, or that may need to be prohibited or restricted, by or pursuant to the Consent Decree.
Violation of, or reasonable suspicion of the violation of, any of the Provisions herein shall
give ADEC and its Authorized Representatives the right, privilege, and license to enter in, on,
upon, over, and across any portion of the Property and to investigate, abate, mitigate, or cure such
violation, at the expense of Grantor, provided written notice of the violation is given to Grantor,
describing what activity is necessary to investigate or correct the violation, and Grantor fails to
cure the violation within a time specified in such notice. Such activities include, but are not
limited to, the right to store, move, and remove equipment and supplies; construct, operate,
maintain, alter, repair, and remove devices for the monitoring, containment, and treatment of
contamination in soil, air and water; investigate and collect samples; excavate and remove waste,
pollutants, hazardous substances, contaminated soils, contaminated waste; deposit
uncontaminated soil; and the performance of any other activity which may be reasonably
necessary and incident to ADEC's investigation and response. Any such entry by ADEC or its
Authorized Representatives shall not be deemed a trespass or any other wrongful entry or
remaining on the Property, and Grantee shall not be subject to liability to Grantor for such entry
or any action taken to investigate, abate, mitigate, or cure a violation. ADEC and its Authorized
Representatives shall be considered invitees on the Property and the Grantor shall make every
reasonable effort to inform ADEC and its Authorized Representatives of hazards or hazardous
areas to prevent personal injury.
Ml Min
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To enable them to carry out the activities contemplated under this Instrument, Grantor
also grants and conveys to Grantee, for the use and benefit of ADEC and its Authorized
Representatives, a right of access over and across those portions of the following-described real
property: U, S. Survey 3400; Triangle, U, S, Survey 2923; and, that portion of U. S. Survey 1056
lying northerly of the northerly boundary line of North Tongass Highway, Ketchikan Recording
District, First Judicial District, State of Alaska, being adjacent to U. S, Surrey 2923 and
comprised of 5.16 acres. The portions of these three parcels which shall be subject to this right
of access shall consist of the areas thereof located between the Property and the adjacent public
rights-of-way of North Tongass Highway and Revilla Road, and which are subject to the
Easement by and between Ketchikan Pulp Company, as grantor, and the United States of
America, acting by and through the Forest Service, Department Agriculture, recorded October
23, 2000, at Book 317, Page 595 ("the Easement"). In addition, to the extent the Property is
adjacent to, but not abutting, the areas subject to the Easement, the right of entry hereby granted
shali also extend to those areas of the foregoing parcels which are necessary or convenient to
allow access to the Property, With respect to the areas subject to the Easement, this right of
access is granted in accordance with, and subject to, the terms of the Easement. The right of
access hereby granted is for purposes of allowing ADEC and its Authorized Representatives to
conduct any and all activities contemplated by this Instrument.
4, Contaminants of Concern that May be Present on the Property;
During an investigation and remediation of the Property completed in 1998, contaminated
soil and surface debris were removed from the Property by KPC. There are areas on the Property
where contaminants may remain in the soil in concentrations potentially greater than cleanup
levels established by ADEC or EPA. These contaminants include petroleum products,
polychlorinated bipheynyls, pentachioropheno!, lead, chromium, and arsenic. Most areas where
active remediation activities occurred were filled to original grade with clean soil, covered with
clean soil, and seeded with grass.
5. General Provisions:
a. This Instrument is for the benefit of Grantee and conveys the perpetual right to
Grantee, acting through ADEC and contractors, employees, and authorized representatives acting
on ADEC's behalf (herein, "Authorized Representatives"), to enforce and implement the
Provisions herein. Nothing herein shall be deemed to create in any third party the right to
enforce this Instrument.
b. No right of access or use by the general public to any portion of the Property is
conveyed or authorized by this Instrument.
c. All real estate, lots, parcels, or portions thereof located within or on the Property, and
any lease, conveyance, or transfer covering or describing any part thereof or interest therein, shall
be subject to the Provisions herein. By acceptance of such conveyance or transfer, each lessee,
transferee, or grantee and each of their heirs, successors, transferees, or assigns agrees with
Grantor and each other to be bound by the Provisions herein.
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d. Grantor hereby reserves unto itself, its successors, and assigns, any and all rights and
privileges in and to the use of the Property, including the right of access to the Property, which
are not contrary to the restrictions, rights, and easement granted herein.
e. The Provisions herein shall run with the land in perpetuity, and shall be binding upon
Grantor, and each of Grantor's heirs, successors, grantees, lessees, transferees, and assigns and
each of their heirs, successors, grantees, lessees, transferees, and assigns,
f. Nothing in this Instrument shall relieve Grantor from liability for injuries occurring on,
or resulting from, its activities on the Property, for which Grantor would otherwise ordinarily be
liable. Grantor shall be liable for and shall indemnify and hold Grantee harmless from liability
for injuries and damage which arise because of its status as Grantee, Grantor shall also
indemnify Grantee for all costs, including attorneys' fees, which arise from its status as Grantee.
g. Grantor hereby covenants to and with Grantee that Grantor is lawfully seized of the
surface estate, in fee simple, of the Property, has good and lawful right and power to sell and
convey the same, that the same is free and clear of encumbrances, except as specified herein and
as of record, and that Grantor will forever warrant and defend the equitable servitude and
easement (including the right of entry) conveyed to Grantee by this Instrument against the claims
and demands of all persons.
h. To the maximum extent permitted by law, "the Provisions herein shall not be subject to
waiver or abandonment due to non-enforcement or violation of this Instrument or any of the
Provisions herein on all or any portion of the Property. No waiver of the breach of any of the
Provisions herein shall constitute a waiver of ;i subsequent breach of the same Provision cr any
other Provision. No right of action shall accrue for or on account of the failure of any person to
exercise any right created by this Instrument or for imposing any Provision which may be
unenforceable.
i. This Instrument may be enforced by Grantors or Grantee in a court of law. The
interpretation and performance of this Instrument shall be governed by the laws of Alaska.
j. Upon violation of any of the Provisions herein, Grantee may seek any available legal or
equitable remedy to enforce this Instrument, and shall be entitled to recover damages for
violations of the Provisions herein to the public or to the environment protected herein under
applicable federal or state law.
(CONTINUED ON THE FOLLOWING PAGE}
Page 6 of 10
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k, Any notice, demand, request, consent, approval, or communication that a party desires
or is required to give another shall be in writing and shall either be served personally or sent by
first class mail, postage prepaid, addressed as follows:
To Grantori
Ketchikan Gateway Borough
Attn: Borough Attorney
344 Front Street
Ketchikan, AK 99901
To Grantee:
Department of Natural Resources
Director, Division of Mining, Land and Water
Realty Services Section
550 West 7th Avenue, Suite 10S0A
Anchorage, AK 99501-3579
WiU) a copy to:
Program Manager, Contaminated Sites Program
Alaska Department of Environmental Conservation
Division of Spill Prevention and Response
410 Willoughby Suite 303
Juneau, AK 99801-1795
1, The determination that any Provision herein, or its application to any person or
circumstance, is invalid shall not affect any other Provision herein or its application, and the
other Provisions herein shall remain in full force and effect,
m. Any general rule of construction to the contrary notwithstanding, this Instrument shall
be construed so as to effect the purpose for which it was granted to Grantee. Any ambiguities
shall be resolved, in a manner that best accomplishes the purpose of this Instrument,
n. Grantor shall notify ADEC and Grantee at least ten (10) days before the effective date
of any conveyance, grant, gift, or other transfer, in whole or in part, of Grantor's interest in the
Property. Grantor shall include in any instrument conveying any interest in any portion of the
Property, including, but not limited to, deeds, leases, and mortgages, a notice which is in
substantially the following form:
NOTICE: The interest conveyed hereby is subject to an Equitable Servitude and
Easement dated , 2 , recorded in the public land records on
, 2 in book page , of the Ketchikan
Recording District, First Judicial District, State of Alaska, in favor of, and
enforceable by, the State of Alaska,
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o. Grantor shall notify ADEC and Grantee within ten (10) days prior to Grantor's
petitioning for or filing of any document initiating a re zoning of the Property under the Ketchikan
Gateway Borough zoning code or any successor code.
p. This Equitable Servitude and Easement does not impose liability on the State of
Alaska nor does it make the State of Alaska a responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act or AS 46,03 or similar federal or state
statutes, regulations or local ordinances.
6. Termination:
This Instrument shall be vacated and shall be of no further force and effect upon the
recordation in the Ketchikan Recording District, First Judicial District, State of Alaska by ADEC
of a Notice of Vacation of Equitable Servitude and Easement. ADEC shall execute and record a
Notice of Vacation of Equitable Servitude and Easement at such time as it, in its sole discretion,
determines that the prohibited and required activities and other provisions of this Instrument are
no longer necessary for the protection of human health, safety, welfare and the environment. The
Notice of Vacation of Equitable Servitude arid Easement shall be executed by ADEC and state
that ADEC has determined that the prohibited and required activities and other provisions of the
Equitable Servitude and Easement are no longer necessary for the protection of human, health,
safety and welfare and the environment and further state that the Equitable Servitude and
Easement are hereby vacated. If Grantor requests a termination of this Instrument, any costs
incurred by ADEC in reviewing a potential termination shall be paid by Grantor.
IN WITNESS WHEREOF Grantor and Grantee have set. their hands on the dates written
below. This Instrument is effective on the date of the last acknowledged signature.
[SIGNATURES CONTAINED ON THE FOLLOWING PAGE]
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KETCHIKAN GATEWAY BOROUGH
Eckert
General Manager
GRANTOR'S ACKNOWLEDGMENT
STATE OF ALASKA )
) ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on Uiis of fW'v\ 2006, before me,
the undersigned, a Notary Public for the State of Alaska, duly commissioned and sworn as such,
personally appeared Roy A, Eckert, to me known and know to be the-Gw^rHrftfenager, and the
person who executed the above and foregoing Equitable Servitude and Easement on behalf of the
Ketchikan Gateway Borough, and who acknowledged to me that he signed the same as the
Mmager, in the name of and for and on behalf of the Ketchikan Gateway Borough,
freely and voluntarily and by authority of the Ketchikan Gateway Borough Assembly and on oath
stated that he was authorized to execute said instrument,
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year first above written.
Notary Public for Alaska
My commissi
My commission expires:
Page 9 of 10
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ACCEPTANCE
ON BEHALF OF the Slate of Alaska, pursuant to AS 38.05.035(a)(12), 1 do hereby
accept this Equitable Servitude and Easement conveying to the State of Alaska, its successors in
administrative function and assigns, the interests in the Property described therein as an
Institutional Control, pursuant to 18 AAC 75.375 (as of 1/22/99), to be managed and enforced by
the Department of Environmental Conservation or its successor, pursuant to the management
right assignment issued as ADL 107453 for the portion of U.S. Survey 2923 described in this
Instrument, to protect human health, safety, and welfare, and the environment and to enhance or
maintain water quality.
STATE OF ALASKA, DEPARTMENT
OF NATURAL RESOURCES
Division of Mining, Land and Water
Location Index:
Section 4,
Township 74 S., Range 90 E,,
Copper River Meridian, Alaska
Section 33,
Township 75 S., Range 90 £,,
Copper River Meridian, Alaska
AFTER RECORDING RETURN TO:
Ruth Hamilton Heese
Assistant Attorney General
State of Alaska
Department of Law
Environmental Section
P.O.Box 110300
Juneau, AK 99811
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2006-00I708-0
A Recording Dist; 102 - Ketchikan
s 5/1/2006 8:54 AM Pages: 1 of 7
K
SUBORDINATION AGREEMENT
This Subordination Agreement ("this Agreement"), made
and entered into this I day of /V1a>/ , 2006 by,
between and among KETCHIKAN PULP COMPANY, a Washington
corporation, Post Office Box 6600, Ketchikan, Alaska 99901
("KPC"}, the KETCHIKAN GATEWAY BOROUGH, a municipal
corporation, 344 Front Street, Ketchikan, Alaska 99501
("Borough") , for the benef i t of the STATE OF ALASKA, whose
address is State of Alaska, Department of Natural
Resources, Division of Mining, Land and Water, Realty
Services Section, 550 West Seventh Avenue, Suite 1050A,
Anchorage, Alaska 99501-3579 ("State"), WITNESSETH;
RECITALS
WHEREAS, all real property referred to in this
Agreement is located in, and all documents and plats
referred as filed or recorded, are filed or recorded in the
Ketchikan Recording District, First Judicial District,
State of Alaska;
WHEREAS, by Quitclaim Deed executed on or about July
11, 2003 and recorded July 18, 2003 under Ketchikan
Recording District Serial No, 2003-004125-0 ("the USS 3400
Quitclaim"), KPC quitclaimed to the Borough parcels of real
property and related interests, including fee ownership of
U. S. Survey 34 00;
WHEREAS, the USS 34 00 Quitclaim set forth the
following Acknowledgment and Acceptance of Conveyance
("Borough Acceptance"), which was duly executed on behalf
of the Borough on or around July 14, 2003:
The Ketchikan Gateway Borough ("Borough") hereby
acknowledges and accepts the conveyance from
Page 1 of 7
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Ketchikan Pulp .Company ("KPC"), set forth in the
within and foregoing Quitclaim Deed, of KPC s
right, title and interest in and to U.S. Survey
3400,,,, which conveyance and acceptance is
subject to (1) the reservations stated therein;
and, (2) the terms and conditions of the
Agreement by and between the Borough and KPC
dated July 14, 2003 {"'Agreement"). Upon the
terms and conditions of the Agreement, the
Borough hereby assumes all obligations arising
from or related to U.S. Survey 3400...
Any and all right, title and interest reserved to or
otherwise arising for the benefit of KPC with respect to U.
S. Survey 3400 by reason of the USS 3400 Quitclaim
including, without limitation, "by reason of the Borough
Acceptance, are hereinafter referred to as "USS 3400
Quitclaim Interests;"
WHEREAS, on or about July 14, 2003 the Borough, KPC
and Gateway Forest Products, Inc., an Alaska corporation,
entered into the Environmental Easement and Declaration of
Covenants, recorded July 18, 2003 under Ketchikan Recording
District Serial No. 2003-004128-0 and hereinafter referred
to as "the 2003 Covenants and Easement,"
1 _ _, the 2003 Covenants and Easement recognized
and established certain covenant and easement rights for
the benefit of KPC with respect, to U, 5. Survey 3400 and
portions of U. S. Survey 2923, hereinafter referred to as
the "USS 3400 and USS 2923 Covenant and Easement
Interests."
WHEREAS, the 2003 Covenants and Easement also
recognized and established certain covenant and easement
rights for the benefit of KPC with respect to Lot 1,
Section 34, T.74S., R.90E., C.R.M., as more particularly
described in Exhibit A thereof; said parcel is hereinafter
referred to as "Lot 1, Section 34;"
WHEREAS, the covenant and easement rights recognized
and established under the 2003 Covenants.and Easement with
respect to Lot 1, Section 34, for the benefit of KPC are
hereinafter referred as the "Lot 1, Section 34 Covenant and
Easement Interests;"
2006-001708-0
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Whereas, on or about July 14, 2004 the Borough and KPC
entered into the Environmental Easement and Declaration of
Covenants, recorded July 15, 2004 under Ketchikan Recording
District Serial No. 2004-002967-0 and hereinafter referred
to as "the 2004 Covenants and Easement,"
WHEREAS, the 2004 Covenants and Easement recognized
and established certain covenant and easement rights for
the benefit of KPC with respect to portions of 0. S. Survey
2923, hereinafter referred to as the WUSS 2923 Covenant and
Easement Interests."
| 5L
WHEREAS, by the State's Patent recorded on the }
day of 2006 -under Ketchikan Recording District
Serial No» /2006-OO j*7 Q-S* - Q , the State has issued patent
conveying to the Borough Lot 1, Section 34, which parcel is
described therein as "Section 34: Lot 1, containing 3.03
acres more or less, according to the Survey Plat accepted
by the United States Department of the Interior, Bureau of
Land Management in Anchorage, Alaska on January 28, 2003,
and officially filed March 3, 2003;" nevertheless, for
purposes of this Agreement only, said parcel is still
referred to as¦"Lot 1, Section 34?"
WHEREAS, the Borough, as the owner of Lot 1, Section
34, with the cooperation and consent of KPC, has granted to
the State, with respect to Lot 1, Section 34, the Equitable
Servitude and Easement that was recorded on the 1 day of
'May ___, 2006 under Ketchikan Recording District
Serial No. 2006- OOiiOfc-O , and is hereinafter
referred to as the "Lot 1, Section 34 DNR Servitude and
Easement;"
WHEREAS, the Borough, with the cooperation and consent
of KPC has granted to the State, with respect U. S. 3400
and portions of U. S, 2323, the Equitable Servitude and
Easement that was recorded on the I ^ day of
lf>^ ~~r Q~7- Q , and is hereinafter
referred to as the "US5 3400 and USS 2923 DNR Servitude and
Easement;"
WHEREAS, as set forth in this Agreement, the parties
desire to adjust the priorities between the interests
reserved or granted to KPC under the foregoing recorded
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2006-001708-0
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documents and the two Equitable Servitude and Easement
documents recently granted by the Borough to and for the
benefit of the State,
HOW, THEREFORE, in consideration of the promises and
of the mutual agreements and covenants hereinafter set
forth, the Borough and KPC hereby agree as follows*.
1, Subordination in Favor of State's Lot 1,
Section 34 DNR Servitude and Easement,- Notwithstanding the
prior recording of the 2003 Covenants and Easement, KPC
hereby agrees to, and by this instrument hereby does,
subordinate its Lot -1, Section 34 Covenant and Easement
Interests to the interests in and to Lot 1, Section 34,
granted by the Borough to the State in the Lot 1, Section
34 DNR Servitude and Easement.
2. Subordination of OSS 3400 Quitclaim
Interests in Favor of State's OSS 3400 and USS 2923 DNR
Servitude and Easement, Notwithstanding the prior
recording of the USS 3400 Quitclaim, KPC hereby agrees to,
and by this instrument hereby does, subordinate its OSS
3400 Quitclaim Interests to the interests in and to U.S.
Survey 3400 granted by the Borough to the State in the USS
3400 and OSS 2923 DNR Servitude and Easement.
3, Subordination of USS 3400 and USS 2923
Covenant and Easement Interests in Favor of State's USS
3400 and USS 2 92 3 DNR Servitude and Easement,
Notwithstanding the prior recording of the 2003 Covenants
and Easement, KPC hereby agrees to, and by this instrument
hereby does, subordinate its USS 3400 and USS 2923 Covenant
and Easement Interests to the interests " in and to U.S.
Survey 3400 and U, S. Survey 2923 granted by the Borough to
the State in the USS 3400 and USS 2 92 3 DNR Servitude and
Easement,
4. Subordination of USS 2923 Covenant and
Easement Interests in Favor of State's USS 3400 and USS
2923 DNR Servitude and Easement. Notwithstanding the prior
recording of the 2004 Covenants and Easement, KPC hereby
agrees to, and by this instrument hereby does, subordinate
its USS 2 92 3 Covenant and Easement Interests to the
interests in and to U.S. Survey 2923 granted by the Borough
Illlllllllll
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2008-001 708-0
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to the State in the USS 3400 and USS 2923 DNR Servitude and
Easement.
5, Parties' Rights and Obligations Otherwise to
Remain in Full Force and Effect. This Agreement shall only
affect the parties' rights and obligations as expressly set
forth herein. The provisions of this Agreement herein
shall run with the land in perpetuity, and shall be binding
upon the parties, and their respective heirs, successors,
grantees, lessees, transferees, and assigns, and each of
their heirs, successors, grantees, lessees, transferees,
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
written above,
CCTIKAN PULP COMPANY
As sistar
Secretary
Neil Sherman
President
Harriet Ed'
Clerk
KETCHIKAN GATEWAY BOROUGH
By
Rqf A. Eckert
Manager
STATE OF ALASKA )
: ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this J day of
M , 2006, before me, the undersigned, a Notary
Public Th and" for the State of Alaska, duly commissioned
and sworn as such, personally appeared Roy A, Eckert and
Harriet Edwards, to me known to be the Manager and the
Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pursuant to the laws of the State
Page 5 of 7
1 II!
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2006-001708-0
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of Alaska which executed the above and foregoing
instrument; who on oath stated that they were duly
authorized to execute said instrument and affix the borough
seal thereto on behalf of the Borough
affixed thereto is the borough seal
acknowledged to me that the same was
voluntarily on behalf of the Borough
purposes therein mentioned.
and that the seal
thereof; and who
signed freely and
for the uses and
WITNESS my hand and seal the day and year last
OFFICIAL SEAL
KACIE L. PAXTO'l
tary Public in
Notary Public in and for Alaska
My Commission Expires: ifgg/itl
STATE OF TENNESSEE
Davidson County
THIS IS
2006,
A , Ti:
4pn / ,
miylic inar
l/5/sworn, pej
8q
o ¦
TO CERTIFY
before me.
ti ¦3- tl
the
on
this 2-f
day of
a notary
pu
and
undersigned,
and for the State of Tennessee, duly commissioned
swo^n, personally appeared Neil Sherman and
if h f to me known to be the
President /and Assistant Secretary, respectively, of
Ketchikan Pulp Company, a Washington corporation, the
corporation which executed the above and foregoing
instrument; who on oath stated that they was duly
authorized to execute said instrument on behalf of said
corporation and who acknowledged to me that he signed and
sealed the same freely and voluntarily on behalf of said
corporation for the uses and purposes therein mentioned.
WITNESS my hand and official seal
year in this certificate first ab.ove written.
the day and
II#.
s09:
Nota
STATE ^
©f
s • TB#JHS12I •
%co^
My Commission expires
Page 6 of 7
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2008-001708-0
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WHEN RECORDED, RETURN TO:
Ruth Hamilton Reese
Assistant Attorney General
State of Alaska
Department of Law
Environmental Section-
Post Office Box 110300
Juneau, Alaska 99811
r ¦
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20 O^-OOMTS-O
A Recording uisl: 102 - Ketchikan
s 6/2/2008 3:54 PM Pages: 1 of 15
K
Kjj/
V
CORRECTION TO EQUITABLE SERVITUDE AMD EASEMENT
This CorrectionTo Equitable Servitude And Easement ("this Correction"), made
and entered into this ^^"dav of May, 2008, is made by, between and among the Ketchikan
Gateway Borough, a second class Borough of the State of Alaska (whose address is 344
Front Street, Ketchikan, Alaska 99901), hereinafter "Borough", Renaissance Ketchikan Group
LLC, an Idaho Limited Liability Company (whose mailing address Is 3635 S, Jojoba Way,
Chandler, Arizona 85248), hereinafter "Renaissance", arid the State of Alaska (whose address
is State of Alaska, Department of Natural Resources, Division, of Mining, Land and Water,
Really Services Section, 550 West 7th Avenue, Suite 1050A, Anchorage, Alaska 99501-3579),
hereinafter, "State", WITNESSETH:
Recitals
A. All property descriptions referenced in this Correction are located in, arid
all references to recorded documents are recorded in, the Ketchikan Recording District, First
Judicial District, State of Alaska,
B. On or about April 24, 2006, the Borough, as grantor, executed the
Equitable Servitude and Easement ("the Servitude") that was recorded on May 1, 2006 as
Document No. 2006-001707-0. On or about April 26, 2008, the State, as grantee, executed the
acceptance set forth in the Servitude.
C. By the Servitude, upon the terms set forth therein, the Borough granted
and conveyed to the State, as grantee, an Equitable Servitude and Easement with respect to
certain specified areas within the following described parcels of real property:
Page 1 of 5
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U. S. Survey 3400; and
That certain portion of U.S. Survey 2923, more particularly de-
scribed as follows: Beginning at the northerly corner of the Craw-
ford Tract, otherwise known as Corner No, 2 of U.S. Survey 2923;
thence South 55D45' East along the northeasterly boundary of the
Crawford Tract a distance of 863.37 feet; thence South 89°33'
West a distance of 709.81 feet, more or less, to a point on the
westerly boundary of the Crawford Tract; thence North 0°27' West
along the westerly boundary of the Crawford Tract a distance of
491,50 feet, more or less, to the point of beginning, hereinafter re-
ferred to as 'Triangle, U. S. Survey 2923."
D. The two specific areas of U. S. Survey 3400 and the one specific area
within the Triangle, U. S. Survey 2923 that were made subject to the Servitude were to be
described with particularity in Exhibit 1, which was agreed upon by the Borough and the State.
However, by oversight, when the Servitude document was finalized, executed and recorded, the
exhibit was not attached to and recorded with the Servitude.
E. By the Statutory Warranty Deed recorded on Pay 2, 2006 as Document
No. 2006-001753-0, the Borough conveyed to Renaissance a number of parcels, including U.S.
Survey 3400 and the Triangle, U. S. Survey 2923. By the Deed of Trust and Security
Agreement also recorded on May 2, 2006 as Document No. 2006-001754-0, Renaissance, as
trustor, conveyed to Ketchikan Title Agency inc., as trustee, for the benefit of the Borough, as
beneficiary, a security interest in and to a number of parcels, including U. S. Survey 3400 and
the Triangle, U. S. Survey 2923.
F. The parties, including Renaissance as the current owner of U, S. Survey
3400 and Triangle, U. S. Survey 2923, wish to execute and record this Correction with Exhibit 1
attached hereto, to address the status of Exhibit 1.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Exhibit 1 Attached. Exhibit 1 to the Servitude is attached hereto. By this
reference, Exhibit 1 is incorporated Into this Correction, and thereby incorporated into the
Servitude.
Page 2 of 5
want
2 of 1J5
2006-0021.78-0
-------
2. Servitude tojemalji^^ Effect The effect of this
Correction is only to address the status of Exhibit 1, and to make it a matter of record. This
Correction does not otherwise alter the terms or conditions of the Servitude, and the terms and
conditions of the Servitude shall remain in full force and effect. This Correction and Exhibit 1
are retroactive, effective to the date of the Servitude that was recorded on May 1, 2006, as
Document No. 2006-001707-0.
3. Execution of This Correction, This Correction may be executed in any
number of counterparts, each of which shall be deemed an original, and all said counterparts
shall together constitute one and the same Correction, binding all of the parties hereto,
notwithstanding that all of the parties are not signatory to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have caused these presents to be
executed by their duly authorized representatives, the day and year next below written.
KETCHIKAN GATEWAY BOROUGH RENAISSANCE KETCHIKAN GROUP LLC
By.
Roy A. Eckert
Borough Manager
ember
STATE OF ALASKA )
First District
) ss:
)
THIS IS TO CERTIFY that on this Jj£!*"tJay of May, 2006, before me, the undersigned,
a Notary Public for the State of Alaska, duly commissioned and sworn as such, personally ap-
peared Roy A, Eckert, to me known and known to be the Borough Manager and the person
who executed the above and foregoing Correction to Equitable Servitude and Easement on be-
half of the Ketchikan Gateway Borough, and who acknowledged to me that he signed the same
as the Borough Manager, in the name of and for and on behalf of the Ketchikan Gateway Bor-
ough, freely and voluntarily and by authority of the Ketchikan Gateway Borough Assembly and
on oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year first above whiter
Page 3 of 5
Notary Pufctlfc for Alaska
Commission expires; 9|.L5^o£
Mill
3 of 15
2006-002278-0
-------
STATE OF ALASKA )
) ss:
First District )
THIS IS TO CERTIFY that on this^y day of May, 2006, before me, the undersigned,, a
Notary Public in and for the State of Alaska, duly commissioned and sworn, Jerry Jenkins
personally appeared before me and is known to be the Managing Member of
Renaissance Ketchikan Group LLC, a limited liability company formed under the laws of the State
of Idaho, the company which executed the above and foregoing instrument, and who on oath
stated he is duly authorized to execute said instrument, and acknowledged that he signed the
same freely and voluntarily on behalf of said company for the purposes therein mentioned.
IN WITNESS Wjip^REOF. 1 have hereunto set my hand and affixed my official seal, the
_
Notary Pmc for Alaska
Commission expires: 9/i £/f\ 1?
STATE OF ALASKA
DEPARTMENT OF NATURAL RESOURCES
day and year first
Date: By
Director
Division of Mining, Land and Water
STATE OF ALASKA )
) ss:
Third District )
THIS IS TO CERTIFY that on this day of May, 2006, before me, the undersigned,
a Notary Public for the State of Aiaska, duiy commissioned and sworn as such, personally ap-
peared , to me known and known to be the Director of the Division of Mining,
Land and Water, State of Alaska, Department of Natural Resources, and the person who exe-
cuted the above and foregoing Correction to Equitable Servitude and Easement on behalf of
the Alaska Department of Natural Resources, and who acknowledged to me that he signed the
same as the Director of the Division of Mining, Land and Water, in the name of and for and on
behalf of the Alaska Department of Natural Resources , freely and voluntarily and by authority
of the Alaska Department of Natural Resources and on oath stated that he was authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year first above written.
Notary Public for Alaska
Commission expires:
Page 4 of 5
iiiiniiiiiiiiii
4 of 16
2008-002278-0
-------
STATE OF ARIZONA )
Maricopa County
) ss:
)
THIS IS TO CERTIFY that on this day of May, 2006, before me, the undersigned, a
Notary Public in and for the State of Arizona, duly commissioned and sworn, Jerry Jenkins
personally appeared before me and is known to be the Managing Member of
Renaissance Ketchikan Group LLC, a limited lability company formed under the iaws of the State
of Idaho, the company which executed the above and foregoing instrument, and who on oath
stated he is duly authorized to execute said instrument, and acknowledged that he signed the
same freeiy and voluntarily on behalf of said company for the purposes therein mentioned.
IN WITNESS WHEREOF,
day and year first above written.
have hereunto set my hand and affixed my official seal, the
Notary Public for Arizona
Commission expires:
Date: vS'Zl'Ot
STATE OF ALASKA )
Third District
) ss:
)
STATE OF ALASKA
DEPARTMENT OF NATURAL RESOURCES
Director ^
Division of Mining, Land and Water
THIS IS TO CERTIFY that on this c&q day of May, 2006, before me, the undersigned,
a Notary Public for the State of Alaska, duly commissioned and swom as such, personally ap-
peared ld\f1kArr./l 4''WI»"uS to me known and known to be the Director of the Division of Mining,
Land and Water, State of Alaska, Department of Natural Resources, and the person who exe-
cuted the above and foregoing Correction to Equitable Servitude and Easement on behalf of
the Alaska Department of Natural Resources, and who acknowledged to me that he signed the
same as the Director of the Division of Mining, Land and Water, in the name of and for and on
behalf of the Alaska Department of Natural Resources , freely and voluntarily and by authority
of the Alaska Department of Natural Resources and on oath stated that he was authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year first above written.
'»«*7 « I ______ |
\ I J
Notary PublUfor Alaska/
Commission expires: 0££Yc f-
UMlUlllIlllllM
5 of 15
2008-002278-0
-------
Location Index:
Section 4,
Township 74 S,, Range SO E.,
Copper River Meridian, Aiaslca
Section 33,
Township 75 S.» Range 90 E„
Copper River Meridian, Alaska
AFTER RECORDING RETURN TO:
Ruth Hamilton Reese
Assistant Attorney General
State of Alaska
Department of Law
Environmental Section
P.O. Box 110300
Juneau, AK 99811
JWftraSl .Q37JIE7
JtBWCtFMlStt It E*Sl & USS JW SS23JOC
Page 5 of 5
6 of 15
2006-002278-0
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LEGAL DESCRIPTION
Equitable Servitude and Easement
February 22, 2006
"Parcel 1"
This description is a portion of U.S. Survey 3400, according to the official plat of U.S.
Survey 3400 approved April 18, 1955 (herein referred to as "U.S. Survey 3400") and
bounded by Tract C and Lot 1 of the BLM subdivision survey of Sections 2? arid 34,
Township 74 South, Range 90 East, Copper River Meridian (herein referred to as "Tract
C" or "Lot 1s, accordingly), according to the piat officially fiied March 3, 2003, for purposes
of granting an equitable servitude and easement, and is more particularly described as
follows:
Commencing at Corner Number One of U.S. Survey 3400;
thence S 55D40T'E (a record bearing of S 55°45" E) along the common property line
between U.S. Survey 2923 arid U.S. Survey 3400, a distance of 203.01"
thence N 42°21'27" E fa record bearing of N 42°20' E) along the common boundary of
U.S. Survey 3400 and Tract C a distance of 321.98'
thence around a non-tangent curve to the right through a central angle of 11°10'08"
an arc distance of 14.17', a chord bearing of S 47°54'27" W, a distance of 14.14' along the
common boundary of U.S. Survey 3400 and Tract C (a record chord bearing of S 47°53'
W, chord distance of 0.214 chains, arc length of 0.214 chains)
thence N 53° 28' 33" E (a record bearing of N 53° 28* E) along the common boundary of
U.S. Survey 3400 and Lot 1 a distance of 787.08'
thence around a curve to the right through a central angle of 6° 16* 16" an arc distance of
19.28', a chord bearing of N 56° 36' 25" E along the common boundary of U.S. Survey
3400 and Lot 1 to the TRUE POINT OF BEGINNING;
thence N 10°18i0" E, a distance of 44.13'
thence N 29°27'51" E, a distance of 40.58'
thence N 54°29'56" E, a distance of 27.35'
thence H 70°52i3" E, a distance of 53.63'
thence N 74°51'05" E, a distance of 85.03
thence N 75D20'17" E, a distance of 74.07'
Equitable Servitude and Easement
BYUTBTT \
11 1 ill
Page _JL—of __3 PagefsJ
U.S.S. 3400 and U.S. S 2923
Page 1
7 of 15
-------
thence N 73°49'32" E, a distance of 77.24'
thence N 74°40'44" Et a distance of 78,77*
thence N 75°40'42" E, a distance of 71.89'
thence N 74°48,45" E, a distance of 66.88*
thence N 74°50'32" E, a distance of 53,73'
thence N 75°05'21" E, a distance of 82,17'
thence N 75°14'02" E, a distance of 83.06'
thence N 75°17'00" E, a distance of 87.94'
thence N 74D00'46" E, a distance of 65.32'
thence N 65°50'16" E, a distance of 62.38'
thence N E, a distance of 65.91'
thence N 57"08'22" E, a distance of 88.36'
thence N 56°56'15" E, a distance of 80.26
thence N 52°20'06" E, a distance of 59.55'
thence N 49°25'39" E» a distance of 55.00'
thence N 49°28'24" E, a distance of 61.21'
thence N 53E05'57" E, a distance of 68.26'
thence N 63°40'40" E, a distance of 59.99'
thence N 70°44i7" E, a distance of 88.12'
thence N 70D44'17" E, a distance of 68.12'
thence N 73°09'06" E, a distance of 55.53'
thence N 64°27'39" E, a distance of 62.61'
Equitable Servitude and Easement
EXHIBIT 4-„ -
Page. %. of S—_Page|s|
U.S.S. 3400 and U.S.S 2923
Page 2
I.I I '
8 of 15
-------
thence N 53049'48" E, a distance of 51,08'
thenee N 43°30'19" E, a distance of 57,17'
thence N 52°42'27" E, a distance of 71,88'
thence N 63°48'49" E, a distance of 52.68'
thence N 76°59'28" E, a distance of 60.25*
thence S 83°50'43" E, a distance of 1.84'
thence S 89°50'49" E, a distance of 52.18*
thence S 85°33'55" E, a distance of 70.00'
thence S 84°55'15" E, a distance of 34.61*
thence S 06°04*00" W, a distance of 80.06" to the common boundary of U.S. Survey 3400
and Tract C
thence N 84°00'04" W, a distance of 114.34' along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of N 83°5S'00" W,)
thence around a curve to the left through a central angle of 48Q5T00" an arc distance of
142.03', a chord bearing of S 71"34'26" W, a distance of 137.77" along the boundary of
U.S. Survey 3400, (a record chord bearing of S 7r38'30" W, chord distance of 2.090
chains, arc length of 2.154 chains)
thence S 47°08'56" W, a distance of 70.33* along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 47°13'W, a distance of 1.087 chains)
thence around a curve to the right through a central angle of 28°58,00° an arc distance of
198.07', a chord bearing of S 61°37'56" W, a distance of 195.97" along the common
boundary of U.S. Survey 3400 and Tract C (a record chord bearing of S 61°42" W, chard
distance of 2.973 chains, arc length of 3.008 chains
thence S 76°Q6'56" W, a distance of 50.49' along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 78°1 V W, a distance of 0,768 chains)
thence around a curve to the left through a central angle of 27°34'00" an arc distance of
110.95', a chord bearing of S 62019,568 W, a distance of 109.88" along the common
boundary of U.S. Survey 3400 and Tract C, {a record chord bearing of S 62°24' W, chord
distance of 1.887 chains, arc length of 1.684 chains) nwuroff jt.
EXHIBIT-
Page_^_ _ . S -Paged
Equitable Servitude and Easement U.S. S. 3400 and U,S.S 2923
Page 3
111
a of 15
-------
thence S 48°32'56" W, a distance of 147.72' along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 48°37' W, a distance of 2.241 chains)
thence around a non-tangent curve to the right through a central angle of 9°39i0" an arc
distance of 70.05', a chord bearing of S W, a distance of 69,97*, along the
common boundary of U.S. Survey 3400 and Tract C, (a record chord bearing of S
53°26'30" W, chord distance of 1.060 chains, arc length of 1.061 chains)
thence S 56"13'37" W, a distance of 214.00' along the common boundary of U.S. Survey
3400 arid Tract C (a record bearing of S 58°18* W, a distance of 3.242 chains)
thence around a curve to the right, through a central angle of 16°52'00B an arc distance of
143.95', a chord bearing of S 88°39*37" W a distance of 143.43', along the common
boundary of U.S. Survey 3400 and Tract C, (a record chord bearing of S 88°42* W, chord
distance of 2.173 chains, arc length of 2.181 chains)
thence S 75tt05'37" W, a distance of 788.20' along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 75"OB" W)
thence S 75a10"11" W, a distance of 48.32" along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 75°08' W, a record distance of 0.733 chains)
thence around a curve to the left, through a central angle of 15°46'59" an arc distance of
48.51', a chord bearing of S 67°38,4" W a distance of 48.36', along the common boundary
of U.S. Survey 3400, Tract C and Lot 1 to the POINT OF BEGINNING
Containing 162,891 square feet or 3.7395 acres, more or less.
"Parcel 2"
This description is a portion of U.S. Survey 3400, according to the official plat of U.S.
Survey 3400 approved April 18,1955 (herein referred to as "U.S. Survey 3400") and
bounded by Tract C and Lot 1 of the BUM subdivision survey of Sections 27 and 34,
Township 74 South, Range 90 East, Copper River Meridian (herein referred to as 'Tract
C" or "Lot 1", accordingly), according to the plat officially filed March 3, 2003, for purposes
of granting an equitable servitude and easement, and is more particularly described as
follows;
Commencing at Comer Number One of U.S. Survey 3400;
thence S S5°40T'E (a record bearing of S 55°45' E) along the common boundary of U.S.
Survey 2923 and U.S. Survey 3400, a distance of 138.02* to the TRUE POINT OF
BEGINNING;
thence N SSMBW E, a distance of 16.71' EXHIBIT
Page - jl of, R. Page'(s|
Equitable Servitude and Easement U. S. S. 3400 and U.S.S 2923
Page 4
10 of 15
-------
thence N 39°56'49" E, a distance of 23,43"
thence
N
4QtW23"
E,
a
distance
of 67.44*
thence
N
40°47'15"
E,
a
distance
of 71.99'
thence
N
41 °14'51"
E,
a
distance
of 53.75"
thence
N
44ai6,3r
E,
a
distance
of 59.77
thence
N
54°44'59"
E,
a
distance
of 43.67'
thence
N
80°QT48"
E,
a
distance
of 51.06'
thence S 81°18'08" E, a distance of 52.57' to a point along the common boundary of U.S.
Survey 3400, Lot 1 and Tract C
thence S 53°28'33" W, a distance of 67,28* along the common boundary of U.S. Survey
3400 and Tract C
thence around a non-tangent curve to the let through a central angle of 11°10'08"
an arc distance of 14.17', a chord bearing of S 47°54'27M W,
a distance of 14.14* along the common boundary of U.S. Survey 3400 and Tract C (a
record chord bearing of S 47°53' W, chord distance of 0.214 chains, arc length of 0.214
chains)
thence S 42°21'27" W, a distance of 321.98' along the common boundary of U.S. Survey
3400 and Tract C (a record bearing of S 42°20" W, a distance of 321.98 feet, or 4,872
chains)
thence N 55°40'01" W, a distance of 64.99' along the common boundary of U.S. Survey
3400 and U.S. Survey 2923 fa record bearing of N 55°4S* W) to the POINT OF
BEGINNING
Containing 25,751 square feet or 0.591 acres, more or less.
"Parcel 3"
This description is a portion of U.S. Survey 2923, according to the official piat of U.S.
Survey 2923 approved July 5, 1950 (herein referred to as "U.S. Survey 2923") and
according to the official plat of U.S. Survey 3400 approved April 18,1955 (herein referred
to as "U.S. Survey 3400"), for purposes of granting an equitable servitude and easement,
and is more particularly described as follows:
Commencing at Corner Number One of U.S. Survey 3400;
Equitable Servitude and Easement
exhmt-J=—i-
Page —S- of _5 Page*(s|
U.S.S. 3400 and.U.S.3 2923
Page 5
11 of 16
5ftflft.flfl997fi.fJ
-------
thence S 55°40T E (a record bearing of S 55°45' E) along the common boundary of U.S.
Survey 2923 and U.S. Sun/ey 3400, a distance of 138.02' to the TRUE POINT OF
BEGINNING;
thence S S5e40i" E (a record bearing of S 55°45* E) along the common boundary of U.S.
Survey 2923 and U.S. Survey 3400, a distance of 49.38'
thence S 8'5'45" E, a distance of 30.45'
thence S 8°37'27" E, a distance of 74.29'
thence S 58°6'40" W, a distance of 89,41 *
thence N 77°44'51" W, a distance of 43.83*
thence N 62°0'10" W, a distance of 87.23'
thence N 38°38'4T E» a distance of 46.59'
thence M 39°45'38" E, a distance of 58.65'
thence N 39°45'41" E, a distance of 59.60' to the common boundary of U.S. Survey 2923
and U.S. Survey 3400, the POINT OF BEGINNING
Containing 15,872 square feet or 0.384 acres, more or less.
Equitable Servitude and Easement
1
EXHIBIT
Page Jfi-ofJ Page'03
U.S.S. 3400 and U.S.S 2923
Page 6
12 of 15
1MB ftOIITO n
-------
PARCEL 2"
FOR INSTITUTIONAL C
25,751 SQUARE FEE!
EXHIBIT
"PARCEL 3"Page_3l_af J_Fage(s|
FOR INSTITUTIONAL CONTROLS
15,872 SQUARE FEET, 0.364 ACRES
13 of 16
-------
EJKfl TABLE
ROAD
CENTERLINE
"PARCEL 1"
FOR INSTITUTIONAL Cf
182,891 SQUARE FEE"
TRACT C
"PARCEL 2"
FOR INSTITUTIONAL CONTROLS
exhibit.
JL
25,751 SQUARE FEET, 0,591 ACRES Page_i—of_ S—Page(sJ
"PARCEL 3"
FOR INSTITUTIONAL CONTROLS
15,872 SQUARE FEET, 0.584 ACRES
GRAPHIC SCALE
SCALE IN FEET
200
pftfaj"CT NO. SCALE!;. — , DKaWn B*
0527SB 1 ~ 200
R&M ENGlNEERING-KEJCHIKAh
14 Of 16
nnnc nnwro ft
-------
CD
ni^
4m
"PARCEL 1"
TOR INSTITUTIONAL CONTROLS
162,891 SQUARE FEET, 3.7395 ACRES
«?
CO
m »¦«.
V- {M
tSI
o o
«s
to
CM
TRACT C
TRACT 37
EXHIBIT
Page —3 o£ —9 Page'(s^
ROLS
591 ACRES
GRAPHIC SCALE
SCALE IN FEET
100
200
AREAS UNDER
INSTITUTIONAL CONTROLS
U.S. SURVEYS 3400 & 2923
KETCHIKAN, ALASKA
CLIENT: KETCHIKAN PULP COMPANY
P.O. BOX 6SOO
KETCHIKAN, ALASKA 3330J
PROJECT NO.
sestl;,.
» 200'
DRAWN
CHECKED BY:
DATE:
| SHEET NO.
05275B
1" -
S-A.M.
SAM.
2/22/06
I 1 OF 1
RAM ENGINEERING-KETCH!KAN, INC, 355 CARLANNA LAKE ROAD KETCHIKAN, ALASKA S9901
-------
Attachment 11
2003 Agreement between Ketchikan Gateway Borough, Gateway Forest Products, and
Ketchikan Pulp Company, recorded July 16, 2008
-------
A 2008-00280^-0
L Recording Dist: 102 - Ketchikan
S 7/16/2008 11:11 AM Pages; 1, of 72
'
After Recording Return to;
Ketchikan Gateway Borough
Borough Attorney's Office
344 Front Street
Ketchikan, AK 99901
THIS COVER SHEET HAS BEEN ADDED TO
THIS DOCUMENT TO PROVIDE SPACE FOR
THE RECORDING DATA. THIS COVER
SHEET APPEARS' AS THE FIRST PAGE OF
THE DOCUMENT IN TI-IE OFFICIAL PUBLIC
RECORD. . ;
DO NOT DETACH
-------
1
AGREEMENT ;
i T I
This Agreement is entered into this / y- ""clay of \J e~ I y , 2003, by and
between the Ketchikan Gateway Borough, Gateway Forest Products^Inc., and Ketchikan
Pulp Company.
RECITALS
WHEREAS, Ketchikan Pulp Company sold its former pulp mill site,
substantially all of its operating assets, and other real properties in or near Ward Cove,
Ketchikan, Alaska, to Gateway Forest Products, Inc. pursuant to the terms and conditions
of ail Asset Purchase Agreement ("APA") dated November 3, 1999;
WHEREAS, Gateway Forest Products, Inc. and Ketchikan Pulp Company
executed and delivered various Ancillary Agreements as part of the APA, including the
Allocation of Environmental Responsibilities Agreement (Exhibit "F"). which set forth
the environmental liabilities retained by Ketchikan Pulp Company and those being
assumed by Gateway Forest Products, Inc., the terms and conditions of which were
incorporated by reference into the Easement and Declaration of Covenants Regarding
Allocation of Environmental Responsibilities (Exhibit "F-l"), both of which thereafter
were incorporated by reference into the Quitclaim Deed, recorded in the Ketchikan
Recording District on November 5. 1999 at Book 306, Page 72, effectuating the transfer
of assets and real property from Ketchikan Pulp Company to Gateway Forest Products,
Inc. as contemplated by the APA;
WHEREAS, Gateway Forest Products, Inc. unsuccessfully attempted to
reorganize under Chapter 11 of the Bankruptcy Code and now is in default of its payment
obligations to both Ketchikan Pulp Company and the Ketchikan Gateway Borough;
WHEREAS, Gateway Forest Products, Inc. granted Ketchikan Pulp Company an
Easement For Landfill Outfall which was recorded as Document No. 2002-001755-0 on
April 30, 2002;
WHEREAS, the parties may disagree with respect to the validity and
applicability of the Environmental Allocation Agreement and the Environmental
Allocation Easement, insofar as certain parcels of real property are concerned, the
purpose of this Agreement is to fully and finally resolve any and all related disputes; to
facilitate redevelopment of properties in the Ward Cove area; to remove asbestos from
certain structures situated on USS 1056, Lot 3; and to provide for the orderly transfer to
the Ketchikan Gateway Borough of certain properties currently owned by Gateway
Forest Products, Inc. and Ketchikan Pulp Company;
WHEREAS, the parties further desire to modify the terms of the Environmental
Allocation Agreement and the Environmental Allocation Easement, and to otherwise
resolve certain issues outstanding between them; and
AE™"°t 1 2008-002806-0
-------
I
I
I
WHEREAS, capitalized terms shall be construed by reference to the definitions
or explanations given in this Agreement, including the Recitals, the text, and the
Definitions section:
i
NOW THEREFORE, in consideration of the mutual promises, covenants, and
conditions set forth herein, the parties hereby agree as follows:
TEEMS AND CONDITIONS
1. Parties and Scope.
(a) Except as otherwise specifically provided in this Agreement, the term
"Borough" means and refers to the Ketchikan Gateway Borough, a municipal corporation
organized pursuant to the laws of the State of Alaska. Where the term "Borough Entities"
is utilized, it means and refers to the Borough, as well as its successors, heirs, and
assigns, and also includes its employees, agents, contractors, invitees, licensees,
representatives, permittees, joint venturers, instrumentalities, port authorities, any third
party contractually related, directly or indirectly, other than Ketchikan Pulp Company
and Gateway Forest Products, Inc., to the Borough, as well as their heirs, successors and
assigns,
(b) Except as otherwise specifically provided in this Agreement, the term
"Gateway" means and refers to Gateway Forest Products, Inc., an Alaska corporation.
(c) Except as otherwise specifically provided in this Agreement, the term
"KPC" means and refers to Ketchikan Pulp Company, a Washington corporation.
(d) Notwithstanding the foregoing, the respective successors, heirs, and
assigns of the Ketchikan Gateway Borough, Gateway Forest Products, Inc., and
Ketchikan Pulp Company, shall be relieved of their obligations to comply with this
Agreement to the extent such party no longer holds any interest in the Borough Property;
provided, however, that any such party's responsibility and liability for acts and
omissions occurring during the period in which that party held any ownership, leasehold,
or other interest in the Borough Property (and any party's rights to payment,
reimbursement, indemnification, release, or a defense regarding the same) shall survive
such transfer. Nothing in this subsection shall diminish or relieve the obligations or
liabilities of the Ketchikan Gateway Borough, Gateway Forest Products, Inc. or
Ketchikan Pulp Company from the obligations of this Agreement.
2. Definitions.
The terms used in this Agreement shall have the following meanings, which are to
be equally applicable to both the singular and plural forms of the terms defined. All
documents and plats referred to as filed, recorded, or both, are on file in the Ketchikan
Recording District, First Judicial District, State of Alaska: i
2008-002808-0
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"Borough Property" means the following parcels of property, all of which
are located in or near Ketchikan, Alaska. All references to Borough
Property shall mean and include all fixtures, structures, facilities, and
improvements upon such parcels and property, as well as all water rights
and other appurtenant rights: <
(i) The "Ward Cove Parcels";
AH of ALASKA T1DELANDS SURVEY NO. 1 (CR 74S 90E),
according to the unrecorded plat thereof, (mistakenly recorded in the
Juneau Recording District as Plat No. 292);
Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H.E.S.)
according to the plat thereof filed August 14, 2000 as Plat No. 2000-
41;
That portion of U.S. Survey 1056, lying northerly of the northerly
boundary of North Tongass Highway, being adjacent to U.S. Survey
2923 and comprised of 5.16 acres;
U.S. Survey 1706;
The Unsubdivided Remainder of U.S. Survey 1754;
That portion of U.S. Survey 1862, more particularly described as
follows: Beginning at U.S. Land Mark No. 2; thence North 32°27'
West a distance of 155.5 feet to Comer No. 1 of U.S. Survey 1862
and the true point of beginning of the portion herein described;
thence North 0°25* West a distance of 515 feet, more or less, to a
point on the South Right of Way line of North Tongass Highway,
which point is 50 feet from the center line of said highway and at
right angles to Engineers Station 299+50; thence along that portion
of a spiral curve to the left whose chord bears South 24°30' East a
distance of 114.65 feet; thence along the arc of a 527.46 foot radius
curve the long chord of which bears South 36 "35* East a distance of
126.14 feet; thence along a spiral curve whose chord bears South
51 °21' East a distance of 210.05 feet; thence South 55°27' East a
distance of 316.97 feet; thence South 34D33' West a distance of 50
feet; thence South 5 5 "27" East a distance of 137.00 feet; thence
South 88°00' West a distance of 535 feet more or less along Meander
Line No. 11 of U.S. Survey 1862; thence North 29°30' West a
distance of 155.50 feet along Meander Line No. 12 of U.S. Survey
1862 to Comer No. 1, which is the point of beginning; ;
ALSO: That portion of U.S. Survey 1862 lying with the North
Tongass Highway Right of Way as created by a deed dated April 1,
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1949 and recorded in Volume "W" of Deeds at Page 362, Ketchikan
Recording District, First Judicial District, State of Alaska, and as
conveyed to Ketchikan Pulp Company by Quitclaim Deed recorded
My 27, 1988 in Book 158 at Page 588;
U.S. Survey 2090;
(b)
That certain portion of U.S. Survey 2923, more particularly de-
scribed as follows: Beginning at the northerly comer of the Crawford
Tract, otherwise known as Comer No, 2 of U.S. Survey 2923;'thence
South 55 °45' East along the northeasterly boundary of the Crawford
Tract a distance of 863,37 feet; thence South S9°33' West a distance
of 709.81 feet, more or less, to a point on the westerly boundary of
the Crawford Tract; thence North 0°27' West along the westerly
boundary of the Crawford Tract a distance of 491,50 feet, more or
less, to the point ofbeginmng;
Tract 3004, Lot 1; and
Alaska Tidelands Survey No. 439.
(ii) The "Pipeline Access Road Parcel" The term "Pipeline
Access Road Parcel" means and refers to Lot 1, Sec. 34, T.
74S., R.90E., C.R.M., a diagram of which is attached
hereto as Exhibit "A" to Appendix "1".
(iii) The "KPC Landfill Periphery Parcel": The term "KPC
Landfill Periphery Parcel" means and refers to Lot 1, Tract
3004, according to the plat filed November 28, 2000 as Plat
2000-73.
(iv) The "Dam and Pipeline Parcels": The term "Dam and
Pipeline Parcels" refers to U.S. Survey 3400 and U.S.
Survey 3401. <
I
"Costs" means, with respect to Remediation and Investigation activities,
actual reasonable expenditures, including but not limited to, reasonable
attorneys1 fees and defense costs, contractor costs, consultant costs,
governmental oversight costs and other necessary expenditures. ;
(c) "Environmental Allocation Agreement" or "Exhibit "F," means the
Allocation of Environmental Responsibilities Agreement;
I
(d) "Environmental Allocation Easement" or "Exhibit "F-l," means the
Easement and Declaration of Covenants Regarding Allocation of
Environmental Responsibilities; j
Agreement
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m
(s)
(h)
(i)
a)
Agreement
"Environmental Laws" means all State of Alaska, local, and federal laws,
statutes, regulations, and ordinances of any land relating to environmental
protection or compliance as they currently exist and as they may come to
be amended, including but not limited to, the federal Clean Water Act;
Clean Air Act; Toxic Substances Control Act; Comprehensive
Environmental Response, Compensation and Liability Act; Resource
Conservation and Recovery Act; Federal Insecticide, Fungicide, and
Rodenticide Act; Safe Drinking Water Act; Hazardous Materials
Transportation Act; laws designated in Alaska Statutes Title 46; and
common law, including causes of action arising in tort.
"Excess Water Option Agreement" means the Option Agreement to
Purchase Excess Water, recorded in the Ketchikan Recording District on
November 5, 1999, at Book 306, Page 160 (APA Exhibit "H-3");
"Foothill" means Foothill Capital Corporation, the entity which loaned
Gateway some of the monies necessary to acquire the KPC assets and to
complete construction of the veneer mill.
"Hazardous Substances" means substances which constitute hazardous
substances under either the Comprehensive Environmental Response,
Compensation Liability Act or under AS 46.03.822.
"Institutional Controls" means the Environmental Protection Easement
and Declaration of Restrictive Covenants in favor of the State of Alaska,
Department of Natural Resources, recorded on October 28, 1999, at Book
305, page 772 in the Ketchikan Recording District, and such other
measures, controls, limitations, prohibitions, procedures, or protocols that
the United States Environmental Protection Agency ("EPA"), the Alaska
Department of Environmental Conservation ("DEC") or the Alaska
Department of Natural Resources ("DNR") requires in order to maintain
the integrity of a remedial or removal action or prevent a release or
threatened release of a Hazardous Substance.
I
"Investieation or Investigatory" means actions to assess the nature and
extent of Hazardous Substances contamination, including sampling and
other necessary activities. :
"Losses" means all known and unknown claims, causes of i action,
liabilities, payment requests or demands, losses, costs, expenses
(including, without limitation, reasonable attorneys', experts', and other
consultants' fees), penalties, fines, equitable relief, and damages. !
"Mud Bight Tidelands Lease" means the KPC Alaska Tidelands Lease
serialized by the State of Alaska, Department of Natural Resources, as
llllllllll
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Tidelands Lease ADL 34507, that is applicable to the property identified
as ATS No. 698, Tract B, which was assigned by KPC to Gateway, but
which the State of Alaska refused to transfer because of new log storage
permitting regulations, resulting in its retention by KPC.
(m) "Office and Hangar Lease" means the Office and Hangar .Lease
Agreement, executed on November 3, 1999 and attached at Tab 5 to the
APA, and for which a memorandum of lease for the office space was
recorded November 15,1999 at Book 306, Page 503 and a memorandum
of lease for the hangar was recorded on November 12, 1999 at Book 306,
Page 406.
(n) "Plant Systems Easement" means that certain agreement recorded
November 5, 1999 at Book 306, Page 990 (APA Exhibit "H-l"), as
amended by the following;
Amendment to Plant Systems Easement, recorded December 15,
2000, at Book 319, Page 360.
Second Amendment to Plant Systems Easement, recorded January
3, 2001, at Book 320, Page 421.
(o) "Remediation" means actions to remove, clean up, treat, or dispose of
Hazardous Substances from the environment, including but not limited to,
actions which may be necessary to prevent, minimize, or mitigate damage
to the public health or welfare or to the environment from a release or
threatened release of a Hazardous Substance.
(p) Subdivisions: Some portions of the Borough Property are the subject of
either current subdivisions or ones to be recorded after the effective date
of this Agreement. The properties which are the subject of such
subdivision may be referenced in this Agreement with the description
thereof as it currently exists or as it will as a result of such subdivision.
These subdivisions are referred to as follows:
(i) The term "No. 1 Subdivision" means and refers to Gateway
Subdivision No. 1, a subdivision of U.S. Survey 1056, which
created USS 1056, Lots 1, 2, and 3, according to the plat thereof
filed and recorded on the 14 day of August, 2000 as Plat No. 2000-
41. j
j
(ii) The term "No. 2 Subdivision" means and refers to Gateway
Subdivision No. 2, a subdivision of Lot 3 within U.S. Survey 1056,
which will create USS 1056, Lot 3-A, and re-name the remainder
of USS 1056 as Tract A, approved by the Ketchikan Gateway
Borough Planning & Zoning Commission on October 9, 2001.
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Agreement
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(iii) The terra "No. 3 Subdivision" means and refers to Gateway
Subdivision No. 3, a subdivision of USS 1056, Tract A and ATS-
1, Exhibit A, which will create USS 1056, Lot 3-B, and ATS-1,
Lots A, B, C. and D, approved by the Ketchikan Gateway Borough
Planning & Zoning Commission on February 12,2002.
(q) "Ward Cove Area" means the water body commonly known as Ward
Cove, including marine waters to the ordinary high water mark and
sediments underlying such waters, and also means the surface and
subsurface areas of those portions of U.S. Surveys 1056, 1208, 1508,
1653, 1656, 1659, 1706, 1754, and 1862 lying seaward of the North
Tongass Highway, and the filled portions of ATS-1, including any
structures or other improvements located thereon.
(r) "Ward Cove Consent Decree" means the consent decree with the EPA and
the U.S. Department of Justice entered by the U.S. District Court for the
District of Alaska: CERCLA Remedial Design/Remedial Action Consent
Decree, United States vs. Gateway Forest Products, Inc., Ketchikan Pulp
Company, & Louisiana-Pacific Corporation, Case No. A00-225 CV
(JKS).
(s) "Ward Cove Landfills" means the industrial landfill which KPC owns and
operates upon Lot 2, Tract 3004, Dawson Point Subdivision, according to
the plat thereof filed November 28, 2000 as Plat 2000-73.
(t) "Water Rights Agreement" means the Associated Real Property and Water
Rights Agreement, recorded November 5, 1999 at Book 306, Page 84
(APA Exhibit "H").
(u) "Water Use Site Easement" means the Water Use Site Easement, recorded
November 5, 1999, at Book 306, Page 125 (APA Exhibit "H-2"), as
amended by the following;
!
Amendment to Water Use Site Easement, recorded December 12, 2000, at
Book 319, Page 250. |
(v) "Water Use Site Option Agreement" means the Option Agreement to
Purchase Water Use Site, recorded November 5, 1999, at Boole 306, Page
149 (APA Exhibit "H-4"), as amended by the following:
Amendment to Option Agreement to Purchase Water Use Site, recorded
December 12, 2000, at Book 319, Page 258.
Agreement
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AH of the definitions provided in 'the Recitals are incorporated herein by reference as
though fully set forth, and all of the definitions provided anywhere in this Agreement,
including the Recitals and the text, shall constitute binding terms of this Agreement,
3. Property Covered.
(a) This Agreement applies to the Borough Property, more fully described in
Section 2(a), which are the property interests the Borough has or is expected to receive,"
whether by foreclosure or otherwise, from Gateway, Foothill, or KPC. However, except
as otherwise expressly provided, to the extent the Borough does not acquire any of the
property interests, the terms of this Agreement shall not apply.
(b) The obligations of a future holder of any interest in a parcel or area of real
property set forth in Section 2(a), or a portion thereof, shall be limited to the parcel, area,
or portion held by such party and shall not be interpreted to create liability for other
parcels or areas not held by such party.
4. Environmental Allocation Agreement And Environmental Allocation
Easement Superseded.
• (a) The Environmental Allocation Agreement and Environmental Allocation
Easement currently apply to the following parcels:
(i) All of ALASKA TTDELANDS SURVEY NO. 1 (CR 74S 90E),
according to the unrecorded plat thereof, (mistakenly recorded in the
Juneau Recording District as Plat No. 292), except Exhibit "C-2";
(ii) Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H.E.S.)
according to the plat thereof filed August 14, 2000 as Plat No. 2000-
41;
:
(iii) That portion of U.S. Survey 1056, lying northerly of the northerly
boundary of North Tongass Highway, being adjacent to U.S. Survey
2923 and comprised of 5.16 acres; j
(iv) U.S. Survey 1706; j
(v) The Unsubdivided Remainder ofU.S. Survey 1754;
j
(vi) That portion of U.S. Survey 1862, more particularly described as
follows: Beginning at U.S. Land Mark No. 2; thence North 32° 11'
West a distance of 155.5 feet to Corner No. 1 ofU.S. Survey 1862 and
the true point of beginning of the portion herein described; thence
North 0 25' West a distance of 515 feet, more or less, to a point on the
South Right of Way line of North Tongass Highway, which point is 50
feet from the center line of said highway and at right angles to
Agreement
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Engineers Station 299+50; thence along that portion of a spiral curve
to the left whose chord bears South 24° 30' East a distance of 114.65
feet; thence along the arc of a 527,46 foot radius curve the long chord
of which hears South 360 35' East a distance of 126.14 feet; thence
along a spiral curve whose chord hears South 51 °21' East a distance of
210,05 feet; thence South 55°27' East a distance of 316.97 feet; thence
South 34° 33' West a distance of 50 feet; thence South 55° 27' East a
distance of 137.00 feet; thence South 88° 00' West a distance of 535
feet more or less along Meander Line No. 11 of U.S. Survey 1862;
thence North 29°30' West a distance of 155.50 feet along Meander
Line No. 12 of U.S. Survey 1862 to Comer No. 1, which is the point of
beginning;
ALSO: That portion of U.S. Survey 1862 lying with the North
Tongass Highway Eight of Way as created by a deed dated April 1,
1949 and recorded in Volume "W" of Deeds at Page 362, Ketchikan
Recording District, First Judicial District, State of Alaska, and as
conveyed to Ketchikan Pulp Company by Quitclaim Deed recorded
July 21, 1988 in Book 158 at Page 588;
(vii) U.S. Survey 2090;
(viii) That certain portion of U.S. Survey 2923, more particularly described
as follows: Beginning at the northerly corner of the Crawford Tract,
otherwise known as Comer No. 2 of U.S. Survey 2923; thence South
55 ° 45' East along the northeasterly boundary of the Crawford Tract a
distance of 863.37 feet; thence South 89°33' West a distance of 709.81
feet, more or less, to a point on the westerly boundary of the Crawford
Tract; thence North 0°27' West along the westerly boundary of the
Crawford Tract a distance of 491.50 feet, more or less, to the point of
beginning; and
(ix) Tract 3004, Lot 1. ;
(b) This Agreement and the accompanying Environmental Easement and
Covenants ("Borough Easement"), the form of which is attached hereto as Appendix "1,"
shall supersede and replace the Environmental Allocation Agreement and Environmental
Allocation Easement with respect to any parcel or parcels of the Borough. Property listed
in subsection (a), when the Borough takes title and the Borough Easement is executed
and recorded. j
J
(c) This Agreement and the Borough Easement shall not affect the
applicability of the terms and conditions of the Environmental Allocation Agreement or
Environmental Allocation Easement as to any real property other than any parcel or
parcels to which the Borough has taken title. j
Haiinlii
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(d) The Borough Easement shall be executed and recorded only after the
Borough, obtains title to the Borough Property, whether by foreclosure or otherwise, but
shall be subject only to the Borough's title, including all reservations, easements and
restrictions of record. ;
5. Applicability of the Borough Easement
(a) Once title to any one or more parcels of Borough Property set forth in
Section 2(a) is taken by the Borough, the Borough shall execute and deliver to KPC in
recordable form, an easement in substantially the same form as Appendix "1."
(b) A Fomi of Easement and Covenant Vacation, removing the Environmental
Allocation Agreement and the Environmental Allocation Easement, to be utilized only as
and when the Borough obtains title to one or more parcels of the Borough Property, is
attached as Appendix "2." KPC, Gateway and the Borough shall execute and record the
Easement and Covenant Vacation contemporaneous with their execution and recordation
of the Borough Easement; provided, however, that once Gateway no longer is the owner
of a parcel, or a portion of any parcel, of the Borough Property, its agreement no longer
shall be necessary to vacate the Environmental Allocation Agreement and the
Environmental Allocation Easement with respect to that parcel or portion.
6. Governmental Easement Unaffected.
This Agreement shall not be interpreted to diminish the rights of the State of
Alaska or the United States under that certain Environmental Protection Easement and
Declaration of Restrictive Covenants recorded in the Ketchikan Recording District on
October 28,1999 at Book 305, Page 772.
7. Ward Cove Sand Cap.
(a) The Borough agrees to application of the covenants, which are set forth in
Appendix "1" hereto, relating to the cap or capping materials that have been applied to
the sediments of Ward Cove pursuant to the provisions of the Ward Cove Consent Decree
("Sand Cap").
(b) While the Borough, or any of its instrumentalities, for example a port
authority, owns any portion of Alaska Tidelands Survey No. 1, the Borough further
covenants and agrees that it shall be liable for any damage to the Sand Cap arising out of
the acts or omissions of the Borough, its employees, agents, contractors, lessees, invitees,
licensees, representatives, permittees, joint venturers, instrumentalities, port authorities,
or any third party contractually related, directly or indirectly to the Borough, other than
KPC and Gateway; provided, however, that the Borough shall not be responsible or liable
for damage to the Sand Cap to the extent such damage results from the activities or
operations of KPC, its agents, servants, employees, officers, directors, partners,
principals, shareholders and contractors. |
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(c) The Borough agrees to impose appropriate contractual requirements and
port use regulator^' provisions regarding the capping materials on parties with which it
does business, consistent with the requirements imposed in accordance with the terms of
Appendix "1,"
(d) KPC agrees that this Agreement does not diminish, or shift to the
Borough, KPC's responsibility to monitor, at KPC's cost, the Ward Cove Cap, as set
forth in the Ward Cove Consent Decree and in the Long Term Monitoring and Reporting
Plan for Sediment Remediation in Ward Cove prepared by Exponent or any remediation
which may be required as a result.
8. Institutional Controls,
(a) The Borough Entities agree that they will adhere to and comply with, at
their expense, any and all Institutional Controls which apply to the Borough Property,
Further, the Borough Entities agree that they will comply with future Institutional
Controls which may become applicable to the Borough Property as a result of EPA, DEC,
or DNR imposed limitations. The Borough shall have the right to seek modification of
existing or future Institutional Controls, Any such amendment to Institutional Controls,
or fixture limitations which relax restrictions imposed on the Borough Property, or which
would result in costs assessed against, or otherwise adversely affect KPC, shall not be
negotiated without KPC's participation. The Borough Entities will not seek payment or
damages from KPC for the cost of implementing these Institutional Controls or for any
resulting diminution in value of any such parcels.
fb) For each parcel or area comprising the Borough Property, the Borough
Entities shall only be obligated to comply with the existing or new Institutional Controls
that are applicable to such parcel or area.
(c) In the event that any governmental entity seeks to compel KPC to impose
Institutional Controls on the Borough Property, KPC promptly will notify the Borough
and tender to the Borough the right to conduct the requisite negotiations, subject to the
limitations of this section. The Borough will grant KPC the opportunity to participate in
those proceedings. Under no circumstances, however, shall this section be interpreted to
require the Borough or KPC to indemnify the other for any costs of Remediation.
(d) The Borough agrees to impose, upon the Borough Entities, appropriate
contractual requirements regarding adherence to and compliance with, at their expense,
any Institutional Controls, consistent with the provisions contained in this section.
9. Government Oversight Costs. j
I
(a) The parties acknowledge that the Ward Cove Consent Decree requires that
governmental oversight costs must be paid if governmental oversight is required in
connection with the Borough Property. The parties agree that each shall be responsible
for any governmental oversight costs that may be assessed by appropriate government
Agreement 11 12 of 72 ji
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agencies for obligations or liabilities allocated to each party under this Agreement,
attributable to inquiries or operations that any of them have initiated or conducted or
which may occur in the future. Each party shall further be liable for such costs when
caused by inquiries or operations of: third parties which have been, or will be, doing, or
seeking to do, business with or at the direction of a party; a past or prospective purchaser
or lessee; or a third party objecting to past, current or proposed activities, uses or
operations of a party or its permittees. For example, KPC would be responsible for
oversight costs related to future remediation in Ward Cove arising from newly discovered
contamination attributable to operations during its ownership. Similarly, the Borough
would be responsible for oversight costs associated with future development or other
operations at Ward Cove,
(b) In the event of any disagreement between the parties as to whether a
particular governmental oversight cost is properly attributable to KPC, the Borough,
Gateway, or should be shared hi some manner between them, the parties agree that they
shall jointly provide copies of this Agreement and any related relevant instruments to and
solicit the opinion of that government agency with respect to responsibility for the
oversight costs. The opinion of the government agency shall be deemed presumptively
correct. Any party seeking to allocate responsibility differently than the agency shall
have the burden of proof on that issue. Under no circumstances, however, shall this
section be interpreted to require the Borough or KPC to indemnify the other for any costs
of Remediation.
