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Home My WebLink About05142007 City Council Packet The City of Seward, Alaska ~onday,~ay14,2007 Vanta Shafer Mayor Term Expires 2007 Willard E. Dunham Vice Mayor Term Expires 2008 Robert Valdatta Council Member Term Expires 2007 Robert Thomas Council Member Term Expires 2007 Steve Schafer Council Member Term Expires 2007 Jean Bardarson Council Member Term Expires 2008 Linda Amberg Council Member Term Expires 2008 Phillip Oates City Manager Jean Lewis City Clerk Brad Meyen Cheryl Brooking City Attorney City Council Meeting 7:30 p.m. Council Chambers 1. 2. 3. 4. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING. [Those who have signed in will be given the first opportunity to speak. Time is limited to 2 minutes per speaker and 30 minutes total time for this agenda item.} 5. APPROVAL OF AGENDA AND CONSENT AGENDA [Approval of Consent Agenda passes all routine items indicated by asterisk (*). Consent Agenda items are not considered separately unless a council member so requests. In the event of such a request, the item is returned to the Regular Agenda] SPECIAL ORDERS, PRESENTATIONS AND REPORTS 6. A. Proclamations and Awards 1. ~ilitary Appreciation ~onth Proclamation........ ...Pg 4 2. Certificate of Appreciation presented to Sergeant Doreen Valadez for her re-organization of city police records............................. .. ...... .., '" ......... . .Pg 5 3. Proclamation welcoming Seward Sea Kayak Symposium...................... ......................... ..Pg 6 4. Seward Ocean Festival Proclamation................. ..Pg 7 B. Borough Assembly Report C. City ~anager's Report D. City Attorney Report E. Seward Port and Commerce Advisory Board Report City of Seward, Alaska May 14, 2007 Council Agenda Page 1 7. PUBLIC HEARINGS A. Resolution Requiring a Public Hearing 1. Resolution 2007-047, Authorizing The City Manager To Proceed With The Acquisition Of 8.93 Acres Of Land, Forest Acres Subdivision Lots DB, DC, DE, DF, DG, QQ, And Tract 4, And Appropriating Funds For The Future North Forest Acres Levee/Road At The Appraised Value................ .......................................................... ..Pg 8 2. Resolution 2007-048, Authorizing The City Manager To Proceed With The Acquisition Of 1.69 Acres Of Land, Forest Acres Subdivision Lots SS And RR, And Appropriating Funds For The Future North Forest Acres Levee/Road At The Appraised Value.. ...Pg 24 3. Resolution 2007-049. Setting the Mill Rate Unchanged At 3.12....................... ..Pg 39 8. UNFINISHED BUSINESS - None 9. NEW BUSINESS A. Resolutions *1. Resolution 2007-045, Entering Into A Contract With The Kenai Peninsula Borough To Provide Emergency Management Communications Services.............. ......... .Pg 41 *2. Resolution 2007-046. Authorizing Signatures For All City Bank Accounts And- Rescinding All Previous Resolutions In Conflict Herewith. ....................... ...Pg 55 3. Resolution 2007-050. Amending Resolution 2006-28 Regarding Authorization To Issue Long Term Care Facility Revenue Bonds Of The City In The Principal Amount Of Not To Exceed $27,000,000................................................................ ....Pg 57 *4. Resolution 2007-051, Authorizing The City Manager To Enter Into The Alaska Public Utilities Insurance Trust Participation Agreement. . ... .. . .. . .. . ..... . .. . . .. .. . .. ... .. .Pg 60 *5. Resolution 2007-052, Authorizing Payment To The Alaska Railroad In The Amount Of $11,633.00 As Lease For A Portion Of The Transmission Line From ARRC Mile Post 23 To 23.75. . . . . .. . .. . .. . .. . .. . . . . .. . .. . .. . .. . . . . .. . .. . . . . .. . .. . .. . . . . .. . .. . . . . . . . . . . .. . .. . . Pg 72 B. Other New Business Items * 1. Approval ofthe April 23, 2007 regular city council meeting minutes...... ..Pg 100 *2. Re-appoint Tom Swann and Shannon Kovac to the Historic Preservation Commission, with a term expiring in May, 2010............................. ...Pg 108 3. Discussion on whether to extend the annual business license renewal deadline for seasonal businesses from April 1 to May 1. (Clerk).......................... ...Pg 111 4. Vote to send draft letter of support to the Alaska Scientific Crime Detection Laboratory for continued DNA funding. (Dunham).......................... .Pg 115 City of Seward, Alaska May 14, 2007 Council Agenda Page 2 5. Schedule a field trip to visit SMIC area. (Valdatta)........................ .Pg 122 *6. Non-objection to the Beverage Dispensary-Tourism Liquor License Transfer of Ownership, Location, and Name Change for the New Seward Hotel/New Seward Saloon to Gene's Place.. . . .. . . . . .. . . . . . . . . .. . .. . .. . . . . .. . .. . . . . .. . .. . .. . . . . . . . .. .Pg 123 10. INFORMATIONAL ITEMS AND REPORTS (No action required) A. January through April 2007 Legal Budget Reports.................... ...........Pg 128 B. Congratulations letter from Governor Palin and Recognition Certificate listing Hoben Park on the National Register of Historic Places.......... ...................... ..Pg 133' 11. COUNCIL COMMENTS 12. CITIZENS' COMMENTS [5 minutes per individual - Each individual has one opportunity to speak.} 13. COUNCIL AND ADMINISTRATION RESPONSE, TO CITIZENS' COMMENTS 14. ADJOURNMENT City of Seward, Alaska May 14, 2007 Council Agenda Page 3 tA"itary Appreciation Monti, WHEREAS, the freedom and security that citizens of the United States enjoy today are direct results of the blood shed and continued vigilance given by the United States Armed Forces over the history of our great nation; and WHEREAS, the sacrifices that such members of the United States Armed Forces and of the family members that support them, have preserved the liberties that have enriched this nation making it unique in the world community; and WHEREAS, the United States Congress passed a resolution proclaiming May as National Military Appreciation Month, calling all Americans to remember those who gave their lives in defense of freedom and to honor the men and women of all of our Armed Services who have served and are now serving our Country; and WHEREAS, this month gives the nation a time and place on which to focus and draw attention to our many expressions of appreciation and recognition of our armed services and those on active duty in all branches of the services, the National Guard and Reserves plus retirees, veter- ans, and all of their families - well over 90 million Americans and more than 230 years of our nation's history. NOW, THEREFORE, 1, Vanta Shafer, Mayor of the City of Seward. Alaska do hereby pro- claim the month of May as NATIONAL MILITARY APPRECIATION MONTH and encourage all citizens to join me in showing our support and gratitude by the appropriate display of flags and ribbons during this period. THE CITY OF SEWARD, ALASKA Vanta Shqfer, Mayor 4 City ofSewi'~; CERTIFICA TE OF APPRECIA TION is hereby granted to Sergeant Doreen ValadeZ of the Seward Police Department for her outstanding performance and massive undertaking of transporting all Police Department Records from City Hall's Permanent Records Vault to the Police Department's Evidence Room. Throughout thetcourse of over a year, Valadez cleaned up 50 years worth of evidence and brought all Police records to the same room. , This reorganization will create better efficiency i1;1 Records Management for the Police Department and the City Clerk's Office.. With g!(~at initiative, Sergeant Valadez has made a lasting contribution to managing and preserving the ~tal records of the City of Seward. Now therefore I, Vanta Shafer, Mayor of the City of Seward, on behalfof the City of Seward and the City Clerk's Office, do hereby congratulate and commend Sergeant Doreen Valadez on this great accomplishment. Dated this 23rd day of April, 2007. Vanta Shafer, Mqyor ~.., ~ WHEREAS, originally founded in Seward, the Alaska Sea Kayaking Symposium is celebrating its 20th anniversary; and WHEREAS, in honor of this anniversary, the inaugural Seward Sea Kayak Symposium will occur May 17 - 21,2007 in Seward; and WHEREAS, this five day event will offer classes for beginner, intermediate, and advanced kayakers on launch and rescue skills, brace and roll skills, guiding regulations, GPS and chart reading, using marine radios, injury precautions, and much more; and WHEREAS, the Seward Sea Kayak Symposium will include trips to destinations like Fox Island, Aialik Bay, Orca Island, Thumb Cove, Humpy Cove, Kayaker's Cove, and Sunny Cove as well as pool sessions for beginners; and WHEREAS; the U.S. Coast Guard and Auxiliary will be giving lectures designed to cover the rules artd safety of kayaking, as safe paddling is the top priority at the Symposium; and WHEREAS, this is an event for all ages and a great opportunity to celebrate and participate in one of Seward's great activities; and WHEREAS, I would like to take the opportunity to welcome all participants of the Seward Sea Kayak Symposium; and WHEREAS, David William Miller will be presenting the key note speech Saturday, May 19, 2007 on Fox Island; and WHEREAS, Seward Sea Kayak Symposium director Paul Carter, kayaking and education coordinatdt coordinators Rick Brown, and lecture series coordinator Sue Lang deserve our congratUlations and thanks for spearheading such a well organized event; and WHEREAS, this is a wonderful incorporation with the Seward Ocean Festival and we wish everyone a fun, safe, and healthy event; and with any luck, good weather. NOW THEREFORE I, Vanta Shafer, Mayor of the City of Seward, do hereby welcome the participants of the Seward Sea Kayak Symposium to our community and thank the event organizers, workers, and volunteers for their time committed to this intriguing event. Dated this 14th day of May of 2007. Vartta Shafer, Mayor " ".', 6 J>>*~ * 1< .'~ :8 a) ...~ ~ . i .....~ ~ . , ~ . i 1< la *~ ";",-, .~- ",,/,-"... -:'". ...~..-.:..,.., ~;;.,. .,';: '. ..... .,' ,'C",-" "_,_,,,:<,. ,; ,.~ - ''';:' .. _c\"-.:'t:~ ....1). '. ,.,' '_C._' 0',....-.. ....., '.. ,-- '-, ".c ,'. .... '.<~" . . . ~ ~ * J * JI .~IQ~" /"~*. - fit".J>>* .. .l~-' PROCLAMATION WHEREAS, May 18 - 20, 2007 marks the Seward Harbor Opening Weekend; and WHEREAS, also occurring this weekend is the docking of first cruise ship, the start of the Alaska Railroad's seasonal run, the Exit Glacier 5K Run, and Military Appreciation Day; and WHEREAS, the Seward Chamber of Commerce has. combined all of these events into the first annual Seward Ocean Festival; and WHEREAS, also enhancing this weekend is the inaugural Seward Sea Kayak Symposium, an event for kayakers of all levels and ages; and WHEREAS, participants can attend events like the Blessing of the Fleet, a ,. military appreciation and community cookout, a boat parade, and the Exit Glacier 5K Run; and WHEREAS, Seward will be celebrating and thanking our military members this weekend by inviting members of the Armed Services and their families to a free barbeque on Saturday, May 19th in the Small Boat Harbor; and WHEREAS, visitors and locals alike are encouraged to participate in this summer kick off weekend. NOW THEREFORE I, Vanta Shafer, Mayor of the City of Seward, do hereby invite and encourage all citizens to participate in the Ocean Festival to kick off the 2007 summer in Seward, and wish everyone a happy and prosperous summer season. Dated this 14th day of May, 2007. Vanta Shafer, Mayor <<la'~..* '* . ,{ ~:. ...* "}I.. '. ,t "j Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-047 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO PROCEED WITH ACQUISITION OF 8.93 ACRES OF LAND, FOREST ACRES SUBDMSION LOTS DB, DC, DE, DF, 00, AND TRACT 4, AND APPROPRIATING FUNDS FOR THE FUTURE NORTH FOREST ACRES LEVEE/ROAD AT THE APPRAISED VALUE WHEREAS, the Seward City Council approved Resolution 2007- 41 on April 23, 2007, authorizing the "2007 Red Line" Alignment for the North Forest Acres LeveelRoad Project; and WHEREAS, in meetings between the City and permitting agencies involved in the project, the Department of Natural Resources ("DNR") proposed a plan that would allow the project to move forward if the City of Seward agreed to purchase and preserve certain properties currently identified as wetlands, to offset potential habitat impacts associated with re-routing Japanese Creek and constructing the LeveelRoad; and WHEREAS, a total of nine properties were identified by DNR for purchase by the City, .. ~liiCluding seven properties currently owned by Afognak: Logging, identified on Plat 78-4 as Forest Acres Subdivision Lots DB, DC, DE, DF, DG, QQ, and TRACT 4; and WHEREAS, the purchase of these lots if contingent on a number of factors as identified on the attached Purchase and Sale Agreement, including the ability of the City to secure all necessary easements, rights-of-way, and additional properties needed for the project, and the ability of the City to secure approval of environmental permits for construction of the entire levee from its intersection at the Seward Highway west to its intersection at Dimond Boulevard; and WHEREAS, the administration has negotiated the terms of the purchase with the property owner, and the parties agree to a purchase price to be determined by a property appraisal being conducted by McSwain and Associates, and the current assessed value as determined by the Kenai Peninsula Borough for these seven lots is $170,200. This value mayor may not be comparable to the pending appraisals. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council finds it is in the best interest of the City of Seward to purchase and preserve private property in excess of eight (8) acres for the purpose of mitigating potential habitat and wetland impacts associated with the alignment of the proposed Japanese Creek LeveelRoad, subject to other conditional terms contained in the Purchase and Sale Agreement attached hereto. ~ CITY OF SEWARD RESOLUTION 2007-047 PAGE 20F2 Section 2. The City Manager is hereby authorized to proceed with the acquisition of Forest Acres Subdivision Lots DB, DC, DE, DF, DG, QQ, and Tract 4 (T IN R lW SEC 34 SEWARD MERIDIAN SW THAT UNSUB PTN GOVT LOT 2 LYING NORTH OF LOT XX EAST OF LOTS QQ & PP WEST OF LAUREL ST & SOUTH OFWll..LOW ST AS SHOWN ON PLAT OF FOREST ACRES SUB PLAT SW -17), and as depicted in the Purchase and Sale Agreement presented at this council meeting, and to execute the Purchase and Sale Agreement for a purchase price of $ , as determined by an appraisal to be conducted by McSwain and Associates, in substantially the form as presented at this meeting, and any other necessary legal documents to acquire title to the Property and to take all such action necessary under the Purchase and Sale Agreement to complete the purchase. Section 3. Funds in the amount of $10,000 are hereby appropriated from the General Fund fund balance account no. 101-0000-3070-0666 to the Japanese Creek LeveelRoad account 666-6663- 5910 as an earnest money payment to be made in accordance with the Purchase and Sale Agreement, and upon completion of the property appraisals referenced in the above recitals, remaining funds equal to the appraised value less the $10,000 earnest money payment, are hereby appropriated from the General Fund fund balance account no. 101-0000-3070-0666 to the Japanese Creek LeveeIRoad account no. 666-6663-5910. Section 4. This resolution shall take effect (30) days following passage and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. THE CITY OF SEWARD, ALASKA AYES: NOES: ABSENT: ABSTAIN: Vanta Shafer, Mayor ATTEST: Jean Lewis, CMC City Clerk (City Seal) 9 Council Agenda Statement Through: May 14, 2007 Phillip Oates, City Manager ~ Kristin Erchinger, Finance Director .'(J1IV Meeting Date: From: Agenda Item: Property Purchase to Mitigate Habitat Impacts of Proposed Japanese Creek Levee/Road Project BACKGROUND & JUSTIFICATION: The City of Seward has been collaborating with state and federal resource ~gencies since 1999 to construct a levee to mitigate the impact of future flood events in Seward. Phase I of this project was completed in 2002. Phase IT involves construction of a combined levee/road intersecting Dimond Boulevard on the western end of the levee, and intersecting the Seward Highway on the eastern end. Over the past few years, agencies have struggled to agree on the proposed alignment of the levee. The City preferred the levee be located as far to the north as possible, to minimize the .impact to adjacent properties. The agencies preferred to locate the levee as far south as possible to avoid impacts to the flood plain and minimize impacts to wetlands and habitat. Despite good faith efforts, the parties were at an impasse. Recently, City officials met with representatives of the National Resource Conservation Service (the federal "sponsor" of this project) and the Department of Natural Resources, in an attempt to reach a compromise alignment. The resulting compromise is referred to as the "2007 Red Alignment" and was authorized by Resolution 2007-41, approved by the Seward City Council at their meeting of April 23, 2007. The compromise alignment re-routes Japanese Creek entirely to the north of the levee/road (this alignment eliminates the need for floodgates), eliminates expensive gabion walls and culverts, and moves the levee approximately 120' to the south in some areas. The alignment saves the City approximately $1.4 millioo. in construction cost. The compromise requires however, that the City purchase, and preserve, approximately 11 acres of private property, in order to offset the potential adverse impacts to wetlands and habitat. This resolution authorizes the City Manager to proceed to acquire 8.93 acres of property specifically identified by DNR, from Mognak Logging. The preservation of these parcels from future development will enable perking and is intended to preserve wetlands. The parcels are being appraised by McSwain and Associates. The City agrees to purchase, and Afognak Logging agrees to sell, the properties at the appraised value, subject to contingencies listed in the attached Purchase and Sale Agreement. The contingencies require, in part, that the City secure all necessary easements, rights-of-way, and additional property purchases needed for the project, and secure approval from permitting agencies for the necessary project permits. CONSISTENCY CHECKLIST Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: 10 PURCHASE AND SALE AGREEMENT (North Forest Acres Properties) This Purchase and Sale Agreement ("Agreement") is made as of June _, 2007, between Mognak Construction & Excavating, Inc., an Alaska corporation authorized to conduct business in Alaska, and Mognak Logging, a Division of Kodiak Lumber, Ltd.. (collectively, "Seller") and The City of Seward ("Purchaser"), a home-mle municipality under the laws of the State of Alaska. Purchaser and Seller agree as follows: I. Purchase and Sale: Subject to the terms and conditions of this Agreement, Seller agrees to sell and Purchaser agrees to purchase good and marketable title in fee simple the real property described as follows (the "Property"): Forest Acres Subdivision Lots DB, DC, DE, DF, DO, QQ, and TRACT 4. The Property is further described on Exhibit A attached and incorporated by this reference. 2. Purchase Price and Payment Terms: The purchase price for the Property shall be based on fair market value as determined by an independent appraisal conducted by McSwain and Associates, with such services engaged by the City of Seward. The amount of $10,000.00 (the "Earnest Money") shall be paid to the Escrow Agent described in Section 3 upon Purchaser signing and delivering this Agreement to Seller. After all other terms and conditions of this Agreement have been satisfied, including completion of all contingencies in Section 8 to Purchaser's sole satisfaction, the balance of the purchase price shall be due to Seller at Closing. Under the municipal charter and code of ordinances of Purchaser, the resolution approving this Agreement is not effective until 30 days following approval. 3. Closing: The parties shall cause an escrow (the "Escrow") to be established with First American Title Company of Alaska - Seward Office ("Escrow Agent"). Consummation of the sale (the "Closing") shall take place through the Escrow at the offices of the Escrow Agent, or such other place as Seller and Purchaser agree in writing. Closing of the transaction shall occur within thirty (30) days from the completion of all contingencies of purchase in this Agreement to Purchaser's sole satisfaction. In the event this transaction is not closed within one hundred twenty (120) days of the effective date of the resolution approving this transaction, this -Purchase and Sale Agreement- -Page 1 of 8- 12 CITY OF SEWARD RESOLUTION 2007- L/ '7 FISCAL NOTE The City has $1,729,783.70 remaining in grant funds from the National Resource Conservation Service to pay the remaining costs of the levee project. Total costs are estimated at $2.7 million, including construction costs ($2.2 million) and property acquisition costs ($500,000). The City has requested both state and federal funds to complete this project, but has not been awarded additional funding. The funds for the propelty purchase will come from the City's General Fund reserves. These reserves are at extremely low levels, with the balance of Un designated Fund Balance at 12/31/06 at $1,076,827. Approved by Finance: ~~ RECOMMENDATION City Council approve Resolution 2007~'1, authorizing the acquisition of 8.93 acres ofland in Forest Acres Subdivision, at appraised value, authorizing the City Manager to execute the attached Purchase and Sale Agreement, and appropriating funds. j 11 Agreement shall terminate unless extended in writing by mutual agreement of the parties. Notwithstanding the foregoing, this Agreement shall be automatically extended for ninety (90) additional days as may be reasonably necessary to secure all necessary permits for construction of the north Forest Acres levee, required by the condition precedent to Closing in Section 8. Seller and Purchaser shall cause the following to occur at Closing: (A) Completion of all contingencies listed in Section 8 to Purchaser's sole satisfaction unless waived in writing by Purchaser; (B) The Deed described in Section 5 shall be recorded in the records of the Seward Recording District, Third Judicial District, State of Alaska; (C) Purchaser shall pay to Seller the amount set forth in Section 2 of this Agreement; and (D) The underwriter for the Escrow Agent shall issue to Purchaser the title insurance policy described in Section 4. 4. Title: A standard owner's title insurance policy shall be paid for by Seller and delivered to Purchaser at Closing. If Purchaser elects to obtain an extended coverage AL T A Owner's Title Insurance Policy or any title endorsements, Purchaser shall pay the additional title insurance charges to obtain the endorsements or extended coverage. Purchaser shall be responsible for obtaining and paying the cost of any AL T A survey required to obtain extended coverage. Within fifteen (15) days of the date of this Agreement, Seller shall provide to Purchaser a preliminary commitment for title insurance. Purchaser shall be entitled to review the preliminary commitment and shall have twenty (20) days to specify to Seller in writing any matters to which Purchaser objects. If Purchaser objects to any matters, Seller shall have thirty (30) days after written notice from Purchaser to attempt to eliminate the matters to which Purchaser has objected or to cause the underwriter for the Escrow Agent to insure over such matters. Seller shall notify Purchaser in writing, within the thirty (30) day period, if Seller is unable or unwilling to eliminate, or cause Escrow Agent to insure over, said matters. Purchaser may then elect, by written notice to Seller, either to waive the objectionable matters and proceed to Closing or to terminate this Agreement. In the event this Agreement is terminated, the Earnest Money shall be refunded to Purchaser in full and the parties shall have no further obligations to each other under this Agreement. 5. Deed: Marketable fee simple title to the Property, subject to those exceptions and reservations acceptable to Purchaser, shall be conveyed to Purchaser by a statutory warranty deed (the "Deed") duly executed by Seller and recorded at Closing. -Purchase and Sale Agreement- -Page 2 of 8- 13 6. Closine: Costs: At Closing, Purchaser and Seller shall each pay half of the closing costs of the transaction, unless otherwise provided in this Agreement. Such closing costs shall include but not necessarily be limited to: Recording fees Document preparation fees Escrow closing fees Purchaser shall pay at Closing the Purchase Price described in Section 2. Seller shall pay for standard owner's policy of title insurance and any outstanding assessments or liens. Each party shall pay its own attorney fees and costs. Real property taxes and utilities will be prorated to date of Closing and, if applicable, paid through Escrow. Any special assessments owed on the Property shall be paid in full by Seller at Closing. 7. Seller's Reoresentations and Warranties: The representations and warranties of Seller herein are a material inducement for Purchaser to enter into this Agreement. Seller represents and warrants that: (A) Neither Seller nor any of its affiliates have assigned or transferred, or agreed to assign or transfer, any right, title or interest in or to the Property to any person other than Purchaser; (B) Seller is an Alaska corporation organized and in good standing under the laws of the State of Alaska and authorized to conduct business in Alaska. Seller has full corporate power and authority to enter into and to perform this Agreement and has obtained all consent required under Seller's corporate organizational documents to make this Agreement complete and binding, and the person executing this Agreement on behalf of Seller is fully authorized to do so by its corporate board of directors and, at least ten (10) business days prior to Closing, Seller will provide a corporate resolution authorizing the transaction acceptable to Purchaser and the Escrow Agent (for title insurance purposes); (C) Seller is not a "foreign person" as defmed in Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder; (D) Seller has not received any presently effective notices of any investigations, actions, suits, proceedings or claims pending against Seller in relation to the Property; -Purchase and Sale Agreement- -Page 3 of 8- 14 (E) No legal claims are pending or, to the best of Seller's actual knowledge, threatened, concerning or affecting title to the Property or any condition existing on, in or under the Property, and that all approvals required by any federal, state, or local governmental authority or court that are necessary to consummate the transactions contemplated by this Agreement have been obtained; (F) To the best of Seller's actual knowledge, no above-ground or underground fuel storage tanks are or have been located on the Property; and (G) To the best of Seller's actual knowledge, Seller has not caused or allowed the placement of any hazardous substance on the Property, and to the best of Seller's actual knowledge, Seller has not caused or allowed the violation of any environmental law, regulation, or ordinance with respect to the Property. To the best of Seller's actual knowledge, Seller has not released, compromised, or waived any claim as to the liability of any party who may be potentially responsible for the presence of hazardous substances on or affecting the Property in violation of any environmental law, regulation or ordinance. Seller has not made any promises of indemnification regarding hazardous substances to any other person or persons relating to the Property. 8. Purchaser's Conditions Precedent: The parties acknowledge that Purchaser's obligation to close on the purchase of the Property shall be subject to the following, with any review, inspection, or evaluation by Purchaser subject to Purchaser's sole satisfaction, and such review completed no later than eight- five (85) days after execution of this Agreement unless mutually extended by the parties: (A) Approval of this Agreement by the City Council for the City of Seward; (B) Purchaser securing approval of environmental permits for construction of the north Forest Acres levee, where the proposed levee/road intersects with Dimond Boulevard, extending eastward to where the levee/road intersects with the Seward Highway, under terms satisfactory to Purchaser, in Purchaser's sole discretion; (C) Purchaser securing all necessary easements and/or rights-of-way, required for the entire length of the proposed levee/road, from various private and governmental property owners; (D) Purchaser securing agreement from all property owners for the purchase of additional parcels required by regulatory agencies, to be included in the proposed conservation easement contemplated as mitigation measures to offset habitat impacts of the proposed -Purchase and Sale Agreement- -Page 4 of 8- 15 levee/road, plus purchase of additional properties along the alignment approved by the Seward City Council; (E) No litigation or other claim which has any probability or reasonable likelihood of success, challenges or controverts the Purchaser's action to acquire the Property; (F) Purchaser's satisfaction that Seller can provide marketable fee simple title to the Property. Final description of all real property to be conveyed is subject to Purchaser approval. Seller is to provide legal description for the Property; (G) At Purchaser's cost, Purchaser may begin process to rezone and replat the Property in any manner necessary to meet Purchaser's needs and Seller agrees to cooperate with this process. This process may begin on the date of this Agreement but no rezoning or replat shall be completed or recorded prior to Closing without Seller's approval of such rezoning or replatting. 9. Grant of License: Seller agrees that Purchaser may enter upon the Property during the period that this Agreement is effective to make any and all examinations, investigations, audits, reviews, inspections, tests, surveys and appraisals and to conduct and carry out any and all engineering studies and operations that Purchaser may desire, at Purchaser's sole cost and expense. 10. Proposed Use ofProoerty: Purchaser agrees to pursue classification of the property into a conservation easement or a similar classification acceptable to the environmental agencies involved in permitting the levee/road project, in an effort to protect wetland habitat as a mitigation measure. 11. Remedies: In the event of any default by either of the parties hereto, the other party shall have the right to terminate this Agreement by written notice to the defaulting party and the Escrow Agent. If Seller defaults and Purchaser elects to terminate this Agreement, the Earnest Money shall be immediately returned to Purchaser. If Purchaser defaults hereunder, actual damages to Seller will be difficult to calculate, but Purchaser and Seller agree that the amount of the Earnest Money designated above is a reasonable approximation thereof. Accordingly, if Purchaser defaults, Seller shall be entitled to terminate this Agreement and retain, as Seller's sole remedy, the Earnest Money. Lack of approval by the Seward City Council shall not be an act of default. 12. Costs and Fees: -Purchase and Sale Agreement- -Page 5 of 8- 16 If either party institutes suit concerning this Agreement, the substantially prevailing party shall be entitled to its attorneys' fees and costs. 13. Waiver: No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of a breach of any covenant or condition of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 14. Assignment: This Agreement is binding on the heirs, successors, and assigns of the parties, but shall not be voluntarily assigned by either party without prior written consent of the other party. 