10. Disclosure of Environmental Conditions by KPC to Borough.
(a) Ketchikan Pulp Company has conducted an inquiry concerning
environmental conditions at the Borough Property. To the best of KPC's knowledge, as
defined under AS 45.01.201(28), it has disclosed to the Borough all material information
concerning the environmental conditions at the Borough Property which arose prior to
KPC's sale of the Borough Property to Gateway.
(b) KPC has provided the Borough the following information concerning
known environmental conditions with respect to the Borough Property:
Items set forth in a letter from Donna Willard to Cabot Christianson
dated September 28, 2001, including the Schedule of Exceptions
attached to the APA; :
Items provided by John Peterson as set forth in his letter to Cabot
Christianson dated October 2, 2001; :
I
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Information provided to Borough consultant Ray Bloom set forth in
the letter from Chris Paulson dated October 17, 2001;
i
Four boxes of site characterization and other associated documents, a
listing of which was included, developed by Exponent and PTI
¦¦niiiiii
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(1)
(2)
(HO
(iv)
Agreement
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Environmental Services under the Ward Cove CERCLA process
overseen by EPA and DEC, which were shipped via Alaska Airlines
Goldstreak along with a cover letter from John Peterson to Cabot
Christiansen dated December 17, 2001, as well as two indices entitled
"Uplands Operable Unit" and "Marine Operable Unit;"
(v) A synopsis prepared by KPC, and set forth in a letter from John
Peterson to Cabot Christianson dated January 4, 2002, as well as the
enclosures, including the one titled "Overview, Characterization
Activities Associated with the Former Ketchikan Pulp Company Site,"
prepared by Exponent (December 2001);
(vi) The ALTEC Report transmitted to Cabot Christianson and Scott
Brandt-Erichsen, via Federal Express, on December 22, 2001; and
(vii) Information provided to Scott Brandt-Erichsen in and with the
February 20, 2002 letter from John Peterson, relating to the dam,
pipeline and water rights.
(c) The Borough has had ample opportunity to review the information
provided by KPC, as listed above, as well as to seek the advice of counsel and third-party
consultants. The Borough also has had sufficient time to inspect the Borough Property
and to confer with appropriate agency officials concerning its regulatory history. The
Borough- is entering into this Agreement in reliance upon its own due diligence, in
addition to KPC's representations set forth herein.
(d) Except as provided hi Section 19(b) and (h), if KPC agrees, or a court
finds, (i) that KPC breached the representation in subsection (a) above by failing to
disclose to the Borough material information concerning contamination, attributable to
KPC's operations at the Borough Property of which the Borough does not otherwise have
knowledge, as defined under AS 45.01.201(28), prior to entering into this Agreement; or
(ii) that subsequently discovered, undisclosed contamination arising from KPC's
operations is found to exist, and if the Borough Entities are subject to a final agency
directive or order that they are responsible for investigating or remediating such
contamination, then KPC agrees that it will, at its option, either remediate or pay for the
remediation of such contamination to the regulatory cleanup standards then applicable
and in force. However, nothing herein shall be interpreted to limit KPC's ability to
request adjudication or otherwise to challenge the nature or scope of Investigation or
Remediation activities sought by any agency.
•i
(e) The Borough Entities agree that such Remediation shall be the sole and
exclusive remedy for any KPC liability, established pursuant to the provisions of
subsection (d), and that the Borough Entities shall be precluded from seeking any other
damages or equitable relief, including compensatory damages, consequential damages,
lost income, and any other expenses, costs, or losses. The limitation on the Borough
Entities' remedies in the preceding sentence shall apply only if KPC diligently pursues
Agreement 13 14 72
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the required Investigation and Remediation activities, and KPC does not unreasonably
delay such activities or unreasonably interfere with the Borough Entities* use of the
Borough Property.
11. Environmental/Real Property Release by the Borough and Subsequent
Buyers,
(a) For purposes of this section only, Ketchikan Pulp Company shall mean
and include the corporation and its agents, servants, employees, officers, directors,
partners, principals, and shareholders, as well as all of their insurance companies and
contractors ("KPC Releasees").
(b) Except as otherwise provided in this Agreement, the Borough hereby
releases, forever discharges, and covenants not to sue the KPC Releasees with regard to
any and all Losses, whether past present, or Mure, arising out of or in any way related to
the Ward Cove Area and the real property interests, together with any improvements
situated thereon, which are identified in Section 2(a) hereof, including; (1) any
environmental claims for conditions which have been discovered or disclosed as
described in Section 10, whether arising under CERCLA, 42 U.S.C. § 9601 et seq.;
RCRA, 42 U.S.C. § 6901 et seq,; AS 46.03.822; or any other authority; and (2) any and
all other known and unknown claims and causes of action, whether arising under statute,
contract, common law, tort, or any other law or legal theory (the "Release").
(c) The parties further covenant and agree that the provisions of this
Agreement supersede and replace the environmental provisions contained in the loan
agreement and the assignment and assumption agreement, both dated .Tune 14, 1999, and
that certain deed of trust dated December 13, 1999, recorded December 21, 1999 at Book
307, Page 629, Records of the Ketchikan Recording District, First Judicial District. The
Release also shall extend, without limitation, to all Losses, whether attributable to KPC,
Gateway, or otherwise, arising out of, or in any manner related to, the Environmental
Allocation Agreement, the Environmental Allocation Easement, or both, or to the
environmental obligations set forth in any one or more of the following: (1) Agreement
For Loan dated June 14, 1999; (2) Agreement For Assignment, Assumption and Release
dated .Tune 14, 1999; and (3) the Deed of Trust dated December 13, 1999 and any
amendments thereto.
(d) The Borough acknowledges and agrees that it -is familiar with the
decisions of the Alaska Supreme Court in Witt v. Watkins, 579 P.2d 1065 (Alaska 1978);
Schmidt v. Lashley, 627 P.2d 201 (Alaska 1981); and Mitchell v. Mitchell, 655 P.2d 748
(Alaska 1982), and that it has contemplated the possibility that new facts may
subsequently be discovered which may affect its rights to relief, and that, except as
otherwise provided in this Agreement, it nevertheless is the Borough's intention to folly
release and forever discharge the KPC Releasees and Gateway with regard to any and all
known and unknown Losses arising out of or in any way related to the matters described
herein. . I
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(e) The Borough further acknowledges and agrees that it is familiar with the
decision of the Alaska Supreme Court in Young v. State, 455 P.2d 889 (Alaska 1969), and
that it nevertheless intends to folly release all individuals, firms or corporations who
could at any future date be possible defendants in any action arising out of or in any way
related to the matters set forth, as folly as though they were specifically listed and named
herein.
(I) The Borough specifically renounces and releases any right it may now or
hereafter have to reform, rescind, modify, or set aside this Release because of mutual or
unilateral mistake. The risk of mistake is hereby assumed by the Borough, It is further
acknowledged and agreed that no representation, promise, or inducement, other than
those specifically expressed in this Agreement, has been made to secure this Release,
(g) The Borough acknowledges and agrees that it has had an adequate
opportunity to consult with counsel of its own choosing and to review all of the terms and
conditions herein, and that this Release is entered into without haste and without any
disparity of bargaining power.
(h) The Borough agrees that it shall contractually require its successors, heirs,
and assigns . to affirmatively accept and be bound by the terms of this Agreement. To
that end, the Borough shall include the following language in any lease, sale, or
conveyance of any interest in all or part of the Borough Property and shall contractually
require any successor, heir, or assign to impose such language in future leases, including
amendments thereto, sales, and conveyances:
[Name of lessee, purchaser, or interest holder] in further consideration
for. and as a condition to, this Agreement, hereby agrees that the real property
interests it hereby is acquiring from the Borough, whether by deed, lease, deed of
trust assignment or release, or otherwise, are subject to the same limitations and
conditions as the ones applicable to the Borough which are set forth in that
certain agreement dated _ , a copy of which is attached hereto and is
incorporated by reference as though fully set forth. In particular, all releases,
waivers and limitations on claims against Ketchikan Pulp Company, its agents,
servants, employees, officers, directors, partners, principals, shareholders, or any
of their insurance companies and contractors, including but not limited to
environmental claims, whether arising under CBRCLA, 42 U.S.C. § 9601 et seq.;
RCRA, 42 U.S.C. § 6901 et seq,; AS 46.03.822; or otherwise, as they now exist
or hereafter may be amended, to which the Borough concurred, are hereby agreed
to be applicable and in Ml force and effect.
Further, the parties to this Agreement agree that Ketchikan Pulp
Company, its shareholders, successors, heirs and assigns, are third party
beneficiaries of this Agreement and any future agreements concerning the
property.
[Name of lessee, purchaser, or interest holder] HEREBY AGREES
THAT LANGUAGE IDENTICAL TO THE PREVIOUS TWO PARAGRAPHS
SHALL BE INCORPORATED INTO ANY FUTURE LEASE, SALE, OR
Agreement
15
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CONVEYANCE OF ANY INTEREST (INCLUDING DEEDS OF TRUST) IN
ALL OR PART OF THIS PROPERTY,
Furthermore, the Borough agrees that, in the event it releases all or a portion of its
security interests set forth in that certain deed of trust executed by Gateway on
April 16, 2001, which was recorded on April 17, 2001 at Book 324, Page 395,
without taking title to the property thereby encumbered, the foregoing language
likewise shall be included as a condition to any such release.
12. NPDES Permit and Outfall Pipe 001.
(a) The Borough agrees that it will maintain the Plant Pipeline System and
Discharge System, to and through outfall pipe 001 and associated facilities, including any
replacement or alternative discharge pipe or conveyance that is the functional equivalent
of outfall 001, identified in NPDES Permit AK-000092-2 ("Outfall 001"), in good
working order and in a condition sufficient to accommodate existing and future
wastewater discharges associated with the Ward Cove Landfills.
(b) Throughout the period during which water from Cornell Lake is required
by NPDES Permit AK-00092-2 ("Permit") to be discharged through Outfall 001, the
Borough shall use its best efforts to maintain a flow of approximately 2.0 to 2.2 MGD of
water through the pipeline. The Borough furthermore agrees that KPC shall have the first
priority right to use and discharge up to 2.2 MGD of water, leach ate and other effluent to
and through Outfall 001.
(c) The Borough and KPC have agreed to a cost sharing formula equitably
allocating the associated expenses of the Permit, which is set forth in Appendix "3" to
this Agreement. This formula will remain in force until KPC obtains its own NPDES
permit and completes construction of its own outfall, at which time the cost sharing and
the duties set out in subsections (a) and (b) shall terminate.
13. Easement for New Outfall.
(a) KPC is in the process of obtaining a new NPDES permit pursuant to
which a separate outfall for the Ward Cove Landfills will be constructed. An easement
for that purpose was granted by Gateway and recorded on April 30, 2002 as Document
2002-001755-0 ("New Outfall Easement"). In conjunction therewith, Gateway and the
Borough have commenced, and will diligently pursue, the process necessary to modify,
amend, or have reissued the current NPDES permit governing Outfall 001. If accepted
by the issuing agency, the Borough will be named as permittee.
(b) In the pending foreclosure litigation entitled Foothill Capital Corporation
vs. Gateway Forest Products, Inc., et al, Case No. A02-275-CV (KRB), being
prosecuted by Foothill on behalf of the Borough, the Borough shall cause Foothill to
execute a subordination agreement protecting KPC's interest in the New Outfall
Easement granted by Gateway to KPC as set forth in subsection (a). The Borough will
Agreement 16
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take all other measures necessary to ensure that the New Outfall Easement otherwi.se
survives and remains unaffected by the foreclosure litigation,
(c) In the event the Environmental Allocation Easement is vacated from ATS-
1, Exhibit "C-l," the New Outfall Easement shall be expressly excluded therefrom.
(d) If, in the permitting process, the EPA or DEC determines that another
outfall location is necessary, Gateway and the Borough will execute all documents
necessary to amend the New Outfall Easement. The easement shall consist of a right of
free access to and across the property subject to the New Outfall Easement for the
purpose of constructing, using, maintaining, and replacing the new outfall pipe and free
access across other portions of ATS-1. Exhibit "C-l" as needed to construct, maintain,
repair, and replace the new outfall. The Borough, Gateway, and KPC shall cooperate in
good faith to promptly draft, execute, and record such easement when the precise location
has been identified. To the extent Foothill retains or acquires any interest in the easement
premises, the Borough also will cause Foothill to execute and deliver the necessary
easement amendment documents.
(e) This easement shall include the provision that KPC, with respect to the
construction, use, and maintenance of the new outfall pipe, and the Borough, with respect
to its operations and activities in the area subject to the New Outfall Easement, shall each
cooperate so as to not unreasonably interfere with the other's activities and operations.
14. Dam and Pipeline.
(a) KPC has agreed to donate, and the Borough has agreed to accept the
gifting of, the assets set forth in subsection (b) hereof. The parties farther
agree that this Agreement, shall become binding and effective only upon
consummation of their donation and acceptance.
(b) The following transactions will be executed, finalized, and simultaneously
recorded as soon as reasonably practicable after the execution of this Agreement and
submitted to DNR:
Quitclaim Deed conveying the Dam Parcel, Pipeline Parcel, Water Use
Site Easement, Plant Systems Easement, and water rights to the
Borough;
:
Assignment of KPC's application pending before DNR to amend its
Certificate of Appropriation filed March 21, 2002, and its Water
Rights Application filed May 2, 2002 to the Borough;
Assignment to and assumption of the Excess Water Option Agreement
by the Borough; i
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(ii)
(iii)
Agreement
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Assignment to and assumption of the Water Use Site Option
Agreement by the Borough;
Assignment to and assumption of the Water Rights Agreement by the
Borough; and
Assignment to and assumption of the Certificate of Approval To
Operate A Dam, NID ID#AK00010, issued by DNR on November 14,
2002,
(c) KPC shall release its rights in the temporary Special Use Permit issued by
the United States Forest Service for operation of the Cornell Lake dam facility and shall
support its reissuance to the Borough,
(d) The Borough expressly agrees that it Is taking the foregoing assets,
where is, as is, and without any warranty of any kind whatsoever.
(iv)
(v)
(vi)
15. Ward Cove Landfills.
(a) KPC will retain ownership of the Ward Cove Landfills parcel described as
Tract 3004, Lot 2. Except as otherwise provided herein, KPC agrees to be responsible for
all operation, maintenance, and permitting obligations for the Ward Cove Landfills, other
than the operation, maintenance, and use of Outfall 001 and associated facilities by
Gateway, the Borough, and other parties. Promptly after the effective date of this
Agreement, the Environmental Allocation Agreement and the Environmental Allocation
Easement shall be vacated with respect to this parcel.
(b) KPC has agreed to donate, and the Borough has agreed to accept the
gifting of, Tract 3004, Lot 1, upon the terms and conditions set forth in Appendix "1,"
Section m.A.6 which shall be reserved in KPC's quitclaim, deed to the Borough, or the
Borough shall grant to KPC, including a perpetual access easement between the public
right of way of North Tongass Highway and Tract 3004, Lot 2, as well as a perpetual
easement for an effluent discharge Hue and accompanying access between Tract 3004,
Lot 2, and ATS-1, Exhibit "C-l" as set forth in Appendix "4" hereto,
(c) After construction of the effluent discharge line has been completed and
its location established, the Borough will cooperate with KPC in executing and recording
a single consolidated easement which will detail the pipeline location across both'Tract
3004, Lot 1 and ATS-1, Exhibit "C-l." The consolidated easement will be upon terms
consistent with the New Outfall Easement and the effluent discharge line easement across
Tract 3004, Lot 1, and will supersede the provisions of both of those easements. In
addition, in order that all of KPC's easements with respect to the Ward Cove Landfills are
set forth in a single document, this consolidated easement also will include terms which
provide for, and therefore supersede, the separate easement with respect to access to the
Ward Cove Landfills from North Tongass Highway.
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16. Pipeline Access Road Parcel,
(a) The three-acre parcel along the pipeline access road, the "Pipeline Access
Road Parcel," as more particularly described in Section 2(a)(ii), is subject to the future
imposition of Institutional Controls pursuant to Paragraph 46 of the Ward Cove Consent
Decree, The parties will cooperate with each other and relevant government agencies
with respect to the development and imposition of Institutional Controls required for the
Pipeline Access Road Parcel.
(b) If acceptable to relevant government agencies, the Borough will 'retain
ownership of the Pipeline Access Road Parcel upon receiving title from the State and
work cooperatively with KPC to facilitate the development and implementation of
Institutional Controls satisfactory to relevant government agencies responsible for
activities under Paragraph 46 of the Ward Cove Consent Decree.
(c) If such relevant government agencies are not agreeable to the course of
action described in the previous sentence, the Borough shall convey the Pipeline Access
Road Parcel to KPC at no cost within 45 days of receiving title to the property from the
State. In such instance, KPC and the Borough shall work cooperatively to develop
Institutional Controls satisfactory to relevant government agencies under Paragraph 46 of
the Ward Cove Consent Decree and within 45 days of KPC's compliance with Paragraph
46 of the Ward Cove Consent Decree as determined by relevant government agencies,
KPC will reconvey the Pipeline Access Road Parcel to the Borough at no cost.
(d) The Borough will not seek payment or damages from KPC for the cost of
implementing any Institutional Controls or for any resulting diminution in value of the
Pipeline Access Road Parcel. Furthermore, the Borough agrees that it will adhere to and
comply with, at its expense, any and all Institutional Controls, required by the Ward Cove
Consent Decree or any other authority, which are or may become applicable to the
Pipeline Access Road Parcel, the activities conducted thereon, or both and will cooperate
with KPC with respect to any future modifications to Institutional Controls required by
relevant government agencies.
17. Office and Hangar Lease. I
(a) KPC agrees to compromise its rights under the Office and Hangar Lease
("Lease") as follows: KPC will vacate the offices in its former administration building
which it currently occupies and the Lease as to that facility only will be terminated. In
return, KPC shall be granted the right to occupy the helicopter hangar premises through
December 31, 2005. That occupancy shall be rent-free on the same terms and conditions,
including payment for utilities, set forth in the Office and Hangar Lease, at which point
the Lease shall terminate. }
!¦
,!
(b) In the event that the Borough were to either sell the hangar property or
acquire a long term paying tenant, KPC shall vacate the premises, provided that suitable
alternate facilities (e.g. approximately 2600 square feet with telephone lines, electricity,
lilllllllllllNIIIIIIIIIIIIIIIIIIIIII
Agreement 19 20 of 72
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water and data ports), are made available in the administration building or another
suitable structure. In that event, KPC would be entitled to utilize that space until
December 31,2005 on the same terms and conditions as the current Lease.
18. Mud Bight Tidelands Lease.
The Borough has elected to accept the Mud Bight Tidelands Lease and KPC will
cooperate by executing appropriate documents, participating in meetings, and carrying
out other steps reasonably necessary to effectuate, the transfer. If the Borough fails to
request a transfer or file the appropriate documents within ninety (90) days after this
Agreement becomes effective, KPC shall be entitled to surrender the Mud Bight
Tidelands Lease to the State of Alaska.
19. Asbestos Abatement.
(a) KPC shall retain a certified asbestos abatement contractor to remove, as
soon as practicable (the estimate for which is four months after completion of a 30 day
mobilization period) and, subject to obtaining all necessary permits and authorizations,
the asbestos-containing materials ("ACM") specifically identified, from the following
structures:
(i) Powerhouse: Abatement of all ACM from the piping systems, tanks, and
equipment throughout the powerhouse portion of the building,
including the interiors and exteriors of the power and recovery
boilers, as well as the piping in the 28 and 29 conveyors;
(ii)
Turbine Room: Abatement of all ACM, including the
underbellies, but not the interiors, of the turbines, which, provided
an acceptable release has been executed in accordance with
Section 19(c), will remain in the building pending completion of
the abatement work but thereafter shall be removed by their
owners within ninety (90) days. The asbestos contractor shall use
commercially reasonable efforts, so long as they do not result in
additional costs, to protect the turbines from damage. However, in
the event any such damage occurs, the liability of both KPC and
the abatement contractor is limited to the price which the owners
of the turbines paid at auction to acquire them; ;
(iii)
(iv)
Wood Room: Abatement of panels in the electrical control room;
Machine Room: Removal of the metal doors containing ACM;
and i
(v)
Roofing Materials: Removal of the roof coverings ojf the
powerhouse/turbine complex which have been ascertained jto be
composed of a material containing non-friable asbestos. f
Agreement
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(b) The Borough specifically acknowledges that other facilities at Ward Cove,
including the Filter Plant, Secondary Treatment Plant, Administration Building,
Maintenance/Stores Building, Wood Room and Machine Room/Finishing Room, may
contain ACM in such elements as roofing materials, flooring and siding. The Borough
hereby releases, indemnifies and will defend EPC from and against any arid all liability,
claims, losses and other expenses, including costs and attorney fees, whether arising
under CERCLA, 42 U.S.C. § 9601 et seq.; RCRA, 42 U.S.C. § 6901 et seq.; AS
46.03.S22; or any other authority, which may be incurred as a result of the continuing
presence of any materials containing ACM in or on KPC's former Ward Cove structures,
other than the materials identified for removal in subsection (a) hereof.
(c) Prior to the commencement of abatement work, the Borough and Gateway
shall either: (i) secure the removal of property from the premises which is owned by third
persons, other than the turbines which shall be removed within ninety (90) days following
completion of the abatement work; (ii) obtain a release from such third parties, including
one which will permit the turbines to remain in the building during the abatement
process; or (iii) agree to indemnify, hold harmless and defend EPC from any liability,
claims, losses or expenses incurred as a result of damages sustained to property owned by
third parties. In addition, the owners of the turbines shall indemnify, hold harmless and
defend the Borough from any liability, claims, losses, or expenses incurred as a result of
any damage which might be sustained to the turbines.
(d) During the abatement process, surface areas in the powerhouse will be
cleaned from the top level to the trenches on the first level. All ACM and cross-
contaminated materials shall be disposed of in accordance with applicable law. All water
used during the abatement will be filtered before being released. The abatement
contractor will have the discretion to leave non-ACM wastes, such as refractory bricks
and metal, in or adjacent to the buildings or to dispose of them. The asbestos abatement
contractor shall not be obligated to perform any demolition but shall be entitled to
perform such demolition or modifications of the buildings, structures and equipment as
necessary or convenient to abate ACM.
j
(e) Gateway shall be the owner of the work/project. KPC shall secure all
abatement services, which shall be performed in accordance with applicable law. The
charges incurred for employment of an abatement contractor shall be the sole
responsibility of KPC. ;
(f) Gateway and the Borough shall grant KPC and its agents vehicularfaccess
to the areas to be abated, including to the No. 2 set of evaporators; shall coordinate
unrelated activities occurring at or around the premises to be abated thereby ensuring
that the abatement work is not impeded; and shall otherwise fully cooperate in the
endeavor. Furthermore, Gateway and the Borough shall provide an adequate, suitable
outside storage area, between the bleach plant and the powerhouse, in which to collect all
ACM material for subsequent shipping.
Agreement
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(g) The Borough will provide electrical power, sewer and water adequate for
performance of the abatement work. The charges for those services will be based on
usage and will be billed at the normal rates which other tenants at KPC's former Ward
Cove facilities pay. After the first $5,000.00 in electrical, sewer and water services have
been provided at Borough cost or expense, KPC shall be billed the flat sum of $1,500.00
per month until the abatement work has been completed. Only in the event that the
abatement work has not been completed with twelve (12) months of its commencement
shall the fee to be paid by KPC be subject to renegotiation.
(h) Gateway, on behalf of itself and future owners, future tenants, transferees,
assignees, and successors, as well as the Borough to the extent it may become any of the
foregoing, shall release KPC from any and all claims regarding ACM, to the extent KPC
may be liable, under the Environmental Allocation Agreement and the Environmental
Allocation Easement, statutory or common law, or for any other reason.
(!) Gateway and the Borough hereby agree to indemnify, hold harmless and
defend KPC from and against any claims and losses regarding ACM located anywhere in
or on the former KPC structures, other than those materials identified in subsection (a)
hereof. Neither the Environmental Allocation Agreement, the Environmental Allocation
Easement nor the Borough Easement will be applicable for purposes of imposing future
liability on KPC for either ACM abatement activities or reimbursement therefore or
indemnity for any related claims or losses, whether arising under CERCLA, 42 U.S.C. §
9601 et seq.; RCRA, 42 U.S.C. § 6901 et seq.; AS 46.03.822; or any other authority.
Such claims, if any, shall be governed solely by the provisions of this Agreement.
(f) The Borough and Gateway each accept all risk that the abatement work
may damage or otherwise adversely affect, directly or indirectly, the structures from
which the ACM is removed or the condition of the contents of the building, including the
power boilers. In the event that the turbines are not removed within ninety (90) days
after the abatement work is completed, they shall be deemed to have been abandoned and
may be disposed of at no cost to Gateway or their owners. The Borough or the then
current owners shall accept all responsibility for any asbestos that might remain within
their interiors. Acceptance of the foregoing risk constitutes a Ml and final release of all
potential liability of KPC, its agents, employees, consultants and contractors, together
with their employees, and extends to all damage or destruction, whether caused by
negligence or other fault. j
j
(It) The Borough will take possession and control of all structures from which
ACM is removed immediately upon the conclusion of the abatement work.: The
Borough, at its sole cost and expense, plans to demolish the powerhouse once all' ACM
has been removed. The Borough shall indemnify, defend and hold KPC harmless from
and against all liability, claims, expenses and losses associated therewith. KPC will
cause the abatement contractor to provide to the Borough, at the completion of the
project, a written certification that all ACM identified in subsection (a) has been
removed, other than any which may be located inside the turbines. KPC will cause the
abatement contractor, prior to mobilization, to agree to indemnify and defend the
IIIIH
Agreement 22 23 of 72 [
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Borough and Gateway on the same terms that the contractor agrees to indemnify and
defend KPC from Losses arising from damage to property (other than the buildings,
structures, and equipment from which, or in the area where, ACM is being abated) and
injury to persons, including death. KPC shall also cause the abatement contractor, prior
to mobilization to designate the Borough and Gateway as additional insureds under its
general liability insurance coverage upon the same terms as KPC is so designated,
20. Reservation of Borough Rights,
Nothing in this Agreement shall be construed to limit, in any manner, the
Borough's right to foreclose on any security interest which it holds with respect to the
Borough Property, except that this Agreement shall remain effective notwithstanding the
Borough's acquisition of subsequent ownership and title,
21. Notice, Cooperation, and Non-interference.
(a) KPC and the Borough hereby covenant and agree to cooperate to avoid
any unreasonable interference with KPC's and the Borough's respective activities and
operations at the properties set forth in Section 2(a) hereof.
(b) KPC, Gateway and the Borough further covenant and agree to give the
other parties advance written notice of any material excavation, digging, or other similar
activities on any of the properties set forth in Section 2(a) hereof.
22. General Mutual Release of Existing Claims.
(a) For purposes of this section only, Ketchikan Gateway Borough shall mean
and include the Borough, as well as any of its subdivisions, elected officials, managers,
agents, and employees ("KGB Releasees"). Ketchikan Pulp Company shall mean and
include the corporation and its agents, servants, employees, officers, directors, partners,
principals, and shareholders, as well as all of their insurance companies and contractors
("KPC Releasees"). Gateway Forest Products, Inc. shall mean and include the
corporation and its agents, servants, employees, officers, directors, partners, principals
and shareholders, as well as their insurance companies and contractors ("Gateway
Releasees").
(b) Except as otherwise provided in this Agreement, the Ketchikan Gateway
Borough hereby dismisses, releases, forever discharges, and covenants not to sue,1 either
the KPC Releasees or the Gateway Releasees with regard to any and all Losses existing
upon the effective date of this Agreement, including but not limited to Losses arising out
of or in any way related to: (1) Gateway; (2) the Gateway bankruptcy proceeding (Bankr.
D. Alaska, Case No. K-01-00157); (3) the Ketchikan Gateway Borough's acquisition of
claims relating to the Gateway bankruptcy proceeding; (4) the Participation Agreement
executed by the Ketchikan Gateway Borough and Ketchikan Pulp Company in August of
1999 and the resulting veneer study provided by Ketchikan Pulp Company; and (5) any
Agreement
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and all other Losses arising under statute, contract, common law, tort, or any other law or
legal theory, or any combination thereof. :
(c) Except as otherwise provided in this Agreement, Ketchikan Pulp
Company and Gateway Forest Products, Inc. hereby dismiss, release, forever discharge,
and covenant not to sue, the KGB Releasees, with regard to any and all Losses existing
upon the effective date of this Agreement, including but not limited to Losses arising out
of or in any way related to: (1) Gateway; (2) the Gateway bankruptcy proceeding (Bankr.
D, Alaska, Case No. K-01-00157): (3) the Ketchikan Gateway Borough's acquisition of
claims relating to the Gateway bankruptcy proceeding; (4) the Participation Agreement
executed by the Ketchikan Gateway Borough and Ketchikan Pulp Company in August of
1999 and the resulting veneer study provided by Ketchikan Pulp Company; and (5) any
and all other Losses arising under statute, contract, common law, tort, or any other law or
legal theory, or any combination thereof.
(d) The parties agree that the pending lawsuits entitled Ketchikan Gateway
Borough vs. Ketchilcan Pulp Company et al, Case No. 1KE-02-489 CI, filed in the
Superior Court for the State of Alaska, First Judicial District at Ketchilcan; and Ketchilcan
Pulp Company vs. Ketchikan Gateway Borough, Case No. 3AN-03-7081 CI, filed in the
Superior Court for the State of Alaska, Third Judicial District at Anchorage, will be
dismissed with prejudice, each party thereto shall bear its own costs and attorney fees.
(e) With respect to that certain litigation entitled Foothill Capital Corporation
vs. Gateway Forest Products, Inc., et at, Case No. A02-275-CV (RRB), pending in the
United States District Court for the District of Alaska, when this Agreement becomes
binding and effective, KPC shall withdraw its opposition to Foothill's pending motion for
summary judgment and, so long as its New Outfall Easement is protected as provided in
this Agreement, shall lodge no further objections. Additionally, Gateway shall convey to
the Borough any redemption or repurchase rights which it may have with respect to the
property which is the subject of the foreclosure action brought by Foothill, and any rights
under existing permits for the site, at no cost to the Borough, Furthermore, each party
thereto shall bear its own costs and attorney fees.
(f) The parties acknowledge and agree that they are familiar with the
decisions of the Alaska Supreme Court in Witt v. Watldns, 579 P.2d 1065 (Alaska 1978);
Schmidt v. Lashley, 627 P.2d 201 (Alaska 1981); and Mitchell v. Mitchell, 655 P.2d 748
(Alaska 1982), and that they have contemplated the possibility that new facts may
subsequently be discovered which may affect their rights to relief, and that, except as
otherwise provided in this Agreement, it is nevertheless the parties' intention to fully
release and forever discharge each other with regard to any and all known and unknown
Losses arising out of or in any way related to the matters described herein.
(g) The parties further acknowledge and agree that they are familiar with the
decision of the Alaska Supreme Court in Young v. State, 455 P.2d 889 (Alaska 1969), and
that they nevertheless intend to fully release all individuals, firms or corporations who
could at any future date be possible defendants in. any action arising out of or in any way
Agreement 24 25 ?2
2008-002806-0
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I
related to the matters set forth herein as fully as though they were specifically listed and
named herein, ;
(h) The parties specifically renounce and release any right they may now or
hereafter have to reform, rescind, modify, or set aside this release because of mutual or
unilateral mistake. The risk of mistake is hereby assumed by the parties. It is further
acknowledged and agreed that no representation, promise, or inducement, other than
those specifically expressed in this Agreement, has been made to secure this release.
(i) The parties acknowledge and agree that they have had an adequate
opportunity to consult with counsel of their own choosing and to review all of the terms
and conditions herein, and that this release is entered into without haste and without any
disparity of bargaining power.
23. Further Assurances-
fa) The parties agree to draft, execute, and record, as appropriate, and as soon
as reasonably practicable after the effective date of this Agreement, such documents as
may be necessary or appropriate to carry out the intent of this Agreement, including any
pleadings necessary to dismiss pending litigation.
(b) The parties also agree to perform any farther acts and to draft, execute and
record any additional documents that may be necessary and appropriate in the future to
carry out the terms of this Agreement.
(c) After this Agreement has become binding and effective, KPC shall
consent to the No. 2 and No. 3 Subdivisions of U.S. Survey 1056, Lot 3 and ATS-1,
Exhibit "A," as well as their recordation.
24. Default and Remedies.
(a) Time is of the essence for this Agreement, and the parties hereto shall
promptly perform all of the obligations set forth herein.
(b) A party shall be in material default ("Default") in the event that it fails to
promptly perform any of its obligations under this Agreement.
!
(c) If a party Defaults in any way in the performance of any of its obligations
under this Agreement, then the party or parties entitled to such performance shall be
entitled to perform or secure performance of such obligation(s) and shall be entitled to
recover any and all damages arising in any way from or caused by the Default.
Recoverable damages shall include, but not be limited to, all expenses of performance,
securing performance, or any combination thereof, and all incidental costs and damages
incurred as a consequence of the Default, including fines, penalties and fees incurred,
investigation and testing costs, if any, attorneys', experts', and other consultants' fees
incurred, and any other damages suffered.
Agreement
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(d) The parties acknowledge and agree that the nature of many of the rights,
obligations, and liabilities set forth in this Agreement are such that it would be impossible
to measure and compensate, in money, the harm which will accrue by reason of a party's
Default As a result, any remedy at law for recovery of damages may be inadequate. The
parties shall therefore be entitled, in their discretion, to enforce this Agreement in law or
in equity, or both. If a party elects to seek equitable relief to enforce the provisions
hereof, any party against whom such action or proceeding is brought hereby waives the
claim or defense therein that the enforcing party has an adequate remedy at law, and such
party shall not offer in any such action or proceeding the claim or defense that such
remedy at law exists.
(e) The Borough agrees to indemnify and defend Ketchikan Pulp Company
and hold it harmless from any Losses to Ketchikan Pulp Company arising out of or with
respect to any Default relating to the Borough's obligation to ensure that any entity to
which it conveys any interest in the Borough Property executes valid and enforceable
instruments releasing Ketchikan Pulp Company, as set forth in Section 11 above. The
Borough furthermore agrees to require its heirs, successors and assigns to place the
identical language in any future conveyance and to cooperate with KPC in the event that
action is necessary to enforce Section 11.
25. Notices.
All notices, requests, claims, demands and other communications given or made
pursuant hereto shall be in writing (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by facsimile (with confirmation copy of such faxed
material delivered in person or by registered or certified mail, postage prepaid, return
receipt requested) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective party at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this section):
(a) if to KPC:
and:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
Legal Department
805 S.W. Broadway, Suite 700
Portland, Oregon 97205
Attention: Christopher M. (Kit) Keyes, Esq.
Facsimile: (503) 821-5323
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
P.O. Box 4000-98
Hayden Lake, Idaho 83S35-9460
Agreement 27 of 72
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Attention: Chris Paulson
Facsimile: (503) 821-5431
Physical Address: 13403 N. Government Way
with a copy to:
Ziegler Law Firm
307 Bawden Street
Ketchikan, Alaska 99901
Attention: John Peterson, Esq.
Facsimile: (907)225-5513
(b) if to the Borough:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Manager
Facsimile: (907) 247-6625
with a cony to:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Clerk
Facsimile: (907) 247-S439
(c) if to Gateway:
Gateway Forest Products, Inc.
Post Office Box 779
Ward Cove, Alaska 99928
Attention: Dick Leary
Facsimile: (907) 247-1646
Gateway Forest Products, Inc.
7517 Tyjfc Drive
Anchorage, Alaska 99502
Attention: Jim Erickson
Agreement
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26. No Third-Party Beneficiaries.
Except as otherwise set forth, this Agreement is for the sole benefit of the
parties hereto and their respective successors, heirs, and assigns, and nothing herein,
express or implied, is intended to or shall confer, upon any other person or entity, any
legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement,
27. Governing Law,
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Alaska.
28. Jurisdiction; Venue; Service.
The parties each irrevocably consent to the exclusive venue and
jurisdiction of any state or federal court located in the First or Third Judicial Districts,
State of Alaska, for the purposes of any suit, action, or other proceeding of any type
whatsoever arising out of this Agreement or the subject matter hereof; provided,
however, that if jury trial is sought by any party, the proceeding will instituted in a locale
other than Ketchikan. To the maximum extent permitted by applicable law, each party
waives and agrees not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding any claim that it is not personally subject to the jurisdiction of
the above named courts; that the suit, action, or proceeding is brought in an inconvenient
forum; that the venue of the suit, action, or proceeding is improper; or that this
Agreement or the subject matter hereof may not be enforced in or by such court. Each
party agrees that sendee of process may be made upon it wherever it can be located or by
certified mail directed to its address for notices under this Agreement.
29. Liberal Construction.
Notwithstanding any general rule of construction to the contrary, this
Agreement shall be liberally construed in favor of effectuating the parties' intentions. If
any provision of this instrument is found to be ambiguous, an interpretation consistent
with the purpose of this instrument that would render the provision valid shall be favored
over any interpretation that would render it invalid or unenforceable. ;
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30. Severability. f
I
If any portion of this Agreement is deemed invalid, illegal, or incapable of
being enforced by any rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the economic
or legal substance contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, illegal,
or incapable of being enforced, the parties shall negotiate in good faith to modify this
IlllllllllllllfflJIlllllll 111
Agreement 28 2008-002808-0 I
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Agreement, in a mutually acceptable manner, so as to effect the original intent of the
parties as closely as possible. " j
I
31. Interpretation,
(a) When required by the context, the singular includes the plural and
vice versa, and the masculine includes the feminine and neuter genders, and vice versa.
(b) Except as otherwise specifically indicated, all references in this
Agreement to an "Appendix" or "Appendices" are to the corresponding Appendices to
this Agreement, as the same may he amended from time to time in accordance with the
terms hereof.
(c) Headings used in this Agreement have been included for
convenience and ease of reference only and shall, not hi any manner influence the
construction or interpretation of any provision of this Agreement.
(d) "Includes" or "including" means "including, without limitation."
32. Opportunity to Review and Consult Counsel.
The parties to this Agreement acknowledge and agree that they have had
an adequate opportunity to consult with counsel of their own choosing and to review all
of the terms and conditions herein. The parties further represent that they have
participated in the drafting of this Agreement, and they acknowledge and agree that this
Agreement shall not be construed as having been drafted by any particular party or
parties.
33. Amendments and Waiver.
This Agreement may not be amended or modified except by an instrument in
writing duly executed by Ketchikan. Pulp Company, Gateway Forest Products, Inc. and
the Ketchikan Gateway Borough or their respective successors, heirs, and assigns, if any,
holding an interest in the property at issue. Waiver of any term or condition of this
Agreement shall only be effective if in writing, duly executed by the party to be bound
thereby, and shall not be construed as a waiver of any subsequent breach or waiver of the
same term or condition, nor as a waiver of any other term or condition.
I
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34. Counterparts.
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one and the same
Agreement. :
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Agreement 29 2008-002806-0 j
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day arid date first written above. j
KETCHIKAN GATEWAY BOROUGH
By;_
Roy^t Eclcert, Manager
KETCHIKAN PULP
<«
any
-
By;
Chris Paulson, President • % >%.%••• ' ,
WN-
V »m>'J
GATEWAY FOREST PRODUCTS, INC.
es Iv. Erickson, President
I
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APPENDIX "1"
FORM OF ENVIRONMENTAL EASEMENT AND DECLARATION OF
COVENANTS :
This Environmental Easement and Declaration of Covenants
("Easement"), made and entered into this day of , 2003, by
and between KETCHIKAN GATEWAY BOROUGH, a municipal corporation, 344
Front Street, Ketchikan, Alaska 99501, KETCHIKAN PULP COMPANY, a
Washington corporation, Post Office Box 6600, Ketchikan, Alaska 99901, and
GATEWAY FOREST PRODUCTS, INC., an Alaska corporation, Post Office Box
779, Ward Cove, Alaska 9992B, WITNESSETH;
RECITALS
WHEREAS, all real property referred to in this Easement is located in, and all
documents and plats referred as filed or recorded, are filed or recorded in the Ketchikan
Recording District, First Judicial District, State of Alaska;
WHEREAS, on November 3, 1999, Ketchikan Pulp Company and Gateway
Forest Products, Inc. entered into certain agreements including the Allocation of
Environmental Responsibilities Agreement ("Environmental Allocation Agreement"),
more commonly known as Exhibit "F," and the Easement and Declaration of Covenants
Regarding Allocation of Environmental Responsibilities ("Environmental Allocation
Easement"), more commonly known as Exhibit "F-l," which incorporated by reference
Exhibit "F," governing certain properties;
WHEREAS, The Environmental Allocation Easement was specifically
incorporated into that certain Quitclaim Deed executed by Ketchikan Pulp Company in
favor of Gateway Forest Products, Inc., which was recorded on November 5, 1999 at
Book 306, Page 72;
WHEREAS, the parties now desire to remove the Environmental Allocation
Easement and the Environmental Allocation Agreement from certain parcels of real
property located at Ward Cove, formerly owned by Ketchikan Pulp Company and to
replace it with this Easement;
WHEREAS, the Ketchikan Gateway Borough, Ketchikan Pulp Company and
Gateway Forest Products, Inc. have ongoing interests, including but not limited to,
operational and regulatory considerations, in the Ward Cove real property and desire to
impose on the those properties certain terns and conditions as covenants that will run
with the land for the purpose of making such terms and conditions applicable jto the
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Ketchikan Gateway Borough, Ketchikan Pulp Company and Gateway Forest Products,
Inc., as well as any of their successors and assigns holding an interest in the properties;
WHEREAS, the Ketchikan Gateway Borough, Ketchikan Pulp Company and
Gateway Forest Products, Inc. entered into an Agreement dated , 2003
governing the parties' respective rights and responsibilities ("Agreement"); and
WHEREAS, Ketchikan Pulp Company has an ongoing interest in ensuring that it
has access to the Ward Cove properties to accommodate the satisfaction of its continuing
environmental obligations at the Ward Cove facility;
NOW, THEREFORE, In consideration of the promises and of the mutual
agreements and covenants hereinafter set forth, the Ketchikan Gateway Borough,
Ketchikan Pulp Company and Gateway Forest Products, Inc. hereby agree as follows:
I. DEFINITIONS.
The terms used in this Easement shall have the following meanings, which shall
be equally applicable to both the singular and plural forms of the terms defined:
A. "Borough" means and refers to the Ketchikan Gateway Borough, a
municipal corporation organized pursuant to the laws of the State of
Alaska, and the Borough's successors, heirs, and assigns.
B. "Costs" means, with respect to Remediation and Investigation activities,
actual reasonable expenditures, including but not limited to, reasonable
attorneys' fees and defense costs, contractor costs, consultant costs,
governmental oversight costs and other necessary expenditures.
I
C. "Environmental Laws" means all State of Alaska, local, and federal laws,
statutes, regulations, and ordinances of any kind relating to environmental
protection or compliance as they currently exist and as they may come to
be amended, including but not limited to, the federal Clean Water Act;
Clean Air Act; Toxic Substances Control Act; Comprehensive
Environmental Response, Compensation and Liability Act; Resource
Conservation and Recovery Act; Federal Insecticide, Fungicide, and
Rodenticide Act; Safe Drinking Water Act; Hazardous Materials
Transportation Act; laws designated in Alaska Statutes Title 46; and
common law, including causes of action arising in tort.
D.
"Gateway" means and refers to both Gateway Forest Products, tec., an
Alaska corporation, and Gateway's successors, heirs, and assigns.
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E. "Hazardous Substances" means substances which constitute hazardous
substances under the Comprehensive Environmental Response,
Compensation Liability Act or under AS 46,03.822. J
F. "Institutional Controls" means the Environmental Protection Easement
and Declaration of Restrictive Covenants in favor of the State of Alaska,
Department of Natural Resources, recorded on October 28, 1999, at Book
305, page 772 in the Ketchikan Recording District and such other
measures, controls, limitations, prohibitions, procedures, or protocols that
the United States Environmental Protection Agency ("EPA"), the Alaska
Department of Environmental Conservation ("DEC") or the Alaska
Department of Natural Resources ("DNR") requires in order to maintain
the integrity of a remedial or removal action or prevent a release or
threatened release of a Hazardous Substance,
G. "investigation or Investigatory" means actions to assess the nature and
extent of Hazardous Substances contamination, including sampling and
other necessary activities. :
H. "KPC" means and refers broadly to both Ketchikan Pulp Company, a
Washington corporation, and KPC's successors, heirs, and assigns.
I. "Remediation" means actions to remove, clean up, treat, or dispose of
Hazardous Substances from the environment, including but not limited to,
actions which may be necessary to prevent, minimize, or mitigate damage
to the public health or welfare or to the environment from a release or
threatened release of a Hazardous Substance.
J. "Ward Cove Area" means the water body commonly known as Ward
Cove including marine waters to the ordinary high water mark and
sediments underlying such waters, and also means the surface and
subsurface areas of those portions of U.S. Surveys 1056, 1208, 1508,
1653, 1656, 1659, 1706, 1754, and 1862 lying seaward of the North
Tongass Highway, and the filled portions of ATS-1, including any
structures or other improvements located thereon. '
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K. "Ward Cove Consent Decree" means the consent decree with the EPA and
the U.S. Department of Justice entered in the U.S. District Court for the
District of Alaska: CERCLA Remedial Design/Remedial Action Consent
Decree, United States vs. Gateway Forest Products, Inc., Ketchikan Pulp
Company, & Louisiana-Pacific Corporation, Case No. A00-225 CV
(IKS). i
L. "Ward. Cove Landfills" means the industrial landfill which KPC owns and
operates upon Tract 3 004, Lot 2, Dawson Point Subdivision, according to
the plat thereof field November 28, 2000 as Plat 2000-73. :
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H. PARCELS TO WHICH THE COVENANTS SHALL APPLY.
The covenants contained in this Easement shall apply to the following parcels of
real property ("Ward Cove Property"):
PARCEL NO. 1;
U.S. Survey 1706,
PARCEL NO. 2%
The unsub divided Remainder, according to the subdivision plat of U.S. Survey
1754, recorded March 8, 1956 in Volume 1 of Plats at Packet 20.
PARCEL NO. 3;
Lot 1, Tract 3004, according to the plat filed November 28, 2000 as Plat 2000-73.
PARCEL NO. 4;
U.S. Survey 3400.
PARCEL NO. 5:
U.S. Survey 3401.
PARCEL NO. 6: !
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Lot 1, Sec. 34, T.74S., R.90E., C.R.M., as more particularly described in Exhibit
"A" hereto. j
;
I
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Ul. COVENANTS.
The Borough, KPC and Gateway, for good and sufficient consideration received,
do hereby covenant and declare that, with respect to the properties Ksted in Section II.
hereof, the following provisions shall be covenants that run with and bind the Ward Cove
Property and the parties, and each parties' respective personal representatives, 'heirs,
successors and assigns as to the Ward Cove Property or any interest therein obtained
through, any mechanism, including but not limited to, conveyances, assignments, or
foreclosures: I!
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A. Touch and Concern.
The Ward Cove Covenants touch and concern the Ward Cove Property, in that
each and all of the Covenants directly benefit the property, resolve regulatory issues
which have limited development and thereby increase its market value. The Ward Cove
Covenants are fully enforceable by the parties with respect to the Ward Cove Property or
any interest therein. If a party refuses to acknowledge The applicability of the Ward Cove
Covenants to such party, any other party shall be entitled to enforce the terras of this
instrument in law and in equity.
B. Ward Cove Area,
1. The Borough covenants and agrees that it shall comply with any
Institutional Controls which are or may become applicable to the Ward Cove Property,
including those imposed through, or under the Ward Cove Consent Decree, or otherwise.
2. The Borough covenants and agrees that it shall not, through any activities
or operations at or in the Ward Cove Area, materially damage any cap or capping
materials that may be applied to sediments in the Ward Cove Area under the Ward Cove
Consent Decree. The Borough further covenants and agrees that if it damages such cap,
it will immediately report the relevant circumstances to EPA and KPC and restore the cap
to a condition and to specifications as directed by the EPA or by any governmental body
having primary regulatory jurisdiction over the work undertaken by KPC under the Ward
Cove Consent Decree, but the Borough and KPC will be under no obligation to restore
the cap until directed to do so by the EPA or other governmental body having
jurisdiction.
3. The Borough's obligations, pursuant to Section 2 hereof, extend to the
activities and operations of its employees, agents, contractors, invitees, licensees,
representatives, permittees, joint venturers, instrumentalities, port authorities, and any
third party contractually related, whether directly or indirectly.
4. Nothing in this Easement shall be interpreted to prohibit KPC from
exercising any legal rights it may have with respect to matters arising under the Ward
Cove Consent Decree.
5. KPC, Gateway and the Borough agree to give the other parties advance
written notice of any material excavation, digging or other similar activities relating to
the Ward Cove Property. \.
6. The Ward Cove Landfills are located within Lot 2, Tract 3004 ("Landfill
Parcel") and are operated pursuant to a permit issued by the State of Alaska, Department
of Environmental Conservation ("DEC"). . Lot 1 of Tract 3004 surrounds the Landfill
Parcel, which KPC agreed to donate to the Borough only upon the condition that use
restrictions and other conditions would be implemented in order to ensure that neither the
Agreement 35 36 of 72 j
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Borough nor its successors in interest would unreasonably interfere with the operation
and maintenance of the Ward Cove Landfills. To accomplish those objectives, KPC and
the Borough covenant and agree as follows: !
a. The future use of Lot 1, Tract 3004 by the Borough and its successors in
interest shall be limited to commercial activities of an industrial nature
which are compatible with operation in close proximity to an industrial
landfill;
b. The Borough and its successors in interest shall take all reasonable
measures to protect against any interference with operation of the Ward
Cove Landfills, including appropriate terracing of any rock extraction to
preserve subjacent support; and
c. The Borough hereby fully and finally releases KPC from all liability
arising from or in any way related, to operation and maintenance of the
Ward Cove Landfills, excepting only to the extent damages may occur
from a violation of, or failure to obtain, the DEC permit for the landfills.
This release extends to any and all claims and liabilities, whether arising
from negligence, or other fault, or otherwise. The Borough shall require
each of its successors in interest, whether by lease, deed, or otherwise, as a
condition to acquisition of any interest in or to Lot 1, Tract 3004, to
execute the same release in favor of KPC.
C, Future Subdivision.
These Covenants shall not preclude subdivision of any parcel of Hie Ward
Cove Property; provided, however, that upon any subdivision, replat, plat modification or
other similar action, all portions of the Ward Cove Property which previously were
subject to these Covenants, shall remain subject thereto; provided, however, that the
obligations imposed by these covenants shall be limited to the parcel, area, or portion
held by a party and shall not be interpreted to create liability for other parcels or areas not
held by such party. :
D.
Farther Assurances.
1, The parties covenant and agree both to adhere to and comply with current
Institutional Controls and to cooperate with respect to the development: and
implementation of additional Institutional Controls, which shall include the development
of an instrument or instruments to ensure that Institutional Controls arising under the
Ward Cove Consent Decree, or otherwise, will ma with the property and be enforceable
against bona fide purchasers.
2. The parties covenant and agree that this Easement shall govern and be
binding with respect to, the acts and omissions of each respective party's employees,
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agents, contractors, and any third party contractually related, whether directly or
indirectly, to the respective party.
E. Term of Ward Cove Covenants.
I
Each and all of the Ward Cove Covenants, and all the burdens and benefits
thereof, shall run with the Ward Cove Property and shall he binding on any person having
any ownership interest in the Ward Cove Property under the terms and conditions set
forth in the Ward Cove Covenants for a period of twenty (20) years from the Effective
Date, after which time the Ward Cove Covenants shall be automatically extended for
successive periods of ten (10) years each, unless an instrument properly signed by KPC,
has been recorded in the Ketchikan Recording District, First Judicial District, State of
Alaska, agreeing to terminate the Ward Cove Covenants in whole or in part,
F. Termination of Rights and Obligations of Covenants Through
Transfer of Ownership Interest
;
A party is relieved of its obligations to comply with the Ward Cove Covenants
imposed on the Ward Cove Property upon, and to the extent, that a party transfers or no
longer holds an interest in the Ward Cove Property, except that liability or responsibility
for acts or omissions occurring prior to transfer shall survive such transfer; provided,
however, that nothing in this Easement shall diminish or relieve the parties, or any
successor or assign of the parties from their respective obligations under the Agreement.
The Borough, KPC, and Gateway, together with each parties' respective
successors and assigns, are hereinafter referred to as the "Parties."
IV. EASEMENT.
A. Reservation of Easement.
1. The Parties acknowledge and agree that, upon the terms and conditions set
forth in this Easement, the Borough grants to KPC an easement interest (the "Easement")
in and to the following properties (the "Easement Property") to allow KPC and its
successors and assigns to undertake any activity contemplated by the Agreement and by
subsection HLB. hereof. It is the express intent of Grantor and Grantee that the burden
and benefit of this Easement shall run with the land upon any conveyance of the Ward
Cove Property, during the term of this Easement, including any extension thereof:
PARCEL NO. 1:
Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H.E.S.) according 'to the
plat thereof filed August 14, 2000 as Plat No. 2000-41.
Agreement
37
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PARCEL NO. 2:
That portion of U.S. Survey 1056, lying northerly of the northerly boundary of
North Tongass Highway, being adjacent to U.S. Survey 2923 and comprised of
5.16 acres.
PARCEL NO. 3:
U.S. Survey 1706.
PARCEL NO. 4;
U.S. Survey 1754
PARCEL NO. 5: ;
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That portion of U.S. Survey 1862, more particularly described as follows:
Beginning at U.S. Land Mark No, 2; thence North 32°27' West a distance of
155.5 feet to Comer No. 1 of U.S. Survey 1862 and the true point of beginning of
the portion herein described; thence North 0D25' West a distance of 515 feet,
more or less, to a point on the South Right of Way line of North Tongass
Highway, which point is 50 feet from the center line of said highway and at right
angles to Engineers Station 299+50; thence along that portion of a spiral curve to
the left whose chord bears South 24° 30' East a distance of 114.65 feet; thence
along the arc of a 527.46 foot radius curve the long chord of which bears South
36°35' East a distance of 126.14 feet; thence along a spiral curve whose chord
bears South 51 °21' East a distance of 210.05 feet; thence South 55°27 East a
distance of 316.97 feet; thence South 34°33' West a distance of 50 feet; thence
South 55 °2T East a distance of 137.00 feet; thence South 88 Q 00' West a distance
of 535 feet more or less along Meander Line No. 11 of U.S. Survey 1862; thence
North 29 °30' West a distance of 155.50 feet along Meander Line No. 12 of U.S.
Survey 1862 to Comer No. 1, which is the point of beginning; j
ALSO: That portion of U.S. Survey 1862 lying with the North Tongass Highway
Bight of Way as created by a deed dated April 1, 1949 and recorded in Volume
"W" of Deeds at Page 362, Ketchikan Recording District, First Judicial District,
State of Alaska, and as conveyed to Ketchikan Pulp Company by Quitclaim' Deed
recorded My 27,1988 in Book 158 at Page 588. ;
PARCEL NO. 6: i
U.S. Survey 2090.
PARCEL NO. 7;
That certain portion of U.S. Survey 2923, more particularly described as follows;
Agreement
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. Beginning at the northerly comer of the Crawford Tract, otherwise known as
Comer No, 2 of U.S. Survey 2923; thence South 55 °45' East along the
northeasterly boundary of the Crawford Tract a distance of 863.37 feet; thence
South 89° 33' West a distance of 709,81 feet, more or less, to a point on the
westerly boundary of the Crawford Tract; thence North 0°27' West along the
westerly boundary of the Crawford Tract a distance of 491,50 feet, more or less,
to the point of beginning. ;
PARCEL NO. 8: |
U.S. Survey 3400.
PARCEL NO. 9;
U.S. Survey 3401.
PARCEL NO. 10:
Lot 1, Sec. 34, T. 74S., R.90E., C.R.M., as more particularly described in Exhibit
"A" hereto. :
PARCEL NO. 11:
Tract 3004, Lot 1, according to the plat filed November 28, 2000 as Plat 2000-73.
PARCEL NO. 12:
All of ALASKA TIDELANDS SURVEY NO. 1 (CR 74S 90E), according to the
unrecorded plat thereof (mistakenly recorded in the Juneau Recording District as
Plat No. 292). .
i
f
PARCEL NO. 13: j
ALASKA TIDELANDS SURVEY NO. 439. f
2. The Parties covenant and agree that KPC hereby is granted an easement
interest in and to the Easement Property set forth in subsection A. 1. hereof, consisting of
a right of free access to and across the Easement Property to allow KPC to undertake or
observe any sampling and Investigatory activities, Remediation activities, and any
reasonable actions necessary to support or implement Investigatory and Remediation
activities at the Easement Property, KPC's right of access shall also include, without
limitation, the right to use the Easement Property to the extent reasonably necessary for a
staging area or otherwise to comply with Environmental Laws and the directives or
orders of governmental agencies relating to the Easement Property.
Agreement 39
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3. KPC's right of access shall also include access through and across all
access easements which have been or hereafter are established by, or reflected in, any
plats of U.S. Survey 1056 or ATS-1, whether those access easements are designated as
private access easements or otherwise. . j
4, KPC's access rights, as described herein, shall not prevent the Borough
Entities from constructing any buildings or other improvements on the Borough Property.
In that event, KPC will exercise its access and staging rights in a maimer which will not
unreasonably interfere with theBoorugh Entities' uses or development of the properties.
B, Term.
The Easement shall become effective on the Effective Date and shall have an
initial term of twenty (20) years from the Effective Date, after which time the Easement
shall be automatically extended for successive periods of ten (10) years each, unless an
instrument properly signed by KPC, has been recorded in the Ketchikan Recording
District, First Judicial District, State of Alaska, agreeing to terminate the Easement in
whole or in part.
C. Subdivision.
This Easement shall not preclude the subdivision of any parcels of the Ward Cove
Property, but upon any subdivision, replat, plat modification, or other similar action, all
portions of the Ward Cove Property which previously were subject to this Easement shall
remain subject thereto.
V, EFFECTIVE DATE.
This Easement shall become effective ("Effective Date") on the date of
recordation, simultaneous with recordation of the Vacation of Covenants and Easement
releasing the same parcels ' I
]
!
VI. LIBERAL CONSTRUCTION. j
ji
Any general rule of construction to the contrary, this Easement shall be liberally
construed in favor of effectuating the Parties' desire to establish the Easement in favor of
KPC and to make the Ward Cove Covenants run with, and apply to, the Ward Cove
Property and to make the Ward Cove Covenants binding upon any and all successors and
assigns of the Parties. If any provision of this instrument is found to be ambiguous, an
interpretation consistent with the purpose of this instrument that would render the
provision valid shall be favored over any interpretation that would render it invalid or
unenforceable. • ¦ [
41 of 72
Agreement 40 2008-002806-0
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vn. DISPUTES.
The parlies each irrevocably consent to the exclusive venue and jurisdiction of
any state or federal court located in the First or Third Judicial Districts, State of Alaska,
for the purposes of any suit, action, or other proceeding of any type whatsoever arising
out of this Agreement or the subject matter hereof; provided, however, that if jury trial is
sought by any party, the proceeding will instituted in a locale other than Ketchikan. To
the maximum extent permitted by applicable law, each party waives and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding any claim that it is not personally subject to the jurisdiction of the above
named courts; that the suit, action, or proceeding is brought in an inconvenient forum;
that the venue of the suit, action, or proceeding is improper; or that this Agreement or the
subject matter hereof may not be enforced in or by such court. Each party agrees that
sendee of process may be made upon it wherever it can be located or by certified mail
directed to its address for notices under this Agreement.
VHI. MISCELLANEOUS.
!
A. Notices.
All notices, requests, claims, demands and other communications given or made
pursuant hereto shall be in writing (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by telecopy (with confirmation copy of such
telecopied material delivered in person or by registered or certified mail, postage prepaid,
return receipt requested) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective party at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section VHI.A.):
1. iftoKPC:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
Legal Department
805 S.W. Broadway, Suite 700
Portland, Oregon 97205
Attention; Christopher M. (Kit) ICeyes, Esq.
Facsimile: (503) 821-5323
Agreement
41
42 of 72
MfMLOfWafSR-fl
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and:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
P.O. Box 4000-98
Hayden Lake, Idaho 83835-9460
Attention: Chris Paulson
Facsimile: (208) 762-1667
Physical Address: 13403 N. Government Way
with a copy to:
Ziegler Law Firm
307 Bawden Street
Ketchikan, Alaska 99901
Attention: John Peterson, Esq.
Facsimile: (907)225-5513
2. if to the Borough;
Ketchikan Gateway Borough
344 Front Street
Ketchikan. Alaska 99901
Attention: Borough Manager
Facsimile: (907)247-6625
with a copy to:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Clerk
Facsimile: (907) 247-8439
3. if to Gateway:
Gateway Forest Products, Inc.
Post Office Box 779
Ward Cove, Alaska 99928
¦ Attention: Dick Leary
Facsimile: (907) 247-1646
Agreement
42
43 of 72
rtAftfl AAnonc ft
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and:
Gateway Forest Products, Inc.
7517 Tyne Drive ¦
Anchorage, Alaska 99502
Attention: Jim Erickson
B. Headings.
The descriptive headings contained in this Easement are for convenience
of reference only and shall not affect in any way the meaning or interpretation of tins
Easement.
C. Severability.
If an}? provision of this Easement, or the application of any provision to a
person or circumstance, is found to be invalid, illegal, or incapable of being enforced by
any rule of law or public policy, the remainder of the provisions of this Easement, or the
application of such provisions to persons or circumstances other than those to which it is
found to be invalid or unenforceable, as the case may be, shall not be affected thereby,
D. No Third-Party Beneficiaries.
This Easement is for the sole benefit of the Parties and their respective
successors and permitted assigns, and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Easement.
E. Amendment; Waiver.
This Easement may not be amended or modified except by an instrument
in writing duly executed and recorded by the Parties, Waiver of any term, or condition of
this Agreement shall only be effective if in ¦writing, duly executed by the Party to be
bound thereby, and shall not be construed as a waiver of any subsequent breach or waiver
of the same term or condition, or a waiver of any other term or condition of this
Easement; provided however, that once Gateway no longer is the owner of any part or
parcel of the Ward Cove Property, its agreement no longer shall be necessary to
effectuate amendment of either the Covenants or the Easement and its signature no longer
will be required.
F. Governing Law.
This Easement shall be governed by, and construed in accordance with,
the laws of the State of Alaska, applicable to covenants and agreements affecting real
property executed and to be performed in that State.
Agreement 43 44 of 72
2008-002808-0
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NOTICE: THE INTERESTS CONVEYED HEREBY ABE •
SUBJECT TO AN ENVIRONMENTAL PROTECTION I
EASEMENT AND DECLARATION OF RESTRICTIVE !
COVENANTS DATED OCTOBER 28, 1999, RECORDED IN THE
KETCHIKAN RECORDING DISTRICT, FIRST JUDICIAL
DISTRICT, STATE OF ALASKA, ON OCTOBER 28, 1999 AT ¦
BOOK 305, PAGE 772,
I
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first written above.
i
GATEWAY FOREST PRODUCTS, INC.
By
James K. Ericlcson
President
Richard D, Leary
Secretary
KETCHIKAN PULP COMPANY
By
Chris Paulson
Douglas P. Anderson President
Assistant Secretary
KETCHIKAN GATEWAY BOROU
By.
Roy A. Eckert
Harriet Edwards Manager
Clerk
GH
Agreement
44
45 of 72
2008-002808-0
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STATE OF ALASKA ) :
: ss,
FIRST JUDICIAL DISTRICT ) |
I
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned
and sworn as such, personally appeared Roy A. Eckert and Harriet Edwards, to me
known to be the Manager and the Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pursuant to the laws of the State of Alaska which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the borough seal thereto on behalf of the Borough and
that the seal affixed thereto is the borough seal thereof; and who acknowledged to me
that the same was signed freely and voluntarily on behalf of the Borough for the uses and
purposes therein mentioned. ^
WITNESS my hand and seal the day and year last above written. 1
Notary Public in and for Alaska
My Commission Expires:
STATE OF ALASKA
THIRD JUDICIAL DISTRICT
: ss.
THIS IS TO CERTIFY that on this
day of_
, 2003, before
me, the undersigned, a notary public in and for the State of Alaska, duly commissioned
and sworn, personally appeared James K. Erickson, to me known to be the President, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
"WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Alaska
Commission expires:
Agreement
45
46 of 72
2008-002806-0
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STATE OF ALASKA )
; ss,
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a notary public in and for the State of Alaska, duly commissioned
and sworn, personally appeared Richard D. Lear}', to me known to be the Secretary, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Alaska
Commission expires:
STATE OF IDAHO ) j
: ss.
COUNTY OF KOOTENAI )
i
!
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a notary public in and for the State of Idaho duly commissioned and
sworn, personally appeared Chris Paulson and Douglas P. Anderson, to me known to
be the President and Assistant Secretary respectively of Ketchikan Pulp Company, a
Washington corporation, the corporation which executed the above and foregoing
instrument; who on oath stated that they was duly authorized to execute said instrument
on behalf of said corporation and who acknowledged to me that he signed and sealed the
same freely and voluntarily on behalf of said corporation for the uses and purposes
therein mentioned.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Idaho
Commission expires:
Agreement
46
47 of 72
2fMR.OO?Mfi.O
-------
i i
[
8j<
• ^ J! ISflllllllSlilSllSliliSI1! A
"»; &
|s rfritU rfJftiJfMtf 44*444*
Exhibit "A" to Appendix 1
Page 2 of 2
48 of 72
2008-002806-0
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-------
APPENDIX "2"
VACATION OF COVENANTS AND EASEMENT
This Vacation of Easement arid Covenants ("Vacation"), made and entered into
tliis day of , 2003 by and between, KETCHIKAN GATEWAY
BOROUGH, a municipal corporation, 344 Front Street, Ketchikan, Alaska 99501
("Borough"), KETCHIKAN PULP COMPANY, a Washington corporation, Post Office
Box 6600, Ketchikan, Alaska 99901 ("KPC"), and GATEWAY FOREST PRODUCTS,
INC., an Alaska corporation, Post Office Box 779, Ward Cove, Alaska 99928
("Gateway"), WITNESSETH: ' j
RECITALS
WHEREAS, all real property referred to in this Vacation is located in, and all
documents and plats referred as filed or recorded, are filed or recorded in the Ketchikan
Recording District, First Judicial District, State of Alaska;
WHEREAS, on November 3, 1999, KPC and Gateway entered into an Allocation
of Environmental Responsibilities Agreement ("Environmental Allocation Agreement")
setting forth the environmental liabilities retained by KPC and those being assumed by
Gateway;
i
WHEREAS, the terms of the Environmental Allocation Agreement! were
incorporated by reference into the Easement and Declaration of Covenants Regarding
Allocation of Environmental Responsibilities ("Environmental Allocation Easement");
WHEREAS, the Quitclaim Deed, recorded in the Ketchikan Recording District
on November 5, 1999 at Book 306, Page 72, effectuating the transfer of certain assets and
real property from KPC to Gateway, specifically reserved and incorporated by reference
the Environmental Allocation Easement;
WHEREAS, the Borough thereafter acquired security interests in certain
affected parcels or real property;
of the
of the
"WHEREAS, KPC, Gateway and the Borough now desire to release certain
parcels of real property from the constraints of the Environmental Allocation Easement;
and
WHEREAS, KPC, Gateway and the Borough also desire to establish terms |vhich
will permit release of the Environmental Allocation Agreement and the Environmental
Agreement 47 ^
2008-002806-0
-------
Allocation Easement without Gateway's consent, once Gateway no longer is the owner of
a parcel or a portion of a parcel which previously was subject thereto;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants hereinafter set forth, the Borough, KPC and Gateway hereby
agree as follows: ,
The Environmental Allocation Easement shall hereby be vacated and be • of no
farther force or effect with respect to the following described property:
PARCEL NO. 1: !
. U.S. Survey 1706. i
j
PARCEL NO. 2: |
i
The Unsubdivided Remainder, according to the subdivision plat of U.S. Survey
1754 recorded March 8, 1956 in Volume 1 of Plats at Packet 20. ;
I
PARCEL NO. 3: j
|
Lots 1 and 2, Tract 3004, according to the plat filed November 28, 2000 as Plat
2000-73. j
i
This Vacation shall become effective ("Effective Date") on the date of
recordation, simultaneous with recordation of the Environmental Easement and
Covenants affecting the same parcels with which it will be replaced.
I
Once Gateway no longer is the owner of a parcel, or a portion of any parcel, of
the property previously subject, thereto, its agreement no longer shall be necessary to
vacate the Environmental Allocation Agreement and the Environmental Allocation
Easement with respect to that portion or parcel.
Agreement 48 51 of 72
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IN WITNESS WHEREOF, the parties hereto have caused this Vacation to be
duly executed as of the date first written above.
GATEWAY FOREST PRODUCTS, INC.
By
James K. Erickson
Richard D. Leary President
Secretary
KETCHIKAN PULP COMPANY
By
Chris Paulson
Douglas P. Anderson President
Assistant Secretary
KETCHIKAN GATEWAY BOROUGH
By.
Roy A. Eclcert
Harriet Edwards, Clerk Manager
STATE OF ALASKA )
; ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned
and sworn as such, personally appeared Roy A. Eckert and Harriet Edwards, |to me
known to be the Manager and the Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pursuant to the laws of the State of Alaska which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the borough seal thereto on behalf of the Borough and
that the seal affixed thereto is the borough seal thereof; and who acknowledged to riie that
Agreement 49 52 of 72
-------
the same was signed freely and voluntarily on behalf of the Borough for the uses and
purposes therein mentioned.
WITNESS my hand and seal the day and yeax last above written.
Notary Public in and for Alaska |
My Commission Expires:, I
STATE OF ALASKA ) !
: ss. i
FIRST JUDICIAL DISTRICT ) I
[
¦ THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a notary public in and for the State of Alaska, duly commissioned
and sworn, personally appeared Richard D. Leary, to me known to be the Secretary, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
i
WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Alaska
Commission expires:
STATE OF ALASKA )
: ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this
_ day of
2003, before
me, the undersigned, a notary public in and for the Stats of Alaska, duly commissioned
and sworn, personally appeared James K. Erickson, to me known to be the President, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged (to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
Agreement
50
53 of 72
mno nnoonc n
-------
WITNESS my hand and official seal the day and year in this ceii
first above "written.
ificate
Notary Public for Alaska
Commission expires:
Agreement
51
-------
STATE OF IDAHO
COUNTY OF KOOTENAI
)
: ss.
)
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a notary public in and for the State of Idaho, duly commissioned
and sworn, personally appeared Chris Paulson and Douglas P. Anderson, to me known
to be the President and Assistant Secretary respectively of Ketchikan Pulp Company, a
Washington corporation, the corporation which executed the above and foregoing
instrument; who on oath stated that they was duly authorized to execute said instrument
on behalf of said corporation and who acknowledged to me that he signed and sealed the
same freely and voluntarily on behalf of said corporation for the uses and purposes
therein mentioned.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Idaho
Commission expires:
Agreement
52
55 of 72
2008-002806-0
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APPENDIX "3"
COST SHARING AGREEMENT
This Agreement ("Agreement") is entered into by and between the Ketchikan
Gateway Borough ("Borough") and Ketchikan Pulp Company ("KPC"), for the sharing
of costs with respect to certain NPDES permit obligations.
In consideration of the mutual promises, covenants and conditions set forth
herein, the parties hereby agree as follows: ^
TERMS AMD CONDITIONS !
I. PURPOSE.
The purpose of this Agreement is to allocate the costs of water sampling, testing
and reporting as required for compliance with USEPA NPDES Permit # AIC 000092-2
("Main Outfall Permit").
II. STATEMENT OF MUTUAL INTERESTS AND BENEFITS.
A. Gateway Forest Products, Inc. is presently tire owner of, and permittee
with respect to, the Main Outfall Permit. The Borough owns, leases or otherwise controls
property which contains infrastructure leading to the discharge point at Outfall 001 in
Ward Cove which is permitted under the Main Outfall Permit. KPC owns an industrial
landfill on property near Dawson Point in Ward Cove which contains infrastructure
presently leading to the same discharge point and outfall in Ward Cove permitted under
the Main Outfall Permit.
B. From time to time in the past, the Borough and KPC have each paid or
otherwise assisted in defraying expenses for sampling, testing, reporting or other I
operations under the Main Outfall Permit. Given the parties' similar interests with j
respect to operations under the Main Outfall Permit, they now wish to establish more
definite terms for the sharing of costs with respect to such operations.
C. KPC has applied for issuance of a new NPDES permit for separate
discharge from its Dawson Point landfill ("New Outfall Permit"). In addition, the Main
Outfall Permit will expire on December 15, 2003 and the Borough is pursuing re-issuance
Agreement 53 56 °* 72
?nna-nn?aoG-C
-------
of the Main Outfall Permit, with either Gateway Forest Products, Inc. -or the Borough to
be named as permittee.
D. The operational cost sharing under this Agreement will be an interim
arrangement which, unless earlier terminated, will not continue once KPC begins i
separate operations under the New Outfall Permit. From that point, each party will be
responsible for its own costs of operation, j
HI. BOROUGH OBLIGATIONS. j
The Borough hereby commits to the following obligations and responsibilities:
A. Use of its personnel or contractor(s) to conduct the water sampling,
testing, and reporting required under the Main Outfall Permit;
B. Compilation of actual costs of sampling, testing, and reporting, including
reasonable personnel costs actually incurred in such sampling, testing and
reporting; and j
C. Payment of a 60% proportionate share of the costs of sampling, testing,
and reporting, including personnel costs as described above.
IV. KPC OBLIGATIONS.
KPC shall pay a 40% proportionate share of the costs of sampling, testing, and
reporting, including a 40% proportionate share of personnel costs as described above.
With respect thereto:
A. Payments shall be based on monthly invoices;
B. Payments shall be payable to the Ketchikan Gateway Borough and shall
be made within 30 days of receipt of an invoice and supporting
documentation, which shall include Borough employee time cards and
rates of pay, as well as invoices evidencing any out-of-pocket expenses;
and
C. Borough employees, the costs for which are shared by KPC are not, for
any purpose or in any manner or context, employees ofKPC. Independent
contractors retained by the Borough, the costs for which are shared by
KPC are not, for any purpose or in any manner or context, contractors of
KPC.
As™»="" » 2008-002806-0
-------
Y. INDEMNIFICATION.
A. Each party will be responsible for its own acts and omissions, and those of
its officers, employees, agents, and permittees, and for any discharges from property
under its ownership, lease, or other control which are a material cause of any violation of
permit requirements or applicable law. Each party will indemnify, defend and hold:
harm less the other party, to the maximum extent allowed by lav/, from any claim of, or
liability or penalty for, any discharge for which a party bears responsibility as set forth
above, and for errors, omissions or negligent or willful acts of any land, including ;
attorney fees, damages to property or injury to a person, and death, occasioned thereby
which may result from the sampling, testing, and reporting activities undertaken pursuant
to the terms of this Agreement. |
!
B. In the event of any disagreement between the parties as to whether the
matters which axe addressed in subsection A., including: (1) whether a particular
discharge is a material cause of any violation of permit requirements or applicable law;
(2) whether, based upon the allocation described in subsection A., a particular discharge
is the responsibility of KPC or the Borough; or (3) whether the responsibility should be
shared between them, based upon the allocation of responsibility set forth in subsection
A., the parties agree that they shall jointly solicit the opinion of the government agency
asserting the violation. If the government agency is unwilling to render an opinion, the
parties shall select a mutually acceptable third party to hear arguments and resolve the
dispute. The decision of the government agency or third party, as the case may be, shall
be deemed presumptively correct. Any party seeking to allocate responsibility differently
than that government agency or third party, as the case may be, shall have the burden of
proof on that issue. Under no circumstances, however, shall this section be interpreted to
require the Borough or KPC to indemnify the other for any costs of Remediation. !
VI. RETENTION AND ACCESS REQUIREMENTS FOR RECORDS.
A. The Borough shall maintain all records of sampling, testing, and reporting
under the Main Outfall Permit pursuant to this Agreement and each party, or its I
representative, shall have access to and the right to examine all such records. The right of
access to records, regarding activity of the Borough's employees and independent j'
contractors in sampling, testing and reporting under the Main Outfall Permit pursuant to
this Agreement, shall not expressly or impliedly establish any right of access or [
examination with respect to any other records of the Borough, KPC or any other entity or
person. j
\
i
B. As used in this provision, the term "records" includes books, documents,
accounting procedures and practices, and other data, regardless of type and regardless of
whether such items are in written form, in the form of computer data, or in any other
Agreement 55 SB of 72
2008-002806-0
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form. All records pertinent to the testing shall be retained for a minimum period of five
(5) years or as otherwise required by law.
vn. PUBLIC RECORDS.
A. The parties understand and agree that this Agreement and the sampling,
testing, and reporting records of the Borough, its employees and independent contractors,
generated pursuant hereto, axe public records. These records are, to the extent not
otherwise exempt therefrom, subject to the State and Borough public records laws.
B. In addition, to the extent that books, records and documents of the
Borough, with respect to revision of the Main Outfall Permit, constitute public records
and are not otherwise exempt from State and Borough public records laws, this
Agreement does not change that status,
C. KPC's books, records and documents, whether with respect to operations
under the Main Outfall Permit prior to the execution of this Agreement, with respect to
the New Outfall Permit, or otherwise, are not subject to ederal, State, or Borough public
record laws and are not made subject thereto by this Agreement.
Yffl. PARTICIPATION IN SIMILAR ACTIVITIES.
This Agreement in no manner restricts ICPC or the Borough from participating in
similar activities with other public or private agencies, organizations, and individuals.
IX. COMMENCEMENT AND PERFORMANCE PERIOD.
This Agreement is effective as of the date the last required signature is appended
on behalf of both KPC and the Borough. • i
X. TERMINATION.
A. Any of the parties, in writing, may terminate this Agreement at any time
before the date of expiration by providing 30 days' written notice. |
i
B. Neither the Borough nor KPC shall incur any contractual or other E
obligation to any third party which would be subject to the cost sharing terms of this
Agreement, unless such obligation is expressly subject to termination upon not less [than
Agreement 56 59 of 72
™nR.nn?Rnfi-0
-------
thirty (30) days' prior written notice. Upon either party issuing written notice of
termination of this Agreement, neither party shall be liable for any cost sharing obligation
which is incurred more than thirty (30) days after the date that notice of termination is
provided. Following notice of termination, the parties shall he obligated with respect to
cost sharing only for expenses which are within the scope of this Agreement, and J
incurred either prior to the notice of termination or in the thirty (30) day period following
notice. This Agreement will then terminate at the end of the thirty (30) day notice period,
except that obligations which are incurred within the term of this Agreement will survive
until discharged by performance or by operation of law. ;
XL MISCELLANEOUS.
A. Notices.
All notices, requests, claims, demands and other communications given or made
pursuant hereto shall be in writing (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by telecopy (with confirmation copy of such
telecopied material delivered in person or by registered or certified mail, postage prepaid,
return receipt requested) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective party at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section XI. A):
1. iftoKPC:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
Legal Department
805 S.W. Broadway, Suite 700
Portland, Oregon 97205
Attention: Christopher M. (Kit) Keyes, Esq.
Facsimile; (503) 821-5323
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
P.O. Box 4000-98
PortHayden, Idaho 83835-9460
Attention: Chris Paulson
Facsimile: (208) 762-1667
Physical Address: 14303 N. Government Way
Agreement 57 60 of 72
700R-00280B-0
-------
with a copy to:
Ziegler Law Finn
307 Bawd en Street
Ketchikan, Alaska 99901
Attention: John Peterson, Esq.
Facsimile: (907) 225-9401
if to the Borough:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Manager
Facsimile: (907)247-6625
with a copy to:
Ketchikan Gateway Borough
344 Front Street ;
Ketchikan, Alaska 99901
Attention: Borough Clerk i
Facsimile: (907)247-8439 ' j
!
B. Headings- ;
I
The descriptive headings contained in this Agreement are for convenience of
reference only and sliall not affect in any way the meaning or interpretation of tills
Agreement, ;
C. Severability.
If any provision of this Agreement, or the application of any provision to a person
or circumstance, is found to be invalid, illegal, or incapable of being enforced by any rule
of law or public policy, the remainder of the provisions of this Agreement, or the !
application of such provisions to persons or circumstances other than those to whicli it is
found to be invalid or unenforceable, as the case may be, shall not be affected thereby.
D. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties and their respective
successors and nothing herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Agreement
58
61 of 72
2008-002806-0;
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E, Amendment; Waiver.
This Agreement may not be amended or modified except by an instrument in
writing duly executed and recorded by the Parties. Waiver of any term or condition of
this Agreement shall only be effective if in writing, duly executed by the- Party to be
bound thereby, and shall not be construed as a waiver of any subsequent breach or waiver
of the same term or condition, or a waiver of any other term or condition of this ;
Agreement.
F. Governing Law. j
j
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Alaska,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement! as of
the last written date below. I
DATE: KETCHIKAN GATEWAY BOROUGH
By:_
Roy A. Bekert
Manager
DATE: KETCHIKAN PULP COMPANY
By:
Chris Paulson
President
62 of 72
Agreement 59 2008-002808-0
-------
APPENDIX "4"
EASEMENT FOR LANDFILL OUTFALL AND ACCESS
This Easement For Landfill Outfall And Access ("Easement"), made and
i
!
entered into this day of , 2003 by and between the Ketchikan Gateway
Borougli, a municipal corporation organized pursuant to the laws of the State of Alaska,
I
344 Front Street, Ketchikan, Alaska 99901, ("Borough") and Ketchikan! Pulp
Company, a Washington corporation qualified to do business in Alaska, Post Office Box
6600, Ketchikan, Alaska 99901, ("KPC"), WITNESSETH: I
RECITALS i
!
A. All real property referred to in this Easement is located in, and all
documents and plats referred to as filed or recorded, are filed or recorded in, the
Ketchikan Recording District, First Judicial District, State of Alaska.
B. By Quitclaim Deed of even date, to be recorded immediately prior
to this Easement, KPC is donating to the Borough the following described real property,
referred to hereinafter as the "Donated Property"; j
Lot 1, Tract 3004, Dawson Point Subdivision, according to
the plat thereof filed November 28,2000 as Plat 2000-73.
C. KPC is the owner of record, retaining ownership of
the following described real property, referred to hereinafter as the
"Landfill Parcel:"
Lot 2, Tract 3004, Dawson Point Subdivision, according to
the plat thereof filed and recorded on November 28, 2000
as Plat 200-73.
D. There are industrial landfills ("Ward Cove Landfills") locatec upon
the Landfill Parcel which are permitted and utilized by KPC for the disposal and
Agreement 60 63 of 72
-------
remediation of industrial waste material generated from KPC's pulping and related
operations at its Ward Cove pulp mill.
|
E. The continued operation of the Ward Cove Landfills will require
the construction, operation and maintenance of a separate outfall pipeline ("Outfall")
which will run seaward from the Landfill Parcel, across the Donated Parcel and across a
portion of Alaska Tideland Survey No, 1, Exhibit "C-l," so as to convey landfill effluent
to be discharged into the marine waters of Ward Cove. j
F. As contemplated by the parties, KPC has filed an application with
j
the U.S. Environmental Protection Agency in order to construct and operate the separate
Outfall to serve only Ward Cove Landfills,
G. The operation of the Ward Cove Landfills requires that KPC
I
maintain an assured route for vehicular, heavy equipment and pedestrian access from the
public right-of-way of North Tongass Highway to and from the Landfill Parcel.
Reserving and excepting, however, unto the Grantor, all
right, title, equity and interest as set forth in the Easement
For Landfill Outfall And Access, by and between Grantor
and Grantee of even date, incorporated herein by reference
as though fully set forth herein. The Easement For Landfill
Outfall And Access establishes the terms and conditions of
an easement for a landfill outfall, and an easement for
access, over and upon and across the said Lot 1, Tract
3004, Dawson Point Subdivision.
NOW, THEREFORE, incident to KPC's donation to the Borough of the
Donated Parcel, and for other good and valuable consideration, the receipt of which is
acknowledged, the Borough and KPC hereby acknowledge and agree that KPC has
reserved and excepted from its Quitclaim Deed conveyance of the Donated Parcel to the
Borough, for its assigns and its successors in ownership of the Landfill Parcel, perpetual
easements, upon the terms and conditions of this Easement, as follows:
IIIIII
Agreement 61 84 of 72
onnajirmnfi-f)
-------
1. Outfall Easement, There is reserved to KPC an easement over,
under, upon and across the Donated Parcel, in order for KPC to design, construct,
operate, use, inspect, maintain, repair and replace (all of which are hereinafter
I
collectively referred to as "Operate" or, as the context requires, "Operation") the Outfall
pipeline for the discharge of effluent from the Ward Cove Landfills to an elevation
;
approximately 50 feet below MLLW. The easement for the Outfall shall consist of two
aspects, an exclusive easement for the actual Outfall pipe, and a nonexclusive area for
construction, maintenance and other support operations.
a. The portion of the Donated Property upon, over, under and across
which the exclusive aspect of the outfall easement is reserved (hereinafter,
"Outfall Easement Area") is more particularly described as follows: i
A strip of land 50' wide, 25' on either side of the center! ine
of ail Outfall pipeline, which KPC shall be entitled to
construct and maintain upon the Donated Property in the
approximate location shown on Exhibit "A," attached
hereto and incorporated herein by this reference.
This location is subject to amendment after the Outfall is constructed, as set forth
below. Within the Outfall Easement Area, KPC's entitlement to Operate the
Outfall pipe and related infrastructure, if any, shall be exclusive, such that the
Borough shall not conduct any tree falling, construction, excavation, or' other
ground disturbing activities without KPC's prior written consent, which consent
shall not be compelled by operation of law or otherwise.
b. The portion of the Donated Property upon, over, under and across
which the nonexclusive aspect of the outfall easement is reserved ("Outfall
Support Area") is more particularly described as follows:
A strip of land 100' wide, 50' on either side of the centexline of an Outfall
pipeline, which KPC shall "be entitled to construct and maintain upon the
Agreement 62 e5 of 72
•jnntLfWJRfSR.O
-------
Donated Property in the approximate location shown on Exhibi
attached hereto and incorporated herein by this reference.
''A,"
This location is also subject to amendment after the Outfall is constructed,
as set forth below. KPC shall be entitled to use the Outfall Support Area for access: to the
j
Outfall Easement Area and otherwise as necessary or convenient to support Operation of
the Outfall pipe and related infrastructure, if any. KPC's rights to the portion of the
i
Outfall Support Area outside the Outfall Easement Area shall be nonexclusive and,
therefore, shall not prevent the Borough from conducting activities therein which do not
interfere with KPC's Operation of the Outfall pipe and related infrastructure, if any.
S
2. Amendment of Easement After Construction of Outfall. ! After
KPC has completed construction of the Outfall, KPC shall be entitled to prepare and
record an Amended Easement Description which will specify with greater particularity
the as-built location of the Outfall and, with reference thereto, the location of the Outfall
Easement Area and the Outfall Support Area, In the event that the Borough is then the
I
i
owner of Alaska Tideland Survey No. 1, Exhibit "C-l," which is the parcel seaward of
the Donated Property, then this Easement, together with the corresponding easement for
the Operation of the Outfall across that parcel, shall be consolidated into a single
perpetual easement providing for the Operation of the Outfall and related infrastructure,
|
if any, and for access to the Landfill Parcel from both- North Tongass Highway and the
navigable waters of Ward Cove.
3. Access Easement. The plat of the Dawson Point Subdivision,
filed November 28,2000 as Plat 2000-73 is hereinafter referred to as the "Plat" Th;re is
also reserved to KPC an easement ("Access Easement") upon and across all of the access
and other easement areas of the Donated Parcel described or referenced in the Plat,
Agreement 63 86 of 72
2008-002806-0
-------
whether referenced in the Plat as private, joint use .or otherwise. The Access Easement
shall apply to the locations and areas depicted or described in the Plat ("Access Areas"),
The Access Easement shall be for a private easement upon across and through all of the
i
Access Areas, and is reserved for KPC. its assigns and successors in the Landfill Parcel,
I
their employees and third parties authorized by any of them, including personnel of
;
independent contractors. Hie Access Easement also permits ingress and egress for their
I
vehicles and equipment, including heavy equipment, to travel between the Landfill Parcel
and the public right of way of North Tongass Highway, These access rights shall include
|
i
access for all activities which may be necessary or convenient to Operation of the Ward
I
Cove Landfills, including maintenance and repair of the roads and other Access Areas.
i
KPC's easement rights to the Access Areas shall be non-exclusive, and the Borough and
j
its successors and assigns also shall be entitled to use the Access Areas for purposes and
in manners which do not interfere with the access and other rights reserved to KPC to for
the Operation of the Ward Cove Landfills.
4. Utility and Leach ate Pipeline. There are also reserved to KPC a
perpetual easement to Operate the utility line which provides utility service to the
Landfill Parcel ("Utility Easement") and an easement to Operate the leachate pipeline
which runs from the Landfill Parcel to the treatment facility located on U.S. Survey 1754
("Leachate Easement"). The Utility Easement and the Leachate Easement shall apply to
the locations and areas depicted or described in the Plat. The Leachate Easement shall be
subject to termination by KPC when it is able to begin use of its separate Outfall pipe,
and therefore discontinue use of the leachate pipeline shown in the Plat.
Agreement 64
67 of 72
*mfW_nfWROfi-0
-------
5. Easement to Run with and Be Binding Upon the Property,
This Easement shall run with the Donated Property and be binding upon the
Borough, as well as its successors and assigns in and to the Donated Property. The i
easement rights herein granted to KPC shall be for the benefit of, and shall run with, the
Landfill Parcel, and shall be for the benefit of KPC's successors in the Landfill Parcel
and KPC's assigns.
I
DATED at Ketchikan, Alaska this day of _
2003.
KETCHIKAN GATEWAY BOROUGH
Harriet Edwards
Clerk
By;_
Roy A. Eclcert
Manager
Douglas P. Anderson
Assistant Secretary
Agreement
KETCHIKAN PULP COMPANY
By.
Chris Paulson
President
65
68 of 72
2008-002806-0
-------
STATE OF ALASKA )
: ss,
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned
and sworn as such, personally appeared Roy A, Eckert and Harriet Edwards, to me
known to be the Manager and the Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pursuant to the laws of the State of Alaska which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the borough seal thereto on behalf of the Borough and
that the seal affixed thereto is the borough seal thereof; and who acknowledged to me
that the same was signed freely and voluntarily on behalf of the Borough for the uses and
purposes therein mentioned, , ;
WITNESS my hand and seal the day and year last above written. |
Notary Public in and for Alaska
My Commission Expires:
STATE OF IDAHO )
: ss,
COUNTY OF KOOTENAI )
THIS IS TO CERTIFY that on this day of , 2003, before
me, the undersigned, a notary public in and for the State of Idaho, duly commissioned
and sworn, personally appeared Chris Paulson and Douglas P, Anderson to me known
to be the President and Assistant Secretary respectively of Ketchikan Pulp Company, a
Washington corporation, the corporation which executed the above and foregoing
instrument; who on oath stated that they was duly authorized to execute said instrument
on behalf of said corporation and who acknowledged to me that lie signed and sealed the
same freely and voluntarily on behalf of said corporation for the uses and purposes
therein mentioned.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Notary Public for Idaho
Commission expires:
Agreement 66 fillilllllll
69 of 72
nnfio nntonc n
-------
Exhibit: "A"
1 of 3
to Appendix
?o of ?2|
2008-002806-0
-------
i
i
i
AERATION
BASIN
SETTLING
BASIN
¦PROrnSED OUTFALL. 001
lixh'iblt "A" to Appendix 5
Page 2 of 3 •• ...
71 of 72
2008-002806-0
-------
-------
Attachment 12
Ketchikan Pulp Company Residential Risk Calculation
-------
Ketchikan Pulp Company (EPA ID AKD009252230)
Five-Year Review - Residential Risk Calcualtion
25-Jun-10
Recalcualtion of Table 6, 'Summary of upper-bound carcingenic risk estimates
and noncancer hazard indicies for CoPCs in soil-worker scenario,' from the
ROD.
Recalcuation completed through Oak Ridge National Laboratory (ORNL) Risk
Assessment Information System (RAIS) Contaminated Media (Risk) Calculator.)
http://rais.ornl.gov/cgi-bin/prg/RISK_search?select=chem
Standard EPA equations and parameters used for calculations.
Consistent with the ROD, Aroclor 1254 data used for total PCBs,
Consistent with the ROD, 2,3,4,8-TCDD TEF used for Dioxons and Furans.
Resident Equation Inputs for Soil/Sediment
Variable Value
EFr (exposure frequency) day/yr 350
EDr (exposure duration - resident) yr 30
ED0.2 (exposure duration first phase) yr 2
ED2.6 (exposure duration second phase) yr 4
ED6_i6 (exposure duration third phase) yr 10
ED16.30 (exposure duration fourth phase) yr 14
LT (lifetime - resident) yr 70
ETr (exposure time - resident) hr 24
BWa (body weight - adult) kg 70
BWC (body weight - child) kg 15
EDC (exposure duration - child) yr 6
IRSa (soil intake rate - adult) mg/day 100
IRSC (soil intake rate - child) mg/day 200
SAa (skin surface area - adult) cm2/day 5700
SAC (skin surface area - child) cm2/day 2800
AFa (skin adherence factor - adult) mg/cm2 0.07
AFC (skin adherence factor - child) mg/cm2 0.2
IFSadj (age-adjusted soil ingestion factor) mg-yr/kg-day 114.3
DFSadj (age-adjusted soil dermal factor) mg-yr/kg-day 360.8
IFSMadj (mutagenic age-adjusted soil ingestion factor) mg-yr/kg-day 489.5
DFSMadj (mutagenic age-adjusted soil dermal factor) mg-yr/kg-day 1445
-------
Toxicity and Physical-Chemical Data
Chemical
Chronic
RfD
(mg/kg-
day)
Ingestion
SF
(mg/kg-
day)-1
Chronic
RfC
(mg/m3)
Inhalation
Unit Risk
(|jg/m3)-1
AE3Sqjf
ABSderm
Dia
Diw
H'
Kd
Volatiliza-
tion
Factor
(m3/kg)
Particulate
Emission
Factor
(m3/kg)
Arsenic, Inorganic
0.0003 1.5
0.000015
0.0043
1
0.03
-
-
-
29
-
1360000000
Benzo[a]pyrene
7.3
0.0011
1
0.13
-
-
0.0000187
-
-
1360000000
PeCDD, 2,3,7,8-
-
130000
-
-
1
0.03
-
-
0.0000899
-
-
1360000000
Aroclor 1254 0.00002
2
-
0.000571 1
0.14
-
-
0.0115699
-
-
1360000000
-------
Resident RISK for Soil/Sediment - Access Road Ditch Soils and Sediments
Chemical
Arsenic, Inorganic
PeCDD, 2,3,7,8-
Total Risk/Hi
Concentration
(mg/kg)
157
0.00016
Ingestion
HQ
EnhaEatson
Particulates and
Volatiles
HQ
0.00738
0.00738
Dermal
HQ
0.562
0.562
Total
HI
Ingestion
Risk
K2tH£l
wamu
InhaEatEon
KKI.
0.000000204
0.000000204
s. rr- s?? s
Vottl
i mmmmmm
Output generated 25JUN2010:16:08:38
Resident RISK for Soil/Sediment - Wood Room / Log Deck Soils
Ksriitis'ric:"
Coi •{. o« *hviIon j=iio«: Vc-I.'sf i!v ¦*
(¦--Ki/kM) HQ HQ
y.Q
rhcmiCfii
*Totai Risk/Hi - mmmmm 0.00395 0.301
Output generated 23JUN2010:18:48:08
Resident RISK for Soil/Sediment - Soils Near No. 3 Evaporator
t-'hemirol
Com: tMifcrp lion
{'MUlkz:)
Irificstioii
HQ
s' -:V"0
HQ
if!: :j
HQ
innpimion
S-VsSllC'.-i-'tCS »iiiy
Voht:ler% L-O s si
HI Rfch Ri'-.h HV-U
0 000000109
^nitkulrle*
h'ycition Vokulivv. !'>emni
HI KKk RKK !*- k
Risk
Totol
hi*k
Output generated 23JUN2010:18:52:49
Resident RISK for Soil/Sediment - Aeration Basin Soils
Che-sssicH
Arsenic, Inorganic
"Total Risk/Hi
Cosiccnt! vjon
(nvf/k-rs)
HQ
¦SWsnXiOil
."in.;-
VofcltKe?. :.^!!!;:,':l Tot"? I
i!0. HQ Ml
•nn.irr-Tion
?'P!tlr.M:;;tf S
inr-i^tion Vc!rt!l;;v. Perpifii
Rtek KKk RK"k
loi;:l
riisk
Output generated 23JUN2010:18:55:39
Resident RISK for Soil/Sediment - Grit Chamber Soils
Ciicmic;;?!
(mg/kg)
liinp^hon
P.nl!ci!l.",lps rnu
y-C:
Dwmoi
HU
HI
In-lSf-tloS:
Risk
!!s:s.?s:5sSO!"s
Vo
Ri'-'j
Pomw I
Risk
Kiss
KiMI
2usm
Output generated 23JUN2010:18:55:39
Resident RISK for Soil/Sediment - Paint Shop / Former Maintenance Shop Soils
£heiiiic<;i
C.o:sr e:\iirt\Qi\
(Pic;/*?)
lisfjpvi'io"
HQ
t- piUr.'MrU?-- -:=5sc-
vok-tii;.*-.
MQ
l.'c: !;¦¦¦!.:? i
MQ
: i": !-P !.'"T! 0:":
Voifltile^
r?S:-k
Ornn::!
Rkk
Total
RK k
ma
iiiiiw mummzm
o. 0000008 (1 tWMfi* »mniw
^•^t-09 ~ mmwm
¦ mmmtrni
Output generated 25JUN2010:15:51:52
-------
Resident RISK for Soil/Sediment - Former Bottom Ash Storage Pile Soils
Chemical
Concentration
(mg/kg)
Ingestion
HQ
Inhalation
Particulates and
Volatiles
HQ
Dermal
HQ
Total
HI
Ingestion
Risk
Inhalation
Particulates and
Volatiles
Risk
Dermal
Risk
Total
Risk
Arsenic, Inorganic
24
0.00113
0.0859
3.12E-08
*Total Risk/Hi
0.00113
0.0859
3.12E-08
wwioiottm
Output generated 23JUN2010:19:06:03
Resident RISK for Soil/Sediment - Near-Shore Fill Subarea Soils
Chemical
Concentration
(mg/kg)
Ingestion
HQ
innaiation
Particulates and
Volatiles
HQ
Dermal
HQ
Total
HI
Ingestion
Risk
innaiation
Particulates and
Volatiles
Risk
Dermal
Risk
Total
Risk
Arsenic, Inorganic
132
5.63
0.00621
0.473
6.1
0.000000172
0.0000294
0.00034
Total Risk/Hi
5.63
khh
6.1
0.000000172
wtxtititityxzm
Output generated 23JUN2010:19:24:49
Resident RISK for Soil/Sediment - Woodwaste and Sludge Disposal Subarea Soils
Chemical
Concentration
(mg/kg)
Ingestion
HQ
innaianon
Particulates and
Volatiles
HQ
Dermal
HQ
Total
HI
Ingestion
Risk
innaianon
Particulates and
Volatiles
Risk
Dermal
Risk
Total
Risk
Arsenic, Inorganic
22
0.938
0.00103
0.0788
2.86E-08
"Total Risk/Hi
—¦
¦HUH
2.86E-08
wtxtimiviiam
Output generated 24JUN2010:14:29:11
Resident RISK for Soil/Sediment - Former Storage Area Long Water Pipeline Soils
Chemical
Concentration
(mg/kg)
Ingestion
HQ
innaianon
Particulates and
Volatiles
HQ
Dermal
HQ
Total
HI
Ingestion
Risk
innaianon
Particulates and
Volatiles
Risk
Dermal
Risk
Total
Risk
Aroclor 1254
15
5.76
2.59E-09
Arsenic, Inorganic
26
1.11
0.00122
0.0931
1.2
3.38E-08
0.00000578
0.0000669
"Total Risk/Hi
10.7
3.85
14.6
3.64E-08
m*Uii=stzm
Output generated 25JUN2010:16:20:32
Resident RISK for Soil/Sediment - Forested and Developed Area Soil
innaianon
innaianon
Particulates and
Particulates and
Concentration
Ingestion
Volatiles
Dermal
Total
Ingestion
Volatiles
Dermal
Total
Chemical
(mg/kg)
HQ
HQ
HQ
HI
Risk
Risk
Risk
Risk
Arsenic, Inorganic
11
0.469
0.000517
0.0394
0.509
1.43E-08
PeCDD, 2,3,7,8-
0.000062
*Total Risk/Hi
1TTM
HUM
1.43E-08
Output generated 25JUN2010:16:29:01
-------
Attachment 13
Certification of Completion Letters for Uplands and Marine Operable Units, dated January 21
and 22, 2010
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
ALASKA OPERATIONS OFFICE
Room 537, Federal Building
222 W. 7th Avenue, #19
Anchorage, AK 99513-7588
January 21, 2010
Phil Benning
Ketchikan Pulp Company
P.O.Box 6600
Ketchikan, AK. 99901
Barry Hogarty
TECS-AK
P.O.Box 6193
Ketchikan, AK. 99901
Re: Certification of Completion, Requirements of Consent Decree,
Upland Operable Unit, Ketchikan Pulp Company Site
CERCLA Remedial Design/Remedial Action Consent Decree No.AOO-225CV
Dear Mr. Benning and Ms. Hogarty:
Pursuant to Paragraph 66(a) of the above referenced Consent
Decree (CD), this letter provides Certification of Completion of the
Remedial Action for the Uplands Operable Unit(OU) of the Ketchikan Pulp
Company site (KPC Site).
EPA's certification is based on my personal inspection of the KPC
Site in May 2005, as well as the certification provided by the Alaska
Department of Environmental Conservation (ADEC) that the wood waste and
ash disposal Landfill at the KPC Site has been closed in accordance
with the ADEC solid waste permit and all applicable regulations.
Specifically, ADEC approved the KPC Landfill Closure Plan on May 8th,
2001 and on August 10, 2001 verified closure of the landfill and
commencement of landfill monitoring, to end in 2025, according to ADEC
Solid Waste Regulations.
In addition, pursuant to Section IX and Appendix H of the Consent
Decree, KPC has completed its obligations to establish institutional
controls at the Site. To summarize, four controlling instruments have
been recorded at the Site, which are more fully described by KPC
counsel Eric Fjelstad in a letter to EPA dated June 27, 2006.
With this letter, EPA has concluded that all CD requirements for
the Uplands OU have been performed and the Remedial Action Objectives
have been achieved.
This Certification shall not affect KPCS remaining obligations
under the CD, such as monitoring the landfill and enforcing the
institutional controls at the KPC Site.
(m)
This Certification does not limit EPA's right to perform periodic
reviews of the Site pursuant to Section 121(c) of CERCLA, 42 U.S.C.
9621(c), or to take or require any action that in the judgment of EPA
-------
2
is appropriate at the Site in accordance with Section 98 of the CD, and
in accordance with 42 U.S.C. 9604,9606,9607.
If you have any questions, please contact me at
gusmano,j acques @epa,gov or call (907) 271-1271.
Sincerely,
Jacques Gusmano
April Ingram, Louisiana-Pacific Corporation
Karen Keeley, EPA Marine OU Project Manager
Kelly Cole, EPA Office of Regional Counsel
Deb Yamamoto, Unit Manager, EPA Office of Environmental Cleanup
Bill Janes, ADEC Project Manager
-------
.^eDS%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue, Suite 900
Seattle, WA 98101-3140
OFFICE OF
ENVIRONMENTAL CLEANUP
January 22, 2010
Phil Benning
Ketchikan Pulp Company
P.O. Box 6600
Ketchikan, AK 99901
Re: Certification of Completion, Requirements of Consent Decree
Marine and Uplands Operable Units, Ketchikan Pulp Company Site
CERCLA Remedial Design/Remedial Action Consent Decree No. A00-225 CV (JKS)
Dear Mr. Benning:
Pursuant to Paragraph 66(b) of the above-referenced Consent Decree (CD), this letter
provides Certification of Completion of the Remedial Action for the Marine Operable Unit (OU)
of the Ketchikan Pulp Company Site (KPC) Site. Pursuant to Paragraph 66(c) of the CD, this
Marine OU Certification, together with the Uplands OU Certification dated January 21, 2010,
constitutes Certification of Completion of the Remedial Action for the entire KPC Site.
EPA's Certification of the Marine OU is based on the Remedial Action Report (Integral
Consulting, Inc.; September 30, 2009), which was certified by K PC/Loui si ana- Paci fi c (L-P) on
September 30, 2009 and approved by the U.S. Environmental Protection Agency (EPA) on
October 1, 2009 (see Record of Preparation, Review, and Approval in the Remedial Action
Report, p. v). EPA's approval of the Remedial Action Report constitutes EPA's conclusion and
certification that KPC has completed Remedial Action for the Marine OU in full satisfaction of
the requirements of the CD, and that the Remedial Action Objectives have been achieved.
This Certification shall not affect KPC's remaining obligations under this CD. In
response to KPC's questions regarding certain remaining requirements under the CD, EPA
clarifies the following:
• Annual progress reports for the Marine OU. Pursuant to Paragraph 48 of the CD,
KPC/L-P submitted its last annual progress report in November 2009. No further
progress reports need to be submitted.
Printed
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• Section XII. Assurance of Ability to Complete Work. Now that Remedial Action is
complete, KPC/L-P is no longer required to submit annual financial assurance pursuant to
Section XI11 of the CD.
• Section XVII. Indemnification and Insurance. Paragraph 75. KPC/L-P must maintain
insurance until the first anniversary of EPA" s Certification of Completion of the
Remedial Action (i .e., until January 201 1), as described in Section XVI1 of the CD.
• Section XXV. Retention of Records. Pursuant to Paragraph 1 14 of the CD, KPC/L-P
shall preserve and retain all records and documents now in its possession or control or
which come into its possession or control that relate in any manner to the performance of
the Work or liability of any person for response actions at the Site for ten (10) years after
receipt of this certification (i.e., until January 2020). KPC/L-P shall also instruct their
contracts and agents to do the same for ten (10) years.
This certification does not limit EPA's right to perform periodic reviews of the Site
pursuant to Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), or to take or require any action that
in the judgment of EPA is appropriate at the Site in accordance with Section 98 of the CD, and in
accordance with 42 U.S.C. §§ 9604, 9606, or 9607.
If you have any questions, please contact me at 206-553-2141 or keeleY.kareii@epa.gov.
cc: Kelly Cole, EPA Office of Regional Counsel
Sheila Ecktnan, Unit Manager, EPA Office of Environmental Cleanup
Jacques Gusmano, EPA Alaska Operations Office
Lucinda Jacobs, Integral Consulting, Inc.
Bill Janes, Alaska Department of Environmental Conservation
Sincerely,
Karen Keeley
EPA Project Manager
2
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Attachment 14
Letter from Sheila Eckman (EPA) to KGB (Bockhorst) and Alaska Assistant Attorney General
(Welsh), dated January 25, 2010, regarding: CERCLA Liability Associated with Potential
Redevelopment of Ward Cove
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue, Suite 900
Seattle, WA 98101-3140
OFFICE OF
ENVIRONMENTAL CLEANUP
ECL-111
January 25,2010
Mr. Dan Bockhorst
Ketchikan Gateway Borough
1900 Is1 Avenue
Ketchikan. Alaska 99901
Mr. Richard Welsh
Asst. Attorney General
Transportation Section
P.O. Box 110300
Juneau, Alaska 99811-0300
Re; CERCLA Liability Associated with Potential Redevelopment of Ward Cove in
Ketchikan, Alaska
Dear Mssrs. Bockhorst and Welsh:
This letter addresses issues related to the Alaska Department of Transportation & Public
Facilities Marine Highway System's (AMBS) and the Ketchikan Gateway Borough's (KGB)
proposed agreement to use Ward Cove as a ferry lay-up berth and operational facility. The
primary purpose of this letter is to apprise AMI IS and KGB about CERCLA liability that the
proposed operations may cause. It also summarizes issues that EPA has been discussing with
KGB and AMHS since early 2009.
Ward Cove consists of approximately 250 acres. In March 2000, EPA issued a Record of
Decision (ROD) addressing the Marine Operable Unit {Marine GU) at the Ketchikan Pulp
Company Site (KPC Site), which set forth a remedy that addressed 80 acres of contamination in
Ward Cove. The remedy was intended to protect the environment, and more specifically, the
benthie community populating the sediments there. Of the 80-acre remedy, the ROD called for
monitored natural recovery on approximately 53 acres and for a thin-layer sand cap for the
remaining 27 acres. Under EPA oversight, KPC performed remedial action construction in Ward
Cove between 2000 and 2001. In May 2009, EPA concluded that the multiple lines of evidence
used to evaluate sediment quality in the Marine OU indicate that the Remedial Action Objectives
have been achieved, and that sediments support healthy benthie communities. Because waste
was left in place, the ROD also called for institutional controls to ensure that the remedy would
remain intact and protective of the environment. The institutional control at issue here requires
post-remediation activities within the area of concern that materially damage the thin-layer cap
to be redressed, at the direction of EPA, The use restrictions set forth in the ROD are currently
still in effect at Ward Cove. The 2000 ROD language has not changed, nor has the way in which
EPA interprets and enforces the ROD.
#eDST4\
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Unrestricted use of Ward Cove would have been feasible only If all contaminated
sediments had been dredged, removed, and properly disposed. Given the location of Ward Cove,
the amount and type of contamination, and the cost of such disposal (estimated to be more than
S20O million in past studies), this was not a feasible alternative at the time (see Response to
Comment 73 in the ROD). However, in designing the remedial action, EPA did take into
consideration the anticipated future uses in the cove, EPA also sought public comment on its
proposed remedy - a combination of monitored natural recovery, thin-layer capping, and
dredging. The Borough supported EPA's remedy at the time (KGB letter to EPA, September 10,
1999, which included reference to the KGB's earlier September 22, 1998 letter).
To ensure that the remedy selected would remain protective, the ROD called for
institutional controls to be established that would restrict certain uses in Ward Cove, The
Borough was consulted on the anticipated future uses and restrictions set forth in the proposed
remedy. The future use of the cove was assumed to include normal vessel traffic and anchoring,
EPA stated in the ROD that certain pile-driving activities would be consistent with the remedy,
but that dredging would materially damage the cap and would therefore be prohibited. During
the design phase, and based on public input, EPA considered the requirements for reasonably
anticipated current and future commercial navigation in Ward Cove (see Design Analysis Report
for the Marine Operable Unit of the KPC Site, prepared by Exponent aid Hartman Consulting
Corporation, September 2000). As stated in the document, "The Ward Cove channel and berth
will cater to a range of ship types appropriate for reasonably anticipated current and future
shipping activity in Ward Cove. These anticipated uses focus on two types of deep draft ships,
the bulk cargo vessel and the cruise ship." A propeller scour analysis was also conducted.
Based on input, at the time, ferry traffic was not considered in these analyses.
To implement the ROD, Section IX (Access & Institutional Controls) of the 2000
Superfund Consent Decree (CD) for the Marine OU specifically prohibited persons from "using
the Site in any manner that would interfere with or adversely affect the integrity or
protect iveness of the remedial measures to be implemented pursuant to this Consent Decree." In
particular, paragraph 43(b) of the CD ensures that "If projects or activities materially damage the
Sediment Cap applied to Patented Tidelands, Gateway [the owner at the time] shall be required,
at the direction of EPA, to redress such impacts, e.g., Gateway shall be required to repair or
replace the impacted portions of the Sediment Cap if a dredging project exposes substantial areas
of non-native organic-rich sediments and thus adversely affects the continued recovery of the
benthic community in the sediments."
Paragraph 43(b) of the CD also required that a Monitoring and Reporting Work Plan
(Plan) he submitted to EPA in order to further implement Paragraph 27 of the CD and the
provision related to Sediment Cap damage. The part of the Plan related to Sediment Cap
damage, which was submitted by Exponent on January 3, 2002 and approved by EPA on January
15, 2002, described the procedure for actions that could materially damage the cap. The Plan
clearly stated that the CD's requirement to refrain from damaging the cap and to replace the cap
if necessary were binding on the current and any future owners of patented tidelands in Ward
Cove. It also stated, among other things, that "The property owner of the tidelands will be liable
for EPA's costs associated with reviewing and overseeing the action or proposed action that is
deemed by EPA to violate the institutional control."
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In 1999 - before EPA had issued the ROD and before KPC had entered into a CD to
perform the remedial action ¦- KPC recorded an Environmental Easement and Declaration of
Covenants on its property (1999 Covenant), The 1999 Covenant described restrictions on the
use of Ward Cove, including a requirement that any damage to the sediment cap be redressed by
KPC at EPA's direction. It designated the State of Alaska, Department of Natural Resources and
the Department of Environmental Conservation as the holder of the easement.
After KPC completed the remedy in Ward Cove, it replaced the 1999 Covenant with a
new one. The July 2004 Environmental Easement and Declaration of Covenants (2004
Covenant) is the one that currently applies, and it is an agreement between KPC and the
Borough, which was the new owner of the KPC Site, In the 2004 Covenant, the Borough agreed
to comply with all Ward Cove institutional controls that were set forth in the Consent Decree,
including the restriction on damaging the cap. It states:
The Borough covenants and agrees that it shall not, through any activities or operations
at or in the Ward Cove Area, materially damage any cap or capping materials that may
he applied to sediments in the Ward Cove Area under the Ward Cove Consent Decree.
According to the 2004 Covenant, in the event of any such damage to the cap, the
Borough (or any future owner) must immediately report the damage to EPA and KPC and then
restore the cap. The 2004 Covenant states that the restricted uses shall run with the land and be
binding on all future owners, and the terms and conditions shall be for a period of twenty (20)
years, after which time the Covenant shall be automatically extended for successive periods of
ten (10) years unless an instrument signed by .KPC has been recorded agreeing to terminate the
restrictions. EPA would have to approve any such termination arid would do so only if the
contamination were completely removed and there was no longer a need for a thin-layer cap.
Therefore, while the remedy selected for the Marine OU assumed that Ward Cove would
be redeveloped in the future, the institutional controls that were put in place to protect that
remedy do affect how the site may be redeveloped. Any activity that materially damages the
thin-layer sediment cap at Ward Cove would be a violation of the ROD, the institutional
controls, and the 2004 Covenant, and may also be considered a release of hazardous substances,
subjecting KGB, as owner of the sediments, to liability under Section 107(a) of CERCLA. See
42 U.S.C. § 9607(a). If AMHS becomes a lessee at Ward Cove and if its activities were to
disrupt the sediment cap, it, too, would be subject to liability as an operator under CERCLA.
EPA has not conducted its own independent evaluation of whether your proposed
redevelopment plans at Ward Cove would in fact materially damage the sand cap materials, or
cause a release of hazardous substances. However, the agency does have a copy of the CH2M
HILL May 2009 scour study titled "Potential for Scour at Ward Cove from Proposed AMHS
Perry Operations." It is our understanding that AMHS commissioned this report as part of its
due diligence when it was considering purchasing portions of Ward Cove for its ferry operations.
The report concluded that AMHS ferry traffic would likely disturb the remedial sand cap in
Ward Cove. EPA is also aware that KGB hired two firms to peer review CH2M HILL's
assessment and conclusions: (1) Dalton, Olmsted & Fuglevand, Inc., and Windward
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Environmental LLC, "Peer Review of the 2009 CH2M HILL Scour Study of Ward Cove" (July
31, 2009), (2) PND Engineers, Inc., "Ward Cove Sediment Scour - Peer Review of Scour
Assessment" (July 28, 2009). Subsequently, CH2M HILL prepared "Response to Peer Reviews
of CH2M HILL Ward Cove Scour Study" (August 27, 2009). EPA has copies of these reports as
well.
If the proposed ferry operations were to result in a disruption to the capped sediments in
Ward Cove, EPA could take a number of actions. It could, for example, perform its own
independent monitoring in the future to determine if a release has occurred, the cost of which
could be assessed against the current owner and/or operator. Another option would be to order
one or both of the parties to remediate the damage and pay for EPA's oversight of the cleanup
work.
While it is not EPA's role to approve or disapprove of specific development projects at
the KPC Site, it is EPA's role to ensure that the remedy in place at Ward Cove remains
protective of the environment. As the owner at the KPC Site, it is KGB's role to ensure that
projects that proceed on site are consistent with the ROD, the institutional controls, and 2004
Covenant.
As a reminder, EPA will be conducting the next Five-Year Review for the KPC Site this
year.
If you have any questions, please contact me at eckman.sheila@epa.gov or by phone 206-
553-0455.
Sincerely,
//iww
Sheila Eckman
Unit Manager
cc: Phil Benning, KPC
Kelly Cole, EPA Office of Regional Counsel
Jacques Gusmano, EPA Alaska Operations Office
Karen Keeley, EPA Office of Environmental Cleanup
Bob Weinsteie, Office of Senator Mark Begich, Field Representative, Southern Southeast
Alaska
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Attachment 15
Environmental Easement and Declaration of Covenants, recorded July 18, 2003, between
Ketchikan Gateway Borough, Ketchikan Pulp Company, and Gateway Forest Products
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A
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2003-004128-0
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Ketchikan Recording District
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ENVIRONMENTAL EASEMENT AND DECLARATION OF COVENANTS
This Environmental Easement and ^Declaration of Govenants
("Easement"), made and entered into this / V-^-dav of 3~l* ) ^ , 2003, by
and between KETCHIKAN GATEWAY BOROUGH, a municipal ^corporation, 344
Front Street, Ketchikan, Alaska 99501, KETCHIKAN PULP COMPANY, a
Washington corporation, Post Office Box 6600, Ketchikan, Alaska 99901, and
GATEWAY FOREST PRODUCTS, INC., an Alaska corporation, Post Office Box
779, Ward Cove, Alaska 99928, WITNESSETH:
RECITALS
WHEREAS, all real property referred to in this Easement is located in, and all
documents and plats referred as filed or recorded, are filed or recorded in the Ketchikan
Recording District, First Judicial District, State of Alaska; -
WHEREAS, on November 3, 1999, Ketchikan Pulp Company and Gateway
Forest Products, Inc. entered into certain agreements including the Allocation of
Environmental Responsibilities Agreement ("Environmental Allocation Agreement"),
more commonly known as Exhibit "F," and the Easement and Declaration of Covenants
Regarding Allocation of Environmental Responsibilities ("Environmental Allocation
Easement"), more commonly known as Exhibit "F-l," which incorporated by reference
Exhibit "F," governing certain properties;
WHEREAS, The Environmental Allocation Easement was specifically
incorporated into that certain Quitclaim Deed executed by Ketchikan Pulp Company in
favor of Gateway Forest Products, tic., which was recorded on November 5, 1999 at
Book 306, Page 72;
WHEREAS, the parties now desire to remove the Environmental Allocation
Easement and the Environmental Allocation Agreement from certain parcels of real
property located at Ward Cove, formerly owned by Ketchikan Pulp Company and to
replace it with this Easement;
WHEREAS, the Ketchikan Gateway Borough, Ketchikan Pulp Company and
Gateway Forest Products, Inc. have ongoing interests, including but not limited to,
operational and regulatory considerations, in the Ward Cove real property and desire to
impose on the those properties certain terms and conditions as covenants that will run
with the land for the purpose of making such terms and conditions applicable to the
Ketchikan Gateway Borough, Ketchikan Pulp Company and Gateway Forest Products,
Inc., as well as any of their successors and assigns holding an interest in the properties;
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WHEREAS, the Ketchikan Gateway Borough, Ketchikan Pulp Company and
Gateway Forest Products, Inc. entered into an Agreement dated , 2003
governing the parties' respective rights and responsibilities ("Agreement"); and
WHEREAS, Ketchikan Pulp Company has an ongoing interest in ensuring that it
has access to the Ward Cove properties to accommodate the satisfaction of its continuing
environmental obligations at the Ward Cove facility;
NOW, THEREFORE, In consideration of the promises and of the mutual
agreements and covenants hereinafter set forth, the Ketchikan Gateway Borough,
Ketchikan Pulp Company and Gateway Forest Products, Inc. hereby agree as follows:
I. DEFINITIONS.
The terms used in this Easement shall have the following meanings, which shall
be equally applicable to both the singular and plural forms of the terms defined:
A. ¦ "Borough" means and refers to the Ketchikan * Gateway Borough, a
municipal corporation organized pursuant to the laws of the State of
Alaska, and the Borough's successors, heirs, and assigns.
B. . "Costs" means, with respect to Remediation and Investigation activities,
actual reasonable expenditures, including but not limited to, reasonable
attorneys' fees and defense costs, contractor costs, consultant costs,
governmental oversight costs and other necessary expenditures.
C. "Environmental Laws" means all State of Alaska, local, and federal laws,
statutes, regulations, and ordinances of any land relating to environmental
protection or compliance as they currently exist and as they may come to
be amended, including but not limited to, the federal Clean Water Act;
Clean Air Act; Toxic Substances Control Act; Comprehensive
Environmental Response, Compensation and Liability Act; Resource
Conservation and Recovery Act; Federal Insecticide, Fungicide, and
Rodenticide Act; Safe Drinking Water Act; Hazardous Materials
Transportation Act; laws designated in Alaska Statutes Title 46; and
common law, including causes of action arising in tort.
D. "Gateway" means and refers to both Gateway Forest Products, Inc., an
Alaska corporation, and Gateway's successors, heirs, and assigns.
E. "Hazardous Substances" means substances which constitute hazardous
substances under the Comprehensive Environmental Response,
Compensation Liability Act or under AS 46.03.822.
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"Institutional Controls" means the Environmental Protection Easement
and Declaration of Restrictive Covenants in favor of the State of Alaska,
Department of Natural Resources, recorded on October 28, 1999, at Book
305, page 772 in the Ketchikan Recording District and such other
measures;, controls, limitations, prohibitions, procedures, or protocols that
the United States Environmental Protection Agency ("EPA"), the Alaska
Department of Environmental Conservation ("DEC") or the Alaska
Department of Natural Resources ("DNR") requires in order to maintain
the integrity of a remedial or removal action or prevent a release or
threatened release of a Hazardous Substance,
"Investigation or Investigatory" means actions to assess the nature and
extent of Hazardous Substances contamination, including sampling and
other necessary activities.
"KPC" means and refers broadly to both Ketchikan Pulp Company, a
Washington corporation, and ICPC's successors, heirs, and assigns.
¦'"Remediation" means actions to remove, clean up, treat, or dispose of
Hazardous Substances from the environment, including but not limited to,
actions which may be necessary to prevent, minimize, or mitigate damage
to the public health or welfare or to the environment from a release or
threatened release of a Hazardous Substance,
"Ward Cove Area" means the water body commonly known as Ward
Cove including marine waters to the ordinary high water mark and
sediments underlying such waters, and also means the surface and
subsurface areas of those portions of U.S. Surveys 1056, 1208, 1508,
1653, 1656, 1659, 1706, 1754, and 1862 lying seaward of the'North
Tongass Highway, and the filled portions of ATS-1, including any
structures or other improvements located thereon.
"Ward Cove Consent Decree" means the consent decree with the EPA and
the U.S. Department of Justice entered in the U.S. District Court for the
District of Alaska: CERCLA Remedial Design/Remedial Action Consent
Decree, United States vj. Gateway Forest Products, Inc., -Ketchikan Pulp
Company, & Louisiana-Pacific Corporation, Case No. AGO-225 CV
(JICS).
"Ward Cove Landfills" means the industrial landfill which KPC owns and
operates upon Tract 3004, Lot 2, Dawson Point Subdivision, according to
the plat thereof field November 28, 2000 as Plat 2000-73,
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n.
PARCELS TO WHICH THE COVENANTS SHALL APPLY.
The covenants contained in this Easement shall apply to the following parcels of
real property ("Ward Cove Property");
PARCEL NO, 1:
U.S. Survey 1706.
PARCEL NO. 2;
The unsubdivided Remainder, according to the subdivision plat of U.S. Survey
1754, recorded March 8, 1956 in Volume 1 of Plats at Packet 20.
PARCEL NO. 3;
Lot 1, Tract 3004, according to the plat filed November 28,2000 as Plat 2000-73.
PARCEL NO. 4;
U.S. Survey 3400. ¦
PARCEL NO, 5;
US. Survey 3401.
PARClLNO.fi:
Lot 1, Sec. 34, T.74S., R.90E,, C.R.M., as more particularly described in Exhibit
"A" hereto.
HI. COVENANTS.
The Borough, KPC and Gateway, for good and sufficient consideration received,
do hereby covenant and declare that, with respect to the properties listed in Section II.
hereof, the following provisions shall be covenants that run with and bind the Ward Cove
Property and the parties, and each parties' respective personal representatives, heirs,
successors and assigns as to the Ward Cove Property or any interest therein obtained
through any mechanism, including but not limited to, conveyances, assignments, or
foreclosures:
A, Touch and Concern.
The Ward Cove Covenants touch and concern the Ward Cove Property, in that
each and all of the Covenants directly benefit the property, resolve regulatory issues
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which have limited development and thereby increase its market value. The Ward Cove
Covenants are fully enforceable by the parties with respect to the Ward Cove Property or
any interest therein. If a party refuses to acknowledge the applicability of the Ward Cove
Covenants to such party, any other party shall be entitled to enforce the terms of this
instrument in law and in equity.
B. Ward Cove Area.
1. The Borough covenants and agrees that it shall comply with any
Institutional Controls which axe or may become applicable to the Ward Cove Property,
including those imposed through, or under the Ward Cove Consent Decree, or otherwise.
2. The Borough covenants and agrees that it.shall not, through any activities
or operations at or in the Ward Cove Area, materially damage any cap or capping
materials that may be applied to sediments in the Ward Cove Area under the Ward Cove
Consent Decree. The Borough further covenants and agrees that if it damages such cap,
it will immediately report- the relevant circumstances to EPA and KPC and restore the cap
to a condition and to specifications as directed by the EPA or by any governmental body
having primary regulatory jurisdiction over the work undertaken by KPC under the Ward
Cove Consent Decree, but-the Borough and KPC will be under no obligation to restore
the cap until directed to- do so by the EPA or other governmental body having
jurisdiction.
3. The Borough's obligations, pursuant to Section 2 hereof, extend to the
activities and operations of its employees, agents, contractors, invitees, licensees,
representatives, permittees, joint venturers, instrumentalities, port authorities, and any
third party contractually related, whether directly or indirectly.
4. Nothing in this Easement shall be interpreted to prohibit KPC from
exercising any legal rights it may have with respect to matters arising under the Ward
Cove Consent Decree.
5. KPC, Gateway and the Borough agree to give the other parties advance
written notice of any material excavation, digging or other similar activities relating to
the Ward Cove Property.
6. The Ward Cove Landfills axe located within Lot 2, Tract 3004 "("Landfill
Parcel") and are operated pursuant to a permit issued by the State of Alaska, Department
of Environmental Conservation ("DEC"), Lot 1 of Tract 3004 surrounds the Landfill
Parcel, which KPC agreed to donate to the Borough only upon the condition that use
restrictions and other conditions would be implemented in order to ensure that neither the
Borough nor its successors in interest would unreasonably interfere .with the operation
and maintenance of the Ward Cove Landfills. To accomplish those objectives, KPC and
the Borough covenant and agree as follows:
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a. The future use of Lot 1, Tract 3004 by the Borough and its successors in
interest shall be limited to commercial activities of an industrial nature
which are compatible with operation in close proximity to an industrial
landfill;
b. The Borough and its successors in interest shall take all reasonable
measures to protect against any interference with operation of the Ward
Cove Landfills, including appropriate terracing of any rock extraction to
preserve subjacent support; and
c. The Borough hereby fully and finally releases KPC from all liability
arising" from or in any way related to operation and maintenance of the
Ward Cove Landfills, excepting only to the extent damages may occur
from a violation of, or failure to obtain, the DEC permit for the landfills.
This release extends to any and all claims and liabilities, whether arising
from negligence, or other fault, or otherwise. The Borough shall require
each of its successors in interest, whether by lease, deed, or otherwise, as a
condition to acquisition of any interest in or to Lot 1, Tract 3004, to
execute the same release in favor ofKPC.
C. Future Subdivision,
These Covenants shall not preclude subdivision of any parcel of the Ward
Cove Property; provided, however, that upon any subdivision, replat, plat modification or
other similar action, all portions of the Ward Cove Property which previously were
subject to these Covenants, shall remain subject thereto; provided, however, that the
obligations imposed by these covenants shall be limited to the parcel, area, or portion
held by a party and shall not be interpreted to create liability for other parcels or areas not
held by such party.
D. Further Assurances.
1. The parties covenant and agree both to adhere to and comply with current
Institutional Controls and to cooperate with respect to the development and
implementation of additional Institutional Controls, which shall include the development
of an instrument or instruments to ensure that Institutional Controls arising under the
Ward Cove Consent Decree, or otherwise, will run with the property and be enforceable
against bona fide purchasers.
2. The parties covenant and agree that this Easement shall govern and be
binding with respect to, the acts and omissions of each respective party's employees,
agents, contractors, and any third party contractually related, whether directly or
indirectly, to the respective party.
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1.
Term of Ward Cove Covenants.
Each and all of the Ward Cove Covenants, and all the burdens and benefits
thereof, shall run with the Ward Cove Property and shall he binding on any person having
any ownership interest in the Ward Cove Property under the terras and conditions set
forth in the Ward Cove Covenants for a period of twenty (20) years from the Effective
Date, after which time the Ward Cove Covenants shall he automatically extended for
successive periods of ten (10) years each, unless an instrument properly signed by KPC,
has been recorded in the Ketchikan Recording District, First Judicial District, State of
Alaska, agreeing to terminate the Ward Cove Covenants in whole or in part,
F. Termination of Rights and Obligations of Covenants Through
Transfer of Ownership Interest
A party is relieved of its obligations to comply with the Ward Cove Covenants
imposed on the Ward Cove Property upon, and to the extent, that a party transfers or no
longer holds an interest- in the Ward Cove Property, except that liability or responsibility
for acts or omissions occurring prior to transfer shall survive such transfer; provided,
however, that nothing in this Easement shall diminish or relieve the parties, or any
successor or assign of the parties from their respective obligations under the Agreement.
The Borough, KPC, and Gateway, together with each parties' respective
successors and assigns, are hereinafter referred to as the "Parties."
IV. EASEMENT.
A. Reservation of Easement
1. The Parties acknowledge and agree that, upon the terms and conditions set
forth in this Easement, the Borough grants to KPC an easement interest (the "Easement")
in and to the following properties (the "Easement Property") to allow KPC and its
successors and assigns to undertake any activity contemplated by the Agreement and' by
subsection H3.B. hereof. It is the express intent of Grantor and Grantee that the burden
and benefit of this Easement shall run with the land upon any conveyance of the Ward
Cove Property, during the term of this Easement, including any extension thereof;
PARCEL NO. 1:
Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H-E.S.) according to the
plat thereof filed August 14, 2000 as Plat No. 2000-41.
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PARCEL NO. 2:
That portion of U.S. Survey 1056, lying northerly of the northerly boundary of
North Tongass Highway, being adjacent to U.S. Survey 2923 and comprised of
5.16 acres.
PARCEL NO. 3;
US. Survey 1706.
PARCEL NO. 4:
U.S.. Survey 1754
PARCEL NO. 5:
That portion of U.S. Survey 1862, more particularly described as follows:
Beginning at U.S. Land Mark No. 2; thence North 32 °2T West a distance of
155.5 feet to Coiner No. 1 ofU.S. Survey 1862 and the true point ofbeginnmg of
the portion herein described; thence North 0D25' West a distance of 515 feet,
more or less, to a point on the South Right of Way line of North Tongass
Highway, which point is 50 feet from the center line of said highway and at right
angles to Engineers Station 299+50; thence along that portion of a spiral, curve to
the left whose chord bears South 24°30' East a distance of 114.65 feet; thence
along the arc of a 527.46 foot radius curve the long chord of which bears South
36° 35' East a distance of 126.14 feet; thence along a spiral curve whose chord
bears South 51 °21' East a distance of 210.05 feet; thence South 55°27' East a
distance of 316.97 feet; thence South 34°33' West a distance of 50 feet; thence
South 55 ° 27' East a distance of 137.00 feet; thence South 88 ° 00' West a distance
of 535 feet more or less along Meander Line No. 11 ofU.S. Survey 1862; thence
North 29° 30' West a distance of 155.50 feet along Meander Line No. 12 ofU.S. -
Survey 1862 to Comer No. 1, which is the point ofbegjnning;
ALSO: That portion ofU.S. Survey 1862 lying with the North Tongass Highway
Right of Way as created by a deed dated April 1, 1949 and recorded in Volume
"W" of Deeds at Page 362, Ketchikan Recording District, First Judicial District,
State of Alaska, and as conveyed to Ketchikan Pulp Company by Quitclaim Deed
recorded My 27,1988 in Book 158 at Page 588.
PARCEL NO. 6:
US. Survey 2090.
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2003-QD4128-0
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PARCEL NO. 7:
That certain portion, of U.S. Survey 2923, more particularly described as follows:
Beginning at the northerly coiner of the Crawford Tract, otherwise known as
Comer No, 2 of U.S. Survey 2923; thence South 55°45" East along the
northeasterly boundary of the Crawford Tract a distance of 863.37 feet; thence
South 89°33' West a distance of 709.81 feet, more or less, to a point on the
westerly boundary of the Crawford Tract; thence North 0°27' West along the
westerly boundary of the Crawford Tract a distance of 491,50 feet, more or less,
to the point of beginning.
PARCEL NO. 8:
U.S. Survey 3400.
PARCEL NO. 9:
U.S. Survey 3401.
PARCEL NO. 10:
Lot 1, Sec. 34, T. 74S., R.90E., C.R.M., as more particularly described in Exhibit
"A" hereto.
PARCEL NO, 11:
Tract 3004, Lot 1. according to the plat filed November 28, 2000 as Plat 2000-73.
PARCEL NO. 12:
All of ALASKA TIDELANDS SURVEY MO. 1 (CR 74S 90E), according to the
unrecorded plat thereof (mistakenly recorded in the Juneau Recording District as
Plat No. 292).
PARCEL NO, 13:
ALASKA TIDELANDS SURVEY NO. 439.
2. The Parlies covenant and agree that KPC hereby is granted an easement
interest in and to the Easement Property set forth in subsection A.L hereof, consisting of
a right of free access to and across the Easement Property to allow KPC to undertake or
observe any sampling and Investigatory activities. Remediation activities, and any
reasonable actions necessary to support or implement Investigatory and Remediation
9
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activities at the Easement Property. KPC's right of access shall also include, without
limitation, the right to use the Easement Property to the extent reasonably necessary for a
staging area or otherwise to comply with Environmental Laws and the directives or
orders of governmental agencies relating to the Easement Property.
3, KPC's right of access shall also include access through and across all
access easements which have been or hereafter are established by, or reflected in, any
plats of U.S. Survey 1056 or ATS-1, whether those access easements are designated as
private access easements or otherwise.
4. KPC's access lights, as described herein, shall not prevent the Borough
Entities from constructing any buildings or other improvements on the Borough Property.
In that event, KPC will exercise its access and staging rights in a manner which will not
unreasonably interfere with the Borough Entities' uses or development of the properties.
B. Terra.
The Easement shall become effective on the Effective Date and shall have an
initial term of twenty (20) years from the Effective Date, after which time the Easement
shall be automatically extended for successive periods of ten (10) years each, unless an
instrument properly signed by KPC, has been recorded in the Ketchikan Recording
District, First Judicial District, State of Alaska, agreeing to terminate the Easement in
whole or in part.
C. Subdivision.
This Easement shall not preclude the subdivision of any parcels of the Ward Cove
Property, but upon any subdivision, replat, plat modification, or other similar action, all
portions of the Ward Cove Property which previously were subject to this Easement shall
remain subject thereto.
V. EFFECTIVE DATE.
This Easement shall become effective ("Effective Date") on the date of
recordation, simultaneous with recordation of the Vacation of Covenants and Easement
releasing the same parcels
VI. LIBERAL CONSTRUCTION.
Any general rule of construction to the contrary, this Easement shall be liberally
construed in favor of effectuating the Parties' desire to establish the Easement in favor of
KPC and to make the Ward Cove Covenants run with, and apply to, the Ward Cove
Property and to make the Ward Cove Covenants binding upon any and all successors and
assigns of the Parties. If any provision of this instrument is found to be ambiguous, an
interpretation consistent with the purpose of this instrument that would render the
10
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provision valid shall be favored over any interpretation that would render it invalid or
unenforceable.
vn. DISPUTES.
The parties each irrevocably consent to the exclusive venue and jurisdiction of
any state or federal court located in the First or Third Judicial Districts, State of Alaska,
for the purposes of any suit, action, or other proceeding of any type whatsoever arising
out of this Agreement or the subject matter hereof; provided, however, that if jury trial is
sought by any party, the proceeding will instituted in a locale other than Ketchikan. To
the maximum extent permitted by applicable law, each party waives and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding any claim that it is not personally subject to the jurisdiction of the above
named courts; that the suit, action, or proceeding is brought in an inconvenient forum;
that the venue of the suit, action, or proceeding is improper; or that this Agreement or the
subject matter hereof may not be enforced in or by such court. Each party agrees that
service of process may be made upon it wherever it can be located or by certified mail
directed to its address for notices under this Agreement.
Vm. MISCELLANEOUS.
A. Notices.
All notices, requests, claims, demands and other communications given or made
pursuant hereto shall be in writing (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by telecopy (with confirmation copy of such
telecopied material delivered in person or by registered or certified mail, postage prepaid,
return receipt requested) or by registered or certified mail (postage prepaid, return receipt
requested) to the respective party at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section VELA.);
1. if to KPC:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation .
Legal Department
805 S.W. Broadway, Suite 700
Portland, Oregon 97205
Attention: Christopher M. (Kit) Keyes, Esq.
Facsimile: (503) 821-5323
and:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
11
2003-0041284
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P.O. Box 4000-98
Hayden Lake, Idaho 83835-9460
Attention: Chris Paulson
Facsimile: (208) 762-1667
Physical Address; 13403 N, Government Way
with a copy to:
Ziegler Law Firm
307 Bawden Street
Ketchikan, Alaska 99901
Attention: John Peterson, Esq,
Facsimile: (907)225-5513
2. if to the Borough:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Manager
Facsimile: (907)247-6625
with a cow to:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
. Attention: Borough Cleric
Facsimile: (907) 247-8439
3. if to Gateway:
Gateway Forest Products, Inc.
Post Office Box 779
Ward Cove, Alaska 99928
Attention: Dick Leary
Facsimile: (907) 247-1646
Gateway Forest Products, Inc.
7517 Tyne Drive
Anchorage, Alaska 99502
Attention: Jim Erickson
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B. Headings.
The descriptive headings contained in this Easement are for convenience
of reference only and shall not affect in any way the meaning or interpretation of this
Easement
C. Severability,
If any provision of this Easement, or the application of any provision to a
person or circumstance, is found to be invalid, illegal, or incapable of being enforced, by
any rule of law or public policy, the remainder of the provisions of this Easement, or the
application of such provisions to persons or circumstances other than those to which it is
found to be invalid or unenforceable, as the case may be, shall not be affected thereby.
D. No Third-Party Beneficiaries.
This Easement is for the sole benefit of the Parlies and their respective
successors and permitted assigns, and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Easement.
E. Amendment; Waiver.
This Easement may not be amended or modified except by an instrument
in writing duly executed and recorded by the Parties. Waiver of any term or condition of
this Agreement shall only be effective if in writing, duly executed by the Party to be
bound thereby, and shall not be construed as a waiver of any subsequent breach or waiver
of the same term or condition, or a waiver of any other term or condition of this
Easement; provided however, that once Gateway no longer is the owner of any part or
parcel of the Ward Cove Property, its agreement no longer shall be necessary to
effectuate amendment of either the Covenants or the Easement and its signature no longer
will be required.
F. Governing Law,
This Easement shall be governed by, and construed in accordance with,
the laws of the State of Alaska, applicable to covenants and agreements affecting real
property executed and to be performed in that State.
NOTICE: THE INTERESTS CONVEYED HEREBY ABE
SUBJECT TO AN ENVIRONMENTAL PROTECTION
EASEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS DATED OCTOBER 28, 1999, RECORDED IN THE
KETCHIKAN RECORDING DISTRICT, FIRST JUDICIAL
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DISTRICT, STATE OF ALASKA, ON OCTOBER 28, 1999 AT
BOOK 305, PAGE 772.
IN WITNESS WHEREOF, the Parties hereto have caused Ms Agreement to be
duly executed as of the date first written above.
GATEWAY FOREST PRODUCTS, INC.
KETCHIKAN GATEWAY BOROUGH
lairiet Edwards
Clerk
By.
Rov/a. Eckert
yj/k. Eckert~
Manager
STATE OF ALASKA
FIRST JUDICIAL DISTRICT
: ss.