15. Commissions: Each party represents and warrants to the other that it has not engaged the services of any broker, finder or other person who would be entitled to any commission or fee in respect to the subject matter of this Agreement and each shall indemnify the other against any loss, cost, liability or expense incurred by the other as a result of any claim asserted by any such broker, fmder or other person on the basis of any brokerage or similar arrangement or agreement made or alleged to have been made. 16. Notices: No notice, consent, approval or other communication provided for herein or given in connection with this Agreement shall be validly given, made, delivered or served unless it is in writing and delivered personally, sent by overnight courier or sent by express United States mail, postage prepaid, with return receipt requested, to: Purchaser: City of Seward ATTN: City Manager P. O. Box 167 Seward, Alaska 99664 -Purchase and Sale Agreement- -Page 6 of 8- 17 Seller: Mognak Construction & Excavating, Inc. Afognak Logging, a Division of Kodiak Lumber, Ltd. AT1N: Steven A. Schafer, Secretary P.O. Box 610 Seward, Alaska 99664 or to such other addresses as either party may from time to time designate in writing and deliver in a like manner to the other party. Notices, consent, approvals, and communications given by mail shall be deemed delivered upon the earlier of three days after deposit in the United States mail in the manner provided above or immediately upon delivery to the respective addresses set forth above, if delivered personally or sent by overnight courier. 17. Entire Agreement: This document contains the entire Agreement between the parties. It may not be modified except by a written document signed by all parties. 18. Construction of Agreement: The captions of the sections of this Agreement are for convenience only and shall not govern or influence the interpretation hereof. This Agreement is the result of negotiations between the parties and, accordingly, shall not be construed for or against either party regardless . of which party drafted this Agreement or any portion thereof. 19. Surviving Covenants: The provisions of this Agreement shall survive the delivery of the Deed. 20. Time is of the Essence: Time is of the essence of this Agreement. 21. Controlling Law and Venue: This Agreement shall be governed by, construed under and enforced in accordance with the laws of the State of Alaska, and venue for actions between the parties arising out of or related to this Agreement shall be in the Alaska Superior Court, Third Judicial District, Anchorage, Alaska.- 22. Further Assurances: -Purchase and Sale Agreement- -Page 7 of 8- 18 Whenever requested to do so by the other party, Seller or Purchaser promptly and expeditiously shall execute, acknowledge and deliver any and all such conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents and any and all further instruments and documents as may be reasonably necessary, expedient, or proper in order to complete any and all conveyances, transfers, sales, and assignments herein provided, and to do any and all other reasonable acts and to execute, acknowledge and deliver any and all documents reasonably requested in order to carry out the intent and purpose of this Agreement, including but not limited to subdividing and platting the land containing the Property. 23. Possession: Deed. Purchaser shall receive possession of the Property at the Closing and recording of the Executed this day of June, 2007. Purchaser: The City of Seward, Alaska Seller: Afognak Construction & Excavating, Inc. By: Its: City Manager By: Its: Afognak Logging, a Division of Kodiak Lumber, Ltd. By: Its: ATTEST: Jean Lewis, CMC, City Clerk -Purchase and Sale Agreement- -Page 8 of 8- 19 Exhibit" A" PURCHASE AND SALE AGREEMENT Between the City of Seward and Afognak Logging (North Forest Acres Properties) LEVEE PROJECT PROPOSED PROPERTY PURCHASE TO PRESERVE WETLANDS Parcel 10 Plat Owner Address 14505213 78-4 Afognak Logging Box 610 14505214 78-4 Afognak Logging Box 610 14505215 78-4 Afognak Logging Box 610 14505216 78-4 Afognak Logging Box 6 10 14506313 78-4 Afognak Logging Box 610 14506407 78-4 Afognak Logging Box 610 Acres Legal Description 1.51 TIN R lW SEC 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT DB 0.93 TIN R lW SEC 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT DC 0.93 T IN R lW SEC 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT DE 0.71 T lN R lW SEC 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT OF 0.99 T IN R lW SEe 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT DG 1.18 T lN R lW SEC 34 SEWARD MERIDIAN SW 0000017 FOREST ACRES SUB LOT aa T lN R lWSEC34SEWARDMERIDIAN SWTHATUNSUB PTN GOVT LOT 2 LYING NO RTH OF LOT xx EAST OF L TS QQ & PP WEST OF LAUREL ST & SOUTH OF WILLOW S T AS SHOWN ON PLAT OF FOREST ACRES SUB PLAT SW- 17 THAT UNSUB PTN GOVT LOT 2 LYING NORTH OF LOT xx EAST OF L TS QQ & PP W EST OF LAUREL ST & SOUTH OF WILLOW ST AS SHOWN ON PLAT OF FOREST ACRE 2.68 S SUB PLAT SW-17 8.93 14506410 78-4 Afognak Logging Box 610 l\:) o KPB Value Physical Address 27,600 2613 POPLAR ST 20,800 2609 POPLAR ST 20,800 2605 POPLAR ST 18,300 2601 POPLAR ST 21,200 2511 SPRUCE ST 23,800 2504 SPRUCE ST 37,700 2501 LAUREL ST $170,200 ;~7>\ '(. ~~) .;../ l\:) ~ A BOUNDARY SURVEY OF FOREST ACRES SUBDIVISION ~"t~~~".'4 .."" 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'3YnY' ...uuLt.i- l' a! <;t )( \ ~ ~ .' ~. . t ---..li IUS 30~ 23 .:' ..... .u -...... \ \ -"","~!~... \y/ Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-048 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO PROCEED WITH ACQUISITION OF 1.69 ACRES OF LAND, FOREST ACRES SUBDIVISION LOTS RR AND SS, AND APPROPRIATING FUNDS FOR THE FUTURE NORTH FOREST ACRES LEVEEIROAD AT THE APPRAISED VALUE WHEREAS, the Seward City Council approved Resolution 2007- 41 on April 23, 2007, authorizing the "2007 Red Line" Alignment for the North Forest Acres LeveelRoad Project; and WHEREAS, in meetings between the City and permitting agencies involved in the project, the Department of Natural Resources ("DNR") proposed a plan that would allow the project to move forward if the City of Seward agreed to purchase and preserve certain properties currently identified as wetlands, to offset potential habitat impacts associated with re-routing Japanese Creek and constructing the LeveelRoad; and WHEREAS, a total of nine properties were identified by DNR for purchase by the City, including two properties currently owned by Keith A. and Jeannette Bailey, identified on Plat 78-4 as - Forest Acres-Suooivision LotsRR and-SS; and n__. - - -- --- WHEREAS, the purchase of these lots if contingent on a number of factors as identified on the attached Purchase and Sale Agreement, including the ability of the City to secure all necessary easements, rights-of-way, and additional properties needed for the proj ect, and the ability of the City to secure approval of environmental permits for construction of the entire levee from its intersection at the Seward Highway west to its intersection at Dimond Boulevard; and WHEREAS, the administration has negotiated the terms of the purchase with the property owner, and the parties agree to a purchase price to be determined by a property appraisal being conducted by McSwain and Associates, and the current assessed value as determined by the Kenai Peninsula Borough for these two lots is $60,000. This value mayor may not be comparable to the pending appraisals. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council finds it is in the best interest of the City of Seward to purchase and preserve private property in excess of (1) acre for the purpose of mitigating potential habitat and wetland impacts associated with the alignment of the proposed Japanese Creek LeveelRoad, subject to other conditional terms contained in the Purchase and Sale Agreement attached hereto. 24 CITY OF SEWARD RESOLUTION 2007-048 Section 2. The City Manager is hereby authorized to proceed with the acquisition of Forest Acres Subdivision Lots RR and SS and as depicted in the Purchase and Sale Agreement presented at this council meeting, and to execute the Purchase and Sale Agreement for a purchase price of $ , as determined by an appraisal to be conducted by McSwain and Associates: in substantially the form as presented at this meeting, and any other necessary legal documents to acquire title to the Property and to take all such action necessary under the Purchase and Sale Agreement to complete the purchase. Section 3. Funds in the amount of $4,000 are hereby appropriated from the General Fund . fund balance account no. 101-0000-3070-0666 to the Japanese Creek Levee!Road account 666-6663- 5910 as an earnest money payment to be made in accordance with the, Purchase and Sale Agreement, and upon completion of the property appraisals referenced in the above recitals, remaining funds equal to the appraised value less the $4,000 earnest money payment, are hereby appropriated from the General Fund fund balance account no. 101-0000-3070-0666 to the Japanese Creek Levee/Road account no. 666-6663-5910. Section 4. This resolution shall take effect (30) days following passage and posting. . . PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) 25 Council Agenda Statement Meeting Date: May 14,2007 Phillip Oates, City Manager ~ Kristin Erchinger, Finance Director ~ lbrough: From: Agenda Item: Property Purchase to Mitigate Habitat Impacts of Proposed Japanese Creek Levee!Road Project (Bailey) BACKGROUND & JUSTIFICATION: The City of Seward has been collaborating with state and federal resource agencies since 1999 to construct a levee to mitigate the impact of future flood events in Seward. Phase I of this project was completed in 2002. Phase n involves construction of a combined levee/road intersecting Dimond Boulevard on the western end of the levee, and intersecting ,the Seward Highway on the eastern end. Over the paSt few years, agencies have struggled to agree on the proposed alignment of the levee. The City preferred the levee be located as far to the north as possible, to minimize the impact to adjacent properties. The agencies preferred to locate the levee as far south as possible to avoid impacts to the flood plain and minimize impacts to wetlands and habitat. Despite good faith efforts, the parties were at an impasse. Recently, City officials met with representatives of the National Resource Conservation Service (the federal "sponsor" of this project) and the Department of Natural Resources, in an attempt to reach a compromise alignment. The resulting compromise is referred to as the "2007 Red Alignment" and was authorized by Resolution 2007-41, approved by the Seward City Council at their meeting of April 23, 2007. The compromise alignment re-routes Japanese Creek entirely to the north of the levee/road (this alignment eliminates the need for floodgates), eliminates expensive gabion walls and culverts, and moves the levee approximately 120' to the south in some areas. The alignment saves the City approximately $1.4 million in construction cost. The compromise requires however, that the City purchase, and preserve, approximately 1 I acres of private property, in order to offset the potential adverse impacts to wetlands and habitat. This resolution authorizes the City Manager to proceed to acquire 1.69 acres of property specifically identified by DNR, from Keith and Jeannette Bailey. The preservation of these parcels from future development will enable perking and is intended to preserve wetlands. The parcels are being appraised by McSwain and Associates. The City agrees to purchase, and the Baileys agrees to sell, the properties at the appraised value, subject to contingencies listed in the attached Purchase and Sale Agreement. The contingencies require, in part, that the City secure all necessary easements, rights-of-way, and additional property purchases needed for the project, and secure approval from permitting agencies for the necessary project permits. CONSISTENCY CHECKLIST Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: 26 CITY OF SEWARD RESOLUTION 2007-tt'b FISCAL NOTE The City has $1,729,783.70 remaining in grant funds from the National Resource Conservation Service to pay the remaining costs of the levee project. Total costs are estimated at $2.7 million, including cons1ruction costs ($2.2 million) and property acquisition costs ($500,000). The City has requested both state and federal funds to complete this project, but has not been awarded additional funding. The funds for the property purchase will come from the City's General Fund reserves. These reserves are at extremely low levels, with the balance of Un designated Fund Balance at 12/31/06 at $1,076,827. Approved by Finance: ~~ RECOMMENDATION City Council approve Resolution 2007-i(&, authorizing the acquisition of 1.69 acres ofland in Forest Acres - Subdivision, at appraised value, authorizing the City Manager to execute the attached Purchase and Sale Agreement, and appropriating funds. . -J'-" 27 PURCHASE AND SALE AGREEMENT (North Forest Acres Properties) This Purchase and Sale Agreement ("Agreement") is made as of June _,2007, between Keith and Jeannette Bailey, husband and wife, (collectively, "Seller") and The City of Seward ("Purchaser"), a home-rule municipality under the laws of the State of Alaska. Purchaser and Seller agree as follows: 1. Purchase and Sale: Subject to the terms and conditions of this Agreement, Seller agrees to sell and Purchaser agrees to purchase good and marketable title in fee simple the real property described as follows (the "Property"): Forest Acres Subdivision Lots SS and RR. The Property is further described on Exhibit A attached and incorporated by this reference. 2. Purchase Price and Payment Terms: The purchase price for the Property shall be based on fair market value as determined by an independent appraisal conducted by McSwain and Associates, with such services engaged by ._Jhe City .of Seward. Theam.Qunt of $4,QOO.QO (the_"e~~st Money") sh!illl>e paid to the Escrow Agent described in Section 3 upon Purchaser signing and delivering this Agreement t6 Seller. After all other terms and conditions of this Agreement have been satisfied, including completion of all contingencies in Section 8 to Purchaser's sole satisfaction, the balance of the purchase price shall be due to Seller at Closing. Under the municipal charter and code of ordinances of Purchaser, the resolution approving this Agreement is not effective until 30 days following approval. 3. Closing: The parties shall cause an escrow (the "Escrow") to be established with First American Title Company of Alaska - Seward Office ("Escrow Agent"). Consummation of the sale (the "Closing") shall take place through the Escrow at the offices of the Escrow Agent, or such other place as Seller and Purchaser agree in writing. Closing of the transaction shall occur within lllirtY (30) days frQIll t4~ completion of all contingencies of purchase in this Agreement to Purchaser's sole satisfaction. In the event this transaction is not closed within one hundred twenty (120) days of the effective date of the resolution approving this transaction, this Agreement shall terminate unless extended in writing by mutual agreement of the parties. Notwithstanding the foregoing, this Agreement shall be automatically extended for ninety (90) additional days as may be reasonably necessary to secure all necessary permits for construction -Purchase and Sale Agreement- -Page I of 8- 28 of the north Forest Acres levee, required by the condition precedent to Closing in Section 8. . Seller and Purchaser shall cause the following to occur at Closing: (A) Completion of all contingencies listed in Section 8 to Purchaser's sole satisfaction unless waived in writing by Purchaser; (B) The Deed described in Section 5 shall be recorded in the records of the Seward Recording District, Third Judicial District, State of Alaska; (C) Purchaser shall pay to Seller the amount set forth in Section 2 of this Agreement; and (D) The underwriter for the Escrow Agent shall issue to Purchaser the title insurance policy described in Section 4. 4. Title: A standard owner's title insurance policy shall be paid for by Seller and delivered to Purchaser at Closing. If Purchaser elects to obtain an extended coverage ALTA Owner's Title Insurance Policy or any title endorsements, Purchaser shall pay the additional title insurance charges to obtain the endorsements or extended coverage. Purchaser shall be responsible for obtaining and paying the cost of any AL T A survey required to obtain extended coverage. Within fifteen (15) days of the date of this Agreement, Seller shall provide to Purchaser a preliminary commitment for title insurance. . Purchaser shall be entitled to review the preliminary commitment and shall have twenty (20) days to specify to Seller in writing any matters to which Purchaser objects. If Purchaser objects to any matters, Seller shall have thirty (30) days after written notice from Purchaser to attempt to eliminate the matters to which Purchaser has objected or to cause the underwriter for the Escrow Agent to insure over such matters. Seller shall notify Purchaser in writing, within the thirty (30) day period, if Seller is unable or unwilling to eliminate, or cause Escrow Agent to insure over, said matters. Purchaser may then elect, by written notice to Seller, either to waive the objectionable matters and proceed to Closing or to terminate this Agreement. In the event this Agreement is terminated, the Earnest Money shall be refunded to Purchaser in full and the parties shall have no further obligations to each other under this Agreement. 5. Deed: Marketable fee simple title to the Property, subject to those exceptions and reservations acceptable to Purchaser, shall be conveyed to Purchaser by a statutory warranty deed (the "Deed") duly executed by Seller and recorded at Closing. -Purchase and Sale Agreement- -Page 2 of 8- 29 6. Closing Costs: At Closing, Purchaser and Seller shall each pay half of the closing costs of the transaction, unless otherwise provided in this Agreement. Such closing costs shall include but not necessarily be limited to: Recording fees Document preparation fees Escrow closing fees Purchaser shall pay at Closing the Purchase Price described in Section 2. Seller shall pay for standard owner's policy of title insurance and any outstanding assessments or liens. Each party shall pay its own attorney fees and costs. Real property taxes and utilities will be prorated to date of Closing and, if applicable, paid through Escrow. Any special assessments owed on the Property shall be paid in full by Seller at Closing. 7. Seller's Representations and Warranties: The representations and warranties of Seller herein are a material inducement for Purchaser to enter into this Agreement. Seller represents and warrants that: (A) Seller has not assigned or transferred, or agreed to assign or transfer, any right, title or interest in or to the Property to any person other than Purchaser; (B) Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder; (C) Seller has not received any presently effective notices of any investigations, actions, suits, proceedings or claims pending against Seller in relation to the Property; (D) No legal claims are pending or, to the best of Seller's actual knowledge, threatened, concerning or affecting title to the Property or any condition existing on, in or under the Property, and that all approvals required by any federal, state, or local governmental authority or court that are necessary to consummate the transactions contemplated by this Agreement have been obtained; (E) To the best of Seller's actual knowledge, no above-ground or underground fuel storage tanks are or have been located on the Property; and -Purchase and Sale Agreement- -Page 3 of 8- 30 (F) To the best of Seller's actual knowledge, Seller has not caused or allowed the placement' of any hazardous substance on the Property, and to the best of Seller's actual knowledge, Seller has not caused or allowed the violation of any environmental law, regulation, or ordinance with respect to the Property. To the best of Seller's actual knowledge, Seller has not released, compromised, or waived any claim as to the liability of any party who may be potentially responsible for the presence of hazardous substances on or affecting the Property in violation of any environmental law, regulation or ordinance. Seller lias not made any promises of indemnification regarding hazardous substances to any other person or persons relating to the Property. 8. Purchaser's Conditions Precedent: The parties acknowledge that Purchaser's obligation to close on the purchase of the Property shall be subject to the following, with any review, ~pection, or evaluation by Purchaser subject to Purchaser's sole satisfaction, and such review completed no later than eight- five (85) days after execution of this Agreement unless mutually extended by the parties: (A) Approval of this Agreement by the City Council for the City of Seward; (B) Purchaser securing approval of environmental permits for construction of the north Forest Acres levee, where the proposed levee/road intersects with Dimond Boulevard, extending eastward to where the levee/road intersects with the Seward Highway, under terms satisfactory to Purchaser, in Purchaser's sole discretion; (C) Purchaser securing all necessary easements and/or rights-of-way, required for the entire length of the proposed levee/road, from various private and governmental property owners; (D) Purchaser securing agreement from all property owners for the purchase of additional parcels required by regulatory agencies, to be included in the proposed conservation easement contemplated as mitigation measures to offset habitat impacts of the proposed levee/road, plus purchase of additional properties along the alignment necessary for construction of levee/road, where such alignment has been approved by the Seward City Council ; (E) No litigation or other claim which has any probability or reasonable likelihood of success, challenges or controverts the Purchaser's action to acquire the Property; (F) Purchaser's satisfaction that Seller can provide marketable fee simple title to the Property. Final description of all real property to be conveyed is subject to Purchaser approval. Seller is to provide legal description for the Property; -Purchase and Sale Agreement- -Page 4 of 8- 31 (G) At Purchaser's cost, Purchaser may begin process to rezone and replat the Property in any manner necessary to meet Purchaser's needs and Seller agrees to cooperate with this process. This process may begin on the date of this Agreement but no rezoning or replat shall be completed or recorded prior to Closing without Seller's approval of such rezoning or replatting. 9. Grant of License: Seller agrees that Purchaser may enter upon the Property during the period that this Agreement is effective to make any and all examinations, investigations, audits, reviews, inspections, tests, surveys and appraisals and to conduct and carry out any and all engineering studies and operations that Purchaser may desire, at Purchaser's sole cost and expense. 10. Proposed Use of Property: Purchaser agrees to pursue classification of the property into a conservation easement or a similar classification acceptable to the environmental agencies involved in permitting the levee/road project, in an effort to protect wetland habitat as a mitigation measure. 11. Remedies: In the event of any default by either of th.e parties hereto, the other party shall have the -rigbt-to terminateJ:his Agreement by written notice to the defaulting party and the Escrow Agent. If Seller defaults and Purchaser elects to terminate this Agreement, the Earnest Money shall be immediately returned to Purchaser. If Purchaser defaults hereunder, actual damages to Seller will be difficult to calculate, but Purchaser and Seller agree that the amount of the Earnest Money designated above is a reasonable approximation thereof. Accordingly, if Purchaser defaults, Seller shall be entitled to terminate this Agreement and retain, as Seller's sole remedy, the Earnest Money. Lack of approval by the Seward City Council shall not be an act of default. 12. Costs and Fees: If either party institutes suit concerning this Agreement, the substantially prevailing party shall be entitled to its attorneys' fees and costs. 13. Waiver: No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by Seller or Purchaser of a breach of any covenant or condition of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. -Purchase and Sale Agreement- -Page 5 of 8- 32 14. Assignment: This Agreement is binding on the heirs, successors, and assigns of the parties, but shall not be voluntarily assigned by either party without prior written consent of the other party. 15. Commissions: Each party represents and warrants to the other that it has not. engaged the services of any broker, finder or other person who would be entitled to any commission or fee in respect to the subject matter of this Agreement and each shall indemnifY the other against any loss, cost, liability or expense incurred by the other as a result of any claim asserted by any such broker, finder or other person on the basis of any brokerage or similar arrangement or agreement made or alleged to have been made. 16. Notices: No notice, consent, approval or other communication provided for herein or given in connection with this Agreement shall be validly given, made, delivered or served unless it is in writing and delivered personally, sent by overnight courier or sent by express United States mail, postage prepaid, with return receipt requested, to: Purchaser: City of Seward A TTN: City Manager P. O. Box 167 Seward, Alaska 99664 Seller: Keith and Jeannette Bailey P.O. Box 173 Seward, Alaska 99664 or to such other addresses as either party may from time to time designate in writing and deliver in a like manner to the other party. Notices, consent, approvals, and communications given by mail shall be deemed delivered upon the earlier of three days after deposit in the United States mail in the manner provided above or immediately upon delivery to the respective addresses set forth above, if delivered personally or sent by overnight courier. 17. Entire Agreement: This document contains the entire Agreement between the parties. It may not be modified except by a written document signed by all parties. 18. Construction of Agreement: -Purchase and Sale Agreement- -Page 6 of 8- 33 The captions of the sections of this Agreement are for convenience only and shall not govern or influence the interpretation hereof. This Agreement is the result of negotiations between the parties and, accordingly, shall not be construed for or against either party regardless of which party drafted this Agreement or any portion thereof. 19. Surviving Covenants: The provisions of this Agreement shall survive the delivery of the Deed. 20. Time is of the Essence: Time is of the essence of this Agreement. . 21. Controlling Law and Venue: This Agreement shall be governed by, construed under and enforced in accordance with the laws of the State of Alaska, and venue for actions between the parties arising out of or related to this Agreement shall be in the Alaska Superior Court, Third Judicial District, Anchorage, Alaska. 22. Further Assurances: Whenever requested to do so by the other party, Seller or Purchaser promptly and expeditiously shall execute, acknowledge and deliver any and all such conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents and any and all further instruments and documents as may be reasonably necessary, expedient, or proper in order to complete any and all conveyances, transfers, sales, and assignments herein provided, and to do any and all other reasonable acts and to execute, acknowledge and deliver any and all documents reasonably requested in order to carry out the intent and purpose of this Agreement, including but not limited to subdividing and platting the land containing the Property. 23. Possession: Purchaser shall receive possession of the Property at the Closing and recording of the Deed. -Purchase and Sale Agreement- -Page 7 of 8- 34 Executed this Purchaser: The City of Seward, Alaska By: City Manager day of June, 2007. ATTEST: Jean Lewis, CMC, City Clerk Seller: Keith and Jeannette Bailey By: Keith Bailey By: Jeannette Bailey -Purchase and Sale Agreement- -Page 8 of 8- 35 Exhibit "~ PURCHASE AND SALE AGREEMENi _n \h8 CitY of _an! and Kai\l1 and Jeanne\IB aaila'l (North forest Acres properties) LEVEE PRoJEcT PROPOSED PROPERlY pllRCHASE TO PREseRVE wetLANDS Parcel 10 plat owner Address ~s 145063\ 2 78-4 Ke\II'I ,.. ancl Jeannette BaileV 145Q6303 78-4 Keith ,.. ancl Jeannette BaileY B01< 113 80" 173 w Q) ... "," ,W "e" -......... .. -" ~"""" "" ",,., ~'''" ,W "e"-""- ,W _" ~ """""""n" 1.69 - -- KPe Value po sical Address 26.500 2509 SPRUCE ST 33.500 2605 SPRUce 5T $6Q.ooo - ~ A BOUNDARY SURVEY OF FOREST ACRES SUBDIVISION ~~~'t?~'''H ,",,,,, ':"';q'." . 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I- H'+z r .9.... ^-n "" Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-049 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, SETTING THE MILL RATE UNCHANGED AT 3.12 WHEREAS, on October 9, 2006, the city manager submitted to the City Council a proposed budget for the City of Seward for Calendar Year 2007; and WHEREAS, the budget was introduced at the regularly scheduled Council meeting on October 9, 2006, and work sessions conducted on October 16, 17, 19, and 20, 2006 were televised; and WHEREAS, a public hearing was held on the proposed budget on October 23 and the budget was adopted on November 20, 2006; and WHEREAS, the 2007 budget was predicated on no change in the property tax mill rate, but the mill rate was not forwarded for approval during the budget process in anticipation of possible future discussion regarding alternative revenue enhancement ideas, which failed to materialize prior to the deadline for adopting Seward's mill rate and the mill rate will remain at 3.12 mills. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The total assessed valuation as determined by the Kenai Peninsula Borough Assessor, and any supplemental assessment rolls for said period which may be certified by the Borough Assessor at a future date, shall be the basis for computing estimated property tax revenues for the City of Seward, Alaska. Section 2. The rate of levy on the 2007 real and personal property tax rolls shall be and is hereby levied at the rate of 3.12 mills per dollar of assessed valuation in Municipal Service Zones One (Borough designation TCA 40) and Two (Borough designation TCA 41). Section 3. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. 