THIS IS TO CERTIFY that on this
is }t-j^"day
Ofx
2003, before
me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned
and sworn as such, personally appeared Roy A. Eckert and Harriet Edwards, to me
known to be the Manager and the Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pursuant to the laws of the State of Alaska which executed the
14
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2003-0041284
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above and foregoing instalment; who on oath, stated that they were duly authorized to
execute said instrument and affix the borough seal thereto on behalf of the Borough and
that the seal affixed thereto is the borough seal thereof; and who acknowledged to me
that the same was signed freely and voluntarily on behalf of the Borough for the uses and
purposes therein mentioned.
WITNESS my hand and seal the day and year last above written.
«tlU.SEi
WWM iOHTRf;
irtJfAHY PUBUU-WAi t ol- alASKA
My Comm. Expires
Notary Public in kid for Alaska ^
My Commission Expires: S~) 1 CS~]
STATE OF ALASKA
FIRST JUDICIAL DISTRICT
: ss.
)
THIS IS TO CERTIFY that on this day of Hutu , 2003, before
me, the "undersigned, a notary public in and for the State of Alaska, duly commissioned
and sworn, personally appeared Richard D. Leary, to me known to be the Secretary, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
. c /'''"••.WITNESS my hand and official seal the day and year in this certificate
cj^Mst abevB^fjjttrii.
ct / v r-
O :,
r
a \
-V;
-4
v*a/
v
STATE OF ALASKA
THIRD JUDICIAL DISTRICT
Notary Publicum Alaska
Commission expires: *£>l
ss.
THIS IS TO CERTIFY that on this /& day of , 2003, before
me, the undersigned, a notary public in and for the State of Alaska, duly commissioned
and sworn, personally appeared James K. Erickson, to me known to be the President, of
Gateway Forest Products, Inc., an Alaska corporation, the corporation which executed the
15
18 of 19
2003-004128-0
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above and foregoing instrument; who on oath stated that they were duly authorized to
execute said instrument and affix the corporate seal thereto on behalf of said corporation
and that the seal affixed thereto is the corporate seal thereof; who acknowledged to me
that they signed and sealed the same freely and voluntarily on behalf of said corporation
for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year in tins certificate
first above written.
STATE OF IDAHO
: ss.
COUNTY OF KOOTENAI )
Ou^Ll-* ^
Jotary Public for Alaska^ ,• Z?
'ommission expires: y
Cr * *u_, "V., i. * *-v
•5 ;<> 0-
« ; vV/£
THIS IS TO CERTIFY that on this day of kLaJ JLU 2003, before
me, the undersigned, a notary public in and for the State of IdahoTduly commissioned
and sworn, personally appeared Chris Paulson and Douglas P. Anderson, to me known
to be the President and Assistant Secretary respectively of Ketchikan Pulp Company, a
¦Washington corporation, the corporation which executed the above and foregoing
instrument; who on oath stated that they was duly authorized to execute said instrument
on behalf of said corporation and who acknowledged to me that he signed and sealed the
same freely and voluntarily on behalf of said corporation for the uses and purposes
therein mentioned.
WITNESS my hand and official seal the day and year in this certificate
first above written. ^
drU. &3ddkjU>
Notary public for Idaho 0
Commission expires: (j 1 H
QK.
WHEN RECORDED, RETURN TO:
The Ziegler Law Finn
307 Bawden Street
Ketchikan, Alaska 99901
16
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-------
Attachment 16
Environmental Easement and Declaration of Covenants, recorded July 15, 2004, between
Ketchikan Gateway Borough and Ketchikan Pulp Company
-------
A
t
A
S
K
A
20C 1-002967-0
Recording Dist 102 - Ketchikan
7/15/2004 10:41 AM Pages; 1 of 18
lllllll
cac^jCJ>
ENVIRONMENTAL EASEMENT AHD DECLARATION OF CQVEHMTS
This Environmental Easement and Declaration of Covenants
("Easement"), made and entered into this day of Zluiw •
2004, by and between KETCHIKAN GATEWAY BOROUGH, a inunieipal
corporation, 344 Front Street, Ketchikan, Alaska 99501 and
KETCHIKAN PULP COMPANY, a Washington corporation, Post Office Box
6600, Ketchikan, Alaska 99901, WITNESSETH:
RECITALS
WHEREAS, all real property referred to in this Easement is
located in, and all documents and plats referred as filed or
recorded, are filed or recorded in the Ketchikan Recording
District, First Judicial District, State of Alaska;
WHEREAS, on November 3, 1993, Ketchikan Pulp Company and
Gateway Forest Products, Inc. entered into certain agreements
including the Allocation of Environmental Responsibilities
Agreement ("Environmental Allocation Agreement11) , more commonly
known as Exhibit "F, " and the Easement and Declaration of Covenants
Regarding Allocation of Environmental Responsibilities ("Environ-
mental Allocation Easement'1) , more commonly known as Exhibit "F-l, "
which incorporated by reference Exhibit " F, " governing certain
properties;
WHEREAS, The Environmental Allocation Easement was specifical-
ly incorporated into that certain Quitclaim Deed executed by
Ketchikan Pulp Company in favox of Gateway Forest Products, Inc.,
which was recorded on November 5, 1999 at Book 306, Page 72 ;
WHEREAS, the parties now desire to remove the Environmental
Allocation Easement and the Environmental Allocation Agreement from
certain parcels of real property located at Ward Cove, formerly
owned by Ketchikan Pulp Company and to replace it with this
Easement;
WHEREAS, the Ketchikan Gateway Borough and Ketchikan Pulp
Company have ongoing interests, including but not limited to,
1
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operational and regulatory considerations, in the Ward Cove real
property and desire to impose on the those properties certain terras
and conditions as covenants that will run with the land for the
purpose of making such terras and conditions applicable to the
Ketchikan Gateway Borough and Ketchikan Pulp Company, as well as
any of their successors and assigns holding an interest in the
properties;
WHEREAS, the Ketchikan Gateway Borough, Ketchikan Pulp Company
and Gateway Forest Products, Inc. entered into an Agreement dated
July 14, 20 03 governing the parties' respective rights and
responsibilities { "Agreement") f- and
WHEREAS, Ketchikan Pulp Company has an ongoing interest .in
ensuring that it has access to the Ward Cove properties to
accommodate the satisfaction of its continuing environmental
obligations at the Ward Cove facility;
HOW, THEREFORE, In consideration of the promises and of the
mutual agreements and covenants hereinafter- set forth, the
Ketchikan Gateway Borough and Ketchikan Pulp Company hereby agree
as follows;
I. .DEFINITIONS.
The terms used in this Easement shall have the following
meanings, which shall be equally applicable to both the singular
and. plural forms of the terms defined:
A. "Borough" means and refers to the Ketchikan Gateway
Borough, a municipal corporation organized pursuant to
the laws of the State of Alaska, and the Borough * s
successors, heirs, and assigns.
B . "Costs" means, with respect to Remediation and Investiga-
tion activities, actual reasonable expenditures, includ-
ing but not limited to, reasonable attorneys' fees and
defense costs, contractor costs, consultant costs,
governmental oversight costs and other necessary expendi-
tures ,
C. "Environmental haws" means all State of Alaska, local,
and federal laws, statutes, regulations, and ordinances
of any kind relating to environmental protection or
compliance as they currently exist and as they may come
to be amended, including but not limited to, the federal
Clean Water Act; Clean Air .Act; Toxic Substances Control
Act; Comprehensive Environmental Response, Compensation
and Liability Act; Resource Conservation and Recovery
2
2M4402K7-0
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Act; Federal Insecticide, Fungicide, and Rodenticide Act ;
Safe Drinking Water Act; Hazardous Materials Transporta-
tion Act; laws designated in Alaska Statutes Title 46;
and common law, including causes of action arising in.
tort.
D. "Gateway" means and refers to both Gateway Forest
Products, Inc., an Alaska corporation, and Gateway's
successors, heirs, and assigns.
E. "Hazardous Substances" means substances which constitute'
hazardous substances under the Comprehensive Environmen-
tal Response, Compensation Liability Act or under AS
46.03 - 822 ,
F. 11 Institutional Controls" means the Environmental Protec-
tion Easement and Declaration of Restrictive Covenants in
favor of the State of Alaska, Department of Natural
Resources, recorded on October 2 B, 1999, at Book 305,
page 772 in the Ketchikan Recording District and such
other measures, controls, limitations, prohibitions,
procedures, or protocols that the United States Environ-
mental Protection Agency ("EPA"), the Alaska Department
of Environmental Conservation {"DEC"} or the Alaska
Department of Natural Resources {11 DNS." ) requires in order
to maintain the integrity of a remedial or removal action
or prevent a release or threatened release of a Hazardous
Substance.
G. "Investigation or Investigatory"1 means actions to assess
the nature and extent of Hazardous Substances contamina-
tion , including sampling and other necessary activities,
H. "KPC" means and refers broadly to both Ketchikan Pulp
Company, a Washington corporation, and IPC's successors,
heirs, and assigns.
I. "Remediation" means actions to remove, clean up, treat,
or dispose of Hazardous Substances from the environment,
including but not limited to, actions which may be
necessary to prevent, minimize, or mitigate damage to the
public health or welfare or to the environment from a
release or threatened release of a Hazardous Substance.
J. "Ward Cove Area" means the water body commonly known as
Ward Cove including marine waters to the ordinary high
water mark and sediments underlying such waters, and also
means the surface and subsurface areas of those portions
of U.S. Surveys 1QS6, 1208, 1500, 1653, 1656, 1653, 17Q6,
1754, and 1862 lying seaward of the Worth Tongass
Highway, and the filled portions of ATS -1, including any
structures ox other improvements located thereon.
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K. "Ward Cove Consent Decree" means the consent decree with
the EPA and the U.S. Department of Justice entered in the
U.S. District Court for the District of Alaska: CERCLA
Remedial Design/Remedial Action Consent Decree, United
States vs. Gateway Forest Products, Inc., Ketchikan Pulp
Company, & Louisiana-Pacific Corporation, Case No, A00-
225" CV (JKS) ,
L. "Ward Cove Landfills" means the industrial landfill which
KPC owns and operates upon Tract 3004, Lot 2, Dawson
Point Subdivision, according to the plat thereof field
November 28, 2000 as Piat 2000-73.
II. FARCBLS TO WHICH THE COVENANTS SHALE. APPLY,
The covenants contained in this Easement shall apply to the
following parcels of real property ("Ward Cove Property"):
PARCEL NO. 1:
All of, ALASKA TIDELANDS SURVEY MO. 1 (CR 74S 90E) , according
to the unrecorded plat thereof, (mistakenly recorded in the
Juneau Recording District as Plat No. 292) , except Exhibit "C-
2" thereto, the parcel so excepted being more particularly
described as follows:
From U.S.L.M. No. 2 measure South 71°56' East 896,28 feet
to Corner M. C. 2 of 0. S. Survey #1508 identical with
Corner M. C. 1 of U. S, Survey #1653 and the point of
beginning, thence following the meander lines established
by and fronting U. S. Survey #1506: South 51°15! West
83.16 feet; South 7°00' East 66,66 feet; South 24°15'
East 65.34 feet; South 70 °0C' East 139.26 feet; North
60045' East 58.08 feet; South 45°00' East 45.54 feet;
Soutn 21°45' West 223.74 feet; South 23°45' East 29.70
feet; North 75°15' East 28.38 feet; North 41°30' East
203.28 feet; South 73°45' East 82.50 feet; South 84D30'
East 88.44 feet; South 6°45' East 66.56 feet; South
13°00' West 33.72 East; South 35°15' West 91.08 feet;
South 53015' West 68.64 feet; South 41Q30' West 121.44
feet; South 64°00' West 84.48 feet; South 49°15' West
106.92 feet; South ll°30' West 138,60 feet to Corner M.
C. 1 of U. S. Survey #1508 identical with Corner M. C. 1
of U. S. Survey #1208; thence following the meander lines
established by and fronting U. S. Survey #1208: South
14°00' West 158.40 feet; South 34a30' West 19.B0 feet;
South 17° 3 0' West 105.60 feet; South 53°45' West 46.20
feet; South 4°30* East 39.60 feet; South 23 °4b' West
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85.80 feet; South 71°45' West 39-60 feet; South SM5'
West 46.20 feet; North 85°45' West 59.40 feet; North
52°45' West 66.00 feet; South 64D45' West 3 9,60 feet ;
South 4 5 ° Q 0' West 39.60 feet; South 85Q30' West 39.60
feet; North 55°15' West 2S.40 feet; South 58000' West
39.60 feet; South 8°45' West 144.54 feet; South 1G°4S*
West 72.SO feet; South 3 °30' West 59.40 feet; South
3 6D15' West 66.00 feet; South 16°45' lest 39.60 feet;
South 7°00' East 69.30 feet to Corner M. C. 4 of U. S.
Survey #1208 identical with Corner M, C. 2 of U. S.
Survey #1655; thence following the meander lines estab-
lished by and fronting U.S. Survey #1655: South 24°00"
West 29.70 feet; South 30°15! West 130.02 feet South
2 3015' West 136.62 feet; South 9°00' West 89.10 feet;
South 8 °00' East 36.30 feet to Corner M. C. 1 of U. S.
Survey #1655 identical with Corner M. C. 1 of U. S.
Survey #1653; thence following the meander lines
established by and fronting U. S. Survey #1653; South
10°00' West 132.00 feet; South 30°15' West 36.96 feet;
North 79D45' West 64.02 feet; South 55°45' West 62.04
feet; South 18°30' West 30.94 feet; South 41a45' West
44.88 feet; South 32°45' West 96.36 feet; South 15D15'
East 4 8.18 feet; South 64 °30' West 60.72 feet; South
0Q 45' West 44.88 feet; South 25°00' West 12C.78 feet;
South 72D00' West 21.78 feet; North 5l°15' West 44.22
feet; South 81°15' West 45.86 feet; South 74D15' West
165.66 feet; South 30M5' West 211.06 feet to Corner M.
C. 2 of U. S. Survey #1653 identical with Corner M.C. 1
of U. S. Survey #1656; thence North 42°55' West 712.99
feet to a point identified as PT-1thence Worth 50°00'
East 1,011.33 feet to a point identified as PT-2; thence
North 22°00' East 1,674.54 feet to a point identified as
PT-3; thence North 50°00' East 580.76 feet to intersect
with the R.0.W. line on the North Tongass Highway; thence
South 2°2T West 76.51 feet to the point of beginning.
PARCEL NO. 2 :
Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H.E.S.)
according to the plat thereof filed August 14, 2000 as Plat
No. 2000-41.
PARCEL MO. 3:
That portion of U.S. Survey 1056, lying northerly of the
northerly boundary of North Tongass Highway, being adjacent to
U.S. Survey 2923 and comprised of 5,16 acres.
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PARCEL NO. 4:
That portion, of U.S. Survey 1862, more particularly described
as follows;
Beginning at U.S. Land Mark No. 2; thence North
32°27' West a distance of 155.5 feet to Corner- No,
1 of U.S. Survey 1862 and the true point of begin-
ning of the portion herein described; thence North
0°25' West a distance of 515 feet, more or less, to
a point on the South Right of Way line of Worth
Tongass Highway, which point is 50 feet from the
center line of said highway and at right angles to
Engineers Station 299+50; thence along that portion
of a spiral curve to the left whose chord bears
South 24°30' East a distance of 114.65 feet; thence
along the arc of a 527.46 foot radius curve the
long chord of which bears South 3 6°35f East a
distance of 126.14 feet; thence along a spiral
curve whose chord bears South 51321' East a dis-
tance of 210,05 feet; thence South 55°27' East a
distance of 315.97 feet; thence South 34°33' West a
distance of 50 feet; thence South 55°27' East a
distance of 137.00 feet; thence South 88°00' West a
distance of 535 feet more or less along Meander
Line No. 11 of U.S. Survey 1862; thence North
2 9 ° 3 0 ' West a distance of 155.50 feet along Meander
Line No. 12 of U.S. Survey IBS2 to Corner No. 1,
which is the point of beginning.
ALSO: That portion of U.S. Survey 1862 lying within the Horth
Tongass Highway Right of Way as created by a deed dated April
1, 1949 and recorded in Volume "W" of Deeds at Page 362,
Ketchikan Recording District, First Judicial District, State
of Alaska, and as conveyed to Ketchikan Pulp Company by
Quitclaim Deed recorded July 27, 13B8 in Book 158 at Page 508.
PARCEL HO, 5s
U.S. Survey 2090.
PARCEL HO. 6;
That certain portion of U.S. Survey 2923, more particularly
described as follows: Beginning at the northerly corner of the
Crawford Tract, otherwise known as Corner No. 2 of U.S. Survey
2923; thence South 55°45' Hast along the northeasterly
6
2MM02SS7-I
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boundary of the Crawford Tract a distance of 863.37 feec;
thence South B9Q33' West a distance of 709.81 feet, more or
less, to a point on the westerly boundary of the Crawford
Tract; thence Worth 0D 27' West along the westerly boundary of
the Crawford Tract a distance of 491.50 feet, more or less, to
the point of beginning.
III. COVENANTS.
The Borough and KPC, for good and sufficient consideration
received, do hereby covenant and declare that, with respect to the
properties listed in Section II. hereof, the following provisions
shall be covenants that run with and bind the Ward Cove Property
and the parties, and each parties' respective personal representa-
tives, heirs, successors and assigns as to the Ward Cove Property
or any interest therein obtained through any mechanism, including
but not limited to, conveyances, assignments, or foreclosures:
A. Touch and Concern.
The Ward Cove Covenants touch and concern the Ward Cove
Property, in that each and all of the Covenants directly benefit
the property, resolve regulatory issues which have limited
development and thereby increase its market value. The Ward Cove
Covenants are fully enforceable by the parties with respect to the
Ward Cove Property or any interest therein. If a party refuses to
acknowledge the applicability of the Ward Cove Covenants to such
party, any other party shall be entitled to enforce the terms of
this instrument in law and in equity.
B. Ward Cove Area.
1. The Borough covenants and agrees that it shall comply
with any Institutional Controls which are or may become applicable
to the Ward Cove Property, including those imposed through, or
under the Ward Cove Consent Decree, or otherwise.
2. The Borough covenants and agrees that it shall not,
through any activities or operations at or in the Ward Cove Area,
materially damage any cap or capping materials that may be applied
to sediments in the Ward Cove Area under the Ward Cove Consent
Decree. The Borough further covenants and agrees that if it
damages such cap, it will immediately report the relevant circum-
stances to EPA and KPC and restore the cap to a condition and to
specifications as directed by the EPA or by any governmental body
having primary regulatory jurisdiction over the work undertaken by
KPC under the Ward Cove Consent Decree, but the Borough and KPC
will be under no obligation to restore the cap until directed to do
so by the EPA or other governmental body having jurisdiction.
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3. The Borough's obligations, pursuant to Section 2 hereof,
extend to the activities and operations of its employees, agents,
contractors, invitees, licensees, representatives, permittees,
joint venturers, instrumentalities, port authorities, and any third
party contractually related, whether directly or indirectly.
4. Nothing in this Easement shall be interpreted to prohibit
KPC from exercising any legal rights it may have with respect to
matters arising under the Ward Cove Consent Decree.
5. KPC and the Borough agree to give the other party advance
written notice of any material excavation, digging or other similar
activities relating to the Ward Cove Property.
6. The Ward Cove Landfills are located within Lot 2, Tract
3004. ("Landfill Parcel"} and are operated pursuant to a permit
issued by the State of Alaska, Department of Environmental
Conservation ("DEC"}, Lot 1 of Tract 3004 surrounds the Landfill
Parcel, which KPC agreed to donate to the Borough only upon the
condition that use restrictions and other conditions would be
implemented in order to ensure that neither the Borough nor its
successors in interest would unreasonably interfere with the
operation and maintenance of the Ward Cove Landfills. To accom-
plish those objectives, KPC and the Borough covenant and agree as
follows;
a. The future use of Lot 1, Tract 3 0'04 by the Borough and.
its successors in interest shall be limited to commercial
activities of an industrial nature which are compatible
with operation in close proximity to an industrial
landfi11;
b. The Borough and its successors in interest shall take all
reasonable measures to protect against any interference
with operation of the Ward Cove Landfills, including
appropriate terracing of any rock extraction to preserve
subjacent support; and
c. The Borough hereby fully and finally releases KPC from
all liability arising from or in any way related to
operation and maintenance of the Ward Cove Landfills,
excepting only to the extent damages may occur from a
violation of, or failure to obtain, the DEC permit for
the landfills. This release extends to any and all
claims and liabilities, whether arising from negligence,
or other fault, or otherwise. The Borough shall require
each of its successors in interest, whether by lease,
deed, or otherwise, as a condition to acquisition of any
interest in or to Lot 1, Tract 3004, to execute the same
release in favor of KPC,
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C. Future Subdivision.
These Covenants shall not preclude subdivision of any
parcel of the Ward Cove Property; provided, however, that upon any
subdivision, replat, plat modification or other similar action, all
portions of the Ward Cove Property which previously were subject to
these Covenants, shall remain subject thereto; provided, however,
that the obligations imposed by these covenants shall be limited to
the parcel, area, or portion held by a party and shall not be
interpreted to create liability for other parcels or areas not held
by such party.
D. Further Assurances.
1. The parties covenant and agree both to adhere to and
comply with current Institutional Controls and to cooperate with
respect to the development and implementation of additional
Institutional Controls, which shall include the development of an
instrument or instruments to ensure that Institutional Controls
arising under the Ward Cove Consent Decree, or otherwise, will run
with the property and be enforceable against bona fide purchasers.
2, The parties covenant and agree that this Easement shall
govern and be binding with respect to, the acts and omissions of
each respective party's employees, agents, contractors, and any
third party contractually related, whether directly or indirectly,
to the respective party.
1, Term of Ward Cove Covenants.
Each and all of the Ward Cove Covenants, and all the burdens
and benefits thereof, shall run with the Ward Cove Property and
shall be binding on any person having any ownership interest in the
Ward Cove Property under the terms and conditions set iorth in the
Ward Cove Covenants for a period of twenty (20) years from the
Effective Date, after which time the Ward Cove Covenants shall be
automatically extended for successive periods of ten {10} years
each, unless an instrument properly signed by KPC, has been
recorded in the Ketchikan Recording District, First Judicial
District, State of Alaska, agreeing to terminate the Ward Cove
Covenants in whole or in part.
P. Termination of Eights and Obligations of Covenants
Through Transfer of Ownership Interest.
A party is relieved of its obligations to comply with the Ward
Cove Covenants imposed on the Ward Cove Property upon, and to the
extent, that a party transfers or no longer holds an interest in
the Ward Cove Property, except that liability or responsibility for
acts ox omissions occurring prior to transfer shall survive such
(I11IIIIIIII1IIIIIIIIII!
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transfer; provided, however, that nothing in this Easement shall
diminish or relieve the parties, or any successor or assign of the
parties from their respective obligations under the Agreement.
The Borough and KPC, together with each parties' respective
successors and assigns, are hereinafter referred to as the
"Parties."
IV, EASEMBHT,
A. Reservation of Easement.
1. The Parties acknowledge and agree that, upon the terras
and conditions set forth in this Easement, the Borough grants to
KPC an easement interest (the "Easement") in and to the following
properties (the "Easement Property") to allow KPC and its succes-
sors and assigns to undertake any activity contemplated by the
Agreement and by subsection III.B. hereof. It is the express
intent of Grantor and Grantee that the burden and benefit of this
Easement shall run with the land upon any conveyance of the Ward
Cove Property, during the term of this Easement, including any
extension thereof:
PARCEL NO, 1:
All of ALASKA TIDBLAHDS SURVEY NO. 1 (CR 74s 90S), according
to the unrecorded plat thereof (mistakenly recorded in the
Juneau Recording District as Plat No. 292), except Exhibit "C-
2" thereto, the parcel so excepted being more particularly
described as follows:
From U.S.L.M. No. 2 measure South 71°56' East 896.28 feet
to Corner M. C. 2 of D, S. Survey #1508 identical with
Corner M. C. 1 of U. S. Survey #1659 and the point of
beginning, thence following the meander lines established
by and fronting U. S, Survey #1508: South 51° 15' West
B3.16 feet; South 7°Q0' East 6S.66 feet; South 24° 15'
East 65.34 feet; South 70Q00' East 139.26 feet; North
S0°4S' East 58.08 feet; South 45Q0Q< East 45.54 feet;
South 21°45' West 223.74 feet; South 23°45* East 29.70
feet,* North 75°15' East 28.38 feet; North 41°3Q' East
203.28 feet; South 73°45' East 82.50 feet; South 84 °30'
East 88.44 feet; South 6 °45' East 66.66 feet; South
19°00' West 93.72 feet; South 35°IS' West 31.08 feet;
South 53°15' West 68.64 feet; South 41°3Q' West 121.44
feet; South 64°00' West 84.48 feet; South 49015' West
106.92 feet; South 11°30' West 138,GO feet to Corner M.
-------
C. 1 of II, S. Survey #15 08 identical with Corner M. C. 1
of U. S. Survey #12 08; thence follow! rig the meander lines
established by and fronting U. S, Survey #1208: South
14°00' West 158.40 feet; South 34°30' West 19.80 feet;
South 17°30' West 105.60 feet,* South 53°45' West 46.20
feet; South 4a30 ' East 39.60 feet; South 23 °45' West
85.80 feet; South 71°45' West 33.60 feet; South 6°15'
West 4 6.20 feet; North 85°45' West 59.40 feet; North
52°45' West SS.00 feet; South 64 °45' West 39.60 feet ;
South 45°00' West 3 9.60 feet; South 85°30' West 33.60
feet; North 5 5 ° 15 ' West 26.4 0 feet; South 58°00' West
39.60 feet; South 8°45' West 144.54 feet; South 16M5'
West 72.60 feet; South 3°30' West 59.40 feet; South
36 °15' West 66.00 feet; South 16°45' West 33.60 feet ;
South 7°00' East 69.30 feet to Corner M. C. 4 of U. S.
Survey #1208 identical with Corner M. C. 2 of U. S.
Survey #1655; thence following the meander lines estab-
lished by and fronting U.S. Survey #15 55: South 24D00'
West 29.70 feet; South 30°15' West 130.02 feet South
23 °15' West 136.62 feet; South 9°00' West 89.10 feet;
South 8°00' East 36.30 feet to Corner M. C. 1 of U. S.
Survey #1655 identical v;ith Corner M. C. 1 of U. S.
Survey #1653; thence following the meander lines
established by and fronting U, S. Survey #1653; South
10°00' West 132.00 feet; South 30°15' West 35.36 feet;
Morth 79°45' West 64.02 feet; South 55°45' West 62 .04
feet; South 18°30' West 38.94 feet; South 41°45' West
44.88 feet; South 32°45' West 36.36 feet; South 15°15'
East 48.18 feet; South 6 4 ° 3 0' West 50.72 feet; South
0 °4 5' West 44.SB feet; South 25°00' West 120.78 feet ;
South 72° 00' West 21.78 feet; North 51°15' West 44.22
feet; South 81°15' West 46.86 feet; South 74°15' West
165.56 feet; South 30°45' West 211.86 feet to Corner M.
C. 2 of LT. S. Survey #1653 identical with Corner M.C. 1
of U. S. Survey #165 6; thence Morth 4 2Q 5 5' West 712.93
feet to a point identified as PT-l; thence North 50°00'
East 1,011.33 feet to a point identified as PT - 2; thence
Morth 22°00' East 1,674.54 feet to a point identified as
PT-3; thence North 50°00' East 580.76 feet to intersect
with the R.O.W. line on the North Tongass Highway; thence
South 2 ° 27' West 76.51 feet to the point of beginning.
PARCEL NO. 2;
Lot 3, Gateway Subdivision, within U.S. Survey 1056 (H.E.S.)
according to the plat thereof filed August 14, 2000 as Plat
Mo. 2000-41.
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2004-012111-1
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PARCEL NO. 3;
That portion of U.S. Survey 1056, lying northerly of the
northerly boundary of North Tongass Highway, being adjacent to
U.S. Survey 2 923 and comprised of 5.16 acres.
PARCEL HQ, 4:
That portion of U.S. Survey 1862, more particularly described
as follows: Beginning at U.S. Land Mark No. 2; thence North
32°27' West a distance of 155.5 feet to Corner Mo, 1 of U.S.
Survey 1862 and the true point of beginning of the portion
herein described; thence North C025' West a distance of 515
feet, more or less, to a point on the South Right of Way line
of North Tongass Highway, which point is 50 feet from the
center line of said highway and at right angles to Engineers
Station 239+50; thence along that portion of a spiral curve to
the left whose chord bears South 24°30' last a distance of
114,65 feet; thence along the arc of a 527.46 foot radius
curve the long chord of which bears South 36°35' East a
distance of 126.14 feet; thence along a spiral curve whose
chord bears South 51 °21' East a distance of 210,05 feet ;
thence South 55°27' East a distance of 316.97 feet; thence
South 34°33' West a distance of 50 feet; thence South 55°27'
East a distance of 13 7.0 0 feet; thence South 8B°00' West a
distance of 535 feet more or less along Meander Line No. 11 of
U.S. Survey 1862; thence North 29°30' West a distance of
155.50 feet along Meander Line Ho. 12 of U.S. Survey 1B62 to
Corner No. 1, which is the point of beginning;
ALSO; That portion of U.S. Survey 18 62 lying with the North
Tongass Highway Right of Way as created by a deed dated April
1, 1943 and recorded in Volume "W" of Deeds at Page 362,
Ketchikan Recording District, First Judicial District, State
of Alaska, and as conveyed to Ketchikan Pulp Company by
Quitclaim. Deed recorded July 27, 1988 in Book 158 at Page 588.
PARCEL NO. 5:
U.S. Survey 2090.
PARCEL NO. 6:
That certain portion of U.S. Survey 2923, more particularly
described as follows; Beginning at the northerly corner of the
Crawford Tract, otherwise known as Corner No, 2 of U.S. Survey
12
2004-402887-0
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2923; thence South 55°45' East along the northeasterly
boundary of the Crawford Tract a distance of 863.37 feet;
thence South 83"33* West a distance of 709.81 feet, more or
less, to a point on the westerly boundary of the Crawford
Tract; thence North 0°27' West along the westerly boundary of
the Crawford Tract a distance of 431.50 feet, more or less, to
the point of beginning.
2. The Parties covenant and agree that KPC hereby is granted
an easement interest in and to the Easement Property set forth in
subsection A.l. hereof, consisting of a right of free access to and
across the Easement Property to allow KPC to undertake or observe
any sampling and Investigatory activities, Remediation activities,
and any reasonable actions necessary to support or implement
Investigatory and Remediation activities at the Easement Property,
KPC's right of access shall also include, without limitation, the
right to use the Easement Property to the extent reasonably
necessary for a staging area or otherwise to comply with Environ-
mental Laws and the directives or orders of governmental agencies
relating to the Easement Property.
3. KPC s right of access shall also include access through
and across all access easements which have been or hereafter are
established byr or reflected in, any plats of U.S. Survey 1056 or
ATS -1, whether those access easements are designated as private
access easements or otherwise.
4. KPC's access rights, as described herein, shall not
prevent the Borough Entities from constructing any buildings or
other improvements on the Borough Property. In that event, KPC
will exercise its access and staging rights in a manner which
will not unreasonably interfere with the Borough Entities' uses
or development of the properties.
B, Term.
The Easement shall become effective on the Effective Date and
shall have an initial term of twenty (20) years from die Effective
Date, after which time the Easement shall be automatically extended
for successive periods of ten (10) years each, unless an instrument
properly signed by KPC, has been recorded in the Ketchikan
Recording District, First Judicial District, State of Alaska,
agreeing to terminate the Easement in whole or in part.
C. Subdivision.
This Easement shall not preclude the subdivision of any
parcels of the Ward Cove Property, but upon any subdivision,
replat, plat modification, or other similar action, all portions of
the Ward Cove Property which previously were subject to this
Easement shall remain subject thereto.
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2004-002987-0
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V. EFFECTIVE DATE.
This Easement shall become effective ("Effective Date") on the
date of recordation, simultaneous with recordation of the Vacation
of Covenants and Easement releasing the same parcels
VI. LIBERAL CONSTRUCTION.
Any general rule of construction to the contrary, this
Easement shall be liberally construed in favor of effectuating the
Parties' desire to establish the Easement in favor of KPC and to
make the Ward. Cove Covenants run with, and apply to, the Ward Cove
Property and to make the Ward Cove Covenants binding upon any and
all successors and assigns of the Parties, If any provision of this
instrument is found to be ambiguous, an interpretation consistent
with the purpose of this instrument that would render the provision
valid shall be favored over any interpretation that would render it
invalid or unenforceable,
VII. DISPUTES.
The parties each irrevocably consent to the exclusive venue
and jurisdiction of any state or federal court located in the First
or Third Judicial Districts, State of Alaska, for the purposes of
any suit, action, or other proceeding of any type whatsoever
arising out of this Agreement or the subject matter hereof;
provided, however, that if jury trial is sought by any party, the
proceeding will instituted in a locale other than Ketchikan, To
the maximum extent permitted by applicable law, each party waives
and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding any claim that it
is not personally subject to the jurisdiction of the above named
courts; that the suit, action, or proceeding is brought in an
inconvenient forum; that the venue of the suit, action, or
proceeding is improper; or that this Agreement or the subject
matter hereof may not be enforced in or by such court. Each party
agrees that service of process may be made upon it wherever it can
be located or by certified mail directed to its address for notices
under this Agreement.
14
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2004-002987-0
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VIII. MISCELLANEOUS.
A. Notices.
All notices, requests, claims, demands and other communica-
tions given or made pursuant hereto shall be in writing (arid shall
be deemed to have been duly given or made upon receipt) by delivery
in person, by telecopy (with confirmation copy of such telecopied
material delivered in person or by registered or certified mail,
postage px-epaid, return receipt requested) or by registered or
certified mail (postage prepaid, return receipt requested} to the
respective party at the following addresses {or at such other
address for a party as shall be specified in a notice given in
accordance with this Section ¥111,A.):
1. if to IPC:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
Legal Department
80 5 S.W. Broadway, Suite 700
Portland, Oregon 97205
Attention; Christopher M. (Kit) Reyes, Esq.
Facsimile: (503) 821-5323
and:
Ketchikan Pulp Company
c/o Louisiana-Pacific Corporation
P.O. Box 4000-98
Hayden Lake, Idaho 83835-946 0
Attention; Chris Paulson
Facsimile; (208) 762-1S67
Physical Address: 13403 N. Government Way
with a copy to:
Ziegler Law Firm
3 07 Bawden Street
Ketchikan, Alaska 99301
Attention: John Peterson, Esq.
Facsimile: (907) 225-5513
2. if to the Borough:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Manager
Facsimile: (907]
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2014-082387-0
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with a copy to:
Ketchikan Gateway Borough
344 Front Street
Ketchikan, Alaska 99901
Attention: Borough Clerk
Facsimile; (907) 247-8439
B. Headings.
The descriptive headings contained in this Easement are for
convenience of reference only and shall not affect in any way the
meaning or interpretation of this Easement,
C. Severability.
If any provision of this Easement, or the application of any
provision to a person or circumstance, is found to be invalid,
illegal, or incapable of being enforced by any rule of law or
public policy, the remainder of the provisions of this Easement, or
the application of such provisions to persons or circumstances
other than those to which it is found to be invalid or unenforce-
able, as the case may be, shall not be affected thereby.
D. No Third-Party Beneficiaries.
This Easement is for the sole benefit of the Parties and their
respective successors and permitted assigns, and nothing herein,
express or implied, is intended to or shall confer upon any other
person or entity any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Easement.
E. Amendment; Waiver,
This Easement may not be amended or modified except by an
instrument in writing duly executed and recorded by the Parties.
Waiver of any term or condition of this Agreement shall only be
effective if in writing, duly executed by the Party to be bound
thereby, and shall not be construed as a waiver of any subsequent
breach or waiver of the same term or condition, or a waiver of any
other term or condition of this Easement.
F. Governing Law.
This Easement shall be governed by, and construed in accor-
dance with, the laws of the State of Alaska, applicable to
covenants and agreements affecting real property executed and to be
performed in that State.
NOTICE: THE INTERESTS CONVEYED HEREBY ARE SUBJECT TO Mi
ENVIRONMENTAL PROTECTION EASEMENT AND DECLARATION OF
IS of 11
2004-002187-0
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RESTRICTIVE COVENANTS DATED OCTOBER 28, 1999, RECORDED IN
THE EETCH1KMT RECORDING DISTRICT, FIRST JUDICIAL DIS-
TRICT, STATE OF ALASKA, ON OCTOBER 28, 1999 AT BOOK 305,
PAGE 772.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed as of the date first written above.
:ant Secretary
KETCHIKAN PULP-COMPANY
Chris Paulson.
President
KETCHIKAN GATEWAY BOROUGH
Clerk
STATE OF ALASKA )
: sa.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this (H day of rjuli-^ , 2004,
before me, the undersigned, a Notary Public in androrTftc State of
Alaska, duly commissioned and sworn as such, personally appeared
Roy A. Eckert and Harriet Edwards, to me known to be the Manager
and the Clerk of the Ketchikan Gateway Borough, a municipal
corporation established pui'suant to the laws of the State of Alaska
which executed the above and foregoing instrument; who on oath
stated that they were duly authorized to execute said instrument
and affix the Borough seal thereto on behalf of the Borough and
that the seal affixed thereto is the Borough seal thereof; arid who
17
III
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2004-002987-0
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acknowledged to me that the same was signed freely and voluntarily
on behalf of the Borough, for the uses and purposes therein
mentioned.
WITNESS my hand and seal the day and year last above written.
OFFICIAL SEAL
CMOTIltttffiONBN
f Bnwnwamffww
moo—.
Notary
My Commission Expires;_
spjsa.
STATE OF TdaJlD )
COUNTY OF &/rfltlOUL, )
THIS IS TO CERTIFY that on this lb^ day of UuJlL. , 2004,
before me, the undersigned, a notary public in and for the State of
ZL^OJ^IO , duly commissioned and sworn, personally appeared
Chris Paulson and mQUj# fa5 P- ml/MfSDD/ to me known to be the
President and A s s i stanr Sec re t a ry respectively of Ketchikan Pulp
Company, a Washington corporation, the corporation which executed
the above and foregoing instrument; who on oath stated that they
were duly authorized to execute said instrument on behalf of said
corporation and who acknowledged to me that they signed and. sealed
the same freely and voluntarily on behalf of said corporation for
the uses and purposes therein mentioned,
official seal the day and year in this
ritten.
_ C^odi .
Nota^^ubli c in~~a^a~Eor jl3j?kO.
My Commission expi res : (fp~
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Attachment 17
Executive Summary, 2007 Monitoring Report for Sediment Remediation in Ward Cove, Alaska
(April 2009)
-------
2007 Monitoring Report for
Sediment Remediation in
Ward Cove, Alaska
Prepared for
Ketchikan Pulp Company
9487 North Tongass Highway
P.O. Box 6600
Ketchikan, AK 99901
Prepared by
inte
411 1st Avenue S.
Suite 550
Seattle, WA 98104
April 2009
-------
2007 Monitoring Report
Sediment Remediation in Ward Cove, Alaska April 24, 2009
CONTENTS
LIST OF FIGURES iv
LIST OF TABLES vii
ACRONYMS AND ABBREVIATIONS ix
EXECUTIVE SUMMARY x
1 INTRODUCTION 1-1
2 SUMMARY OF THE OVERALL MONITORING PROGRAM 2-1
2.1 MONITORING OBJECTIVES 2-1
2.2 MONITORING APPROACH 2-2
2.3 MONITORING PROGRAM DESIGN 2-3
3 METHODS USED DURING THE 2007 MONITORING EVENT 3-1
3.1 FIELD METHODS 3-1
3.2 LABORATORY METHODS 3-1
4 MODIFICATIONS TO THE MONITORING PLAN 4-1
5 DATA ANALYSIS AND INTERPRETATION 5-1
6 RESULTS OF THE 2004 MONITORING EVENT 6-1
6.1 SEDIMENT CHEMISTRY 6-1
6.1.1 Chemicals of Concern 6-1
6.1.2 Conventional Analytes 6-4
6.1.3 Summary of Sediment Chemistry 6-6
6.2 TOXICITY TESTING 6-7
6.2.1 Spatial Patterns 6-7
6.2.2 Temporal Patterns 6-10
6.2.3 Evaluation of Sulfide Concentrations in Pore Water 6-11
6.2.4 Summary of Sediment Toxicity Evaluations 6-12
6.3 BENTHIC M AC ROIN V E RTE B R ATE COMMUNITIES 6-13
6.3.1 Overview of Spatial Patterns 6-13
6.3.2 Results of Statistical Comparisons 6-16
6.3.3 Patterns of Key Species 6-16
6.3.4 Comparisons of Benthic Macroinvertebrate Communities between
1992, 2004, and 2007 6-19
6.3.5 Multivariate Analysis of Benthic Macroinvertebrate Community Data 6-22
6.3.6 Evaluation of Tax a Richness at Individual Stations 6-24
6.3.7 Summary of Benthic Community Evaluations 6-25
Integral Consulting Inc.
ii
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2007 Monitoring Report
Sediment Remediation in Ward Cove, Alaska
April 24, 2009
7 EVALUATION OF REFERENCE AREAS 7-1
8 CONCLUSIONS AND RECOMMENDATIONS 8-1
9 REFERENCES 9-1
Appendix A. Data Collected during the 2007 Sampling Event
Appendix B. Quality Assurance Reports for Data Collected during the 2007 Sampling Event
Appendix C. Details of Statistical Analyses
Integral Consulting Inc.
iii
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2007 Monitoring Report
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April 24, 2009
EXECUTIVE SUIVflVfARY
This monitoring report has been prepared for Ketchikan Pulp Company in compliance with the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980
consent decree (November 2000), the Ward Cove remedial investigation and feasibility study
(RI/FS) (Exponent 1999), the record of decision (ROD) for the Marine Operable Unit of Ward
Cove (U.S. EPA 2000a), and the long-term monitoring and reporting plan for sediment
remediation in Ward Cove (LMRP) (Exponent 2001), which was approved by the U.S.
Environmental Protection Agency (EPA). The multiple lines of evidence used to evaluate
sediment quality in the Ward Cove area of concern (AOC) indicate that the remedial action
objectives (RAOs) have been achieved. The lines of evidence include quantitative and
qualitative evaluations of temporal and spatial trends in toxicity responses, benthic
macroi nvertebrate community characteristics, and supporting measurements of chemicals of
concern (CoCs) and conventional variables. These measurements have been conducted on AOC
sediments since remedial efforts were implemented in 2000/2001.
BACKGROUND
The RI/FS was conducted in Ward Cove from 1996 to 1999. Of the approximately 250 acres of
Ward Cove that were evaluated during the RI/FS, 80 acres were designated as an AOC where
remedial action was warranted (Exponent 1999).
Sediment concentrations of persistent chemicals that are toxic or that have the potential to
bioaccumulate in marine organisms (e.g., mercury, polychlorinated dibenzo-p-dioxin and
polychlorinated dibenzofuran) were low and did not pose unacceptable risks to human health,
fish, or wildlife (i.e., birds and mammals). However, potential risks to benthic
macroinvertebrates were predicted from three CoCs (i.e., ammonia, 4-methlyphenol, and
sulfide) based on results of sediment toxicity tests and synoptic measurements of those
chemicals. These CoCs are natural degradation products of pulp mill by-products, are
themselves non-persistent, and are readily oxidized in the natural environment. The cessation
of pulp mill activities in May 1997, the non-persistent nature of the CoCs, the physical
constraints of the site bathymetry and sediment characteristics, and the potential for natural
recovery were all considered during remedy selection.
Remedial action within the AOC was performed between October 2000 and February 2001.
Because the risks were limited to benthic macroi nverteb rate communities and the CoCs were
non-persistent, the remedy relied largely on monitored natural recovery and enhanced natural
recovery. Enhanced natural recovery using thin layer placement (TLP) with 6—12 in. of clean
sand was successfully implemented at approximately 27 acres within Ward Cove. Monitored
natural recovery was the preferred alternative for the remainder of the 80-acre AOC.
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Although three CoCs were identified in the RI/FS, only ammonia and 4-methylphenol were
selected in the ROD tor the long-term monitoring effort, and evaluations of both CoCs were
specified as being based on bulk sediment chemical measurements (i.e., as they were in the
RI/FS). Sulfide was not selected for the long-term monitoring effort in the ROD because
dissolved sulfide (i.e., the form of sulfide most likely to be toxic to benthic macroinvertebrates)
cannot be adequately characterized by bulk sediment chemistry measurements. In addition, it
was not considered practical, efficient, or ecologically relevant in the ROD to monitor sulfide in
pore water, given its high spatial and temporal variability.
REMEDIAL ACTION OBJECTIVES AND MONITORING STUDY DESIGN
EPA identified RAOs for Ward Cove in the ROD. Specifically, the response action was intended
to achieve the following RAOs:
• Reduce toxicity of surface sediments
• Enhance recolonization of surface sediments to support healthy marine benthic
macroinvertebrate communities with multiple taxonomic groups.
As stated in the ROD, monitoring data were evaluated using a weight-of-evidence approach to
determine whether consistent and acceptable progress has been made toward achieving the
RAOs, rather than strict triggers for additional actions. The weight-of-evidence approach is
recommended by EPA for sediment quality assessments throughout the United States as a part
of EPA's national sediment assessment programs, and is consistent with the most current
methods of sediment assessment recommended by national experts.
In using a we ight-o f-ev i d en ce approach to evaluate if RAOs have been achieved, EPA
considered all information relevant to whether benthic communities at a particular location are
recovering as expected. A weight-of-evidence approach is also considered appropriate for this
site because determining whether the benthic community is recovering at an acceptable rate is a
more sophisticated analysis than would be captured by strict numerical trigger values, such as
determining whether a thick cap has been breached.
The LMRP was designed to evaluate progress made in achieving the RAOs following
completion of remedial activities in Ward Cove in 2001. The LMRP specified that monitoring
would occur every three years in July until RAOs were achieved. The program was designed
to evaluate three major indicators of sediment quality: 1) sediment chemistry, 2) sediment
toxicity, and 3) benthic macroinvertebrate communities, with the central focus on toxicity and
macroinvertebrate communities, which directly relate to the RAOs. Although site-specific
sediment quality values were developed for ammonia and 4-methylphenol during the RI/FS to
help determine the boundaries of the AOC (Exponent 1999), these values were used in the long-
term monitoring effort only to help interpret the related biological results. These site-specific
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sediment quality values were not designed for use as RAOs, because ammonia and
4-methy phenol are non-persistent and readily oxidized in the natural environment.
To best represent the varying conditions in the 80-acre AOC, it was divided into seven benthic
strata based on water depth and the kind of remedial action taken: natural recovery (four
strata) or TLP (three strata). Each stratum had five to seven monitoring stations located within
it. At most stations, single samples were collected for sediment toxicity and benthic community
evaluations. Seven of the monitoring stations represented locations characterized for the RI/FS.
Five replicate laboratory toxicity tests were conducted for four of these seven RI/FS locations to
allow temporal comparisons of sediment toxicity responses to be made on a statistical basis.
Two reference area strata were designated within the cove, based on water depth and distance
from known sources of chemical contamination. Spatial comparisons were made by statistically
comparing the mean conditions in each AOC stratum with the conditions found in its respective
depth-specific reference area stratum.
The specific components of sediment quality used for the Ward Cove monitoring were as
follows:
• Sediment Chemistry—Each surface sediment sample (0-10 cm horizon) was analyzed
for the two CoCs (i.e., ammonia and 4-methy 1 phenol), to assist in the interpretation of
the sediment toxicity and benthic community results. Sediment samples were also
analyzed for selected conventional variables (i.e., grain size distribution, organic content,
and total solids) to also assist in the interpretation of the biological results.
• Sediment Toxicity—The potential toxicity of each su rface sediment sample was
evaluated using the 10-day am phi pod test based on Eohaustorius estuarius. This test is
commonly used to evaluate sediment toxicity of marine and estuarine sediments, and
has standardized and well-established test protocols. In addition, this test is consistent
with the test used to characterize sediment toxicity in Ward Cove for the RI/FS (i.e., the
10-day am phi pod test based on Rhepoxynius abronius). Although R. abronius was
originally used in the RI/FS, it was necessary to change the test species in 2004 to E.
estuarius, because of uncertainties involved with obtaining an adequate number of
healthy R. abronius for testing. Because these am phi pods have been documented to be
sensitive to chemical toxicity and are directly ex posed to sediment contaminants, they
provide an environmentally conservative assessment of the changes in sediment toxicity
following remediation in Ward Cove.
• Benthic Communities—The characteristics of benthic communities in various parts of
Ward Cove were directly evaluated by collecting and enumerating the organisms found
in surface sediment samples collected from the site. Benthic communities are commonly
used to assess sediment quality because these organisms are relatively stationary and
live in close association with the bottom sediments (U.S. EPA 1990). Sediments were
sieved (>1.0 mm), retained material was transferred to appropriate containers and fixed
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with buffered formalin, and organisms were transferred to the laboratory for taxonomic
analysis. Sediment samples were sorted with a minimum accuracy of 95 percent and
taxonomic identifications were made to the lowest taxonomic level practical by qualified
taxonomic experts. Quantitative evaluations of individuals and major taxa included
comparisons between the AOC strata (i.e., TLP and natural recovery strata) and
reference areas with respect to a variety of benthic metrics based on abundance,
richness, and Swartz' dominance index (SDI). Qualitative observations of key benthic
macroinvertebrate taxa were also made to determine whether the communities were
recolonizing the TLP and natural recovery areas consistent with the classical patterns
identified for disturbed benthic habitats.
As described in the LMRP, the long-term monitoring strategy for the Ward Cove AOC
implicitly recognized the limited degree of the risk posed by Ward Cove sediments (i.e., absence
of bioaccumulative chemicals; absence of risks to humans, fish, and wildlife) and the inherent
uncertainties in the rate of natural recovery. The LMRP adopted a flexible, adaptive risk
management strategy to interpret the monitoring data and determine appropriate actions. The
lines of evidence used to support this approach included the multiple measures of sediment
quality, and both qualitative and quantitative interpretation methods.
The long-term monitoring approach used for Ward Cove is consistent with the
recommendations of recent EPA guidance for addressing contaminated sediments at hazardous
waste sites (U.S. EPA 2005), which was not available when the LMRP was prepared in 2001.
The monitoring approach is consistent with the six-step process for developing and
implementing a monitoring plan (U.S. EPA 2004; see Highlight 8-3 of U.S. EPA 2005). In
addition, the monitoring approach is consistent with the remedy-specific monitoring
approaches recommended by U.S. EPA (2005) for both monitored natural recovery and in situ
capping or TLP. The monitoring data for Ward Cove were evaluated using a combination of
physical, chemical, and biological end points. U.S. EPA (2005) also emphasizes the use of
multiple lines of evidence for assessing natural recovery and achievement of RAOs. Finally,
U.S. EPA (2005) suggests that EPA project managers use an adaptive management approach
that involves re-evaluating site assumptions as new information is gathered.
MONITORING DATA INTERPRETATION
Monitoring data were evaluated using two types of analyses. Each is intended to address
different aspects of progress toward recovery of the benthic macroinvertebrate communities in
the Ward Cove AOC:
• Comparison of TLP and Natural Recovery Areas to Reference Areas —Allows
decisions to be made regarding recovery in TLP and natural recovery areas
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• Evaluation of Temporal Trends in TLP and Natural Recovery Areas —Allows progress
toward recovery to be evaluated.
Based on the results of the 2004 monitoring event (Exponent 2005), EPA determined that
monitoring at one of the four natural recovery areas identified in the ROD was no longer
necessary. That area was the shallow natural recovery area with thin organic deposits (i.e.,
Stratum 2c). Additional monitoring of Stratum 2c was not considered necessary because the
RAOs had been achieved — sediment toxicity was reduced and benthic recolonization was
enhanced such that Stratum 2c now supports healthy benthic communities with multiple
taxonomic groups. Stratum 2c is therefore not addressed in this 2007 monitoring report.
The progress toward recovery based on the 2007 monitoring data is summarized in the
following table and in the text below:
Summary of Recovery Status for Various Biological Indicators in Ward Cove Based on 2007 Data3
Stratum
Thin-Layer Placement
Natural Recovery
Indicator
1
2a
3a
2b
3b
4
Sediment Toxicity
J
J
J
J
J
J
Benthic Community Metrics''
100%
100%
100%
33%°
100%
100%
Abundance
Total abundance
J
J
J
-
J
J
Taxa abundance
Molluscs
J
J
J
-
J
J
Polychaetes
J
J
J
J
J
J
Arthropods
J
J
J
J
J
J
Richness
Total richness
J
J
J
-
J"
J
Taxa richness
Molluscs
J
J
J
-
r
J
Polychaetes
J
J
J
-
r
J
Arthropods
J
J
J
J
j
J
SDI
J
J
J
-
r
J
J = For sediment toxicity: Survival is greater than the 75 percent screening value specified in the LMRP.
For benthic metrics: Value is not significantly lower (P>0.05) than the respective mean reference value.
= Significantly lower (P<0.05) than the respective mean reference value.
" Sediment chemistry was analyzed, but not included in this table because it is not applicable to RAOs. Stratum 2c is not included
in this table because results of the 2004 monitoring event showed that this area had achieved the RAOs (see above text for further
explanation).
b Percentages indicate the number of benthic metrics that are not significantly lower (P>0.05) than their respective mean reference
values (note that for Stratum 3b, uncertainty exists for some benthic metrics due to low statistical power).
0 Recovery of benthic communities is progressing in this stratum (see text on p. xvii for explanation).
Low statistical power for benthic comparisons.
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Overall AOC
Sediment toxicity was not only reduced throughout the AOC in 2007, but exceeded the
screening value of 75 percent (as specified in the LMRP) in all AOC strata, indicating that the
RAO based on sediment toxicity has been achieved throughout the AOC. In 2004, mean
am phi pod survival in Stratum 2c also exceeded the screening value of 75 percent, indicating
that the RAO based on sediment toxicity had been achieved in that stratum, which, as described
previously, was considered recovered after the 2004 monitoring event. In addition, mean
survival for all TLP and natural recovery strata was not significantly lower (P>0.05) than the
reference values. Although statistical comparisons for Stratum 4 were affected by low statistical
power, the fact that mean survival for that stratum was greater than the screening value of
75 percent indicates that the RAO based on sediment toxicity has been achieved.
In addition to the above information, specific temporal patterns for the six strata sampled in
2007 for sediment toxicity can be summarized as follows:
• Values of mean am phi pod survival for all three TLP areas in 2007 were very high (i.e.,
92-95 percent) and comparable to the values found in 2004 (i.e., 93-96 percent). In the
natural recovery areas, values of mean am phi pod survival in 2007 (i.e., 80-96 percent)
generally were considerably higher than the values found in 2004 (i.e., 32-76 percent).
• For individual stations within the strata, am phi pod survival exceeded the screening
value of 75 percent at all 15 stations sampled in the TLP areas, which was consistent
with the 2004 results. In the natural recovery areas, am phi pod survival exceeded the
minimum acceptable value at 14 of the 17 stations sampled in 2007, compared with only
7 of the 17 stations sampled in 2004.
Remedial efforts have successfully enhanced recolonization of surface sediment to support
healthy marine benthic macroinvertebrate communities with multiple taxonomic groups
throughout most of the AOC. As discussed above, the RAO for benthic communities was
achieved in 2004 for Stratum 2c. Of the six strata sampled in 2007, community metrics were not
significantly lower (P -0.05) than reference values in the three TLP areas and two natural
recovery areas indicating that the RAO for benthic macroinvertebrate communities has been
achieved in most parts of the AOC. Benthic metrics at the remaining natural recovery area (i.e.,
Stratum 2b) were significantly lower (P<0.05) than reference values for the following metrics:
total abundance, total richness, polychaete richness, mollusc abundance, mollusc richness, and
SDL Stratum 2b is discussed in greater detail below.
In addition to the results described above for community metrics, a number of additional
qualitative and quantitative benthic analyses were conducted on the 2007 data, including
evaluations of the successional stages of key benthic species, temporal patterns in community
characteristics, multivariate analysis of benthic communities, and taxa richness at individual
stations. The results of those analyses are summarized below and show that, in general, diverse
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communities comprising multiple taxa now inhabit the three TLP areas and two of the three
natural recovery areas (i.e., Strata 3b and 4). The results of the additional benthic analyses can
be summarized as follows:
• Approximately 6,800 benthic macroinvertebrates from 130 taxa were sampled as part of
the 2007 sampling event, compared to the approximately 4,500 individuals from 117 taxa
that were sampled in 2004. The 2004 results for Stratum 2c were not included in these
comparisons, because that stratum was not evaluated in 2007. These values represent
increases of approximately 33 and 10 percent in the total numbers of individuals and
taxa over the 3-year period between monitoring events.
• The number of polychaete taxa and the relative abundance of polychaetes declined in
2007 compared to 2004, whereas the number of mollusc taxa and the relative abundance
of molluscs increased between the two sampling periods. This pattern continues the
trend of an increasing representation of molluscs in the benthic communities that was
first identified in 2004.
• The benthic communities in the TLP areas in 2007 continued to be characterized
primarily by species commonly found in areas where organic enrichment is declining, as
they were in 2004. These species include the polychaete Prionospio steenstrupi and the
bivalves Axinopsida serricata and Parvilucina tenuisculpta. Although benthic communities
in the three natural recovery areas were characterized primarily by species commonly
found in organically enriched areas, the relative abundance of the polychaete Capitella
capitata declined substantially, as the abundances of the polychaetes Nephtys cornuta and
Dorvillea annulata increased. The decline in the abundances of C. capitata is notable, as
this species complex is a classic indicator of organic enrichment throughout the world.
Coupled with the decline in nematodes (i.e., another classic indicator of organic
enrichment) that occurred between 1992 and 2004, the decline in C. capitata indicates that
conditions in the natural recovery areas have been continually improving over time.
• If C. capitata and nematodes are removed from the benthic communities sampled in
1992, 2004, and 2007, mean total abundance in 2004 (95 individuals per station) is nearly
identical to the value found in 1992 (100 individuals per station), and the value found in
2007 (250 individuals per station) is two and one-half times the 1992 value. These results
indicate that total abundances of benthic communities (exclusive of species characteristic
of high levels of organic enrichment) increased substantially between the 2004 and 2007
monitoring events.
• With respect to the number of benthic taxa that accounted for more than 5 percent of
total abundance at any station in the AOC, there were only seven such taxa in 1992. In
2004, the number of these taxa increased relatively modestly to 11 taxa, but by 2007, the
number increased substantially to 28 taxa. These results indicate that many more
species were becoming numerically important at various stations throughout the AOC
in 2007, which is an indication that conditions have improved in the AOC since 2004.
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• Results of multivariate analyses of the benthic macroinvertebrate data collected in Ward
Cove in 2007 showed that three distinct clusters or groups of stations were apparent,
with the natural recovery areas clustering with the reference areas and the TLP areas
clustering only with themselves. These results indicate that TLP in the cove has resulted
in benthic communities that are different from the communities found in the natural
recovery and reference areas. Given the other characteristics of these communities
described in this report, it can be concluded that TLP in the cove has resulted in
modifications of the communities such that they are now enhanced beyond the reference
conditions. In addition, although the natural recovery areas have not shown the same
degree of enhancement, they are now relatively similar to the reference conditions.
Stratum 2 b
Although six benthic community metrics for Stratum 2b were found to be significantly lower
(P<0.05) than reference values, mean am phi pod survival in this stratum in 2007 exceeded the
minimum acceptable value of 75 percent specified in the LRMP, indicating that this stratum has
fully recovered with respect to the RAO based on sediment toxicity. Additional lines of
evidence based on sediment toxicity, sediment chemistry, and benthic community species
composition also indicate that overall recovery of the stratum is occurring, including benthic
community recovery. These lines of evidence are described in greater detail in the main body of
this report, including the conclusions section.
The multiple lines of evidence for Stratum 2b indicate that this stratum has made substantial
advances in overall recovery. For example, sediment toxicity conditions in Stratum 2b have
fully recovered with respect to the RAO for sediment toxicity, and mean concentrations of both
CoCs (i.e., ammonia and 4-methylphenol) and total organic carbon (TOC) declined by 20 to 50
percent between 2004 and 2007. The patterns observed for individual benthic
macroinvertebrate taxa support the conclusion that benthic community recovery is progressing.
That is, the polychaete N. cornuta (a Successional Stage III species) has become a dominant
member of the benthic community in Stratum 2b (accounting for 41 percent of individuals in
2007 compared to less than 5 percent in 2004), whereas the relative abundance of the polychaete
C. capitata (a Successional Stage I species) has declined substantially in that stratum, such that
this species accounted for only 6 percent of individuals in 2007, compared to 93 percent of
individuals in 2004.
The weight of evidence described above for Stratum 2b indicates that the RAO for sediment
toxicity has been achieved, and that consistent and acceptable progress has been made towards
achieving the RAO for healthy benthic communities comprising multiple taxa. Because the
sediments in Stratum 2b are no longer toxic, benthic community recovery will continue in the
future. In addition, the CoC and TOC concentrations in Stratum 2b will likely continue to
decline, because the major source of organic loadings to Ward Cove has been removed, further
indicating that benthic community recovery will continue in the future. Therefore, based on
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the benthic succession patterns described in the general literature as well as the degree of
benthic community recovery that has already occurred in other parts of the Ward Cove AOC,
there is a weight of evidence that benthic community recovery will continue to proceed in
Stratum 2b.
From the standpoint of the overall Ward Cove AOC, Stratum 2b represents a relatively small
area (i.e., approximately 12 percent of the AOC). Therefore, it is unlikely that the slower
recovery observed in that stratum relative to the remainder of the AOC will have a substantial
impact on organisms at higher trophic levels that prey on benthic macroinvertebrates, such as
crabs and a number of demersal fish species. As noted in the ROD, a benefit of achieving the
RAOs in the Ward Cove AOC is that a healthy benthic macroinvertebrate community will
provide a diverse food source for organisms at higher trophic levels.
SUMMARY AND RECOMMENDATIONS
The RAOs have been achieved in Ward Cove. The results of the 2004 and 2007 monitoring
events demonstrate that environmental conditions throughout the Ward Cove AOC have
improved substantially since the RI/FS was conducted in 1996-1999. In addition, most
conditions showed continual improvement between 2004 and 2007. The TLP has been
successful in eliminating sediment toxicity and stimulating colonization of benthic
macroinvertebrate species such that diverse communities comprising multiple tax a now inhabit
most parts of the TLP areas, and exhibit enhanced characteristics beyond those of the reference
areas. In addition, recovery is proceeding in the natural recovery areas, such that all four areas
surpassed sediment toxicity screening levels and three of the four areas have achieved healthy
benthic communities with multiple taxonomic groups. The weight of evidence for the
remaining natural recovery area (i.e., Stratum 2b) indicates that, in addition to surpassing
sediment toxicity screening levels, substantial and acceptable progress has been made towards
achieving a healthy benthic community. There are numerous reasons to predict that
diversification of benthic communities in Stratum 2b will continue to proceed, because sediment
toxicity in that area has achieved the RAO, concentrations of TOC and the two CoCs declined
by 20 to 50 percent between 2004 and 2007, and the major sou rce of CoCs to the AOC has been
removed.
Based on the results of both the 2004 and 2007 monitoring events, it is concluded that TLP and
natural recovery have been successful remediation tools for the Ward Cove AOC. Sediment
toxicity has been reduced and benthic recolonization has been enhanced such that the overall
AOC now supports healthy benthic communities with multiple taxonomic groups. The RAOs
have been achieved and monitoring is no longer necessary.
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Attachment 18
Letter from Karen Keeley (EPA) to Phil Benning (KPC), dated May 7, 2009, regarding: EPA
Approval of 2007 Monitoring Report
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.^eDS%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue, Suite 900
Seattle, WA 98101-3140
OFFICE OF
ENVIRONMENTAL CLEANUP
May 7, 2009
Phil Benning
Ketchikan Pulp Company
P.O. Box 6600
Ketchikan, AK 99901
Barry Hogarty
TECS-AK
P.O. Box 6193
Ketchikan, AK 99901
Re: EPA Approval of 2007 Monitoring Report for Sediment Remediation in Ward Cove,
Alaska (April 2009), prepared for Ketchikan Pulp Company by Integral Consulting
Marine Operable Unit, Ketchikan Pulp Company (KPC) Site
Consent Decree No. A00-225 CV (JKS)
Dear Mr. Benning and Ms. Hogarty:
With this letter, the U.S. Environmental Protection Agency (EPA) approves the final
2007 Monitoring Report for Sediment Remediation in Ward Cove, Alaska (Integral Consulting
2009), submitted to EPA for the Marine Operable Unit at the KPC Site, pursuant to the Long-
term Monitoring and Reporting Plan for Sediment Remediation in Ward Cove (LMRP; Exponent
2001). With acceptance of this report, EPA also concurs that the Remedial Action Objectives
(RAOs) for the sediment remedy have been achieved and monitoring pursuant to the LMRP is no
longer necessary.
As you know, sediment remedial action was performed within the 80-acre Area of
Concern (AOC) in Ward Cove between October 2000 and February 2001. The sediment remedy
addressed risks to benthic macroinvertebrates from three chemicals of concern (i .e., ammonia, 4-
methylphenol, and sulfide). As documented in the Record of Decision (ROD; EPA 2000), EPA
had determined that the contaminated sediments were not toxic to human health or to birds and
mammals living in the Cove. The sediment remedial action relied largely on monitored natural
recovery and enhanced natural recovery. Enhanced natural recovery using thin layer placement
(TLP) with 6-12 inches of clean sand was successfully implemented at approximately 27 acres
within Ward Cove. Monitored natural recovery was the remedial alternative for the remainder of
the AOC. The first long-term monitoring effort occurred in Ward Cove in 2004, and the second
monitoring effort occurred in 2007.
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EPA identified RAOs for the sediment cleanup in the Record of Decision. Specifically,
the response action was intended to achieve the following RAOs:
• Reduce toxicity of surface sediments
• Enhance recolonization of surface sediments to support healthy marine benthic
macroinvertebrate communities with multiple taxonomic groups.
As stated in the ROD, monitoring data were evaluated using a weight-of-evidence
approach to determine whether consistent and acceptable progress was made toward achieving
the RAOs. The weight-of-evidence approach is recommended by EPA for sediment quality
assessments as part of EPA"s national sediment assessment programs, and is consistent with the
most current methods of sediment assessment recommended by national experts.
The multiple lines of evidence used to evaluate sediment quality in the Ward Cove AOC
indicate that the RAOs have been achieved. The lines of evidence include quantitative and
qualitative evaluations of temporal and spatial trends in toxicity responses (amphipod bioassays)
and benthic macroinvertebrate community characteristics (including statistical analyses
comparing benthic metrics between remediated and reference areas), as well as supporting
measurements of chemicals of concern and conventional variables (sediment chemistry).
In making this decision, EPA has considered the following information: site-specific
studies, including the 2004 and 2007 monitoring results from Ward Cove; site-specific decision
documents, including the ROD and the LMRP; EPA guidance on long-term monitoring
programs, including the Contaminated Sediment Remediation Guidance for Hazardous Waste
Sites; and technical support provided by EPA oversight contractors.
In consideration of other similar sites in Alaska, EPA evaluated the long-term monitoring
approach and site monitoring data for the Alaska Pulp Corporation (APC) pulp mill site in Sitka,
for which the Alaska Department of Environmental Conservation issued a ROD in 1999 (see
Technical Memorandum, December 19, 2008). Based on that review, EPA's monitoring plan
and decision-making approach is not inconsistent with the State's approach at the A PC pulp mill
site, and the environmental data set for Ward Cove is more comprehensive than that for the A PC
site.
Finally, in consideration of potential consistency issues with other EPA Superfund
sediment decisions, I contacted Steve Ells, EPA OSRTI Sediments Team Leader, and performed
a search on EPA's ROD database, to identify potential sediment sites that included both a RAO
for benthic infauna recovery and a long-term monitoring plan that required collection and
statistical analysis of benthic infaunal communities to assess the long-term effectiveness of the
remedial action in achieving the RAOs. Based on this work, only two RODs were identified that
meet both these criteria - the KPC Marine OU ROD and Region 10's Commencement
Bay/Nearshore Tideflats ROD, specifically for St. Paul Waterway. The decision-making
approach for these RODs was similar.
2
Printer on ft«eyefwf Psper
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As you know, five-year reviews will continue to be performed at the site. Section 121(c)
of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. § 9621, mandates that, no less often than every five years, EPA must review remedial
actions where hazardous substances, pollutants or contaminants remain in place to assure that
human health and the environment are being protected by the remedial action being
implemented. Pursuant to Paragraph 3 1 of Section VII (Remedy Review) of the Consent Decree,
EPA may request that KPC/L-P conduct any studies and investigations necessary in order to
permit EP A to conduct reviews of whether the remedial action and the institutional controls plan
are protective of human health and the environment.
EPA will post the 2007 monitoring report on the KPC web site, which is available at this
link: http://vosemite.epa. gov/rlO/cleanup.nsf/webpage/Alaska+Cleanup+Sites. A copy of the
report (hard copy and CD) will also be placed in the repository at the Ketchikan Library.
We appreciate your efforts in producing a high quality report. If you have any questions,
please contact me at or keelev.karen@epa.gov or 206-553-2141.
Sincerely,
Karen Keeley
EPA Project Manager
cc: Ed Carlson, Louisiana Pacific Corporation
Sheila Ecktnan, Unit Manager, EPA Office of Environmental Cleanup
Bill Janes, Alaska Department of Environmental Conservation
Lucinda Jacobs, Integral Consulting, Inc.
3
Printer on ft«eyefwf Psper
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Attachment 19
Environmental Easement, recorded August 6, 2001, between Ketchikan Pulp Company and State
of Alaska, Department of Natural Resources
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* * ¦*s~* *
iwi0329r«iSEi
IKVIIOIMENTAL EASEMENT
This Easement flicranater "bntnunenO is made by and between Ketctolm Pulp
Gonapaiiy, t WasMngfaB corporation (whose address is P.O. Box 6600, Ketchikan,
Ahab 99901), as granlor (herrifflaAer, with its successes and assigns, "'&antof% mi
fhe State of Alaska (whose address is State of Alaska, Depattment of Natural Resources,
Division of fining, Land and Water, Realty Services Section, 550 W. 7th Avenue, Suite '
1050A* Antihojagp, Alaska 99501-3579), as grantee (hereinafter, will its assip%
"Grantee"), for good raid valuable consideration.
• ¦
WHEREAS, Grantor is the owner of certain real property subject to Has
Instrument (hwimafter ll| !"Property") which is more partratUurly described below:
Lot 2, Tract3004 of the Dawson Point Subdivision, being a subdivision of .