3n Council Agenda Statement Meeting Date: May 14, 2007 Phillip Oates, City Manager,~ /lS /08/0'7 Through: From: Kristin Erchinger, Finance Director Agenda Item: Setting the Mill Rate (unchanged) at 3.12 mills BACKGROUND & JUSTIFICATION The City of Seward has historically set the mill rate during the annual budget process. During the 2007 budget preparation process, considerable discussion surrounded the fact that more than half of Seward's properties are non-taxable; that is, they are owned by government or non-profit entities. The administration proposed postponing action on adopting a mill rate until the City Council was able to consider alternative revenue sources to address the fact that non-taxable entities benefit from significant public services but, the cost of those services is borne entirely by the taxable individuals and businesses in the community. The administration had hoped to engage the community and Council in discussions about potential new service fees to be assessed to all entities benefiting from those services, whether or not they currently contribute to the cost of those services. The hope was that additional revenues raised through potential new service fees could lead to property tax rate relief for local property owners, and more fairly allocate the cost of services to the beneficiaries of the services. Pending the hiring of a new city manager, the administration did not forward a proposal to the City Council. The City has reached a deadline for forwarding the adopted mill rate to the Kenai Peninsula Borough for implementation. Therefore, the administration recommends maintaining the rate oflevy on the 2007 real and personal property tax rolls at the current rate of 3.12 mills (representing $312 in tax on every $100,000 in assessed value). This mill rate will apply to both of Seward's municipal service zones; zone one (KPB TCA 40) and zone two (KPB TCA 41). The total assessed valuation as determined by the Kenai Peninsula Borough Assessor, and any supplemental assessment rolls which may be certified by the Borough Assessor at a future date, shall be the basis for computing estimated property tax revenues for the City of Seward, Alaska. CONmSTENCYCHECKLffiT Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE The 2007 Budget is predicated on maintaining the current mill rate on.12 mills, so passage of this resolution will have no fmancial impact on the City's bottom line. Approved by Finance: RECOMMENDATION Seward City Council approve Resolution 2007-'{q, setting the mill rate (unchanged) at 3.12 mills for Seward Municipal Service Zones One (KPB TCA 40) and Two (KPB TCA 41), for 2007. 40 Sponsored by: Yoder CITY OF SEWARD, ALASKA RESOLUTION 2007-045 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ENTERING INTO A CONTRACT WITH THE KENAI PENINSULA BOROUGH TO PROVIDE EMERGENCY MANAGEMENT COMMUNICATIONS SERVICES WHEREAS, since 1991 there has been a contract between the City of Seward and the Kenai Peninsula Borough (KPB) regarding E-911 call taking services; and WHEREAS, the Borough has provided to the City an E-911 emergency call-taking system, the Ctiy has provided E-911 call-taking services for the borough using such equipment, and the Borough would now like to contract with the City to continue to p(Ovide certain E-911 services on behalf of the Borough; and WHEREAS, the contract has been updated to clarify roles and responsibilites regarding emergency communications, to specify performance expectations, to establish payment to be provided, and other requirments; and WHEREAS, the Borough agrees to pay the City the amount of $48,000 per year for 911- related call taking, dispatching if applicable, and Street Address Guide services by the City, in an annual payment of $48,000, with an increase of$480 per year, not to exceed a total payment of $52,800, which will be used to offset personnel costs required to meet the terms of this agreement; and WHEREAS, the contract has been reviewed and it is determined that it is in the best interest of the City of Seward to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. Authorize the City Manager to enter into the contract for Emergency Management Communications Services. Section 2 This resolution shall take effect immediately. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. 41 Council Agenda Statement Agenda Item: May 14, 2007 Phillip Oates, City Manager ~ /PS;;8fr7 Thomas Clemons, Chief of Police .?- Contract for Emergency Management Communications Services Meeting Date: Through: From: BACKGROUND & JUSTIFICATION: The KPB is seeking to renew the contract for Emergency Management Communications Services. The Borough has contracted with the City of Seward for this service since 1991. The contract will take effect immediately upon approval and signature by both the City and the Borough and shall continue in effect until terminated by either of the parties. Once signed, the borough agrees to pay the City the amount of$48,000 per year for 91 I-related call taking, dispatching if applicable, and Street Address Guide services provided by the City. The annual payment shall be increased each year by $480, to a maximum total payment of $52,800, as subject to annual appropriation and availability of funds. The contract has been reviewed and it is determined that it is in the best interest of the City of Seward to enter into this agreement. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: Contract funds will be used to offset personnel costs for the Seward Police Deparbnent RECOMMENDATION: Council approve resolution 2007-~Sauthorizing the City Manager to enter into the contract for Emergency Management communications Services with the Kenai Peninsula Borough. 42 '. ",', '#0 . "'"....... ....raP... . KENAI PENINSULA BOROUGH ~ 144 N. BINKLEY, SOLDOTNA, ALASKA. 99669-7520 BUSINESS (907) 262-4441 FAX (907) 262-1892 March 29, 2007 JOHN J. WILLIAMS MAYOR Tom Clemons, Police Chief City of Seward PO Box 167 Seward, AK 99664 Re: Contract for Emergency Management Communications Services Dear Chief Clemons: Enclosed please find the proposed contract for emergency management communications services and related matters. Apparently the City of Seward has not received this, and Scott Walden requested that I send the enclosed agreement to you. If the agreement is acceptable, after getting the necessary approvals, please have the appropriate officials sign where indicated, including the City Manager, the Seward City Attorney, and the city clerk; have the clerk affix the city's seal, and have the City Manager's signature notarized on page 11. Then please return the contract to my office for further processing. I will send you a copy of the fully executed contract, and the original will be kept on file in the borough clerk's office. Thank you for your cooperation. Sincerely, ~~ Colette fh~mpson Borough Attorney 43 CONTRACT FOR EMERGENCY MANAGEMENT COMMUNICATIONS SERVICES AND RELATED MATTERS This agreement, effective on the date of the last signature, is between the Kenai Peninsula Borough, an Alaska Municipal Corporation, 144 N. Binkley St, Soldotna, AK 99669, hereinafter referred to as "the Borough", and the City of Seward, an Alaska Municipal Corporation, P.O. Box 167, Seward, Alaska 99664, hereinafter referred to as the "City." In this contract, the Borough and City are jointly referred to as the "parties." WHEREAS, pursuant to KPB Chapter 2.60 the mayor, through the Kenai Peninsula Borough Office of Emergency Management ("OEM"), has established an emergency communication system throughout the Borough, outside of the cities, to provide a 911 emergency communications system including both call-taking and dispatch services; and WHEREAS, KPB 2.60.020 authorizes the Borough to provide 911 emergency communications services to the residents of any city that relinquishes its emergency communications powers to the Borough; and WHEREAS, the cities of Kenai, Seward, Horner and Seldovia relinquished 911 call- taking powers to the Borough but retained the authority to dispatch emergency services within their boundaries; and WHEREAS, in 2003 the OEM retained Gary E. Boyd and Associates, Inc., William L. Doolittle & Associates, Inc., and Keith White to prepare a Public Safety Communications Strategic Plan ("Strategic Plan") which was completed in February 2004 and adopted by the Borough Assembly March 16, 2004; and WHEREAS, the Strategic Plan recommends in part that all contracts between the Borough and Cities be updated to clarify roles and responsibilities regarding emergency communications, to specify performance expectations, to establish payment to be provided, and other requirements; and WHEREAS, pursuant to a contract entered in 1991, the Borough has provided to the City an E-911 emergency call-taking system, the City has provided E-911 call-taking services for the Borough using such equipment, and the Borough would now like to contract with the City to continue to provide certain E-911 services on behalf of the Borough; and WHEREAS, on behalf ofthe Borough, the City is willing and able to provide emergency call-taking services to the residents of the City, and both call-taking and dispatching services to area(s) outside of the City as an emergency backup for other Public Safety Answering Points ("PSAPs") as the need arises; and WHEREAS, quality control is an important element of insuring the continued proper delivery of emergency communication services for the public, and the ensuing costs, protocol and responsibilities should be provided for by contract; and Contract for Emergency Management Communication Services 4 4 Page 1 of 11 WHEREAS, the timely update and exchange of addressing information is an integral . part of effective emergency communication and response services and should be provided for by contract; and WHEREAS, the OEM is responsible for development of Borough and inter- jurisdictional disaster response and recovery plans, and for coordination of disaster management between the Borough, the State of Alaska, other municipalities, and response and recovery organizations, pursuant to KPB 2.45.010; and WHEREAS, AS 29.35.13l(j) requires that if a city in an E-91 1 service area established by a borough incurs certain costs related to E-9l1 system, then the borough may only use revenue from an E-9ll surcharge if the borough and city have executed an agreement addressing the duties and responsibilities of each for the system and establishing priorities for the use of the surcharge revenue; and WHEREAS, AS 29.35.l31(j) also requires that ifthe Department of Public Safety provides services as a part of the E-911 system or uses the E-911 system in that E-911 service area, then the department must be a party to the agreement; NOW, THEREFORE, THE PARTIES DO HEREBY AGREE AS FOLLOWS: SECTION 1. Compliance with the Strategic PlaJJ.. The parties do hereby agree to work cooperatively to implement the recommendations contained in the Strategic Plan subject to assembly and city council approval, and the appropriation and availability of funds. This contract addresses the roles and responsibilities of the Borough and the City regarding implementing some of those recommendations and E-911 services provided by the City on behalf of the Borough. It may be amended only in writing signed by both parties. The Borough and/or the City may ask the 911 Advisory Board to review proposed amendments to this agreement before it is terminated or substantially amended, with comments remaining advisory in nature, provided that the City and Borough may not participate in such review discussions except that both parties may respond to questions raised by the E-911 Advisory Board about the amendments. SECTION 2. Payment. The Borough will use revenue generated by E-911 surcharges to offset expenses for technology upgrades, maintenance and operation, and recurrent costs of the E-911 system. Such upgrades in technology and recurrent costs are considered mutually beneficial to the PSAPs operated by the Borough, the City of Kenai, the City of Homer and the City of Seward, with priority based upon need as determined by the Borough after consulting with the Cities, and include the following: A. Recurring expenses for the local telephone carrier supporting the E-91 I infrastructure which includes a per subscriber unit per month charge. Contract for Emergency Management Communication Services 45 Page 2 of 11 B. Initial and recurrent costs to upgrade technology and related recurring costs to maintain area-wide E-911 infrastructure include: . Automatic Number Identification/Automatic Location Identification ("ANI/ALl") Database servers and database maintenance. . Communication servers and maintenance for related equipment belonging to the Borough. . Local exchange telephone company charges related to E-91 1. . Telephone equipment and maintenance for related equipment belonging to the Borough. . E-911 system computer hardware and maintenance for related equipment belonging to the Borough. . Application software and maintenance for related equipment belonging to the Borough. . Related equipment and maintenance for related equipment belonging to the Borough. . Technical support. . Recorder systems support and maintenance for related equipment belonging to the Borough. . TDD equipment, support and maintenance. . GIS Data preparation, updates, support and maintenance for related equipment belonging to the Borough. The Borough agrees to pay the City the amount of $48,000 per year for 91 I-related call taking, dispatching if applicable, and Street Address Guide ("SAG") services provided by the City pursuant to this contract. This annual payment amount shall be increased each year by $480, which is equal to one percent ofthe original amount, to a maximum total payment of $52,800, which is equal to ten percent of the original amount, subject to the annual appropriation and availability of funds. Payment shall be due and payable annually, in advance, on or before the 1st day of July. SECTION 3. Term: This agreement shall take effect immediately upon approval and signature by both the City and the Borough and shall continue in effect until terminated by either of the parties as provided in this agreement. SECTION 4. E-911 Services A. The City hereby agrees to provide E-911 call-taking services on behalf of the Borough to the following Emergency Service Zones (ESZs) inside the city boundaries, and call- taking and dispatching services on behalf of the Borough in the following ESZs outside of the boundaries of the City: 1. ESZ within the boundaries of the City; Contract for Emergency Management Communication services4 6 Page 3 of 11 2. As needed, call-taking and dispatching services in the following ESZs outside the boundaries of the City: 752, Bear Creek; 751, Lowell Point; and 601, Moose Pass. 3. Any other ESZ subsequently agreed to in writing by both parties or as otherwise verbally agreed upon by both parties in the event of an emergency. B. E-911 services shall consist of providing access such that all telephones with telephone numbers in the above-mentioned ESZ( s), when dialed "9-1-1" may be either electronically or manually routed to the City of Seward PSAP, which shall then provide call- taking services as defined below for all calls, and dispatching services as defined below for the area outside of the City on behalf of the Borough. Call-taking services shall be provided in accordance with the National Fire Protection Association Standard 1221 ("NFPA 1221"), or a mutually agreed upon local standard substantially meeting the criteria ofNFPA 1221, and National Academy of Emergency Medical Dispatch (NAEMD) protocol and procedures. It is specifically understood and agreed that at this time such protocols require, without limitation, the following procedures: 1. When 911 calls are received at the responsible PSAP, they shall be recorded and tabulated to indicate the origin of the call. 2. Ninety-five percent of911 calls shall be answered within 15 seconds, and 99 percent of alarms shall be answered within 40 seconds. 3. To the extent that emergency dispatching services are provided for the borough, ninety- five percent of emergency dispatching shall be completed within 60 seconds, except that for-lawenfmcement purposes the authority having jurisdiction shall determine time frames for completion of dispatch. 4. If911 calls are manually transferred to the PSAP, as may occur with wireless calls, the transfer procedure shall not exceed 30 seconds for 95 percent of all calls processed. C. The City shall provide its own personnel sufficient to staff its 911 PSAP to a mutually agreed upon local standard substantially meeting the criteria ofNFP A 1221 and National Academy of Emergency Medical Dispatch (NAEMD) protocol and procedures. The Borough, as the borough-wide primary PSAP, will strive to staffits PSAP with a minimum of two telecommunicators on duty 24 hours per day, seven days per week, in accordance with NFPA Standard 1221. SECTION 5. Emergency Communication Services Costs: A. In addition to the amount paid to the City pursuant to Section 2 above, the Borough shall be responsible for the following 911 service related costs, subject to the appropriation and availability of funds: . 911 telephone line charges for services performed pursuant to this contract. . Repair costs for 911 equipment provided by the Borough pursuant to this contract. . Hardware and software for two 911 workstations to the City and replacement of 911 equipment used pursuant to this contract as deemed necessary by the Borough and considering recommendations by the City. Contract for Emergency Management Communication ~o/ces Page 4 of 11 · Emergency Medical Dispatch (EMD) card sets and software. . ANI! ALl database maintenance. · Maintenance agreements for Borough-provided 911 equipment. Maintenance contingencies shall make reasonable attempts to provide 100 percent operational status of the PSAP. · Additional backup lines as may be required by NFP A 1221. B. The City shall be responsible for the following 911 service related costs: · Per diem and the cost of travel to conferences and training sessions. · Personnel costs for the telecommunicators. · PSAP facility emergency power generators or battery backup systems. · Voice, audio, radio, telephony recording hardware/software belonging to the City. · Hardware, software, line charges, and other costs associated with the installation of additional 911 workstations, unless the Borough and the City mutually agree that additional workstations are needed to fulfill requirements of this agreement, in which case the parties shall, by amendment to this agreement, identify the party or parties responsible for such costs. C. Both the Borough and City shall institute and bear the costs associated with providing a quality control program for their respective PSAP to ensure that their call-taking and dispatch personnel comply with approved standards and protocols for emergency medical dispatch. SECTION 6. Equipment Ownership: All equipment purchased by the Borough shall remain the property of the Borough. The Borough may, at the Borough's sole option, remove such equipment from wherever it is located upon termination of this agreement. Additionally, the Borough may at its sole option repair and replace equipment located in the City's facilities at any reasonable time with advance notice to the City for access. SECTION 7. Oualification and Training: A. The City shall require all telecommunicators used pursuant to this contract to meet the qualification requirements ofNFPA 1061, Standard for Professional Qualifications for Public Safety Telecommunicators, and NFPA 1221 Section 6.2. A field-training program that meets Public Safety Telecommunicators I (pSTI) standards shall be used to train all new dispatch personnel within the first twelve months of hire. Within this time period, trainees shall complete Emergency Medical Dispatch (EMD) certification to meet PSTI standards as noted in NFP A 1061, section 4.4.2(A). B. The Borough shall provide annual training to the City regarding emergency medical call handling procedures in accordance with EMD protocols and approved standards. The City shall require attendance at, and successful completion of, all such training of all city personnel responsible for emergency communications call-taking and dispatching. Required Contract for Emergency Management Communication serv~~ Page 5 of 11 attendance shall include initial training within one year of initial employment, and every year thereafter for annual recertification if recertification has not been accomplished by mail. In the event that an employee is unable to attend the training provided by the Borough, then the city shall require such employee to attend an alternative training session as approved by the Borough. In that event, the Borough shall pay an amount equal to the actual cost of the alternative training or the cost the Borough would have incurred for such employee had the employee attended the training offered by the Borough, whichever is less. C. The parties recognize that training requirements may be expanded in the future to address fire and law enforcement call handling procedures. In that event, the parties agree that this agreement may be amended by mutual written agreement to require attendance at such training events. SECTION 8. Oualitv Control. The Borough and City agree that quality assurance and control are essential parts of operating a PSAP. In order to implement this: A. The Borough and the City shall work with each other and the 911 Advisory Board to establish a system for identifying deficiencies and making recommendations to the Borough for corrective action. B. The Borough and the City shall cooperatively work with each other and the 911 Advisory Board in developing, implementingand-performing an annual review/revision of a comprehensive quality control reporting program designed to assess and promote compliance by the telecommunicators and emergency communication centers with approved standards and protocols for emergency medical dispatch. C. A quality control program administered by the City shall ensure copies of all quality control reports, evaluations and data are provided in writing to the Borough Office of Emergency Management monthly. Data and evaluations may identify employees by number rather than name to protect the employee's identity. D. The City shall ensure compliance with applicable QA standards. SECTION 9. Addressing. A. The Borough and the City agree to comply with the Public Safety Communications Strategic Plan, the E-9l1 Addressing Manual and applicable National Emergency Number Association (NENA) standards governing the flow of addressing information to the Borough. Additionally, the parties shall promptly endeavor to update their ordinances regarding the assignment of street names and addresses to make their ordinances mutually consistent and compliant with NENA 02-010 and U.S. Postal Service Publication 28. B. Address Maintenance. The Borough and the City will each identify an E-9ll Addressing Officer who will coordinate addressing issues and information. The Borough will Contract for Emergency Management Communication Services 49 Page 6 of 11 provide to the City Addressing Officer an E-911 Addressing Manual. This manual will outline the methodology used by all parties for addressing and street naming, serve as a guide for consistent E-911 database input; acquaint the City with the responsibilities of the Addressing Officer; provide instruction on how to maintain the addressing system within the City using a mutually agreed upon system; describe the methodology for providing road network changes within the City to the Kenai Peninsula Borough Office of Geographic Information Systems (KPB GIS). C. Street Address Guide. The Borough is responsible for maintenance of the Master Street Address Guide (MSAG). 1. The City is responsible for maintenance of its own Street Address Guide (SAG). The City shall verify the accuracy of the routing information contained in its SAG and shall advise the Borough, on an as-occurred basis, of any changes in road names, the establishment of new roads, changes in address numbers used on existing roads, closing and abandonment of roads, jurisdictional changes in police, fire, emergency medical service or other appropriate agencies, jurisdiction over any address, annexations and other changes in municipal and Borough boundaries, incorporation of new communities, or any other matter that will affect the routing of911 calls to the proper PSAP. All changes to the City SAG shall be communicated to the Borough on a weekly basis. 2. If no record is found, a misroute occurs, or erroneous ALl displays are noted at the PSAP, a 911 Inquiry form should be completed by the call-taker and returned to the Borough's 911 Addressing Officer within one (1) business day. The Borough 911 Addressing Officer is then responsible for reviewing, researching, and forwarding the inquiry to the Database Management System Provider contracted by the Borough, within one (I) business day. The Database Management System Provider shall provide the Borough 911 Addressing Officer immediate receipt confirmation of the inquiry form. The Borough 911 Addressing Officer shall copy such information to the reporting jurisdiction within (I) business day. SECTION 10. Grant Application Cooperation. A. The Borough and the City agree to cooperate fully and in support of each other in preparing and submitting funding applications concerning E-911 PSAPs, systems, software and hardware, equipment, addressing systems, training, and quality assurance programs affecting the City and the Borough. In cooperating with each other, both parties recognize that the Borough is charged with providing for emergency call taking throughout the entire Borough except Kachemak City, and with providing dispatch services throughout the entire Borough outside of the incorporated cities, and that this section shall not affect the right and ability of the Borough to pursue such funds for borough projects and needs related to emergency and non-emergency communications. Contract for Emergency Management Communication Services 50 Page 7 of 11 B. Both parties recognize and agree that the City has municipal needs that are eligible for a variety of grant funds per federal, state, and local law without restriction, and that this section shall not affect the right and ability of the City to pursue such funds for municipal projects and needs related to emergency and non-emergency communications C. Further, the parties agree that all funding applications shall be consistent with the recommendations contained in the Strategic Plan. Accordingly, all funding applications related to Borough emergency communications and related equipment shall be prepared and submitted in close cooperation and coordination with the Borough and the City, and the City shall take every reasonable step to develop cooperative requests for funding such equipment with other cities in the Borough, and/or with the Borough, when applying for the same funds, except as noted in SECTION 10 paragraph B or taking steps not related to subjects covered by the Strategic Plan. SECTION 11. Emergency Operations Centers. A. The Borough and cities have developed and adopted disaster response plans for the entire Borough. Borough and City emergency operation centers (EOC) are independent facilities. The Borough Office of Emergency Management Coordinator and the City will coordinate the activities of their respective EOCs for emergency management incidents and training events as each situation dictates. The Borough may, by addendum to this agreement, arrange with a city to provide communications and EOC backup services in the event of a failure of the Borough's PSAP, or when an incident escalates due to scope or duration, beyond the capability of the Borough EOC. B. The Borough and the City shall be responsible for equipping and maintaining their respective EOCs. Both parties understand and agree that interoperability of EOCs is vital to management of local and area/zone-wide emergency management and will cooperatively seek regional funding for allocation based on regional priorities to the extent that funding becomes available for EOCs. SECTION 12. Defense and Indemnification. The City shall indemnify, defend, save and hold the Borough, its elected and appointed officers, agents and employees, harmless from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees resulting from City's officers, agents, employees, partners, attorneys, suppliers, and sub consultants' performance or failure to perform the City's obligations under this Agreement, including without limitation the City's failure to comply with call-taking and dispatching services provided pursuant to this agreement, and the training, quality control and street addressing requirements. However, the City shall not be responsible for any damages or claims arising from the sole negligence or willful misconduct of the Borough, its agents, or employees. If the claims or damages are caused by or result from the concurrent negligence of the Borough, including its agents or employees and the City, including its agents and employees, the indemnification requirement in this provision shall be valid and enforceable only to the extent of the negligence of the City, or the City's agents or employees. Contract for Emergency Management Communication Services 51 Page 8 of 11 SECTION 13. Termination. A. The agreement may be terminated without cause by withdrawal of a party. A party wishing to withdraw shall tender to the other party such intent in writing on or before March 2 of the year termination is sought. Such termination shall be in effect on July 1 immediately following the notice unless otherwise agreed in writing by both parties. B. When substantial changes to the agreement are anticipated, and good faith efforts are being made to revise the agreement, the parties may agree in writing that the existing agreement shall remain in effect until an effective date is agreed upon by the parties for a new agreement. C. Should either party breach any term or condition of this agreement, the non- breaching party shall provide 10 days' notice of the breach. If the breaching party fails to cure the breach within the notice period, then the non-breaching party may terminate this agreement. Upon termination of this agreement by the Borough for cause, the City shall promptly reimburse to the Borough the prorated balance remaining of funds paid in advance for services to be provided pursuant to this contract. Additionally, the Borough shall be entitled to peaceably enter the City premises and repossess any and all equipment belonging to the Borough, and to recover all costs and actual reasonable attorney fees associated with such termination. SECTION 14. Assignment. Neither of the parties hereto shall assign their rights, duties, or obligations hereunder without the prior written consent ofthe other. SECTION 15. Compliance with Law. Both parties agree to comply with any applicable provisions of federal, state or municipal laws in providing services under this contract. SECTION 16. Definitions: For purposes of this agreement, unless the context clearly requires a different meaning, the terms below are defined as follows: "911 equipment" includes all equipment and systems used with the PSAP to answer 911 calls. This includes, but is not limited to, 911 workstations, telephone key systems, controllers, servers, cabling, and/or ancillary systems and products associated with the delivery of a 911 call, and is limited to equipment solely or partially funded by the Borough. "Call-taking," means answering calls placed or routed to either 911 or an alternate emergency communications number, and asking systematized questions of the caller designed to ascertain the reason for the call, giving systematized life support instructions if appropriate, and following Contract for Emergency Management Communication S!)'2ces Page 9 of 11 systematized protocols designed to enable the call-taker to identify the appropriate response mode. "Dispatch" means providing instructions to appropriate police, fire and/or emergency medical service providers in response to the report of an incident, including incident location and available information concerning the incident. "Emergency Communications System" means a system for automatically or manually accepting or routing emergency 911 calls to the authorized police, fire, or emergency medical service provider. "Enhanced 911 system" or "E-91 1 system" means a telephone system consisting of network, database, and enhanced 911 equipment that uses the single three digit number, 911, for reporting a police, fire, medical, or other emergency situation, and that enables the users of a public telephone system to reach a PSAP to report emergencies by dialing .911; an enhanced 911 system includes the personnel required to acquire, install, operate, and maintain the system and its facilities and to dispatch the calls generated by the system. "Telecommunicator" means an individual providing call-taking and/or dispatching services. The parties do hereby set their hands and seals on the dates provided below. DATED: DATED: CITY OF SEWARD KENAI PENINSULA BOROUGH Signature: Title: Signature: Title: ATTEST: Seward City Clerk Borough Clerk THIS CONTRACT IS APPROVED AS TO FORM AND LEGAL SUFFICIENCY Attorney for City of Seward Borough Attorney STATE OF ALASKA ) ) ss. ) THIRD JUDICIAL DISTRICT Contract for Emergency Management Communication Services 53 Page 10 of 11 The foregoing instrument was acknowledged before me this _ day of 2007, by John J. Williams, Mayor of the Kenai Peninsula Borough, an Alaska municipal corporation, for the corporation on behalf of the corporation. Notary Public for State of Alaska My Commission Expires: STATE OF ALASKA ) ) ss. ) THIRD JUDICIAL DISTRICT The foregoing instrument was acknowledged before me this --'- day of 2007, by , the City Manager for the City of Seward, an Alaska municipal corporation, for the corporation on behalf of the corporation. Notary Public for State of Alaska My Commission Expires: - The State of Alaska, Department of Public Safety, hereby approves and agrees with this Agreement. STATE OF ALASKA DEPARTMENT OF PUBLIC SAFETY Date: Name: Title: STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this _ day of 2007, by , the Alaska Department of Public Safety, for and on behalf of the state. for the State of Notary Public for State of Alaska My Commission Expires: Contract for Emergency Management Communication Services 54 Page 11 of 11 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-046 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING SIGNATURES FOR ALL CITY BANK ACCOUNTS AND RESCINDING ALL PREVIOUS RESOLUTIONS IN CONFLICT HEREWITH BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. Any two of the following signatures shall appear pn all checks, drafts, notes or orders drawn against the City of Seward bank accounts maintained at the Seward Branch of Wells Fargo or the Seward Branch of the First National Bank of Anchorage: Phillip Oates, City Manager Kristin Erchinger, Finance Director Kirsten Vese!, Assistant City Manager Jean Lewis, City Clerk Section 2. Anyone ofthe above persons shall have access to and full power to remove the contents of and to exchange or surrender the safe deposit boxes rented by the City of Seward located at the Seward Branch of Wells Fargo under the terms of the City of Seward's banking services agreement with Wells Fargo. Section 3. Anyone of the above persons shall have authority to invest City monies with financial institutions as prescribed by the Seward City Code Chapter 5.15, Investment and Collateralization of Public Funds. Section 4. All previously approved resolutions in conflict herewith are hereby rescinded. Section 5. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. 55 Council Agenda Statement Meeting Date: May 14,2007 From: Phillip Oates, City Manager Agenda Item: Authorizing signatures for all city bank accounts and rescinding all previous resolutions in conflict BACKGROUND & JUSTIFICATION: Procedurally, the city needs to add the new city manager's signature for all city bank accounts and rescind all previous resolutions in conflict This will allow Phillip Oates access to, and full power to, remove the contents of and to exchange or surrender the safe deposit boxes rented by the City of Seward located at the Seward Branch of Wells Fargo under the terms of the City of Seward's banking services agreement with Wells Fargo. This will also allow Phillip Oates to have authority to invest City monies with financial institutions as prescribed by the Seward City Code Chapter 5.15, Investment and Collateralization of Public Funds. CONSISTENCY CHECKLIST Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE Approved by Finance: RECOMMENDATION City Council authorizing signatures for all city bank accounts and rescinding all previous resolutions in conflict. 56 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-050 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING RESOLUTION 2006-28 REGARDING AUTHORIZATION TO ISSUE LONG TERM CARE FACILITY REVENUE BONDS OF THE CITY IN THE PRINCIPAL AMOUNT OF NOT TO EXCEED $27,000,000 WHEREAS, the City of Seward, Alaska (the "City") adopted Resolution 2006-28 authorizing long term care facility revenue bonds ofthe City in the principal amount of not to exceed $27 ,000,000 for the purpose of providing amounts to finance, design, acquire, construct and equip a long term care facility in the City; and . WHEREAS, since that time the City has diligently pursued a certificate of need from the State of Alaska and such certificate of need has been acquired; and WHEREAS, the City submitted an application to the Alaska Municipal Bond Bank for the purpose of issuing bonds through the Bond Bank at additional cost savings to the City; and WHEREAS, in April 2007 the Bond Bank authorized a loan to the City subject to certain conditions. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council recognizes that there are hospital bonds outstanding related to the construction of the Seward Providence Hospital and that such bonds will mature in 2013. Each year the City Council has appropriated 1 % of the City's sales tax revenues for payment of annual interest and principal on those hospital bonds. With the understanding that the City Council cannot bind future City Councils, we wish to state our intent that, following the maturity of the existing bonds in 2013, the City staff will include in its annual budget for approval by Council a request that the 1 % sales tax historically allocated for hospital purposes continue to be appropriated for hospital purposes, including, but not limited to, potential payment of debt service payments on the long term care facility revenue bonds. This is understood to be a moral, but not a legal, obligation ofthe City. Section 2. Following the issuance of long term care facility revenue bonds pursuant to Resolution 2006-28, if any future Parity Bonds (as defined in Resolution 2006-28) are issued such Parity Bonds shall not be issued without the prior consent of the Alaska Municipal Bond Bank. Section 3. The name of the Bonds will reflect the year in which they are issued instead of 2006. 57 CITY OF SEWARD, ALASKA RESOLUTION 2007-050 Section 4. Resolution 2006-28 remains in full force and effect without further amendment except as stated herein. Section 5. This resolution shall become effective 30 days from adoption and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC, City Clerk (City Seal) 58 Council Agenda Statement Meeting Date: May 14, 2007 Phillip Oates, City Manager ~ t>~8/c7 Through: From: Kristin Erchinger, Finance Director Agenda Item: Long-Term Care Facility Revenue Bonds BACKGROUND & JUSTIFICATION The Seward City Council authorized the issuance of$27 million in revenue bonds to construct a new long-term care facility, on March 13,2006. Since that time, the facility and infrastructure have been designed on two sites, the City has applied for and been awarded the State's approval for a Certifi~ate of Need to construct the facility, and the City has received approval from the Alaska Municipal Bond Bank for the issuance of the bonds. In order to complete the loan agreement with the Bond Bank, the City was asked to address two issues of concern to the Bond Bank. First, the Bond Bank board wanted assurance that the City would seek the Bond Bank's approval prior to the future issuance of additional Parity Bonds backed by the revenues of the long-term care facility. Second, the Bond Bank board members wanted some assurance that the Seward City Council would continue Seward's long tradition of utilizing the 1% sales tax toward hospital-related capital and operating costs. While the board clearly understands that one Council is unable to bind the actions offuture Councils, they wanted some assurance that the intent is to continue utilizing the sales tax for hospital purposes. This added level of assurance tells the Bond Bank that, in the event there is a significant change to the reimbursement methodology currently employed by Medicaid, and such change adversely impacts reimbursements to the long-term care facility, the City would potentially have a revenue source available to assist in the payment of debt service. The City of Seward implemented its current sales tax on March 8, 1982 for the sole purpose offunding the local hospital. The vote was unanimous by those Council members then voting on the Ordinance. A special election was held with 340 voters, where 260 (76%) voted in favor, and 80 (24%) were opposed. Since 1982,100% of that one cent sales tax has been appropriated each year to hospital operating and capital costs. In addition, the City has contributed additional funds for capital needs. The annual revenues from this one cent sales tax are approximately $900,000. The current hospital bonds mature in 2013. CONSISTENCY CHECKLIST Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE The City intends to issue $27 million in Revenue Bonds, with revenues from the co-located hospital and long-term care facility supporting repayment of the debt service. Annual debt payments on the bonds are estimated to be between $1.8 and $2.1 million, depending on the final amortization period selected for repayment. Approved by Finance: RECOMMENDATION City Council approve Resolution 2007-$0, authorizing specific additional provisions to the original Bond Resolution approved by the Seward City Council on March 13, 2006. 59 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-051 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO THE ALASKA PUBLIC UTILITIES INSURANCE TRUST PARTICIPATION AGREEMENT WHEREAS, the Alaska Public Utilities Insurance (APUIT) board approved a mandatory Participation Agreement that specifies terms of participation, particularly in terms of any reserves; and WHEREAS, this Participation Agreement also provides mechanisms to assure that new members in the trust provide adequate reserves; and WHEREAS, the City of Seward and the present members of APUIT have established adequate reserves and there is no immediate financial commitment for this agreement; and WHEREAS, the City of Seward gains a financial advantage by participating in APUIT through higher benefit levels at lower cost than available in the commercial insurance market; and WHEREAS, the Participation Agreement helps the APUIT Trust remain financially viable; and WHEREAS, the Participation Agreement allows participants to utilize a portion of their dedicated surplus reserves to fund premium contributions; and WHEREAS, the Participation Agreement allows the APUIT Trust to seek out new APUIT participants in order to spread the risk and potentially lower the rates; and WHEREAS, the Participation Agreement helps the APUIT board exercise fiduciary responsibilities by protecting the financial integrity of the Trust. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to enter into the Alaska Public Utilities Insurance Trust Participation Agreement for a five year term through December 31, 2011. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of May, 2007. 60 - Council Agenda Statement Meeting Date: May 14, 2007 Through: Phillip Oates, City Manage~ C'~8".6 7 From: Kirsten Vesel, Assistant City Manager KK V b "i-{ oS I u 1 Agenda Item: Authorize the City Manager to Enter Into the Alaska Public Utilities Insurance Trust Participation Agreement BACKGROUND & JUSTIFICATION The City of Seward participates in the Alaska Public Utilities Insurance Trust (APUIT) for the purpose of providing healthcare benefits for eligible employees. APUlT is a self-insured Trust. Participants in APUIT may include electric utilities, telephone utilities, utility associations and municipalities that provide utility services to the public. ' The APUlT Health Care Plan intends to solicit additional participants in order to increase the numbers in the insurance pool. The increase in participants will disperse the overall financial risk and potentially lower the rates. The APUlT Participation Agreement outlines the terms and conditions for new participants in the Health Care Plan. Participants may terminate its participation in APUIT at any time. In the case that the City of Seward does voluntarily terminate their participation in APUlT, we will be required to forfeit the City's "surplus" Contingency Reserve for the benefit of the APUIT Plan participants. This agreement is not negotiable with the Trust and already has been approved by a majority vote. The Participation Agreement also helps the APUlT board exercise fiduciary responsibilities by protecting the financial integrity of the Trust. The City Manager recommends remaining with the APUlT Health Care Plan based on the comparison of other health care plans attached. APUlT's monthly and annual premiums comparison report to Aetna Plan I and Blue Cross Heritage Select 100 indicate a significant savings for the City. APUIT remains to offer very competitive rates in comparison to other alternatives. The APUIT board approved a mandatory Participation Agreement that specifies terms of participation, particularly in terms of any reserves. The Participation Agreement also provides mechanisms to assure that new members in the trust provide adequate reserves. The City of Seward and the present members of APUIT have established adequate reserves and there is no immediate financial commitment for this agreement. The City of Seward gains a financial advantage by participating in APUIT through higher benefit levels at lower cost than available in the commercial insurance market. The Participation Agreement helps the APUlT Trust remain financially viable and allows participants to utilize a portion of their dedicated surplus reserves to fund premium contributions. The participation agreement is mandatory to remain with the APUlT. CONSISTENCY CHECKLIST Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE There is no financial cost to this participation agreement. 61 Approved by Finance: RECOMMENDATION City Council authorize the City Manager to Enter Into the Alaska Public Utilities Insurance Trust Participation Agreement. 62 Alaska Public Utilities Insurance Trust PARTICIPATION AGREEMENT This Participation Agreement is between the Alaska Public Utilities Insurance Trust (APUlT), an insurance trust organized under the laws of the Sate of Alaska, whose principal address is C/O RBMS, 510 L Street, Suite 650, Anchorage, AK 99501 and (participant), a , ( enter type of entity [corporation, municipality, etc.]) organized under the laws of the State of Alaska, whose principal address is RECITALS WHEREAS: Participant desires to participate in the Alaska Public Utilities Insurance Trust under the terms and conditions set forth in the trust document dated December 4, 2006 (Trust Document a copy of which will be provided to the participating employer upon execution of this agreement), and WHEREAS: Participant acknowledges that it has received a copy of the Trust Document and has had the opportunity to review the Trust Document, and WHEREAS: Participant acknowledges that it has received a copy of the Health Care Plan and has had the opportunity to review the Health Care Plan, ( a copy of the Health Care Plan Document will be provided to the Participant or prospective Participant upon request)and WHEREAS: APUIT has instituted additional operating procedures described herein, not explicitly set forth in the Trust Document, in order to protect the financial stability of APUlT, and WHEREAS: Both parties acknowledge that the additional operating procedures, in their entirety are encompassed in this Participation Agreement, and WHEREAS: Participant acknowledges that APUlT retains the right, through its board of trustees and in the sole discretion of its board of trustees, to amend the Health Care Plan, the Trust Document, and the operating procedures of APUlT, and WHEREAS: Participant and the board of trustees of APUlT acknowledge that any future changes to the Health Care Plan, Trust Document, or operating procedures of APUlT will be memorialized in an addendum to this Participation Agreement. Such amendments will be immediately transmitted to all participants. 1 '63 NOW THEREFORE: In consideration for the terms and conditions set forth herein, Participant and APUlT agree as follows: COVERAGE: APUlT shall provide Participants employees and their dependents with the health care benefits outlined in the Health Care Plan, which may be changed, modified, or otherwise amended from time to time at the sole discretion of the board of trustees of APUlT. PREMIUM: Participant shall pay APUlT in advance, without notice and without any right of offset, the monthly premium charges set forth in Exhibit A (attached). In the event APUIT receives Participant's premium payment on or after the first calendar day of any month, Participant shall be deemed to be in default of this Participation Agreement. The delinquent Participant will be notified in writing of the delinquency and will have 10 working days to pay the required premiums. During this period APUIT may, but shall not be required to, pay claims on behalf of any delinquent Participant. If the delinquency remains outstanding at the close of the 15th working day following the due date, APUlT will notify the delinquent Participant that claim service will be suspended immediately. PREMIUM ADJUSTMENT: Premiums are designed to provide APUlT with excess funds to be held by APUlT as reserves in the amounts recommended by the consultant. On a periodic basis APUlT determines the loss ratio, including incurred but not reported claims (ffiNR), of each employer participating in APUlT. Premiums will be adjusted on renewal with revised rates effective on the first day of the new Plan year. However from time to time it may be necessary to adjust rates for all Participants or for a particular Participant. In the event any Participant's or all Participants' loss ratio adversely affects the reserves, APUlT reserves the right, upon a 30 day written notice, to adjust that Participant's or all Participants' premiums in order to eliminate such adverse impact. INCURRED BUT NOT REPORTED CLAIMS RESERVE (lBNR): Participant shall maintain an IDNR equal to three (3) months of premium payments. Until such time as the Participant's ffiNR is fully funded, Participant shall remain liable for any claims paid by APUlT on behalf of Participant. In the event Participant's IDNR is not fully funded within six (6) months after Participant joins APUIT, APUlT may, at APUlT's sole discretion, increase Participant's monthly premiums until such time as Participant's IDNR is fully funded. In the event Participant's ffiNR drops below the fully funded required amount, such deficiency shall be transferred from Participant's Contingency Reserve to Participant's ffiNR. CONTINGENCY RESERVE: APUlT has established an additional reserve (Contingency Reserve) in order to fund extraordinary expenses. The Contingent Reserve for Participant shall be equal to three (3) months of premium payments. Participant may fund its portion of the Contingent Reserve with its allocation of Surplus, as outlined below, or through an increase in premiums. :l34 SURPLUS: To the extent APUlT has excess revenues (premiums paid less all claims and operational expenses) such excess revenues shall be deemed to be "Surplus". The amount of excess revenues or deficiency shall be calculated annually or upon request by the Participant. Amounts so designated as "Surplus" shall be held by APUlT for the benefit of all Plan participants. The Surplus shall be allocated to Participant's Contingency Reserve on the same pro rata basis as Participant's contribution to the Surplus. P ARTICIP ANTtS USE OF SURPLUS: In the event Participant has fully funded the required IBNR and the required Contingency Reserve, Participant may elect to use any additional Surplus allocated to Participant held in its Contingency Reserve to fund future contributions to APUlT (i.e. utilize the excess allocated Surplus to reduce future premiums). Should Participant elect to use its excess allocated Surplus, Participant must provide APUlT with its declaration in writing at least sixty (60) days prior to such use. Once Participant's declaration is received the amount of its allocated Surplus existing at the time of the declaration will be divided into thirty-six (36) equal components. Participant may deduct 1/36th of its allocated Surplus from its monthly premium payment for thirty-six (36) consecutive months. Participant may rescind its' election to use allocated Surplus at any time, provided, once rescinded, Participant shall be barred from invoking this option for the following twelve (12) consecutive months. VOLUNTARY TERMINATION: Participant may terminate its participation in APUIT at any time. In the event Participant terminates its participation in APUIT, all of Participant's IBNR and Contingency Reserve, less any "Surplus shall be forfeited by Participant and such IBNR and Contingency Reserve shall remain in APUIT for the benefit of APUlT Plan participants. GOVERNING LAW: This Agreement shall be interpreted, construed, and enforced in accordance with, and otherwise governed in all respects by, the laws of the State of Alaska, with venue being in Anchorage, Alaska. ATTORNEytS FEES AND COSTS: In any action undertaken to enforce any provision of this Agreement the prevailing party, whether in a legal proceeding, arbitration or otherwise, shall be entitled to reimbursement of its actual attorney's fees and costs from the non-prevailing party. MODIFICATION OF AGREEMENT: No modification of this Participant Agreement shall be valid unless made in writing and duly executed by all parties. TRUST DOCUMENT: In the event there is a conflict between the Trust Document and any other written document or operating procedure, the Trust Document dated December 4, 2006 shall control. TRUST RESERVES: Participant shall not have any rights, title or interest in any of the APUlT reserves except those funds designated as "Surplus" upon termination of this Participant Agreement. AUTHORITY: By executing this Participant Agreement each party certifies that he/she is authorized to enter into this Participant Agreement. y5 By: [Participant] ,20_ STATE OF ALASKA ) ) ss. FOURTH JUDICIAL DISTRICT ) Dated: On this _ day of .20_, before me, a Notary Public in and for the State of Alaska, personally appeared , to me known to be the of an Alaska ( enter type of entity [corporation, municipality, etc.] ) that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said cooperative for the uses and purposes therein mentioned and on oath stated that he was authorized to execute said instrument IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. Notary Public in and for the State of Alaska My Commission Expires: By: [APUIT] Dated: ,20_ STATE OF ALASKA ) ) ss. FOURTH JUDICIAL DISTRICT ) On this _ day of , 20-, before me , a Notary Public in and for the State of Alaska, personally appeared , to me known to be the Chairman of the Board of Trustees of Alaska Public Utilities Insurance Trust, an Alaska insurance trust that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said cooperative for the uses and purposes therein mentioned and on oath stated that he was authorized to execute said instrument 66 4 IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. Notary Public in and for the State of Alaska My Commission Expires: By: 67 5 EXHIBIT A To The APUIT Participation Agreement APUIT Group Health Plan Rates Effective January 1, 2007 through December 31, 2007 Coverage Classification Per Capita Rate Medical, Dental & Vision All Employees (Includes Dependents) $1,125.00 ~ 00 4- Tier Rates Medical, Dental & Vision Employee Only $492.10 Employee & Spouse $1,018.65 Employee & Child(ren) Emplployee, Spouse & Child(ren) $954.68 $1,500.92 APUIT PLAN COMPARED TO AElNA PLAN I & BLUE CROSS HERITAGE SELECT 100 COMPARISON OF ANNUAL PREMIUMS APUIT Rates Effective 1.1-07 thru 12-31-07/ Aetna & Blue Cross Rates Effective 7-1-Q6 thru 6-30-07 APUIT Aetna* Blue Cross** APUIT Aetna* Blue Cross** - Employee Only $425,174 $566,585 $485,430 $519,713 $566,585 $485,430 Employee & SPOuse $1,097,638 $1,288,098 $1,357,456 $1,314,889 $1,288,098 $1,357,456 Employee & Child(ren) $257,176 $382,364 $278,475 $308,077 $382,364 $278,475 Employee, Spouse & Child(ren) $2,517,835 $3,308,501 $2,940,919 $3,016,165 $3,308,501 $2,940,919 Total Annual Cost $4,297,823 $5,545,549 $5,062,280 $5,158,844 $5,545,549 $5,062,280 Difference in Cost N/A $1,247,725 $764,457 N/A $386,704 -$96,564 Difference as Percentage N/A 29.0% 17.8% NIA 7.5% -1.9% b) "'.Aelna P'an I ;s..me 00 elH'rent Valdez P'an Ex.... Ax Co-pays are $10 GenerIc and $30 B"'nd'oo- 9().day Supply .. B'ue Cross I. an 80% coinsurance plan as oP_,o llO% Wilh a colnsu,.... _mum 0' $420 as O_to $195 APUlT pLAN COMPARED ,.0 AETN~ PLAN I 8< BLUE CROSS IIERlT ~GE SELEC" 1 00 COMPARiSON OF MONTHLY PREMiUMS APUlT Rates Effective 1-1-07 thru 12-31-071 j>.etna 8< Blue cross Rates Effective 7-1-06 th'U 6-3Q-07 '. "PUlT "etna* Blue Cross** "PUlT Aetna* Blue cross** - - - - - Employee Only $35,431.20 $47,215.44 $40,452.48 $43,309.44 $47,215.44 $40,452.48 Employee & Spouse $91,469.84 $107,341.52 $113,121.36 $109,574.08 $107,341.52 $113,121.36 Employee & ChUd(ren) $21,431.30 $31,863.70 $23,206.26 $25,673.12 $31,863.70 $23,206.26 EmploVee, Spouse & ChUd(ren) $209,819.61_ $275,708.39 $245,076.56 $251,347.05 $275,708.39 $245,076.56 - - - - - - Total MonthlY Cost $358,152 $462,129 $421,857 $429,904 $462,129 $421,857 Difference in Cost N/" $103,971 $63,705 N/" $32,225 _$8,047 -:i oDifference as Percentage N/" 29.0% 17.8% N/" 7.5% -1.9% -J,etna plan Ila..me as current Valdez Plan Ex-' Rx co-pays are $10 GenOriC and $30 Brand Ior!lll-daY aupPIY ., Blue Cro" ;a an 80% ..,;nSU'a- plan as opposed 1090% with a coinsurance .."",..um 0' $4.0 as oppossd to $196 B\ue cross** ~PU\" ~etna* B\ue crossd ~etna* - - -- - ~PU\" - - - - - - - - $561.84 $561.84 $601.52 $655.71 $492.10 $655.71 Emp\oyee on\'/ $1,245.16 $1,219.19 $1,285.41 $1,018.65 $1,219.19 $'\ ,285.41 Emp\Oyee &. Spouse $1,,\66.96 $1,448.35 $'\ ,054.83 Emp\Oyee &. Ch\\dtren) $954.68 $1,448.35 $'\ ,054.83 $'\ ,834.65 $2,012.41 $'\ ,188.88 Emp\Oyee, Spouse &. Chi\dtren) $'\ ,500.92 $2,012.41 $'\ ,188.88 ""U{\" I'L""" COtJIl''''flEO''O 1>ET'l'" I'L""" \ &. BLUE CflOSS lIEfI{\"",GE SELEC,.100 COtJIl''''flISOtl Of tJlOtl,.lIL Y fI"'""'S i1 . C fI I Effect;.e 1.1..06 t\\'" 6-30-0 ""U{\" flate& Effect;.e 1.1..01 \II'" 12.31..Q11 """tI. &. BI\1O'O&& · OS $10 QeOO!Ic and $$0 Brand to' go.daV aupp\'l .~.. P'alI 1\$..... os currant "a- PlalI excePl "" CO-ll"~s are . 0 osed 10 $195 sed \0 glt'! YI"h a coi.surance ......."'" 01 $42Ilos '"' -l" B'ue C..... is a. Sl'I'k> co,.......... pia. os .,.,. · l-"'"' Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2007-052 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING PAYMENT TO THE ALASKA RAILROAD IN THE AMOUNT OF $11,633.00 AS LEASE FOR A PORTION OF THE TRANSMISSION LINE FROM ARRC MILE POST 23 TO 23.75 WHEREAS, a portion ofthe City of Seward's Transmission line (3950 lineal feet) is located inside the Alaska Railroad Transportation Corridor (ARRe), which subjects the line to lease payment to the ARRC; and WHEREAS, the lease rate was increased by $.50 per foot effective July 8, 2005, due to an increase in appraised value; and WHEREAS, the City has no other options available at this time for the location for this portion of the transmission line; and . WHEREAS, Seward City Code requires Council approval for this payment as the cost exceeds $10,000.00. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to pay the annual ARRC Lease for 2007 in an amount not-to-exceed $11,633.00. Section 2. Funding is available in the Electric Enterprise Fund account no. 501-5400-5360. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of May, 2007. ~ '-- 72 Council Agenda Statement Meeting Date: May 14,2007 Phillip Oates, City Manage~ tJ.5P6;b7 Tim Barnum, Manager Electric Utility jf!; To: From: Agenda Item: Authorizing the City Manager to pay the Annual Railroad Lease for a Portion of the Transmission Line ARRC Mile Post 23 to 23.75 BACKGROUND & JUSTIFICATION: A portion of the City's transmission line is built on Railroad property. The agreement with the Raikoad required the City pay a yearly lease rate, based on 3950 lineal feet. The lease rate increased by $.50 per foot in 2006 to $25.25 per foot, up from $24.75 per foot in 2005. As per Seward City Code, any invoice exceeding $10,000.00 requires Council Approval. This lease payment will be an annual expense for as long as the transmission line remains on Railroad property. The City does not currently have any option other than to pay the lease rate. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: Approved by Finance Department: RECOMMENDATION: City Council approve Resolution 2007-5Zauthorizing the City Manager to pay the annual Railroad lease for a portion of the transmission line, ARRC mile post 23 to 23.75, for an amount not-to- exceed $11,633.00 73 May.Z~-06 11:38 From-City of Seward : By: AfiRe REAL ESTATE,; 2652450; ZZ4.40381.(~U ~.UUIIUUI ~.,,~ maY-'I- lc..".n.u_~ .... \.J" ~. ~SKA RAILROAD CORPORATION ....-.... ..... . ................ ~.. , . ::o.poute Address: p.o. Box l07fiOO, kchota.Fs Alasb99S10 3~7 West Ship Creek A~ .AnclIOTolgt, A1asb 99S01. www.alasbr'ailroad.cam Septernber23,2005 Mr. Clark CoJbridge, City Manager . City of SeWard P.O. Box 167 Seward. Alaska 99664 Re: Alaska RaIlroad Corporation (ARRC) Contract No. 6868 Dear Mr. Corbridge: As you are aware, the Alaska Railroad Corporation recenUy CDnfr~ with a qualified MAl appraiser . to estimatethe.marketvalue of the properf)r permitted to the city QfSeward. Theappralsal provides a . basIs tor a rent adjustment in accordance withfhe terms of the pennlt. A copy of the appraisal Is enclosed for your review. .' The enclosed apprafsal detennined the annual rent to be ;13.526.QO. Pursuant to subparagraph 3.01.8 afthe parmit,-trns amount exceeded 135% ofihe annLlal rent detenninedfDrpennityears 1.10. inclusive. . We wish to advise YDU that the annual rantie the above referenced permit commencing as of Augu~ 1. 2005 will be 111.633.00 which is calculated by multiplying your:current rent of $8.617.00 by 135%. This annual rent wJ1l remain fixed until the next .rsopen~ period ~ stated in your contract. Also, In accordance with subparagJaPh 3.02.0 offhe penni~ Pennittee is only responsible for no more than ninety (90) days of unblUed retroactive rent at the increased level. Therefure, the increased rent Is affective August 1 instead of May 1, 2005. Encfosed is an invOice for the period August 1, 2005 . through April 3D. 2006 in the amount of $1,608.00., . J am also enclosing all updated version of the ARRC's Safety Maoual which is in accordance with paragraph 15 of the Permit. Plea<ie contact me at 9071265-246f> if you have any questions. Sincerely, &bh~ Kath ~"b ReaI~~~lng TechnIcian Enclosures 74 Corporate Address: P.O. Box 107500, Anchorage, Alaska'99510 327 W. Ship Creek Avenue, Anehorage; Alaska 99501 ALASKA RAILROAD,CORPORATION May 18, 1995 Dave Calvert Manager Engineering & Utilities City of Seward, Alaska P. O. Box 167 Seward, Alaska 99664 RE: ARRC Contract No. 6868 Dear Mr. Calvert: Enclosed for your records is a fully-executed Transportation Corridor Permit. If I can be of further assistance, please do not hesitate to contact meat 265-2325. Sincerely, ,~~77?~ ~ Gwendolyn Burno Real Estate Specialist Enclosure 75 TRANSPORTATION CORRIDOR PERMIT BETWEEN ALASKA RAILROAD CORPORATION AND CITY OF SEWARD CONTRACT NO. 6868 76 SECTION 1 SECTION 2 SECTION 3 SECTION 4 SECTION 5 SECTION 6 SECTION 7 SECTION B SECTION 9 SECTION 10 SECTION 11 SECTION 12 SECTION 13 SECTION 14 SECTION 15 SECTION 16 SECTION 17 SECTION 18 SECTION 19 SECTION 20 SECTION 21 SECTION 22 SECTION 23 SECTION 24 SECTION 25 SECTION 26 SECTION 27 SECTION 28 INDEX DEFINITIONS PERMIT TERM; EXTENSION .. GRANT AND CONSIDERATION . DISCLAIMERS ROUTE DESIGNATION, INSPECTION, ACCESS, CONSTRUCTION PERMITS OBSERVANCE OF LAWS; ENVIRONMENTAL PROVISIONS ENTRY AND NOTICE THEREOF TRACK USE STORAGE OF MATERIALS FLAGGING, WATCHMEN PAYMENT OF RAILROAD COSTS FACILITY LOCATION SIGNS MAINTENANCE OF SEWARD'S ELECTRICAL DISTRIBUTION LINE RAILROAD OPERATIONS RELOCATION; ALTERATIONS INSURANCE LIENS AND ENCUMBRANCES TERMINATION LIAISON, COORDINATION AND DISPUTES RESOLUTION COVENANTS AND WARRANTIES NONDISTURBANCE; THIRD PARTY SUBSEQUENT USERS RECORDINGS, TAXES, AND OTHER CHARGES STATUS SUCCESSION NOTICES SEVERABILITY LIABILITY; INDEMNITY i 77 SECTION 29 SECTION 30 SECTION 31 SECTION 32 BREACH; REMEDIES IMPOSSIBILITY OF PERFORMANCE; FORCE MAJEURE MISCELLANEOUS ENT.IRE AGREEMENT; AMENDMENT ii ~ " . 78 TRANSPORTATION CORRIDOR PERMIT THIS TRANSPORTATION CORRIDOR PERMIT (herein ca).led this "Permit") is made " on the day executed by the last signatory hereto, by and between the ALAsKA" RAILROAD CORPORATION (herein c~lled "ARRC"), a public corporation crea~ed pursuant ,to AS 42.40, whose mailing address is P.O. Box 107500. Anchorage, Alaska 99510-7500, and the City of Seward, a municipal government entity whose mailing address is P.O. Box 167, Seward, 'Alaska 99664 {herein called "Seward"} , A. ARRC is the owner of certain real property (by fee. easement, exclusive license, interim conveyance, or otherwise) hereinafter defined as the "Transportation Corridor". upon which it operates a rail transportation system. B ," Seward wishes to acquire from ARRC the right as hereinafter described, defined and limited; to construct, install, operate, maintain, repair, reinstall, reconstruct. replace and remove an overhead electrical transmission and distribution line within the Transportation Corridor between ARRC Mile Post (MP) 23 and MP 23.75 for a total of 3,950 lineal feet and between MP 24.75 and MP 25.25 for a total of 2,650 lineal feet. The electrical distribution line will be installed in the Transportation Corridor for a grand total of 6,600 lineal feet. C. Seward and ARRC desire to ,enter into a long-term relationship, realizing that close cooperation and good faith in ,the implementation of this Permit are critical to its success and the success of their respective operations, and will work diligently to achieve their common objective. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, to be kept, observed and performed. the parties hereby expressly agree as follows: 1. DEFINITIONS. 1 . 01 "Seward" shall mean the Ci ty government entity of the State of Alaska, contractors, and subcontractors, and subject to 25, its successors and assigns, of Seward, a municipal its employees, agents, the provisions of Section 1.02 by Seward and defined) . "Approved Plans" shall mean plans which have been submitted reviewed and approved by the Chief Engineer (as herein 1.03 "Chief Engineer" shall mean the Chief Engineer of ARRC or his duly authorized representative(s). 1.04 "Electrical Line" shall mean the electrical transmission and distribution line including metallic cables and all property installed by Seward in and on the Transportation Corridor including. but not limited to, conduit, carrier pipe, poles, fibers, buildings, terminals, power sources. splicing boxes, location markers and all other attachments and 'J\_ 79 appurtenances thereto. Any and all such property constructed and/or installed and subsequently operated or maintained by Seward or at the directions of Seward shall be and remain at all times the personal property of Seward, and shall at no time be deemed to be the personal property of the ARRC, regardless of the manner or method of attachment to or installation in, on, upon, over, under, across, along "and through the Transportation Corridor. 1.05 "Engineering"Maps" shall include ARRC right-of-way and plan andprofi~e drawings, engineering and architectural data regarding bridges, terminals, and other facilities previously compiled by ARRC pertaining to the Transportation Corridor. 1.06 "Fouling of Tracks" shall mean existence, movement, or placement of equipment and/or personnel on or" over a railroad track or within twenty (20) feet of the centerline of any track within the Transportation Corridor or any activity which, in the Chief Engineer'S sole opinion, may interfere with railroad operations. 1.07 "Permit Area" shall mean the area within the Transportation Corridor physically occupied by Seward's Electrical Line and the surrounding land surface and subsurface within an approximately sixty ~ foot wide corridor as depicted on Exhibit No 1, "As-built Drawings". 1.08 "Transportation Corridor" shall mean that portion of ARRC' S right-of-way or terminal reserve beginning at Seward MP 0 and extending to Potter MP 100, a total distance of one hundred (100) miles, more or less. 2.0 PERMIT TERM: EXTENSION. The rights granted herein shall exist for a term of thirty-five (35) years (the "Permit Term") commencing 5/1/95 ___ and expiring 4/30/2030 . Provided that Seward shall not be in material default hereunder, Seward "shall have the option to extend the term of this Permit for an additional twenty-five (25) years on terms to be negotiated and mutually agreed upon by the parties at the end of the initial 35-year term. Such option shall be exercised by Seward giving ARRC written notice thereof not more than one (1) year and not less than four (4) months prior to expiration of the original 35-year term. 3. GRANT AND CONSIDERATION. Subject to the terms and conditions contained in this Permit, ARRC hereby grants to Seward the right to: (i) construct, install, operate, maintain, repair, reinstall, replace and remove the Electrical Line to be located in, through, across and over the Transportation Corridor, track, bridges, trestles and other facilities of ARRC approved by the Chief Engineer. 3.01 As consideration for the rights granted herein, Seward shall pay the following rent to ARRC in legal tender of the United States of America, without deduction and without notice or demand, net of all real property taxes, assessments, and other charges required to be paid by Seward under this Transportation Corridor Permit with respect to the Transportation Corridor, and in equal annual installments in advance on or before the first day of each calendar year during the Permit Term, with partial periods prorated on a daily basis. A. Permit years ~ inclusive, annual rent will be Ei~ht Thousand six Hundred Seventeen Dollars (Sa.617) as determined by appraisal 'under Paragraph 3.02. Page - 2 80 B. Permit years 11-15 inclusive, annual rent will be at "market rent" as determined by appraisal under Paragraph 3.02. However, this annual rent is not to . exceed S11.633, ~ of the annual rent as determined for permit years l..::.ll inclusive, or at.a minimum drop below the rent determined in permit years ~ inclusive. C. Permit years 16-20 inclusive, annual rent will be at . "market rent" as determined by appraisal under Paragraph 3.02. However, this annual rent is not to exceed ~ of the annual rent as determined for permit years 11-15 inclusive, or at a minimum drop below the rent determined in permit years 11-15 inclusive. D. Permit years 21-25 inclusive, annual rent will be at "market rent" as determined by appraisal under Paragraph 3.02. However, this annual rent is not to exceed .l3.5.l of the annual rent as determined for permit years 16-20 inclusive, or at a minimum drop below the rent determined in permit years 16-20 inclusive. E. Permit years 26-30 inclusive, annual rent will be at "market rent" as determined by appraisal under Paragraph 3.02. However, this annual rent is not to exceed .l3.5.l of the annual rent as determined for permit years 21-25 inclusive, or at a minimum drop below the rent determined in permit years 21-25 inclusive. F. Permit years 31-35 inclusive, annual rent will be at "market rent" as determined by appraisal under Paragraph 3.02. However, this annual rent is not to exceed .l.3..Sl. of the annual rent as determined for permit years 26-30 inclusive, or at a minimum drop below the rent determined in permit years 26-30 inclusive. . . G. Extended Term (Option Period) . Term is extended pursuant to Section 2, the annual term shall be as follows: In the event the Permit rent during the extended 1. Permit years 36-60 inclusive, annual rent shall be at "market rent" as determined by appraisal in accordance. with Paragraph 3.02 of this Permit. Such market rent shall be determined for permit year 36 without regard to any minimum or maximum limitations. 2. Annual rent shall be adjusted at five-year intervals thereafter, and shall not, on an annual basis, exceed 135% of the annual rent during the prior five-year period, nor drop below the annual rent determined for that prior five-year period. 3.02 Determination of Market Rent. The market rent upon which Seward's obligation to pay annual rent under Paragraph 3.01 above is based shall be determined as follows: A. Appraisal of the Transportation Corridor's Market Rent. ARRC shall select an appraiser from a list of qualified appraisers compiled by ARRC and kept available for public inspection at ARRC's office. The appraiser shall determine, as of a date within one hundred eighty (180) days before or after the beginning of the appliCable rent period, the Transportation Corridor I s market rent for the installation and operation of an Electrical Line within the Transportation Corridor. A copy of the market rent appraisal shall be provided by ARRC to Seward upon request. Page - 3 -'. 81 B. For purposes 'of this Permit, "market rent" is the rental income that a property would most probably command in the open market; indicated by the current rents paid and asked for comparable space as of the date of the appraisal. The foregoing definition is found in D1e. Dictionary of Real Estate Appraisal, American Institute of Real Estate Appraisers, 1993 Edition. C. Appeal and Arbitration of Rent Increases. In the' event Seward disagrees with a market rent appraisal commissioned by ARRC pursuant to subparagraph 3.02.A of this Permit, Seward may appeal the annual rent determined in such appraisal by notifying ARRC in writing of its demand for appeal within fifteen (15) days of receiving ARRC'snotice of change in rent. Seward's failure to give said notice will constitute a waiver of Seward's right to appeal a change in rent based on such appraisal, and Seward shall be bound by ARRC's determination of the market rent. In the event Seward so appeals a change in rent, Seward shall, at its own expense, obtain a market rent appraisal of ARRC's Transportation Corridor for the installation, operation and maintenance of Seward's Electrical Line. Seward shall provide ARRC a copy of said appraisal no later than ninety (90) days after receiving ARRC's notice of change in rent. Said appraisal shall be performed in accordance with ARRC I S Transportation Corridor Standard Appraisal Instructions in effect at the time of appraisal. If within fifteen (15) days after ARRC receives Seward's appraisal, the parties are unable to agree as to the market rent, Seward may, at its option, refer the matter to arbitration in accordance with the procedures contained in Paragraph 3.03 of this Permit by notifying ARRC in writing of its demand for arbitration within ten (10) days after expiration of the fifteen (15) day period provided above. Otherwise, Seward shall have no right to refer a rent dispute to arbitration and shall be bound by ARRC's determination of rent under this Permit. Notwithstanding the foregoing, Seward shall pay all rent at the new rate provided in ARRC's notice of change in rent until the issue of market rent of the Transportation Corridor is resolved. D. Retroactive Rent. Until a change in annual rent is determined, Seward shall pay the same annual rent as in the previous year. When the adjusted annual rent has been determined, and Seward notified, such annual rent as so determined shall be due and payable to ARRC retroactive to the commencement of the permit year for which such rent adjustment is made, and any deficiency resulting from such rent adjustment shall be payable within thirty (30) days after the giving of such notice to Seward. However, at no time will Seward be responsible for more than ninety (90) days of unbilled retroactive rent at the increased level. 3.03 Arbitration and Appraisal Process. If ARRC and Seward fail to agree upon the appraisal of the "market rent" under Paragraphs 3.02.A and 3.02.C the matter of disagreement shall be submitted to and determined by a single arbitrator, mutually appointed by them, whose decision and award shall be final, conclusive, and binding upon both of them. If ARRC and Seward fail to mutually appoint a single arbitrator, the matter shall be submitted to and determined by three (3) arbitrators, in which event either ARRC or Seward may give to the other written notice of election to have the matter of disagreement so arbitrated and shall appoint therein one of the arbitrators. The oth~r party shall, wi thin (20) days after the Page - 4 82 receipt of such written notice, appoint a second arbitrator. If it fails, to do so, the party who has already appointed an arbitrator may have the second arbitrator appointed by any judge of the Superior Court of Alaska resident in the district where the Permit Area is situated. The two arbitrators so appointed in either manner shall appoint the third :arbitrator, and if the first two arbitrators fail to appoint a third arbitrat()r within twenty (20) days after, the. appointment of the second arbitrator, either ARRC or Seward may have the third arbitrator appointed. by any judge of 'the Superior Court of Alaska resident in the district 'where the Permit Area is situated. Each Of the arbitrators appointed under this paragraph shall possess the professional qualifications provided in Paragr~ph 3.03.A hereof. The three arbitrators so appointed shall thereupon proceed to arbitrate the matter of disagreement, upon such rules of procedure as they may adopt, and shall render a written decision containing their findings and conclusions. ARRC and Seward shall share equally the costs associated with the arbitration. A. Special qualifications of arbitrators. Each arbitrator appointed pursuant to this Section 3 shall be a person who (~) has appraisal experience during the last two years in the State of Alaska prior to this appointment; (2) has appraised at least two (2) similar Transportation Corridors; and (3) is a Member of the Appraisal Institute (MAI) . It is understood and agreed that if any of such institutes or societies are merged or otherwise consolidated with another duly qualified appraisal or counseling organization, and thereby loses its name or designation, the arbitrator may be appointed from among the memb.ers of such other organization. B. Judicial review of arbitration decision. The decision of the arbitrators shall be final and unreviewable by any court, except to the extent authorized by Alaska Statutes 09.43.110, .120 and .130. If the court determines that the arbitration decision should be set aside on one of the grounds enumerated in such statutes, it may proceed to decide the merits of the matter at the instance of either party to the Permit and neither party shall be required to submit to rearbitration of the matter. 3.04 Absolutely Net Rent. When an annual rent becomes effective under this Permit, such rent shall not thereafter be reduced for any reason, except in the event of condemnation. It is the purpose and intent of ARRC and Seward that the annual rent established under this Permit shall be absolutely net to ARRC so that this Permit shall yield, net to ARRC, the rent specified herein during the term of this Permit, as well as the other consideration stated in this Permit, and that all costs, expenses and obligations of every kind and nature whatsoever relating to the Permit Area incurred by Seward, which may arise or become due during the Permit Term, except as otherwise expressly provided in this Permit, and except costs, expenses, and obligations (other than those to be borne by Seward as herein provided) incurred by ARRC in connection with the sale or mortgaging of ARRC's property, shall be paid by Seward, and that ARRC shall be indemnified and held harmless by Seward from and against the same. 4. DISCLAIMERS. ARRC is the owner and/or holder of the Transportation Corridor subject to the terms and limitations under which it is owned or held, including but not limited to covenants, conditions, restrictions, permits, easements, reversionary interests, and other matters, including but not limited to encroachments, licenses and permits, Page - 5 83 whether or not of record, and to the rights of tenants, permittees and licensees in possession. The rights granted herein are expressly made subject to each and every limitation, restriction or reservation affecting the same as of the date of this Permit. ARRC expressly disclaims any representation or warranty that rights, granted under this Permit are consistent with. the documents or rights under which it owns or claims the right to use, the T:t:ansportation Corridor. This Permit is made without 'covenant of title or right of quiet'enjoyment. Seward enters into this Permit knowing that others may assert that'ARRC has no right to grant the right hereby given, and agrees to hold ARRC harmless from any detriment or liabilities arising therefrom, ~hether to ARRC, Seward, or any person, firm or corporation claiming thereunder, including any forfeitures declared or occurring as a result of this Permit. The absence of markers, monuments or maps indicating the presence of subterranean facilities, whether belonging to ARRC or otherwise, does not constitute a warranty or representation that none exist. Seward accepts this Permit with full cognizance of the potential presence of such, acknowledging that Seward's construction and installation costs may increase by reason thereof, and acknowledges that the owner or owners thereof may have acquired' the right to continue to maintain such facilities. Seward recognizes that any ARRC documents supplied by ARRC were not prepared for use as real estate title maps. ARRC does not represent or suggest that the property lines and Transportation Corridor lines shown on such documents are accurate or that any other information contained on the documents is correct. 5. ROUTE DESIGNATION. INSPECTION. ACCESS. CONSTRUCTION. 5.01 ARRC shall make available within fifteen (15) days of a request, copies of ARRC Engineering Maps and surveys, if any, for the Transportation Corridor. Seward recognizes that any such ARRC documents were not and are not customarily prepared for use by third parties and may be incomplete or otherwise contain inaccuracies. ARRC makes no representations or warranties regarding the completeness or accuracy' of such information and documents provided to Seward. ARRC shall make reasonable efforts to notify Seward of any inaccuracies therein which are or which become known to ARRC during the planning, design, construction and installation of the Electrical Line. 5.02 Upon Seward's request, ARRC agrees to participate with Seward in a joint inspection of the Transportation Corridor for the purpose of defining the final Electrical Line route or alternatives. ARRC personnel accompanying Seward on inspection shall have the knowledge and authority to generally guide the detailed routing in a manner to minimize interference with ARRC operations. It is agreed, however, that the routing will be located within easily accessible parts of the ARRC' s Transportation Corridor, to the extent this may be accomplished without interfering with ARRC's operations. 5.03 Upon reasonable prior notice to the Chief Engineer, Seward shall have the right to enter upon the Transportation Corridor for the purpose of surveying and inspecting the same, and to perform preliminary engineering tests. 5.04 Within forty-five (45) days after Seward submits and ARRC receives a detailed route and construction plan for the Electrical Line within a portion of the Transportation Corridor, ARRC shall approve or disapprove of same in whole or in part. If ARRC disapproves, it Shall so notify Seward stating the reason(s) and cause(s) for such disapproval and Page - 6 84 recommend alternative locations for placement of the Electrical Line within the Transportation Corridor. In such an event, Seward shall resubmit its detailed route and co~struction plan to ARRC. Failure of ARRC to notify Seward of its disapproval of a construction plan within the 45-day period shall be deemed. approval. ARRC r s review and approval of Seward t s plans shall not constitute an assumption of any liability for the design, .engineering or structural ;integrity of the improvement proposed to be.. installed by Seward. . . 5.05 Upon the approval by ARRC of Seward's detailed route and construction plan (s), Seward may enter upon the Transportation Corridor for the purpose of commencing installation of the'Electrical Line. Prior to such entry Seward shall notifyARRC of the actual dates and locations where construction is to begin. ARRC hereby grants, to the extent it is legally able to do so, Seward the use of any access roads owned, controlled, or otherwise used in the maintenance of the Transportation Corridor and agrees to coordinate with and assist Seward in obtaining access to the Transportation Corridor as necessary and convenient. 5.06 Seward shall, at its sole cost, risk and expense, furnish all materials, parts, components, equipment and structures necessary to construct, install, operate, maintain, repair, reinstall, replace, and remove the Electrical Line, or any part thereof. Any and all such work by Seward shall be done in a good and workmanlike manner, in conformity with all applicable statutes, .laws, ordinances, regulations, rules, codes, orders or specifications of any public body or authority having jurisdiction thereof (all of which shall control if inconsistent with or contradictory to the specifications set forth in this Permit) and so as not to interfere with ARRC's operations.. ARRC hereby grants to Seward, to the extent it is legally able to do so, throughout the term of this Permit, the use of any access roads owned, controlled, or otherwise used in maintenance of its Transportation Corridor to provide Seward access to its Electrical Line for the purposes of constructing, installing, operating, maintaining, repairing, reinstalling, replacing or removing its Electrical Line, or any part thereof. 5.07 All installations must meet or exceed applicable specifications of the State of Alaska, the United States of America, and the National Electric Safety Code in effect at that time, and shall further be in compliance with all existing federal, state or local laws, ordinances and regulations. Seward shall further, at its expense, obtain all permits and approvals required to implement this Permit. In no case shall any part of the Electrical Line be located in a manner that will unreasonably interfere with any operations of the ARRC, its existing licensees, permittees, or lessees, or any other persons or entities having rights on ARRC's properties, or interfere with street crossing protection facilities, or interfere with ARRC's communication facilities, electrical power, signal facilities or signal circuits. 5.08 To the extent necessary for its Electrical Line, Seward may install facilities over ARRC's tracks or attach to ARRC's bridges, consistent with railroad industry standards and good engineering practices, subject to the Chief Engineer's approval. Such approval shall not be unreasonably withheld. 5.09 Cables crossing over public roadways within the Transportation Corridor shall be at a location and height as determined by Page - 7 85 state or local conditions, laws, regulations or orders of public authorities. 5.10 Cables crossing over or under other existing public utilities shall be located and installed in accordance with local conditions, laws, orders .of public authorities, and such requirements as may. be stipulated by the public utility.. If in the conduct of such. work, any changes or alterations in pipelines, sewers, drains, conduits, fences, power, signal or communication lines or .other utilities are necessary (either temporary or permanent) such changes shall be made at Seward's sole cost and expense. . 5.11 Upon completion of the installation (or any replacement, repair or relocation) of the Electrical Line, Seward shall promptly return the ground to a condition reasonably similar to its preexisting condition. 5.12 wi thin one hundred eighty (180) days after completion of the installation of any segment of the Electrical Line, Seward shall prepare and submit to ARRC "As-built Drawings" showing the location of the Electrical Line within the Transportation Corridor. Upon completion of the "As-built Drawings" of the Electrical Line they shall be Exhibit No 1. and attached hereto and made a part hereof. 5.13 ARRC and Seward shall cooperate with each coordinate their activities in an effort to ensure that construction, operation, repair and maintenance activities do not with, and are not inconsistent with, the duties and obligations of ARRC's labor agreements. other and Seward's conflict ARRC and 5.14 If Seward desires or is required, as herein provided, to revise, renew, or alter in any manner whatsoever the Electrical Line, it shall submit plans to ARRC and obtain the written approval of the Chief Engineer before any work or alteration is performed and the terms and conditions of this Permit with respect to the original construction shall apply thereto. ARRC's permission shall not be unreasonably withheld or delayed. 5.15 Any work (including but not limited to initial survey, inspection or design activities) performed by Seward or its employees, agents, contractors and subcontractors within the Transportation Corridor shall be in accordance with Exhibit No 2, "ARRC's Standard specifications for Work on Railroad Property," as attached to this Permit or as they may be revised from time to time; provided, however, that the insurance requirements in Section 17 of this Permit supersede any inconsistent provisions of such Specifications. Seward understands and agrees that, among other things, such Specifications require railroad flag protection any time Seward, its employees, agents, contractors, or subcontractors, are present within twenty (20) feet of the centerline of railroad track. 6. PERMITS. Seward shall, at its sole cost and expense, secure and maintain in effect all federal, state and local permits and licenses required for the construction, installation, and operation, maintenance, repair, reinstallation, replacement and/or removal of the Electrical Line, including but not limited to zoning, building, health, environmental permits or licenses, and shall indemnify ARRC against payment of the costs therefor and against any fines or penalties that may be levied for failure .to procure or to comply with such permits or licenses as well as any remedial costs to cure violations thereof. If an environmental impact Page.- 8 86 statement(s) is required, Seward shall prepare it at Seward's sole "risk, . cost and expense. ARRC agrees to use its best efforts to cooperate with Seward in securing any such permits or licenses by providing information and data upon request. 7. OBSERVANCE OF LAWS: ENVIRONMENTAL PROVISIONS. 7.01 General compliance. Seward, at all times during the Permit "Term, at its" own expense, and with all due diligence, shall observe" and comply with all laws, ordinances, rules, and regulations which are now in effect or may later be adopted by any governmental authority, including ARRe, and which may be applicable to the Electrical Line or any other improvement of seward's on the Permit Area or any use of any of the same. 7.02 Environmental Laws. In furtherance and not in limitation of the foregoing paragraph, Seward must, at its own expense, comply with all laws, ordinances, regulations, and adrninistrati ve agency or court orders relating to health, safety, noise, environmental protection, waste disposal, hazardous or toxic materials, and water and air quality. In the event any discharge, leakage, spillage, emission or pollution of any type occurs upon or from the permit Area relating to or resulting from the construction, installation, operation, maintenance, repair, reinstallation, replacement and/or removal of the Electrical Line, Seward shall immediately notify ARRC and shall, at Seward's own expense, clean and restore the Permit Area to the satisfaction of ARRC and any governmental body or court having jurisdiction of the matter. 7.03 Hazardous Materials on Permit Area. Seward shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Permit Area by Seward, its agents, employees, contractors or invitees without the prior written consent of ARRC, which ARRC shall not unreasonably withhold as long as Seward demonstrates to ARRC's reasonable satisfaction that such Hazardous" Material is necessary or useful to Seward's business and will be used, kept and stored in a manner that complies with all laws regulating any such Hazardous Materials so brought upon or used or ke~t in or about the Permit Area. 7.04 ;Environmental Indemnity. Seward agrees to indemnify, hold harmless and defend ARRC against all liability, cost and expense (including, without limitation, any fines, penalties, diminution in value of the Permit Area, assessment and clean-up costs, judgements, litigation costs and attorneys' fees) incurred by or levied against ARRC as a result of Seward I s breach of this, Section 7 or as a result of any discharge, leakage, spillage, emission or pollution on or discharged from the Permit Area due to or arising from Seward's use or occupancy of the Permit Area, without regard. to whether such liability, cost or expense arises during or after the Permit Term. The foregoing indemnity shall survive the expiration or earlier termination of this Permit. 7. OS "Hazardous Material". For purposes of this Permit, the term "Hazardous Material" means any hazardous or toxic substances, material or waste, including but not limited to those substances, materials and wastes listed in the u.S. Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the U.8. Environmental Protection Agency as hazardous substances (40 CFR Part 302), and amendments thereto, or such substances, materials and wastes that are or become regulated under any applicable local, state, or federal law. Page - 9 87 8 . ENTRY AND NOTICE THEREOF. 8.01 Except for emergency situations, whenever Seward desires to enter upon the Transportation Corridor to construct, build or use construction vehicles or to dig within or alter or disturb the Transportation Corridor, it shall give the Chief Engineer written notice in advance of entry. All such work shall be. subj ect to the consent and approval of the Chief Engineer. The Engineer shall respond to such notice within five (5) working days of receipt thereof. 8.02 In the event of any emergency impacting the Electrical Line, Seward shall verbally give the Chief Engineer advance notice prior to entry upon the Transportation Corridor, and comply with all reasonable conditions imposed by the Chief Engineer. If such emergency or another emergency impacts ARRC, Seward understands and agrees that ARRC's response to such an emergency shall have priority over Seward's activity within the Transportation Corridor. 8.03 In no instance shall Seward ever engage in Fouling of Tracks without prior written approval of the Chief Engineer. 8.04 The parties contemplate that Seward will, at its sole cost and expense, develop a transportable maintenance capability to facilitate rapid response to maintenance demands of the Electrical Line. ARRC will coordinate.and cooperate with Seward in the planning of such capability. The parties agree that guidelines will be negotiated for actual operation of such capability, which Seward understands will contain conditions relating to safety of railroad operation deemed appropriate by the Chief Engineer. Seward further understands and agrees that ARRC's access to any subject portion of the Transportation Corridor shall have priority over Seward's operation, and that the guidelines shall so provide. 