U.S. Survey 1993, Lot 2B, Tract B, U-S- Survey 1923 and an Unnamed
portion of U.S. Survey 1923, sceoriiig to that plat of survey recorded as
Plat #2000-73 in tbe Ketchikan Recording District, Pint Judicial District,
State of Alaska,
WHEREAS, the Property received for disposal materials cxnistitnling ahazajdous
substwicc sailer tbe Compxdtamve Bmronmental Response, Cttmpensalioii, and
- ttability Act of 1980, as amended, 42 U.S.C. $§9601 & stq. ("CERCLA"), and 18 AAC
75; ^ _
WHEREAS, the Pmpertf was subject to a ietraoatioo. under 18 AAC 75.350
that groiBjrfwateT is not a current or potential fclwe drinking water source;
WI^BAS, in lea of a more onnpidhensive cleanup, the Alaska Department of
Biviroammtal C«s»atf6ti has detetmfaed, and Grantor has agreed that, the rccorriing
of this Instrument is necessary as an mstltutkmal control as part of the
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mo!0329f«e68T
, of titk, subject however to easements, rights, reservations, conditions, restrictions, art
Hnnfatioos of the iMfcfl States, and third parties, if any. of record, a nonexclusive
Basement over the Property of the nature and character and to the extent set forth below,
t
1. Restrictions:
Unless otherwise specifically aufrorized in writfcg by the Alaska Ikpartttent of
fenvtaronenfal Conservatioa or lib successor m tdmSnistotife function or assigns
(hereinafter, "ADBC), the Property is subject to the Mowing restrictions:
a Uses of the Property are limited to commercial or industrial use.
b. The Property shall not, at any time, be used, in whole or in part, for human
habitation, schooling of children, hospital care, child care or any ppwse necessitating
aroirad-the-dock residence by humans.
c. Drilling of drinking water weUs is prohibited.
d. Contois specified in the "Management Plan for Arsenic and lock and Soil/*
prepared by Exponent for Cfcaotor, dated July 1998, to limit »aciateMim of arsenic
from crashed rock shall be complied with.
c. No activities stall be aHcrtyed on (he Property that involve use of ground water,
„ - potential exposure of Waste Materials within the Property (other than, those «fiAttes
©Qiistitntstg,, or associated with, the abeady-m-pfacD leactale treatment system),. or
potential interference with the integrity of the landfill cap. Waste Materials shall mean (i)
any "hazardous substance" under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14) m
AS 46.03.125(5); (ii) any pollutant or contaminant under Section 101(33) of CERCLA,
42 U.S.C. § 9601(33); and (Hi), any "solid waste" tinder Section 1004(27) of the Resource
Conservation & Recovery Act ("RCRA1, 42 U.S.C. § 6903(27) or the State of Alaska
Soli Waste Management Regulations, IS AAC 60.
2. Required Activities:
Grantor shall' comply with the tenns and conditions of any ADEC permit
regiilaiiig itfviiis ©B tlje^>paty.
3. Right of Entry:
Dtuing reasonable.h«ai» after reasonable notice and subject to reasonable
security reqiiirenieiitfi, ADEC and its Attterized Representatives Aall have the right to
enter in, on, up®, over and across any portion of the Property to detemsie whether the
Provisions herein have been or aw being complied wifc This right of entry shall include
' ' , a right of access for, but not be limited to, conducting the following activities: ¦
Tagc 2 of 9
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foo«032.9p»tf68H
a. Monitoring the activities Grantor" is required to perform under the Consent
k Verifying any data or information submitted to the United States or the State of
Atoka.
c. Conducing investigations relating to contamination * or near the Property.
d. ObfaiiMigsMipia,
c. Assessing the need for, phaalng, or implementing additions] response actions
at or near the Property.
f. taphamfiiig the activities Grantor is required to perform tinder fee Consent
P««e pursuant to the conditions set forth in Paragraph (101) of the Consent Decree.
g. Impacting and copying records, operating logs, contracts, or other documents
maintained or generated by Grantor or. its agents ooosistetf with Section 3OTV (Access to
JnfiMafiem) of the Consent Decree.
it Assessing Grantor's tttfflgpliance wife the Corneal Decree,
i. Determining whether the Property U being used in a manner that is prohibited
•' of restricted, or that may need to be ptohftritcd or,restricted, by or pursuant to the Contest •
Decree..
Violation of, or reasonable suspicion of the violation of, any of tie Provision* herein shall
give ADBC and its Anftorized Rep«M«ives the right, privilege, ant license to enter
¦ m, on, upon, over, and across any portion of the Property and to investigate, abate,
mitigate or erne welt violation, at the expense of Grantor, provided written notice of the
violation is given to Grantor, describing what activity is necessary to investigate or
correct the violation and Grantor foils to cue the violation wtttaft a time specified in such
notice. Such actMties nictate but« not limited to the right to store, move, and remove
equipment and supplies; construct, operate, maintain, alter, repair and remove devices for
the Miomtoiing, attainment and treatment of contamination in soil, air and water;
Investigate and collect samples; excavate sat remove waste,, pollutants, iuaartouft
sabstaaces, soils, contaminated wast^ deposit iifMiitaminatei soil; and the
performance of any other activity which may be reasonably necessary and incident to
ADBC's investigation ad response. Any such entry by ADEC or its Authorized
Rnproottatives shall not be deemed a trespass or any other wrongful entry tar remaining
on the Properly, and Grantee shall not be subject to liability to Grantor for such entry ©r
any action taken to investigate, abate, nptigate or cure a violation. ADEC and its
Authorized Kxprcsentatives Ail" be considered invitees on the property and the Grantor
shall mate every reasonable effort, to inform ADEC znd its Authorized EfwMws of
tewis or hazafdtws Mas to prevent personal injury.
f«A0i imni ij
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io«0329w«683
4. Type* tf Wastes Disposed oa Property:
The Property received" virions types pf industrial wastes associated with m
•djacem pulping iaciSty, including woodwaste, fiyssh, recovery boiler ash, woodwaste
'boiler bottom a&, dredge material/and other miscellaneous soli wastes.
5. Additional Mortwrtfon Conctnusg tic Property;
The ash. landfill oa the Property, formerly regulated under ADEC Solid Wiate Permit
Mo. 9I13-BA005, and the woodwaste landfill oa the Property, formerly related under
ADEC Sobd Waste Permit No. 9213-BA-001, were closed in 1997. Ctosme of the two
landfills involved regrwftng the slopee to a nnrnpi 3:1 grade, installing drainage
imj»¥eni«is to maatgc run-«t and rtm-offof stomwatef, improving leacbate collectictti
and treatment, and covering the landfill with * engineered cap. The engineered cap
consists of, from bottom to top, a geotextile cushion, a (50-mil LLDPE geomembrane, a
geocdmposite drainage net, a drainage rock layer, and a vegetated topsoti surface layer. A
landfill gas venting system has also been installed..
improvements to iic Jeachate collection system include relining the letel»le
collection trench and replacing the piping that discharges leachate into the aeration basin.
The aestioo basin is lined with 60-mil LLDPE, and contains three surface aerators in the
aaafion side of the basin, which is separated ton the quiescent bssta by baflle curtain.
"* 4 The quiescent basin discharges into a passive treatment system which consists of a
constacted wetlands. At the present, the-cflfoieut from the passive treatment system
discharges to m. outfidl owned by Gateway Powl f roducts.
During closure of the two landfills in 1997* a new cdl, icsigttei to contain flyash,
wm constructed oil top of the woodwaste landfill. This landfill is regulated under ADEC
Solid Waste Permit No. 9713-BA001, Urn landfill is, fully fined aad mmmm a leachate
collection system that discharges into 4c tochate treatment system for fee other two
landfills. The engineered liner consists of a geotextile cushion, and a 60-rail LLDPE
geamembrane liner. This landfill is scheduled to be closed in 2001 after it is filled to
capacity with dredged material from Ward Cove.
6. General Pir#*fetei»:
a.. This Instrument is for the benefit of Grantee and conveys fee perpetual right to
Grantee, acting through ADEC and contractors, employees arid authorized representatives
acting on ADSC's behalf {hiatal, "Anttorized Representatives''), to enforce and
, implement the Prawsww toox. Nothing tarciD shall be deemed to ot*Cs in any third
party the right to enforce this Instrument.
r/AA0l 17SP.0! I]
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' ¦ ' . io«0329f«B8|
b. Mo right of access or use by the general public to any portion of the Property is
conveyed ©f authorized by this festnmjoat wx are any such esising rights affected by this
Jn&rumetiL
C. All real estate, lots, parcels, or portions thereof located within or on the
Property, and any lease, conveyance, or transfer covering or describing any part thereof or'
interest therein, shall be subject to the Provisions herein. By acceptance of such
conveyance or transfer, each lessee, transferee or grantee ami each of their heirs,
success©!*, transferees or assign agrees with Grantor mi each other to be hound by the
Provisions herein. .
d. Grantor hereby reserves unto itself, its successors, and assigns, any aid all
rights and privileges in mi to the use of the Property, including the right of access to the
Itoperty, which tre not contrary to the restrictions, rights and easement granted henan.
e. The Provisions herein shall ran wifit the land in perpetuity and shall be binding
upon Grantor.
£ MoHAag in- this Instrument shall relieve "Graatar ftom UabiKty for injuries
occmring on, or resulting from its activities on the Property, ft* which Grantor would
otherwise ondioarily be liable. Grantor shall be liable* for and shall indemnify and hold
Grantee harmless from liability for injuries and damage which arise because of its status
as Grantee. Grantor shall also indemnify Grantee for all costs, indudmg attorneyf fees,
- which arise from its st»6w as Grantee.,
g. Grantor fceriiy covenants to and wife Grantee that Grantor is UtwftiHy seized
of the suffam estate,, In fas ample, of the Property, has good and lawful right awl power
to sell and convey the sane,, that the same is free and clear of encumbrances, except as
specified herein and as of record, and thai Grantor will forever warrant and defend the
casement coiiwfed to Grantee by this Instrument against the claims and demands of all
pawns,
h. To the maximum extent permitted by law, the Provisions herein shall not be
subject to waver or abandonment due to non-eofoccemetit or violation of this Instrument
or any of the Provisions herein on alt or any portion of fee Property. No waiver of the
breach of any of the Provisions herein shall constitute a waiver of a subsequent breach of
the same Provision or any other Provision. No right of action shall accrue ft* or on
account of the fedhire of any person to exercise any right created by this Instrument nor
for imposing any Provision which may be unenforceable.
L This fostrumaot may be enforced by Grantors or Grantee in a court of law. The
interpretation and performance of this Instrnment shall be governed by the laws of
Alaska.
(MAOt 17b0 0111
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i6«0329mifi85
j- Upon violation of any of tie Provisions herein, Grantee may seek any writable
legal or equitable remedy to enforce this Instrument and shall be entitled to recover
damages for violations of the Provisions herein to the public or to the environment
protected herein under applicable federal or stale law.
t Any notice, demand, request, consent, approval or wmmmidfion that a party •
derires or is reqnircd to give another shall be in writing and shall either be served
personally or sent by font class mail, postage prepaid, addressed as follow*:
To .Grantor:
Ketchikan Palp Company
c/6 Louisiana-Pacific Catporalloa
Attn: Legal Department
111 S.W Fifth Avenue
Suite 4200
J^ttlaadi, Oregon 97204
To Grantee:
Department of Natural Resource*
Director, Division of Mining, Land and Wafer
Realty Services Section
550 W. 7th Avenue, Suite 1050A
Anchorage, Alaska 99501-3579
Wjfcacopyto:
Program Manager, Contaminated Sites Program
Alaska Department of Eitvironraaatal CoMervarion
Division of Spill Pwvemiou and Response
410 Willonghby Suite 303
Juneau, Ala*a 99801-1795
,1, The dBtcmiMtion that any Provision herein, or its ipplcaieo to any person or
cinamuttance, is invalid shall not affect any other Provision herein or its application and
the other Provisions herein shall remain in fbU tee aid effect.
m. Any gtamsi rule of construction to the contrary aotwiftsiaiiiIii& this
Instrument shall be construed so as to effect tihe purpose for which it was granted to
Grantee. Any amMgulties shall be resolved m a maimer that let accomplishes the
purpose of this Instrument'
n. Grantor shall notify ADEC at least ten (10) days before the effective date of
any conveyance, grant, gift, or other transfer, in whole or in part, of Grantor's interest in
the Property. Grantor shall include in any iistumelit conveying any interest in any
portion of the Property, including but not limited to deeds, leases and mortgages, a notice •
which is in wfcstantially lie following form:
{/AA0l17W>j0nj
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• NOTICE: Hie interest conveyed hereby is subject to an Easement
dated „ 2001, recorded in the public lend records on
~ 2001, in book , pap - .-of the
Kclcliik*ii"R«ofilng District, First Judicial District, State of Alaska,
in favor of, and enforceable by, the State of Alaska.
o. Grantor shall notify ADEC within ten (10) days prior to Grantor*? petitioning
for or filing of any document iratjating a rczoning of the Property under the Ketchikan
Gateway Borough zoning code or any successor code.
_ 7. * Termination:
This Instrument shall be vacated and shall be of oo further force and effect upon
the recordation in flue Ketchikan Recording District, First Judicial District, State of
Alaska by ADBC of a Notice of Vacation of Easement' ADEC.shaS execute and record a
Notice of Vacation of Easement at such time as it, la its sole discretion, determines that
the prohibited and required activities and other provisions of this Instrument are no longer
necessary for the protection of human health, safety, welfare and the environment The
Notice of Vacation of Basement shall be executed by ADEC and state that ADEC has
determined that the prohibited and required activities and other provisions of the
Easement ate no loafer necessary for the of human health, safety and welfare
and the environment and further state thai the Hftsemeut is hereby vacated. If Grantoc
" ** requests t tenrination of this Instrument, any costs incurred by ADEC in reviewing a
potential tennination shall be paid by Grantor. ,
IN WITNESS WHEREOF tenter aid Grantee have sei teir hand on the iates
written Mow. This Instrument is effective on the date of "tie last acknowledged
signature.
* s
{SIGNATURES CONTAINED ON THE FOLLOWING PAGET
f/AAfi! I7fii.il II
Page? of P
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i *'<¦ ' * ri •
>«cr687
Chris 1
Its:, President and General Manager
GBAMTOR*S ACKNOWLI
¦HiIWi'.P'"
ST
STATE OF OREGON
County of Motaoojali
)
)«•
)
mil IS TO CERTIFY flat on of ' , 2001,
before me, the undesigned, a Notary Public for the State of
and sworn as sudLjersonapy ^panwl MkM , to roe known and
known to be the ^Ilispgbo« who executed
the above mi fotegolag EASEMENT oo belalf of the Ketchikan Pulp Company, and
to we flat he signed the' same as -Hie
in the name of and for an! on behalf of tie
and voluntarily and by authority of Its
for the u»es and purposes therein- mentioned and on
oath stati
he was authorized to execute said instrument.
IN WITNESS WHEREOF, 1 have hereunto set my hand sud affixed my official
seal , the day and year first above written.
cwwimspm
§mmmm No.atsMa
(Signature)
B£k£A&
(Typed or printed name)
Notary Public for the State of Oregon
;at
, My commission expim"^^, 0*03
|t«ll-OW!/AAra RSMSI If
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£ » *
c • ' «
wi03E§pia68S.
ACCEPTANCE
Pursuant to AS 38.05,035(a)(12), the State- of Alaska tawsby accepts (his
EASEMENT oonveying to tie Stale of Alaska, its successors in administrative fraction
aid Maps, the interests in tbe Property described therein as an Institutional Control to be
managed aai enforced by ADEC pursuant to a Management Rj^rt Assigj&ment between .
ADEC and tbe Alaska frcpaitment of Natural Resources, to protect human health, safety,
and welfare, and the environment and to enhance or maintain water quality.
STATE OF ALASKA, DEPARTMENT
OF NATURAL RESOURCES
Director
of Mitring, Land and Water
Location ladez:
Section 4( * 1
Township 74 S., Ranged E.,
Copp«" Ri*«r Meridian, AJaska
Section 33,
Township 75 $„, RangeSO E.,
Copper River Meridian, Alaska
NO CHARGE- STATE BUSINESS
AFTER RECORDING RETURN TO:
Steven A. Daagherty
Assistant Atkaney GeneraJ
State of Alaska
Department of Law
Natural Resource* Section
P.O.Box 110300
Juneau, Alaska 99811
Mvwuwmmij . fttge 9 of 5
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Attachment 20
Environmental Easement and Declaration of Restrictive Covenants, recorded October 28, 1999,
between Ketchikan Pulp Company and State of Alaska, Department of Natural Resources
-------
BOOK 0305 PAKE 772
ENVIRONMENTAL PROTECTION EASEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
(1) This Environmental Protection Easement and Declaration of Restrictive Covenants
("Easement and Covenant") is made this^^'dav-of C--CQ , | 152^ by and between
Ketchikan Pulp Company ("Grantor"), having an address of P.O. Box 6600, Ketchikan,
Alaska, 99901, and the State of Alaska Department of Natural Resources ("Grantee") ,
having an address of 3601 "C" Street, Suite 960, Anchorage, Alaska 99503, for use by the
State of Alaska Department of Environmental Conservation (DEC), as represented by its
State of Alaska Department of Law.
WITNESSETH:
(2) WHEREAS, Grantor is the owner of a parcel of land and tide and submerged lands
located in the Ketchikan Gateway Borough, State of Alaska, more particularly described
on Exhibit A attached hereto and made a part hereof ("die Property"); and
(3) WHEREAS, the U.S. Environmental Protection Agency (EPA) and the State of
Alaska Department of Environmental Conservation (DEC) intend to select response
actions for the Property in Records of Decision pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601 et
seq., AS 46.03.822, and/or pursuant to a consent decree dated September 19, 1995, filed
under U.S. v. Ketchikan Pulp Company, No. A92-587-CV (D. Alaska);
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 1
-------
BOOK 0305page 773
(4) WHEREAS, the parties hereto agree (a) to grant a permanent right of access over
the Property to the Grantee for purposes of implementing,, facilitating and monitoring the
response actions; and (b) to impose on the Property use restrictions as covenants that will
run with the land for the purpose of protecting human health and the environment; and
(5) WHEREAS, Grantor wishes to cooperate fully with the Grantee and EPA in the
implementation of all response actions at the Property;
NOW, THEREFORE;
(6) Grant: Grantor, for good and sufficient consideration received, does hereby
covenant and declare that the Property shall be subject to the restrictions on use set forth
below, and does give, grant and convey to the Grantee, and its assigns, (a) a right to
enforce said use restrictions for the duration of this Easement and Covenant as established
in Paragraph (9) below, and (b) an environmental protection easement of the nature and
character, and for the purposes hereinafter set forth, with respect to the Property.
(7) Purpose: It is the purpose of this instrument to convey to the Grantee real property
rights, which will run with the land, to facilitate the remediation of past environmental
contamination and to protect human health and the environment by reducing the risk of
exposure to contaminants.
(8) Restrictions on use: The following covenants, conditions, and restrictions apply to
the use of the Property, run with the land, and are binding on the Grantor:
(a) Uses of the Property are limited to commercial or industrial use.
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 2
I '
-------
BOOK 0305PAGE 774
(b) The Property shall not, at any time, be used, in whole or in part, for human
habitation, schooling of children, hospital care, child care or any purpose
necessitating around-the-clock residence by humans.
(c) Drilling of drinking water wells is prohibited.
(d) Use of ground water for drinking water is prohibited.
(e) Controls specified in the "Management Plan for Arsenic and Rock and
Soil," prepared by Exponent for KPC, dated July 1998, to limit
concentrations of arsenic from crushed rock shall be complied with.
(f) Soils in the nearshore fill area or soils underneath paved areas or structures
at the pulp mill site that are exposed in the future, e.g., as the result of
excavation or demolition activities, shall be properly characterized and
managed in accordance with applicable disposal requirements,
(g) Projects or activities that materially damage the cap applied to tide and
submerged lands shall be required, at the direction of EPA, to redress such
impacts, e.g., a dredging project that may erode or displace large portions of
the cap will be required to repair or replace the cap.
(9) Modification of restrictions: The restrictions for the Property set forth in
Paragraphs (8)(a) through (f) above shall exist until 2099, or until concentrations of the
contaminants set forth in Exhibit B attached hereto no longer exceed site-specific, risk-
based, residential cleanup levels, whichever comes first. The restriction set forth in
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 3
-------
BOOK 0305 PAGE 775
Paragraph (8)(g) above for tide and submerged lands shall exist until 2020 or until EPA
determines that healthy benthic communities exist in the capped tide and submerged
lands, whichever comes earlier. The above restrictions may be terminated in whole or in
part, in writing, by the Grantee, If requested by the Grantor, such writing will be
executed by Grantee in recordable form.
(10) Environmental Protection Easement: Grantor hereby grants to the Grantee an
irrevocable and continuing right of access under the terms and conditions of this
instrument at all reasonable times to the Property for purposes of implementing the
following activities pursuant to CERCLA, AS 46.03.822, or the above-referenced consent
decree. Grantee, in its sole discretion, may relinquish this easement for right of access.
Grantee may designate EPA as its authorized representative for the following activities:
(a) Implementing response actions for the Property selected by EPA and/or
DEC in Records of Decision.
(b) Verifying any data or information submitted to EPA or the Grantee by the
Grantor.
(c) Verifying that no action is being taken on the Property in violation of the
terms of this instrument, CERCLA, AS 46.03.822, or the above-referenced
consent decree.
(d) Monitoring response actions on the Property including, without limitation,
sampling of air, water, sediments, soils, and specifically, without limitation,
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 4
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BOOK 0305PACE 776
obtaining split or duplicate samples.
(e) Conducting periodic reviews of any response action(s) selected by EPA
and/or DEC, including but not limited to, reviews required by applicable
statutes and/or regulations.
(!) Assessing the need for and implementing additional or new response
actions authorized under CERCLA, AS 46.03.822, or the above-referenced
consent decree.
assigns, all rights and privileges in and to the use of the Property which are not contrary
to the restrictions, rights and easements granted herein.
(12) QthsLAu.th.Qriti.es.. Nothing in this document shall limit or otherwise affect the
State of Alaska's or EPA's rights of entry and access or their authority to take response
actions under CERCLA, the National Contingency Plan (NCP), or other federal or state
law.
(13) No EublicAccess and Use: No right of access or use by the general public to any
portion of the Property is conveyed or authorized by this instrument nor are any such
existing rights affected by this instrument.
(14) Notice requirement: Grantor agrees to include in any instrument conveying any
interest in any portion of the Property, including but not limited to deeds, leases and
mortgages, a notice which is in substantially the following form:
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 5
(ID
Grantor hereby reserves unto itself, its successors, and
-------
BQOX 0305 PACE 777
NOTICE.- THE INTEREST CONVEYED HEREBY IS SUBJECT TO
AN ENVIRONMENTAL PROTECTION EASEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS, DATED
19 , RECORDED IN THE KETCHIKAN RECORDING
DISTRICT, FIRST JUDICIAL DISTRICT, STATE OF ALASKA, ON .
, 19 , IN BOOK » PAGE THAT IS IN FAVOR OF,
AND ENFORCEABLE BY, THE STATE OF ALASKA.
Within thirty (30) days of the date any such instrument of conveyance is executed,
Grantor must provide Grantee with a certified true copy of said instrument and, if it has
been recorded in the public land records, its recording reference.
(15) Adrainistrativ.e jurisdiction: The interests conveyed to the State of AJaska by this
instrument are to its Department ofNatural Resources, for administration by its
Department of Environmental Conservation,
(16) Enforcement: The Grantee shall be entitled to enforce the terms of this instrument
by resort to specific performance or legal process without regard to the existence or
nonexistence of any dominant estate. Grantee or its authorized representative shall be
entitled to enforce the rights of access set forth in Paragraph (10) above. All remedies
available hereunder shall be in addition to any and all other remedies at law or in equity,
including CERCLA and AS 46.03.822. Enforcement of the terms of this instrument shall
be at the discretion of the Grantee; any forbearance, delay or omission to exercise its
rights under this instrument in the event of a breach of any term of this instrument shall
not be deemed to be a waiver by the Grantee of such term or of any subsequent breach of
the same or any other term, or of any of the rights of the Grantee under this instrument.
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 6
-------
« 0305r«778
(17) Damages: Grantee shall be entitled to recover damages for violations of the terms
of this instrument.
(18)
i: Grantor hereby waives any defense of laches, estoppel,
or prescription.
(19) Notices: Unless and until changed by Grantor or Grantee, any notice, demand,
request, consent, approval, or communication that either party desires or is required to
give to the other shall be in writing and shall either be served personally or sent by first
class mail, postage prepaid, addressed as follows:
To Grantor;
Ketchikan Pulp Company
Attn: President and General
Manager
c/o Louisiana-Pacific Corp.
111 SW 5th Avenue
Portland, Oregon 97204
(20) General provisions:
(a)
To Grantee:
State of Alaska
Department of Natural Resources '
Division of Mining, Land and Water
Realty Services Section
3601 "C" Street, Suite 960
Anchorage, Alaska 99503
AND
State of Alaska
Department of Environmental Conservation
Spill Prevention & Response
410 Willoughby Avenue, Suite 105
Juneau, Alaska 99801 -1795
The interpretation and performance of this instrument shall
be governed by the laws of the United States and the State of Alaska.
(b) Liberal construction: Any general rule of construction to the contrary
Environmental Protection Easement and
Declaration of Restrictive Covenants — Page 7
-------
BOOK
0305^779
notwithstanding, this instrument shall be liberally construed in favor of the
Grant of this instrument to effect the purpose of this instrument and policy
and purpose of CERCLA, the above-referenced consent decree, and
applicable state law. If any provision of this instrument is found to be
ambiguous, an interpretation consistent with the purpose of this instrument
that would render the provision valid shall be favored over any
interpretation that would render it invalid.
(c) Severability: If any provision of this instrument, or the application of it to
any person or circumstance, is found to be invalid, the remainder of the
provisions of this instrument, or the application of such provisions to
persons or circumstances other than those to which it is found to be invalid,
as the case may be, shall not be affected thereby.
(d) EntimAgrsemenl:; This instrument sets forth the entire agreement of the
parties with respect to rights and restrictions created hereby, and supersedes
all prior discussions, negotiations, understandings, or agreements relating
thereto, all of which are merged herein.
(e) No Forfeiture: Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
(f) Successors: The covenants, terms, conditions, and restrictions of this
instrument shall be binding upon, and inure to the benefit of, the parties
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page S
-------
book 0305 PACE 78G
hereto and their respective personal representatives, heirs, successors, and
assigns and shall continue as a servitude held by Grantee in gross without
regard to the existence or absence of privity of estate with Grantor or its
successors or assigns, and shall run with the Property for the duration of this
Easement and Covenant as established in Paragraph (9) above. The term
"Grantor", wherever used herein, and any pronouns used in place thereof,
shall include the persons and/or entities named at the beginning of this
document, identified as "Grantor" and their personal representatives, heirs,
successors, and assigns. The term "Grantee", wherever used herein, and
any pronouns used in place thereof, shall include the persons and/or entities
named at the beginning of this document, identified as "Grantee" and their
personal representatives, heirs, successors, and assigns. The rights of the
Grantor under this instrument are freely assignable. The rights of the
Grantee under this instrument are freely assignable to governmental bodies,
subject to the notice provisions hereof. The term "EPA" shall include any
successor agencies of EPA.
(g) Termination of Rights and Obligations: Grantor's rights and obligations
under this instrument terminate upon transfer of the party's interest in the
Easement or Property, except that liability for acts or omissions occurring
prior to transfer shall survive transfer.
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 9
-------
book 0305 PAGE 781
(h) Captions: The captions in this instrument have been'inserted solely for
convenience of reference and are not a part of this instrument and shall have
no effect upon construction or interpretation.
(i) Counterparts: The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by both parties; each
counterpart shall be deemed an original instrument as against any party who
has signed it In the event of any disparity between the counterparts
produced, the recorded counterpart shall be controlling.
TO HAVE AND TO HOLD unto the State of Alaska and its assigns
forever.
Environmental Protection Easement and
Declaration of Restrictive Covenants — Page 10
-------
book 0305p« 782
IN WITNESS WHEREOF, Grantor has caused this Agreement to be signed
jig. President & General Manager
Ketchikan Pulp Company
STATE OF ALASKA )
: ss
FIRST JUDICIAL DISTRICT )
,1^ Ht+ck,'jc*""
THIS IS TO CERTIFY that on this3£ day of Q C.-1 . , 1999, at-jmcau,
Alaska, before me, the undersigned, a Notary Public in and for the State of Alaska, duly
commissioned and sworn, personally appeared CVs r. s fica'- known lo
me and known to me to be the person he represents himself to be, and the same identical
person who executed the above and foregoing document regarding an Environmental
Protection Easement and Declaration of Restrictive Covenants, and who acknowledged to
me that he executed the same freely and voluntarily for the purposes and uses herein
mentioned.
WITNESS my hand and official seal the day, month and year in this
certificate first written above.
/-
.r t«*
Ar'fa'iz C-
'¦>, 4 .
% l _ ¦ *» *
••• '•-.?/
Notary Public, State of Alaska
My Commission Expires: -N-
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 11
-------
19 92..
BOCX 0305 PACE 783
This easement and declaration is accepted this ^ day of
STATE OF ALASKA DEPARTMENT
OF NATURAL RESOURCES
' • 'j r v
By". { *V /-.i '¦ r • J)' I .¦> • I
C" 7"*" /, J /„.
r ' " • " / W-r.
— —~f
STATE OF ALASKA }
:SS
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on thisi'/day of^i'f , 1999, before me, the
undersigned, a Notary Public in and for the.Sjate ofAlaska, duly commissioned and
sworn as^such, personally appeared t'/7/ .-/.known to me and to me known to be
the-^v(i.y.>; • T and he/she acknowledged to me that he/she signed as
accepting the foregoing Environmental Protection Easement and Declaration of
Restrictive Covenants, granting to the State of Alaska, those lands described therein, and
he/she executed the foregoing instrument freely and voluntarily,
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal, the day and year first written above,
': '.(^.EAL7) r" 7 M-rt. i /¦'. f i 7 u -¦) ->•
sCj Notary Public in and for the State ot Alaska
My commission expires ">/• * 'S/0 /
n v
My commission expires ">/
:'*"AFT'EK'reCORDING PLEASE RETURN ORIGINALS TO:
Carol Shobe, Chief
Realty Services Section
State of Alaska, Department of Natural Resources
Division of Mining, Land and Water
3601 "C Street, Suite960
Anchorage Alaska 99503
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 12
-------
Location Index:
Sections 33 and 34, T. 74 S., R 90 E., CRM
Sections 3 and 4, T. 75 S., 90 E„, CRM
STATE BUSINESS, NO CHARGE
M:\KPOSUPERFUN\FINAL-lC.wpd
Environmental Protection Easement and
Declaration of Restrictive Covenants - Page 13
-------
book 0305pwe 785
EXHIBIT A
To The Environmental Protection Easement
And Declaration of Restrictive Covenants
Description, of "the Property"
PARCEL NO. X:
ALASKA TIDELANDS SURVEY NO. 1 (CR 74S 90E), according to the
recorded plat thereof, (mistakenly recorded in the Juneau
Recording District as Plat No." 292), Ketchikan Recording
District, First Judicial District, State of Alaska,-
Excepting therefrom; That portion thereof taken by the
State of Alaska, Department of Transportation and Public
Facilities by that certain Declaration of Taking (filed
under Ketchikan Superior Court Case No. IKE-87-444 CI)
recorded May 28, 1987 in Book 149 at Page S25.
PARCEL NO. 2:
U.S." Survey 1056, accepted by the General Land Office, in
Juneau, Alaska on January 24, 1919, and located within the
Ketchikan Recording District, First Judicial District, State
of Alaska;
Excepting therefrom; Those portions of U.S.Survey 1056
situated upland (North) of the north Right-of-way line of
the North Tongass Highway;
Excepting therefrom: That certain portion thereof conveyed
to Eugene Wacker and Lillian Wacker, his wife by Warranty
Deed recorded January 27, 1950 in Volume "W" of Deeds at
Page 614.;
Also excepting therefrom; That certain portion conveyed to
The United States of America by Right-of-Way Deed recorded
April 28, 194 9 in Volume "W" of Deeds at Page 3 97.
PARCEL NO. 13i
Lots 1-7, inclusive, Block 1, "Lots 1-6, inclusive, Block 2,
Lots 1-4, inclusive, Block 3 and Lots 1-16, inclusive Block
Environmental Protection Easement
and Declaration 'of Restrictive Covenants
Exhibit A
Page 1 of 3
-------
ioo* 0305page 786
4, and the Unsubdivided Remainder, according to the
subdivision plat of U.S. Survey 1754 recorded March 8, 1956
in Volume 1 of Plats at Packet 20, Ketchikan Recording
District, First Judicial District, State of Alaska;
Excepting therefrom-. Those portions of U.S.Survey 1754
situated upland (North) of the North Tongass Highway.
PARCEL NO, 15*.
That portion of U.S. Survey 1862, -according to the plat of
survey approved by the Department of the Interior, General
Land Office in Washington, D.C., on January 20, 1931 and
located within the Ketchikan Recording District, First
Judicial District, State of Alaska, more particularly
described as follows: Beginning at U.S. Location Monument
No. 2; thence North 32 degrees 2 7 minutes West a distance of
155.5 feet to Corner No. 1 of U.S. Survey 1862 and the true
point of beginning of the portion herein described; thence
North 0 degrees 25 minutes West a distance of 515 feet, more
or less, to a point on the South Right of Way line of North
Tongass Highway, which point is 50 feet from the center line
of said highway and at right angles to Engineers Station
299+50; thence along that portion of a spiral curve to the
left whose chord bears South 24 degrees 30 minutes East a
distance of 114.65 feet; thence along the arc of a 527.46
foot radius curve the long chord of which bears South 36
degrees 35 minutes East a distance of 126.14 feet; thence
along a spiral curve whose chord bears South 51 degrees 21
minutes East a distance of 210.05 feet; thence South 55
degrees 27 minutes East a distance of 316.97 feet; thence
South 34 degrees 33 minutes West a distance of 50 feet;
thence South 55 degrees 27 minutes East a distance of 137.00
feet; thence South 88 degrees 00 minutes West a distance of
535 feet more or less along Meander Line No. 11 of U.S.
survey 1862; thence North 29 degrees 30 minutes West a
distance of 155.50 feet along Meander Line No. 12 of U.S.
Survey 18 62 to Corner No. 1, which is the point of
beginning;
ALSO: That portion of U.S. Survey 1862 lying with the North
Tongass Highway Right of Way as created by a deed dated
April 1, 1949 and recorded in Volume "W" of Deeds at Page
362, Ketchikan Recording District, First Judicial District,
Environmental Protection Easement
and Declaration of Restrictive Covenants
Exhibit A
Page 2 of 3
-------
bock 0305we 787
State of Alaska, and as conveyed to Ketchikan Pulp Company
by Quitclaim Deed recorded July 27, 1988 in Book 158 at Page
588 .
Excepting therefrom: Those portions of U.S.Survey 1862
situated upland (north) of the north Right-of-way line of
the North Tongass Highway.
Environmental Protection Easement
and Declaration of Restrictive Covenants
Exhibit A
Page 3 of 3
-------
^ 0305m 788
Exhibit B to Environmental Protection Easement
and Declaration of Restrictive Covenants
Contaminants of Concern
Arsenic
Dioxin
Lead
Petroleum
Polycyclic aromatic hydrocarbons (benz(a)anthracene, benzo(b)fluroanthene,
benzo(a)pyrene, and dibenz(a,h)anthracene)
Polychlorinated biphenyls
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Declaration of Restrictive Covenants - Exhibit B ^
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-------
Attachment 21
Email from Kirk Miller (ADOT&PF) to EPA (Karen Keeley), dated October 23, 2014, regarding:
Submerged land ownership and Letter from Reuben Yost (ADOT&PF) to EPA, dated June 10, 2010,
regarding Project 68704 KTN Lay-up Berth & Mooring Structures
-------
Keele^
Thursday, October 23, 2014 3:50 PM
Keeley, Karen
Gendron, Jane D (DOT); Hwang, Grace; Amy Briggs (amyb@kgbak.us)
RE: Ward Cove
Warranty Deed ADOT.pdf; Figure 05 Property Ownership.pdf
Karen
Attached is a copy of the warranty deed for the tract of land that DOT purchased from KGB. I also attached a property
ownership figure (not an official survey ownership Plat but clearly shows the various properties).
There are a host of stipulations and referenced documents in the warranty deed (pertaining to the Consent Decree and
other environmental agreements between EPA and KGB) that I do not have immediate access to. What else do you
need? This deed shows that we own this tract of property - which includes the submerged tidelands and is subject to
the various environmental and other commitments made previously.
The dredging work at Bolles Ledge is within submerged tidelands owned by PSSA (David Spokely). At this juncture, we
contemplate seeking a legal agreement with PSSA to conduct this work on their property (temporary construction
easement) but will not be seeking ownership or transfer of title in any form to DOT. PSSA will continue to own the Bolles
Ledge region and is in general agreement (by verbal communication) to allow it to be dredged. Ship traffic of any form
will continue to traverse thru the PSSA property - sort of subject to maritime navigational servitude type laws.
Give me a call at 907-465-1215.
From: Keeley, Karen [mailto:Keeley.Karen@epa.gov]
Sent: Thursday, October 23, 2014 2:29 PM
To: Miller, Kirk D (DOT)
Cc: Gendron, Jane D (DOT); Hwang, Grace
Subject: RE: Ward Cove
Been awfully quiet....were you able to find the other documents showing ownership by ADOT?
Karen Keeley | Superfund Remedial Project Manager
U.S. Environmental Protection Agency | Region 10
Office /ironmental Cleanup
1200 6th Avenue, Suite 900, EL ittle, WA 98101
p: 206.553.2141
From: Miller, Kirk D (DOT) [mailto:kirk.miller@alaska.eov1
Sent: Monday, October 20, 2014 10:33 AM
To: Keeley, Karen
Cc: Gendron, Jane D (DOT); Hwang, Grace
Subject: Re: Ward Cove
Kirk
l
-------
We will be seeking a legal ROW agreement with Spokely to conduct the Bolles Ledge work. Other areas of dredging are
within the AMHS property. Not sure what you mean. We own the tidelands within the DOT property.
(b) (6) . I will call you tomorrow.
Sent from my iPhone
On Oct 20, 2014, at 9:26 AM, "Keeley, Karen" wrote:
So where is the paperwork showing that Alaska DOT owns the bottom sediments in
the Cove? i.e., the area that you are going to dredge?
Karen Keeley | Superfund Remedial Project Manager
U.S. Environmental Protection Agency | Region 10
Offic vironmental Cleanup
1200 6th Avenue, Suite 900, El attie, WA 98101
p; 2ii.553.214l
From: Miller, Kirk D (DOT) [mailto:kirk.miller@alaska.gov1
Sent: Monday, October 20, 2014 10:20 AM
To: Keeley, Karen
Cc: Gendron, Jane D (DOT); Hwang, Grace
Subject: Re: Ward Cove
This is a company owned by David Spokley. Not DOT. KGB sold most of the pulp mill site to them.
Sent from my iPhone
On Oct 20, 2014, at 9:16 AM, "Keeley, Karen" wrote:
Who is Power Systems & Supplies of Alaska? Is this ADOT?
Karen Keeley | Superfund Remedial Project Manager
U.S. Environmental Protection Agency | Region 10
Offic vironmental Cleanup
i200 6th Avenue, Suite 900, El attie, WA 98101
p; 2ii.553.214i
From: Miller, Kirk D (DOT) [mailto:kirk.miller@alaska.eov1
Sent: Thursday, October 16, 2014 5:39 PM
To: Keeley, Karen
Subject: RE: Ward Cove
Karen,
Attached are notice letters from KGB to EPA for the sale of Ward Cove property to PSSA.
KGB staff has indicated that they provided notification to EPA as well for our property
sale and are currently looking for such notice. Also attached is our warranty deed for the
KGB to ADOT property sale.
2
-------
Kirk Miller, PE
Design Group Chief
From: Gendron, Jane D (DOT)
Sent: Thursday, October 16, 2014 3:12 PM
To: Keeley, Karen
Cc: Miller, Kirk D (DOT)
Subject: RE: Ward Cove
I will pass your request to the project manager. He just got back. We are also in contact
with KGB looking for old permits.
We have tomorrow off (Alaska Day), so will get back to you on Monday if we can find
the information you need.
Jmw/Qemdrom/
Southeast Region Environmental Manager
Alaska Department of Transportation & Public Facilities
P.O. Box 112506
Juneau, AK 99811-2506
907-465-4499
From: Keeley, Karen [ ]
Sent: Thursday, October 16, 2014 3:10 PM
To: Gendron, Jane D (DOT)
Subject: Ward Cove
Jane,
We are looking for the transfer of ownership from KGB to Alaska
(presumably Alaska DNR) for the submerged tidelands in Ward
Cove. I know that the Consent Decree requires notification to EPA, but
I am having trouble locating it in our Site Files.
Thanks,
Karen Keeley | Superfund Remedial Project Manager
U.S. Environmental Protection Agency | Region 10
Office /ironmental Cleanup
1200 6th Avenue, Suite 900, EL ittle, WA 98101
p: 206.553.2141
3
-------
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a 2010-002006-0
^ Recording Dist: 102 - Ketchikan
s 6/18/2010 9:53 AP Pages; 1 of 4
K
STATE BUSINESS: NO CHARGE
WARRANTY DEEP
The Grantor, KETCHIKAN GATEWAY BOROUGH, an Alaska Municipal
Corporation and Second Class Borough whose address is 1900 1st Avenue, Suite 210,
Ketchikan, Alaska 99901, for and in consideration of the sum of Ten Dollars ($10,00),
and other good arid valuable consideration, the receipt of which is hereby
acknowledged, conveys and warrants to the State of Alaska whose address is P.O. Box
112500, Juneau, Alaska 99811-2500, the following described real estate located in the
Ketchikan Recording District, First Judicial District, State of Alaska:
All and Entire Lot 3A of Tract 3005 as depicted on Flat 2010-19 Ketchikan
Recording District, First Judicial District, State of Alaska together with all
improvements thereon.
SUBJECT TO the following interests and encumbrances:
1. Reservations and exceptions as contained in the U.S. Patent and acts relating
thereto.
2. Reservations and exceptions as contained in the State of Alaska Patent and acts
relating thereto.
3. Easements and notes as shown as Plat No. 2000-41 and Plat No. 2006-10.
4. Paramount rights and easements in favor of the United States to regulate
commerce, navigation, fishing and the production of power.
5. Environmental Easement and Declaration of Covenants, entered into by and
between Ketchikan Gateway Borough, a municipal corporation, Ketchikan Pulp
Company, a Washington corporation, and Gateway Forest Products, Inc., an
Alaska corporation, according to the terms and provisions thereof, dated July 14,
2003 and recorded July 18, 2003 under Ketchikan Recording District Serial No.
2003-004128-0.
6. Environmental Protection Easement and Declaration of Restrictive Covenants,
entered into by and between Ketchikan Pulp Company, Grantor, and the State of
-------
Alaska, Department of Natural Resources, Grantee, according to the terms and
provision thereof dated October 28,1999 and recorded October 28,1999 In Book
305 at Page 772.
T. Reservations and exceptions as contained in Deed recorded November 15,1999
in Book 306 at page 72.
8. Plant Systems Easement, and the terms and provisions thereof, entered into by
an between Gateway Forest Products, Inc., an Alaskan corporation, Grantor, and
Ketchikan Pulp Company, a Washington corporation, Grantee, dated November
3,199S and recorded November 5,1999 in Book 306 at Page 99.
9. Amendment to Plant-Systems Easement recorded December 15, 2000 in Book
319 at page 360,
10. Second Amendment to Plant Systems Easement recorded January 3, 2001 in
Book 320 at Page 421
11. Water Use Site Easement, and the terms and provisions thereof, entered into by
and between Gateway Forest Products, Inc., an Alaskan corporation, Grantor,
and Ketchikan Pulp Company, a Washington corporation, Grantee, dated
November 3, 1999 and recorded November 5,1999 in Book 306 at Page 125.
12. Amendment to Water Use Site easement recorded December 12, 2000 in Book
319 at page 250.
13. Terms and provisions as contained in that certain Warranty Deed dated May 2,
2006 and recorded May 2, 2006 at Document No. 2006-001753-0,
14.Acknowledgment That Interest Conveyed Are Subject to Environmental
Protection Easement and Declaration of Restrictive Covenants, entered into by
and between the Ketchikan Gateway Borough, an Alaska municipal corporation,
and Ketchikan Pulp Company, according to the terms and provisions thereof,
dated August 2, 2003 and recorded August 4, 2003 under Ketchikan Recording
District Serial No. 2003-004419-0.
15. Environmental Easement and Declaration of Covenants, entered into by and
between Ketchikan Gateway Borough, a municipal corporation, ana Ketchikan
Pulp Company, a Washington corporation, according to the terms and provision
thereof, dated July 14, 2004 and recorded July 15, 2004 under Ketchikan
Recording District Serial No. 2004-002967-0.
16. Subordination Agreement, executed by Ketchikan Pulp Company, a Washington
corporation, and the Ketchikan Gateway Borough, a municipal corporation, for
• Illillllll' "
2 of 4
2010-00200S-0
-------
the benefit of the State of Alaska, dated May 1, 2000 and recorded May 1, 2008
at Document No. 2006-001708-0.
17. Reservations, conditions, and easements as contained in that certain Quitclaim
Deed between Ketchikan Pulp Company, a Washington corporation, Grantor and
the Ketchikan Gateway Borough, a municipal corporation, Grantee, dated July
11,2003 and recorded July 22,2003 at Document No, 2003-004183-0.
18. Easement for Utility Line granted by James K. Erickson, Gateway Forest
Products, Inc., Grantor, to the City of Ketchikan d.b.a. Ketchikan Public Utilities,
its successors and assigns. Grantee, according to the terms and provisions
thereof, dated February 17, 2001 and recorded February 22, 2001 in Book 322 at
Page 159.
19. Terms and provisions as contained in that certain Quitciaim Deed dated October
12, 2007 and recorded on October 12, 2007 at Document No. 2007-004314-0.
In witness whereof, Grantor has caused this instrument to be executed in Its
name, by its duly authorized officer.
DATED at Ketchikan, Alaska, this {(jHdav of
,«2010.
GRANTOR:
Dan Bockhorst
Borough Manager
ATTEST:
¦mi
2010-002006-0
-------
BOROUGH ACKNOWLEDGMENTS
STATE OF ALASKA
FIRST JUDICIAL DISTRICT
ss.
THIS IS TO CERTIFY that on this ilf®. day of
, 2010,
before me, the undersigned, a Notary Public in and for the State of Alaska, duly
commissioned and sworn, personally appeared DftH BOCKHORST and KIM FLORES
to me known to be the BOROUGH MANAGER and BOROUGH DEPUTY CLERK of
the KETCHIKAN GATEWAY BOROUGH, a second class borough, the entity which
executed the above and foregoing instrument; who on oath stated that he was duly
authorized to execute said instrument and affix the corporate seat thereto on behalf of
said entity; who acknowledged to me that he/she signed and sealed the same freely
and voluntarily on behalf of said entity for the uses and purposes therein mentioned.
written.
(Sea!)
WITNESS my hand and official sea! the diy and year in the certificate first above
STATE OF ALASKA,
. NOTARY PUBLIC
Amy Briggs
My COTreis&tet SapifBS Mm? 8,3CH3
©
Spires:^
After Recording Return to;
State of Alaska, Department of Transportation and Public Facilities
P.O. Box 112500
Juneau, AK 99811-2500
llllllll
4 Of 4
2010-002006-0
-------
I
-/. Ib.l 1
(slloflO
SEAN PARNELL, GOVERNOR
PO Box 112506
JUNEAU, ALASKA 99811-2506
FAX: (907) 465-2016
PHONE: (907)465-1774
RECEIVED
JUN 1 6 2010
June 10,2010
Environmental
Cleanup Office
RE: Project 68704 KTN Lay-up Berth &
Mooring Structures
Dear Agency Representatives and Interested Parties,
As you may know, the Alaska Department of Transportation and Public Facilities (DOT&PF)
has been investigating the possibility of acquiring Ketchikan Gateway Borough property in Ward
Cove for an Alaska Marine Highway System (AMHS) vessel lay-up facility. In the course of
that investigation, DOT&PF contracted for three additional studies related to the property. The
following reports and memoranda are being transmitted to you for your information:
May 2009 - Potential for Scour at Ward Cove from Proposed AMHS Ferry Operations Atthwart ^
April 2010 - Ketchikan Ward Cove Property Phase II Environmental Site Assessment Report tu^
April 2010 - Budgetary Cost Estimate for Ketchikan Ward Cove Property Demolition &
Clean-up for Layup Berth & Mooring Structures dttH (' (f >> >¦£ > r ^ C, , .
August 2009 - Response to Peer Reviews of CH2M Ward Cove Scour Study ^ C)
The State of Alaska and the Ketchikan Gateway Borough have signed a memorandum of
agreement to complete transfer of part of the Ward Cove propert/by June 30, 2010. The
planned purchase is shown as parcel 2 on the enclosed figuror^The AMHS intends to make
immediate use of the warehouse on this parcel and begin planning for an office facility and a
vessel berth. Please note that the parcel to be acquired does not include the dock, avoids most of
the sand cap, and roughly coincides with the location the scour report indicates could be used as
a working berth without disturbing the sand cap.
No action on your part is requested at this time. The documents are being transmitted to you for
your information only. Please contact me if you have any questions.
Sincerely,
Rei
Special Projects Manager
Enclosures: 2 reports, 2 memoranda, 1 parcel figure
USEPA SF
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KTN Lay-up Berth & Mooring Structures
Project No: 68704
Page 2
June 10, 2010
Distribution List:
Phillip Benning, Environmental Director
Ketchikan Pulp Company
PO Box 6600
Ketchikan, AK 99901
Jacques Gusmano
Alaska Operations Office
222 West 7th Ave #19
Anchorage, AK 99513-7588
Karen Keeley, Superfund Project Manager
US EPA Region 10
1200 Sixth Ave. Suite 900
Seattle, WA 98101
Bill Janes, Environmental Program Manager II
Department of Environmental Conservation
PO Box 111800
Juneau, AK 99811-1800
cc: Jim Beedle, AMHS
Jeff Stark, ADOL&WFD
Vic Winters, DOT&PF
Bob Wright, DOT&PF
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I
Parcels
KPC Property
Not For Sale
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Attachment 22
Ward Cove Industries LLC 2015 Development Plan Map
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ADOT m o ved1 £
201B-t4>tUUi)4^a)rne'r. \
buried under road
tofsteel
Proposal to level and
move the road in grei
proposed
lodge would
be on this
boat
building
business in
this corner
proposed AMHS ferry terminal. The largest
vessel outline would be the size of the MV
"Malaspina" ferry
blue are planned concrete float docks
of various slip sizes to accomodate
different size vessels
red outline is the proposed Ward Cove
Industries property line after parcel adjustment
with ADOT/AMI-IS
12015 Google
frTuqe ©2015 C^jrtalGtobe
^ Of \
Map provided by Dave Spokely for
reference during the 3rd 5YR for
Ketchikan Pulp Comany, 6/2/2015
geoduck hatchery would be
north of Ward Cove
Google earth
¦pc
cJjL3^ 1^1
i^ry V
^ast Island
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Attachment 23
Letter from Amy Briggs (KGB) to EPA (Karen Keeley), dated January 4, 2012, regarding: Closing
documents related to sale of Ward Cove between KGB and PSSA
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kl M lllkW CiATLAYAY BOROlKiil
AMY L. BRIGGS
I'TOlirst ,W. Sns, I 'I, • Kl It III KAN, ALASKA 999(1!
• ">07/,VX • lax 907/247-8419
aim h <; hot oiigh.kiaehlkitn.akats
(II11( I Ol I VNI»\ MANAGEMENT
RECEIVED
January 4,2012 JAN I 7 2012
OFF1CT OF
Karen keeley EN VIM >N MENTAL CLEANUP
FPA Projed Coordinator
United States Environmental Pkm tn lion A^oncy
Repjon 10
1700 Sixth Avenue, Suite 900, t.CL 111
Seattle, WA 9810]- 5140
Rc; Sale of Wards Cove
tnciosed you will find the dosing documents foi the sale ol Waid Cove between ft to Ketchikan Gateway
Hoi outfit and Pnwct Systems K, Supplies ol Alaska.
As stated in the July 7000 Consent Denee, the Ketchikan Gateway Boiough is required to send the FPA
and the State of Alaska a copy ol all conveyance documents ,j( the Ward love Site. Alonn w«th these
conveyance documents, we .no repaired to give you the ciate in which lho f.iantee leteivod the pre
tonveyantc documents (Consent Denee arid The I nviionmental Protection and Lasemont ,itul
Declaiation of Restnctive Covenants),
Powot Systems & Supplies of Alaska received those said dot laments (torn the Koli hikan liaievvay
Borough on (-ebuiary 11, 201 1, when an Invitation tor Bids was released for th<> sale of Watd Cove, On
April 11, 2011, Power Systems & Supplies of Alaska ac knowledge those document", and a ropy of the
Pin chase and Sale Agreement wa> mailed to your agency on Aptil 18, 201 1.
If you have any questions tetfaidihtf tins maftei, please teel tiee to call oi email me.
A
Ptocutemenl Offh ei
USEPA SF
iiimiiii
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2011-003863-0
Recording Dist: 102 - Ketchikan
12/29/2011 2:19 PM Pages: 1 of 3
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT KETCHIKAN
IN RE: DELINQUENT TAXES AND
SPECIAL ASSESSMENTS FOR THE
YEAR 2007 AND PRIOR YEARS,
IN THE KETCHIKAN GATEWAY
BOROUGH AND CITY OF KETCHIKAN,
ALASKA.
NO. IKE-08-54 CIVIL
PARTIAL RELEASE AND
SATISFACTION OF LIEN
HI log
The Petition for Judgment and Decree of Foreclosure recorded
on the 8eh day of April, 2008, document number 2008-001196-0 in the
Ketchikan Recorder's Office, First Judicial District, State of
Alaska, for delinquent property taxes, penalties, interest, and
tfeAtussantJLsGi
collection costs, is hereby released only as against the following
property:
Lot 3, Tract 3005 of the Ward Cove West replat of lot
3, Gateway Subdivision (Plat 2000-41), A portion of U.S.
Survey 1862, U.S. Survey 1706, The unsubdivided remainder of
U.S. Survey 1754 and a portion of Alaska Tidelands Survey No.
1 according to the Plat thereof filed March 24, 2006 as Plat
No/ 2006-10, Ketchikan Recording District, First Judicial
District, State of Alaska.
Lot 2, Tract 3005 of the Ward Cove West Replat of Lot
3, Gateway Subdivision (Plat 200-41) , A Portion of U. S. Survey
C:\MW\WAK!} C0Vf\UM.HlL.RKC.HNAl.2011.OOCX
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1862, U.S. Survey 1706, The unsubdivided remainder' of U.S.
Survey 1754 and A Portion of Alaska Tidelands Survey No. 1,
According to the Plat thereof filed March 24, 2006 as Plat
No. 2006-10, Ketchikan Recording District, First Judicial
District, State of Alaska.
3. Lot 1A, Block 4, of the Ward Cove-West Replat of Lots
1-16, inclusive. Block 4, U.S. Survey 1754, according to the
plat thereof filed March 24, 2006 as plat No. 2006-10,
Ketchikan Recording District First Judicial District, State
of Alaska.
4. U.S. Surveys 3400 and 3401, Ketchikan Recording
District, First Judicial District, State of Alaska.
5. Beginning at the northerly corner of the Crawford Tract,
otherwise known as Corner No. 2 of U.S. Survey No. 2923, thence
South 55 degrees 45' East along the northeasterly boundary
of the Crawford Tract a distance of 863.37 feet; thence South
89 degrees 33' West a distance fo 709.81 feet more or less
to a point on the Westerly boundary of the Crawford Tract;
thence North 0 degrees 27' West along the Westerly boundary
of the Crawford Tract a distance of 491.50 feet more or less
to the point of beginning.
6. All and Entire U.S. Survey 1056, Ketchikan Recording
District, First Judicial District, State of Alaska; Excepting
therefrom: That certain portion thereof conveyed to Eugene
Wacker and Lillian Wacker, his wife by Warranty Deed recorded
January 27, 1950 in Volume "W" of Deeds AR Page 614; Also
excepting therefrom; that certain portion conveyed to the
United States of America by Right-of-way Deed recorded April
28, 194 9 in Volume "W" of Deeds at page 3 97.
7. Lot 2B, Subdivision of Lot 2, Tract B U.S. Survey 1923,
according to the plat thereof filed September 5, 1990, as Plat
No. 90-25, Ketchikan Recording District, First Judicial
District, State of Alaska.
And
G:\LAIV\WAHDCOVt\ueN.t[LRKC.nNAL101I.DOCX 2 of 3
2011-003863-0
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8. That portion of USS 1056, consisting of Gateway
Subdivision Lot l, According to Plat 2000-41, Recorded on
8/14/2000 in containing 2.0893 Acres, more or less, located
in the Ketchikan Recording District, First Judicial District,
State of Alaska.
DATED this >-' day of December, 2011, at Ketchikan, Alaska.
Borough Attorney
Ketchikan Gateway Borough
After Recording in the Ketchikan Recording District:
Return to:
Ketchikan Gateway Borough
Attorney's Office
1900 1" Ave. Suite 215
Ketchikan, AK 99901
G:\LA ivtHMir D COVl\t IfN HCLKKG. FtNA L 2011.DOCX
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2011-003864-0
Recording Dist: 102 - Ketchikan
12/29/2011 2:21 PM Pages: 1 of 10
AFTER RECORDING, RETURN TO:
Power Systems & Supplies of Alaska, LLC
PO Box 772
Ward Cove, AK 99928
AETIA 41108
WARRANTY DEED
A.S. 34.15.030
The Grantor, KETCHIKAN GATEWAY BOROUGH, whose address is 1900 First
Avenue, Suite 210, Ketchikan, AK 99901, for and in consideration of TEN DOLLARS ($10.00)
and other good and valuable consideration hand paid, the receipt of which is hereby acknowledged,
conveys and warrants to POWER SYSTEMS & SUPPLIES OF ALASKA, LLC, whose address
is PO Box 772, Ward Cove, AK 99928, Grantee, the following-described real estate:
PARCEL NO. 1:
U.S. Survey 3400, Ketchikan Recording District, First Judicial District, State of Alaska.
PARCEL NO. 2:
U.S. Survey 3401, Ketchikan Recording District, First Judicial District, State of Alaska.
PARCEL NO. 3:
That portion of U.S. Survey 1056, lying northerly of the northerly boundary line of North
Tongass Highway, Ketchikan Recording District, First Judicial District, State of Alaska,
EXCEPTING THEREFROM: That certain portion thereof conveyed to Eugene Wacker
and Lillian Wacker, his wife by Warranty Deed recorded January 27, 1950 in Volume
"W" of Deeds at Page 154;ALSO EXCEPTING THEREFROM: That certain portion
conveyed to Ivan Crawford and Meta Crawford, his wife, by Warranty Deed recorded
January 7, 1952 in Book "Y" of Deeds at Page 153; ALSO EXCEPTING THEREFROM:
That certain portion thereof, more particularly described as follows: BEGINNING at a
point on the North boundary line of North Tongass Highway distance of S 0° 25' E
1,360.64 feet from Comer No. 3 of U.S. Survey 1056; thence N 0° 25' W 699.51 feet to a
corner marked as C-ll K.P. Co.; thence East 539.72 feet to a comer marked C-10 K.P.
Co.; thence South 300 feet to a comer marked C-9 K.P. Co.; thence in an easterly
direction 17.56 feet to a point on the Northerly boundary line of North Tongass Highway,
being a comer marked as C-8 K.P. Co.; thence in a Southwesterly direction along the
existing boundary of North Tongass Highway to the point of beginning.
PARCEL NO. 4:
That certain portion of U.S. Survey 2923, Ketchikan Recording District, First Judicial
District, State of Alaska, more particularly described as follows: Beginning at the
northerly comer of the Crawford Tract, otherwise known as Comer No. 2 of the U.S.
Survey 2923; thence S 55° 45' E along the northeasterly boundary of the Crawford Tract,
a distance of 863.37 feet; thence S 89° 33' W a distance of 709.81 feet, more or less, to a
point on the westerly boundary of the Crawford Tract; thence N 0° 27' W along the
westerly boundary of the Crawford Tract a distance of 491.50 feet, more or less, to the
point of beginning
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PARCEL NO. 5:
Lot I of Ihe Dawson Point Subdivision of U.S. Survey 1993, Lot 2B, Tract B, U.S.
Survey 1923 and an unnamed portion of U.S. Survey 1923, according to the plat thereof
filed November 28, 2000 as Plat No. 2000-73, Ketchikan Recording District, First
Judicial District, State of Alaska.
PARCEL NO. 6:
Lot 1, Gateway Subdivision, within U.S. Survey 1056 (H.E.S 55), according to the plat
thereof filed August 14, 2000 as Plat No. 2000-41, Ketchikan Recording District, First
Judicial District, State of Alaska.
PARCEL NO. 7:
Lot 2, Tract 3005 of the Ward Cove-West Replat of Lot 3, Gateway Subdivision (Plat
2000-41), a portion of U.S. Survey 1862, U.S. Survey 1706, unsubdivided remainder of
U.S. Survey 1754 and a portion of Alaska Tidelands Survey No. 1, according to the plat
thereof filed March 24, 2006 as Plat No. 2006-10, Ketchikan Recording District, First
Judicial District, State of Alaska.
PARCEL NO. 8:
Lot 3B of Ward Cove 2010 Subdivision, according'to Plat No. 2010-19, records of the
Ketchikan Recording District, First Judicial District, State of Alaska.
PARCEL NO. 9:
Lot I A, Block 4, Ward Cove-West Replat of Lots 1-16, inclusive, Block 4, U.S. Survey
1754, according to the plat thereof filed March 24, 2006 as Plat No. 2006-10, Ketchikan
Recording District, First Judicial District, State of Alaska.
PARCEL NO. 10:
Township 74 South, Range 90 East, Copper River Meridian, Alaska, Section 34; Lot 1,
according to the Survey Plat accepted by the United States Department of the Interior,
Bureau of Land Management in Anchorage, Alaska on January 28, 2003, and officially
filed on March 3, 2003, Ketchikan Recording District, First Judicial District, State of
Alaska. (Also identified as State of Alaska Patent No. 20179, recorded as State of Alaska
Document Number: 2006-001705-0, recorded in the Ketchikan Recording District, First
Judicial District, State of Alaska.)
PARCEL NO. 11:
Lot 2, Gateway Subdivision, within U.S. Survey 1056 (H.E.S 55), according to the plat
thereof filed August 14, 2000 as Plat No. 2000-41, Ketchikan Recording District, First
Judicial District, State of Alaska.
PARCEL NO. 12:
Lot 1, Tract 3005 of the Ward Cove-West Replat of Lot 3, Gateway Subdivision (Plat
2000-41), a portion of U.S. Survey 1862, U.S. Survey 1706, unsubdivided remainder of
U.S. Survey 1754 and a portion of Alaska Tidelands Survey No. I, according to the plat
thereof filed March 24, 2006 as Plat No. 2006-10, Ketchikan Recording District, First
Judicial District, State of Alaska.
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SUBJECT TO the reservations arid exceptions as contained in the U.S. Patent and acts
relating thereto.
FURTHER SUBJECT TO the reservations and exceptions as contained in the State of
Alaska Patent and acts relating thereto.
FURTHER SUBJECT TO any prohibition of or limitation of use, occupancy or
improvements of the land resulting from the rights of the public or riparian owners to use any
portion thereof which is now or formerly may have been covered by water, and the rights of the
public as set forth in Alaska statutes 38.05.128.
FURTHER SUBJECT TO the terms, provisions and reservations under the Submerged
Land Act (43 USC 1301,67 Stat. 29) and the Enabling Act (Public Law 85-508,72 Stat. 339).
FURTHER SUBJECT TO the paramount rights and easements in favor of the United States
to regulate commerce, navigation, fishing and the production of power.
FURTHER SUBJECT TO any adverse claim based upon the assertion that any portion of
said land was not tidelands subject to disposition by the State of Alaska, or that any portion thereof
has ceased to be tidelands by reason of erosion, or by reason of having become upland by accretion.
FURTHER SUBJECT TO the easements and notes as shown on Plat No. 2005-15. (Affects
Parcel No.'s 1 and 2)
FURTHER SUBJECT TO the easements and notes as shown on Plat No. 2000-73. (Affects
Parcel No. 5)
FURTHER SUBJECT TO the easements and notes as shown on Plat No. 2000-41. (Affects
Parcel No.'s 6 and II)
FURTHER SUBJECT TO the easements and notes as shown on Plat No. 2006-10. (Affects
Parcel No.'s 7 and 12)
FURTHER SUBJECT TO the easements and notes as shown on Plat No. 2010-19. (Affects
Parcel No.8)
FURTHER SUBJECT TO the easements in favor of the State of Alaska and/or the United
States for highway and related purposes, all as provided in Public Land Orders numbered 601, 757,
and 1613 and Department of Transportation Order No. 2665, and amendments thereto, and any
assignment of rights therein for recreation, utilities, and other purposes.
FURTHER SUBJECT TO the Terms, Provisions and Restrictions as contained in Highway
Easement Deed Recorded May 23, 1969 in Book 33 at Page 360. (Affects Parcel No. 1)
FURTHER SUBJECT TO the easement and the terms and conditions thereof to Grantee
State of Alaska, acting by and through it's Department of Highways for the purpose to construct a
highway over the above easement area which affects an area of all of that certain tract or parcel of
land lying and being situated in U.S. Survey 3400, First Judicial District, State of Alaska, being
more particularly bounded and described as follows: Beginning at the BLM Mon PC 24 on the
northerly boundary of U.S. Survey 3400 and running South 56° 05' 00" West a distance of 63.53
feet to a point on the boundary of U.S. Survey 3400 which is the point of true beginning: From the
point of true beginning running South 16 ° 00' 00" West a distance of 122.26 feet to a point of
curve, thence along a curve to the right of 1225.92 feet radius thru an arc of 2 0 59' 24", thence
south 71 ° 00' 36" East a distance of 20.00 feet, thence along a curve to the right of 1245.92 feet
radius thru an arc of 5 0 38' 00", thence South 56 ° 05' 00" West for a distance of 84.60 feel, thence
South 50 0 03' 30" West a distance of 65.01 feet, thence South 44 0 02' 00" West a distance of
346.50 feet, thence South 52 0 22' 00" West a distance of 150.81 feet, thence South 60 ° 42' 00"
West a distance of 223.61 feet, thence South 69 ° 37' 30" West a distance of 123.58 feet, thence
3 of to
2011-003864-0
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North 30 ° 43' 00" West a distance of 41.64 feet, thence North 59 0 17' 00" East a distance of
269.20 feet, thence along a curve to the left of 1079.92 feet radius thru as arc of 27 0 47' 18", thence
North 58 ° 30' 18" West a distance of 9.00 feet, thence along a curve to the left of 1070.92 feet
radius thru an arc of 6 0 15' 00", thence South 64 0 45' 18" East a distance of 9.00 feet, thence along
a curve to the left of 1079.92 feet radius thru an arc of 6 0 27' 42", thence North 56 0 05' 00" East a
distance of 228.75 feet to the point of true beginning dated August 31, 1964 and recorded October
23, 1964 in Volume 21 at Page 06. (Affects Parcel No. 1)
FURTHER SUBJECT TO an easement and the terms and conditions thereof to Grantee
United States of America, acting by and through the Forest Service, Department of Agriculture for
the purpose that the public is entitled to use the Easement for hiking and similar recreational uses
and for access to National Forest System lands and trails. The Forest Service is entitled to use the
Easement to access, operate and maintain Forest Service facilities and trails and such use shall
include the use of motor vehicles and heavy equipment, as may be reasonably necessary which
affects an area (See Instrument) dated September 14, 2000 and recorded October 23, 2000 in Book
317 at Page 595. (Affects Parcel Numbers 1,2, 3, and 4 and other property)
FURTHER SUBJECT TO the terms and provisions as contained in Exchange Deed
Recorded October 23,2000 in Book 317 at Page 626. (Affects Parcel No. I and Parcel No. 2)
FURTHER SUBJECT TO the provisions contained in that certain Quit Claim Deed
recorded July 18, 2003 at Document No. 2003-004125-0. Effect of that certain Subordination
Agreement, executed by Ketchikan Pulp Company, and Ketchikan Gateway Borough for the benefit
of the State of Alaska, dated May 1, 2006 and recorded May 1, 2006 at Document No. 2006-
001708-0. (Affects Parcel No. 1 and Parcel No. 2)
FURTHER SUBJECT TO the Environmental Easement and Declaration of Covenants,
entered into by and between Ketchikan Gateway Borough, a municipal corporation, Ketchikan Pulp
Company, a Washington corporation, and Gateway Forest Products, Inc., an Alaska corporation,
according to the terms and provisions thereof, dated July 14,2003 and recorded July 18,2003 under
Ketchikan Recording District Serial No. 2003-004128-0. Effect of that certain Subordination
Agreement, executed by Ketchikan Pulp Company, a Washington corporation, and the Ketchikan
Gateway Borough, a municipal corporation, for the benefit of the Slate of Alaska, dated May 1,
2006 and recorded May 1, 2006 at Document No. 2006-001708-0. (Covenants apply to Parcels No.
I, 2, 5, 10, portions of 9 and other properly. Easement applies to Parcels No. 1-5, 9, 10, and other
property. Also, Section IV.A.3 of Easement provisions applies with respect to Parcel No. 6 as
follows: "3. KPC's right of access shall also include access through and across all access easements
which have been or hereafter are established by, or reflected in, any plaies of U.S. Survey 1056 or
ATS-1, whether those access easements are designated as private access easements or otherwise.")
FURTHER SUBJECT TO the Environmental Protection Easement and Declaration of
Restrictive Covenants, entered into by and between Ketchikan Pulp Company, Grantor, and the
State of Alaska, Department of Natural Resources, Grantee, according to the terms and provisions
thereof dated October 28, 1999 and recorded October 28, 1999 in Book 305 at page .772. Said
Instrument contains the following provision: Notice requirement: Grantor agrees to include in any
instrument conveying any interest in any portion of the Property, Including but not limited to deeds,
leases and mortgages, a notice which is in substantially the following form:
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL
PROTECTION EASEMENT AND DECLARATION OF RESTRICTIVE COVENANTS,
DATED , 19 RECORDED IN THE KETCHIKAN RECORDING DISTRICT,
FIRST JUDICIAL DISTRICT, STATE OF ALASKA, ON , 19 , IN BOOK AT
PAGE THAT IS IN FAVOR OF AND ENFORCEABLE BY, THE STATE OF ALASKA.