9. TRACK USE. No use of ARRC's tracks shall be permitted without prior written approval of the Chief Engineer. 10. STORAGE OF MATF.RIALS. 10.01 No goods, materials, equipment or fuel needed by Seward to construct the Electrical Line shall be placed or stored within twenty (20) feet of the centerline of any railroad track or within such greater distance as may be required by the Chief Engineer based upon the degree of track curvature or other reasonable concern of the Chief Engineer. Any storage upon railroad property shall be subject to the prior approval of the Chief Engineer and shall be only for the time the Chief Engineer deems acceptable. 10.02 Subject to prior approval by the Chief Engineer, Seward may erect temporary structures and fences to protect its material, equipment, or fuel. Seward agrees to restore the land to a condition reasonably similar to that existing prior to construction when its construction in the vicinity is completed. . 11. FLAGGING. WATCHMEN. If at any time during the work of construction, repair or maintenance of the Electrical Line, ARRC should deem flagmen or watchmen or other measures desirable or necessary to protect its operations, property, employees or other persons on or near the Transportation Corridor, ARRC shall have the right to place such personnel or take such measures, at the sole cost and expense of Seward. The failure Page - 10 .~ 'I.",;- 88 to furnish such personnel or take such measures by ARRC shall not relieve. Seward of any obligations or liabilities it might otherwise have. 12. PAYMENT OF RA TLROAD COSTS. Seward shall pay ARRC for all work performed by or on the behalf of ARRC pursuant to the terms herein or for any cost or expense reasonably incurred by ARRC in connection therewith, including in-house engineering services .ap.d expense, labor, material and other related costs incurred by ARRC as a result of this Permit, the rights. exercised by Seward and' protection of ARRC operations and facilities' set forth herein. If the parties so agree, the amount billed to Seward shall' be a NEGOTIATED DAILY RATE CONTRACT for the work pe~formed and material furnished. Absent such agreement, the amount billed to Seward shall be computed using Federal Highway Administration (FHWA) approved procedures and as audited on an annual basis by FHWA and the Alaska Department of Transportation and Public Facilities. Upon receipt of a statement for railroad costs, Seward agrees to pay ARRC the amount so billed within 45 days of receipt by Seward of such statement; amounts so billed and remaining unpaid shall thereafter accrue interest at the rate of ten and one-half percent (10-1/2%) per annum until paid. Fqr non-negotiated costs utilizing FHWA procedures, the statement shall be itemized, and upon Seward's request, ARRC shall furnish reasonable backup documentation in support thereof. 13. FACILITY LOCATION SIGNS. Seward, at its sole cost and expense, shall furnish, erect and thereafter maintain warning signs showing the location and height of all Seward's aboveground facilities. Such signs shall be painted and placed in accordance with the standards of the electrical distribution industry, subject to the prior written ~pproval of the Chief Engineer. 14. MAINTENANCE OF SEWARD'S ELECTRICAL LINE. Seward shall maintain the Electrical Line to protect the operations and safety of ARRC and its employees, officers, agents, licensees, permittees, lessees and invitees. Should any facilities of Seward require repair which affects the safety and operations of ARRC, Seward shall, as soon as possible, make such repair at its own expense. ARRC shall have the right, but not the duty, to require Seward to make such repair, and may enforce such right by legal action if Seward fails to make such repair within 30 days of notice by ARRC. 15. RAILROAD OPERATIONS. 15.01 ARRC and Seward shall operate to avoid, to the extent practicable, actions which could endanger the Electrical Linear ARRC. Seward shall use all precautions to not interfere with ARRC's operations in the Transportation Corridor. ARRC may, at its option, require that employees, agents, and contractors of Seward who are or will be involved in the construction, operation and maintenance of the Electrical Line be trained in railroad safety matters via courses or materials to be offered or provided by ARRC. 15.02 Seward 1 s employees and agents will be bound by Exhibit No. 3, the ARRC "Manual of Safety Rules' and Regulations for General Guidance and Protection of Railroad Personnel", a copy of which is hereby incorporated by reference, in effect as of the date of this Permit including any future revisions or amendments to said booklet (which shall be distributed to Seward in a timely manner) . Page - 11 89 ~6 . RELOCATION: ALTERATIONS. 16.01 If ARRC determines that any of Seward's Electrical Line or the location thereof must be changed or altered because of ARRC operations or planned operations, or because ARRC desires to renew, replace, repair or alter any of its tracks, bridges, culverts, structures, properties, utilities, facilities or. appurtenances, and such alte~ation would require relocation of Seward's Electrical Line, ARRC shall notify Seward of such plans. If the Electrical Line or any portion of it is affected by such plans and is located within ~hirty feet of the centerline track structure as of the effective date of this permit, Seward shall, at its expense, promptly protect or move the affected Electrical Line in a manner satisfactory to the Chief Engineer as soon as possible. Any relocation within the first year of the term of this Permit shall be performed by Seward at ARRC's expense unless the relocation either (a) results from a natural or manmade disaster or from unforeseen but reasonable maintenance requirements of 'ARRC, or (b) Seward was notified of the possibility of relocation at the time the plans were approved by ARRC. If weather permits and Seward fails to so relocate its Electrical Line within ninety (90) days after notice, ARRC may remove or relocate such Electrical Line at Seward's expense. Nothing in this section shall prevent ARRC from constructing, maintaining, using, operating, reconstructing, and renewing its trackage over and across the Permit Area at any time at its sole election or shall prevent ARRC, its lessees, permittees, licensees and those whom it may select from constructing, maintaining, using, operating, reconstructing and renewing other facilities, utilities or appurtenances within the Permit Area. ).6.02 In the event of . a railroad relocation as set forth in Paragraph 16.01, ARRC agrees that Seward shall, at its own expense, be allowed to move its Electrical Line to other available segments of ARRC's Transportation Corridor, as determined by ARRC. ';+7 ;." fNS~CE.. .. 17.01 During the installation of the Electrical Line and/or any .i;i~9mei1t:thereof (and when operating heavy equipment within 20 feet of the ';.t::~ilt~'I;Ii,:heof ARRC's track during preliminary testing or other activities ';;'\iu.;th(jg:i;zed under the right of entry in Paragraph 5.03), Seward shall }piit'C;l1Cise (and/or cause its contractor (s) to purchase) and maintain in force '<cfuQ..::ieffect, at its sole cost and expense, railroad protective liability ;i'11~ura;n6e naming ARRC as insured in combined single limits for bodily \iii311F.Y"Fa.nd property damage of $2,000,000 per occurrence and $3,000,000 :/ii9'gt'e'!Q'~t:.e; The original of said policy or satisfactory evidence of ';'c:ove'!i'a-ge;shall be furnished to ARRC's Vice President of Real Estate & ;;.Pi!i~~~~ti;;;5 prior to commencing any activity for which this paragraph \~~~*.}jr,{;~:Ch insurance. ':'>.. ., 17.02 For and during all phases of this Permit, Seward, at its sble:/c:6st..~ shall procure and maintain comprehensive general liability ;~n.$h:i:'i$c~'; including a contractual liability endorsement covering the terms ;;:(jf~.'#lCiEl::'~;j?ermit, providing personal injury and property damage liability ~i,t;b\';~;;qoinbined single limit of not less than $5,000,000. Seward shall alsOC"Pt'8Cure and maintain automobile liability insurance with a combined si:r:lgle . limit of not less than $1,000,000 and workers' compensation iIi~1j,;r~~~:).?-s specified by law. All such policies (except any workers' ~~~~~nsat~bn policies) shall name ARRC as an additional insured. Page - 12 90 . ~:':17, o~,\;,seward" {shall furnish,.,to 'ARRC I s Vice..,Pre~ident. ". of ;,Real "E$ta:t~;';&/>,FaCIHtles'ci. '.' cert ificate"'e;f' insurance eVidencing:, that' the ";:~@w:i!ii:tC:e~;21Eispecified in Paragraphs 17.01 and 17.02 are in force and will;', ,riqtjibecancelled or materially altered unless thirty days prior,.,noti,ce be .' ;::<g~Vei(.:~to such Vice President _, . ~eward s~ll",~urnish the Vice P~~it1dent~:;:;o!. .Hi::,~:;;k~#~g:~.~~:.~';q{~~~~n~.~es .copies'6f any";~uch i~~~fi~'.)7<:J?ol if;~~~'S;~Ron"h{s' ,,' . '1 ;':'04 FurniShing of. insurance' by Seward hereunder shall not limit Seward's liability under this Permit, but shall be additional security therefor. 18. LIENS AND ENCUMBRANCES. 18.01 Seward shall not permit any mortgage, pledge, security, interest, lien or encumbrance, including without limitation tax liens or encumbrances and liens or encumbrance, with respect to work performed or equipment furnished in connection with the construction, installation, repair, maintenance or operation of .the Electrical Line on' any portion of the premises (collectively,. "Liens or Encumbrances"), to be established or remain against the Transportation Corridor or any portion thereof; provided, however, that the existence of such Liens or Encumbrances shall not constitute a violation of this sentence if payment with respect thereto is not yet due and payable; and provided further that Seward shall not be required to pay, discharge or remove any such Lien or Encumbrance against the Transportation Corridor or any portion thereof, so long as Seward shall, after written notice to ARRC, contest the same or the validity thereof in good faith by appropriate proceedings which shall operate to prevent the transfer of Seward's or ARRC's interest in the Transportation Corridor or any portion thereof to satisfy the same. . 18.02 Nothing in this Permit shall be deemed, to give, and ARRC hereby expressly waives, any claim of ownership in and to any part or the whole of the Electrical Line. 19. TERMINATION. 19.0l If any of the certificates, permits, franchises, licenses, or such other authority required by Seward to perform its obligations hereunder are terminated or revoked for any 'reason, this Permit shall thereupon terminate. 19.02 If for any reason Seward fails to complete the Electrical Line prior to December 1, 1996, Seward shall reimburse ARRC for the cost of the initial Transportation Corridor appraisal performed prior to the execution of this Permit. 19.03 In the event of termination Seward shall, at it sole risk, cost and expense, remove the Electrical Line and restore the Transportation Corridor to a condition which is as close as is reasonably possible to the original condition and in a manner satisfactory to the Chief Engineer. 20. LIAISON. COORDINATION AND DISPUTES RESOLUTION. 20.01 It is the intent of Seward and ARRC that any disputes which may arise between them, or between employees of each, be resolved as quickly as possibly, both for the prompt survey, design plan, construction, installation, operation and maintenance of the Electrical Line and for the Page - 13 91 safe and uninterrupted operation of ARRC's rail system. Quick resolution may, in certain instances, involve decisions on the spot. When such resolution is not possible, and depending upon the phase of installation of the Electrical Line, the parties agree to resolve such disputes as herein provided. 20.02 ARRC and Seward shall each designate an individual or field representative'to act as the primary ,point of contact, said party to be identified within thirty (30) days of 'the date Seward submits construction plans of the Electrical Line as set forth herein. ' 20.03 Questions relating to ARRC property, operation or track safety shall in all instances be referred in writing directly to the Chief Engineer, whose decision shall be made within fifteen (~5) days except as otherwise provided herein and except that in the event of emergency, it will be made as soon as possible. Failure of the Chief Engineer to render such decision within said fifteen (~S) day period, unless otherwise provided herein, shall be construed as approval of Seward's request. 20.04 Questions as' to right of access to the Transportation Corridor during design, planning, construction, installation, maintenance and operational phase shall in all instances be referred in writing initially to the designated or authorized representative of the, Chief Engineer who shall render such a decision within fifteen (~S) days or in the event of and emergency, as soon as possible. Failure of the Chief Engineer to render such decision within said J.S-day period shall be construed as approval of Seward's request. 21. COVENANTS AND WARRANTIES. By execution of this Permit. the parties represent, as to their respective companies, upon their knowledge ,and belief, the following: 21. O~ That they have full right arid authority to enter into and perform within the terms and conditions of this Permit, and that by entering into or performing within the terms and conditions of this Permit, the parties are not in violation of their charter or bylaws or any law, regulation or agreement by which they are bound or to which they are subject; and 2~. 02 That the execution, deli very and performance of this Permit by each party has been duly authorized by all requisite municipal government and corporate actions, that the signatories for each party hereto are authorized to sign this Permit, and that the joinder or consent of any other party except as otherwise provided herein, including a court or trustee or referee, is not necessary to make valid and effective the execution. delivery and performance of this Permit. 22. NONDISTURBANCE' THIRD PARTY SUBSEQUENT USERS. Except as otherwise set forth in this Permit, ARRC shall not license, permit or authorize interference with the use and operation of the Electrical Line. Notwithstanding the foregoing, ARRC reserves for itself, its successors. assigns, permittees and licensees I the right to use any segment of the Transportation Corridor occupied by the Electrical Line, so long as such use does not unreasonably interfere with Seward' s use and operation thereof. In the event another user proposes non-interfering use of the Transportation Corridor, Seward shall cooperate and coordinate with such 'user t~ determine the most efficient and least disruptive interface between their respective facilities. Page - 14 92 23 . RECORDINGS. TAXES. AND OTHER CHARGES. Seward shall pay all annual, or periodic taxes levied or assessed upon Seward's facilities, or on account,of their existence or use, and shall indemnify ARRC against the payment thereof. This section shall not be construed to require payment by Seward with respect to any federal or state income taxes assessed against ARRC regarding the consideration for this Permit. 24.. STATUS. ARRC reserves no control over the employment, discharge, compensation of or services rendered by Seward's employees or contractors. It is the intention of the parties that Seward s:q.all' be and remain an independent party. Nothing herein shall be construed as inconsistent with that status or as creating or implying any partnership or joint venture between Seward and ARRC. Employees of Seward or employees of any contractors shall not be considered ARRC's employees. 25. SUCCESSION. 25.01 This Permit shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assignees, subject to the provisions of Paragraph 25.02. ' 25.02 Neither party hereto shall assign or otherwise convey any of its rights" titles or interests under this Permit without the prior written consent of the other party hereto. ARRC's consent shall not be unreasonably withheld if the proposed assignment is to a person or entity, including a corporate successor of Seward, whose net worth on the Ciate of assignment is equal to or greater than Seward's net worth on the effective date of this Permit (applying generally accepted accounting principles), or who can otherwise demonstrate to ARRC, in the exercise of prudent business judgment, that he or it is financially capable' of meeting Seward's obligations under this Permit. 26. NOTICES. 26.01 Unless otherwise provided herein, all notices and communications concerning this Permit shall be addressed as follows: As to ARRC: Vice President, Real Estate & Facilities Alaska Railroad Corporation P.O. Box 107500 Anchorage, Alaska 99510-7500 Mailing Address: Delivery Address: 327 West Ship Creek Avenue Anchorage, Alaska 99501 (907) 265-2671 (907) 265-2439 Telephone: Fax: As to Seward: Mailing Address: Manager Engineering & Utilities City of Seward, Alaska P.O. Box 167 Seward, Alaska 99664 Delivery Address: Telephone: Fax: City Hall Seward, Alaska 99664 (907) 224-3331 (909) 224-2621 Page - 15 93 or at such other address as may be designated in writing from time to time to either party by the other; provided, however, that communications or notices required to be directed to the Chief Engineer hereunder shall be made to the same mailing address as stated above or may be delivered to ARRC's Engineering Department at 327 West Ship Creek Avenue; the Chief Engineer's telephone number is (907) 265-2456. 26.02 Unless otherwise provided herein, notices shall be hand delivered or "sent "by certified mail, return receipt" requested, and shall be deemed served or delivered to addressee upon the date of such hand delivery or the date of return receipt acknowledgment or, if a postal claim notice is given, on the date of its return marked "unclaimed". 26.03 In case of disaster (rail derailment or failure of the Electrical Line) or other emergency demanding immediate examination of or repairs to existing facilities, notice of entry shall be given by either party to the other in person or by telephone to a representative to be designated in writing by each party to the other. 27. SEVERABILITY. 27 . O~ This Permit is executed by all parties under current interpretations of applicable federal, state or local statute, ordinance, law or regulations. 27.02 Each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) herein contained shall have independent and severable status from each other separate division or combination thereof, for the determination of legality, so that if any separate division herein is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall have no effect upon the validity or enforceability of each and every other separate division herein contained, or any other combination thereof. 28. LIABILITY: INDEMNITY. 28. O~ As a further consideration and as a condition without which this Permit would not have been executed, Seward agrees to release, indemnify, defend, and save harmless ~RC, its officers, employees and agents and to assume all responsibility and liability for death of, or injury to any person, including but not limited to, officers, employees, agents, patrons, permittees, invitees or licensees of the parties hereto and for loss, damage or injury to any property (including but not limited to, that belonging to ARRC or to Seward) or to the environment, together with all liability for any expenses, attorneys' fees and costs incurred or sustained by the ARRC, arising from or growing out of, or in any manner or degree, directly or indirectly, caused by, attributable to, or resulting from: A. The grant or exercise of rights under this Permit; B. The construction, maintenance, repair, renewal, . alteration, change, relocation, existence, presence, use, operation or removal of the Electrical Line; or any other activity conducted by or on behalf of Seward on or in the vicinity of the Transportation Corridor; Page - 16 94 C. Any failure of Seward to comply with all applicable, laws, ordinances, rules, regulations, orders, licenses, permits, and other . requirements, now or hereafter in effect, of any government authority; or D. Any failure of Seward to comply with the requirements of this Permit. 28'.02 ., The prov~s~ons of Subparagraph 28.01 apply regardless. of whether or not' caused' by routine rail . operations of ARRe, including derailment, unless and only to the 'extent such damage was caused by the' willful and malicious action of ARRC, its officers, 'e\llployees,' or agents. In no event, however, will ARRC be liable for claims for consequential damages, including but not limited to lost profits or revenues of Seward and damages of users or customers of Seward resulting from service interruption or cessation of the Electrical Distribution Line. 28.03 At the election of ARRe, Seward, upon receipt of notice to that effect, shall assume or join in the defense of any claim based upon allegations purporting to bring said claim within. the coverage of this Section 28. . . 28.04 S'eward acknowledges that the installation of the Electrical Line within ARRC's Transportation Corridor involves risk as a result of ARRC's -operation, which such risk will be assumed by Seward and will not be assumed by ARRC. Seward further acknowledges that in the event of a train derailment, bridge collapse or failure or other similar situation, ARRC may take whatever actions it deems necessary to return service to the railroad or to replace or rebuild any structure pr to clean or restore its Transportation Corridor. In such an event, ARRC shall give verbal notice to Seward of such'emergency. ARRC shall not be liable for any damage to the Electrical Line (including loss of same, or interference with service, or use thereof) as a result of such events. 29. BREACH: REMEDIES. 29.01 In the event of a' breach of this Permit by either party, Seward and ARRC each agrees that neither shall proceed against the other by litigation before the offending party has had written notice of and reasonable time to respond and cure such breach or defect; provided, however, neither party shall be required to give the other time to respond and cure if any such delay will cause irreparable harm to that party's own interests or to the interests of third parties or the environment. 29.02 For purposes of this Section 29, any substantial noncompliance or repeated noncompliance which of itself might be considered minor or singular shall constitute a breach by either party. Failure by either party to give required notices shall constitute a breach. Notwithstanding the foregoing, such breaches as described in this paragraph shall not be grounds or justification for the cessation or termination of this Permit (except where otherwise specifically provided), and the aggrieved party's remedies shall be for damages or injunctive relief only. 29.03 Remedies available to each party shall include: (1) specific performance in equity; (2) litigation for damages and costs; (3) limited self-help as provided in this Permit; and (4) termination, where applicable. Page - 17 95 29.04. Any waiver by any party at any time of any of its rights as to anything herein contained shall not be deemed to.be a waiver of any breach of covenant or other matter subsequently occurring. 30. IMPOSSIBILITY OF PERFORMANCE: FORCE MAJEURE. . 30.01 Th,e term "Force Majeure" as used herein shall mean any cause beyond the control of the party affected which could not be overcome with reasonable diligence and effort, including Acts of God, acts of'public enemy, insurrection, war, . blockages, strikes, lockouts, other labor stoppage, riots, other public disorders, storms, landslides, avalanches, floods, washouts, earthquake, 'lightning, civil or military disturbances, restraint by court or public authority, boycotts, embargoes, or acts of military authorities; excluding, however, financial inability. 30.02 The party asserting a claim of Force Majeure shall, as soon as reasonably practical after knowledge of the. start of such Force Majeure, provide notice to the other party her~to in writing, certifying all available facts and circumstances surrounding the occurrence of the Force Maj eure, including, but not limj, ted to: its causes, expected duration, efforts to overcome, and the claimed effect on the party 's obligations to perform under this Permit. 30.03 When the Force Majeure condition has terminated, the party claiming the Force Majeure shall, within thirty (3D) days of termination, certify in writing all available facts and circumstances surrounding the occurrence of the event, including, but not limited to: its causes; time of start and end, and duration of condition; efforts taken to overcome; and the effect on the party's obligations to perform under this Permit. The party shall, upon request, promptly provide additional documentation of supporting facts and calculations relating to the claim of Force Majeure. 30.04 If because of Force Majeure, any party is unable to carry out any of its obligations under this Permit, and if such party shall, as soon as reasonably practical after knowledge of the start of Force Majeure, give to the other party notice of such Force Majeure, then the obligations of all parties shall be suspended to the extent made necessary by the Force Majeure and during its continuance; provided, however, the party experiencing Force Maj eure shall take prompt and reasonable action to overcome such causes of Force Majeure and its operation shall be resumed immediately after such causes have been removed. Nothing contained in this paragraph shall cause the party affected by the Force Majeure to submit to what it considers to be an unreasonable labor agreement. 31. MISCELJ,ANF.OUS. 31. 01 Approvals and consents of ARRC as provided for herein shall be based upon the maximum utilization of the Transportation Corridor for present or future use by ARRC, protection of ARRC property, maintenance and operations, and ARRC's safety and the safety of its officers, employees and agents. 31.02 Each party shall be responsible for its own costs, including legal fees, incurred in negotiating this Permit. 31.03 This Permit shall be interpreted, construed and enforced in accordance with the laws of the State of Alaska. Page - 18 96 31.04 Captions of sections and paragraphs herein are for' convenience of reference only and shall not be deemed to affect the interpretation or construction of this Permit. 32 . ENTIRE AGREEMENT, AMENDMENT. 32.01 This permi,t, an,d all schedules and exhibits attached. hereto, shall constitute the entire agreement between the parties. . 32.02 NO warranties, representations or promises pertaining to this Permit or any property or rights affecte9 hereby have been made by, nor shall be binding upon, any party hereto except as expressly stated in this Permit. 32.03 This Permit may be amended by mutual consent, in writing, signed by all parties hereto, and such amendments shall become part hereof. IN WITNESS WHEREOF, ARRC and Seward have duly executed and acknowledged this Transportation Corridor Permit. Dated: J /;J'/ ft1 I f By: Robert S. President Off er ) Executive Dated: C)'-7-1~ By: Dated: Yr9; STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) -0 \ , The foregoing instrument was acknowledged before me this I~ day of 7' . '. , 1995, by Robert S Hatfield. Jr.. President and Chief 'v . . . , a public corporation created b . Alaska Statute 42.40, on behalf of the co~or~tt-o~. \ .r -krrtlJ...un Q, it~-{.,-! l- ) Notary Public in and for; ...f-lpt3k9-.. _ My Commission expires: ~ Page - 19 97 STATE OF ALASKA ) )ss. THIRD JUDICIAL DISTRICT } The foregoing instrument was acknowledged before me this q.-n.. day of 1995, by John G. Burns. Vice President Real Estate and . . ,a public corporation created atute 42.40, on_behalf of the corporation. ~.. , . kcttl.J.u.n 0.. ~) YJ' . Notary Public in and fo~ ..Alapl<:a My Commission expires: I 0<. -/ J- q l j) STATE OF ALASKA } )S8. THIRD JUDICIAL DISTRICT ) A--I The foregoing instrument ~as(aCknpWledged before me this r day of n~~ . 1995. by p<?U€ ~ u..~ . theH'&v-P",~... '^-~~\ of ~ of Sew , a municipal government entity of the $ ate 0 Alaska, on behalf of the same. for tlaSkt es: 17~ Page - 20 98 " .~. p.o. BOX 221649 ANCHORAGE.Al.ASKA 99522 243-6740 P.O. BOX 72510 FAIRBANKS. AlASKA 99707 452-1206 LAND FIELD SERVICES, INC. June 5, 1997 Alaska Railroad Corporation P.O. Box 107500 Anchorage, Alaska 99510 SUbject: City of Seward 115kV Transmission Line Transportation Corridor Permit Attention: Karen Morrissey Manager, Real Estate Services Dear Ms. Morrissey: The above cited Transportation Corridor Permit was established for the City of Seward's transmission line project between the Lawing Substation and the Snow River bridge. The permit for the above project was granted on May 15, 1995. Pursuant to Section 5.12 of said Transportation Corridor Permit, and on behalf of the City of Seward, enclosed herewith is a copy of the as-built survey for the project, consisting of an Index Sheet, and Sheets 1 through 17 of 17. Very truly yours, . LAND FIELD SERVICES, INC. ~~ ~~~ Warren L. Krotke cc: Dave Calvert Manager, Engineering and Utilities City of Seward ....1 "- 99 City of Seward, Alaska April 23, 2007 City Council Minutes Volume 37, Page CALL TO ORDER The April 23, 2007 regular meeting of the Seward City Council was called to order at 7:30 p.m. by Mayor Vanta Shafer. OPENING CEREMONY Police Chief Tom Clemons led the pledge of allegiance to the flag. ROLL CALL There were present: V an~a Shafer presiding and Willard Dunham Bob Valdatta Jean Bardarson comprising a quorum of the Council; and Marvin Yoder, Interim Ci Jean Lewis, City Clerk Johanna Dollerhide, Assist E CEPT THOSE ITEMS SCHEDULED ent sportation, gave a brief update on the Mile 0-8 ck to finish the project. Electrical work should be completed ng up, striping was planned for the following week, and ad w cheduled to start on May 7, 2007. Drake hoped to get k of une. Kerry n the negotiation of the conveyance of Block 6 that was before the council tonight. M is piece of property was valuable and wanted to see that negotiations included something in for the city. Martin pointed out the city had still not received all of the municipal entitlement under the Statehood Act. He thought land on the comer ofB Street and 5th A venue, across from the state shop, the property recently acquired by the state for the bike path, and a place for the boosters to put their school sign back up in the Clearview Subdivision, were all places Martin hoped the city would consider during this conveyance negotiation. Christy Terry, announced that after over 30 years of Little League, the league may be empty of members this year. The association needed volunteers. Anyone interested could contact Terry and she thanked all the past volunteers who helped make Little League successful thus far. 100 City of Seward. Alaska April 23. 2007 City Council Minutes Volume 37, Page APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Thomas/Bardarson) Approval of Agenda and Consent Agenda Motion Passed Unanimous The clerkread the following approved consent agenda items: The April 9, 2007 regular city council meeting minutes were appr er ofIand management, Non-Objection for the liquor license renewal for the followi Post #5, Apollo Restaurant, Christo's Palace, The Crab Ray's Waterfront & Grill, Tony's Bar and Tony's Li r Resolution 2007-039. supporting the Qutekcak N Resolution 2007-040. authorizing change order # Associates for Engineering and Consulting Service appropriating funds. Resolution 2007-042. amending Resoluti sign and platting fees for City of Seward Resolution 2007-043. op. Police Standards Co e the composition of the Alaska o Melissa Witzler-Stone for her appointment as the State of Alaska. ad for Historic Preservation Month. awarded to Brian Hutchison, Spring Creek Correctional Center ear. A proclamation was read for the Library's "The Big Read." A proclamation was presented for Super Saturday Clean Up Day Saturday, May 5, 2007. A proclamation was read for Terry's Tires Bike Rodeo Day Saturday, May 12,2007. 101 City of Seward. Alaska April 23. 2007 City Council Minutes Volume 37. Page A proclamation was read welcoming participants of the State of Alaska's American Legion Convention. City Manager's Report. Interim City Manager Marvin Yoder stated the A VTEC lease at SMIC had been revised again, and he hoped the approval would come to council in May. . Passen2er Fees - Yoder didn't think the bill had moved since this issue was last brought to council. He received a phone call today that Princess would be coming into Seward next year. Senior Center - Siding on the Senior Center continued. Yo had to be shut down, but it was simply not safe enough to conti accommodate people to get them up and down the floors. Ne council soon for repair costs and plans. Lobbvinl! in DC - Federal lobbyist Brad Gil the multi-agency facility, downtown roads, levee 1, 2007 as the new city embe , Yoder thought the entire elevator shaft would have to be . ng the re-siding project that the framing was rotten. It would be a g again. Dunham hoped this issue would be expedited quickly. Chamber 0 erce Report. Director Laura Cloward updated council on recent marketing statistics an ctivities the Chamber was doing in conjunction with the city's marketing contract. There had Deen an increase in destination guides given out. A TV producer would be coming in May to film in Seward. The Seward All-America Highway Road Partnership was back up and running. Cloward was elected as treasurer and press releases were set to come out in May. Seward Planning and Zoning Commission Report. Margaret Anderson stated the Commission had a special meeting on March 20th where they granted a Conditional Use Permit (CUP) for Iris Darling for a recreational vehicle camp on Nash Road. An additional condition was added by the commission for bird nesting sites to be cleared in the area. A CUP was granted to the school district for the use of connex containers on school property. Resolution 2007-01 modified a 102 City of Seward, Alaska April 23. 2007 City Council Minutes Volume 37. Page CUP issue with Providence during the April 5, 2007 meeting to allow for removable fencing. A CUP was granted to Tom and Lori Swann to develop an 11 room hotel on their downtown property. The Commission approved Resolution 2007-06, which recommended the vacation ofB Street as well as Resolution 2007-07, which recommended A VTEC property be conveyed to the state. Anderson stated this issue had been pending for many years. She suggested the city look at some kind of exchange of property. The Commission said goodbye to Interim Planner Scott Williams, who recently resigned. Executive Liaison Christy Terry would be sorely missed and wished her luck in her new position with the Engineering Department. , Vic Mayor Dunham and tives and Senators. They . was going to be in the t of Corrections and yocate of A VTEC. . on in efforts to ey would the s essment roll of the Afognak Acres Electrical for the levy, payment terms, and penalties of the Special . earing being posted and published as required by law ed' Yode property owners. re calculated, and the assessment on the lots would be paid by the Citizen and pro notice she received di y owner Paula Gibbs spoke from the audience. Gibbs was concerned the 't give any indication as to when she was supposed to pay this assessment. Motion (Dunham! Amberg) Approve Resolution 2007-032 Thomas was concerned for voting on this because this was the second person who was told their lots already had electric on them. Finance Director Kris Erchinger stated public notice did go out to property owners in 2005, informing the proposal to have an assessment district formed. Council authorized $111,973 103 City of Seward, Alaska April 23, 2007 City Council Minutes Volume 37, Page for the estimated cost of the improvements, and the next step was to inform the property owners (who may have increased) that the final costs were calculated and the assessment was going forward. The property owner who sold the lots should have told the purchasers about this assessment and the estimated cost at the time of the sale. Motion Passed Unanimous UNFINISHED BUSINESS - None NEW BUSINESS Resolutions Resolution 2007-037. authorizing the negotiation for as: TIS. RIW, Section 10 Seward Meridian SW 00 Addition (School Reserve) Block 6 to the St Vocational Technical Center (A VTEC) for educa 6 also described eward Federal r Alaska Yoder stated this project was a 10 commission and A VTEC had been using city to transfer the land to them. Motion (Thomas/Amberg) Unanimous endin enai Peninsula Borough approval of the Vacation of d Second Avenue. Approve Resolution 2007-038 Motion Passed Unanimous Resolution 2007-041. authorizing the city manager to pursue environmental permits for the "2007 Red Line" alignment for the North Forest Acres LeveelRoad Project, and to pursue property acquisition. Yoder directed council to the levee alignment comparisons before them. The "Red Line" version was the most acceptable to agencies. It was requested by the agencies that some lots be purchased to be turned into a conservation easement. An appraisal had been requested of Mac Swain 104 City of Seward, Alaska April 23, 2007 City Council Minutes Volume 37, Page & Associates to detennine the value ofthe lots. A request was made by some property owners that the levee be paved right away so there wasn't as much dust. Motion (DunbamN aldatta) Approve Resolution 2007-041 In response to Valdatta, Erchinger stated the city hoped to limit the use of the road" to commercial use and to the dump. Even though that decision had not been fonnallymade by council, staff was operating under that presumption. Yoder noted this action still needed to be pennitted, the ap and then staff could begin moving forward with the realignment Motion Passed Resolution 2007-044. approving a contract witb Paving, utilizing tbe State of Alaska competitiv streets, and appropriating funds in an amount not Yoder said the big issue was the . Avenue. This resolution expanded that d streets. It was felt that the pavement on Di repaired as well. The resolution was broken they so wished. There were funds available fo from the capitol improve . ects fund. dollar eannark for road paving. Mayor Shafer y out of city accounts, if possible. Approve Resolution 2007-044 ine on this project, especially when Third A venue was ed ab the downtown area being tom up, especially after the road sinesses were affected. Public WC Casey stated QAP had indicated they would be done with the Fourth A venue pro] emorial Day weekend. The grinding and paving project before them was a two to three day ~ect, so QAP would be moving very quickly. Generally, asphalt pavement had a life expectancy f 8-12 years. Valdatta was concerned by the area by the ball fields. Casey noted there was a small contingency to pave additional areas included in this resolution, but the areas Valdatta was addressing had drainage problems that would have to be a different project. Regarding the $2 million in funding, Casey remarked it would take months to spend those federal funds. There was a lot of required preparation and protocol that needed to be followed to fully receive the funding. 105 City of Seward, Alaska April 23, 2007 City Council Minutes Volume 37, Page In response to Bardarson, Casey thought the city could ask them to pave the downtown area first, so both Third and Fourth Avenue wouldn't be paved at the same time. Motion Passed Unanimous OTHER NEW BUSINESS INFORMATIONAL ITEMS AND REPORTS (No action required) September 30, 2006 financial report for SAAMS. Thank you letter addressed to the city of Seward by the Al donation to the Alaska Meth Education Project Fund. Hospital financial reports from December of2006 COUNCIL COMMENTS Amberg, congratulated Melissa she provided to the community. She wou Legion Convention to Seward. She thanke oder for his services done at the city. Mayor Shafer as happy Council passed the support resolution for Qutekcak, and hoped Seward could talk to our federal representatives and senators to achieve federal recognition. She was pleased to hear the Princess Cruise Ships were coming back to Seward. CITIZENS' COMMENTS Margaret Anderson, commented on the Fourth Avenue paving and wanted council to authorize money for extra fill and proper drainage. The pavement on Fourth Avenue had really lasted a long time given the conditions of Seward. Anderson wanted council to consider the idea of 106 City of Seward, Alaska April 23, 2007 City Council Minutes Volume 37, Page annexation and thought the city should look into the land on 5th Avenue and B Street across from the state storage shop for a possible land swap for the conveyance ofB Street to A VTEC. Kevin Clark, spoke on the electric fates Dunham had previously commented on. Clark felt commercial and residential should be charged the same. Brad Snowden, was pleased to hear Princess was coming to Seward and reiterated his prior dock proposal at the end of Adams Street. He agreed with Dunham on looking at the land by the waterfall and thought the city should move the bridge in an event ofan flood. He believed the land deposited belonged to the City of Seward. COUNCIL AND ADMINISTRATION RESPONSE TO Valdatta, remembered businesses being loade and didn't wish for that to happen this year. Amberg, wished her husband a h Yoder, thanked council and staff for Yoder wished everyone luck and thanked th o into Executive Session to discuss information about the Forest Acres Levee that may have a negative impact on the finances ofthe city. Unanimous Council went 1 Council came ou ssion at 9:30 p.m. Session at 10: 17 p.m. ADJOURNMENT The meeting was adjourned at 10: 17 p.m. Jean Lewis City Clerk Vanta Shafer Mayor (City Seal) 107 Memorandum Date: May 14. 2007 From: Mayor Shafer/City Council members Jean Lewis, City Cle~ Historic Preservation Vacancies To: Subj: In May of each year, two historic preservation commission members' terms of service end. A notice of vacancy has been advertised in the local newspaper since April 19, 2007. For 2007, those two members whose terms are ending are Shannon Kovac and Thomas Swann. Both have reapplied. No other applications were received. Other than this reappointment, there are no current vacancies on this commission. 108 R~CEIVED CITY OF SEWARD, ALASKA APR 1 3 2007 ' APPLICATION FOR THE Of:f:/C€ SEWARD HISTORIC PRESERVATION COMMISsfOw CPllcH€ NAME: '7hD/fI'{U4~ S fA) A IV N STREET ADDRESS: Ii- Sb'l IJdJ4..v!~ 5~ MAILING ADDRESS: /I PO BDit" qo~c; HOME TELEPHONE: 30 <i?o LENGTH OF RESIDENCY IN THE SEWARD AREA: }Q. VI'S. - I PRESENL Y EMPLOYED AS: $~_it P"""'p lt~y~J list any special training, education or background such as grant writing, history, architecture, or archeology. which may help you as a member of the Commission. ,l.t.}C) r...,.._ <: OILY +h.. f?'H'A fIA/~~/i:"O A-wc1. l' 111M .c"'J>4/1y 9'" if. tv)' J'?,., 1. ..,.-Lt p u I~ ~"/",,.1 f I am specifically interested in serving on the Historic Preservation Commission because: 4.\<: ~')' I'" AN ,:.. Dt:>,..f.-.t....'1 hT.J.....J- o..{: ill , , (lt1'>JtA.dU",,'1-y A..",P fJ.l~ ~~,.. <~IfV :r {!.11... l'19"'",^'I..:j.. ..J.. """y (b 1M IIU.Wli i 1- '/ ' Have you ever served on a similar commission elsewhere? ~ or No If so, where? . He,.~. And when? S;;;"e.c- Za>1 If appointed, are you willing to: . Do historic research? . Work on preparing grant applications? . Work on writing historic register nominations? . Attend historic preservation workshops? ;?tv/ - ~ ~ ~ '@ tjlJ.../tJ 7 DA E /' NO NO NO NO - ' 109 RECE\VEO v 0 3 2007 CITY OF SEWARD, ALASKA M~, APPLICATION FOR THE OFFICE ~~J~E SEWARD HISTORIC PRESERVATION COMMISgrO~ NAME: S ~c-J.. V'\. \:"'< Q V'\ K 0 " CI.- C- STREET ADDRESS: ~ \ ~ s~\.--. A'.J e.- MAILING ADDRESS: ? 0 D Co X 2. <=1 .., ~ HOME TELEPHONE: "- '2.. 4 - ~ "l 2 L LENGTH OF RESIDENCY IN THE SEWARD AREA: I 0 ~'t""-KS C U \-\-1.,)'( c.... \ \2..e,.:5 C uv c... ~ ~ y o~ vC<.. ~ 'I"Yl 0... V'\ c.. ~ <iL '( PRESENL Y EMPLOYED AS: \Le.v-.c...:, \=.j CYd-S Y\ C\.~oY\",,-\ t>o...-.c K. List any special training, education or background such as grant writing, history, architecture, or archeology, which may help you as a member of the Commission. ~-^ ~",-\-'n'(,-> ?()\o'a~i <1,,<,,,-~-.Jc..~ co:>... ~ U(..c..-\.. VY\ ->.s"-.3hr'\. S~o.:...e.... '\ Se<,,~C'i"'\ \ o{., ~o..,,,,,,,,~ i ~ Yc:..",~ '-.)y ;...u.",~ Have you ever been involved in any aspect of historic preservation? If so, briefly describe your involvementYe....s} 5\~ .....e...o..'(~ - 'Sc,"lA.Xlo.."~ \o\;'~-\o~",- . \ ?"e So€' Y \10.. ~o" Co,"",....-- ,<..~ i 0 ""- I am specifically interested in serving on the Historic Preservation Commission because::r.'d \ ~ \( (! -\0 C'.;:) V"\ ~V\ .:l <Z.. -\-0 L.:>O ~ \<.... 0 Y""> Ie l' i .5 4-'. Y\.5 ~ ~ c:.- ~I'f.O~ e ~*.. - ~v ~o.~~', lAo'''''''''''' ~o.:.. \\. 'f. Q.s.-\.c...c..~c>~ \ ~~~"" ~n'j VV-..s~..'\(.... ~4"v~~ 1<L \"'\I'!Y'..-\~v~ a \ni4..o;.a.,"'r<..- "'i:!..\",,~:~ \"'a..",-\, ir,....,~n.-\-<:>'( . Have you ever served on a similar commission elsewhere? Yes or~ ~ If So, where? And when? - If appointed, are you willing to: . Do historic research? . Work on preparing grant applications? · Work on writing historic register nominations? . Attend historic preservation workshops? I NO NO NO NO ~~y~ SIGNATURE ~-'2...-0~ DATE ',\ 110 Memorandum Date: May 14, 2007 From: Mayor/City Council Jean Lewis, City Clerk~ POSSIBLE BUSINESS LICENSE CHANGE TO EXTEND THE APPLICATION DUE DATE FOR SEASONAL BUSINESSES ONLY To: Subj: Our city code 8.30.025(a), states: o Renewal applications must be filed no later than January 31. or a late fee is assessed. o Renewal applications for seasonal businesses must be filed no later than Aoril1. or a late fee is assessed. We bring this to your attention just because we seem to have quite a few seasonal businesses that really don't get paperwork to us until around May 1 of each year. These businesses have been telling us; they travel in the winter, don't pick up mail frequently, don't come back to Alaska until the end of April to begin their businesses, etc. We have been charging late fees for about 20 businesses each year. Since we have fielded complaints from these businesses, we thought we would bring this to the city council's attention to see iffor seasonal businesses only, ifthe due date shouldn't be changed from Aprill to May 1. It may be a nice gesture. PAST RESEARCH Past research shows we have had a business license section in the Seward City Code since 1954. A new chapter on business licenses was updated in 1994. A copy of resolution 96-22 (attached) shows where the language establishing April 1 as the renewal application deadline for seasonal businesses was imposed. A reading of the July 8, 1996 minutes does not state any intent. On a side note, it was also added at this time, that the city require businesses to have verification of current sales and property tax accounts with the Kenai Peninsula Borough. DECISION If a majority of council would like, the clerk's office will draft an ordinance changing the deadline to May I, and set on upcoming agendas for introduction and a future public hearing. Ifvoted no change is necessary, it will stay as is with a deadline of April 1. Attachments: --current city code section --1996 city code amendment 111 , .~ v;._.~, ... -+: BUSINESS REGULATIONS AND LICENSING 8.30.025 (c) The business license or approved duplicate license shall be displayed prominently at the site of the business. (d) A business liceIlSe may not be sold, assigned, transferred or otherwise conveyed. If a person ceases to engage in business or changes the name, nature or, business location, the business license expires. (Ord. 94-20) 8.30.020. Exclusion from business license requirement. (a) A person is not requited to obtain a business license under this chapter if: (1) Engaged in fiShing, unless conducting fish sales to the public from a vessel or providing charter services to the public; (2) Giving or supplying of services as an employee; (3) An individual or a non-profit organization engaged in casual and isolated sales by a seller who does not regularly engage in the business of selling goods or a service and the sales do hot occur for more than 14 days in a calendar year. (b) Government and governmental services are not requited to obtain a business license under this chapter. (Ord;-94-20) Supplement No. 03-1 8-29 112 , I . . . Sponsored by: Mwphy Introduction Date: 06124/96 Public: Hearing Date: July 8. 1996 CITY OF SEWARD, ALASKA ORDINANCE NO. ~ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING SCC G 8.30.025, APPLICATION FOR A .B1JSINBSS. " ". . m'" EENSE", ". ". '. '" . ~"" . . WHEREAS, the application period for a ~s JeWie contains outdated language: NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA HEREBY ORDAINS that: Section 1. see ~ 8.30.025A is hereby amended to read as follows: A. A person engaging in a business shall apply to the city clerk for a li.iiSiitliij li~~ on a form prescribed by the city and shall not open for business until the bii3~ It.~ is issued. Renewal license applications must be filed no later than January 31 in each subsequent year, except that a seasonal business operating during the summer season, May ] to September 30 only, shall file a renewal application no later than April] in each subsequent year. Section 2. see ~ 8.30.025e is hereby amended by adding subsection 7 as follows: C. Each application shall be accompanied by; 7. Verificationfrom the Kenai Peninsula Borough that all sales and property tax accounts are current. Section 3. This ordinance shall take effect ten (10) days following its enactment. ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 8th day of July, 1996. THE CITY OF SEWARD, ALASKA 113 ~~. CtallO. j)e<lO<. s~ IGng 1<.eil ~one . crr'Y OF SEWARD' /U-A.SY/.A OllDl.Np...NCE ~O. ~ A. yes: NOES: p...BSENT: p...BST pJN : 1\'ffEST: ~RO~ AS 'to VOtuA: V/ob\fOrth. ~wger. 10bJlSOD 8< llrecbl, ~ lot the citY 01 s.watd. ~ ~f~ City A.~rneY ~~..,.UIU", ~;..,.;:\"--: r~, 1#1" {(j~r' - ,.;. r '''" ~ . ,"" ~...."#. ~ ci.':::"'~:':'l-i.:':"~) ~ :: ... ~.<' ",.~ ". ~ "': :.;:. .....~ "0'. ~ : : ",'" \-:. ., .' ... . . . .,"-. ~ . - . ~ -" ........ - ~ ~ ' = .' . ' -- . J .. ':,. ',,,' ...:: .. ''s'L'' V~.- .......~ ... ':. i'::, ":~'" 1- ,\"".' ~ ':\:'#'rti.....~... ~ , 'It.... Of:....-V ..... ~/. .;"" ...". lilli"'" .' t. ~ O?,. . -2- 114 May 15,2007 Alaska Scientific Crime Detection Laboratory 5500 East Tudor Road Anchorage, AK 99507 Sincerely, The Seward City Council would like to congratulate Director Mr. Chris Beheim for their persistent pursui murder case. rime Lab and Former . the Bonnie Craig To Whom It May Concern; Thanks to the Combined DNA Index Syst local crime labs to exchange and compare N may find some closure. We would also like to th also assist in the operation and mai nance to the N database under CODIS. state and ity Council, thank you for your continued hard work Mayor Vanta Shafer City of Seward Cc: Governor Sarah Palin Commissioner of Public Safety Walt Monegan Senator Gary Stevens Representative Paul Seaton iSYS 115 adn.com I Bonnie Craig murder: Bonnie Craig case DNA match left scientist breathless Bonnie Craig case DNA match left scientist breathless CHRIS BEHEIM: Investigator who worked the case 12 years ago was the one who discovered the link. By MEGAN HOLLAND Anchorage Daily News Published: May 2, 2007 Last Modified: May 2, 2007 at 03:36 AM One September day 12 years ago, forensic scientist Chris Beheim walked slowly across the dirt and rocks at McHugh Creek, looking for traces of blood at the place where Bonnie Craig's raped and beaten body was found. Page 2 of4 Related story content Possible answer to murder Question blends relief with fear Undying sign of hope More Bonnie Craig murder stories >> Mother crusades for DNA tests Bonnie Craig case DNA match left scientist breathless Prison Inmate charged In Bonnie Craig killing National computer file, more precise DNA tests promise trouble for Alaska's violent criminals Reward fund alms to flush Craig killer From the beginning, the investigation was like no other. The city was captured by the death of the lS-year-old college student; Beheim was shocked at the savageness of the crime and angered that the killer was still out there. He is a scientist, but this case was always more than swabs and Click to enlarge . ChrIS&llleimiUha!o~____samples and DNA parsing. It was personal. director of the Alaska State ------- -- ------ Crime Lab and was the first to realize they had a DNA match for Bonnie Craig's suspected killer. Story tools E-mail a friend Print 0199 this Seed Newsvine Send link via AIM Font size: A I A I A Beheim's wife and stepson knew Bonnie from Service High School. And, like his whole family, the girl loved classical music and played in the orchestra. She lived nearby. It was all a long time ago, but Beheim, who went on to become boss of the state crime lab, never forgot. Then one November day last year, he sat down in the lab's library for a routine scan of automated returns from the national DNA database and realized he was looking at a match for the unidentified semen found on Bonnie's body. It was from someone in New Hampshire. "Immediately, I recognized the case number," he said Tuesday, still sort of breathless, like a little kid bursting at the seams. "I mean, I've been involved with thousands of cases over the years, having been there since 1978, but this is a case number that is etched in my memory." He had to focus on reacting like a scientist, on controlling any unseemly excitement. He wanted to call Alaska State Troopers investigators. He wanted to call a former colleague who worked with him on the case. He wanted to shout it out to the world. Instead he followed protocol. Within minutes of the discovery, lab staff was on the phone to New Hampshire authorities, asking them to confirm the match by checking the codes and profile numbers on the DNA for a Kenneth Dion, doing time there for robbery. 116 http://www.adn.cominews/alaska/crime/craiglstory/884 715 8p-87 4 7866c.html 5/7/2007 adn.com I Bonnie Craig'murder : Bonnie Craig case DNA match left scientist breathless Page 3 of 4 When New Hampshire authorities said there was no mistake, Beheim went straight to trooper boss Col. Julia Grimes. "Needless to say, she was very, very happy," he said. Beheim, who retired in January, had parented the crime lab from its infancy in the late 1970s, when it did little more than simple drug detection, to its sophistication today, which includes participation in the national database known as CODIS: The FBI's Combined DNA Index System, a collection of DNA profiles from criminals, relatives of missing people and unidentified remains. And samples taken from the victims and scenes of unsolved crimes. Like the murder of Bonnie Craig. "This is why we built the database," Beheim said. "It's the only way to solve these cases when the trail has gone cold." Over the years since Bonnie's body was found floating in McHugh Creek, troopers presented scores of samples from suspects to the lab for analysis. "We lost count of how many elimination samples we did, when the police would send us either a saliva or a blood sample that they wanted to see if it matched," said Leanne Strickland, who worked at the lab until she retired several years ago. Semen found on Bonnie's body was frozen and preserved so it could be analyzed for many years. Over time, as local law enforcement's technical capabilities improved, investigators would take a little bit of the preserved cells for more advanced testing, hoping to learn more about Bonnie's killer. When first tested in 1994, the profile of DNA found on Bonnie could eliminate 99 of 100 people. By 2000, when it was among the first samples sent to CODIS, advanced testing could effectively tie it to a single person. The national database has mushroomed over the past few years. From just 20,000 profiles in 1999, it has now grown to more than 4 million, according to the FBI. Alaska inputs DNA data from felons, those who commit violent misdemeanors and juveniles who have committed serious crimes. Daily News reporter Megan Holland can be reached at mrholland@adn.com. stories >> Most read Top Veco officials admit bribery, conspiracy Spring may be last many unwanted huskies see Feud in Midtown escalates into fight and shooting Trooper accused of sexually assaulting teen Sea Ice melting faster Sea ice melting faster Spring may be last many unwanted huskies see Bills nibble at cruise initiative Most e-mailed Health Insurance woes Weather, fuel costs favored the lives of hundreds of wolves Postal changes worry residents of tiny village Pollee hope tip will lead to fugitive Spring may be last many unwanted huskies see 117 . Mos~-viewed galleries adn .com photo report Fur Bikini Contest 2007 at Chilkoot Charlie's Alaska wildlife 2007 Heart Run 2007 Native Youth Olympics Alaska Skies 2007 http://www.adn.com/news/alaska/crime/craig/story/884 715 8p-87 4 7866c.html 5/7/2007 About the Journal Page I of7 ALASKA LAw REVIEW 10 Duke law School I I POF Version I Order I Search Cited: 20 Alaska L. Rev. 389 [*pg 389] El ALASKA'S DNA DATABASE: THE STATUTE, ITS PROBLEMS, AND PROPOSED SOLUTIONS I. INTRODUCTION II. OVERVIEW OF SECTION 12.55.015(h) Ill. POTENTIAL PROBLEMS OF SECTION 12.55.015(H) IV. PROPOSALS TO MAKE SECTION 12.55.015{H) MORE EFFECTIVE V. CONCLUSION FOOTNOTES This Practicum examines Alaska Statutes section /2.55.0/ 5(h) and its associated Amendment, House Bill 49. which established Alaska's current DNA database. Following a brief overview of the Statute and the Amendment, the Practicum analyzes the benefits and detriments associated with section /2.55.0/ 5(h). The Practicum notes the amended statute's potential to aid law enforcement, but argues that such a tool is presently ineffective, requires more funding, and has serious privacy ramifications. The Practicum concludes with proposals to enhance the law's effectiveness. lZJEl I. INTRODUCTION As scientific and criminological knowledge regarding DNA grows, state and federal legislators struggle to keep the legal world current with the technological world. In June of2003, Alaska legislators passed House Bill 49 ("Amendment"), amending Alaska Statutes section 12.55.0 15(h) to expand Alaska's DNA database. 1 Although supporters of the Amendment tout the improvements it will bring to the criminal justice system, there are potential problems with the legislation that should not be overlooked. [*pg 390] !2JEl II. OVERVIEW OF SECTION 12.SS.01S(h) Alaska Statutes section 12.55.015(h) reflects the nationwide agreement that DNA databases are a necessary criminological tool. Beginning in the 1980s, the federal government created the Combined DNA Index System ("CODlS"), a means to store and exchange DNA profiles between federal, state and local laboratories. 2 The FBI also published guidelines for states to consider when passing their DNA database registration statutes, including a recommendation that states bring "all felony offenders and misdemeanor sex offenders within the scope of their database laws.,,3 To date, every state has passed a statute providing for DNA collection from various categories offelons, and all states require sex offenders to register their DNA.4 118 http://students.law.duke.edu/shell/cite.pl?2O+ Alaska+L. +Rev. +389 5/7/2007 About the Journal Page 2 of? Despite the unanimity for registering sex offenders, states differ widely concerning which other categories of felons should be subject to DNA testing; the current trend is toward expanding the categories of persons required to register.5 Alaska first began DNA testing in 1992, and in 1996, the State established its own DNA registration system.6 This early system required individuals convicted after 1996 of a felony crime against a person to provide a blood or saliva sample for the database.7 This early system had problems, however, as it did not apply retroactively and therefore did not require felons convicted prior to 1996 to provide a sample for the database.s In addition, the early system [*pg 391] included only samples from individuals convicted of a felony crime against a person, thereby excluding individuals convicted of non-violent felony offenses.9 Accordingly, in 2001, burglary was added as a qualifying conviction. 10 The 2003 Amendment to section 12.55.015(h), introduced as House Bil149 by Representative Tom Anderson, requires all individuals convicted of a crime against a person or any felony, as well as juveniles adjudicated as delinquents for the same offenses, to submit their DNA to the state database. II Although this expansion of Alaska's DNA database may appear severe, Representative Anderson contended that the expansion has multiple benefits. 12 First, the expanded statute will help solve crimes. I3 By increasing the number of offenders required to submit their DNA, there will be more "cold hits"14 on DNA left behind at a rape or murder scene. 15 Second, the expansion of the database will prevent crimes from occurring by identifying criminals before they have the opportunity to commit more crimes. 16 Third, it will prevent innocent individuals from being wrongly suspected, arrested, and convicted of crimes they did not commit. 17 Fourth, it can help to exonerate individuals who have already been wrongly convicted by providing scientific evidence that the individual's DNA does not match the DNA at the scene of the crime. I 8 Fifth, the expansion of the database would increase the cost efficiency of the Alaska criminal jus- [*pg 392] tice system. 