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FURTHER SUBJECT TO the Environmental Protection Easement and Declaration of
Restrictive Covenants, entered into by and between Ketchikan Pulp Company, Grantor, and the
State of Alaska Department of Natural Resources, Grantee, according to the terms and provisions
thereof, dated October 28,1999 and recorded October 28, 1999 in Book 305 at Page 772.
FURTHER SUBJECT TO the Environmental Easement and Declaration of Covenants,
entered into by and between Ketchikan Gateway Borough, a municipal corporation, Ketchikan Pulp
Company, a Washington corporation, and Gateway Forest Products, Inc., an Alaska corporation,
according to the terms and provisions thereof, dated July 14, 2003 and recorded July 18,2003 under
Ketchikan Recording District Serial No. 2003-004128-0. The easement provisions thereof affect
those portions of the subject property previously lying within ATS No. 1. The covenants in said
document have no effect on the subject property.
FURTHER SUBJECT TO the reservations and exceptions as contained in Deed by
Ketchikan Pulp Company (Grantor) and Gateway Forest Products, Inc. (Grantee) recorded
November 15, 1999 in Book 306 at Page 72 as follows: Reserving and excepting, however, unto
the Grantor, all right, title, equity and interest as set forth in the Plant Systems Easement, by and
between Grantor and Grantee of even date, incorporated herein by reference as though fully set
forth herein. The Plant Systems Easement establishes the terms and conditions of such easement
over and upon the following of the parcels, described in Exhibit I: NOTE: Said instrument also
contained the following conditions, reservations and restrictions which have been released by
instrument recorded November 1, 2002 at Instrument No. 2002-004405-0. Subject to, however, all
covenants, restrictions and agreements as set forth in the Easement and Declaration of Covenants
Regarding Allocation of Environmental Responsibilities, by and between Grantor and Grantee of
even date, incorporated herein by reference as though fully set forth herein. The Easement and
Declaration of Covenants Regarding Allocation of Environmental Responsibilities establishes the
terms and conditions of covenants applicable to, and binding upon, Parcel No. 1 through and
including Parcel No. 15 of the parcels of real property described in Exhibit I. Reserving and
excepting, however, unto the Grantor, all right, title, equity and interest as set forth in the Easement
and Declaration of Covenants Regarding Allocation of Environmental Responsibilities, by and
between Grantor and Grantee of even date, incorporated herein by reference as though fully set
forth herein. The Easement and Declaration of Covenants Regarding Allocation of Environmental
Responsibilities establishes the terms and conditions of an easement over and upon Parcel No. I
through and including Parcel No. 15 of the parcels of real property described in Exhibit I.
FURTHER SUBJECT TO the Associated Real Property and Water Rights Agreement, and
the terms and provisions thereof, entered into by and between Ketchikan Pulp Company, a
Washington corporation, Seller, and Gateway Forest Products, Inc., an Alaska corporation,
Purchaser, dated November 3, 1999 and recorded November 5, 1999 in Book 306 at Page 84.
Subject to the terms and provisions as contained in Assignment Assumption and Release recorded
July 18, 2003 at Document No. 2003-004126-0.
FURTHER SUBJECT TO the Plant Systems Easement, and the terms and provisions
thereof, entered into by and between Gateway Forest Products, Inc., an Alaskan corporation,
Grantor, and Ketchikan Pulp Company, a Washington corporation, Grantee, dated November 3,
1999 and recorded November 5, 1999 in Book 306 at Page 99. Amendment to Plant Systems
Easement recorded December 15, 2000 in Book 319 at page 360. Second Amendment to Plat
Systems Easement recorded January 3,2001 in Book 320 at Page 421.
FURTHER SUBJECT TO the Water Use Site Easement, and the terms and provisions
thereof, entered into by and between Gateway Forest Products, Inc., an Alaskan corporation,
Grantor, and Ketchikan Pulp Company, a Washington corporation, Grantee, dated November 3,
1999 and recorded November 5, 1999 in Book 306 at Page 125. Amendment to Water Use Site
easement recorded December 12,2000 in Book 319 at page 250.
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FURTHER SUBJECT TO the Option Agreement to Purchase Water Use Site, and the terms
and provisions thereof, entered into by and between Gateway Forest products, Inc., an Alaskan
corporation, Grantor, and Ketchikan Pulp Company, a Washington corporation, Grantee, dated
November 3, 1999 and recorded November 5, 1999 in Book 306 at page 149. Subject to the terms
and provisions as contained in Assignment Assumption and Release recorded July 18, 2003 at
Document No. 2003-004126-0.
FURTHER SUBJECT TO the Option Agreement to Purchase Excess Water, and the terms
and provisions thereof, entered into by and between Gateway Forest Products, Inc., an Alaskan
corporation, Grantor, and Ketchikan Pulp Company, a Washington corporation, Grantee, dated
November 3, 1999 and recorded November 5, 1999 in Book 306 at Page 160. Subject to the terms
and provisions as contained in Assignment Assumption and Release recorded July 18, 2003 at
Document No. 2003-004126-0.
FURTHER SUBJECT TO the Equitable Servitude and Easement, executed by the
Ketchikan Gateway Borough, a second class Borough of the State of Alaska, Grantor, in favor of
the State of Alaska, Department of Natural Resources, Division of mining, land and Water, Realty
Services Section, and its assigns, Grantee, according to the terms and provision thereof, dated April
24,2006 and recorded May 1,2006 at Document No. 2006-001707-0. NOTE: Effect of that certain
Subordination Agreement, executed by Ketchikan Pulp Company, a Washington corporation, and
the Ketchikan Gateway Borough, a municipal corporation, for the benefit of the State of Alaska,
dated May 1, 2006 and recorded May 1, 2006 at Document No. 2006-001708-0. (Affects Parcels
Numbers 1,3,4, and other property)
FURTHER SUBJECT TO the terms and provisions as contained in that certain Warranty
Deed dated May 2, 2006 and recorded May 2, 2006 at Document No. 2006-001753-0 including the
following:
FURTHER SUBJECT TO the limitations and obligations identified in Section 15 (d) of the
Real Estate Sale Agreement entered into by and between GRANTEE, Renaissance Ketchikan
Group LLC, as Purchaser, and GRANTOR, Ketchikan Gateway Borough, as Seller, executed on
behalf of the GRANTOR/Seller by Borough Manager Roy Eckert on October 13, 2005 and
identified as Borough Document 05-114, as amended by Addendum One, Addendum Two,
Addendum Three and Addendum Four to said Real Estate Sale Agreement (hereinafter,
collectively, "Amended Real Estate Sale Agreement"), including without limitation the following:
GRANTEE in further consideration for, and as a condition to, this Amended Real Estate Sale
Agreement, hereby agrees that the real property interests it is hereby acquiring from the GRANTOR
are subject to the same limitations and conditions as the ones applicable to the GRANTOR which
are set forth in that certain Agreement dated July 13, 2003, by and between Ketchikan Pulp
Company and the Ketchikan Gateway Borough, which is the GRANTOR hereunder, a copy of
which Agreement is attached to the Amended Real Estate Sale Agreement as Exhibit O and is
incorporated herein by reference as though fully set forth. In particular, all releases, waivers and
limitations on claims against Ketchikan Pulp Company, its. agents, servants, employees, officers,
directors, partners, principals, shareholders, or any of their insurance companies and contractors,
including but not limited to environmental claims, whether arising under CERCLA, 42 USC §9601
et seq.; RCRA, 42 USC §6901 et seq.; AS 46.03.822; or otherwise, as they now exist or hereafter
may be amended, to which the GRANTOR concurred, are hereby agreed to be applicable and in full
force and effect.
Further the parties to this agreement agree that Ketchikan Pulp Company, its shareholders,
successors, heirs and assigns, are third party beneficiaries of this agreement and any future
agreements concerning the property.
GRANTEE HEREBY AGREES THAT LANGUAGE IDENTICAL TO THE PREVIOUS TWO
PARAGRAPHS SHALL BE INCORPORATED INTO ANY FUTURE LEASE, SALE, OR
CONVEYANCE OF ANY INTEREST (INCLUDING DEEDS OF TRUST) IN ALL OR PART
OF THE PROPERTY.
IflHHi!
2011-0038644)
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FURTHER SUBJECT TO Ihe terms and provisions of that certain Agreement dated July 13,
2003 by and between Ketchikan Pulp Company and the Ketchikan Gateway Borough, which is the
GRANTOR hereunder, a copy of which Agreement is attached to the Amended Real Estate Sale
Agreement as Exhibit O, and is incorporated herein by reference as fully as if set forth.
FURTHER SUBJECT TO the leases identified in Exhibit E to the Amended Real Estate
Sale Agreement.
RESERVING AND EXCEPTING, HOWEVER, UNTO THE GRANTOR, reservation of a
15% water usage right as provided in Section 3(aXi) and 3(c) of the October 13, 2005 Real Estate
Sale Agreement (Borough Document 05-114).
RESERVING AND EXCEPTING, HOWEVER, UNTO THE GRANTOR, reservation of
the personal property identified in Section 3(a)(vii) and on Exhibit K of the October 13, 2005 Real
Estate Sale Agreement (Borough Document 05-114).
FURTHER SUBJECT TO the Equitable Servitude and Easement, executed by the
Ketchikan Gateway Borough, a second class Borough of the State of Alaska, Grantor, in favor of
the State of Alaska, Department of Natural Resources, Division of Mining, Land and Water, Realty
Services Section, and its assigns, Grantee, according to the terms and provisions thereof, dated April
24, 2006 and recorded May 1, 2006 at Document No. 2006-001706-0. Effect of that certain
Subordination Agreement, executed by Ketchikan Pulp Company, a Washington corporation, and
the Ketchikan Gateway Borough, a municipal corporation, for the benefit of the State of Alaska,
dated May I, 2006 and recorded May 1, 2006 at Document No. 2006-001708-0. (Affects Parcel
No. 10 and portions of Parcel Numbers. 1,3,4, and other property)
FURTHER SUBJECT TO the easement entered into by and between Gateway Forest
Products, Inc., an Alaska corporation, Grantor, and Ketchikan Pulp Company, a Washington
corporation, Grantee, according to the terms and provisions thereof, dated July 27, 2000 and
recorded August 21, 2000 in Book 315 at Page 645. Amendment to Easement, entered into by and
between Gateway Forest Products, Inc., an Alaska corporation, Grantor, and Ketchikan Pulp
Company, a Washington corporation, Grantee, according to the terms and provisions thereof, dated
September 22, 2000 and recorded September 22,2000 in Book 316 at Page 588. (Affects a portion
of Parcel No.'s 3 and 4 and.other property)
FURTHER SUBJECT TO the Acknowledgment That Interest Conveyed Are Subject to
Environmental Protection Easement and Declaration of Restrictive Covenants, entered into by and
between the Ketchikan Gateway Borough, an Alaska municipal corporation, and Ketchikan Pulp
Company, according to the terms and provisions thereof, dated August 2,2003 and recorded August
4,2003 under Ketchikan Recording District Serial No. 2003-004419-0.
FURTHER SUBJECT TO the terms and provisions as contained in Assignment
Assumption and Release recorded July 18,2003 at Document No. 2003-004126-0.
FURTHER SUBJECT TO the Reaffirmance of Environmental Easement and Declaration of
Covenants as to 3.09 Acre Parcel, entered into by and between Ketchikan Pulp Company, a
Washington corporation, and the Ketchikan Gateway Borough, a municipal corporation, according
to the terms and provisions thereof, dated May 1,2006 and recorded May 1,2006 at Document No.
2006-001709-0. (Affects Parcel No. 10)
FURTHER SUBJECT TO the Environmental Easement and Declaration of Covenants,
entered into by and between Ketchikan Gateway Borough, a municipal corporation, and Ketchikan
Pulp Company, a Washington corporation, according to the terms and provisions thereof, dated July
14, 2004 and recorded July 15,2004 under Ketchikan Recording District Serial No. 2004-002967-0.
NOTE: Effects of that certain Subordination Agreement, executed by Ketchikan Pulp Company, a
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2011-003864-0
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Washington corporation, and the Ketchikan Gateway Borough, a municipal corporation, for the
benefit of the State of Alaska, dated May 1,2006 and recorded May 1,2006 at Document No. 2006-
001708-0. (Affects Parcel No.'s 3, 4, 9, and other property. Also, Section IV.A.3 of Easement
provisions applies with respect to Parcel No. 6 as follows: "3. KPC's right of access shall also
include access through and across all access easements which have been or hereafter are established
by, or reflected in, any plats of U.S. Survey 1056 or ATS-1, whether those access easements are
designated as private access easements or otherwise.")
FURTHER SUBJECT TO the Easement for Utility Line granted by Ketchikan Pulp
Company, Grantor, in favor of the City of Ketchikan d.b.a. Ketchikan Public Utilities, Grantee,
according to the terms and provisions thereof, dated February 22, 2000 and recorded March 16,
2000 in Book 310 at Page 494. (Affects a portion of Parcel No. 5 and other property)
FURTHER SUBJECT TO the Encroachment Easement entered into by and between
Ketchikan Pulp Company, and Gordon S. Harang and Eileen K. Harang, also benefiting the
successors and assigns of KPC and Harang, according to the terms and provisions thereof, dated
February 28, 2000 and recorded July 6, 2000 in Book 314 at Page 370. (Affects a portion of Parcel
No. 5 and other property)
FURTHER SUBJECT TO the Reservations, conditions, and easements as contained in that
certain Quitclaim Deed between Ketchikan Pulp Company, a Washington corporation, Grantor, and
the Ketchikan Gateway Borough, a municipal corporation, Grantee, dated July 11, 2003 and
recorded July 22, 2003 at Document No. 2003-004183-0. (Affects Parcel No. 5, and 10 and other
property)
FURTHER SUBJECT TO the Consolidated Easement for Landfill entered into by and
between the Ketchikan Gateway Borough, a municipal corporation and Ketchikan Pulp Company, a
Washington corporation, according to the terms and provisions thereof, dated September 23, 2005
and recorded at Document No. 2005-003857-0. (Affects Parcel No. 5, and lO.and other property)
FURTHER SUBJECT TO the Easement for Utility Line granted by Gateway Forest
Products, Inc., Grantor, in favor of the City of Ketchikan d.b.a. Ketchikan Public Utilities, Grantee,
according to the terms and provisions thereof, recorded March 16, 2000 in Book 310 at Page 500.
(Affects a portion of Parcel 10)
FURTHER SUBJECT TO the terms and provisions as contained in that certain Quitclaim
Deed dated October 12,2007 and recorded on October 12,2007 at Document No. 2007-004314-0.
FURTHER SUBJECT TO the Lessor's Consent to Assignment of Lease for Security
Purposes and the terms and provisions thereof by and between Renaissance Ketchikan Group, LLC,
an Idaho Limited Liability Company, Lessor for Ketchikan Veneer Mill, LLC and Renaissance
Ketchikan Group, LLC, Borrower to Alaska Growth Capital B1DCO, Inc., Lender, dated April 12,
2007 and recorded April 28,2007 at Document No. 2007-001806-0.
FURTHER SUBJECT TO the Assignment of Lease for Security Purposes and the terms and
provisions thereof, by and between Ketchikan Veneer Mill, LLC, Assignor and Alaska Growth
BIDCO, Inc., Assignee, dated April 18, 2007 and recorded April 26, 2007 at Document No. 2007-
001807-0.
FURTHER SUBJECT TO the certain springing easements created by foreclosure as set
forth on Exhibit "B" and "C" of that certain Deed of Trust dated November 2, 1999 and recorded
November 5, 1999 in Book 306 at Page 169. (Affects a portion lying within ATS No. 1)
FURTHER SUBJECT TO the Easement for Landfill Outfall, granted by Gateway Forest
Products, Inc., an Alaska corporation, Grantor, in favor of Ketchikan Pulp Company, a Washington
corporation, its successors and assigns. Grantee, according to the terms and provisions thereof,
dated April 30, 2002 and recorded April 30, 2002 under Ketchikan Recording District Serial No.
2002-001755-0.
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2011-003864-0
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FURTHER SUBJECT TO the Lease, and the terms and conditions thereof from Lessor
Ketchikan Gateway Borough to Lessee State of Alaska, Department of Administration dated May
19, 2004 and recorded June 3, 2004 as Document No. 2004-002405-0. Amendment to said lease
recorded June 16, 2004 as Document No. 2004-002581-0. Amendment to said lease recorded
January 14,2005 as Document No. 2005-000182-0. Amendment to said lease and recorded March
10, 2005 as Document No. 2005-000882-0. Amendment to said lease and recorded April 17,2006
as Document No. 2006-001434-0. Amendment to said lease and recorded October 30, 2006 as
Document No. 2006-004272-0. Amendment to said lease and recorded May 18,2007 as Document
No. 2007-002120-0. Amendment to said lease and recorded March 2,2009 as Document No. 2009-
000616-0. Amendment to said lease and recorded April 13,2009 as Document No. 2009-001036-0.
Amendment to said lease and recorded April 20, 2009 as Document No. 2009-001111-0.
Amendment to said lease and recorded July 29, 2010 as Document No. 2010-002470-0.
Amendment to said lease and recorded January 18, 2011 as Document No. 2011-000185-0.
(Affects Parcel 11)
FURTHER SUBJECT TO the Easement for Utility Line, granted by the Ketchikan Gateway
Borough, Grantor, to the City of Ketchikan, d.b.a. Ketchikan Public Utilities, Grantee, according to
the terms and provisions thereof, recorded June 30,2004 at Document No. 2004-002761-0.
FURTHER SUBJECT TO that Lease, and the terms and conditions thereof from Lessor
Ketchikan Gateway Borough to Lessee State of Alaska, Department of Administration dated
February 7, 2005 and recorded March 18, 2005 as Document No. 2005-000998-0. Amendment to
said lease and recorded April 25,2005 as Document No. 2005-001544-0. Amendment to said lease
and recorded June 30, 2005 as Document No. 2005-002453-0. Amendment to said lease and
recorded September 30, 2005 as Document No. 2005-003892-0. Amendment to said lease and
recorded December 4, 2006 as Document No. 2006-004745-0. Amendment to said lease and
recorded January 4,2007 as Document No. 2007-000034-0. Amendment to said lease and recorded
May 21,2007 as Document No. 2007-002151-0. Amendment to said lease and recorded September
4,2008 as Document No. 2008-003468-0. (Affects Parcel 11)
FURTHER SUBJECT TO that Agreement and the terms and conditions thereof between
Ketchikan Gateway Borough, Gateway Forest Products, Inc. and Ketchikan Pulp Company dated
July 14,2003 and recorded July 16,2008 as Document No. 2008-002806-0.
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2011-003864-0
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jur»
DATED this day of "DeOfimhftr 2011.
Attest:
By:.
its: rfYipgapjr
Borough Clerk
BOROUGH ACKNOWLEDGMENT
STATE OF ALASKA
)
) ss.
FIRST JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this day of . 2011, before me,
the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn,
personally appeared DAN BOCKHORST to me known to be the Borough Manager of the
KETCHIKAN GATEWAY BOROUGH, a municipal corporation, the corporation which
executed the above and foregoing instrument; who on oath stated that he was duly authorized to
execute said instrument; who acknowledged to me that he signed the same freely and voluntarily
on behalf of said corporation for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year in the certificate first above
written.
STATE OF ALASKA
NOTARY PUBLIC
AMANDA MACHADQ 1
My Commission Expt/et
V.
£
psLr,
NOTARY PtIBLIC FOR AllAS
My Commission Expires:
KA
STATE OF ALASKA
FIRST JUDICIAL DISTRICT
) ss.
THIS IS TO CERTIFY that on this
day of
T>oprr\V-gLr
2011, before me, the undersigned, a Notary Public in and for the State of Alaska, duly
commissioned and sworn, personally appeared KACIE PAXTON to me known to be the
Borough Clerk of the KETCHIKAN GATEWAY BOROUGH, a second class borough,
the entity which executed the above and foregoing instrument; who on oath stated that
she was duly authorized to execute said instrument and affix the corporate seal thereto
on behalf of said entity; who acknowledged to me that she signed and sealed the same
freely and voluntarily on behalf of said entity for the uses and purposes therein
mentioned.
WITNESS my hand and official seal the day and year in the certificate first
above written.
STATE OF ALASKA
NOTARY PUBLIC
AMANDA MACHAD'
My Commission Expire*
Q_
NOTARY"PUBLIC FOI
My Commission Expires:
SKA
ia_
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2011-003884-0
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A
L
A
S
K
A
2011-003865-0
Recording Dist: 102 - Ketchikan
12/29/2011 2:25 PM Pages: 1 of 15
RECORDATION
REQUESTED BY:
Alaska Poolflo Bank
Kstchlkan Offlco
410 Mission St.
Kotchlkon, AK
99901
WHEN RECORDED MAIL
TO:
Aloske Peclllo Bunk
2004 Jordan Ave.
Junoou, AK SBB01
SEND TAX NOTICES TO:
POWER SYSTEMS &
SUPPLIES OF
ALASKA LLC
PO Box 772
Ward Covo. AK
99028 . FOR RECORDER'S USE ONLY
Ml io?
DEED OF TRUST
THIS DEED OF TRUST Is datod Docomber 28, 2011. amono POWER SYSTEMS & SUPPLIES OF
ALASKA LLC. whose addross la 12077 North Tongass Highway; Ketchikan, AK 09001; An
Alaskan Limited Liability Company ("Grantor"): Aloska Paclilo Dank, whosa address la Katohlkan
Ottloo, 410 Mission St.. Kotchlkon, AK 09901 (roforrod to balow somollmos as 'Lander" and
sometlmoa as "Beneficiary"); and Alasko Escrow & Tlllo Insurenoe Agenoy, whosa oddress Is
PO Box B040, Kotchlkon, AK 90901 (roforred to below as "Trustoo").
CONVEYANCE AND GRANT. For valuable consideration. Grantor convoys to Trustee In trust,
with power of aslo. (or the benefit of Lander as Baneflolery, all o( Grantor's rloht, title, and
Intnrost In and to tho following described tobI property, tooether with all oxlstlng or
subsoquomly erected or affixed buildings, Improvomonts and fixtures; ell oesomonts, rights of
woy, and appurtenancos; all water, wotor rights and ditch rights (Including etook In utllltlos with
ditch or Irrigation tights); and all othor rights, royaltlos, and profits rolotlng to the reel proporty,
Including without limitation ell minerals, oil, gas, goothormal and similar manors, (the "Rosl
Property") localod In the Kotohlkan Reoordlng Dlstrlot, First Judlclnl Dlstrlot, tho State of
Aleska:
PARCEL NO. 11:
Lot 2, Gatoway Subdivision, within U.S. Survoy 10B6 (H.E.S. B6). according to tho plat
thereof filed August 14, 2000 bs Plat No. 2000-41, Ketchikan Roeordlng District, First
JudlclBl District, Stato of Alaska.
Tho Real Proporty or Its addross Is commonly known as 7BE9 N. Tongass Highway, Kotehlkan,
AK 99901.
Grontor prasontly naslgns to Londor (also known os Bonoficlary In this Deed of Trust) all of
Grantor's right, title, and Intarest In and to ad prosont and future lassos ol tho Proporty and all
Rente from tha Proporty as socurlty for the Indebtedness. In oddltlon to this assignment under
common law. Grantor grants to Londor a Uniform Commercial Code security Intorost In tho
Personal Proporty ond Rome.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY
INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS GIVEN TO SECURE (A) PAYMENT
OF THE INDEBTEDNESS AND IB) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER
THE NOTE. THE RELATED DOCUMENTS. AND THIS DEED OP TRUST. THIS DEED OF TRUST
IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Exoopt as otherwise provldod In this Deed of Trust, Grantor
-------
Loan No: 3128
DEED OF TRUST
(Continued)
Pnge 2
shall pay to Lander all amounts socurod by this Dood of Trust as thoy become duo, and shall
strlotly and (n a timely mannai peiform nil nf Grantor's obligations under tho Nolo, this Dood of
Trust, snd the Raloted Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grontor agrees thai Grentor's
possession and use of the Property shall be govoinod by tho following provisions:
Possession and Use. Until tho occurrence of art Event of Default, Grantor may (1) romeln
In possession and control of the Proporty; 12) use, oporato or monogo the Properly; end
(3) coltoct the Ronte from tho Property (this privilege Is a license from Londor to Grantor
automatically revoked upon dofeult).
Duty to Molmoln. Grantor sholl maintain the Proporty In tanemablo condition end promptly
perform all repairs, roplacomonts, and maintenance necessary to preservo Its valuo.
Compliance With Environmental Lews. Grontor roprosonts end warrants to Lender that: (1)
During iho period of Grantor's ownership of tho Property, ihoro has boon no use,
generation, monufecture, storage, treetment. disposal, roloaso or throetoned rolooso of eny
Heterdous Substonco by any person on, under, Bbout or from tho Proporty; {21 Grentor
has no knowlodgo of, or reeson to believe that there has been, except as previously
disclosed to Bnd ecknowledgod by Londor In writing, (o) eny broach or vloletlon of any
Environmental Lews, lb) any use, gonoratlon, manufacture, storogo, troatmont, disposal,
release or threatonod roloaso of eny Hezardous S.ubstance on, undor, ebout or from the
Proporty by any prior owners or occupants of the Proporty, or (c) eny ectuai or threetened
litigation or claims of any kind by any person roletlng to such mattora; and (3) Excepl es
previously dlsclosod to ond acknowledged by Lendor In writing, (a) nolthor Grantor nor ony
tenant, contractor, agent or other authorized user ol the Property shell uso, gonerete,
manufacture, etoro, treet, dispose of or roloaso eny Hozordoue Substonco on, undor, about
or from the Property; end (b) any such activity shall be conducted In compliance with ell
appllcoblo fodorol, state, ond local lews, regulotions end ordinances, Including without
llmltellon ell Environmental Lews. Grentor authorizes Lender ond Its egents to ontor upon
the Property to mnko euch Inspections end tests, at Grantor'e expeneo, os Londor may deem
appropriate to determine compliance of tho Properly with this section of the Dood of Truat.
Any Inspoctlone or testa mado by Lender sholl bo for Lender'a purposes only end shall not
bo construed to create eny responelblllty or liability on the part of Lender to Grentor or to
eny other parson. Tho roprosontetlons end werrentles contolnod horoin ere based on
Grantor's due dlllgonoo In Investigating Iho Property for Hezerdoue Suberences. Grentor
hereby (1) releases end waives any futuro clalme ogelnst Lender for Indemnity or
contribution In the ovont Grontor becomes liable for cleanup or othor costs undor eny such
laws; and (2) agreos to Indemnify, dolond, and hold harmless Lender against any and ell
claims, lossos, liabilities, damages, penalties, end oxponsos which Londor may directly or
Indirectly sustain or suffer resulting from a breach of this section of tho Dood of Trust or as
a consequence of eny uso, gonoratlon, manufacture, storage, disposal, release or threatened
roloase occurring prior to Grentor's ownership or Interest In the Property, whothor or not tho
somo was or should have baen known to Grentor. The provisions of this soctlon of tho
Deed of Trust, Including 1hs obligation to Indemnify ond dofond, shell survive the peymont
of the Indebtedness end the eetlsfectlon end reconvoyanco of the Hon of this Deed of Trust
and shall not ba elloclod by Londor's acquisition of Bny Intorosl In tho Proporty, whothor by
foreclosure or othorwlse.
Nulsanoe, Westo. Grantor shell not cause, conduct or pormlt any nuisance nor commit,
permit, or suffer eny stripping of or wests on or to the Property or any portion of tho
Proporty. Without limiting the generollty of tho foregoing, Grontor will not remove, or grant
to any othor party tho right to remove, any timber, mlnoralo (Inoludlng oil ond gas), coal,
clay, soorlo, soli, grovel or rock produote without Lander's prior written consent.
Removel of Improvements. Grantor shall not demolish or romovo any Improvements from
tho Reel Property without Lender's prior wrltlon consent. As a condition to the rorpoval of
eny Improvomonts, Lender mey require Grentor to meko errongoments satisfactory to
Lendor to ropfeco such Improvements with Improvements of el loeat oquol valuo.
Lender's Right to Entar. Londer and Londsr's agents and representatives mey ontor upon
tho Real Proporty et all raesoneblo tlmos to ettond to Londor's Intorosts and to Inspect the
Real Proporty for purposes of Grentor's compliance with the terms and conditions of this
Deed of Trust.
Compliance with Governmental Requirements. Grantor shell promptly comply with ell lows,
ordlnanoos, snd reguletlons, now or hereeher In effect, of ell govommDntel authorities
appllcoblo to the use or occupancy of tho Proporty, Including without llmltellon, tho
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Loan No: 3128
DEED OF TRUST
(Continued)
Pago 3
Amortcona With Dlaabllltlos Act. Grantor may contest In o°t>d ,allh 8"V »uch law-
ordinance, or regulation and withhold compliance during any procoodlng, Including'
appropriate appeals, eo long as Grantor has notlllod Under In writing prior to doing so and
so long os. In Lender's sole opinion, Londor's Intorosts In tho Property are not Jeopardized.
Lender may require Grantor to post ado quo to socurlty or o suroty bond, roasonably
satisfactory to Londor, to protoct Londw's Intorost.
Duty to Proteot. Grantor ogroes neither to abendon or loave unattended the Property.
Grentor shell do ell othor acta. In addition to thoso octs sol forth abovo In this soolton,
which Irom tho chareotor end uso of the Property are reasonably necessary to protect and
preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Londor may. el Landor's option, deetero Immedleloly
duo and payablo #11 sums socured by this Daed of Trust upon the sale or transfer, without
Lendar'a prior written consent, of ell or ony port of the Boa) Proporty. or any Intorost In tho Roal
Property. A "sale or transfer" moans tho conveyance of Roal Proporty or any rlaht, title or
Interost In tho Real Proportys whothor logal, banoflclal or oqultabla; whathor voluntary or
Involuntary; whether by outright sate, deed. Installment solo contract, lond contract, contract
for doed, community property ogreoment or community property trust or othor trust, loosohold
Intorost with o torm greator thon throo (3) yoars, laaso-optlon contract, or by solo, assignment,
or tronsfer of any beneficial Intorest In or to any land trust holding title to the Roal Proporty, or
by eny other method of conveyance of an Interest In the Reel Property. If any Grantor la a
corporation, partnership or limited Mobility compony, transfor olso Includos ony change In
ownorshlp of moro than iwonty-flvo porcont (26%) of tho voting stock, portnorshlp Intorosts or
limited liability compeny InteroBts, as the case may bo, of such Grentor. Howovor, this option
shell not be exorefsed by Lender If such exercise Is prohibited by federal low or by Alaska law.
TAXES AND LIENS. The following provisions rotating to tho toxos and lions on tho Property aro
part ol this Dood of Trust:
Payment. Grontor shell pay whon duo tend In all ovonts prior to dollnquency) all taxes,
speolal texos, ossossmonls, charges (Including water ond sewer), fines and Impositions
levied egBlnst or on account of tho Proporty, end ahall poy whon duo oil clalma for work
done on or for services rondorod or matorlal furnlshod to tho Proporty. Grantor shell
maintain the Property Ireo of all liens having priority ovor or oquol to tho Intorost of Londor
under this Deed of Trust, except for the lien of texos end assessments not duo and excopt
as otherwise provided In this Deed of Trust.
Right to Contost. Grantor may withhold payment of ony tax, assessment, or olalm In
conneollon with e good faith dlaputo ovor tho obligation to poy. ao long as Lender's Interest
In tho Proporty is not Jeopardized. If a lien arises or Is filed as a rnsult of nonpayment.
Grantor shell within fifteen (IS) doys altor tho lien erlsos or. If a lien Is filed, within fifteen
(16) days after Grantor has notice of tho tiling, secure the dlschorgo of tho lion, or if
roquostod by Londor, deposit with Lender cash or a sufflolant corporato euroty bond or
other security satisfactory to Londor In an amount sufficient to discharge the lien plus any
costs and reasonable ottornaya' fees, or othor chargos that could ocotuo as fl rosult of o
foroclosuro or solo under the Hon. In any contest, Grontor shall defend Itsslf Bnd Londor end
shall satisfy any adverso Judgmonl bolore onlorcoment against the Propsrly. Grantor shall
nemo Londor as en additions! obllgoo under eny suroty bond furnished In the contest
proceedings.
Evldonco of Paymont. Grontor ehall upon domand furnish to Lender satisfactory evidence of-
paymont of tho texos or assossrnonts and shall authorize the appropriate governmental
official to deliver to Londor at any llmo a written etalomon't of tho taxos ond essossments
against tho Property.
Notice of Construction. Grantor shod notify Londor ot loost flftoon (161 doys bofore ony
work Is commenced, any services ore furnished, ot any materials ere supplied to tho
Proporty, If ony mochonlo's lion, motorlolmen's Hon, or other lien could be assarted on
account of the work, sorvlces, or matorlals. Grantor will upon requost of Londor furnish to
Lender odvonce assurencos satisfactory to Lendor that Grentor oan end will poy tho cost of
such Improvements.
PROPERTY DAMAGE INSURANCE. The following provisions roletlng to Insuring Iho Proporty
oro a port of this Deod of Truet.
Melntonsnoe of Insurenoe. Grantor shall proouro and melntoln pollclos of Hro insurenco with
stonderd extended coverego endorsements on a cash basis for tho full Insurable vslue
covering all Improvements on tho Rool Property In on amount sufficient to avoid application
-------
I
DEED OF TRUST
Loin No: 3128 (Continued) Pege4
of any coinsurance clauie, and with a atandard morlgagoe olauso in lavor of Lendor.
Grantor shall also procure and maintain comprehensive generol liability Insuronco In such
covorego omounts oe Londor may roquost with Trustee ond Lander being named as
additional Insureds In such liability Insurance policies. Additionally, Grantor shall maintain
such othor Insurance, Including but not limited to hazord, buslnoss Interruption, and bolter
Inaurenco, as Lender may roesonBbly roqulro. Policies shall bo writton In form, amounts,
coverages and basis reasonably eecnptablo to Lander and Issued by a company or
oompenlos reasonably acceptable to Lendor. Grantor, upon request of Lender, will deliver to
Lendor from tlmo to tlmo tho pollclos or corllflcotos of Insuronco In form sotlsfeotory to
Lendor, Including stipulations that coverages will not bo cancollod or diminished without et
least ten (10) days prior written notice 10 Lender. Each Insurance policy also shell Include
on ondoreomont providing that coyorego In favor of Londor will not be Impaired In ony way
by eny act, omission or dofault of Grantor or any other person. Should the Reel Property be
looetod In an aroa doalgnBtad by the Director of tho Fodorel Emorgoncy Management
Agency es a special flood hazard area. Grantor agrooa to obtain and maintain Fedarel Flood
Insuronco, II avolleblo, within 46 deys after notice Is given by Lender that the Property Is
located In a apeclef flood hezerd aroa, for tho full unpaid prlnolpoi bBlenco of tho loen and
any prior liens on the property securing the loan, up to tho maximum policy limits sot undor
the National Flood Insuronco Program, or as otherwise required by Lender, and to maintain"
audi Insurance for tho torn) of tho loan.
AppHoatlon of Procoods. Grantor shall promptly notify Londor of any loss or damage to tho
Properly. Londor mBy mako proof of loss il Grantor fells to do so within llltoon (15) days of
the easuelty. Whether or not Lendor'a eoourlty Is Impaired, Londor may, at Londor'e
oloctlon, receive end reteln the proceeds of any Insurance and apply the proceeds to the
reduction of tho Indobtodnoss, poymont of any lien affecting the Property, or the restoration
end re pair of tho Property. If Londer olocts to epply tho procoode to restoration and ropalr.
Grantor shall ropalr or replace the dameged or destroyed Improvements In e manner
satisfactory to Londor. Londer shall, upon satisfactory proof of such oxpandlture, pay or
reimburse Grantor from the proceeds for tho roasoneblo cost of ropalr or restoration If
Grantor Is not In default under this Deed of Trust. Any proooede which have not boon
disbursed within 1B0 deys eftor their receipt end which Lender has not committed to the
repair or rostoratlon of tho Proporly shell bo used first to pBy any amount owing to Lender
under this Deed of Trust, thon 10 poy accrued Interoet, and tho romolndor. If any, shall be
applied to tho principal bolanco of tho IndebtodnoBS. If Londor holds ony procoeds of tar
payment In full of the Indebtedness, such procoods shall bo peld to Grentor es Grantor's
Interests may appear.
Grantor's Report on Insurance. Upon request of Lender, however not moro then onco a
yeer, Grentor shell furnish to Londer e report on oech oxlstlng policy of Insurance showing:
(1) the name of the Insurer; (2) the risks Insurod: (3) tho amount of tho policy; (4) tho
property Insursd, the than current roplecament velua of such property, end tho man nor of
detormlnlng that voluo; ond (6) tho oxplratlon doto of tho policy. Grantor ahalt, upon
raquoal of Lender, hevo an Independent opproisor satlsfeclory to Londor dotormlne the cesh
voluo replacement cost of the Property.
LENDER'S EXPENDITURES. If eny action or procoodlng Is commoncod that would materially
affect Lender's Intorsst In the Property or If Granior falls to comply with eny provision of this
Dood of Trust or any Releted Documents, Including but not limited to Grantor's felluro to
dlschergo or pey when duo eny amounts Grantor is raqulrad to discharge or pay undor this DeBd
of Trust or any Roleted Documents, Londor on Grantor'e bohnlf moy (but shall not bo obllgeted
to) taka any action that Lender deems appropriate. Including but not limited to dlsoherglng or
poylng all taxos, liens, security Intorasts, encumbrances end other olalma, at any time levied or
pieced on tho Proporly ond paying ell costs lor Insuring, melmolnlng and proservlng the
Property. AN such nxpandlturns Inourrad or paid by Londor for such purposes will then boar
Interest at the rate cherged under the Note unless peyment of Interest at that rata would bs
contrary to applicable low. In which evont such exponses sholl boar Intorost at tho highest reto
pormltted by applicable lew from the dete Incurred or peld by Lender to the deto of ropeymont
by Grantor. All such expenaos will bocoma a part of the Indebtedness ond, at Lender's option,
will (A) be peyeble on demond; (B) be added to the belenco of the Noto and bo epportlonod
among end bo payable with any Installment payments to become due during either (1) the
torm of any appllaablo Insuranoo policy; or (2) the romelnlng torm of tho Note; or (C) bo
tieetod es a balloon payment which will bo due end payeblo et tho Nolo'e maturity. Tho Deed
uf Trust also will secure payment of these amounts. Suoh right shall be In addition to ell other
rights end remedies to which Lender may be antltlod upon Default.
WARRANTY: DEFENSE OF TITLE. Tho following provisions roletlng to ownership of the
4 Of 13
2011-003865-0
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Loan No: 3128
DEED OF TRUST
(Continuod)
Pege 6
Property aro a pn/t of this Deed ol Trust:
Tlllo. Grontor warranto thet: (a) Qrantor holds good ond markstablo tills of rocord to the
Property in too simple, Iroo and clear of all lions and oncumbrences othar than thoso sot
lorlh In the Real Pioperly doscrlptlon or In ony lltla Inauranro policy, title report, or final title
opinion Issued In fevor of, and accepted by, Londor In connection with this Dood ol Trust,
and lb) Grantor hos tho lull right, power, ond authority to oxeoute and deliver this Deod of
Trust to Londar.
Defense of Tltlo. Subject to the exception In tho porograph above, Grantor warrants and
will forever dofond the tltlo to the Property against tho lawful claims of all parsons. In tho
event eny action or procoodlng Is commenced that quosllons Grontor'e title or the Intorost
of TruBtoo 01 Lendor undor this Dood of Trust, Grantor shell dofend tho action at Grantor's
expense. Grontor may be the nominal party In such proceeding, but Londor shall bo ontltlod
to participate In the proceeding end to be roprosontod In the proceeding by counsol of
Lender's own cholco, and Grantor will deliver, or cauao lo be delivered, to Lender such
Instruments ee Lender may roquest from tlmo to time to permit euch participation.
Compliance With Lawe. Grontor warrants thBt tho Proporly and Grantor's uso of tho
Property compllee with ell existing appllcoblo lows, ordinances, ond regulations of
governmental outhorltlos.
Survival of Representations and Warranties, All representetlons, wnrrontlos, and
agreements made by Grentor In this Dood ol Trust shall survive the oxocutlon ond delivery
of this Doed of Trust, shell be continuing In noturo, and shall romaln In full foroo ond effect
until such tlmo es Grsmor's Indebtedness shall be paid In full.
CONDEMNATION. The following provisions relating to condemnation proceedings are a part of
this Deed of Trust:
Procoedlngs. If eny proceeding In condomnetlon Is filed. Grantor shall promptly notlly
Lendor In writing, ond Grantor shell promptly toko such steps es mey bo nocossory to
defend tho ecilon end obtain the award. Grantor may be the nomine) party In such
proceeding, but Londor shell be entitled to pertlclpeto In the proceeding end to bo
represented In tho procoodlng by counsol of Its own cholco alt at Grontor's expanse, and
Grantor will dollver or cause to bo dollvorod to Lendor such Instruments end documentation
as may bo roquaatod by Lender from time to tlmo to permit such participation.
Applloatlon of Not Proceeds. If ell or any perl of the Property Is condemned by eminent
domain procoodlngs or by eny procoodlng or purchoto In lieu of condemnation, Londer may
et lie election requlro that all or any portion of tho not procoods ol the award ho appllod lo
tho Indobtodness or tho ropoir or restoration of the Proporty. The net proceeds ol tho
ewerd shall meen the uwerd eftor peyment of all reesoneble casta, oxponses, ond nttornaye'
fees Incurrod by Trustee or Lendor In connection with the condemnetlon.
IMPOSITION OF TAXES, FEES AND CHARGES DY GOVERNMENTAL AUTHORITIES. The
following provisions rotating to govommontol toxes, fees end chsrgoe oro a part of this Dead of
Trust:
Current Texos. Foos and Cherges. Upon request by Londor, Grantor shell execute such
documents In addition to Ihls Oood ol Trust end take whatevor othor notion Is requested by
Londor to porloct ond continue Lender's lion on tho Roel Property. Grentor shell rolmburso
Lendor tor all texos, es descrlbod bolow, together with sll oxponsos Inourred In recording,
porfoctlng or continuing this Dned of Trust, Including without llmitetlon all taxes, less,
documontory stamps, end othBr chargos for recording or registering this Dood of Trust.
Texes. The following eholl constitute taxes to which this section applies: (1) a spoclflo tax
upon this typo of Dood of Trust or upon all or eny pert of tho Indebtedness secured by this
Dood o( Trust; 12) a spocllio tax on Grontor which Grentor 1s authorized or roqulrod to
deduct from pnymonts on tho Indsbtedness secured by this type ol Deed of Trust; (3) o
tox on this typo ol Dood ol Trust chargosblo agolnst tho Londor or tho holdor ol the Note;
and (4) o spoclflc tox on oil or eny portion ol tho Indebtedness or on peyments of prlnclpel
and Interest medo by Grontor.
Subsequent Taxes. II any tax to which this socllon applies Is onaotod subsequent to thB
deto of this Dood ol Trust, this evont shell hsvo the somo effoct as en Event of Defeult, and
Lendor may exercise any or all ol Its ovolloblo romedles lor en Event of Dofeult os provldod
bolow unloss Grontor either 11) paya the tax bofore It becomes delinquent, or (2)
contests the tex es provldod obovo In the Texes and Liens sootlon end doposlts with Londor
oash or a sufficient corporete suroty bond or other socurliy satisfactory to Londor.
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loan No: 3128
DEED OF TRUST
(Continued)
Pege 6
SECURITY AGREEMENT; FINANCING STATEMENTS. Tho following provisions relating to this
Dood ol Trust us a security agreement aro b part of this Dead ol Trust:
Security Agreomont. This Instrumont shall constitute a Security Agroomont to the oxtont
any of the Property consiliums flxturoe, and Landor shall have all of the rights of a aoourod
party undor tho Uniform Commercial Code as amandod from timo to tlmo.
Security Interest. Upon roquost by Londor, Grantor shall take whBtevor action la requested
by Lander to perfect end continue Lonilor'e security intorost In the Rents and Paraonel
Proporty. In addition to recording this Oeod of Trust In the real proporty records, Londer
may, at ony tlmo and without further authorization from Grantor, filo oxocutod counterparts,
copies or reproductions of this Dood of Trust as a flnonclng statement. Orantor shall
reimburse Lender for ell exponooB Incurred In poifoctlng or continuing this security Interest.
Upon default. Grantor shall not romovo, sover or dotech tho Personal Property from the
Proporty. Upon dolault, Grantor shall assemble any Porsonel Proporty not afflxod to Iho
Property in a manner end at a place reasonably convenient to Grentor end Lender end mako
It available to Lender wllhln throo (3) doys after racolpt of written demand from Londer in
tho extont pormltted by applicable law.
Addrssaoi. Tho mailing addressos of Grantor (debtor) and Londor (secured portyl from
which Information concerning tho eocurlly Intorost granted by this Deed of Trust may bo
obtslnod loach as required by the Uniform Commercial Code) aro es stated on the first page
of this Dead of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT, Tho following provisions relating to further
assurances end altornoy-ln-fact are a part of this Deed of TruBt:
Further Assurenooa, At any tlmo, and from time to time, upon request of Lender, Grantor
will make, execute and dollver, or will cause to ba made, executed or dsllvorad, to Londor or
to Londor'e deslgnoe, and when requested by Lender, ceuso to bo fllod, rocorded, reflled, or
rorocordod, ea tho case may be, st such tlmeB and In such ofllcos and placos ob Londor may
doem appropriate, any and nil such mortgages, doods of trust, security deeds, socurlty
egroemonta, (Inonolng stotomonts, continuation statements. Instruments of furthor
essurance, cortlflcetos, end othor documonts as may. In the sole opinion of Londor, be
necessary or deslrBblo In order to offoctuate, oomploto, perfect, continue, or preservo (t)
Grantor's obligations undor tho Noto, this Deed of Trust, end the Related Documents, and
(2) tho llone end soourlty Interests creeled by this Deod or Trust os first ond prior liens on
the Proporty, whothor now owned or horeofler acquired by Grantor. Unless prohibited by
low or Lender egreea to the contrary In writing, Grentor shall reimburse Lender for ell costs
and oxponsos Incurred In connection with tha manors roforrod to In this perogreph.
Attornsy-ln-Faot. If Grantor fells to do any of the things referred to In the procodlng
peragroph. Lender mBy do so for and In tho nomo of Grantor and ot Grontor'a expenso. For
such purposes. Grantor horoby Irrevocably appoints Lender as Grantor'a attomoy-ln-fect for
the purposo of meklno. exocutlng, delivering, filing, recording, end doing ell other things as
may bo necessary or desirable. In Lender's sole opinion, to accomplish tho mettors roforrod
to In tho preceding paragraph.
FULL PERFORMANCE, If Grentor pays all the Indebtedness whan duo, and othorwlso performs
ell the obllgetlons Imposed upon Grontor undor this Deed of TruBt, Lender shell oxocuto and
dollvor to Trustee a requoet for full roconvoyenco ond sholl exoouto ond deliver to Gronior
sulteblo stotoments of termination Of any financing statement on Ilia evidencing Lendor's
security Inleroat In tho Rents and tho Parsonal Proporty. Any rooonvoyonce foe required by lew
shell be peid by Grentor, if permitted by eppDcablo law.
EVENTS OF DEFAULT. Each of the following, at Lander's option, shall constltuto an Event of
Default undor this Daod of Trust:
Payment Default. Grantor falls to mako any paymont whon duo undor tho Indebtedness.
Olhor Default*. Grentor falls to comply with or to porform any othor torm, obllgollon,
oovonant or condition contained In this Dood of Trust or In any of the Roleiod Documonts or
to comply with or to perform any torm, obllgetlon, covonant or condition contelned In any
othor agreomont between Lender and Grontor.
Compllenoo Default. Falluro to oomply with any othor torm, obllgetlon, covenant or
condition contained In this Deed of Trust, tha Note or In ony of tho Reletod Documonts.
Dofault on Othor Payment*. Failure of Grentor within tho tlmo roqulrod by this Deed of
Trust to moke any paymont for taxes or Insuronce, or any othor payment nocosaery to
provont filing of or to nffnet dlachorgo of any linn.
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Loon No: 3128
DEED OF TRUST
(Continued)
Page 7
Environmental Default. Folluro of ony po/ty 10 comply with or porlorm whon duo any torm,
obllgollon, covenant or condition contained In any environmental agreement executed In
connection with the Property.
Falso Stetoments. Any warranty, roprosontation or stoiomont made or furnlshod to Londor
by Grantor or on Grantor's bohelf under this Dood of Trust or tho Relatod Document* Is
falsa or misleading In any moterlal respect, either now or at the time made or furnished or
becomes false or misleading at any time theroettor.
Defective Collaterellzatlon. Thlt Deed of Trust or any of the Related Documents ceeses to
be In full force and offoot (Including falturo of any collateral document to croata a valid end
perfected eecurlty Interest or lien) et any time end for eny reason.
Death or Insolvency. Tho dissolution of Grantor's (rotjardlois of whether election to
contlnuo Is medo], any member withdraws from tho llmltod liability company, or any olhor
termination of Grentor'a oxlstenco a* a going buslnoss or tho doath of any membor. tho
Insolvency of Grantor, tho eppolntment of a rocolver for any part of Grantor's proporty, eny
assignment for the benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bonkruptoy or Insolvency lows by or ogalnst Grantor.
Cradltor or Forfeiture Prooeodlngs. Comnioncomont of foroolosure or forfolluro proceedings,
whether by Judicial proceeding, self-holp, reposaosslon or eny othor mothod, by any crodltor
ol Grantor or by any governments! Bgoncy against any proporty soourlng tho Indobtodnoss.
This Includes e garnishment of any of Grenior's accounts. Including deposit accounts, with
Lender.- Howavor, this Evont of Dofault shell not opply II thore Is o good faith dispute by
Grantor as to the validity or reosonebleness of tho claim which Is tho bests of the crodltor or
forlelturo proceeding ond II Grantor glvos Londor writton notloe of the oredltor or forfeiture
proceeding end deposits with Lender monlos or a surety bond lor tho creditor or lorlolturo
procoodlng, In an amount determined by Lender, In Ito solo discretion, as bolng an edoquoto
roservo or bond for tho dispute.
Breach of Olhar Agroomont. Any broach by Grantor under tho torms of eny other
agreoment betwoen Grantor and Lendor that Is not romodlod within any graco period
provldod therein. Including without limitation any agroomont concornlng any Indobtodnoss or
othor obllgollon of Grentor to Lender, whether existing now or letor.
Events Affootlng Guarantor. Any of tho preceding events occurs with respeot to eny
Guarantor of eny of the Indebtedness or ony Guorantor dies or becomes Incompetent, or
rovokos or disputes the velldlty of, or liability undor, ony Guaranty of tho Indebtodnosi.
Adverse Change. A materiel adverse change occurs In Grantor's flnanolal condition, or
Lender believes tho prospect of peymont or performance of tho Indebtedness Is Impaired.
Insecurity. Londor In good faith bollovos Itsolf Insacuro.
Right to Cure. If eny dofeult, other than a dofault In paymont Is curable and If Grantor has
not boon given a notice of a breach of the seme provision of this Dood of Trust within the
preceding tv/olvo (12) months. It mey be cured If Grentor, aftor Londor eonds writton notlco
to Grentor domendlng euro of such default: (1) cures tha dofault within flftoen (15) days;
or (2) If tho euro roqulros moro than llltoon (16) days, Immediately Initiates slops which
Londor deeme In Londor's sole discretion to bo sulllclont to euro the dofeult and thereefter
contlnuos ond completes ell reasonable end necasaary stops sufficient to produce
compliance as soon as rossonebly practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Dofault occurs under this Doed of Trust,
at any tlmo thorooftor. Trustee or Lendor moy exorclso any one or more ol ihe following rights
and romodies:
Election of Romodlos. Eloctlon by Londor to pursuo any remody shell not exclude pursuit of
eny othor romedy, and an election to make expondlluroa or to tako notion to porform an
obligation of Grantor under this Deed of Trust, efter Grantor's failure to perform, shall not
offect Lender's right to doclero e dofeult and oxorclso Its romodlos.
Accelerate Indebtedness. Londer shell have tho right at Its option without notice to Grantor
to doclare the entire Indebtedness Immediately duo and payable. Including eny propnyment
ponolly which Grantor would be required to pay.
Foreclosure. With rospect to ell or eny port of tho Proporty, Trusloo sholl hovo tha right to
soil tho Proporty pursuant to a nonjudicial fornclosuro sale end Trustee or Londor shall havo
tho right to soil the Property upon Judicial foreclosure. In either case In accordance with end
to Ihe full oxtont provldod tiy opplloablo low. If tho powor of salo Is invokod, Trustoe shall
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Loan No: 3128
DEED OF TRUST
(Continued)
Pago 8
oxocuto d wrltton notloe of the occurrence of an Event of Oafoult and of iho election-to
cause tha Properly to be told and shall rocord such notice In oech Rocordlng District In
which tho Proporty or somo part of tho Proporty la located. Trustoo shell mall coplos of tho
notice of dofeult, In tho manner provided by the laws of Alaska, to Orantor and to auch
other porsona as tho laws of Alaska prescribe. Trustee shall give notice of sole and shall
sell the Property according to the lows of Alaska. After the lapse of time required by law
following the recordation of tho notice of dofault, Trustoo, without demand on Grantor, may
sell tho Proporty at tha tlmo snd pIsco end under tho terms deslgnetad In tho notlco of sale.
In one or mora parcels and In auch order as Trustee mey determine. Trustoo may postpone
sole of all or any parcel of the Proporty by public announcement at the time end ploce of
any provlously schodulod salo. Londer'a or Lender'* destgnoo may purchoso tho Proporty ot
any sale.
Trustoo shell deHvor to the purchosor TruBtoo's dood convoying tho proporty so sold without
eny covenant or warranty, oppressed or Implied. The recitala In tha Trustee's deed shell be
prima iBde evidence of the truth ol the statements made In tha Trustee's deod. Trustee
shell apply tho procoeds of iho sola In the following order: (a) to all costs and oxponses of
the sale. Including, but not limited to, reasonsblo Trustee's and Bttornaya' fees, and coat of
title evidence; (b) to all sums socurod by this Doad ol Trust In such order es Lender, in
Lendor'e solo discretion, dlroots; and (c) tho oxcoss. If ony, to tho porson or porsons logally
entitled to the oxcoss procoeds.
UCC Remedies. With rospect to all or any part of tho Personal Properly, Lender shall have
oil the rights and remedies of a secured party under the Uniform Commercial Code.
Collect Ronts. Londor shall havo tho right, without notice to Grantor to take possession of
snd manage Iho Proporty end collect tho Rents, Including emounie post duo and unpaid, and
apply tho not procoeds. ovor and abovo londor'« coaia, agnlnst tho Indobiodnasa. In
furtherance of thle right. Lender may require any tenent or other user of the Property to
meko peymonts of ront or use loos dlroctly to Londor. If tho Rents are collocted by Lender,
then Grantor Irrevocably doslonetoa Londor os Grantor's atlornoy-ln-fact to ondorse
Instruments recelvod In peymonl theroof In tho nemo of Grantor and to nogotlato tho somo
end collect tha proceeds. Payments by tenanta or other usere to Londer In rosponso to
Londor's domond shall satisfy tha obligations far which tha payments era made, whelhor or
not any proper grounds for the domand existed. Londer may exercise Its rights under this
subparagraph either In pareon, by agont, or through a rocofvor.
Appoint Receiver. Lender shell have tho right to havo a reoolvor oppolntod to toko
possession of ell or any part of the Property, with tho power to protoot and prosoivo tho
Property, to oporoto iho Proporty procodlng foreclosure or sole, snd to collect tho Rants
from the Property end apply tha procoeds, over and abovo tho cost ol the rocolvershlp,
against tho Indobtodnoss. Tho receiver may serve without bond If pormlttod by law.
Londor's right to tho oppolntmont of a rocolvor shall exist whether or not the apparont vsluo
of tho Proporty exceeds the Indebtedness by n substantial omount. Employmont by Londer
shsll not dlsquellfy a porson from serving as a receiver.
Tenancy at Sufforanco. If Grantor romalns In possosslon of the Proporty aftor the Property
Is sold as provided above or Londer otharwlso becomes antltlod to possosslon of the
Proporty upon default Of Grantor, Grantor shall bacomo a tonant at sufforence ol Londer or
tho purchosor of tho Proporty ond shall, at Londar's option, either (1) pay a reasonable
rontal for tha uae of tho Proporty, oi (2) vacate the Proporty Immodlatoly upon tho demand
of Londor.
Other Romodloa. Trustoo or Londor shall havo any other right or remedy provided In this
Deed of Trust or tho Noto or evelleble ot law or In oqutly.
Notice of Sale. Lender shell give Grantor raaaonabla notice of the tlmo ond placo of eny
public salo of tho Porsonal Proporty or of tho tlmo aftor which eny private sale or other
Intonded disposition of the Personal Proporty la to bo mode. Roosonablo notice shall moan
notice given at loost ton (10) days boforo Iho time of the sale or disposition. Any salo of
the Peraonal Property may be medo In conjunction with ony salo of tho Roal Property.
Salo of tho Property. To tho oxtont pormlnod by eppllcobla low, Grantor hereby welvns any
and all rights to havo Iho Proporty marahollod. In oxorclslng Its rights and remedlee. the
Trustoe or Lender shod be free to sell ell or eny pert of tho Property togethor or sopsrotoly.
In ono solo or by sopareto solos. Londor shall bo ontltlad to bid at ony publle aete on ell or
eny portion of tho Proporty.
. Attorneys' Fees; Expenses. If Londor Institutes any ault or action to onforco eny of the
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Loan No: 3128
DEED OF TRUST
(Continued)
Pago 9
forms ol this Dead of Trust, Lander shall bo entitled to rocovor such sum as tho court may
adjudge roasonobla as attorneys' faas at trial and upon any appoal. Whothor or not any
court action la Involved or pending, and to tho extent not prohibited by law, all reasonable
oxponsos Lander Incurs that In Lendar'a opinion aro necosoBty at ony time lor tho protection
of Ite Interest or the enforcement of Its rights shall become a part of the Indebtedness
payable on demand and shall boar Intorost ot tho Nolo roto unless payment of Intarest at
that rate would be contrary to appllcablo law. In which ovent such exponsos shoB beer
Intorost at the highest rata permitted by appllcablo law Irom tho doto of tho oxpondlturo
until repold. Exponsos covered by this paragraph Include, without llmltotlon, howovar
subjoot to ony limits undor applicable law, Lander's raosonahlo attornoya' foas and Lender's
legal expenses whother or not thero Is a lawsuit. Including reasonable attorneys' fees and
oxponsos for bankruptcy proceedings (Including ot foils to modify or vacate any automatic
stay or Injunction), appeals, and any anticipated post-Judgment collodion sorvlcos, the cost
of searching rocords, obtaining tltlo reports (Including foraclosure roports), survoyora'
reports, and appraisal feoa, tltlo insurance, ond foas (or the Trustee, to the extent permlttod
by applicable low. Grantor also will pay any court coats, In oddltlon to all other sums
provided by law.
Rights of Trustee. Trustee shall have all ol the rights and dutlos of Londor os aet forth In
this aeotton.
POWERS AND OBLIGATIONS OF TRUSTEE. Tho following provisions relating to tho powors
and obligations of Trustee (pursuant to Londar's instructions) are part of this Deed of Trust:
Powors of Trustee. In addition to all powers of Trusteo arising as o mattor of law, Trustee
shall havo the power to take the following aotlons with rospoct to tho Property upon the
written request of Londor and Grantor: (a) Join in preparing and filing a map or plai of tho
Roal Property, Including tho dodlcailon of stroots or othor rlohts to the public; (b) Join In
granting any easomont or creating any restriction on tho Roal Proporty; and (c) Join In any
subordination or othor agroomont offoetlng this Deed of Trust or tho Intorost of Lender
undor this Deed of Trust.
Trustee. Trustoo shall meat all qualifications roqulrod for Trusteo under applicable law. In
addition to tho rights and ramodles set forth abovo, with rospoct to oil or any part ol the
Property, tha Trustoo shall, upon default, have the right to sell the Property by notice and
non-Judicial sbIo, and Trustoo or Londor sholl hove the right to soil tho Proporty by Judicial
action and foreclosure Bale. In olthor case In accordance with Bnd to the full oxtont provldod
by applloablo low.
Susoossor Trustoo. Londor, ot Lender's option, may from time to time appoint a successor
Trustee tcTany Trustoo appointed under this Deed of Trust by on Instrument exeoutod and
acknowledged by Londor and rocordod In the office for the Kotchlkon Recording District,
First Judicial District, State of Alaska. Tho Inatrumont shall bo executed and acknowledged
by Lendor or Londor's successor In Intorost, end sholl contain. In addition to all othor
matters roqulred by stete law, tho dato this Daed of Trust was oxoouted, tho' names ot the
original Londor. Trustee, and Grantor, tho book ond pogo whare thla Daod of Trust is
recorded, the nemo ond addross of the successor trustoo, ond oithor on acknowledgment
slgnod and acknowledged hy tho Trustoo nomod In this Deed of Truot of a rocolpt of a copy
ol the Instrument or an affidavit ol service ol a copy of tho instrument on the Trustoo. Tho
successor trustoo, without convayanco ol the Property, shall succood to all tho title, power,
Bnd dutlos conforred upon the Trustoo In this Dood of trust and by appllcablo law. This
pror.eduro for substitution of Trustee shall govern to the oxcluslon of all other provisions for
substitution.
NOTICES. Unless otherwlso provldod by applicable law, any notice roqulrod to bo given under
This Dood of Trust, Inoludlng without limitation ony notice of default end eny notlco of ssle shall
be glvon In writing, and shall be elfoctlvo when ootuolly dollvorod, when actually rocolvod by
talofaeslmllo (unless otherwise requlrod by law), whon doposltod with a nationally racognltad
overnight courlor, or. If mailed, whon deposltod in tha Unltod Statos mall, as llrsl closs, cortlfiod
or registered mall poataga prepaid, dirootod to tho oddrosses shown noer the beginning of this
Deed of Tiust. All copies of notices of foreclosure from tho holdor of any lion which has
priority over this Deed of Trust shell be sont to Londor's address, as shown near tho boginnlng
of this Dood of Trust. Any parly may change Its eddrooo for notlcos undor this Dood of TruBt
by giving formal written noilco to tho othor portlos, specifying that the purposo of the notlco is
to change the party'e address. For notice purpoaoa, Grantor ogroas to keep Lender Informod at
oU tlmoa of Grontor's curront address. Unloss otherwlso provldod or roqulred by law, if thore Is
moro than ono Grantor, ony notlco glvon by Londer to eny Grantor Is doamod to bo notlco glvon
to all Grantors.
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Loon No: 3128
DEED OF TRUST
(Continued)
Pago 10
MISCELLANEOUS PROVISIONS. The following mtscollanoous provisions nra a part of this Dead
of Trust:
Amendments. This Doed of Trust, togother with any Related Documents, constitutes tho
ontlro understanding and agroemont of tho partloa os to Iho mentors set forth In this Dead of
Trust. No alteration of or emondmont to this Dead of Trust shall bo sftoctlvo unless given
In willlno and signed by tha party or partial sought to bo charged or bound by the eltoretlon
or amendment.
Annual Roports. If tha Proporty Is usod for purposos othar than Grantor's rosldonco.
Grantor ahBll furnish to Lender, upon request, a cortlliod stalomont of net operndng Income
received from tho Properly during Grantor's provlous fiscal your In such form and dotoil as
Lander shell require. "Not oporallng Income" shall mean all cash rooolpts from tho Property
less ell cosh expenditures made In connoctlon with the operation of tho Proporty.
Caption Headings. Caption headings In this Dood of Trust aro for convenience purposes
only end aro not to bo used to Interpret or dBflne the provisions of this Deod of Trust.
Merger. There shell bo no merger of tho Interest or estate crentod by this Dood of Trust
with any other Interest or esteto In tho Proporty et any time held by or for the boneflt of
Londor in ony cepaclty, without the wrltton consont of Londor.
Oovemlng Lew. This Deed of Trust will be governed by federal lew applicable to Londor
and, to the extent not preempted by fodorel few, tho lows of the State of Alaske without
regard to Its conflicts of law provisions. This Dead of Trust has boon occoptod by Lender In
tho Slate of Aleske.
Cholco of Venue. II there le e lawsuit, Qrantor agrooa upon Lander's requoat to eubmll to
tho Jurisdiction of the Alaske atoto courts In tho Judicial District at or nearest Lendor'e
address shown horoln, or at Lender's option, to Iho Jurisdiction of the courts whorevor eny
Property is locetod.
No Weiver by Londor. Lendor shell not bo deemed to have weivod any rights undor this
Dood of Trust unless such weiver Is glvon In writing ond stoned by Lender. No deley or
omission on the part of Lender in exorcising eny right sholl oporete as a waiver of such right
or any othor right. A woivor by Lender of e provision of this Oood of Trust shell not
prejudice or constltuto o woivor of Londor's rloht otherwise to demend strict compliance
with thot provision or eny other provision of this Deod of Trust. No prior waiver by Lender,
nor ony course of doeling botwoon Londor and Grantor, shell constltuto a waivor of ony of
Londor's rlghrs or of eny of Grantor's obllgotlons os to any future trensectlona. Whonovor
tho consont of Londar Is required undor this Dood of Trust, tho granting of such consent by
Lender In eny Instanco sholl not constitute continuing consont to subsequent instences
where such consont Is required and In all cases such consont may be grsntod or withheld In
the sole discretion of Londor.
Severability. If e court of compotont Jurisdiction finds any provision of this Dood of Trust to
bo lllogal. Invalid, or unenforceable as to any clrcumstenco, that finding shell not meko the
offending provision Illegal, Invalid, or unonforcoeblo as to any- other clrcumstence. if
feasible, tho offondlng provision shall be considered modltlod so thet It hocomos logol, votld
ond enforceable. If the offending provision cennot be so modified, It shell be considered
deleted from this Doed of Trust. Unloss otherwise roqulrod by low, tho lllogallty. Invalidity,
or unenforceability of any provision of this Dood of Trust shall not affect tho legality,
validity or onforcoablllty of eny other provision of this Dood of Trust.
Successors and Assigns, Subject to eny limitations stated In this Deed of Trust on transfer
of Grantor's Intorost, this Deed of Truet shell bo binding upon ond inure to the benefit of the
pertlos, their successors end assigns. II ownership of tho Proporty becomes vostod In e
person other then Grantor, Londor, without notice.to Grantor, may doal with Grantor'9
successors with rotoronco to this Dood of Trust ond the Indebtedness by wey of
forbearance or oxtenslon without reieeslng Grantor from tho obllgotlons of this Doed of
Trust or liability under tho Indobtodnees.
Tlmo Is of the Essence. Time le of the ossonce In tho porformonco of this Dood of Trust.
Weiver of Homostoed Exomption. Grantor hereby releeses end welvos ell rights end
benefits Df tho homostoed oxomptlon laws of tho Stole of Alasko os to all Indebtodnoss
socured by this Deed of Trust.
DEFINITIONS. The following oepftellied words end torms shell have the following meanings
when used In this Deed of Trust. UnlosB specifically stated to tho contrary, ell roforoncos to
dollar omounts shell mean omounts in lawful money of the United States of Amerlce. Words
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Loin No; 3128
DEED OF TRUST
(Continued)
Pago
ond terms mod In tho singular shell Includo I ho plural, and tho plural shall Include the singular,
as the context may require. Words and terms not othorwlso do/lnod In this Dood of Trust shall
hnvo tho moanings attributed to such terms In tho Uniform Commorclol Codo:
Bsnsflolsry. Tho word "Benoflclery" moans Alaska Pacific Dank, and Its successors and
ocslons.
Borrower. Tho word "Borrowor" means POWER SYSTEMS & SUPPLIES OF ALASKA LLC
and Includoa all co-slgnorB and co-makors signing tho Note and all their successors and
assigns.
Dead of Trust. Tho words *Dood of Trust* mean this Deed of Trust among Grantor, Londer,
and Truetoe, ond Includoa without limitation oil assignment ond security Intorost provisions
relotlng to the Personal Property and Rents.
Default. The word 'Default" moons the Default set forth In this Dead of Trust In tho soctlon
titled "Default*.
Environmental Laws. The words "Environmental Lews* moan ony and all stoto, lodorel Bnd
local atatutos, regulations ond ordlnoncos relating to the protection of human hoelth or the
anvlronmont, Including without limitation tho Comprohenslve Environmental Response,
Compensation, end Liability Act of 1080, as omondod, 42 U.S.C. Section 0801, et seq.
("CERCLA"), the Superlund Amendments and Reauthorization Aot of 1900, Pub. L. No.
89-4D9 ("SARA"), tho Hozardou's Materials Transportation Act, 49 U.S.C. Sootlon 1801, ot
seq., the Reiourco Conservation and Recovery Act, 42 U.S.C. Soctlon 6901, et seq., or
other applicable state or federal lews, rules, or rooulatlons adopted pursuant theroto.
Event of Default. Tho words "Evont of Default* mean any of the events of dolsult sot forth
In this Deed of Trust.ln tho ovonts of delault section ol this Deed of TruBt.
Orantor. The word "Grantor" means POWER SYSTEMS & SUPPLIES OF ALASKA LLC.
Guarantor. Tha word "Guarantor* means any guarantor, suroty, or accommodation party of
any or all of the Indebtedness.
Guaranty. Tho word "Queronty* means the guerenty from Guerentor to Lendor, Inoludlng
without llmltetlon a guaranty of all or port of tha Nolo.
Hazardous Substances. Tho words 'Hazardous Substonces* moan materials that, because
of their quantity, concontrotlon or physical, chemical or Infootlous characteristics, moy
cause or pose t> present or potontial hazard to human health or tho onvlronmont whan
Improperly used, treeted, stored, disposod of, gonoratod, manufactured, transported or
othorwlso handled. The words "Hazardous Substancos" aro used In tholr very broadost
senae and Includo without limitation any ond oil hazardous or toxic substances, metorlals or
wasto as defined by or listed under tho Environmental Laws. The term "Hazardous
Substoncos* also Includea, without limitation, petroleum and petroleum by-produots or any
fraction thereof and asbostos.
Improvements. Tho word "Improvements* moons all existing and future improvements,
buildings, structurss, mobile homaB efflxad on tho Roof Properly, facilities, additions,
roplncaments end othar construction on tha Real Property.
Indebtedness. Tho word "Indabtodnose* moans oil prtnclpal, Intorost, ond other emounts,
costs ond expenses peyable under tho Noto or Rolotod Documonts, together with oil
ronowels of, oxtenslons of, modifications of, consolidations of and substitutions for tho
Note or Roletod Documonts ond eny amounts oxpendod or odvanced by Lender to diaohargo
Grantor's obligations or oxpaneea Incurrod by Trustee or Lendor to onforce Grantor's
obligations under this Deed of Trust ..together with Intorost on such amounts aa provldod In
this Dood ol Trust.
Londor. Tho word "Lander" means Alaska Pacific Bank, Its succossors end assigns.
Noto. The word "Noto* moons tho promissory noto dated December 28, 2011, In tho
original principal amount of $1,785,000.00 from Grantor to Lendor, together with ell
renewels of, oxtonslons of, modifications ol. rofinonclngs of, consolidations of, ond
substitutions for tha promissory noto or ogteoment. The meturlty dele of this Dood of Trust
Is January 1, 2032. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST
RATE.
Porsonal Properly. Tho words "Personal Property" moon all oqulpmont, fixtures, end other
articles ol persons! property now or hereeftor owned by Orantor, end now or horaoltor
ettechod or aflixod to tha Reel Property; togather with bII accessions, parts, and additions
-------
Loan No: 3128
DEED OF TRUST
(Continued)
Page 12
to, all replacement! of. and all substitutions lor, any of such proporty; and togother with all
Issuos and prollts tharoon and proceeds (Including without limitation all Insuisnce proceeds
end rofunds of promlums) from any sale or other disposition of tho Property.
Property. The word "Property" means colloctlvely the Real Property and the Porsonel
Property.
Rest Property. Tho words "RbsI Property" mean tho rosl proporty, Interosts end rights, as
further described In this Deed of Trust.
Bolnted Dooumonti. The words "Raloted Documents" moan all promissory notes, credit
egroomonte, loan agreements, onvlranmontel agrooments, guaranties, security ogrooments,
mortgagos, doods of truat, eocurlty deeds, collotoml mortgages, and all othor Instruments,
agroomonts and doouments, whether now or horoofter oxlstlng, oxecutod In connection with
tho Indebtedness.
Rents. Tho word "Ronts" moans all present end futura rents, rovonuos, Incomo, Issuos,
royoltlos, profits, end othor bsnellts derived from tho Proporty.
Trustoe. Tho word "Trustee* moans Alaska Escrow & Tltlo Insurenco Agency, whose
addrass Is PO Box 6040, Kotohllcon. AK 99801 and any substltuts or successor trustaos.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST.
AND GRANTOR AGREES TO ITS TERMS.
GRANTOR:
POWER SYSTEMS & SUPPLIES OF ALASKA LLC
=,:_S^Z
David C. Spokoly, Momb SYSTEMS &
SUPPLIE^dF ALASKA
By: P
P. Spokoly. MomUfif of POWER SYSTEMS &
3PPLIES OF ALASKA LLC
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF
JUDICIAL DISTRICT
)
) SS
I
On this
2K6
doy of . 20 \ I boforo mo, tho
undorslgnod Notary Public, porsonally appeared David C. Spokely, Mombor of POWEn
SYSTEMS & SUPPLIES OF ALASKA LLC and Andrew P. Spokely. Member of POWER SYSTEMS
& SUPPLIES OF ALASKA LLC, end known to mo to be mombors or doslgnatod agonts of tho
llmltod liability company thot oxocutod tho Oasd of Trust and acknowledged tho Doed of Trust
to be tho Iroo snd volunlery act and deed ol the Ifmltod liability company, by authority of
statute. Its articles of organization or Its oporatlng agroomant, lor tho usos and purposos thoroln
mentioned, end on oath stated that they are authorlied to execute this Deed of Trust and In
foci executed the Deed ol Trust on boholl of tho llmltod liability company.
By Residinn »t KfrXhifVvn
Notary Publlo In end for the State of My commission expires J dt
STATE OF ALASKA
NOTARY PUBLIC
AMANDA MACHAD
My Commission Expires
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Loan No: 3128
DEED OF TRUST
(Continuodl
Pago 13
REQUEST FOR FULL RECONVEYANCE
(To bo used only whon obltgotlone hove boon paid In full)
To: , Trustoo
Tho undorslgnod Is ths legal own»r and holder of all Indebtodnosa secured by this Dood of
Trust. All sums socured by this Dood of Trust have bBsn fully paid and aatlsflad. You ero
horoby directed, upon paymont to you of ony sum* owing to you under the terms of this Deed
of Trust or pursuant to any eppllceblo atntuto, to cnncol tho Nolo secured by this Deed of Trust
(which Is dellvorod to you together with this Deed of. Trust), and to roconvoy, without warranty,
to tho parties rioslgnnted by tho forms of this Deed ol Trust, the estate now hold by you under
this Dood of Trust. Pleas# mall the roconvoyonco ond nolatod Documonts to:
Dato: Benoflclary;
By:.
Its:
LASER PRO Lending, Vor. 6.67.00.004 Copr. Herland Financial Solutions, Inc. 1097, 2011.
All Rights Roserved. - AK F:\APPS\CFI\LPL\001.FC TR-7006 PR-11
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KPC AGREEMENT ACKNOWLEDGEMENT
This KPC AGREEMENT ACKNOWLEDGEMENT ll etteohod to and by tilts roforonce li made a
perl of the Died of Truat, dated December 2B. 2011. end oxocutod In connection with n loen or
other flnenclol accommodation* between ALASKA PACIFIC BANK end POWER SYSTEMS &
SUPPLIES OF ALASKA LLC. -
Aloske Pacific Bank, roforrod to In this Dood of Trust as "Lander" end sometlmos as
"Beneficiary," In further consideration for. and ee a condition to, this Instrument, horeby ogroos
that tho ronl property Interests It Is hereby acquiring from. Power Systems & Supplies of Alaska
LLC, as referrod to horeln ns tho "Trustor" under tho terms of this Deed of Trust, ate subloot to
tho seme limitations and conditions as the ones applicable to end which ero set forth In that
"Aoreoment," ontorod Into by ond bolwoen Ketchikan Gateway Borough, a municipal
corporation, Ketchikan Pulp Compeny, a Washington corporation, ond Gotoway Forest Products,
Inc., en Alesko corporation, according to the terms and provisions thoroof, doted July 14,
7003, Bnd recorded July 10, 2000, undor Ketchikan Recording District Serial No.
2008-002000-0, Ketchikan Rocordlng District, First Judlclel District. Stoto of Alaska, o copy of
which Benoflclery acknowledges having received, and which Is Incorporated by reference In this
instrumont as fully sot forth herein. In particular, all releases, walvora, end limitations on clnlms
against Ketchlken Pulp Company, Its agonts, servante, employees, offloera, directors, portnere,
principals, sharoholdore, or ony of thoir Insurance oompenles ond contraotorn. Including, but not
limited to, environmental claims, whothor arising under CERCLA, 42 USC 9801 ot soq.; RCRA,
42 UCS 6901 at soq.; AS 40.03.822: or othorwtee, as they now exist or hereeftor may bo
amondod, to which the Borough concurred, are hereby agrood to bo applicable ond In full forco
and effect.
Further, the parties to this Agrooment egroo that Kotchlken Pulp Company, Its sherelioldors,
eucosssors, holrs, and assigns, sre third party bonoflolerlos of this Agrooment and any future
agreements ooncernlng the property.
BENEFICIARY, the Aleska Paolfle Bank. HEREBY AGREES THAT LANGUAGE IDENTICAL TO
THE PREVIOUS TWO PARAGRAPHS SHALL BE INCORPORATED INTO ANY FUTURE LEASE,
SALE, OR CONVEYANCE OF ANY INTEREST IINCLUDING DEEDS OF TRUST) IN ALL OR PART
OF THIS PROPERTY,
THIS KPC AGREEMENT ACKNOWLEDGEMENT IS EXCUTED ON DECEMBER 28, 2011.
IMENT IS EXECUTED ON DECEMBER 28. 2011.
GRANTOR:
uniiiUM.i.^uiiMH'u.iu^uimwHUiiniin. mwwuK nnuiiff
iiMiiii
mi
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KPC AGREEMENT ACKNOWLEDGEMENT
PAGE 2
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL PROTECTION EASEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS, DATED OCTOBER 28,1999 RECORDED IN THE
KETCHIKAN RECORDED DISTRICT, FIRST JUDICIAL DISTRICT, STATE OF
ALASKA, ON OCTOBER 28, 1999 IN BOOK 305 AT PAGE 772 THAT IS IN FAVOR
OF AND ENFORCEABLY BY, THE STATE OF ALASKA.
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A
L
A
S
K
A
2011-003866-0
Recording Dist: 102 - Ketchikan
12/29/2011 2:27 PM Pages: 1 of 15
IH
RECORDATION
REQUESTED BY:
Alaska Pnclllc Bank
Kotehlkan Office
410 Mission St.
Kotehlkan. AK
99801
WHEN RECORDED MAIL
TO:
Alaska Paclflo Dank
Ketchikan Offlca
410 Mission St.
Ketohlkan, AK
90901
SEND TAX NOTICES TO:
Alaska Paclflo Bank
Kotchlkon Office
410 Mission St.
Ketchikan, AK
39901 FOR RECORDER'S USE ONLY
4110?
DEED OF TRUST
THIS DEED OF TRUST la dfttod December 20, 2011, among POWER SYSTEMS & SUPPLIES OF
ALASKA LLC, whoso address Is 12077 North Tongoss Highway, Kotehlkan, AK 98001; An
Alaskan Limited Liability Company ("Grantor"); Alaska Paclflo Bank, whose address Is Ketchikan
Office, 410 Mission St., Ketchikan, AK 99901 (rofoirod to below sometimes as "Lender* and
Bomsllmoa ai "BonoflclaryM|; end Alaska Eaorow & Tltlo Insuranco Agency, whoso addrass Is
PO Box 6040, Ketohlkan, AK B9901 (roforred to below es 'Tiustoo'l.
CONVEYANCE AND GRANT. For voluablo consideration, Orantor convoys to Trusloo In trust,
with power of sele, for Iho boneflt of Lender as Benoflclary, oil of Grontor's rloht, title, and
Intorest In end to tho following described reel property, togothor wllh ell existing or
subsequently oroctod or alflxod buildings. Improvements and fixtures: all aaiamenls, rlohts of
way, and eppurtenancos; all wator, wator rights and ditch rights (Including stock In utilities with
ditch or Irrigation lights); and all othor fight#, royalties, ond profits relating to tho roel propoity.
Including without limitation ell minerals, oil, gas, geolhormal end similar mettors, (tho "Real
Property") looetod In the Ketchikan Recording Dlstrlot, First Judicial District, the Stete of
Aleiko:
PAnCEL NO. 13:
Tract 3019 of the Word Covo S.E. Roplot of portions of U.S. Survey No.'a 160S and 1BS9,
and a portion of Alaska Udelands Survey No. 1, eooordlng to tho pint thereof filed August
2, 2006 OS Plat No. 2006-30, Ketohlkan Rooordlng Dlstrlot. Flret Judlolel District. State of
Alaska.
The Real Property or Its address Is commonly known es BBS1 N. TonQass Highway, Ketchikan,
AK 00901. Tho Raal Properly tax Identification number Is 313220006100.
Grantor presontly assigns to Lander (also known os Boneflclery In this Deed of Trust) ell of
Grontor's right, tlilo, and Interest In and to oil present and futuro loa.ios of tho Proporty end all
Rents from the Propoity ns socurlty for tho Indebtedness. In addition to this assignment undor
common low, Orantor grants to Londor a Uniform Commercial Code security Interost In tho
Pereonal Proporty ond Ronts.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY
INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT
OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER
THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST
IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
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Loan No: 3128
DEED OF TRUST
(Continued)
Pago 2
PAYMENT AND PERFORMANCE. Excopt o* otherwise provldod In this Doad of Trust. Grantor
shell pay to Londor en omoynts aocurod by (his Dood of Trust as thoy bocomo duo, and shall
strictly and In o timely manner perform all of Orantor's obligations undar tho Note, this Deod of
Trust, ond tho Rolated Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Crontor agroos that Grantor's
possession and use of the Properly shall be oovornod by tho following provisions:
Possession and Use. Until tho occurrence of an Event of Defeult, Grantor may (1) romeln
In possession and control of tho Proporty; (2) uso. oporato or manage tho Property; ond
(3) collect the Rents from the Property (this prlvllogo Is a license from Londor to Gremor
automatically rovokod upon dolault).
Duty to Maintain. Grantor shall maintain the Proporty In lonantablo condition and promptly
perform all ropelre, roplaooments, and molntonanco necessary to preserve Ita value.
Compllanoo With Envlronmontel Lows. Grontor roptosonts and worranta to Lender that: (1)
During the psrlod of Grantor's ownership of tho Property, thoro has boon no uso.
QOnoration, monufaclure, storage, treatment, disposal, release or thraBtoned release nf any
Hazardous Substenco by ony person on, undor, about or from tho Proporty; (2) Grantor
hae no knowiedgo of, or roason to bellovo that thoro has boon, oxcopt ns previously
disclosed to and acknowledged by Lender In writing, (a) any broach or violation of any
Environmental Laws, (b) sny use, generation, manufaoturo, storago, troatmant, disposal,
rolease or throotened raleose of any Hazardous Substance on, under, about or from the
Property by any prior ownors or occupants of the Property, or (c) any actuel or threatened
litigation or claims ol any kind by any person rolatlng to such moltors; and (3) Excopt as
previously disclosed to and acknowledged by Lender In wrtllno, (a) nolthor Grentor nor eny
tonent, contractor, osont or othor authorized user of the Property shall use, genereta,
manufacture, store, troat, dlsposo ol or release eny Hazardous Substance on, under, about
or from the Property; end (b) any suoh activity shell bo oonduotod In compliance with all
applicable federel, state, and local laws, regulations end ordlnoncos. Including without
llmltotlon all Environmental Lbwb. Grantor authorlzos Londor and Ita agents to enter upon
tho Property to moke such inspections and tosts, at Qrantor'a oxponao, os Londor may deem
appropriate to dotormlno compliance ol the Property with thla section of the Doad of Trust.
Any Inspeotlone or toata made by Londer ehotl be for Londor'8 purposes only end ehall not
be construed to create eny responsibility or llabllltY on the part ol Londor to Grantor or to
eny othor porson. Tho roprosonletlont onii warranties contained heroin aro based on
Grentor'a due diligence In Investigating the Property for Hazardous Substances. Grantor
hereby (1) releases end waives any futuio claims against Londor for Indomnlty or
contribution In tho ovent Grantor becomes liable for cleanup or other costs under eny such
laws; end (2) ogrooa to Indemnify, dofond, and hold harmloes Londor against any and oil
claims, losses, liabilities, dsmeges, penalties, and oxponsos which Londer may directly or
Indiroctly sustoin or suffer rosultlng from a breach of this section of the Dood ol Trust or as
a consequence ol ony uso, gonorotion, monufecture, storage, dlsposel, roloaso or throatonod
releese occurring prior to Grantor's ownorehlp or Inlorost'in the Proporty, whether or not the
seme was or should hsvo been known to Grentor. Tho provisions of this section of the
Dood of Trust, including the obligation to Indomnlty ond dofend, shall survive the payment
of tho indabtodnoss and tho sstlsfactlon and reconveyanco of tho Don of this Dood of Trust
and shall not be effeoted by Lender's ecqulsltlon of eny Intorost In the Property, whether by
foroclosuro or otherwise.
Nuisance, Westo. Grantor shall not ceuso, conduct or permit any nuisance nor commit,
pormlt, or suffor any atrlpplng of or wasto on or to tho Proporty or any portion of tho
Proporty. Without limiting the generellty of the foregoing, Grentor wilt not romovo, or Brant
to any other parly the right to romovo, any timber, minerals (Including oil end ges), cobI,
clay, scoria, soil, grevol or rook products without Londor's prior wrltton consont.
Removal of Improvomonts. Grantor shall not demolish or remove any Improvements from
the Real Proporty without Londor's prior wrltton consont. A3 o condition to tho romovol of
any Improvements, Londor may require Grentor to mako arrangements satisfactory to
Londor to roplaco such Improvomonts with Improvements Df at least equal veluo.
Lender'a Right to Entor. Londor and Londor'B egonte and roproBontotlvos may ontor upon
the Reel Property at ell roasoneblo timos to nttond to Londor's Intorosts and to Inspect tho
Roal Proporty lor purposos of Grontor's compliance with tho torms and conditions of this
Deod of Truet.
Compliance with Qovernmental Requirements. Grantor shnll promptly comply with all lews,
ordinances, end raguletlons, now or horoaltor In offoot, of oil govornmontal authorities
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Loan No: 3120
DEED OF TRUST
(Continued)
Page 3
applicable to tho uss or occupancy ol the Property, Including without limitation, the
Americans With Dlsabllltlos Act. Grantor may contest In good faith any such law,
ordlnsnco, or regulation ond withhold compliance during any prooooding, Including
opproprlste appeals, so long ns Grantor has notlflod Landar In wrltlnD prior to doing so and
so long as, In lander's solo opinion, Londar's Interests In tha Property are not Jeopardized.
Lendor may raqulra Grantor to post edoquato socurlty oi a suroty bond, reasonably
satisfactory to Londor, to protact Londor's Imorest.
Duty to Proteot. Grantor agroos nelthor to abandon or laavo unatlondod tho Propotty.
Grantor shall do all othar acts, In addition to thoss acts set forth above In this saction,
which Irom the character and use of the Properly ore reesonsbly necessary to protect end
preserve tho Property.
OUE ON SALE ¦ CONSENT BY LENDER. Lendor may, at Londor's option, doolaro Immedlotoly
due and payable all sums socurod by this Deed ol Trust upon tho salo or transfor, without
Londor's prior written consont, of ell or any part of the Hoal Propeity, or any Interost In tho Reel
Proporly. A "sslo or tronsfer* meant the conveyance of Reel Property or any right, tltlo or
Interest In tho Roal Proporty; whether legal, beneficial or equitable; whether voluntary or
Involuntary; whothor by outright solo, dood, Installment sslo contract, lend contract, contrect
for deed, community pioparty agreemont or community proporty trust or other trust, loasohold
Intorost with a term greater than three (3) years, lease-option contraot, or by sale, ssslgnment,
or ttensfor of any benoflclel Interest In or to eny lend trust holding title to the Real Property, or
by eny othor molhod of oonvoyenoo of an Intorost In tho Roal Property. If any Grantor Is o
corporation, partnership or llmltod liability company, transfor also Includes any chongo In
ownership ol more than twenty-flvo porcent (26%) of tho voting stook, partnership Intorosts or
limited liability company Intorosts, es the case mey be, of euch Grantor. However, this option
shall not bo oxorclsod by Londor If such oxorclso is prohlbltod by fodorol low or by Alosko low.
TAXES AND LIENS. The following provisions rslatlng to the texos and liens on the Property are
pert of this Deed of Trust:
Payment. Grantor shall pay whon duo (end In all ovonts prior to dollnquoncy) all tnxos,
speclel taxes, essoeaments, ohargos (Including wotor ond sowor), fines and Impositions
levied against or on account of tho Property, snd shall pey whon duo all clelms for work
dono on or for services rendered or metorlal furnlshod to tho Proporty. Grantor shall
maintain the Property free of oil liens hevlng priority ovor or oquel to tho Interest of Lendor
undor this Dood of Trust, oxcept lor the lien of texes end eseesamonts not due, oxcopt for
the Existing Indobtodness roforrod to bolow, and oxcopt os otherwise provided In this Daed
of Trust.
Right to Contest. Grontor may withhold paymont of any tax, assosamont, or claim In
connoctlon with a good foilh disputo ovor the obligation to pay, so long as Lender's Interest
In the Proporty Is not |oopo/dltod. If o lion orlsos or Is lllod os a rosult of nonpayment.
Grantor shell within fifteen (16) days after the lien orlses or. If e lien Is filed, within flftoon
[161 days eftor Grantor hos notlco of tho filing, eocure tho dlschorgo of the llsn, or If
requested by Londer, deposit with Lender cash or e sufficient corporeto surety bond or
other socurlty sotisfactoiy to Londer In an omount sufllclent to discharge tha lion plus any
costs end loaaonable attorneys' faos. or othor chargos that could accrue es e result ol e
foreclosure or sals under tho lien. In eny contoat, Grontor shoD dofortd Itsolf and Londor and
shell satisfy any adverse judgment bofore enforcement against tho Property. Grontor shall
nemo Londor es an additional obllgoo under eny surety bond furnished In the contest
proceedings.
Evidence of Payment. Grantor shell upon domond furnish to Londer satisfactory ovldonco of
paymont of tho toxos or assossmonts ond shall authorize the approprlata governmental
official to delivor to Londor at eny timo e writlon stotomont ol the texes end essessmonts
ogolnst the Property.
Notloo ol Construotlon. Grentor eholl notlly Lendor at IoobI fifteon (16) days baloro any
work Is commenced, any services ere furnlshod, or any matorlels aro suppllod to the
Properly, If any mochanlo's Hon, matorlolmon's Hon, or other den oould be asserted on
eccount of tho work, servlcos, or meterlels. Grantor wlli upon requost of Londor furnish to
Landor sdvnnca assurencos satisfactory to Londor lhat Grantor oon ond wDI poy tho oont of
such Improvements.
PROPERTY DAMAGE INSURANCE. Tho following provisions roletlng to Insuring the Property
ere e part of this Doed of Truat.
Maintenance of Insurance. Grantor shell procuro end maintain policies of fire Insurence with
3 of 15
2011-003866-0
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loan No: 312B
DEED OF TRUST
(Contlnuod)
Pago 4
standard oxtondod covorago endoraomonta on a oaah basis for the full Insurable value
covering all Improvemonta on the Roal Property In on amount sufficient to ovoid application
of ony colnsuranco clouso, and with e standard mortgageo clauso In lovor of Londer.
Grantor shall olao procure Bnd maintain comprahonslvo generel liability Insurance In such
coverage amounts as Lender may request with Trustee and Londor balng nomad as
additional Insuroda In such liability Insurenco pollclos. Additionally, Grantor shall maintain
such othor fnsuranco, Including but not limited to hazard, bualnosa Interruption, and boiler
Insurance. as Lender may reasonably require. Policies a hall be written In form, amounts,
coverages and bosls reasonably oocopteblo to Londer and Issuod by o company or
aompanlos reasonably acceptable to Landar. Grantor, upon requoat of Lender, will deliver to
Lender from tlmo to time the policies or certificates of Insurance In form satisfactory to
Londer, Including stipulations that coverages will not be cancelled or diminished without at
loast ton (10) days prior written notloo to Londor. Ench Insurance policy also shall Includo
en endorsement providing that coverage In favor of Lendor will not bo impalrod in any way
by any act, omission or default of Grontor or any other person. Should the Real Property be
located In on area doilgnoiod by the Dlrsctor of the Federal Emergoncy Management
Agency as a apodal flood hazard nroa. Grantor agrees to obtain and maintain Fodorel Flood
Insurance, II avaliablo, within <16 days eftor notlco la glvon by Londer that tho Proporty Is
located In a special flood hezard area, for the full unpaid principal balance of tha loan end
ony prior lions on tho properly securing tho loan, up to the maximum policy limits set under
tho Netional Flood Insurance Program, or as otherwise required by Londer, and to maintain
Buch Insurenco (or tho torm of the loan.
Application of Proceeds. Grantor shell promptly notify Lender of any loss or damage to the
Proporty. Lender may moko proof of loss If Grantor falls to do so within fifteen (16) days of
tho casualty. Wholher or not Lander's socurity Is Impalrod, Lender moy, at Lender's
eloctlon, receive arvd retain iho proooods of any Insurance and apply tho proceeds to ths
reduction of tho IndobtodnosB, payment of any lion of looting tho Proporty, or tho roelorotlon
and ropalr of the Properly. If Londer elects to apply the proceeds to restoration end repelr,
Grantor ahaH ropalr or roplaco tho damaged or dostroyod Improvomonte In e monnar
satisfactory to Lander. Lender shall, upon satlsfectory proof Of such oxpondlturo, poy or
reimburse Grantor from the proceeds for tho reasonable cost of repair or rostoratlon If
Grantor Is not In dofeuft undor this Dood of Trust. Any procoeds which heve not been
dlaburaod within 180 deys nttor their rocolpt and which Londor has not commlttod to the
repair or roslorsllon of tho Property shell bo usod first to pay any amount owing to Londer
undor this Deed of Trust, than to pey accrued Intorest, and the remalndor. If ony, ahell be
applied to the principal balance of the Indebtedness. If Lender holde any proceeds elter
payment In full of the Indebtodnoss, such procoeds shall be paid to Grantor as Grantor's
Intorosts may oppoor.
Grantor's Report on Insurance. Upon requeat of Londer, howover not moro than once a
year, Grantor ahall furnish to Lender a report on each existing policy of Insurance showing:
(1) tho name of the Insuror: (2) tho risks Insured; (3) the amount of the policy; (4) the
proporty insurod, ths thon current replaoemont value of auch proporty, and tho mennor of
determining thot value; and (6) tho expiration date of the policy. Grantor ahall, upon
request of Lender, have on Indopondont epprelsor setlsfoctory to Lender determine the cash
valuo roplaoomont cost of tho Proporty.
LENDER'S EXPENDITURES. If any ootlon or proceeding Is commenced that would materially
nfloct Londer's Intorosl In tho Property or if Grantor falls to comply with any provision of this
Dood of Trust or any Rolatod Documents, including but not limited to Grentor's fallu/o to
dlscherga or pay whan due any amounts Grantor Is required to discharge or pey under this Dood
of Trust or any Related Documonts, Londer on Grantor's behalf may (but shall not be obligated
to) toko any eclion thot Londor dooms epproprlato, including but not llmltod to discharging or
paying all taxea, liana, security Intereats, encumbrances end othor olalme, et any time lovlod or
plocod on the Property and paying all costs for Insuring, maintaining and preserving the
Proporty. Alt such oxpondlturos Incurred or paid by Londor for such purposos will then bear
Interest et the rato ohargad under the Note unless paymont of Interest at thot rete would bo
controry to appllceble law. In which event such expenses shell bear Interest at the highest rete
permitted by opplloBblo low from tho doto Incurrod or pold by Londer to the doto of repeyment
by Grantor. All nuch oxpensos win become e part of tho Indebtodnoss and, at Londor's option,
will (A) bo payablo on domond; (0) be odded to tho bolonco of tho Nolo and be apportioned
among end bo pnyoblo with nny Installment paymont* to bocome duo during olthor (1) tho
torm of Bny appllceble Insurance policy; or (2) the remaining (arm of the Note; or (C) be
trootod oe a balloon poyment which will be due ond poyeblo et the Note'a maturity. The Deed
of Trust also will secure poymont ol thoso emounts. Such right sholl bo In oddltion to ell othor
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Loan No: 312B
DEED OF TRUST
(Continued)
Pege 5
right* and remedies to which Londer may be ontiiled upon Dofnult.
WARRANTY; DEFENSE OF TITLE. The following provisions rolotlng to ownorshlp of tho
Properly *
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Loan No: 3128
DEED OF TRUST
(Contlnuod)
Poo® 8
contest* the tax a« provided above In ihe Taxes and Liens section and deposits with Lender
CBsh or s sufficient coipoiato surety bond or othor socurlty satisfactory to Londor.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions tainting to this
Dood of Trust as a security agreement are o part of this Deed of Trust:
Security Agroomont. This Instrument shall constltuto a Socurlty Agroomont to tho oxtont
any of the Property constitutes fixtures, end Lender shell have ell of the rights of a eecured
porty undor tho Uniform Commorclal Code as omondod from tlmo to tlnno.
Security Interest. Upon request by Lender, Grantor shall take whatever action Is requested
by Londor to perfect end contlnuo Lender's security Interest In the flents and Porsonsl
Proporly. In addition to rocordlng this Doed of Trust In tho roal proporly records, Londor
may, at any tlmo end without furthor authorization from Grantor, fflo oxocutod counteiparts.
copies or reproductions of thle Dead of TruBt es a financing atatsment. Grantor shall
reimburse Lender for all expenses Incurred In perfecting or continuing this security Interest.
Upon dofault, Grantor shell not remove, sever or detach the Personal Property from the
Proporly. Upon default. Grantor shall assemblo any Poreonal Proporly not afflxod to the
Property In a manner and at a place roesonably convonlent to Grantor end Londor and mako
It ovalloblo to Lender within three (3) days after receipt of written demand from Lender to
tho extont permlttod by applicable law.
Addresses. The melllng addressas of Grantor (dobtor) and Londor (aocurod party) from
which Information concerning the security Interest granted by this Deed of Trust may be
obtelnod (oech as roqulrod by tho Uniform Commorclal Codo) aro bs stotod on tho llrst pugo
of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions rolotlng to further
sisurancoe and ottornoy-ln-foct aro a port of this Dood of Trust:
Further Asauianoos. At any tlmo, and from time to tlmo, upon roquosl of Lender, Grentoi
will make, execute and deliver, or will ceuso to be mode, oxocutod or delivered, to Lender or
to Lendor's designee, and whan requested by Lendar, cause to be fllod, recorded, refllad, or
rerecorded, as the case may be, et such times end in such offices and places as Lender may
doom opproprloto, any and all auch mortgages, deeds of trust, security deeds, security
egreements, flnenclng slotomonts. continuation stotomonts. Instruments of further
assumnco, certiflci)toe, end othor documents as may, In tho solo opinion of Londor, bo
neceeeety or desirable In ordor lo effectuato, complota, perfoct, continue, or preserve (1)
Grantor's obligations under the Nolo, thls'Deod of Trust, end tho Related Documents, and
(2) tho Hone end socurlty Intorosts crooted by this Dood ol Trust on tho Proporty, whothor
now owned or hereafter acquired by Grantor. Unless prohibited by lew or Lender agroos lo
tho contrary In writing, Grontor sholl rolmburso Londor for ell costs end oxponsos Incu/tod In
connection with the mattors roforrod to In this paragraph,
Attorney-ln-Faot. If Grantor fells to do eny of tho things referred to In tho preceding
peregraph, Lendar may do ao for and In the name of Grantor end at Grantor's expense. For
such purposes, Grontor hereby Irrevocably appoints Londer as Grantor's ettornoy-in-fect for
tho putposo oi making, oxocutlng, dollvoring, filing, rooordlng, and doing all othor things es
msy bo necossery or doslrablo, In Lendar "e solo opinion, to accomplish tho mettors roforrod
to In the preceding peregraph.
FULL PERFORMANCE. If Grentor pays all tho Indebtedness when duo, end otherwise porforms
all tho obligations imposed upon Grantor undor this Dood of Trust. Londor shall oxoouto and
dallver to Trustoo a request for full roconvoyenco end sholl exocute end deliver to Grentor
suitable stetemonte of termlnetlon of eny flnenclng statement on file evidencing Lender's
socurlty Interest In the Rents and the Personal Proporty. Any reconvoyanco foo roqulrod by low
sholl bo pold by Grontor, If pormltted by opplicablo low.
EVENTS OF DEFAULT. Each of tho following, at Lonrior'a option, shall constitute on Event of
Default under this Doed of Trust:
Payment Default. Grantor falls to moko any paymont whon duo undor the Indebtedness.
Other Dofaults. Grantor falls to comply with oi to perform any othor torm. obligation,
covenant or condition contelnod In this Dood of Trust or In any ol tho Roloted Documonts or
to comply with or to porform any torm, obligation, covenant or condition contained In eny
othor agrooment batwoon Londor and Grantor.
Compliance Defeult. Folluro to comply with eny othor torm, obllgetlon, covenent or
condition contalnod In this Doed of Trust, the Note or In ony of tho Rolotod Documonts.
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Loan No: 3128
DEED OF TRUST
(Continuod)
Pogo 7
Default on Other Payments. Folluro of Grantor within tho tlmo roqulrod by this Dood of
Trust to mako any paymont for taxos or Insuranco, or any other pnymont nocoasaty to
provont filing of or to ofleot discharge ol any lion.
Environmental Default. Falluro of ony party to comply with or perlorm whan duo any tarm.
obligation, covonont or condition contslnod In any environmental agreement axocuted In
connection with the Proparty.
Falaa Statements. Any wnrronty, roprosontotlon or statomom mado or fumlahad to Londar
by Grantor or on Grantor's bahall undor thla Dood of Trust or the Relatnd Documonta Is
false or mlslaadloQ In any material reaped, either now or at the time made or furnished or
becomes false or misleading at any tlmo thoroaftor.
Doloctlvo Collaterallzatlon. Thla Deed ol Trust or any of the Raleted Documents ceases to
bo In full forco and offoct (Including fnlluro of ony collatoral documom to croato o valid and
perfocted aocurlty Inteiost or llan) at any tlmo end for any roaaon.
Death or Insolvency. The dissolution of Grantor's (regardless of whether election to
continue la mBde), eny member withdraws from the limited liability company, or any other
termination of Grantor's existence as a going business or the death of any member, the
Insolvency ol Grantor, tho appointment of a rocolvor for ony port of Grantor's property, any
esslgnmont for tho bonoflt of crodltore, any typo of crodltor workout, or the commoncemont
of any proceeding under any bankruptcy or Insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of forecloeure or forfeiture proceedings,
whether by Judlclol proceeding, eolf-help, repossosslon or any othor molhod, by any crodltor
of Grantor or by any governmental egoncy agalnat any proporty securing tho Indobtednoss.
This Includes a garnishment of eny of Grantor's accounts. Including deposit accounts, with
Londor. Howevor, this Evont ol Defoult shall not apply If there la a good faith dispute by
Grantor as to the validity or roesonablonoss of tho claim which Ib tho basis ol tho creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the oredltor or forfeiture
proceeding and deposits with Lender monies or a surety bond for tha creditor or forfeiture
proceeding. In an amount determined by Lender, In Its sola discration, at being en adequete
reserve or bond for tha dispute.
Breach of Othor Agrooment. Any broach by Grantor undor tho torme ol any othor
agrooment botwoon Grantor and Lender that Is not remedlod within eny greco period
provided therein, Including without Umltetlon any agreement concerning eny Indebtedness or
other obligation of Grantor to Londor, whother oxlsting now or lotor.
Evonts Affaotlng Guarantor. Any of the preceding events occurs with reBpect to any
Guarantor of ony of tho Indobtednoss or any Guarantor dlos or bocomoe Incompotont, or
rovokos or dlsputos tho validity of, or liability undor. ony Guoronty of tho Indoblodnoss.
Advorso Change. A matorial advaree chango occurs In Grantor's financial condition, or
Londor boliovas tha prospect of payment or performance of the Indebtedness Is Impalrod.
Insecurity. Londor In good, faith bollovos Itsolf Insocuro.
Right to Curo. If eny dofault, other than a default In payment Is curable and If Grantor has
not been given a notice of a breach of the samo provision of Ihls Dead of Trust within the
preceding twelve (12) months. It may be cured II Grantor, after Lendor sonds written notice
to Grantor domanding curo of such default: (1) euros tho dofault within flftoon (16) days;
or (2) if tha euro requires more thsn fifteen (15) days, Immedietely initiates steps which
Lender deems In Lsnder'a sole dlscrotion to bo 6ufflolont to cure tho default and thorealtor
contlnuos and complotos ail roatonabio and necessary steps sulllclent to produco
compllanco as soon aB reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Evont of Dofault occurs undor Ihls Doad ol Trust,
at any tlmo thoraaftor, Trustee or Lender may exercise any one or more of tho following rights
and romedles:
Eloctlon of Romodlei. Eloctlon by Lendor to pursuo any remedy shall not exclude pursuit of
ony other remedy, and on election to moko oxpondlturos or to toko action to porlorm an
obligation ol Grantor undor this Dood ol Trust, aftor Grantor's falluro to perform, shall not
alfoct Londer's right to doclero a dofault Bnd exercise Ita remedies.
Aooelerato Indobtodnass. Lender shall hevo tho light nt Its option without hotlco to Grontor
to declare the ontlre Indebtedness Immodiatoly duo end payablo. Including eny prepayment
ponoity which Grnntor would bo roqulrod to pay.
Foreclosure. With reBpoct to all or any port of the Proporty, Trustoe shall havo tho right to
-------
Loan No: 3128
DEED OF TRUST
(Continued)
Pago B
sell the Properly pursuant to a non-Judicial foreclosure) solo and Trustoo 01 Londor shall have
tho right to sail tho Proporty upon judicial foroolosuro, In olthor cosoln accordanoo with end
to tho lull oxtont providod by applicable law. II tho powar of sals Is Invoked, Trustee shall
oxecute a willton notice of tho occurrence of an Event of Default and of the election to
causo tho Properly to be eold end shell record euch notice in each Recording District In
which the Property or some pail of the Property Is located. Trustoo shall mall copl09 of tho
notioe of default. In the menner provided by tho laws of Alaska, to Grantor ond to such
othor persons as thB lows of Aloska proscribe. Trustoo shall glvo notico of sale end shall
sell tho Proporty according to tho laws of Alaska. Aftor tho lapBo of tlmo required by law
following the recordation of the notice of default, Trustee, without demand on Grantor, may
sail the Property at the time ond piece ond under tha forms doslgnatod In tho notico of solo,
in ono or moro percols ond In such ordor as Trustoo may dotormino. Trustee mey postpone
eele of all or eny parcel of the Property by publlo announcement at tho time end placo of
eny previously scheduled solo. Londor's or Londor's doslgnoe may purchaso tho Proporty at
eny sale.
Trustoo shall delivor to tho purchaser Trustoo'a doed convoying tho proporty so sold without
any covonent or warranty, oxprosaod or Imptlod. Tho rocltels In the Truateo'a doed shall bo
prima faclo evidence of the truth of tho statements made In the Trustee's deed. Trustee
shell apply the proceeds of the sole In the following order: (a) to all costs and expenses of
the sale. Including, but not limited to, reasonable Trustoe's end Attorneys' loos, ond cost ol
title ovldonco; (b) to oil sums socurod by this Dood of Trust In such order os Lendor, In
Lender's solo discretion, dlroots; end (n) the excess. If any, to tho parson or persona legally
entitled to the excess proceeds.
UCC Remedies. With respect to all or any part of the Porsonol Property, Lender eholl heve
oil tho rights ond romedlos of e socurod party undor tho Uniform Commorclol Codo.
CoBoot Rants. Londor shell hevo the right, without notice to Grantor to teke possession of
and menege the Property and collect tha Rents, Including amounts past due end unpaid, and
apply tho net procaads, ovor ond obovo Londor's oosts, against tho Indabtodnoss. In
furthorenco of this right, Londor mey roqulre any tonant or other usor of tho Property to
mako paymants of rant or uao foon dtrantly to Lander. If tho Rants «rf> collactod by Landsr,
thon Grantor Irrevocably designates Lender as Grantor's attorney-in-fact to endorse
Instruments received In paymont thoroof In tho namo of Grantor end to negotiate the soma
and colloct tho proceeds. Payments by tenants or othor users to Londer In response to
Londor's domand shall eotlBfy tho obligations for which tho poymonts aro mode, whether or
not any proper grounds for tho domand oxleted. Londor mey oxorclso Its rights undor thle
subparagraph either In person, by agont, or through a receiver.
Appoint Receiver. Lendor ehell heve tho right to hevo a rocelvor appointed to take
possession of all or any pert of tho Proporty, with tho powqr to protect and proaorvo tho
Property, to operete tho Property procodlng foreclosure or sale, and to colloot the Rents
from the Property snd apply the proceede. over and above the cost of the receivership,
against the Indebtodnoes. The rocolver may serve without bond If permitted by lew.
Londor'e right to the appointment of a receiver shall oxlsl whothor or not the apparent value
of tho Proporty oxceods tha Indabtodnoss by a substantial amount. Employment by Londor
shell not disqualify s person from serving as a receiver.
Tenancy at Sufferance. II Grantor romdns In possession of iho Proporty oftor tho Proporty
Is sold as provided above or Lendor otherwlso becomes ontllled to possession of tho
Property upon dofoult of Grenlor, Gronior shell bocome a tonent ol sufloranco of Londer or
the purchaser of the Property end shall, et Londor's option, olthor (1) pey e roesoneble
rontel for tho uso of tha Proporty, or (2) vacate the Properly Immediately upon the demend
of Lander.
Othor Remodles. Trustoo or Lnndar shall hevo any other right or romedy providod In this
Deod of Trust or the Note or avellabls at law or In oqulty.
Notice of Sele. Londor shad givo Grontor reesonsblo notice of the time end piece of eny
publlo aalo of tho Persons! Property or of tho tlmo aftor which any prlvoto solo or other
Intended disposition of the Porsonol Proporty Is to bo mode. Reasonable notice shell moan
notico givon ol loost ton (101 days boforo the time of tha sole or disposition. Any selo of
tho Personal Proporty may be made In conjunction with any sale of the Real Property.
Sole of the Property. To tho oxtont pormittod by applicable law. Grantor hereby walvos any
and ell rights to hove tho Proporty marshalled. In exercising Ito rights ond romodlos, tho
Trustoo or Londor shell be free to sell all or eny perl of tho Property togother or seperately,
in one sbIb or by seperote solos. Londor shall bo entitled to bid ot any public selo on oil or
-------
Loan No: 3128
DEED OF TRUST
(Continued)
Pago B
any portion of the Property.
Attorneys' Fees; Expenses. If Londor Instltutos any suit or aotlon to anforca any of tho
tormH of this Dead of Trust, Londor shall be entitled to recover such sum aa the court may
adjudge reasonable as attorneys' fees at trial and upon any appeal. Whother or not any
• court action la Involved or ponding, end to the oxtont not prohibited by law, oil roasonoblo
oxponsos Lender Incurs that In Lender's opinion are nacaesery at any time for tho protection
of Its Interost or tho onforcoment of Its rights sholl becomo a part of tho Indebtedness
psyoblo on demand and shall bear Interest at the Nolo rato unloss payment of Interest ot
that rato would be contrary to oppllooblo low, In which event auch expenses sholl boar
Intaroat at the highest roto pormlttod by applicable lew from the data of tho oxpondituro
until repaid. Expenses covorod by thla paragraph Includo. without llmltotlon, howovor
subjoct to ony limits undor applicable law. Lender's roasonoblo attorneys' foos end Londor'o
legal oxponsos whethor or not there Is a lawsuit. Including reasonable attorneys' feee and
oxponsos for bankruptcy proceedings (Including offorts to modify or vacBte any automatic
stay or Injunction), oppoals, and any anticipated post-Judgment collection servlcos. the coat
of searching records, obtaining title reports (Including foreclosure roporte), surveyors'
reports, and appralssl fees, title Inaursnco, end feos for the Trustee, to the extent psrmhtod
by appllcBble law. Grontor also will pay any court costs, In addition to oil other sums
provided by law,
Rights of Trustee. Trustee shall have all of the rights and duties of Londer as sat forth In
this aoctlon.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers
and obligations of Trustee (pursuant to Lender's Instructions) oro part of this Oood of Trust: -
Pawors of Trustee. In addition to oil powers of Trustee arlalng as a matter of law. Trustee
shall have the power to toko tho following aotlona with respect to the Property upon tho
wrltton requost of Londer end Grantor: (e) join In preparing and llllng a map or plat of tho
Real Property, Including the dadlcotlon of atroots or othor rights to tho public; lb) |oln In
granting any easement or crootlng any restriction on tho Real Property; end (c) Join In ony
subordination or othor ogrooment affecting this Deed of Trust or the Interost of Londor
undor this Dsod of Trust.
Trustee. Trustee shall meet oil quollllcollons roqulrod for Truatoo undor applicable law. In
eddltlon to the rights and romodlos sot forth ebovo, with respect to an or any port of tho
Property, the Trustee shall, upon dofeult, havo tho right to soil tho Property by notice and
non-judlclol sale, end Trustoo or Londor ahall have the right to aell the Property by ludlclol
action end foroclosuro salo, In olther cese In eccordance with and to tho full oxtont provldod
by appllcoble low.
Successor Trustee. Londor, at Londor's option, may from time to time appoint e successor
Trustee to any Trustee oppolntod undor thla Dead of Trust by an Instrument oxecuted end
acknowlodgod by Londor and rocordsd In the office for tho Ketchikan Rocortllng District,
First Judicial District, State of Alaska. Tho Instrument shall be oxocutod end ocknowledgsd
by Lender or Londor's succossor In Interest, end shall contain, In addition to ell other
manors roqulrod by stele lew, the date this Deod of Trust was oxocuted, the names of the
original Londer, Trustee, and Grantor, tho book and page whore thle Deed ol Trust Is
rocorded, tho name and addresB of the successor trustee, and either an acknowlodgmont
slgnod end acknowlodgod by tho Trustoo named In this Dood of Truat of a receipt of e copy
of the Instrument or on oflldovlt of service of e copy of the Instrument on the Trustee. The
successor trustee, without convoyanco of the Proporty, ahall succood to ell the tltlo, power,
end duties confoirod upon tho Trustoo In this Deod ol Trust and by appllcoblo lew. This
procedure for aubstltutlon of Trustoo sholl govorn to tho oxcluslon of ell other provisions for
substitution.
NOTICES. Unless othorwlse provided by eppllcablo low, ony notlco required to bo given under
this Dood of Trust, Including without llmltotlon any notlco of dofeult and any notice of sole shall
be givon In writing, end ahall be olfoctlvo whan actually dollvofed, when actually rocolvod by
tolofecslmlle (unless othorwlso roqulrod by law), whan doposltod with a nationally recognized
overnight courier, or, II mellod, when deposited In tho United Statea mall, as flrat class, certified
or registered mall postage prepaid, dlrootod to tho eddresseB shown noor the boglnnlng of this
Dood of Trust. All copies of notlcos of foreclosure from tho holdar of ony lien which has
priority ovor this Deod of Trust shBll bo sont to Lender's address, as shown nour tho boglnnlng
ol this Dood of Trust. Any parly may change Its oddress for notlcos under this Deed of Trust
by giving formal written notlco to the other partlos, apocifylng that tho purpose of tho notlco la
to change the perty's eddross. For notlco purposes, Qrentor egrees to koop Londor Inlormod at
-------
Loan No: 3120
DEED OF TRUST
(Continued)
Pago 10
oil times of Grantor's current eddrosB. Unless othorwlso provided or required by law. If Ihore Is
more than one Grantor, any notice glvon by Lendor to any Grantor Is doomed to be notice given
to all Grantors.
MISCELLANEOUS PROVISIONS. The following mlscoDoneous provisions are a pert ol this Dood
ol Trust:
Amendments. This Dood of Trust, together with any Rolatod Dooumants, constitutes tho
ontlro understanding end agroomont of the partlos as to the matters set forth In this Dood of
Trust. No alteration of or amondmeM to this Dead of Trust shall bo offoctlvo unloss given
In writing and signed by the parly or parties sought to bo charged or bound by the alteration
or omondmont.
Annual Roports. If tho Proporty Is uaod for purposes othor than Grantor's issidonce.
Grantor shall furnish to Lendor, upon roquesl, a certlflod stotomont of not operating Income
received from tho Proporty during Grantor's previous fiscal yoar In such form and detail as
Lender shell roqutro. "Not operating Incomo* shall moan ell cash receipts from the Property
loss ell cosh expenditures mado In connoctlon with the operation of tho Proporty.
Caption Headings. Caption headings In this Dood of Trust aro for convenience purposos
only and aro not to be used to Intorprot or doflne the provisions of this Deod of Trust.
Merger. There shall bo no merger of the Interest or estete crentod by this Daed of Trust
with ony othor Intorest or estote In tho Property at any tlmo hold by or for the benefit of
Londar In any capeclty, without tho written consent of Londer.
Govornlng Law. This Dssd of Trust will be governed by federal law appNoablo to Londer
and, to the extent not preempted by federal Ibw, the laws of the Stole of Alaska without
regard to Its conflicts of law provisions. This Deed ol Trust has been accepted by Lender In
the State of Alaska.
Choleo of Vonue. If there Is a lowsult, Gronlor agrees upon Lender'e request to submit to
tho jurisdiction of the Alaska stato courts In tho Judicial District at or neorest Londor's
address shown herein, or at Londor's option, to tho Jurisdiction of the courts wherovor any
Property Is located.
No Walvor by Lender. Lendor shall not be doomod to hnve waived any rights under this
Deed of Truet unloss such welvoi Is given In writing Bnd slgnod by Londer. No dolay or
omission on tho part of Lender In exerclslno ony right shell oporoto as a walvor of such right
or Bny othor right. A walvor by Londor of a provision of this Deed of Trust shall not
projudlca or constitute o walvor of Londor's right otherwise to demand strict compllanco
with that provision or ony othor provision of this Deed ol Trust. No prior wolver by Londer,
nor any courso of doallng between Lender and Grontor, shall constitute a walvor of any of
Londor's rights or of any of Grantor's obligations as to.any futuro transactions. Whenever
tho consont of Londer Is required undor this Dood of Trust, the granting of such consent by
Lender In any Instance shell not constitute continuing consent to eubsoquont Instances
whoro such consont Is roqulred end in ell cases such consent may bo grentod or withhold In
tha sola discretion of Lender.
Severability. If 0 court of compotont Jurisdiction finds any provision of Ihls Dead of Trust to
bo lllogel. Invalid, or unenforcoablo as to eny circumstance, that finding shell not meko the
offending provision lllogel, Invelld, or unenlorceeble es to eny other clrcumetence. If
fooslblo, tho offondlng provision shoii be considered modified 60 that It becomes logo!, valid
. ond enforceoblo. If tho offending provision oennot bo so modillod. It shall be oonsldered
delotod from this Dead of Trust. Unless othorwlso roqulrod by lew. the lllogellty. Invalidity,
or unenforceability of any provision ol this Dood of Trust shall not offoct tho logallty,
validity or enforceability of eny othor provision of this Deed of Trust.
Successors and Assigns. Subject to ony limitations stotod In this Daod of True! on transfer
of Grantor's Interest, this Dead of Trust shall be binding upon end Inure to the benefit ol the
poitlos, their succaaso/s ond assigns. II ownorshlp of the Property bocomos vostod In a
porson other then Grontor, Lendor, without notice to Grontor, mey doel with Grantor's
succossora with reference to this Deed of Trust end the Indebtodnoss by way of
forbsaranca or oxtenslon without roloeslng Grantor from tha obllgotlons of this Dood of
Trust or liability under the Indoblodness.
Tims Is of the Essence. Time Is of tho ossenco in the performance of this Doed of Trust.
Walvor of Homostosd Exemption. Grantor hereby rolaesos and waives all rights end
benefits of the homesteed oxomption laws of the State of Aloske ns to all Indebtedness
securod by thle Deed ol Trust.
-------
Loan No: 312B
DEED OF TRUST
(Continued)
Pege 11
DEFINITIONS. The following capitalized word* and terms shall hevo (ho following meanings
whon used In this Dead of Trust. Unless spoclflooliy stated to tho contrary, all references to
dollar amounts shall mean amounts In lawful monoy of tho United Steles of America. Words
and terms usod In the slngulor shall Include tho plural, and the plurel shell Include the singular,
as the contoxt may roqulro. Words end terms not otherwise defined In this Deed of Trust shall
hsvo tho meanings attributed to such terms In tho Uniform Commorclnl Code:
Beneficiary. Tho word "Bonoflclary" manna Alaska Pacific Bank, and Its successors and
assigns.
Borrower. The word "Borrower' means POWER SYSTEMS & SUPPLIES Op ALASKA LLC
ond Inoludoa ell co-olgners and oo-makere signing the Note and all their successors end
assigns.
Deed of Trust. The words "Deod of Trust' moen this Dosd of Trust emong Grantor, Lender,
and Trusteo, end Includes without llmltetlon ell assignment and security Interest provisions
relating to the Personal Property and Rents.
Dofault. Tho word 'Default* moans tho Default sot forth In this Doed of Trust In tho section
(Jttod 'Default*.
Environmental Laws. The words "Environmental Laws* motm any and ell stoto, I odor el and
local stolulos, rogulnllons and ordinances roletlng to tho protootlon of human hoslth or the
environment, including without limitation the Comprehenelve Environmental Response,
Compensation, and Liability Act of 1980, os amendod, 42 U.S.C. Soctlon 8801, ot soq.
("CERCLA"), tho Superlund Amendments end Reauthorization Act of 1980, Pub. L. No.
99.i|99 (•SARA"), tho Hazardous Materials Transportation Aot, 49 U.S.C. Section 1801, ot
soq., tho Rosource Conservation and Recovery Act, 42 U.S.C. Section 8801, et seq„ or
other eppllcablo etato or fedoral Iowa, rules, or regulations odoptod pursuant thoroto.
Event of Default. The worda "Evont of Dofault* moan any ol tho ovonts of dofault sot forth
in this Dead of Trust In the events of default section of this Deed of Tru9t.
Existing Indebtedness. The words 'Existing Indebtedness' mean the Indebtedness
described In the Exlstlno Uens provision of this Deed of Trust.
Grantor. The word "Grantor* means POWER SYSTEMS & SUPPLIES OF ALASKA LLC.
Guarantor. The word "Guarantor" moans eny guarantor, suroly, or accommodation party of
any or ell of the indabtodnoss.
Guaranty. Tho word "Guaronty* moons tho guaronty from Guorantor to Londor, Including
without llmltetlon e guaranty of ell or pert of the Note.
Hezerdous Substencos. Tho words 'Hazardous Substances" moen materials ihet. because
ol their quantity, concentration or physloal, chomlool or Infootlous cheraotorlstlcs, moy
cause or pose a present or potential hazard to human health or tho environment whon
Improperly used, treolod, storod, disposed of, generated, manufactured, transported or
otherwlso hendlod. Tho words "Hezerdous Substancos" ero usod In their vory broodost
sonso and Include without limitation any and all hazardous or toxlo substancoe, matorlols or
waste as defined by or listed under the Environmental Lawa. The term "Hazardous
Substencos" also Includoa, without limitation, potroloum and petroleum by-products or eny
(faction thoroof ond esbostos.
Improvements. The word 'Improvements* meons all existing end future Improvements,
buildings, struoluros. mobllo homos affixed on tho Real Proporty, facilities, additions,
roplacemonts end other construction on the Real Proporty.
indebtedness. The word "Indoblodnoss" msans all principal, Interost, and other amounts,
costs ond oxponsos poyoblo undor the Nolo or Relatod Documonts, togothor with ell
ronowals of, oxtcnslons of, modifications of, consolidation of and substitutions for tho
Note or Related Documeme end eny emounts expended or edvanced by Lender to discharge
Grantor's obligations or oxponsos Incurrod by Trustos or Lendor to enforce Grentor's
obligations undor this Dood of Trust, togothor with Intorast on such emounts as provided In
this Dead of Trust.
Lender. The word 'Londor* moane Alaska Pacific Bank, its successors and assigns.
Note. The word "Note" means the promissory note deted December 28, 2011, In tho
orlglnel principal amount of H,785,000.00 from Grantor to. Lender, together with ell
ronowals of, oxtonelons of, modifications of, roflnanclnge of, consolidations of, ond
substitutions lor the promissory note or egreemsnt. The meturlty dete of this Deed of Trust
11 Of 15
2011-003866-0
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Loon No: 3128
DEED OF TRUST
(Contlnuod)
Page 12
li Januory 1, 2032. NOTICE TO GflANTOn: THE NOTE CONTAINS A VARIABLE INTEREST
RATE.
Personal Property. Tho word* "Po/«onol Proporly" moan all equipment, fixtures, and other
artlcloo of personal property now or harsnfter owned by Qrentor, and now or hareotter
attached or affixed to the Real Property; together with all accessions, ports, end additions
to, all replacements of, and ell substitutions (or, any of such property; end together with all
Issues and profits theroon end procooda (Including without limitation all Insuranco procoeds
and refunds of premluma) from eny aala or other disposition of the Property.
Proporty. The word 'Proporly" moons colloctlvoly tho Rool Proporty and tho Porsonal
Proporty.
Reel Property. The words "Reel Property" meen tho reel proporty, Intorosis ond rights, as
further described In this Dood of Trust.
Related Documents. The words "Reletod Documents* mean all promissory notes, crodlt
agreementa, loan aoraaments, environmental aoreoments, guaranties, security agreements,
morlgegos, deeds of trust, security deeds, collotoiol mortgagee, end ell othor Instruments,
agreements end documonts, whethor now or horoaftoi oxlstlng, oxecutod In connoctlon with
tho Indobtodnoss.
Rents. The word "Rents" means all present and future ronts, rov.enues, Incomo, Issues,
royalties, profits, and other benefits dorlved from tho Proporty.
Trustoe. Tho word "Trustoo* moans Alaska Escrow & Tlllo Insuranco Agoncy, whoso
addross l9 PO Box 5040, Kotehlken, AK 99901 end any substitute or succossor trustoos.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST,
AND GRANTOR AGREES TO ITS TERMS.
ORANTOR:
POWER SYSTEMS & SUPPLIES OF ALASKA LLC
By:—
David C. Spokolyi Mombor of SYSTEMS Si
-------
Loan No: 3128
DEED OF TRUST
(Continued)
Pago 13
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF
JUDICIAL DISTRICT
I
) SS
)
On this
doy of 20 \ I boforo mo. tho
undorslgnod Notory Public, person oily oppoorod David C. Spokoly, Mombor of POWER
SYSTEMS & SUPPLIES OF ALASKA LLC and Andraw P. Spokely, Member ol POWER SYSTEMS
& SUPPLIES OF ALASKA LLC. and known to mo to bo mombor* or doslgnetod egonts of tho
llmltsd liability company that oxocutod tho Dood of Truat and acknowledged tha Dead dI Trust
to ba tha tree and voluntary act and doad of tho llmltod liability company, by authority of
statute, Its ortlclos of orgnnlzotlon or Its oporatlng agreement, for tho uses and purpoaas iharoln
montlonod, and on oath stalod that thoy aro authorized to oxecute this Dead of Trust and In
fact oxocutod tha Dood of Trust on bohalf of tho llmltsd liability company.
ay vSkx\cu.\r\oU \ndyAo
Notary Put llo kiwi for the State of
STATE OF ALASKA >*28
NOTARY PUBLIC
AMANDA MACHADO I ^
My Commission Finlw*
Residing at_
My commission oxplro Olsoji^
HbUUtyi HUH HULL RHOttNVEYANCE
(To be used only whon obligations havo boon paid In full)
, Trustoe
To:
Tho undorslgnod Is the legal owner and holder of ell Indobtodnoss socurod by this Dood of
Tiust. All-sums secured by this Deed of Trust havo boon fully paid and satlsflod. You aro
hereby directed, upon payment to you of any sums owing to you under tho terms of thin Deed
of Trust or pursusnt to ony appllceblo alatuto, to cancel tha Note secured by this Dood of Trust
(which Is doltvorad to you together with this Deed of Trust), and to roconvoy. without warrenty,
to tho parties doslgnatod by the terms of this Desd of Trust, tho osteto now held by you under
this Dead of Trust. Pleose mall the reconveyance ond Rotated Documonts to:
Date:
Donoltotery:_
Dy:_
Its:
LASER PRO Landing, Ver. 6.67.00.004 Copr. Marland Flnenclal Solutions, Inc. 1997, 2011.
All Rights Rosorvod. - AK F:\APPS\CFI\LPL\G01.FC TR-VO60 PR-11
-------
KPC AGREEMENT ACKNOWLEDGEMENT
Thli KPC AGREEMENT ACKNOWLEDGEMENT l« attachod to and by thl« roferenco I* made a
part of tho Dood ol Trust, datod Dooombor 28, 2011. and oxoouted In connection with a loan or
othar financial accommodations betwoen ALASKA PACIFIC BANK and POWER SYSTEMS &
SUPPLIES OF ALASKA LLC.
Alaaka Peclllo Bonk, referred to In this Dood of Trust as "Landor" end sometlmos as
'Beneficiary," In furthor conBlderatlon for, ond as a condition to, thla Instrument, horoby ogiaea
that the real properly Interests It Is hereby acquiring from. Powor Systems & Supplies of AIojKo
LLC. as referred to horoln os tho "Trustor" under tho tormB of this Dood of Trust, are sub|eot to
tho tamo limitations and conditions at tho onos applicable to and which ere sot forth In that
"Agroomont," ontered Into by end botwoon Kotchlknn Gateway Borough, a municipal
corporation, Kotchlknn Pulp Company, a Washington corporation, and Getaway Forest Produota,
Inc., on Alasko corporation, according to the terme and provisions thoroof, datod July 14,
2003, and rocorded July 16, 2008, undor Kotchlknn Recording Dlstilct Sotlel No.
2008-002600-0, Ketchikan Rocordlng Dlstrlot, Flrat Judlclnl District, Stota of Alaaka, a copy of
which Beneflctery acknowledges hovlno rocalved, and which Is Incorporated by reference In this
Instrument as fully set forth horoln. In particular, all reloasns, waivers, and limitations on claims
against Kotchlknn Pulp Company, Its agonts, solvents, employoea, offlcors, directors, partners,
principals, ahoroholdore, oi any of tholr Insurance companlos and contraotore. Including, but not
limited to, environmental claims, whether arising under CEHCLA, 42 USC 9601 at aeq.; RCRA,
42 UCS 6901 at aaq.; AS 46.03.822; or otherwise, aa they now oxlst or hareefter may bo
amonded, to which the Borough concurred, ere hereby agrood to bo applicable ond In full force
end effect.
Further, the partlos to this Agreement agree that Kotchlkan Pulp Company, lis shareholders,
suooossors. hairs, end esslgna, are third party benaflolarlos of this Agreement and any futuro
agreements concerning the piopoily.
BENEFICIARY, tho Alaska Pacific Bank. HEREBY AGREES THAT LANGUAGE IDENTICAL TO
THE PREVIOUS TWO PARAGRAPHS SHALL BE INCORPORATED INTO ANY FUTURE LEASE.
SALE. OR CONVEYANCE OF ANY INTEREST (INCLUDING DEEDS OF TRUST) IN All OR PART
OF THIS PROPERTY.
THIS KPC AGREEMENT ACKNOWLEDGEMENT IS EXCUTED ON DECEMBER 28. 2011.
BENEFICIARY:
THIS KPC AGREEMENT ACKNOWLEDGEMENT IS EXECUTED ON DECEMBER 28, 2011.
GRANTOR:
14 Of 15
2011-003866-0
mp>iii»m..uuuu uiyji.J~i.Mi ijuwwwih n.nu hit
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KPC AGREEMENT ACKNOWLEDGEMENT
PAGE 2
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL PROTECTION EASEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS, DATED OCTOBER 28, 1999 RECORDED IN THE
KETCHIKAN RECORDED DISTRICT, FIRST JUDICIAL DISTRICT, STATE OF
ALASKA, ON OCTOBER 28, 1999 IN BOOK 305 AT PAGE 772 THAT IS IN FAVOR
OF AND ENFORCEABLY BY, THE STATE OF ALASKA.
trc$
15 of 15
2011-003866-0
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Attachment 24
List of Power Systems and Supplies of Alaska LLC's Lessees and Template Lease/Letters Sent to
Lessees
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Attachment 24: List of Power Systems and Supplies of Alaska LLC's Lessees and Template Letters Sent to Lessees
Title of Letters below: Acknowledgement of requirements for Power Systems & Supplies of Alaska LLC to supply a copy of the KPC Consent
Decree documents and appendices to property tenants (each with attachment signed by new lessee)
Doc Date
PSSA Lessee
Attachment
Author
Author Organization
Addressee Organization
5/27/15
Byron
Construction
and Artisan
Tradition
Acknowledgement letter signed by Jim Byron
II of Byron Construction and Jason
Sonnenschein of Artisan Tradition
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
5/27/15
Federal Express
Corporation
Acknowledgement letter signed by Wiley
Johnson, Jr. of Federal Express Corporation
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
4/28/15
AAB Boom
Truck
Acknowledgement letter signed by Brian
Nicholas of AAB Boom Truck
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
4/28/15
Pacific Airways
Inc.
Acknowledgement letter signed by Stephen
Montanus of Pacific Airways Inc.
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
3/25/15
Reaper Rebuilds
LLC
Acknowledgement letter signed by Wade
Purdy of Reaper Rebuilds LLC
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
7/26/13
Alaska Welding
and Repair LLC
Acknowledgement letter signed by Brent
Connor of Alaska Welding and Repair LLC
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
7/26/13
Alcan Forest
Products, LP
Acknowledgement letter signed by Eric
Nichols of Alcan Forest Products, LP
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
6/23/14
Rainbird
Quilting
Acknowledgement letter signed by Marge
Kraft of Rainbird Quilting
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
5/22/14
Northrim Bank
Acknowledgement letter signed by Brad
Kiefer of Northrim Bank
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
10/18/13
ADOT&PF
Acknowledgement letter signed by Ray
Peterson of Alaska DOT&PF
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
10/7/13
Modoc
Acknowledgement letter signed by Peter
Bennison, owner of M/V Modoc
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
9/10/13
Ward Cove
Industries LLC
Acknowledgement letter signed by Ward
Cove Industries LLC
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
-------
9/10/13
Full Cycle LLC
Acknowledgement letter signed by Full Cycle
LLC
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
9/10/13
Remote Made
Easy LLC
Acknowledgement letter signed by Remote
Made Easy LLC
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
8/23/13
Elliott Bay
Design Group
Acknowledgement letter signed by Joe
Pritting of Elliott Bay Design Group
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
10/3/12
Fixits Precision
Machine
Acknowledgement letter signed by Jimmie
Myers of Fixits Precision Machine (no longer
an active tenant)
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
10/3/12
Wayne Olsen
Acknowledgement letter signed by Wayne
Olsen
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
10/3/12
J. Michael Scott
Acknowledgement letter signed by J. Michael
Scott
Thompson,
Glen
Power Systems &
Supplies of Alaska
Alaska Department of
Natural Resources
1/9/12
Alaska Pacific
Bank
Notice of Properties Interest transferred by
Power Systems and Supplies of Alaska LLC
(PSSA) to Alaska Pacific Bank on December
28th 2011.
Spokely,
Andrew
Power Systems &
Supplies of Alaska
EPA
Federal Express Corporation, Pacific Airways, and Remote Made Easy are tenants on the parcel marked in blue (on Ward Cove Seaport Property
also owned by PSSA) on the 2013 map (Attachment 4). This parcel does not appear to require notice because it was not part of the Uplands
Unit, but PSSA has been including it in the reporting because some of the documents subsequent to the 1999 Covenants and the Consent Decree
appear to have broadened the scope of reporting. All of the other leases are in the magenta parcel labeled as PSSA.
-------
u
REMOTE MADE EASY OcVc
Power Systems and Supplies of Alaska LLC +Ward Cove Industries LLC + Remote Made Easy LLC + Full Cycle LLC
PO Box 772 + Ward Cove + Alaska + 99928
(907) 247-7772 + (907) 220-6055 (Fax)
CERCLA ACKNOWLEDGEMENT
on behalf of
hereby acknowledge that on (date) ,
I received copies of the following:
a) 30 page AGREEMENT, plus four (4) Appendices, by and among Ketchikan
Gateway Borough, Gateway Forest Products, Inc. and Ketchikan Pulp
Company dated July 14, 2003.
b) 83 page CERCLA REMEDIAL DESIGN / REMEDIAL ACTION CONSENT
DECREE signed by the United States District Judge on November 20, 2000.
c) 17 page Stewart Title report dated December 29, 2011 composed of
Schedule A and Schedule B.
SIGNED:
TITLE:
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INDUSTRIAL LEASE
This Industrial Lease ("Lease") is entered into and made effective this day of .
2015, by and between Ward Cove Industries LLC ("Lessor") and
("Lessee").
RECITALS
A. Lessor is the Property Manager and primary lessee of certain industrial real
property located at Ward Cove Alaska. The real property is herein referred to as the "Lessor's
Property."
B. Upon the terms and conditions set forth in this Lease, Lessor is willing to grant
Lessee a Leasehold interest in and to that portion of the Lessor's Property together with
improvements and parking area which are herein referred to as the "Leased Premises," and
more particularly described as follows:
SEE APPENDIX A FOR LEASED PROPERTY DETAIL
C. Lessor's Property is subject to comprehensive environmental covenants and restrictions
that affect the transferability of property interest and use of the Lessor's Property. The
covenants and restrictions that encumber the Lessor's Property have been disclosed to Lessee
prior to the Lessee's execution of this Lease. The environmental covenants and restrictions that
encumber the Lessor's Property, and thereby encumber the Leased Premises, are herein
referred to as the "Environmental Undertakings" and are more particularly defined in Sections
21.b and 43 of this Lease. Lessee acknowledges receipt of the Environmental Undertakings
prior to executing this Lease, and is willing to abide by the terms, conditions, covenants, and
restrictions stated therein that affect Lessee use, possession, and occupancy of the Leased
Premises under the terms of this Lease.
LEASE
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor the
Leased Premises for the Lease Term, defined in Section 3, below, at the rental rate, and upon
all other terms, covenants, and conditions in this Lease.
2. Use of Leased Premises; Common Area.
a. The Leased Premises shall be used for industrial purposes including
those described in Appendix A and any purpose as may otherwise be
approved hereafter by Lessor in writing. Lessee shall conduct its
operations within the Leased Premises in an orderly and commercially
reasonable manner, that is at all times in full compliance with the terms and
conditions of this Lease, and all applicable federal, state and local Laws,
statutes, regulations and ordinances. Lessee shall not annoy, disturb,
endanger, or act in an offensive manner to occupants and persons coming
Ward Cove Industries LLC (WCI) LEASE - Page 1 of 23
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on to, or that occupy any portion of the Lessor's Property or adjacent
properties within Ward Cove, which are owned, managed, or leased by
Lessor at anytime during the Lease Term.
b. Lessee shall not do or permit any act that is likely to:
(i) cause any structural damage to the Leased Premises; or
(ii) cause damage to any part of the Leased Premises, except to the
extent reasonably necessary for the installation of Trade Fixtures, equipment, machinery, or the
construction of alterations as permitted under this Lease or as approved in writing in advance by
Lessor; or
(iii) violate Environmental Undertakings, as that term is defined in
Section 21.b., below; or
(iv) violate Prior Undertakings, as that term is defined in Section 43, below;
or
(v) violate any Environmental Law, as that term is defined in Section 43,
below.
c. Lessee shall not commit any waste in, upon, or around the Leased
Premises and shall keep the Leased Premises in a neat, clean, attractive, and orderly condition,
free of trash and debris. The Leased Premises shall be used and maintained by Lessee in such
manner as to avoid nuisance from dust, smoke, obnoxious odors, fumes, vapors, dust, noise, or
otherwise. Lessee shall not keep or store any explosives on the Leased Premises, without the
written approval of Lessor being first given after receipt of approval for such placement or storage
being given by all government agencies having jurisdiction thereof.
d. Lessee shall use and maintain the Leased Premises in compliance with
all applicable Laws, statutes, regulations, and ordinances and the requirements of any insurance
Lessee is required to maintain and carry under the terms of this Lease.
e. Lessee, its invitees, licensees, agents, contractors, venders, and
employees shall have the non-exclusive right to use and have access to the Leased Premises
over and through the Lessor's Property within that area designated as the "Common Area" on
Appendix A attached hereto. The Common Area will be used by Lessee in common with
others having the right to enter the Lessor's Property from the North Tongass Highway. The
Lessor does not warrant that the Common Area is suitable for any particular purpose, nor does
Lessor assume or undertake the express or implied responsibility for the maintenance or repair
of the Common Area. Lessor shall not be obligated or otherwise responsible for snow removal
from the Common Area. Lessee hereby releases, discharges, and agrees to indemnify Lessor,
its successor, and assigns, of and from any and all claims, demands, or causes of action which
may arise from or pertain to Lessee's use of the Common Area. Lessor reserves the right to
modify, substitute, or alter the Common Area from time to time, provided a reasonable alternative
means of ingress and egress to the Leased Premises is provided to Lessee.
f. Lessee further agrees that during the Lease, Lessee shall not cause or
permit any use of the Leased Premises, or any portion thereof, in any illegal manner. Lessee
shall, at Lessee's own expense, comply with all applicable local, state, and federal Laws,
Ward Cove Industries LLC (WCI) LEASE - Page 2 of 23
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ordinances, rules, and regulations.
g. Lessee acknowledges and agrees that the rights and entitlements set forth
in this Lease are the only rights and entitlements granted to Lessee, and therefore, Lessee
acknowledges that there is no easement, right, or entitlement, express or implied, other than that
specifically herein granted by Lessor.