19 Although the expansion may initially result in increased costs, Anderson argued that in the long run the database's expansion will reduce overall costs.20 In sum, the Amendment promises to have a positive impact on the Alaska criminal justice system. Compared with other states, Alaska's amended statute is one of the most broadly encompassing statutes, allowing DNA collection for all violent crimes, including sex crimes and murder; all felonies, including burglary and drug crimes; and, for juveniles, some misdemeanors.21 It orders DNA collection from jailed offenders, as well as offenders subject to community corrections, retroactive jail and prison terms, and retroactive probation and parole.22 Only Kansas, Louisiana, New Jersey, Oregon, South Dakota and Utah have similarly broad DNA database registration laws.23 However, Alaska's statute is less encompassing than Louisiana's because Alaska's statute does not provide for DNA collection from those who are merely arrested or suspected of a crime -- Alaska requires conviction before DNA collection can take place.24 DEJ III. POTENTIAL PROBLEMS OF SECTION 12.55.015(H) Although proponents of the new amended statute boast of a "win-win situation" for the state, there are potential problems with [*pg 393] the Amendment that have not been fully explored.25 Such problems include: (1) cost; (2) logistics; and (3) privacy issues. First, the collection, processing, and storage of DNA is a costly business.26 Since the amendment expanded the database to include all felons, including those convicted of forgery, felony DUI, or lying under oath, the state is now collecting many more samples than it had before, thus increasing the cost exponentiallyP Federal funds currently exist to pay for the program, as President Bush recently signed a referendum granting $1 billion dollars to fund both state and federal DNA databases nationwide.28 However, there is no guarantee that this federal funding will continue indefmitely. As Representative Gara stated in the House Judiciary Minutes: "[I]n a few years maybe there won't be [federal money]. And then, maybe we've expanded this database so broadly that it's now cutting into our public safety budget, and we're losing troopers on the streets and law enforcement officers on the street in Anchorage. ,,29 The state needs to have finances in place to prepare for this possibility. Second, there are logistical problems associated with the Amendment. Specifically, the Amendment is devoid of language concerning samples from repeat offenders.30 Under the language of the statute, repeat offenders who have already given a DNA sample to the state database could be required to give a second, third, or fourth sample because the statute does not indicate otherwise. Currently, the Commissioner of the Department of Public Safety has circulated a memorandum stating 119 http://students.law.duke.edulshelllcite.pl?20+ Alaska+L. +Rev. +389 S/7 /2007 About the Journal Page 3 of7 that the State will not collect (*pg 394] duplicate samples, but this policy can be changed.3! Additionally, there is no requirement that the State destroy the samples when they are no longer needed.32 This could create problems with the organization and use of the database because samples continuously come into the database and none are discarded. Furthermore, DNA samples have long been stored in deep freezers.33 Retrieval and removal of DNA samples from these freezers is a cumbersome and time-consuming process.34 Analyzing the increasing numbers of DNA samples is a large and growing problem; it is of little use for the State to collect DNA samples that will only sit in storage. The federal government has acknowledged that "one of the biggest issues facing the criminal justice system today is the substantial backlog ofunanalyzed DNA samples and biological evidence fron1' crime scenes. ,,35 This backlog will continue to grow as states are burdened with increasing DNA samples -- not just from crime scenes, but from those convicted of the expanded list of specified crimes.36 For instance, there are more than 350,000 unanalyzed DNA samples from rape and homicide cases nationwide.37 In addition, there are, by some estimates, more than 200,000 unanalyzed DNA samples from those persons required by state law to provide them.38 Further, it is estimated that there are more than 500,000 persons nationwide required by law to provide a DNA sample whose samples have not yet been collected.39 Thus, Alaska's expansion of the class of persons required to provide the state with DNA samples will not meet the state's goals if the samples are left unanalyzed or are not even collected. Finally, section 12.55.015(h) implicates privacy concerns.40 It has been suggested that DNA databanks are no different from da-[*pg 395] tabanks of fingerprints maintained by law enforcement agencies, which do not implicate such concerns.41 However, whereas fmgerprinting provides information for identification purposes only, DNA can provide insights into the most personal familial relationships and the most intimate workings of the human body.42 DNA reveals information about a person's ethnicity, the likelihood of occurrence of over 4,000 types of genetic conditions and diseases, private information such as legitimacy of birth, and possibly genetic markers for aggression, substance addiction, criminal tendencies, and sexual orientation.43 Additionally, DNA not only reveals information about the individual being sampled, but also about every person who shares in that individual's bloodline.44 While the general rule is that every person's DNA is unique, identical twins share the same DNA markers and family members share similar DNA.45 Thus, potential threats to genetic privacy may extend well beyond the actual felons required to provide a DNA sample. While prisoners have a reduced expectation of privacy,46 this reduced expectation does not extend to prisoners' family members.47 [*pg 396] Although Alaska places some limits on the uses of DNA samples, these uses are not limited to law enforcement purposes.48 Alaska Statutes section 44.41.035(f)(3) allows DNA samples to be used for "statistical blind analysis" and section 44.41.035 (f)(4) allows the DNA samples to be used to "improv[e] the operation of the [DNA database]."49 Alaska's failure to limit the tests that police can conduct on the DNA samples allows for the possibility of significant privacy intrusions as to those innocent citizens who were never required to submit their DNA to the state database. 50 Further, since there is no requirement that the DNA samples be destroyed, 51 individuals' personal information may remain in the database indefmitely, thus increasing the potential for abuse. While there are currently some general limits placed on the use of the DNA samples, there is no guarantee that the law will not change in the future to allow for alternative uses of the personal information contained in the DNA database. 52 Although some of these problems were addressed before the Amendment was codified, the wording of the Amendment does not reflect a recognition of its potential problems. In addition, no regulations have been implemented for section 12.55.015 (h). By failing to address any of the problems in the statute or administrative regulations, Alaska legislators left the door open for potential abuse. [2]E] IV. PROPOSALS TO MAKE SECTION 12.55.015(H) MORE EFFECTIVE Of all the impediments the Amendment is facing, the most critical is funding for collecting and analyzing the samples. Currently, Alaska relies on federal funding for the expenses incurred during the process of expanding the DNA database. 53 Alaska did [*pg 397] not budget any state dollars to help defray the cost.54 In fact, Alaska expects to rely upon continued federal funding to pay for the database until 2009.55 However, as budgets become tighter, Alaska may not be able to rely on 120 http://students.1aw.duke.edu/shelVcite. pl?20+ Alaska+ 1. +Rev. + 389 5/7/2007 About the Journal Page 4 of7 the federal government. Further, expenditures by the federal government alone are insufficient to bear the brunt of the increasing expenses. 56 Thus, to fund the system adequately, Alaska may be forced to compromise other aspects of its criminal justice system. It is untenable for Alaska to wait until federal funding is reduced to develop a solution. Alaska must deal with these concerns now by developing a detailed and proactive funding program articulating how Alaska will fund its DNA database if federal funding falls through, and how it will meet the discrepancy between the funds that the federal government provides and the funds that are required to operate the DNA database effectively. To surmount the logistical hurdles associated with section 12.55.015(h), Alaska legislators must implement regulations specifying how the collection, storage, and retrieval of DNA samples will operate. For example, Commissioner Tandeske of the Department of Public Safety has indicated that the State will not collect duplicate samples from repeat offenders. 57- However, there is no official regulation, and Commissioner Tandeske, or subsequent commissioners, are free to change or disregard the memorandum indicating that duplicate samples will not be collected. Further, if legislators insist on keeping all samples indefInitely, Alaska must adopt a more sophisticated method for storage than cumbersome deep freezers. 58 To that end, a California-based company has developed a streamlined DNA storage system that takes up less space and allows the samples to be retrieved using computers in a matter [*pg 398] of minutes. 59 Alaska should adopt a similar system so as to avoid the logistical nightmare that could result from trying to organize thousands of DNA samples. In order to protect individuals' privacy rights, Alaska legislators need to limit the uses of the collected DNA samples. Alaska Statutes section 44.41.035 should be amended to limit the official uses of DNA samples to curb the opportunity for misuse. Alaska does have severe punishments for those who unlawfully possess the DNA samples or who allow others access to the samples or identifIcation data in the DNA database.60 Given the importance of the privacy issues, however, it is not enough to just punish the offenders. Alaska must work to ensure that the statute is not violated in the fIrst instance. [C]EJ V. CONCLUSION Although it is tempting to dismiss the disadvantages associated with Alaska Statutes section 12.5S.01S(h) and look only toward the positive impact the Amendment will have on crime control, such a dismissal would be misguided. Practitioners, judges, and legislators alike should be wary of the potential problems the Amendment might have for Alaska. Further, though the amended statute has the potential to be a valuable tool for law enforcement, this tool is wasted when there is not adequate funding to analyze the DNA samples in a timely manner. Finally, the privacy issues that arise from the wealth of information that DNA samples provide cannot be swept under the rug. These issues affect people who were never convicted of a crime, but are related to felons. Additionally, the potential uses to which the DNA samples are subject are not sufficiently limited. Marilca R. Athens and Alyssa A. Rower [ZJ FOOTNOTES Copyright @ 2003 by Marika R. Athens and Alyssa A. Rower. This Practicum is also available on the Internet at http://www.1aw.duke.eduljoumals/20ALRAthens. The authors are members of the Class of2004 at Duke University School of Law and serve as an Executive Editor and the Editor-in-Chief of the Alaska Law Review, respectively. I. ALASKA STAT. ~ 12.SS.01S(h) (Michie 2003) (ordering individuals who are required to submit DNA samples as part of their sentences to either submit a sample to health care professionals or to give an oral sample to a state official when requested by the state). 2. The FBI's DNA Program, Before the House Comm. on Gov't Reform, Subcomm. on Gov't Efficiency, Fin. Mgmt. and lntergov't Relations, 2001 Leg., 22nd Sess. (AK June 12,2001) (statement of Dwight E. Adams, Deputy Assist. Dir., Lab. Div., FBI), available at http://www.fbLgov/congress/congressOl/dwight061201.htrn (last visited Sept. 19,2003). 3. ld. 121 http://students.law.duke.edu/shellicite. pl?20+ Alaska+ L. +Rev. +389 5/7/2007 Memorandum Date: May 14, 2007 From: Mayor Shafer/City Council members Jean Lewis, City clg SMIC Field Trip To: Subj: Background The City Council passed a resolution requesting that the Port and Commerce Advisory Board (P ACAB) work on the SMIC Development Plan. After meetings and work sessions, P ACAB has passed on a draft copy to the Seward Planning & Zoning Commission (P&Z) for their perusal and recommendations. A P&Z work session on this subject is scheduled for June 19,2007. P&Z's comments and recommendations will then go back to P ACAB. Looking at meeting time frames, this should occur in July or August. Council member Valdatta has requested this field trip to the SMIC area via written letter to the Clerk's office. The council can discuss options and timeframes at this meeting. 122 AGENDA STATEMENT Meeting Date: May 14, 2007 Johanna Dollerhide, Assistant City Cl-jV Non-objection to the Beverage Dispensary - Tourism Liquor License Transfer of Ownership, Location, and Name Change for the New Seward HoteJ/New Seward Saloon to Gene's Place From: Agenda Item: BACKGROUND & JUSTIFICATION: The City Council has an opportunity to object to the application for the transfer of ownership, location, and name change for the Beverage Dispensary - Tourism Liquor License for the New Seward HoteJ/New Seward Saloon. The City of Seward Police Department, City Utilities Department and the Kenai Peninsula Borough Finance Department have no objections to the new liquor license for the business listed above. The Beverage Dispensary Tourism liquor license, if approved, will transfer ownership from Snow Den Enterprises Inc. dba New Seward HoteJ/New Seward Saloon to Northern Lights Esperesso Inc. dba Gene's Place. It will transfer the location of the license from 209 5th Avenue to 217 5th Avenue. FISCAL NOTE: In the event the City of Seward chooses to file a protest for the above liquor license renewal, then under Alaska Statutes the City of Seward will be required to assist in, or undertake the defense of its protest. RECOMMENDATION: Council expresses no objection to the Beverage Dispensary -Tourism Liquor License transfer of ownership, location and name change from: New Seward HoteJ/New Seward Saloon, owned by Snow Den Enterprises, Inc, located at 209 5th Avenue to: Gene's Place, owned by Northern Lights Espresso, Inc., located at 217 5th Avenue. 123 MEMORANDUM ! I I IJ II )r APR 1 6 2007 ---~ ~ 01' S"lsi ~"I'l\ C"\'~(l CJ ~7'}.;?~.~.. 11, 't!~~.~ ~'.. ~(As~~ Date: April 23, 2007 To: Kim Kowalski-Rogers, Finance - Leases Sue Magyar, Finance - Public Utilities Chief Tom Clemons - Police Department Chief David Squires - Fire Department Johanna Dollerhide, Assistant City clerJ~ Verifying Compliance for the transfe:.d ownership, location, and name change of the Liquor License from Snow Den Enterprises Inc. dba New Seward HotellNew Seward Saloon to Northern Lights Espresso Inc. dba Gene's Place From: Subj: The following business has applied for a liquor license transfer of ownership, location, and name change for Alaska State Liquor License. Please review the following business for compliance with all utilities, lease payments, and assessments. Thank you! Name Department Status Initials License # 4696 From: Snow Den Enterprises, Inc. dba New Seward HoteJ/New Seward Saloon 209 5th A venue, Seward, Alaska 99664 To: Northern Lights Espresso Inc. dba Gene's Place 217 5th Avenue, Seward, Alaska 99664 Finance/Leases FinancelUtilities Police Chief Fire Chief ~ ()JL ~ J4:V ~ tt; 124 . _ APR~04-2007 WED 04:32 PM KENAI PENN BOROUGH CLERK FAX NO. 907 262 8615 P. 01/01 . - KENAI PENINSULA ,BDRDUGH 144 N. BINKLEY . SOLDOTNA, ALASKA . 99889-7599 BUSINESS (907) 714-2160 FAX (907) 262-8615 EMAIL: sssemblyclerk@lborough.kenal.ak.us . , ,. --.... - April 4, 2007 SHERRY BIGGS, CMC BORpUGH CLERK Ms. Dawn Holland-Williams Records & Licensing Supervisor Alcoholic Beverage Control Board. SSO W. 7th Avcune Anchorage, AI{ 99501-6698 . , Re: Transfer of Ownership. Location and Name Change License #4696 Dear Ms. Holland- WilUlIms: Please be advised that the Kenai Peninsula Borough has DO objection to the transfer of ownership, location and name change oithe followm, liquor liCClUle,located within the City ofScward. Alaska: Location FROM: TO: Lot 16 Blo~k 9 (209 SIh Ave) Seward, AK 217 sm Ave, Seward, AI{ OMlership FROM: TO: Snow Den BnterpriSDS Inc. D.B.A. New Seward HotellNew Scwanl Saloon Northem Lights Bxprcsso Inc. D.B.A. Gene's Place If you should have any questions, please feel tree to contact me. Sincerely, cc: Applicant City of Seward. DB FiDauce Department Pile 125 .......- ._.. ...... ""'...-A.....,., ....-'~ 1ocIdae........ __...... dty.wpd State of Alaska Alcoholic Beverage Control Board Date of Notice: April 4, 2007 xx TRANSFER XX Ownership XX Location XX Name Change Application Type: NEW_ Governing Body: City of Seward Community Councils: None License #: License Type: D.B.A.*: Licensee/Applicant: Physical Location: Mail Address: Telephone #: EIN: 4696 Beverage Dispensary Tourism Gene's Place Northern Lights Expresso mc 217 5th Ave Seward, AK 618 I St Anchorage, AK 99501 907-223-8135 Fax 907-345-6836 270104174 CorplLLC Agent: Address Phone Date and State of Good standing? Limited Partnership James Stanley 500 L St Ste#300 907-222- AK 9/17/2004 Yes Anchorage, AK 7100 99501 Please note: the Members/Officers/Directors/Shareholders (principals) listed below are the principal members. There may be additional members that we are not aware of because they are not primary members. We have 1 d all . . I b d h h h ld I 100/.. ha iste pnnctpa mem ers an t ose w 0 0 at east oS res. Member/OfficerlDirector: DOB Address Phone Title/Shares (%) Mark S. Kulstad 4/1/59 618 I St Anchorage, AK 907 -278-1139 President & 51 % 99501 Mary D. Kulstad 8/26/56 618 I St Anchorage, AK 907 - 272- 2250 Vice President, 99501 Secretary , Treasurer &49% If transfer application, current license information: License #: 2346 Current D.B.A.: New Seward Hotel/New Seward Saloon Current Licensee: Snow Den Enterprises Inc Current Location: Lot 16 Block 9 (209 5th Ave) Seward, AK Additional comments: Restaurant Designation Permit Application will be sent via US mail. ORIGINAL APPLICATION MUST BE RETURNED. **Date of Birth * Doing Business As Cc: None 12() f .ootll"1ow8,.,,11W ROO... _ New Pomvd .....' A local governing body as defmed under AS 04.21.080(11) may protest the approval of an application(s) pursuant to AS 04.11.480 by furnishing the board and the applicant with a clear and concise written statement of reasons in support of a protest within 60 days of receipt of this notice. If a protest is filed, the board will not approve the application unless it finds that the protest is "arbitrary, capricious and unreasonable". Instead, in accordance with AS 04.11.510(b), the board will notify the applicant that the application is denied for reasons stated in the protest. The applicant is entitled to an informal conference with either the director or the board and, if not satisfied by the informal conference, is entitled to a formal hearing in accordance with AS 44.62.330-44.62- 630. IF THE APPLICANT REQUESTS A HEARING, THE LOCAL GOVERNING BODY MUST ASSIST IN OR UNDERTAKE THE DEFENSE OF ITS PROTEST. Under AS 04.11.420(a), the board may not issue a license or permit for premises in a municipality where a zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages, unless a variance of the regulation or ordinance has been approved. Under AS 04.11.420(b) municipalities must inform the board of zoning regulations or ordinances which prohibit the sale or consumption of alcoholic beverages. If a municipal zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages at the proposed premises and no variance of the regulation or ordinance has been approved, please notify us and provide a certified copy of the regulation or ordinance if you have not previously done so. Protest under AS 04.11.480 and the prohibition of sale or consumption of alcoholic beverages as required by zoning regulation or ordinance under AS 04.11.420(a) are two separate and distinct subjects. Please bear that in mind in responding to this notice. AS 04.21.010(d), if applicable, requires the municipality to provide written notice to the appropriate community council(s). . If you wish to protest the application referenced above, please do so in the prescribed manner and within the prescribed time. Please show proof of service upon the applicant. For additional information please refer to 13 AAC 104.145, Local Governing Body Protest. Note: Applications applied for under AS 04.11.400(g), 13 AAC 104.335(a)(3), AS 04.11.090(e), and 13 AAC 104.660(e) must be approved by the governing body. Sincerely, /s/ Jane!JUznnan. Jane Hannan Business Registration Examiner 127 Alcoholic Beverage Control Board 5848 E. Tudor Rd Anchorage, AK 99507 - Voice (907) 269-0350 - Fax (907) 272-9412 CITY OF SEWARD 1'. O. l~()\ lli7 -II 0 i\da\ll~ Street Seward. j\la~b !}!I(i(il Finance Department 907.224/H)M 907.221A.oiIRI;lx E-lllail: ken'llillger@nlyolsew;ml.llel MEMORANDUM DATE: April 27, 2007 TO: Marvin Yoder, Interim City Manager Kristin Erchinger, Finance Director ~ FROM: SUBJECT: Legal Invoice and 2007 Legal Budget Report Attached is the legal invoice from W ohlforth, Johnson, Brecht, Cartledge and Brooking for the month April, 2007, in the amount of $21,344.20, as well as the legal expenditure report comparing actual to budget (by fimd) for 2007. With all bills having been received through April 20, 2007 (33% of the year), the status of each fimds' budget-to- actual legal expenditures follows: Totals: 31.5% $ 94,064 $ 299,000 Through April, 2007, the General Fund is right on target with budget projections, at 32.9%. The primary issues undertaken in April include review of construction contracts, long-term care facility bond proposal, engineering services contracts, land transfer and street vacation review, work on Brief for Washington's Army matter, land purchase agreement, and review of documents for council packets and council action. The Harbor Enterprise Fund is slightly over the annualized budget at 34.2% through April. Harbor legal matters included the Resurrection Bay Conservation Alliance matter, lease matters, and general harbor matters. The SMIC Fund is slightly below budget, at 29.3%, with the primary matters including the A VTEC lease, revisions to the SMIC development plan, and review of lease/sales issues. The Electric Fund is slightly under budget at 32.0%, with April legal matters including personnel matters and collective bargaining issues. The Parking Fund, Water Fund, and Wastewater Funds have no legal expenditures through April, 2007. RECOMMENDA nON: Approve payment oflegal invoices from Wohlforth, et al for April, 2007 in the amount of $21,344.20. ~ Cc: Mayor & Council Members Cheryl Brooking, City Attorney, Wohlforth, et al. 128 CITY OF SEWARD Legal Expenditures For Calendar Year Ending December 31, 2007 BiDing for Month of: I April, 2007 This Month Thru Prior Iluclget Subject Bills to be Montb %of Subject Matter Matter # Approv. Ao1uaI Total Annual Budget GENERAL FUND: (101-1115-517IJ.uu) General Government 1001 57,380.21 15,758.56 23,138.77 Rock Quarry 1002 $0.00 0.00 0.00 Exxon Oil Spill Litigation 1004 50.00 0.00 0.00 Gel Cable access 1005 50.00 0.00 0.00 Washington's Anny 1014 53,224.61 3,218.13 6,442.74 Alaska SeaLife Center 1022 50.00 165.50 165.50 Planning & Zoning Issues 1026 S756.42 8,920.68 9,677.10 Shellfish Hatchery Issues 1030 SO.OO 0.00 0.00 NRCS Flood Mitigation/Soil Erosion 1503 SO.OO 0.00 0.00 SBH Leases - 1/2 GF; 1/2 SBH 1035 S148.75 0.00 148.75 SMIC Leases - 1/2 GF; 1/2 SMIC 1036 5218.75 365.46 584.21 Long-Term Care Facility 1041 51,260.77 1,977.50 3,238..27 COS vs. Pruitt/Ace 1042 $461.00 87.50 548.50 Res. Bay Conserv. Alliance 1043 51,225.00 7,546.72 8,771.72 Total General Fund: 514,675.51 $38,ll4O.05 $52,715.56 5160,000 32.9% HARBOR FUND: (401-4370-517IJ.uxx) General Harbor Issues 4102 S910.5O 5,803.19 6,713.69 SBH Leases - 1/2 GF; 1/2 SBH 4106 5148.75 0.00 148.75 Total Harbor Fund: $1,059.25 5,803.19 6,862,44 $ 20,000 34.3"4 SMlC FUND: (417-4501J.5170-xxxx) General SMIC Issues 4170 5297.50 2,047.50 2,345.00 SMIC Leases. 1/2 GF; 1/2 SMIC 4107 5218.75 365.46 584.21 Total SMIC Fund: $516.25 1,411.96 2,919.21 $ 10,000 29.3"4 PARKING FUND: (403-4030-517IJ.xux) General Parking Issues 4030 50.00 0.00 0.00 Total Parking Fund: SO.OO 0.00 0.00 $ SOO 0.0% ELECTRIC FUND: (SOI-540IJ.517o-uu) General Electric Issues 5004 50.00 280.00 280.00 Bond Refunding 5003 50.00 0.00 0.00 Power Sales Agreement 5005 SO.OO 577.50 577.50 LaborlPet1lOnnel 5006 50.00 0.00 0.00 lBEW Collective Bargaining Agmt 5007 $4,790.16 16,270.24 21,060.40 Qualifying Facilities Matters 5008 50.00 0.00 0.00 CEA Ty 2000 Rate Case 5009 50.00 0.00 0.00 Chugach PSA El<tension 5010 50.00 0.00 0.00 SE Matter SOil 5303.03 9,335.46 9,638.49 Total Electric Fund: $5,093.19 26,463.20 31,556.39 5 9S,500 32.0"1" WATER FUND: (701-7400-517IJ.xux) General Water Issues 7001 50.00 0.00 0.00 Total Water Fund: $0.00 0.00 0.00 $ 5,000 0.0"4 WASTEWATER FUND: (703-7900-5170-xxu) General Wastewater Issues 7003 $0.00 0.00 0.00 Total Wastewater Fund: SO.oo 0.00 0.00 $ 5,000 0.0% TOTAL: 521,344.20 72,719.40 94,063.60 II S2!1!1,OOO 31.5% VOUCHER: INVOICE NO: CITY MANAGER APPROVAL: VENDOR NO: 1324 FINANCE APPROVAL: Updated thru 4/20/07 Billing Revised 4/26/07 129 CITY OF SEWARD Legal Expenditures For Calendar Year Ending December 31, 2007 BiUing/or Month of: I March, 2007 This Month Thnl Prior Budoer Subject BiJlstobe Month %of Subject Matter Matter # Approv. Actual Total Annual Budoer GENERAL FUND: (101-1115-S170-xxn) General Government 1001 $4,203.37 11,555.19 15,758.56 Rock Quarry 1002 SO.OO 0.00 0.00 Exxon Oil Spill Litigation 1004 SO.OO 0.00 0.00 Gel Cable access 1005 SO.OO 0.00 0.00 Washington's Army 1014 $1,527.82 1,690.31 3,218.13 Alaska SeaLife Center 1022 SO.OO 165.50 165.50 Planning & Zoning Issues 1026 $4,370.87 4,549.81 8,920.68 Shellfish Hatchery Issues 1030 SO.OO 0.00 0.00 NRCS Flood Mitigation/Soil Erosion 1503 50.00 0.00 0.00 SBH Leases - 1/2 GF; 1/2 SBH 1035 50.00 0.00 0.00 SMIC Leases - 1/2 GF; 1/2 SMIC 1036 $47.96 317.50 365.46 Long-Term Care Facility 1041 5175.00 1,802.50 1,977.50 COS vs. Pruitt/Ace 1042 50.00 87.50 87.50 Res. Bay Conserv. Alliance 1043 5439.09 7,107.63 7,546.72 Total General Fund: SI0,764.11 S27,27S.94 $38,040.0S S16O,OOO 23.8% HARBOR FUND: (401-4370-S170-x""x) General Harbor Issues 4102 SI,149.94 4,653.25 5,803.19 SBH Leases - 1/2 GF; 1/2 SBH 4106 50.00 0.00 0.00 Total Harbor Fund: SI,149.94 4,6S3.2S S,803.19 S 20,000 29.0% SMIC FUND: (417-4S00.S170-xxn) General SMIC Issues 4170 51,015.00 1,032.50 2,047.50 SMIC Leases - 1/2 GF; 1/2 SMIC 4107 $47.96 317.50 365.46 Total SMIC Fund: SI,062.96 1,350.00 . 2,412.96 S 10,000 24.1% PARKING FUND: (403-4036-S170-xux) General Parking Issues 4030 SO.OO 0.00 0.00 Total Parking Fund: SO.OO 0.00 0.00 S SOO 0.0% ELECTRIC FUND: (SOI-S400-S176-xux) General Electric Issues 5004 $0.00 280.00 280.00 Bond Refunding 5003 50.00 0.00 0.00 Power Sales Agreement 5005 S227.50 350.00 577.50 LaborIPersonne1 5006 50.00 0.00 0.00 IBEW Collective Bargaining Agmt 5007 5678.34 15,59\.90 16,270.24 Qualifying Facilities Matters 5008 $0.00 0.00 0.00 CEA Ty 2000 Rate Case 5009 50.00 0.00 0.00 Chugach PSA Extension 5010 SO.OO 0.00 0.00 SE Matter 5011 51,052.29 8,283.17 9,335.46 Total Electric Fund: SI,958.13 24,50S.07 26,463.20 S 98,500 26.9% WATER FUND: (701.74DO-SI70-nn) General Water Issues 7001 50.00 0.00 0.00 Total Water Fund: $0.00 0.00 0.00 S S,OOO O.O~. W ASTEW A TER FUND: (703-7900-S170-nxx) General Wastewater Issues 7003 SO.OO 0.00 0.00 Total Wastewater Fund: $0.00 0.00 0.00 S S,OOO 0.0% TOTAL: 514,935.13 57,784.26 72,719.39 #I 5299,000 24.3% VOUCHER: INVOICE NO: CITY MANAGER APPROVAL: VENDOR NO: 1324 FlNANCEAPPROVAL: Updated thru 3/20/07 Billing Revised 4/23/07 130 CITY OF SEWARD Legal Expenditures For Calendar Year Ending December 31, 2007 Billingfor Month of: I February, 2007 This Mootb Thru Prior Budget Subject Bills 10 be Month %of Subject Maller Maller # Approv. ActUal Total Auuual Budget GENERAL FUND: (101-11 15-5170-xxxx) General Government 1001 $7,996.79 3,558.40 11,555.19 Rock Quany 1002 $0.00 0.00 0.00 Exxon Oil Spill Litigation 1004 $0.00 0.00 0.00 Gel Cable access 1005 $0.00 0.00 0.00 Washington's Army 1014 $1,609.42 80.89 1,690.31 Alaska SeaLife Center 1022 $0.00 165.50 165.50 Planning & Zoning Issues 1026 $4,024.81 525.00 4,549.81 Shellfish Hatchery Issues 1030 $52.00 0.00 52.00 NRCS Flood Mitigation/Soil Erosion 1503 $0.00 0.00 0.00 SBH Leases - 1/2 GF; 1/2 SBH 1035 $0.00 0.00 0.00 SMIC Leases - 1/2 GF; 112 SMIC 1036 $317.50 0.00 317.50 Long-Term Care Facility 1041 $0.00 1,802.50 1,802.50 COS vs. Pruitt/Ace 1042 $87.50 0.00 87.50 Res. Bay Conserv. Alliance 1043 $4,738.63 2,369.00 7,107.63 Total General Fund: $18,816.65 $8,501.19 $17,317.94 $160,000 17.1% HARBOR FUND: (401-4370-5170-xxxx) General Harbor Issues 4102 $2,563.25 2,090.00 4,653.25 SBH Leases - 1/2 GF; 112 SBH 4106 $0.00 0.00 0.00 Total Harbor Fund: S1,563.15 1,090.00 4,653.25 $ 20,000 13.3% SMIC FUND: (417-4SOO-S170-xxxx) General SMIC Issues 4170 $1,032.50 0.00 1,032.50 SMIC Leases - I1~GF;1I2 SMIC 4107 $317.50 0.00 317.50 Total SMIC Fund: SI,35O.00 0.00 --1,350.00 $ 10,000 13.5% PARKING FUND: (403-4030-5170-xxxx) General Parking Issues 4030 $0.00 0.00 0.00 Total Parking Fund: SO.OO 0.00 0.00 $ 500 0.0"1. ELECTRIC FUND: (501-S400-S170-xxxx) General Electric Issues 5004 $0.00 280.00 280.00 Bond Refunding 5003 $0.00 0.00 0.00 Power Sales Agreement 5005 $350.00 0.00 350.00 Labor/Personnel 5006 $0.00 0.00 0.00 IBEW Collective Bargaining Agmt 5007 $3,542.92 12,048.98 15,591.90 Qualifying Facilities Matters 5008 $0.00 0.00 0.00 CEA Ty 2000 Rate Case 5009 $0.00 0.00 0.00 Chugach PSA Extension 5010 $0.00 0.00 0.00 SE Malter 5011 $6,783.31 1,499.86 8,283.17 Total Eleetric: Fund: $10,676.13 13,818.84 24,505.07 $ 98,S00 14.9.10 WATER FUND: (701-7400-5170-xxxx) General Water Issues 7001 $0.00 0.00 0.00 Total Water Fund: SO.OO 0.00 0.00 S 5,000 0.0% W ASTEW ATER FUND: (703-7900-5170-xxxx) General Wastewater Issues 7003 $0.00 0.00 0.00 Total Wastewater Fund: SO.OO 0.00 0.00 S 5,000 0,0% TOTAL: 533,416.11 14,410.13 57,836.15 # S199,000 19.3% VOUCHER: INVOICE NO: CITY MANAGER APPROV VENDOR NO: 1324 FINANCE APPROVAL: Updated thru 2/20/07 Billing Revised 3/01/07 CITY OF SEWARD Legal Expenditures For Calendar Year Ending December 31, 2007 Billing for Month oft I January, 2007 This Month Thru Prior Bud8et Subject Bills 10 be Month %of Subject Malter Matter # Approv. Actual Total Annual Bud8et GENERAL FUND: (101-1115-S170-xux) General Government 1001 53,558.40 0.00 3,558.40 Rock Quarry 1002 $0.00 0.00 . 0.00 Exxon Oil Spill Litigation 1004 $0.00 0.00 0.00 Gel Cable access 1005 $0.00 0.00 0.00 Washington's Army 1014 580.89 0.00 80.89 Alaska SeaLife Center 1022 5165.50 0.00 165.50 Planning & Zoning Issues \026 5525.00 0.00 525.00 Shellfish Hatchery Issues 1030 $0.00 0.00 0.00 NRCS Flood Mitigation/Soil Erosion 1503 $0.00 0.00 0.00 SBH Leases - 1/2 GF; 1/2 SBH \035 $0.00 0.00 0.00 SMIC Leases - 1/2 GF; 1/2 SMIC 1036 $0.00 0.00 . . 0.00 Long-Term Care Facility 1041 $1,802.50 0.00 1,802.50 cas vs. PnlittlAce 1042 $0.00 0.00 0.00 Res. Bay Conserv. Alliance 1043 52,369.00 0.00 2,369.00 Total General Fund: S8,501.29 $0.00 $8,501.29 5UiO,000 5.3% HARBOR FUND: (401-4370-5170-xxxx) General Harbor .Issues 4102 52,090.00 0.00 2,090.00 SBH Leases - 1/2 GF; 1/2 SBH 4106 50.00 0.00 . 0.00 Total Harbor Fund: 52,090.00 0.00 2,090.00 5 20,000 10.5"_ SMIC FUND: (417-4500-S170-xxxx) _ ."General SMIC ~sue~_ _.M 4170 $0.00 0.00 0.00 SMIC Leases - 1/2 GF; 1/2 SMIC 4107 50.00 0.00 0.00 Total SMIC Fund: $0.00 0.00 0.00 5 10,000 0.0% PARKING FUND: (403-4030-S170-xxxx) General Parking Issues 4030 $0.00 0.00 0.00 Total Parking Fund: $0.00 0.00 0.00 $ 500 0.0." ELECfRlC FUND: (SOI-S400-5170-xxxx) General Electric Issues 5004 5280.00 0.00 280.00 Bond Refunding 5003 $0.00 0.00 0.00 LaborlPersonnel 5006 $0.00 0.00 0.00 IBEW Collective Bargaining Agmt 5007 512,048.98 0.00 12,048.98 Qualifying Facilities Matters 5008 $0.00 0.00 0.00 CEA Ty 2000 Rate Case 5009 50.00 0.00 0.00 Chugach PSA Extension 5010 50.00 0.00 0.00 SE Matter 5011 51,499.86 0.00 1,499.86 Total Electric Fund: 513,828.84 0.00 13,828.84 5 56,000 24.7% WATER FUND: (701-7400-S170-xxu) General Water Issues 7001 $0.00 0.00 0.00 Total Water Fund: $0.00 0.00 0.00 S 7S0 0.0% W ASTEW ATER FUND: (703-790o-S170-xxxx) General Wastewater Issues 7003 $0.00 0.00 0.00 Total Wastewater Fund: $0.00 0.00 0.00 5 250 O.O'Y_ TOTAL: 524,420.13 0.00 24,420.13 II 5247,500 9.9% VOUCHER: INVOICE NO: CITY MANAGER APPROVAL: VENOOR NO: 1324 FINANCE APPROVAL: Updated thru 1/20107 Billing Revised 2/01/07 1:12 SARAH PALIN GOVERNOR STATE OF ALASKA OFFICE OF THE GOVERNOR JUNEAU May I, 2007 The Honorable Vanta Shafer Mayor of the City of Seward P.O. Box 167 Seward, AK 99664-0167 Dear Mayor Shafer: It has been called to my attention that Hoben Park, a historic property in Seward owned by the city, has been recognized for its historic significance with listing in the National Register of Historic Places on June 21, 2006. Please accept my congratulations. A certificate recognizing the entry of the historic district in the National Register is enclosed. Alaska's historic and prehistoric properties are valuable resources of the State of Alaska. Thank you for your interest and concern in protecting one of these properties. Sincerely, Sarah Palin Governor Enclosure 133 NATIONAL REGISTER OF HISTORIC PLACES In recognition of its contributions to the cultural heritage of Alaska .,... t.A:> .+::a Hoben Park was entered in the National Register ofllistoric places June 21, 2006 te Historic Preservation OffIcer