3. Lease Term; Termination; Renewal.
a. The term of this Lease shall commence on . herein
referred to as the "Commencement Date," and continue through to (the
"Lease Term").
b. Lessee shall have the option to terminate this Lease as described in
Appendix A.
c. Lessee shall have the option to renew this Lease as described in
Appendix A.
4. Base Rent; Late Payment; Escalation of Rent.
a. Lessee shall pay "Base Rent" during the Lease Term in the amount of
Some Number of Dollars($xx,000) which shall be paid in monthly installments of A number
Dollars($ ) per month with the first payment of rent to be paid to Lessor on or before
the Commencement Date and continuing thereafter on or before the 1st day of each month
thereafter until the end of the Lease Term. Rent shall be payable in lawful money of the United
States to Lessor at the address stated in this Lease or to any other address that Lessor may
designate from time to time. The payment of Base Rent shall NOT include Lessee's obligation to
pay any federal, state, or municipal sales tax or other tax attributable to Lessee's possession of
the Leased Premises.
b. Lessee shall pay a late payment fee of SNA for any payment of Base
Rent that is not received by Lessor on or before the payment due date stated above. In
addition, Lessee shall pay interest (herein, "Chargeable Interest") at the rate of ten and one
half percent (10.5%) for all unpaid rent and other charges Lessee is obligated to pay under the
terms of this Lease. The late payment fee and Chargeable Interest on unpaid rent shall be
paid to Lessor as additional rent on the date payment of Base Rent is next due to be paid.
Lessee's obligation to pay rent shall be prorated in the last month of the Lease based upon the
portion of the month during which Lessee occupies the Leased Premises if different than the
intended expiration date stated in Section 3, above.
c. Base Rent shall be adjusted annually as described in Appendix A.
5. Taxes.
a. Lessor shall be responsible for and shall pay all state, federal, and municipal
property tax levied against the Leased Premises during the Lease Term. As used in this Lease, the
term "Property Taxes" shall mean any and all taxes, assessments, levies, and other charges of
any kind, general and special, foreseen and unforeseen (including all installments of principal
and interest required to pay any existing or future general or special assessments, and any
increases resulting from reassessments made in connection with a change in ownership, new
Ward Cove Industries LLC (WCI) LEASE - Page 3 of 23
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construction, or any other cause), now or later imposed by any governmental or quasi-
governmental authority or special district having the power to tax or levy assessments, which
are levied or assessed against or with respect to the value, occupancy, or use of all or any portion
of the Leased Premises.
b. Lessee shall be responsible for and shall pay all municipal, state, and
federal taxes assessed against and levied upon Trade Fixtures, furnishings, equipment, and all
other personal property of Lessee situated within the Leased Premises, or elsewhere.
6. Security Deposit. As defined in Appendix A.
7. Possession and Condition of Leased Premises. Lessee acknowledges that
Lessee is familiar with the condition of the Leased Premises, and the suitability of the Leased
Premises for Lessee's intended needs and purposes. Accordingly, Lessee accepts
possession of the Leased Premises as of the Commencement Date, in its current condition on
the basis of "AS IS," together with all faults and defects, known or unknown, and subject to all
applicable Laws governing and regulating the use of the Leased Premises, including, but not
limited to, the Environmental Undertakings, defined in Section 21.b., below. Lessee did take
the opportunity to inspect the Leased Premises, and optionally to have it inspected by qualified
persons prior to execution of this Lease. THE LEASED PREMISES ARE BEING ACCEPTED
BY LESSEE "AS IS" IN THEIR PRESENT CONDITION AND STATE OF REPAIR, WITH
NO EXPRESS OR IMPLIED REPRESENTATIONS, STATEMENTS, ASSURANCES, OR
WARRANTIES BEING GIVEN BY LESSOR TO LESSEE, UPON WHICH LESSEE HAS
RELIED IN EXECUTING THIS LEASE, WHICH RELATE OR OTHERWISE PERTAIN TO
THE PHYSICAL CONDITION, QUALITY OF CONSTRUCTION, WORKMANSHIP, STATE
OF REPAIR, OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL OF WHICH ARE
SPECIFICALLY DISCLAIMED BY LESSOR.
8. Hazardous Substances.
a. Lessee agrees that any kind and all handling, transportation, storage,
treatment, disposal, or use of Hazardous Substances by Lessee in or about the Leased
Premises shall strictly comply with all applicable Environmental Laws. The terms Hazardous
Substances and Environmental Laws are more particularly defined in Section 43, below.
b. Lessee agrees to indemnify, defend, and hold Lessor harmless from any
liabilities, losses, claims, damages, penalties, fines, attorney fees, expert fees, court costs,
remediation costs, investigation costs, or other expenses resulting from or arising out of Lessee's
use, storage, treatment, transportation, release, or disposal of Hazardous Substances on or
about the Leased Premises.
c. If the presence of Hazardous Substances on the Leased Premises caused
or permitted by Lessee results in the contamination of the Leased Premises or any water or soil
beneath or adjacent to the Leased Premises, Lessee shall give immediate notice to Lessor, in
writing, of the contamination, at Lessee's sole cost, and shall promptly take all reasonable action
necessary to investigate and remedy the contamination.
d. Lessor and Lessee each agree to promptly notify the other of any
communication received from any governmental entity concerning Hazardous Substances or the
potential or actual violation of Environmental Laws that relate to the Leased Premises for which
either party receives written notification or otherwise becomes aware from a governmental
Ward Cove Industries LLC (WCI) LEASE - Page 4 of 23
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agency or third-person.
e. Lessee shall not use, handle, store, transport, generate, release, or
dispose of any Hazardous Substances on, under, or about the Leased Premises, except that
Lessee may use (i) small quantities of common chemicals such as adhesives, lubricants, and
cleaning fluids in order to conduct business at the Leased Premises, and (ii) other Hazardous
Substances that are necessary for the operation of Lessee's business and for which Lessor
gives written consent prior to the Hazardous Substances being brought onto the Leased
Premises. At any time during the Lease Term, Lessee shall, within ten (10) days after written
request from Lessor, disclose in writing all Hazardous Substances that are being used by Lessee
on the Leased Premises, the nature of the use, and the manner of storage and disposal.
9. Repairs and Maintenance.
a. Lessee shall, at Lessee's cost, keep the Leased Premises clean and
maintain in good order, condition, and repair the facilities, fixtures, and improvements, including,
without limitation, the following:
(i) all fixtures, interior walls, floors, carpets, and ceilings in the Leased
Premises;
(ii) all windows, roll up doors, entrance doors, entrances, and plate
glass in the Leased Premises;
(iii) all electrical fixtures and all equipment contained in the Leased
Premises, including all light fixtures, lamps, bulbs, tubes, fans, vents, exhaust equipment, and
systems;
(iv) signage, including, but not limited to, warning signs, parking lot
signage, or fixed lit or unlit signs situated within the Leased Premises; and
(v) all repairs and replacements required of Lessee shall be promptly
made with new materials of like kind and quality as previously existing. If the work affects the
structural parts of the Leased Premises or if the estimated cost of any item of repair or
replacement is in excess of Five Thousand Dollars ($5000.00), Lessee shall first obtain Lessor's
written approval of the scope of the work, the plans for the work, the materials to be used, and
the contractor hired to perform the work.
b. If Lessee fails to perform Lessee's obligations under this Section 9, or
under any other section of this Lease, after five (5) days prior written notice to Lesseee, except in
an emergency when no notice shall be required, Lessor may enter the Leased Premises,
perform the obligations on Lessee's behalf, and recover the cost of performance, as additional
rent payable by Lessee on the date the next installment of Base Rent is due under the Lease.
10. Alterations.
a. Lessee shall not construct any alterations, improvements, or additions, or
otherwise alter the Leased Premises (herein, "Alterations") without Lessor's prior written consent.
If Lessor's approval for any Alterations is required, Lessee shall not undertake the Alterations
until Lessor has given written consent to the plans and specifications, and the Alterations shall
be constructed substantially in compliance with plans and specifications approved by a
Ward Cove Industries LLC (WCI) LEASE - Page 5 of 23
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licensed, bonded, and qualified contractor. All Alterations shall be constructed in accordance
with all Laws using new materials of good quality.
b. Lessee shall not commence construction of any Alterations until:
(i) all required government approvals, licenses, and permits have
been obtained;
(ii) all requirements regarding insurance imposed by this Lease have
been satisfied; and
(iii) Lessee has given Lessor at least ten (10) days prior written notice
of Lessee's intention to commence construction.
c. Lessee shall pay, when due, all claims for labor or materials furnished in
connection with Alterations that are or may become mechanics' or materialmen's liens against
the Leased Premises or any interest in them. Lessee shall have the right, in good faith, to
contest the validity of any lien, claim, or demand, provided that Lessee shall, at Lessee's sole
expense, defend Lessor against such lien, claim, or demand. In addition, Lessor may require
Lessee to pay Lessor's actual attorney fees and costs reasonably incurred in connection with
the defense of any such lien, claim, or demand. Lessee shall pay and satisfy any adverse
judgment that may be rendered to enforce such lien, claim, or demand against Lessor or the
Leased Premises. Any cost or payment incurred by Lessor under this Section 10.c., shall be
paid as additional rent on the next rent due date after written notice of the cost and payments
incurred is delivered to Lessee.
d. All Alterations shall be and remain the property of Lessor during the
Lease Term, and shall not be altered or removed from the Leased Premises. At the expiration
or sooner termination of the Lease Term, all Alterations shall remain the property of Lessor, and
Lessor shall have no obligation to reimburse Lessee for any portion of the value or cost of the
Alterations. However, Lessor shall have the right to require Lessee to remove any Alterations
made to the Leased Premises. The determination of what Alterations are to be removed shall
be made by Lessor at the time approval is given to Lessee for the making of the Alterations. In
that event, Lessee shall remove the Alterations, at Lessee's cost, that are required by Lessor to
be removed prior to the expiration or sooner termination of the Lease Term. After removal of
any Alternation, Lessee shall surrender the Leased Premises in a good, clean, and safe
condition, similar to the condition that existed prior to construction of the Alteration, less
ordinary wear and tear.
11. Trade Fixtures. Lessee shall have the right, at any time, and from time to time,
during the Lease Term and any renewal or extension, at Lessee's sole cost and expense, to
install and affix in, to, or on the Leased Premises items for use in Lessee's trade or business
that Lessee, in Lessee's sole discretion, deems advisable (collectively, "Trade Fixtures").
Trade Fixtures shall remain the property of Lessee and may be removed at the expiration of
the Lease Term or any extension, provided that any damage to the Leased Premises caused
by the removal of Trade Fixtures or equipment shall be repaired by Lessee, at Lessee's sole
expense, and further provided that Lessor shall have the right but not the obligation to keep any
Trade Fixtures or equipment that Lessee otherwise elects to abandon.
12. Insurance; Waiver of Subrogation. See Appendix A.
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13. Damage and Destruction to Leased Premises.
a. If the Leased Premises are materially damaged to the extent of ten
percent (10%) or more of the then full replacement cost from a cause not insured against under
casualty insurance, either party shall have the right to terminate this Lease by giving written
notice of termination to the other party within thirty (30) days after the date of the damage or
destruction, in which case this Lease shall terminate as of the receipt of such notice. If the
Lease is not so terminated, then Lessor shall diligently proceed to repair and restore the Leased
Premises, and Lessee shall remain obligated to pay all rent as due.
b. If the Leased Premises are damaged to the extent of ten percent (10%)
or more of the then full replacement cost from a cause covered by casualty insurance, and that
damage or destruction may be repaired or restored within ninety (90) days after commencement
of repair or restoration, then Lessor shall diligently proceed to repair and restore the Leased
Premises, in which case, Lessor shall have a right to the proceeds of all insurance on the
Leased Premises up to the amount necessary to effect full repairs. In such event, Lessee shall
remain obligated to pay all rent as due.
If Lessor reasonably determines that the Leased Premises cannot be repaired or restored within
ninety (90) days, Lessor will give immediate written notice to Lessee regarding the inability to
make repairs, stating therein the period Lessor reasonably anticipates repairs will be
completed. In that event, Lessee shall have the right to terminate this Lease by written notice
to Lessor given within thirty (30) days after the date on which the notice regarding the inability
to make repairs within (90) ninety days occurs, however, Lessor shall have a right to the
proceeds of all insurance on the Leased Premises up to the amount necessary to effect full
repairs. If the Lease is not so terminated, then Lessor shall diligently proceed to repair and
restore the Leased Premises, and Lessee shall remain obligated to pay all rent as due.
c. If the Leased Premises are damaged to the extent of fifty percent (50%)
or more of its replacement cost, Lessee may elect to terminate this Lease by written notice given
within sixty (60) days after the date of damage or destruction. If the Lease is not so terminated,
then Lessor shall diligently proceed to repair and restore the Leased Premises, and
Lessee shall remain obligated to pay all rent as due. Lessor shall have a right to the
proceeds of all insurance on the Leased Premises without payment or reimbursement
therefrom to Lessee for any loss or damage Lessee may have incurred as a result of the damage
to the Leased Premises.
14. Condemnation. If any part of the Leased Premises is condemned or otherwise
taken under the power of eminent domain or conveyed in lieu of condemnation, and the
condemnation or taking materially and adversely affects Lessee's occupancy of the Leased
Premises to the extent that the business of Lessee becomes impossible to continue, either
party shall, at its option, have the right to terminate this Lease. Lessor shall receive any and all
sums awarded that may be paid in connection with any condemnation or taking, and Lessee
waives any entitlement to any portion of the condemnation award made to Lessor. If the Leased
Premises is temporarily condemned or taken, this Lease shall be unaffected, and Lessee
shall continue to pay all rent payable under this Lease.
15. Utilities. See Appendix A.
16. Assignment and Subletting the Leased Premises. Any attempted "Assignment'
without Lessor's consent shall constitute an Event of Default, shall be voidable at Lessor's option.
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For purposes of this Lease, the term "Assignment' shall mean the transfer, exchange, conveyance,
or sale of any or all of a portion of the leasehold interest held by Lessee as provided under the terms
of this Lease. Lessor's consent to any one Assignment shall not constitute a waiver of the provision
of this Section 16 as to any subsequent Assignment or consent to any subsequent Assignment. If
consent to an Assignment is given, Lessee shall remain obligated to Lessor for the timely payment of
rent and performance of the other obligations under this Lease. The acceptance of rent by Lessor
from any person other than Lessee shall not affect or be construed as a waiver by Lessor of any
provision of this Lease, nor shall acceptance of rent from a third person be construed as an implied
consent to an Assignment. Lessor shall not be obligated to consent to an Assignment or subletting of
all or any portion of the Leased Premises that may be requested by Lessee. In the event Lessor is
requested by Lessee to consider a request for Assignment or subletting of the Leased Premises,
Lessee shall (i) pay all reasonable costs incurred by Lessor in reviewing the terms and conditions of
the assignment or subletting agreement, including reasonable attorney fees incurred by Lessor to
evaluate acceptability of the assignee and to prepare documents relating thereto, including such
documents as may be required by Environmental Undertakings, (ii) comply with Environmental
Undertakings, as that term is defined in Section 21.b., below, (iii) guarantee the performance of the
assignee or sublessee and (iv) assignee or sublessee shall execute an acknowledgment assuming
and being legally bound by the terms and conditions of this Lease. The Assignment or subletting of
the Leased Premises, or any portion thereof, shall comply with and include the notices,
acknowledgments, and agreements by which the assignee or sublessee assumes the obligation to
be bound as set out in Section 21 .b. - f., below.
17. Indemnity; Waiver and Release.
a. Lessee agrees to indemnify, defend, and hold Lessor and Lessor's
employees, agents, and contractors harmless from all liability, penalties, losses, damages, costs,
expenses, causes of action, claims, or judgments arising from or directly or indirectly related to
any death, bodily injury, personal injury, or property damage that may arise from or pertain to: (i)
any cause, claim, demand, action, or occurrence in or about the Leased Premises during the
Lease Term and any extension of the Lease Term; (ii) the acts, omissions, negligence, or willful
misconduct of Lessee or Lessee's agent, employee, subcontractor, contractor, invitee, affiliate, or
third person, wherever it occurs; or (iii) an Event of Default, including, but not limited to, a
violation of an Environmental Law, Prior Undertakings, and Environmental Undertakings. The
provisions of this Section 17, shall survive the expiration or sooner termination of this Lease.
b. Lessee, as a material consideration for this Lease, waives and releases all
claims against Lessor, its employees, agents, representatives and affiliates with respect to all
matters for which Lessor has disclaimed liability pursuant to this Lease. Lessee agrees that
Lessor, its agents, employees, representatives, and affiliates will not be liable for any loss, injury,
death, or damage (including consequential damages) to persons, property, or Lessee's business
occasioned by theft, force majeure, fire, explosion, injunction, court order, water, leak,
construction, alternation, condition, defect, fault, or repair of the Leased Premises or the Lessor's
Property, or from any act, omission, or negligence of any other third person, including, but not
limited to, occupants, tenants, and subtenants of the Lessor's Property.
18. Default. Each of the following shall constitute an Event of Default under this
Lease (each, "Event of Default"):
a. Lessee's failure to make any payment within three (3) days after receipt of
Lessor's written notice of non-payment of rent and failure to pay Base Rent, late payment fee, and
such other payments then due and owing to Lessor.
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b. The failure of Lessee to perform any of the covenants, conditions, or
provisions of this Lease to be performed by Lessee, other than those requiring any payment to
Lessor, where this failure continues for a period of ten (10) days after Lessee's receipt of written
notice describing the Event of Default and the opportunity for Lessee to cure the default within that
period. However, if the nature of Lessee's failure reasonably requires more than thirty (30) days
for cure, Lessee shall not be deemed to be in default if Lessee commences to cure the default
within such thirty (30) day period and thereafter diligently continues the cure to completion.
c. Any of the following occurrences shall constitute an Event of Default:
(i) The making by Lessee of any general arrangements or
assignments for the benefit of Lessee's creditors;
(ii) Lessee becoming a "debtor" as defined in 11 U.S.C.A. § 101 or
any successor statute, unless, in the case of a petition filed against Lessee, it is dismissed
within sixty (60) days after filing;
(iii) The appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets at the Leased Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within thirty (30) days of this appointment; or
(iv) The attachment, execution, or other judicial seizure of
substantially all of Lessee's assets located at the Leased Premises or of Lessee's interest in
this Lease, where this seizure is not discharged within thirty (30) days after the seizure.
d. The vacation or abandonment of the Leased Premises by Lessee.
e. Lessee's Assignment in violation of Section 16 of this Lease.
19. Remedies on Default by Lessee. Upon the occurrence of an Event of Default,
Lessor, in addition to any other rights or remedies available to Lessor at law or in equity, shall
have the right to:
a. Terminate this Lease and all rights of Lessee by giving Lessee
written notice that this Lease is terminated, in which case Lessor may recover from Lessee the
sum of:
(i) all unpaid Base Rent, including additional rent, late payment
charges, and interest that had been earned at the time of termination;
(ii) distraint for any and all rental payments due and accrued;
(iii) re-entry of the premises by Lessor, the changing of locks on the
door, taking possession of the premises, and removal and storage of all personal property,
including Fixtures, owned or reasonably believed to be owned by Lessee, at Lessee's cost, and
without responsibility or liability for any loss or damage that may result to such property,
provided Lessee is given not less than five (5) days notice of the date on which such removal
and storage will commence;
(iv) any other amount necessary to compensate Lessor for all the
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costs, losses, and damages proximately caused by Lessee's failure to perform Lessee's
obligations or that, in the ordinary course of things, would be likely to result;
(v) the right to collect rents or charges that would otherwise be paid
to Lessee by occupants of the premises, upon giving written notice to Lessee of Lessor's action
to collect such charges and rent from the occupants;
(vi) the right to declare all rents and other payments due and payable
to Lessor and to enforce the payment thereof and the right to perfect all rights and interest to
which Lessor shall be entitled; and
(vii) the right to recover damages from Lessee including (a) the cost of
performing Lessee's obligations under the Lease, (b) the right to judgment against Lessee for all
amounts due and owing to Lessor under the Lease, less such rent and payments received from
Lessee and third persons, (c) actual attorney fees incurred by Lessor in exercising Lessor's
rights under the Lease in the Event of Default, which right is intended to supersede the
customary award of attorney fees under Civil Rule 82 of the Alaska Rules of Civil Procedure
which provides only a partial award of attorney fees to a prevailing party, and (d) for an award of
interest at the rate of twelve percent (12%) per annum on any unpaid rents and other charges to
which Lessor is entitled to collect under the terms of this Lease in the Event of Default.
b. Continue this Lease, and from time to time, without terminating this
Lease, either (i) recover, through the filing of civil actions against Lessee or occupant of the
Leased Premises, all rent and other amounts payable as they become due or (ii) relet the
Leased Premises or any part of the Leased Premises on behalf of Lessee for any term, at any
rent, and pursuant to any other provisions as Lessor deems advisable, all with the right, at any
rent, and pursuant to any other provisions as Lessor deems advisable, all with the right, at
Lessee's cost, to make alterations and repairs to the Leased Premises. Should Lessor elect to
relet the Leased Premises under this provision, Lessor shall be entitled to collect from Lessee,
either directly or through the filing of a civil action, the deficiency of unpaid rent and other
amounts payable to Lessor under this Lease that are due and owing after first deduction from
such amount all rents and charges collected after the premises are relet. Upon the occurrence
of an Event of Default, Lessor shall also have the right, with or without terminating this Lease, to
re-enter the Leased Premises, change the locks to the door, and at Lessee's expense and
costs, remove all persons and property from the Leased Premises. Lessor may cause property
so removed from the Leased Premises to be stored in a public warehouse or elsewhere at the
expense and for the account of Lessee. In such event, Lessor shall not be responsible for, or
liable to, Lessee for any loss or damage caused or resulting to Lessee's property removed from
the Leased Premises and stored, whether such loss or damage results directly or indirectly from
Lessor's acts, omission, or negligence.
c. None of the following remedial actions, singly or in combination, shall be
construed as an election by Lessor to terminate this Lease unless Lessor has in fact given
Lessee written notice that this Lease is terminated or unless a court of competent jurisdiction
decrees termination of this Lease:
(i) any act by Lessor to maintain or preserve the Leased Premises;
(ii) any efforts by Lessor to relet the Leased Premises;
(iii) any re-entry, repossession, or reletting of the Leased Premises; or
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(iv) any re-entry repossession, or reletting of the Leased Premises by Lessor
pursuant to this Section 19. If Lessor takes any of the aforementioned remedial actions without
terminating this Lease, Lessor may nevertheless at any time after taking remedial action, elect
to terminate this Lease by written notice to Lessee.
d. If Lessor relets the Leased Premises, Lessor shall apply the rents and
other revenue in the following order: (i) to the payment of any indebtedness, other than Base
Rent due from Lessee to Lessor; (ii) to the payment of any cost of reletting, including, without
limitation, finder's fees and leasing commissions; (iii) to the payment of the cost of any
necessary maintenance and repairs to the Leased Premises; and (iv) to the payment of Base
Rent and other amounts due and unpaid. Lessor shall hold and apply the excess, if any, to
payment of future amounts payable as they become due. Should revenue from reletting during
any month, after application pursuant to the foregoing provisions, be less than the sum of (i)
Lessor's expenditures for the Leased Premises during that month, and (ii) the amounts due
from Lessee during that month, Lessee shall pay the deficiency to Lessor immediately upon
demand.
e. After the occurrence of an Event of Default, Lessor, in addition to or in lieu
of exercising other remedies, may, but without any obligation to do so, cure the breach
underlying the Event of Default for the account and at the expense of Lessee, provided that
Lessor, by prior notice, shall first allow Lessee a reasonable opportunity to cure, as set forth in
Section 18 above, except in cases of emergency, where Lessor may proceed without prior notice
to Lessee. Lessee shall, within five (5) days of demand, reimburse Lessor for all costs, including
costs of settlements, defense, court costs, and actual attorney fees that Lessor may incur in the
course of any cure.
f. No security or guaranty for the performance of Lessee's obligations, which
Lessor may now or hereafter hold, shall in any way constitute a bar or defense to any action
initiated by Lessor for unlawful detainer or for the recovery of the Leased Premises, for
enforcement of any obligation of Lessee, or for the recovery of damages caused by a breach of
this Lease by Lessee or by an Event of Default.
g. Except insofar as this is inconsistent with or contrary to any provisions of
this Lease, no right or remedy conferred upon or reserved to Lessor is intended to be exclusive
of any other right or remedy given now or later or existing at law or in equity or by statute. Except
to the extent that either party may have otherwise agreed in writing, no waiver by that party of
any violation or nonperformance by the other party of any obligations, leases, or covenants shall
be deemed a waiver of any subsequent violation or nonperformance of the same or any other
covenant, lease, or obligation, nor shall any forbearance by either party to exercise a remedy for
any violation or nonperformance by the other party be deemed a waiver by that party of rights or
remedies with respect to that violation or nonperformance.
20. Default by Lessor. Lessor shall not be in default unless Lessor fails to perform
obligations specifically accepted by Lessor under the provisions of this Lease within thirty (30)
days after receipt of written notice of default that states in detail the provision(s) of this Lease
that Lessee asserts has been breached by the actions or inactions of Lessor. Lessor shall
have thirty (30) days after receipt of Lessee's written notice of default to cure or otherwise
remedy the assertion of default brought by Lessee. In the event Lessor's effort to cure the
default requires more than thirty (30) days for performance, Lessor shall not be in default if
Lessor promptly commences performance within the thirty (30) day period and afterwards
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diligently cures the default asserted by Lessee.
21. Subordination; Attornment; Environmental Undertakings.
a. Lessee acknowledges and agrees that this Lease, and all rights
hereunder, shall be subject and subordinate to all prior exceptions, reservations, leases,
licenses, easements, restrictions, deeds of trusts, mortgages, licenses, permits, agreements,
and rights-of-way of record (collectively, "Prior Undertakings"), which now exist in, on, to, over,
or affecting the Leased Premises, which are more particularly described in Section 43 below,
and which Lessee, as a material consideration of this Lease agrees not to violate. Upon written
request of Lessor, or any holder of a Prior Undertaking, Lessee will, in writing, subordinate its rights
hereunder to the lien of a Prior Undertaking, including any mortgage or deed of trust which
encumbers Lessor's Property or any improvement hereafter placed upon Lessor's Property, and to
all advances made or hereafter to be made upon the security thereof, provided that the mortgagee
or beneficiary, as the case may be, shall agree to recognize this Lease and to not disturb Lessee's
tenancy under this Lease in the event of foreclosure, so long as Lessee is not in default of this
Lease. In the event any proceedings are brought for foreclosure of a Prior Undertaking, or in the
event of the exercise of power of sale under a Prior Undertaking, Lessee shall attorn to the
purchaser, upon any such foreclosure, or sale, and recognize such purchaser as Lessor under this
Lease. Lessee agrees that any such holder of a Prior Undertaking shall not be liable for any
default of Lessor under the Lease occurring before the foreclosure sale. Lessee shall, at any time
and from time to time, upon not more than ten (10) days written notice from Lessor, execute,
acknowledge, and deliver to Lessor a statement in writing (i) certifying that this Lease represents
the entire agreement between Lessor and Lessee, and is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rental and other charges are paid in
advance, if any; (ii) certifying the commencement and termination dates of the Lease Term; (iii)
certifying that there has been no Assignment or other transfer by Lessee of this Lease, or any
interest therein; and (iv) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder and that Lessee has no right of offset, counterclaim, or
deduction against rent, or specifying such defaults, if any, are claimed together with the amount of
any offset, counterclaim, or deduction alleged by Lessee. Any such statement may be relied upon
by any prospective purchaser or lender upon the security of Lessor's Property. Lessee's failure to
deliver such statement within such time shall be conclusive and binding upon Lessee (i) that this
Lease is in full force and effect, without modification except as may be represented by Lessor; (ii)
that there are no uncured defaults in Lessor's performance and that Lessee has no right of offset,
counterclaim, or deduction against rent; and (3) that no more than one month's rent has been paid
in advance.
b. Lessee further acknowledges that this Lease is subordinate to, and shall
at all times comply with, certain agreements, decisions, and declarations of records that concern
or relate to the contamination and cleanup of Hazardous Substances from properties previously
owned and occupied by the Ketchikan Pulp Company within the area known as "Ward Cove,"
which include that Environmental Protection Easement and Declaration of Restrictive
Covenants identified in Section 21.c., below, and the CERCLA Remedial Design/Remedial
Action Consent Decree entered November 20, 2000 in the United States District Court for the
District of Alaska, Case No. A00-225 CV JKS, the Quitclaim Deed dated July 11, 2003,
recorded as Ketchikan Recording District Document No. 2003-004183-0 the Agreement dated
July 14, 2003 by, between, and among the Ketchikan Gateway Borough, Gateway Forest
Products, Inc. and Ketchikan Pulp Company, the Environmental Easement and Declaration of
Covenants dated July 14, 2003, the Acknowledgement that Interests Conveyed are Subject to
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Environmental Easement and Declaration of Covenants dated August 2, 2003, and the
Environmental Easement and Declaration of Covenants dated July 14, 2004, which are herein
collectively referred to as "Environmental Undertakings." Lessee acknowledges that the
aforementioned Environmental Undertakings were made available to Lessee and reviewed in
their entirety by or on behalf of Lessee at Lessor's office located at P.O. Box 772, Ward Cove,
Alaska 99928, at least seven (7) days prior to the execution of this Lease by Lessee.
c. Without limiting the foregoing representations relating to the
acknowledgement set forth in Section 21.b., above, Lessor further gives the following NOTICE
relating to the Environmental Undertakings as follows:
THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL
PROTECTION AGENCY (EPA) EASEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS, DATED OCTOBER 28TH, 1999, RECORDED IN
THE KETCHIKAN RECORDING DISTRICT, FIRST JUDICIAL DISTRICT, STATE
OF ALASKA, ON OCTOBER 28TH, 1999, BOOK 0305, PAGE 772 THAT IS IN
FAVOR OF, AND ENFORCEABLE BY, THE STATE OF ALASKA.
d. Lessee acknowledges that Lessor did not, prior to the execution of this
Lease, extend any offer to explain the meaning, purpose, or impact of the documents referred to
as the Environmental Undertakings that are described in Section 21.b., above. Any research or
investigation into these documents shall be done at Lessee's sole effort and expense. Any
assistance provided by Lessor shall be assumed to be for Lessor's exclusive benefit and
convenience.
e. Lessee agrees to reimburse Lessor for any government oversight costs
relating to the Environmental Undertakings that are charged to Lessor by governmental
agencies caused or resulting from Lessee's actions, proposed actions, or investigation of
possible actions in connection with Lessee's occupancy or use of the Leased Premises. Such
agreement by Lessee to reimburse for government oversight costs will include, without
limitation, any and all government oversight costs for which Lessor is liable under the
Environmental Undertakings, including Section 9 of the Environmental Easement and
Declaration of Covenants Agreement Dated July 14, 2003, and which result from Lessee's
actions, proposed actions or investigation of possible actions in connection with Lessee's
occupancy or use of the Leased Premises. Said agreement to reimburse Lessor survives
termination of the lease.
f. Lessee acknowledges and agrees that by executing this Lease, Lessee
agrees to be bound by the Agreement dated July 14, 2003, and in further consideration for, and
as a condition to, acceptance of this Lease, Lessee hereby agrees that the real property interests it
hereby is acquiring from Lessor are subject to the same limitations and conditions as the ones
applicable to Lessor which are set forth in that certain Agreement by and between the Ketchikan
Gateway Borough, Gateway Forest Products, Inc., and Ketchikan Pulp Company, dated July 14,
2003, a copy of which was provided to Lessee prior to the execution of this Lease, and is
incorporated by reference as though fully set forth herein. In particular, all releases, waivers, and
limitations on claims against Ketchikan Pulp Company, its agents, servants, employees, officers,
directors, partners, principals, shareholders, or any of their insurance companies and contractors,
including, but not limited to, environmental claims, whether arising under CERCLA, 42 U.S.C. §
9601 et seq.; RCRA, 42 U.S.C. § 6901 et seq.; AS 46.03.822; or otherwise, as they now exist or
hereafter may be amended, to which Lessor concurred, are hereby agreed to be applicable and in
full force and effect.
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Further, Lessee agrees that Ketchikan Pulp Company, its shareholders, successors, heirs,
and assigns are third party beneficiaries of the above referenced July 14, 2003 Agreement, of
Lessee's agreement set forth in the preceding paragraph, and any future agreements concerning
the Leased Premises.
LESSEE HEREBY AGREES THAT LANGUAGE IDENTICAL TO THE PREVIOUS TWO
PARAGRAPHS OF SECTION 21.F., SHALL BE INCORPORATED IN ANY FUTURE LEASE,
SALE, OR CONVEYANCE OF ANY INTEREST (INCLUDING DEEDS OF TRUST) IN ALL OR
PART OF THE LEASED PREMISES.
22. Transfer of Leased Premises. If Lessor transfers the Leased Premises, Lessor
shall be relieved of all liability for the performance of Lessor's obligations that accrue after the
date of the transfer. However, any prepaid rent or Security Deposit held by Lessor at the
time of the transfer shall be delivered to the transferee.
23. Severability. If any provision of this Lease is held by a court of competent
jurisdiction to be either invalid or unenforceable, the remaining provisions of this Lease shall
remain in effect, unimpaired by such holding.
24. Time of the Essence. Time is of the essence under this Lease.
25. Additional Rent. All monetary obligations of Lessee to Lessor under the Lease,
including, but not limited to, Base Rent shall be deemed additional rent.
26. Integration. This Lease constitutes the entire Lease between Lessor and Lessee,
and there are no leases, agreements, or representations between the parties except as
expressed in this Lease. Lessee acknowledges that neither Lessor nor Lessor's representatives
have made any legally binding representation, assurance, or warranty upon which Lessee has
relied upon as to any matter except those expressly set forth in this Lease. There are no oral
Leases between Lessor and Lessee affecting this Lease, and this Lease supersedes and cancels
all previous negotiation, arrangements, brochures, website statements, or representations
concerning Lessor's Property, leases, and understandings, if any, between Lessor and Lessee
with respect to the subject matter of this Lease. This instrument shall not be legally binding until it
is fully executed by both Lessor and Lessee. No subsequent change or addition to this Lease
shall be legally binding on the parties until the modification is fully executed in writing and signed
by Lessor and Lessee.
27. Notice. Except as otherwise expressly provided by Law, all notices or other
communications required or permitted by this Lease or by Law to be served on or given to
either party to this Lease by the other party shall be in writing and shall be deemed given
when personally delivered to the party to whom they are directed, or in lieu of the personal
service, upon deposit in the United States Mail, certified or registered, return receipt requested,
postage prepaid, addressed to:
Lessee at:
NEW CLIENT LLC
PO Box XXX
Ward Cove. AK 99928
907-247-XXXX
ATTN: Somebody
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with a copy to:
and to Lessor at: Ward Cove Industries LLC
Post Office Box 772
Ward Cove, Alaska 99901
ATTN: David Spokely
with a copy to: H. Clay Keene, Esq.
Keene & Currall, P.C.
540 Water Street, Suite 302
Ketchikan, Alaska 99901
Either party, Lessee or Lessor, may change the address for the purpose of this Section by
giving written notice of the change to the other party in the manner provided in this Section.
28. Waiver. No delay or omission of the right to exercise any power by either
party shall impair any such right or power, or shall be construed as a waiver of any default
or as acquiescence therein. One or more waivers of any covenant, term, or condition of this
Sublease by either party shall not be construed by the other party as a waiver of a
subsequent breach of the same covenant, term, or condition. The consent or approval by
either party to or any act by the other party of a nature requiring consent or approval shall
not be deemed to waive or render unnecessary consent to or approval of any subsequent
similar act.
29. Memorandum of Lease. Neither this Lease nor a memorandum of this Lease
shall be recorded as a public record in the Ketchikan Recording District, or elsewhere, at
anytime following the execution of the Lease unless approved and written consent are first
given and signed by Lessor.
30. Return of Leased Premises. Upon the expiration or sooner termination of this
Lease, Lessee shall vacate and surrender the Leased Premises to Lessor in the same
condition as existed at the Commencement Date, except for reasonable wear and tear. If the
Leased Premises are not so surrendered at the termination of this Lease, Lessee shall be
liable to Lessor for all costs incurred by Lessor in returning the Leased Premises to the
required condition. Lessee shall indemnify Lessor against loss or liability resulting from delay
by Lessee in surrendering the Leased Premises, including, without limitation, any claims
made by any succeeding Lessee or losses to Lessor due to lost opportunities to Lease to
succeeding Lessees.
31. Holdover. At the end of the Lease Term, or any extension, if Lessee holds over
for any reason, it is hereby agreed that in the absence of a written Lease to the contrary,
Lessee's possession of the Leased Premises shall be from month-to-month only and not a
renewal of this Lease, or an extension for any additional term. In that case, Lessee shall pay
Base Rent in an amount equal to the Base Rent times some factor payable immediately prior to
the end of the Term or any extension, and the month-to-month tenancy shall be subject to every
other term, covenant, and condition contained in this Lease that is consistent with and not
contrary to a month-to-month tenancy. Lessor shall be entitled to terminate the month-to-month
tenancy by first giving Lessee not less than ten (10) days notice prior to the date on which the
tenancy will terminate.
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32. Cumulative Remedies. No remedy of election under this Lease shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at Law or in equity.
33. Covenants and Conditions. Each term of this Lease performable by Lessee
shall be deemed both a covenant and a condition.
34. Binding Effect. Subject to Section 16 of this Lease, this Lease shall be
binding on and inure to the benefit of the parties and their successors and assigns.
35. Attorney Fees. If either party brings an action to enforce the Lease, the
prevailing party shall be entitled to actual reasonable attorney's fees as determined by the court.
For purposes of this Section 35, the parties agree that a prevailing party to a civil action
concerning the Lease shall be awarded based on the actual reasonable attorney fees incurred
by that party, and not under Alaska Rules of Civil Procedure, Civil Rule 82, or its successor.
36. Lessor Right of Entry. Lessor and its agents may enter the Leased Premises
at any reasonable time after giving at least twenty-four (24) hours prior written notice to
Lessee, except in the case of emergency, for the purpose of:
(i) inspecting the Leased Premises;
(ii) posting notices of non-responsibility;
(iii) supplying any service to be provided by Lessor to Lessee;
(iv) showing the Leased Premises to prospective purchasers, mortgagees, or
Lessees;
(v) making necessary alterations, additions, or repairs;
(vi) performing Lessee's obligations when Lessee has failed to do so after written
notice from Lessor and the expiration of the applicable cure period, if any; and
(vii)responding to an emergency.
Lessor shall have the right to use any means Lessor deems necessary and proper to enter
the Leased Premises in an emergency. Any entry into the Leased Premises obtained by
Lessor in accordance with this Section shall not be a forcible or unlawful entry into, or a detainer
of, the Leased Premises, or an eviction, actual or constructive, of Lessee from the Leased
Premises.
37. Merger. The voluntary or other surrender of this Lease by Lessee, a mutual
cancellation of this Lease, or a termination by Lessor shall not cause a merger, and shall, at
the option of Lessor, terminate all existing subtenancies or may, at the option of Lessor, cause
an Assignment to Lessor of all of these subtenancies.
38. Security of Leasehold Interest. Lessee acknowledges that Lessor shall have
no obligation to provide any guard service or other security measures to the Leased
Premises and Lessee assumes all responsibility for the protection of Lessee, Lessee's agents,
invitees, customers, or third parties, and the property of Lessee and of Lessee's agents, invitees,
and customers from acts of third parties in, on, or about the Leased Premises. Nothing in this
Lease shall prevent Lessor, at Lessor's sole option, from providing security protection for the
Leased Premises.
39. Easements, Dedications. Lessor reserves the right to grant easements,
reserve rights, make dedications, and alter the existing plat of Lessor's Property, that Lessor
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deems necessary or desirable, and to record official plat maps, reservations, covenants,
dedications, and restrictions, so long as such do not unreasonably interfere with Lessee's
use of the Leased Premises. Lessee agrees to sign any of these documents within five (5)
days of the receipt of a request by Lessor.
40. Authority. The individual executing this Lease on behalf of Lessee represents
and warrants that the individual is duly authorized to execute and deliver this Lease or, if a
corporation, partnership or LLC, is duly authorized to execute and deliver this Lease on behalf
of the corporation, partnership or LLC in accordance with its by-laws, partnership agreement, or
operating agreement, and that this Lease is binding upon the corporation, partnership or LLC,
as applicable, in accordance with its terms. Each of the persons executing this Lease on behalf
of a corporation, partnership or LLC covenants and warrants that the party for whom the person
is executing this Lease is duly authorized and existing, that it is qualified to do business in
Alaska, and that it has full right and authority to enter into this Lease.
41. Governing Law and Forum. This Lease shall be governed by the Law of the
State of Alaska, and any litigation concerning this Lease between the parties shall be initiated in
the Alaska Superior Court, First Judicial District, at Ketchikan, to the jurisdiction and venue of
which the parties hereby irrevocably consent.
42. Offer. Preparation of this Lease by Lessor or Lessor's agent and submission to
Lessee shall not be deemed an offer to Lease. This Lease shall become binding on Lessor
and Lessee only when fully executed by Lessor and Lessee.
43. Definitions. As used in this Lease the following terms shall have the following
meanings:
"Alterations" is defined in Section 10.a. hereof.
"Assignment" is defined in Section 16 hereof.
"Base Rent" is defined in Section 4 hereof.
"Chargeable Interest" is defined in Section 4 hereof.
"Commencement Date" Is the date on which the terms of the Lease are
implemented and further defined in Section 3.a., hereof.
"Environmental Laws" means all federal, state, local, or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government
authority regulating, relating to, or imposing liability or standards of conduct concerning any
Hazardous Substance (as defined below), or pertaining to occupational health or industrial hygiene
(and only to the extent that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the Leased Premises),
occupational or environmental conditions on, under, or about the Leased Premises, as now or may
at any later time be in effect, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") [42 U.S.C.A. § 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976 ("RCRA") [42 U.S.C.A. §§ 6901 et seq.]; the
Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 U.S.C.A
§§ 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C.A. § 2601 et seq.]; the
Federal Insecticide, Fungicide, Rodenticide Act [7 U.S.C.A §§ 136 et seq.]; the Superfund
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Amendments and Reauthorization Act [42 U.S.C.A S §9601 et seq.]; the Clean Air Act [42 U.S.C.A
§ S 7401 et seq.]; the Safe Drinking Water Act [42 U.S.C.A. §§ 300 et seq.]; the Solid Waste
Disposal Act [42 U.S.C.A. §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30
U.S.C.A. §§ 1201 et seq.]; the Emergency Planning and Community Right-to-Know Act [42
U.S.C.A. §§ 11001 et seq.]; the Occupational Safety and Health Act [29 U.S.C.A. § 655 and §
6571]; together with any amendments of or regulations promulgated under the statutes cited
above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or
later enacted that pertains to occupational health or industrial hygiene, and only to the extent that
the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous
Substances on, under, or about the Leased Premises, or the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
"Environmental Undertakings" means and refers to the Environmental
Protection Easement and Declaration of Restrictive Covenants identified in Section 21.c., below,
and the CERCLA Remedial Design/Remedial Action Consent Decree entered November 20,
2000 in the United States District Court for the District of Alaska, Case No. A00-225 CV JKS,
referred to hereinafter as the "Ward Cove Consent Decree", the Quitclaim Deed dated July 11,
2003, recorded as Ketchikan Recording District (hereinafter "KRD") Document No. 2003-
004183-0, the Agreement dated July 14, 2003 by, between, and among Gateway Forest
Products, Inc. and Ketchikan Pulp Company, the Environmental Easement and Declaration of
Covenants dated July 14, 2003, recorded as KRD Document No. 2003-004128-0, the
Acknowledgement that Interests Conveyed are Subject to Environmental Easement and
Declaration of Covenants dated August 2, 2003, and the Environmental Easement and
Declaration of Covenants dated July 14, 2004 recorded as KRD Document No. 2004-002967-0.
"Event of Default" is defined in Section 18 hereof.
"Hazardous Substances" includes, without limitation: those substances included
within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic
substance," "solid waste," or "pollutant or contaminant" in CERCI-A, RCRA, TSCA, or under any
other Environmental Law; those substances listed in the United States Department of
Transportation (DOT) Table [49 C.F.R. § 172.101, or by the Environmental Protection Agency
(EPA), or any successor agency, as hazardous substances [40 C.F.R. Part 302]; other substances,
materials, and wastes that are or become regulated or classified as hazardous or toxic under
federal, state, or local laws or regulations; and any material, waste, or substance that is (i) a
petroleum or refined petroleum product; (ii) asbestos; (iii) polychlorinated biphenyl; (iv) designated
as a hazardous substance pursuant to 33 U.S.C.A. § 1321 or listed pursuant to 33 U.S.C.A. §
1317; (v) a flammable explosive; or (vi) a radioactive material.
"Lessor" is defined in the preamble hereto.
"Law" shall mean any constitution, statute, ordinance, regulation, rule, judicial
decision, administrative order, covenant, restriction, or other requirement of any governmental
entity, including, without limitation, all Environmental Laws.
"Lease" is defined in the preamble hereto.
"Leased Premises" is defined in Appendix A hereof.
"Lease Term" is defined in Section 3 hereof.
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"Lessee" is defined in the preamble hereto.
"Prior Undertakings" constitutes all prior exceptions, reservations, leases,
licenses, easements, restrictions, agreements, rights-of-way, covenants, encumbrances which are
of public record, having been recorded in the Ketchikan Recording District.
"Property Taxes" is defined in Section 5 hereof.
"Security Deposit" is defined in Section 6.
"Trade Fixtures" is defined in Section 11.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first set
forth above.
LESSOR
Ward Cove Industries LLC
David Spokely, Member
LESSEE
NEW CLIENT LLC
Somebody, Member
Ward Cove Industries LLC (WCI) LEASE - Page 19 of 23
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Appendix A
Leased Premises.
Leased premises include a portion of the Leased Property commonly known as that portion of
USS 1056 formerly known as the Ketchikan Pulp Mill and more specifically some portion of the
mill and possibly shown on the attached map.
2. Use of Leased Premises; Common Area.
a. The Leased Premises shall be used for some kind of legal business: and
other compatible uses.
b. The Common Area includes all platted, designated and/or improved roads and
parking lots immediately adjacent to the Leased Premises or providing direct access to same,
not otherwise secured from public use generally or specifically set aside for other uses but
Lessor. Common areas may be changed from time to time at the discretion of WCI as
Property Manager.
3. Lease Term; Termination; Renewal.
b. Either party shall have the option to terminate this Lease under specified
circumstances that we describe in this appendix. In such event, the party wishing to
terminate the Lease shall give the other party not less than some (xx) days written notice
of the election to terminate this Lease. The termination of the Lease shall become
effective on the date set forth in the written notice of termination.
c. This Lease shall terminate at the end of the current term unless extended in
writing by Lessor and Lessee.
4. Base Rent; Late Payment; Escalation of Rent.
c. Base rent shall be adjusted annually as mutually agreed by the parties.
6. Security Deposit. As defined in Appendix A.
Lessee shall NOT pay a "Security Deposit".
12. Insurance; Waiver of Subrogation.
a. Lessee shall, at Lessee's expense, obtain and keep in force during the
Lease Term:
(i) Commercial General Liability (CGL) policy of insurance, including
property damage, bodily injury, premises operations including explosion, collapse, and
underground, products and completed operations, broad form property damage and personal
injury coverages, with combined single limit coverage of at least One Million Dollars
Ward Cove Industries LLC (WCI) LEASE - Page 20 of 23
-------
($1.000.000.00) per occurrence, and a general aggregate combined single limit of bodily injury
and property damage of at least Two Million Dollars ($2,000,000); that policy shall include
contractual liability, insuring Lessee's performance of indemnification obligations contained in
this Lease. The CGL policy shall be written as an "occurrence" policy, as distinguished from a
"claims made" policy;
(ii) a policy of fire and "all risk" property damage insurance from
physical damage to Lessee's equipment, personal property, and Trade Fixtures located on the
Leased Premises for full replacement cost;
(iii) Commercial Automobile Liability Insurance, including all owned,
hired, and non-owned automobiles with single limit coverage of not less than Five Hundred
Thousand Dollars ($500,000.00) per accident and One Million Dollars ($1,000,000.00)
aggregate; and,
(iv) Worker's Compensation Insurance as required by the State of
Alaska with employee liability limits of One Million Dollars ($1,000,000.00) - each accident/One
Million Dollars ($1,000,000.00) disease - each employee/One Million Dollars ($1,000,000.00)
disease policy limits or as otherwise required by statute.
b. Where applicable, each policy of insurance required to be carried out by
Lessee, pursuant to Section 12.a., above.
(i) shall name Lessor and any other parties in interest that Lessor
reasonably designates as additional named insureds, including the Ketchikan Pulp Company;
(ii) shall be primary insurance that provides that the insurer shall be
liable for the full amount of the loss without the right of contribution from any other insurance
coverage of Lessor;
(iii) shall be in a form satisfactory to Lessor;
(iv) shall be carried with companies reasonably acceptable to Lessor;
(v) shall provide that the policy shall not be subject to cancellation,
lapse, or change, except after at least thirty (30) days prior written notice to Lessor; and
(vi) shall contain a severability clause. If Lessee has in full force a
blanket policy of liability insurance with the same coverage for the Leased Premises as
described in Section 12.a., above, that blanket insurance shall satisfy the requirements of
Section 12.a., provided that the blanket policy specifically states the address of the Leased
Premises as being covered. A copy of each policy evidencing the insurance required to be
carried by Lessee pursuant to Section 12.a., or a certificate of the insurer, certifying that the
policy has been issued, which provides the coverage required by Section 12.a., and which
contains the specified provisions, shall be delivered to Lessor prior to the time Lessee takes
possession of the Leased Premises and upon renewal of those policies, not less than thirty (30)
days prior to the expiration of the term of the coverage.
c. Lessor may maintain during the Lease Term a policy of standard fire
insurance including coverage using the special Causes of Loss, or similar form and including
Boiler and Machinery insurance, and Business Interruption coverage. Lessor shall be entitled to
Ward Cove Industries LLC (WCI) LEASE - Page 21 of 23
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all proceeds paid to Lessor under the terms of said insurance.
d. Lessor and Lessee hereby waive any rights either may have against the
other, on account of any loss or damage incurred by either party or his or her respective
property, arising from any risk covered by fire and extended coverage insurance required to be
maintained under the terms of this Lease, and which compensates the insured party, and the
parties each, on behalf of his or her respective insurance company, waive any right of
subrogation that it may have against a party. The parties' respective insurance company(s)
shall give written approval to the foregoing waiver of subrogation prior to the execution of this
Lease.
e. Lessor shall be entitled to any higher limits of coverage provided by any
of Lessee's policies required in this Section 12.
15. Utilities. Lessee shall promptly pay. as they become due. all charges for utilities
or services furnished directly to or used by Lessee on or about the Leased Premises.
Ward Cove Industries LLC (WCI) LEASE - Page 22 of 23
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Facijity Aerial
Image © 2012 GeoEye
Ward Cove Industries LLC (WCI) LEASE - Page 23 of 23
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REMOTE MADE EASY
Power Systems and Supplies of Alaska LLC + Ward Cove Industries LLC + Remote Made Easy LLC + Full Cycle LLC
PO Box 772 Ward Cove Alaska 99928
(907) 247-7772 (907) 220-6055 (Fax)
June 2, 2015
Delivery via Certified Mail
State Of Alaska - Dept. of Natural Resources
Division of Mining, Land and Water Realty Services
550 W. 7th Ave
Suite 1050A
Anchorage, AK 99501-3579
RE: Acknowledgement of requirements for Ward Cove Industries LLC (WCI) to supply a copy of the KPC Consent
decree documents and each of the accompanied appendixes to property tenants.
Dear DNR Realty Division:
Enclosed you will find a copy of the acknowledgement letter, signed by L
to be bound by the July 14, 2003 Agreement referenced therein, and the Notice provision that the agreement was
subject to the Environmental Protection Easement and declaration of Restrictive Covenants dated October 28,
1999.
This is in regard to the Lease entered into between WCI and effective
Said Lease also specifies the requirements to be bound by the July 14, 2003 Agreement referenced therein, and
the Notice provision that the agreement was subject to the Environmental Protection Easement and declaration of
Restrictive Covenants dated October 28,1999.
We are sending a copy of this letter and the enclosed documents to recipients listed below, as required in the
October 1999 Environmental Protection Easement and Declaration of Restrictive Covenants and the November
2000 Consent Decree.
Should you require any further documentation, please do not hesitate to contact us.
Sincerely,
Glen Thompson
Comptroller
Enclosures:
Cover Letter
Acknowledgement Letter
CC: John Peterson, Ziegler Law Firm
Phillip Benning, Ketchikan Pulp Company
Bill Janes, DEC Contaminated Sites Specialist
Dept. of Natural Resources, Realty Division
Cami Grandinetti, EPA Coordinator - UOP
Karen Keeley, DEC Contaminated Sites Specialist
. 2015 for a portion of the Ward Cove property affected by the referenced documents, to wit:
-------
Certified letter listing
John Peterson
Zeigler Law Firm
307 Bawden St.
Ketchikan, AK 99901
Phil Benning
Ketchikan Pulp Company
PO Box 6600
Ketchikan, AK 99901
Cami Grandinetti, Project Coordinator
United States EPA
Region 10
1200 Sixth Ave.
Suite 900, ECL -113
Seattle, WA 98101-3140
Alaska Department of Environmental Conservation
Attn: Bill Janes
PO Box 118003
Juneau, AK 99811-1800
Karen Keeley, Project Coordinator
United States EPA
Region 10
1200 Sixth Ave.
Suite 900, ECL-111
Seattle, WA 98101-3140
State of Alaska - Dept of Natural Resources
Division of Mining, Land and Water Realty Services
550 W. 7th Ave
Suite 1050A
Anchorage, AK 99501-3579
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Attachment 25
Uplands Operable Unit Record of Decision, Table 1 (June 7, 2000)
-------
Table 1. Summary of chemical concentrations, risk estimates, early actions, and residual concentrations and risks
Baseline
Residual
Residual
Chemicals Above
Excess Risk
Concentration
Residual
Area (scenario/pathways evaluated)
Screening Levels
Concentration Range
Screening Level 3
Estimate
Action or Note
Range
Risk
Pulp Mill Area
Process Subarea
Access Road and Ditch
Arsenicb
56-182 mg/kg
7.6 mg/kg
X
o
Ditch sediment removed
5.5-157 mg/kg
X
o
(occupational)
in 1998 as part of early
action, some fill added to
road with regrading.
PCDD/F
5.5-162 ng/kg (TEC)
38 ng/kg (TEC)
o
X
LO
No Cleanup Level
8.2-30.2 ng/kg (TEC)
9x10-7
Wood Room/Log Deck Area
Arsenicb
84 mg/kg
7.6 mg/kg
2x10-5
84 mg/kg
2x10-5
(occupational)
Wood Room/Log Deck Seep Water
Manganese
0.267 mg/L (seep
0.0285 mg/L
Hog fuel removed in
(Migration to Ward Cove)
water)
background0
spring 1998c
Soils near Evaporator No. 3
Arsenicb
65 mg/kg
7.6 mg/kg
1x10~5
65 mg/kg
1x10~5
(occupational)
Mill Support Subarea
Aeration Basin Soils (occupational)
Arsenicb
1.3-90 mg/kg
7.6 mg/kg
2x10-5
1.3-90 mg/kg
2x10-5
Grit Chamber Soils (occupational)
Arsenicb
10-100 mg/kg
7.6 mg/kg
2x10-5
10-100 mg/kg
2x10-5
Paint Shop/Former Maintenance
0.94-670 mg/kg
7.6 mg/kg
2x10-4
Soil removed in 1999 as
1.53-33.9 mg/kg
8x10-6
Shop (occupational)
part of early action.
Cleanup Levels:
Lead
<10-4,270 mg/kg
1,000 mg/kg
1,000 mg/kg
<10-274 mg/kg
Benzo[a]pyrene
<0.013-4.42 mg/kg
0.90 mg/kg
o
X
LO
0.90 mg/kg
0.0143-0.0444 mg/kg
1x1 CF
(cPAH RPC)
PCBs
<0.050-499 mg/kg
10 mg/kg
1x104
10 mg/kg
<0.067-8.46 mg/kg
8x106d
Former Bottom Ash Storage Pile
Arsenicb
4.9 and 44 mg/kg9
7.6 mg/kg
o
X
LO
4.9 and 44 mg/kge
o
X
LO
(occupational)
Caustic Tanks and Pipeline
None
None
..
(occupational)
Equipment Storage Area (occupational)
None
None
Filter Plant Soils (occupational)
None
None
Near-shore Fell Subarea
(occupational)
Arsenicb
0.5-132 mg/kg
7.6 mg/kg
CO
X
o
0.5-132 mg/kg
CO
X
o
PCBs
0.49 jj,g/L
0.00017 |j,g/Lf
0.49 jj,g/L
--
(Undissolved)'
(undissolved)'
Wood Waste and Sludge Disposal Area
(occupational)
Arsenicb
1-22 mg/kg
7.6 mg/kg
o
X
LO
1-22 mg/kg
o
X
LO
CB4Q1006\rod_ta.xls
-------
J^bj^Jijj£oniy>i
Baseline
Residual
^re^s^nario/g^h^^evalu^ed^
Chemicals Above
_Screeninc|_Level^_
^Concentration^Range
_Screenincj_LeveH
Excess Risk
Estimate
Action or Note
Residual
Concentration
__Rancj^^_
Residual
Risk
Petroleum Soils Areas
Railroad Tracks Area (comparison with
Benz[a]
<0.007-56 mg/kg
9 mg/kg
Soil removed in 1999 as part
<0.0067-1.18 mg/kg
ADEC regulations)
anthracene
of early action. Cleanup Level:
9,000 ug/kg
Benzofb]
<0.007-28 mpg/kg
9 mg/kg
9 mg/kg
<0.0067-1.2 mg/kg
fluoranthene
Benzo[a]pyrene
<.007-16 mg/kg
0.9 mg/kg
0.9 mg/kg
<0.0067-0.73 mg/kg
Dibenz[a,h]
<.007-2 mg/kg
0.9 mg/kg
0.9 mg/kg
<0.0134-0.204 mg/kg
anthracene
Compressor Area (comparison with ADEC
DRO
17,000-50,000 mg/kg
8,250 mg/kg
Soil removed in 1999 as part
885-8,960 mg/kg
regulations)
of early action. Cleanup Level:
8,250 mg/kg
RRO
39,000-120,000 mg/kg
8,300 mg/kg
8,300 mg/kg
2,160-22,800 mg/kg
Bulk Fuel Tank Area (comparison with
DRO
8.4-31,000 mg/kg
8,250 mg/kg
Soil removed in 1999 as part of
<25-14,500 mg/kg
ADEC regulations)
early action. Cleanup Level:
8,250 mg/kg
RRO
23-36,000 mg/kg
8,300 mg/kg
8,300 mg/kg
<50-14,200 mg/kg
Benz[a]
0.120-24 mg/kg
9 mg/kg
9 mg/kg
0.00978 mg/kg
anthracene
Benzo[a]pyrene
0.110-19 mg/kg
0.9 mg/kg
0.9 mg/kg
0.0132-22.7 mg/kg
Dredge Spoils Area
(occupational) None None
Wood Waste and Ash Disposal Landfill
(occupational) None None
Former Storage Area along the Water Pipeline Road
(occupational)
Arsenicb
1.21-72.6 mg/kg
7.6 mg/kg
o
X
CD
Soil removed in 1999 as part
of early action.
<0.5-89.5 mg/kg
9x10-6
Lead
<10-2,210 mg/kg
1,000 mg/kg
Cleanup Level: 1,000 mg/kg
<10-2,210 mg/kg
PCBs
<0.400-6,410 mg/kg
10 mg/kg
1x10"5
10 mg/kg
0.468-7.9 mg/kg
X
o
TPH-oil
1-34,000 mg/kg
9,700 mg/kg
9,700 mg/kg
None
Aerial Deposition Areas
Forested and Developed Area Soils
(residential/ingestion, dermal
contact, produce consumption)
Grit in Residential Yards
(Residential/ingestion, dermal
contact, produce consumption)
Arsenicb
PCDD/F
Arsenicb
PCDD/F
2.4-138 mg/kg
0.89-137 ng/kg
(TEC)
3.73-7.9 mg/kg
5.1-28.2 ng/kg
(TEC)
7.6 mg/kg
7.4 ng/kg
7.6 mg/kg
7.4 ng/kg
2x105
1x10"5
2x106
2.4-138 mg/kg
0.89-137 ng/kg
(TEC)
3.73-7.9 mg/kg
5.1-28.2 ng/kg
(TEC)
2x10-5
1x105
2x10-6
Footnotes continued on following page.
CB4Q1006\rod_ta.xls
-------
Table 1. (cont.)
Note: Boxes indicate those areas where soil has been removed.
ADEC
cPAH
DRO
EPA
PAH
PCB
RPC
RRO
TEC
TPH
PCDD/F
not applicable
Alaska Department of Environmental Conservation
carcinogenic polycyclic aromatic hydrocarbon
diesel-range organics
U.S. Environmental Protection Agency
polycyclic aromatic hydrocarbon
polychlorinated biphenyl
polychlorinated dibenzo-p-dioxin and polychlorinated dibenzofuran
relative potency concentration
residual-range organics
toxic equivalent concentration
total petroleum hydrocarbon
¦ Screening levels were as follows: EPA Region 10 PCB risk-based cleanup level for nonresidential soils of 10 mg/kg; EPA OSWER guidance for lead in nonresidential soils of
1,000 mg/kg (U.S. EPA 1989a); ADEC TPH soil cleanup standard for protection of groundwater (18 AAC 75); EPA risk-based concentrations for PCDD/F in industrial soils (U.S.
EPA 1998). Screening levels for arsenic onsite and offsite based on background concentrations. Screening level for PCDD/F in grit based on background concentrations.
b Arsenic levels are addressed in the arsenic management plan (Exponent 1998). Arsenic bioavailability estimates described in the arsenic management plan suggest that risks
associated with exposure to arsenic in soil may be much lower than those shown here.
c Screening level based on background in Tongass Narrows (E&E 1991). Hog fuel was identified as a source of manganese. Removal of hog fuel from the site in spring of
1998 eliminated this source. In addition, manganese was not identified as a chemical of potential concern in the Ward Cove investigation. Forthese reasons, manganese
was not carried through the risk assessment.
d Two additional samples with PCB concentrations of 60.2 and 13.5 mg/kg, which were collected from rock at the bottom of the excavation, were not included in the residual
risk calculations given their inaccessibility and low volume.
e Field duplicate results.
f Screening level based on marine human health criteria (U.S. EPA 1999). During the remedial investigation, dissolved concentrations of PCBs were estimated to reach
0.00017 (ig/L within 0.1 meter of the shoreline.
CB4Q1006\rod_ta.xls
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Attachment 26
Ketchikan Pulp Company 2015 Five-Year Review Question B Dioxin Reassessment
-------
Attachment 26: Ketchikan Pulp Company 2015 Five-Year Review Question B Dioxin Reassessment
On February 17, 2012, the EPA released the final non-cancer dioxin reassessment, publishing a
non-cancer toxicity value, or reference dose (RfD), for 2,3,7,8-tetrachlorodibenzo-p-dioxin
(TCDD) in EPA's Integrated Risk Information System (IRIS). The Agency followed current
cancer guidelines and incorporated the latest data and physiological/biochemical research into
the reassessment. The May 2012 updated non-cancer dioxin Regional Screening Levels (RSL)
are 51 ppt TEQ for residential soil and 597 ppt TEQ for commercial/industrial soil (based on the
IRIS RfD for TCDD).
Table 1 of the 2000 Ketchikan Pulp Company (KPC) Uplands Operable Unit (OU) Record of
Decision (ROD) (see Attachment 25) lists a summary of chemical concentrations, risk estimates,
early actions, and residual concentrations and risks. All residual concentrations of dioxins in the
Uplands OU listed in Table 1 are below the new RSL of 597 ppt TEQ for commercial/industrial
soil. By keeping the property zoned as commercial/industrial with functional ICs preventing any
new exposure pathways, the Uplands OU remedy meets the new dioxin RSLs and remains
protective.
Information Considered:
Dioxin Website
EPA Superfund dioxin website, at
http://epa.gov/superfund/health/contaminants/dioxin/dioxinsoil.html containing:
• Q/As on implementing the non-cancer toxicity value, or reference dose (RfD), at
CERCLA and RCRA sites.
• Dioxin Toolbox addressing the sampling, analysis, bioavailability and disposal of dioxin.
Impact of Dioxin RfD on Soil Cleanup Levels
Regional Screening Tables available at: http://www.epa.gov/reg3hwmd/risk/human/rb-
concentration table/
1998 Preliminary Remediation Goals versus Updated Regional Screening Levels for Dioxin
in Soil
Scenario
1998 PRGs
2013 Regional Soil
Screening Levels
Residential
1 ppb (or 1,000 ppt TEQ)
51 ppt TEQ
Commercial/Industrial
5-20 ppb
(or 5,000 - 20,000 ppt TEQ)
597 ppt TEQ
Notes from the 2000 KPC Uplands OU ROD:
• 7.2.1 Identification of Chemicals of Concern
"Dioxins in forested areas on Slide Ridge and north of North Tongass Highway were identified
as COCs and were evaluated in a food-web model. Dioxin 2,3,7,8-TCDD toxic equivalent
concentrations (TECs) in the 12 forest soil samples within the aerial deposition area ranged from
5.2 to 80 ng/kg with an average concentration of 23 ng/kg. The 95 percent UCL on the arithmetic
-------
mean of the dioxin TEC (37 ng/kg) exceeds the background concentration (7.4 ng/kg), thus,
dioxins were retained for further evaluation."
• From the footnote on Table 7 (page 87): "PCDDs/Fs represent toxic equivalent
concentrations based on data for 2,3,7,8-tetrachlorodibenzo-p-dioxin and on toxicity
equivalence factors provided in U.S. EPA (1989a) using one-half of the detection limit for
undetected congeners." [So they did apply ND = 0.5]
• Table 1 of the ROD (page 77) shows the Dioxin screening level 38 ng/kg (TEC) which is
even below the residential screening level of 51 ppt level.
• 5.2.2. Conceptual Site Model for Ecological Receptors
The conceptual site model also includes ecological receptors in off-site upland habitats (i.e. Slide
Ridge) potentially exposed to contaminants from past deposition of stack emissions. Some
terrestrial receptors (e.g., small mammals) are likely to occur on Dawson Point because habitat
around the landfill is primarily older second growth forest. This habitat is represented by the risk
evaluation for small mammal receptors in forested areas.
Logic to compare the residual dioxin concentration ranges in Table 1 of the ROD to the
new dioxin Regional Soil Screening Levels:
• The TEFs used to calculate the TEQ (TECs) for the ROD were EPA 1989 instead of the
currently recommended 2005 WHO TEFs (assuming that they used the 1989 TEFs for all
dioxin data previously collected).
• Below is a table of the TEFs to compare the current TEFs vs ROD TEFs. If mammals
are the only receptor evaluated/pathway complete for the CSM as indicated in ROD
5.2.2, then all 1989 EPA TEFs used to calculate the summary TEQs were more
conservative than the 2005 WHO TEFs. (The TEQ would have been higher than if
calculated based on 2005 TEFs). TEFs which are now a greater multiplier than in the
1989 TEFs are highlighted, but since only the summed TEC/TEQs were reported it is
unclear if there were hits of those specific compounds. Since birds/fish are not receptor
pathways for this site, then that wouldn't matter for the site regardless.
• Based on the information provided, it is concluded that the residual concentrations listed in the
ROD would be below the updated EPA dioxin criteria indicated.
Target Analyte
ROD TEFs
Current TEFs
EPA 1989 TEF (a)
WHO 2005 TEF Mammal
WHO 1998 Fish
WHO 1998 Bird
1,2,3,4,6,7,8-Heptachlorodibenzodioxin
0.01
0.01
0.001
0.001
1,2,3,4,6,7,8-Heptachlorodibenzofuran
0.01
0.01
0.01
0.01
1,2,3,4,7,8,9-Heptachlorodibenzofuran
0.01
0.01
0.01
0.01
1,2,3,4,7,8-Hexachlorodibenzodioxin
0.1
0.1
0.5
0.05
1,2,3,4,7,8-Hexachlorodibenzofuran
0.1
0.1
0.1
0.1
1,2,3,6,7,8-Hexachlorodibenzodioxin
0.1
0.1
0.01
0.01
1,2,3,6,7,8-Hexachlorodibenzofuran
0.1
0.1
0.1
0.1
1,2,3,7,8,9-Hexachlorodibenzodioxin
0.1
0.1
0.01
0.1
1,2,3,7,8,9-Hexachlorodibenzofuran
0.1
0.1
0.1
0.1
-------
1,2,3,7,8-Pentachlorodibenzodioxin
0.5
1
1
1
1,2,3,7,8-Pentachlorodibenzofuran
0.05
0.03
0.05
0.1
2,3,4,6,7,8-Hexachlorodibenzofuran
0.1
0.1
0.1
0.1
2,3,4,7,8-Pentachlorodibenzofuran
0.5
0.3
0.5
1
2,3,7,8-Tetrachlorodibenzodioxin
1
1
1
1
2,3,7,8-Tetrachlorodibenzofuran
0.1
0.1
0.05
1
Octachlorodibenzodioxin
0.001
0.0003
0.0001
0.0001
Octachlorodibenzofuran
0.001
0.0003
0.0001
0.0001
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